author: ROBERTS, J. CLARK, J.,

text:
    Darryl Wayne RIDGEWAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3523.
    District Court of Appeal of Florida, First District.
    Dec. 26, 2013.

      Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee; Scott D. Miller, Assistant Public Defender, Crestview, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   ROBERTS, J.

The appellant, Darryl Ridgeway, appeals his judgment and sentence for one count of robbery with a deadly weapon, raising two issues on appeal, only one of which merits discussion. He argues that the trial court erred in denying his motion for judgment of acquittal. We disagree and find that, in a light most favorable to the State, competent, substantial evidence supported all the elements of the charged offense such that the motion for judgment of acquittal was properly denied.

The appellant entered a gas station in the early morning hours and asked the clerk for cigarettes. The appellant asked the clerk if he was working alone, to which the clerk responded affirmatively. The appellant then demanded all the money in the cash register. After the clerk refused, the appellant took a step back, reached for his pocket, and jumped over the counter. As the appellant jumped over the counter, the clerk pulled out his personal knife. In an attempt to defend himself, the clerk lunged at the appellant twice. On the second lunge, the knife pierced and became lodged in the appellant’s back as he jumped back over the counter. The appellant proceeded toward the exit, but stopped halfway between the door and the counter. Upon stopping, the appellant pulled the knife from his back, turned with the knife in his hand, faced the clerk, and took four steps toward the clerk. Feeling defenseless and unsure of the appellant’s next move, the clerk ran out the back door and called the police. The appellant exited the store with the knife in his hand, entered his vehicle, and drove away with the knife. The appellant was charged and convicted of one count of robbery with a deadly weapon.

On appeal, the appellant argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to prove that he had the requisite intent to commit robbery of the knife and also failed to prove that there was a taking of the knife.

A motion for judgment of acquittal is reviewed on appeal by the de novo standard of review. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). The question presented by the motion is whether, in a light most favorable to the State, the evidence is legally adequate to support the charge. Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001). A motion for judgment of acquittal should not be granted “unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.” Id. (quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974)). If competent, substantial evidence is presented to support the conviction, an appellate court will generally not reverse the denial of a motion for judgment of acquittal. Pagan, 830 So.2d at 803.

First, the appellant did not preserve any issue regarding the taking of the knife because he failed to present the specific legal argument to the trial court below. See Archer v. State, 613 So.2d 446, 448 (Fla.1993). The appellant concedes that his general motion for judgment of acquittal could be considered insufficient, but argues that appellate review is not precluded because the error was fundamental. See F.B. v. State, 852 So.2d 226, 230 (Fla.2003) (finding an exception to the preservation requirement where the evidence is insufficient to show that a crime was committed at all). We find no support for the appellant’s argument for error, let alone fundamental error.

For the crime of robbery, the State must prove the following elements beyond a reasonable doubt:

(1) The appellant took the knife from the person or custody of the clerk;
(2) force, violence, assault, or putting in fear was used in the course of the taking;
(3) the knife had some value;
(4) the taking was with the intent to permanently or temporarily deprive the clerk of his right to the knife or any benefit from it or appropriate the knife of the clerk to his own use or to the use of any person not entitled to it.

See Fla. Std. Jury Instr. (Crim.) 15.1; § 812.13(1), Fla. Stat. (2011).

To prove the crime of robbery with a deadly weapon, the State must further prove that, in the course of committing the robbery, the appellant carried a deadly weapon. § 812.13(2)(a), Fla. Stat. (2011). An act will be deemed “in the course of committing the robbery” if it “occurs in an attempt to commit robbery or in flight after the attempt or commission.” § 812.13(3)(a), Fla. Stat. (2011).

As to the taking, the State presented the clerk’s testimony and evidence in the form of surveillance video footage with multiple camera angles showing that, after being stabbed, the appellant stopped, took the knife from his back, turned around, took four steps toward the clerk with the knife in his hand, and then left the store with the knife. Although the appellant took the knife out of his back rather than the clerk’s hands, property need not be in “the actual physical possession or immediate presence of the person who was robbed” for a taking to occur. Perry v. State, 801 So.2d 78, 86-87 (Fla. 2001) (citing Jones v. State, 652 So.2d 346, 350 (Fla.1995) (citation omitted)). Rather, “property is taken from the person or custody of another if it is sufficiently under the victim’s control so that the victim could have prevented the taking had [he] not been subjected to the violence or intimidation by the robber.” Pen-y, 801 So.2d at 87. Here, the clerk could have prevented the taking had he not been intimidated enough to brandish the knife for protection. As such, the taking occurred when the appellant pulled the knife from his back, turned, and took four steps toward the clerk with the knife in his hand.

The appellant argues that no taking occurred because the clerk gave him the knife, or abandoned the knife, when the clerk stabbed him and subsequently fled the store. We disagree with this argument as giving or abandonment implies that the clerk voluntarily relinquished the knife. See generally Rockmore v. State, 114 So.3d 958, 962 n. 2 (Fla. 5th DCA 2012) (“ ‘Abandonment’ of property typically refers to the voluntary relinquishment of an owner’s right.”), review granted, 116 So.3d 1262 (Fla.2013). We are hard-pressed to find that the clerk voluntarily relinquished his best defense mechanism against the appellant under the circumstances.

As to the next element that force, violence, assault, or putting in fear was used in the course of the taking, the State presented evidence that the clerk felt the need to defend his life when the appellant jumped over the counter. “In the course of a taking” is defined as an act that “occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.” § 812.13(3)(b), Fla. Stat. (2011). Here, the appellant placed the clerk in fear prior to taking the knife. Alternatively, the appellant brandished the knife and took four steps toward the clerk subsequent to taking the knife from his back, which resulted in the clerk running from the store. Both instances involve a continuous series of acts between the taking and putting the clerk in fear. See Messina v. State, 728 So.2d 818, 819 (Fla. 1st DCA 1999) (stating that robbery is not limited to situations in which the defendant has used force at the precise time the property is taken).

The State also presented evidence regarding the appellant’s actions on the day of the incident and testimony at trial that indicated he intended to permanently or temporarily deprive the clerk of the knife. The intent to deprive must be shown at the time of the taking. See Bailey v. State, 199 So.2d 726, 727 (Fla. 1st DCA 1967). In Bailey, the defendant engaged the victim in an altercation, during which the defendant took the victim’s gun. Id. at 726. The defendant claimed the taking was solely to disarm the victim during the altercation, yet the defendant maintained possession of the gun for some six weeks after the altercation. Id. The jury convicted the defendant for the crime of robbery. Id. On appeal, the defendant argued there was insufficient evidence to show that he had the intent to permanently deprive the victim of his gun. Id. Essentially, this Court determined that the State may show intent by the highlighting the circumstances of the defendant’s actions prior to or after the taking. Id. at 727. Consequently, this Court affirmed the conviction because the State presented sufficient evidence and “the jury weighed the defendant’s exculpatory testimony along with the State’s evidence that the defendant retained the property for some time.... [T]he jury obviously arrived at the belief that the intent to steal was present at the time of the taking.” Id.

Here, the appellant took the knife out of his back, took four steps toward the clerk, and then left with the knife. Furthermore, the appellant testified that he had no intention of returning the knife to the clerk as he feared being stabbed again. See generally Sims v. State, 681 So.2d 1112, 1116 (Fla.1996) (finding the intent element of robbery was met when the defendant took the gun “for the purpose of escape or robbery insofar as the defendant did not leave the gun at the scene of the crime”).

Finally, the State presented evidence that the appellant carried a deadly weapon during the course of committing the robbery of the knife. “In the course of committing the robbery” is an act that “occurs in an attempt to commit robbery or in flight after the attempt or commission.” § 812.13(3)(a), Fla. Stat. (2011). Here, the appellant carried the knife after committing a robbery of said knife. See Jackson v. State, 662 So.2d 1369, 1372 (Fla. 1st DCA 1995) (“One may also be convicted of armed robbery with a deadly weapon if he or she steals the weapon in the course of a robbery.”), disapproved of on other grounds by State v. Burris, 875 So.2d 408 (Fla.2004). See also State v. Brown, 496 So.2d 194 (Fla. 3d DCA 1986) (finding sufficient proof of armed robbery where defendant assaulted convenience store clerk and took gold chains from her neck, cash from the register, and a handgun from the store before fleeing even though defendant did not point the gun at anyone).

If the appellant had stumbled out of the store with the knife still lodged in his back or threw the knife in a trash can as he left the store, our analysis may have been different. Under the facts presented, the question is not whether this Court would arrive at the same result as the jury. Rather, the question before this Court is whether there is competent, substantial evidence to support the verdict. We find the State presented competent, substantial evidence to support each element of the charged crime of robbery with a deadly weapon. Accordingly, the trial court’s denial of the appellant’s motion for judgment of acquittal was appropriate.

AFFIRMED.

THOMAS, J., concurs; CLARK, J., Dissents with opinion.

CLARK, J.,

DISSENTING WITH OPINION.

The state charged Appellant with armed robbery for being stabbed. Simply, there was one knife, which Appellant simultaneously came into possession of and armed himself with upon being stabbed. The state’s theory is absurd, and the trial court erred by denying Appellant’s requested judgment of acquittal on the charge of armed robbery. This Court should exercise care that the issue of the clerk’s lawful right to defend himself from a robbery is not confused with the issue of whether Appellant robbed the clerk of his knife. I therefore dissent.

After learning the clerk was working alone, Appellant jumped over the counter toward the clerk and demanded money and cigarettes by threat of violence. The store clerk refused to give Appellant any money or cigarettes. As the empty-handed Appellant was jumping back over the counter, the store clerk buried a Gerber knife into Appellant’s back. Appellant walked a few steps, stumbled, and removed the knife from his back. As Appellant removed the knife from his back, he turned back toward the store clerk, who then hurriedly left the building. Thereafter, so did Appellant.

For armed robbery, the state must thus show two things: a robbery and that Appellant was armed. Here, the state argues the same evidence (Appellant was stabbed with a knife) fulfills both. “Robbery” means:

The taking of money or other property ... from the person or custody of another, with intent to either permanently or temporarily deprive the person ... of the money or other property, when in the course of taking there is the use of force, violence, assault, or putting in fear.

§ 812.13(1), Fla. Stat.

A robbery is enhanced from a second degree felony to a first degree felony “if, in the course of committing the robbery, the offender carried a firearm or other deadly weapon.” § 812.13(2)(a), Fla. Stat. An offender’s flight after the commission of the robbery is considered to be “in the course of committing the robbery.” § 812.13(3)(a), Fla. Stat.

Because robbery is a specific intent crime, Appellant had to have the specific intent to commit the crime. Daniels v. State, 587 So.2d 460, 462 (Fla.1991). The intent to commit a robbery includes the specific intent to steal; that is, to deprive the owner or custodian of property either permanently or temporarily. Id. “[I]t is imperative that the intent to steal exist at the time of the taking.” Stevens v. State, 265 So.2d 540 (Fla. 2d DCA 1972). Accordingly, to prove robbery, the state has to prove that at the time Appellant was stabbed by the store clerk, he intended to permanently or temporarily deprive the clerk of his knife.

The state also had to prove that Appellant was armed “during the commission of’ or in flight from the robbery. Note that the state’s theory of armed robbery was not that Appellant armed himself with the deadly weapon after unsuccessfully demanding money and cigarettes, intending to use his new-found weapon to again seek money and cigarettes. But instead, it was that Appellant committed the armed robbery when he obtained possession of the knife (the one in his back) from the clerk: He was now armed, and he stumbled away with the knife. He robbed, while armed, the knife the clerk had just plunged into his back.

Being stabbed cannot equate to “taking” a knife. To “take” means to “get into one’s ... possession by voluntary action.” It means “to obtain possession or control without the owner’s consent.” Black’s Law Dictionary 1492 (8th ed.2004). “Obtain” means “to gain or attain usually by planned action or effort.” Thus; “taking” implies a conscious, intentional, voluntary act on the part of the one taking something. “Taking” something from somebody contemplates the taker voluntarily do something to obtain possession of the thing he or she takes.

Here, there is no evidence Appellant ever saw the knife before he was stabbed with it; no evidence he knew the knife existed before he was stabbed with it; no evidence he wanted the knife; no evidence he asked for or demanded the knife. Consequently, there is no evidence Appellant took the knife with intent to deprive the store clerk of it, either permanently or temporarily.

To be sure, the knife was “given” to Appellant. The store clerk gave — even if temporarily — the knife to Appellant when he plunged it into his back. However, the passive act of taking delivery of the knife (in his back and through his now-collapsed lung) cannot be construed to constitute an intentional act of taking on Appellant’s part. Appellant did not take the knife. It was, quite literally, forced upon him. Appellant did not ask for the knife, did not demand the knife, and did not voluntarily accept the knife when it was “given” to him — in fact, he immediately took the knife out from where it had been lodged.

Taken to its logical end, will a person poisoned with Ricin be charged with armed robbery of the Ricin? After all, he now possesses a deadly weapon and “took” it from the poisoner. Being poisoned — or in this case stabbed — is simply not a crime. It is fundamental error to convict a person where there is a complete absence of a prima facie showing of the essential elements of a crime. See Allen v. State, 876 So.2d 737, 740-41 (Fla. 1st DCA 2004).

The state had a host of charging options available to prosecute Appellant for his crimes. Instead, the state proceeded on an absurd theory: that Appellant formed the necessary intent to steal the knife when he found it stuck in his back. The trial court should have entered a judgment of acquittal of armed robbery.

      . The clerk testified at trial that the knife had an approximate value of between $160 and $260.

      . http://dictionary.reference.com/browse/take? s=t. It can also mean, "to get into one’s hands, possession, control, etc. by force or artifice”; i.e., "to take a bone from a snarling dog.” Id.

      . http://www.merriam-webster.com/ dictionary/obtain.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eduardo GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1512.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2013.

      Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and WELLS and ROTHENBERG, JJ.
   CONFESSION OF ERROR

PER CURIAM.

The court accepts the State’s proper confession of error that Appellant’s conviction for carrying a concealed firearm should be dismissed because the evidence was insufficient as a matter of law to support the charge. Accordingly, the conviction and sentence on Count 2 are hereby reversed and the cause is remanded for entry of a judgment of acquittal as to the charge of carrying a concealed firearm.

Reversed and remanded with directions.


text:
    Jeffrey SANTIAGO, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-0398.
    District Court of Appeal of Florida, First District.
    Dec. 26, 2013.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee; Matt Lufrano, Assistant Public Defender, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant argues that the trial court erred in reducing his jail credit for time served after the original sentencing hearing. The State concedes that the trial court erred. See Davis v. State, 63 So.3d 847 (Fla. 1st DCA 2011) (“[Jjail credit cannot be rescinded after it has been awarded, even if the credit was awarded in error.”). Accordingly, we REVERSE and REMAND for entry of a judgment and sentence reflecting the original award of jail credit for time served.

ROBERTS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Tracy Devon NEWTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2138.
    District Court of Appeal of Florida, First District.
    Dec. 26, 2013.
    Tracy Devon Newton, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Tracy Devon Newton petitions this court for mandamus relief in the form of an order compelling the Duval County Circuit Court to rule on an amended motion for DNA evidence examination he filed in July 2011. While the delay in ruling on petitioner’s motion is primarily attributable to the State Attorney rather than the circuit court to which our order will be directed, we grant the petition.

Approximately 40 days after the filing of petitioner’s amended motion, the circuit court entered an order finding the motion to be facially sufficient and directing the State Attorney to respond within 30 days. However, the state did not do so. The circuit court therefore issued a second order in July 2013 again directing the state to respond, and once again the circuit court’s order went unanswered. Most recently, the circuit court issued an order in October 2013, ordering the state for a third time to respond to petitioner’s amended motion.

Under Florida Rule of Criminal Procedure 3.853(c)(2), if the court determines that a motion for postconviction DNA testing is facially sufficient, “the prosecuting authority shall be ordered to respond to the motion within 30 days or such other time as may be ordered by the court.” Rule 3.853(c)(3) then provides that “[u]pon receipt of the response of the prosecuting authority, the court shall review the response and enter an order on the merits of the motion or set the motion for hearing.” Here, the circuit court promptly complied with its obligation under rule 3.853(c)(2) to determine the facial sufficiency of the motion and order the prosecuting authority to respond. The “prosecuting authority,” however, has been derelict in discharging its responsibilities.

Accordingly, while the circuit court cannot be faulted for failing to enter a ruling on petitioner’s amended motion since it has not yet received the state’s response, it is equally clear that petitioner is entitled to have his motion disposed of in a reasonably prompt fashion. If that requires the circuit court to employ coercive measures or sanctions to ensure compliance with its orders directing the filing of a response by the State Attorney, that is a matter well within its authority. We therefore GRANT the petition for writ of mandamus, direct the circuit court to take such measures as are necessary to ensure the filing of a response to petitioner’s amended motion if one has not yet been filed, and order it to enter an order on the merits of the amended motion or set the amended motion for hearing within 60 days following filing of the state’s response or issuance of this opinion, whichever is later.

LEWIS, C.J., BENTON and SWANSON, JJ„ concur.


text:
    Paul BURNS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3725.
    District Court of Appeal of Florida, First District.
    Dec. 26, 2013.

      Paul Burns, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on or about August 15, 2012, in Walton County Circuit Court case number 2011-CF-000702, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

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


text:
    Christie WILDES, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5548.
    District Court of Appeal of Florida, First District.
    Dec. 26, 2013.
    Nancy A. Daniels, Public Defender, and Deborah Whisnant and Steven L. Seliger, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because the Court’s jurisdiction was not invoked in a timely fashion, the appeal is dismissed. However, the dismissal is without prejudice to appellant filing a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

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


text:
    Christie WILDES, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5549.
    District Court of Appeal of Florida, First District.
    Dec. 26, 2013.
    Nancy A. Daniels, Public Defender, and Deborah Whisnant and Steven L. Seliger, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because the Court’s jurisdiction was not invoked in a timely fashion, the appeal is dismissed. However, the dismissal is without prejudice to appellant filing a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(e).

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


text:
    Christie WILDES, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5550.
    District Court of Appeal of Florida, First District.
    Dec. 26, 2013.
    Nancy A. Daniels, Public Defender, and Deborah Whisnant and Steven L. Seliger, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because the Court’s jurisdiction was not invoked in a timely fashion, the appeal is dismissed. However, the dismissal is without prejudice to appellant filing a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

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


text:
    Christie WILDES, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5614.
    District Court of Appeal of Florida, First District.
    Dec. 26, 2013.
    Nancy A. Daniels, Public Defender, and Deborah Whisnant and Steven L. Seliger, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because the Court’s jurisdiction was not invoked in a timely fashion, the appeal is dismissed. However, the dismissal is without prejudice to appellant filing a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

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


text:
    Eric R. HURST, Petitioner, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Department of Business and Professional Regulation, Respondents.
    No. 1D13-5636.
    District Court of Appeal of Florida, First District.
    Dec. 26, 2013.

      Eric R. Hurst, pro se, Petitioner.
    Cristina A. Velez, for Respondent Reemployment Assistance Appeals Commission, Tallahassee.
    Garnett W. Chisenhall, for Respondent Department of Business and Professional Regulation, Tallahassee.
   PER CURIAM.

Eric R. Hurst seeks certiorari review of a non-final order of the Reemployment Assistance Appeals Commission. We treat the petition as one seeking review of a non-final administrative order pursuant to Section 120.68(1), Florida Statutes (2013), but because petitioner has failed to demonstrate that review of the final agency action of the Commission would not provide an adequate remedy, we DENY the petition without reaching the merits.

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


author: LAWSON, J. TORPY, C.J.,

text:
    STATE of Florida, Appellant, v. James Randall WILSON, Appellee.
    No. 5D13-387.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellee.
   LAWSON, J.

The State appeals the trial court’s order granting James Randall Wilson’s motion to dismiss charges of attempting to solicit a minor for sexual activity using an electronic device or internet service, and traveling to meet a minor for unlawful sexual activity after first using an electronic device or internet service to attempt to solicit the minor. Finding that the trial court erred in granting Wilson’s motion to dismiss, we reverse.

Responding to an ad in the “personals” section of the internet site “Craig-slist,” Wilson began an email and text dialogue with a detective posing as the aunt of a thirteen-year-old girl purportedly being offered for sex. It is unnecessary to detail all of the exchanges between Wilson and the detective. In summary, the evidence reviewed in connection with Wilson’s motion to dismiss, when viewed in the light most favorable to the State, demonstrated that Wilson used electronic communications to arrange what he believed would be a sexual encounter between himself and a thirteen-year-old female child. Law enforcement arrested Wilson after he traveled to the location at which he had agreed to meet the child. In granting the motion to dismiss, the trial court concluded that Wilson could not be convicted of either charge because his electronic communications were with a person he believed to be an aunt of the child, and not directly with the child. The trial court read the relevant statutes as only applying if an accused communicated directly with (and thereby directly solicited) the child for sex. Considering the matter de novo, see, e.g., State v. Brabson, 7 So.3d 1119, 1120-21 (Fla. 2d DCA 2008), we agree with the State that these statutes also apply when an accused attempts to solicit a child through an adult intermediary.

Section 847.0135(3)(a), Florida Statutes, provides that:

Any person who knowingly uses a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to:
(a) Seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child, to commit any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in any unlawful sexual eon-duct with a child or with another person believed by the person to be a child ... commits a felony of the third degree

(Emphasis added). As highlighted above, this subsection criminalizes an “attempt” to “solicit, lure, or entice” a child (or person believed to be a child) for sex to the same degree as an actual solicitation of the child (or person believed to be a child). With respect to the legal issue presented here, the relevant language in section 847.0135(4)(a), Florida Statutes, is identical to the language quoted above from section 847.0135(3)(a). Subsection (4)(a), however, further criminalizes (as a second-degree felony) the act of traveling to meet a child (or person believed to be a child) after “solicitpng], lur[ing] or entic[ing]” the child for sex using an electronic device or internet service, or attempting to do so. In this case, the State relies exclusively on the attempt language in the statute as its basis for challenging the dismissal of Wilson’s charges, arguing that even if Wilson did not solicit, lure or entice the child, he attempted to do so. We agree that the evidence, at a minimum, was sufficient to prove that Wilson attempted to solicit, lure or entice a person who Wilson believed to be a child by arranging to meet the “child” for sex.

In short, the statutes at issue criminalize an attempt to solicit to the same degree as a completed solicitation — and an attempt by definition does not require proof that the accused actually committed the act attempted. Morehead v. State, 556 So.2d 523, 524 (Fla. 5th DCA 1990) (stating that an “attempt” necessarily involves “a failure to accomplish the intent”). Courts construing an analogous federal statute have reached the same conclusion. See, e.g., United States v. Lee, 603 F.3d 904 (11th Cir.2010); United States v. Nestor, 574 F.3d 159 (3d Cir.2009); United States v. Homaday, 392 F.3d 1306 (11th Cir.2004); United States v. Murrell, 368 F.3d 1283 (11th Cir.2004); see also People v. Douglas, 296 P.3d 234 (Colo.App.2012) (reaching same conclusion when construing analogous Colorado statute). These analy-ses, like ours, amount to nothing more than application of the plain language of these similar statutes. Any other reading would render the attempt language in these statutes meaningless.

In reaching this conclusion, we are mindful that the legislature has also separately criminalized the solicitation of certain adult intermediaries for sex with a minor. See § 847.0135(3)(b), Fla. Stat. (2011) (criminalizing the use of an electronic device or internet service to “[s]olicit, lure, or entice, or attempt to solicit, lure, or entice a parent, legal guardian, or custodian of a child or a person believed to be a parent, legal guardian, or custodian of a child to consent to the participation of such child in any act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in any sexual conduct”); § 847.0135(4)(b), Fla. Stat. (2011) (criminalizing the act of traveling to meet a minor (or person believed to be a minor) for sexual activity after using an electronic device or internet service to “[s]olicit, lure, or entice, or attempt to solicit, lure, or entice a parent, legal guardian, or custodian of a child or a person believed to be a parent, legal guardian, or custodian of a child to consent to the participation of such child in any act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in any sexual conduct”). The fact that the legislature chose to directly criminalize conduct in one subsection of the statute that could also constitute an unlawful attempt under another subsection of the same statute provides no basis for ignoring the plain language of either subsection. See, e.g., State v. Gonzalez, 121 So.3d 625 (Fla. 4th DCA 2013) (noting that prosecution has discretion to charge defendant under general crime even though more specific crime exists) (citing United, States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979)).

Finding that the trial court erred in granting Wilson’s motion to dismiss, we reverse the trial court’s order and remand for further proceedings.

SAWAYA, J., concurs.

TOKPY, C.J., concurs specially, with opinion.

TORPY, C.J.,

concurring specially.

The trial court concluded that a “solicitation” must be direct with the person believed to be a child to constitute a crime. The majority does not address this precise issue because the State argued on appeal that the conduct here constituted an “attempted solicitation,” also prohibited by the statute. Had it been argued, I would have concluded that the evidence here was sufficient to establish a prima facie case of guilt that Appellant committed a “solicitation.” There is nothing in this statute that evinces a legislative intent to criminalize only a direct solicitation of a child (as contrasted with one that is indirect). “Solicit” simply means to ask. See Fla. Std. Jury Instr. (Crim.) 23.6 (“solicit” means to “ask earnestly”). When the solicitor asks, the crime is committed. The mere posting of a general solicitation on a “local bulletin board service,” for example, is a completed crime under this statute, irrespective of whether it is read by anyone. It follows that a solicitation can occur if, instead of placing the message with a bulletin board service, the request is communicated through another person, with the intent that the message reach the minor. This could be established in either of two circumstances: where the solicitor believes that the intermediary is acting as the agent for the child or where the solicitor intends for the intermediary to pass the message on to the child. Admittedly, the distinction is inconsequential here, because this statute addresses both solicitation and attempted solicitation.

      . § 847.0135(3)(a), (4)(a), Fla. Stat. (2011). These subsections are part of Florida’s Computer Pornography and Child Exploitation Prevention Act, section 847.0135, Florida Statutes (2011).

      . "When considering a defendant's rule 3.190(c)(4) motion to dismiss, all questions and inferences from the facts must be resolved in favor of the state.” Boler v. State, 678 So.2d 319, 323 (Fla. 1996) (citation omitted).

      . In common parlance, “attempt” means "to make an effort to do, accomplish, solve or effect” something. See Meiriam-Webster’s Collegiate Dictionary 79 (11th ed. 2012).


text:
    Timothy BRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-2946.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2013.
    Timothy E. Bradley, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Timothy Bradley, who received a forty-year sentence as a violent career criminal following a trial, appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Bradley contends that his trial counsel was ineffective because counsel informed him that fifteen years was the maximum sentence he could receive, and failed to explain the effect of an habitual offender or violent career criminal sentence. Because the order fails to attach portions of the record that refute this claim, we reverse and remand this matter with instructions that the lower court either attach portions of the record to refute this claim or conduct an evidentiary hearing. See Kearse v. State, 876 So.2d 1291 (Fla. 5th DCA 2004). We find no merit in Bradley’s remaining issue.

AFFIRMED in part; REVERSED in part; REMANDED.

ORFINGER, LAWSON and BERGER, JJ., concur.


text:
    Dallas Murphy ST. DENIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3269.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2013.
    Dallas Murphy St. Denis, Jasper, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Dallas Murphy St. Denis appeals an order denying his motion to correct jail credit, filed pursuant to Florida Rule of Criminal Procedure 3.801. We affirm the order on appeal without elaboration, but remand with directions that the trial court correct the sentencing documents in case nos. 09-CF-714, 09-CF-715, 09-CF-1073 and 09-CF-1108. The “prison credit” box on the sentencing forms for these cases is not checked, although other sentencing documents and the transcript from Defendant’s violation of probation sentencing hearing make clear that the trial judge intended to direct the Department of Corrections to credit the Defendant with the time he had spent in prison previously on these charges when sentencing the Defendant to prison (for the second time) after his post-prison violations of probation. The corrected documents should then be forwarded to the Department of Corrections.

AFFIRMED; and REMANDED WITH DIRECTIONS TO CORRECT SCRIVENER’S ERROR IN SENTENCING DOCUMENTS.

ORFINGER, LAWSON and COHEN, JJ., concur.


author: KELLY, Judge. ALTENBERND, Judge,

text:
    EAGLE FL VI SPE, LLC and Branch Banking & Trust Company, Petitioners, v. CYPRESS CREEK PLAZA, LLC, William D. Drost, and T & A Family Partnership, Ltd., Respondents.
    No. 2D13-296.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2013.

      W. Glenn Jensen, Mychal J. Katz, and Christopher D. Donovan of Roetzel & An-dress, LPA, Orlando, for Petitioners.
    J. Kemp Brinson of Clark, Campbell & Lancaster, P.A., Lakeland; and Alan L. Perez of Saunders Law Group, Bartow, for Respondents.
   KELLY, Judge.

Eagle FL VI SPE, LLC (Eagle) and Branch Banking & Trust Co. (BB & T) seek certiorari review of the nonfinal order that denies Eagle’s and BB & T’s motions for protection from discovery and compels their corporate representatives to attend depositions. We grant the petition and quash the order.

BB & T obtained a foreclosure judgment against respondent Cypress Creek Plaza, LLC, and its guarantors. Thereafter, BB & T assigned its interest in the final judgment of foreclosure to Eagle, and Eagle was substituted in the foreclosure action as plaintiff. Eagle moved for a deficiency judgment against the guarantors, William D. Drost, T & A Family Partnership, Ltd., and Lawrence T. Maxwell. Respondents Drost and T & A Family Partnership, Ltd. reached a mediated settlement agreement with Eagle and stipulated to the deficiency judgment, which the trial court approved. Maxwell, however, refused to settle the matter and went to trial. The trial court in Maxwell’s case found that Eagle lacked standing to obtain a deficiency judgment against the guarantors because Eagle had merely become the assignee of the final judgment of foreclosure, which was effective only in rem. This court affirmed the decision. Eagle FL VI SPE, LLC v. Maxwell, 105 So.3d 530 (Fla. 2d DCA 2013) (table decision).

Upon learning of the outcome of Maxwell’s trial, the respondents filed a motion to set aside their stipulation for a deficiency judgment. Before the motion was heard, the respondents sought to depose corporate representatives of Eagle and BB & T. Eagle and BB & T refused to produce any witnesses and moved for protection from discovery. The trial court denied their motions. Eagle and BB & T ask this court to quash the order denying protection from discovery, alleging that the trial court departed from the essential requirements of the law in ordering further discovery when a valid settlement has been reached.

Review by certiorari is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal. Martbw-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987), superseded by statute on other grounds, § 768.72, Fla. Stat. (1989). The trial court’s order departs from the essential requirements of the law because it compels extensive discovery when there is no pending claim or defense. See Fla. R. Civ. P. 1.280(b)(1) (stating that discovery must be “relevant to the subject matter of the pending action”) (emphasis added).

The parties reached a settlement and stipulated to a deficiency judgment. Although the respondents have moved to set aside their stipulation, the trial court has not ruled on the motion. Therefore, the settlement and stipulation remain in effect and bar any further discovery. See Carter v. Carter, 3 So.3d 397, 398 (Fla. 4th DCA 2009) (holding that the former husband should not be compelled to produce the discovery requested by the former wife “unless and until the court first determines the validity of the parties’ settlement agreement”). Settlements are presumed to be valid and to have been entered into by the parties with full knowledge of all relevant facts and issues. See Petracca v. Petracca, 706 So.2d 904, 912 (Fla. 4th DCA 1998) (“[Tjhere can be no question of the adequacy of knowledge when an adversarial party has had the opportunity of ... discovery under the applicable rules of procedure.”). The respondents were represented by counsel and had sufficient opportunity to engage in discovery before entering into the settlement agreement. They had, or could have obtained, the documents from which the alleged mistake could have been found. See Carter, 3 So.3d at 398 (noting that the former wife failed to seek discovery of her former husband’s financial resources before reaching a settlement despite the possibility of having incomplete knowledge). By entering into the settlement agreement, the respondents’ challenges to Eagle’s standing to seek a deficiency judgment were waived. See Schuster v. Blue Cross & Blue Shield of Fla., Inc., 843 So.2d 909, 912 (Fla. 4th DCA 2003) (“There is no question that lack of standing is an affirmative defense that must be raised by the defendant and that the failure to raise it generally results in waiver.”).

Because the settlement agreement and approved stipulation remain in effect, the trial court departed from the essential requirements of the law in ordering discovery. Accordingly, we grant the petition for writ of certiorari and quash the order.

Petition granted.

SLEET, J., Concurs.

ALTENBERND, J. Concurs with opinion.

ALTENBERND, Judge,

Concurring.

This case is in a very unusual procedural posture. Following a foreclosure sale, the defendants, Cypress Creek Plaza, LLC; William D. Drost; and T & A Family Partnership, Ltd., stipulated to the entry of a final deficiency judgment. That stipulation was filed of record in June 2011. As a result, the court entered a judgment in excess of one million dollars against these three defendants.

Lawrence T. Maxwell did not enter into this stipulation. As explained in the court’s opinion, Mr. Maxwell prevailed in a subsequent trial in which he convinced the court that Eagle did not receive an assignment of a guaranty or the right to seek a deficiency. It is not clear that this ruling is binding on Eagle in its relationship to the other three defendants or that their factual circumstances are the same as Mr. Maxwell’s. Moreover, it is at least possible that Eagle could cure the problems that led to the outcome in Mr. Maxwell’s case.

In any event, the three defendants filed a motion to set aside the stipulation in January 2012. The motion does not directly seek relief from the deficiency judgment under Florida Rule of Civil Procedure 1.540. It is not clear to me that the motion is legally sufficient to raise a justi-ciable issue or claim as a postjudgment motion in this trial court proceeding. Thus, I concur that the trial court departed from the essential requirements of the law by permitting discovery before first determining that an issue or claim existed that warranted discovery. However, if the court were to determine that the motion established a legal claim that might permit the three defendants to obtain relief from the stipulation and the resulting judgment, and were further to determine that this issue involved a question of fact, then limited discovery as to that factual issue might be appropriate and would not depart from the essential requirements of the law.


text:
    Edward HORNE, Petitioner, v. STATE of Florida, Respondent.
    No. 2D11-5409.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2013.

      Edward Horne, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Respondent.
   PER CURIAM.

Edward Horne, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(d), alleges that appellate counsel was ineffective for failing to argue that fundamental error occurred when the court gave the then-standard jury instruction for manslaughter by act to the jury in Horne’s trial for second-degree murder with a weapon. In a supplemental response to Horne’s petition, the State concedes that in light of the Florida Supreme Court’s opinion in Daniels v. State, 121 So.3d 409 (Fla.2013), Horne’s petition should be granted. We agree, and we reverse Horne’s second-degree murder conviction, vacate the sentence, and remand for a new trial.

BACKGROUND AND FACTS

Horne was charged with second-degree murder stemming from an altercation with Jamaal Wilson. Mr. Wilson and Horne ran into one another outside an apartment. The two men went into the apartment, and Mr. Wilson asked Horne if Horne had said that he was going to kill Mr. Wilson. Horne denied saying he was going to kill Mr. Wilson, and when Horne started to leave the apartment, Mr. Wilson tried to stop him. After Horne left the apartment, Mr. Wilson confronted him on the street. A crowd of Mr. Wilson’s friends encircled them, encouraging them to fight. Mr. Wilson told Horne to put down his gun and fight. At that point, Horne’s gun was in his pocket. Horne testified that he tried to get away but that he could not. Horne then pulled out his gun and fired a shot. Mr. Wilson looked down and ran away. Horne continued to fire at Mr. Wilson, who fell to the ground. Horne ran to his bicycle and rode away.

Horne was charged with the second-degree murder of Mr. Wilson and was tried by jury. The jury was instructed on second-degree murder, as well as the lesser included offenses of manslaughter by intentional act and manslaughter by culpable negligence. The jury was instructed on manslaughter by intentional act as follows:

To prove the crime of manslaughter, the State must prove the following two elements beyond a reasonable doubt: One, Jamaal Wilson is dead; two, Edward Horne intentionally caused the death of Jamaal Wilson, or the death of Jamaal Wilson was caused by the culpable negligence of the defendant.

In order to convict of manslaughter by intentional act it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death.

This instruction corresponded with the then-standard jury instruction for manslaughter by act, as amended in 2008. Horne did not object to the instruction. He was found guilty and sentenced to life in prison. This court affirmed Horne’s judgment and sentence. Home v. State, 57 So.3d 927 (Fla. 2d DCA 2011).

Nearly four months after the filing of the initial brief in Home, and while the appeal was pending with this court, the First District issued Riesel v. State, 48 So.3d 885 (Fla. 1st DCA 2010). In Riesel, the First District reversed a conviction for second-degree murder and remanded for a new trial, holding that the standard jury instruction for manslaughter by act as amended in 2008 improperly imposed an additional element of intent to kill and was therefore fundamentally erroneous. No case had previously so held, although in State v. Montgomery, 39 So.3d 252, 259 (Fla.2010), the supreme court affirmed the First District’s finding that the prior version of the instruction improperly imposed an additional element of intent to kill on the offense of manslaughter by act and was therefore fundamentally erroneous. At the time of Horne’s direct appeal, this court did not consider the manslaughter by act instruction, as amended in 2008, to be erroneous, let alone fundamentally erroneous.

This court subsequently certified conflict with Riesel in Daniels v. State, 72 So.3d 227, 230 (Fla. 2d DCA 2011), wherein we held that the 2008 manslaughter by act instruction was distinct from the instruction given in Montgomery and, when considered as a whole, was not erroneous. The supreme court overruled our decision and held that the 2008 amendment did not cure the erroneous requirement of proof of intent to kill. Daniels, 121 So.3d at 419. The court reasoned that the instruction as amended was not a correct and complete instruction on the crime of manslaughter by act. Id. Applying standard case law that giving “a defective instruction in a criminal case can only constitute fundamental error if the error pertains to a material element that is disputed at trial,” the supreme court held that because the issue of whether Daniels intentionally caused the death “was disputed and was pertinent and material to what the jury had to consider in order to reach its verdict,” the error was fundamental. Id. at 418-19.

ANALYSIS

To establish a claim of ineffective assistance of appellate counsel, the petitioner must show that counsel performed deficiently and that “ ‘the deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result.’ ” Downs v. Moore, 801 So.2d 906, 909-10 (Fla.2001) (quoting Wilson v. Wainwright, 474 So.2d 1162, 1163 (Fla.1985)). This court applies the law in effect at the time of the appeal to determine whether counsel’s performance was deficient, but it applies current law to determine whether the petitioner is entitled to relief. Brown v. State, 25 So.3d 78, 80 (Fla. 2d DCA 2009).

In the direct appeal in the present case, both the initial brief and the answer brief were filed prior to the issuance of the First District’s Riesel opinion. However, because our affirmance in Home did not issue until four months after the issuance of Riesel, appellate counsel performed de-ficiently by failing to request supplemental briefing to argue that the manslaughter by act instruction was fundamentally erroneous based on Riesel. Had counsel so argued, this court would have affirmed Horne’s conviction for second-degree murder; however, as we did in Daniels, we would have been compelled to certify conflict with Riesel, and we can only conclude that Horne would have ultimately been afforded relief as part of the direct appeal process. See Henry v. State, 98 So.3d 1193, 1194-95 (Fla. 2d DCA 2012) (holding appellate counsel performed deficiently by failing to seek supplemental briefing on the issue of whether the 2006 standard manslaughter by act instruction was fundamentally erroneous where the First District’s Montgome'ry decision issued after the filing of the initial direct appeal brief and the State’s answer brief but two and a half months prior to the issuance of the opinion in the direct appeal); Banek v. State, 75 So.3d 762, 764 (Fla. 2d DCA 2011) (holding appellate counsel was ineffective in failing to seek supplemental briefing on Montgomery where the initial direct appeal brief and the State’s answer brief were filed prior to the issuance of the First District’s Montgomery opinion, but this court’s per curiam affirmance did not issue until three months after the First District issued Montgomery).

In order to determine whether Horne is entitled to relief we must consider whether Horne’s intent in shooting the victim was pertinent and material to what the jury had to consider in order to reach its verdict. Horne testified that he felt his life was threatened and that he intended to shoot Mr. Wilson in the leg. He did not intend to kill Mr. Wilson; he was just trying to get Mr. Wilson to leave him alone. In closing, the prosecutor argued that to find Horne guilty of manslaughter, the jury had to find “that Edward Horne intentionally caused the death of Jamaal Wilson.” Defense counsel argued that Horne had no intent to kill Wilson and that he shot at Mr. Wilson to protect himself. Thus, Horne’s intent was a primary issue at trial and giving the erroneous instruction constituted fundamental error in this case. See Daniels, 121 So.3d at 419.

Under the current law, Horne is entitled to have his conviction set aside. Because a new appeal would be redundant in this instance, we reverse Horne’s second-degree murder conviction, vacate the sentence, and remand for a new trial.

Reversed and remanded.

DAVIS, C.J., and KELLY and BLACK, JJ., Concur.


author: KELLY, Judge.

text:
    Robert C. SUTTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3282.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2013.
    Howard L. Dimmig, II, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Robert C. Sutton was convicted of burglary of a structure and grand theft. On appeal, he argues that the trial court erred in denying his motion for judgment of acquittal on the grand theft charge because there was insufficient evidence of value. Because we agree with Sutton that the State failed to provide sufficient evidence of the value of the stolen property, we reverse his conviction for grand theft. However, we reject Sutton’s argument that the trial court erred in sentencing him to drug offender probation for charges that were not drug related and affirm his sentence.

The charges against Sutton stemmed from the burglary of an industrial park in which several air conditioning units were damaged and stripped of parts, specifically copper coils. The information filed against Sutton alleged, in part, that he “endeavored” to steal property worth $300 or more from the park on April 26, 2011. At trial, the evidence established that the majority of the damage (an estimated $100,000) occurred prior to the night of Sutton’s known involvement and arrest; no evidence linked Sutton to the prior burglary, theft, and damage.

At the close of the State’s case, Sutton moved for a judgment of acquittal on the felony grand theft charge. He argued that the value of the previously stolen property could not be attributed to him and that the State did not prove that the copper coil Sutton was accused of attempting to steal had a value of $300 or more. The trial court denied the motion, and the jury found Sutton guilty of grand theft as charged.

A conviction for grand theft requires competent, substantial evidence showing that the defendant stole property valued at $300 or more. § 812.014(2)(c)(l), Fla. Stat. (2010). “Value” is defined as “the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.” § 812.012(10)(a)(l); see Colletti v. State, 74 So.3d 497, 499 (Fla. 2d DCA 2011). Where the value of the stolen property cannot be ascertained, “the trier of fact may find the value to be not less than a certain amount; if no such minimum value can be ascertained, the value is an amount less than $100.” § 812.012(10)(b).

Here, the State presented testimony that the industrial park suffered an estimated $100,000 in losses from an earlier crime, but it provided no evidence that the copper coil Sutton was accused of attempting to steal was worth more than $300 or that it was impossible to ascertain the value of the coil. See § 812.012(10)(a) & (b). Because the State failed to prove value, an essential element of grand theft, the trial court erred in denying Sutton’s motion for judgment of acquittal on that charge. See Marrero v. State, 71 So.3d 881, 887 (Fla.2011); see also Colletti, 74 So.3d at 499. We therefore reverse Sutton’s grand theft conviction and remand to the trial court for entry of a judgment and sentence for petit theft. See C.N.W. v. State, 670 So.2d 1052, 1053 (Fla. 2d DCA 1996) (reducing grand theft conviction to petit theft where there was no record evidence of the value of the stolen property).

Sutton also argues that the trial court erred in placing him on drug offender probation because burglary and grand theft are not among the enumerated offenses under section 948.20, Florida Statutes (2010). We disagree. Section 948.20 was amended in 2009. See Ch. 2009-64, § 7, at 583-84, Laws of Fla. That version of the statute provided:

If it appears to the court upon a hearing that the defendant is a chronic substance abuser whose criminal conduct is a violation of s. 893.13(2)(a) or (6)(a), or other nonviolent felony if such nonviolent felony is committed on or after July 1, 2009, and notwithstanding s. 921.0024 the defendant’s Criminal Punishment Code scoresheet total sentence points are 52 points or fewer, the court may either adjudge the defendant guilty or stay and withhold the adjudication of guilt. In either case, the court may also stay and withhold the imposition of sentence and place the defendant on drug offender probation or into a postadjudi-catory treatment-based drug court program if the defendant otherwise qualifies. As used in this section, the term “nonviolent felony” means a third degree felony violation under chapter 810 or any other felony offense that is not a forcible felony as defined in s. 776.08.

Sutton was charged in 2011 with the third-degree felony of burglary in violation of section 810.02, Florida Statutes (2010). Because, section 948.20 specifically includes third-degree felonies under chapter 810 in its definition of nonviolent felonies, and Sutton’s scoresheet reflects a total of 24.8 points, it was within the trial judge’s discretion to sentence Sutton to drug offender probation if it appeared to the court that Sutton was a “chronic substance abuser.” See id.

It is clear from the transcript that the court believed Sutton’s criminal behavior was the result of drug and alcohol use and that further attempts at probation without drug treatment would be futile. We cannot conclude the trial court abused its discretion in sentencing Sutton accordingly. Therefore, we affirm Sutton’s judgment and sentence for burglary, reverse Sutton’s conviction for grand theft, and remand to the trial court with directions to enter a judgment of petit theft.

Affirmed in part, reversed in part, and remanded with directions.

WALLACE and KHOUZAM, JJ., Concur.


text:
    John Rynell RICHARDS, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1484.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2013.

      Howard L. Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   KELLY, Judge.

In this appeal, John Richards challenges his conviction for attempted second-degree murder, arguing that he is entitled to a new trial. He contends that the standard jury instruction on attempted manslaughter, which was read to the jury, was flawed and that its use amounted to fundamental error. While this case was pending on appeal, the Florida Supreme Court decided Williams v. State, 123 So.3d 23 (Fla.2013), and it held that the standard instruction was flawed. It also found that in that case its use amounted to fundamental error. Thus, while Williams disposes of Mr. Richards’ contention that the attempted manslaughter instruction was flawed, we must still determine whether its use constitutes fundamental error in this case. Because we conclude it does not, we affirm Mr. Richards’ conviction for attempted second-degree murder.

Mr. Richards was charged with attempted second-degree murder after he stabbed David Russell in the neck, apparently in an altercation over some beer. During his trial, Mr. Richards testified that both men were seated on a bench in the park, when Mr. Russell, not satisfied with the vodka that he had been sharing with friends, began to hound Mr. Richards for a beer, a request Mr. Richards repeatedly rejected, citing his lack of funds to buy more when his current supply was exhausted. Unable to take “no” for an answer, Mr. Russell helped himself to some of the beer Mr. Richards was drinking after Mr. Richards sat it down for a moment. Mr. Richards complained, and Mr. Russell responded with various threats and a punch to Mr. Richards’ face. Mr. Richards explained that he tried to stand up but Mr. Russell, who was now standing, “pushed me back down, slammed me on the bench and grabbed me by the throat.” Mr. Richards stated that he pulled out his knife in self-defense and that “after I stuck him, he stopped, well, squeezing my throat” and eventually he slumped down and Mr. Richards was able to get up.

An officer who interviewed Mr. Richards after the stabbing testified that Mr. Richards had told him that Mr. Russell had “bowed up” on him and he “wasn’t going to be disrespected” and that he “hoped he killed the dude, as he needed to make sure that other people understood that he wasn’t to be disrespected.” Other witnesses offered a different account. They said they saw Mr. Richards lean over and bite Mr. Russell and then start swinging the knife at Mr. Russell’s head and throat. One of the witnesses said he pried the knife from Mr. Richards’ hand while Mr. Russell held Mr. Richards’ wrist. Mr. Russell then punched Mr. Richards in the face before collapsing.

In closing, the State took the position that Mr. Richards’ version of events — that Mr. Russell attacked him over a beer when he had a full half-gallon of vodka he was sharing with friends — was not credible. Rather, the State argued, “this was not an act of self-defense,” it “was an act of rage.” Mr. Richards’ counsel, on the other hand, argued that Mr. Richards had acted in self-defense and that it was not credible that Mr. Richards would “just jump up and start stabbing somebody” without provocation. Mr. Richards’ counsel told the jurors they should read the instruction on justifiable use of deadly force, which was “basically the self-defense instruction” and that when they did, they would see “that this scenario is exactly this and that my client is not guilty because he acted in his own self-defense and it was justifiable use of that deadly force.” The State responded by explaining to the jurors that even if they thought Mr. Richards believed he could stab someone in self-defense because they “bowed up” on him, the instructions the court would read to them would show the law required more than that.

At this juncture we should explain that this was the second time Mr. Richards was on trial for stabbing Mr. Russell. He was originally charged with attempted first-degree murder but was convicted of attempted second-degree murder. That conviction was overturned on appeal because the jury received an incorrect instruction on justifiable use of deadly force, which had been Mr. Richards’ sole defense. Richards v. State, 39 So.3d 431, 434 (Fla. 2d DCA 2010). On remand, Mr. Richards was retried on a charge of attempted second-degree murder. Because in the original trial Mr. Richards had been charged with attempted first-degree murder, the jury had been instructed on attempted manslaughter as a lesser included offense. However, whether to instruct on manslaughter became an issue in the second trial because the standard jury instructions did not include attempted manslaughter as a lesser included offense of attempted second-degree murder. See Fla. Std. Jury Instr. (Crim.) 6.4 (2006).

As a result, when the trial court was ready to go over the jury instructions, the State commented that “we may need to do some editing there,” to which the court responded “and there was an attempted voluntary manslaughter instruction given in the last trial, and it also appeared on the verdict form.” The State responded that “here’s the issue for resolution of the Court. Attempted voluntary manslaughter does not appear as either a Categoiy 1 or Category 2 lesser included of 6.4, attempted second-degree homicide. However, it does appear as a — I believe, a Category 1 of second-degree homicide.” The court responded, “All right. I — this is the way I’ll handle it. If the Defense requests it, I’ll give it. If they don’t want it, I won’t give it.” Mr. Richards’ counsel replied, “We’re requesting it, Judge.” As a result of Mr. Richards’ request for the instruction, the attempted voluntary manslaughter instruction was read to the jury.

The court also discussed what needed to be done to the verdict form used in the first trial, noting that the attempted first-degree murder charge would be omitted from the verdict form. Because the charged crime was now attempted second-degree murder, the parties agreed that the lesser included offenses had to be reordered with aggravated battery as the next lesser offense, and then attempted manslaughter, followed by aggravated assault, and then battery. Assault was added as the final lesser offense.

The jury convicted Mr. Richards of attempted second-degree murder. In this appeal, Mr. Richards contends that the standard attempted manslaughter jury instruction that was read to the jury was flawed because it said the jury had to find the defendant committed an act that was intended to cause the death of Mr. Russell. He claims that the giving of the instruction was fundamental error and, therefore, that he is entitled to a new trial.

The supreme court has recently held that the standard attempted manslaughter instruction is flawed. See Williams, 123 So.3d at 30. That, however, does not resolve the question of whether the use of the instruction in Mr. Richards’ case requires a new trial. Mr. Richards did not object to the instruction; thus, he is only entitled to a new trial if use of the instruction in his case amounted to fundamental error, and, if it was fundamental error, he did not waive the error. We conclude that the error was not fundamen-

ATTEMPTED SECOND DEGREE MURDER — 782.04(2) and 777.04

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

None

Aggravated assault 784.021 8.2

Aggravated battery 784.045 8.4

Assault 784.011 8.1

Battery 784.03 8.3 tal but that even if it was, Mr. Richards waived it.

In Williams, the supreme court held that “a trial court commits fundamental error in giving the standard jury instruction on attempted manslaughter by act where the defendant is convicted of a crime no more than one step removed from the improperly instructed offense.” 123 So.3d at 27 (emphasis added). Here, Mr. Richards was convicted of attempted second-degree murder, a second-degree felony. See § 782.04(2), Fla. Stat. (2007) (classifying second-degree murder as a first-degree felony); 777.04(4)(c), Fla. Stat. (2007) (providing that an attempt to commit a crime that is a first-degree felony is classified as a second-degree felony). The jury was instructed, and the verdict form confirmed, that the next lesser offense was not attempted manslaughter — it was aggravated battery, which like attempted second-degree murder is a second-degree felony. See § 784.045, Fla. Stat. (2007). Attempted manslaughter, which is a third-degree felony, followed aggravated battery in the instructions and on the verdict form. See §§ 782.07(1) (defining manslaughter as a second-degree felony); 777.04(4)(d) (providing that an attempt to commit a crime that is a second-degree felony is classified as a third-degree felony). Thus, the jury here was properly instructed on the next lower crime. Because Mr. Richards was convicted of an offense not one but two steps removed from attempted manslaughter, the error was not fundamental.

It was not fundamental for an additional reason. As explained in Daniels v. State, 121 So.3d 409, 418 (Fla.2013):

[A] defective instruction in a criminal case can only constitute fundamental error if the error pertains to a material element that is disputed at trial. Accordingly, where the trial court fails to correctly instruct on an element of the crime over which there is dispute, and that element is both pertinent and material to what the jury must consider in order to decide if the defendant is guilty of the crime charged or any of its lesser included offenses, fundamental error occurs.

Mr. Richards’ intent was not disputed at trial. Mr. Richards never claimed that he did not intend to kill Mr. Russell. Mr. Richards’ sole defense was that the stabbing was done in self-defense. So, in deciding whether to find Mr. Richards guilty of attempted second-degree murder or any of the lesser offenses, the only issue that was disputed that the jury had to consider was whether Mr. Richards’ actions were justified as self-defense. Cf id. (explaining that where the defendant was charged with first-degree premeditated murder and argued in closing that he did not intend to kill the victim but only to scare someone with the gun, while the State argued that he did intend to kill the victim, the defendant’s intent or lack of intent was clearly before the jury as a disputed issue).

Finally, even if the error had been fundamental, Mr. Richards waived the error because he affirmatively requested the jury instruction he now challenges. While affirmatively asking for a standard jury instruction would not normally amount to a waiver of fundamental error, in this case Mr. Richards asked that the jury be instructed on attempted manslaughter even though attempted manslaughter was not included as either a category one or two lesser offense of attempted second-degree murder. But for Mr. Richards’ affirmative request for the instruction, it would not have been given. The supreme court has held that fundamental error may be waived where defense counsel requests the erroneous instruction. Armstrong v. State, 579 So.2d 734, 735 (Fla.1991). Inclusion of the attempted manslaughter instruction was a tactical decision that gave the jury an option to convict Mr. Richards for an attempted homicide that was lesser in degree than both attempted second-degree murder and aggravated battery and which was consistent with the evidence presented at trial. Where defense counsel makes a tactical decision to request an instruction, the defendant cannot benefit from that decision on appeal. See id.

Although Williams holds that the attempted manslaughter instruction was flawed, we conclude that its use does not constitute fundamental error in this case. Accordingly, we affirm Mr. Richards’ conviction for attempted second-degree murder.

LaROSE and BLACK, JJ., Concur.

      . Florida Standard Jury Instruction (Criminal) 6.6, attempted manslaughter by act, as it existed in 2007 when the crime was committed, stated, in pertinent part:
      To prove the crime of Attempted Voluntary Manslaughter, the State must prove the following element beyond a reasonable doubt: (Defendant) committed an act [or procured the commission of an act], which was intended to cause the death of (victim) and would have resulted in the death of (victim) except that someone prevented (defendant) from killing (victim) or [he] [she] failed to do so.

      . In response to Williams, the instruction was amended to require proof that the defendant committed an intentional act, rather than proof that the defendant intended to cause death. See In re Standard Jury Instructions in Criminal Cases-Instruction 6.6, - So.3d -, 2013 WL 2349589, 38 Fla. L. Weekly S355 (Fla. May 30, 2013).

      . The Schedule of Lesser Included Offenses in the Florida Standard Jury Instructions (Criminal) 6.4 (2006), appears as follows:

      . There appears to be some confusion regarding the proper order in which to place attempted manslaughter and aggravated battery on a verdict form. See, e.g., Graham v. State, 100 So.3d 755 (Fla. 1st DCA 2012); Thomas v. State, 91 So.3d 880 (Fla. 5th DCA 2012). The record in this case reflects that the parties prepared the verdict form in the manner dictated by the supreme court in Sanders v. State, 944 So.2d 203, 207 (Fla.2006), which states,
      While reclassification and enhancement statutes have made it difficult for trial courts to prepare appropriate verdict forms, the basic premise of what constitutes a proper lesser included offense has not changed. Trial courts should continue to rely primarily and ultimately upon the applicable statutory provisions for the charged crime when they are determining lesser included offenses. However, the Florida Standard Jury Instructions in Criminal Cases contain a schedule that assists in this task. The charged crime should be followed on the verdict form by the determined lesser included offenses in descending order by degree of offense.
      At trial, the parties agreed on the order in which the lesser included offenses should be listed on the verdict form and no issue has been raised on appeal regarding the order of ■ offenses presented to the jury.

      . Although intent was a nonissue in Mr. Richards' trial, the jury did hear testimony that Mr. Richards was heard saying he hoped he had killed Mr. Russell. Because this was the only evidence of Mr. Richards’ intent, and because he did not dispute it, the erroneous language in the attempted manslaughter instruction would have allowed the jury to find him guilty of the lesser offense of attempted manslaughter.


author: CASANUEVA, Judge.

text:
    Cecil Brian BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-313.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2013.

      Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad MartinSeho-maker, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Cecil Brian Brown appeals the order resentencing him to two years’ imprisonment after he committed a new law violation during the furlough he was granted before he was required to serve a ten-month jail term. The State concedes that the resentencing violated Brown’s double jeopardy rights. Although Brown has been released from prison, we have jurisdiction to review his sentence because of the collateral legal consequences to Brown. See Godwin v. State, 593 So.2d 211, 212 (Fla.1992) (noting that Florida courts recognize that an otherwise moot case will not be dismissed if, inter alia, “collateral legal consequences that affect the rights of a party flow from the issue to be determined”). We reverse.

On December 15, 2011, Brown entered a written negotiated plea to driving while license suspended or revoked (DWLSR), and the trial court sentenced him to ten months in county jail. The jail term was to begin on January 3, 2012. After pronouncing the jail term, the court advised Brown that if he committed any new law violations during his furlough, he would be subject to a term of imprisonment of up to five years.

Brown turned himself in on the agreed date, but it came to the court’s attention that he had been arrested for another charge of DWLSR while on furlough. Because of Brown’s commission of a new law violation, the trial court conducted a resen-tencing hearing for the original DWLSR conviction and, over defense counsel’s objections, resentenced Brown to two years’ imprisonment.

In this appeal, Brown argues and the State concedes that jeopardy attached when the trial court sentenced him on December 15, 2011, and that, therefore, the trial court violated his double jeopardy rights when it resentenced him for the same offense on January 3, 2012. See Joslin v. State, 826 So.2d 324, 326 (Fla. 2d DCA 2002) (discussing the distinction between sentencing a defendant before releasing him on furlough, at which time jeopardy attaches, and accepting a defendant’s plea and delaying the imposition of sentence until he returns from furlough; noting that in the former scenario the trial court may not impose a harsher sentence to punish the defendant for offenses committed while on furlough or for failing to return on the appointed date), disapproved of on other grounds, Metellus v. State, 900 So.2d 491 (Fla.2005); see also Odol v. State, 64 So.3d 130, 131 (Fla. 1st DCA 2011); Ingraham v. State, 842 So.2d 954, 955 (Fla. 4th DCA 2003). The State also concedes that there is no evidence that the prosecutor filed a motion to vacate Brown’s plea and sentence for noncompliance with the plea agreement. See Fla. R.Crim. P. 3.170(g)(2)(A) (providing that the State may move to vacate a plea and sentence within sixty days of a defendant’s noncompliance with a plea agreement).

Although Brown has been released from prison, he faces possible collateral consequences from his conviction. See Bush v. State, — So.3d-, 38 Fla. L. Weekly D1991, 2013 WL 5224933 (Fla. 2d DCA Sept.18, 2013) (reversing in part for reinstatement of order of probation in one of appellant’s cases on appeal because of the possibility appellant would be liable for incarceration and other correctional costs); § 960.293, Fla. Stat. (2012) (providing that upon conviction, defendants are liable to the state and its local subdivisions for the costs of incarceration and other correctional costs); § 960.297 (authorizing a civil action to recover the costs set forth in section 960.293); see also Miami-Dade Cnty. v. Moss, 842 So.2d 284, 285 (Fla. 3d DCA 2003) (“[T]he plain language of section 960.293(2)(b) states that damages are liquidated for the number of days of the convicted offender’s sentence, not the number of days actually served.”). Accordingly, we reverse Brown’s sentence of two years’ imprisonment and remand with directions to the trial court to reinstate his original sentence of ten months in jail.

Reversed and remanded with directions.

DAVIS, C.J., and KHOUZAM, J., Concur.


text:
    Bette Jean WALDEN, as Personal Representative of the Estate of Laveon Austin Walden, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY; Philip Morris USA, Inc.; Lorillard Tobacco Company; Lorillard, Inc.; Liggett Group, LLC (f/k/a Liggett Group, Inc., f/k/a Brooke Group, Ltd., Inc., f/k/a Liggett & Myers Tobacco Company); and Vector Group, Inc. (f/ka Brooke Group, Ltd., Inc.), Appellees.
    No. 1D12-2914.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2013.
    Steven L. Brannock, Celene H. Hum-phries, Sarah C. Pellenbarg and Tyler K. Pitchford of Brannock & Humphries, Tampa; Matthew D. Schultz of Levin, Papanto-nio, Thomas, Mitchell, Rafferty & Proctor, P.A., Pensacola, for Appellant.
    Gregory G. Katsas of Jones Day, Washington, D.C., Charles F. Beall, Jr. and Larry Hill of Moore, Hill & Westmoreland,

      P.A., Pensacola, for Appellee R.J. Reynolds; Joseph Hagedorn Lang, Jr. of Carlton Fields, P.A., Tampa, for Appellee Philip Morris USA, Inc.
   PER CURIAM.

AFFIRMED. See Roughton v. R.J. Reynolds Tobacco Co., 129 So.3d 1145 (Fla. 1st DCA 2013); Gaff v. R.J. Reynolds Tobacco Co., 129 So.3d 1142 (Fla. 1st DCA 2013).

BENTON, VAN NORTWICK, and PADOVANO, JJ., concur.


author: BENTON, J.

text:
    Christina VIERING, Appellant, v. FLORIDA COMMISSION ON HUMAN RELATIONS on behalf of Bahiyyih WATSON, Appellee.
    No. 1D12-3287.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2013.

      Daniel Woodring of Woodring Law Firm, Tallahassee, for Appellant.
    Cheyanne M. Costilla, General Counsel, John Chaves, Senior Attorney, and Sarah Juliet Purdy Stewart, Esq., Tallahassee, for Appellee.
   ON MOTION FOR REVIEW

BENTON, J.

The Florida Commission on Human Relations (FCHR) seeks review of an administrative law judge’s (ALJ’s) order setting the amount of attorney’s fees and costs required to reimburse Ms. Viering for expenses incurred on appeal. Having earlier decided her entitlement to appellate attorney’s fees, we now uphold the ALJ’s order awarding fees and costs against FCHR.

In the underlying case, Viering v. Florida Commission on Human Relations ex rel. Watson, 109 So.3d 296 (Fla. 1st DCA 2013), Ms. Viering prevailed on the appeal of the final order entered in proceedings the FCHR had instituted against her. “Agreeing that the Commission [FCHR] overstepped its authority by substituting its own view of the facts for the ALJ’s findings, we reverse[d].” Id. at 297. We also granted the motion Ms. Viering filed pursuant to section 120.595(5), Florida Statutes (2012), seeking attorney’s fees, and remanded to the Division of Administrative Hearings (DOAH) for determination of the amount of a reasonable fee. On remand, the ALJ conducted a hearing, and awarded appellate attorney’s fees and costs to Ms. Viering.

Under the Administrative Procedure Act, administrative agencies may not modify an ALJ’s factual findings if supported by competent and — in light of the record as a whole — substantial evidence. See id. at 298; Brevard Cnty. Sheriff’s Dep’t v. Fla. Comm’n on Human Relations, 429 So.2d 1235, 1237 (Fla. 5th DCA 1983) (“What the Commission has done, in effect, is ignored or rejected the hearing officer’s findings of fact without determining that they are not supported by competent, substantial evidence. This it cannot do.”). One reason the ALJ’s findings are looked to is that the reviewing agency is often, as here, itself a litigant. See Lantz v. Smith, 106 So.3d 518, 519 (Fla. 1st DCA 2013) (holding that an administrative adjudicatory body cannot modify “pivotal factual findings” of the ALJ where competent, substantial evidence supported the findings); Gross v. Dep’t of Health, 819 So.2d 997, 1001 (Fla. 5th DCA 2002) (holding that “if there is competent substantial evidence to support the findings of fact in the record, the Florida courts, including this court, have consistently held that the agency may not reject them, modify them, substitute its findings, or make new findings”); Knapp v. Unemployment Appeals Comm’n, 643 So.2d 127, 127 (Fla. 4th DCA 1994) (“Although an agency may reject a hearing officer’s finding of fact after it has read the entire record, the record must disclose the complete absence of evidence to support the factual finding.”). “The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.” § 120.57(1)((), Fla. Stat. (2012).

Its unwarranted rejection of the ALJ’s findings notwithstanding, the FCHR argues that appellant’s failure to comply with notice provisions in section 284.30, Florida Statutes (2012), precluded any award of attorney’s fees. Section 284.30 requires a “party to a suit in any court” claiming attorney’s fees against the state to serve a copy of “the pleading” on the Department of Financial Services. No court has ever held, however, that section 284.30 applies to administrative proceedings, and we decline to do so today. We acknowledged the issue in Florida Medical Center v. Department of Health & Rehabilitative Services, 511 So.2d 677, 678 n. 1 (Fla. 1st DCA 1987), but expressly did not resolve the issue then because it was unnecessary to the decision in Florida Medical Center. Although belatedly, the FCHR asks us to address the question now.

The text of the statute plainly limits applicability of the provision to a “party to a suit in any court.” § 284.30, Fla. Stat. (2012). Administrative proceedings under Chapter 120 are not “a suit in any court.” See, e.g., A.L. v. Jackson Cnty. Sch. Bd., 127 So.3d 758 (Fla. 1st DCA 2013); Wesley Group Home Ministries, Inc. v. City of Hallandale, 670 So.2d 1046, 1049 (Fla. 4th DCA 1996) (explaining that, under 42 U.S.C. § 1988, whether fees are allowed depends on whether there has been a court action or merely administrative proceedings).

The section 284.30 notice requirement does not contemplate administrative proceedings, particularly those the state institutes against a citizen. In the present case, the administrative proceeding in which the FCHR charged Ms. Viering with violating the Fair Housing Act was not a “proceeding[ ] against the state, but rather one by the state.” N.S. v. Dep’t of Children & Families, 119 So.3d 558, 561 (Fla. 5th DCA 2013) (internal quotations omitted). She never filed a complaint and was under no obligation to file an answer. Ms. Viering did not commence the proceedings, and did not file an initial pleading that could have been served on the Department of Financial Services.

Section 284.30, Florida Statutes does not apply to fee motions in administrative proceedings. Under section 120.595(5), Ms. Viering filed a motion for attorney’s fees. Motions are not pleadings. See Green v. Sun Harbor Homeowners’ Ass’n, Inc., 730 So.2d 1261, 1262-63 (Fla.1998) (correcting a statement that the term “pled” included filing motions); N.S., 119 So.3d at 561 (holding section 284.30 does not apply to a motion for fees under section 57.105, Florida Statutes (2012)); Sardón Found, v. New Horizons Serv. Dogs, Inc., 852 So.2d 416, 421 (Fla. 5th DCA 2003) (“A motion is not a pleading.”). The requirement that a litigant serve “a copy of the pleading claiming the fees” does not, in short, apply to motions under section 120.595(5). See also A.L. v. Jackson Cnty. School Bd., supra.

The FCHR also relies on section 760.35(3)(c), Florida Statutes (2012), which took effect on October 1, 1989, ch. 89-321, §§ 8, 12 at 2068-69, Laws of Fla., long before section 120.595(5), Florida Statutes (2012), the authority upon which Ms. Viering relied in requesting attorney’s fees, was enacted. The second sentence of section 120.595(5), provides:

Upon review of agency action that precipitates an appeal, if the court finds that the agency improperly rejected or modified findings of fact in a recommended order, the court shall award reasonable attorney’s fees and reasonable costs to a prevailing appellant for the administrative proceeding and the appellate proceeding.

Section 120.595(5) was enacted in 1996 and “for the first time since the enactment of the Florida Administrative Procedure Act in 1974, dramatically altered the ability of private litigants to recover attorneys’ fees and costs from government agencies that have overreached their legislatively delegated authority” in the specified way. Martha Edenfield, Attorney’s Fees and Costs, Fla. Bar Journal, Mar. 1997, at 73.

Enacted subsequently, the second sentence of section 120.595(5) thus amended, albeit narrowly and discretely, the thither-to blanket prohibition set out in section 760.35(3)(c), which provides: “Costs or fees may not be assessed against the commission in any appeal from a final order issued by the commission under this subsection.” Attorneys’ fees remain unavailable under chapter 760 in most, if not all, the many instances authorized under analogous federal civil rights laws. But fees are authorized under the second sentence of section 120.595(5) whenever a reviewing “court finds that the [FCHR or any other] agency improperly rejected or modified findings of fact in a recommended order.” § 120.595(5), Fla. Stat. (2012).

The Legislature’s authorization of attorney’s fees as a means to prevent agencies from overstepping their authority — or, if they do overstep, to compensate private litigants for legal fees they have incurred as a result — is clear and comprehensive, and makes no exception for any executive branch agency subject to chapter 120. See Pillsbury v. State, Dep’t of Health & Rehab. Sews., 744 So.2d 1040, 1041 (Fla. 2d DCA 1999) (“[T]he obligation of the agency to honor the hearing officer’s findings of fact cannot be avoided by categorizing a contrary finding as a conclusion of law.”); S.A. v. Dep’t of Children & Family Servs., 728 So.2d 1228, 1229 (Fla. 3d DCA 1999) (“We find that the ALJ’s factual findings and inferences drawn therefrom are amply supported by substantial competent evidence in the record. As such, the Department abused its discretion in substituting its own contrary findings of fact on conflicting evidence in ruling on the Department’s exceptions.”); Bush v. Brogan, 725 So.2d 1237, 1239 (Fla. 2d DCA 1999) (“The basic ten[e]t of administrative law is that an administrative agency may not reject a hearing officer’s findings unless it is first determined that the findings were not based on competent, substantial evi-denee[.]”).

Where a citizen exhausts administrative remedies by litigating under section 120.57(1) only to see findings of fact in a favorable recommended order arbitrarily set at naught, the FCHR, just as other agencies in like circumstances, must bear the costs of the (successful) appeal necessary to correct the agency’s misfeasance. As articulated by the specially appointed Governor’s Administrative Procedure Act Review Commission, one of the main goals of the 1996 amendments was to increase agency accountability to the Legislature and the general public. Governor’s Admin. Procedural Act Review Comm’n, Final Report, at 1 (1996). In proposing additional avenues for private litigants to obtain costs and attorney’s fees, it said, the “goal of the Commission is to create a more level playing field in administrative proceedings.” Id. at 23. The Commission’s hope was that imposition of attorney’s fees “in more circumstances would make agencies less likely to abuse their delegated legislative authority.” Id. at App. 0. In enacting the 1996 attorney’s fees revision and additions, the Legislature explicitly implemented the recommendations of the Commission in this regard. CS for HB 1179 (1996) Bill Analysis 1 (March 15,1996).

In addition to giving effect to specific legislative intent to curb agency disregard for and interference with ALJs’ fact finding, today’s decision upholds the “general rule of law” applicable when “the purposes of two statutes appear to be in conflict with each other,” namely, that “the later statute constitutes an amendment of the earlier one.” Hines, Inc. v. United States., 551 F.2d 717, 725 (6th Cir.1977) (citing United States v. Ohio Valley Co., Inc., 510 F.2d 1184, 1189 (7th Cir.1975) and 2 A. Sutherland, Statutory Construction §§ 51.02, 51.05 (C. Sands 4th ed. 1973)). The mandatory language of the second sentence of section 120.595(5) does conflict with the language of section 760.35(3)(c), whether or not it conflicts with the core purpose of section 760.35(3)(e).

The Legislature enacted section 760.35(3)(c) in 1989. See ch. 89-321, § 8, at 2068-69, Laws of Fla. The Legislature enacted section 120.595(5) in 1996. See ch. 96-159, § 25, at 197, Laws of Fla. Chapter 96-159 makes no cross-reference, and legislative history is silent as to any possible conflict. See Hines, 551 F.2d at 725. Under this general rule of statutory interpretation, therefore, the later-enacted statute, section 120.595(5), abrogates section 760.35(3)(c) to the extent that section 760.35(3)(c) prohibits the assessment of costs and fees even when the FCHR has erroneously rejected or modified an ALJ’s findings of fact.

Because section 120.595(5) amends section 760.35(3)(c) pro tanto, and because the notice requirement of section 284.30 does not apply to administrative proceedings, we do not disturb the ALJ’s order under review granting Ms. Viering attorney’s fees and costs.

It is so ordered.

WOLF and SWANSON, JJ., concur.

      . Section 284.30 provides in its entirety:
      A state self-insurance fund, designated as the "State Risk Management Trust Fund,” is created to be set up by the Department of Financial Services and administered with a program of risk management, which fund is to provide insurance, as authorized by s. 284.33, for workers' compensation, general liability, fleet automotive liability, federal civil rights actions under 42 U.S.C. s. 1983 or similar federal statutes, and court-awarded attorney's fees in other proceedings against the state except for such awards in eminent domain or for inverse condemnation or for awards by the Public Employees Relations Commission. A party to a suit in any court, to be entitled to have his or her attorney's fees paid by the state or any of its agencies, must serve a copy of the pleading claiming the fees on the Department of Financial Services; and thereafter the department shall be entitled to participate with the agency in the defense of the suit and any appeal thereof with respect to such fees.

      . We reject Ms. Viering’s contention that the earlier grant of entitlement to attorney’s fees established the law of the case, and address the merits of this issue even though the FCHR has arguably waived this issue by failing to raise the argument until after we had already granted the motion for attorney's fees and remanded to DOAH. See Fla. Med. Ctr. v. Dep’t of Health & Rehab. Servs., 511 So.2d 677, 678 (Fla. 1st DCA 1987) (holding section 284.30 "may be waived by one who fails to raise such defense in a timely manner”).

      . The FCHR argued that Ms. Viering "failed to satisfy the condition precedent requirement” that she "perfect service” by serving a copy of her complaint "at the commencement of her action, as required by section 284.30.” But Ms. Viering had no entitlement to fees at the point proceedings began. Her entitlement to fees under section 120.595(5) did not arise until the FCHR entered its final order improperly modifying the ALJ's fact findings, as discussed in the main appeal.

      . As to this argument, too, we reject Ms. Viering’s argument that law of the case precludes (re)consideration. Our earlier order granting the motion for attorney’s fees and costs was interlocutory and never the subject of review in a higher court.


text:
    Matthew DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3371.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2013.
    Clyde M. Taylor, Jr., Taylor <& Taylor, PA, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Matthew Dixon appeals the sentence imposed following his entry of an open no contest plea to charges arising out of a car accident that occurred when he was driving on the wrong side of a major roadway and collided with another vehicle, killing the other driver and severely injuring the driver’s minor daughter. A toxicology report disclosed Appellant’s blood alcohol content to be 0.281.

Mr. Dixon’s strongest argument on appeal is that the trial court improperly failed to consider his physical condition and apparent need for specialized treatment as a mitigating factor that justified a downward departure in his sentence. See § 921.0026(2)(d), Fla. Stat. We recognize that there is a split of authority among district courts in Florida in this area, but affirm the trial court’s adherence to State v. Holmes, 909 So.2d 526 (Fla. 1st DCA 2005). Under Holmes, Appellant’s argument fails because there is no evidence in the record that the Department of Corrections could not or would not accommodate needed treatment. But see State v. Chub-buck, 83 So.3d 918 (Fla. 4th DCA 2012) (en banc) & State v. Owens, 95 So.3d 1018, 1021 (Fla. 5th DCA 2012) (en banc) (receding from decisions that followed Holmes and certifying a direct and express conflict). We find no merit in Appellant’s other arguments.

AFFIRMED.

WETHERELL, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Charles D. EVANS, Former Husband, Appellant, v. Talitha Nicole EVANS, Former Wife, Appellee.
    No. 1D12-5595.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2013.

      Bradley G. Johnson of Johnson & Green, P.A., Milton, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

In this appeal from a final judgment of dissolution of marriage, the former husband argues the trial court abused its discretion in awarding the former wife $150 per month in permanent periodic alimony and in awarding her the use and possession of the marital residence, but directing her to buy out the former husband’s one-half interest, worth $37,500, at the rate of $150 per month, plus interest, over the course of twenty years. We agree that the trial court abused its discretion concerning these matters.

As for the alimony award, the relative youth of the former wife, her two years’ worth of college, and her experience of running a successful pressure-washing business (the recent loss of which, resulting from the BP ® oil spill, ended in her receipt of $39,000 in compensation) is evidence that “ ‘does not reflect permanent inability on the part of the [former] wife to become self-sustaining.’ ” Aresty v. Wein-stein, 667 So.2d 846, 847 (Fla. 3d DCA 1996) (quoting Wismar v. Wismar, 522 So.2d 552, 553 (Fla. 5th DCA 1988)). See also Rosecan v. Springer, 845 So.2d 927, 930 (Fla. 4th DCA 2003). In regards to the division of the parties’ equity in the marital home — their singular major asset — section 61.075(10), Florida Statutes, grants the trial court the discretion to order an equitable distribution of marital assets payable in installments over a fixed period of time. The present installment scenario, however, which spans twenty years, effectively deprives the former husband of his present one-half interest in the marital home. Cf. Posner v. Posner, 39 So.3d 411, 415 (Fla. 4th DCA 2010) (holding the trial court abused its discretion where the installment plan worked “[t]o deprive the husband of the majority of the assets of the marriage for the rest of his life”).

Accordingly, the award of permanent periodic alimony to the former wife and the equitable distribution installment plan concerning the marital home are REVERSED, and the cause is remanded to the trial court for further consideration of these issues.

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