author: STEVENSON, J.

text:
    Jon L. SWERGOLD, Appellant, v. Jill H. SWERGOLD n/k/a Jill H. Kazdin, Appellee.
    No. 4D10-1447.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2012.

      Cynthia L. Greene of the Law Offices of Greene Smith & Associates, P.A., Miami, and Stuart R. Manoff & Associates, P.A., West Palm Beach, for appellant.
    Jennifer S. Carroll of the Law Offices of Jennifer S. Carroll, P.A., Palm Beach Gardens, for appellee.
   STEVENSON, J.

This appeal stems from a final judgment of dissolution of marriage between the appellant, Jon Swergold (“Former Husband”), and appellee, Jill Swergold (“Former Wife”). Both parties challenge findings made by the trial court. We write only to address the error in failing to address Former Husband’s entitlement to credits for expenses associated with the marital home. As to the remaining issues, we affirm.

In regards to the marital home, the final judgment of dissolution of marriage left the parties as tenants in common. Former Wife was to have exclusive possession of the home until the earliest of one year, her abandonment of the home or her remarriage. After that point, the home was to be sold, with the proceeds or obligations divided equally between the parties. Also, after Former Wife’s vacation of the residence, Former Husband was to be responsible for the mortgage, insurance and taxes.

“The standard of review for a trial court’s apportioning assets and liabilities to the parties in a Florida dissolution of marriage proceeding is abuse of discretion.” Cardella-Navarro v. Navarro, 992 So.2d 856, 858 (Fla. 3d DCA 2008). Section 61.077, Florida Statutes (2008), provides:

A party is not entitled to any credits or setoffs upon the sale of the marital home unless the parties’ settlement agreement, final judgment of dissolution of marriage, or final judgment equitably distributing assets or debts specifically provides that certain credits or setoffs are allowed or given at the time of the sale. In the absence of a settlement agreement involving the marital home, the court shall consider the following factors before determining the issue of credits or setoffs in its final judgment:
(1) Whether exclusive use and possession of the marital home is being awarded, and the basis for the award;
(2) Whether alimony is being awarded to the party in possession and whether the alimony is being awarded to cover, in part or otherwise, the mortgage and taxes and other expenses of and in connection with the marital home;
(3) Whether child support is being awarded to the party in possession and whether the child support is being awarded to cover, in part or otherwise, the mortgage and taxes and other expenses of and in connection with the marital home;
(4) The value to the party in possession of the use and occupancy of the marital home;
(5) The value of the loss of use and occupancy of the marital home to the party out of possession;
(6) Which party will be entitled to claim the mortgage interest payments, real property tax payments, and related payments in connection with the marital home as tax deductions for federal income tax purposes;
(7) Whether one or both parties will experience a capital gains taxable event as a result of the sale of the marital home; and
(8) Any other factor necessary to bring about equity and justice between the parties.

The final judgment does not reference section 61.077 or outline the factors which the trial court used to equitably determine that the Former Husband would not receive any credits for expenses of the marital home for which he was alone made responsible. Thus, remand is necessary for clarification on Former Husband’s entitlement to credits upon sale of the marital home. See, e.g., Silverman v. Silverman, 940 So.2d 615, 618 (Fla. 2d DCA 2006) (remanding for trial court to address factors in section 61.077 and whether wife was entitled to credits or setoffs upon sale of marital home, where final judgment was silent on matter); Holitzner v. Holitzner, 920 So.2d 827, 828 (Fla. 4th DCA 2006) (remanding for reconsideration where trial court failed to specify how proceeds from sale of marital home would be distributed and whether wife, as co-tenant, would be entitled to reimbursement for expenses related to the home).

Affirmed and remanded.

MAY, C.J., and GROSS, J., concur.


source: Caselaw Access Project

author: VILLANTI, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Keith A. KOTECKI, Appellee.
    No. 2D11-1083.
    District Court of Appeal of Florida, Second District.
    March 9, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellee.
   VILLANTI, Judge.

The State appeals the trial court’s order dismissing the charge against Keith Ko-tecki based upon the trial court’s belief that Manatee County was the only proper venue. We reverse because Kotecki waived the right to be tried in Manatee County and, therefore, the trial court erred in dismissing the charge against him.

The State originally filed an information in Manatee County charging Kotecki with unlawful sexual activity with a minor. After filing the information, the State took the victim’s deposition. Without going into unnecessary details, the record is clear that the victim’s testimony about where and when the sexual activity occurred was equivocal. She testified that she and Kotecki had sexual relations only once while she was a minor, at her mother’s house which was located in the City of Sarasota. She stated that the mother’s home was in Sarasota County, although the house was really in Manatee County. But she also answered “I don’t remember,” “I’m not too sure,” or “I really don’t know” when asked how many times and where she and Kotecki had other sexual intercourse.

Based on the victim’s equivocation, the State amended the information to allege alternative counties — Manatee County and Sarasota County — as the venue where the sexual acts occurred. Thereafter, Ko-tecki’s counsel asked the Manatee County trial court for a venue transfer to Sarasota County explaining, “Mr. Kotecki informs me that if he has a choice, he wants to choose Sarasota.” The court granted Ko-teeki’s request and transferred the case to Sarasota County.

After the transfer from Manatee County, Kotecki moved the Sarasota court to dismiss the charge, arguing that the victim’s deposition established that the crime had occurred in Manatee County, not Sarasota County. The State responded that it was unaware of in which county the sex act or acts actually occurred when it filed the amended information. After reviewing the victim’s deposition, the Sarasota court granted Kotecki’s motion to dismiss. However, the court then declined to transfer the case back to Manatee County based on the language of section 47.131, Florida Statutes (2010), which reads:

Change of venue; second change, when permitted. — When it appears to the court to which an action has been transferred by a change of venue that any of the grounds for change of venue exist in the county to which the action has been transferred, the court may order a second change of venue, but it shall not be made to the county from which it was originally transferred.

(Underlined emphasis added.) This appeal followed.

The State persuasively argues, and Kotecki concedes, that section 47.131 does not apply to criminal cases. Chapter 47 covers topics such as venue in civil actions against contractors and corporations and actions on promissory notes. See §§ 47.011, .021, .051-061; see also § 47.122 (“For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.”) (emphasis added). A different statute, section 910.03, Florida Statutes (2010), covers venue in criminal trials. Therefore, the trial court should not have applied section 47.131 as a justification for not transferring venue.

As a general principle, a transfer, rather than dismissal, is the preferred remedy for improper venue. Bush v. State, 945 So.2d 1207, 1214-15 (Fla.2006). Furthermore, the State’s amended information was not improper based on the facts of this case. While it is true that, other than the geographical proximity between Manatee and Sarasota counties, there is no specific evidence in the record pointing to Sarasota County as the place where Kotecki and the victim had sex, the victim was vague and evasive regarding where she and Kotecki had intercourse. Article I, section 16(a) of the Florida Constitution states:

If the county [where the crime was committed] is not known, the indictment or information may charge venue in two or more counties conjunctively and proof that the crime was committed in that area shall be sufficient; but before pleading the accused may elect in which of those counties the trial will take place.

(Emphasis added.) Here, the victim’s ambivalent testimony allowed the State to file an information that included more than one county, and the State was only required to prove that the crime was committed in the general area alleged. This alternative allegation then allowed Kotecki to elect to have the case tried in Sarasota County.

It is well established that venue is a privilege that can be waived. Lane v. State, 388 So.2d 1022, 1026 (Fla.1980). When a defendant requests and obtains a change of venue, he waives the right to be tried in the transferring county even if this was where the crime was committed. See § 910.03(1) (“By his or her election, the accused waives the right to trial in the county in which the crime was committed. Such election shall have the force and effect of the granting of an application of the accused for change of venue from the county in which the offense was committed to the county in which the case is tried.”); Bundy v. State, 455 So.2d 330, 339 (Fla.1984) (holding that defendant waived right to be tried in county where crime occurred when he asked for a change of venue), abrogated on other grounds, Fenelon v. State, 594 So.2d 292 (Fla.1992); Ashley v. State, 72 Fla. 137, 72 So. 647, 648 (1916); see generally Dean v. State, 414 So.2d 1096, 1098-99 (Fla. 2d DCA 1982) (holding that defendants waived right to challenge venue when they entered pleas in Manatee County even though they were aware that they had a right to be tried in DeSoto County where the crime had occurred); McClellion v. State, 858 So.2d 379, 382 (Fla. 4th DCA 2003) (“Clearly a defendant could have waived the venue problem by agreeing to a trial of all of the crimes in Broward County[.]”). By requesting and obtaining a change of venue to Sarasota County, Kotecki waived the right to be tried in Manatee County.

Reversed and remanded.

DAVIS and LaROSE, JJ., Concur.

      . In fact, even if section 47.131 were applicable to criminal cases, the statute allows a transfer back to the court which originally transferred the case when “the initial trans-feror court is the only court in the state where venue is lawful.” See Lottinger-Serraes v. Serraes, 774 So.2d 959, 961 (Fla. 1st DCA 2001).


author: PER CURIAM.

text:
    Charles M. MENDENHALL, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-2681.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    Jack R. Maro, Ocala, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner, Charles Mendenhall, has filed a petition for writ of habeas corpus alleging ineffective assistance of counsel. Men-denhall claims his appellate counsel was ineffective for failing to argue that the instruction given to the jury on attempted manslaughter was erroneous pursuant to State v. Montgomery, 39 So.3d 252 (Fla.2010). We agree and grant the petition.

In 2007, Mendenhall was tried for attempted first-degree murder, and the jury received instructions on attempted first-degree murder, attempted second-degree murder, and attempted voluntary manslaughter. The instruction on attempted manslaughter was standard instruction 6.6:

6.6 Attempted Voluntary Manslaughter
To prove the crime of attempted voluntary manslaughter, the State must prove the following element beyond a reasonable doubt.
Charles Michael Mendenhall committed an act, which was intended to cause the death of Russell Gay and would have resulted in the death of Russell Gay except that someone prevented Charles Michael Mendenhall from killing Russell Gay or he failed to do so.
However, the Defendant cannot be guilty of attempted voluntary manslaughter if the attempted killing was either excusable or justifiable as I have previously explained those terms.
It is not an attempt to commit manslaughter if the Defendant abandoned the attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of his criminal purpose.
In order to convict of attempted voluntary manslaughter, it is not necessary for the State to prove the defendant has a premeditated intent to cause death,

(emphasis added). The jury ultimately convicted Mendenhall of attempted second-degree murder.

On direct appeal, Mendenhall’s appellate counsel only raised a sentencing issue and this court affirmed Mendenhall’s conviction. Mendenhall v. State, 999 So.2d 665 (Fla. 5th DCA 2008). This court’s mandate with respect to that opinion was issued on February 16, 2009. Mendenhall then sought discretionary review in the Florida Supreme Court, and in Mendenhall v. State, 48 So.3d 740 (Fla.2010), the supreme court approved this court’s decision. Its mandate with respect to that opinion was issued on November 18, 2010.

It is undisputed that, pursuant to Montgomery, the wrong instruction on attempted manslaughter was given in Men-denhall’s case. The instruction erroneously suggested that the State was required to prove intent to kill, a requirement not imposed by the manslaughter statute. See Montgomery, 39 So.3d at 256-57 (The standard jury instruction on manslaughter by act required the jury to find that the defendant intended to kill the victim whereas the relevant intent was the intent to commit an act which caused death.). Such an erroneous instruction has been held to constitute fundamental error. See id. at 258 (holding that fundamental error occurred where Montgomery was tried for first-degree murder and convicted of second-degree murder after the jury was given an erroneous instruction on the lesser-included offense of manslaughter); Burton v. State, — So.3d -, -, 2011 WL 1326258 (Fla. 5th DCA 2011) (applying the Montgomery rationale to attempted manslaughter instruction requiring proof of intent to kill).

The trouble with Mendenhall’s claim is that his conviction was affirmed on direct appeal before either the First District or the Florida Supreme Court issued their opinion in Montgomery. However, Mendenhall’s conviction was not final until after Montgome'ry was decided and, thus, the holding applied to his case. See Minnich v. State, — So.3d -, -, 2011 WL 265765 (Fla. 1st DCA 2011). Typically, it would be appropriate to file a motion to recall mandate under such circumstances; however, a complicating factor in this case is that the mandate was issued from this court on February 16, 2009. Thus, this court cannot recall the mandate because it is now in a new term. Nonetheless, Mendenhall falls into the category of cases where the remedy for the relief that he is seeking is by habeas corpus petition. See id.

This case is one of several cases that have been before this court on the issue of Montgomery. See Lopez v. State, 68 So.3d 332 (Fla. 5th DCA 2011); Hodges v. State, 64 So.3d 142 (Fla. 5th DCA 2011); Dill v. State, 79 So.3d 849 (Fla. 5th DCA 2012). Again we cite conflict with Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), rev. granted, 64 So.3d 1262 (Fla.2011).

The Writ of Habeas Corpus is GRANTED and this matter is REMANDED for a new trial.

PALMER, TORPY and JACOBUS, JJ., concur.

      . The First District Court of Appeal decided Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009) on February 12, 2009, four days before this court's mandate in Mendenhall was issued on February 16, 2009. Further, the Florida Supreme Court issued its Mont-gomeiy opinion on April 8, 2010, whereas Mendenhall's judgment and sentence became final when the supreme court's mandate in Mendenhall was issued on November 18, 2010.


text:
    William Ambrose TRUDELLE, Petitioner, v. STATE of Florida, Respondent.
    No. 2D11-3340.
    District Court of Appeal of Florida, Second District.
    March 9, 2012.
    William Ambrose Trudelle, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Respondent.
   PER CURIAM.

William Trudelle’s petition for writ of certiorari is denied without prejudice to his seeking any available postconviction relief.

SILBERMAN, C.J., and CASANUEVA and DAVIS, JJ., Concur.


author: MORRIS, Judge.

text:
    Laurence Alvin DUKE, Petitioner, v. STATE of Florida, Respondent.
    No. 2D11-964.
    District Court of Appeal of Florida, Second District.
    March 9, 2012.

      Julianne M. Holt, Public Defender, and Kay S. Murray, Assistant Public Defender, Tampa, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Respondent.
   MORRIS, Judge.

Laurence Alvin Duke petitions for a writ of certiorari to quash an order from the circuit court sitting in its appellate capacity. The circuit court order reversed a county court order granting Duke’s motion to suppress. Because we conclude that the circuit court departed from the essential requirements of the law by applying an incorrect standard of review, reweighing the evidence, and making its own credibility determination, we grant the petition.

I. The Traffic Stop and Motion to Suppress

In 2009, Duke was charged with driving under the influence. Duke filed a motion to suppress on the basis that the traffic stop which precipitated his arrest was not supported by reasonable suspicion.

At the suppression hearing, the officer who made the initial traffic stop testified that he stopped Duke because he observed a wire hanging down in front of the license tag and because Duke drove over the white line on the side of the road and was unable “to hold that straight line.” The officer testified that all three reasons were consistent with the driver’s being impaired, but he conceded that his police report did not contain any reference to his belief that Duke was ill, tired, or impaired.

The State also admitted a video recording which depicted Duke’s vehicle traveling for a short distance followed by the traffic stop. Although the video contained audio of the officer reporting the stop, the officer did not report any suspicion that Duke was ill, tired, or impaired.

The State conceded that case law did not support an argument that the officer had probable cause to believe that Duke committed a traffic violation based on the purported tag violation or Duke’s failure to maintain a single lane. Thus the county court confined itself to deciding whether the officer had reasonable suspicion to detain Duke.

Thereafter, the county court reviewed the video three times and then made the following observations:

1. The brevity of the video indicated that the officer observed Duke for only a short distance.
2. The video revealed that Duke’s vehicle crossed the line twice, straddling the line for a short period of time before returning to his lane of travel.
3. Most of the time, Duke operated his vehicle within his lane of travel and it was possible that the incursions over the line arose from Duke originally planning to change lanes but then changing his mind.
4. No traffic appeared to have been affected and once the officer activated his lights, Duke signaled and properly pulled off the roadway.

Based on the video, the officer’s report, and the testimony from the officer himself, the county court concluded that the officer’s true motivation for the stop was either the alleged tag violation or failure to maintain a single lane, both of which the State conceded were not valid bases for a stop. The county court explained that it reached this conclusion about the officer’s motivation because the officer did not articulate on the video that he believed Duke was impaired, nor did the officer mention suspected impairment in his report. The county court also concluded that there was not a sufficient deviation from the lane of travel that would have provided the officer with reasonable suspicion to believe that the driver was ill, tired, or impaired. Ultimately, the county court granted Duke’s suppression motion.

The State appealed, and the circuit court reversed, finding that the county court’s order was not based on competent, substantial evidence. The circuit court concluded that based on the officer’s “uncon-troverted testimony” as well as the video, Duke’s “erratic driving behavior combined with the time of night that it occurred gave [the officer] a reasonable suspicion that [Duke] was sick, tired[,] or impaired by drugs or alcohol.”

II. The Circuit Court Departed from the Essential Requirements of the Law by Failing to Apply the Appropriate Standard of Review to the County Court’s Findings

A. Standard of Review

Our certiorari review of an order from a circuit court sitting in its appellate capacity is limited to a determination of whether the circuit court afforded procedural due process and whether the circuit court applied the correct law. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995). Here, we are only concerned with whether the circuit court applied the correct law.

B. A Circuit Court, Sitting in Its Appellate Capacity, May Not Reweigh the Evidence or Make Credibility Determinations

“ “When reviewing a motion to suppress, the standard of review for the trial court’s application of the law to its factual findings is de novo, but a reviewing court must defer to the factual findings of the trial court that are supported by competent, substantial evidence.’ ” Bautista v. State, 902 So.2d 312, 313-14 (Fla. 2d DCA 2005) (quoting Cillo v. State, 849 So.2d 353, 354 (Fla. 2d DCA 2003)). Thus, a “suppression order, when appealed to the circuit court, should [be] presumed correct.” Sunby v. State, 845 So.2d 1006, 1007 (Fla. 5th DCA 2003); see also Bautista, 902 So.2d at 314 (noting that reviewing court “ ‘must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling’ ” (quoting Pagan v. State, 830 So.2d 792, 806 (Fla.2002))). “Like the District Court of Appeal, the circuit court sitting in its appellate capacity cannot reweigh the evidence and choose to believe a state witness which the county court chose not to believe.” Sunby, 845 So.2d at 1007 (citing Hart v. State, 661 So.2d 54 (Fla. 2d DCA 1995); Maurer v. State, 668 So.2d 1077 (Fla. 5th DCA 1996)).

The State contends that the circuit court adhered to the proper standard of review because the circuit court merely corrected the county court’s misapplication of the law relating to what constitutes reasonable suspicion. We agree that if the county court’s order had been based solely on the finding that what the officer observed could not, as a matter of law, give rise to reasonable suspicion, such a finding could have been subject to reversal by the circuit court. See Beahan v. State, 41 So.3d 1000, 1002 (Fla. 1st DCA 2010) (holding that issue of whether facts supported finding that officer had reasonable suspicion is a question of law which may be reviewed de novo); Ikner v. State, 756 So.2d 1116, 1118 (Fla. 1st DCA 2000) (same). However, the record reveals that the county court’s decision was based on a weighing of the evidence and a credibility determination, both of which are exclusively within the province of the county court. See Maurer, 668 So.2d at 1078-79 (citing State v. Polak, 598 So.2d 150, 152 (Fla. 1st DCA 1992)).

The county court made it clear that it believed the officer’s true motivation in stopping Duke was either a tag violation or his failure to maintain a single lane, not that Duke was impaired. In explaining how it reached that finding, the county court, cited the fact that the police report did not reference Duke’s being impaired. The county court also noted that the officer was not heard on the video articulating such a concern. Although the county court acknowledged that it was not suggesting that the officer lied, the court stated “I think [that the failure to mention that factor] is a significant omission [because] I think that would have been a relevant factor.” Clearly then, the county court chose to disregard the officer’s testimony that he stopped Duke because he believed that Duke’s actions were consistent with impairment. The county court was free to make such a finding. See Maurer, 668 So.2d at 1078-79 (holding that county courts are free to ignore or place less emphasis on certain testimony, even that of police officers and even when that is the only evidence presented); Sunby, 845 So.2d at 1007 (same).

On appeal, the circuit court failed to apply the correct law in two different ways. First, the circuit court construed the county court’s order as being based on an issue of law which is evident by the circuit court’s citation to cases involving what constitutes reasonable suspicion to effectuate a traffic stop. But as we have explained, that was not the basis for the county court’s decision. Second, although the circuit court correctly noted that it was required to afford deference to the county court’s factual findings, the circuit court went on to find that the officer’s “uncon-troverted testimony and the video tape submitted into evidence” established that the officer had reasonable suspicion to effectuate the stop. Thus, contrary to the county court’s finding, the circuit court clearly credited the officer’s testimony that he initiated the stop based on Duke’s suspected impairment. In doing so, the circuit court departed from the essential requirements of the law. See Sunby, 845 So.2d at 1007; see also Weiss v. State, 965 So.2d 842, 843 (Fla. 4th DCA 2007) (relying on Sunby to find that circuit court departed from essential requirements of the law when it applied incorrect standard of review).

We therefore grant the petition for writ of certiorari, vacate the circuit court’s opinion, and remand with directions to reinstate the county court’s order of suppression.

CASANUEVA and LaROSE, JJ„ Concur.

      . Case law is clear that a person’s continual drifting across the line and erratic driving can establish reasonable suspicion for an investigatory stop based on an officer's legitimate concern for the safety of the motoring public, such as where the officer believes the person may be impaired, sick, or tired. See State v. Davidson, 744 So.2d 1180, 1180-81 (Fla. 2d DCA 1999); State, Dep’t of Highway Safety & Motor Vehicles v. DeShong, 603 So.2d 1349, 1352 (Fla. 2d DCA 1992); Yanes v. State, 877 So.2d 25, 27 (Fla. 5th DCA 2004); Roberts v. State, 732 So.2d 1127, 1128 (Fla. 4th DCA 1999); State v. Carrillo, 506 So.2d 495, 496-97 (Fla. 5th DCA 1987).


author: RAY, J.

text:
    Merck and Ella SMITH, Appellants, v. Peter SYLVESTER and The Florida Department of Environmental Protection, Appellees.
    No. 1D11-3605.
    District Court of Appeal of Florida, First District.
    March 12, 2012.

      M.B. Adelson, IV, Law Offices of M.B. Adelson IV, P.A., Tallahassee, for Appellants.
    Thomas M. Beason, General Counsel, and Brynna J. Ross, Senior Assistant General Counsel, of Florida Department of Environmental Protection, Tallahassee, for Appellees.
   RAY, J.

Merck and Ella Smith, Appellants, seek review of a final order of the Department of Environmental Protection (DEP), which dismissed their petition for an administrative hearing as facially insufficient. The final dismissal was a result of DEP’s determination that Appellants’ motion for an extension of time to file an amended petition was untimely. We reverse because DEP failed to apply the five-day extension of time provided in Florida Administrative Code Rule 28-106.103.

DEP dismissed Appellants’ timely petition for an administrative hearing without prejudice to their opportunity to file an amended petition. According to the deadline DEP established in the order of dismissal, the amended petition was due within fifteen days after the date set forth in the certificate of service. The date set forth in the certificate of service is April 26, 2011. On May 13, 2011, Appellants filed a motion for an extension of time, requesting an additional ten days to amend their petition. DEP deemed Appellants’ motion untimely, concluding that it was not received within the time allowed for filing the amended petition. DEP rejected Appellants’ argument that their amended petition was not due until May 16, 2011, by virtue of the five-day extension of time set forth in Rule 28-106.103. Consequently, having declined to consider the merits of Appellants’ request for an extension of time, DEP issued a final order dismissing Appellants’ petition.

We review DEP’s construction of Rule 28-106.103 de novo. See McQuade v. Fla. Dep’t of Corrs., 51 So.3d 489, 492 (Fla. 1st DCA 2010) (noting that if a statute is outside an agency’s area of expertise, courts review the agency’s interpretation of the statute de novo); see also § 120.68(7)(d), Fla. Stat. (2011) (requiring reversal where an appellate court determines that an agency “has erroneously interpreted a provision of law and [that] a correct interpretation compels a particular action”). This review is guided by the principle that administrative rules must be interpreted according to their plain language whenever possible. See Grueiro v. Liberty Mailing, Inc., 43 So.3d 826, 827-28 (Fla. 1st DCA 2010). The pertinent language of the rule at issue is as follows:

In computing any period of time allowed by this chapter, by order of a presiding officer, or by any applicable statute, the day of the act from which the period of time begins to run shall not be included.... [F]ive days shall be added to the time limits when service has been made by regular U.S. mail.... No additional time shall be added ... when the period of time begins pursuant to a type of notice described in Rule 28-106.111, F.A.C.

Fla. Admin. Code R. 28-106.1Ó3. From the outset, this rule signals that it broadly applies when “computing any period of time allowed by” Chapter 28 of the Florida Administrative Code, by order of a presiding officer, or by any applicable statute. It goes on to require that a five-day extension of time be added to any of these time limits “when service has been made by regular U.S. mail.” This plain language indicates that the extension of time applies when service of a document is relevant to the computation of a time period.

DEP argues that the five-day extension of time is inapplicable to the instant case because its order established a certain deadline for the filing of the amended petition, by reference to the date in the certificate of service. For support, DEP cites case law construing the five-day extension provisions of Florida Rule of Civil Procedure 1.090(e) and Florida Rule of Appellate Procedure 9.420(d). Rule 1.090(e) states, “When a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon that party and the notice or paper is served upon that party by mail, 5 days shall be added to the prescribed period.” Similarly, Rule 9.420(e) provides, “If a party, court reporter, or clerk is required or permitted to do an act within some prescribed time after service of a document, and the document is served by mail, 5 days shall be added to the prescribed period.” Under these rules, when an order sets a date certain, even by reference to a specified number of days from a date noted in the order, there is no automatic five-day extension. Gillespie v. City of Destin, 946 So.2d 1195, 1198 (Fla. 1st DCA 2006) (holding that the five-day extension under Rule 9.420(e) does not apply when a court order provides that a document is due within ten days of the date of the order); Horvath v. Horvath, 893 So.2d 649, 651 (Fla. 4th DCA 2005) (reaching the same conclusion under Rule 1.090(e) where the court directed the parties to respond to an order within ten days). Rather, the extension of time applies only when the “time period for doing an act is commenced by the service of a preceding document and the preceding document is served by mail.” Hightower v. Berry, 490 So.2d 1029, 1030 (Fla. 1st DCA 1986).

If Rule 28-106.103 operated in the same manner as the civil and appellate rules, we would agree with DEP that the five-day extension is not applicable. However, a significant difference exists between the language of the civil and appellate rules and the administrative rule at issue. Although Rules 1.090(e) and 9.420(e) expressly limit the availability of the five-day extension to situations where a party is required to do some act within a prescribed period after service of a document, Rule 28-106.103 contains no such limiting language. Due to this difference, we conclude that the case law construing the civil and appellate mailbox rules does not apply to a proper construction of Rule 28-106.103. Under an independent consideration of the plain language of the administrative rule, we hold that, with certain exceptions identified in the rule, the five-day extension of time applies when an administrative agency communicates a discretionary deadline by regular U.S. mail and the deadline must be computed by reference to a period of time.

DEP contends that, even if the five-day extension of time would otherwise apply, it does not apply to the deadline at issue because the rule prohibits the addition of time “when the period of time begins pursuant to a type of notice described in Rule 28-106.111, F.A.C.” Fla. Admin. Code R. 28-106.103. From DEP’s perspective, this language indicates that the five-day extension does not apply to the filing of an amended petition for administrative hearing. We disagree. The period of time at issue here did not begin to run pursuant to a type of notice described in Florida Administrative Code Rule 28-106.111; it began to run according to a schedule DEP established pursuant to its discretionary authority under section 120.569(2)(c), Florida Statutes (2010). Because this period of time was communicated in a document served by regular U.S. mail, DEP erred in failing to add the automatic five-day extension to it. Accordingly, we reverse and remand for consideration of Appellants’ motion for extension of time.

REVERSED and REMANDED.

BENTON, C.J., and WETHERELL, J„ concur.

       We also note that DEP failed to appreciate the extent of its discretion. DEP argues that it had no choice but to dismiss Appellants’ petition. However, as an exception to the Uniform Rules of Procedure, DEP has the following expansive authority regarding the enlargement of time:
      For good cause shown, the Secretary of the Department (or the Secretary's designee) may grant an enlargement of time for the doing of any act required or allowed to be done under an order of the Department ..., if the request for such enlargement is made before the expiration of the period to be enlarged, or may allow the act to be done even if the period has expired, upon motion showing that the failure to act was the result of excusable neglect.

      Fla. Admin. Code R. 62-110.106(4) (emphasis added).


author: VAN NORTWICK, J.

text:
    Stanley JONES, Appellant, v. ROYALTY FOODS, INC. and Gallagher Bassett Services, Appellees.
    No. 1D11-1468.
    District Court of Appeal of Florida, First District.
    March 12, 2012.

      Roland P. Tan, Jr., Orlando, for Appellant.
    L. Barry Keyfetz of L. Barry Keyfetz, P.A., Miami, for Florida Workers Advocates and the Workers Injury Law & Advocacy Group, Amicus Curiae in support of Appellant.
    Kelli B. Hastings and Geoffrey Bichler of Bichler, Clelland, Oliver, Kelley, Hastings, Longo, Spears & Parrish, PLLC, Maitland, for the Fraternal Order of Police, Amicus Curiae in support of Appellant.
    William H. Roger and Gregory D. White of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appel-lees.
   VAN NORTWICK, J.

In this workers’ compensation appeal, Stanley Jones, claimant, argues that the Judge of Compensation Claims (JCC) erred in dismissing his petitions for benefits as a sanction for nonpayment of an earlier award of prevailing party costs to Royal Foods, Inc., and Gallagher Bassett Services (jointly the Employer/Carrier). Because the JCC did not find that the claimant’s conduct was willful, deliberate or contumacious, we agree and reverse.

Background

On February 11, 2008, claimant sustained a compensable injury to his left shoulder. The Employer/Carrier provided medical treatment for the left shoulder injury and paid compensation benefits. On November 5, 2009, claimant filed a petition for benefits seeking treatment for his right shoulder. The Employer/Carrier denied the claim, alleging the right shoulder condition was not causally related to the February 2008 workplace accident.

Following a hearing on the November 2009 petition, the JCC denied the claim, finding the right shoulder condition not causally related to the workplace accident. The JCC also ordered claimant to pay the costs incurred by the Employer/Carrier in its defense of the right shoulder claim. On November 5, 2010, the JCC rendered an order on the Employer/Carrier’s motion to tax costs, directing claimant to reimburse the Employer/Carrier costs totaling $7,162.21.

On August 5, 2010, and September 8, 2010, claimant filed new petitions for benefits seeking medical treatment for his com-pensable left shoulder condition. On January 3, 2011, the Employer/Carrier filed a motion to dismiss all pending petitions for benefits, citing as authority section 440.24(4), Florida Statutes (2007). At the March 7, 2011, hearing on that motion, claimant testified he had not worked since February 11, 2008, was homeless, and did not have the ability to pay the taxed costs.

In the March 10, 2011, order, the order under review at this time, the JCC found that claimant was indigent, unemployed, and homeless. Further, the JCC found: “[T]he claimant is not willfully refusing to comply with the Order Taxing costs. Rather, he simply does not have the financial ability to pay the outstanding costs.” Notwithstanding the finding that claimant was not “willfully” refusing to comply with the order, the JCC exercised his discretion under section 440.24(4) and granted the motion to dismiss until claimant was able to pay the outstanding cost judgment, and dismissed the pending petitions.

Analysis

Section 440.24(4) provides in relevant part: “In any case wherein the employee fails to comply with any order of a judge of compensation claims within 10 days after such order becomes final, the judge of compensation claims may dismiss the claim or suspend payments due under said claim until the employee complies with such order.” This court has consistently held that in exercising his or her discretion, the JCC may not dismiss a petition for benefits absent a specific finding that a party or its attorney has willfully refused to comply with an order. See Hill v. Greyhound Lines, Inc., 988 So.2d 1250, 1252 (Fla. 1st DCA 2008) (reversing JCC’s dismissal of petitions based on claimant’s violation of section 440.25(3), Florida Statutes (2004), confidentiality privilege); Martinez v. Collier County Pub. Schs., 804 So.2d 559, 560 (Fla. 1st DCA 2002) (reversing JCC’s dismissal based on counsel’s failure to personally appear at pretrial conference, noting “JCC’s order does not contain the required finding that counsel’s failure to appear resulted from a willful disregard of the JCC’s authority”); Queen v. Adams Mark Hotel, 728 So.2d 804, 805 (Fla. 1st DCA 1999) (reversing dismissal based on claimant’s failure to appear at two depositions and failure to comply with order to make himself available for deposition because “record is devoid of any findings that the claimant’s failure to attend the depositions or make himself available for a deposition was willful, deliberate or contumacious”). We find no reason not to apply the same rule to dismissals pursuant to section 440.24(4). Accordingly, we hold that a JCC who implements section 440.24(4), must specifically find that the offending party’s “conduct was willful, deliberate or contumacious.” Queen, 728 So.2d at 805.

Here, the JCC specifically found claimant’s failure to comply with the order to pay costs was not willful and the record supports that finding. Accordingly, we REVERSE the JCC’s dismissal of claimant’s 2010 petitions for benefits and REMAND this matter for proceedings consistent with this opinion.

LEWIS and SWANSON, JJ., concur.

      . Claimant and amici curiae also argue that, to the extent section 440.24(4), Florida Statutes (2007), authorizes the dismissal of petitions for benefits where the claimant has failed to pay a cost order solely because of claimant's indigency, the statute constitutes an unconstitutional denial of the right of access to courts under Article I, section 21, of the Florida Constitution. Because of our holding here, we do not address this constitutional issue.


text:
    Deneal BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1849.
    District Court of Appeal of Florida, Second District.
    March 14, 2012.
    James Marion Moorman, Public Defender, and Gonzalo Alberto Gayoso, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Affirmed without prejudice to any right Deneal Brown might have to file a motion for postconviction relief.

ALTENBERND, KELLY, and CRENSHAW, JJ., Concur.


author: PER CURIAM. BENTON, C.J.,

text:
    DEPARTMENT OF REVENUE o/b/o Chianti L. Taylor, Appellant, v. Jude ALUSCAR, Appellee.
    No. 1D11-3121.
    District Court of Appeal of Florida, First District.
    March 14, 2012.
    Pam Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellant.

      Jude Aluscar, pro se, Appellee.
   PER CURIAM.

The Department of Revenue (“Department”), on behalf of Chianti L. Taylor, appeals a Final Administrative Support Order arguing that the Administrative Law Judge (“ALJ”) erred in departing from the child support guidelines based on a visitation arrangement not contained in a court-approved or court-ordered parenting plan. We reverse based on this court’s recent decision in Department of Revenue v. Daly, 74 So.3d 165 (Fla. 1st DCA 2011).

Section 61.30(ll)(a), Florida Statutes (2011), permits deviation from the child support guidelines and enumerates the equitable factors a court or an ALJ may consider. The two pertinent to this appeal — contained in subsections (ll)(a)10 and (ll)(a)ll — are:

10. The particular parenting plan, such as where the child spends a significant amount of the time, but less than 20 percent of the overnights, with one parent, thereby reducing the financial expenditures incurred by the other parent; or the refusal of a parent to become involved in the activities of the child.
11. Any other adjustment that is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt. Such expense or debt may include, but is not limited to, a reasonable and necessary expense or debt that the parties jointly incurred during the marriage.

The parents in this case have an informal visitation schedule but no court-approved parenting plan. Noting this, the ALJ relied on subsection (ll)(a)ll, known colloquially as the “catch-all” provision, to depart downward from the child support guidelines in setting the appellee’s monthly support obligation.

In Daly, this court reversed a similar downward deviation and held that on the matter of time-sharing, section 61.30(ll)(a) only permits deviation based on a court-approved parenting plan with a time-sharing arrangement, and that the “Any other adjustment” language in the catch-all provision does not permit deviation based on an informal visitation arrangement between the parents. Id. at 167-68. The ALJ did not have the benefit of the Daly decision when entering the support order now on review. Therefore, we reverse the order and remand for further proceedings consistent with Daly.

REVERSED and REMANDED.

DAVIS and MARSTILLER, JJ„ concur.

BENTON, C.J., concurs with opinion.

BENTON, C.J.,

concurring.

If we were writing on a clean slate I would vote to affirm, and to approve the ALJ’s interpretation of section 61.30(ll)(a)ll, Florida Statutes (2011), in the present case.


text:
    Stephen J. BYERS, Appellant, v. FIA CARD SERVICES, N.A., Appellee.
    No. 4D11-2807.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2012.

      Stephen J. Byers, Delray Beach, pro se.
    Jonathan P. Hempfling of Marcadis Singer, P.A., Tampa, for appellee.
   PER CURIAM.

Appellant, Stephen Byers, appeals from the trial court’s order denying his motion to quash service of process by FIA Card Services, N.A. (“FIA”). He argues that the trial court erred in finding that he waived his right to challenge the sufficiency of service of process by filing a motion for extension of time. We agree.

After the complaint against Byers was filed by FIA, Byers filed a pro se motion for extension of time to respond to the complaint which was agreed to by FIA and then granted by the trial court. Within the time granted by the extension, Byers filed his motion to quash service stating therein that it was by special appearance. He asserted reasons why he did not receive proper service of process. Byers also filed an amended motion to quash adding an additional basis for granting the motion. The trial court denied the motion to quash holding that Byers waived his right to challenge service by failing to file a limited appearance and by filing pleadings in this matter. The trial court did not address the merits of Byers’s motions.

It is well established that “[i]f a party takes some step in the proceedings which amounts to a submission to the court’s jurisdiction, then it is deemed that the party waived his right to challenge the court’s jurisdiction regardless of the party’s intent not to concede jurisdiction.” Solmo v. Friedman, 909 So.2d 560, 564 (Fla. 4th DCA 2005) (quoting Cumberland Software, Inc. v. Great Am. Mortg. Corp., 507 So.2d 794, 795 (Fla. 4th DCA 1987)). “If a party does not challenge personal jurisdiction until after a general appearance in the case, the party has waived the right to contest personal jurisdiction.” Id. at 564 (citing Evans v. Thornton, 898 So.2d 151 (Fla. 4th DCA 2005)). “Active participation in the proceedings in the trial court, especially without objecting to jurisdiction due to the lack of service of process, constitutes a submission to the court’s jurisdiction and a waiver of any objection.” Id. at 564 (citing Bush v. Schiavo, 871 So.2d 1012, 1014 (Fla. 2d DCA 2004)).

In Barrios v. Sunshine State Bank, 456 So.2d 590 (Fla. 3d DCA 1984), the Third District addressed whether a motion for extension of time results in a waiver. The defendant, Barrios, was sued by the bank. He filed a motion for enlargement of time within which to answer or otherwise respond to the complaint. Thereafter, Barrios moved to dismiss the complaint, contending the court lacked personal jurisdiction over him due to a failure of service of process and insufficient service of process. The bank argued that by virtue of the motion for enlargement of time, Barrios consented to jurisdiction. The trial court denied Barrios’s motion to dismiss and he appealed. The issue presented to the district court was “whether the filing by Barrios’ attorney of a Motion for Enlargement of Time constituted a general appearance and hence a waiver of Barrios’ defense of lack of personal jurisdiction and insufficiency of service of process.” Id. at 590. The Third District held that it was not a general appearance nor a waiver, stating that the motion

is a mere technical piece of paper and does not constitute a general appearance by Barrios’ attorney reflecting submission to jurisdiction and waiver of defense, nor could a general appearance be presumed by such motion which did not go to the merits of the case.

Id. at 590-91 (citations omitted).

Because Byers’s motion for extension of time did not go to the merits of the case, he did not submit himself to the jurisdiction of the court or waive his defense of lack of jurisdiction for failure of service of process. We reverse and remand to the trial court to address the merits of Byers’s motion and amended motion to quash. .

Reversed and Remanded.

POLEN, TAYLOR and HAZOURI, JJ., concur.


text:
    Ira W. STILL, III, Esq., Petitioner, v. JUSTICE ADMINISTRATIVE COMMISSION, Respondent.
    No. 4D12-493.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2012.

      Beverly A. Pohl of Broad and Cassel, Fort Lauderdale, and Ira W. Still, III, Coral Springs, for petitioner.
    Ana Cristina Martinez, General Counsel, and Christian D. Lake, Assistant General Counsel, Tallahassee, for respondent.
   PER CURIAM.

Petitioner Ira W. Still, III, seeks certio-rari review of two trial court orders limiting his attorney’s fees for representation of the same defendant in two separate Broward Circuit Court criminal prosecutions. The 2008 case was a prosecution for armed burglary of a conveyance and aggravated battery with a deadly weapon. The 2009 case was a prosecution for attempted first degree murder, armed kidnapping and tampering with a witness. After trial in the 2008 case, the defendant was acquitted. In the 2009 case, one charge was dismissed and the others resulted in a not guilty verdict. Petitioner sought $16,385 in fees in his amended fee application in the 2008 case, and $95,872.50 in his amended fee application for the 2009 case.

At the evidentiary hearing on his motion to exceed the statutory fee limits pursuant to section 27.5304(12), Florida Statutes, petitioner presented expert testimony that the statutory limit on fees would be totally inadequate and confiscatory in these two cases. Justice Administrative Commission (JAC) counsel objected only on the grounds that the fees requested exceeded the statutory flat fee limit. The judge expressed concern at this hearing about whether the State of Florida could afford to pay the fees sought given the economy.

The trial court awarded $5,000 in the 2008 case and $15,000 in the 2009 case. It acknowledged in the written order awarding fees in the 2008 case that trial had taken four days and required extensive preparation, requiring counsel to clear much of his calendar and devote his time to preparation of the case due to its age. The second order provided that trial had taken eleven days and required extensive preparation, involving novel issues of cell phone technology and Williams rule evidence. Again, counsel had to clear his calendar to prepare due to the age of the case. In both orders, the court acknowledged that the statutory flat fee schedule was inadequate compensation.

Petitioner claims that the amounts actually awarded resulted in compensation at the rate of $13 per hour for his professional services. He argues that the awards were confiscatory and that the court failed to apply the correct analysis, basing its decision instead on the State’s ability to pay the fees sought given difficult economic times.

The JAC filed a response shortly after this petition was filed, acknowledging that the trial court orders constituted a departure from the essential requirements of law based on consideration of matters beyond the scope of section 27.5304(12). The response acknowledges that under this section, the trial court is required to award a reasonable fee which is not confiscatory, pursuant to the terms of the statute and the analysis set forth in Makemson v. Martin County, 491 So.2d 1109 (Fla.1986). That case held that trial courts are authorized to depart from the statutory fee guidelines in extraordinary and unusual cases when necessary to ensure that counsels representing indigent criminal defendants are not compensated in amounts which are confiscatory of their time and efforts. See also White v. Bd. of Cnty. Comm’rs of Pinellas Cnty., 537 So.2d 1376 (Fla.1989); Zelman v. Justice Admin. Comm’n, 78 So.3d 105, (Fla. 1st DCA 2012).

While the trial court’s concerns as to the State’s financial condition were obviously well intended, it must be recognized that matters of appropriation and adequacy of state funds are legislative functions and not judicial. It would be a violation of the separation of powers doctrine for trial courts to address whether adequate state funding is available to discharge a statutory provision authorizing payment of attorney’s fees, such as here. Art. II, § 3, Fla. Const. Cf. Chiles v. Children A, B, C, D, E, & F, 589 So.2d 260 (Fla.1991).

We agree with petitioner and the JAC that the trial court considered matters beyond the scope of section 27.5304(12), Florida Statutes, and that it departed from the essential requirements of law in doing so. Accordingly, we grant the petition, quash the fee awards in the two cases and remand for reconsideration in light of the statute and principles of Makemson and its progeny.

Petition Granted.

WARNER, POLEN and DAMOORGIAN, JJ., concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).


author: EVANDER, J.

text:
    J.G., Mother of K.A., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D11-4592.
    District Court of Appeal of Florida, Fifth District.
    March 15, 2012.

      Mark A. Skipper, Office of the Criminal Conflict and Civil Regional Counsel Fifth District, Orlando, and Jeffrey Deen, Regional Counsel Office of the Criminal Conflict and Civil Regional Counsel, Cassel-berry, for Appellant.
    Rosemarie Farrell, Appellate Counsel, Children’s Legal Services, Department of Children and Families, Orlando, for Appel-lee.
    Eurilynne A. Williams, Senior Program Attorney for the Guardian ad Litem Program, Sanford, and Laura E. Lawson, Appellate Counsel, Guardian ad Litem Program, Tavares, for Guardian ad Litem Program.
   EVANDER, J.

J.G. (the mother) appeals from an order that adjudicated her minor child, K.A., dependent, awarded sole parental responsibility of the child to K.A.’s father, and terminated the court’s jurisdiction over the child. Because the procedure employed by the trial court violated the mother’s due process rights, we reverse.

At a shelter hearing held on April 1, 2011, the trial court removed the minor child from the mother’s custody and placed him in the temporary custody of his father under the supervision of the Department of Children and Families (DCF). Subsequently, DCF filed a Verified Petition for Dependency alleging, inter alia, that the mother had “exposed her child to controlled substances by her extensive, abusive, and chronic use of controlled substances which has demonstrably adversely affected her child.”

At her May 31, 2011 arraignment, the mother entered a plea denying the allegations of the petition for dependency. On June 21, 2011, DCF filed a proposed case plan with the court. The proposed case plan set forth various tasks to be completed by the mother, including a requirement to submit to random drug tests. Significantly, the proposed case plan had a goal of reunification. Although the child had not been adjudicated dependent, the mother began to perform the tasks set forth in the proposed case plan.

On November 8, 2011, the mother appeared before the trial court to change her plea from “denial” to “consent.” The consent plea form executed by the mother included the following language:

I understand that, after acceptance of this Consent, the Court will order that the Department of Children and Families negotiate a case plan with me and I am entitled to the aid of my attorney and any other person I choose in negotiating the contents of that case plan. The contents of the case plan will be reasonably calculated to alleviate conditions which caused this dependency action. The case plan will set forth tasks for each party to this matter to complete with a goal of reunification of the child or children with me and that, upon my completion of the tasks to be performed under the case plan, the child or children will be returned to me. If there is no agreement on the tasks to be performed under the case plan, the Court will be the ultimate decision maker on which tasks are included in the case plan. The Court, at all times, has the power to amend the case plan to include or delete certain requirements of the case plan as it deems necessary in the best interest of the child or children. I understand that the Department of Children and Families has the responsibility to aid me in the completion of the tasks set forth in the case plan. I further understand that if I fail to comply with the case plan, the Court may end all of my right to the child or children in a termination of parental rights proceeding.

(Emphasis added).

The trial court placed the mother under oath and made appropriate inquiry to confirm, inter alia, that: (1) she had received and understood the consent form, (2) she had received a proposed case plan and had the ability to complete same, (3) she was entering her plea voluntarily, and (4) she was aware that by entering a consent plea she was waiving her rights to contest the allegations of the petition for dependency.

After the trial court accepted the mother’s consent plea, DCF requested the trial court adjudicate the child dependent and accept the proposed case plan with its goal of reunification. The guardian ad litem joined in DCF’s recommendation. However, the father’s counsel argued that the trial court should award sole custody of the child to the father and close the case. The mother’s counsel objected to the father’s request and advised the trial court that the mother had already completed various tasks set forth in the proposed case plan and would soon be filing a motion for reunification.

The trial court determined that prior to rendering its decision, it would have the mother “drug-tested.” The court ordered the mother to immediately submit to a urinalysis and took a brief recess. When the hearing reconvened approximately one-half hour later, the trial court advised the parties that the mother had tested positive for benzodiazepine. The trial court denied a request to have the urine sample “sent out for confirmation” and did not afford the mother an opportunity to withdraw her plea. Without further testimony or argument, the court rendered the order that is the subject of this appeal.

The mother acknowledges that pursuant to section 39.521(3)(b), Florida Statutes (2011), a trial court has the authority to enter a disposition order closing the dependency case after awarding sole parental responsibility of the dependent child to a non-offending parent where such placement would not endanger the safety, well-being, or physical, mental, or emotional health of the child:

(3) When any child is adjudicated by a court to be dependent, the court shall determine the appropriate placement for the child as follows:
(b) If there is a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the jurisdiction of the court who desires to assume custody of the child, the court shall place the child with that parent upon completion of a home study, unless the court finds that such placement would endanger the safety, well-being, or physical, mental, or emotional health of the child. Any party with knowledge of the facts may present to the court evidence regarding whether the placement will endanger the safety, well-being, or physical, mental, or emotional health of the child. If the court places the child with such parent, it may do either of the following:
1. Order that the parent assume sole custodial responsibilities for the child. The court may also provide for reasonable visitation by the noncustodial parent. The court may then terminate its jurisdiction over the child.
2. Order that the parent assume custody subject to the jurisdiction of the circuit court hearing dependency matters. The court may order that reunification services be provided to the parent from whom the child has been removed, that services be provided solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court jurisdiction, or that services be provided to both parents, in which case the court shall determine at every review hearing which parent, if either, shall have custody of the child. The standard for changing custody of the child from one parent to another or to a relative or another adult approved by the court shall be the best interest of the child.

(Emphasis added).

Nonetheless, the mother insists that her due process rights were violated because she was not put on notice that a permanent change of custody to the father would be addressed at the disposition hearing. She argues that “[i]n all likelihood [she] would not have entered a consent to the dependency if she had known that the case was going to be closed at disposition with the father having custody.” The mother’s argument has merit.

As a general rule, a party who receives notice of a disposition hearing will be found to have notice that the trial court may consider any and all disposition options authorized by law. However, in the instant case, the consent plea form recited that the plea was entered based on the understanding that the trial court would accept a case plan having a goal of reunification. There was no suggestion during the plea colloquy that the trial court would consider any other disposition option. While the mother was on notice that the trial court had the authority to reject the proposed case plan, she was not on notice that her consent plea could result in the immediate and permanent placement of the child with the father.

We would further observe that Florida Rule of Juvenile Procedure 8.325(c) requires a trial court to ensure that any admission or consent to a finding of dependency is made voluntarily and with a full understanding of the possible consequences of the admission or consent. See In re B.G., 884 So.2d 357 (Fla. 2d DCA 2004) (trial court erred in enforcing mediated settlement agreement between DCF and parent where record reflected that parent did not understand consequences of consent plea called for by agreement and court failed to make inquiry as to whether consent plea was made voluntarily and with full understanding of possible consequences of plea). Here, the transcript of the plea hearing reflects that the trial court did not make the mother aware that if she proceeded with her consent plea, the trial court could enter a disposition order that was contrary to the recitals set forth in her plea form.

We quash the Order of Adjudication, Disposition, Visitation and Custody dated December 8, 2011, nunc pro tunc, November 8, 2011, and remand for proceedings consistent with this opinion.

REVERSED and REMANDED.

MONACO and COHEN, JJ., concur.

      . Although apparently executed by the mother on April 14, 2011, the consent plea form was not filed with the court until November 8, 2011.

      . The record reflects that as an apparent result of the mother’s demeanor at the hearing, the trial court developed a concern as to whether she was under the influence of a controlled substance.

      . Admission of or Consent to Dependency.
      The parent or legal custodian may admit or consent to a finding of dependency. The court shall determine that any admission or consent to a finding of dependency is made voluntarily and with a full understanding of the nature of the allegations and the possible consequences of the admission or consent, and that the parent has been advised of the right to be represented by counsel. The court shall incorporate these findings into its order in addition to findings of fact specifying the act or acts causing dependency, by whom committed, and facts on which the findings are based. If the answer admits the allegations of the petition it shall constitute consent to a predisposition study.
      Fla. R. Juv. P. 8.325(c).


author: NORTHCUTT, Judge.

text:
    Anthony D’ARCANGELO, Petitioner, v. STATE of Florida, Respondent.
    No. 2D10-1375.
    District Court of Appeal of Florida, Second District.
    March 16, 2012.

      Michael J. Minerva and Melissa Montle of Innocence Project of Florida, Inc., Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Respondent.
   ON MOTION FOR REHEARING

NORTHCUTT, Judge.

Upon consideration of Respondent’s motion for clarification and/or rehearing, rehearing is granted and this court’s opinion dated April 13, 2011, is withdrawn. The attached opinion is substituted therefor.

No further motions for rehearing or clarification will be entertained.

In this unusual case, Anthony D’Arcan-gelo seeks certiorari review of the circuit court’s order denying his motion to determine his competency and to stay proceedings on his motion for postconviction relief. We previously granted D’Arcangelo’s petition, but the State filed a timely motion for rehearing in which it made a concession that renders D’Arcangelo’s petition moot. For that reason, we withdraw our previous opinion and we now deny D’Arcangelo’s petition.

A. Facts Underlying D’Arcangelo’s Motion for Postconviction Relief.

In 1982, a jury in Tampa convicted D’Arcangelo of two counts of first-degree murder. The State endeavored to have him sentenced to death, but the penalty-phase jurors split evenly on the question. The trial court concluded that the appropriate punishment was life imprisonment, and it imposed that sentence.

At D’Arcangelo’s guilt-phase trial, the State had presented testimony from an FBI agent that he performed a comparative bullet lead analysis (CBLA), comparing bullets recovered from the crime scene with unspent bullets discovered at D’Ar-cangelo’s residence. The agent found an association between the bullets from the two locations. He testified that “the bullets came from the same box of ammunition or another box of ammunition having the same composition.”

Many years later, in August 2008, an FBI laboratory director sent a letter to the Thirteenth Circuit State Attorney advising that the agent’s expert trial testimony overstated the significance of his conclusions. Based on this newly discovered information, D’Arcangelo filed a pro se motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Some months later, he obtained legal counsel, who filed an amended motion.

D’Arcangelo claimed that the CBLA testimony was the only evidence that physically linked him to the crime and that, at the time of trial, neither he nor his attorney could have discovered that this evidence was unreliable. He asserted that if the discredited evidence had not been admitted, he likely would have been acquitted. D’Arcangelo asked the postconviction court to vacate his conviction and sentence and to grant him a new trial. Cf. Murphy v. State, 24 So.3d 1220 (Fla. 2d DCA 2009) (holding allegations in the prisoner’s rule 3.850 motion — that he recently discovered the CBLA evidence presented at his 1995 trial had been discredited and that he would probably have been acquitted if the evidence had not been introduced — could support relief under rule 3.850(b)(1)); Smith v. State, 23 So.3d 1277 (Fla. 2d DCA 2010) (same).

B. D’Arcangelo’s Competency and its Effect on the Postconviction Proceeding.

In late 2009, D’Arcangelo’s attorney began to suspect that her client was incompetent, and she hired an expert to examine him. The expert confirmed counsel’s suspicions. Counsel then filed a simple motion seeking a stay of the rule 3.850 proceedings until resolution of D’Arcangelo’s mental status. The motion asserted that there was a substantial issue regarding D’Arcangelo’s competence and that due process required that he be competent during the postconviction process. The court denied the motion, relying on Carter v. State, 706 So.2d 873 (Fla.1997), for the proposition that in postconviction proceedings a defendant’s competence is necessary only when a factual matter is at issue or when the development of such an issue would require the defendant’s input. In its ruling, the court limited its focus to the question raised by D’Arcangelo’s rule 3.850 motion, i.e., whether the newly discovered evidence discrediting the CBLA analysis would have resulted in a different outcome at trial, and it determined that the motion presented a legal issue, not a factual one.

Counsel thereafter filed another motion again seeking a stay and also requesting a competency hearing. But this time the motion described the quandary that D’Ar-cangelo could face. The motion asserted that case law bearing on whether D’Arcan-gelo could be exposed to the death penalty after a retrial was not consistent. Compare Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981) (holding that a jury’s verdict of life imprisonment barred the possibility of the death penalty at a retrial); and Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984) (barring death penalty on retrial when the trial judge in first trial sentenced defendant to life), with Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003) (holding that a trial court’s discharge of the jury after it failed to reach a unanimous verdict and its entry of a life sentence did not bar the death penalty on retrial). Thus, the motion argued, D’Arcangelo had a factual decision to make: Should he proceed with his rule 3.850 motion and potentially expose himself to the death penalty? Or should he play it safe, withdraw his challenge concerning the CBLA testing, and spend the rest of his life in prison? The court again denied the motion.

D’Arcangelo filed a timely petition for a writ of certiorari seeking to quash the postconviction court’s order. See State v. Ayala, 604 So.2d 1275 (Fla. 4th DCA 1992). We stayed the proceedings on his motion for postconviction relief pending the disposition of the certiorari petition.

C. The Circuit Court’s Order.

We disagree with the circuit court’s reasoning behind its decision to deny D’Arcangelo’s motion. The circuit court relied on Carter, in which the supreme court established procedures addressing the incompetence of death-sentenced defendants in postconviction cases. See Carter, 706 So.2d at 876. Those procedures are now incorporated in Florida Rule of Criminal Procedure 3.851(g). It provides that a “death-sentenced prisoner pursuing collateral relief under this rule who is found by the court to be mentally incompetent shall not be proceeded against if there are factual matters at issue, the development or resolution of which require the prisoner’s input.” Fla. R.Crim. P. 3.851(g)(1). A competency hearing is required if “there are reasonable grounds to believe that a death-sentenced prisoner is incompetent to proceed and that factual matters are at issue.” Fla. R.Crim. P. 3.851(g)(3).

Carter is, indeed, instructive, but it does not directly control this case. Carter applies to incompetent death-sentenced prisoners only, as does rule 3.851. And as the Carter court noted, its purpose was to further society’s interest in the proper imposition of the death penalty while insuring a proper and timely resolution of post-conviction proceedings. 706 So.2d at 877. Rule 3.850, applicable in postconviction proceedings by prisoners who, like D’Ar-cangelo, are not sentenced to death, contains no incompetency procedures comparable to those set forth in rule 3.851.

Even so, we note that Florida jurisprudence has long held that every individual has a natural right to due process, which embodies a fundamental conception of fairness. See Jones v. State, 740 So.2d 520, 523 (Fla.1999). In Luckey v. State, 979 So.2d 353 (Fla. 5th DCA 2008), a case involving a prisoner not sentenced to death, the postconviction court denied a rule 3.850 claim even though the prisoner exhibited signs of incompetence at the evi-dentiary hearing on his claim. The Fifth District reversed the denial of the claim, noting that although Carter was limited to death-sentenced defendants, basic due process considerations such as notice and an opportunity to be heard required a post-conviction court to address a prisoner’s mental competence before proceeding with an evidentiary hearing. Id. at 356.

Luckey was consistent with Carter in one respect that is not as apparent in D’Arcangelo’s case: Luckey involved an evidentiary hearing on the factual issue of whether Luckey’s trial counsel had been ineffective by allegedly failing to warn him that he faced a term of life imprisonment as a prison releasee reoffender if he rejected the State’s fifteen-year plea offer. In other words, Luckey fell neatly on the “factual issue” side of the factual-legal dichotomy drawn by the Carter court when it extended to death-sentenced postconviction petitioners the right to be competent only in proceedings involving factual issues.

In D’Arcangelo’s petition for writ of cer-tiorari, his counsel maintained that the decision whether to further pursue his rule 3.850 petition and possibly expose himself to the death penalty was a factual issue for purposes of Carter. We are tempted to agree — such a question certainly would not present a legal issue to be decided by the postconviction court. But it is apparent that when outlining the right to be competent in capital postconviction proceedings, the Carter court had in mind factual matters “at issue,” i.e., fact issues to be determined by the postconviction court based on evidentiary presentations.

But even if D’Arcangelo’s dilemma does not fit squarely within the fact-at-issue limitation, there is reason to believe that the limitation would not, or should not, apply to his case. As mentioned, Carter was premised in part on the court’s goal of “furthering society’s interest in the proper imposition of the death sentence while at the same time promoting the timely commencement and resolution of postconviction proceedings.” Carter, 706 So.2d at 877. Here, society’s interest in carrying out the prisoner’s sentence is not a factor; D’Arcangelo was sentenced to life imprisonment, he has already begun serving that sentence, and he would continue serving that sentence during any delay in his post-conviction proceeding occasioned by a determination that he is incompetent.

For that reason, among others, it is unclear whether the Carter court would find that a prisoner in D’Arcangelo’s position has the right to be competent at this postconviction stage. The court did not directly address this issue in the context of a noncapital case, but we note that the Carter opinion cited favorably to State v. Debra A.E., 188 Wis.2d 111, 523 N.W.2d 727 (1994), a case that was similar to D’Ar-cangelo’s in that significant respect. Carter, 706 So.2d at 876. In Debra A.E., counsel for a noncapital postconviction relief petitioner requested a competency determination because he feared that his client was not competent to decide whether to proceed with her petition and possibly subject herself to a harsher, albeit noncapital, penalty. The Supreme Court of Wisconsin held that the petitioner was entitled to be competent in order to make that decision.

Competency is a contextualized concept; the meaning of competency in the context of legal proceedings changes according to the purpose for which the competency determination is made. Whether a person is competent depends on the mental capacity that the task at issue requires. One task required of defendants during postconviction relief is to make the decision to proceed with or forego relief.

523 N.W.2d at 732 (footnotes omitted). The court concluded that a defendant is incompetent to pursue postconviction relief “when he or she is unable to assist counsel or to make decisions committed by law to the defendant with a reasonable degree of rational understanding.” Id.

We acknowledge that the Carter court might not necessarily recognize a right of competency for any postconviction petitioner who might face a harsher penalty after a retrial. But the very existence of the Carter decision is testament to the court’s recognition that “death is different.” Crump v. State, 654 So.2d 545, 547 (Fla.1995) (citing State v. Dixon, 283 So.2d 1, 17 (Fla.1973)). Unlike the case of a capital defendant, who has nothing to lose by pursuing postconviction relief, a life-imprisoned defendant who might face the death penalty after a retrial would risk his life by going forward. This would not be merely a harsher punishment; it would be the harshest, irremediable penalty that our society can exact. We conclude that notions of due process and basic fairness— essential requirements of law — would require that a prisoner be competent when deciding whether to proceed on a course that might eventually cause him to be put to death.

D. This Court’s Decision to Exercise its Certiorari Jurisdiction.

Early in this proceeding, to assist us in determining whether to exercise our cer-tiorari jurisdiction, we directed the State to file an “unequivocal response” to the question of whether it would be barred from seeking the death penalty if D’Arcan-gelo were to be granted a new trial. The State advised that “[bjased upon the record, or lack, thereof, in this case, it is submitted that the State can go forward and seek the penalty on a retrial of this case.'

This response weighed heavily in our consideration of D’Arcangelo’s petition. Whatever might have been this court’s view of the law on that underlying issue, the State’s assertion that on retrial it would have the legal ability to seek D’Ar-cangelo’s death posed a risk to him, however slight, that had to be weighed when electing whether to proceed with his quest for postconviction relief. That calculation could not be made by the lower court or this one, or by D’Arcangelo’s attorney. Faced with the possibility that the State would attempt to put him to death, the decision whether to go forward had to be his alone.

In light of the State’s assertion that there was indeed such a possibility, we determined to exercise our jurisdiction. Based on the analysis set forth above, we concluded that D’Arcangelo had to be competent in order to decide whether to further pursue postconviction relief. We granted the petition and quashed the order denying D’Arcangelo’s motion for a competency determination.

E. The State’s Motion for Rehearing.

In its rehearing motion, the State changed its position. It now maintains that if D’Arcangelo is granted a new trial and is again convicted for the charged crimes, “death is no longer a permissible penalty in this case.” We agree.

Our conclusion in this regard follows a line of United States Supreme Court decisions beginning with Bullington, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270, decided the year before D’Arcangelo was convicted. In that case, the Court concluded that a capital sentencing scheme requiring the finder of fact to make specific findings in' support of a death sentence implicates the Double Jeopardy Clause of the Fifth Amendment.

At the time of Bullington’s offense, Missouri law provided that upon a defendant’s conviction of capital murder, the trial court was to conduct a “presentence hearing” before the jury. The jury was to consider evidence and argument regarding the existence of statutorily defined aggravating and mitigating factors and make a sentencing determination. A death sentence was required to be unanimous and to be supported by a . written designation of the aggravating circumstances the jury found to exist beyond a reasonable doubt. The jury’s determination was binding on the judge, except that if the jury could not within a reasonable time unanimously agree to a death sentence, the judge was required to impose a life sentence. Bullington, 451 U.S. at 434-35 n. 4, 101 S.Ct. 1852. Bullington’s first trial culminated in a jury verdict sentencing him to imprisonment for life without parole for fifty years.

The Supreme Court held that Bullington could not be subjected to the death penalty on retrial after his conviction was reversed due to errors in the composition of the jury. Although it was recognized in decisions such as North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), that generally there is no bar to imposing a harsher sentence at retrial after a defendant has successfully challenged his conviction, the Bullington Court held that the “clean slate” rationale is “inapplicable whenever a jury agrees or an appellate court decides that the prosecution has not proved its case” for imposing the death penalty. Bullington, 451 U.S. at 443, 101 S.Ct. 1852.

The procedure that resulted in the imposition of the sentence of life imprisonment upon petitioner Bullington at his first trial, however, differs significantly from those employed in any of the Court’s cases where the Double Jeopardy Clause has been held inapplicable to sentencing. The jury in this case was not given unbounded discretion to select an appropriate punishment from a wide range authorized by statute. Rather, a separate hearing was required and was held, and the jury was presented both a choice between two alternatives and standards to guide the making of that choice. Nor did the prosecution simply recommend what it felt to be an appropriate punishment. It undertook the burden of establishing certain facts beyond a reasonable doubt in its quest to obtain the harsher of the two alternative verdicts. The presentence hearing resembled and, indeed, in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence. It was itself a trial on the issue of punishment so precisely defined by the Missouri statutes.

Bullington, 451 U.S. at 438, 101 S.Ct. 1852. The Court agreed with the observation of a dissenter from the Missouri Supreme Court ruling under review in Bullington that the imposition of a life sentence after that defendant’s first trial meant that “ ‘the jury has already acquitted the defendant of whatever was necessary to impose the death sentence.’ ” 451 U.S. at 445, 101 S.Ct. 1852 (quoting State ex rel. Westfall v. Mason, 594 S.W.2d 908, 922 (Mo.1980) (Bardgett, C.J., dissenting)).

In Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984), the defendant was convicted of murder and armed robbery. Consistent with Arizona law, the trial judge — without a jury — then conducted a sentencing hearing at which he heard evidence and argument regarding statutory aggravating and mitigating factors. Finding that there were no aggravating circumstances justifying a death sentence, the judge imposed consecutive sentences of life without parole for twenty-five years for the murder and twenty-one years’ imprisonment for the robbery. The Arizona Supreme Court rejected the defendant’s appeal of the consecutive sentences, but on the State’s cross-appeal it held that the trial judge had misinterpreted one of the statutory aggravating factors. It set aside the life sentence and remanded for resentencing. On remand, the defendant was sentenced to death.

The Arizona Supreme Court reversed the death sentence, holding that the Double Jeopardy Clause prevented the defendant from being sentenced to death on remand. State v. Rumsey, 136 Ariz. 166, 665 P.2d 48 (1983). The United States Supreme Court agreed. It noted that the Arizona capital sentencing proceedings were akin to a trial for purposes of the Double Jeopardy Clause, regardless of the fact that the sentencer in Arizona was the judge instead of a jury.

The double jeopardy principle relevant to respondent’s case is the same as that invoked in Bullington: an acquittal on the merits by the sole decision maker in the proceeding is final and bars retrial on the same charge. Application of the Bullington principle renders respondent’s death sentence a violation of the Double Jeopardy Clause because respondent’s initial sentence of life imprisonment was undoubtedly an acquittal on the merits of the central issue in the proceeding — whether death was the appropriate punishment for respondent’s offense.

Rumsey, 467 U.S. at 211, 104 S.Ct. 2305. Further, the Court held that the result was not altered by the fact that when initially rejecting the death penalty the trial judge had relied on a misconstruction of a statutory aggravator. “Reliance on an error of law,” the Court wrote, “does not change the double jeopardy effects of a judgment that amounts to an acquittal on the merits.” Id.

Finally, we have examined Sattazahn, 587 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588. In that case, a Pennsylvania jury convicted the defendant of several offenses, including first-degree murder, and then heard evidence of aggravating and mitigating circumstances in a penalty-phase trial. Pennsylvania law required a verdict of death to be unanimous. Further, the trial court was authorized to discharge the jury if it became convinced that the jurors could not reach a unanimous agreement as to the sentence after further deliberation, in which case the court was required to impose a sentence of life imprisonment. In Sattazahn, the penalty-phase jury sent the judge a note advising that it was hopelessly deadlocked 9-3 in favor of a life sentence. The judge discharged the jury as hung and sentenced the defendant to life. After the defendant’s convictions were reversed because of errors in the jury instructions, he was retried and again convicted of first-degree murder. This time, he was sentenced to death.

The Sattazahn majority held that the imposition of the death sentence after the defendant’s retrial was not prohibited. The Court emphasized that it is not the imposition of a life sentence, as such, that raises a double jeopardy bar. Rather, double jeopardy arises upon the defendant’s acquittal of the factors that would justify a death sentence.

Petitioner here cannot establish that the jury or the court “acquitted” him during his first capital-sentencing proceeding. As to the jury: The verdict form returned by the foreman stated that the jury deadlocked 9-to-3 on whether to impose the death penalty; it made no findings with respect to the alleged aggravating circumstance. That result— or more appropriately, that non-result— cannot fairly be called an acquittal “based on findings sufficient to establish legal entitlement to the life sentence.” [Arizona v.] Rumsey, [467 U.S. 203,] 211 [, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984) ].

Sattazahn, 537 U.S. at 109, 123 S.Ct. 732. Neither did the trial court’s imposition of a life sentence acquit the defendant of the death penalty, the Court wrote. That sentence was mandated by law, not based on the resolution of factual matters, and therefore it did not establish an entitlement to a life sentence. Id. at 109-10, 123 S.Ct. 732.

Upon our consideration of the principles set forth in the foregoing cases, it is apparent to us that the life sentence imposed following D’Arcangelo’s sentencing proceeding operated as an acquittal of the factors that would have warranted a death sentence. Florida’s capital sentencing scheme did and does require a separate sentencing proceeding before the trial jury. § 921.141, Fla. Stat. (1981). At the penalty-phase trial, evidence may be presented regarding any matter relevant to the nature of the crime and the defendant’s character, including but not limited to the aggravating or mitigating circumstances specified in the statute. Id.

After hearing the evidence and deliberating, the penalty-phase jury is to render an “advisory sentence” based on its determination of the existence of sufficient statutory aggravating circumstances; the existence of sufficient mitigating circumstances that outweigh the aggravating circumstances found to exist; and, based on those considerations, whether the defendant should be sentenced to life imprisonment or death. § 921.141(2). Under the standard jury instruction adopted in 1981, penalty-phase jurors are instructed that aggravating circumstances must be found to exist beyond a reasonable doubt. See Fla. Std. Jury Instr. (Crim.) Penalty Proceedings-Capital Cases (rev. June 1981); The Florida Bar re: Standard Jury Instructions Criminal Cases, 477 So.2d 985, 988 (Fla.1985) (amending and quoting a portion of the 1981 Penalty Proceedings-Capital Cases instruction); Harich v. State, 437 So.2d 1082, 1086 (Fla.1983) (quoting a portion of the 1981 Penalty Proceedings-Capital Cases instruction). The jury’s decision need not be unanimous, but a recommendation for the death penalty must be agreed to by a majority. Thus, a tie vote operates to recommend a life sentence. See Fla. Std. Jury Instr. (Crim.) Penalty Proceedings-Capital Cases (rev. June 1981); Harich, 437 So.2d at 1086; Rose v. State, 425 So.2d 521, 524-25 (Fla.1982), disapproved on other grounds by Williams v. State, 488 So.2d 62 (Fla.1986).

As mentioned, the penalty-phase jury’s sentencing verdict is advisory. It is not binding on the trial court, which must separately weigh the aggravating and mitigating circumstances and then impose a sentence of life imprisonment or death. § 921.141(3). If the court imposes a death sentence, it must set forth specific written findings of fact regarding the statutory aggravating and mitigating factors as well as the records of the trial and sentencing proceedings. Id. Although the court is not bound by the jury’s advisory sentence, a recommendation for a life sentence must be given great deference. In order for the court to override an advisory sentence of life, the facts suggesting a death sentence must be so clear and convincing that virtually no reasonable person could differ. Tedder v. State, 322 So.2d 908, 910 (Fla.1975); see also Craig v. State, 510 So.2d 857, 868 (Fla.1987) (observing that even when based on a tie vote, a jury recommendation of life is entitled to great deference).

Thus it is clear that for purposes of applying double jeopardy under the Bull-ington and Rumsey principles, a penalty-phase proceeding in Florida is akin to a trial in which the State must prove its case for the death penalty, first to the jury and then to the trial court. The imposition of a life sentence following penalty proceedings is a determination that the State did not prove its case, and it is therefore an acquittal of the circumstances that would justify the death penalty. As such, it establishes the defendant’s entitlement to a life sentence for double jeopardy purposes. Indeed, the Florida Supreme Court has recognized that double jeopardy principles under both the Federal and Florida Constitutions apply to life sentences rendered in Florida’s capital sentencing proceedings. Wright v. State, 586 So.2d 1024, 1032 (Fla.1991); Brown v. State, 521 So.2d 110 (Fla.1988); see also Walls v. State, 641 So.2d 381, 386 n. 1 (Fla.1994).

In D’Arcangelo’s case, it makes no difference that the jury proceedings produced a tie vote. Unlike the situation in Sattazahn, penalty-phase jurors in Florida are not required to reach unanimous verdicts, and therefore they cannot be “hung.” As previously discussed, the D’Arcangelo jury’s tie vote constituted a recommendation for a life sentence.

Further unlike Sattazahn, in this case the jury’s failure to reach a consensus did not legally obligate the trial court to impose a particular sentence. Although the court was required to give great deference to the jury’s advisory sentence, it remained duty bound to separately weigh the aggravating and mitigating circumstances and to enter the appropriate sentence. The court’s imposition of a life sentence effectively “acquitted” D’Arcan-gelo of the death penalty. Even if that life sentence were for some reason legally erroneous, it created a double jeopardy bar to imposing the death penalty on D’Arcan-gelo in any future retrial. See Rumsey, 467 U.S. at 211, 104 S.Ct. 2305; see also Brown, 521 So.2d at 112 (holding that double jeopardy barred imposition of death sentence at defendant’s retrial after first trial judge had erroneously concluded that defendant was ineligible for death penalty, discharged jury at start of penalty-phase, and sentenced defendant to life imprisonment); Williams v. State, 595 So.2d 936 (Fla.1992) (holding life sentence imposed after trial judge erroneously allowed defendant to waive penalty-phase jury without State’s consent bars later imposition of death sentence).

E. Conclusion.

The State having revised its view and conceded that double jeopardy would bar the imposition of the death penalty on D’Arcangelo in- a future retrial, and this court having separately concluded as much, it appears that D’Arcangelo’s petition for writ of certiorari is moot. For that reason, we deny it.

Petition denied.

SILBERMAN, C.J., and DAVIS, J., Concur.

      . Arguably, the question of whether D'Arcan-gelo’s trial would have produced a different result if the CBLA evidence had not been admitted comes closer to the kind of factual issue contemplated in Carter.

      . Robert Bullington was the capital murder defendant whose retrial was at issue in Mason; he petitioned the United States Supreme Court for review of the Missouri Supreme Court's decision. Bullington v. Missouri, 449 U.S. 819, 101 S.Ct. 70, 66 L.Ed.2d 21 (1980).