author: WARNER, J.

text:
    Mario A. ALVAREZ, Appellant, v. COOPER TIRE & RUBBER COMPANY, Appellee.
    No. 4D08-3498.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 2011.

      Lauri Waldman Ross and Theresa L. Girten of Ross & Girten, Miami, and Jane Rreusler-Walsh of Jane Kreusler-Walsh, P.A., West Palm Beach, for appellant.
    Kathleen M. O’Connor of Kathleen M. O’Connor, P.A., Palmetto Bay, and Frederick J. Fein of Thornton, Davis & Fein, P.A., Miami, for appellee.
   On Motion For Rehearing En Banc.

WARNER, J.

We grant appellee’s motion for rehearing en banc, vacate the prior opinion in this case, and substitute the following opinion in its place.

Appellant, Mario Alvarez, as personal representative of the estate of Jose Ramon Alvarez, appeals a final judgment in favor of Cooper Tire Company in a products liability action. Alvarez complains that the trial court abused its discretion in limiting document discovery from Cooper Tire to those involving tires with the same or similar specifications. Two trial judges conducted multiple hearings and document reviews, both concluding that the limitations were appropriate. We find no abuse of discretion and affirm.

In December 2000, Abraham Calel was driving his 1994 Isuzu P15 pick-up truck on the Sawgrass Expressway with Jose Alvarez, sitting in the right-side passenger seat, and Rudy Velasquez, sitting in the middle. Neither the driver nor the passengers had on their seatbelts. Without warning, the right rear tire tread completely separated from the tire but the tire remained inflated. When this happened, the driver lost control of the pick-up truck, went off the highway, and the truck rolled over. Alvarez was partially ejected from the vehicle and ended up pinned underneath the truck. He died by asphyxiation. The other passenger was also killed in the accident. The driver survived.

In his capacity as personal representative of his brother’s estate, Mario Alvarez filed a lawsuit against Cooper Tire and others for the wrongful death of his brother, claiming that the tire on the truck was defective in its design and manufacture, thereby causing the accident and Jose’s death. Cooper denied the material allegations of strict liability and negligence and raised twelve affirmative defenses, including the seat belt defense, misuse of the subject tire, and defective vehicle design, among others.

The failed tire was a Cooper Trendsetter Steel Belted Radial Tire (Cooper Trendsetter SE, P205/70R14), produced in Tupelo, Mississippi during the 15th week of 1998 pursuant to Green Tire Specification 3011. After institution of the lawsuit, Alvarez filed a multitude of discovery requests. Those requests demanded discovery of information and documents regarding all light truck tires manufactured by Cooper.

Cooper objected to the discovery based upon trade secret, burdensomeness, and that the plaintiff was entitled to discovery only for those tires which were substantially similar to the tire which was the subject of the lawsuit. Cooper maintained that those tires with the same or related GTS number, namely GTS 3011 and 3163, were the only tires substantially similar to the subject tire. Alvarez, however, claimed that the tires manufactured to other Green Tire Specifications were substantially similar in that all Cooper tires were manufactured using the same basic processes. Two of the main defects claimed by Alvarez’ tire expert constituted the lack of nylon overlays and a belt wedge, which the expert maintained were similar in all Cooper tires, thus making more than the same GTS number relevant for discovery purposes. Cooper, however, claimed that the differences in the processing and specifications made each GTS tire different. It had produced over 1,500,000 tires under the two GTS numbers which it claimed were substantially similar, and it had never been sued for tires involving either specification number.

We should point out that both sides have litigated many, many other tire defect cases involving Cooper tires. They have employed the same experts on many cases and have received document discovery in other cases. The experts are thoroughly familiar with the tire production methods, and the plaintiffs expert formulated opinions as to the cause of the tread separation of this particular tire without use of any documents from Cooper which were not produced in this case. The plaintiff, nevertheless, wanted documents both to show that Cooper had notice of a tread separation problem involving some tires with different GTS numbers and in later hearings admitted that he wanted documents for purposes of his claim for punitive damages.

The original trial judge, Judge Brunson, held a two day hearing in 2003. Although no live testimony was taken, the parties showed the judge a demonstration tire to explain tire construction and the manufacturing process. Both sides proffered expert affidavits and argued their respective implications. In a relatively short affidavit, Alvarez’ expert, Dennis Carlson, opined that much of what Cooper sought to protect as trade secrets was not confidential at all. He claimed that information such as chemical composition could be acquired by reverse engineering of the tire. He also set forth nine cases where he appeared as an expert involving tread separation of Cooper tires. With respect to those cases he stated that all were substantially similar in that a “failure occurs between the steel belts in the skim stock of the tires and the skim stock formula is the same for all light truck and passenger tires produced by Cooper.” He also stated that this failure mechanism was typical through the industry with respect to steel belted radials.

The defense proffered a substantially more detailed affidavit explaining the manufacturing process. Lyle G. Campbell, a forensic consultant and former Director of Cooper’s Technical Relations Department, described the process by which tires are designed and manufactured and the basic components of a radial tire. He also explained that there are multiple causes and contributing factors for tire failure, including underinflation of tires and wear and tear. He stated that tires manufactured in accordance with different GTS numbers were different tires and explained why. The affidavit presented several examples of differences in various tires with different GTS numbers manufactured by Cooper. It also explained that permitting discovery of all radial tires as requested by plaintiff would require the production of hundreds of thousands of pages of documents. Finally, the affidavit explained in detail why much of this information would constitute trade secrets.

After this thorough hearing, and having taken additional time to review material submitted, Judge Brunson limited discovery “to the subject tire and substantially similar tires which this Court defines as tires designed and manufactured according to Green Tire Specification 8011 and its Related Specification 8163.” Cooper then produced over 1,500 documents regarding those tires.

In 2005, Alvarez filed a second motion to compel. He sought specific Cooper documents which had been produced in consolidated lawsuits in California, known as “the JCCP” (“Judicial Council Coordinated Proceeding”). This California proceeding permitted discovery to be coordinated between multiple lawsuits against Cooper, involving many different GT Specification tires, none of which included the tire specifications involved in this case. These documents were designated trade secret by the California judge. The parties obtained an order authorizing the Florida courts to inspect these documents for the purpose of this discovery dispute. Judge Brunson conducted a two-day hearing with extensive argument regarding the 139 documents. Some of the documents were reviewed during the hearing. The judge then reviewed the remaining documents. She denied discovery, concluding that the documents were protected by trade secret and plaintiff had not shown a reasonable necessity to require their production. None of the documents included the 3011 or 3163 tire specification numbers.

When this case was assigned to Judge Fine in 2005, Alvarez filed another motion to compel production of the JCCP documents. This time, he pointed out that these documents had been produced in an Arizona case and again claimed that they should be produced in this case, as he claimed that the tires in the Arizona case were virtually identical. Those tires, however, had different GTS numbers. Judge Fine held a hearing and then reviewed the documents himself. He denied production.

In 2007, Alvarez filed another motion, this time to vacate the original 2003 order limiting discovery to the two GTS numbers. He based his request on an order of Judge Kenneth Stern who had allowed additional production of documents in another Cooper Tire case pending in the Fifteenth Circuit in Palm Beach County. That case, however, did not involve GTS numbers 3011 or 3163. Judge Fine again held a hearing on the issue and again denied discovery, noting that he simply disagreed with Judge Stern’s ruling.

At trial, the plaintiffs expert testified that the tread separation was caused by a defective design as well as defects in the manufacturing process. As to the design defects, he testified that, within a reasonable degree of engineering certainty, the inadequate design of the inner liner, the lack of belt edge wedge, and lack of nylon cap plies, caused or contributed to the tread belt separation. The tire would not have failed if it had an adequate liner, a belt edge wedge, and nylon cap plies. Based upon Carlson’s experience in the industry and with Cooper, he testified that the defendant knew before it manufactured the subject tire that the placement of a wedge and nylon cap plies in the tire substantially reduced incidents of tread belt detachments. As to manufacturing defects, the tire failed at approximately 25% of its design life, indicating that it was a very weak tire. These specific defects contributed to the tire failure: an inner liner that was thinner than the specifications; the lack of adhesion evidenced by the pattern liner marks; poor adhesion of the rubber to the steel cord shown by loose cables; and significant cohesion and adhesion defects.

Cooper defended the plaintiffs claims of product defect in five ways, presenting expert testimony on each theory: (1) the tire was not defective and did not need a belt wedge or nylon overlay, because it was not a performance tire; (2) the tread separation was caused by damage to the tire as a result of a prior impact, as well as by chronic underinflation and overloading; (3) the Isuzu truck was defectively designed leaving it unstable, causing it to roll over after the tread separation due to ov-ersteering, and the tread separation alone would not have caused the vehicle to go out of control; (4) the plaintiffs injuries and death were caused by the driver’s negligent loss of control over the vehicle; and (5) the decedent’s death was caused by his failure to wear a seatbelt which would have prevented his ejection from the vehicle and his death.

After a two week trial, the jury returned its verdict with a special interrogatory finding that the defendant did not place the subject tire on the market with a defect which was the legal cause of the death of the decedent. On a motion for rehearing, counsel again argued that the discovery limitation was error. The court denied the motion, prompting this appeal.

On appeal, Alvarez argues that the trial court’s limitation of discovery to the “subject tire and substantially similar tires,” defined as “tires designed and manufactured according to Green Tire Specification 3011 and 3163,” was too narrow and deprived him of relevant discovery. We review orders regarding discovery under an abuse of discretion standard. See Philippon v. Shreffler, 33 So.3d 704, 708 (Fla. 4th DCA 2010) (quoting Gold, Vann & White, P.A. v. DeBerry, 639 So.2d 47, 56 (Fla. 4th DCA 1994)). A trial court is given wide discretion in dealing with discovery matters, and unless there is a clear abuse of that discretion, the appellate court will not disturb the trial court’s order. See Burroughs Corp. v. White Lumber Sales, Inc., 372 So.2d 122 (Fla. 4th DCA 1979). This deferential standard compels us to affirm in this case.

Florida Rule of Civil Procedure 1.280(b)(1), governing the “scope of discovery,” permits discovery of information “reasonably calculated to lead to the discovery of admissible evidence.” In products liability actions, when a plaintiff seeks discovery regarding other products manufactured by the defendant, Florida courts have uniformly held that the other products must be “substantially similar” to the subject product. See Nissan Motors Corp. v. Espinosa, 716 So.2d 279, 280 (Fla. 4th DCA 1998); Am. Med. Sys., Inc. v. Osborne, 651 So.2d 209, 210-11 (Fla. 2d DCA 1995); Caterpillar Indus., Inc. v. Keskes, 639 So.2d 1129, 1130 (Fla. 5th DCA 1994). The burden is on the plaintiff to demonstrate “substantial similarity.” See id.

Whether another product is “substantially similar” is a question for the trial court based upon all of the proofs presented. In this case, the trial judge reviewed the affidavits from the experts, saw a demonstration of the tire at the hearing, heard argument of counsel, and reviewed many of the documents. In fact, two trial judges reviewed documents and held multiple hearings on the issue, and each came to the same conclusion — that discovery was properly limited to tires with the subject GTS numbers. Based upon the record before us, we cannot find that the court abused its discretion.

The cases cited in support of its position by Alvarez are all distinguishable because of their procedural postures. In Cooper Tire & Rubber Co. v. Rodriguez, 2 So.3d 1027 (Fla. 3d DCA 2009), Cooper petitioned for a writ of certiorari to quash an order of the trial court granting limited production of documents over Cooper’s objection that only tires with the same GTS number were substantially similar. The court merely held that: “[W]e cannot say that the order is so broad that it compels the production of materials that cannot possibly lead to the discovery of admissible evidence.... [T]he ... order does not depart from the essential requirements of law.” Id. at 1031. Thus, the court upheld the trial court’s ruling on the discovery limitation under the highly deferential standard of review on a petition for certio-rari.

In Ex parte Cooper Tire & Rubber Co., 987 So.2d 1090 (Ala.2007), also cited by Alvarez for support, Cooper filed a petition for mandamus in the Alabama Supreme Court seeking to limit a trial court’s order requiring production of documents involving tires with GTS numbers different from the subject tire in litigation. Not only did the supreme court find that discovery matters are within the sound discretion of the trial court, but they also found that mandamus was a drastic remedy which would not issue in a discovery matter unless the right were clear and no reasonable basis for controversy existed about the right to such relief. Id. at 1101. Under Florida law, mandamus would not be an available remedy for a discovery dispute, nor could it be said that no controversy exists about the right to relief in this case.

Mann v. Cooper Tire Co., 33 A.D.3d 24, 816 N.Y.S.2d 45 (N.Y.App.Div.2006), also involves discovery of other GTS numbered tires but is procedurally distinguishable from this case. There, the trial court denied discovery, similar to how the trial court ruled in this case. Under New York law, “[wjhile discovery determinations rest within the sound discretion of the trial court, the Appellate Division is vested with a corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse.... ” Andon v. 302-301 Mott Street Assocs., 94 N.Y.2d 740, 745, 709 N.Y.S.2d 873, 731 N.E.2d 589, 592 (2000). Thus, the New York court determined de novo the limitations of discovery. Mann, 33 A.D.3d at 28-29, 816 N.Y.S.2d 45. Similarly, Petersen v. DaimlerChrysler Corp., 2007 WL 2391151 (D.Utah 2007), which allowed discovery similar to that sought by Alvarez, can be characterized as the decision of a general magistrate, the trier of fact, not subject to de novo review by an appellate court. Our standard of review is not de novo, but rather we will affirm the trial court unless the court abused its discretion.

Looking to other courts, we find that in similar discovery disputes most courts have limited production to the GTS numbers which correspond to the tire which was the subject of the suit. See, e.g., Murphy v. Cooper Tire & Rubber Co., 2008 WL 5273548 (N.D.Fla.2008); Hajek v. Kumho Tire Co., 2010 WL 503044 (D.Neb.2010); Keene-McPeters v. Cooper Tire & Rubber Co., 303 Fed.Appx. 743 (11th Cir.2008); Bradley v. Cooper Tire & Rubber Co., 2006 WL 3360926 (S.D.Miss.2006). These are but a few of the cases coming to the same conclusion as the trial court did in this case. Granted, there are other cases which have allowed similar discovery, but this only shows that the issue is dependent upon the facts of each case and the evidence presented to the trial court.

This court adheres to review of discovery orders under an abuse of discretion standard. Trial judges must be afforded leeway in making the relevance and bur-densomeness decisions required in discovery disputes. Otherwise, the cost and burden of civil litigation will imperil its very existence.

In light of the foregoing and the record in this case, we affirm.

MAY, C.J., POLEN, STEVENSON, GROSS, TAYLOR, HAZOURI, DAMOORGIAN, CIKLIN, GERBER, LEVINE and CONNER, JJ., concur.

      . A motion for rehearing en banc was pending when the author of the prior opinion retired from the court. The court has elected to continue with consideration of the opinion en banc, because the prior opinion conflicts with Nissan Motors Corp. v. Espinosa, 716 So.2d 279, 280 (Fla. 4th DCA 1998), and expresses an unprecedented analysis of discovery that limits the discretion of the trial court, which the court does not endorse.

      . In this designation, ‘'Trendsetter” is the brand name for the tire; "P" signifies that the tire is a passenger tire, rather than a light truck ("LT") tire; “R” signifies radial tire; 14 is the diameter in inches of the wheel on which the tire is designed to be mounted.

      . The dimensions, components and weight specifications for a particular tire model are stated in what is commonly referred to in the tire industry as a "Green Tire Specification” (GTS). "Green" refers to the uncured tire prior to the heating process that bonds the components together.

      . In closing argument, defense counsel argued that the jury could answer the question "no” for any of three reasons: 1) the tire was not defective; 2) the accident was caused by the defective vehicle, since expert testimony established that the tread separation would not cause the driver to lose control of the vehicle; or, 3) failure to wear a seatbelt caused the death of the decedent. Because of the way the case was argued to the jury, the jury could have arrived at the verdict it did, even if it found that the tire was defective, finding that the legal cause of death was the defective vehicle or the decedent's failure to wear a seatbelt. See Barth v. Khubani, 748 So.2d 260 (Fla.1999). Since the discovery issue affects only the issue of whether the tire was defective, the issue may not have been properly preserved, although the appellee does not make this argument directly.


source: Caselaw Access Project

author: POLEN, J.

license: Public Domain

text:
    J.C. PENNEY COMPANY, INC., Appellant, v. DILLARD’S, INC., Appellee.
    No. 4D10-1770.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 2011.

      Adam B. Leichtling and Edward A. Lici-tra of Lapin & Leichtling, LLP, Coral Gables, for appellant.
    Thomas W. Tierney of Rossway Moore Taylor & Swan, Vero Beach, and Robert A. Kutcher of Chopin Wagar Richard & Kutcher, LLP, Metairie, LA, for appellee.
   POLEN, J.

Appellant, J.C. Penney Company, Inc. (JCP), appeals the order of the trial court, granting final summary judgment to appel-lee, Dillard’s, with respect to JCP’s claims for damage to its store in Hattiesburg, Mississippi. We find that a genuine issue of material fact exists as to how JCP’s insurer applied its deductible and reverse the order granting summary judgment in favor of Dillard’s.

JCP sued Dillard’s for damage to its store at the Turtle Creek Mall in Hatties-burg, Mississippi, in 2005. The complaint alleged causes of action for trespass, nuisance and negligence after the roof over the Dillard’s store (which was adjacent to the JCP store) collapsed, severing a sprinkler main and causing uncontrolled water flow into the mall and the JCP store. The roof collapsed as a result from weather from Hurricane Katrina.

Dillard’s moved for partial summary judgment, arguing that pursuant to the Turtle Creek Mall Operating Agreement (OA), JCP’s recovery was limited to its insurance deductible. In section 5.8 of the OA, JCP and Dillard’s agreed to release each other from liability from any loss or damage to property covered by the party’s insurance policy. The release applies even if the casualty is caused by the fault or negligence of a party or anyone for whom a party may be responsible. In the release, JCP and Dillard’s expressly reserved the right to bring an action for any “deductible” amount contained in their insurance policies.

The lower court granted partial summary judgment in favor of Dillard’s, finding that in accordance with section 5.8 of the OA, JCP’s damages were limited to the deductible amount contained in its insurance policy. Dillard’s then filed a second motion for partial summary judgment, arguing that JCP could not recover any damages, even if it prevailed on any of its three tort claims against Dillard’s, because JCP had already recovered from its insurer the entire damage amount claimed without any deductible being applied. In support, Dillard’s cited to JCP’s answers to interrogatories, wherein JCP stated that its damages at Turtle Creek Mall were $1,175,998.72, and correspondence from JCP stating that its settlement with its insurer for the Turtle Creek Mall damage was in the identical amount of $1,175,998.72. Based on these facts, Dillard’s argued that JCP had been made whole, and there were no amounts which were not recovered from JCP’s insurer which would be recoverable under the OA. In opposition, JCP argued that the notion that it had been made whole for its Turtle Creek Mall losses was illusory because JCP’s insurer treated Hurricane Katrina-related losses at several covered JCP stores as one “occurrence” for coverage purposes and then unilaterally decided not to prorate the deductible and apply it to each of the stores which experienced covered losses. Instead, the insurer elected to apply the policy’s entire $2.5 million-per-event deductible to one JCP store (the Biloxi, Mississippi store) which suffered damages in excess of that amount. On these facts, JCP argued that it had not been made whole for its losses in Hatties-burg. The lower court agreed with Dillard’s and found that JCP was without damages for which it could recover from Dillard’s under the OA. This appeal followed.

The standard of review of an order granting summary judgment is de novo. Shreffler v. Philippon, 878 So.2d 1280, 1281 (Fla. 4th DCA 2004). “A trial court may enter summary judgment only when there are no genuine issues of material fact conclusively shown from the record and the movant is entitled to judgment as a matter of law.” Reeves v. N. Broward Hosp. Dist., 821 So.2d 319, 821 (Fla. 4th DCA 2002). “All doubts and inferences must be resolved against the moving party, and if there is the slightest doubt or conflict in the evidence, then summary judgment is not available.” Id.

JCP first argues that the trial court erred in ruling that JCP’s damages are limited to the amount of its deductible pursuant to the OA because under Mississippi law, Dillard’s cannot contractually exculpate itself against breaches of duties imposed by the common law and for torts involving gross negligence. We disagree. In The Kroger Co. v. Chimneyville Proper ties, Ltd., 784 F.Supp. 331 (S.D.Miss.1991), the court upheld an indemnity provision in a commercial lease, covering certain land and property located in a shopping center, because the lease invoked strictly private concerns; did not affect the public interest; provided for the mandatory purchase of insurance as a method of risk allocation; and specifically allocated responsibility between the contracting parties for injuries' sustained by members of the public on the premises. Id. at 349-50. The court found most significant the fact that the lease was a commercial contract, negotiated by sophisticated businessmen, and was not marked by overreaching or unequal bargaining power. Id. Thus, the court held that enforcing the clause would not contravene public policy. Id.

In the case at bar, the parties were sophisticated national retailers, occupying equal bargaining positions, in negotiations for a commercial operating agreement. Pursuant to Kroger, the exculpatory clause is valid and does not contravene public policy. We also disagree with JCP that Dillard’s conduct rose to the level of gross negligence based on Dillard’s own internal memorandum to store managers at the Vero Beach store, issued before the collapse of the roof at that store. We hold that the fact that a different Dillard’s roof in a different store sustained damage in a prior hurricane, and internal memoranda acknowledging the potential for damage due to hurricanes and the need to perform maintenance prior to such storms, is not evidence of gross negligence with respect to the Hattiesburg store.

JCP next argues that the lower court erred in finding that JCP’s insurance recovery for its losses at the Turtle Creek Mall were not subject to a deductible because the insurer, for its own purposes, made a unilateral decision to allocate the entire deductible to a store other than the one at Hattiesburg, rather than apportioning it among the three stores to which the deductible applied. As such, JCP argues that its insurer’s payment to JCP for its losses at Hattiesburg created only a superficial appearance of full compensation. We agree with JCP and hold that a genuine issue of material fact exists as to how the deductible was apportioned and whether the application of the deductible was beyond JCP’s control. We therefore reverse the order of the trial court, granting summary judgment in favor of Dillard’s.

Reversed and Remanded.

GROSS and CONNER, JJ., concur.

      . The complaint also sought damages sustained by JCP in connection with its Vero Beach, Florida store, which sustained damages in 2004 in conjunction with Hurricane Frances. The complaint alleged that the Vero Beach damages also arose from the collapse of Dillard’s roof above a sprinkler main. However, this appeal deals solely with JCP's claims for damages to its Hattiesburg, Mississippi store.


author: GERBER, J.

text:
    NORTH POINTE CASUALTY INSURANCE COMPANY, Appellant, v. ARDEN INSURANCE ASSOCIATES, INC., Kenneth A. Norberg, Double A Industries, Inc., Zeiger Crane Rentals, Inc., P.F. Construction Inc., and Carl Jarrell, Appellees.
    No. 4D10-4466.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 2011.

      Jeffrey Michael Cohen of Carlton Fields, P.A., Miami, and Sylvia H. Walbolt and Christine Davis Graves of Carlton Fields, P.A., Tampa, for appellant.
    Neil Rose of Bernstien, Chackman, Liss, & Rose, Hollywood, for appellees Arden Insurance Associates, Inc. and Kenneth A. Norberg.
   GERBER, J.

The insurer appeals from the circuit court’s final judgment in favor of the ap-pellee insurance agents Arden Insurance Associates, Inc. and Kenneth A. Norberg (the “agents”). The court based its final judgment upon its order granting the agents’ motion for summary judgment. Applying de novo review, we affirm. See McCabe v. Fla. Power & Light Co., 68 So.3d 995, 997 (Fla. 4th DCA 2011) (“Orders granting summary judgment are reviewed de novo.”).

Based on our review of the record, the agents showed without genuine issue of material fact that the insurer failed to give the named insured, appellee P.F. Construction, Inc. (the “subcontractor”), written notice of the insurer’s nonrenewal of its 2004-05 policy which provided coverage for the subcontractor’s additional insured, appellee Double A Industries, Inc. (the “contractor”). See § 627.4133(l)(a), Fla. Stat. (2005) (“An insurer issuing a policy providing coverage for ... casualty ... insurance ... shall give the named insured at least 45 days’ advance written notice of nonrenewal....”); U.S. Fire Ins. Co. v. S. Sec. Life Ins. Co., 710 So.2d 130, 132 (Fla. 5th DCA 1998) (“A ‘nonrenewal’ is a policy with material changes in terms and conditions from the prior policy.”) (citation omitted).

Because the insurer failed to give such written notice to the subcontractor, and because the subcontractor did not obtain replacement coverage before the underlying incident, the terms of the 2004-05 policy remained in effect at the time of the underlying incident. See § 627.4133(l)(c), Fla. Stat. (2005) (“If an insurer fails to provide the 45-day ... written notice required under this section, the coverage provided to the named insured shall remain in effect until 45 days after the notice is given or until the effective date of replacement coverage obtained by the named insured, whichever occurs first.”). Because the terms of the 2004-05 policy remained in effect at the time of the underlying incident, the contractor remained covered as an additional insured under the 2004-05 policy for the underlying incident. See Marchesano v. Nationwide Prop. & Cas. Ins. Co., 506 So.2d 410, 413 (Fla.1987) (“Absent a notice to the contrary, the insured is entitled to assume that the terms of the renewed policy are the same as those of the original contract.”).

The insurer argues that, at the time of the renewal from the 2004-05 policy to the 2005-06 policy, it sent a document notifying the subcontractor that it was deleting coverage for the contractor as an additional insured. We have reviewed that document, and its plain language does not convey any such notice. On the contrary, the document suggests that the insurer was offering coverage for more “additional insureds.” Specifically, the document states that the 2005-06 policy would “include several enhancements” and would “include the following additional coverage in addition to the specific coverages you have previously purchased.” (emphasis added). One of the “additional coverages” was for “Automatic Additional Insureds,” defined as any entity which the subcontractor was “required in a written contract to name as an insured” under certain specified circumstances. Nowhere did the document suggest that, in exchange for offering coverage for “Automatic Additional Insureds,” the insurer would be deleting coverage for preexisting additional insureds, like the contractor here, whose written contracts did not require the subcontractor to name them as additional insureds.

The foregoing discussion is sufficient by itself to affirm the circuit court’s final judgment. Therefore, it is unnecessaiy for us to discuss the other arguments which the parties raised in their briefs.

Affirmed.

TAYLOR and LEVINE, JJ., concur.


author: JACOBUS, J.

text:
    Kenneth Bernard SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3918.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 2011.

      James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   JACOBUS, J.

Kenneth Smith timely appeals the judgment and sentence entered after he pleaded nolo contendere to multiple crimes involving possession of cocaine and cannabis. He entered a plea to the charges following the court’s denial of his motion to suppress evidence that was discovered on his person after the arrest. Smith contends that because his arrest was unlawful, the drugs found during the subsequent search should have been suppressed. We agree and reverse the judgment and sentence entered below.

On the day of his arrest, Smith was standing with a large group of people outside a community store watching an Orlando Magic game that was projected on the wall of the store. A police deputy approached the area and saw Smith drinking out of a metallic can with the name “Budweiser” on it. When the deputy arrived, the can was in a brown paper bag, but Smith discarded the bag. The deputy stated that he could clearly see there was a Budweiser can in the bag. Based on that information, the deputy arrested Smith for possession of an open container. During the search incident to arrest, the deputy found crack cocaine and marijuana in Smith’s possession. Smith moved to suppress all evidence, claiming the search and seizure were illegal. The court denied that motion.

It is undisputed that Smith was standing on a grassy area adjacent to the store and he was not in a parking lot connected with the store. There was a dispute in the evidence as to who actually owned the lot, though. At the suppression hearing, the deputy testified that he was unsure who owned the lot. Smith, however, testified that the lot was owned by the store and anybody was able to watch the game. The court found that the area was private property that was open to the public.

On appeal, the State argues that Smith was properly arrested pursuant to Article II, Section 4-29 of the Orange County Code. The relevant portions of 4-29 provide:

(a) It is unlawful for any vendor or for any agent, servant or employee of any such vendor, to permit the consumption of any alcoholic beverages in or upon any parking or other area outside of the building or room mentioned in the vendor’s license certificate as the address thereof, when any part of such parking or area is adjacent to the building or premises in which the business license is operated, and when such parking or other area is owned, rented, leased, regulated, controlled or provided, directly or indirectly, by such licensed vendor or by any agent, servant or employee of such licensed vendor.
(c) It is unlawful for any person to consume an alcoholic beverage in or upon any parking area outside of and adjacent to a vendor’s licensed premises when such parking or other area is owned, rented, leased, regulated, controlled or provided, directly or indirectly, by such vendor.

The rules of construction used to interpret state statutes are also used to interpret local ordinances. Powell v. City of Delray Beach, 711 So.2d 1307, 1309 (Fla. 4th DCA 1998). An ordinance should be given its plain and obvious meaning and it should be construed to give reasonable effect to its provisions. Id. Additionally, “the courts may not insert words or phrases in ordinances to express intentions which do not appear.” Id. If the language of the statute or ordinance is plain and unambiguous, judicial interpretation is unnecessary. See T.R. v. State, 677 So.2d 270, 271 (Fla.1996) (explaining that judicial interpretation is unnecessary where statutory language is plain and unambiguous). When a penal statute is ambiguous, however, the construction should be strict and in favor of the accused. Lennear v. State, 784 So.2d 1181, 1182 (Fla. 5th DCA 2001) (considering violation of open container ordinance). Language is ambiguous when reasonable people can offer different, but reasonable, interpretations. McGhee v. State, 847 So.2d 498, 503 (Fla. 4th DCA 2003).

Based on the language of section 4-29 and the court’s findings, Smith could only be arrested pursuant to subsection (c) because the other subsections of section 4-29 set forth unlawful behaviors that relate to vendors. Section 4-29(c) makes it unlawful for a person to consume an alcoholic beverage “in or upon any parking area outside of and adjacent to a vendor’s licensed premises when such parking or other area is owned ... by such vendor.” When the entire sentence is read together, it is confusing. Subsection (a) discusses vendor conduct that is prohibited on “parking or other area[s].” Likewise, the second part of section 4-29(c) refers to a “parking or other area.” The first part of subsection (c), on the other hand, refers to “any parking area outside of or adjacent to” the licensed premises. This statement suggests that it is only unlawful for a person to drink an alcoholic beverage in an area where cars are (or could be) parked. However, the second portion of the sentence suggests that it is unlawful for someone to drink alcohol in such a place when the “parking or other area is owned” by the vendor. Both of these interpretations are reasonable under the circumstances. Thus, the language is ambiguous and must be strictly construed in Smith’s favor. See Lennear, 784 So.2d at 1182.

When strictly construed, section 4-29(c) prohibits a person from consuming an alcoholic beverage “in or upon any parking area outside of and adjacent to a vendor’s licensed premises.” At the suppression hearing, there was testimony that the lot on which Smith was standing was grassy; it was next to the convenience store that was showing the Magic game; there was no fence around it; and it was open to the public, even though the convenience store owner owned it. There was no testimony or evidence that the grass lot was used as a parking area. Because nothing at the hearing established that Smith had an open container “in or upon any parking area,” he could not lawfully be arrested pursuant to section 4-29(c) as the State claimed. Furthermore, because the arrest was invalid, any subsequent search of Smith was also invalid. See Lennear, 784 So.2d at 1182 (explaining that if defendant was improperly detained for violation of open container ordinance the evidence seized pursuant to detention should be suppressed); see also Ward v. State, 584 So.2d 186, 187 (Fla. 5th DCA 1991) (affirming denial of motion to suppress cocaine found during search incident to arrest for open container ordinance violation because arrest was valid); Thomas v. State, 583 So.2d 386, 339 (Fla. 5th DCA 1991) (finding arrest of defendant for violation of Orlando ordinance lawful and, therefore, search of defendant incident to arrest also lawful).

The judgment and sentence of the lower court are REVERSED.

SAWAYA and MONACO, JJ., concur.

      . We reject the State’s claims that we lack jurisdiction to consider this matter. The record clearly shows Smith’s attorney reserved his right to appeal the denial of the motion to suppress at the plea hearing, and the lower court found that issue to be dispositive. Thus, we have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(b)(2)(A)(i). In addition, the State’s claim that this court is unable to review the denial of a motion to suppress without a written suppression order is without merit. See Cardoza v. State, 927 So.2d 1028 (Fla. 2d DCA 2006).

      . We must accept the lower court's finding in this regard because it is supported by the record. See Curtis v. State, 748 So.2d 370, 371 (Fla. 4th DCA 2000).


author: EVANDER, J.

text:
    STATE of Florida, Appellant, v. Lucson CARRY, Appellee.
    No. 5D10-3838.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellant.
    Catherine A. Medling, of The Law Office of Scott & Medling, Orlando, for Appellee.
   EVANDER, J.

The State appeals from an order dismissing, pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), an information charging Lucson Carry with possession of more than twenty grams of cannabis. Our standard of review is de novo. State v. Lebron, 954 So.2d 52, 54 (Fla. 5th DCA 2007). Because the State presented sufficient evidence to establish a prima facie case, we reverse.

The facts, taken in the light most favorable to the State, establish the following sequence of events. On July 2, 2010, Deputies Kleinfelt and Pellegrino observed a vehicle traveling in an area known for narcotics and criminal activity. Carry was driving the automobile, but was not the registered owner. Neither Carry nor the front seat passenger was wearing a seat-belt. As a result, the deputies stopped the vehicle. When the car’s windows were rolled down, Deputy Kleinfelt detected an extremely strong odor of fresh marijuana coming from inside the vehicle. Carry was advised of the reason for the stop and, upon request, produced his driver’s license. He also provided Deputy Kleinfelt with his concealed weapons permit after advising the deputy that he was in possession of a firearm.

Deputy Kleinfelt then ordered the four male occupants to exit the vehicle. During the ensuing search of the interior of the automobile, two firearms were discovered (one in the passenger compartment and one in the center console between the driver and passenger seat). Deputy Kleinfelt then began to search the occupants of the vehicle for firearms and contraband, at which time one former occupant of the rear seat unsuccessfully attempted to flee. The search of the occupants revealed that one of the passengers was in possession of approximately $2000 in cash; however, no illegal drugs or weapons were discovered on them.

Because the smell of cannabis appeared to be stronger toward the rear of the vehicle, Deputy Kleinfelt then used a key from the keychain in the ignition to open the trunk. There, he discovered an open garbage bag containing approximately three pounds of cannabis. None of the automobile’s occupants made a statement regarding ownership or knowledge of the cannabis.

On July 29, 2010, Carry was charged by information with possession of more than twenty grams of cannabis. Subsequently, Carry filed his motion to dismiss, alleging that based on the undisputed facts, the State could not establish constructive possession. The trial court granted the motion after concluding that the odor of marijuana was insufficient to establish that Carry had knowledge of the presence of cannabis in the trunk.

Rule 3.190(c)(4) allows a defendant to seek dismissal of a criminal charge where there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant. Thus, the burden is on the defendant to show that the undisputed facts either (1) fail to establish a prima facie case, or (2) establish a valid defense. State v. Reese, 774 So.2d 948, 949 (Fla. 5th DCA 2001). In considering such a motion, the state is entitled to the most favorable construction of the evidence and all inferences arising therefrom. Lebron, 954 So.2d at 54; see also State v. Gay, 960 So.2d 864, 867 (Fla. 2d DCA 2007); State v. Bonebright, 742 So.2d 290, 291 (Fla. 1st DCA 1998).

Significantly, the state is not obligated, as it would be to defeat a motion for judgment of acquittal, to produce evidence sufficient to sustain a conviction. See Gay, 960 So.2d at 867; Lebron, 954 So.2d at 56; State v. Paleveda, 745 So.2d 1026, 1027 (Fla. 2d DCA 1999); Bonebright, 742 So.2d at 291. To sustain a conviction, the state must present competent substantial evidence such that, when the evidence is viewed in the light most favorable to the state, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt. Delgado v. State, 71 So.3d 54, 65-66 (Fla.2011); see also Pagan v. State, 830 So.2d 792, 803 (Fla.2002). By contrast, in the instant case, the State was only required to produce sufficient evidence to show a prima facie case in order to defeat Carry’s motion to dismiss.

Because there was no evidence that Carry was in actual possession of cannabis, the State was proceeding on a constructive possession theory. In order to establish constructive possession, the State must prove that Carry had dominion and control over the cannabis and that he had knowledge of its presence. State v. Odom, 56 So.3d 46, 50 (Fla. 5th DCA 2011); see also Gay, 960 So.2d at 868.

Based on the fact that Carry was the driver of the vehicle, was the owner of the firearms located in the car, and had possession of the key to the trunk, the State was entitled to the inference that Carry had dominion and control over the contraband. Gay, 960 So.2d at 868. With regard to the knowledge element, it has been found that because knowledge in a possession case is a question of fact, that element is generally not a proper consideration on a motion to dismiss. See Gay, 960 So.2d at 868; Paleveda, 745 So.2d at 1028. Furthermore, given Deputy Kleinfelt’s testimony that he had detected an extremely strong odor of cannabis emanating from the vehicle (particularly toward the rear of the vehicle), the State was entitled to the inference that Carry had knowledge of the marijuana’s presence.

The undisputed evidence in this case was sufficient to establish a prima facie case of possession of more than twenty grams of cannabis against Carry. Accordingly, the trial court should have denied the motion to dismiss.

REVERSED and REMANDED.

ORFINGER, C.J. and MONACO, J., concur.


author: PER CURIAM.

text:
    Freddie SIPLEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-673.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 2011.

      James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Freddie Siplen [“Siplen”] challenges the trial court’s denial of his motion for postconviction relief. On appeal, Si-plen contends that his counsel provided ineffective assistance of counsel during the plea negotiations. He also complains that he was adjudicated guilty in his three separate cases to an “on-site violation of probation felony” for which he was never charged. We find no merit to the claim of ineffective assistance of counsel during plea negotiations. He is entitled to correction of the judgment to remove the “on-site violation of probation felony.”

Siplen was originally convicted and sentenced on three driving while license suspended or revoked offenses (habitual offender). In one of the cases, he was also charged with an additional offense of possession of cocaine. A violation of probation affidavit was filed for each of the cases alleging that Siplen violated his probation by committing an attempted robbery and by associating with a person engaged in criminal activity.

A violation of probation hearing was conducted after Siplen turned down a plea offer of twenty-four months. Siplen was found to have violated his probation in all three cases. The judgments contained the original charge of driving while license suspended as well as an additional count numbered either 3 or 4, entitled “On Site Violation of Probation Felony,” and identified as a third degree felony under section 948.06(1), Florida Statutes. Consecutive five-year sentences were imposed in the three violation of probation cases. No sentence was imposed for the “onsite violation of probation felony.” On appeal, Si-plen correctly complains that there is no such offense under Florida law. Section 948.06(1) deals with the power of law enforcement to arrest a probationer without a warrant if there are reasonable grounds to believe that a probationer has violated probation. Why this appears in the judgment is a mystery. We remand for entry of a corrected judgment.

AFFIRMED; REMANDED for correction of judgment.

GRIFFIN, MONACO and COHEN, JJ„ concur.


text:
    Tracie RUCKER, Appellant, v. JUST BRAKES and The Hartford, Appellees.
    No. 1D11-1126.
    District Court of Appeal of Florida, First District.
    Dec. 2, 2011.
    Laurie T. Miles of Smith, Feddeler, Smith & Miles, P.A., Lakeland, Susan W. Fox of Fox & Loquasto, P.A., Orlando, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    Chris W. Hoeg of the Law Offices of John Pine, Lake Mary, and William Rog-ner, Winter Park, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant challenges an order of the Judge of Compensation Claims (JCC) denying penalties and interest on the awarded temporary partial disability benefits. We reverse, finding the JCC erred in considering a defense not raised by the Employer/Carrier and failing to award penalties and interest after determining Claimant was entitled to temporary partial disability benefits.

Claimant filed a petition for benefits on July 15, 2010, claiming entitlement to temporary partial disability benefits from April 28, 2010, and continuing. The E/C denied entitlement on grounds Claimant was at or near maximum medical improvement and Claimant could not demonstrate a nexus between her reduced earnings and the physical restrictions resulting from her injuries. At no time did the E/C assert that Claimant was not entitled to the claimed benefits because she failed to return to the Carrier the employee earnings reports, also called DWC-19s.

Following the final hearing, the JCC found Claimant entitled to most of the claimed temporary partial disability benefits. The JCC further found Claimant had not filed the DWC-19 forms sent to her attorney, although the E/C never raised this as a defense. The JCC predicated the E/C’s obligation to pay the disputed benefits on Claimant’s filing of the forms and denied the requested penalties and interest because the benefits were not due and owing until the forms were filed.

The JCC violated Claimant’s due process rights by sua sponte considering a defense not raised by the E/C and denying the claim for payment of penalties and interest on that basis, thereby depriving Claimant of the opportunity to present evidence regarding her entitlement to the awards. See School Dist. of Hillsborough County v. Dickson, 67 So.3d 1080, 1083 (Fla. 1st DCA 2011) (holding “JCC denied E/C due process when she sua sponte raised the application of section 440.20(4) without affording the E/C the opportunity to present evidence regarding the section’s application”). Because the JCC found Claimant entitled to an award of temporary partial disability benefits, the JCC erred in denying penalties and interest. See Republic Waste Servs. Inc. v. Ricardo, 68 So.3d 934, 936 (Fla. 1st DCA 2011) (holding penalties and interest were due because “claimant established that he was entitled to temporary, partial disability benefits, and proved that he was not paid these benefits within seven days of the date they became due, [thus,] he made out a prima facie case for penalties and interest. See § 440.20(6)(a), Fla. Stat. (2009)”).

Accordingly, we REVERSE and REMAND this matter to the JCC for entry of an order striking all references to Claimant’s failure to file the DWC-19s and directing payment to Claimant of penalties and interest on the awarded temporary partial disability benefits.

PADOVANO, HAWKES, and SWANSON, JJ., concur.


text:
    J.S., Mother of G.R.Z. a Minor Child, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D11-4031.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2011.
    Office of Criminal Conflict and Civil Regional Counsel, Crystal McBee Frusciante of Crystal McBee Law Firm, P.A., Jupiter, for Appellant.

      Ward L. Metzger, Appellate Counsel, for Appellee Department of Children and Families, Jacksonville.
    Kelley Schaeffer, Appellate Counsel, for Guardian ad Litem Program, Tavares, and Travis R. Johnson of Meador & Vigodsky, P.A., Pensacola, for Father G.Z.
   PER CURIAM.

In this child dependency case, Appellant, the Mother, seeks review of a non-final order denying her motion for reunification and placing the child in the custody of his father, as well as a partial final order terminating protective services supervision based on the child’s placement. We reverse and remand for further proceedings because, as the Department of Children and Families and the Guardian Ad Litem properly concede, the trial court erred in terminating protective services at a status hearing for which the Mother was not given notice that termination of services would be considered. See T.S. v. Guardian Ad Litem, 49 So.3d 341 (Fla. 4th DCA 2010).

In light of this disposition, we decline to address the merits of the order denying the Mother’s motion for reunification and placing the child with his father at this time. The Mother did not timely seek review of this order, and although we could have reviewed the order as part of our review of the termination order, we conclude that the better course in light of our reversal of the termination order is to defer review of the reunification order until the trial court enters an order fully disposing of the custody and visitations issues.

REVERSED and REMANDED for further proceedings.

WOLF, CLARK, and WETHERELL, JJ., concur.

      . The order denying the Mother’s motion for reunification was reviewable by certiorari because, although the order finally resolved the issue of custody, it reserved jurisdiction to determine the interrelated issue of visitation. See S.P. v. Dep't of Children & Families, 17 So.3d 878, 879 (Fla. 1st DCA 2009) (treating appeal of non-final, post-dependency order denying father’s motion for reunification as a petition for certiorari); T.H. v. Dep’t of Children & Families, 736 So.2d 126, 128 (Fla. 1st DCA 1999) (Webster, J., dissenting). By contrast, orders on post-dependency motions that fully resolve the issues raised in the motion are generally reviewable under Florida Rule of Appellate Procedure 9.130(a)(4). See D.T. v. Dep’t of Children & Families, 54 So.3d 632 (Fla. 1st DCA 2011) (affirming order denying motion for reunification); R.M. v. Dep’t of Children & Families, 19 So.3d 1029 (Fla. 5th DCA 2009) (finding jurisdiction to review post-disposition dependency order pursuant to rule 9.130(a)(4), and rejecting the argument that there is never any review by appeal of non-final orders in dependency cases); A.B. v. Dep’t of Children & Families, 834 So.2d 350 (Fla. 4th DCA 2003) (reviewing, pursuant to rule 9.130(a)(4), dependency order directing no contact between the mother and dependent child). But see In re M.V.-B, 19 So.3d 381, 385 (Fla. 2d DCA 2009) (noting that dependency proceedings conclude by an order terminating supervision or jurisdiction, and holding that "orders entered in dependency proceedings after the entry of the order adjudicating dependency and before an order terminating supervision or jurisdiction are not appealable pursuant to 9.130(a)(4)” but such orders may be challenged by common law certiorari when appropriate). In either event, review must be sought within 30 days after rendition of the order. See Fla. R.App. P. 9.100(c), 9.130(b).

      . See Fla. R.App. P. 9.110(h); Duncan v. Pullum, 198 So.2d 658, 661 (Fla. 2d DCA 1967) (explaining that an interlocutory order is reviewable in an appeal of a partial final order if the interlocutory order was a necessary step towards or an aspect of the partial final order).


author: ALTENBERND, Judge.

text:
    STATE of Florida, Appellant, v. Evens MORIVAL, Appellee.
    No. 2D10-4383.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellant.
    Dina Busciglio Sheridan of Busciglio & Sheridan Law Group, Tampa, for Appellee.
   ALTENBERND, Judge.

The State appeals an order dismissing the information against Evens Morival that charged him with two counts of felony animal cruelty. Mr. Morival owned two dogs that were discovered in his apartment in a severely undernourished and emaciated condition. The State maintains that Mr. Morival intentionally starved the dogs, causing them excessive or unnecessary pain and suffering. Because Mr. Mo-rival failed to satisfy the rather heavy burden on him at the motion to dismiss stage, i.e., that there are no material disputed facts and that the undisputed facts do not establish a prima facie case of guilt against him, we reverse. See Fla. R.Crim. P. 3.190(c)(4).

Police arrested Mr. Morival in November 2009 for two counts of animal cruelty. The resulting information merely alleged that Mr. Morival intentionally committed an act, as to each dog, that resulted in excessive or repeated infliction of unnecessary pain or suffering by failing to provide adequate food, water, or medical treatment in violation of section 828.12(2), Florida Statutes (2009).

Mr. Morival filed a motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4). The motion relied on the facts in the Hillsborough County Animal Services (“HCAS”) report, which explained that HCAS workers found the two dogs caged inside Mr. Morival’s apartment, severely undernourished and without food or water. When contacted at work about the condition of his dogs, Mr. Morival explained that he and his roommates were having financial problems. A veterinarian examined the dogs and reported that the male dog was “bright, alert and responsive and was very energetic despite severe muscle wasting and severely inadequate nutrition” and that the female dog “look[ed] to be in fairly good condition despite her lack of nutrition.”

The State filed a traverse that explained that in their deposition testimony, Mr. Mo-rival’s roommates admitted that on the day HCAS workers confiscated the dogs, there was a large bag of dog food in the living room of Mr. Morival’s apartment. The State also attached photographs of the two dogs taken at the time of the arrest, which depict animals that could fairly be described as “skin and bones.” Anyone viewing these photographs could ascertain that these dogs had been underfed for a significant period of time or that they had some serious medical condition that caused them to be extremely emaciated.

Mr. Morival’s motion to dismiss was based on the theory that failure to feed a dog can constitute no more than a misdemeanor. The trial court agreed with his theory and dismissed the information. We review such an order de novo. See Bell v. State, 835 So.2d 392, 394 (Fla. 2d DCA 2003).

Mr. Morival is correct that section 828.12(1) makes it a misdemeanor to unnecessarily deprive a dog of necessary sustenance. Section 828.12(2) makes it a felony to “intentionally [commit] an act to any animal which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering.” The question is whether all undernourishment cases fall within the misdemeanor or whether the State can properly charge the felony in severe cases of undernourishment.

There does not appear to be any case law directly resolving this issue. In Hynes v. State, 1 So.3d 328 (Fla. 5th DCA 2009), Judge Griffin wrote a special concurrence in a case that affirmed the lower court without a written opinion. She explained:

Despite the trial court’s expressed difficulty with the construction of this statute, the statutory scheme is clear. If a person does the acts described in subsection one, he has committed a misdemeanor. If, however, the person intentionally commits an act which results in a cruel death or in excessive or repeated pain or suffering, a felony is committed. In other words, it is a misdemeanor to fail to feed a dog under the described circumstances; it is a felony to starve a dog to death, or deprive it of sustenance to the point where, like Pepsi, it has no muscle mass and is too weak even to stand.

Id. at 830-31.

We are convinced that undernourishment in some factual settings could result in a finding of “cruel death” by a jury. It is admittedly a closer question whether undernourishment could constitute the act of “excessive or repeated infliction of unnecessary pain or suffering” as an offense more severe than “depriv[ing an animal] of necessary sustenance” when the animal survives the abuse. Compare § 828.12(2) with § 828.12(1).

We conclude that the legislature properly distinguished between cases in which an owner fails, for example, to provide food for a dog for a few days while the owner goes on vacation — which is surely no more than depriving the dog of necessary sustenance — and cases in which an owner does not feed a dog or feeds a dog so little that it suffers malnutrition over an extended period such that the animal loses a high percentage of its normal body weight. There may be alternative theories of this case by which the jury could find that the condition of these dogs was not the result of repeated, long-term failure to feed, but the photographs in the record do not permit this issue to be resolved by a motion to dismiss.

Reversed and remanded.

NORTHCUTT and KELLY, JJ., Concur.

      . Section 828.12(1) provides that
      [a] person who unnecessarily overloads, overdrives, torments, deprives of necessary sustenance or shelter, or unnecessarily mutilates, or kills any animal, or causes the same to be done, or carries in or upon any vehicle, or otherwise, any animal in a cruel or inhumane manner, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or by a fine of not more than $5,000, or both.


author: WHATLEY, Judge.

text:
    FEDERAL INSURANCE COMPANY, Indiana corporation, Appellant, v. DONOVAN INDUSTRIES, INC., a Florida corporation, Appellee.
    No. 2D10-5767.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 2011.

      Raquel Fernandez of Cozen O’Connor, Miami, and William P. Shelley and Andrea Cortland, of Cozen O’Connor, Pro Hac Vice, Philadelphia, Pennsylvania, for Appellant.
    Robert J. Winicki and Debbie K. Winicki of Winicki Law Firm, P.A., Jacksonville, for Appellee.
   WHATLEY, Judge.

Federal Insurance Company appeals a declaratory judgment determining that coverage exists for a claim filed by Michael Schneck against its insured, Donovan Industries, Inc., for injuries he sustained while using an exercise ball sold by Donovan. We reverse because the trial court’s findings of undisputed fact support reformation of the parties’ commercial liability insurance policy based on mutual mistake to reflect that exercise balls were excluded from coverage.

Donovan filed suit against Federal after Federal denied coverage of the Schneck claim based on an exclusion endorsement listing all exercise balls. Donovan’s complaint and Federal’s counterclaim included counts for declaratory relief, and both parties filed motions for summary judgment on the declaratory relief claims. Federal’s counterclaim included an alternative claim for reformation of the parties’ insurance policy. After hearing the parties’ summary judgment motions, the trial court entered an order granting Donovan’s motion, denying Federal’s, and entering a judgment declaring that the Schneck claim was covered by the insurance policy.

The trial court found that the following facts were undisputed. Donovan appointed Baldwin Connelly, an insurance agency, as its exclusive agent to negotiate on Donovan’s behalf to procure commercial liability insurance. Federal was the second insurance company that David Carothers of Baldwin Connelly contacted on behalf of Donovan. Federal’s underwriter, Helen Cauthorn, asked Carothers for more information in light of the fact that there were two lawsuits pending against Donovan concerning the exercise balls. A few days later, Carothers advised Federal that he had talked to Donovan and was told that the balls had been removed from the market and quarantined, but if Federal was concerned with exposure, Donovan “was fíne with” excluding those products from coverage. On June 5, 2007, Cauthorn sent Carothers a proposal for commercial liability coverage that contained an exclusion endorsement for all exercise balls. Three days later, Carothers asked Cauthorn to bind coverage. At that point, Carothers believed that Donovan had a binding contract with Federal on the terms set forth in the June 5, 2007, proposal.

The policy was issued on June 20, 2007. Although it contained the exclusion endorsement, the schedule of products to be excluded was, according to the trial court’s findings, “inadvertently left blank.” Caut-horn discovered the error, and on October 9, 2007, Federal issued a corrected exclusion endorsement. It mailed two copies of the corrected policy to Baldwin Connelly on October 12, 2007. Baldwin Connelly placed the policy in their files. Carothers did not review it at that time, and Donovan did not know about the corrected endorsement until after the Schneck claim was filed against it in July 2009. In June 2008, Carothers directed Federal to bind coverage pursuant to a renewal proposal that contained an exclusion endorsement for exercise balls. The renewal policy was issued in July 2008, and it listed exercise balls on the schedule of items excluded from coverage.

The trial court found that the “terms of the corrected exclusion endorsement issued on October 9, 2007, are consistent with the terms of the coverage that Baldwin Connelly originally bound on June 8, 2007, and the corrected Exclusion Endorsement did not change the parties’ agreement with respect to the exclusion endorsement in any way.” The court also found that the renewal policy issued on July 2, 2008, contained the exercise ball exclusion. Nevertheless, the court concluded that the Schneck claim was covered because the original policy delivered to Donovan did not contain the exclusion, Donovan relied on the language of that policy, and, regardless of any mistake, Federal’s failure to notify both Baldwin Connelly and Donovan of the clerical error in the policy beyond merely mailing the policy to Baldwin Connelly was inexcusable conduct not entitling Federal to the equitable remedy of reformation.

The trial court’s focus on how Federal notified Donovan of the clerical error was misplaced because the manner of notification did not change the court’s own undisputed finding of fact that the corrected exclusion endorsement did not alter the parties’ agreement to exclude exercise balls from coverage under the policy. Notably, Donovan has never disputed that it agreed to the exclusion, and the trial court made no finding of harm to Donovan when it found that Donovan relied on the policy that did not contain the exclusion. We daresay any reliance would have been unwarranted given the communication between Donovan’s agent and Federal regarding Federal’s unwillingness to cover the exercise balls and Donovan’s agreement to exclude the balls from coverage. See Auto-Owners Ins. Co. v. Yates, 368 So.2d 634 (Fla. 2d DCA 1979) (holding that insured is bound by actions of its broker). Furthermore, Federal would have factored into the premium it charged Donovan the absence of any risk from the outstanding claims regarding the exercise balls causing injury.

The trial court’s undisputed findings of fact present a textbook case for reformation of the parties’ contract based on mutual mistake.

A court of equity has the power to reform a written instrument where, due to a mutual mistake, the instrument as drawn does not accurately express the true intention or agreement of the parties to the instrument. A mistake is mutual when the parties agree to one thing and then, due to either a scrivener’s error or inadvertence, express something different in the written instrument.
The fact that one party drafts the document does not preclude reformation on the grounds of mutual mistake. The rationale for reformation is that a court sitting in equity does not alter the parties’ agreement, but allows the defective instrument to be corrected to reflect the true terms of the agreement the parties actually reached. Although ordinarily a writing will be looked to as the only expression of the parties’ intent, in a reformation action in equity, parol evidence is admissible to demonstrate that the true intent was other than as expressed in the writing.

Circle Mortg. Corp. v. Kline, 645 So.2d 75, 77-78 (Fla. 4th DCA 1994) (emphasis added) (citations omitted).

Federal’s inclusion of a blank exclusion schedule in the original policy it sent to Donovan was a mutual mistake because it and Donovan, through its agent Baldwin Connelly, had agreed to the exclusion of the exercise balls from coverage. Indeed, Federal would have been entitled to reformation if it had not discovered the error in the policy until after the Schneck claim was filed. Consequently, Federal was entitled to reformation of the insurance policy as a matter of law.

Accordingly, we reverse the declaratory judgment and remand for proceedings consistent with this opinion.

NORTHCUTT and WALLACE, JJ„ Concur.


author: CRENSHAW, Judge.

text:
    Victor PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1204.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 2011.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow (withdrew after briefing); Charles M. Britt, III, of Charles M. Britt, III, P.A., Bradenton (substituted for counsel of record), for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appel-lee.
   CRENSHAW, Judge.

Victor Perez appeals his probation revocation and the resulting sentence to twelve years’ prison for robbery. We affirm the probation revocation without further comment but remand to the trial court for entry of a corrected sentence reinstating Perez’s youthful offender status. See Lee v. State, 67 So.3d 1199, 1202 (Fla. 2d DCA 2011) (“ ‘Once a circuit court has imposed a youthful offender sentence, it must continue that status upon resentencing after a violation of probation or community control.’ ” (quoting Blacker v. State, 49 So.3d 785, 788 (Fla. 4th DCA 2010))).

Affirmed in part, reversed in part, and remanded.

WHATLEY and DAVIS, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    J.A.M., Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3069.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 2011.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

J.A.M. argues that the State failed to submit sufficient evidence to prove that he committed trespass by entering school property while under suspension. We agree and reverse the order finding him guilty of that charge.

On Friday, October 9, J.A.M. was given a ten-day suspension from high school for having a weapon on campus. The discipline referral form set forth the out-of-school suspension dates as “10/12-10/26.” The following was also stamped on the form: “MAY NOT BE ON SCHOOL CAMPUS OR ANY PASCO COUNTY SCHOOL BOARD PROPERTY DURING OUT OF SCHOOL SUSPENSION. TRESPASSING COULD RESULT IN AN ARREST.” According to the assistant principal who signed the referral, he brought this provision to J.A.M.’s attention on October 9 and gave him a copy of the referral form. The homecoming dance was held the next evening, on Saturday, October 10. When J.A.M. and his date arrived at school for the dance, he was asked to leave.

J.A.M. was later charged in a delinquency petition with trespass on school property in violation of section 810.097(1), Florida Statutes (2009). Under this statute, trespass is committed by any person who “[i]s a student currently under suspension or expulsion[] and who enters or remains upon the campus.” § 810.097(l)(b).

In his testimony, the assistant principal asserted that J.A.M.’s suspension began when the referral was issued on October 9, but he did not say that he explained this to J.A.M. In any event, he was mistaken. As prescribed by the written referral, J.A.M.’s suspension began on Monday, October 12, and it ended on Monday, October 26. That period spanned ten school days and two weekends — but not the weekend just after the October 9 referral. Therefore, the evidence failed to show that J.A.M. was currently under suspension when he arrived on campus to attend the dance on October 10.

J.A.M. raised this issue below in a motion for judgment of acquittal, more properly characterized as a motion for judgment of dismissal under Florida Rule of Juvenile Procedure 8.110(k). The circuit court denied the motion and found J.A.M. guilty of the trespassing charge. The court withheld adjudication and placed J.A.M. on probation. We have reviewed the matter de novo, viewing the evidence in the light most favorable to the State. Having concluded that the State failed to submit competent, substantial evidence that J.A.M. entered school property while “currently under suspension,” we reverse and remand with directions to dismiss the charge. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002) (directing appellate courts to apply de novo standard when reviewing denial of motion for judgment of acquittal and to reverse only when conviction was not supported by competent, substantial evidence); C.E.L. v. State, 995 So.2d 558, 560 (Fla. 2d DCA 2008) (stating that judgment of acquittal standard applies to review of motion for judgment of dismissal in juvenile case).

Reversed and remanded with directions.

DAVIS and BLACK, JJ., Concur.


author: WALLACE, Judge.

text:
    Michael BOESCH; AmeriLife Group, LLC; and Interstate First Financial Of Bradenton, L.L.C., a Delaware limited liability company, f/k/a AmeriFirst National Financial of Bradenton, L.L.C., a Delaware limited liability company, Appellants, v. BRADENTON 64, INC., Appellee.
    Nos. 2D10-4217, 2D10-4577, 2D10-4610.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 2011.
    R. Nathan Hightower, Clearwater, for Appellants.
    Derin Parks of Grimes Goebel Grimes Hawkins Gladfelter <& Galvano, P.L., Bra-denton, for Appellee.
   WALLACE, Judge.

In case number 2D10-4217, Michael Boesch appeals the trial court’s order denying his motion to tax costs. Mr. Boesch also appeals the denial of his motion for attorney’s fees based on a proposal for settlement in accordance with section 768.79, Florida Statutes (2007), and Florida Rule of Civil Procedure 1.442. In case number 2D10-4577, AmeriLife Group, LLC, challenges the trial court’s order denying AmeriLife’s motion seeking the disbursement to it of funds deposited with the clerk of the court. Instead, the trial court ordered the disbursement of the funds to Bradenton 64, Inc. In case number 2D10-4610, Mr. Boesch and Interstate First Financial of Bradenton, L.L.C., challenge the same order.

In the underlying litigation, Bradenton 64 sought to hold Mr. Boesch liable for the breach of a lease between Bradenton 64 and Interstate for a suite in a strip mall. Mr. Boesch successfully defended Braden-ton 64’s claims against him. It follows that he was entitled to recover his taxable costs against Bradenton 64. See §§ 57.041, 86.081, Fla. Stat. (2007). However, Mr. Boesch’s proposal for settlement was invalid and unenforceable. See Attorneys’ Title Ins. Fund, Inc. v. Gorka, 36 So.3d 646, 649 (Fla.2010). The trial court properly denied his motion for attorney’s fees based on the invalid proposal. Accordingly, in case number 2D10-4217, we affirm in part, reverse in part, and remand for the entry of a judgment in favor of Mr. Boesch for his taxable costs.

We find no error in the trial court’s order directing disbursement of the funds held in the registry of the court. Accordingly, in case numbers 2D10-4577 and 2D10-4610, we affirm the trial court’s order.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and BLACK, JJ., Concur.


text:
    Kenneth ANDERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6234.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2011.
    Kenneth Anderson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, HAWKES, and ROBERTS, JJ., concur.


text:
    S.S., Mother of A.S., G.S., J.S., and J.T., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES.
    Nos. 5D11-1184, 5D11-1187.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 2011.

      Carl A. Morgan, Melbourne, for Appellant.
    Rosemarie Farrell, Orlando, for Appel-lee.
    Laura E. Lawson, Tavares, for Guardian Ad Litem.
   PER CURIAM.

S.S. (“the mother”) appeals from a final judgment terminating her parental rights to her three oldest children, A.S., G.S., and J.S. In another pending appeal, No. 5D-11-1187, the mother challenges the concurrent termination of parental rights to her fourth child, J.T., who was born shortly after dependency proceedings were initiated in this case. Because the underlying facts, initial briefs, and answer briefs in these two appeals are virtually identical, we consolidate them for resolution on our own motion.

The mother argues that DCF failed to prove by clear and convincing evidence its two asserted grounds for termination— continuing abuse or neglect as evidenced by material breach of case plan tasks and behavior toward the children indicating that continued involvement with them would be harmful to them. Instead of attempting to demonstrate a lack of competent, substantial evidence to support the trial court’s fact findings, the mother simply recapitulates the trial court’s findings as her statement of facts, essentially conceding that there is no basis to challenge them. In her argument section, the mother then points to conflicting evidence which the trial court rejected, effectively asking this court to reweigh the evidence — which we cannot and will not do. See, e.g., Blue Lakes Apartments, Ltd. v. George Gowing, Inc., 464 So.2d 705, 708-09 (Fla. 4th DCA 1985) (explaining that when the standard of review is competent, substantial evidence, an appellate court must disregard conflicting evidence and accept the facts in evidence which support the trial court’s findings).

Our review of the record confirms that competent, substantial evidence supports the trial court’s findings that DCF proved both statutory grounds for termination of the mother’s parental rights. The evidence demonstrated continuing abuse and neglect of the children after DCF’s intervention and provision of services as evidenced by the mother’s material breach of her case plan tasks. These included failing to provide a stable and non-hazardous home, failing to maintain stable employment and income, failing to complete anger management classes and individual counseling, failing to remain drug free, and failing to refrain from committing several new law violations — including criminal child neglect. In addition, the mother’s diagnosed personality disorders and behavior toward the children, which in part resulted in the conviction for child neglect, amply demonstrated that her continuing contact with them would likely result in future harm to them despite the provision of services. Accordingly, we affirm the termination of parental rights in these cases. C.G. v. Dep’t of Children & Families, 67 So.Sd 1141, 1143 (Fla. 3d DCA 2011).

One issue merits further discussion. Regarding her new law violations, the mother argues that this factor cannot be considered based on the Second District’s opinion in In the Interest of C.N., 51 So.3d 1224 (Fla. 2d DCA 2011). That case held that DCF may not include a requirement of no new law violations as a case plan task, and that violation of this requirement, standing alone, is not a proper basis to terminate parental rights. Id. at 1232. The court reached this conclusion based on its reading of section 39.806 and on common sense. It noted that, under section 39.806, Florida Statutes, merely committing a criminal offense is not grounds for TPR. Instead, incarceration under certain circumstances and committing certain crimes are grounds for termination under sections 39.806(l)(d), (g) and (h), Florida Statutes. Thus, the C.N. panel reasoned that allowing a circuit court to expand the list of crimes for which termination may be authorized by inserting a no new law violation condition into the case plan amounted to judicial legislation in violation of separation of powers. Id. at 1233. The court concluded that this statutory scheme comported with common sense in that:

A parent’s commission of a crime is not directly correlated with poor parenting skills or risk to the child; a person who commits a crime may still be an excellent parent. It all depends on the nature of the crime. A parent’s commission of some crimes, e.g., aggravated child abuse, obviously warrants intervention to protect the affected child or children. But the commission of many other crimes may have little to do with the offender’s effectiveness as a parent or with the child’s welfare.

Id. The court recognized that several appellate opinions had affirmed terminations based on breaches of case plans for committing new law violations but noted that unlike the case before it, those prior termination cases were supported by other case plan breaches and more egregious circumstances. Id.

DCF asks this court to address C.N., acknowledge that its holding is limited to finding that violation of a no new law violation case plan condition, standing alone, is insufficient to support termination, and to confirm that the language in that opinion stating that such a condition may not be made part of a case plan under any circumstances is obiter dictum. We agree with DCF’s reading of C.N., and note that this case clearly falls into the category of those cases distinguished in C.N., where there are additional case plan breaches, more egregious circumstances, and other grounds for termination.

We fully agree with the C.N. panel’s well-reasoned conclusion that breach of a no new law violation condition, standing alone, is insufficient to terminate parental rights. But, we disagree with the conclusion, in dicta, that no such condition may be imposed in the first place, or that doing so violates the separation of powers doctrine. We reach this conclusion based upon our reading of sections 39.6011, 39.6012, and 39.603, Florida Statutes, in which the legislature expressly authorizes DCF to develop case plans with “a description of the identified problem being addressed, including the parent’s behavior or acts resulting in risk to the child and the reason for intervention by the department.” § 39.6011(2)(a), Fla. Stat. (2010). The case plan must warn the parent that material breach or failure to substantially comply with the case plan may result in termination of parental rights. § 39.6011(2)(e), Fla. Stat. (2010). “The case plan must describe each of the tasks with which the parents must comply ... specifically addressing the identified problem, including: ... a description of the measurable objectives, including the time-frames specified for achieving the objectives of the case plan and addressing the identified problem.” § 39.6012(l)(b)7., Fla. Stat. (2010). In addition, the legislature has required circuit courts to approve such case plans and to determine, among other things:

Whether the plan is meaningful and designed to address facts and circumstances upon which the court based the finding of dependency in involuntary placements or the plan is meaningful and designed to address facts and circumstances upon which the child was placed in out-of-home care voluntarily.

§ 39.603(1)©, Fla. Stat. (2010).

We read these express general directives from the legislature as authorizing DCF to include (and the circuit court to approve) a no new law violation condition so long as it is related to correcting a parent’s behavior or to acts resulting in risk to the child. Under this reading of chapter 39, separation of powers is not violated because parental rights cannot be terminated solely for committing a new law violation, but such a violation can (and should) be considered in the broader context of whether it relates to continuing abuse, abandonment or neglect under section 39.806(l)(e). For example, the mother’s conviction for criminal child neglect during the pendency of these proceedings seems highly relevant, and the mother’s illicit drug use clearly posed a threat to the children when the case plan in this case was developed and approved.

AFFIRMED.

PALMER, LAWSON and JACOBUS, JJ., concur.

      . The mother also admitted pleading guilty to child neglect, possession of marijuana, and resisting without violence, all during the pen-dency of her dependency cases. She also admitted being arrested for not completing community service and other conditions of her various probations.


text:
    Daniel MANDUJANO-JIMINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1751.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2011.
   PER CURIAM.

Daniel Mandujano-Jiminez appeals the summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in posteonviction proceedings and we certify to the Florida Supreme Court the following question of great pub-lie importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

DAVIS, KELLY, and LaROSE, JJ„ Concur.


text:
    Robert DONLAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1819.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2011.
    Arturo R. Rios, St. Petersburg, for Appellant.
   PER CURIAM.

Robert Donlan appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which the postconviction court denied as untimely. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, - U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

DAVIS, KELLY, and LaROSE, JJ., Concur.


text:
    Reinaldo ESTRADA-LEAL, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2192.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2011.
    Aruro R. Rios, St. Petersburg, for Appellant.
   PER CURIAM.

Reinaldo Estrada-Leal appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which the post-conviction court denied as untimely. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

DAVIS, KELLY, and LaROSE, JJ„ Concur.


text:
    Roberto Andres SILVAPUENTES, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1625.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2011.
    Peter N. Macalusco, Tampa, for Appellant.
   PER CURIAM.

Roberto Andres Silvapuentes appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which the postconviction court denied as untimely. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

DAVIS, KELLY, and LaROSE, JJ., Concur.


text:
    Ramon LANTES, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1706.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2011.

      Frances Martinez of Escobar & Associates, P.A., Tampa, for Appellant.
   PER CURIAM.

Ramon Lantes appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which the postconviction court denied as untimely. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

DAVIS, KELLY, and LaROSE, JJ., Concur.


text:
    Kimberly Trianne BURIAS, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-703.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2011.
    David J. Mourick, Bonita Springs, for Appellant.
   PER CURIAM.

Kimberly Trianne Burias appeals the summary denial of her motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

DAVIS, KELLY, and LaROSE, JJ., Concur.


text:
    Norberto CRUZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1409.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2011.

      Carl J. Dicampli of Lorenzo and Lorenzo, P.A., Tampa, for Appellant.
   PER CURIAM.

Norberto Cruz appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which the postconviction court denied as untimely. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

DAVIS, KELLY, and LaROSE, JJ., Concur.


text:
    Margarita RODRIGUEZ-MARIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1369.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2011.
    Peter N. Macalusco, Tampa, for Appellant.
   PER CURIAM.

Margarita Rodriguez-Marin appeals the summary denial of her motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which the postconviction court denied as untimely. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

DAVIS, KELLY, and LaROSE, JJ., Concur.


text:
    Henrique GOMES, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-407.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2011.

      Henrique Gomes, pro se.
   PER CURIAM.

Henrique Gomes appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which the postconviction court denied as untimely. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

DAVIS, KELLY, and LaROSE, JJ., Concur.


text:
    Juan M. GOMEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-34.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2011.
    David Mengers, Ocala, for Appellant.
   PER CURIAM.

Juan Gomez appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which the postconviction court denied as untimely. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

DAVIS, KELLY, and LaROSE, JJ., Concur.


text:
    Earle A. PICKETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1300.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2011.
   PER CURIAM.

Earle A. Pickett appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which the postconviction court denied as untimely. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

DAVIS, KELLY, and LaROSE, JJ., Concur.


text:
    Hanita Binte CREWS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5433.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2011.
    Richard H. Maney of Maney & Gordon, P.A., Tampa, for Appellant.
   PER CURIAM.

Hanita Binte Crews appeals the summary denial of her motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which the post-conviction court denied as untimely. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

DAVIS, KELLY, and LaROSE, JJ., Concur.


text:
    Visky BLAIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5493.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2011.
   PER CURIAM.

Visky Blain appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which the postconviction court denied as untimely. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

DAVIS, KELLY, and LaROSE, JJ„ Concur.


text:
    Jose Angel GONZALEZ-GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1053.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2011.
    Frances Martinez of Escobar & Associates, P.A., Tampa, for Appellant.
   PER CURIAM.

Jose Angel Gonzalez-Gonzalez appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

DAVIS, KELLY, and LaROSE, JJ„ Concur.