author: EMAS, J.

text:
    STATE of Florida DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Andrew C. SAXLEHNER, Respondent.
    No. 3D11-3305.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 2012.
    Rehearing Denied Sept. 13, 2012.

      Jason Helfant, Lake Worth, Assistant General Counsel, for petitioner.
    S. Lee Kaufman, for respondent.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   EMAS, J.

In this second-tier certiorari review, the State of Florida, Department of Highway Safety and Motor Vehicles (“the Department”) petitions this court for a writ of certiorari. The Department asserts that the circuit court, in its appellate capacity, departed from the essential requirements of law in granting Andrew Saxlehner’s petition for writ of certiorari and reversing the Department’s order sustaining the suspension of Saxlehner’s driver’s license. For the reasons which follow, we grant the petition and quash the opinion of the circuit court.

FACTS AND BACKGROUND

On October 9, 2009, Saxlehner was driving his vehicle when he was stopped by Officer Wheeler of the Coral Gables Police Department. Officer Wheeler stopped the vehicle because it matched an earlier “be on the lookout” (“BOLO”) dispatch from the Coral Gables Police Department. Officers Rodriguez and Perez soon arrived on the scene, observed Saxlehner’s condition and administered field sobriety exercises, which Saxlehner performed poorly. Officer Rodriguez placed Saxlehner under arrest for driving under the influence, and transported him to the station. Saxlehner submitted to a breathalyzer test, which revealed his alcohol level was twice the legal limit. As a result, his driving privileges were suspended for six months.

Saxlehner requested a formal administrative review of his suspension, which was held on December 17, 2009. Present at the formal review hearing were Officers Rodriguez and Perez, as well as counsel for Saxlehner. The hearing officer was presented with several documents, including the probable cause affidavit of Officer Rodriguez, the Alcohol Influence Report, an Implied Consent form, a Miranda rights waiver form, a breath alcohol test affidavit and an inspection report for the instrument used to measure Saxlehner’s breath-alcohol level.

Officer Rodriguez and Officer Perez testified at the hearing and were questioned by Saxlehner’s counsel. The evidence at the hearing established the following: On October 9, 2009, a BOLO was issued to Coral Gables police officers for a white male driver in a maroon Mercedes Benz with front-end damage and smoke emanating from the vehicle. The BOLO included the license plate number and indicated this vehicle was suspected to have been involved in a hit-and-run accident and had last been seen near the Biltmore Hotel. Officer Wheeler of the Coral Gables Police Department observed a vehicle matching the BOLO (including a match of the license plate) driven by a white male turn into the Biltmore Hotel parking lot, and conducted a traffic stop of the vehicle. The vehicle was being driven by Saxleh-ner. A second officer (Officer Rodriguez) also heard the BOLO and soon arrived at the scene. At that point, Saxlehner was no longer in the vehicle, but was standing outside the car. Officer Rodriguez observed that Saxlehner had a bloody nose, bloodshot and watery eyes, and a strong odor of an alcoholic beverage on his breath. Saxlehner’s vehicle had fresh front end damage and was leaking fluids from the radiator. A third officer (Officer Perez), arrived at the scene and administered field sobriety exercises to Saxlehner; when Saxlehner failed to perform those exercises to standard, Officer Rodriguez arrested Saxlehner for driving under the influence, and a subsequent breath test revealed that Saxlehner had an unlawful blood-alcohol level.

At the conclusion of the evidentiary hearing, counsel for Saxlehner moved to invalidate the suspension based on Officer Wheeler’s failure to appear, arguing he was the only officer who observed Saxleh-ner behind the wheel, and thus was an essential witness to establishing the validity of the initial stop. The hearing officer disagreed that Officer Wheeler was an essential witness, but gave Saxlehner an opportunity to seek enforcement of the subpoena through the circuit court. Thereafter, the hearing officer sustained the suspension of Saxlehner’s driver’s license.

Saxlehner did not seek enforcement of the subpoena, but instead filed a petition for writ of certiorari in the circuit court, raising several grounds. The circuit court granted the petition on the ground that “the only evidence presented at the hearing to establish that Saxlehner was driving or in actual physical control of the vehicle came from Officers Rodriguez and Perez, which amounted to hearsay evidence.” The circuit court found that this hearsay evidence was not corroborated by competent substantial evidence and therefore the license suspension could not be sustained. For this proposition, the circuit court cited Spicer v. Metropolitan Dade County, 458 So.2d 792, 794 (Fla. 3d DCA 1984), which held that hearsay evidence is generally admissible in administrative hearings, but “hearsay evidence alone is not sufficient to support a finding unless it would be admissible over objection in civil actions.”

The Department filed this petition for writ of certiorari asserting that the circuit court failed to apply the correct law relating to administrative reviews of a driver’s license suspension, and failed to acknowledge and apply statutory and case law expressly allowing admission of evidence under the Fellow Officer Rule. Saxlehner counters that the Department has not established a basis for relief under the limited scope of second-tier certiorari review.

SCOPE AND STANDARD OF REVIEW

Because this case involves second-tier certiorari, our scope and standard of review is quite limited: “As a case travels up the judicial ladder, review should consistently become narrower, not broader.” Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995). A district court of appeal may not utilize second-tier review to correct simple legal error. To permit such a broad scope of review would, in essence, permit a second appeal, nullifying the narrowing scope of review described in Haines. As the Supreme Court observed recently:

[W]hen a district court considers a petition for second-tier certiorari review, the “inquiry is limited to whether the circuit court afforded procedural due process and whether the circuit court applied the correct law,” or, as otherwise stated, departed from the essential requirements of law.

Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla.2010) (quoting Haines, 658 So.2d at 530).

ANALYSIS

The circuit court’s decision constituted a clear departure from the essential requirements of law. The circuit court failed to apply the correct statutory and administrative provisions governing formal review hearings for suspension of one’s driving privileges. The specific and relevant provisions are found at section 322.2615, Florida Statutes (2010), and Florida Administrative Code Chapter 15A-6.013.

Section 322.2615 provides in pertinent part:

(6)(a) If the person whose license was suspended requests a formal review, the department must schedule a hearing to be held within 30 days after such request is received by the department and must notify the person of the date, time, and place of the hearing.
(b) Such formal review hearing shall be held before a hearing officer employed by the department, and the hearing officer shall be authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas for the officers and witnesses identified in documents in subsection (2), regulate the course and conduct of the hearing, question witnesses, and make a ruling on the suspension. The party requesting the presence of a witness shall be responsible for the payment of any witness fees and for notifying in writing the state attorney’s office in the appropriate circuit of the issuance of the subpoena. If the person who requests a formal review hearing fails to appear and the hearing officer finds such failure to be without just cause, the right to a formal hearing is waived and the suspension shall be sustained.
(c) A party may seek enforcement of a subpoena under paragraph (b) by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides. A failure to comply with an order of the court shall result in a finding of contempt of court. However, a person is not in contempt while a subpoena is being challenged.
(11) The formal review hearing may he conducted wpon a review of the reports of a law enforcement officer or a correctional officer, including documents relating to the administration of a breath test or blood test or the refusal to take either test or the refusal to take a urine test. However, as provided in subsection (6), the driver may subpoena the officer or any person who administered or analyzed a breath or blood test.,
(12) The formal review hearing and, the informal review hearing are exempt from the provisions of chapter 120. The department may adopt rules for the conduct of reviews under this section.

(Emphasis added).

Pursuant to the statutory authorization provided in subsection (12) above, the Department of Highway Safety and Motor Vehicles adopted Florida Administrative Code, Chapter 15A-6.013, which establishes the procedures to be followed at a formal review hearing. It provides in pertinent part:

(2)The hearing officer may consider any report or photocopies of such report submitted by a law enforcement officer, correctional officer or law enforcement or correctional agency relating to the suspension of the driver, the administration or analysis of a breath or blood test, the maintenance of a breath testing instrument, or a refusal to submit to a breath, blood, or urine test, which has been filed prior to or at the review. Any such reports submitted to the hearing officer shall be in the record for consideration by the hearing officer. No extrinsic evidence of authenticity as a condition precedent to admissibility is required.
(3) To be considered as evidence, any relevant document which is not self authenticating as provided by subsection (2) may be introduced into evidence at the formal review if it has been properly authenticated by a witness or under a statute permitting its introduction by another method of authentication.
(4) Oral evidence shall be taken only on oath or affirmation.
(5) The driver shall have the right to present evidence relevant to the issues, to cross-examine opposing witnesses, to impeach any witness, and to rebut the evidence presented against the driver.
(6) Any relevant evidence shall be admitted, provided that it is timely filed as provided in this rule. Relevant evidence is defined as evidence which tends to prove or disprove a material fact.
(7) The hearing officer shall determine whether the suspension or disqualification is supported by a preponderance of the evidence.
(a) The scope of the review shall be limited to the issues delineated in Section 322.2615(7), 322.2616(8) or 322.64(7), F.S.
(b) The hearing officer shall restrict the course of the hearing and the evidence to the issues of fact and law raised in the notice of hearing or in any prehearing statement filed by the driver in response to the prehearing order issued pursuant to Rule 15A-6.011, F.A.C.
(c) The hearing officer is the sole decision maker as to the weight, relevance and credibility of any evidence presented.
(8) The testimony of any witness shall be under oath.
(9) The hearing officer may question any witness.

(Emphasis added).

The Legislature has made it clear that Florida’s Administrative Procedure Act (Chapter 120) is inapplicable to the formal review of a driver’s license suspension. Instead, the applicable procedures are outlined in section 322.2615 and in the administrative regulations adopted by the Department in Chapter 15A-6.013 of the Florida Administrative Code. Pursuant to those provisions, a formal review may be conducted without any witnesses at all, and a hearing officer’s decision may be based solely upon the documents submitted by the arresting agency. See § 322.2615(11), Fla. Stat. (2010). These documents are admissible into evidence for the hearing officer’s consideration without any further requirement of authenticity. Sée Ch. 15A-6.013(2), Fla. Admin. Code.

Neither the statute nor the administrative regulation prohibits the admission of hearsay evidence. Nor do these provisions require non-hearsay evidence to corroborate any hearsay evidence admitted at the hearing. This stands in stark contrast to the procedures which generally govern administrative hearings under Chapter 120, Florida Statutes. Section 120.57(l)(c), Florida Statutes (2010), provides:

Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.

(Emphasis added).

The arrest affidavit was prepared by Officer Rodriguez and was admitted into evidence without objection and pursuant to section 322.2615(2) and (11), and Chapter 15A-6.013(2). That arrest affidavit included Officer Wheeler’s statements to Officer Rodriguez that he (Officer Wheeler) observed Saxlehner driving the vehicle and that he (Officer Wheeler) stopped Saxleh-ner’s vehicle. The arrest affidavit and its contents were admissible evidence in a formal review hearing conducted pursuant to section 322.2615 and Chapter 15A-6.013.

The circuit court concluded that Officer Wheeler’s statements to Officer Rodriguez constituted the only evidence that Saxleh-ner was driving or in actual physical control of the vehicle; that this hearsay evidence was not corroborated by other non-hearsay evidence; and that absent corroborating evidence, the hearing officer’s finding that Saxlehner was driving was not based on competent substantial evidence. In support of this conclusion, the circuit court cited Spicer v. Metropolitan Dade County, 458 So.2d 792 (Fla. 3d DCA 1984). In Spicer, a former police officer sought certiorari review of the circuit court’s affir-mance of a final agency action terminating Spicer from his employment with the police department. The question presented was whether the hearsay evidence presented at the administrative hearing was sufficient to support the termination. The Spicer Court observed that “generally, hearsay evidence is admissible in administrative hearings.” Id. at 794. However, the Court noted that in administrative hearings held pursuant to Chapter 120, Florida Statutes, “hearsay evidence alone is not sufficient to support a finding unless it would be admissible over objection in civil actions.” Id. (citing § 120.58(l)(a), Fla. Stat. (1983)). The Court granted the petition, concluding that Spicer’s termination from his employment “was based solely on uncorroborated hearsay evidence, thus constituting a departure from the essential requirements of the law.” Spicer, 458 So.2d at 795.

In the instant case, the circuit court relied upon Spicer and the statutory language of section 120.57(l)(c) in concluding that the hearsay evidence of Officer Wheeler’s observations and statements to Officer Rodriguez were insufficient to establish that Saxlehner was driving or in actual physical control of the vehicle. However, as we have discussed, the Legislature expressly provided that a formal hearing to review a license suspension under section 822.2615 is not subject to the provisions of Chapter 120. See § 322.2615(12), Fla. Stat. (2010) (providing “[t]he formal review hearing and the informal review hearing are exempt from the provisions of chapter 120. The department [of Highway Safety and Motor Vehicles] may adopt rules for the conduct of reviews under this section.”). In adopting rules for the conduct of reviews, the Department did not prohibit the admission or consideration of hearsay evidence; nor did the Department require that hearsay evidence be corroborated by non-hearsay evidence. Neither Spicer nor Chapter 120 applies to the formal review process under section 322.2615 and should not have been relied upon by the circuit court. In relying upon the hearsay provision of section 120.57(l)(c) instead of the relevant provisions of section 322.2615 and Chapter 15A-6.013, the circuit court failed to apply the correct law, thus departing from the essential requirements of law. As the Florida Supreme Court explained in Nader v. Department of Highway Safety & Motor Vehicles, 87 So.3d 712, 723 (Fla.2012):

[C]ertiorari jurisdiction cannot be used to create new law where the decision below recognizes the correct general law and applies the correct law to a new set of facts to which it has not been previously applied. In such a situation the law at issue is not a clearly established principle of law. This does not mean, however, that clearly established law consists only of prior judicial precedent. In [Allstate Insur. Co. v.] Kaklamanos, 843 So.2d [885,] 890 [Fla.2003], we explicitly held that “clearly established law” can derive from a variety of legal sources, including recently controlling case law, rules of courts, statutes, and constitutional law.

In the case at bar, the circuit court applied the incorrect statute, and failed to apply the correct statute and administrative regulation, resulting in a departure from clearly established law. This error is capable of repetition in other cases, and would continue to deprive the Department of its ability to sustain a driver’s license suspension based upon evidence which is properly admitted and legally sufficient under the existing regulatory scheme. Because the circuit court’s decision “could affect many other administrative proceedings involving the suspension of drivers’ licenses,” Department of Highway Safety & Motor Vehicles v. Anthol, 742 So.2d 813, 813 (Fla. 2d DCA 1999), we conclude that the error is “sufficiently egregious or fundamental to fall within the limited scope” of our second-tier certiorari jurisdiction. See Kaklamanos, 843 So.2d at 890.

Accordingly, we grant the petition for writ of certiorari, issue the writ, and quash the circuit court’s opinion, with directions to affirm the Department’s order sustaining the suspension.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)

      . These documents were admitted into evidence without objection.

      . Despite being subpoenaed for the hearing, Officer Wheeler did not appear.

      . Officer Rodriguez and Officer Perez each heard the BOLO information dispatched over the radio.

      . The information regarding the initial stop of the vehicle was included in Officer Rodriguez's sworn arrest affidavit, which was entered into evidence without any objection from Saxlehner. Officer Wheeler provided this information to Officer Rodriguez when Officer Rodriguez first arrived on the scene.

      . Spicer sought certiorari review of the circuit court's affirmance of an agency action terminating his employment. The administrative hearing was held pursuant to Chapter 120, Florida Statutes, which expressly provides that hearsay "shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.” See § 120.57, Fla. Stat. (2010). As we discuss, infra, however, a hearing to review a driver’s license suspension is expressly exempt from the provisions of Chapter 120. See § 322.2615(12), Fla. Stat. (2010) (providing "[t]he formal review hearing and the informal review hearing are exempt from the provisions of chapter 120. The department [of Highway Safety and Motor Vehicles] may adopt rules for the conduct of reviews under this section”).

      . Section 120.58(l)(a) is the predecessor provision to current section 120.57(l)(c).

      . As noted earlier, Officers Rodriguez and Perez appeared, and testified, at the hearing. Saxlehner's counsel subpoenaed Officer Wheeler for the hearing, but he did not appear. The hearing officer offered Saxlehner’s counsel a ten-day continuance to seek enforcement of the subpoena as provided in section 322.2615(6)(c), but counsel declined to do so.

      . We do not reach the merits of the other issues raised by petitioner.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    The Honorable Jeffrey H. ATWATER Chief Financial Officer and State of Florida Department of Financial Services, Petitioners, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Suzette Carew, Calvin B. Carew, Metropolitan Dade County, and National Equity Recovery Services, Inc., Respondents.
    No. 3D12-1499.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 2012.
    Rehearing Denied Sept. 20, 2012.
    Lori L. Jobe, Tallahassee, Assistant General Counsel, Department of Financial Services, for petitioners.
    Rafael De Araujo, for respondent National Equity Recovery Services, Inc.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Jeffrey H. Atwater, Chief Financial Officer of the State of Florida (“Chief Financial Officer”) petitions this Court for a writ of prohibition directed to the circuit court to prevent it from enforcing an order to show cause issued for the Chief Financial Officer to appear before the circuit court, and to prevent disbursement of funds being held in the Treasury of the State of Florida as unclaimed property by the Department of Financial Services (“the Department”). Further, the Chief Financial Officer petitions to prohibit the lower court from enforcing its order directing the Chief Financial Officer to remit the unclaimed funds being held by the Department for deposit into the State Treasury for the use of the State School Fund. We grant the petition for writ of prohibition.

First, by agreement of the parties, the order to show cause why the Chief Financial Officer should not be held in contempt for failure to appear is hereby vacated. The sanctions ordered by the trial court were unauthorized pursuant to section 43.19, Florida Statutes (2011). Further, the trial court is without jurisdiction to compel the Department to disburse funds without the Department first having determined the entitlement of the claimant to the funds held by the Department. See O’Connor v. Zane, 79 So.3d 105 (Fla. 1st DCA 2012) (holding that petitioner failed to exhaust administrative remedies by first filing claim for unclaimed property with the Department of Financial Services to obtain a determination of entitlement to the unclaimed funds prior to pursuing judicial remedies).

The Department of Financial Services is vested with the sole authority to make financial determinations as to unclaimed funds. See Art. IV, § 4(c), Fla. Const, (conferring upon the State’s chief fiscal officer exclusive authority to examine and approve all claims against the state for unclaimed funds); § 43.19(1), Fla. Stat. (2011) (“In every case in which the right to withdraw money deposited as hereinbefore provided has been adjudicated or is not in dispute and the money has remained so deposited for 5 years or more unclaimed by the person, firm, or corporation entitled thereto, on or before December 1 of each year the judge, or one of the judges, of the court shall direct that the money be deposited with the Chief Financial Officer to the credit of the State School Fund ....) (emphasis added); § 215.965, Fla. Stat. (2011) (“[A]ll moneys in the State Treasury shall be disbursed by state warrant, drawn by the Chief Financial Officer upon the State Treasury and payable to the ultimate beneficiary.”); § 716.07(1), Fla. Stat. (2011)

(“Any person who claims any property, funds, or money delivered to the Treasurer or Chief Financial Officer ... shall, ... file a verified claim with the Chief Financial Officer, setting forth the facts upon which the party claims to be entitled to recover the money or property.”; § 716.07(2), Fla. Stat. (2011) (“The Chief Financial Officer shall approve or disapprove the claim.”); § 717.1244, Fla. Stat. (2011) (stating that the Department determines the merits of all claims pursuant to applicable statutory, regulatory, common, and case law in accordance with the Florida Disposition of Unclaimed Property Act); see also § 717.126, Fla. Stat. (2011) (providing that the burden shall be upon the claimant to establish with the Department of Financial Services entitlement to the unclaimed property by a preponderance of evidence, and “[ujnless otherwise agreed by the parties, venue shall be in Tallahassee, Leon County, Florida”).

Order to show cause vacated; petition for writ of prohibition granted.


text:
    The Honorable Jeffrey H. ATWATER Chief Financial Officer and State of Florida Department of Financial Services, Petitioners, v. CITIBANK, F.S.B., INC., Leoncio Estevez and Carolina Estevez, his wife, and National Equity Recovery Services, Inc., Respondents.
    No. 3D12-1379.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 2012.
    Rehearing Denied Sept. 20, 2012.

      Lori L. Jobe, Tallahassee, Assistant General Counsel, Department of Financial Services, for petitioners.
    Rafael De Araujo, for respondent National Equity Recovery Services, Inc.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Jeffrey H. Atwater, Chief Financial Officer of the State of Florida (“Chief Financial Officer”) petitions this Court for a writ of prohibition directed to the circuit court to prevent it from enforcing an order to show cause issued for the Chief Financial Officer to appear before the circuit court, and to prevent disbursement of funds being held in the Treasury of the State of Florida as unclaimed property by the Department of Financial Services (“the Department”). Further, the Chief Financial Officer petitions to prohibit the lower court from enforcing its order directing the Chief Financial Officer to remit the unclaimed funds being held by the Department for deposit into the State Treasury for the use of the State School Fund. We grant the petition for writ of prohibition.

First, by agreement of the parties, the order to show cause why the Chief Financial Officer should not be held in contempt for failure to appear is hereby vacated. The sanctions ordered by the trial court were unauthorized pursuant to section 43.19, Florida Statutes (2011). The trial court is without jurisdiction to compel the Department to disburse funds without the Department first having determined the entitlement of the claimant to the funds held by the Department. See O’Connor v. Zane, 79 So.3d 105 (Fla. 1st DCA 2012) (holding that petitioner failed to exhaust administrative remedies by first filing claim for unclaimed property with Department of Financial Services to obtain a determination of entitlement to the unclaimed funds prior to pursuing judicial remedies).

The Department of Financial Services is vested with the sole authority to make financial determinations as to unclaimed funds. See Art. IV, § 4(c), Fla. Const, (conferring upon the State’s chief fiscal officer exclusive authority to examine and approve all claims against the state for unclaimed funds); § 43.19, Fla. Stat. (2011) (“In every case in which the right to withdraw money deposited as hereinbefore provided has been adjudicated or is not in dispute and the money has remained so deposited for 5 years or more unclaimed by the person, firm, or corporation entitled thereto, on or before December 1 of each year the judge, or one of the judges, of the court shall direct that the money be deposited with the Chief Financial Officer to the credit of the State School Fund ....) (emphasis added); § 215.965, Fla. Stat. (2011) (“[A]ll moneys in the State Treasury shall be disbursed by state warrant, drawn by the Chief Financial Officer upon the State Treasury and payable to the ultimate beneficiary.”); § 716.07(1), Fla. Stat. (2011) (“Any person who claims any property, funds, or money delivered to the Treasurer or Chief Financial Officer ... shall, ... file a verified claim with the Chief Financial Officer, setting forth the facts upon which the party claims to be entitled to recover the money or property.); § 716.07(2), Fla. Stat. (2011) (“The Chief Financial Officer shall approve or disapprove the claim.”); § 717.1244, Fla. Stat. (2011) (stating that the Department determines the merits of all claims pursuant to applicable statutory, regulatory, common, and ease law in accordance with the Florida Disposition of Unclaimed Property Act); see also § 717.126, Fla. Stat. (2011) (providing that the burden shall be upon the claimant to establish with the Department of Financial Services entitlement to the unclaimed property by a preponderance of evidence, and “[ujnless otherwise agreed by the parties, venue shall be in Tallahassee, Leon County, Florida”).

Order to show cause vacated; petition for writ of prohibition granted.


text:
    The Honorable Jeffrey H. ATWATER Chief Financial Officer and State of Florida Department of Financial Services, Petitioners, v. EQUITY ONE, INC., Maria I. Diaz, and National Equity Recovery Services, Inc., Respondents.
    No. 3D12-1359.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 2012.
    Rehearing Denied Sept. 25, 2012.

      Richard T. Donelan, Jr.,Tallahassee, Chief General Counsel, Department of Financial Services, for petitioners.
    Rafael De Araujo, for respondent National Equity Recovery Services, Inc.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Jeffrey H. Atwater, Chief Financial Officer of the State of Florida (“Chief Financial Officer”) petitions this Court for a writ of prohibition directed to the circuit court to prevent it from enforcing an order to show cause issued for the Chief Financial Officer to appear before the circuit court, and to prevent disbursement of funds being held in the Treasury of the State of Florida as unclaimed property by the Department of Financial Services (“the Department”). Further, the Chief Financial Officer petitions to prohibit the lower court from enforcing its order directing the Chief Financial Officer to remit the unclaimed funds being held by the Department for deposit into the State Treasury for the use of the State School Fund. We grant the petition for writ of prohibition.

First, by agreement of the parties, the order to show cause why the Chief Financial Officer should not be held in contempt for failure to appear is hereby vacated. The sanctions ordered by the trial court were unauthorized pursuant to section 43.19, Florida Statutes (2011). Furthermore, the trial court is without jurisdiction to compel the Department to disburse funds without the Department first having determined the entitlement of the claimant to the funds held by the Department. See O’Connor v. Zane, 79 So.3d 105 (Fla. 1st DCA 2012) (holding that petitioner failed to exhaust administrative remedies by first filing claim for unclaimed property with Department of Financial Services to obtain a determination of entitlement to the unclaimed funds prior to pursuing judicial remedies).

The Department of Financial Services is vested with the sole authority to make financial determinations as to unclaimed funds. See Art. IV, § 4(c), Fla. Const, (conferring upon the State’s chief fiscal officer exclusive authority to examine and approve all claims against the state for unclaimed funds); § 43.19, Fla. Stat. (2011) (“In every case in which the right to withdraw money deposited as hereinbefore provided has been adjudicated or is not in dispute and the money has remained so deposited for 5 years or more unclaimed by the person, firm, or corporation entitled thereto, on or before December 1 of each year the judge, or one of the judges, of the court shall direct that the money be deposited with the Chief Financial Officer to the credit of the State School Fund ....) (emphasis added); § 215.965, Fla. Stat. (2011) (“[A]ll moneys in the State Treasury shall be disbursed by state warrant, drawn by the Chief Financial Officer upon the State Treasury and payable to the ultimate beneficiary.”); § 716.07(1) Fla. Stat. (2011) (“Any person who claims any property, funds, or money delivered to the Treasurer or Chief Financial Officer ... shall, ... file a verified claim with the Chief Financial Officer, setting forth the facts upon which the party claims to be entitled to recover the money or property.”); § 716.07(2), Fla. Stat. (2011) (“The Chief Financial Officer shall approve or disapprove the claim.”); § 717.1244, Fla. Stat. (2011) (stating that the Department determines the merits of all claims pursuant to applicable statutory, regulatory, common, and case law in accordance with the Florida Disposition of Unclaimed Property Act); see also § 717.126, Fla. Stat. (2011) (providing that the burden shall be upon the claimant to establish with the Department of Financial Services entitlement to the unclaimed property by a preponderance of evidence, and “[ujnless otherwise agreed by the parties, venue shall be in Tallahassee, Leon County, Florida”).

Order to show cause vacated; petition for writ of prohibition granted.


text:
    The Honorable Jeffrey H. ATWATER Chief Financial Officer and State of Florida Department of Financial Services, Petitioners, v. Mateline BRUNEAU; Edgard Bruneau; Edwin A. Bennett III; Marisa Vega; Miguel Vega; and National Equity Recovery Services, Inc., Respondents.
    No. 3D12-1294.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 2012.
    Rehearing Denied Sept. 20, 2012.

      Richard T. Donelan, Jr., Tallahassee, Chief General Counsel, Department of Financial Services, for petitioners.
    Rafael De Araujo, for respondent National Equity Recovery Services, Inc.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Jeffrey H. Atwater, Chief Financial Officer of the State of Florida (“Chief Financial Officer”) petitions this Court for a writ of prohibition directed to the circuit court to prevent it from enforcing an order to show cause issued for the Chief Financial Officer to appear before the circuit court, and to prevent disbursement of funds being held in the Treasury of the State of Florida as unclaimed property by the Department of Financial Services (“the Department”). Further, the Chief Financial Officer petitions to prohibit the lower court from enforcing its order directing the Chief Financial Officer to remit the unclaimed funds being held by the Department for deposit into the State Treasury for the use of the State School Fund. We grant the petition for writ of prohibition.

First, by agreement of the parties, the order to show cause why the Chief Financial Officer should not be held in contempt for failure to appear is hereby vacated. The sanctions ordered by the trial court were unauthorized pursuant to section 43.19, Florida Statutes (2011). The trial court is without jurisdiction to compel the Department to disburse funds without the Department first having determined the entitlement of the claimant to the funds held by the Department. See O’Connor v. Zane, 79 So.3d 105 (Fla. 1st DCA 2012) (holding that petitioner failed to exhaust administrative remedies by first filing claim for unclaimed property with Department of Financial Services to obtain a determination of entitlement to the unclaimed funds prior to pursuing judicial remedies).

The Department of Financial Services is vested with the sole authority to make financial determinations as to unclaimed funds. See Art. IV, § 4(c), Fla. Const, (conferring upon the State’s chief fiscal officer exclusive authority to examine and approve all claims against the state for unclaimed funds); § 43.19, Fla. Stat. (2011) (“In every case in which the right to withdraw money deposited as hereinbefore provided has been adjudicated or is not in dispute and the money has remained so deposited for 5 years or more unclaimed by the person, firm, or corporation entitled thereto, on or before December 1 of each year the judge, or one of the judges, of the court shall direct that the money be deposited with the Chief Financial Officer to the credit of the State School Fund ....) (emphasis added); § 215.965, Fla. Stat. (2011) (“[A]ll moneys in the State Treasury shall be disbursed by state warrant, drawn by the Chief Financial Officer upon the State Treasury and payable to the ultimate beneficiary.”); § 716.07(1), Fla. Stat. (2011) (“Any person who claims any property, funds, or money delivered to the Treasurer or Chief Financial Officer ... shall, ... file a verified claim with the Chief Financial Officer, setting forth the facts upon which the party claims to be entitled to recover the money or property.”); § 716.07(2), Fla. Stat. (2011) (“The Chief Financial Officer shall approve or disapprove the claim.”); § 717.1244, Fla. Stat. (2011) (stating that the Department determines the merits of all claims pursuant to applicable statutory, regulatory, common, and case law in accordance with the Florida Disposition of Unclaimed Property Act); see also § 717.126, Fla. Stat. (2011) (providing that the burden shall be upon the claimant to establish with the Department of Financial Services entitlement to the unclaimed property by a preponderance of evidence, and “[ujnless otherwise agreed by the parties, venue shall be in Tallahassee, Leon County, Florida”).

Order to show cause vacated; petition for writ of prohibition granted.

      . The response filed by the trial judge requesting relinquishment of jurisdiction is in agreement.


author: GERBER, J.

text:
    FLORIDA POWER & LIGHT COMPANY, Appellant, v. RUSSELL ENGINEERING, INC., Miller Legg & Associates, Inc., and Bellsouth Telecommunications, Inc., Appellees.
    No. 4D10-1380.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.
    Rehearing Denied Sept. 25, 2012.

      Michele I. Nelson of Paxton & Smith P.A., West Palm Beach, and Cheryl Kempf, Florida Power & Light Company, Juno Beach, for appellant.
    Y. Lisa Colon Heron of Smith Currie & Hancock, LLP, Fort Lauderdale, and F. Alan Cummings and Christopher R. Conley of Smith Currie & Hancock, LLP, Tallahassee, for appellee Russell Engineering, Inc.
   GERBER, J.

In this case involving underground utilities interfering with a county road expansion project, the utility company appeals from the circuit court’s final judgment awarding damages to the county’s contractor for the costs incurred to avoid the interference. The utility company argues that sections 337.403 and 337.404, Florida Statutes (1999), provide the exclusive remedy for such interference situations, and the county failed to pursue that remedy. We disagree with that argument and affirm.

Before the project began, the county sent the utility company a copy of the project’s initial plans and a letter requiring the utility company to relocate its utilities if they interfered with the project. The utility company’s relocation coordinator, recognizing that the utility company’s duct bank may interfere with the project, stated in an internal email:

I think we should have our duct bank located, soft dig to verify the exact depth of the duct bank_If we pothole now and verify where we are, it will save us a lot of headaches down the road.

That same day, the utility company’s relocation coordinator sent a letter to the county requesting that the county shift certain structures for the project. However, the letter did not mention the duct bank’s possible interference with the project.

Following that letter, the utility company did not verify the duct bank’s depth. Instead, the utility company forwarded its existing records for the duct bank’s depth to the county’s engineer. The county’s engineer relied on those records to finalize the project’s plans.

As the county’s contractor was installing a drainage pipe for the project, the contractor discovered the duct bank, which was interfering with the drainage pipe’s path. It then became known that the utility company’s records for the duct bank’s depth were inaccurate. The county had its engineer redesign the drainage pipe to travel below the duct bank. The drainage pipe’s redesigned installation caused the contractor to incur more costs and spend more time on the project than originally expected.

The county agreed to pay the contractor’s costs related to the drainage pipe’s redesigned installation. In exchange, the county assigned to the contractor its rights to recover those costs from the utility company. If the contractor recovered those costs from the utility company, the contractor was required to return those costs to the county.

The contractor, as the county’s assignee, sued the utility company. The contractor alleged that the utility company was negligent in failing to remove or relocate the duct bank which interfered with the project. The contractor sought to recover the additional costs incurred in remedying the interference. In response, the utility company argued that sections 337.403 and 337.404 provided the county with the exclusive remedy of requiring the interfering utilities to be removed or relocated before damages could be awarded. Because the county failed to pursue that remedy, the utility company argued, summary judgment in its favor was appropriate. The circuit court denied the motion.

After a non-jury trial, the circuit court found in the contractor’s favor on the negligence claim. The court entered a final judgment in the contractor’s favor for the damages which the contractor sought from the utility company.

This appeal followed. The utility company argues that the circuit court erred in denying the motion for summary judgment and entering final judgment for the contractor on the negligence claim. As in the circuit court, the utility company contends that sections 337.403 and 337.404 provided the county with the exclusive remedy of requiring the interfering utilities to be removed or relocated before damages could be awarded, and because the county failed to pursue that remedy, summary judgment in its favor was appropriate. Based on that argument, our review is de novo. See Hill v. Davis, 70 So.3d 572, 575 (Fla.2011) (“Because this issue is one of statutory interpretation, review is de novo.”) (citation omitted); Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001) (“The standard of review governing a trial court’s ruling on a motion for summary judgment posing a pure question of law is de novo.”) (footnote omitted); Shelby Homes at Millstone, Inc. v. Cullinane, 61 So.3d 472, 475 (Fla. 4th DCA 2011) (where a trial court’s conclusions following a non-jury trial are based upon alleged legal error, the standard of review is de novo) (citation omitted).

We disagree with the utility company’s argument. The utility company has not cited any applicable case law supporting its argument that sections 337.403 and 337.404 provided the county with the exclusive remedy of requiring the interfering utilities to be removed or relocated before damages could be awarded. On the contrary, as our supreme court stated in Thornber v. City of Fort Walton Beach, 568 So.2d 914 (Fla.1990):

Whether a statutory remedy is exclusive or merely cumulative depends upon the legislative intent as manifested in the language of the statute. The presumption is that no change in the common law is intended unless the statute is explicit and clear in that regard. Unless a statute unequivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist, the statute will not be held to have changed the common law.

Id. at 918 (citations omitted).

Here, sections 337.403 and 337.404 do not unequivocally state that they change the common law, nor are those statutes so repugnant to the common law that the two cannot coexist. Section 337.403 provides, in pertinent part:

(1) Any utility heretofore or hereafter placed ... under ... any public road ... that is found by the authority to be unreasonably interfering in any way with the ... expansion ... of such public road ... shall, upon 30 days’ written notice to the utility [company] ... by the authority, be removed or relocated by such utility [company] at its own expense....
(3) Whenever an order of the authority requires such removal or [relocation] of any utility from the right-of-way of a public road ... and the [utility company] fails to remove or [relocate] the same at [its] own expense to conform to the order within the time stated in the notice, the authority shall proceed to cause the utility to be removed....

§ 337.403, Fla. Stat. (1999). Section 337.404 then provides, in pertinent part:

(1) Whenever it shall become necessary for the authority to remove or relocate any utility as provided in the preceding section, the [utility company] shall be given notice of such removal or relocation and an order requiring the payment of the cost thereof, and shall be given reasonable time, which shall not be less than 20 nor more than 30 days, in which to appear before the authority to contest the reasonableness of the order....

§ 337.404, Fla. Stat. (1999) (emphasis added).

The phrase which we have emphasized from section 337.404, “[w]henever it shall become necessary for the authority to remove or relocate any utility,” is significant in the instant case. Here, the record evidence indicates that it was not necessary for the county to require the interfering duct bank to be removed or relocated to continue with the project. Rather, the county was able to have its engineer redesign the drainage pipe installation to travel below the duct bank. Because the utility company’s negligence caused the need for that redesigned installation, and because the county’s contractor incurred additional costs related to that redesigned installation, a common law damages award against the utility company and in favor of the county’s contractor was legally correct.

As to the other arguments which the utility company raises in this appeal, we affirm without further discussion.

Affirmed.

TAYLOR and CIKLIN, JJ., concur.


author: PER CURIAM.

text:
    James E. TURNER, et al., Appellants, v. FORD MOTOR CREDIT COMPANY, etc., Appellee.
    No. 3D11-1377.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 2012.
    Rehearing Denied Sept. 20, 2012.

      James E. Turner and Jeffrey Turner, in proper person.
    Moody, Jones, Ingino & Morehead and Michael J. Ingino, Plantation, for appellee.
    Before SHEPHERD, SUAREZ, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).


author: STEVENSON, J.

text:
    Alvin HERRERA and Aldo Herrera, Appellants, v. Hadeer MOUSTAFA, Appellee.
    No. 4D10-2747.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.
    Sharon C. Degnan of Kubicki Draper, Fort Lauderdale, for appellants.
    Nichole J. Segal and Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, and Samuel R. Guelli of Young & Adams, P.A., Boca Raton, for appellee.
   STEVENSON, J.

In this personal injury action Alvin and Aldo Herrera appeal from a judgment following a jury verdict in the amount of $144,466 for damages suffered by the ap-pellee, Hadeer Moustafa. Moustafa has filed a cross-appeal. We affirm as to all issues raised in this case and write briefly to address the Herreras’ argument that Moustafa impermissibly introduced the subject of insurance during cross-examination of two expert witnesses.

This case arose from a car accident involving Alvin Herrera and Moustafa. Aldo Herrera was the owner of the vehicle driven by Alvin Herrera at the time of the accident. The Herreras had insurance coverage through GEICO General Insurance Company and GEICO provided their defense at trial. Two experts, Dr. Richard Simon and Dr. Michael Raskin, testified on the Herreras’ behalf regarding the extent of injury suffered by Moustafa. On the first day of trial, the Herreras moved to preclude mention of GEICO and the amounts paid by GEICO to Dr. Simon and Dr. Raskin. Moustafa agreed that it would be improper to mention GEICO, but wanted to impeach the experts with the amounts paid by GEICO. The trial court reserved ruling on the motion. When the issue was revisited, Moustafa requested permission, on side-bar, to ask Dr. Simon whether he knew that “defense attorney’s employer” paid him over $330,000 for expert services through December 2008. The trial court permitted the question. On cross-examination, Moustafa asked Dr. Simon: “And are you aware that defense counsel’s employer has paid you almost $330,000 between January '06 and December '08 for your personal services as an expert witness?” Dr. Simon indicated that he had no knowledge of this, but had no reason to doubt that information. Mousta-fa subsequently asked Dr. Raskin: “And the defense provided evidence that their employer has paid your practice $243,260 for expert services between January 2006 and December 2008. Do you have any basis to dispute that number?” Dr. Ras-kin indicated that he did not. On appeal, the Herreras argue that this line of questioning impermissibly introduced the subject of insurance to the jury and that the trial court erred in permitting it. A trial court’s decision regarding the scope of cross-examination is reviewed for an abuse of discretion. See Poland v. Zaccheo, 82 So.3d 133,136 (Fla. 4th DCA 2012).

“A jury is entitled to know the extent of the financial connection between the party and the witness, and the cumulative amount a party has paid an expert during their relationship.” Allstate Ins. Co. v. Boecher, 733 So.2d 993, 997 (Fla.1999). “Where an insurer provides a defense for its insured and is acting as the insured’s agent, the insurer’s relationship to an expert is discoverable from the insured.” Springer v. West, 769 So.2d 1068, 1069 (Fla. 5th DCA 2000). This furthers the “truth-seeking function and fairness of the trial.” Id. On the other hand, introducing the subject of insurance where insurance is not a proper issue constitutes prejudicial error. Nicaise v. Gagnon, 597 So.2d 305, 306 (Fla. 4th DCA 1992). The questions posed by Moustafa to Dr. Simon and Dr. Raskin did not introduce the subject of insurance. Although the questions could have been phrased differently so as to avoid reference to the “defense attorney’s employer,” the questions, as a whole, remained appropriate inquiries into bias, as permitted by Boecher and Springer. We cannot say that the trial court abused its discretion in permitting the aforementioned testimony. Because we have determined that the additional issues raised by the parties lack merit, we affirm the verdict and judgment.

Affirmed.

WARNER and GROSS, JJ., concur.


author: WARNER, J.

text:
    Mark J. MAHER, Appellant, v. Anne C. MAHER, Appellee.
    No. 4D11-109.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.
    Rehearing Denied Sept. 25, 2012.
    Robin Bresky and Sophia Blair of Law Offices of Robin Bresky, Boca Raton, for appellant.
    Anne C. Maher, Boca Raton, pro se.
   WARNER, J.

We affirm the trial court’s denial of appellant’s petition for modification of child support. The party moving for a modification of child support has the burden of proving all of the following factors, or rather, “three fundamental prerequisites,” Woolf v. Woolf, 901 So.2d 905, 912 (Fla. 4th DCA 2005): “First, there must be a substantial change in circumstances. Second, the change was not contemplated at the time of final judgment of dissolution. Third, the change is ‘sufficient, material, involuntary, and permanent in nature.’” (quoting Pimm v. Pimm 601 So.2d 534, 536 (Fla.1992)). When the original child support amount is based on an agreement by the parties, as here, there is a heavier burden on the party seeking a downward modification. Hand v. Kushmer, 673 So.2d 926, 927 (Fla. 2d DCA 1996) (citing Fritz v. Fritz, 485 So.2d 488, 489 (Fla. 3d DCA 1986), and Tietig v. Boggs, 602 So.2d 1250 (Fla.1992)).

The trial court did not abuse its discretion in denying a greater modification than it allowed. The child support was set in a marital settlement agreement executed at the time the parties divorced. The record supports a conclusion that the reduction in income for appellant, a self-employed entrepreneur at the time of the modification, was neither involuntary nor permanent in nature. He had been employed by a corporation earning a decent salary at the time of the divorce. No evidence was presented as to how or why he lost that income. Appellant had invested in real estate, some of which was in foreclosure. He was trying to sell solar products on commission through his solely-owned company, but he had earned nothing from this enterprise. When asked by appellee when he planned to look for other employment, appellant’s response was simply, “I am looking at all my options.” In other words, the court could conclude that appellant was voluntarily reducing his income by failing to use any effort to find work commensurate with his skills and abilities. Moreover, although he claims to have little income, he has continued to maintain a lifestyle where his expenses total in excess of $4,000 per month. The court simply did not believe that his income as a self-employed “entrepreneur” was reduced to the level that he claimed. Thus, he did not meet the heavier burden of showing that a downward modification of the agreed child support was warranted.

Affirmed.

DAMOORGIAN and CONNER, JJ., concur.


text:
    Derek Sean SINCLAIR, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2515.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.
    Rehearing Denied Sept. 25, 2012.
    Derek Sinclair, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Jackson v. State, No. 4D 11-2300 (Fla.2012).

HAZOURI, CIKLIN and LEVINE, JJ., concur.


author: WALSH, LISA S., Associate Judge.

text:
    Wayne Samuel FAGAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2501.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2012.

      Antony P. Ryan, Regional Counsel, and Nancy Jack, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   WALSH, LISA S., Associate Judge.

The Defendant appeals his conviction and sentence for trafficking in oxycodone in violation of Section 893.135(l)(c)l.a., Florida Statutes (2009). We affirm.

At trial, it was undisputed that the Defendant was stopped by the police, searched, and found in possession of a cod liver oil bottle containing 118' oxycodone pills. The Defendant presented evidence that he did not know that the pills were oxycodone, and that he took the pills from his friend who was combining prescription medication with alcohol and marijuana. The Defendant claimed that he placed the pills in half of a ripped envelope and stuffed them in a cod liver oh bottle because he could not find the cap to the prescription bottle. In rebuttal, the arresting officer testified that the 118 pills were evenly split between two ripped halves of an envelope inside the bottle, a fact which suggested they were packaged for sale.

On appeal, the Defendant raises two issues. First, he argues that he was denied a fair trial when the prosecution elicited testimony that he committed an unrelated crime on the night of his arrest. Second, the defendant challenges the constitutionality of Section 893.135, Florida Statutes.

With regard to the first issue, the Defendant moved in limine to exclude any mention of the reason for his stop and arrest. The parties stipulated that the following instruction be read to the jury:

TRIAL COURT: ... [Ljadies and gentlemen, I’m going to read to you a stipulation as to certain facts that have been agreed to by the parties. You are instructed, members of the jury, that the stop and search of the Defendant ... by the officers was legal and valid. The reason for that stop has nothing to do with this case and you should not be concerned about it or speculate about it. You may proceed.

Thereafter, the Prosecutor questioned the arresting officer as follows:

STATE: When you made contact with [Defendant] did you place him under arrest?
OFFICER: Yes, sir.
DEFENSE COUNSEL: Objection.
THE COURT: The objection is sustained. Members of the jury, you are again instructed that the stop and search of [Defendant] was legal and valid and you should not be concerned about or speculate about the reason for that. It has nothing to do with this case. You should disregard the last question and draw no inference from it.
STATE: My apologies.

Defense counsel did not move for mistrial or object to the sufficiency of the trial court’s curative instruction.

During cross-examination of the officer, defense counsel questioned the officer as follows:

DEFENSE COUNSEL: Officer, did you see any drug transaction involving [Defendant] on the evening in question?
OFFICER: On the evening in question?
DEFENSE COUNSEL: Yes.
OFFICER: No, ma’am.

Defense counsel continued with his cross-examination and did not object, move for a curative instruction, or move for a mistrial. In closing, the prosecutor made no mention of the Defendant’s initial arrest or any reason for the stop or initial search.

The Defendant argues that the trial court improperly admitted evidence of collateral crimes. Because this issue was not properly preserved for appellate review, does not constitute fundamental error, and the second comment was invited by the Defense, we affirm.

Any error occasioned by the officer’s two statements was not preserved because the Defendant did not move for a mistrial after the trial court sustained his objection to the initial comment and failed to contemporaneously object to the second comment. “[T]o preserve a claim based on improper comment, counsel has the obligation to object and request a mistrial. If counsel fails to object or if, after having objected, fails to move for a mistrial, his silence will be considered an implied waiver.” See Nixon v. State, 572 So.2d 1336, 1340 (Fla.1990); Perez v. State, 964 So.2d 744, 744 (Fla. 2d DCA 2007).

Unpreserved error is reviewed for fundamental error. “Fundamental error is defined as error that ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” Rimmer v. State, 825 So.2d 304, 323 (Fla.2002) (quoting Kilgore v. State, 688 So.2d 895, 898 (Fla.1996)).

Turning to the first comment, the police officer’s statement that the Defendant was arrested could reasonably have been interpreted by the jury as a reference to the Defendant’s arrest for the trafficking charge, rather than a separate law violation. Further, the trial court immediately repeated the same stipulated curative instruction to the jury that the initial stop and search were legal and valid, and that the jury should not speculate about the reason. No mention of this testimony was made in closing argument and it did not become a feature of the trial. Accordingly, this comment does not constitute fundamental error.

Turning to the second comment, in merely repeating the same question asked by defense counsel during cross-examination, the officer’s comment was elicited by the defense. If this alleged error were preserved, we would affirm based upon the invited error doctrine. Sanchez v. State, 81 So.3d 604, 608 (Fla. 3d DCA 2012) (because detective’s comments were in response to defense counsel’s questions on cross-examination, defendant invited error and may not complain of error on appeal). Further, this relatively innocuous comment merely repeating the same question asked by defense counsel did not constitute fundamental error.

In his second issue, the Defendant argues that his conviction for trafficking in oxycodone should be reversed because Section 893.135, Florida Statutes (2009), is facially unconstitutional in that Section 893.101, Florida Statutes (2009), eliminated mens rea as an element of felony drug offenses. We affirm. State v. Adkins, 96 So.3d 412 (Fla.2012); Kennedy v. State, 82 So.3d 179, 180 (Fla. 4th DCA 2012); Maestas v. State, 76 So.3d 991, 993 (Fla. 4th DCA 2011).

Affirmed.

STEVENSON and CIKLIN, JJ„ concur.


text:
    MAIDA VALE, INC., a Florida profit corporation, Appellant, v. ABBEY ROAD PLAZA CORPORATION, a Florida profit corporation, Appellee.
    Nos. 4D10-2203, 4D10-4674, 4D11-188.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2012.
    Rehearing Denied Sept. 19, 2012.
    Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, LLP, West Palm Beach, and Scott W. Zappolo of Watterson & Zappolo, P.A., Palm Beach Gardens, for appellant.
    John M. Jorgensen and S. Brian Bull of Scott, Harris, Bryan, Barra <& Jorgensen, P.A., Palm Beach Gardens, for appellee.
   STEVENSON, J.

The instant appeal and cross-appeal arise from a commercial landlord-tenant dispute. Maida Vale, Inc., the tenant, appeals a final judgment of eviction and attorney’s fee award in favor of Abbey Road Plaza Corporation, the landlord. Landlord cross appeals challenging the ruling on tenant’s counterclaims, finding that landlord had calculated certain common-area maintenance charges (“CAM”), defined as rent, at a rate greater than that permitted by the lease and the landlord owed the tenant excess rent. We affirm in part and reverse in part.

Briefly stated, in its final judgment, the trial court agreed with the tenant’s claim that the landlord had been charging CAM in excess of that permitted by the lease and had erroneously included some of the challenged expenses. The court directed the parties to recalculate the CAM and determine, after taking into account the amounts paid by tenant during the litigation, whether the tenant owed the landlord or whether it was the landlord who now owed the tenant. Then, despite accepting the tenant’s position as to the correct amount of CAM and recognizing that the landlord may, in fact, owe the tenant, the court entered judgment in favor of the landlord on the eviction count.

The landlord contends the trial court erred in its ruling regarding the CAM due under the lease, while the tenant claims the trial court erred in finding in favor of the landlord on the eviction claim prior to ruling on tenant’s counterclaim for rent overpayment, and where the court ultimately ruled that the landlord owed tenant excess rent. The tenant also challenges the trial court’s finding that it waived its right to challenge the rent increases provided for in the rider to the lease and the prevailing party fee judgment in favor of the landlord. We affirm the trial court’s ruling on the CAM due under the lease and on the rent increases under the rider, but find merit in the tenant’s argument that the trial court improperly ordered eviction. Our rulings on the merits require reversal of the prevailing party fee award.

The landlord is the owner of a shopping plaza and, in 2003, leased space in that plaza to Abbey Road, Inc., which operated a restaurant. In 2007, Abbey Road, Inc., assigned the lease to Maida Vale, Inc. The landlord consented to the assignment.

The lease required the tenant to pay “minimum annual rent” or “base rent” plus CAM charges. Under the lease, CAM charges are considered “rent.” In June of 2009, Maida Vale began to have concerns about the amount of its CAM charges and, pursuant to a provision in the lease, requested back-up documentation. The landlord did not provide the information by July 1st and Maida Vale failed to pay the CAM due on July 1st. A failure to pay rent when due triggers a late fee and, if the rent is unpaid for fifteen days, an additional month’s rent as security. On July 31st, Maida Vale tendered the July CAM charges, but nothing further. When Maida Vale failed to timely pay the August CAM, the landlord gave notification that it was in breach of the lease, seeking $26,316.69 to cure. Maida Vale tendered $5,991.74, which the landlord rejected as insufficient.

The landlord filed an eviction action, alleging Maida Vale owed $26,316.69. The landlord’s claim regarding the amount due was predicated upon its belief that, under the lease, Maida Vale was responsible for 28.75% of the CAM charges for the plaza. Maida Vale counterclaimed, alleging it had actually made an overpayment of rent as the lease required it to pay only 26% of the CAM charges. According to Maida Vale’s evidence, when CAM was correctly calculated at 26%, it had overpaid rent to the landlord at both the time of the filing of the action for eviction and the bench trial. Maida Vale also insisted the landlord erroneously included more than $86,000 of expenses in the CAM charges. Landlord conceded overcharging of $7,434.

In addition to the CAM issues, the parties agreed to have the trial court determine whether a rider, containing a provision allowing for a five percent increase in minimum base rent per year, was binding on Maida Vale. Maida Vale insisted it was not bound by the rider and presented undisputed evidence that the rider was not attached to the copy of the lease Maida Vale received from its assignor. The landlord presented undisputed evidence that the rider was part of the negotiations between the landlord and the original tenant/assignor and was attached to the lease executed by the landlord and the assignor.

Having considered the evidence, the trial court found the lease unambiguously required CAM to be calculated at 26%— not the 28.75% the landlord had been charging. The trial court further found Maida Vale’s CAM obligation had to be reduced by the $7,484.54 in expenses the landlord conceded were improper; by the amounts charged it for waste management expenses from 2007-2009; and by the amount charged it for a $3,337 administrative expense. The final judgment directed the parties to recalculate the CAM and determine what amount was owed by Mai-da Vale to the landlord or vice versa.

Despite finding in favor of Maida Vale regarding the CAM rate and the fact that it might well turn out that the landlord owed Maida Vale, the court found in favor of the landlord on the eviction claim. Essentially, the court found Maida Vale breached the lease when it failed to timely pay the CAM and resulting penalties demanded by the landlord, and any claim by Maida Vale that the CAM charges were “unreasonable” was not a defense to its non-payment.

As for the rider, the trial court found Maida Vale waived the right to challenge its five percent annual increase in base rent as Maida Vale “acknowledged Plaintiffs entitlement to make that annual increase, paid it, and obviously knew of its existence.”

Based upon the parties’ post-judgment calculations, the court subsequently determined Maida Vale had overpaid CAM in the amount of $3,314.55, entering judgment in favor of Maida Vale in such amount. During these post-judgment hearings, the court noted it had viewed the eviction claim and Maida Vale’s counterclaim alleging miscalculation and overpayment of CAM separately. The trial court then awarded prevailing party attorney’s fees in favor of the landlord.

In this consolidated appeal, the landlord challenges the trial court’s ruling that the lease unambiguously requires CAM to be calculated at 26%. Maida Vale insists that it was improper for the court to order eviction without first determining whether it had actually overpaid rent; that the trial court’s finding that it waived its right to challenge the rider’s five percent annual increase in base rent was not supported by the evidence; and that the trial court erred in finding the landlord was the prevailing party for purposes of attorney’s fees. We affirm, without further comment, the ruling that the lease required CAM to be calculated at 26%. We find merit, however, in Maida Vale’s arguments that the issues of whether the landlord was entitled to eviction and whether Maida Vale had actually paid more rent to landlord than was due under the lease had to be considered in tandem and that a landlord cannot be entitled to eviction where a tenant has, in fact, overpaid rent. As for the rider, while we agree the evidence fails to support the trial court’s finding of waiver, we nonetheless affirm the trial court’s ultimate ruling that Maida Vale is obligated to pay the rent increases provided for in the rider. We write to address these issues.

Eviction & Maida Vale’s Claim of Rent Overpayment

To prevail in an eviction action, the landlord must prove, among other things, that the tenant defaulted in the payment of rent due under the lease. See 3618 Lantana Rd. Partners, LLC v. Palm Beach Pain Mgmt., Inc., 57 So.3d 966, 968 (Fla. 4th DCA 2011). Inherent in a determination as to whether the tenant defaulted in the payment of rent is a determination of the extent of the tenant’s rent obligation. Thus, where a tenant’s counterclaims or affirmative defenses overlap or are “inextricably interwoven into” the issues that must be decided in the eviction action, it is error to rule upon the eviction claim without resolving the matters raised by the tenant. See Cole v. Mendelsohn, 531 So.2d 397, 397 (Fla. 4th DCA 1988) (citing Herrell v. Seyfarth, Shaw, Fairweather & Geraldson, 491 So.2d 1173 (Fla. 1st DCA 1986)). See also 3618 Lantana Rd. Partners, 57 So.3d at 968-69 (reversing involuntary dismissal of eviction claim based upon trial court’s finding tenant’s claim of a rent credit credible as it was improper to assess credibility of witnesses at that stage of the proceedings, but remanding for further proceedings). Cf. Helga Skin Therapy, Inc. v. Dead River Props., Inc., 478 So.2d 95, 97 (Fla. 2d DCA 1985) (finding that summary judgment of eviction could stand where the landlord established that rent had not been timely paid and tenant’s affirmative defenses and unresolved counterclaim merely “suggest that the amount of rent it owes is less than the amount stated in the lease”).

The Rid,er

The trial court found Maida Vale waived its right to challenge the rider’s provision for a five percent annual increase in base rent as Maida Vale “knew about” and had paid the increase without objection. Mai-da Vale insists the evidence established a historical increase of three percent in base rent — not five percent. Our review of the evidence confirms this, reflecting that from 2007 through 2009, the base rent increased by three percent. It was not until the May 2010 final judgment that the base rent was increased by five percent.

This, then, brings us to Maida Vale’s claim that it is not bound by the rider as it was undisputed that the rider was not attached to the copy of the lease provided to it by the assignor and, until the eviction suit, Maida Vale had no knowledge of the rider. Such fact, however, does nothing to negate the fact that Maida Vale signed an “Assignment and Assumption of Lease,” whereby it expressly “assumes all of Lessee’s obligations under the subject lease.” The landlord’s evidence that the rider was part of the lease negotiated between it and the original tenant/assignor was undisputed. Maida Vale is thus bound by the rider. Cf. Shaw v. State Farm Fire & Cas. Co., 37 So.3d 329, 332 (Fla. 5th DCA 2010) (“Under Florida law, the assignment of a contract right does not entail the transfer of any duty to the as-signee, unless the assignee assents to assume the duty.”) (emphasis added).

Attorney’s Fee Judgment in Favor of Landlord

The attorney’s fee award in favor of the landlord was predicated upon the trial court’s determination that the landlord prevailed on the significant issues in the litigation. See, e.g., Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla.1992) (for purposes of attorney’s fees, the prevailing party is the party that prevailed on the significant issues in the litigation). In light of our reversal of the judgment of eviction in favor of the landlord, we also reverse the attorney’s fee award and remand the matter so that the trial court may reconsider which party prevailed on the significant issues in the litigation.

Affirmed in part; Reversed in Part; and Remanded.

WARNER and CONNER, JJ., concur.


text:
    Phillip J. KESSELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2931.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2012.
    Rehearing Denied Oct. 8, 2012.
    Daniel D. Mazar, Winter Park, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Phillip Kessell appeals the summary denial of a rule 3.850 motion, in which he sought to withdraw a plea based on ineffective assistance of counsel. We find no error in denying the motion and affirm.

Kessell was charged with count I, attempted first degree murder with a weapon; count II, aggravated battery with a deadly weapon; count III, kidnapping; count IV, aggravated battery causing great bodily harm; count V, perpetrating a felony causing bodily injury; and count VI, sexual battery with great force. Kessell attacked an ex-girlfriend as she was returning home. He hit her in the head with a hammer causing severe injury. He then walked to his house, got his truck, and drove her some distance to a construction site where he sexually battered her. Kes-sell was later found with some self-inflicted wounds on his wrists and neck.

He entered a negotiated plea, pleading no contest to counts I and III, and the state dropped the remaining counts.

Before the plea, he was evaluated by three doctors. Two found him sane as to all counts. The third, Dr. Riordan, found him insane as to all counts except kidnapping. Dr. Riordan did not have the amended information that charged the sexual battery.

At the sentencing hearing, Kessell received concurrent terms of life in prison.

He moved to withdraw his plea under rule 3.170(i), Florida Rules of Criminal Procedure, raising several claims. Following an evidentiary hearing, he filed two amended motions alleging in part that his attorney did not advise him of Dr. Rior-dan’s report and misadvised him regarding an insanity defense.

The trial court held another evidentiary hearing, and Riordan testified. As Rior-dan recalled the facts at the time of the evidentiary hearing, he thought that the kidnapping occurred before the assaultive behavior and that there were two distinct time periods, and from his recollection, this was why he thought defendant was sane as to the kidnapping and insane as to the other original charges. Riordan agreed that his opinion might have changed if he had known that the kidnapping occurred after the attempted murder. It appeared that his recollection at the hearing was not based on anything in his report. Both the police report that Rior-dan considered during his evaluation and Kessell’s statements to Riordan recounting the events indicated that the kidnapping occurred after the attempted murder. Riordan eventually acknowledged that it appeared he knew this when he formulated his opinion and conceded at the evidentiary hearing that he was unable to reconstruct exactly what his thinking was at the time.

Defense counsel testified at the hearing that he had discussed strategies with Kes-sell a number of times. Counsel reviewed the insanity defense in detail with him and discussed the doctors’ reports. Counsel was not confident in Riordan’s report, and he did not think that Kessell had a viable insanity defense.

Following this hearing the trial court entered a detailed order denying the 3.170(¿) motion. On direct appeal, Kessell argued in part that the court erred in denying the motion to withdraw plea on the grounds that defense counsel misad-vised him about a potential insanity defense. We affirmed the denial of the motion. Kessell v. State, 30 So.3d 508 (Fla. 4th DCA 2010).

In this rule 3.850 motion Kessell raised related claims alleging that defense counsel provided ineffective assistance in failing to investigate and present an insanity defense and in misadvising him that he was essentially defenseless and should throw himself on the mercy of the court. Kessell complained that counsel did not investigate Riordan’s conclusions, and he suggested that if Riordan had not mistakenly believed that the kidnapping occurred first, he would have found Kessell insane as to all counts. Following his conviction, Kessell was evaluated by a forensic psychologist, Dr. Chacko, who would testify that Kessell was insane as to all counts. Kessell alleged that but for counsel’s mis-advice and his failure to investigate, he would not have entered the plea and would have proceeded to trial with an insanity defense.

The trial court denied the rule 3.850 motion, agreeing with the state that these claims were procedurally barred because they were denied in the 3.170(i) motion and affirmed on appeal.

Much of the information upon which Kessell relies in his 3.850 motion was elicited in the 3.170(0 proceedings and was considered by this court on direct appeal. The attorney who filed this 3.850 motion and the initial brief in this appeal is the same attorney who represented Kessell on the 3.170(0 motion and on the direct appeal. Contrary to the arguments on appeal in this case, the claims raised in the 3.850 motion are not truly distinct. Whether Kessell’s plea was involuntary because he received misadvice about a possible insanity defense is another way of stating the claim in this motion that the plea was involuntary because counsel did not investigate whether he had a viable insanity defense. The issues raised in this motion were addressed at hearings on the 3.170(i) motion and amended motions. Based on the testimony at the evidentiary hearings, trial counsel discussed the evaluations and insanity defense with Kessell.

At the hearing Riordan acknowledged that he was confused about the timeline and agreed this might affect his opinion, but he did not change his opinion at the hearing and simply said that if there were new facts he would have to reconsider. Whether he would change his opinion is speculative. “Postconviction relief cannot be based on speculative assertions.” Jones v. State, 845 So.2d 55, 64 (Fla.2003). Based on the gap in time between the assault and the kidnapping and the relocation of the victim, Riordan could still find that Kessell was insane as to the initial attack, but sane at the time of the kidnapping.

Given the circumstances, Kessell has not shown that his trial counsel was deficient. Even if counsel knew that Riordan was mistaken about the timing of the events and this may have contributed to his opinion, this does not show that Kessell had a viable insanity defense or that counsel was deficient in failing to conduct further investigation or request another evaluation. There was no showing that Riordan would in fact change his opinion. Defense counsel was aware that there was some basis for raising an insanity defense, and he discussed the issue with Kessell. There is no dispute that Kessell committed the attempted murder and kidnapping, and two experts would testify that he was sane the entire time. Based on the facts and the experts’ opinions, counsel concluded an insanity defense was weak and explained this to Kessell.

Kessell knew about the possible insanity defense when he entered the plea. He was satisfied with his attorney at the time, and he did not indicate that he wanted counsel to conduct further investigation or request another evaluation. See Gidney v. State, 925 So.2d 1076, 1076-77 (Fla. 4th DCA 2006) (holding a defendant cannot use a 3.850 motion to go behind a plea to raise issues that were known to defendant at the time of the plea).

Even if we agreed that the motions raised distinct issues and the claims in this motion are not procedurally barred, Kessell cannot show deficient performance. See Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (explaining that “there is no reason for a court deciding an ineffective assistance claim to ... address both components of the inquiry if the defendant makes an insufficient showing on one”). Defense counsel and Kessell were aware when he entered the plea that there was some support for an insanity defense, but at least two experts would have disagreed. Unlike in Carter v. State, 590 So.2d 1096 (Fla. 3d DCA 1991), Kessell has no basis to question the findings of the two experts who concluded he was sane or any reason to believe they might change their opinions. This is not a situation where a defendant did not know of the existence of a possible defense. Considering the facts of the case and the opinions of the other experts, counsel was not deficient in opining that Kessell’s best chance to avoid a life sentence was through the negotiated plea.

Accordingly, we affirm the denial of Kessell’s rule 8.850 motion.

MAY, C.J., WARNER and STEVENSON, JJ., concur.


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    Deirdre A. MURPHY, Appellant, v. George EVANS, Appellee.
    No. 3D11-379.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2012.
    Rehearing Denied Sept. 25, 2012.
    Barry S. Franklin, Aventura, for appellant.
    George M. Evans, Coral Gables, for ap-pellee.

      Before SUAREZ and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Deidre Murphy appeals a final order granting her former husband’s previous counsel, George Evans’s, Motion for Relief from orders of May 6, 2010 and August 11, 2010, holding him in civil contempt and imposing fines for non-compliance with court orders. The question is whether it was an abuse of the trial court’s discretion to have granted Mr. Evans’ motion to release to him the funds he placed in the court registry pursuant to two civil contempt orders ($14,700.00 from May 6, 2010 and $9,700.00 from August 11, 2010) with the exception of $1,000.00 to be paid to the clerk of the court as a reduced fine due to the settlement of the dissolution of marriage action in which the contempt orders were entered. We find, based on the facts of this case, that the trial court did abuse its discretion and we reverse and remand with instructions.

George Evans represented the former husband, Mr. Murphy, in an action for dissolution of marriage from his now former wife. During the pendency of the dissolution proceedings, Mr. Murphy was ordered to transfer the $800,000.00 settlement proceeds he received in a civil suit to Mr. Evans’s firm trust account pending further order of the family court. The trial court allowed Mr. Evans to disburse to his firm $120,000.00 as his fee for representing Mr. Murphy in the civil suit. The trial court ordered the remaining $180,000.00 to remain frozen in Evans’s trust account until further order of the court.

A final judgment was ultimately rendered in the dissolution proceedings in March, 2009. The judgment recognized various support obligations Mr. Murphy owed to Ms. Murphy, including over $272,000.00 in past alimony and child support, and also ordered him to pay Ms. Murphy’s attorney’s fees and costs. Ms. Murphy filed a timely motion for rehearing seeking, among other relief, an order extending the injunction freezing the settlement proceeds. It is alleged that at the resulting hearing, the trial court orally granted some of the non-injunctive relief requested, but stated that it was denying “everything else argued ... in that motion.” However, the order entered by the trial court stated that the “motion for rehearing, stay and for continuation of prior injunctive relief order is granted to the extent of those fees and costs awarded....” The parties continued to litigate various post-judgment enforcement motions. At an evidentiary hearing in August, 2009, Mr. Evans, for the first time, advised the trial court that he had disbursed the $180,000.00 settlement proceeds from his trust account without receiving the trial court’s permission. The trial court ordered Mr. Evans to produce his firm’s trust and bank account records to Ms. Murphy’s counsel by August 28th. Mr. Evans did not comply. On Sept. 4, 2009, the former wife filed a motion for sanctions for failure to produce the bank and trust records and for misappropriation and unlawful disbursements of the settlement proceeds. At the December 19, 2009 hearing on the motion, the trial court once again ordered Mr. Evans to produce the records and fined him $100.00 per day for each day in which he failed to do so.

During the litigation, the former husband, through his then attorney, Mr. Evans, caused to be filed eleven various appeals in this Court as well as two motions to recuse the circuit court judges in the case. In February 2010, Ms. Murphy’s counsel was awarded temporary appellate fees in the amount of $4,000.00 to be paid by Mr. Evans, personally, and over $6,000.00 to be paid by Mr. Murphy. In May 2010, following Mr. Evans’s failure to pay said fees or to produce the bank account and trust records of his firm, the trial court found Mr. Evans in civil contempt and ordered him into custody if he failed to pay the fee awarded to Ms. Murphy’s counsel, deposit the fines with the court, and produce the records. Mr. Evans timely deposited the full purge amount into the court registry and the trial court vacated the writ of bodily attachment. On May 24, 2010, Mr. Evans filed a notice preserving a standing objection to the records production, but stating that the records had been produced and made available to Ms. Murphy’s counsel. Ms. Murphy’s counsel denies that any financial records were ever produced. Soon thereafter, Mr. Murphy obtained new counsel. In August 2010, the court entered a second civil contempt order once again compelling production of the yet to be produced trust account records and bank statements or payment of the additional fines incurred since May 2010. Mr. Evans, once again, purged himself of this order, but still did not comply with either the separately issued order requiring production of the records and deposit into the court registry of the $180,000.00 in settlement proceeds.

In September 2010, Mr. and Ms. Murphy entered into a settlement agreement that was ratified by the court in November, 2010. Both the agreement and the ratification order preserved all claims against Mr. Evans. Thereafter, Ms. Murphy set a hearing on her pending motion for contempt and other sanctions against Mr. Evans. Prior to that hearing, Mr. Evans filed an Ex-Parte Motion for Relief from the May and August contempt orders. The trial court held a non-evidentia-ry hearing on Mr. Evans’s motion and, over Ms. Murphy’s objection, granted his requested relief in an order dated January 12, 2011. The trial court reasoned that as a settlement had been entered, and the need for production of the trust and bank account records was moot. The trial court then ordered released to Mr. Evans all of the funds from the court registry, except for $1,000.00, retained as a fine.

The question of whether to relieve someone of sanctions is left to the sound discretion of the trial court. Our standard of review is whether or not the trial court abused that discretion. See Gottfried v. The Kutner Law Firm, 34 So.3d 56, 57 (Fla. 3d DCA 2010) (finding whether to relieve a party of sanctions contained in an order of contempt is a matter addressed to the sound discretion of the trial court). A review of this record shows such blatant and continued disrespect for the trial court and the trial court’s orders that we can only conclude that, by granting Mr. Evans’s motion and returning the monies held in the court registry as fines back to him, the trial court inadvertently does nothing more than send a message that, with luck, such conduct can eventually be excused. This is not the proper message. Based on the facts presented, we must find that the trial court should not have returned these funds to Mr. Evans and lowered the fine.

Fines resulting from civil contempt orders can only be reduced if the violator complies with the order that caused the fines. See Politz v. Booth, 910 So.2d 397 (Fla. 4th DCA 2005). Here, Mr. Evans paid fines into the court registry as a result of his continued refusal to produce his trust and bank account records, in direct non-compliance with court orders. The fact that the settlement agreement may or may not have mooted the former wife’s needs for the records, in this instance, can not nullify Mr. Evans’s continued disregard of the trial court’s orders to turn over the records. The fines were issued to insure compliance, and Mr. Evans never complied. In our opinion, the only way the court could have reduced the fines, or in this case, returned the funds that were held in the court registry back to Mr. Evans, is if he had complied with at least one of the trial court orders to produce his trust and bank account records, which he never did.

This case differs from Gottfried v. Kutner Law Firm, 34 So.3d 56 (Fla. 3d DCA 2010), relied upon by Mr. Evans, because the husband in Gottfried, who was issued sanctions for absenting himself from the court’s jurisdiction, eventually complied. The fines in Gottfried were issued to compel the husband to return to the jurisdiction to complete the judicial proceedings. Id. Once he complied, the court had broad discretion in deciding whether or not to relieve him from the penalties assessed. Id. at 57. In contrast, Mr. Evans never complied with the order to produce his trust account records.

Even if the settlement agreement rendered the need for the documents moot, the trial court still abused its discretion in returning the funds to Mr. Evans. The Court must consider the egregiousness of Mr. Evans’s misconduct, and the reason the fines were incurred. Mr. Evans was ordered to produce his trust and bank account records in August, 2009. After incurring substantial fines for continuous non-compliance, and being held in civil contempt on two separate occasions, he still has not produced those documents. Upon remand, Mr. Evans is to place the $24,000.00 into the court registry.

The issue of whether or not the former wife incurred additional attorney’s fees is still pending. Therefore, the trial court shall hold an evidentiary hearing to determine whether Ms. Murphy incurred additional attorneys’ fees as the result Mr. Evans’s non-compliance and, if so, the amount. The funds returned to the court registry shall remain there until the issue of attorney’s fees is decided, and the court shall then determine to whom those monies belong.

Reversed and remanded with instructions.

      . We make no determination whether or not the need for those documents by the former wife is or is not moot.


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    L.V.H., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2268.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2012.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Gonzalez v. State, 40 So.3d 86 (Fla. 4th DCA 2010); A.G. v. State, 718 So.2d 854 (Fla. 4th DCA 1998).

STEVENSON, GROSS and TAYLOR, JJ., concur.


author: DAMOORGIAN, J.

text:
    David RICE, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5367.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2012.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

David Rice appeals the trial court’s denial of his motion to withdraw plea and his motion to correct illegal sentence. We find merit in the sentencing issue raised by Rice, and reverse only as to that issue.

Rice entered a plea of no contest to one count of aggravated stalking (count I) and one count of burglary of a dwelling (count II). The trial court sentenced Rice to ten years in prison followed by five years of probation on count I, and to a concurrent five year prison term followed by five years of probation on count II. Rice filed a motion to correct illegal sentence on the basis that his sentence on count I exceeded the legal maximum sentence. The trial court granted Rice’s motion and reduced his prison sentence on count I from ten to five years. However, in order to maintain a total prison time of ten years, the court increased Rice’s sentence on count II to a concurrent ten-year prison term.

Rice argues that the trial court did not have the authority to increase the sentence originally imposed for count II, and by doing so, violated his constitutional guarantee against double jeopardy. We agree and find the Second District’s decision in Pitts v. State to be directly on point. 935 So.2d 634 (Fla. 2d DCA 2006) (holding that “[a] motion to correct an illegal sentence does not authorize the trial court to modify a legal sentence imposed on another count”); see also Delemos v. State, 969 So.2d 544 (Fla. 2d DCA 2007) (holding that court lacked authority to increase sentence on one count when correcting a sentence on another count); Kenny v. State, 916 So.2d 38 (Fla. 4th DCA 2005) (holding that trial court could not change sentences in two cases not implicated in motion to correct sentencing error).

Accordingly, we reverse and remand for the trial court to reinstate the original sentence on count II. We affirm as to the trial court’s denial of Rice’s motion to withdraw plea without further comment.

Affirmed in part, Reversed in paR, and Remanded with directions.

MAY, C.J., and HAZOURI, JJ, concur.


text:
    Ives RENNA, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1974.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2012.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals the circuit court’s denial of his motion to dismiss, which preceded his guilty plea. We affirm. The defendant, when pleading guilty, did not expressly reserve the right to appeal the order denying his motion to dismiss as a prior dispositive order of the lower tribunal. See Fla. R.App. P. 9.140(b)(2)(A)(i)(2011) (“A defendant may not appeal from a guilty or nolo contendere plea except as follows: ... A defendant who pleads guilty or nolo contendere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved.”); Leonard, v. State, 760 So.2d 114, 119 (Fla.2000) (“[T]he district courts should affirm summarily ... when the court determines that an appeal does not present ... a legally dispositive issue that was expressly reserved for appellate review. ...”).

The defendant’s brief also argues that the circuit court erred in denying his motion to withdraw plea. However, the defendant filed his notice of appeal of the order denying his motion to dismiss before filing his motion to withdraw plea. Thus, his motion to withdraw plea, and the circuit court’s order denying that motion, are nullities which we may not review in this appeal. See Adkinson v. State, 36 So.3d 836, 836-37 (Fla. 1st DCA 2010) (“[T]he motion to withdraw the plea was filed after the notice of appeal, which divested the trial court of jurisdiction to consider the motion.... Because the trial court was without jurisdiction to consider Appellant’s motion to withdraw plea, the trial court should have dismissed the motion rather than denying it on the merits.”) (citations omitted); Lauderdale Marine Ctr., Ltd. v. MYD Marine Distribs., Inc., 31 So.3d 256, 257 (Fla. 4th DCA 2010) (“This court may review only proceedings occurring prior to the date of appellant’s notice of appeal.”) (citing Fla. R.App. P. 9.110(h)).

Affirmed.

CIKLIN and LEVINE, JJ., concur.


text:
    Alphonso SHIVERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2322.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2012.
    Alphonso Shivers, Carabelle, pro se.
    No appearance required for appellee.
   PER CURIAM.

In this appeal of an order denying his rule 3.800(a) motion, the defendant asserts that his forty-year consecutive sentences on two counts of robbery were illegal because his co-defendant, who was tried by jury along with him and convicted of the same crimes, received only fifteen-year concurrent sentences. He also contends that the trial court improperly imposed consecutive sentences for the two robbery counts because they occurred in the same criminal episode without any temporal break.

Whether a defendant’s sentence is disproportionate as compared to his co-defendant’s sentence is not cognizable in a rule 3.800(a) motion. See Fernandez v. State, 910 So.2d 352 (Fla. 3d DCA 2005) (citing Lykins v. State, 894 So.2d 302, 303 (Fla. 3d DCA 2005)). Furthermore, consecutive sentences for the two robbery counts committed in the same criminal episode were not illegal. See § 921.16, Fla. Stat. (1973) (“A defendant convicted of two or more offenses charged in the same ... information ... shall serve the sentences of imprisonment concurrently unless the court directs that two or more of the sentences be served consecutively.”) (emphasis added); Almendares v. State, 916 So.2d 29 (Fla. 4th DCA 2005) (explaining that the exception, precluding the imposition of consecutive sentences under various enhancement statutes for offenses occurring in a single criminal episode, does not apply if the defendant was not sentenced pursuant to a sentencing enhancement statute).

Affirmed.

STEVENSON, TAYLOR and CIKLIN, JJ., concur.


text:
    Edgar Luna RAMOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2503.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2012.
    J. (Jimmy) Benincasa, Vero Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010).

STEVENSON, TAYLOR and GERBER, JJ., concur.


text:
    Christopher MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3901.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2012.

      Christopher Miller, Coleman, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

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