source: Caselaw Access Project

license: Public Domain

text:
    Leonardo MARRERO, Petitioner, v. STATE of Florida, Respondent.
    No. SC09-2390.
    Supreme Court of Florida.
    Sept. 15, 2011.

      Carlos J. Martinez, Public Defender, and Robert Kalter and Shannon Patricia McKenna, Assistant Public Defenders, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief, Forrest L. Andrews, Jr., and Lunar Claire Alvey, Assistant Attorneys General, Miami, FL, for Respondent.
   PER CURIAM.

Leonardo Marrero (Marrero) seeks review of the decision of the Third District Court of Appeal in Marrero v. State, 22 So.3d 822 (Fla. 3d DCA 2009), asserting that it expressly and directly conflicts with decisions of the First and Second District Courts of Appeal in T.B.S. v. State, 935 So.2d 98 (Fla. 2d DCA 2006), S.P. v. State, 884 So.2d 136 (Fla. 2d DCA 2004), A.D. v. State, 866 So.2d 752 (Fla. 2d DCA 2004), Wingfield v. State, 751 So.2d 134 (Fla. 2d DCA 2000), remanded, 799 So.2d 1022 (Fla.2001), Clark v. State, 746 So.2d 1237 (Fla. 1st DCA 1999), approved, 783 So.2d 967 (Fla.2001), and Miller v. State, 667 So.2d 325 (Fla. 1st DCA 1995), along with decisions of this Court in Negron v. State, 306 So.2d 104 (Fla.1974), and Carnley v. State, 82 Fla. 282, 89 So. 808 (1921). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTS

Marrero drove his Ford F150 pickup truck through the entrance of the Micco-sukee Casino building located in Miami-Dade County. The entrance consisted of four impact-resistant glass doors, each of them sixteen or seventeen feet tall, each framed in special aluminum materials, and one of which was equipped with a handicap accessible automatic entry system. The crash required each of the four doors to be replaced and resulted in the injury of one casino patron. The State charged Marre-ro, as relevant here, with felony criminal mischief.

The State attempted to introduce costs associated with the temporary repair of the damaged property, but defense counsel, relying on R.C.R. v. State, 916 So.2d 49 (Fla. 4th DCA 2005), objected to the introduction of evidence of temporary repair costs because such costs may be rendered inadmissible if the permanent repair costs are also introduced, as the sum of these costs may exceed the fair market value of the doors. The trial court sustained the objection. Thereafter, the State failed to present any evidence of the repair or replacement costs of the damaged property. The State did present a surveillance videotape of Marrero’s truck crashing through the doors. The State also presented the testimony of the facilities director of the casino, but when asked questions concerning the cost of the damaged property he had no knowledge of the cost or dollar amount of damage.

At the conclusion of the State’s case, Marrero requested a judgment of acquittal on the charge of felony criminal mischief. In support of the motion for judgment of acquittal, defense counsel argued, in part, that the State “failed to establish a prima facie case that the damage was one thousand dollars or more,” the threshold amount for the felony charge. The judge ultimately reserved ruling on Marrero’s motion for judgment of acquittal, and after the defense declared that it would not offer additional evidence, defense counsel again requested the entry of a judgment of acquittal. The judge, despite saying, “I am concerned about the lack of evidence of value,” again reserved ruling on the motion.

During closing arguments, the State did not discuss the monetary amount of damage to the property. The defense, however, argued at great length that the State had failed to prove that the amount of damage resulting from the crash exceeded $1,000. At the conclusion of the closing arguments, the trial court provided, in part, the following instruction concerning criminal mischief:

The punishment provided by law for the crime of criminal mischief is greater depending on the value of the property damage. Therefore, if you find the defendant guilty of criminal mischief, you must determine by your verdict whether:
A, The damage to the property was a thousand dollars or greater.
B, the damage to the property was greater than two hundred dollars but less than one thousand dollars.
And, three, the damage to the property was two hundred dollars or less.

During deliberations, the jury asked the following two-part question: “Can we enter a verdict for [criminal mischief] without rendering an opinion on the value of the property? Was there testimony about the amount of damage to property?” In response, the judge, explicitly relying on Florida Standard Jury Instruction 14.1— which concerns charges of criminal theft, not criminal mischief — provided the following instruction to the jury:

If you find the defendant guilty of criminal mischief, you must make a determination of the value of the property damaged. Your verdict with regard to the value must be for the highest amount which was proven beyond a reasonable doubt. If the exact value of the property damage cannot be ascertained, you should attempt to determine a minimum value. If you cannot determine the minimum value, then you must find the value is less than two hundred dollars.

A few minutes after the judge provided the supplemental instruction to the jury, the jury found Marrero guilty of criminal mischief. The jury explicitly found that “the property was one thousand dollars or more.” In her final ruling on the defendant’s motion for judgment of acquittal, the trial judge stated:

What I’m going to do is that I am going to deny it at this time, but I want you, if you are going to be filing a motion for new trial, I think that it is something that both sides need to brief, all right. I am not going to schedule it because I will let you file it. You have ten days to file a motion for new trial and, you know, I do have a concern about the value and the jury expressed them concern for the value. That one case that I pointed out ... suggests that there has to be some evidence for them to base it on. I think you all should look at the case law on whatever it is you’re going to file. You might want to begin researching since you know what the issue is.

On appeal, the Third District recognized that, “as a general rule, it will be necessary for the State to present evidence of the cost of repair or replacement in a criminal mischief case, if the State wishes to convict the defendant of mischief exceeding either the $200 or $1000 threshold.” Marrero, 22 So.3d at 823 (citing § 806.13(l)(b)2.-3., Fla. Stat. (2006)). However, the Third District continued that “a trial court may conclude that certain repairs are so self-evident that the fact-finder could conclude based on life experience that the statutory damage threshold has been met.” Id. (quoting T.B.S. v. State, 935 So.2d 98, 99 (Fla. 2d DCA 2006) (internal quotation marks omitted)). The district court ultimately applied a “life experience” exception to this case and concluded:

In this case the jury had a videotape of the collision which destroyed four extremely tall impact-resistant doors, including one door with a special mechanism for handicapped entry. We agree with the trial court that based on common experience, the jury could reasonably conclude that the cost of repair or replacement easily exceeded $250 per door or $1000 in the aggregate. We therefore affirm the conviction and the restitution order.

Id.

This Court granted review of the decision below based on express and direct conflict with decisions of this Court and other district courts of appeal. First, the decision below is in conflict with Carnley v. State, 82 Fla. 282, 89 So. 808 (1921), and Negron v. State, 306 So.2d 104 (Fla.1974), receded from on other grounds by Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980), which hold that essential elements of a crime must be proven beyond a reasonable doubt and cannot be left to inference or conjecture. Further, the decision below is in conflict with Miller v. State, 667 So.2d 325 (Fla. 1st DCA 1995), and Wingfield v. State, 751 So.2d 134 (Fla. 2d DCA 2000), remanded on other grounds, 799 So.2d 1022 (Fla.2001), which hold that an adjudication of guilt of a third-degree felony or first-degree misdemeanor charge of criminal mischief, both of which require a specific monetary amount of damage to be established, must be reversed if no evidence of the amount of damage to the property is presented during trial. Finally, the decision below is in conflict with T.B.S. v. State, 935 So.2d 98 (Fla. 2d DCA 2006), A.D. v. State, 866 So.2d 752 (Fla. 2d DCA 2004), S.P. v. State, 884 So.2d 136 (Fla. 2d DCA 2004), and Clark v. State, 746 So.2d 1237 (Fla. 1st DCA 1999), approved on other grounds, 783 So.2d 967 (Fla.2001), each of which provides limitations on any “life experience” exceptions that are not recognized by the decision below.

ANALYSIS

Due process guarantees that the State must prove each essential element of an offense beyond a reasonable doubt. See State v. Barnum, 921 So.2d 513, 519 (Fla.2005) (citing Fiore v. White, 531 U.S. 225, 229, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001)). Section 806.13, Florida Statutes (2006), provides, in part:

(l)(a) A person commits the offense of criminal mischief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another, including, but not limited to, the placement of graffiti thereon or other acts of vandalism thereto.
(b)l. If the damage to such property is $200 or less, it is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
2. If the damage to such property is greater than $200 but less than $1,000, it is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
3. If the damage is $1,000 or greater, or if there is interruption or impairment of a business operation or public communication, transportation, supply of water, gas or power, or other public service which costs $1,000 or more in labor and supplies to restore, it is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.08k.

(Emphasis supplied.) Surprisingly, there is some conflict among our district courts as to whether the amount of damage is an essential element of a felony criminal mischief charge. The Fourth District Court of Appeal has explicitly stated that the amount of damage is an essential element of the crime of felony criminal mischief. See Zanger v. State, 42 So.3d 944, 945 (Fla. 4th DCA 2010) (“In prosecutions for criminal mischief in excess of $1000 — a felony of the third degree — an essential element of the crime is the amount of damage in value or cost to the property damaged.”) (citing § 816.13(l)(a), (b)3., Fla. Stat. (2005); Meenaghan v. State, 601 So.2d 307, 308 (Fla. 4th DCA 1992)) (emphasis supplied). The First, Second, and Third Districts, however, have refrained from declaring the amount of damage to be an essential element of felony criminal mischief and have merely referred to the “severity” of the crime. See S.P. v. State, 884 So.2d 136, 137 (Fla. 2d DCA 2004) (“[EJven though the damage amount is not an element of the offense of criminal mischief, it is relevant to the severity of the crime.” (citing Valdes v. State, 510 So.2d 631, 632 (Fla. 3d DCA 1987) (emphasis supplied)); J.R.S. v. State, 569 So.2d 1323, 1325 (Fla. 1st DCA 1990) (“Damage to the property of another is an essential element of the offense of criminal mischief. However, the specific value of the property damage is relevant only to the severity of the crime.”) (citations omitted) (citing Valdes, 510 So.2d at 632)); Valdes, 510 So.2d at 632 (“While damage to property is an essential element of the crime of criminal mischief, once it is established that the defendant damaged another’s property, the value of the property damage is relevant only to the severity of the crime.” (citation omitted)).

This Court has not previously addressed whether the amount of damage is an essential element of a felony criminal mischief charge. To determine the parameters of a specific element of a crime we first examine the plain language of the statute. See State v. Hubbard, 751 So.2d 552, 561-62 (Fla.1999). When a statute is clear, we do not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent. See State v. Burris, 875 So.2d 408, 410 (Fla.2004) (citing Lee County Elec. Coop., Inc. v. Jacobs, 820 So.2d 297, 303 (Fla.2002)). The plain and ordinary meaning of the words of a statute must control. Finally, our interpretation of a statute is a purely legal matter and therefore subject to a de novo standard of review. See Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216, 1220 (Fla.2010) (citing Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006)).

Here, a plain reading of the criminal mischief statute reveals that the amount of damage is an essential element of the crime of felony criminal mischief. The only difference between second-degree misdemeanor mischief and third-degree felony mischief is the value of the damaged property. Felony criminal mischief requires proof of the amount of damage, whereas second-degree misdemeanor mischief does not. Absent proof of the amount of damage, an act of criminal mischief, as defined by the criminal mischief statute, is a misdemeanor of the second degree. The value of damage, therefore, is clearly an essential element of felony criminal mischief.

This reading of the criminal mischief statute is consistent with prior decisions of this Court interpreting other crimes involving degrees of severity. The criminal theft statute, similar to the criminal mischief statute, relies on the value of property to distinguish between degrees of theft. See § 812.014, Fla. Stat. (2010). Similarly, the criminal trafficking statute relies on the quantity of drugs to distinguish between degrees of criminal trafficking. See § 893.135, Fla. Stat. (2010). Although before today we have not explicitly held that value is an essential element of felony criminal mischief, we have held that value is an essential element of grand theft. See Negron v. State, 306 So.2d 104, 108 (Fla.1974) (“Proof of the element of value is essential to a conviction for grand larceny and must be established by the State beyond and to the exclusion of every reasonable doubt.”) (citing Carnley v. State, 82 Fla. 282, 89 So. 808 (1921)), receded from on other grounds by Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980); see also State v. Hawthorne, 573 So.2d 330, 332 (Fla.1991) (“[T]he rule announced in Negron is an appropriate standard for those cases where the determination of value is an element of the crime.”). We have also held that the quantity of drugs is an essential element of first-degree felony trafficking. See Hernandez v. State, 56 So.3d 752, 758 (Fla.2010) (citing Snell v. State, 939 So.2d 1175, 1179 n. 1 (Fla. 4th DCA 2006)). The essential nature of value in the criminal theft context and quantity in the criminal trafficking context applies equally to the amount of damage in the felony criminal mischief context.

Value is an essential element of felony criminal mischief and the legislature certainly has the prerogative to define the elements of any crime. See State v. Hubbard, 751 So.2d 552, 561-62 (Fla.1999) (citing Perkins v. State, 682 So.2d 1083 (Fla.1996); State v. Hamilton, 660 So.2d 1038 (Fla.1995); Chapman v. Lake, 112 Fla. 746, 151 So. 399 (1932)). The absence of any qualification whatsoever in the criminal mischief statute, however, reinforces the premise that the State must prove the essential element of amount of damage to establish a prima facie case of felony criminal mischief.

To support its approval of the conviction below, the Third District expressly relies on a “life experience” exception to the general rule that the State must establish the amount of damage to prove felony criminal mischief. The “life experience” exception, however, is actually derived from a totally different discrete statutory provision of the criminal theft statutes. Under Florida law the degree of grand theft committed depends on the “value” of the property stolen. See § 812.014, Fla. Stat. (2010). Section 812.012, Florida Statutes (2010), which defines specific terms used in sections 812.012-812.037, Florida Statutes (2010), provides:

(10) “Value” means value determined according to any of the following:
(a)l. Value means the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.
2. The value of a written instrument that does not have a readily ascertainable market value, in the case of an instrument such as a check, draft, or promissory note, is the amount due or collectible or is, in the case of any other instrument which creates, releases, discharges, or otherwise affects any valuable legal right, privilege, or obligation, the greatest amount of economic loss that the owner of the instrument might reasonably suffer by virtue of the loss of the instrument.
3. The value of a trade secret that does not have a readily ascertainable market value is any reasonable value representing the damage to the owner, suffered by reason of losing an advantage over those who do not know of or use the trade secret.
(b) If the value of property cannot be ascertained, the trier of fact may find the value to be not less than a certain amount; if no such minimum value can be ascertained, the value is an amount less than $100.
(c)Amounts of value of separate properties involved in thefts committed pursuant to one scheme or course of conduct, whether the thefts are from the same person or from several persons, may be aggregated in determining the grade of the offense.

(Emphasis supplied.)

In Jackson v. State, 413 So.2d 112, 114 (Fla. 2d DCA 1982), the Second District interpreted section 812.012(9)(b), Florida Statutes (1979), to allow a defendant to be found guilty of theft of property valued at $100 or more “absent any specific proof of value by the state ... when, by the very nature of the property stolen, reasonable persons could not doubt that its value exceeded $100.”- The Jackson court did note, however, that “[i]n doing so, we stress the fact that this should occur only in those rare instances when the minimum value is undisputable and the jury cannot ascertain a specific value from the evidence or lack of evidence before it.” Id. (emphasis supplied).

Jackson improperly breathes an extremely broad interpretation of a narrow statutory provision into the criminal theft statute. Section 812.012(10)(b) provides that “[i]f the value of property cannot be ascertained, the trier of fact may find the value to be not less than a certain amount.” (Emphasis supplied.) A plain reading of this criminal theft provision reveals that a jury is only allowed to determine a minimum value instead of an actual value if the value of property cannot be ascertained. Jackson replaces the requirement that the value of the stolen property be impossible to ascertain with a completely unrelated condition of the State’s failure to present evidence of value (although capable of valuation) and jurors “could not doubt that its value exceeded” the required amount. See Jackson, 413 So.2d at 112. This misinterpretation of the criminal theft statute is not supported by any authority whatsoever and in fact runs contrary to the plain language of the criminal theft statute and the criminal mischief statute. We therefore disapprove of Jackson’s disregard of the impossibility prerequisite articulated in section 812.012(10)(b).

Further, it would be problematic to leave the significant determination of whether a Florida citizen is deemed a convicted felon to the arbitrary and unpredictable “life experience” of a jury. The “life experience” of individual jury members varies widely within individual communities, and even more so throughout this very diverse State. A contractor living in Miami-Dade County may have a very different understanding of the costs associated with hurricane resistant doors than a retired grandmother living in Pensacola. Branding a Florida citizen with the label “convicted felon” must be approached with care and extreme caution, based only on evidence and facts from which conclusions can be drawn, not these widely varying “life experiences.” The application of a “life experience” exception to any criminal statute, including the criminal theft statute, is inconsistent with the uniform system of justice that both the Florida and Federal Constitutions require and should not be left to the whim of individual jury members.

Moreover, even if Jackson had correctly applied the narrow statutory exception articulated in the criminal theft statute, that exception has never before been applied in the criminal mischief context because the concept is not part of the criminal mischief statute. In Clark v. State, 746 So.2d 1237 (Fla. 1st DCA 1999), which involved a charge of criminal mischief, the First District relied on Jackson to recognize that “in theft cases, where the value of an item is so self-evident as to defy contradiction, specific evidence of value need not be introduced.” Id. at 1241 (citing Jackson, 413 So.2d at 114). The First District continued: “Here, however, we cannot agree that the cost of motor vehicle body repair is so self-evident that a jury could simply use its life experience or common sense to determine whether the $1,000 damage threshold was met.” Id. (emphasis supplied). Accordingly, Clark, which served as the basis for the “life experience” exception articulated by the Third District in the case presently before us, referenced “life experience” of a jury in refusing to apply the exception articulated in Jackson to a charge of felony criminal mischief. The First District ultimately held that the defendant could only be found guilty of the lowest degree of criminal mischief allowed under the statutory scheme.

In the decision below, the Third District relied on Clark and three additional decisions of the Second District to support its use of a “life experience” exception:

It has been said that “a trial court may conclude ‘that certain repairs are so self-evident that the fact-finder could conclude based on life experience that the statutory damage threshold has been met....’” T.B.S. v. State, 935 So.2d 98, 99 (Fla. 2d DCA 2006) (quoting A.D. v. State, 866 So.2d 752, 753 (Fla. 2d DCA 2004)); S.P. v. State, 884 So.2d 136, 138 (Fla. 2d DCA 2004); Clark v. State, 746 So.2d 1237, 1241 (Fla. 1st DCA 1999).

Marrero, 22 So.3d at 823. In each of those decisions, however, the Second District actually held that the State had failed to meet its burden of establishing a felony criminal mischief amount and ordered the trial court to reduce the charge to the only degree of criminal mischief that does not require the State to prove value. See T.B.S., 935 So.2d at 99 (“[A] trial court may conclude ‘that certain repairs are so self-evident that the fact-finder could conclude based on life experience that the statutory damage threshold has been met....’ The trial court articulated no life experience or other basis that would constitute sufficient evidence to support its finding that the damage to the victim’s car exceeded $1000.”) (quoting A.D., 866 So.2d at 753); S.P., 884 So.2d at 138 (“We recognize that in some circumstances, the fact-finder can infer from life experience and from the self-evident nature of the repairs that a statutory damage threshold has been met. In this case, however, the fact-finder did not have before it sufficient evidence from which to infer that the ‘$1000 or greater’ threshold had been met.”) (citing A.D., 866 So.2d at 753-54); A.D, 866 So.2d at 753-54 (“Although it is permissible, pursuant to [Clark], for the trial court to conclude that certain repairs are so self-evident that the fact-finder could conclude based on life experience that the statutory damage threshold has been met, we do not believe that is the case here.”).

The decision below is the first time that a district court has actually applied a “life experience” exception to affirm a conviction of felony criminal mischief. A comparison of a “life experience” exception, as articulated by the Third District below, to that originally articulated by the Second District in Jackson reveals a significant analytical gap between the two. The rule articulated in Jackson explicitly relied on section 812.012(10)(b) to justify the application of the “life experience” exception to the criminal theft context. In contrast, the Third District does not provide any statutory basis for the application of the exception to the criminal mischief context. Section 812.012(10), which provides a definition for “value” as utilized in the criminal theft statute, allows a jury to “find the value to be not less than a certain amount” if the value of the item stolen cannot be ascertained. Unlike the definition of “value” in the criminal theft statute, which serves as the basis for the application of the “life experience” exception to the criminal theft statute when the value cannot be ascertained, the criminal mischief statute does not provide a definition for “damage,” or any phrase similar to the criminal theft statute. The absence of a definition of “damage” from the criminal mischief statute, along with the absence of a provision that allows “the trier of fact [to] find the value to be not less than a certain amount,” § 812.012(10)(b), renders the application of a “life experience” exception to the felony criminal mischief context improper.

The State asserts that section 812.012(10)(b) is applicable to the criminal mischief statute because the latter lacks a definition for the term “damage.” This argument is without merit because section 812.012(10) does not provide a definition for the term “damage”; rather, it defines “value,” a term noticeably absent from the criminal mischief statute.

CONCLUSION

A defendant can only be convicted of felony criminal mischief if the damage in question is $1,000 or greater. Absent evidence of the amount of damage, the State has failed to prove an essential element of the crime: the amount of damage. Here, the Third District noted that “the State did not present any evidence of the cost of repair or replacement of the four doors.” Marrero, 22 So.3d at 823. Accordingly, the State has failed to prove an essential element of felony criminal mischief, and, as a matter of law, Marre-ro’s conviction is improper.

In accordance with our analysis above, we hold that before a defendant can be convicted of felony criminal mischief, the State must prove the amount of damage associated with the criminal conduct. Accordingly, we quash the decision of the Third District below. We also disapprove of Jackson v. State, 413 So.2d 112, 114 (Fla. 2d DCA 1982), and the other decisions in this context that apply a “life experience” exception. We remand for the trial court to reduce Petitioner’s conviction of felony criminal mischief to the lesser offense of second-degree misdemeanor criminal mischief as defined in section 806.13(l)(b), Florida Statutes (2006).

It is so ordered.

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

POLSTON, J., concurs in result.

CANADY, C.J., dissents.

      . If the value of the property stolen is valued at $100,000 or more, the offender commits grand theft in the first degree, punishable as a felony of the first degree. See § 812.014(2)(a), Fla. Stat. (2010). If the value of the property stolen is valued at $20,000 or more but less than $100,000, the offender commits grand theft in the second degree, punishable as a felony of the second degree. See § 812.014(2)(b), Fla. Stat. (2010). If the value of the property stolen is valued at $300 or more but less than $20,000, the offender commits grand theft in the third degree, punishable as a felony of the third degree. See § 812.014(2)(c), Fla. Stat. (2010). Finally, the "[tjheft of any property not specified in [section 812.014(2)] is petit theft of the second degree and a misdemeanor of the second degree ..." § 812.014(3)(a), Fla. Stat. (2010).


author: VAN NORTWICK, J.

text:
    1108 ARIOLA, LLC, et al., Appellants/Cross-Appellees, v. Chris JONES, Property Appraiser for Escambia County, Florida, and Janet Holley, Tax Collector for Escambia County, Florida, Appellees/Cross-Appellants.
    No. 1D10-2050.
    District Court of Appeal of Florida, First District.
    July 18, 2011.
    Danny L. Kepner of Shell, Fleming, Davis & Menge, P.A., Pensacola; Talbot D’Alemberte and Patsy Palmer of D’Alem-berte & Palmer, PLLC, Tallahassee, for Appellants/Cross-Appellees.
    Elliott Messer, Thomas M. Findley, and Robert J. Telfer, III of Messer, Caparello & Self, P.A., Tallahassee, for Appel-lees/Cross-Appellants.
   VAN NORTWICK, J.

Appellants, who possess leasehold interests in various properties located on Pen-sacóla Beach in Escambia County, appeal a final summary judgment in favor of appel-lees, Chris Jones, the property appraiser for Escambia County, and Janet Holley, the tax collector for Escambia County, in which the trial court determined that the appellants are equitable owners of the leasehold improvements on their properties and that, accordingly, such improvements are subject to taxation at the ad valorem rate. Jones and Holley cross-appeal the trial court’s rulings that the tax collector does not have standing to raise affirmative defenses concerning the constitutionality of the taxing statutes, sections 196.199(2)(b) and 199.023(1), Florida Statutes, and that Holley, as tax collector, may not sell tax certificates on properties if taxes become delinquent. Because we agree with the trial court that appellants are equitable owners and subject to ad valorem property taxes on them leasehold improvements, we affirm the issue raised on appeal. As a result, we do not reach the issue of the tax collector’s standing to challenge the constitutionality of the tax statutes. Further, because we agree with appellees that the appellant leaseholders did not plead any facts suggesting that they are subject to the sale of tax certificates, we hold that the trial court inappropriately granted declaratory injunctive relief as no actual controversy exists on this issue at this time.

Background

The long and rather tortured history of the taxation of properties on Santa Rosa Island is set forth in detail in the following cases: State v. Escambia County, 52 So.2d 125 (Fla.1951); Straughn v. Camp, 293 So.2d 689 (Fla.1974); Williams v. Jones, 326 So.2d 425 (Fla.1975); Archer v. Marshall, 355 So.2d 781 (Fla.1978); Am Fi Investment Corp. v. Kinney, 360 So.2d 415 (Fla.1978); Ward v. Brown, 919 So.2d 462 (Fla. 1st DCA 2005); Bell v. Bryan, 519 So.2d 1024 (Fla. 1st DCA 1988) (Bell II); and Bell v. Bryan, 505 So.2d 690 (Fla. 1st DCA 1987) (Bell I). Most recently, this court affirmed the judgment of the Santa Rosa County Circuit Court which ruled that the leaseholders of various properties located on Navarre Beach in Santa Rosa County were equitable owners of the real property and the improvements thereon were subject to taxation at the ad valorem tax rate. Accardo v. Brown, 63 So.3d 798 (Fla. 1st DCA 2011).

Santa Rosa Island includes Pensacola Beach in Escambia County and Navarre Beach, leased by Escambia County to Santa Rosa County. Historically, the private leaseholds on Santa Rosa Island have been taxed in various ways by statute. The leaseholds have been deemed both exempt from ad valorem taxation and then later taxed as real property for ad valorem tax purposes. See State v. Escambia County, 52 So.2d at 130 (upholding statutory exemption of the leaseholds on Santa Rosa Island from ad valorem taxes); and Straughn v. Camp, 293 So.2d at 694 (upholding revocation of previous tax exemption). In 1980, section 196.199(2)(b), Florida Statutes, which reads essentially the same today, was enacted making private leaseholds of government owned property exempt from ad valorem taxation and subject only to intangible personal property taxes when rental payments are due as consideration for the leaseholds. The statute adds the caveat, however, that “[njothing in this section shall be deemed to exempt personal property, buildings, or other real property improvements owned by the lessee from ad valorem taxation.”

In Bell I, 505 So.2d at 691, this court held that improvements made by leaseholders on Santa Rosa Island should be taxed at the intangible personal property rate, rather than the rate applicable to real property. The court rejected what it described as the “novel proposition” argued by the Escambia County tax collector that the improvements made by the leaseholders should be assessed at the full real property rate because “the improvements, which are property of Escambia County, and the development of which is the express purpose of the creation of the leasehold, are not part of the leasehold.” Id. The court explained that it could “find no basis in law or reason for determining that the improvements on the real property are not as much a part of the leasehold as the real property itself.” Id. at 691-92.

A decade and a half later, the Santa Rosa County tax assessor began assessing ad valorem taxes on leasehold improvements of certain Navarre Beach leaseholders. The leaseholders brought suit challenging the assessment. The circuit court agreed with the Santa Rosa County taxing authorities that the leaseholders were equitable owners of the leasehold improvements. In Ward v. Brown, this court affirmed, holding that the leaseholders had “sufficient rights and duties regarding the property to make them equitable owners.” 919 So.2d at 463. In determining that the Navarre Beach leaseholders were the equitable owners of the improvements, the Ward majority relied on several factors: (1) the leaseholders had the right to perpetual lease renewals; (2) they had the right to use or rent the improvements; (3) they had the right to encumber their interests; (4) they had the right to transfer their property rights; (5) they had the right to realize any appreciation in value from sale or rental income; (6) they were obligated to insure and maintain the improvements; and (7) they were responsible for the payment of any taxes. Id. The Ward court distinguished Bell I on the grounds that the issue of equitable ownership was not addressed in Bell. 919 So.2d at 464 n. 2.

The Facts and Proceedings Below

Appellants lease real property on Pensacola Beach on which they have constructed improvements used for private residential purposes, including single family homes, townhomes, and condominiüm units. Beginning in 2004, property appraiser Jones appraised these improvements as real property and tax collector Holley billed the leaseholders for ad valorem real property taxes on these improvements. Appellants brought an action against these taxing authorities seeking a declaration that the assessments were unlawful and asking that they be enjoined from pursuing and collecting ad valorem real property taxes on the improvements. Relying upon sections 196.199(8)(a), 197.432(9), and 199.023(l)(d), Florida Statutes (2004), appellants asked that Holley be enjoined from creating any liens for taxes on their leasehold estates and from selling any tax certificates to collect any real property taxes should they fail to pay their taxes in the future.

In their answer and affirmative defenses, the taxing authorities asserted that section 199.023(1), defining intangible personal property, and section 196.199(2)(b) were unconstitutional. Appellants moved to strike the affirmative defenses challenging the constitutionality of sections 196.199(2)(b) and 199.023(1), contending that the tax collector and tax assessor are ministerial public officers who have no standing to challenge the constitutionality of statutes defining property for purposes of taxation or how such properties should be taxed. The 2004 action was consolidated with subsequent actions which addressed ad valorem taxation on the properties for the tax years 2005, 2006, 2007 and 2008.

All of the leases at issue are for 99-year initial terms. Although many of these leases include renewal options, some contain no renewal option, and none of the leases are automatically renewable. Unlike the circumstances in Ward v. Brown, where title to the improvements was vested in the leaseholders until the lease ended at which point it would revert to Santa Rosa County, all of appellants’ leases here provide that legal title to any building or improvement of a permanent character erected on the premises shall vest in Es-cambia County, subject to the terms of the leases. The leases require the lessee to make improvements on the property and to repair and maintain those improvements. The leases provide that a leaseholder must rebuild any damaged or destroyed improvement so as to place it in its former condition and that no leaseholder may remove any improvement of a permanent character from the leasehold.

Despite these restrictions, the leaseholders have significant benefits: they may mortgage or otherwise encumber their leaseholds without prior approval of the lessors; they have the ability to convey their leasehold interests by a sublease or assignment; they have the right to rent their leasehold interests for the production of income; and they receive the full benefit of any capital gains or appreciation in the values of their properties. Although there are some variations in the leases, in this proceeding, the parties treated these leases as identical for purposes of determination of the issues in this case.

The parties filed cross-motions for summary final judgment. Below, appellants argued that the leases in this case are distinguishable from the leases in Ward v. Brown and that, therefore, this court’s decision in Bell I should control the taxation of the leaseholds. The trial court acknowledged that the leases at issue in Ward v. Brown were for original terms of 99 years and were renewable automatically in perpetuity, whereas none of the leases in the instant case renew automatically and vary widely from 99-year renewals to no renewal provision at all. Further, the trial court recognized that the Ward v. Brown leases were freely alienable while many of the leases herein have restrictions on alienation; the Ward v. Brown leases required the lessees to keep the buildings insured while not all the leases in this case require the same; and the Ward v. Brown leases did not include requirements and limitations on recordkeeping and renting out condominium units. Nonetheless, the trial court was persuaded by the similarities of the leases in this case to the leases in Ward v. Brown, explaining as follows:

The benefits enjoyed and burdens borne by lessees in this case bear substantial similarities to the leases in Ward v. Brown, though the leases are not identical. The subleases involved in Ward v. Brown stemmed from the same federal land grant involved in this case. Such leases in Santa Rosa County were required to be “substantially upon the same terms, considerations, conditions as like leases then in use [in Escambia County].”
As in Ward v. Brown, the Plaintiffs in the instant case enjoy substantially all of the benefits of ownership of the improvements and condominium units on their Santa Rosa Island leasehold estates, such as the right to receive rental income and the right to capital appreciation. They also enjoy the right to depreciate their improvements and condominium units for federal tax purposes, if the units are rented.
The Plaintiffs here also bear substantially all of the burdens of ownership found to be significant in Ward v. Brown, including the burdens to repair, maintain, and insure their properties. By law, and by the terms of some of the Plaintiffs’ leases, they also are responsible for the payment of any and all taxes associated with them properties.

The trial court rejected the argument that Ward v. Brown and the cases it relied upon found that equitable ownership requires either a perpetual lease or an option to purchase, explaining, in pertinent part, as follows:

In Leon County Educ. Facilities Auth. v. Hartsfield, 698 So.2d 526 (Fla.1997) and Hialeah, Inc. v. Dade County, 490 So.2d 998 (Fla. 3d DCA), rev. den. 500 So.2d 544 (Fla.1986), each lessee had an option to purchase the leased property and was considered an equitable owner. However, a close reading of the Supreme Court opinion in Leon County Educ. Facilities Auth. v. Hartsfield, reveals the Court did not rely upon the option to purchase in the lease to determine the lessee was the equitable owner of the property. In Leon County Educ. Facilities Auth. v. Hartsfield, the educational facilities authority (a public corporate body) had the option to purchase the dormitory and food service project for one dollar upon payment in full of the costs to finance the project. The Supreme Court determined that the authority was the equitable owner of the leasehold property and that, therefore, it was exempt from ad valorem taxation. The Supreme Court stated:
Our holding in this case should not be construed to mean that one who leases propeHy from another becomes the equitable omier of the propeHy if the lease contains an option to purchase. To the contrary, this Court has long held that the status of parties to the ordinary lease with an option to purchase remains that of landlord and tenant until the option is exercised and that the lessee has no equitable interest in the property, [citation omitted] We hold only that under the stipulated facts of this case, the project is not subject to ad valorem taxation because the Authority holds virtually all the benefits and burdens of omiership.
698 So.2d at 530. (Emphasis supplied). In Hialeah, Inc. v. Dade County, the City of Hialeah, which had obtained title to the land from Hialeah, Inc., leased it back to the corporation for purposes of conducting thoroughbred horse racing on the property. If racing were to be discontinued, the leasehold would be terminated. The corporation had the option to purchase the city’s fee simple interest in the $11.4 million parcel of land upon satisfaction of the city’s mortgage debt and a further payment of $100. The court held that the property could be taxed because the corporation was the beneficial owner of the land and the city held “legal title to the property merely as security.” Id., at 1001. While the option to purchase was a significant factor in the court’s determination, it was not the sole reason the court found the corporation to be the equitable owner of the property.

Accordingly, the trial court concluded:

Plaintiffs have argued persuasively that there are distinctions with a difference between the leases at issue here and those in Ward v. Brown and that those differences warrant a different result in this case. However, while this Court is sympathetic to the Plaintiffs’ arguments, the distinctions are not sufficiently substantial or material to justify a different outcome, and this Court is bound by stare decisis to follow the holding of Ward v. Brown, except as to those Plaintiffs covered by the res judicata effect of the Bell v. Bryan decisions ...

With respect to the leaseholders in Bell I and Bell II, the trial court concluded that, based on principles of res jtidicata, they were entitled to retain their exemption from ad valorem taxation on leasehold improvements. In applying the test for application of res judicata, the trial court expressly found that “the issue of equitable ownership was in fact raised in the Bell cases.” The court concluded that res judi-cata precludes the taxing authorities from litigating their claim in this case that the Bell v. Bryan leaseholders are the equitable owners of their leasehold improvements. The taxing authorities, Jones and Holley, have not cross-appealed this ruling.

Turning to the assertion of the tax assessor and tax collector that they could challenge the constitutionality of section 196.199(2)(b) and other statutes, the trial court ruled that public officials do not have standing to challenge the constitutionality of state statutes. See Crossings at Fleming Island v. Echeverri, 991 So.2d 793, 803 (Fla.2008); Miller v. Higgs, 468 So.2d 371, 374 (Fla. 1st DCA 1985), disapproved on other grounds, Capital City Country Club, Inc. v. Tucker, 613 So.2d 448 (Fla.1993).

The trial court granted summary judgment in favor of the Bell I and Bell II leaseholders. As to all other plaintiffs below (the appellants herein), the court granted summary judgment in favor of Jones and Holley. On motion for rehearing, the trial court agreed with appellants that Holley was enjoined from creating any liens or selling any tax certificates on their property.

Analysis

We acknowledge the distinctions between the instant case and Ward v. Brown. In Ward v. Brown, this court emphasized the fact that the leaseholders in that case had the right to perpetual lease renewals, a factor which is not present in the case before us. Further, here legal title to the improvements is vested in Escambia County, while the title to the improvements in Ward v. Brown was vested in the leaseholders until the leases ended, at which point it would revert to Santa Rosa County. Nevertheless, we are persuaded, as was the trial court, that we are bound by stare decisis to follow Ward v. Brown. See Accardo v. Brown, 63 So.3d at 800 (rejecting the argument of Santa Rosa County leaseholders that Bell I, not Ward, controls the taxation of improvements).

“The doctrine of stare decisis, or the obligation of the court to abide by its own precedent, is grounded on the need for stability in the law and has been a fundamental tenet of Anglo-American jurisprudence for centuries.” N. Fla. Women’s Health and Counseling Servs., Inc. v. State, 866 So.2d 612, 637 (Fla.2003). The presumption in favor of precedent is strong and a court should only recede after consideration of the following questions:

(1) Has the prior decision proved unworkable due to reliance on an impractical legal “fiction”?
(2) Can the rule of law announced in the decision be reversed without serious injustice to those who have relied on it and without serious disruption in the stability of the law? And
(3) [Hjave the factual premises underlying the decision changed so drastically as to leave the decision’s central holding utterly without legal justification?

Id. In the case before us, we answer each of these inquiries in the negative.

There is nothing inherently unlawful in subjecting the appellants to ad valo-rem taxes, as leaseholders on Santa Rosa Island were subject to ad valorem taxation from 1972 to 1980, before section 196.199(2)(b) was enacted. Looking at the benefits and burdens of ownership, these Escambia County leaseholders are no different than the Santa Rosa County leaseholders in Ward v. Brown or Accardo v. Brown. While the Ward v. Brown court attempted to distinguish Bell I on the ground that the issue of equitable ownership was not before the court in Bell I, a ground which has been disproved in this case, the Ward v. Brown court did examine more closely the issue of equitable ownership to arrive at a different conclusion, one which is neither unworkable nor results in serious injustice. The effect of Ward was to recede from Bell I sub silen-tio.

Finally, we agree with cross-appellants that the trial court’s injunction, enjoining tax collector Holley from creating any liens for taxes on appellants’ leasehold estates or improvements thereon or from selling any tax certificates to collect any real property taxes assessed on the leasehold estates or on the improvements, was premature as there does not yet exist a bona fide need for such a declaration. May v. Holley, 59 So.2d 636, 639 (Fla.1952) (“Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration ... ”). To obtain declaratory relief there should be an actual controversy, in the absence of which the circuit court lacks jurisdiction to render declaratory relief. Santa Rosa County v. Admin. Comm’n, 661 So.2d 1190, 1192-93 (Fla.1995); see also State v. Florida Consumer Action Network, 830 So.2d 148, 152-53 (Fla. 1st DCA 2002) (holding that groups failed to allege an appropriate jus-ticiable controversy for declaratory judgment purposes). As recognized in Martinez v. Scanlan, 582 So.2d 1167, 1171 (Fla.1991), when there is no justiciable controversy, the court is, in effect, being asked to give an advisory opinion which is improper in a declaratory action. Appellants did not allege that taxes were not paid and tax liens had been placed on any of their properties. Indeed, tax liens could not have been placed on any of the property since section 194.171, Florida Statutes, imposes a stay on the collection of taxes until an appeal is final. Moreover, appellants did not express the intention not to pay their taxes. Thus, it is entirely hypothetical to speculate that appellants will refuse to pay lawfully imposed taxes.

AFFIRMED in part, and REVERSED in part.

THOMAS and MARSTILLER, JJ„ concur.

      . Section 196.199(2)(b), provides, in pertinent part:
      (2) Property owned by the following governmental units, but used by nongovernmental lessees, shall only be exempt from taxation under the following conditions:
      (b) ... Such leasehold estate shall be taxed only as intangible personal property pursuant to Chapter 199 if rental payments are due in consideration of such leasehold estate. If no rental payments are due pursuant to an agreement creating such leasehold estate, the leasehold shall be taxed as real property. Nothing in this section shall be deemed to exempt personal property, buildings, or other real property improvements owned by the lessee from ad valorem taxation.
      (Emphasis supplied).

      . The Santa Rosa Island Authority (SRIA), which was established to serve as agent for Escambia County in the administration of the island and the leaseholds, collects the rental fees which the leaseholders pay.


author: PER CURIAM.

text:
    Rahsaanda J. BRAXTON-WILLIAMS, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Abercrombie & Fitch Stores, Inc., Appellees.
    No. 1D11-2318.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2011.
    Rehearing Denied Oct. 14, 2011.

      Rahsaanda J. Braxton-Williams, pro se, Appellant.
    A. Robert Whaley, General Counsel, for Appellee Florida Unemployment Appeals Commission, Tallahassee.
   PER CURIAM.

The notice of appeal failed to timely invoke this Court’s jurisdiction. See Raysor v. Raysor, 706 So.2d 400, 401 (Fla. 1st DCA 1998). Accordingly, the appeal is dismissed.

WOLF, PADOVANO, and ROWE, JJ., concur.


text:
    MID-CONTINENT CASUALTY COMPANY and Great American Insurance Company, Appellants, v. FIRST COAST ENERGY, L.L.P., and State of Florida, Department of Environmental Protection, Appellees.
    No. 1D10-5740.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2011.
    Rehearing Denied Oct. 17, 2011.
    John Catizone of Litchfield Cavo LLP, Fort Lauderdale, and Michael K. McCaf-frey of Litchfield Cavo, Tampa, for Appellants.
    George W. Hatch, III, and Robert D. Fingar of Guilday, Tucker, Schwartz & Simpson, Tallahassee, for Appellee First Coast Energy LLP.
    Aliki Moncrief, Deputy General Counsel, Tallahassee, for Appellee State, Department of Environmental Protection.
   PER CURIAM.

This action arises out of two Pollution Liability and Environmental Damage insurance policies issued by Mid-Continent Casualty Company (MCC) and Great American Insurance Company (GAIC). The policies were intended to provide coverage to First Coast Energy, L.L.P. (FCE), for clean-up costs and third-party liability associated with underground petroleum storage tanks (USTs) as required by law. See 42 U.S.C. § 6991b(d), 40 C.F.R. Part 280, § 376.309, Fla. Stat. (2003), and rule 62-761.400(3), F.A.C.

After coverage was denied, FCE filed a complaint seeking a declaratory judgment that its demand for clean-up costs for certain environmental damage was covered under the policies. FCE also sought damages for breach of contract along with attorney’s fees and costs. The trial court ultimately found that GAIC was liable for environmental clean-up costs incurred by FCE, and, if GAIC was not liable, FCE would be entitled to a judgment against MCC for the same clean-up costs.

On appeal, MCC and GAIC raise several issues, many of which challenge factual findings by the trial court that are supported by competent substantial evidence in the record. The only issue on appeal that merits discussion is the argument that the trial court erred in holding GAIC liable when FCE’s claim was made outside the policy period. We agree and reverse the trial court’s finding of liability as to GAIC. We otherwise affirm.

MCC is a subsidiary of GAIC, but the two are separately regulated in Florida. In March 2002, FCE applied for an insurance policy with MCC. Because MCC’s rate approval in Florida was pending at the time, a policy was issued on GAIC paper (hereinafter Policy I). The policy period for Policy I was April 2, 2002, to April 2, 2003. On March 26, 2003, FCE applied to MCC for a “renewal” policy (hereinafter Policy II). MCC issued Policy II, which had a policy period of April 2, 2003, to April 2, 2004, on MCC paper. It is undisputed that Policies I and II contain virtually identical terms as well as the same retroactive date of January 1, 1989.

On April 9, 2003, FCE filed a claim for coverage concerning a release from its UST which occurred subsequent to the retroactive date. It is undisputed that FCE’s claim was filed after Policy I expired by its terms on April 3, 2003. However, the trial court found that coverage still existed under Policy I because GAIC failed to provide FCE with written notice of non-renewal as required by 40 C.F.R. section 280.97. The trial court further found that, even if Policy II could be construed as a notice of non-renewal, FCE’s claim was made prior to the expiration of the 60-day time limit set forth in 40 C.F.R. section 280.97. Because we believe the trial court misapplied 40 C.F.R. section 280.97 to extend Policy I’s coverage period, we reverse the finding of liability as to GAIC.

As required by federal law, the language of 40 C.F.R. section 280.97 was incorporated into the policies sub judice. Of relevance here is the language found in 40 C.F.R. section 280.97(b)(2)(2.)(d.), which provides that “cancellation or any other termination” of the insurance is effective only upon written notice and only after the expiration of 60 days after written notice is received by the insured. Termination or cancellation in this context is defined as “only those changes that could result in a gap in coverage as where the insured has not obtained substitute coverage or has obtained substitute coverage with a different retroactive date.” See 40 C.F.R. § 280.92; Zurich Am. Ins. Co. v. Whittier Props., Inc., 356 F.3d 1132, 1135 (9th Cir. 2004). The purpose of this provision was to protect an insured from sudden gaps in coverage and allow the insured to obtain new coverage following an insurer’s involuntary cancellation or termination of the policy. See Federated Mut. Ins. Co. v. Germany, 712 So.2d 1245, 1248 (Fla. 5th DCA 1998) (refusing to apply 60-day delay in effective date of cancellation where insured sent notice of cancellation to the insurer, who then cancelled the policy at the insured’s request). Thus, we read this provision to apply where there is an affirmative act of cancellation or termination by the insurer. We do not read the provision to apply where an insured allows the policy to expire of its own terms, as was the case here.

The Environmental Protection Agency’s ultimate purpose of preventing “gaps” in coverage is further underscored upon examination of 40 C.F.R. section 280.97(b)(2)(2.)(e.), which provides for a six-month extended reporting period after the effective date of cancellation or non-renewal of a policy except where the new or renewed policy has the same retroactive date as the prior policy. In other words, an extended reporting period would be of no benefit where the subsequent policy provides the same coverage as that provided by the extended reporting period. See also 54 Fed.Reg. 47,077-02 (Nov. 9, 1989) (codified at 40 C.F.R. § 280.97(b)(l, 2)).

In the instant case, the parties do not dispute that the six-month extended reporting period does not apply because Policy II contains the same retroactive date as Policy I. In light of the inapplicability of the six-month extended reporting period, the trial court’s application of 40 C.F.R. section 280.97(b)(2)(2.)(d.) effectively served to create a 60-day extended reporting period under Policy I. We find that this application was contrary to the intent and purpose of the federal regulations and not necessary in the instant case where Policy II contained the same retroactive date as Policy I. Because the trial court erred as a matter of law in applying 40 C.F.R. section 280.97 to extend coverage under Policy I, we reverse the trial court’s finding of liability as to GAIC. We otherwise affirm the trial court’s finding of liability as to MCC.

AFFIRMED in part, REVERSED in part.

BENTON, C.J., ROBERTS and RAY, JJ., concur.


text:
    Xavier SPENCER, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-0243.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2011.
    Rehearing Denied Oct. 19, 2011.

      Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The state charged Xavier Spencer with principal in the first degree to robbery, a second-degree felony. Spencer testified at trial that he witnessed but did not participate in, aid or abet the crime. The trial court instructed the jury on robbery and the necessarily and permissive lesser-included misdemeanor offenses of petit theft and assault, respectively. The verdict form gave the jury the following four options: guilty of robbery as charged; guilty of the lesser-included offense of petit theft; guilty of the lesser-included offense of assault; not guilty. The court explained to the jury, ‘You may find the defendant guilty as charged in the information, or guilty of such lesser included crime as the evidence may justify!,] or not guilty.”

When the jury returned from deliberating, it presented to the court a verdict form on which two of the four choices were marked: guilty of petit theft and guilty of assault. The jury confirmed its verdict was unanimous. However, the court sent the jury back to deliberate further, telling them “you’ve got four choices and you can only pick one of those.... [J]ust mark out the one that you decided not on.” When the jury returned the second time, its unanimous verdict was guilty of robbery as charged. Spencer moved for a new trial arguing that the court incorrectly instructed the jury it could only convict him of one offense, and that the error caused the jury to convict him of robbery instead of petit theft and assault. The court denied the motion for new trial reasoning that even if the instruction was incorrect, which it was, the jury’s second verdict was consistent with the evidence and with Spencer’s theory of defense.

We conclude the trial court should have granted Spencer a new trial. By rejecting the initial verdict and giving an incorrect or, at least, ambiguous instruction, the court caused the jury to change its verdict. Even if the evidence supports a conviction for robbery, the court effectively vetoed the jury’s decision to exercise its pardon power by acquitting Spencer of robbery and convicting him, instead, of two misdemeanors. See Sanders v. State, 946 So.2d 953, 957 (Fla.2006) (explaining that a jury has inherent power “to acquit a defendant of a greater offense and convict him or her of a lesser one even though the evidence supports both crimes.”). This was error, and Spencer is entitled to a new trial.

REVERSED and REMANDED.

WETHERELL, MARSTILLER, and RAY, JJ., concur.

      . See §§ 777.011; 812.13(2)(c), Fla. Stat. (2008).

      . See §§ 784.011(2); 812.014(3), Fla. Stat. (2008); Fla. Std. Jury Instr. (Crim.) 15.1.

      . This verdict form is not in the record on appeal. Neither is it in the trial court's case file, apparently.

      . See, e.g., Bell v. State, 437 So.2d 1057, 1061 (Fla.1983) (explaining how to instruct the jury on the lesser-included crimes in a drug trafficking prosecution; stating that after instructing on the greater offense and all the appropriate lesser-included offenses, "[t]he jury then must be further instructed that it can convict of either the greater offense or one or more of the lesser included offenses ....”) (emphasis added); and see Stuckey v. State, 972 So.2d 918, 921 (Fla. 5th DCA 2007) (concluding that defendant who was charged with and prosecuted for robbery could be convicted of both lesser-included crimes of petit theft and resisting a merchant).

      . We have no doubt the trial court in good faith exercised its authority under Florida Rule of Criminal Procedure 3.530, which provides:
      If a verdict is so defective that the court cannot determine from it whether the jurors intended to acquit the defendant or to convict the defendant of an offense for which judgment could be entered under the indictment or information on which the defendant is tried, or cannot determine from it on what count or counts the jurors intended to acquit or convict the defendant, the court shall, with proper instructions, direct the jurors to reconsider the verdict, and the verdict shall not be received until it shall clearly appear therefrom whether the jurors intended to convict or acquit the defendant and on what count or counts they intended to acquit or convict the defendant. If the jury persists in rendering a defective verdict, the court shall declare a mistrial.


text:
    James McAVOY, Petitioner, v. Edwin G. BUSS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D11-4141.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2011.
    Rehearing Denied Oct. 14, 2011.
    James McAvoy, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Jennifer Parker, General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Powell v. Fla. Dep’t of Corr., 727 So.2d 1103 (Fla. 1st DCA 1999).

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


text:
    Anthony W. BROOM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3995.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2011.
    Rehearing Denied Oct. 14, 2011.
    Anthony W. Broom, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., LEWIS and ROBERTS, JJ., concur.


text:
    Warren Reginald JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4459.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2011.
    Rehearing Denied Oct. 17, 2011.
    Warren Reginald Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(d)(5).

WOLF, LEWIS, and RAY, JJ., concur.


author: PER CURIAM. EVANDER, J.,

text:
    John T. BRYANT and Moriah Bryant, Appellants, v. REYNOLDS GENERAL CONTRACTORS, INC., Appellee.
    No. 5D10-2412.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 2011.
    Rehearing Denied Oct. 13, 2011.
    Mark S. Peters of Eisenmenger, Berry & Peters, P.A., Viera, for Appellants.
    Pierre A.L. Mommers of Pierre A.L. Mommers, P.A., Mommers & Colombo, Melbourne, for Appellee.
   PER CURIAM.

AFFIRMED.

PALMER and LAWSON, JJ., concur.

EVANDER, J., dissents with opinion.

EVANDER, J.,

dissenting.

While I acknowledge that the “abuse of discretion” standard of review is a deferential one, I believe a reversal is required. Given the ultimate outcome below, this was an ideal case for the trial court to hold that neither side was the “prevailing party” and to decline to make an award of attorney’s fees. See, e.g., Merchants Bonding Co. (Mutual) v. City of Melbourne, 832 So.2d 184 (Fla. 5th DCA 2002); Brevard County Fair Ass’n v. Cocoa Expo, Inc., 832 So.2d 147 (Fla. 5th DCA 2002); Lasco Enters., Inc. v. Kohlbrand, 819 So.2d 821 (Fla. 5th DCA 2002).


author: CORTINAS, J.

text:
    BROWARD COUNTY HOUSING AUTHORITY, a/k/a Broward Hud, a/k/a Broward County Housing & Community Development Department, Appellant, v. Maria PRATS, as Guardian of Hortensia Rodriguez, Appellee.
    No. 3D11-1080.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 2011.

      Johnson, Anselmo, Murdoch, Burke, Piper & Hochman and Michael R. Piper and Chris Ambrosio, Fort Lauderdale, for appellant.
    Sutton Law Group and John R. Sutton and Brett B. Trembly, for appellee.
    Before CORTIÑAS, ROTHENBERG, and LAGOA, JJ.
   CORTINAS, J.

Hortensia Rodriguez (the “Ward”) was influenced by her niece, Ana Perez Guzman (the “Niece”), to apply for a reverse mortgage through the Home Equity Conversion Mortgage program (the “Program”). Offered in conjunction with the Program was a separate service whereby a potential applicant would receive mortgage counseling from an agency such as the Broward County Housing Authority (“BCHA”). The Ward received a one-hour telephonic counseling session and was issued a certificate confirming her completion of the session. The certificate was then presented to Circle Mortgage, who, unbeknownst to the Ward, ultimately disbursed approximately $182,000 to the Niece. Subsequently, Maria Prats, as guardian of the Ward, filed suit in Miami-Dade County against BCHA essentially alleging that, as a result of various acts and omissions by BCHA in relation to the counseling session, the Ward was deprived of her homestead rights in contravention of Article X, Section 4 of the Florida Constitution. Shortly after the lawsuit was filed, BCHA filed a motion to dismiss or transfer venue, which the trial court denied. BCHA appeals the denial and argues that it is entitled to the home venue privilege and, as such, venue is proper only in Broward County. We agree and reverse.

As we have previously held, “[i]n civil actions ‘against the state or one of its agencies, the Florida common law home venue privilege provides that venue is proper in the county where the agency maintains its principal headquarters.’ ” Sink v. E. Coast Public Adjusters, 40 So.3d 910, 912 (Fla. 3d DCA 2010) (quoting Barr v. Fla. Bd. of Regents, 644 So.2d 333, 335 (Fla. 1st DCA 1994)). The home venue privilege, however, is not absolute. Sink, 40 So.3d at 912. Here, the trial court denied the motion to dismiss or transfer on the basis that the “sword-wielder” exception to the home venue privilege applied. This exception is applicable where a “plaintiff seeks judicial protection from a real or imminent danger of invasion of the plaintiffs constitutional rights.” Id. (quoting Barr, 644 So.2d at 335). The sword-wielder exception, however, applies “only where the official action unlawfully infringes on the plaintiffs constitutional rights.” Sink, 40 So.3d at 913 (quoting Brown v. State, 705 So.2d 1041, 1042 (Fla. 2d DCA 1998)).

Under the facts of this case, we find the sword-wielder exception to BCHA’s home venue privilege to be wholly inapplicable. BCHA took no direct action against the Ward, and while BCHA’s counseling of the Ward for participation in the Program may have ultimately been exploited by the Niece and used to deprive the Ward of her homestead rights, BCHA’s actions as alleged, are insufficient to merit characterizing it as the initial sword-wielder for purposes of overcoming the home venue privilege. Accordingly, we reverse the trial court’s order and remand with instructions that venue be transferred to Broward County.

Reversed and remanded with instructions.

      . The Ward is an elderly woman who suffers from dementia and other ailments which have necessitated a court-appointed guardian.


author: GERBER, J.

text:
    Christopher REGNER and Karin Regner, Appellants, v. AMTRUST BANK, Appellee.
    No. 4D11-1281.
    District Court of Appeal of Florida, Fourth District.
    Sept. 28, 2011.
    Charles D. Franken of Charles D. Franken, P.A., Plantation, for appellants.
    Vivian Lasaga of Spear and Hoffman, P.A., Miami, for appellee.
   GERBER, J.

The defendants, whose home was sold at a foreclosure sale, appeal the circuit court’s order denying their verified motion to vacate the certificate of title issued after the sale. The court denied the motion even though it recognized that the bank had not offered any evidence in opposition to the motion. The defendants argue that the court erred in denying their motion because the clerk of court issued the certificate of title while their objections to the sale were pending and because the court did not conduct an evidentiary hearing on their objections.

We agree with the defendants’ arguments and reverse. Compare § 45.031(5), Fla. Stat. (2010) (“If no objections to the sale are filed within 10 days after filing the certificate of sale, the clerk shall file a certificate of title .... ”), with § 45.031(8), Fla. Stat. (2010) (“If timely objections to the bid are served, the objections shall be heard by the court.”); see also Opportunity Funding I, LLC v. Otetchestvennyi, 909 So.2d 361, 362 (Fla. 4th DCA 2005) (“The Clerk of the Court lacks authority to issue a certificate of title ... when an objection to a foreclosure sale is timely filed”). “For the court to ‘hear’ objections, it must provide both notice and an opportunity for any interested party to address those objections.” U.S. Bank Nat’l Ass’n v. Bjeljac, 43 So.3d 851, 853 (Fla. 5th DCA 2010) (citations omitted). Further, “ ‘ it is reversible error for a trial court to deny a party an evidentiary hearing to which [the party] is entitled.’ ” Avi-Isaac v. Wells Fargo Bank, N.A., 59 So.3d 174, 177 (Fla. 2d DCA 2011) (quoting Sperdute v. Household Realty Corp., 585 So.2d 1168, 1169 (Fla. 4th DCA 1991)).

We remand for an evidentiary hearing on the defendants’ claims that: (1) they did not receive notice of the sale; (2) the bank breached the parties’ settlement agreement by wrongfully rejecting the defendants’ final redemption payment; and (3) the bank’s purchase price was inadequate. See Bennett v. Ward, 667 So.2d 378, 382 (Fla. 1st DCA 1995) (“The failure to give adequate notice of a judicial sale may effectively deprive the mortgagor of the right to redeem the property.”); Indian River Farms v. YBF Partners, 777 So.2d 1096, 1098-99 (Fla. 4th DCA 2001) (remanding for evidentiary hearing on whether mortgagor’s assignee timely exercised its right of redemption before the issuance of the certificate of title); Blue Star Invs., Inc. v. Johnson, 801 So.2d 218, 219 (Fla. 4th DCA 2001) (“[T]o vacate a foreclosure sale, the trial court must find (1) that the foreclosure sale bid was grossly or startlingly inadequate; and (2) that the inadequacy of the bid resulted from some mistake, fraud or other irregularity in the sale.”) (citations and internal quotations omitted).

On remand, the defendants bear the burden to establish their claims. See Richardson v. Chase Manhattan Bank, 941 So.2d 435, 437 (Fla. 3d DCA 2006) (“On remand [the mortgagor] bears the burden to establish at the evidentiary hearing that she did not receive notice of the rescheduled sale and must also show what harm, if any, she suffered by reason of not being notified of the sale.”). The defendants shall be entitled to testify at the evidentiary hearing if they so request. See Sperdute, 585 So.2d at 1169 (“Neither the submission of affidavits nor argument of counsel is sufficient to constitute an evidentiary hearing. Since the purpose of an evidentiary hearing is to allow a party to ‘have a fair opportunity to contest’ the factual issues, this purpose is not effectuated if a party is not allowed to testify.”) (citation omitted).

Reversed and remanded.

WARNER and POLEN, JJ., concur.


text:
    Paul HOOKS, Appellant, v. Laytoya QUAINTANCE, Appellee.
    No. 1D11-1287.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2011.

      Daniel M. Copeland, Jacksonville, for Appellant.
    Gerald L. Wilkerson, Jacksonville, for Appellee.
   PER CURIAM.

Appellant, Paul Hooks, appeals from the trial court’s order dismissing his petition to disestablish paternity based on the finding that Appellant failed to include newly discovered evidence with his petition, as required under section 742.18, Florida Statutes (2009). Appellant argues that DNA test results, which showed that he was not the biological father of the child, constituted newly discovered evidence for purposes of section 742.18(1). Because we find that Appellant did not exercise due diligence to discover whether he was the biological father of the child, we affirm the trial court’s order.

On January 2, 2005, Appellee, Laytoya Quaintance, gave birth to a child. At the time of birth, no father was named on the child’s birth certificate. Appellant’s name was added to the child’s birth certificate with his consent on September 21, 2005. Prior to Appellant’s voluntary acknowledgment as the child’s father, Appellee informed Appellant that there was no more than a fifty percent chance that he was the child’s biological father. On the following day, September 22, 2005, Appellant married Appellee. One of Appellant’s reasons for taking these steps included his express desire to provide support to the child by making the child eligible for dependent benefits arising from Appellant’s enlistment in the armed forces. On November 30, 2006, the parties divorced, and without objection by either party, the divorce decree identified the child as the child of their marriage.

On January 3Í, 2010, Appellant filed a petition to disestablish paternity of the child pursuant to section 742.18. Section 742.18 establishes the procedure for disestablishment of paternity and provides in relevant part the following:

(1) The petition [for disestablishment of paternity] must include:
(a) An affidavit executed by the petitioner that newly discovered evidence relating to the paternity of the child has come to the petitioner’s knowledge since the initial paternity determination or establishment of a child support obligation.
(b) The results of scientific tests that are generally acceptable within the scientific community to show a probability of paternity, administered within 90 days prior to the filing of such petition, which results indicate that the male ordered to pay such child support cannot be the father of the child for whom support is required, or an affidavit executed by the petitioner stating that he did not have access to the child to have scientific testing performed prior to the filing of the petition. A male who suspects he is not the father but does not have access to the child to have scientific testing performed may file a petition requesting the court to order the child to be tested.

Id.

There are seven statutory requirements which must be satisfied to prevail on a petition to disestablish paternity. § 742.18(2). Two of the statutory requirements are at issue in this case. Pursuant to section 742.18(2), a trial court could grant relief on a petition filed in accordance with section 742.18(1) upon a finding that:

(a) Newly discovered evidence relating to the paternity of the child has come to the petitioner’s knowledge since the initial paternity determination or establishment of a child support obligation.
(b) The scientific test required in paragraph (l)(b) was properly conducted.

Id.

In the petition, Appellant asserted that the results of scientific testing (“DNA test results”), which showed that he was not the biological father of the child, constituted newly discovered evidence for purposes of section 742.18(1). Appellee filed a motion to dismiss, arguing that the petition should be dismissed because Appellant failed to comply with the mandatory requirement of section 742.18 that the petition include newly discovered evidence.

The trial court granted Appellee’s motion to dismiss finding that Appellant’s DNA test results were not newly discovered evidence within the meaning of the statute because Appellant was fully aware of the possibility of his non-paternity and of the means to resolve any question he had in that regard. Appellant chose not to undergo DNA testing and proceeded to legitimate the child.

On appeal, Appellant seeks reinstatement of his petition, arguing that the trial court erred as a matter of law in its interpretation of section 742.18. Appellant asserts that the trial court’s interpretation of section 742.18 indicates that no male would be able to disestablish paternity when it has previously been established. Appellant also asserts that DNA test results constitute newly discovered evidence for purposes of section 742.18(1) as a matter of law. As support of his argument, Appellant relies upon the fact that section 742.18 requires filing a petition to disestablish paternity within ninety days from acquisition of DNA test results. Appellant asserts that after expiration of this ninety-day period, DNA test results lose “newly discovered evidence” character. We disagree with Appellant.

We review a trial court’s interpretation of a statute de novo. Strod v. Lewenstark, 958 So.2d 1188, 1139 (Fla. 4th DCA 2007). In interpreting a statute, “[l]egislative 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) (internal citations omitted). “[T]he 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 Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968)). Moreover, “the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.” State v. Goode, 830 So.2d 817, 824 (Fla.2002). If the meaning of the statute is clear then the 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). Courts give effect to “every word, phrase, sentence, and part of the statute, if possible, and words in a statute should not be construed as mere surplusage.” Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 198-99 (Fla.2007) (internal citations omitted). With these principles in mind, we turn to the statute at issue in this case.

After examination of the text in section 742.18, we find that the plain language in section 742.18 requires a showing of newly discovered evidence in addition to DNA test results indicating that a male is not the father of the child. The statute treats these two requirements as separate. As a result, we interpret the requirement of newly discovered evidence as distinct from the requirement of a DNA test. Therefore, we reject Appellant’s alternative construction and decline to interpret this statute in a way which would render immaterial and redundant the separate references to newly discovered evidence and DNA test results.

Florida Rule of Civil Procedure 1.540(b)(2) provides that newly discovered evidence is evidence that by due diligence could not have been discovered in time to move for a trial or rehearing. Prior to the enactment of section 742.18, the only remedy for males to challenge paternity was to bring an action pursuant to Florida Rule of Civil Procedure 1.540. See Johnston v. Johnston, 979 So.2d 337, 338 (Fla. 1st DCA 2008). The Florida Legislature clearly borrowed this term from Rule 1.540 and placed it in the language of section 742.18. Courts have stated that rule 1.540(b), however, “does not have as its purpose or intent the reopening of lawsuits to allow parties to state new claims or offer new evidence omitted by oversight or inadvertence.” Phenion Dev. Grp., Inc. v. Love, 940 So.2d 1179, 1183 (Fla. 5th DCA 2006) (internal citations omitted). The necessary finality of litigation prohibits courts from giving parties a second chance at proof they had available in the first instance but overlooked or chose not to use. Id. Relief from judgment based on newly discovered evidence claim should be seldom granted and only when the party seeking relief has exercised due diligence. Junda v. Diez, 848 So.2d 457, 458 (Fla. 4th DCA 2003).

In this case, Appellant has provided no newly discovered evidence as defined by statute. It is undisputed that at the time Appellant voluntarily acknowledged paternity, he was well aware of the fact that there was only a fifty percent chance that he was the biological father, and he admitted that he chose not to have a DNA test. Appellant could have discovered whether he was the biological father in 2005 before he voluntarily acknowledged paternity. However, since he chose not to do so, he did not exercise due diligence to discover whether he was the biological father. Thus, the trial court correctly found that Appellant’s current DNA test results were not newly discovered evidence.

Accordingly, we affirm the trial court’s order.

WOLF, LEWIS, and RAY, JJ., concur.


text:
    Carolyn JACKMORE, Appellant, v. William JACKMORE, and The Estate of William Jackmore, Deceased, c/o Scott Jackmore, as Personal Representative, Appellees.
    No. 1D11-0659.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2011.
    Valarie Linnen, Jacksonville Beach; Carrie McClain, Jacksonville, for Appellant.
    Merrilee A. Jobes and Adrian Philip Thomas of Adrian Philip Thomas, P.A., Fort Lauderdale, for Appellees.
   PER CURIAM.

Carolyn Jackmore appeals an order denying her motion to enforce a foreign judgment. We reverse and remand for further proceedings.

In 1975, the New York Supreme Court entered a judgment dissolving the marriage of Carolyn and William Jackmore and ordering the former husband to pay $200 monthly alimony and child support. Thirty-five years later, in May 2010, Carolyn Jackmore filed a motion in the Duval County Circuit Court to register the New York judgment and to enforce it against the estate of William Jackmore, alleging that he had repeatedly refused to pay his obligations in spite of her “requests and pleadings.” After a non-evidentiary hearing, the trial court denied the motion, finding that the former wife had abandoned or waived any claim against the former husband, that her claim was barred by New York’s statute of limitations, and that she failed to comply with the Uniform Reciprocal Enforcement of Support Act. This was error.

The Uniform Interstate Family Support Act replaced the Uniform Reciprocal Enforcement of Support Act in 1997. Dep’t of Revenue ex rel. Cascella v. Cascella, 751 So.2d 1273 (Fla. 5th DCA 2000). Within the Uniform Interstate Family Support Act, section 88.6041, Florida Statutes, provides:

(1) The law of the issuing state governs the nature, extent, amount, and duration of current payments and other obligations of support and the payment of arrearages under the order.
(2) In a proceeding for arrearages, the statute of limitation under the laws of this state or of the issuing state, whichever is longer, applies.

(Emphasis added.) Florida does not have a limitations period for enforcement of alimony or child-support orders, and thus Florida’s unlimited period applies.

Notwithstanding the absence of a limitations period, the former wife’s action for enforcement is equitable in nature and thus may be limited by the doctrine of laches. See Dep’t of Revenue ex rel. Brown v. Steinle, 837 So.2d 1072 (Fla. 2d DCA 2003). Laches, however, is an affirmative defense that must be proven by facts about both the plaintiffs and the defendant’s conduct, and is not established merely by the passage of an inordinate period of time. Bethea v. Langford, 45 So.2d 496 (Fla.1949).

It is undisputed that the hearing below was not an evidentiary hearing. The court thus had no evidentiary basis from which to conclude that the estate of the former husband had proven laches. Moreover, the estate did not contend until oral argument that the former wife’s action was barred by the two-year statute of non-claim under section 733.710, Florida Statutes. We reverse and remand for the lower court to conduct an evidentiary hearing to determine any factual issues properly raised by the parties.

REVERSE and REMAND.

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.