author: SWANSON, J. THOMAS, J.,

text:
    BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND and The Florida Department of Environmental Protection, Appellants, v. WALTON COUNTY, Florida, Tammy N. Alford, Slade Lindsey and Janet Frost, Appellees.
    No. 1D13-244.
    District Court of Appeal of Florida, First District.
    Sept. 23, 2013.

      Pamela Jo Bondi, Attorney General, and Jonathan Glogau, Assistant Attorney General, Chief, Complex Litigation, Tallahassee, for Appellants.
    D. Kent Safriet and Darby K. Scott of Hopping Green & Sams, P.A., Tallahassee, for Appellees Tammy N. Alford, Slade Lindsey and Janet Frost.
   SWANSON, J.

Appellants seek review of a non-final order determining that venue of this inverse condemnation lawsuit will remain in the Circuit Court for Leon County. We have jurisdiction. Art. V, § 4(b)(1), Fla. Const, (granting to district courts of appeal jurisdiction to “review interlocutory orders ... to the extent provided by rules adopted by the supreme court”); Fla. R. App. P. 9.130(a)(3)(A) (providing for appeal to the district courts of appeal of non-final orders that “concern venue”). For the reasons stated hereinafter, we deny appellants’ request that we address this interlocutory appeal as a petition for writ of prohibition under Florida Rules of Appellate Procedure 9.100(a) and 9.030(b)(3), and we affirm the trial court’s ruling that appellants waived their argument of improper venue by failing to raise the issue before serving a responsive pleading to appellees’ Third Amended Complaint.

Appellant Board of Trustees of the Internal Improvement Trust Fund (“the Board”), headquartered in Leon County, Florida, is charged with the responsibility of managing all state-owned lands with the authority to sue and be sued. See § 253.02, Fla. Stat. Appellant Florida Department of Environmental Protection (“the Department”), also headquartered in Leon County, is the state agency responsible for the implementation of the “Dennis L. Jones Beach and Shore Preservation Act,” Part I, chapter 161, Florida Statutes (“the Act”). See § 161.031, Fla. Stat. At the time suit was filed, appellees Tammy N. Alford, Slade Lindsey, and Janet Frost owned property in Walton County, Florida, fronting the Gulf of Mexico. In 1995, Hurricane Opal critically eroded a 6.9-mile swath of beaches and dunes along the Gulf of Mexico within the City of Destín (“the City”) and Walton County (“the County”), including appellees’ property. As a result, the Department initiated a process under the Act, which culminated, on July 30, 2003, in the filing of an Application for a Joint Coastal Permit and Authorization to Use Sovereign Submerged Lands. The application proposed the restoration through renourishment of damaged shore line through the dredging of sand from eastern Okaloosa County, Florida, which was then deposited on the affected beaches. Essential to this process was the establishment of the area’s mean high water line and the erosion control line in order to determine the boundary between publicly owned land and the privately owned upland properties.

After the Department filed a notice of intent to issue the permit, two entities, Save Our Beaches, Inc. (a not-for-profit corporation representing real property owners in Okaloosa County), and Stop the Beach Renourishment, Inc. (a not-for-profit corporation representing real property owners in Walton County), along with six individual property owners, including ap-pellees Alford and Lindsey, instituted a formal administrative hearing challenging the resulting draft permit. Stop the Beach Renourishment, Inc., filed a separate petition challenging the Walton County erosion control line established by the Board. The ensuing litigation wound its way up to the United States Supreme Court on the esoteric issue of whether the Florida Supreme Court’s decision — that the Act did not unconstitutionally deprive the property owners’ littoral rights without just compensation — itself effected a taking of the property owners’ littoral rights contrary to the Fifth and Fourteenth Amendments to the United States Constitution. The Supreme Court concluded it did not. See, Walton Cnty. v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla.2008), aff'd sub nom., Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. 702, 130 S.Ct. 2592, 177 L.Ed.2d 184 (2010).

In the meantime, on August 27, 2004, Save Our Beaches, Inc., and Stop the Beach Renourishment, Inc. (“the plaintiffs”), filed a complaint in the Circuit Court for Leon County for declaratory and injunctive relief, naming the Board, the Department, the County, and the City as defendants. In the complaint, the plaintiffs challenged the Act “because it confiscates constitutionally protected littoral property rights without providing due process of law or just and full compensation.” Specifically, plaintiffs sought a declaration that sections 161.141 and 161.191, Florida Statutes (2004), are unconstitutional, and requested the trial court to enjoin the establishment of the erosion control line pri- or to eminent domain proceedings being instituted by the defendants to acquire “the protected littoral rights” of the plaintiffs.

On February 3, 2005, the initial plaintiffs filed an amended complaint, adding as co-plaintiffs, Flamingo Investment Properties, LLC, Patrick Ross, and Dennis Jones, along with appellees Alford and Lindsey. On March 7, 2005, in accordance with the trial court’s order, the plaintiffs filed their Second Amended Complaint, alleging that sections 161.141, 161.191, and 161.161, Florida Statutes (2004), are unconstitutional, both facially and as applied. At the request of the Board, the Department, and the County, and over the objection of the plaintiffs, on June 21, 2007, the case was abated pending resolution of the above-referenced administrative litigation. During the three-year period of abatement, the Department and the County recorded the erosion control line.

On December 16, 2010, the plaintiffs filed their Motion for Leave to Amend Complaint and Motion to Add and Drop Parties (adding appellee Frost as a party, and dropping Save Our Beaches, Inc., Stop the Beach Renourishment, Inc., Flamingo Investment Properties, LLC, Patrick Ross, and Dennis Jones as parties). The amendment was necessitated by events that had occurred during the period of abatement, including the recordation of the erosion control line and the filing of the Supreme Court’s opinion resolving the constitutional issues spawned by the administrative challenge to the permit. As a consequence, appellees’ Third Amended Complaint deleted the prior claims demanding that appellants institute eminent domain proceedings, and, instead, added a claim for inverse condemnation, alleging that “[b]y approving the Walton ECL [erosion control line], which was recorded and is located landward of the pre-Opal MHWL [mean high water line], the Board permanently took the real property located between the Walton ECL and pre-Opal MHWL of [plaintiffs] for public use.” The complaint went on to allege that “[n]oneof the plaintiffs ha[s] been paid just compensation for the property taken by the Board.”

On December 28, 2012, the trial court entered its Order Lifting Abatement, Granting Plaintiffs’ Motion for Leave to Amend Complaint and Motion to Add and Drop Parties, and Denying Defendants^] Motion for Summary Judgment as Moot. The trial court determined that the claims in the Third Amended Complaint relate back to the Second Amended Complaint pursuant to Florida Rule of Civil Procedure 1.190(c), and that no new cause of action was being alleged:

The asserted conduct relevant to the prospective takings in the Second Amended Complaint and the retrospective takings claims in the Third Amended Complaint arises out of the “same general factual situation.” Specifically, the County sought a permit to undertake a beach restoration project, [the Department] issued a permit and approved the ECL that was surveyed and recorded by the County, the Board took title to land seaward of the ECL, and the conveyance of title to the Board was a taking of Plaintiffs’ property in violation of the Florida and federal constitutions. Plaintiffs are not asserting a new cause of action — the Second Amended Complaint alleges a cause of action for a taking caused by the beach restoration project as does the Third Amended Complaint. The difference between the claims is that the Second Amended Complaint seeks prospective and in-junctive relief to prevent the taking from occurring and the Third Amended Complaint seeks relief for the taking that did occur (due to the passage, of time). Thus, the Plaintiffs’ “cause of action” has not changed; it was and still is a “taking” that arises out of the “same general factual situation” (i.e., the beach restoration project). Such claims necessarily relate back to the Second Amended Complaint. Ron’s Quality Towing, Inc. [v. Se. Bank of Fla.], 765 So.2d [134,] 135 [ (Fla. 1st DCA 2000) ]; Armiger [v. Associated Outdoor Clubs, Inc.], 48 So.3d [864,] [ ] 870-72 (Fla. 2d DCA 2010).
In sum, the amended claims asserted in the Third Amended Complaint allege specific facts — which have now occurred — that the claims in the Second Amended Complaint generally alleged would occur. Ron’s Quality Towing, Inc., 765 So.2d at 136 (An “amendment which merely makes more specific what has already been alleged generally, or which changes the legal theory of the action, will relate back even though the statute of limitations has run in the interim.” (citation omitted) (internal quotations omitted)). Further, allowing amendment furthers the salutary ends of the relation back doctrine. Armiger, 48 So.3d at 870-72. Accordingly, the Third Amended Complaint relates back to the claims previously asserted by Plaintiffs and amendment is proper under Florida Rule of Civil Procedure 1.190(c).

(Emphasis Added.)(Footnote 3 omitted.)

In footnote 4 of the opinion, the trial court noted that appellants had “raised improper venue as an issue.” It ruled, nonetheless, that appellants waived that issue by failing to raise it before serving their responsive pleading, as required by Florida Rule of Civil Procedure 1.140(b). See generally Three Seas Corp. v. FFE Transp. Svcs., Inc., 913 So.2d 72, 75 (Fla. 3d DCA 2005); MacDonald v. MacDonald, 444 So.2d 531, 532 (Fla. 1st DCA 1984). We affirm the ruling. As was made abundantly clear in the above-quoted portion of the trial court’s order, the Third Amended Complaint does not raise a new claim, as appellants urge. The core cause of action — a taking — has remained unchanged from the inception. See generally Turner v. Trade-Mor, Inc., 252 So.2d 383, 384 (Fla. 4th DCA 1971) (“The test of whether an amendment offered by a party sets forth a ‘new cause of action’ is not whether the cause of action stated in the amended pleading is identical to that stated in the original. Rather, the test is whether the pleading as amended is based upon the same specific conduct, transaction or occurrence between the parties upon which the plaintiff tried to enforce his original claim.”). Accord Ron’s Quality Towing, Inc. v. Se. Bank of Fla., 765 So.2d 134, 135-36 (Fla. 1st DCA 2000). Moreover, venue is proper in the Circuit Court of Leon County as being the location of appellants’ headquarters. See Levy Cnty. v. Diamond, 7 So.3d 564, 566 (Fla. 1st DCA 2009) (“A state agency has a right to be sued in the county where it maintains its headquarters.”).

Appellants ask, in the alternative, that we treat the trial court’s interlocutory order as invoking this Court’s original jurisdiction under Florida Rules of Appellate Procedure 9.100(a) and 9.030(b)(3), to issue a writ of prohibition to quash the interlocutory order as an attempt by the trial court to act outside its subject-matter jurisdiction. Appellants’ argument is premised on their contention that inverse condemnation actions are in rem. In other words, “causes of action the object of which is action on the property or title to real property are in rem and required by the ‘local action rule’ [LAR] to be brought in the county where the land lies.” State, Dep’t of Natural Res. v. Antioch Univ., 533 So.2d 869, 871 (Fla. 1st DCA 1988). That is, “the LAR governs subject-matter jurisdiction, not venue.... It follows that a petition for writ of prohibition, and not a direct appeal, is the proper vehicle for obtaining review....” Antioch, 533 So.2d at 872.

Our colleague, in his dissenting opinion, accepts appellants’ premise that the current cause of action for inverse condemnation is an in rem proceeding in the same manner as was the cause of action in Antioch. In Antioch, the complaint sought to enforce a reverter clause based on deed restrictions and to quiet title to the property in Antioch University, the residual beneficiary of an estate in land. Thus, based on the above-quoted rule, we issued the writ of prohibition, quashed the trial court’s order, and remanded for transfer to the circuit court with territorial jurisdiction over the real property involved. Notwithstanding, we paused to caution: “The simple involvement of real property in an action does not render that action in rem and subject to the LAR.” Id. See also, Seven Hills, Inc. v. Bentley, 848 So.2d 345, 350-51 (Fla. 1st DCA 2003) (citing Antioch, but concluding that “because title was not the underlying major question in this action, and because the necessary result of the Final Judgment did not cause one of the parties to gain or lose an interest in real estate, the local action rule is inapplicable”). Rather, “with ‘respect to jurisdiction over the subject matter, it is the matters set forth in the complaint together with the nature of relief sought which determine subject matter jurisdiction.’” Bentley, 848 So.2d at 357 (Polston, J., concurring) (quoting Clearwater v. Janet Land Corp., 343 So.2d 853, 854 (Fla. 2d DCA 1976)). The complaint in Antioch raised matters clearly antithetical to the object of the current inverse condemnation cause of action, which seeks full monetary compensation for the Board’s alleged taking of appellees’ property, not a change in title. Id.

We acknowledge the general view that “[ijnverse condemnation jurisprudence, like the direct exercise of eminent domain power, is based to a large extent on in rem concepts,” Florida Rock Industries, Inc. v. United States, 18 F.3d 1560 (Fed.Cir.1994), but we cannot accept appellants’ and the dissent’s invitation to turn a generally held concept into a rule of law and agree that the nature of an inverse condemnation claim “demands” that it be treated like an eminent domain proceeding — which, as an action in rem, must be litigated in the county where the land is located. “Inverse condemnation is a cause of action by a property owner to recover the value of property that has been de facto taken by an agency having the power of eminent domain where no formal exercise of that power has been undertaken.” Osceola Cnty. v. Best Diversified, Inc., 936 So.2d 55, 59-60 (Fla. 5th DCA 2006) (emphasis added). Appellants have provided no controlling case law to support their alternative theory, which runs counter to the weight of authority treating this issue as one concerning venue. See, e.g., Pinellas Cnty. v. Baldwin, 80 So.3d 366 (Fla. 2d DCA 2012) (affirming the circuit court’s denial of the county’s motion to dismiss the complaint for improper venue, where the property was located in a different county, and because plaintiffs complaint for inverse condemnation invoked the sword-wielder exception to the county’s home venue privilege); Levy Cnty. v. Diamond, 7 So.3d 564 (Fla. 1st DCA 2009) (holding the Trustees of Internal Improvement Trust Fund and the Department of Environmental Protection could voluntarily waive the home venue privilege and consent to the trial of the property owner’s inverse condemnation action in the county where the property was located rather than the county where the state agencies were headquartered); Fla. Dep’t of Agric. & Consumer Servs. v. City of Pompano Beach, 829 So.2d 928 (Fla. 4th DCA 2002) (holding that venue in an inverse condemnation action seeking compensation from the Department of Agriculture for citrus trees destroyed as part of a citrus canker eradication program was proper in the county where the trees were located); Volusia Cnty. v. Atl. Int’l Inv. Corp., 394 So.2d 477 (Fla. 1st DCA 1981) (holding, in an action for inverse condemnation consolidated with a contract action, the county was entitled to be sued where it maintained its principal headquarters, and the proper remedy was not dismissal but for the trial court to transfer the cause of action to the circuit court for the county). Thus, the question of venue, and not subject-matter jurisdiction, was the correct inquiry in the present case, and the trial court properly ruled that appellants waived their argument of improper venue by failing to raise the issue before serving a responsive pleading. Law and logic does not dictate otherwise.

In sum, we DENY appellants’ request that we treat this interlocutory appeal as a petition for writ of prohibition, and AFFIRM the trial court’s interlocutory order on review.

VAN NORTWICK, J., concur.

THOMAS, J., dissents with opinion.

THOMAS, J.,

dissenting.

I respectfully dissent. Although I understand that there has been extensive and lengthy litigation in this matter, the law requires that this case be resolved in the court which possesses jurisdictional authority over the land in question.

Because the trial court lacked subject-matter jurisdiction to consider an inverse condemnation action against the Board of Trustees, as such an action is in rem and therefore subject to the Local Action Rule, this court should treat this appeal as a petition for writ of prohibition, grant the writ, and thereby divest the Second Judicial Circuit of jurisdiction with direction to transfer the case to the First Judicial Circuit In and For Walton County. See State, Dep’t of Natural Res. v. Antioch Univ., 533 So.2d 869, 872 (Fla. 1st DCA 1988) (“[T]he LAR governs subject-matter jurisdiction, not venue.... It follows that a petition for writ of prohibition, and not a direct appeal, is the proper vehicle for obtaining review....”); § 65.061(2), Fla. Stat. Appellants (“the Board”) are entitled to extraordinary relief as a matter of law. And because subject-matter jurisdiction cannot be waived, the majority opinion is incorrect in holding that the issue here only involves venue, and therefore the Board waived its right to move to transfer the case to Walton County.

Inverse condemnation cases are in rem, and the facts of this case perfectly show why this conclusion is supported by law and logic. Here, the existence of the boundary between the Board and Appel-lees is a fluctuating shoreline very much in dispute. See Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla.2008), aff'd, Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. 702, 130 S.Ct. 2592, 177 L.Ed.2d 184 (2010). Therefore, this action by Appellees must be brought in the circuit court where the land in dispute is located, Walton County, which has the jurisdictional authority regarding the title to the property and related actions regarding the property.

This conclusion is further supported by the well-established rule that eminent domain actions are in rem, and must be litigated in the county in which the land is located. Fla. Power & Light Co. v. Jennings, 518 So.2d 895, 898 (Fla.1987); Wilson v. Jacksonville Expressway Auth., 110 So.2d 707 (Fla. 1st DCA 1959). The Board correctly asserts that, like eminent domain actions, the “nature of an inverse condemnation claim demands that it be similarly treated.” As noted, this assertion is legally and logically correct and especially applicable here, because Appellees’ title claim will be the subject of vigorous litigation. Thus, it is only proper that the circuit court in which the land is located hear the case, as it alone has the subject-matter jurisdiction to adjudicate such property disputes.

A circuit court has no jurisdictional power to adjudicate a case in which the court has no jurisdictional authority regarding the land in controversy. Seven Hills v. Bentley, 848 So.2d 345, 350-51 (Fla. 1st DCA 2003) (citing Antioch Univ., 533 So.2d at 872). As we stated in Antioch, “in determining whether the presence of real property in an action renders that action in rem, one must look at the underlying major question in the case.” 533 So.2d at 872. Here, the ultimate question is very much linked to defining the nature of the legal title to the land at issue. Thus, as we stated:

The question is whether the necessary result of the decree or judgment sought is that one party gains or the other party loses an interest in the real estate, or whether the title is so put in issue by the pleadings that the decision of the case necessarily involves the judicial determination of such rights. If the cause of action has the object of requiring the court to act directly on [the] property, or on the title to the property, it is an in rem action.

Id. (citation omitted).

This inverse condemnation case fits our description of an in rem action, as the lower court will be required to “act directly on the property, or on the title to the property.” This is true, because damages cannot be calculated, should Appellees prevail, without a precise determination of the extent and boundaries of the land allegedly taken by the Board.

In Antioch, this court cited Publix Super Markets, Inc. v. Cheesbro Roofing, Inc., 502 So.2d 484 (Fla. 5th DCA 1987), which held that an action to foreclose a mechanic’s lien on property was the “judicial conversion of an equitable interest against a title to a legal title.” Antioch, 533 So.2d at 873. This court agreed with the Fifth District that such an action was an in rem action, because the action required the court to “compel a change in the title to real property.” Id. at 873. In Antioch, this court held that an action seeking to invoke a reverter clause based on deed restrictions was also an in rem action, as the action sought to declare Antioch the fee simple holder of title.

Thus, an inverse condemnation case is also an in rem action, as it involves an allegation under which the plaintiff claims that the State has so frustrated legal uses of the property that the State must be treated as if it condemned the property. Furthermore, Florida law provides under section 161.141, Florida Statutes, that “[i]f an authorized beach restoration ... project cannot reasonably be accomplished without the taking of private property, the taking must be made by the requesting authority by eminent domain proceedings.” (Emphasis added.) And as noted by the Board here, in an inverse condemnation claim, “an owner asserts that government actions have ousted him from his property as effectively as if it were actually taken in a formal eminent domain action.”

The case law cited by the majority opinion does not support its view. For example, in Levy County v. Diamond, 7 So.3d 564 (Fla. 1st DCA 2009), the plaintiffs asserted an inverse condemnation claim regarding land located in Levy County, but filed their suit in Leon County. The trial court refused to transfer the action to Levy County, and this court reversed, recognizing that the “property that is the subject of the inverse condemnation claim is situated in Levy County, the official documents relating to the property are on file in the clerk’s office in Levy County and nearly all of the potential witnesses live in Levy County or in the immediate vicinity.” 7 So.3d at 566-67. The same logic applies here, as the boundary and extent of the real property in this case are very much in dispute. From this court’s decision in Levy County, it does not appear that an argument regarding subject-matter jurisdiction was made, and while this court addressed the issue in terms of venue, the logic undergirding our decision supports the proposition that an inverse condemnation claim must be heard in the county in which the land is located.

None of the other cases cited by the majority support its view that an inverse condemnation claim is not an in rem action. The Fourth District did not address this issue in Florida Department of Agriculture & Consumer Services v. City of Pompano Beach, 829 So.2d 928 (Fla. 4th DCA 2002), although that decision, again, supports the logical proposition that an inverse condemnation claim must be brought in the county in which the land is located, as even the majority opinion acknowledges. The fact that a court may find that venue considerations demand such a conclusion does not logically lead to the proposition that the claim is not an inherently in rem action, when the court does not address a subject-matter jurisdiction argument. Rather, these decisions simply recognize the obvious: such an action must be brought in the county in which the land is located.

It is axiomatic that parties cannot waive subject-matter jurisdiction or confer such jurisdiction on a court through acquiescence. FCCI Mut. Ins. Co. v. Cayce’s Excavation, Inc. 675 So.2d 1028, 1029 (Fla. 1st DCA 1996) (“It is well settled that subject matter jurisdiction cannot be conferred by estoppel. Indeed, neither consent, acquiescence, nor waiver can confer subject matter jurisdiction of the subject matter, which is not within the power of the court to adjudicate.” (emphasis added; citation omitted)). That is precisely the controlling principle here, as the Second Circuit Court did not have “power to adjudicate” litigation involving complex questions of land ownership and value, when the land is located in another circuit.

Thus, I respectfully dissent. I would hold that the action below is an in rem action and, therefore, treat this appeal as a petition for writ of prohibition and grant the writ, with directions that the case be removed from the Second Judicial Circuit and transferred to Walton County.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William Edward RENO, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3163.
    District Court of Appeal of Florida, First District.
    Sept. 23, 2013.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We reverse Appellant’s conviction for attempted second-degree murder because the evidence presented at trial was legally insufficient to establish the “depraved mind” element of that offense. See § 782.04(2), Fla. Stat. (2011) (defining second-degree murder). Of the two lesser-included offenses on which the jury was instructed, the evidence and the jury’s verdict were sufficient to establish only improper exhibition of a firearm. Under the mandatory language of section 924.34, Florida Statutes (2011), we therefore remand this case for the trial court to enter a judgment of conviction for improper exhibition of a firearm and resentence him accordingly. See State v. Sigler, 967 So.2d 835, 844 (Fla.2007) (recognizing that section 924.34 applies to a permissive lesser-included offense where the jury’s verdict necessarily includes a finding of guilt as to that offense); Festa v. State, 927 So.2d 1049, 1051-52 (Fla. 4th DCA 2006) (holding that the State does not have a second opportunity to prove a lesser-included offense where the evidence of the greater offense was insufficient at a jury trial and the jury was not instructed on the lesser offense).

REVERSED and REMANDED with instructions.

WOLF, ROBERTS, and RAY, JJ„ concur.


text:
    Herbert J.T. WILSON, II, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1812.
    District Court of Appeal of Florida, First District.
    Sept. 23, 2013.
    Herbert J.T. Wilson, II, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Herbert J.T. Wilson, II, appeals an order summarily denying his Motion to Return Property to Defendant. Because the motion was facially sufficient, the trial court was required to either conclusively refute the allegations or hold an evidentia-ry hearing. See Bailey v. State, 93 So.3d 518, 519 (Fla. 1st DCA 2012); Jones v. State, 42 So.3d 874, 875 (Fla. 2d DCA 2010). Accordingly, we reverse the order on appeal and remand for further proceedings.

REVERSED and REMANDED.

LEWIS, C.J., MARSTILLER and OSTERHAUS, JJ, concur.


author: ROTHENBERG, J. SCHWARTZ, Senior Judge

text:
    Jose A. RIVERO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2490.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 2013.

      Jose A. Rivero, in proper person.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

The defendant, Jose Rivero, appeals from the denial of his rule 3.850 motion for postconviction relief, in which he claims that: (1) he was pressured into accepting the State’s plea offer because his lawyer had lost his “case file”; and (2) he had obtained newly discovered evidence that would have resulted in an acquittal had he proceeded to trial. Because the plea transcript unequivocally refutes the defendant’s first claim, and the evidence the defendant relies on is not newly discovered evidence or evidence that would likely produce an acquittal, the defendant’s motion should have been summarily denied. We, therefore, affirm the trial court’s order denying the defendant relief.

The defendant seeks a reversal of the trial court’s order denying his motion for postconviction relief on the basis of a procedural error committed by the trial court when it conducted an unnecessary eviden-tiary hearing, which produced further proof refuting the defendant’s claims. Although it was error to allow the defendant’s trial counsel to testify by telephone over the defendant’s objection at the evi-dentiary hearing, see Fla. R. Jud. Admin. 2.530(d)(1), (permitting testimony by telephone only if all parties consent), because no further proof was necessary and the defendant’s allegations were unequivocally refuted without reliance on the telephoni-cally obtained testimony, the error in this case was clearly harmless.

Specifically, the defendant was charged with burglary with an assault and/or a battery, two counts of battery, and criminal mischief, and he was facing a potential life sentence if convicted of burglary with an assault or battery. The State alleged that, in violation of a domestic violence injunction stay-away order, the defendant drove to the victim’s home, saw her kissing another man, and when the victim would not open the door, the defendant kicked the door in, fought with the man he saw kissing the victim, and slapped the victim. The defendant does not dispute that he kicked the door in and fought with the male occupant. He only disputes that he slapped the victim. The plea offered by the State, and accepted by the defendant was a plea of guilty to the charges, a withhold of adjudication, six months of community control, followed by thirty months of probation, with several special conditions, including a stay-away order from the victims, and completion of a domestic violence program.

The relevant portions of the plea colloquy are as follows:

Court: Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorney’s services?
Defendant: Yes, I am.
Court: Is anyone putting pressure upon you or forcing you to accept this plea today?
Defendant: No.
Court: Are you pleading guilty because you are guilty and for no other reason?
Defendant: Yes.
Court: Do you believe this plea is in your best interest?
Defendant: Yes.
Court: The Court finds a factual basis. I find that you are alert and intelligent, that you understand the nature and consequences of your plea and that you are represented by good and competent counsel which whom you say you are satisfied. I find that you are entering into this plea freely and voluntarily. I accept your plea of guilty.

(emphasis added).

Thus, the defendant’s claim that he was coerced or pressured to accept the State’s very lenient plea offer, which resulted in his immediate release from jail, was unequivocally refuted by the record, and the defendant’s first claim should have been summarily denied. See Cartwright v. State, 112 So.3d 582, 584 (Fla. 4th DCA 2018). In Cartwright, the Fourth District recognized that:

Under Florida law, a defendant’s claim that his plea was the result of coercion by defense counsel may be conclusively refuted by the defendant’s responses during plea colloquy and the signed plea form. Williams v. State, 919 So.2d 645, 646 (Fla. 4th DCA 2006). The record reflects that the court engaged in a thorough plea colloquy with Appellant, in which Appellant represented that he understood the parameters of the plea, that no one had threatened or coerced him into entering a plea, that no one had promised him anything, and that no one had misadvised him or made any misrepresentations to him. Thus the record refutes Appellant’s claim that his plea was coerced.

See also Alfred v. State, 71 So.3d 138, 139 (Fla. 4th DCA 2011) (“A defendant is bound by his sworn answers during a plea colloquy and cannot later disavow those answers by asserting that he lied during the colloquy at counsel’s direction.”); Davis v. State, 938 So.2d 555, 557 (Fla. 1st DCA 2006) (“In the instant case, the appellant clearly states on record that he was satisfied with his attorney’s services. Thus, he cannot now assert that at the time of the plea’s entry he had serious doubts about his attorney’s effectiveness.”); Rackley v. State, 571 So.2d 533, 535 (Fla. 1st DCA 1990) (affirming summary denial of the defendant’s rule 3.850 claim of coercion and noting that on numerous occasions the court had rejected similar claims in other eases alleging ineffective assistance of counsel or coercion where oral or written statements made by the defendant at sentencing were to the contrary, and that Rackley’s written plea contained statements that he had not been coerced into entering his guilty plea and that he was satisfied with the services of his attorney, thus refuting his claim of coercion); Loconte v. State, 382 So.2d 26, 26 (Fla. 1st DCA 1979) (affirming summary denial of Loconte’s motion to set aside his plea, which he claimed was the result of coercion and promises, where there was a direct denial of coercion and promises by Loconte during his plea colloquy).

Because the defendant in the instant case clearly stated under oath during his plea colloquy that he was satisfied with the services of his attorney, he was not being pressured or coerced to accept the State’s offered plea, and he was pleading guilty because he was guilty and for no other reason, he cannot now claim that his plea was the product of coercion. Thus, the defendant’s claim of coercion should have been summarily denied.

Although the trial court erred in allowing the defendant’s trial counsel to testify telephonically at the unnecessary evidentiary hearing over the defendant’s objection, this error was harmless beyond a reasonable doubt where trial counsel’s testimony only provided additional evidence to refute the defendant’s claims. See Golden & Cowan, P.A. v. Estate of Kosofsky, 45 So.3d 986, 987-88 (Fla. 3d DCA 2010) (holding that the trial court’s error in allowing telephonic testimony over the appellant’s objection and in violation of rule 2.530(d)(1) was harmless due to the existence of other independent evidence which would have supported the trial court’s decision); S.A. v. Dep’t of Children & Family Servs., 961 So.2d 1066, 1067 (Fla. 3d DCA 2007) (telephonic testimony permitted over mother’s objection in dependency hearing held to be harmless error because even if the telephonic testimony was excluded, there was other evidence supporting the trial court’s ruling); Qui nones v. Quinones, 870 So.2d 108, 109 (Fla. 2d DCA 2003) (finding no reversible error where the wife in a dissolution of marriage proceeding was permitted, over objection, to testify telephonically).

We additionally reject the defendant’s second claim of “newly discovered evidence.” The “newly discovered evidence,” which the defendant claims entitles him to set aside his plea, is the female victim’s later recantation of her prior sworn testimony that the defendant slapped her after he kicked in the door of her house. This evidence was not only impeachable by the female victim’s prior sworn testimony and statements to the police, it would not have played any meaningful role if the defendant had proceeded to trial. The defendant admitted to kicking in the door, entering the house by force, and getting into a physical fight with the male victim. These acts constitute a burglary with an assault and/or a battery. Thus, the defendant has failed to meet his burden to establish the prejudice prong under Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Accordingly, we affirm the trial court’s order denying the defendant’s motion for posteonviction relief.

Affirmed.

WELLS, J., concurs.

SCHWARTZ, Senior Judge

(dissenting in part).

I disagree with the court’s affirmance of the rejection of appellant’s Florida Rule of Criminal Procedure 3.850 claim of ineffective assistance of counsel, which was based upon the contention that he had no choice but to plead guilty because his trial lawyer had lost his file, including an allegedly exculpatory tape, and the lawyer was therefore unable to effectively defend him. Trial counsel, who was the state’s only witness on this issue, was permitted to present testimony directly contrary to the defendant’s — that the file was not lost — by telephone without the defendant’s consent and indeed over his specific objections. There is no doubt that this is contrary to Florida Rule of Judicial Administration 2.540(d)(1). See Brown v. State, 101 So.3d 381 (Fla. 1st DCA 2012); Cole v. Cole, 86 So.3d 1175 (Fla. 5th DCA 2012); M.S. v. Dep’t of Children & Families, 6 So.3d 102 (Fla. 4th DCA 2009).

The majority bases affirmance upon the ground of harmless error. I believe that this basis for affirmance, which was not raised by the state or the trial court at any stage of the proceedings below or on appeal, is incorrect. The majority primarily contends that the specific claim of ineffectiveness presented by the defendant was conclusively negated — obviating the necessity of an evidentiary hearing at all — by the colloquy at which the plea was tendered and accepted by the defendant, in which the following occurred:

Court: Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorney’s services?
Defendant: Yes, I am.
Court: Is anyone putting pressure upon you or forcing you to accept this plea today?
Defendant: No.
Court: Are you pleading guilty because you are guilty and for no other reason? Defendant: Yes.

While it is true that generalized allegations of “coercion” and the like may be negated by answers like these during the plea-taking process, see Cartwright v. State, 112 So.3d 582 (Fla. 4th DCA 2018), this is emphatically not the case when, as here, claims of specific instances of attorney incapacity or ineffectiveness are alleged and demonstrated below. See Hayes v. State, 120 So.3d 640 (Fla. 2d DCA 2013) (holding that general acknowl-edgements of satisfaction with counsel do not conclusively refute claims of ineffective assistance of counsel based on a failure to pursue specific defense); Jones v. State, 846 So.2d 1224 (Fla. 2d DCA 2003) (same); see also Nelson v. State, 996 So.2d 950 (Fla. 2d DCA 2008); McKune v. State, 953 So.2d 746 (Fla. 2d DCA 2007). In my judgment, these decisions, rather than the ones cited by the court, are controlling on this issue.

The court also finds a basis for harmlessness on the claim that the challenged testimony was merely cumulative. Again, this is not the case. There was no testimony whatsoever concerning the allegedly lost file and the attendant circumstances except for the lawyer’s erroneously admitted telephonic testimony, which was, in turn, the only basis for the trial judge’s rejection of the defendant’s position. As it said:

This Court finds that the July 24, 2006, hearing testimony of trial counsel, Raphael Ubieta, completely refutes this claim of the defendant. The defendant alleges that defense counsel lost his case file, however, the testimonial evidence, clearly refutes this claim. Throughout the hearing, Mr. Ubieta was asked more than once if he had misplaced the defendant’s case file, each time, Mr. Ubieta unequivocally responded, he had the file, it was not lost, and he was ready to go to trial if need be. When Mr. Ubieta was asked whether he was prepared to try the case, Mr. Ubieta responded in the affirmative. This Court finds the hearing testimony of Mr. Ubieta credible and compelling.

Since the lawyer’s testimony on the critical issue in the case was directly contrary to that of the defendant and was accepted by the trial court, and — perhaps most important — because I believe that we cannot find that the violation of the rules was harmless, see Brown, 101 So.3d at 382 (holding that the trial court’s error in allowing telephonic testimony in violation Florida Rule of Judicial Administration 2.530 was not harmless absent any other evidence to support the trial court’s finding), I would therefore remand the cause for the conduct of a new evidentiary hearing on the ineffective assistance issue. See Brown, 101 So.3d at 381; Cole, 86 So.3d at 1175; M.S., 6 So.3d at 102. I agree with the court’s disposition of the “newly discovered evidence” point.

      . The defendant had been denied bail after a bond hearing was conducted by the trial court based on the defendant's violation of a prior court order prohibiting the defendant from having any contact with the victim.

      . We have been unable to discover a prior instance of reversal on the bases assigned by the majority after a hearing on the merits has already been conducted.


text:
    Raidel PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1991.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 2013.
    Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before LAGOA and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); United States v. Jenkins, 92 F.3d 430 (6th Cir.1996); Ferguson v. State, 58 So.3d 360 (Fla. 4th DCA 2011).


author: BENTON, J.

text:
    Maria Alejandra Batista CESAR, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and GHM Hollywood Mar LLC., Appellees.
    No. 1D12-5864.
    District Court of Appeal of Florida, First District.
    Sept. 26, 2013.
    Maria Alejandra Batista Cesar, pro se, Appellant.

      Norman Blessing, General Counsel, and Amanda L. Neff, Senior Attorney, Tallahassee, for Appellee Reemployment Assistance Appeals Commission.
   BENTON, J.

Maria Cesar appeals a final order of the Reemployment Assistance Appeals Commission (the Commission) reversing an appeals referee’s decision qualifying her for unemployment benefits on grounds she committed disqualifying misconduct by making personal calls from her work phone. Because the Commission improperly substituted its own factual findings for those of the appeals referee, we reverse and remand with directions to reinstate the decision of the appeals referee.

After GHM Hollywood Mar, LLC terminated Ms. Cesar’s employment, she sought unemployment compensation benefits, but her former employer took the position that she was not entitled to benefits because of personal phone calls she had made at work.

The burden to prove misconduct rests on the employer. See SKF Mgmt. v. Unemployment Appeals Comm’n, 664 So.2d 345, 347 (Fla. 5th DCA 1995) (“[T]he employer has the burden of proving that the act or acts complained of constitute ‘misconduct’ sufficient to disqualify the employee from receiving unemployment compensation benefits.”) citing Gunther v. Barnett Banks, Inc., 598 So.2d 243, 245 (Fla. 2d DCA 1992); Sheriff of Monroe County v. Unemployment Appeals Comm’n, 490 So.2d 961, 962 (Fla. 3d DCA), rev. denied, 500 So.2d 544 (Fla.1986). Accord Pascarelli v. Unemployment Appeals Comm’n, 664 So.2d 1089, 1091 (Fla. 5th DCA 1995); Paul v. Jabil Circuit Co., 627 So.2d 545, 546 (Fla. 2d DCA 1993).

Lyster v. Fla. Unemployment Appeals Comm’n, 826 So.2d 482, 484 (Fla. 1st DCA 2002). Eventually, a telephonic hearing took place before an appeals referee, who ruled that the former employer failed to carry its burden to prove that Ms. Cesar had been guilty of misconduct connected with work.

The appeals referee ruled that the “claimant is not disqualified from the receipt of benefits.” On the basis of the evidence adduced at the telephonic hearing, the appeals referee made the following findings of fact (and no others):

The claimant worked as a reservations specialist for a hotel. The claimant worked for the employer from February 4, 2009, through June 4, 2012. During the claimant’s employment, she made several personal calls on her work phone to her mom regarding her medical diagnosis, and her boyfriend. While on the personal calls, the claimant continued to perform her required tasks. On June 4, 2012, the director of sales and human resources manager suspended the claimant until further notice due to making personal calls while at work. On June 6, 2012, the general manager and human resources manager discharged the claimant for misuse of company property and disregard of the employer’s policy-

The appeals referee concluded that the employer did not prove that she was discharged for “misconduct connected with work,” and did not prove that Ms. Cesar was aware of any policy prohibiting employees from making personal calls on work phones during work hours.

On the employer’s appeal to the Reemployment Assistance Appeals Commission, the Commission adopted the appeals referee’s findings of fact in their entirety — at least ostensibly. But the Commission reversed the appeals referee’s decision based on factual findings of its own never found by the appeals referee. Among other things, in irreconcilable conflict with the appeals referee, the Commission found that Ms. Cesar “knew or should have known” of the policy prohibiting employees from making personal phone calls from work phones (because of a written policy prohibiting cell phone use while “on the clock”). See Glover v. Sanford Child Care, Inc., 429 So.2d 91, 91 (Fla. 5th DCA 1983) (holding the Commission erred in reversing the appeals referee based on its disagreement with the referee over whether a day care employee had abused children). The Commission made additional findings, concluded that Ms. Cesar “showed a blatant and reckless disregard for the employer’s interests,” reversed the appeals referee and found Ms. Cesar disqualified from receiving unemployment benefits.

In modifying the appeals referee’s findings, including his finding that Ms. Cesar did not know about the company’s policy prohibiting personal calls from work phones, the Commission, as the Second District stated in Tedder v. Florida Unemployment Appeals Commission, 697 So.2d 900, 901 (Fla. 2d DCA 1997), engaged in a “reweighing of the evidence ... clothed as a legal conclusion.” At issue in Tedder, too, was the factual question of whether an employee who violated company policy was aware of the policy at the time. The appeals referee found she was unaware of the policy, but the Commission, on appeal, reached the “legal conclusion” that the claimant knew or should have known of this policy. The Second District reversed stating, “[t]he UAC’s conclusion that Ted-der knew of [the employer’s] policy constitutes a reweighing of the evidence, even though clothed as a legal conclusion. What Tedder ‘should have known’ is a factual finding as well.” Id. See also Critical Intervention Servs. v. Fla. Reemployment Assistance Appeals Comm’n, 106 So.3d 63, 66 (Fla. 1st DCA 2013).

“This Court may overturn a legal conclusion of the Commission if it is clearly erroneous and, in reviewing the Commission’s substituted conclusion, must assure that the correct rules of law were applied.” Howell & O’Neal v. Fla. Unemployment Appeals Comm’n, 934 So.2d 570, 575 (Fla. 1st DCA 2006). We have previously held:

The Commission’s standard of review of an appeals referee’s decision is whether the referee’s findings of fact are based on competent, substantial record evidence and whether the proceedings on which those findings are based complied with the essential requirements of law. Szniatkiewicz v. Unemployment Appeals Comm’n, 864 So.2d 498, 501-02 (Fla. 4th DCA 2004). The appeals referee, as the trier of fact, is privileged to weigh and reject conflicting evidence, and the Commission cannot reweigh the evidence and substitute its findings for those of the referee. Id. at 502. Although the Commission may reject the referee’s conclusions of law without limitation, it may not modify the facts to reach a different legal conclusion, rely on facts that were not established at the hearing, or rely on a theory not advanced by one party or anticipated by the other. See id. This Court cannot make credibility determinations or substitute its judgment for that of the referee and must uphold the appeals referee’s decision where there is competent, substantial evidence to support it. See id.; Ford v. Se. Atl. Corp., 588 So.2d 1039, 1040 (Fla. 1st DCA 1991).

Id. (reversing the Commission for improperly rejecting the appeals referee’s factual findings where they were supported by competent, substantial evidence and for relying on facts not established at the hearing before and found by the appeals referee).

The Commission may not substitute its findings of fact for those of the appeals referee. See Peace River Distrib., Inc. v. Fla. Unemployment Appeals Comm’n, 80 So.3d 461, 463 (Fla. 1st DCA 2012) (citing to section 120.57(1)(Z), Florida Statutes in holding that an administrative agency such as the Commission may not reweigh the evidence or substitute the referee’s findings of fact when those findings are based on competent, substantial evidence); His Kids Daycare v. Fla. Unemployment Appeals Comm’n, 904 So.2d 477, 480 (Fla. 1st DCA 2005) (same); Perez v. Am. Med., Inc., 842 So.2d 285, 286 (Fla. 3d DCA 2003) (reversing the Commission’s reinterpretation of the facts as an improper substitution of its judgment for that of the referee); Clark v. Prof'l Call Centers, Inc., 743 So.2d 95, 97 (Fla. 2d DCA 1999) (holding the Commission may not reweigh the referee’s factual findings where such findings are supported by substantial competent evidence in the record); Rex v. Fla. Unemployment Appeals Comm’n, 634 So.2d 257, 258 (Fla. 2d DCA 1994) (same); Kelly v. Fla. Min. & Materials Corp., 626 So.2d 1101, 1102 (Fla. 1st DCA 1993) (same); Rhodes, Inc. v. Gosha, 496 So.2d 898, 899 (Fla. 1st DCA 1986) (same). See also Eulo v. Fla. Unemployment Appeal Comm’n, 724 So.2d 636, 637 (Fla. 2d DCA 1999) (holding the Commission may-not modify the facts to reach a different legal conclusion or rely on facts that were not established at the hearing).

We reject the Commission’s conclusion that Ms. Cesar “showed a blatant and reckless disregard for the employer’s interests” based on her phone calls or on any charges resulting from personal telephone calls placed by her. The appeals referee made no findings as regards any charges to the hotel. Nor was it established at the hearing that Ms. Cesar was aware that her calls could result in any charges or that she made any phone calls with such knowledge. See Howell & O’Neal, 934 So.2d at 575 (holding the Commission may not rely on facts not established at the hearing).

Because the Commission improperly rejected the appeals referee’s finding that Ms. Cesar was unaware of the policy prohibiting personal calls from the work phone, substituted its own finding that Ms. Cesar knew or should have known of this policy, and added its own findings in concluding that Ms. Cesar committed disqualifying misconduct, we reverse and remand to the Commission with directions that Ms. Cesar be awarded unemployment benefits.

Reversed and remanded.

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

      . Misconduct connected with work is defined under § 443.036(30), Fla. Stat. (2011) as:
      (a)Conduct demonstrating conscious disregard of an employer’s interests and found to be a deliberate violation or disregard of the reasonable standards of behavior which the employer expects of his or her employee.
      (b)Carelessness or negligence to a degree or recurrence that manifests culpability or wrongful intent, or shows an intentional and substantial disregard of the employer's interests or of the employee’s duties and obligations to his or her employer.
      (c)Chronic absenteeism or tardiness in deliberate violation of a known policy of the employer or one or more unapproved absences following a written reprimand or warning relating to more than one unapproved absence.
      (d)A willful and deliberate violation of a standard or regulation of this state by an employee of an employer licensed or certified by this state, which violation would cause the employer to be sanctioned or have its license or certification suspended by this state.
      (e)A violation of an employer’s rule, unless the claimant can demonstrate that:
      1.He or she did not know, and could not reasonably know, of the rule’s requirements;
      2.The rule is not lawful or not reasonably related to the job environment and performance; or
      3.The rule is not fairly or consistently enforced.

      . Section 120.57(1)(Z), Florida Statutes (2011) provides in relevant part:
      The agency may not reject or modify the findings of fact unless die agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidenced]

      . Generally, an employee must evidence intentional insubordination to meet this standard of misconduct. See LaCharite v. State, Unemployment Appeals Comm’n, 890 So.2d 354, 356 (Fla. 1st DCA 2004) (holding an MRI technologist who was discharged after administering a saline IV to a co-worker without first obtaining a doctor’s approval in violation of company policy demonstrated poor judgment but did not commit misconduct).


author: BENTON, J. WETHERELL, J.,

text:
    Marissa ALEXANDER, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2469.
    District Court of Appeal of Florida, First District.
    Sept. 26, 2013.

      Bruce A. Zimet of Bruce A. Zimet, P.A., Fort Lauderdale, Faith Gay, Alex Rossmil-ler, and Molly Alana Karlin of Quinn, Emanuel, Urquhart & Sullivan, LLP, New York, New York, and for Appellant.
    Pamela Jo Bondi, Attorney General, Giselle D. Lylen, Assistant Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Convicted of aggravated assault with a deadly weapon for firing what she described as a warning shot intended to make her husband desist from physical abuse, Marissa Alexander argues the judgment against her (and her twenty-year sentence) should be reversed on multiple grounds. We reject her contention that the trial court erred in declining to grant her immunity from prosecution under Florida’s Stand Your Ground law, but we remand for a new trial because the jury instructions on self-defense were erroneous.

Appellant stood trial only after the trial court denied her pretrial motion seeking immunity from prosecution. She maintains the trial court abused its discretion in giving a self-defense instruction to the jury that, among other things, improperly shifted the burden to her to establish, beyond a reasonable doubt, that Mr. Gray was committing or was about to commit an aggravated battery when she discharged her pistol. At trial, the only real issue was whether she had acted in self-defense when she fired the gun. Because the jury instructions on self-defense were fundamental error, we reverse.

In his opening statement, defense counsel told the jury the appellant was forced to defend herself by firing the gun. (In closing, he described her as “terrified.”) After Mr. Gray accused her of infidelity and questioned the paternity of her week-old baby, she testified, she locked the bathroom door, yelling at him to leave, but Mr. Gray broke through the door, grabbed her by her neck, and demanded to know when she last had sexual relations with her ex-husband. She tried to push past him but he shoved her hard into the bathroom door. After struggling for what felt like an “eternity,” she testified, he relented and she ran from the bathroom straight to the garage.

Once inside the garage, appellant testified, she tried to leave the premises altogether but could not get the garage door open, and instead retrieved a gun (for which she had a permit) from the glove compartment of a vehicle in the garage. She then walked back into the house, she said, holding the gun by her side because she did not know whether Mr. Gray had left or not. As she walked into the kitchen, Mr. Gray saw the gun, and charged her “in a rage,” saying, “Bitch, I’ll kill you.” Startled, she raised the gun into the air and fired. Mr. Gray ran. According to appellant, she was forced to fire her gun into the air as a warning shot because it was the “lesser of two evils.”

For appellant, she testified, the firing of the gun was the culmination of a year-and-a-halfs abuse at her husband’s hands. She recounted for the jury at least three other incidents of physical abuse, beginning shortly after she moved in with him in early 2009. She described Mr. Gray’s choking her, attempting to strangle her, almost causing her to lose consciousness, and another occasion, six months later, when Mr. Gray shoved her repeatedly and violently, causing injuries that required hospitalization. That time she called law enforcement and Mr. Gray was arrested. She subsequently obtained a domestic violence injunction against him. In 2010, she testified, five months after she had become pregnant with Mr. Gray’s child, he “headbutted” her twice, tore her clothes, and threw her to the ground. During all these episodes — and at other times, as well — he threatened to kill her, she said.

Several witnesses, including appellant’s daughter, younger sister, mother, and ex-husband all testified they had seen appellant’s injuries, injuries they understood Mr. Gray had inflicted. Two of Mr. Gray’s sisters-in-law also testified that he had a reputation for violence in the community. The final defense witness, Mia Wilson, Ph. D., testified that the appellant met the criteria for “battered person’s syndrome.” The prosecution agreed the central question at trial was self-defense, and argued in closing: “Now at issue is self-defense in this case.... Remember at issue, really at issue in this case is whether Mr. Gray ran towards her, charged her and said, ‘Bitch I’m going to kill you.’ You have to decide if that actually happened.” ... “What this case is about, ladies and gentlemen, is whether this defendant under the law was justified in her actions of discharging that gun.” The fundamental question before the jury, the issue on which the jury’s verdict hinged, was self-defense.

To guide their deliberations, the trial judge instructed the jury on self-defense but did so in language that was problematic in two important respects, and which constituted fundamental error as a result. First, as regards aggravated battery, the jury was instructed as follows:

A person is justified in using deadly force if she reasonably believes that such force is necessary to prevent:
1. imminent death or great bodily harm to herself or another, or
2. the imminent commission of Aggravated Battery against herself or another.
AGGRAVATED BATTERY
To prove the crime of Aggravated Battery, the following two elements must be proven beyond a reasonable doubt. The first element is a definition of battery.
1. Rico Gray Sr. intentionally touched or struck MARISSA DANIELLE ALEXANDER against her will.
2. Rico Gray Sr. in committing the battery intentionally or knowingly caused great bodily harm to MARISSA DANIELLE ALEXANDER.

(Emphasis added.) By including the phrase “beyond a reasonable doubt” when giving the instruction on the aggravated battery prong of the self-defense instruction, the trial court improperly transmuted the prosecution’s burden to prove guilt beyond a reasonable doubt into a burden on the appellant to prove self-defense beyond a reasonable doubt, depriving her of a trial under the correct rule.

The defendant’s burden is only to raise a reasonable doubt concerning self-defense. The defendant does not have the burden to prove the victim guilty of the aggression defended against beyond a reasonable doubt. “When a defendant claims self-defense, the State maintains the burden of proving the defendant committed the crime and did not act in self-defense.” Montijo v. State, 61 So.3d 424, 427 (Fla. 5th DCA 2011). “The burden never shifts to the defendant to prove self-defense beyond a reasonable doubt. Rather, he must simply present enough evidence to support giving the instruction.” Id.

We reject the state’s argument that the erroneous instructions on self-defense were not fundamental because self-defense was not appellant’s sole defense. While not every erroneous jury instruction on an affirmative defense is fundamental error, see Martinez v. State, 981 So.2d 449, 455 (Fla.2008), some errors reach down into “the legality of the trial itself.” Hamilton v. State, 88 So.2d 606, 607 (Fla.1956). Fundamental error occurs where the instruction is “so flawed as to deprive defendants claiming the defense ... of a fair trial.” Smith v. State, 521 So.2d 106, 108 (Fla.1988). On the evidence adduced below in the present case, it is entirely possible “that a verdict of guilty could not have been obtained without the assistance of the error alleged.” Hamilton, 88 So.2d at 607.

We also agree with appellant, moreover, that the trial court erred in giving the self-defense instruction when it indicated self-defense applied only if the victim suffered an “injury.” The appellant was charged with aggravated assault but— under any possible view of the evidence— inflicted no injury. See Brown v. State, 59 So.3d 1217, 1218 (Fla. 4th DCA 2011) (holding standard self-defense jury instructions which authorized self-defense only if the victim suffered injury did not adequately state the law and negated appellant’s self-defense theory where no injury occurred). See also Garrido v. State, 97 So.3d 291, 294 (Fla. 4th DCA 2012) (citing Brown and Bassallo v. State, 46 So.3d 1205 (Fla. 4th DCA 2010)). Under the cases, the jury instructions’ requirement of an injury should have been eliminated. Since no injury occurred in the present case as a result of appellant’s firing her gun, the trial court erred in giving the standard jury instruction on justifiable use of deadly force in defense of self.

The defendant was “entitled to have the jury correctly instructed on self-defense.” Montijo, 61 So.3d at 427. The trial court committed fundamental error in requiring proof beyond a reasonable doubt that appellant’s husband committed aggravated battery immediately before she fired the warning shot, or would have done so but for the shot. Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

LEWIS, C.J., concurs.

WETHERELL, J., concurs in Result with Opinion.

WETHERELL, J.,

concurring in result.

I agree based on the case law cited in the majority opinion that this case must be reversed and remanded for a new trial as a result of the fundamentally erroneous jury instructions pertaining to the issue self-defense, which was the central issue in this case.

I write separately to emphasize that the facts summarized in the majority opinion describe the shooting and the events leading up to it in the light most favorable to Appellant. The jury also heard testimony that painted Appellant as the aggressor during the incident and directly contradicted Appellant’s version of the events, including her all-important claim that she only fired the gun because her husband charged at her in a rage while threatening to Mil her. It was the prerogative of the jury to determine which version of events to believe and, by its verdict, it appears that the jury rejected Appellant’s version of events.

The same will be true if Appellant is retried upon remand: the jury will have to resolve the conflicts in the evidence and determine whether Appellant is guilty of the crimes charged (or a lesser included offense) or whether her actions were justified in the name of self-defense. But the question as to whether Appellant is entitled to immunity from prosecution under the Stand Your Ground law is no longer open for debate because that issue was definitively resolved against Appellant after a full and fair evidentiary hearing in a ruling that has now been affirmed by this court. See footnote 1, supra.

With these observations, I concur in the disposition of this case.

      . When the issue has been properly raised, the trial court must "determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.” Peterson v. State, 983 So.2d 27, 29 (Fla. 1st DCA 2008). See also Hair v. State, 17 So.3d 804, 805 (Fla. 1st DCA 2009). The Stand Your Ground law provides in relevant part:
      ... [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[.]
      § 776.012, Fla. Stat. (2010). The court may not deny a motion simply because factual disputes exist; indeed the "court must decide the matter by confronting and weighing only factual disputes.” Peterson, 983 So.2d at 29. See Dennis v. State, 51 So.3d 456, 463 (Fla.2010). We decline appellant's invitation to reweigh the facts.

      . In deciding Montijo v. State, 61 So.3d 424 (Fla. 5th DCA 2011), the Fifth District relied on Murray v. State, 937 So.2d 277 (Fla. 4th DCA 2006), which involved facts similar to those in the present case. The defendant in Murray asserted self-defense, alleging he sought to prevent his roommate's commission of an aggravated battery, Murray, 937 So.2d at 278, and the court instructed the jury that Murray, the defendant, had to prove the elements of aggravated battery beyond a reasonable doubt. Id. at 279-80. In reversing the conviction, the court’s opinion asked whether Murray had to "prove the additional facts for self-defense beyond a reasonable doubt?” The court answered its own question, rhetorical or not:
      No, he did not have to prove self-defense beyond a reasonable doubt. He did not have to prove even that his additional facts were more likely true than not. The real nature of his burden concerning his defense of justification is that his evidence of additional facts need merely leave the jury with a reasonable doubt about whether he was justified in using deadly force. Hence, if he wanted his self-defense to be considered, it was necessary to present evidence that his justification might be true. It would then be up to the jury to decide whether his evidence produced a reasonable doubt about his claim of self-defense.

        Id. at 279 (footnote omitted). See also Alvarado v. State, 98 So.3d 80, 81 (Fla. 5th DCA 2012) (reaffirming Montijo on similar self-defense instructions).

      . The jury instruction provided:

        JUSTIFIABLE USE OF DEADLY FORCE

      An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which MARISSA DANIELLE ALEXANDER is charged if the injury to Rico Gray Sr. resulted from the justifiable use of deadly force.

      . The state argued that "injury” encompasses psychological or emotional injury such as fear. If so, such a definition should have been made explicit in the instructions. See Garrido v. State, 97 So.3d 291, 294-95 (Fla. 4th DCA 2012).

      . The trial court likewise rejected Appellant’s version of events when it denied her claim of immunity under the Stand Your Ground law after making the following relevant findings:
      On August 1, 2010, the Defendant shot at or near Rico Gray Sr. [and his two sons]. The Defendant had not been living in the marital home for the two months leading up to the shooting. On the evening of July 31, 2010, the Defendant drove herself to the marital home and parked in the garage, closing the garage door after parking her vehicle. The Defendant stayed the night in the marital home. The next morning, on August 1, 2010, Rico Gray Sr. arrived at the marital home with his two sons [] and the children entered the home through the garage door. Rico Gray Sr. made the family breakfast and nothing went awry.
      After breakfast, the Defendant went into the master bedroom. Before entering the bathroom, the Defendant handed her phone to Rico Gray Sr. to show him pictures of their newborn baby [], who was still in the hospital. At that point, the Defendant went into the master bathroom while Rico Gray Sr. looked through the phone. While going through the phone, Rico Gray Sr. observed texts from the Defendant to her ex-husband Lincoln Alexander prompting Rico Gray Sr. to question whether the newborn baby was his. At this point, Rico Gray Sr. opened the bathroom door to confront the Defendant regarding the texts. A verbal argument ensued between the Defendant and Rico Gray Sr. For this reason, Rico Gray Sr. stepped out of the bathroom and yelled for his sons to put their shoes on because they were leaving. Rico Gray Sr. returned to the bathroom and demanded that the Defendant explain the texts and the verbal argument continued. During the verbal argument Rico Gray Sr. stood in the doorway to the bathroom and the Defendant could not get around him. Either Rico Gray Sr. moved from the doorway or the Defendant pushed around him to exit the bathroom. Rico Gray Sr. moved to the living room where his children were. Subsequently, the Defendant emerged from the master bedroom and went into the garage where her car was parked. The Defendant testified she was trying to leave the residence but could not get the garage door to open. (The Court notes that despite the Defendant's claim she was in fear for her life at that point and trying to get away from Rico Gray she did not leave the house through the back or front doors which were unobstructed. Additionally, the garage door had worked previously and there was no evidence presented to support her claim.) The Defendant then retrieved her firearm from the glove box of the vehicle. The Defendant returned to the kitchen with the firearm in her hand and pointed it in the direction of all three Victims. Rico Gray Sr. put his hands in the air. The Defendant shot at Rico Gray Sr., nearly missing his head. The bullet traveled through the kitchen wall and into the ceiling in the living room. The Victims fled the residence and immediately called 911. The Defendant stayed in the marital home and at no point called 911. The Defendant was arrested on the date of the incident.
      The Defendant posted bail prior to arraignment and was ordered by the Court and signed a document through Pretrial Services stating she was to have no contact with the Victims in the instant case. However, the Defendant continued to have contact with the Victims in this case, more specifically with Rico Gray Sr. Prior to Rico Gray Sr.’s deposition, the Defendant and Rico Gray Sr. discussed what he should say at deposition.
      Shortly after Rico Gray Sr.'s deposition, the Defendant drove to Rico Gray Sr.'s new house where his two children [ ] were staying (not the Defendant’s home). While there, the Defendant physically attacked Rico Gray Sr., causing injury to Rico Gray Sr.’s face. Again, Rico Gray Sr. immediately called 911 after the incident and the Defendant did not. The Defendant was arrested on new charges and her bond was revoked.

        There is insufficient evidence that the Defendant reasonably believed deadly force was needed to prevent death or great bodily harm to herself, another or to prevent the commission of a forcible felony. During the date in question, the Defendant alleged that while in the bathroom Rico Gray Sr. pushed her, and the bathroom door hit her in the leg when it swung open. Per the Defendant’s own testimony, she did not suffer serious bodily injury as a result of the altercation that took place in the bathroom. Further, after Rico Gray Sr. exited the master bedroom, the Defendant intentionally passed by the Victims and entered the garage where she immediately armed herself and proceeded back into the home. This is inconsistent with a person who is in genuine fear for his or her life.

        After weighing the credibility of all witnesses and other evidence, this Court finds that the Defendant has not proved by a preponderance of the evidence that she was justified in using deadly force in defense of self. Hence, the Defendant has not met her burden of establishing her right to immunity as a matter of fact or law.
      (emphasis added).


author: ROBERTS, J.

text:
    HORACE MANN INSURANCE COMPANY, Appellant, v. Allison CHASE, Individually and as Co-Personal Representative of the Estate of Richard Chase, Deceased, Appellee.
    No. 1D12-2132.
    District Court of Appeal of Florida, First District.
    Sept. 26, 2013.

      Kathy Maus and Julius F. Parker, III, of Butler Pappas Weihmuller Katz Craig, Tallahassee, for Appellant.
    Stephen J. Pajcic, III, and Benjamin E. Richard of Pajcic & Pajcic, P.A., Jacksonville, for Appellee.
   ROBERTS, J.

This appeal arises from a final judgment that determined waivers of uninsured/un-derinsured motorist (UM) coverage and UM stacked coverage as well as an owned-but-not-insured vehicle exclusion that were agreed to by the original policyholder, Richard Chase (R. Chase), were not binding when the policyholder became Allison Chase (A.Chase). The appellant, Horace Mann Insurance, argues that the waivers and exclusion were binding on R. Chase’s estate as well as A. Chase, both individually and as personal representative of R. Chase’s estate. We agree in part.

In 2001, R. Chase purchased the insurance policy at issue, which provided bodily injury liability limits of $100,000/$300,000. R. Chase signed a form in which he selected reduced UM coverage limits of $25,000/ $50,000. The UM rejection selection stated:

You are electing not to purchase certain valuable coverage which protects you and your family or you are purchasing uninsured motorist limits less than your bodily injury liability limits when you sign this form.

On the same form, he selected non-stacked UM coverage. The form stated:

Under this form if injury occurs in a vehicle owned or leased by you or any family member who resides with you, this policy will apply only to the extent of coverage (if any) which applies to that vehicle in this policy. If an injury occurs while occupying someone else’s vehicle, or you are struck as a pedestrian, you are entitled to select the highest limits of Uninsured Motor Vehicle coverage available on any vehicle for which you are a named insured, insured family member, or insured resident of the named insured’s household. This policy will not apply if you select the coverage available under any other policy issued to you or the policy of any other family member who resides with you.

His daughter, A. Chase, was listed as a driver, but not a named insured, on the policy. In 2004, A. Chase became the sole-named insured. R. Chase was issued a new policy in which he was the sole-named insured. In 2007, A. Chase added R. Chase as a listed driver on her policy.

In 2008, an underinsured motorist collided with two motorcycles owned and operated by R. Chase and A. Chase. R. Chase died from his injuries. A. Chase sought to recover damages individually as well as for R. Chase’s estate. The trial court determined that because A. Chase did not sign any documentation rejecting higher levels of UM coverage or stacked UM coverage, those waivers did not apply to A. Chase individually or to the estate of R. Chase. Further, the trial court found that, because A. Chase did not sign a form selecting limited UM coverage at the time she became the insured, the policy exclusion for owned-but-not-insured vehicles was not enforceable against A. Chase or R. Chase’s estate. The appellant appeals both of these findings.

First, the appellant argues the trial court erred when it found A. Chase’s policy was a new policy that did not include reduced UM and non-stacked coverage. A trial court’s construction of an insurance policy to determine coverage is a matter of law subject to de novo review. Barnier v. Rainey, 890 So.2d 357, 359 (Fla. 1st DCA 2004) (“The standard of review governing a trial court’s ruling on a motion for summary judgment posing a pure question of law is de novo.”).

There are two statutory sections implicated by the appellant’s argument. First, section 627.727(1), Florida Statutes (2008), which applies to UM coverage, provides that UM coverage or higher limits of UM coverage need not be included in any policy that “renews, extends, changes, supersedes, or replaces an existing policy with the same bodily injury liability limits” when the named insured has previously rejected the coverage or selected lower limits. See State Farm Mut. Auto. Ins. Co. v. Shaw, 967 So.2d 1011, 1015 (Fla. 1st DCA 2007) (new rejection of UM coverage not required when policy originally issued to husband and wife was subsequently renewed after divorce in only one spouse’s name with no change in bodily injury liability limits); see also Atlanta Cas. Co. v. Evans, 668 So.2d 287, 289 (Fla. 1st DCA 1996) (new rejection of UM coverage not required when policy originally issued to husband and wife was subsequently renewed after divorce in only one spouse’s name with no change in bodily injury liability limits).

Second, section 627.727(9), Florida Statutes (2008), which applies to stacking UM coverage, states, “[i]f this form is signed by a named insured, applicant, or lessee, it shall be conclusively presumed that there was an informed, knowing acceptance of such limitations.” This Court has found that, under subsection nine, unlike under subsection one, the waiver must be personally made by the insured who claims the benefits. Travelers Ins. Co. v. Harrington, 86 So.3d 1274, 1277 (Fla. 1st DCA 2012), rev. granted, 116 So.3d 1264 (Fla. Jan. 28, 2013) (holding that a UM stacked coverage waiver that was expressly accepted by the insured did not apply to the insured’s daughter because the insurance company did not obtain a knowing acceptance of the limitation by the daughter).

Here, R. Chase signed an UM waiver and an UM stacking rejection waiver. At the time of the accident, A. Chase was the primary insured, and R. Chase was a listed driver. Because no policy limits were changed, the policy was renewed, extended, changed, superseded, or replaced, and R. Chase’s waiver of higher UM coverage bound A. Chase individually and as personal representative of R. Chase’s estate. See Shaw, 967 So.2d at 1015. Additionally, because R. Chase signed the UM stacking waiver, R. Chase’s estate and A. Chase as personal representative were bound by the waiver and not entitled to stacked coverage. See Harrington, 86 So.3d at 1277. However, the UM stacking waiver did not apply to A. Chase individually because she did not sign the UM stacking waiver as an insured. See id.

Further, the appellant argues the owned-but-not-insured exclusion in the policy applies to A. Chase individually and as personal representative as well as to R. Chase’s estate. Section 627.727(9)(d), Florida Statutes (2008), provides that an insurance company may exclude coverage for insureds or family members residing in the household who are injured while occupying any vehicle owned by such insured for which UM coverage was not purchased. In Shaw, a similar owned-but-not-insured policy was examined by this Court. 967 So.2d at 1015 (“There is no coverage ... for bodily injury to an insured while occupying any vehicle owned by you, your spouse, or any relative if it is not insured for this coverage under this policy.”). This Court found that the exclusionary language was binding because there was no new policy requiring a new UM election. Id. Here, because A. Chase was not issued a new policy, the owned-but-not-insured exclusion was binding on A. Chase individually and as personal representative of R. Chase’s estate.

Accordingly, with respect to R. Chase’s estate, we reverse the trial court’s finding that the UM coverage waiver and stacked coverage waiver were not binding.

With respect to A. Chase individually, we affirm the trial court’s finding that A. Chase was entitled to stacked coverage, but reverse the trial court’s finding that the UM coverage waiver was not binding.

With respect to R. Chase’s estate and A. Chase individually and as personal representative, we reverse the trial court’s finding that the owned-but-not-insured exclusion was not enforceable.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

WETHERELL and MARSTILLER, JJ., concur.


text:
    Joseph E. ZAGAME, Appellant, v. FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES and Southwest Florida Water Management District, Appellees.
    No. 1D13-2641.
    District Court of Appeal of Florida, First District.
    Sept. 26, 2013.
    Joseph E. Zagame, pro se, Appellant.
    Amy Wells Brennan, Senior Attorney, Southwest Florida Water Management District, Tampa, for Appellees.
   PER CURIAM.

Pursuant to the joint motion for remand, the final order is vacated and the cause is remanded to the lower tribunal for further proceedings.

BENTON, PADOVANO, and CLARK, JJ., concur.


text:
    Paul PORRETTO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1201.
    District Court of Appeal of Florida, First District.
    Sept. 26, 2013.
    Paul Porretto, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the October 25, 2012, judgment and sentence in Wakulla County Circuit Court case number 11-0195-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

BENTON, PADOVANO, and CLARK, JJ., concur.


text:
    Ana F. BASANTES, a/k/a, Ana Finotti-Cortez, Appellant, v. BANK OF AMERICA, N.A., Appellee.
    No. 1D12-2823.
    District Court of Appeal of Florida, First District.
    Sept. 26, 2013.

      Mark P. Stopa and Phillip J. Healy of Stopa Law Firm, Tampa, for Appellant.
    David S. Ehrlich and Joseph F. Poklem-ba of Blank Rome LLP, Boca Raton, for Appellee.
   PER CURIAM.

In accordance with appellee’s confession of error, the portion of the order on appeal denying appellant’s motion to quash service of process is reversed and the cause is remanded to the trial court for further proceedings.

THOMAS, ROWE, and SWANSON, JJ., concur.


text:
    K.Y., Guardian Ad Litem, Appellant/Cross-Appellee, v. J.S., Father of T.S. and J.S., Minor Children, et.al., Appellee/Cross-Appellant.
    No. 5D13-2011.
    District Court of Appeal of Florida, Fifth District.
    Sept. 30, 2013.
    Thomas Wade Young, of Thomas Wade Young, P.L., Orlando, for Appellant/Cross-Appellee, Guardian ad Litem.
    Heather Morcroft, Longwood, for Appel-lee/Cross-Appellant, J. S., Father.
    Rosemarie Farrell, of Children’s Legal Services, Orlando, for Appellee/Cross-Ap-pellant, Department of Children and Families.
   PER CURIAM.

Appellant appeals the Amended Order Granting Father’s Motion for Reunification and Denying DCF’s Motion for Permanent Guardianship rendered by the trial court following an evidentiary hearing. Father filed a cross appeal. Appellant filed a Notice of Voluntary Dismissal, and this court dismissed the main appeal leaving the cross appeal. After our thorough review of the briefs and the record, we affirm as to the issues raised in the cross appeal and affirm the order under review.

AFFIRMED.

SAWAYA, ORFINGER and EVANDER, JJ., concur.


text:
    Steven William ABAZIS, William George Abazis and Evan Achilles Abazis, Appellants, v. INDIAN RIVER COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 4D12-4441
    District Court of Appeal of Florida, Fourth District.
    Oct. 2, 2013.

      David W. Holloway of David W. Holloway, P.A., Seminole, for appellants.
    Brooke W. Odom, Assistant County Attorney, Vero Beach, for appellee.
   PER CURIAM.

Affirmed. See Rodgers v. After School Programs Inc., 78 So.3d 42 (Fla. 4th DCA 2012).

WARNER, CIKLIN and GERBER, JJ„ concur.


text:
    Kristopher FREEMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4249.
    District Court of Appeal of Florida, First District.
    Oct. 2, 2013.
    Matt Shirk, Public Defender; Elizabeth H. Webb and Mary W. Hickson, Assistant Public Defenders, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on February 15, 2013, in Duval County Circuit Court case number 16-201 l-CF-3465AXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

THOMAS, WETHERELL, and RAY, JJ., concur.


text:
    UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellant, v. STATE of Florida, OFFICE OF INSURANCE REGULATION, Appellee.
    No. 1D13-3655.
    District Court of Appeal of Florida, First District.
    Oct. 2, 2013.
    Jeffrey L. Frehn and Travis L. Miller, of Radey Thomas Yon & Clark, P.A., Tallahassee, for Appellant.
    Belinda Miller, General Counsel, and James Bruce Culpepper and Elenita Gomez, Assistant General Counsels, Office of Insurance Regulation, Tallahassee, for Ap-pellee.
   PER CURIAM.

The Court having determined that the order on appeal does not constitute appeal-able final agency action, appellee’s Motion to Dismiss, filed on August 13, 2013, is granted. The appeal is hereby dismissed as premature.

LEWIS, C. J., MARSTILLER and OSTERHAUS, JJ., concur.


text:
    In re Damon J. BALDONE.
    No. 2013-B-1756.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

11 The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent’s failure to properly supervise his non-lawyer employees led to his clients being charged excessive interest on advances for living expenses. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rules 1.8(e)(5)(iii) and 5.3 of the Rules of Professional Conduct, and that the misconduct was negligent. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Damon J. Baldone, Louisiana Bar Roll number 21997, be and he hereby is publicly reprimanded.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    In re William C. MONROE.
    No. 2013-B-1817.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| Respondent misused his client trust account by keeping his earned fees and other personal funds in the account and paying his secretary’s salary directly from the account. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rules 1.15(a) and (b) of the Rules of Professional Conduct, and that the misconduct was negligent. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that William C. Monroe, Louisiana Bar Roll number 9555, be and he hereby is publicly reprimanded. It is further ordered that respondent shall attend the next available session of Trust Accounting School offered by the Louisiana State Bar Association’s Practice Assistance Counsel.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.