author: KHOUZAM, Judge.

text:
    Julio C. RODRIGUEZ-GIUDICELLI, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5138.
    District Court of Appeal of Florida, Second District.
    May 23, 2014.
    Howard L. Dimmig, II, Public Defender, and David A. Henson, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appel-lee.
   KHOUZAM, Judge.

Julio C. Rodriguez-Giudicelli appeals his judgment and sentence for first-degree premeditated murder. We affirm in all respects. We write to address Rodriguez-Giudieelli’s argument that the trial court reversibly erred when it applied the doctrine of statutory revival and sentenced him to life in prison with parole eligibility-after twenty-five years pursuant to section 775.082(1), Florida Statutes (1993).

Rodriguez-Giudicelli was seventeen years old when he shot Nolsen Careaga to death on April 12, 2010. Prior to the United States Supreme Court’s opinion in Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the only sentence a trial court in Florida could impose for premeditated murder committed by a juvenile was life in prison without the possibility of parole. See Washington v. State, 103 So.3d 917, 918 (Fla. 1st DCA 2012) (observing that the only two sentences available under the 2009 version of section 775.082(1) for capital felonies were death or mandatory life without the possibility of parole, and that Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), had invalidated the death penalty for defendants who were juveniles at the time the offense was committed). But Miller held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” 132 S.Ct. at 2469. Consequently, in the wake of the Miller decision, Florida courts have struggled with the difficult task of determining what sentence to impose when all reasonable options have been legislatively or judicially foreclosed.

In a concurring opinion in Partlow v. State, 134 So.3d 1027 (Fla. 1st DCA 2013), Judge Makar provides a well-reasoned resolution to this conflict. Applying the concept of statutory revival discussed in B.H. v. State, 645 So.2d 987 (Fla.1994), Judge Makar “would hold that the operative sentencing language of the 1993 version of section 775.082(1) is revived and juvenile offenders should be [jsentenced to life with the possibility of parole after 25 years.” 134 So.3d at 1032. Acknowledging that the Florida Legislature has since repealed the language authorizing this sentence — thereby demonstrating a legislative intent that it no longer be imposed — Judge Makar observes that statutory revival is nevertheless appropriate under these circumstances because the alternative would “‘result in a “hiatus” in the law that would be intolerable to society’ ... due to the lack of a penalty for the commission of first-degree murder by a juvenile.” Id. at 1033 (quoting B.H., 645 So.2d at 995). Moreover, a sentence of life with the possibility of parole after twenty-five years would be consistent with Miller, which, “[fjairly read, ... does not require individualized sentencing of juveniles for anything other than sentences of life without parole.” Id. at 1037.

Judge Makar’s analysis has gained traction in other Florida Appellate courts. In Horsley v. State, 121 So.3d 1130,1131 (Fla. 5th DCA 2013), review granted, 2013 WL 6224657 (Fla. Nov. 14, 2013), the Fifth District “fully agree[d]” with Judge Makar’s analysis in Partlow and unambiguously held “that the only sentence now available in Florida for a charge of capital murder committed by a juvenile is life with the possibility of parole after twenty-five years.” Additionally, in an opinion concurring in part and dissenting in part in Toye v. State, 133 So.3d 540, 547 (Fla. 2d DCA 2014), the same analysis was applied to conclude that a juvenile convicted of felony murder should be sentenced under the 1993 version of section 775.082(1).

Consequently, we hold that the trial court did not err when it applied the doctrine of statutory revival to sentence Rodriguez-Giudicelli pursuant to the 1993 version of section 775.082(1) for a premeditated murder committed when he was a minor. As the Fifth District did in Horsley, we certify the following question to the Florida Supreme Court as a matter of great public importance:

WHETHER THE SUPREME COURT’S DECISION IN MILLER V. ALABAMA, — U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), WHICH INVALIDATED SECTION 775.082(1)’S MANDATORY IMPOSITION OF LIFE WITHOUT PAROLE SENTENCES FOR JUVENILES CONVICTED OF FIRST-DEGREE MURDER, OPERATES TO REVIVE THE PRIOR SENTENCE OF LIFE WITH PAROLE ELIGIBILITY AFTER 25 YEARS PREVIOUSLY CONTAINED IN THAT STATUTE?

Horsley, 121 So.3d at 1132-33.

Affirmed; question certified.

KELLY and WALLACE, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Heather SPAID, Appellant, v. INTEGON INDEMNITY CORPORATION, Appellee.
    No. 1D13-2343.
    District Court of Appeal of Florida, First District.
    June 18, 2014.
    Rehearing Denied Aug. 18, 2014.
    Charles F. Beall, Jr. of Moore, Hill & Westmoreland, P.A., Pensacola, for Appellant.
    Gregory M. Shoemaker and Adam J. White of Wade, Palmer & Shoemaker, P.A., Pensacola, for Appellee.
   PER CURIAM.

Heather Spaid appeals a final summary judgment entered in favor of Integon Indemnity Corporation on her complaint for a declaratory judgment as to the extent of the limit of liability under the Extended PIP provision of her automobile insurance policy. Concluding that the insurance policy at issue is ambiguous as to the amount recoverable under the Extended PIP Endorsement provision of her policy, we reverse.

Spaid was involved in a motor vehicle accident on February 3, 2011, and incurred more than $10,000 of medical bills as a result. She requested that her automobile insurer, Integrity Indemnity Corporation (hereafter, the insurer), pay “all medical expenses” pursuant to the terms of the Extended PIP provision of the policy. The insurer declined to pay more than $10,000 because such amount was declared by it to be the limit of liability for PIP/Extended PIP coverage.

Thereafter, Spaid filed an amended complaint seeking a declaratory judgment that the policy required the insurer to pay all of her reasonable medical expenses related to the accident without a limit of liability. Both sides moved for summary judgment. Spaid argued in support of summary judgment that there was no reference to a limitation of liability regarding medical expenses in the Extended PIP Endorsement or the Declarations pages of the policy, and so the insurer could not deny her claim for medical expenses beyond $10,000 under the plain terms of the policy. To the extent the policy could be deemed ambiguous as the scope of Extended PIP coverage, the ambiguity had to be construed against the insurer as the drafter of the policy, she argued.

Following a hearing and supplemental briefing, the trial court denied Spaid’s motion for summary judgment and entered summary judgment in favor of the insurer. In its order, the trial court accepted the insurer’s argument and held that “[t]he Extended PIP Endorsement does not modify or otherwise change the Limits of Liability of $10,000 contained in the Basic PIP Endorsement.”

The construction of an insurance policy is a question of law, which this court reviews de novo. See Washington Nat’l Ins. Corp. v. Ruderman, 117 So.3d 943, 948 (Fla.2013); Barnier v. Rainey, 890 So.2d 357 (Fla. 1st DCA 2004). Insurance policies are construed by using the “plain language” of the contract. See Fayad v. Clarendon Nat’l Ins. Co., 899 So.2d 1082, 1086 (Fla.2005). Further, insurance policies are to be construed as a whole so that each provision is given its full meaning and effect. See Ruderman, 117 So.3d at 948. Also, an insurer, as the writer of an insurance policy, is bound by the language of the policy, which is to be construed liberally in favor of the insured and strictly against the insurer. Id. at 950 (quoting Berkshire Life Ins. Co. v. Adelberg, 698 So.2d 828, 830 (Fla.1997)).

The Declarations page of the policy at issue provides:

COVERAGE LIMITS OF LIABILITY PREMIUMS UNIT 1

Liability Bodily Injury $10,000 each Person $20,000 each Accident 150.00

Property Damage $25,000 each Accident 96.00

Personal Injury Protection Basie $10,000 each Person 305.00

Deductible $0 Insured/Relative INCL

Extended PIP (100% Medical, 80% Wage Loss) INCL

Rental Reimbursement Sure drive 34.00

Towing & Labor $75 per Occurrence 7.00

Damage to Your Auto Other Than Collision $500 Deductible 105.00

Collision $500 Deductible 163.00

Unit Premium 860.00

Further, the policy states in Part A— Limit of Liability:

The limit of liability shown in the Declarations for each person for Bodily Injury Liability Coverage is our maximum limit of liability for all damages for bodily injury, sustained by any one person in any one auto accident. This includes all derivative claims arising out of said bodily injury.

The Florida PIP provision, an addendum to Spaid’s policy entitled “Endorsement 1823,” provides in the “Insuring Agreement” section that 80% of medical expenses of the insured are covered. Later, in the “Limits of Liability” section of this PIP Endorsement 1823, it is stated that the “limits of liability shown in the Declaration for Personal Injury Protection coverage are the most we will pay to or for each insured injured.... ” The Extended PIP coverage addendum (Endorsement 4494) provides that it is modifying only the “Insuring Agreement” part of the PIP Endorsement. Under the Extended PIP provision, the percentage of medical expenses covered are increased to 100%.

In our view, the Extended PIP Endorsement (Endorsement 4494) creates an ambiguity as to extent of medical expenses which are recoverable.. While the insurer argues, and the trial court agreed, that the Extended PIP coverage only allows for a recovery of 100% of medical expenses until $10,000 is reached, the endorsement is not so plain. The insurer may well have intended to limit its liability for Extended PIP to the same $10,000 limit that governs basic PIP, but as the drafter of the policy, the insurer was required to express this intention “clearly and unambiguously.” Ruderman, 117 So.3d at 951.

Accordingly, the final summary judgment entered in favor of the insurer is reversed, and the cause is remanded for entry of a summary judgment in favor Spaid declaring that 100% of her medical expenses are recoverable under the terms of her policy.

REVERSED and REMANDED for further proceedings.

ROBERTS, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Jamie MACIAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-0375.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2014.
    Rehearing Denied Aug. 22, 2014.
    Jamie Macias, Doral, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the order denying appellant’s second motion for postconviction relief based upon newly discovered evidence which would have impeached the credibility of the victim. Appellant has not shown that the evidence upon which the motion was based was “unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence.” Torres-Arboleda v. Dugger, 636 So.2d 1321, 1324-25 (Fla.1994), receded from on other grounds by Coleman v. State, 64 So.3d 1210, 1225-27 (Fla.2011) (emphasis supplied). Nor has he shown that the evidence probably would result in an acquittal on retrial. See Jones v. State, 709 So.2d 512, 521 (Fla.1998).

WARNER, TAYLOR and LEVINE, JJ., concur.

      . The facts of this case appear in our prior opinion. See Macias v. State, 959 So.2d 782 (Fla. 4th DCA), rev. denied, 973 So.2d 1122 (Fla.2007).


text:
    Luis Alberto MONTOYA, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-499.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2014.
    Rehearing En Banc Denied Aug. 19, 2014.
    Luis Alberto Montoya, Sneads, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Atwell v. State, 128 So.3d 167, 169 (Fla. 4th DCA 2013). Appellant’s argument that the trial court judge should have been disqualified from ruling on the post-conviction motion was not raised below and thus was not preserved for appeal.

TAYLOR, GERBER and LEVINE, JJ., concur.


text:
    Glenn K. GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-825.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2014.
    Rehearing Denied Aug. 19, 2014.
    Glenn K. Graham, Lake City, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s rule 3.800(a) motion to correct illegal sentence. In 1979, appellant was convicted of first-degree murder and kidnapping. He was sentenced to life without possibility of parole for twenty-five years for the murder and life for the kidnapping. In this motion, filed in September 2013, he claims that his life sentence for the non-homicide offense of kidnapping was illegal because he was seventeen years old at the time of the offenses. Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).

The trial court determined that Graham applies only to a life without possibility of parole sentence. For the same reasons discussed in Atwell v. State, 128 So.3d 167, 169 (Fla. 4th DCA 2013), we agree with the trial court. Graham applies only where a juvenile defendant is sentenced to life without possibility of parole for a non-homicide offense.

Affirmed.

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


text:
    FRATERNAL ORDER OF POLICE, Miami Lodge 20, Appellant, v. CITY OF MIAMI and The State of Florida, Appellees.
    No. 3D13-2437.
    District Court of Appeal of Florida, Third District.
    June 18, 2014.
    Rehearing Denied July 16, 2014.
    Klausner, Kaufman, Jensen & Levinson and Robert D. Klausner, Stuart A. Kaufman and Adam P. Levinson Plantation, for appellant.
    Victoria Méndez, City Attorney, and John A. Greco, Deputy City Attorney, and Diana Vizcaino, Assistant City Attorney, for City of Miami, appellee.
    Before SHEPHERD, C.J., and ROTHENBERG and EMAS, JJ.
   PER CURIAM.

Affirmed. See Fla. Dep’t of Revenue v. City of Gainesville, 918 So.2d 250, 256 (Fla.2005) (“[A] determination that a statute is facially unconstitutional means that no set of circumstances exists under which the statute would be valid.”); Headley v. City of Miami, 118 So.3d 885 (Fla. 1st DCA 2013) (holding that the City of Miami did not commit unfair labor practices by unilaterally modifying the collective bargaining agreement pursuant to section 447.4095 of the Florida Statutes); see also Hollywood Fire Fighters, Local 1375, IAFF, Inc. v. City of Hollywood, 133 So.3d 1042 (Fla. 4th DCA 2014) (holding implicitly in an as applied challenge that the use of the term “financial urgency” in section 447.4095 is not unconstitutionally vague; certifying conflict on other grounds with Headley).


author: WARNER, J.

text:
    EVERGRENE PARTNERS, INC., Appellant, v. CITIBANK, N.A., as Trustee, JPMorgan Clearing Corp., as Successor in Interest to Bear Stearns Residential Mortgage Corporation, JPMorgan Chase & Co., and Mortgage Electronic Registration Systems, Inc., Appellees.
    No. 4D13-2236.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2014.
    Rehearing Denied Aug. 27, 2014.
    Richard E. Retamar of Retamar & Milli-an, P.A., Deerfield Beach, for appellant.

      Catherine C. Grieve and Alejandro M. Cura of Rivero Mestre LLP, Miami, for appellees.
   WARNER, J.

Appellant, Evergrene Partners, challenges the dismissal of its complaint to cancel two mortgages held by appellee, Citibank, on property owned by Ever-grene. While appellant alleged that the statute of limitations had run on any right to foreclose on the mortgages, thus requiring the cancellation of the mortgages, the trial court disagreed. We agree with the trial court that appellant is not entitled to the cancellation of the mortgages, because the statute of limitations has not run on the enforcement of the mortgages.

In 2006, mortgagors executed two notes and mortgages on their property, which notes and mortgages were acquired by Citibank. The mortgagors defaulted on the notes, and Citibank filed suit to foreclose in August 2007, alleging a default in the payments and accelerating the balance due. Litigation continued, but in May 2012, Citibank filed a voluntary dismissal of the complaint. Shortly thereafter, the mortgagors transferred the property by quit-claim deed to Evergrene Partners.

Thereafter, Evergrene filed a complaint for cancellation of the mortgages on the property. It alleged that the five-year statute of limitations had run on their enforcement; therefore, as the mortgages were no longer enforceable, they became a cloud on Evergrene’s title.

Citibank filed a motion to dismiss the quiet title action arguing inter alia that section 95.281(1), Florida Statutes (2012), provides in part that:

(1) The lien of a mortgage or other instrument encumbering real property, herein called mortgage, ... shall terminate after the expiration of the following periods of time:
(a) If the final maturity of an obligation secured by a mortgage is ascertainable from the record of it, 5 years after the date of maturity.

Both mortgages reflected a maturity date of April 1, 2036. Citibank argued the mortgage liens did not terminate until 2041, which would be five years after the maturity date of the loans. The trial court agreed with this argument and dismissed the quiet title action, prompting this appeal. We review de novo the dismissal of a complaint for failure to state a cause of action. Acad. Express, LLC v. Broward Cnty., 53 So.3d 1188, 1190 (Fla. 4th DCA 2011).

While a foreclosure action with an acceleration of the debt may bar a subsequent foreclosure action based on the same event of default, it does not bar subsequent actions and acceleration based upon different events of default. See Singleton v. Greymar Assocs., 882 So.2d 1004, 1008 (Fla.2004) (holding that “doctrine of res judicata does not necessarily bar successive foreclosure suits, regardless of whether, or not the mortgagee sought to accelerate payments on the note in the first suit.”); see also Star Funding Solutions, LLC v. Krondes, 101 So.3d 403 (Fla. 4th DCA 2012). Therefore, the statute of limitations has not run on all of the payments due pursuant to the note, and the mortgage is still enforceable based upon subsequent acts of default.

Kaan v. Wells Fargo Bank, N.A, 981 F.Supp.2d 1271 (S.D.Fla.2013), presents a case virtually identical to this case. There, Wells Fargo had filed a complaint for foreclosure based upon a default on the promissory note in 2007, alleging acceleration of the balance. In 2011, it voluntarily dismissed the complaint. Kaan then filed suit to quiet title in 2013, alleging that any subsequent suit for recovery under the note and mortgage through its maturity in 2046 would be barred by the statute of limitations. Relying on Singleton, the court dismissed the quiet title action:

While any claims relating to individual payment defaults that are now more than five years old may be subject to the statute of limitations, each payment default that is less than five years old, i.e., since October, 2008, created a basis for a subsequent foreclosure and/or acceleration action.... Accordingly, the note and mortgage remain a valid and enforceable lien against Plaintiffs property, and do not, as a matter of law, constitute a cloud on Plaintiffs property supporting a quiet title claim.

Id. at 1274 (citations omitted).

Recently, in U.S. Bank National Ass’n v. Bartram, 140 So.3d 1007, 39 Fla. L. Weekly D871 (Fla. 5th DCA Apr. 25, 2014), the Fifth District applied Singleton to conclude that enforcement of a mortgage and note was not barred 'by the statute of limitations even where the prior foreclosure suit was involuntarily dismissed pursuant to Florida Rule of Civil Procedure 1.420. In the present case, as in Kaan, Citibank filed its notice of voluntary dismissal. A voluntary dismissal is not an adjudication on the merits and therefore will not support a claim of res judicata. See Froman v. Kirland, 753 So.2d 114, 116 (Fla. 4th DCA 1999). Therefore, the claims of acceleration and subsequent acts of default have never been adjudicated on their merits in this case, and any acts of default still within the statute of limitations may be raised in a subsequent suit. The trial court did not err in dismissing Evergrene’s complaint.

Affirmed.

DAMOORGIAN, C.J., and MAY, J., concur.


text:
    John THOMLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2484.
    District Court of Appeal of Florida, First District.
    June 25, 2014.
    Rehearing Denied Aug. 12, 2014.
    John Thomley, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, CLARK, and OSTERHAUS, JJ., concur.


text:
    BAC HOME LOANS SERVICING LP f/k/a Countrywide Home Loans Servicing LP, Appellant, v. Josefina RIDGWAY and Arthur Ridgway, Appellee.
    No. 1D13-3853.
    District Court of Appeal of Florida, First District.
    June 25, 2014.
    Rehearing Denied Aug. 11, 2014.

      John H. Adams and Cecily M. Welsh of Emmanuel, Sheppard, and Condon, Pensacola, for Appellant.
    Wendy S. Loquasto of Fox & Loquasto, P.A., and Brian M. Norback of Legal Services of N. Florida, Inc., Fort Walton Beach, for Appellee Josefina Ridgway.
   PER CURIAM.

We affirm without discussion that portion of the final judgment declaring the mortgage to be void and unenforceable. We dismiss appellant’s appeal as to that portion of the judgment awarding attorney’s fees because the trial court reserved jurisdiction to determine the amount of such fees, rendering the award nonfinal and nonappealable. See Carlin v. Carlin, 895 So.2d 532 (Fla. 1st DCA 2005); Scullin v. City of Pensacola, 667 So.2d 215 (Fla. 1st DCA 1995).

AFFIRMED in part, and DISMISSED in part.

ROWE, MARSTILLER, and SWANSON, JJ., concur.


text:
    Willie Raymond PETTY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1013.
    District Court of Appeal of Florida, First District.
    July 1, 2014.
    Rehearing Denied Aug. 12, 2014.
    Willie Raymond Petty, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is dismissed as untimely filed. See Fla. R. App. P. 9.100(c)(1).

THOMAS, ROBERTS, and MAKAR, JJ., concur.


text:
    Merlin WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1433.
    District Court of Appeal of Florida, First District.
    July 1, 2014.
    Rehearing Denied Aug. 18, 2014.
    Merlin Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Merlin Williams seeks a writ of mandamus compelling the circuit court to rule upon a motion for post-conviction relief filed therein on or about December 7, 2012. We conclude based on the circuit court’s recent issuance of an order to show cause, the circuit court is taking adequate steps to dispose of that motion, and the granting of mandamus relief is unwarranted at this point. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002). Accordingly, the petition for writ of mandamus is denied. Nevertheless, as we did in Munn, we encourage the circuit court to expeditiously rule on the motion pending before it.

THOMAS, ROBERTS, and MAEAR, JJ., concur.


author: CIKLIN, J.

text:
    Sheila DIWAKAR, Appellant, v. MONTECITO PALM BEACH CONDOMINIUM ASSOCIATION, INC., Unknown Tenant # 1, Unknown Tenant #2, and Mortgage Electronic Registration Systems, Inc., as Nominee for Metrocities Mortgage, LLC, Appellees.
    No. 4D13-915.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2014.
    Rehearing Denied Aug. 19, 2014.

      Richard W. Glenn of the Law Office of Richard W. Glenn, Palm Beach Gardens, for appellant.
    Josef M. Fiala of St. John Rossin Podes-ta Burr & Lemme, PLLC, West Palm Beach, for appellee Montecito Palm Beach Condominium Association, Inc.
   CIKLIN, J.

Sheila Diwakar appeals the final judgment of foreclosure and an award of attorneys’ fees and costs entered in favor of Montecito Palm Beach Condominium Association, Inc. (“the Association”). She raises six issues on appeal, two of which have merit and which we therefore discuss. First, Diwakar contends the trial court erred in awarding attorneys’ fees in the absence of competent, substantial evidence supporting the award. We agree and reverse the award of fees. Because of the unique circumstances surrounding the issue of fees, we also remand for additional evidence to be taken on attorneys’ fees. Second, Diwakar argues the court erred by entering a judgment for delinquent monthly maintenance assessments in an amount the evidence does not appear to support. With this we also agree, and we reverse and remand for the trial court to modify the judgment or explain how the evidence supports the amount reflected in the final judgment.

In December 2008, the Association filed its complaint, seeking to foreclose its claim of lien for unpaid regular and special assessments. In addition to foreclosure, the Association sought pre-judgment interest and the fees and costs it incurred in enforcing its power to levy assessments.

During trial, the Association presented the testimony of only one witness with respect to attorneys’ fees and costs. The witness, Danielle Schultz, was a paralegal for the law firm representing the Association. Schultz testified regarding the amount due as reflected on a September 2008 claim of lien letter sent to Diwakar by the law firm. According to Schultz, the portion of the amount due representing attorneys’ fees was based on “preparing the claim of lien and the claim of lien letter, which was $836.” Schultz testified that she prepared Diwakar’s account history, which was admitted into evidence. The account history reflected that attorneys’ fees owed on the Diwakar account totaled $45,694.50. The account history provided dates of billings and amounts but included no substantive information as to how the fees were incurred. The total amount of attorneys’ fees reflected in the account history matched the amount provided in an affidavit filed by one of the Association’s attorneys prior to trial. The affidavit, however, was not admitted into evidence during trial and there was no mention or discussion of the affidavit during Schultz’s testimony. Schultz testified that as of the date the account history was prepared, October 5, 2012, $40,094 in attorneys’ fees were charged on Diwakar’s account. Two account ledgers were admitted into evidence. These showed a history of financial transactions related to Diwakar’s account, and it appears they were prepared by the Association. One of the ledgers reflected that Diwakar was billed $141.64 in July 2008 for attorneys’ fees, but no other information was provided about the fees.

In January 2018, the court found in favor of the Association and directed the Association’s attorney to prepare a proposed final judgment. The court stated, “The foreclosure judgment that was submitted by [the Association] needs to be revised with updated numbers, they are all the way back to October.” The written final judgment provided that Diwakar owed $20,976.12 in “Delinquent Monthly Maintenance Assessments through January 31, 2013.” That amount did not include late fees and interest which were provided for separately in the final judgment.

We first address Diwakar’s argument that the award of attorneys’ fees was not supported by competent, substantial evidence. The standard of review of an award of attorneys’ fees is abuse of discretion. Glantz & Glantz, P.A. v. Chinchilla, 17 So.3d 711, 713 (Fla. 4th DCA 2009) (citations omitted). “We will uphold a trial court’s award of attorneys’ fees so long as it is supported by substantial, competent evidence.” Effective Teleservices, Inc. v. Smith, 132 So.3d 335, 341 (Fla. 4th DCA 2014) (citation omitted).

An award of attorney’s fees must be supported by substantial competent evidence and contain express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved. Additionally, the award must be supported by expert evidence, including the testimony of the attorney who performed the services.

Tutor Time Merger Corp. v. MeCabe, 763 So.2d 505, 506 (Fla. 4th DCA 2000) (citations omitted). “Competent evidence includes invoices, records and other information detailing the services provided as well as the testimony from the attorney in support of the fee.” Brewer v. Solovsky, 945 So.2d 610, 611 (Fla. 4th DCA 2006) (citations omitted).

To the extent Diwakar argues on appeal that the attorneys’ fee award was erroneous in the absence of testimony from a fees expert plus the attorney who performed the work, the argument was waived when Diwakar failed to object at trial. See DM Records, Inc. v. Turnpike Commercial Plaza, Phase II, Condo. Ass’n, 894 So.2d 1030, 1031 (Fla. 4th DCA 2005) (finding the requirement that counsel performing the work testify was waived where attorney’s affidavit was admitted, an expert testified based on it, and there was no objection); Simhoni v. Chambliss, 843 So.2d 1036, 1037 (Fla. 4th DCA 2003) (noting that “appellant did not object to appellee’s failure to call an expert at the fees hearing, thereby failing to preserve that issue for appellate review”). However, Diwakar’s argument that there was simply no competent, substantial evidence to support the award may be raised for the first time on appeal. See Fla. R. Civ. P. 1.530(e) (“When an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.”).

“Generally, when the record on appeal is devoid of competent substantial evidence to support the attorney’s fee award, the appellate court will reverse the award without remand for additional evidentiary findings.” Tutor Time Merger Corp., 763 So.2d at 506 (citations omitted). “However, when the record contains some competent substantial evidence supporting the fee or cost order, yet fails to include some essential evidentiary support such as testimony from the attorney performing the services, or testimony from additional expert witnesses, the appellate court will reverse and remand the order for additional findings or an additional hearing, if necessary.” Rodriguez v. Campbell, 720 So.2d 266, 268 (Fla. 4th DCA 1998) (citations omitted).

Here, the Association did not present any evidence of the reasonableness of the fees, even though it listed an expert on that issue in its pre-trial witness list. While there was meager evidence as to a fraction of the work performed, the account history Schultz relied upon did not provide any detail regarding the identity of the timekeeper, the hours worked, or the work performed.

On appeal, the Association relies on “updated” affidavits filed after the trial concluded and the court had announced its ruling. However, no affidavits were introduced at trial. With regard to the affidavits filed in the case during the course of litigation, there was no mention of these affidavits by Schultz. See State v. Caldwell, 388 So.2d 640, 641 (Fla. 1st DCA 1980) (finding court did not err in considering affidavit not in evidence where the parties treated it as though it was entered into evidence and the testimony regarding attorneys’ fees was based on the affidavit).

Because the evidence was insufficient, we reverse the award of attorneys’ fees and costs. However, we also remand for the trial court to take additional evidence. The record reflects that prior to trial, the Association filed the affidavits of the fees expert and an attorney who represented the Association. The affidavit of the attorney included detailed entries regarding hours worked and the work performed, and the multiple timekeepers are identified by numbers. For some unknown reason, the Association did not introduce the affidavits or the testimony of the expert and the timekeeping attorneys at trial. However, the amount of attorneys’ fees testified to by Schultz matched the amount in the attorney’s affidavit. Also unclear is why Diwakar did not object to Schultz’s testimony in light of the Association’s failure to introduce into evidence the affidavits and the affiants’ testimony. All of these circumstances leave us to wonder whether there was some understanding, not memorialized on the record, that the filed affidavits could be relied on by the court. Based on the record before us, we remand for the court to take additional evidence on attorneys’ fees and costs.

Diwakar also argues on appeal that the amount awarded for delinquent assessments is not supported by the evidence. Specifically, she takes issue with the portion of the judgment awarding $20,976.12 for delinquent monthly maintenance assessments. According to Diwakar, the amount she owed for the regular monthly assessments, accruing from July 2010 through January 2013, was $13,602.20. We review the trial court’s factual findings for competent substantial evidence. Siewert v. Casey, 80 So.3d 1114, 1116 (Fla. 4th DCA 2012) (citation omitted).

We have reviewed the record and cannot find justification for the $20,976.12 awarded for delinquent monthly maintenance assessments. The account history, coupled with the testimony of the Association’s manager, established that Diwakar was current on her monthly maintenance assessments through June 2010. While Schultz testified that as of October 5, 2012, Diwakar owed $19,755.11 for delinquent monthly maintenance assessments, the actual account history showed that for the assessments billed from July 2010 to October 2012, Diwakar owed $12,389. Even if Diwakar owed additional assessments between October 5, 2012 and the date the judgment was entered in January 2013, the amount could not have increased to more than $14,000. It does not appear that the record supports the larger figure.

We reverse and remand for the trial court to modify the judgment amount or explain how the evidence supports the amount reflected in the judgment.

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

MAY and LEVINE, JJ., concur.


text:
    Jewel GRIER, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-0947.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2014.
    Rehearing Denied Aug. 27, 2014.
    Jewel B. Grier, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Harris, 129 So.3d 1166,1168 (Fla. 3d DCA 2014).

STEVENSON, GROSS and CONNER, JJ., concur.


author: LOGUE, J.

text:
    Yuri BERY, as personal representative of the estate of Juliana Bery, et al., Appellants, v. Ghassan FAHEL, D.O., Appellee.
    No. 3D13-2291.
    District Court of Appeal of Florida, Third District.
    July 2, 2014.
    Rehearing Denied July 25, 2014.

      Austin & Laurato, P.A., and Laura Datz and Michael V. Laurato (Tampa), for appellants.
    Fann & Petruccelli, P.A., and Michael A. Petruccelli, and Steven A. Osher (Fort Lauderdale); Hicks, Porter, Ebenfeld & Stein, P.A., and Dinah Stein and Erik P. Bartenhagen, for appellee.
    Before WELLS, LOGUE, and SCALES, JJ.
   LOGUE, J.

Yury Bery, as personal representative of the estate of Juliana Bery, and others (collectively, “the estate”) appeal a final order of dismissal for failure to comply with medical malpractice presuit requirements. As part of its presuit investigation, the estate submitted an affidavit of Mark Khilnani, M.D., to serve as the required medical expert opinion corroborating its claims against Ghassan Fahel, D.O. See § 766.203, Fla. Stat. (2008). This court reversed the trial court’s initial order of dismissal for failure to comply with presuit requirements and remanded for an evidentiary hearing to determine “whether Dr. Khilnani qualifies to act as an expert witness against Dr. Fahel, in light of Dr. Khilnani’s qualifications and his attempt to withdraw his affidavit....” Bery v. Fahel, 88 So.3d 236, 238 (Fla. 3d DCA 2011). Upon remand, the trial court held an evidentiary hearing and then entered a final order of dismissal on the basis that Dr. Khilnani is unqualified to act as an expert witness against Dr. Fahel. We affirm because competent, substantial evidence supports the trial court’s conclusion.

Affirmed.


text:
    Derrick McPHEE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-1025.
    District Court of Appeal of Florida, Third District.
    July 2, 2014.
    Joseph W. Gibson, Jr., for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, SUAREZ, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Stewart v. State, 491 So.2d 271 (Fla.1986); Gore v. State, 32 So.3d 614 (Fla.2010); Gallant v. State, 898 So.2d 1156,1157 (Fla. 2d DCA 2005).


text:
    Andrae HICKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3102.
    District Court of Appeal of Florida, First District.
    July 3, 2014.
    Rehearing Denied Aug. 18, 2014.

      Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Williams v. State, 143 So.3d 423, 2014 WL 2874296 (Fla. 1st DCA June 25, 2014).

THOMAS, ROWE, and MAKAR, JJ., concur.


text:
    Jerry Lee NICHOLS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2785.
    District Court of Appeal of Florida, First District.
    July 3, 2014.
    Rehearing Denied Aug. 12, 2014.
    Jerry Lee Nichols, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

LEWIS, C.J., WOLF and WETHERELL, JJ., concur.


author: MAKAR, J.

text:
    COLUMBIA BANK, Appellant, v. Heather Johnson TURBEVILLE, and St. Paul Mercury Insurance Company, Appellee.
    No. 1D13-2750.
    District Court of Appeal of Florida, First District.
    July 7, 2014.
    Rehearing Denied Aug. 14, 2014.

      Rutledge R. Liles and Robert B. George of Liles, Gavin & George, P.A., Jacksonville, for Appellant.
    Whitney K McGuire and Michael E. Demont of Smith, Hulsey & Busey, Jacksonville, and Kevin M. Mekler of Mills Paskert Divers, P.A., Tampa, for Appellee.
   MAKAR, J.

Columbia Bank sued a former employee, Heather Johnson Turbeville, to recover funds she withdrew from an account owned by her grandmother. Because the trial court’s dismissal of the Bank’s claims against Ms. Turbeville was error, we reverse.

I.

We present the facts as alleged in the Bank’s complaint. In August 2005, Ms. Jewel H. Pueschel and her son, James, opened five accounts totaling $1,220,432.30 with Columbia Bank. To help her grandmother and father manage these accounts, Ms. Turbeville, a branch manager, offered her assistance and was thereafter added as a joint account holder for this purpose. The funds were solely those deposited by Ms. Pueschel and her son; Ms. Turbeville never deposited any money of her own into the accounts.

When her son died about a year and a half later, Ms. Pueschel transferred the funds into five new accounts with the Bank, each listing her as a joint account holder with her granddaughter. A short time later, Ms. Pueschel executed a Durable Power of Attorney granting Ms. Turbeville certain rights, including the right to manage Ms. Pueschel’s bank accounts. Ms. Pueschel also opened a sixth account into which she deposited $50,000; Ms. Turbeville was listed on this new account as well.

At some point, Ms. Pueschel, suspecting that her granddaughter had ulterior motives, decided to either transfer the funds or remove Ms. Turbeville from the accounts. Ms. Pueschel went to the bank and requested that her funds — then totaling $1,320,286.50 — be transferred to six new accounts in her name only. A bank employee told Ms. Pueschel that it would “not be a problem to transfer the funds into new accounts.” But another bank employee, Tammy Clarke, intervened and said Ms. Pueschel could not close the accounts or transfer the funds into new accounts bearing only her name; she was also told that she had to present the account certificates, which she did not have with her at that time, and had to comply with other conditions before withdrawing the funds. Ms. Pueschel became upset, so Ms. Clarke said that the Bank would “freeze the accounts so that no money could be removed from said accounts until such time as the issue concerning [Ms. TurbevilleJ’s status as a joint account holder was resolved.”

Ms. Clarke then called Ms. Turbeville to inform her of Ms. Pueschel’s intentions to transfer the funds; she knew Ms. Turbe-ville from working at the Bank and also knew of the relationship between her and her grandmother. That day or the next, Ms. Turbeville went to her branch office and instructed a teller to withdraw $671,696.57 from the accounts and draft a cashier’s check payable to her name only. Ms. Turbeville then deposited the funds into her own personal account, a transaction that prompted Ms. Pueschel to revoke the Durable Power of Attorney and seek recovery of the funds.

To get her monies back, Ms. Pueschel sued the Bank alleging that it wrongfully allowed Ms. Turbeville to withdraw the funds. That case settled, the Bank paying $1.1 million to Ms. Pueschel to resolve all of her claims and receiving an assignment of Ms. Pueschel’s claims against Ms. Turbeville. The Bank then sued Ms. Turbeville and its insurer, St. Paul Mercury Insurance Company. It amended its complaint twice, seeking a declaration of rights and asserting a breach of contract against its insurer and suing Ms. Turbe-ville on three theories: equitable subrogation, conversion, and breach of fiduciary duty. Ms. Turbeville moved to dismiss the three claims against her with prejudice. After a hearing on the motion, the trial court dismissed the Bank’s claims against Ms. Turbeville with prejudice and this appeal ensued.

II.

On appeal, the Bank argues that dismissal with prejudice was erroneous because it adequately and properly alleged the required elements for each of its three claims, which we address in turn.

A. The Equitable Subrogation Claim

Two types of subrogation exist in Florida: conventional and equitable. Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 646 (Fla.1999). Conventional subrogation, which arises from a contract between parties, is inapplicable here because no contract in subrogation exists between the Bank and Ms. Turbeville. Equitable subrogation, which the Bank asserts against Ms. Turbeville, is an equitable remedy rooted in the legal consequence of the actions and relationship between the parties. Id.; see also Aurora Loan Servs. LLC v. Senchuk, 36 So.3d 716, 718 (Fla. 1st DCA 2010). The “policy behind the doctrine is to prevent unjust enrichment by assuring that the person who in equity and good conscience is responsible for the debt is ultimately answerable for its discharge.” Kala Inv., Inc. v. Sklar, 538 So.2d 909, 917 (Fla. 3d DCA 1989). The doctrine places “one party into the shoes of another so that the substituting party retains the rights, remedies, or securities that would otherwise belong to the original party.” Aurora Loan Servs., 36 So.3d at 722.

Use of this equitable remedy is appropriate when the subrogee (here, the Bank):

(1) made the payment to protect its own interest,
(2) did not act as a volunteer,
(3) was not primarily liable for the debt,
(4) paid off the entire debt, and
(5) works no injustice to the rights of a third party by its equitable subrogation claim.

Dade Cnty. Sch. Bd., 731 So.2d at 646. Tracking these elements, the Bank’s second amended complaint alleges that it made the payment to Ms. Pueschel to protect its interests and to “discharge[] the debt owed to and compensated” for the “wrongful actions taken by Ms. Turbe-ville.” The Bank further alleged it “did not act as a volunteer in making such payment to Ms. Pueschel” and that it “was not primarily responsible” for the entire amount paid; instead, “Ms. Turbeville was primarily responsible because she wrongfully removed the funds from Ms. Pues-chel’s accounts.” Finally, it alleged that subrogation “will not work any injustice to the rights of any party.”

To supplement these allegations, which could be characterized as conclusory, the Bank initially pled facts underlying its settlement with Ms. Pueschel, whose complaint against the Bank was an attachment. The Bank did not attach her complaint to the second amended complaint at issue, but recited the factual allegations supporting the elements of its equitable subrogation claim including the Bank’s reasons for entering a settlement agreement with Ms. Pueschel, which resolved all of her claims and the entire amount sought.

Ms. Turbeville asserts that the voluntariness element has not been adequately asserted, but the Bank essentially claims it settled “[i]n the face of the lawsuit in which it was named as a defendant ... to protect its own interests.” West American Ins. Co. v. Yellow Cab Co. of Orlando, Inc., 495 So.2d 204, 207 (Fla. 5th DCA 1986). Such an allegation is enough to plead the involuntariness element. Ms. Turbeville also claims the Bank is primarily liable, the Bank countering that it was her conduct outside the scope of employment that primarily caused liability to Ms. Pueschel. This factual dispute, rather than a basis for dismissal of the equitable subrogation claim, falls into the category for decision by a jury. See Dade Cnty. Sch. Bd., 731 So.2d at 646; see also West American, 495 So.2d at 205. The same is true of Ms. Turbeville’s claim the Bank did not obtain a proper release from claims from Ms. Pueschel. Finally, Ms. Turbe-ville asserts that the Bank had no interest to protect because it was immune from liability pursuant to section 655.78, Florida Statutes, which shields banks from liability for dispersing funds to joint account holders. While the intent of this statute “is to protect a financial institution from liability for distributing funds from a multiple-party account to any of the individual account holders[,]” it “does not in any manner shape the relationship between the account holders themselves.” Sandler v. Jaffe, 918 So.2d 1205, 1207 (Fla. 4th DCA 2005) (noting that although a daughter, who was on a joint account with her mother, “was authorized to withdraw the funds, she was not authorized to use the funds for her personal benefit.”). Under the factual circumstances pleaded, the statute does not facially bar an equitable subrogation claim. Because the Bank has pleaded the elements of equitable subrogation, and supported its claim with factual allegations, it was error to dismiss this claim with prejudice.

B. The Conversion Claim

The Bank’s conversion claim focuses on the ownership of the funds at issue, and that Ms. Turbeville’s withdrawal was inconsistent with her authority as given by her grandmother. Its complaint alleges “Ms. Turbeville intentionally engaged in unauthorized conduct when she (a) withdrew funds from the accounts at issue” depriving Ms. Pueschel of her “immediate right to possess the funds” and (b) failed to return the funds upon demand. The Bank’s damages would be those recoverable by Ms. Pueschel as assigned to the Bank.

The Bank’s conversion claim is legally sufficient under the facts pleaded. A conversion claim is based on a “positive, overt act or acts of dominion or authority over the money or property inconsistent with and adverse to the rights of the true owner.” S.S. Jacobs Co. v. Weyrick, 164 So.2d 246, 250 (Fla. 1st DCA 1964) (internal quotation marks omitted). At this stage of the pleadings, the Bank was not required to go beyond a “short and plain statement of ultimate facts” under Rule 1.110(b), Florida Rules of Civil Procedure. The Bank’s allegations are sufficient to demonstrate that Ms. Pueschel owned all of the funds, intending that Ms. Turbeville have access to the funds only for Ms. Pueschel’s benefit, such that the withdrawal of the funds at issue was an unauthorized act. Ms. Turbeville argues that insufficient facts were alleged to support that she failed to return the funds after a demand was made for their return. But it was unnecessary for the Bank to make this averment because the:

purpose of proving a demand for property by a plaintiff and a refusal by a defendant to return it in an action for conversion is to show the conversion. The generally accepted rule is that demand and refusal are unnecessary where the act complained of amounts to a conversion regardless of whether a demand is made.

Mayo v. Allen, 973 So.2d 1257, 1259 (Fla. 1st DCA 2008) (quoting Goodrich v. Malowney, 157 So.2d 829, 882 (Fla. 2d DCA 1963)). Given facts alleged establishing conversion had occurred, the Bank was not required to demonstrate demand and refusal. Because the Bank has pleaded the elements of a conversion claim, it was error to dismiss this claim with prejudice.

C. The Breach of Fiduciary Duty Claim

The Bank’s breach of fiduciary relationship claim is straightforward, as stated in its second amended complaint. The Bank claimed that Ms. Turbeville “held a position of trust and confidence with respect to Ms. Pueschel” that included a fiduciary duty to not withdraw or transfer funds wrongfully resulting in damages. Again, the Bank asserts this claim as one arising from the settlement with Ms. Pueschel. These allegations meet the basic elements of a cause of action for breach of fiduciary duty: (1) existence of a fiduciary duty, (2) breach of that duty, and (3) damages flowing from the breach. Cassedy v. Alland Inv. Corp., 128 So.3d 976, 978 (Fla. 1st DCA 2014). As framed by the second amended complaint, both direct and implied fiduciary duties are in play due to Ms. Turbeville’s role as a manager at the Bank as well as her familial position of granddaughter.

Ms. Turbeville argues that the breach of fiduciary duty claim cannot be assigned because the services provided to Ms. Pueschel were “personal sendees,” citing Wachovia Insurance Services v. Toomey, 994 So.2d 980 (Fla.2008). The Florida Supreme Court in Toomey confronted how to determine whether a breach of fiduciary duty claim is assignable: is a fiduciary duty so “intensely” personal that its breach is non-assignable or does the nature of relationship govern assignability? Id. at 987. The Court concluded that “both the duty and the relationship must be examined to determine whether the cause of action is assignable.” Id. At this stage of the pleadings, the Bank has alleged a sufficient relationship between the parties and a fiduciary duty to conclude that Ms. Pueschel’s assignment of her claim to the Bank is legally permissible. The contractual relationship between Ms. Pueschel and Ms. Turbeville — even if between grandmother and granddaughter— was first and foremost that of a bank employee with a fiduciary responsibility to ensure the safekeeping of Ms. Puesehel’s monies.

III.

The Bank sufficiently alleged the required elements and basic facts for each of its claims, making it error to dismiss them with prejudice. We therefore reverse and remand.

REVERSED.

LEWIS, C.J. and WOLF, J., concur.

      . St. Paul is also an appellee, but this appeal only pertains to Ms. Turbeville’s motion to dismiss.


text:
    William NETTING, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5683.
    District Court of Appeal of Florida, First District.
    July 7, 2014.
    Rehearing Denied Aug. 13, 2014.
    William Netting, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals the trial court’s order denying his petition for writ of mandamus, pursuant to which he sought an order instructing the Clerk of the Court for the Fourth Judicial Circuit to provide, at public expense, a copy of the transcripts of his postconviction evidentiary hearing. The State concedes Appellant is entitled to the relief he sought, and we agree.

For appeals from indigent defendants, Florida Rule of Appellate Procedure 9.141(b)(3)(A) requires the clerk of court for the lower tribunal to notify the designated court reporter to prepare a transcript of any evidentiary hearing held in regard to a postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The clerk of court is then responsible for transmitting the record, including the transcript, to the appropriate appellate court. See Fla. R. App. P. 9.141(b)(3)(B)(i). The clerk of court must also serve a copy of the record, including the transcript, on counsel appointed to represent the indigent defendant. See Fla. R. App. P. 9.141(b)(3)(B)(iii).

Here, due to mistake or oversight by the clerk’s office (and appellate counsel), none of this was done with respect to the transcripts at issue. Thus, this court affirmed, without the benefit of these transcripts, the trial court’s order denying Appellant’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. See Netting v. State, 122 So.3d 871 (Fla. 1st DCA 2012). It is clear, however, that Appellant was then, and is now, entitled to a copy of the transcripts from the three-day evidentiary hearing on his post-conviction motion. See Lewis v. State, 142 So.3d 879 (Fla. 1st DCA 2014) (holding that, “in general, an indigent defendant is entitled to his or her own copy of the record in proceedings in which he or she is proceeding pro se, such as in Anders appeals, and, at the conclusion of representation, is entitled to the record in the possession of trial counsel that was prepared at public expense.”) (footnote and citation omitted).

Based on the foregoing, we reverse the trial court’s order denying Appellant’s petition for writ of mandamus for the court to issue an order instructing the clerk of court to provide Appellant with the requested transcripts of the three-day evi-dentiary hearing.

REVERSED and REMANDED with instructions.

THOMAS, ROWE, and MAKAR, JJ„ concur.


text:
    OAK SQUARE JOINT VENTURE, a Florida Joint Venture Partnership, Appellant, v. U.S. BANK NATIONAL ASSOCIATION as Trustee for the Registered Holders of Bank of America, National Association—First Union National Bank, Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2001-3, by C-III Asset Management LLC, a Delaware limited liability company, in its capacity as special servicer pursuant to the certain Pooling and Servicing Agreement dated November 1, 2011, Appellees.
    Nos. 1D13-4232, 1D13-4473.
    District Court of Appeal of Florida, First District.
    July 7, 2014.
    Rehearing Denied Aug. 11, 2014.

      Leonard E. Ireland, Jr. of Clayton-Johnston, P.A., Gainesville, for Appellant.
    Michael P. Woodbury and Margaret Brenan Correoso of Woodbury, Santiago & Correoso, P.A., Miami, for Appellees.
   PER CURIAM.

We have, sua sponte, consolidated these two appeals for dispositional purposes. In these appeals, Oak Square Joint Venture (“Oak Square”) challenges a final judgment of foreclosure and a final order awarding attorneys’ fees and costs. Oak Square raises several issues on appeal, all but one of which we affirm without comment. As to Appellant’s claim that the trial court erred in awarding Appellee, U.S. Bank National Association (“U.S.Bank”), expert witness costs, we agree and order that those costs be stricken from the fees and costs award.

“The prevailing party’s burden, at an evidentiary costs hearing, to recover an expert witness fee is ‘to present testimony concerning the necessity and reasonableness of the fee.’ ” Gray v. Bradbury, 668 So.2d 296, 298 (Fla. 1st DCA 1996) (quoting Powell v. Barnes, 629 So.2d 185, 185 (Fla. 5th DCA 1993)). Importantly, “[t]hat evidence must come from witnesses qualified in the areas concerned.” Powell v. Barnes, 629 So.2d 185, 186 (Fla. 5th DCA 1993). “The individual experts whose charges are at issue obviously would be qualified to provide such evidence; also, another qualified expert in the same field, properly informed from the trial record, could also offer competent proof of reasonableness and necessity sufficient, in and of itself, to establish a prima facie case.” Id.

Moreover, the movant’s burden to present specific evidence of reasonableness and necessity of expert witness costs arises by virtue of the motion going to an evidentiary hearing. See id. at 186 (“Given the necessity for an evidentiary hearing in regard to the contested costs of $114,026.85, the plaintiffs were obligated to support their motion for the taxation of those costs by substantial, competent evidence of the services performed and the reasonable value of those services.”).

Here, at the evidentiary hearing, U.S. Bank only presented testimony from one person: an attorney hired to testify as to the reasonableness of fees. Not only did this witness fail to present testimony regarding expert costs, he would not have been competent to testify as to expert costs in any event because he was not “a qualified expert in the same field.” See id.; see also Gray, 668 So.2d at 298 (“the testimony of the attorney and the claims manager was insufficient to satisfy the requirement for substantial, competent evidence of the [expert witness] services performed and the reasonable value of those services”).

Because U.S. Bank failed to present evidence supporting its request for expert witness costs, the trial court erred in awarding those costs. Accordingly, we direct the trial court to strike the expert witness costs from the fees and costs award. We affirm the final order awarding fees and costs in all other respects, and we affirm the final judgment of foreclosure in its entirety.

AFFIRMED in part; REVERSED in part; and REMANDED with instructions.

ROWE, MARSTILLER, and SWANSON, JJ., concur.


text:
    Anthony GRAHAM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2443.
    District Court of Appeal of Florida, First District.
    July 9, 2014.
    Rehearing Denied Aug. 15, 2014.
    Anthony Graham, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

THOMAS, RAY, and OSTERHAUS, JJ., concur.


author: ROTHENBERG, J.

text:
    Scott PORTMAN, etc., Appellant/Cross-appellee. v. Donald Allen HORWITZ, Appellee/Cross-appellant.
    No. 3D13-143.
    District Court of Appeal of Florida, Third District.
    July 9, 2014.

      Scott Portman, in proper person.
    Greene Smith & Associates, P.A., and Cynthia L. Greene; and Kutner & Associates, P.A., and Maurice Jay Kutner, for appellee/cross-appellant.
    Before WELLS, ROTHENBERG and SCALES, JJ.
   ROTHENBERG, J.

Scott Portman, as Assignee and Residuary Beneficiary of the Estate of Denise Reale f/k/a Denise Horwitz (“the former wife”), appeals the portion of the trial court’s order denying the former wife’s motion for attorney’s fees incurred in unsuccessfully pursuing a modification of her alimony award. Donald Allen Horwitz (“the former husband”) cross-appeals the portion of the trial court’s order denying his motion for attorney’s fees pursuant to section 57.105, Florida Statutes (2013). Because we find that the trial court did not err or abuse its discretion as to either ruling, we affirm the order as it relates to both the former wife’s and the former husband’s motions for attorney’s fees.

Affirmed.


text:
    Lamont TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4179.
    District Court of Appeal of Florida, Fifth District.
    July 11, 2014.
    Lamont Taylor, Indiantown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

This case was remanded from the Florida Supreme Court, which quashed our prior opinion dismissing (for lack of jurisdiction) Lamont Taylor’s appeal from the denial of his rule 3.850 postconviction motion. The trial court denied Taylor’s claims after an evidentiary hearing and Taylor has not raised an issue warranting reversal or discussion.

AFFIRMED.

ORFINGER, LAWSON and WALLIS, JJ., concur.


author: KLINGENSMITH, J.

text:
    Mitchell LANDIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1989.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2014.
    Rehearing Denied Aug. 27, 2014.

      Sidney Z. Fleischman of Fleischman & Fleischman, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   KLINGENSMITH, J.

Appellant, Mitchell Landis (“Defendant”), was charged with trafficking in cocaine. When the case proceeded to a jury trial, the State exercised a peremptory challenge during jury selection on a prospective juror who was African-American. The trial court found the race-neutral reason given by the State to be “genuine” and allowed the strike. Defendant has presented three points on appeal, however, we will address only one — specifically the issue of whether the trial court erred in allowing the State to exercise the peremptory strike under these circumstances. On this point, we find there was error, and reverse.

During voir dire, the trial court had asked members of the jury to state their answers to the jury questionnaire for the court. The prospective juror at issue identified his occupation as a kitchen manager. Although the parties questioned the remainder of the jury panel, neither the State nor defense counsel posed any questions to this prospective juror inquiring about his experience or his ability to be fair and impartial. When the State requested a peremptory strike of this juror, defense counsel objected and requested a race-neutral reason for the strike. The following exchange then took place:

THE COURT: For the record, [the prospective juror] is an African American male.
[THE STATE]: He looks Indian to me. THE COURT: He’s not Caucasian. He’s a member of the protective class whether Indian or Island or African American. He appears to be from the protective class. I will ask you for a race/neutral reason.
[THE STATE]: Judge, he’s a kitchen manager. Although that means nothing to your honor or counsel. I worked in a restaurant a lot. A lot of personal drugs run rampant. I don’t want a person like that on my jury panel.

After the State provided this explanation, the trial court stated, “The reason you offered is genuine and I will allow your strike.” Counsel for Defendant again objected to this particular peremptory strike, arguing that the defense did not find the reason for the strike to be genuine. Counsel also pointed out that this juror never stated that he had any arrests, that he knew anyone who had been arrested, or that he personally used drugs or knew anyone that did. Thereafter, another prospective juror, a white male who informed the court that he managed several family owned restaurants, was accepted as an alternate without objection. Prior to the jury being sworn, defense counsel again renewed his objection on the jury selection issue. The jury as sworn did contain one African-American juror. At the conclusion of the trial, the jury found Defendant guilty, and he was sentenced to twenty years imprisonment, which included a fifteen-year minimum mandatory sentence.

On appeal, Defendant argues that the trial court erred during jury selection by failing to make a suitable finding that the proffered race-neutral reason for the strike was genuine.

In Melbourne v. State, 679 So.2d 759 (Fla.1996), the Florida Supreme Court set forth the procedure that must be followed when peremptory strikes are challenged as discriminatory:

A party objecting to the other side’s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike....
At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3). The court’s focus in step 3 is not on the reasonableness of the explanation but rather its genuineness. Throughout this process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination.

Id. at 764 (internal footnotes omitted). Therefore, the issue presented is whether the record shows that the trial court made a determination that, “given all the circumstances surrounding the strike, the explanation [was] not a pretext.” Melbourne, 679 So.2d at 764.

This court has previously recognized that: “Melbourne ‘does not require the trial court to recite a perfect script or incant specific words in order to properly comply with its analysis under step three,’” but “the trial court must still “weight ] the genuineness of a reason just as it would any other disputed fact.’ ” Victor v. State, 126 So.3d 1171, 1172 (Fla. 4th DCA 2012) (quoting Wimberly v. State, 118 So.3d 816, 821 (Fla. 4th DCA 2012)). See Sutton v. State, 976 So.2d 643, 644 (Fla. 2d DCA 2008) (holding that the trial court applied the correct law during step three because “[w]hen the trial court’s ruling [was] read in its entirety, it [was] apparent that the trial judge understood that he was making the ruling required for step three and that he was actually ruling that the facially race-neutral explanation was not genuine”); Watson v. State, 841 So.2d 659, 661 (Fla. 4th DCA 2003) (rejecting the defendant’s argument that the trial court failed to conduct a genuineness inquiry where the record showed that immediately after striking the potential juror, the court noted there was another African-American on the venire, indicating that the court was considering the makeup of the panel).

In State v. Slappy, 522 So.2d 18 (Fla.1988), receded from on other grounds, Melbourne, 679 So.2d at 765, our supreme court provided a non-exclusive list of five factors, the presence of any of which will tend to show that the proffered reason is a pretext:

(1) alleged group bias not shown to be shared by the juror in question, (2) failure to examine the juror or perfunctory examination, assuming neither the trial court nor opposing counsel had questioned the juror, (3) singling the juror out for special questioning designed to evoke a certain response, (4) the prosecutor’s reason is unrelated to the facts of the case, and (5) a challenge based on reasons equally applicable to juror [sic] who were not challenged.

Id. at 22.

In this case, Defendant essentially argues the presence of three of the Slappy factors. He contends that: (1) the record does not show that the prospective juror shared the drug attitudes that the prosecutor attributed to others in the restaurant industry; (2) the prosecutor failed to sufficiently examine the prospective juror to explore the existence of any such bias; and (5) the prosecutor challenged the prospective juror based on reasons equally applicable to a juror who was not challenged. According to Defendant, the presence of these circumstances require that the State’s explanation be deemed a pretext.

Whether or not an explanation proffered by the proponent of a peremptory strike is race-neutral and genuine is a determination to be made by the trial judge. Melbourne, 679 So.2d at 763. In making this determination, the trial judge is not bound to accept the reasons proffered by the proponent at face value. Slwppy, 522 So.2d at 22. The court must examine “all the circumstances surrounding the strike” to satisfy itself that the strike is not a pretext. Melbourne, 679 So.2d at 764; Jones v. State, 787 So.2d 154, 156 (Fla. 4th DCA 2001).

On this record, it does not appear that the trial court performed a legally sufficient genuineness analysis, stating only that it “found [the State’s reason] to be genuine and not pretextual.” In accepting the State’s argument, the trial court simply noted that, just as some attorneys have an aversion to accepting teachers on juries, it is permissible to use a discretionary strike on a juror solely on the basis of them employment within an industry that allegedly has a high rate of drug use. This alone is insufficient to show that the trial court properly considered the issue of genuineness.

The trial court erred in determining the genuineness of the reason for the strike based solely on this ground. After a trial court determines that the proponent has proffered a race, ethnicity, or gender-neutral reason for the strike and then proceeds to evaluate that reason’s genuineness, the proper procedure requires the trial court to make an inquiry of the opponent of the strike. At that point, the opponent bears the burden of persuasion, to demonstrate why the reason was not genuine. The trial court should also request that the opponent advise how, given all the circumstances, the explanation is a pretext for discrimination. Where “no inquiry is conducted, ‘[d]eference cannot be shown to a conclusion that was never made.’ ” Hall v. Daee, 602 So.2d 512, 516 (Fla.1992) (quoting Reynolds v. State, 576 So.2d 1300,1302 (Fla.1991)).

If the record lacks any indication that the trial court considered the totality of the circumstances relevant to whether a strike was exercised for a discriminatory purpose, the reviewing court, which is confined to the cold record before it, cannot assume that a genuineness inquiry was actually conducted and give deference to the trial court. Hayes v. State, 94 So.3d 452, 462 (Fla.2012); Siegel v. State, 68 So.3d 281, 287 (Fla. 4th DCA 2011) (reversing for new trial where the record was devoid of any indication that the trial court actually engaged in requisite genuineness analysis of the defendant’s reason for peremptory strikes since there was no proof of consideration of any circumstances relevant to this inquiry).

The Florida Supreme Court explained in Murray v. State, 3 So.3d 1108 (Fla.2009), that in evaluating whether or not a proffered race-neutral reason for a peremptory strike is a pretext, the court should focus on the genuineness of the race-neutral explanation as opposed to its reasonableness.

In making a genuineness determination, the court may consider all relevant circumstances surrounding the strike. “Relevant circumstances may include— but are not limited to — the following: the racial make-up of the venire; prior strikes exercised against the same racial group; a strike based on a reason equally applicable to an unchallenged juror; or singling the juror out for special treatment.” [Melbourne, 679 So.2d] at 764 n. 8 (citing State v. Slappy, 522 So.2d 18 (Fla.1988)); see also Booker v. State, 773 So.2d 1079, 1088 (Fla.2000) (“[W]e provided a nonexclusive list of factors a trial court may consider in determining whether the reason given for exercising a peremptory challenge is genuine ....” (citing Melbourne, 679 So.2d at 764 n. 8)).

Murray, 3 So.3d at 1120 (citation omitted).

Florida courts have recognized that a prospective juror’s occupation can, in some circumstances, be the foundation of a genuinely race-neutral reason to exercise a peremptory challenge. See Cobb v. State, 825 So.2d 1080, 1084 (Fla. 4th DCA 2002). It is true that the majority of potential jurors work, and this fact carries a real risk that a strike based on occupation alone could be used pretextually as a “facially” race-neutral reason to strike practically any juror. See Files v. State, 613 So.2d 1301, 1304 (Fla.1992). However, “our supreme court has charged Florida’s trial judges with the primary responsibility for striking the ‘delicate balance between eliminating racial prejudice and the right to exercise peremptory challenges.’ ” Cobb, 825 So.2d at 1086. “[I]f there is a genuine reason why a party would fear that a particular juror’s occupation would influence the juror’s reasoning and cause the juror to view the case unfavorably from the party’s perspective, then the occupation can be the foundation of a facially race-neutral reason to exercise a peremptory challenge.” Hernandez v. State, 686 So.2d 735, 736 (Fla. 2d DCA 1997).

Mere recitation of a juror’s occupation is not always sufficient by itself to provide a facially race-neutral reason. In many cases, courts have invalidated peremptory challenges as pretextual where the challenged juror was not questioned and shown to have the same alleged group bias. See, e.g., Stroder v. State, 622 So.2d 585, 586 (Fla. 1st DCA 1993) (prosecutor failed to question teacher of emotionally handicapped students to explore his perception of her liberality); House v. State, 614 So.2d 647, 648 (Fla. 2d DCA 1993) (prosecutor failed to question mental health field worker to elicit her political or social biases); Gibson v. State, 603 So.2d 711, 712 (Fla. 4th DCA 1992) (prosecutor failed to question black fruit picker to elicit economic animosity toward Haitian fruit pickers); Hicks v. State, 591 So.2d 662, 663 (Fla. 4th DCA 1991) (prosecutor failed to question music teacher to explore his perception of her greater tolerance to the use of controlled substances); Reeves v. State, 632 So.2d 702, 704 (Fla. 1st DCA 1994) (prosecutor failed to question two employees at the Department of Health and Rehabilitative Services about their feelings towards the State Attorney’s office); Gadson v. State, 561 So.2d 1316, 1318-19 (Fla. 4th DCA 1990) (holding that the prosecutor’s explanation for striking black jurors, stating only that they were teachers, was pretextual where the jurors were never asked any details about their teaching experiences and a white juror who had also been a teacher was not challenged).

As this court has previously stated, an attorney’s decision not to explore a potential juror’s drug views can render the explanation for striking him or her suspect under certain circumstances. Cobb, 825 So.2d at 1085. Here, the State did not question the potential juror concerning his occupation, or what effect it might have had on his ability to serve as a juror. No questions were posed about whether his employment in the restaurant business caused him to form a more permissive attitude toward narcotic use. Without this record, this court is unable to sustain the trial court’s finding that the State’s race-neutral explanation was genuine. Cf Cobb, 825 So.2d at 1085 (State had genuine fears that the juror, by virtue of her age and college environment, was more likely to be lenient to a drug defendant and less favorable to the prosecution where juror stated “everybody else is using them,” despite fact that the juror believed that drugs should not be legalized).

Courts in Florida have held that it can be “racially discriminatory to exercise a peremptory challenge against a prospec-five juror in the minority where the proffered reason applies equally to a prospective juror in the majority.” Smith v. State, 799 So.2d 421, 424 (Fla. 5th DCA 2001); see also Hayes v. State, 94 So.3d at 462 (finding that one relevant circumstance a trial court can consider in determining the genuineness of a strike is whether the strike is “based on a reason equally applicable to an unchallenged juror.”). For example, in Nowell v. State, 998 So.2d 597, 601 (Fla.2008), the State sought to strike a Hispanic juror, in part because the juror was young and appeared to be of a similar age to the defendant. Our supreme court held that age could be a legitimate race-neutral reason for a peremptory challenge, but nevertheless found that the trial court erred in accepting the “age-based justification” as genuine, because the State’s proffered reason was also “clearly applicable” to a “similarly aged white male whom the State failed to challenge.” Id. at 605; see also Wallace v. State, 889 So.2d 928, 930 (Fla. 4th DCA 2004) (trial court erred in accepting State’s explanation that African-American juror worked for a law firm, where State never challenged a white lawyer).

Here, the challenged African-American prospective juror was similarly situated to the white male alternate juror who was accepted without challenge, despite that fact that he had also managed several family owned restaurants. See Stroia v. State, 119 So.3d 1274, 1279 (Fla. 4th DCA 2013) (finding that jurors with family members who had been arrested for drug charges were similarly situated); Foster v. State, 732 So.2d 22, 24 (Fla. 4th DCA 1999) (State’s asserted reason of prior arrests of immediate family members for strikes of African-American jurors was not genuine, where challenge “was equally applicable to non-black jurors who were not challenged”); Mayes v. State, 550 So.2d 496, 498 (Fla. 4th DCA 1989) (finding that a nurse and lab technician were similarly situated). As a result, the trial court should have made further inquiry into the challenged strike.

In sum, there is insufficient information contained in the record before us to support the trial court’s finding that the prospective juror’s occupation was a legitimate race-neutral reason for the State’s peremptory challenge. As a result, we are compelled by the cases cited herein to find that the trial court’s determination of the genuineness of the strike lacked sufficient grounds and was clearly erroneous. Melbourne, 679 So.2d at 764-65; Hayes, 94 So.3d at 462; Young v. State, 744 So.2d 1077, 1082 (Fla. 4th DCA 1999). Therefore, we reverse Defendant’s conviction and hereby order a new trial.

Reversed and Remanded for New Trial.

LEVINE and CONNER, JJ„ concur.

      . Defendant's other two points on appeal are rendered moot by our opinion.

      . We recognize, however, that some occupations have such strong associations with relevant issues that extensive questioning may be unnecessary. See James v. State, 768 So.2d 1221, 1223 (Fla. 3d DCA 2000) (finding that the peremptory strike was genuine even though a recent law graduate was not questioned about her legal training); Hernandez, 686 So.2d at 737 (finding that a peremptory strike was genuine, even where air traffic controller was not questioned about his feelings on sobriety in a case involving defendant’s use of alcohol, because the profession demands a high degree of care, precision, and sobriety from its members). Similarly, a defendant would not need to question at length a potential juror who was a police officer to justify a strike of that juror. Id.; see also Morris v. State, 680 So.2d 1096, 1097-98 (Fla. 3d DCA 1996) (reversing denial of peremptory challenge where relative of potential juror’s wife was a police officer); Simmons v. State, 940 So.2d 580, 583 (Fla. 1st DCA 2006) (recognizing that a juror’s spouse being a law enforcement officer was race-neutral on its face); Russell v. State, 879 So.2d 1261, 1263 (Fla. 3d DCA 2004) (stating that a potential juror having a relative in law enforcement "has been repeatedly found to be a valid, race neutral or gender neutral reason for a peremptory strike"); Chambers v. State, 682 So.2d 615, 615 (Fla. 4th DCA 1996) (”[T]he law enforcement background of a juror's spouse is a properly neutral reason for a peremptory challenge .... ”); Czaja v. State, 674 So.2d 176, 177 (Fla. 2d DCA 1996) ("A close relationship between the juror and a law enforcement officer is a race-neutral reason for exercising a peremptory strike.”); Rivera v. State, 670 So.2d 1163, 1166-67 (Fla. 4th DCA 1996) (permissible to strike deputy clerk of court from jury panel); Ortiz v. State, 543 So.2d 377, 379 (Fla. 3d DCA 1989) (permissible to strike secretary in state attorney’s office from jury panel).

      . Likewise, the fact that such a juror asserts upon questioning that she can “sit in judgment and apply the law” is not dispositive on the issue of whether she can be properly challenged as a juror unfavorable to the party's cause. See, e.g., Symonette v. State, 778 So.2d 500, 503 (Fla. 3d DCA 2001) (discussing that when a juror has been challenged for a valid race-neutral reason, the fact that such a juror asserts that he or she can nevertheless be fair and impartial does not mean that the State must be satisfied with the response); Rivera, 670 So.2d at 1166 (reiterating that, as explained in Slappy, the reasons given for exercising a peremptory challenge need not be equivalent to a challenge for cause).


author: STEVENSON, J.

text:
    Harvey M. HILL, Petitioner, v. STATE of Florida, Respondent.
    No. 4D13-3672.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2014.

      Carey Haughwout, Public Defender, and Amy Lora Rabinowitz, Assistant Public Defender, West Palm Beach, and Cherry Grant of Good-Earnest Law, P.A., Lake Worth, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for respondent.
   EN BANC.

STEVENSON, J.

Harvey Hill petitions for a writ of prohibition seeking review of an order denying his motion to dismiss based on self-defense immunity from prosecution. We grant the petition, remand for further proceedings, and sua sponte hear this matter en banc to clarify some overly-broad language in State v. Hill, 95 So.3d 434 (Fla. 4th DCA 2012), the unintended consequences of which led the trial judge to enter the order on review. As this decision will explain, a defendant engaged in an unlawful activity is not necessarily disqualified from seeking self-defense immunity under certain provisions of the “Stand Your Ground” law, Florida Statutes Chapter 766. We recede from any language in State v. Hill suggesting the contrary.

State v. Hill

To better understand the present posture of this case, we must begin with State v. Hill, where the circumstances and procedural history underlying this same prosecution were discussed:

The defendant was charged by information with aggravated battery with a firearm (count I), carrying a concealed firearm (count II), felon in possession of a firearm or ammunition (count III), and retaliation against a witness (count IV). Prior to trial, the defendant filed a motion to dismiss count I, alleging that his use of force that led to the charge was justified under the Stand Your Ground law. During the hearing on the defendant’s motion, the defendant testified that he was involved in an altercation with Anton Peavy and Andre Solomon regarding a woman with whom he had been sexually involved. Peavy and Solomon approached the defendant while he was sitting on his porch and began questioning him. Solomon had a gun and the two men were much larger in size than the defendant. According to the defendant, Peavy “snapped” and both Peavy and Solomon “rushed” him. The defendant could not flee because he was cornered on the porch. The defendant pulled out a gun that he had in his pocket and shot Peavy once in the stomach. The defendant had previously been convicted of two felonies. The trial court reasoned that the defendant’s crime of possession of a firearm by a convicted felon did not preclude him from seeking dismissal under the Stand Your Ground law.

95 So.3d at 434-35.

The defendant’s motion to dismiss relied on section 776.013(3), Florida Statutes (2009), which provides:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

Id. at 435 (emphasis added). The State argued that the defendant, a convicted felon, was not entitled to immunity because he was engaged in unlawful activity by having possession of the firearm. The trial court’s order granting the motion to dismiss rejected this argument and found that the “unlawful activity” exception in this statute applies only to a separately-charged forcible felony and does not include other non-forcible felonies which occur at the same time as the felony that leads to the self-defense claim. The trial court ruled that the defendant had established by a preponderance of the evidence that he was justified in using deadly force under section 776.013. The court concluded that, pursuant to section 776.013(l)(a)-(b), there was a presumption that the defendant’s use of deadly force was reasonable because the shooting occurred on his front porch.

The State appealed from the dismissal of the aggravated battery with a firearm charge, and we reversed. We explained:

This court recently held that “possession of a firearm by a convicted felon qualifies as ‘unlawful activity’ within the meaning of the Stand Your Ground law.” Dorsey v. State, 74 So.3d 521, 527 (Fla. 4th DCA 2011). As such, the defendant’s crime of possession of a firearm by a convicted felon precludes him from seeking immunity under the Stand Your Ground law. Here, the defendant used the very instrumentality that he was not lawfully allowed to possess to injure his alleged assailant.

Id. (emphasis added).

Hill v. State

On remand, the defendant again moved to dismiss, but this time cited section 776.012(1) as the basis for claiming justifiable use of deadly force and seeking immunity. Section 776.012(1) provides that a person attacked is justified in using deadly force to defend themselves and has no duty to retreat if “[h]e or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.” Unlike section 776.013, section 776.012(1) does not mention that the protections of the statute are unavailable to a person engaged in an unlawful activity. Nevertheless, the trial court found that this court’s decision in State v. Hill precluded consideration of the defendant’s motion due to the language in the opinion prohibiting a felon in possession of a firearm from claiming self-defense immunity “under the Stand Your Ground law.” Hill, 95 So.3d at 435. Hill now seeks review of the trial court’s denial of this second motion to dismiss. Because we now clarify that the holding in State v. Hill was indeed applicable only to the section of the Stand Your Ground law which was at issue in that case — section 776.013(3) — we grant the petition.

Analysis

Justifiable use of force is governed by the provisions of Chapter 776, Florida Statutes (2009). Chapter 776 was significantly revamped in 2005 and, since then, has been generally referred to as the “Stand Your Ground” law. Ch. 2005-27, §§ 1-4, at 200-02, Laws of Fla. Section 776.012, Florida Statutes (2009), sets out when the use of force, including deadly force, in defense of person is permissible and provides:

776.012. Use of force in defense of person.

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s. 776.013.

(emphasis added). The 2005 Stand Your Ground amendments, which are at the center of this controversy, added the italicized language above to this section. Ch. 2005-27, Laws of Fla. The addition of the words “and does not have a duty to retreat” to section 776.012 had the effect of abrogating any common law duty to retreat before using deadly force outside the home under the circumstances indicated therein.

The Stand Your Ground amendments also created new section 776.013, Florida Statutes (titled “Home protection; use of deadly force; presumption of fear of death or great bodily harm”). Subsection (1) establishes a presumption that a person has the requisite fear necessary to use deadly force in certain circumstances— such as when an intruder has forcibly entered the person’s home or occupied vehicle. Importantly, this newly-created presumption does not apply to one engaged in unlawful activity or where the dwelling, residence, or vehicle is being used for unlawful activity. § 776.013(2)(c), Fla. Stat. (2009).

Subsection (3) extends the so-called Stand Your Ground protections from the home to any other place that the person attacked has a right to be and, similar to subsection (2)(c), does not apply if the person attacked is engaged in an unlawful activity:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

§ 776.013(3), Fla. Stat. (2009) (emphasis added). The parameters for permissible use of force in this section are very similar to those in section 776.012(1), and both do away with the duty to retreat altogether in similar, if not identical, circumstances.

Section 776.032, perhaps the heart of the Stand Your Ground amendments, provides immunity from criminal prosecution and civil action when the use of force is permissible under section 776.012 (defense of person), section 776.013 (home protection or where person is standing in a place they have the right to be), and section 776.031 (defense of others). In granting the original motion to dismiss, the trial court erroneously concluded that Hill was entitled to the presumption of section 776.018(1) and immunity under section 776.032, despite the fact that he was a felon in possession of an illegal firearm which was used in response to his attack. We maintain our conclusion in State v. Hill that possession of a firearm by a convicted felon constitutes “unlawful activity” which makes Hill ineligible to receive the benefit of self-defense immunity from prosecution derived from section 776.013(3). Accord Little v. State, 111 So.3d 214, 221 (Fla. 2d DCA 2013) (holding that a person engaged in an unlawful activity, such as possession of an illegal firearm by a felon, would not be entitled to claim immunity under section 776.032(1) based on the use of force as permitted in section 776.013(3)).

On the other hand, Hill’s present motion for immunity travels under section 776.012(1) (use of force in defense of person), which contains no language precluding the justifiable use of deadly force where the person claiming self-defense is engaged in an unlawful activity. And, section 776.032(1) expressly extends immunity from prosecution to those who use defensive force as permitted by section 776.012. Because Chapter 776 contains separate provisions addressing the permissible use of force, each must be analyzed individually. In State v. Wonder, 128 So.3d 867, 870 (Fla. 4th DCA 2013), this court has already expressed agreement with the Second District’s extensive legal analysis in Little v. State, concluding that the plain language of 776.032 can be understood as granting immunity to a person who qualifies under either 776.012(1) or 776.013(3) and that the “unlawful activity” exception does not exist under section 776.012(1). Thus, we recede from our statement in Hill that a felon in possession of a firearm cannot claim immunity “under the Stand Your Ground law ” because the statement unintentionally went beyond the statutory provision at hand — section 776.013(3).

The interplay of section 776.012 and section 776.013(3)

Section 776.012 provides that a person is justified in using force, including deadly force, and has no duty to retreat if he or she reasonably believes that such force “is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.” § 776.012(1). Section 776.013(3) provides that a person who is attacked in any place where he or she has the right to be, and is not engaged in an unlawful activity, has no duty to retreat and may stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it “is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.” The two sections appear to overlap to the extent that anyone claiming self-defense under the language of section 776.013(3) could also reasonably claim the defense under the language of section 776.012(1) as there appears to be little difference between a reasonable belief that the defensive force is necessary “to prevent imminent death or great bodily harm” (section 776.012(1) (emphasis added)), and a reasonable belief that the force is necessary to “prevent death or great bodily harm” (section 776.013(3)). Thus, the State argues that we should not read these statutes so as to make the “unlawful activity” limitation contained in section 776.013(3) meaningless and the statutory scheme contradictory. We are not at liberty, however, to rewrite the statute.

There is no clear indication anywhere in the chapter that the right to seek immunity from prosecution under section 776.012 is limited to those not engaged in unlawful activity. Had this been the actual intent, then the legislature could have easily accomplished this by including a simple statement to this effect in section 776.032 or in section 776.012. We agree with Judge Northcutt that any ambiguity created by contradictory language in sections 776.012(1) and 776.013(3) requires that these provisions of the criminal code be strictly construed most favorably to the accused. Little, 111 So.3d at 223 (Northcutt, J., concurring) (citing § 775.021(1), Fla. Stat. (2009)).

We note that section 776.012 was recently amended and section 776.012(2) now reads in part that “[a] person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.” (emphasis added). See Ch. 2014-195, § 3, 2014 Fla. Sess. Law Serv. (West) (to be codified at § 776.012, Fla. Stat.). The effective date of the new amendment is June 20, 2014. Id. We believe that the legislature’s insertion of the above-emphasized language in the statute supports our conclusion in this case. It is a well-established presumption that the legislature intends to change the law when it amends a statute. See Mikos v. Ringling Bros.-Barnum & Bailey Combined Shows, Inc., 497 So.2d 630, 633 (Fla.1986) (“[Tjhere is a strong presumption that, when the legislature amends a statute, it intends to alter the meaning of the statute.”); Capella v. City of Gainesville, 377 So.2d 658, 660 (Fla.1979) (“When the legislature amends a statute by omitting words, we presume it intends the statute to have a different meaning than that accorded it before the amendment.”). We also recognize that, at times, a mere change in the language of a statute “does not necessarily indicate an intent to change the law” because the intent may be to clarify what was doubtful and to erase misapprehension as to existing law. State ex rel. Szabo Food Sens., Inc. of N.C. v. Dickinson, 286 So.2d 529, 531 (Fla.1973). In the instant case, however, the existing statutory language was clear, and there was no doubt and no conflict in the case law as all of the reported cases which directly addressed the issue reached the same conclusion as to the correct interpretation of Florida Statutes section 776.012. See Little; Wonder.

Conclusion

In summary, Hill is not precluded from claiming justifiable use of force under section 776.012(1), or from seeking immunity from prosecution pursuant to section 776.032. The holding in State v. Hill was applicable to the specific provisions of the Stand Your Ground law at issue in that case, namely section 776.013(3). We quash the trial court’s order which denied Hill’s second motion to dismiss and remand for further proceedings consistent with this opinion. On remand, the trial court shall determine whether Hill was justified in using deadly force under section 776.012(1), and, therefore, entitled to immunity from prosecution pursuant to section 776.032.

Petition granted.

DAMOORGIAN, C.J., WARNER, GROSS, TAYLOR, MAY, CIKLIN, GERBER, LEVINE, CONNER, FORST and KLINGENSMITH, JJ., concur.

      . The motion to dismiss that was originally granted cited only section 776.013(3), Florida Statutes (2009), and did not refer to section 776.012(1).

      . The Second District certified conflict with Hill "Mo the extent that the ... decision ... can be read as holding that a defendant who is engaged in an unlawful activity is not enti-tied to immunity under section 776.032(1).” Little, 111 So.3d at 222. This opinion should eliminate any perceived conflict between our courts' positions on this issue.

      . We acknowledge that we adhered to the holding of Hill in Bragdon v. State, 123 So.3d 654 (Fla. 4th DCA 2013) (certifying conflict with Little), petition for review granted, No. SC13-2083, 2014 WL 3360153 (Fla. July 2, 2014). To the extent that the petitioner there may have relied on section 776.012 instead of section 776.013(3), Bragdon may need to be remanded for further proceedings.