author: EVANDER, J.

text:
    SPECTRUM INTERIORS, INC., et al., Appellants/Cross Appellees, v. EXTERIOR WALLS, INC., Appellee/Cross-Appellant.
    No. 5D10-1194.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2011.
    Rehearing Denied July 15, 2011.

      Robert E. Pershes and Scott J. Topolski, of Buckingham, Doolittle, & Burroughs, LLP., Boca Raton, for Appellants/Cross-Appellees.
    Donald Niesen and T.J. Frasier, of Niesen, Price, Worthy, Campo, Frasier & Bla-key, P.A., Gainesville, for Appellee/Cross-Appellant.
   EVANDER, J.

Spectrum Interiors, Inc. (“Spectrum”), Liberty Mutual Insurance Company (“Liberty”), and Federal Insurance Company (“Federal”) appeal from a final judgment for damages entered, after a retrial, in favor of Exterior Walls, Inc., (“EWI”). We affirm as to all issues raised by appellants, but reverse on EWI’s cross-appeal.

This case arose from disputes regarding a construction project located in Palm Coast, Florida. The general contractor on the project, R.J. Griffin, subcontracted with Spectrum to perform a major part of the construction work. Subsequently, Spectrum entered into a contract with EWI to perform stucco work.

After failing to receive full payment under its contract, EWI brought an action for breach of contract against Spectrum and for recovery on payment bonds against Liberty and Federal. The case proceeded to trial and, in accordance with the jury’s verdict, the trial court entered a judgment of $1,075,966.28 in favor of EWI against Spectrum, Liberty, and Federal. On appeal, this court affirmed in part and reversed in part. See Spectrum Interiors, Inc. v. Exterior Walls, Inc., 2 So.3d 1098 (Fla. 5th DCA 2009). We held that EWI was not entitled to recover damages incurred on or before September 30, 2003, because those damages had been assigned to Griffin by virtue of EWI’s execution of a partial waiver and release of claims. The other issues raised by Spectrum, Liberty, and Federal on the first appeal were found to be without merit. Spectrum Interiors, Inc., 2 So.3d at 1095 n. 1. The trial court was directed to hold a new trial on damages, with EWI’s recovery being limited to those damages incurred after September 30, 2003.

On remand, the case was tried without a jury. The trial court followed this court’s mandate and excluded those damages incurred by EWI on or before September 30, 2003. Final judgment was entered in favor of EWI for $524,646.73.

In this appeal, appellants make several arguments that were raised and rejected in the prior appeal. These arguments must fail based on application of the law of the case doctrine. This doctrine requires, absent limited exceptions not applicable here, that questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings. See Engle v. Liggett Group, Inc., 945 So.2d 1246, 1266 (Fla.2006); Fla. Dep’t of Trans. v. Juliano, 801 So.2d 101, 105 (Fla.2001). In addition, the law of the case doctrine may foreclose subsequent consideration of issues implicitly addressed or necessarily considered in the prior appeal. Juliano, 801 So.2d at 106. As to the issues raised by appellants not precluded by application of the law of the case doctrine, we determine same to be both waived and without merit.

We do, however, find merit to EWI’s cross-appeal. In the first trial, the jury found that EWI was entitled to recover damages from losses identified as “general indemnity liability damages.” These losses were based on EWI’s claim that it was contractually obligated to indemnify its surety, RLI Insurance Company, for the attorney’s fees and costs incurred by RLI in successfully defending itself in an action brought by Spectrum. Appellants did not argue at the first trial, nor in the prior appeal, that EWI had failed to properly plead these special damages in accordance with Florida Rule of Civil Procedure 1.120(g). That rule provides that when items of special damages are claimed, they shall be “specifically stated.” Appellants first raised this alleged pleading defect at the onset of the second trial. The trial court reserved ruling on appellants’ objection and permitted the parties to present evidence related to these claimed damages. At the conclusion of the presentation of evidence, EWI moved to amend its complaint to specifically allege special damages. The trial court denied EWI’s motion and rejected EWI’s claim for “general indemnity liability damages” based on its failure to plead special damages.

An order denying a motion to amend is reviewed under the abuse of discretion standard. Crown v. Chase Home Finance, 41 So.3d 978 (Fla. 5th DCA 2010). However, as a general rule, leave to amend should be freely granted unless it appears that allowing the amendment would prejudice the opposing parties, the privilege to amend has been abused, or amendment would be futile. Id.

Here, there is no contention that EWI has abused the privilege to amend or that amendment would be futile. Furthermore, it cannot be reasonably be argued that appellants would be prejudiced by EWI’s requested amendment. Appellants were aware that EWI was seeking these damages well before the first trial. Not only was EWI’s claim for these “general indemnity liability damages” fully tried at the first trial but, subsequent to remand, EWI’s responses to discovery requests and the parties’ pretrial stipulation clearly reflected EWI’s intent to again seek recovery for these damages. The trial court’s denial of EWI’s motion to amend constituted an abuse of discretion.

We remand this cause for the trial court to determine whether EWI suffered general indemnity liability damages subsequent to September 30, 2003 and, if so, the amount thereof. In all other respects, the final judgment is affirmed.

AFFIRMED, in part; REVERSED, in part; REMANDED.

GRIFFIN and PALMER, JJ., concur.

      . An appellate court does have the power to reconsider and correct an erroneous ruling if necessary to prevent a manifest injustice. Strazzulla v. Hendrick, 177 So.2d 1 (Fla. 1965) see also Juliano, 801 So.2d at 106. Other exceptions may apply depending on the facts and circumstances of the case. For example, intervening legislative action or an intervening decision by a higher court that changes the law may constitute exceptions to the doctrine. See, e.g., State v. Owen, 696 So.2d 715 (Fla. 1997); Trotter v. State, 690 So.2d 1234 (Fla. 1996).


source: Caselaw Access Project

author: JACOBUS, J.

license: Public Domain

text:
    Claudia Vergara CASTANO, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2032.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2011.
    Rehearing Denied July 19, 2011.

      H. Manuel Hernandez of H. Manuel Hernandez, P.A., Longwood, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   JACOBUS, J.

The appellant, Claudia Vergara Castaño, timely appeals the denial of her rule 3.850 motion alleging ineffective assistance of counsel. Although she raises several points on appeal, only one merits discussion. That is, Castaño contends her lawyer was ineffective for failing to apprise her of the immigration consequences of her plea.

Castaño, who owned and operated a day care center out of her home, was charged with child neglect, a third-degree felony, when 'a child under her care was found wandering in her neighborhood. Castaño was represented by counsel and ultimately entered a plea to the charge of child neglect. According to her attorney, her main concern was avoiding a jail sentence. Her attorney also stated that he and Castaño discussed the immigration consequences of her plea. Because her attorney was unsure whether she could be deported as a result of pleading to the charge, he suggested Castaño consult with an immigration attorney. At the time of her plea, the trial judge informed Castaño that “if you’re not a U.S. citizen you can be deported as a result of this plea.” Castaño indicated she understood, and answered ‘Tes.”

In oral argument, Castano’s attorney argued that a plea to child neglect may be a crime which requires mandatory deportation. Thus, Castano contends that in light of Padilla v. Kentucky, — U.S.-, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), her attorney was obligated to advise her that mandatory deportation could be a consequence of her plea.

This court has previously aligned itself with the Fourth District Court of Appeal in Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010), which held that any prejudice arising from counsel’s misadvice regarding the immigration consequences of a plea is cured when the trial court gives the deportation warning in Florida Rule of Criminal Procedure 3.172(c)(8) during the plea colloquy. The instant warning given by the trial judge is sufficient to cure any inadequate advice given by Castano’s attorney. We recognize that this directly conflicts with Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).

Another aspect of this case is that Castaño entered her plea on March 4, 2009, and Padilla was decided March 31, 2010. We have previously held that Padilla should not be applied retroactively. See State v. Shaikh, 65 So.3d 539 (Fla. 5th DCA 2011). We agree with the Third District Court of Appeal that the question whether Padilla should be applied retroactively is one of great public importance and we certify to the Florida Supreme Court that question pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v). We certify conflict with the Third District Court of Appeal in Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), under Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv). Consistent with our holding in Chin v. State, 51 So.3d 472 (Fla. 5th DCA 2010), we affirm.

AFFIRMED, QUESTION CERTIFIED; CONFLICT CERTIFIED.

MONACO, C.J. and LAWSON, J., concur.

      . Fla. R.Crim. P. 3.850.


author: PER CURIAM.

text:
    HIRCHERT FAMILY TRUST, Appellant, v. Johnee Ann Alle HIRCHERT, Appellee.
    No. 5D09-3054.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2011.
    Rehearing Denied July 19, 2011.

      Linda C. Hankins, and Jill C. Davis, and Terry C. Young, of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appellant.
    David S. Cohen of Law Offices of David S.Cohen, LC, Orlando, for Appellee.
   PER CURIAM.

This appeal, brought by the Hirchert Family Trust (“Trust”), involves residential property situated in Florida that is owned by the Appellee, Johnee Ann Alie Hirchert. The property is subject both to a constructive trust imposed by a California court via a judgment that was domesticated here (the “California Judgment”) and to certain postjudgment orders of the California court directing the transfer of the property to a receiver. The Trust contends that a Final Judgment rendered by a Florida court finding that the Trust was not permitted to use the California Judgment and post-judgment orders to force the sale of the residential property is erroneous and should be reversed. The specific issues we must resolve are whether the Florida court: 1) erred as a matter of law by failing to accord full faith and credit to the California Judgment, the postjudgment orders, and a quitclaim deed executed under the direction of the California court; and 2) erred as a matter of law in finding that an equitable exception to Florida’s homestead exemption under article X, section 4 of the Florida Constitution was inapplicable.

Richard Hirchert and his first wife, Edith, lived in California. There, they created the Trust in 1992. It provided that upon the death of the first spouse, their assets, which included their marital home in California (the Original Marital Home), would be divided into a Survivor’s Trust and a Residuary Trust. Edith died in 1996, and pursuant to the Trust, the marital home was divided between the two Trusts: 75% was placed in the Residuary Trust and the remaining 25% was placed in the Survivor’s Trust. Richard became the sole Trustee of both the Survivor’s Trust and the Residuary Trust. The Trust provided that Richard was immediately entitled to both the principal and earnings of the Survivor’s Trust, but he was only permitted to access the earnings of the Residuary Trust. Richard was not authorized to withdraw the principal from the Residuary Trust until his assets were fully dissipated.

Richard married Appellee in 1998 and conveyed title to the Original Marital Home from the Residuary Trust to himself, without satisfying the requirement that his assets be fully dissipated. Richard sold the Original Marital Home and used the proceeds to purchase a new home with Appellee. Richard and Appellee subsequently sold that property and bought another home, “Whispering Meadows,” in California as joint tenants. Shortly after Richard died in 2003, Appellee sold Whispering Meadows for $775,000 and used the proceeds from this sale to purchase a home in Kissimmee, Florida (the “Kissim-mee Property”).

The Successor Trustee of the Residuary Trust subsequently discovered Richard’s misappropriation of the Original Marital Home from the Residuary Trust and instituted suit in California against Appellee to require her to convey to the Residuary Trust 75% of the proceeds that Richard obtained from the sale of the Original Marital Home. Appellee fully participated in this suit, which went to trial in California. The California court found that Richard breached his fiduciary duty as Trustee by conveying title to the Original Marital Home from the Residuary Trust to himself. The court further determined that the Residuary Trust’s share of the proceeds, $431,422, was traceable to the Kis-simmee Property. Accordingly, the court, as part of the California Judgment, imposed a constructive trust over the Kissim-mee Property in favor of the Residuary Trust. Under the terms of the California Judgment, Appellee is prohibited “from selling, mortgaging, hypothecating or otherwise transferring title to [the Kissimmee Property]” unless she pledges appropriate security for, or satisfies the constructive trust. The California court retained jurisdiction to enter orders enforcing its judgment. Appellee did not appeal the California Judgment.

A Florida trial court, over Appellee’s objection, subsequently entered an order domesticating the California Judgment in Florida. The court declined to rule on Appellee’s homestead argument because the California Judgment did not order a change in ownership of the Kissimmee Property. On appeal, this court affirmed the domestication order, but remanded the case to the trial court to determine whether the Kissimmee Property is a protected homestead and what legal affect the California Judgment has on the Kissimmee Property. Hirchert v. Hirchert Family Trust, 988 So.2d 63 (Fla. 5th DCA 2008).

Subsequent to that appeal, but before the proceedings on remand were instituted in the Florida court, the California court entered a postjudgment order (“Post-judgment Order”) that is in essence a mandatory injunction requiring Appellee to convey the Kissimmee Property to a court-appointed Receiver, who was instructed to sell the property. When Appellee failed to comply with the injunction, the California court had a quitclaim deed (“Quitclaim Deed”) executed on Appellee’s behalf in favor of the Receiver.

The Postjudgment Order and the Quitclaim Deed were stipulated into evidence for the Florida trial court to consider as part of the proceedings on remand. At the conclusion of those proceedings, the trial court rendered the judgment we now review holding that the California Judgment is entitled to full faith and credit in the State of Florida. However, regarding the Postjudgment Order requiring Appel-lee to convey the property to a receiver and the execution of the Quitclaim Deed, the court held that the Kissimmee Property is a protected homestead under article X, section 4 of the Florida Constitution and, therefore, cannot be sold or conveyed without Appellee’s consent.

We do not believe that the Quitclaim Deed is entitled to full faith and credit because the California court did not have in rem jurisdiction over the property. However, the California court did have jurisdiction over Appellee and, therefore, the Postjudgment Order establishing a mandatory injunction requiring Appellee to convey the Kissimmee Property is entitled to full faith and credit. See Robertson v. Howard, 229 U.S. 254, 261, 38 S.Ct. 854, 57 L.Ed. 1174 (1913) (“[I]t may not be doubted that a court of equity in one state in a proper case could compel a defendant before it to convey property situated in another state.” (citing Fall v. Eastin, 215 U.S. 1, 8, 30 S.Ct. 3, 54 L.Ed. 65 (1909))); Fall v. Eastin, 215 U.S. 1, 11-12, 30 S.Ct. 3, 54 L.Ed. 65 (1909) (holding that a court of equity can order a person over which it has jurisdiction to convey title to real property located in another state, but the court cannot itself transfer title because it does not have jurisdiction over such real property); Gardiner v. Gardiner, 705 So.2d 1018, 1020 (Fla. 5th DCA 1998) (holding that a New York court had jurisdiction to a order a property owner to execute a quitclaim deed for property located in Florida); Hammond v. DSY Developers, LEG, 951 So.2d 985 (Fla. 3d DCA 2007) (holding that a trial court outside of the circuit in which the subject property was located could order specific performance of a contract for sale of that land; but holding the portion of the order purporting to transfer title to that property unenforceable); Farley v. Farley, 790 So.2d 574, 575 (Fla. 4th DCA 2001) (holding that an out-of-state order to sell real property located in Florida was not entitled to full faith and credit because enforcement requires the application of in rem jurisdiction; but noting that an out-of-state order directing one litigant to convey title to another would be entitled to full faith and credit (citing Sammons v. Sammons, 479 So.2d 223, 225 (Fla. 3d DCA 1985); Gardiner)); Dusesoi v. Dusesoi, 498 So.2d 1348, 1350 (Fla. 2d. DCA 1986) (holding that a decree from a foreign state purporting to award title to real property located in Florida was not entitled to full faith and credit; but stating in dictum that the portion of that decree ordering conveyance of the title “appears to be entitled to full faith and credit”).

The trial court did not enforce the mandatory injunction based on its conclusion that article X, section 4 of the Florida Constitution prohibited the Trust from forcing the sale of the Kissimmee property while it remains Appellee’s homestead. Hence, we turn to the second issue: whether an equitable exception applies to lift the veil of protection provided by the homestead exemption.

The courts recognize an exception to the homestead protection if the property was acquired with funds generated by fraudulent activity and a constructive trust is necessary to prevent unjust enrichment. See, e.g., LaBelle v. LaBelle, 624 So.2d 741, 742 (Fla. 5th DCA 1993) (stating, “[T]he protection[s] afforded by Article X, Section 4 of the Florida Constitution ... do not apply to properties which are purchased with fraudulently obtained, traceable proceeds and which are, therefore, subject to the imposition of a constructive trust.”); see also Zureikat v. Shaibani, 944 So.2d 1019, 1024 (Fla. 5th DCA 2006) (affirming an equitable lien placed on a homestead where proceeds obtained from fraudulent or reprehensible conduct were used to invest in, purchase, or improve the homestead (citing, inter alia, Havoco of Am., Ltd. v. Hill, 790 So.2d 1018 (Fla.2001))); In re Fin. Federated Title & Trust, Inc., 347 F.3d 880, 881 (11th Cir.2003) (holding that the Florida Constitution does not protect a homestead purchased with fraudulently obtained funds from an equitable lien or constructive trust). The exception to homestead protection applies even “where funds obtained through one spouse’s fraud are used to invest in, purchase, or improve the homestead ... despite the other spouse’s innocence or ignorance of wrongdoing.” Zureikat, 944 So.2d at 1024 (citing Palm Beach Savings & Loan Ass’n v. Fishbein, 619 So.2d 267 (Fla.1993)).

Contrary to the trial court’s conclusion, we believe that a breach of fiduciary duty is “constructive fraud” and thus may form the basis to apply the exception to the homestead protection. As this court explained in First Union National Bank of Florida v. Whitener, 715 So.2d 979, 982 (Fla. 5th DCA 1998):

Constructive fraud is the term typically applied where a duty under a confidential or fiduciary relationship has been abused, or where an unconscionable advantage has been taken. Constructive fraud may be based on misrepresentation or concealment, or the fraud may consist of taking an improper advantage of the fiduciary relationship at the expense of the confiding party.

In Allie v. Ionata, 466 So.2d 1108, 1110 (Fla. 5th DCA 1985), this court further explained:

Florida courts have recognized that constructive fraud may exist independently of an intent to defraud. It is a term which is applied to a great variety of transactions that equity regards as •wrongful, to which it attributes the same or similar effects of those that follow from actual fraud and for which it gives the same or similar relief.

(Emphasis added).

Moreover, the Florida Supreme Court has affirmed equitable liens on homes that qualify as homestead property to prevent unjust enrichment. See, e.g., Fishbein, 619 So.2d at 270 (“[I]t is apparent that where equity demands it this Court has not hesitated to permit equitable liens to be imposed on homesteads beyond the literal language of article X, section 4.... [Tjhere was no fraud involved in either La Mar [v. Lechlider, 135 Fla. 703, 185 So. 833 (1939) ] or Sonneman [v. Tuszynski, 139 Fla. 824, 191 So. 18 (1939) ]. In those cases, the equitable liens were imposed to prevent unjust enrichment.”); La Mar v. Lechlider, 135 Fla. 703, 185 So. 833, 836 (1939) (affirmed equitable lien where defendants refused to give the plaintiffs an interest in their homestead, as promised, in exchange for improvements plaintiffs made to the homestead property); Craven v. Hartley, 102 Fla. 282, 135 So. 899, 901 (1931) (equitable lien appropriate where homeowner borrowed money from lender to purchase property but failed to execute a mortgage in lender’s favor as promised).

We conclude that institution of a constructive trust and/or the placement of an equitable lien over the Kissimmee Property, as the California court did based on Richard Hirchert’s constructive fraud emanating from his breach of fiduciary duty, fits within the equitable exception to the homestead protections afforded by the Florida Constitution. Accordingly, although we hold that the Quitclaim Deed is not entitled to full faith and credit, we nevertheless hold that the trial court’s order, to the extent it implies that the California court lacks the authority to enforce the order enjoining Appellee to convey the Kissimmee Property, is reversed and this case is remanded to the trial court with instructions to enforce the injunction to convey title to the Kissimmee Property out of comity with California.

REVERSED and REMANDED.

SAWAYA, ORFINGER and JACOBUS, JJ., concur.

      . Florida’s homestead exemption provides:
      There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person ....
      Art. X, § 4(a)(1), Fla. Const.


author: VILLANTI, Judge.

text:
    Damien D. FREEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4008.
    District Court of Appeal of Florida, Second District.
    June 17, 2011.

      Damien D. Freeman, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Damien D. Freeman appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, raising seven grounds for relief. We hold that the postconviction court erred when it failed to hold a Faret-ta — type hearing after Freeman sought to represent himself at the evidentiary hearing on ground one of his motion. Therefore, we reverse on this basis and remand for further proceedings. This disposition renders the remainder of Freeman’s claims moot.

Freeman was convicted of one count of manslaughter with a firearm based on events that occurred on July 18, 1997, and he was sentenced to 180 months in prison. His direct appeal was affirmed without opinion, see Freeman v. State, 731 So.2d 661 (Fla. 2d DCA 1999) (table), and mandate issued on March 10, 1999.

On October 30, 2007, Freeman filed a motion for postconviction relief based on newly discovered evidence. After receiving a response from the State, the postcon-viction court ordered an evidentiary hearing on this ground. Although Freeman never requested that counsel be appointed, the trial court sua sponte appointed counsel to represent him at the evidentiary hearing.

At the start of the hearing, appointed counsel told the court that Freeman had told him that he wanted to represent himself at the hearing. Counsel noted that he and Freeman were in disagreement over whether certain witnesses should be presented at the evidentiary hearing. The court turned to Freeman and asked what “the problem” was with having appointed counsel represent him. Freeman responded that he had not asked the court to appoint counsel for him and that “I want to represent myself.” At that point, the following dialogue occurred:

THE COURT: Please, Mr. Freeman, don’t interrupt me. I’ve already made a determination that it is in your best interest to have [appointed counsel] represent you. He is a trained lawyer. He knows what he’s doing, and I think — and I still believe it is in your best interest to have [appointed counsel] represent you. So other than just a general desire to represent yourself, is there any other issue that you have with regards to [appointed counsel]?
MR. FREEMAN: Well, you know, I know my case better than anybody in here. I know all the facts of my case, and with that being so, even though [appointed counsel] have [sic] way more experience in law than I do and I’m just a pro se inmate, you know—
THE COURT: Well, you’re not pro se now—
MR. FREEMAN: Yeah.
THE COURT: — because you have [appointed counsel] representing you.
MR. FREEMAN: Same thing. You know, I feel qualified to represent myself and this ain’t nothing but a simple evidentiary hearing. I got everything already lined up. The only thing I need is the Court to subpoena all my witnesses for number one....
MR. FREEMAN: I want to represent myself.
THE COURT: I understand.
MR. FREEMAN: I feel it’s in my best interest to represent myself, but if the Court feel [sic] it ain’t in my best interest, then I feel even the Court should at least let me be co-counsel. I don’t see nothing wrong with that.
THE COURT: Well, you can’t be co-counsel.
MR. FREEMAN: Then I want to represent myself.

The court subsequently denied Freeman’s motion to discharge appointed counsel because it did not find that there was a conflict of interest, “professional negligence, unprofessional conduct, or general ineffectiveness.” Thus, the hearing proceeded with appointed counsel representing Freeman against Freeman’s wishes.

In this appeal, Freeman contends that the postconviction court erred by failing to hold a Faretta-type hearing after he unequivocally stated that he wanted to discharge his court-appointed counsel and proceed pro se. For the reasons explained below, we agree that the trial court abused its discretion by failing to hold a hearing to consider Freeman’s arguments.

“The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment.” Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 154, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000). As a corollary to this, a defendant also “has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so.” Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (emphasis added).

However, once a defendant “passes beyond the direct appeal stage and into post-conviction proceedings, there is simply no constitutionally protected right to counsel.” Rose v. Crosby, No. 8:93-cv-1169-T-23EAJ, 2006 WL 4701821 at *3 (M.D.Fla. Apr.26, 2006); see also Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (“We think that since a defendant has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction, a fortiori, he has no such right when attacking a conviction that has long since become final upon exhaustion of the appellate process.”). In the absence of a constitutional or statutory right to counsel, there can be no concomitant right to self-representation. See Rose, 2006 WL 4701821 at *4. Instead, the decision of whether to appoint counsel or allow a post-conviction defendant to represent himself is within the trial court’s discretion.

Regardless of whether the court is exercising its discretion at the trial or postconviction level, in no case is a trial court’s discretion simply unbridled. Instead, the trial court must always exercise its discretion within the bounds of the law, see Ellard v. Godwin, 77 So.2d 617, 619 (Fla.1955) (holding that “judicial discretion ... ‘does not imply that a court may act, or fail to act, according to the mere whim or caprice of the presiding judge, but it means a discretion exercised within the limits of the applicable principles of law ” (quoting Carolina Portland Cement Co. v. Baumgartner, 99 Fla. 987, 128 So. 241, 247 (1930))), and it must make a decision that is informed by facts and circumstances of the particular case in which it arises, see Matire v. State, 232 So.2d 209, 211 (Fla. 4th DCA 1970) (“A trial court, when exercising discretion, must consider each case upon its individual facts and circumstances.”); cf. Albert v. Miami Transit Co., 154 Fla. 186, 17 So.2d 89, 90 (1944) (noting that judicial discretion depends on more than “the length of the judge’s foot, the state of his temper, the intensity of his prejudice, or perhaps his zeal to reward or punish a litigant”). An uninformed exercise of discretion is, by definition, arbitrary, fanciful, or unreasonable. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980).

In the context of motions for postconviction relief, the supreme court has held that “due process concerns dictate the appointment of counsel in certain postconviction proceedings.” Russo v. Akers, 724 So.2d 1151, 1152 (Fla.1998) (emphasis omitted). In addressing these potential due process concerns, trial courts must consider “ ‘[t]he adversary nature of the proceeding, its complexity, the need for an evidentiary hearing, or the need for substantial legal research’ ” in determining whether to appoint counsel for a postcon-vietion defendant. Id. (quoting Graham v. State, 372 So.2d 1363, 1365-66 (Fla.1979)). Further, “[t]here is no absolute duty to appoint counsel for an indigent defendant in a post-conviction relief proceeding unless the application on its face reflects a colorable or justiciable issue or a meritorious grievance.” Graham, 372 So.2d at 1366. Thus, while a trial court has broad discretion in determining whether to appoint counsel for a posteonviction defendant, the considerations discussed in Graham and Russo frame the exercise of that discretion.

In the somewhat analogous situation of capital posteonviction defendants, the supreme court has held that before a capital posteonviction defendant can waive his or her statutory right to counsel and proceed pro se, the posteonviction court must “conduct a Faretta-type evaluation of [the defendant] to determine if he understands the consequences of waiving collateral counsel and proceedings.” Durocher v. Singletary, 623 So.2d 482, 485 (Fla.1993). Federal courts also sometimes find such a hearing appropriate in the context of post-conviction defendants. See Rose, 2006 WL 4701821 at *1 (conducting an evidentiary hearing “within the rubric of Faretta ” in a posteonviction case “to determine whether Rose understands the implications of self-representation”).

Since the posteonviction court must exercise its discretion in determining whether to allow a noncapital posteonviction defendant to proceed pro se and since the exercise of that discretion must be informed by the facts and circumstances of the individual case, we hold that a posteon-viction court must conduct a hearing “within the rubric of Faretta” to determine whether the noncapital posteonviction defendant understands the implications of self-representation before it exercises its discretion to either grant or deny that defendant’s motion to discharge counsel and proceed pro se. Such a hearing will allow the court to balance the posteonviction defendant’s desire to represent him or herself against the “overriding state interest in the fair and efficient administration of justice.” Martinez, 528 U.S. at 163, 120 S.Ct. 684.

In this case, the record does not show that the posteonviction court took the necessary step of becoming informed of the facts specific to Freeman’s request to represent himself before exercising its discretion to deny that request. Nor does the record show that the posteonviction court was sufficiently informed to allow it to balance Freeman’s desire to represent himself against the State’s interest in the fair and efficient administration of justice. Thus, the posteonviction court’s ruling constituted an abuse of discretion, and we must reverse and remand for further proceedings. If Freeman persists in his request to represent himself at a new evi-dentiary hearing, the posteonviction court must conduct a hearing within the rubric of Faretta to consider whether Freeman understands the implications of self-representation and to balance his interests against the State’s interest in the fair and efficient administration of justice. If, after conducting such a hearing, the court exercises its discretion to permit Freeman to represent himself in the posteonviction proceedings, the court must hold a new evidentiary hearing.

Reversed and remanded for further proceedings.

MORRIS, J., Concurs.

KHOUZAM, J., Concurs in result only.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . We note that in its brief to this court, the State failed to cite any authority concerning whether a postconviction defendant has a right, from whatever source, either to appointed counsel or to self-representation. The State provided such authority for the first time in its motion for rehearing from this court's original opinion.


author: LaROSE, Judge.

text:
    Lillian SOMMERVILLE, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 2D10-829.
    District Court of Appeal of Florida, Second District.
    June 17, 2011.

      Charles M. Schropp and Charles P. Schropp of Schropp Law Firm, P.A., Tampa; and James J. Dowling of Law Offices of Berger & Dowling, Palm Harbor, for Appellant.
    Mark D. Tinker and Charles W. Hall of Banker Lopez Gassier, P.A., St. Peters-burg, for Appellee.
   LaROSE, Judge.

Lillian Sommerville sued Allstate Insurance Company for uninsured/underinsured motorist (UM) benefits for injuries she suffered while riding a motorcycle rented by her employer, Pavili Installations, Inc. She now appeals a final summary judgment entered in Allstate’s favor. We review a summary judgment de novo. Beverly v. State Farm Fla. Ins. Co., 50 So.3d 628, 629 (Fla. 2d DCA 2010) (citing Suncoast Auto Ctr., Inc. v. Consol. Prop. & Cas. Ins. Co., 880 So.2d 728, 730 (Fla. 2d DCA 2004)). The trial court erred in concluding that the business automobile insurance policy issued to Pavili did not provide UM coverage to Ms. Sommerville. We reverse.

Pavili was the named insured on the policy. See § 627.732(4), Fla. Stat. (2007) (“ ‘Named insured’ means a person, usually the owner of a vehicle, identified in a policy by name as the insured under the policy.”). Ms. Sommerville is the company president. The policy did not identify the motorcycle as a vehicle for which Pavili paid premiums. However, under certain conditions, the policy provided for additional persons to be “insureds” and for additional vehicles to be “covered ‘autos.’ ”

Typically, automobile insurance policies recognize two classes of insureds. Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229, 238 (Fla.1971). Class I insureds are named insureds and their resident relatives. Travelers Ins. Co. v. Warren, 678 So.2d 324, 326 n. 2 (Fla.1996) (citing Mullis, 252 So.2d at 238; Quirk v. Anthony, 568 So.2d 710, 713 n. 2 (Fla. 2d DCA 1990), approved, 583 So.2d 1026 (Fla. 1991)). Class II insureds are lawful occupants of an insured vehicle who are not named insureds or resident relatives of named insureds; essentially, they are “third-party beneficiaries to the named insureds’ policy.” Id. Class II insureds “are insured only because they are drivers or passengers in an insured vehicle with the consent of the named insured.” Florida Farm Bureau Cas. Co. v. Hurtado, 587 So.2d 1314, 1317 (Fla.1991) (citations omitted). Because Pavili was the only named insured, Ms. Sommerville was no more than a class II insured. She is entitled to UM coverage only if the motorcycle she was riding was an insured vehicle.

For purposes of liability coverage, the policy defines “an insured,” in pertinent part, as follows:

SECTION II — LIABILITY COVERAGE
A. Coverage
We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from the ownership, maintenance or use of a covered “auto”.
1. Who Is An Insured
The following are “insureds”:
a. You [Pavili] for any covered “auto”.
b. Anyone else while using with your permission a covered “auto” you own, hire or borrow....

The UM endorsement defines an “insured,” in pertinent part, as follows:

B. Who Is An Insured
If the Named Insured is designated in the Declarations as:
2. A partnership, limited liability company, corporation or any other form of organization, then the following are “insureds”:
a. Anyone “occupying” a covered “auto”....

Both the liability coverage section and the UM endorsement extend protection to any person occupying a “covered ‘auto.’ ”

The policy Declarations show premium charges for only two Pavili-owned trucks. Coverage, however, is not limited necessarily to those vehicles. Allstate used “covered auto designation symbols” to identify vehicles for each type of coverage under the policy. For liability coverage, Allstate used the following designations:

7 — Specifically Described “Autos” — Only those “autos” described in Item Three of the Declarations for which a premium charge is shown (and for Liability Coverage any “trailers” you don’t own while attached to any power unit described in Item Three).
8 — Hired “Autos” Only — Only those “autos” you lease, hire, rent or borrow. This does not include any “auto” you lease, hire, rent, or borrow from any of your “employees”, partners (if you are a partnership), members (if you are a limited liability company) or members of their households.
9 — Nonowned “Autos” Only — Only those “autos” you do not own, lease, hire, rent or borrow that are used in connection with your business. This includes “autos” owned by your “employees”, partners (if you are a partnership), members (if you are a limited liability company), or members of their households but only while used in your business or your personal affairs.

Pavili’s two trucks fall within designation 7. The rented motorcycle fits neatly within designation 8. For UM coverage, however, the Declarations list as “covered ‘autos’” only designation 7, Pavili’s two trucks. Accordingly, we must explain what some may view as an apparent gap in the policy between liability and UM coverages.

In enacting the UM statute, section 627.727, the legislature intended “to provide for the broad protection of the citizens of this State against uninsured motorists.” Salas v. Liberty Mut. Fire Ins. Co., 272 So.2d 1, 5 (Fla.1972); accord Gilmore v. St. Paul Fire & Marine Ins., 708 So.2d 679, 681 (Fla. 1st DCA 1998). Insurers must provide UM coverage for all vehicles insured for liability purposes, at no less than the liability limits, unless the named insured rejects UM coverage entirely or selects lower UM limits. “The UM statute is intended to protect injured people and is not intended to benefit insurance companies or motorists who cause damage to other people.” Varro v. Feder ated Mut. Ins. Co., 854 So.2d 726, 729 (Fla. 2d DCA 2003) (citations omitted); see Armstrong v. Allstate Ins. Co., 712 So.2d 788, 790 (Fla. 2d DCA 1998) (citations omitted).

Uninsured motorist coverage “is statutorily intended to provide the reciprocal or mutual equivalent of automobile liability coverage prescribed by the Financial Responsibility Law[].... ” Mullis, 252 So.2d at 237-38. “As a creature of statute rather than a matter for contemplation of the parties in creating insurance policies, the uninsured motorist protection is not susceptible to the attempts of the insurer to limit or negate that protection.” Gilmore, 708 So.2d at 681 (quoting Salas, 272 So.2d at 5). “[I]t is not to be ‘whittled away’ by exclusions and exceptions.” Mullis, 252 So.2d at 238. Of course, the named insured may reject or limit the statutory coverage. Id.; accord Gilmore, 708 So.2d at 681. But such limitation/rejection must be executed in writing on an approved Office of Insurance Regulation form fully advising the applicant that UM coverage will be equal to liability limits unless the applicant selects lower limits or rejects coverage. § 627.727(1), (2). Although Pavili selected UM limits lower than its $1,000,000 liability limits, it did not reject UM coverage entirely.

Allstate’s policy offered liability coverage for the rented motorcycle under designation 8, but not UM coverage, which appears limited to vehicles under designation 7. According to Allstate, Ms. Sommerville fits the liability definition of “insured” — “[a]nyone else while using with your permission a covered ‘auto’ you own, hire or borrow [7, 8, 9]” — but not the UM definition — “[ajnyone ‘occupying’ a covered ‘auto’ [7 only].” Allstate contends that this limitation is permitted by section 627.727(9)(b), which allows policies providing that “[i]f at the time of the accident the injured person is occupying a motor vehicle, the uninsured motorist coverage available to her or him is the coverage available as to that motor vehicle.” Allstate argues that Pavili elected to accept UM coverage for only the two trucks for which it paid a premium. However, “[a]n informed rejection of uninsured motor vehicle coverage cannot, without extrinsic evidence, be implied from the insured’s signature on the application for uninsured motor vehicle coverage.” Nationwide Prop. & Cas. Ins. Co. v. Marchesano, 482 So.2d 422, 424 (Fla. 2d DCA 1985) (quoting Zisook v. State Farm Mut. Auto. Ins. Co., 440 So.2d 452, 454 (Fla. 3d DCA 1983)). Section 627.727(9)(a)-(e) allows insurers to offer policies limiting UM coverage. The statute, however, does not provide for a UM exclusion of specific vehicles, and Pavili did not reject that coverage.

In Varro, we held that a policy excluding UM coverage for only some insureds violated the UM statute. 854 So.2d at 729. We observed that limitations on UM coverage under section 627.727(9) “do not include a provision that allows an exclusion of particular individuals from UM coverage.” Id. at 728. We stated that a “policy may contain other general conditions affecting coverage or exclusions on coverage as long as the limitations are unambiguous and ‘consistent with the purposes of the UM statute.’ ” Id. at 728-29 (quoting Flores v. Allstate Ins. Co., 819 So.2d 740, 745 (Fla.2002)). Because the limitation on particular individuals was unambiguous, we examined whether it was contrary to the UM statute’s purposes. Id. at 729. We held that “[ujnder section 627.727(1), an insured may reject UM coverage ‘on behalf of all insureds under the policy,’ but the statute does not allow rejection of UM coverage on behalf of only some insureds ....” Id. at 729.

Similarly, the UM limitation on particular vehicles here is unambiguous. Under section 627.727(1), a named insured may reject UM coverage or select lower UM limits for all insured vehicles, but section 627.727(1) does not provide for rejection of UM coverage for only some vehicles. See Mosca v. Globe Indem., 693 So.2d 674, 675 (Fla. 4th DCA 1997). In Mosca, the Fourth District held that insurers may not limit UM coverage by defining “covered autos” more narrowly in the UM context than for liability coverage. If a policy purports to do so, the liability definition of “covered autos” will determine UM coverage. Id. (approving Ropar v. Travelers Ins. Co., 205 Ga.App. 249, 422 S.E.2d 34 (1992) (applying Florida law and holding UM policy’s definition of “covered autos” could not be narrower than liability policy’s definition)).

Because the policy here purports to limit UM coverage by defining “covered autos” more narrowly in the UM provisions than in the liability provisions, its liability definition of “covered autos” determines UM coverage. Accordingly, the trial court erred in relying on the narrower definition of “covered auto” in granting summary judgment.

Reversed and remanded for further proceedings consistent with this opinion.

NORTHCUTT and SILBERMAN, JJ., Concur.

      .“Insured" and "covered” are used interchangeably in many cases. See, e.g., Allstate Ins. Co. v. Durham, 838 So.2d 1254, 1256 (Fla. 5th DCA 2003); Auto Owners Ins. Co. v. Potter, 774 So.2d 859, 860 (Fla. 4th DCA 2000); Milgram v. Allstate Ins. Co., 731 So.2d 134, 136 (Fla. 1st DCA 1999). However, in interpreting an insurance policy, its definitions control. "Where there are two interpretations which may fairly be given to language used in a policy, the one that allows the greater indemnity will govern.” New Amsterdam Cas. Co. v. Addison, 169 So.2d 877, 881 (Fla. 2d DCA 1964) (citations omitted); see also Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000) ("Florida law provides that insurance contracts are construed in accordance with the plain language of the policies as bargained for by the parties.”).

      . "When the named insured is a corporation, it obviously can never have a bodily injury or a UM claim as well as claims for coverage for family members. The entire risk in such a situation arises from class II insureds.” Varro v. Federated Mut. Ins. Co., 854 So.2d 726, 728 (Fla. 2d DCA 2003).

      . No one disputes that Pavili permitted Ms. Sommerville to ride the motorcycle. Apparently, she rented the motorcycle on Pavili's behalf for her use in California. Our record does not disclose the purpose of the rental and we offer no view here as to the impact, if any, that any actual or intended use may have on Ms. Sommerville’s UM claim.

      . The policy's description of "autos” specifically includes motorcycles.

      . § 627.727 Motor vehicle insurance; uninsured and underinsured vehicle coverage....
      No motor vehicle liability insurance policy which provides bodily injury liability coverage shall be delivered or issued for delivery in this state with respect to any specifically insured or identified motor vehicle registered or principally garaged in this state unless uninsured motor vehicle coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles....
      (2) The limits of uninsured motorist coverage shall be not less than the limits of bodily injury liability insurance purchased by the named insured, or such lower limit complying with the rating plan of the company as may be selected by the named insured....

      . Every owner or operator of a motor vehicle, which motor vehicle is ... required to be registered in this state, shall ... establish and maintain the ability to respond in damages for liability on account of accidents arising out of the use of the motor vehicle in the amount of $10,000 because of damage to, or destruction of, property of others in any one crash.
      § 324.022, Fla. Stat. (2007).


author: WOLF, J. HAWKES, J.,

text:
    M.D., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-3055.
    District Court of Appeal of Florida, First District.
    June 28, 2011.
    Rehearing Denied July 27, 2011.

      Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

A student possessed a gun on school grounds. In light of the serious nature of the threat and the location in which it took place, the actions of school authorities were reasonable. We, thus, uphold the trial court’s denial of the motion to suppress and affirm appellant’s conviction.

Five precepts guide our ruling in this case:

(1) allegations of possession of a gun on a school campus should be treated differently than similar allegations in other settings;
(2) students in school do not possess the same breadth of constitutional rights as parties in other settings;
(3) school resource officers should be treated as part of the school administrative team and not as outside police officers entering school grounds to conduct an investigation;
(4) courts should not second-guess the reasonable administrative decision of school officials to segregate a student from the general population prior to questioning a student about possible weapons possession; and
(5) courts should not question reasonable administrative policy decisions of school officials concerning the method of insuring safety in their security office.

In the underlying case, an anonymous tipster called the school on the day before the search and informed school officials that the student had carried a gun onto campus three months earlier. As a result, the school resource officer asked a school security guard to escort himself and the student to the security office, but did not tell the security guard why the student needed to be questioned. As a general policy, all students entering the security office were searched. When the student was asked to empty his pockets, he told the guard that he was carrying a lighter against school policy. When the student emptied his pockets, the security guard observed a gun on the student’s person. At all relevant times, the security guard was unaware of the resource officer’s reasons for calling the student to the security office.

Allegations of gun possession on school campuses are different from traditional Fourth Amendment cases. Many courts have recognized these cases are unique because of the seriousness of the threat, the location of the threat, the vulnerability and number of potential victims, and the lessened expectation of privacy of students.

In J.A.R. v. State, 689 So.2d 1242 (Fla. 2d DCA 1997), the court recognized the unique danger weapons pose in a school setting and the need for student safety. Appellant urges us to reject the J.A.R. approach based on the case of Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), in which the United States Supreme Court rejected a “firearms” exception to the general rule that anonymous tips, without corroboration, are insufficient to justify a search, when the tips suggest the suspect is carrying a firearm. However, in so holding, the Court made a point of stating that:

The facts of this case do not require us to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability. We do not say, for example, that a report of a person carrying a bomb need bear the indicia of reliability we demand for a report of a person carrying a firearm before the police can constitutionally conduct a frisk. Nor do we hold that public safety officials in quarters where the reasonable expectation of Fourth Amendment privacy is diminished, such as airports ... and schools, see New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), cannot conduct protective searches on the basis of information insufficient to justify searches elsewhere.

J.L., 529 U.S. at 273-74 (emphasis added).

In T.L.O., the Supreme Court recognized that the special circumstances involved with conducting a search of a student on school property required that “the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.” 469 U.S. at 381,105 S.Ct. 733. The reason for this reduced standard is that “the accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law.” Id. In order for a search to be reasonable, the action has to be justified from the beginning, and the search has to be reasonably related in scope to the reason for the search. Id. at 341-342, 105 S.Ct. 733. Further, a school search “will be permissible ... when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Id. at 342, 105 S.Ct. 733.

As the Supreme Court noted in T.L.O., the critical determination under the Fourth Amendment is whether the actions of the school officials were reasonable in light of all the circumstances. Appellant urges us to apply the probable-cause standard to this analysis because the search was conducted pursuant to an inquiry begun by the school resource officer. He then asks us to find the actions of the school officials were unreasonable. The law and common sense support neither of these determinations.

As noted in J.A.R. and T.L.O., the reasonable-suspicion standard is the appropriate standard to apply to the unique situation posed by the potential existence of firearms on school grounds. Every other District Court in the state has determined that the reasonable-suspicion standard is appropriate for searches of students on school grounds by school officials, including resource officers. See State v. J.H., 898 So.2d 240, 241 (Fla. 4th DCA 2005); K.K. v. State, 717 So.2d 629, 630 (Fla. 5th DCA 1998); State v. Whorley, 720 So.2d 282, 283 (Fla. 2d DCA 1998); State v. D.S., 685 So.2d 41, 43 (Fla. 3d DCA 1996).

The only possible support for applying the probable-cause standard to a search by a school resource officer is a 1981 case, M.J. v. State, 399 So.2d 996 (Fla. 1st DCA 1981). However, M.J. is distinguishable on the facts because the officer involved was an outside officer called to the school for the purposes of aiding in a search of a student. Id. Here, the relevant officer participation involved a school resource officer, rather than an outside police officer, and a different standard applies.

As noted by all of our sister courts, a search conducted by a resource officer placed in the school as a liaison is more akin to a search from a school official than from an outside police officer coming into the school to conduct a search, because a “school police officer is a school official who is employed by the district School Board.” D.S., 685 So.2d at 43; see also J.H., 898 So.2d at 241; K.K., 717 So.2d at 630; Whorley, 720 So.2d at 283; D.S., 685 So.2d at 43. Even more important here, “[i]t would be foolhardy and dangerous to hold that a teacher or school administrator, who often is untrained in firearms, can search a child reasonably suspected of carrying a gun ... at school only if the teacher or administrator does not involve the school’s trained resource officer....” J.A.R., 689 So.2d at 1244.

In the underlying case, the student was approached following a tip that he carried a gun onto campus three months prior. While under other circumstances, this tip may have been considered stale, recent tragedies make it clear that school officials could not ignore the possibility that the student could possess a firearm on school property. These officials had not only the right, but the responsibility, to look further into the threat.

Additionally, the student was first approached in a crowded cafeteria. Investigating in this location would have placed the other students and staff in potential danger. Removing the student from this location, prior to questioning him, was the only responsible action that could have been taken.

During the walk to the security office, the student seemed anxious, and before the gun was found, the student admitted he was carrying a lighter, which was an infraction of school policy.

While the dissent asserts this court may not consider any of the student’s actions after he was “seized” for questioning at the school cafeteria, because the seizure itself amounted a Fourth Amendment violation, the request that the student come to the security office was not a seizure. Thus, any actions occurring during the walk to the security office and the questioning were properly considered.

Specifically, neither the United State Supreme Court nor any Florida court has ever held the request by a resource officer for a student to come to an administrative office for questioning amounted to a seizure for Fourth Amendment purposes. In fact, to hold so could have disastrous results. The underlying case is illustrative of this point. Should the officer have to question an armed student in a cafeteria full of children in order to avoid an unlawful seizure? Is a principal expected to determine if reasonable suspicion exists that a student committed a crime before calling a child into his office for questioning? As noted in T.L.O., schools present unique challenges, and the traditional confines of the Fourth Amendment do not necessarily carry over to this environment.

We should also not second-guess the school officials concerning the reasonableness of the administrative policy of searching students upon entry into the security office. The United States Supreme Court has held that suspicionless administrative searches of students are proper in certain circumstances. Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 829, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002) (approving of random drug urinalysis screening for school students participating in extra-curricular activities); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (holding the same). “[A]dministrative searches differ from traditional criminal searches” because the “Fourth Amendment only applies where the object of the search is to penalize, which is not the case with an administrative search.” C.N.H. v. State, 927 So.2d 1, 3 (Fla. 5th DCA 2006) (citing Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)). “With an administrative search, the warrant and probable cause showing is replaced by the requirement to show a neutral plan for execution; a compelling governmental need; the absence of less restrictive alternatives; and reduced privacy rights.” Id. at 4.

Here, the record establishes the security guard testified that all students coming into the security office were checked “as part of what we do, we have to check them.” Further, the resource officer noted that, when students come into the security office, “they automatically search, whether we’re there or not.” In addition, the only reasonable means of investigating the potential of a gun being carried on campus was to separate the student from the general population and take him to the administrative offices. Any other course of action would have subjected other students and staff to potential harm. Thus, there existed a neutral plan of execution. See, e.g., C.N.H., 927 So.2d at 3-4 (finding daily search of all students at a second chance school was a neutral execution of a search); see also State v. J.A., 679 So.2d 316, 319 (Fla. 3d DCA 1996) (finding random check of students with a metal detector was a neutral execution). Further, the compelling government need is obvious: the safety of the officers, the students, and the staff. See J.A., 679 So.2d at 319 (noting “[t]he incidences of violence in our schools have reached alarming proportions”); see also People v. Pruitt, 278 Ill. App.3d 194, 214 Ill.Dec. 974, 662 N.E.2d 540, 546 (1996) (stating that “[jjudges cannot ignore what everybody else knows: violence and the threat of violence are present in public schools”). Last, given the tip and the possibility that the student was carrying a gun, the means employed were the least restrictive means possible to maintain the safety of the officers, the students, and the staff. See J.A., 679 So.2d at 319 (noting the search of second chance students on a daily basis was the least restrictive means of maintaining a safe teaching environment given the history of the students involved).

We, therefore, affirm.

DAVIS, J., CONCURS; HAWKES, J., Dissents With Opinion.

HAWKES, J.,

dissenting.

I disagree with the majority’s conclusion that the search was constitutional. This dissent will address the majority’s opinion in two sections. First, it will discuss the majority’s insistence that the school resource officer needed only reasonable suspicion to initiate the student search. Second, it will show that under the proper standard of probable cause, the search violated the Florida and United States Constitutions.

School Resource Officers Require Probable Cause To Search

The key to the majority’s decision is its finding that the school resource officer needed only reasonable suspicion — not probable cause — to initiate the search. They reach this result by finding the deputy sheriff serving in the capacity of a school resource officer was a “school official” and, therefore, was exempt from the restrictions placed on law enforcement officers. School officials require only reasonable suspicion to conduct a search; probable cause is needed only “where a law enforcement officer directs, participates, or acquiesces in a search conducted by school officials.” M.J. v. State, 399 So.2d 996, 998 (Fla. 1st DCA 1981). Because the entire search here was instigated by the school resource officer, her classification as either a school official or a law enforcement officer is of critical importance. I believe that several considerations lead to one inescapable result: school resource officers are law enforcement officers and, therefore, must possess probable cause before searching a student. These considerations are (1) testimony from the record indicating school resource officers operate as law enforcement officers; (2) school resource officers’ statutory certification by the State of Florida as law enforcement officers; (3) relevant caselaw from our District; and (4) matters of policy-

Factually, the issue is clear. The record shows the school resource officer was employed by the Jacksonville Sheriffs Office as a sworn, certified officer. She testified she was employed by the Jacksonville Sheriffs Office and assigned to the school in question. The only other witness to testify was the school security guard, who indicated he was directly employed by the school. This shows a distinction in their positions. Since the resource officer was a Sherriffs employee, as opposed to a security guard employed by the school, she needed probable cause to search defendant. There is no other situation where individuals who are sworn, certified, and acting in the course and scope of their law enforcement duties are treated as private actors. In fact, it is nearly impossible for law enforcement officers to lose their identity as law enforcement for purposes of a Fourth Amendment analysis. See State v. Butler, 1 So.3d 242, 246 (Fla. 1st DCA 2008) (finding hospital staff monitoring cameras placed in a suspect’s recovery room should be treated as instrumentalities of the State as “the hospital desired to act at the State’s behest, and did so”); State v. Iaccarino, 767 So.2d 470, 475-76 (Fla. 2d DCA 2000) (finding off-duty sheriffs officers engaged in an “extra duty” assignment to provide security at a private concert should be treated as law enforcement, despite the fact that the concert promoter paid for their work).

Statutory support for recognizing that school resource officers are law enforcement officers can be found in the statute creating the role of school resource officers. Section 1006.12(l)(a)(l), Florida Statutes (2009), states:

School resource officers shall be certified law enforcement officers, as defined in section 943.10(1), who are employed by a law enforcement agency as defined in section 943.10(4). The powers and duties of a law enforcement officer shall continue throughout the employee’s tenure as a school resource officer,

(emphasis added). The statute goes on to state that although school resource officers must abide by school policies and consult •with the school principal, they are “responsible to the law enforcement agency in all matters relating to employment.” § 1006.12(l)(b), Fla. Stat. (2009). Based only on the language of this statute, it seems clear that treating school resource officers as if they are not law enforcement officers defies logic.

In addition to the statute at issue, the majority also disregards binding precedent concerning school resource officers. It cites multiple cases from other jurisdictions equating school resource officers to school officials. However, it fails to mention the one case from this Court that addresses how resource officers should be classified, a case which holds, without question, that school resource officers are law enforcement. This case, A.J.M. v. State, 617 So.2d 1137 (Fla. 1st DCA 1993), concerned a search performed by a school resource officer at the request of a school principal. Besides the principal’s request, the officer had no independent reason to justify the search. Id. at 1138. This Court held it could not

ignore the legal test adopted by the court in M.J., which is whether the officer directed, participated in or acquiesced in the search. In the instant case, the officer actually conducted the search in question. Under the dictates of M.J., the appropriate test in determining the validity of the search was whether probable cause existed for the search.

Id. at 1138 (emphasis added). This Court’s decision in A.J.M. is clear: for the last eighteen years, the First District has recognized school resource officers as law enforcement, consistent with their training, certification and the governing statute. Accordingly, school resource officers in the First District are not distinguishable from other law enforcement officers and must have probable cause before searching a student.

There is no doubt of this holding. It has been cited multiple times across the country for this principle. See State v. N.G.B., 806 So .2d 567, 569 (Fla. 2d DCA 2002) (stating A.J.M. holds “that the appropriate standard for assessing the search by [a] school resource officer [is] probable cause”); see also R.D.S. v. State, 245 S.W.3d 356, 368 (Tenn.2008); Commonwealth of Pennsylvania v. J.B., 719 A.2d 1058, 1065 (Pa.Super.Ct.1998); In Interest of Angelia D.B., 211 Wis.2d 140, 564 N.W.2d 682, 687 (1997); People v. Dilworth, 169 Ill.2d 195, 214 Ill.Dec. 456, 661 N.E.2d 310, 317 (1996). Given the decision in A.J.M., the majority has created internal conflict by holding here that school resource officers require only reasonable suspicion to search. I cannot agree with this result.

Also troubling are the policy considerations of the majority’s opinion. While on school grounds, school resource officers perform the same responsibilities and have the same authority as other uniformed police officers. Indeed, once police officers report to a school, they can be considered school resource officers, as their function and powers are exactly the same. See § 1006.12(1) (stating resource officers are “certified law enforcement officers” [ ] “employed by a law enforcement agency”). The majority ignores this and classifies resource officers as school employees, not law enforcement. This creates two separate lines of policy, neither of which is preferable. Under the majority’s decision, courts must either treat all law enforcement the same, allowing all officers to benefit from lowering the standard for school resource officers, or engage in complex fact finding in each case to determine whether an officer was acting in the capacity of a school resource officer.

The first possibility hinges upon the identical authority and certification of school resource officers and law enforcement. Due to their identical nature, it follows that they should be subject to the same Fourth Amendment standards. Therefore, the majority’s decision to classify resource officers as school employees can logically be extended to all law enforcement on school grounds. This would mean that all searches conducted by law enforcement on school grounds would be subject to the less stringent constitutional standards afforded to school employees. Clearly, this cannot be the majority’s intent. Nor is it even permissible. See M.J., 399 So.2d at 998 (finding law enforcement officers conducting a search should be held to a different standard than school officials). But by applying the lesser constitutional standard to one recognized type of sworn law enforcement officer, it is difficult to see why it could not be extended to another.

The second possibility is that in an effort to maintain a distinction between school resource officers and other types of law enforcement, courts will have to engage in complex fact finding to distinguish those circumstances where a law enforcement officer on school grounds is operating as a school resource officer from those circumstances where the law enforcement officer is not. On the surface, this may seem an easy task, as at times there will be no question that a search or seizure was conducted by an officially designated “school resource officer.” However, there are many situations where the distinction will not be so clear cut.

For example, should police officers retain their law enforcement designation if they are assigned to a school for only a short period of time, such as to fill in for a school resource officer on sick leave? If so, at what point do they lose their law enforcement designation when they are assigned to the school for a longer period of time? Moreover, what designation should be used when the officers are assigned to the school for only a certain period of the day, such as to help oversee the students at dismissal? For that hour or two each afternoon, should they be treated as law enforcement or school employees? Or perhaps the distinction hinges upon the reason why the officer was assigned to a school. The majority implies that police officers should be subject to the same standard as school employees when they are searching specifically for guns. Should the law enforcement designation be similarly disregarded when the search is for an equally harmful item, such as knives? If not, what objects are “dangerous” enough to justify lowering the constitutional standard? And what if the officer’s presence has a more general but no less legitimate purpose, such as to prevent drugs or facilitate school safety?

In short, by distinguishing between different types of law enforcement, the majority has opened Pandora’s Box. Courts in each case will have to make specific fact findings to determine if the officer in question was operating as a school employee or general law enforcement. These findings will hinge on the individual officer’s responsibilities and intent, which may be difficult to define. No clear precedent will ever be established because each case will have its own unique facts. The better option — the one supported by both section 100.612(l)(b) and caselaw from this District — is to declare all law enforcement, whether categorized as a school resource officer or not, as subject to the same heightened constitutional standard.

The Trial Court’s Findings Did Not Justify The Search

Given the foregoing, statutory law, case-law from this District, and matters of policy require a school resource officer to have probable cause before conducting a search. This standard was not met here. The trial court gave three fact findings to justify the search:

(1) the resource officer had received a tip that defendant had possessed a firearm at school three months earlier;
(2) defendant’s odd behavior, walking slowly toward the security office; and
(3) defendant’s admission that he was carrying a lighter, contrary to school policy.

Only the tip, the first finding, was a fact known to law enforcement before the Fourth Amendment intrusion occurred. Therefore, only the tip may be used to justify the search.

Contrary to the majority’s finding, defendant’s Fourth Amendment rights were triggered at the moment the resource officer ushered him from the school cafeteria. The search may not be justified by any conduct which occurred after that moment. It is well settled that for the purposes of the Fourth Amendment, a seizure occurs when a law enforcement officer, by means of physical force or show of authority, has in some way restricted a defendant’s liberty. See Caldwell v. State, 41 So.3d 188, 195 (Fla.2010). This does not occur if law enforcement simply approaches an individual and asks him questions. Id. at 196. Rather, it occurs when an officer’s words and actions convey to a reasonable, innocent person that he is not free to leave. See Florida v. Bostick, 501 U.S. 429, 437-48, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); Caldwell, 41 So.3d at 196-97. Here, the school resource officer and security officer approached defendant in the cafeteria and ordered him to accompany them to the school office. It cannot be said that a reasonable person, placed in defendant’s position, would have felt free to refuse this command. Therefore, recognizing that the resource officer is by law a law enforcement officer, defendant’s Fourth Amendment rights were intruded upon at that moment.

This means that when deciding if the resource officer had probable cause to search, we may consider only what occurred before she seized defendant in the cafeteria. This leaves only the first finding — the anonymous tip. Anonymous tips only support probable cause when they are corroborated (see Davis v. State, 346 So.2d 141, 142 (Fla. 1st DCA 1977)) and timely. See Gonzalez v. State, 38 So.3d 226, 229 (Fla. 2d DCA 2010). The tip here fails on both criteria. The information the resource officer received indicated defendant had a gun on school grounds three months prior. It did not indicate defendant had a gun on his person that day. Nor did it indicate the basis for the informant’s knowledge. Because the tip was both stale and given without corroboration, it did not constitute probable cause to search. Indeed, it is difficult to see how such information could even create reasonable suspicion. See Jain v. State, 577 So.2d 1002, 1003 (Fla. 2d DCA 1991) (finding stale information, standing alone, cannot create reasonable suspicion).

The majority argues that the tip in itself constituted sufficient reason to conduct the search because it concerned a student carrying a firearm on school grounds. However, there is no support in Florida or in the United States Supreme Court for creating such a firearm exception to constitutional search requirements. See Regalado v. State, 25 So.3d 600, 605 (Fla. 4th DCA 2009) (finding the Florida Supreme Court has refused to recognize such an exception). As the majority notes, the United States Supreme Court rejected a firearm exception in Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), finding anonymous tips alone cannot justify a search in a public place, regardless of whether the tips concern the unlawful possession of firearms.

Moreover, the facts of this ease make it an unsuitable candidate to create such an exception. Not only was the information on which the search was predicated stale and unreliable, but it was not even treated seriously by the resource officer. She testified that after receiving the anonymous tip, she took no immediate action. Instead, she waited until the following day, at which time she asked the security officer to help her locate defendant, but did not tell him why. After finding defendant in the cafeteria, she left him in the care of the security officer — who still had no idea why defendant was being singled out — and went to “handle[] another situation with another administrator.” She later rejoined the security officer and defendant in the security office. Had the resource officer truly suspected defendant was armed, it is unlikely she would have treated the anonymous tip in such a cavalier manner.

Finally, even considering all three fact findings noted by the trial court to justify the search, I still do not believe probable cause was shown. The second finding was that defendant was reluctant to walk to the security office. This finding is hardly indicative of probable cause to search for a firearm, as there are many far less consequential school rule infractions which could provoke a student to be reluctant to report to the security office. The third finding— defendant’s admission to possessing a lighter in violation of school rules— amounts to nothing more than acquiescence to the authority of the resource officer and security officer. Furthermore, simply because defendant was carrying a lighter did not give any reason to believe he also possessed a firearm. In short, none of the trial court’s findings gave probable cause to conduct the search.

Conclusion

In conclusion, the trial court’s findings showed the resource officer instigated, or at the least participated in, the search of defendant. Applicable statutes, caselaw, and policy from this District require that law enforcement officers, including school resource officers, possess probable cause to search a student. Since the findings show the search was conducted without probable cause, it was both unreasonable and unconstitutional. I believe the denial of the motion to suppress should be reversed, and for this reason I dissent.

      . The majority may argue that A.J.M. contains language indicating that only reasonable suspicion is needed for resource officers to perform a search. This claim would be based on two statements occurring at the end of the opinion. The first occurs in a footnote and indicates the state has not argued "that the school resource officer was not an officer for the purpose of applying the probable cause standard.” A.J.M., 617 So.2d 1138 n. 1. The second occurs in the body of the opinion and notes that because the State offered no evidence as to why the principal asked the resource officer to perform the search, it "is impossible to determine whether probable cause or reasonable suspicion existed.” Id. However, both statements may be considered dicta, as neither contradicts the case's plain holding — given earlier in the opinion — that the "appropriate test” to determine the validity of a resource officer's search is "whether probable cause existed for the search.” Id.

      . The United States Supreme Court confronted similarly thorny questions in a line of cases dealing with whether police officers were conducting "pretextual” traffic stops. Courts had been judging each case on a situational basis, attempting to ascertain whether each officer’s motives for the stop were genuine or merely a pretext. The Supreme Court stopped such speculation by creating a simple, objective test: whether the officer had probable cause for the stop, regardless of the officer’s possible motives. It found that judging the motives and intent of each officer was too difficult in application. See Whren v. United States, 517 U.S. 806, 814-15, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); see also Holland v. State, 696 So.2d 757, 759 (Fla. 1997); State v. Moore, 791 So.2d 1246, 1249 (Fla. 1st DCA 2001); Parrish v. State, 937 So.2d 1231, 1233 (Fla. 1st DCA 2006). Similarly here, attempting to distinguish school resource officers from other types of law enforcement will require case-by-case analysis of each officer’s motives and intent. The better approach is to simply apply an objective standard: treating school resource officers as law enforcement and holding them to the same standard as all other law enforcement officers.

      . The majority argues that identifying that moment as the seizure "could have disastrous results” as it will restrict the ability of school officials to question students. This is not the case. School officials are held to different standards than law enforcement. A school official may remove a student from class or an activity to question him without triggering the student's Fourth Amendment rights so long as the official is not acting arbitrarily or capriciously. See J.D. v. State, 920 So.2d 117, 118 (Fla. 4th DCA 2006); W.J.S. v. State, 409 So.2d 1209, 1210 (Fla. 1st DCA 1982).


text:
    Murphy SINCLAIR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-77.
    District Court of Appeal of Florida, Third District.
    June 29, 2011.
    Rehearing Denied July 19, 2011.

      Murphy Sinclair, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, C.J., and CORTEÑAS and SALTER, JJ.
   PER CURIAM.

Murphy Sinclair appeals the trial court’s order denying his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Sinclair contends that the trial court violated the double jeopardy clause when it sentenced him to concurrent habitual felony offender and prison releasee reoffender sentences. We disagree and affirm.

Following a jury trial, the jury found Sinclair guilty of resisting an officer without violence and burglary of an occupied dwelling. The court sentenced him to twenty years as a habitual felony offender (“HFO”) with a fifteen-year minimum mandatory sentence as a prison releasee reoffender (“PRR”).

Sinclair’s claim cannot be sustained in light of the Florida Supreme Court’s decision in Grant v. State, 770 So.2d 655 (Fla.2000). In Grant, the defendant argued that his concurrent fifteen-year HFO and PRR sentences for sexual battery violated his double jeopardy rights. The Florida Supreme Court rejected Grant’s double jeopardy argument. See also Pacheco v. State, 784 So.2d 459, 460 (Fla. 3d DCA 2000) (sentencing of a defendant as both a PRR and a HFO does not violate the constitutional protection against double jeopardy).

However, the Florida Supreme Court in Grant concluded that the sentences violated section 775.082, Florida Statutes (1997), the Prison Releasee Reoffender Act (“PRR Act”), because the concurrent HFO and PRR sentences were equal in length. The Supreme Court observed that, under the PRR Act, “ ‘[n]othing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to s. 775.084 [the HFO statute], or any other provision of law.’” Grant, 770 So.2d at 658 (citing § 775.082(8)(c), Fla. Stat. (1997), now § 775.082(9)(c)). The Supreme Court found that “this subsection allows a trial court to impose an HFO sentence on a PRR when the defendant qualifies under both statutes. It does not require a trial court to choose between one or the other. When a defendant receives a sentence like the one in this case, the PRR Act operates as a mandatory minimum sentence.” Grant, 770 So.2d at 658.

Consequently, concurrent HFO and PRR sentences for the same offense are permissible when the incarceration period of the HFO sentence exceeds the PRR sentence. Here, the court sentenced Sinclair to twenty years as a HFO and fifteen years as a PRR. Therefore, the trial court did not violate the PRR Act.

Further, this Court previously held that Sinclair’s twenty-year sentence as a HFO and fifteen-year sentence as a PRR was in fact a legal sentence. See Sinclair v. State, 994 So.2d 1247 (Fla. 3d DCA 2008).

Accordingly, we affirm.


author: ORFINGER, C.J.

text:
    Raymundo SANTIAGO, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-428.
    District Court of Appeal of Florida, Fifth District.
    July 1, 2011.
    V.J. (Jimmy) Benincasa, Vero Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR REHEARING

ORFINGER, C.J.

We grant Raymundo Santiago’s motion for rehearing and request for written opinion, withdraw our earlier per curiam affir-mance and issue the following opinion in its stead.

Santiago pled no contest to possession of cocaine with intent to sell or deliver and possession of drug paraphernalia. He did not appeal his probationary sentence, which became final on February 2, 2008. On April 16, 2010, Santiago filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The trial court denied Santiago’s motion as untimely. We affirm, but write to address Santiago’s claim that under the holding of Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), trial counsel was ineffective by not advising him of the deportation consequences of his no contest plea.

The record reflects that the following exchange took place between the court and Santiago during the plea colloquy:

THE COURT: Did you have an opportunity to discuss the plea form and your case with your attorney?
THE DEFENDANT: Yes.
THE COURT: Did you understand all the rights that are contained in this plea form; such as, your right to plead not guilty, the right to have your attorney represent you through a jury trial, the right to compel witnesses to testify on your behalf and cross-examine the witnesses against you, the right to testify or to remain silent, present any defenses that you might have and the right to require the State prove your guilt beyond reasonable doubt?
THE DEFENDANT: Yes.
THE COURT: Do you also understand that if you’re not a United States citizen that this plea could subject you to deportation?
THE DEFENDANT: Yes.

(Emphasis added).

We agree with the holding of Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010), that the trial court’s warning to Santiago that he may be deported as a result of his plea cured any prejudice that might have flowed from counsel’s misadvice (assuming any misadvice was given). Santiago, like Flores, assumed the risk that he “may” be deported. But see Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011) (certifying conflict with Flores and finding that Padilla rendered Florida’s existing standard deportation warning that plea “may” subject defendant to deportation to be constitutionally deficient in cases where automatic deportability is “truly clear,” non-discretionary consequence). However, we do agree with that part of the decision in Hernandez holding that Padilla should not be applied retroactively. State v. Shaikh, 65 So.3d 539, - (Fla. 5th DCA 2011); see State v. Green, 944 So.2d 208 (Fla. 2006) (holding that motion to withdraw plea on grounds that trial court did not advise of possibility of deportation will be held to same two-year time constraint as other postconviction motions to vacate sentences).

AFFIRMED.

MONACO and COHEN, JJ., concur.


text:
    Mike HARIDOPOLOS, President of the Florida Senate and Dean Cannon, Speaker of the Florida House of Representatives, Petitioner, v. ALACHUA COUNTY, Florida, Collier County, Florida, Lake County, Florida, Lee County, Florida, Levy County, Florida, Nassau County, Florida, Pasco County, Florida, St. Lucie County, Florida and Sarasota County, Florida, Political Subdivisions of the State of Florida, Association of Counties, Inc., Florida League of Cities, and Florida School Boards Association, Corporations Not for Profit Under Florida Law, Respondent.
    No. 1D10-6433.
    District Court of Appeal of Florida, First District.
    July 7, 2011.
    Pamela Jo Bondi, Attorney General and Jonathan Glogau, Assistant Attorney General, for Petitioner.
    Harry F. Chiles, Gregory T. Stewart, Carly J. Schrader, Heath R. Stokley of Nabors, Giblin & Nickerson, for Respondent.
   PER CURIAM.

On this court’s own motion, the opinion dated May 9, 2011, is withdrawn and the following revised opinion is substituted therefor.

Petitioners — the Senate President and Speaker of the House — petition this court to quash a trial court’s denial of a motion to dismiss an action for declaratory relief, seeking to declare section 163.31801(5), Florida Statutes (2009), unconstitutional. The trial court denied the motion based on its finding that Petitioners were proper parties as the complaint challenged the process by which the bill was passed, not the statute’s contents. Specifically, the complaint alleged Petitioners failed to adopt the bill in accordance with several state constitutional provisions which required passage by a two-thirds majority in each chamber. We find the lower court departed from the essential requirements of the law when it denied the motion to dismiss. We grant writ and quash the order.

A suit challenging the constitutionality of a statute must be brought against the state agency or department charged with enforcing the statute at issue. See Walker v. President of the Senate, 658 So.2d 1200 (Fla. 5th DCA 1995) (holding that the Senate President and Speaker of the House were not proper parties to a declaratory action challenging certain operations of the Department of Corrections); see also Atwater v. City of Weston, 64 So.3d 701 (Fla. 1st DCA 2011) (holding that the Senate President, Speaker of the House, Governor, and Secretary of State were not proper parties to a lawsuit challenging the constitutionality of the growth management statute). In other words, legislators are not proper parties to actions seeking a declaration of rights under a particular statute. See Walker, 658 So.2d at 1200; see also Atwater, 64 So.3d at 704.

In the instant case, Respondents filed a complaint against the Senate President and Speaker of the House (Petitioners) requesting the lower court declare section 163.31801(5) unconstitutional. Section 163.31801(5) provides that:

In any action challenging an impact fee, the government has the burden of proving by a preponderance of the evidence that the imposition or amount of the fee meets the requirements of state legal precedent or this section. The court may not use a deferential standard.

The four-count complaint alleged the statute violated the following state constitutional provisions: Article V, section 2 (providing that legislative changes to a court rule of practice and procedure must be adopted by a two-thirds vote in each chamber); Article II, section 3 (providing for the separation of powers); Article VII, section 18(a) (providing that “[n]o county or municipality shall be bound by any general law requiring such county or municipality to spend funds or take an action requiring the expenditure of funds” unless the legislature has, among other things, adopted the bill by a two-thirds vote in each chamber); and Article VII, section 18(b) (providing that “the legislature may not enact, amend, or repeal any general law if the anticipated effect of doing so would be to reduce the authority that municipalities and counties have to raise revenues in the aggregate[,]” unless such law is adopted by a two-thirds majority in each chamber). Despite Respondents’ attempts to distinguish this case as a challenge to the process by which the statute was adopted, rather than a challenge to the constitutionality of the statute, all four counts of the complaint are, in actuality, challenges to the statute’s contents.

The most obvious challenge occurs where Respondents argue that, by eliminating courts’ ability to use a deferential standard in their consideration of disputes over impact fees, the statute violates Article II, section 3, or the separation of powers. This is a direct attack on the statute’s contents.

With respect to the other counts alleged, whether or not the two-thirds vote requirement is triggered by the underlying statute is a question that goes to the statute’s substance. In other words, Respondents assume that, because the Bill Analysis and Fiscal Impact Statements prepared by Senate and House staff concluded that the statute triggered the two-thirds requirement, the legislature was required to adopt the bill by a two-thirds majority in each chamber. However, the bill analyses are not dispositive of this issue. To determine whether the statute should have been passed in accordance with the two-thirds requirement, a court would need to consider whether such requirement was even implicated by the statute’s contents. Indeed, it is important to note that the bill analyses only addressed Article VII, section 18(b). Thus, a lower court would have to consider whether the statute’s contents required compliance with the remaining constitutional provisions cited in the complaint (i.e. Article V, section 2 and Article VII, section 18(a)). Consequently, Respondents’ attempts to distinguish this case on the basis that they are challenging how the statute was adopted, as opposed to its substance, are unpersuasive.

We find that Petitioners are not proper parties to the underlying action as they are not charged with enforcing the statute at issue. Because involving Petitioners in further litigation will negate this finding, thereby causing irreparable harm, and because the trial court departed from the essential requirements of law in finding that Petitioners were proper parties, we GRANT the petition and QUASH the order denying Petitioners’ motion to dismiss.

LEWIS, HAWKES and MARSTILLER, JJ., concur.