text:
    Bruce W. DAVIS, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-2043.
    District Court of Appeal of Florida, First District.
    May 22, 2013.
    Bruce W. Davis, pro se, Petitioner.
    Jennifer Parker, General Counsel, and Michael T. Kennett, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed. See Baker v. State, 878 So.2d 1236 (Fla.2004).

BENTON, C.J., WETHERELL and ROWE, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jimmy Lee TOLIVER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2185.
    District Court of Appeal of Florida, First District.
    May 22, 2013.
    Jimmy Lee Toliver, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., RAY and MAKAR, JJ., concur.


author: JACOBUS, J.

text:
    Billy WASHINGTON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3364.
    District Court of Appeal of Florida, Fifth District.
    May 24, 2013.

      James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   JACOBUS, J.

The appellant, Billy Washington, Jr., appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. Washington was indicted for first-degree murder with a firearm and robbery with a firearm after he shot the victim five times during an incident at a restaurant. A crowd of patrons witnessed the shooting; however, most of these patrons were uncooperative, and only two testified at trial. The State nolle prose-quied the robbery charge, and Washington was tried before a jury on the charge of first-degree murder. His sole defense at trial' was that he was acting in self-defense. The jury returned a guilty verdict on the lesser included offense of manslaughter with a firearm. Washington appealed his conviction to this Court arguing that he was entitled to reversal because of improper prosecutorial argument amounting to fundamental error. This Court affirmed his conviction. Washington v. State, 935 So.2d 1256, 1257 (Fla. 5th DCA 2006).

Washington subsequently filed a motion for postconviction relief asserting six grounds. The lower court granted an evi-dentiary hearing on only three of these grounds. After the hearing, the court denied his motion for postconviction relief. We find no error in the court’s findings on Washington’s motion with the exception of one, which merits discussion.

Washington argues his trial counsel was ineffective because he did not request an addition to the justifiable homicide instruction to include aggravated assault and aggravated battery as felonies Washington would have been justified to resist. Instead, the jury was instructed:

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which Billy Washington, Jr. is charged, if the death of Demario Freeman resulted from the justifiable use of force likely to cause death or great bodily injury.
The use of force likely to cause death or great bodily harm is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to the defendant while resisting, one, another’s attempt to murder the defendant, or, two, any attempt to commit robbery upon the defendant.
Persons are justified in using force likely to cause death or great bodily harm if they reasonably believe that such force is necessary to prevent, one, imminent death or great bodily harm to themselves or another, or, two, the imminent commission of robbery against themselves or another.

(Emphasis added). At the evidentiary hearing, trial counsel testified he made a strategic decision not to include the additional felonies in the jury instruction because the victim was not holding a gun during the shooting, and he thought the robbery was more believable to a jury. Trial counsel also claimed he likely discussed the instructions with Washington, but Washington disputed that claim. The lower court found the decision not to ask for the additional felonies was not ineffective assistance because it was a strategic decision made after consideration of alternate courses and was reasonable under the norms of professional conduct. See Reynolds v. State, 99 So.3d 459, 471 (Fla.2012). The lower court also determined that Washington was unable to demonstrate

prejudice under Strickland because the instructions included the following additional provisions:

The killing of a human being is justifiable homicide and lawful if necessarily done while resisting an attempt to murder or commit a felony upon the defendant or to commit a felony in any dwelling house in which the defendant was at the time of the killing.
If you find that the defendant, who because of threats or difficulties with Demario Freeman had reasonable grounds to believe that the defendant was in danger of death or great bodily harm at the hands of Demario Freeman, then the defendant had a right to arm himself.
If you find that Demario Freeman had a reputation of being a violent and dangerous person and that the victim’s reputation was known to the defendant, you may consider this fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation.

Washington now complains the defense strategy was unreasonable and counsel should have requested an instruction that included the aggravated assault and aggravated battery felonies.

Under the two-prong Strickland test for ineffective assistance of counsel, a defendant must prove both deficiency and prejudice. Johnston v. State, 63 So.3d 730, 737 (Fla.2011) (citing Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674). Because both prongs of the Strickland test present mixed questions of law and fact, this Court must employ a mixed standard of review, deferring to the lower court’s factual findings that are supported by competent, substantial evidence, but reviewing legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004). A deficiency in performance requires evidence of particular acts or omissions “ ‘that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards.’ ” Bolin v. State, 41 So.3d 151, 155 (Fla.2010) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986)). “[Strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000). In demonstrating prejudice, the defendant must show a reasonable probability that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694,104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

Here, the failure to request the additional felonies appears unreasonable because it is far more likely that the victim was attempting to scare or shoot at Washington rather than to rob or kill him in. front of a crowd. Under these circumstances, it would have been error to refuse the instruction had it been requested. Brozey v. State, 911 So.2d 867 (Fla. 2d DCA 2005) (holding that trial court abused its discretion in refusing instruction on defendant’s justifiable use of force while resisting an .attempt to commit a battery on him, despite instruction on justifiable use of force to resist attempt to murder him). The only potential basis for affirming the conviction, despite the omitted instruction, is that Washington’s defense was adequately covered by the following instruction:

Persons are justified in using force likely to cause death or great bodily harm if they reasonably believe that such force is necessary to prevent, one, imminent death or great bodily harm to themselves or another, or, two, the imminent commission of robbery against themselves or another.

This instruction, however, was negated by the instruction immediately preceding it, which informed the jury that homicide is justifiable only if deadly force is “necessary to prevent imminent death or great bodily harm to the defendant while resisting, one, another’s attempt to murder the defendant, or, two, any attempt to commit robbery upon the defendant.” At best, the extra instructions were confusing and did not clearly inform the jury that Washington was justified in the use of deadly force if he reasonably believed that the victim was attempting to commit felonies other than robbery or murder — such as an aggravated assault or aggravated battery. See Talley v. State, 106 So.3d 1015, 1015 (Fla. 2d DCA 2013) (observing that when jurors are faced with both correct and incorrect instructions, there is no reason to believe they will know which is correct). Thus, we conclude that trial counsel’s representation was deficient.

Addressing the prejudice prong of the Strickland test, because the instruction requested by defense counsel failed to fairly and fully explain Washington’s only theory of innocence — self-defense—we hold that the prejudice prong is satisfied. See Stoute v. State, 987 So.2d 748 (Fla. 4th DCA 2008) (finding that jury instruction on self-defense which negated only defense was prejudicial to defendant within context of rule 3.850 motion); see also Talley, 106 So.3d at 1017-18 (holding that instruction that is incorrect statement of law and misleading to jury, which negates defendant’s only defense, is highly prejudicial to defendant and requires reversal on direct appeal).

Accordingly, we reverse the judgment and conviction and remand this matter to the trial court for a new trial.

REVERSED and REMANDED for new trial.

TORPY and EVANDER, JJ., concur.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


text:
    Jason Thomas ALTMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-3472.
    District Court of Appeal of Florida, Fifth District.
    May 24, 2013.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The State properly concedes that Altman’s convictions for domestic violence battery and battery violate double jeopardy. On remand, the trial court is directed to vacate the conviction for simple battery (Count I).

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

SAWAYA, EVANDER and BERGER, JJ., concur.-

      . §§ 784.03, 741.28, Fla. Stat. (2011).

      . § 784.03, Fla. Stat. (2011).


text:
    Tre Michael NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2894.
    District Court of Appeal of Florida, Fifth District.
    May 24, 2013.

      James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Tre Michael Nelson was charged by information with dealing in stolen property (specifically, jewelry), and entered a negotiated no contest plea, agreeing to pay restitution in an amount to be determined. At the subsequent restitution hearing, the State sought restitution attributable to the jewelry that Nelson pawned, plus additional jewelry stolen from the victim’s home during a burglary that preceded the crime with which Nelson was charged. The trial court ordered restitution for both amounts (a total of $20,000), and Nelson now challenges the restitution order. We reverse.

“[W]hen a defendant agrees to pay restitution as part of a plea agreement, the defendant’s agreement is .limited to restitution arising out of the offense charged by the State as reflected in the information and/or by the factual basis for the plea set forth by the State when the plea is entered.” Malarkey v. State, 975 So.2d 538, 540-41 (Fla. 2d DCA 2008) (citations omitted). Here, Nelson was only charged with dealing in stolen property, and the State’s presentation at the plea hearing was insufficient to link Nelson to the burglary or to place Nelson on notice that it intended to seek restitution from him based upon the burglary. Under these circumstances, the trial court erred in ordering restitution for more than the loss to the victim attributable to the charged crime. Id.

Accordingly, we reverse and remand for a new restitution hearing.

REVERSED AND REMANDED.

TORPY, LAWSON and JACOBUS, JJ., concur.

      . From our review of the record, it appears that the State established restitution linked to the charged crime as follows: $385 paid to the pawn shop to secure return of the sold items that were recovered; $600 for a gold ring setting that was melted down and not recoverable; $4,300 for the diamond removed from the gold ring setting prior to its sale to the pawn shop; and, an unknown amount for other gold jewelry melted down and not recoverable.


text:
    R.N., Mother of A.N., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D13-244.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2013.
    Heather Morcroft, Longwood, for Appellant.
    Deborah Anne Schroth, of Dept, of Children & Families, Jacksonville, for Appel-lee.
    Wendie Michelle Cooper, Tavares, for Guardian ad Litem.
   PER CURIAM.

R.N., the mother of A.N., a dependent child, attempts to appeal an order, entered after an evidentiary hearing, that amended her case plan to include the single goal of adoption and directed the Department of Children and Families to file a petition for termination of parental rights. She argues the trial court erred when it denied her request to close the dependency case with a permanent guardianship to the child’s custodian, the grandmother. Although this proceeding was filed as a direct appeal, the challenged order is neither a final order nor an appealable, non-final order pursuant to Florida Rule of Appellate Procedure 9.110. See In re M.V.-B., 19 So.3d 381, 385 (Fla. 2d DCA 2009) (holding that “orders entered in dependency proceedings after the entry of the order adjudicating dependency and before an order terminating supervision or jurisdiction are not appealable” non-final orders); D.G. v. Dep’t of Children & Families, 16 So.3d 972, 973 (Fla. 3d DCA 2009) (same). Accordingly, we will treat the appeal as a timely filed petition for writ of certiorari. See Fla. R.App. P. 9.040(c); S.H. v. Dep’t of Children & Families, 950 So.2d 1267, 1268 (Fla. 5th DCA 2007) (treating mother’s appeal from a non-final dependency order that was not appealable as petition for writ of certiorari). Finding no departure from the essential requirements of the law, we deny the Petition.

PETITION DENIED.

GRIFFIN, COHEN and BERGER, J.J., concur.


text:
    Andres LIENS, Petitioner, v. DHL HOLDINGS/GLOBAL BUSINESS SERVICES and Sedgwick CMS, Inc., Respondents.
    No. 1D12-5968.
    District Court of Appeal of Florida, First District.
    May 30, 2013.
    Christopher Graver of the Law Office of Christopher Graver, PLLC, Miami, for Petitioner.
    Kimberly J. Fernandes of Kelley, Kro-nenberg, Gilmartin, Fichtel, Wander, Bam-das, Eskalyo & Dunbrack, P.A., Tallahassee, for Respondents.
   PER CURIAM.

The appeal in this case is treated as a Petition for Writ of Certiorari and is denied on the merits.

PADOVANO, WETHERELL, and SWANSON, JJ„ concur.


text:
    ASSET RECOVERY CENTER INVESTMENTS, LLC, Appellant, v. ESTATE OF Charles HOSSAIRATI, Appellee.
    No. 5D11-3116.
    District Court of Appeal of Florida, Fifth District.
    May 31, 2013.
    Jack R. Reiter of Carlton Fields, P.A., Miami, for Appellant.
    Nicholas A. Shannin of The Shannin Law Firm, P.A., and Roger D. Moss, Jr., of Zimmerman, Kiser & Sutcliffe, P.A., Orlando, for Appellee.
   PER CURIAM.

We conclude that the trial court abused its discretion in denying Appellant’s motion for rehearing, which established excusable neglect by Appellant’s counsel in failing to appear at the summary judgment hearing and failing to file a counter-affidavit. The late-filed affidavit creates an issue of material fact precluding summary judgment. Marco Surfside, Inc. v. Velez, 438 So.2d 911 (Fla. 3d DCA 1983).

REVERSED and REMANDED.

GRIFFIN, TORPY and JACOBUS, JJ., concur.


text:
    HRGS, INC., Ron Van Der Kuijl, et al., Appellant, v. Vincent GOODWIN, Lovery Goodwin, et al., Appellee.
    No. 5D11-3651.
    District Court of Appeal of Florida, Fifth District.
    May 31, 2013.
    A. Anthony Giovanoli, A. Anthony Giova-noli, P.A., Winter Park, and John W. Zie-linski, NeJame Law, NeJame, Lafay, Jan-cha, Ahmed, Barker, Joshi & Moreno, P.A., Orlando, for Appellant.
    Edward P. Jordan II, of Edward P. Jordan II, P.A., Clermont, for Appellees, Edward P. Jordan II, Esq., and Edward P. Jordan, II, P.A.
    E. Dusty Aker, Aker Law Firm, P.A., Sarasota, for Appellees, Kenneth T. Lester, Sr., Kenneth T. Lester, Jr., and Rodolfo Olea.
    No appearance for Appellees, Vincent Goodwin and Lovery Goodwin.
   PER CURIAM.

We affirm the trial court’s denial of an award of attorney’s fees to Appellants as we find no abuse of the court’s discretion. See T &W Developers, Inc. v. Salmonsen, 31 So.3d 298, 301 (Fla. 5th DCA 2010). However, we reverse the trial court’s order denying Appellants an award of costs. See Wolfe v. Culpepper Constructors, Inc., 104 So.3d 1132, 1137 (Fla. 2d DCA 2012); Granoff v. Seidle, 915 So.2d 674, 677 (Fla. 5th DCA 2005). On remand, the trial court shall award Appellants their reasonable, taxable costs.

AFFIRMED in part; REVERSED in part; REMANDED.

ORFINGER, C.J., GRIFFIN and SAWAYA, JJ., concur.


text:
    Daniel MYZEL, Appellant, v. Paulette MYZEL, Appellee.
    No. 5D12-2393.
    District Court of Appeal of Florida, Fifth District.
    May 31, 2013.
    Bradford Petrino, of Korshak & Associates, P.A., Casselberry, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

We affirm the trial court’s Final Order of Summary Administration, without prejudice to Daniel Myzel seeking relief from judgment in the trial court.

AFFIRMED.

SAWAYA, PALMER and EVANDER, JJ., concur.


text:
    Daniel Michael SWITZER, Petitioner, v. Lindsey Nicole SWITZER, Respondent.
    No. 5D13-1487.
    District Court of Appeal of Florida, Fifth District.
    May 31, 2013.
    William S. Graessle of William S. Graes-sle, P.A., Jacksonville, and Carol A. Caldwell, St. Augustine, for Petitioner.
    Melissa Kauttu of Mulligan & Kauttu, P.L., St. Augustine, for Respondent.
   JACOBUS, J.

Daniel Michael Switzer seeks certiorari review of an emergency injunction entered that prevents him from moving to a new residence with his minor child. The trial court first entered an oral order that prohibited Mr. Switzer from moving to a new residence that is forty-two miles away from his current residence, which he must vacate due to the termination of his lease. This Court ordered the trial court to enter a written order. The written order has been entered; however, the trial court did not make any of the requisite findings necessary for a temporary injunction.

It is well-settled that a party seeking a temporary injunction must demonstrate that: (1) there is a likelihood of irreparable harm and the unavailability of an adequate remedy at law; (2) the petitioner has a substantial likelihood of success on the merits; (8) the threatened injury to the petitioner outweighs any possible harm to the respondent; and (4) the granting of the temporary injunction will not disserve the public interest. Dragomirecky v. Town of Ponce Inlet, 882 So.2d 495, 497 (Fla. 5th DCA 2004); see also Fla. High Sch. Activities Ass’n. v. Kartenovich, 749 So.2d 1290, 1291 (Fla. 3d DCA 2000). In the present case, the trial court made no findings of fact confirming that the respondent satisfied each of the temporary injunction requirements.

Accordingly, we grant the petition for certiorari, and vacate the May 26, 2013 order that prohibits Mr. Switzer from moving to a new residence with his minor child.

GRANT CERTIORARI, QUASH ORDER.

GRIFFIN and SAWAYA, 33., concur.


text:
    Marty INGRAM, Appellant, v. Mary Peters INGRAM, Appellee.
    No. 1D12-5732.
    District Court of Appeal of Florida, First District.
    June 3, 2013.
    Aaron N. Bauldree, Tallahassee, for Appellant.
    Russell S. Roberts of Roberts, Roberts & Roberts, Marianna, for Appellee.
   PER CURIAM.

Marty Ingram (the former husband) raises three issues on appeal from the trial court’s denial of his motion for relief from judgment and for rehearing, which he filed in response to the trial court’s judgments granting appellee, Mary Peters Ingram (the former wife), attorney’s fees and costs. We find that one of the Former Husband’s issues has merit, and reverse and remand without addressing his other claims of error.

After granting the Former Wife’s motion for rehearing to further consider the issue of her attorney’s fees, the trial court stated that it would allow her counsel ten days from the date of the rehearing in which to file documentation as to his hourly rate, hours expended on the case, as well as an affidavit from an expert attesting to the reasonableness of the requested fees. The trial court provided that after the Former Wife’s materials were filed, the Former Husband would be provided ten days to respond.

The Former Wife filed the referenced documentations and furnished copies of the same to counsel for the Former Husband by e-mail on September 25, 2012. On October 4, 2012, the trial court issued two judgments, one granting the Former Wife $2,500 for trial level attorney’s fees and the other granting her $5,034 for appellate level fees and costs incurred as a result of an earlier appeal of the trial level fees award. The trial court denied appellant’s subsequent motion for relief from judgment and for rehearing, which argued, in part, that the trial court erred by entering the judgments before appellant’s time to respond had expired. This timely appeal ensued.

Under Florida law, when computing a length of time, measured in days, specified by court order, the day triggering the term must be excluded and every day of the term should be counted, including Saturdays, Sundays, legal holidays, and the last day of the term. Rule 2.514(a)(1), Fla. R. Jud. Admin. (2012). Five days are added to a period calculated under Rule 2.514(a) when a party must act after being served and service is executed by mail or e-mail. Rule 2.514(b), Fla. R. Jud. Admin.

Applying Rule 2.514(a)(1), ten days from September 25, 2012 would be October 5, 2012. Adding an additional five days, pursuant to Rule 2.514(b), establishes the last day the Former Husband could respond as October 10, 2012. While the date stamps on the judgments reflect that they were filed with the clerk of court on October 5, 2012, the orders were signed by the trial court on October 4, 2012. Whether the Former Husband’s opportunity to respond ran until October 5 or October 10, the trial court’s judgments executed on October 4 were plainly premature and contradict its own directive.

Accordingly, we REVERSE the judgments for appellee and REMAND for further proceedings consistent with this opinion.

VAN NORTWICK, THOMAS, and ROBERTS, JJ., concur.


text:
    Lloyd WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0773.
    District Court of Appeal of Florida, First District.
    June 3, 2013.
    Lloyd Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the May 15, 2012, judgment and sentence, in Alachua County Circuit Court case number 01-201 l-CF-000438A. 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. RApp. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

BENTON, C.J., WETHERELL and ROWE, JJ., concur.


text:
    Jessamyn SANDERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0976.
    District Court of Appeal of Florida, First District.
    June 3, 2013.
    Jessamyn Sanders, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the judgment and sentence in Duval County Circuit Court case number 16-2012-CF-000582-AXXX-MA. 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.

PETITION GRANTED.

BENTON, C.J., RAY and MAEAR, JJ., concur.


text:
    STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Bryan WARREN, Respondent.
    No. 1D13-1787.
    District Court of Appeal of Florida, First District.
    June 3, 2013.
    Stephen D. Hurm, General Counsel, and Jason Helfant, Assistant General Counsel, Florida Department of Highway Safety and Motor Vehicles, Lake Worth, for Petitioner.
    Rhonda F. Goodman, P.A., Miami, for Respondent.
   PER CURIAM.

This court’s certiorari jurisdiction was not timely invoked and the petitioner failed to seek the entry of a new, appealable order with the trial court prior to filing the instant untimely petition. See Hollingsworth v. Szczecina, 731 So.2d 790 (Fla. 1st DCA 1999); Brown v. State, 708 So.2d 1041 (Fla. 1st DCA 1998); Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983).

PETITION DISMISSED.

BENTON, C.J., WETHERELL and ROWE, JJ., concur.


author: CLARK, J.

text:
    Stephen MILTON, Former Husband, Appellant, v. Julianna MILTON, Former Wife, Appellee.
    No. 1D13-0310.
    District Court of Appeal of Florida, First District.
    June 5, 2013.
    Nick James and Paul H. Green, Jr., of Hunt, Green, and James, P.A., Jacksonville, for Appellant.
    No appearance for Appellee.
   CLARK, J.

In this appeal, Stephen Milton seeks review of a trial court order which did not hold Julianna Milton in contempt of court or otherwise order the return of the couple’s minor child to the State of Florida. He argues three grounds for reversal of the trial court’s order. We find merit in one — that the trial court erred by permitting Mrs. Milton to keep the minor child in New York.

He first argues the trial court was required to order make-up timeshar-ing and hold Mrs. Milton in contempt for her willful violation of a time-sharing agreement between the parents. There is nothing that requires a trial court to hold a person in contempt; the court’s determination in this regard is reviewed for abuse of discretion. Nunes v. Nunes, 112 So.3d 696 (Fla. 4th DCA 2018). Given the record before us, we cannot say it was an abuse of discretion to not hold Mrs. Milton in contempt. See Cummings v. Cummings, 723 So.2d 898, 899 (Fla. 4th DCA 1998) (order of make-up time does not necessitate holding party in contempt).

Second, Mr. Milton sought to end the parties’ time-sharing agreement by affirmatively seeking dissolution of the 2008 temporary injunction which contained it— this was the only document which contained any agreement between the parties as to timesharing. Thus, when the trial court dissolved the temporary injunction, the slate was clean and the trial court was bound to make a best interests determination and take evidence concerning a new time-sharing arrangement. Delivorias v. Delivorias, 80 So.3d 352, 356 (Fla. 1st DCA 2011) (acknowledging “the hallowed doctrine that before modifying custody temporarily or ordering any other type of makeup time-sharing, a trial court must consider the child’s best interests”). Mr. Milton’s argument that the trial court erred by modifying an existing time-sharing agreement without proper notice is therefore without merit. Once dissolved, the court did not modify an existing agreement; it was left to create one anew. Further, Mr. Milton invited the trial court to dissolve the injunction and put himself in the predicament of being without a valid time-sharing arrangement.

With this the situation, it was incumbent upon the trial court to properly notice and take evidence on the best interests of the child before ordering the statutorily required make-up time or determining a new time-sharing arrangement. Id. at 356; cf. Cheek v. Hesik, 73 So.3d 340, 343-44 (Fla. 1st DCA 2011) (acknowledging no competent, substantial evidence of best interests existed to support order of make-up time that neither party sought nor argued for and which mandated a drastic and disruptive make-up plan).

As to Mr. Milton’s final issue regarding Mrs. Milton’s relocation of the minor child to New York, however, we reverse. This Court reviews relocation determinations for abuse of discretion; however, ' the question of whether the trial court properly applied the relocation statute is a matter of law, reviewed de novo. Raulerson v. Wright, 60 So.3d 487, 489 (Fla. 1st DCA 2011). Here, Mr. Milton relies on section 61.13001, Florida Statutes, and Raulerson, to assert that because Mrs. Milton did not comply with section 61.13001, the trial court erred in permitting the child’s relocation, even if temporary. He is correct.

Section 61.13001(3)(a) unambiguously requires that, absent agreement of both parents, a parent wishing to relocate file a petition and the petition be served on the other parent. § 61.13001(3), Fla. Stat. Only where the relocating parent files a proper petition may the court order temporary relocation pending final determination. § 61.13001(6)(b). This Court has previously made clear that these requirements are unambiguous and are “a clear statutory mandate.” Raulerson, 60 So.3d at 490; see also Rivero v. Rivero, 111 So.3d 233 (Fla. 4th DCA Apr.10, 2013).

Here, there was no such agreement or petition. And, Mrs. Milton does not contest that she and the child relocated to New York. Accordingly, she is subject “to contempt and other proceedings to compel the return of the child”; additionally, the court may grant other relief, including restraining relocation or ordering the child’s return. § 61.13001(3)(e), (6)(a), Fla. Stat. Therefore, the trial court erred in permitting the minor child’s temporary relocation pending final determination. See Rauler-son, 60 So.3d at 490.

That said, the parties were not prepared to have a full hearing on the best interests of the child — a necessary consideration to the relocation question, which takes into account certain statutorily specified factors. § 61.18001(7), Fla. Stat.; Conners v. Mullins, 27 So.3d 199, 200 (Fla. 1st DCA 2010). Like in Raulerson, Mr. Milton limited his argument at the hearing to the permissibility of Mrs. Milton’s relocation without following the statutory requirements. It is clear she did not follow the requirements and Mr. Milton was thus entitled to some relief — what relief, exactly, is not mandated by statute and is a matter of the trial court’s discretion. We do not pass on what the exact specifications of the trial court’s order on remand should be.

“[W]e recognize the difficulty faced by the trial court in crafting a remedy that provides meaningful makeup time-sharing for an out-of-state father where the record reflects that the mother has refused to comply with court orders and has shown little to no interest in the child having a relationship with his father.” Cheek, 73 So.3d at 345. Nevertheless, “before ordering a temporary change of custody or any other type of makeup time-sharing, the trial court was required to consider the best interests of the child.” Id.; see also Conners, 27 So.3d at 200 (explaining that on remand the trial court need not consider “whether [it] would have permitted the relocation in the first place but whether the actual relocation was in the child’s best interests pursuant to the factors set forth in section 61.13001(7)”).

Accordingly, the case is remanded to accomplish what the trial court had already begun before this appeal. After taking evidence on the best interests of the child, the trial court may appropriately order relief for Mrs. Miltons unauthorized relocation and on Mr. Miltons specific entitlement to make-up time. This will also be necessary before creation of a final time-sharing agreement and the ultimate dissolution of the parties marriage. We encourage the trial court to promptly set this case for a status conference and determine these pending matters as expeditiously as possible.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

BENTON, C.J. and THOMAS, J., concur.

      . Mrs. Milton also appears to be in violation of the trial court’s Standing Order, which prohibits a minor child’s relocation during the pendency of proceedings. This would further subject her to possible contempt proceedings.


author: VAN NORTWICK, J. WETHERELL, J.,

text:
    Eugene JACOBSON, Appellant, v. SOUTHEAST PERSONNEL LEASING, INC./Packard Claim Administration, Inc., Appellees.
    No. 1D12-1103.
    District Court of Appeal of Florida, First District.
    June 5, 2013.

      Michael J. Winer of the Law Office of Michael J. Winer, P.A., Tampa, and Paul M. Hawkes, Tallahassee, for Appellant.
    Jeffrey E. Appel of the Appel Law Group, Lakeland, for Florida Workers’ Advocates, Amicus Curiae in support of Appellant.
    Vanessa J. Johnson of Sponsler, Bennett, Jacobs & Adams, P.A., Tampa, for Appellees.
   VAN NORTWICK, J.

In this workers’ compensation appeal, Claimant Eugene Jacobson appeals orders of the Judge of Compensation Claims (JCC) that grant, in part, the Employer/Carrier’s (E/C’s) motion to tax costs against him under section 440.34(3), Florida Statutes (2007), and deny Claimant’s motion to approve a retainer agreement between him and Michael J. Winer, under which Winer would have provided legal services to Claimant limited to representation in the defense to oppose the E/C’s motion to tax costs. Claimant challenges the constitutionality of sections 440.105(3) (c) and 440.34 insofar as these sections preclude him from contracting for legal services to defend against the E/C’s motion to tax costs. We conclude to the extent that sections 440.34 and 440.105(3)(c), Florida Statutes, prohibit Claimant from retaining counsel to defend a motion to tax costs against him, those statutes infringe upon Claimant’s constitutional rights under the First Amendment of the Constitution. Accordingly, as applied here, sections 440.34 and 440.105(3)(c) are unconstitutional. For the reasons set forth herein, we reverse the orders of the JCC, and remand for a new hearing on the motion to tax costs and motion to approve a retainer. On remand, the JCC has the authority to determine whether the proposed fee is reasonable.

Legal Background

Under section 440.105(3)(c), Florida Statutes (2007), an attorney may be guilty of a first-degree misdemeanor if the attorney receives payment for work relating to a workers’ compensation case, unless the payment is approved by a JCC. The statute provides: “It is unlawful for any attorney or other person ... to receive any fee or other consideration or any gratuity from a person on account of services rendered for a person in connection with any proceedings arising under this chapter, unless such fee, consideration, or gratuity is approved by a[JCC],...” Even though the plain language of this subsection does not limit its application only to attorneys representing claimants, it has long been interpreted as such in practice. See Altstatt v. Fla. Dep’t of Agric., 1 So.3d 1285, 1286 (Fla. 1st DCA 2009) (“We find it unnecessary to decide whether the legislature intended section 440.105(3)(c) to apply to requests for payments made by attorneys representing employers, carriers and servicing agents, as well as to those made by attorneys representing claimants.”).

Section 440.34, Florida Statutes (2007), generally governs attorney’s fees and costs in the workers’ compensation context. Notably, section 440.34(1) limits a JCC’s ability to approve a fee, as follows:

A fee, gratuity, or other consideration may not be paid for a claimant in connection with any proceedings arising under this chapter, unless approved as reasonable by the [JCC] or court having jurisdiction over such proceedings. Any attorney’s fee approved by a[JCC] for benefits secured on behalf of a claimant must equal to 20 percent of the first $5,000 of the amount of the benefits secured, 15 percent of the next $5,000 of the amount of the benefits secured, 10 percent of the remaining amount of the benefits secured to be provided during the first 10 years after the date the claim is filed, and 5 percent of the benefits secured after 10 years. The [JCC] shall not approve a compensation order, a joint stipulation for lump-sum settlement, a stipulation or agreement between a claimant and his or her attorney, or any other agreement related to benefits under this chapter that provides for an attorney’s fee in excess of the amount permitted by this section. The [JCC] is not required to approve any retainer agreement between the claimant and his or her attorney. The retainer agreement as to fees and costs may not be for compensation in excess of the amount allowed under this section.

Section 440.34(2) begins, “[i]n awarding a claimant’s attorney’s fee, the judge of compensation claims shall consider only those benefits secured by the attorney.” In Kauffman v. Community Inclusions, Inc., 57 So.3d 919 (Fla. 1st DCA 2011), this court held there is no significant difference between fees “awarded” and fees “approved.” Further, section 440.34(3), which once permitted only prevailing claimants (not E/Cs) to tax costs against the nonpre-vailing party, was amended as of October 1, 2003, to permit “any party” that had prevailed in a workers’ compensation matter to tax costs against the nonprevailing party. Thus, for the first time in the history of the Workers’ Compensation Law, chapter 440 exposes claimants to liability for prevailing-party costs for routine claims. See § 440.34(3), Fla. Stat. (2007); Ch. 03^412, § 26, at 3944, Laws of Fla. In the case under review, the E/C was the prevailing party. The only issues pending are the E/C’s motion to tax costs against Claimant and the Claimant’s motion seeking approval of payment to counsel to defend the E/C’s motion.

Factual and Procedural Background

Claimant suffered a compensable work accident on September 4, 2007, injuring his neck and back. As a result, he underwent surgery, a cervical spine fusion. Doctors recommended another surgery to repair a herniated cervical disk. In 2010, the JCC denied both continued compensability of Claimant’s low back condition and permanent total disability (PTD) benefits, finding Claimant (i) did not prove the compensable accident remained the major contributing cause of his current back condition or need for treatment and (ii) did not prove he cannot perform at least sedentary employment within fifty miles of his home.

Subsequently, the E/C filed a motion to tax costs against Claimant pursuant to section 440.34(3), alleging it had prevailed on every issue addressed in the 2010 order denying benefits. Shortly thereafter, Claimant’s counsel withdrew on the grounds that “it is no longer economically viable for the undersigned to continue representation of the claimant in this case.” Claimant then retained counsel Winer. On Claimant’s behalf, Winer filed a response to the E/C’s motion to tax costs. Claimant and Winer also sought approval of an hourly retainer agreement, “for services and advice solely on issues that arise as a result of the Verified Motion to Tax Costs against Claimant” at the rate of $175 per hour. In his motion, Claimant argued that there is a genuine question as to whether a reduction in costs and representation at a cost hearing is a “benefit secured” to Claimant under chapter 440; that such a fee would not violate section 440.34(1), Florida Statutes, because it is being paid “by the claimant and not for the claimant”; and that denying approval would violate Claimant’s constitutional rights.

At the hearing on the motion for approval, Claimant testified he had no legal training, background or experience; a representative of Claimant’s former counsel’s firm testified that the firm withdrew from representation because of the inability to recover its costs for the time it had put in, and he knew of no other attorneys who could afford such a situation; and Winer testified his requested fee was below market value and no attorney would take Claimant’s case without an hourly retainer. The JCC denied the motion to approve the retainer agreement, ruling that chapter 440 prohibited her from approving an hourly fee under such circumstances. Winer then withdrew as Claimant’s counsel of record.

Claimant appeared at the cost hearing pro se and, after the hearing, the JCC awarded the E/C $17,145.76 in costs. On appeal, Claimant argues (1) there is reversible error in the cost award; (2) the JCC erred in reading section 440.34 to preclude, as a matter of law, approval of the retainer agreement at issue; (3) the JCC’s ruling violates Claimant’s First Amendment rights to free speech, freedom of association, and the right to petition the government for redress and, as a result, infringes on Claimant’s right to contract for legal counsel; and (4) the JCC’s ruling violates both the separation of powers doctrine and various personal rights under the Florida Constitution, including the rights to due process, equal protection, privacy, and access to courts.

The Cost Award

Claimant alleges errors regarding three line items in the award of costs to the E/C. Whether we agree with Claimant is not dispositive of the issue, because our constitutional analysis set forth below requires a new hearing on the E/C’s motion to tax costs. We note, however, that, on remand, the JCC should consider Marton v. Florida Hospital Ormond Beach, 98 So.3d 754, 754 (Fla. 1st DCA 2012), published only after the JCC entered her final order on the motion to tax costs.

Statutory Interpretation

As an alternative to his constitutional argument, Claimant suggests that this court read section 440.34(1) in such a way as to avoid reaching constitutional questions. Such a goal is indeed desirable. Murray v. Mariner Health, 994 So.2d 1051, 1057 (Fla.2008) (“ ‘[Wjherever possible, statutes should be construed in such a manner so as to avoid an unconstitutional result.’ ”) (quoting State v. Jefferson, 758 So.2d 661, 664 (Fla.2000)). We find, however, that no reading of the applicable statutes will satisfy this goal. Claimant suggests that we read the first sentence of section 440.34(1) — specifically the phrase indicating a ,fee may not be paid “for a claimant” — as applying only to E/C-paid claimant-attorney fees. We reject this reading for. three reasons. First, the phrase does not inherently exclude a claimant’s paying a fee “for himself,” that is, on his own behalf. Second, the phrase seems to be a mere artifact of the prior version of section 440.34(1), which read, “[a] fee, ... may not be paid for services rendered for a claimant....” Third, the Florida Supreme Court seemingly foreclosed any argument that section 440.34(1) is limited to E/C-paid fees when it stated in Murray that “subsection (3) pertains specifically to attorney fees which a claimant is entitled to be awarded against the E/C” and “[sjubsection (1), on the other hand, covers attorney fees generally” and “the specific subsection (3) controls over the general subsection (1) when subsection (3) is applicable.” 994 So.2d at 1061.

Constitutionality

We conclude there is a violation of Claimant’s rights under the federal Constitution; accordingly, we decline to address the claims asserted under the Florida Constitution. The First Amendment of tlie United States Constitution states in full:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Although the amendment does not use the word “association,” the right to freedom of association has grown from the rights “to peaceably assemble” and to enjoy freedom of speech. See Eccles v. Nelson, 919 So.2d 658, 661 (Fla. 5th DCA 2006). Further, although the wording of the amendment specifies the right to petition is “to petition the Government for a redress of grievances,” jurisprudence is clear that the right includes petitions of private actors seeking personal gain. See, e.g., E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 138-39, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961).

First Amendment rights are undoubtedly fundamental. State v. J.P., 907 So.2d 1101, 1109 (Fla.2004) (holding right is fundamental if it “has its source in and is explicitly guaranteed by the federal or Florida Constitution”). Therefore, we apply strict scrutiny to section 440.34, regarding its effect on these First Amendment rights when taken in conjunction with section 440.105(3)(e). Notably, these three rights may be analyzed together because they, “though not identical, are inseparable.” NAACP v. Clairborne Hardware Co., 458 U.S. 886, 911, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) (quoting Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 89 L.Ed. 430 (1945)).

To survive strict scrutiny, a law “[a] must be necessary to promote a compelling governmental interest and [b] must be narrowly tailored to advance that interest,” and “[c] accomplishes its goal through the use of the least intrusive means.” J.P., 907 So.2d at 1110. We view the “speech” at issue not as the attorney’s solicitation of a potential client, which would perhaps be subject to a slightly different analysis as commercial speech (subject to less constitutional protection than non-commercial speech). See Florida Bar v. Went For It, Inc., 515 U.S. 618, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995); see also Atwater v. Kortum, 95 So.3d 85 (Fla.2012) (holding statutory limitation on public adjusters’ commercial speech to be unconstitutional). The speech at issue here is Claimant’s own words — given voice through his attorney — spoken or written before the court in his defense during litigation. Further, the rights to assembly and petition are implicated in this respect because they are “cognate rights.” See Claiborne Hardware, 458 U.S. at 911, 102 S.Ct. 3409. Finally, all three rights are implicated because the right to hire an attorney stems from these three enumerated rights. See United Mine Workers of Am., Dist. 12 v. Ill. State Bar Ass’n, 389 U.S. 217, 221-22, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967) (“We hold that the freedom of speech, assembly, and petition guaranteed by the First and Fourteenth Amendments gives petitioner the right to hire attorneys on a salary basis to assist its members in the assertion of their legal rights.”).

The governmental interests suggested to be the basis of the legislation at issue here include the regulation of attorney’s fees in general, as described in Somaha v. State, 389 So.2d 639, 640 (Fla.1980); lowering the overall cost of the workers’ compensation system, as described in Acosta v. Kraco, Inc., 471 So.2d 24 (Fla.1985) (mentioning state interests of “reducing fringe benefits to reflect productivity declines associated with age, ... and reducing workers’ compensation premiums” as well as “preventing] double dipping” into both wage-loss benefits and social security retirement benefits); and protecting injured workers who are of relatively limited financial means, as described in Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So.2d 506, 510 (Fla. 1st DCA 2006). Regarding the first suggested governmental interest, regulation of attorney’s fees in general, we conclude that Lundy, Samaha, and Khoury v. Carvel Homes South, Inc., 403 So.2d 1043, 1045 (Fla. 1st DCA 1981), all relate the general interest in regulating fees specifically to the state’s interest in protecting the amount of benefits secured by an injured worker under chapter 440 from depletion to pay a lawyer’s bills. Accordingly, it is not evident from case law that these fee regulations represent a general interest in “regulating attorney’s fees.”

Regarding the second suggested governmental interest, lowering the cost of workers’ compensation premiums, this interest is not implicated in the instant case because it is Claimant, not the E/C, who would pay the fee implicated by the legal work at issue here — defending against the E/C’s motion to tax costs. Thus, premiums charged by insurers would be unaffected.

Regarding the third suggested governmental interest, protecting the body of workers’ compensation benefits from depletion, there can be no depletion of benefits where there are no benefits. A successful defense against an E/C’s motion to tax costs does not constitute “benefits secured.” After the 2003 amendment to section 440.34(3), where a claimant who loses all claims is liable for the E/C’s costs, the ultimate source of any claimant-paid attorney’s fee is never the E/C and the legal work done is paid for by a claimant from a source other than “benefits secured.” Consequently, these statutes do not survive strict scrutiny.

We recognize that an exception to strict scrutiny review exists for laws that permissibly restrict the time, place, or manner of the exercise of the rights to free speech, association, and petition; such laws must (a) be content-neutral, (b) be narrowly tailored to serve a significant (rather than “compelling”) governmental interest, and (c) leave open alternative channels of communication. See, e.g., Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (holding National Park Service regulation, prohibiting camping in certain parks, did not violate First Amendment even though applied to protestors bringing attention to plight of homeless people, but was either reasonable time, place, and manner restriction or regulation of symbolic conduct); 421 Northlake Blvd. Corp. v. Village of N. Palm Beach, 753 So.2d 754 (Fla. 4th DCA 2000) (holding zoning ordinance, restricting location of adult nude dancing establishments, is constitutional as reasonable restriction on exercise of First Amendment right to free speech). Reasonable time, place, and manner restrictions are not subject to (or are exempt from) strict scrutiny because they need not be the least intrusive means of achieving the desired end. See Ward v. Rock Against Racism, 491 U.S. 781, 797, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (reviewing content-neutral volume ordinance to determine whether it was narrowly tailored to serve legitimate government interest and leaves open alternative channels of communication); DA Mortgage, Inc. v. City of Miami Beach, 486 F.3d 1254 (11th Cir.2007) (same); Montgomery v. State, 69 So.3d 1023 (Fla. 5th DCA 2011) (same).

We conclude that sections 440.105(3)(c) and 440.34 do not constitute reasonable time, place, or manner restrictions on Claimant’s First Amendment rights to free speech, free association, and petition for redress. There is no significant governmental interest being served, because there is no “benefit secured” associated with the fees at issue in this case and, thus, no need to protect such from depletion. Moreover, the legislation is not content-neutral. “The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” Ward, 491 U.S. at 791, 109 S.Ct. 2746. The fee restrictions at issue here are not content-neutral, both because they are limited to work done on workers’ compensation issues as opposed to other areas of law, and because they are imposed only on claimants arguing in defense against an E/C’s motion to tax costs, rather than on both parties’ arguments regarding a motion to tax costs.

The legal test regarding the right to contract is similar. The right to contract for legal services emanates from the First Amendment; the United States Supreme Court has stated, “We hold that the freedom of speech, assembly, and petition guaranteed by the First and Fourteenth Amendments gives petitioner the right to hire attorneys on a salary basis to assist its members in the assertion of their legal rights.” United Mine Workers, 389 U.S. at 221-22, 88 S.Ct. 353 (vacating judgment enjoining union from hiring salaried attorney to assist members in assertion of legal rights with respect to workers’ compensation claims). “[United Mine Workers ] supports the proposition that laypersons have a right to obtain meaningful access to the courts, and to enter into associations with lawyers to effectuate that end.” Lawline v. Am. Bar Ass’n, 956 F.2d 1378, 1387 (7th Cir.1992). Like the First Amendment rights to freedom of speech, assembly, and petition, the right to contract for legal services is a fundamental right, implicating strict scrutiny. See Palm Beach Mobile Homes, Inc. v. Strong, 300 So.2d 881, 884 (Fla.1974) (holding section 83.271, regulating grounds for eviction from mobile home parks, is not unconstitutional violation of contract rights). The right to contract is substantively different from other First Amendment rights, however, because it is a property right.

As a property right, the right to contract has a different exception: it is subject to “reasonable restraint” under the police power of the State, the right being “the general rule” and its restraint “the exception to be exercised when necessary to secure the comfort, health, welfare, safety and prosperity of the people.” Golden v. McCarty, 337 So.2d 388, 390 (Fla.1976) (holding section 877.04, Florida Statutes, restricting who may perform tattooing, is constitutionally valid) (quoting Strong, 300 So.2d at 884). “There is no settled formula for determining when the valid exercise of police power stops and an impermissible encroachment on private property rights begins.” Graham v. Estuary Props., Inc., 399 So.2d 1374, 1380 (Fla.1981) (reviewing decision to deny approval for development of wetland). Nonetheless, the Florida Supreme Court has listed factors which have been considered in such an inquiry:

1. Whether there is a physical invasion of the property.
2. The degree to which there is a diminution in value of the property. Or stated another way, whether the regulation precludes all economically reasonable use of the property.
3. Whether the regulation confers a public benefit or prevents a public harm. ■ •
4. Whether the regulation promotes the health, safety, welfare, or morals of the public.
5. Whether the regulation is arbitrarily and capriciously applied.
6. The extent to which the regulation curtails investment-backed expectations.

Id. at 1380-81. Some of these factors, admittedly, apply to physical property to determine whether governmental action is a taking (an exercise of eminent domain, which under the Fifth Amendment requires compensation) or instead an exercise of police power. Further* regarding factor 3, our supreme court has observed, “[i]f the regulation creates a public benefit it is more likely an exercise of eminent domain, whereas if a public harm is prevented it is more likely an exercise of the police power.” Id. at 1381. Factors 4 and 5, however, easily extend to consideration of intangible property such as the contract rights here.

We conclude that sections 440.105(3)(c) and 440.34 are not a permissible exercise of the State’s police power to restrict Claimant’s First Amendment right to contract for legal services to defend against an E/C’s motion to tax costs. The analysis of the application of the Graham factors 3, 4 and 5 changed when the 2003 amendments for the first time exposed claimants to liability for prevailing-party costs. That is, under factor 3, no public harm is prevented; under factor 4, the regulations here — the .restrictions on claimants’ ability to contract for legal representation to defend against a motion to tax costs — no longer promote the health, safety, welfare, or morals of the public; and under factor 5, their application to this scenario is arbitrary and capricious. See generally City of El Paso v. Simmons, 379 U.S. 497, 85 S.Ct. 577, 13 L.Ed.2d 446 (1965) (noting, in reviewing statute governing forfeiture of public land sale contracts for nonpayment of interest, that Legislature has “wide discretion” in determining what is necessary to protect general welfare of people in association with police power); cf. Yeiser v. Dysart, 267 U.S. 540, 541, 45 S.Ct. 399, 69 L.Ed. 775 (1925) (observing, in reviewing suspension of attorney’s license, that Supreme Court was bound by Nebraska’s supreme court interpretation of Nebraska law restricting workers’ compensation fee; holding restriction did not violate attorney’s right to contract or Fourteenth Amendment due process clause; noting State may condition professional license as necessary “to make it a public good”).

We note that in Dysart v. Yeiser, 110 Neb. 65, 192 N.W. 953 (1923), the Nebraska supreme court held that a statute regu-latí ng “claims or agreements for legal services and disbursements” was a proper exercise of police power, which exercise was both “reasonable” and “in the interest of public welfare” because “a large percentage of the persons who come under the Workmen’s Compensation Act are not possessed of large means.” Id. at 955. Dysart is distinguishable, however, because the statute at issue there did not preclude fees entirely for legal work that could never result in “benefits secured,” as do the statutes at issue in the case before us. See id. at 954. Further, Lundy, 932 So.2d at 510, wherein this court held the 2004 version of section 440.34 (having the same wording as the version of section 440.34 at issue here) “does not offend the right to freely contract,” is distinguishable because it concerned fees payable by the E/C to a claimant rather than claimant-paid fees.

Conclusion

For the above reasons, we conclude that the prohibition on claimant-paid attorney’s fees in sections 440.105(3)(c) and 440.34are unconstitutional, and thus unenforceable, as they apply to cases where the fee is for legal services performed in defense against an E/C’s motion to tax costs. Cf. Garcia v. Andonie, 101 So.3d 339, 347 (Fla.2012) (holding additional element of entitlement to homestead exemption, in section 196.031(1), Florida Statutes, is unenforceable to the extent it limits class of individuals eligible for homestead exemption). Although section 440.105(3)(c) prohibits such attorneys from receiving unapproved fees, section 440.34 does not, under our holding today, preclude a JCC’s approving a fee agreement when a claimant chooses to obtain legal representation to aid in defense against an E/C’s motion to tax costs. Such a fee agreement must nonetheless, like all fees for Florida attorneys, comport with the factors set forth in Lee Engineering & Construction Co. v. Fellows, 209 So.2d 454, 458 (Fla.1968), and codified in the Rules Regulating the Florida Bar at rule 4 — 1.5(b).

REVERSED and REMANDED for further proceedings consistent with this opinion.

WOLF, J., concurs, and WETHERELL, J., concurs with written opinion.

WETHERELL, J.,

concurring.

I agree that sections 440.105(3)(c) and 440.34are unconstitutional as applied here because the statutes had the effect of precluding the claimant from contracting with an attorney to defend the action brought by the E/C to tax its prevailing-party costs against the claimant pursuant to section 440.34(3). The statutes had this effect because 1) even if the attorney was successful in defense of the action to tax costs, the attorney would not have secured any workers’ compensation benefits for the claimant; 2) without any “benefits secured,” there is no basis for the JCC to approve a fee for the claimant’s attorney; and 3) without JCC approval, it is unlawful for the attorney to accept a fee even if (as evinced by the retainer agreement in this case) the claimant wanted to pay the fee. As explained in the majority opinion, no compelling governmental interest is served by this impairment of the claimant’s right to contract.

This does not mean that these statutes are unconstitutional in other circumstances, nor in my view should the majority opinion be construed or applied to reach such a conclusion. Indeed, this Court has consistently rejected constitutional challenges to the statutory limitations on the amount of fees the JCC can award (or approve) under section 440.34 based on the benefits secured for the claimant by the attorney. See, e.g., Kauffman v. Community Inclusions, Inc., 57 So.3d 919, 920-21 (Fla. 1st DCA) (citing cases), rev. denied, 68 So.3d 234 (Fla.2011). I do not read the majority opinion to undermine the continued viability of those decisions or to call into doubt the validity of the statutory limitations on claimant-paid fees generally because the compelling governmental interests that were absent here (see majority opin. at 10-12) are directly implicated in cases where the attorney’s fee is paid by the claimant out of the benefits awarded, or by the E/C. See Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So.2d 506, 510 (Fla. 1st DCA 2006) (rejecting argument that attorney’s fee limits in section 440.34(1) unconstitutionally impair the claimant’s right to contract because the limits “were enacted to protect the public welfare by ensuring that a worker is able to retain a substantial portion of awarded benefits so as to prevent the burden of support for that worker from being cast upon society”), disapproved on other grounds by Murray v. Mariner Health, 994 So.2d 1051 (Fla.2008).

With these observations as to the narrow scope of the holding in this case, I join the majority opinion.


text:
    Reginald ADDISON, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D11-6621.
    District Court of Appeal of Florida, First District.
    June 5, 2013.

      Amanda E. Heystek of Disability Rights Florida, Tampa, for Appellant.
    Michael Palecki, General Counsel, and Jamie Morrow, Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The appellant is a developmentally disabled client of the Agency for Persons with Disabilities (the Agency) receiving services through the Home and Community-Based Service Medicaid waiver program. The appellant originally sought review of a November 15, 2011, final order by the Agency assigning him to tier three of the waiver program (the original final order).

Section 393.0661(3), Florida Statutes, defines four tier levels based upon the nature and extent of a client’s service needs and reads, in part,

(a) Tier one is limited to clients who have service needs that cannot be met in tier two, three, or four for intensive medical or adaptive needs and that are essential for avoiding institutionalization, or who possess behavioral problems that are exceptional in intensity, duration, or frequency and present a substantial risk of harm to themselves or others....

Each tier carries an expenditure limit. At the time of the appellants assignment in 2010, tier one had an annual spending cap of $150,000, and tier three had an annual spending cap of $35,000. In 2011, the expenditure limits were reduced. The spending cap of tier three was reduced to $34,125 per client each year. See § 393.0661(3)(c), Fla. Stat. (2011).

The Agency’s rule for tier assignments reads, in part,

(1) The Tier One Waiver is limited to clients that the Agency has determined meet at least one of the following criteria:
(a) The client’s needs for medical or adaptive services are intense and cannot be met in Tiers Two, Three, and Four and are essential for avoiding institutionalization, or
(b) The client possesses behavioral problems that are exceptional in intensity, duration, or frequency with resulting service needs that cannot be met in Tiers Two, Three, and Four, and the client presents a substantial risk of harm to themselves or others.
* * *
(4) Clients who meet the criteria in subsection (1), and their needs cannot be met in Tier Two, Tier Three or Tier Four, shall be assigned to the Tier One Waiver. The following services as defined in the DD Handbook, if approved through the Agency’s prior authorization process, will be used as the primary basis for making an assignment or determining whether a tier change to Tier One is required....

Fla. Admin. Code R. 65G-4.0027. Rule 65G-4.0027(4)(a)-(q) goes on to list 17 particular services including personal care assistance and behavior assistant services.

The appellant’s primary diagnosis was mental retardation. His other diagnoses included, among others: paranoid schizophrenia, paranoid delusional, and explosive behavior disorder. The appellant’s 2010-2011 cost plan contained the following approved services that the parties stipulated were medically necessary: dental ($163.33), waiver support coordination ($1,561.58), behavioral therapy ($4,880.03), behavioral assessment ($255.19), companion care ($19,138.24), respite ($1,798.66), and personal care assistance at the moderate level ($21,765.60). The total cost of the appellant’s approved services was $49,562.63.

The original final order determined that the appellant met the threshold criteria for tier one in that he did possess behavioral problems that were exceptional in intensity, duration, or frequency. However, the Agency concluded that the appellant was not eligible for tier one because his service needs could be met in tier three. The Agency’s decision only considered those services that the appellant received that were specifically listed in rule 65G-4.0027(4)(a)-(q).

After the appellant appealed the original final order, the Agency sought a remand of jurisdiction to correct several errors in the original final order it styled as “scrivener’s errors.” Jurisdiction was relinquished during which time the Agency came to believe that the original final order was in error in light of this Court’s decision in Newsome v. Agency for Persons with Disabilities, 76 So.3d 972 (Fla. 1st DCA 2011). The Agency sought an extension on remand to conduct an evidentiary hearing in light of Newsome to determine which of the appellant’s services were “directly related” to his exceptional behavioral needs. The Agency’s request was improvidently granted, and jurisdiction was extended, during which time the Agency remanded the case back to the Department of Children and Family Services for an evidentiary hearing.

On remand, the hearing officer issued an amended recommended order that again found that the sum of the appellant’s “key indicator services” as set forth in rule 65G-4.0027(4) — behavioral therapy ($4,880.04) and personal care assistance ($21,765.60) — totaled $26,645.04, which was less than the tier three cap of $34,125. The hearing officer concluded that this case was distinguishable from Newsome in that there was no proven correlation between the appellant’s services not listed in subsection (4), specifically companion care and respite care, and his behavioral service needs. The hearing officer again recommended that the appellant be assigned to tier three. The Agency’s amended final order affirmed the assignment to tier three. We find that the amended final order was in error.

The hearing officer’s role is to consider the evidence, resolve conflicts, judge the credibility of witnesses, draw permissible inferences, and make findings of fact based upon competent substantial evidence. See Heifetz v. Dep’t of Bus. Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). If supported by competent, substantial evidence, an appellate court must accept those findings. See Boyd v. Dep’t of Revenue, 682 So.2d 1117, 1118 (Fla. 4th DCA 1996). The standard of review of an agency decision based on an issue of law is whether the agency’s interpretation is erroneous and whether a particular course of action is compelled by the correct interpretation. See Metro. Dade County v. State Dep’t of Envt’l Prot., 714 So.2d 512, 515 (Fla. 3d DCA 1998). An agency’s interpretation of its own rules and statutes is generally accepted unless clearly erroneous. Id.

As an initial matter, we agree with the panel in T.S. v. Agency for Persons with Disabilities, 87 So.3d 1250, 1253 n. 3 (Fla. 1st DCA 2012), that there is an inconsistency between the definitions of tier one in section 393.0661(3)(a) and rule 65G-4.0027(1), and we question whether rule 65G-4.0027(4) should have even been applied in this case. Nonetheless, under the unique procedural posture of this case, subsection (4) was applied, albeit erroneously.

In applying subsection (4) and considering whether the appellant’s companion and respite services were “directly related” to his exceptional behavioral needs, the hearing officer relied upon the definition of companion care and respite services in the Agency’s DD Waiver Handbook adopted as an Agency rule pursuant to rule 59G-13.083, Florida Administrative Code. We find such reliance in error because it divests rules 65G-4.0026(l)(e) and (6)of meaning in tier assignments and leads to the foregone conclusion that there could never be a correlation between companion and respite services and an individual client’s exceptional behavioral needs. Cf. T.S., 87 So.3d at 1253 (noting that had companion services been considered, the appellant, an individual with exceptional behavioral needs, would have qualified for placement in tier one).

The hearing officer also considered the characterization of companion and respite services in the appellant’s 2011 support plan to conclude that companion care was utilized to address the appellant’s community inclusion goals. This conclusion was erroneous in that the appellant’s 2011 support plan pre-dated his 2012 behavioral plan admitted into evidence, which showed that companion care was a part of his behavior plan in that it was used as an incentive tool for reducing behavioral challenges. Even at the original hearing, the appellant’s behavior therapist testified that companion care services were a “very important” part of his behavior plan. Notably, the hearing officer made no finding or conclusion that companion and respite were not part of the behavioral plan.

The hearing officer also based her conclusion that companion care was utilized to address the appellant’s community inclusion goals upon the finding that the appellant’s target behaviors improved during the months immediately following the reduction in his companion hours. There is no record evidence to support this finding. The only evidence indicating that the appellant’s behaviors improved was a December 13, 2011, statement from his behavior therapist, which was one month after the appellant’s services were reduced following the Agency’s November 15, 2011, final order. Finally, the hearing officer considered numerous instances in which the appellant had been Baker-acted and the accompanying Agency incident reports to conclude that his target behaviors began to escalate as a result of boredom. The hearing officer then found that “the behavioral analyst implemented behavior modification techniques to address these behaviors.” There is no record evidence to support this finding.

We find that the hearing officer’s amended recommended order is based on facts not supported by competent, substantial evidence. The Agency failed to demonstrate that the appellant’s service needs can be met in tier three. The appellant’s companion care services amounted to $19,138.24 in the 2011 cost plan. The inclusion of this service alone amounts to $45,783.28, which exceeds the expenditure limit for tier three. Given the unique procedural posture of this case, we reverse the amended final order and remand with directions that the appellant be assigned to tier one.

PADOVANO and ROBERTS, JJ., concur.

BENTON, C.J., dissents.

      . The appellant’s 2009-2010 cost plan contained the following approved, services: dental ($165), waiver support coordination ($1,571.40), behavioral therapy ($2,781.24), behavioral assessment ($286.19), companion care ($8,411.52), respite ($1,812.00), and personal care assistance ($21,900.00).

      . In Newsome, this Court reversed a final Agency order assigning Newsome to tier three where the Agency failed to consider other services in her cost plan that were not specifically listed in rule 65G-4.0027(4). Id. at 974. This Court determined that the plain language of the rule did not limit consideration of the client’s needs only to the services listed in the rule. Id. at 975. This Court declined to determine whether all of the services on an approved cost plan should be considered in determining tier assignment or whether the Agency could limit its consideration to only those services that were "directly related” to a client’s intensive medical needs or behavioral problems. Id. In Newsome's case, her cost plan included consumable medical supplies that were directly related to her intense medical needs. Id. With the inclusion of only the consumable medical supplies, the sum of her service needs exceeded the expenditure cap of tier three and warranted assignment to tier one. Id.


author:
PER CURIAM.
      VAN NORTWICK, J,

text:
    Patrick Joseph SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3579.
    District Court of Appeal of Florida, First District.
    June 5, 2013.
    Glenn M. Swiatek, Shalimar, for Appellant.
    Pamela Jo Bond, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Patrick Joseph Smith appeals an order denying his motion filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure, in which he asserted that his life sentence for felony murder was illegal under Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Subsequent to the filing of this appeal, the United States Supreme Court released Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and we ordered supplemental briefing as to the effect of Miller on this appeal. Subsequently, a panel of this court held that Miller should not be applied retroactively, relying upon Geter v. State, 115 So.3d 375, 2012 WL 4448860 (Fla. 3d DCA 2012). Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012). Gonzalez controls the case under view. See also Falcon v. State, 111 So.3d 973, 2013 WL 1809742 (Fla. 1st DCA 2013); Johnson v. State, — So.3d —, 2013 WL 1809685, 38 Fla. L. Weekly D953 (Fla. 1st DCA 2013). Accordingly, we affirm. We also certify the same question of great public importance certified by the Falcon panel:

WHETHER THE RULE ESTABLISHED IN MILLER V. ALABAMA, - U.S. -, -, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012), “THAT MANDATORY LIFE WITHOUT PAROLE FOR THOSE UNDER THE AGE OF 18 AT THE TIME OF THEIR CRIMES VIOLATES THE EIGHTH AMENDMENTE ],” SHOULD BE GIVEN RETROACTIVE EFFECT?

WOLF and LEWIS, JJ., concur, and VAN NORTWICK, J., specially concurs with written opinion.

VAN NORTWICK, J,

specially concurring.

Because I conclude that Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 188 L.Ed.2d 407 (2012), is a constitutional determination of fundamental significance, it should be applied retroactively. Accordingly, in my view, Geter v. State, 115 So.3d 375, 2012 WL 4448860 (Fla. 3d DCA 2012), and Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012), are wrongly decided and the order before us should be reversed. Nevertheless, this panel is bound by our decision in Gonzalez. See Falcon v. State, 111 So.3d 973, 2013 WL 1809742 (Fla. 1st DCA 2013); and Johnson v. State, — So.3d —, 2013 WL 1809685, 38 Fla. L. Weekly D953 (Fla. 1st DCA 2013). Accordingly, I specially concur. I also concur on the certified question. In my view, if Miller applies here, at a minimum Smith’s sentence must be vacated, and the cause remanded for resentencing with Smith’s age at the time of the offenses taken into account in the reconsideration of the appropriate sentence.

In 1998, Patrick Joseph Smith was convicted of first-degree felony murder and robbery with a firearm. He was 17 years of age when the offenses were committed. The evidence adduced at trial showed that Smith brought a gun to the residence of the man he and his associates planned to rob. Another pulled the trigger that launched the fatal shot. Smith’s convictions and his sentence of life imprisonment were previously affirmed by this court. Smith v. State, 746 So.2d 1162 (Fla. 1st DCA 1999).

Thereafter, Smith moved for post-conviction relief on the authority of rule 3.800(a), Florida Rules-of Criminal Procedure, raising two issues. The lower court granted relief as to the first alleged sentencing error raised on the authority of Heggs v. State, 759 So.2d 620 (Fla.2000), but denied relief as to the claim that the life sentence for felony murder is illegal under Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).

In Graham, the United States Supreme Court held that a person may not be sentenced to life imprisonment without possibility of parole for a non-homicide offense committed while a juvenile. In Miller, the United States Supreme Court extended the reasoning in Graham and held that, even when a juvenile has committed a homicide, the juvenile cannot automatically be given a life sentence without the possibility of parole; instead, a life sentence can only be imposed following a deliberation which takes into account the defendant’s youth at the time of the offense. In writing for the majority in Miller, Justice Ka-gan explained the scope of the Miller decision:

[t]he mandatory penalty schemes at issue here prevent the sentencer from taking account of these central considerations. By removing youth from the balance — by subjecting a juvenile to the same life-without-parole sentence applicable to an adult — these laws prohibit a sentencing authority from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender. That contravenes Graham’s (and also Roper’s) foundational principle: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.
In light of Graham’s reasoning, these decisions too show the flaws of imposing mandatory life-without-parole sentences on juvenile homicide offenders. Such mandatory penalties, by their nature, preclude a sentencer from taking account of an offender’s age and the wealth of characteristics 'and circumstances attendant to it....
# * *
We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.... By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment. Because that holding is sufficient to decide these cases, we do not consider Jackson’s and Miller’s alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger. But given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between “the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Roper, 543 U.S. at 573, 125 S.Ct. 1183, 161 L.Ed.2d 1; Graham, 560 U.S. at -, 130 S.Ct. at 2026-2027. Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.

132 S.Ct. at 2465-469 (footnotes omitted).

This court has held that Miller is not retroactive. Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012). In so holding, we relied on Geter v. State, 115 So.3d 375, 2012 WL 4448860 (Fla. 3d DCA 2012). In my opinion, Geter was wrongly decided and, therefore, we erred in relying on that decision.

Miller is a “Development of Fundamental Significance” under Witt

In Geter, the Third District considered the question of whether Miller has retroactive application by applying the test set forth in Witt v. State, 387 So.2d 922 (Fla.1980). The Witt test is the appropriate test; however, the Geter court misapplied the test as set forth in Witt.

In balancing the important consideration of finality in criminal cases against the equally important considerations of fairness with respect to an individual conviction and sentence and uniformity with all comparable convictions and sentences, the Florida Supreme Court set forth in Witt a three-part test which must be satisfied before a decisional change in law will be deemed to have retroactive application. The change of law must (a) emanate from the United States Supreme Court or the Florida Supreme Court; (b) be constitutional in. nature, and (c) constitute “a development of fundamental significance.”

Súbpart (c) of the Witt test is obviously the only subpart at issue with regard to the retroactive application of Miller v. Alabama as Miller emanated from the United States Supreme Court and is constitutional in nature. This third subpart ensures that mere “evolutionary refinements” in the law are not given retroactive application so as to prevent both the unjust disturbance to the finality of a case and the intolerable overburdening of the judicial system. See Witt 387 So.2d at 929-30.

Before setting out this three-part test, the Witt court noted the “relative unsatisfactory body of law” regarding the retroac-tivity of a new rule of law and, without discussing this body of law in detail, the Witt Court observed that three essential considerations could be gleaned from this “unsatisfactory” case law when passing on the question of whether a new rule of law should be applied retroactively: “(a) the purpose to be served by the new rule; (b) the extent of reliance on the old rule; and (c) the effect on the administration of justice.” Id. at 926. These considerations derive primarily from two U.S. Supreme Court decisions, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) (hereafter, the Stovall and Linkletter considerations).

After discussing these considerations, the Court in Witt set forth its analysis noting that only cases of major constitutional significance would be subject to retroactive application. The Witt court explained that such major or fundamentally significant constitutional changes generally fall within one of two categories. The first category of major or fundamentally significant constitutional changes

are those changes of law which place beyond the authority of the state the power to regulate certain conduct or impose certain penalties. This category is exemplified by Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), which held that the imposition of the death penalty for the crime of rape of an adult woman is forbidden by the eighth amendment as cruel and unusual punishment.

Witt, 387 So.2d at 929 (emphasis added).

The second category of major or fundamentally significant constitutional changes

are those changes of law which are of sufficient magnitude to necessitate retroactive application as ascertained by the three-fold test of Stovall and Link-letter. Gideon v. Wainwright, of course, is a prime example of a law change included within this category.

Id. Thus, the Stovall and Linkletter considerations are the test to be satisfied in order to determine whether a change of law falls within the second category of changes to be applied retroactively. The Stover and Linkletter considerations have no application to the first category. The Witt court explained that “[m]ost law changes of ‘fundamental significance’ will fall within [these] two broad categories-” 387 So.2d at 931.

The Third District in Geter held that the change of law created by Miller fell within the second Witt category. The Geter court reached this conclusion upon characterizing the majority’s decision in Miller as “a procedural decision” that “merely requires consideration of mitigating factors of youth in the sentencing process.” 115 So.3d at 377. The Geter court then applied the Stovall and Linkletter considerations and determined that the Miller decision was not of fundamental significance. Id.

I would respectfully submit that the Third District in Geter mischaracterizes the majority’s holding in Miller. That is, the Third District confused the reason for the holding with the holding itself. In Miller, the U.S. Supreme Court held that a mandatory sentence of life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on “cruel and unusual punishments.” 132 S.Ct. at 2460. This holding renders Miller a case that “placets] beyond the authority of the state the power ... to impose certain penalties.” Witt, 387 So.2d at 929. Thus, the Miller decision falls within the first category of major or fundamentally significant changes of law as outlined in Witt. As it falls squarely within this first category, there is no need to apply the Stovall and Linkletter considerations to determine whether the Miller decision is within the second Witt category.

Miller, like Graham, is Retroactive

The court in Geter noted that Graham has held to be retroactive, but that such a holding does not in any way contradict the conclusion that, under Witt, Miller is not to be retroactively applied. Observed the Geter court:

Unlike Miller, Graham was a substantive change in law that “placefd] beyond the authority of the state the power to regulate certain conduct or impose certain penalties.” Witt, 387 So.2d at 929. In applying Florida’s retroactivity analysis, Graham was analogous to Coker, insofar as it was a substantive change in criminal law that categorically barred a type of sentencing after conviction for a particular type of crime. Witt, 387 So.2d at 929. Graham prohibits a life sentence without meaningful opportunity for release for juveniles convicted of a nonhomicidal offense. Miller allows a life sentence for a juvenile convicted of a homicidal offense after consideration of mitigating factors of youth. As noted earlier, the Supreme Court explicitly distinguished Miller from Graham, which it referred to as a “categorically bar” [sic] against a penalty for a class of offenders or type of crime. Miller, 132 S.Ct. at 2471. Instead, Miller “mandates only that a sentencer follow a certain process — considering an offender’s youth and attendant characteristics — before imposing a particular penalty.” Id. Thus, under the Supreme Court’s plain language, the determination in Miller is unlike Graham, insofar as it is a procedural change requiring a sentencing process in criminal law, and not a categorical bar that “placets] beyond the authority of the state the power to regulate certain conduct or impose certain penalties.” Witt, 387 So.2d at 929.

115 So.3d at 384-85.

Miller does not merely mandate a certain process, however, while Graham categorically precludes a certain sentence. Under Miller, a defendant cannot be given a mandatory sentence of life without parole if the defendant was a juvenile when the offense was committed. That is, Miller categorically bans mandatory life sentences for juveniles. Thus, Miller “[p]laces beyond the authority of the state [of Florida] the power to ... impose [a] certain penalt[y]” — mandatory life sentences for juveniles. Witt, 387 So.2d at 929. In the case before us, the trial court was required to sentence the appellant to life without possibility of parole upon his conviction of first degree murder with a firearm. §§ 782.04(1), 775.082(1), Fla. Stat. (1998). Thus, below, appellant was given a mandatory sentence now constitutionally impermissible under Miller. Of course, under Miller, a trial court may still impose a life sentence, provided that the trial court has considered the defendant’s age in its deliberative process. That mandatory life sentences for offenses committed by juveniles are categorically barred by Miller has been recognized by the Third District in cases which were not final when Miller was decided. See Hernandez v. State, — So.3d —, 2013 WL 1136434, 38 Fla. L. Weekly D660 (Fla. 3d DCA 2013) (“In Miller, the Court held that the Eighth Amendment’s prohibition against cruel and unusual punishments forbids the sentence of life without parole for a juvenile convicted of murder, if the imposition of the sentence is mandatory.... Under Miller, Hernandezs [sic] sentence of life without parole was unconstitutional because it was mandatory: the trial court did not have the opportunity to consider mitigating circumstances, such as age and age-related characteristics, under the sentencing statute.”). The fact that appellant’s sentence was final before Miller was decided does not transform a categorical ban on mandatory life sentences for juveniles into a “process.” Therefore, I do not find persuasive the reasoning by which the Third District distinguished Miller from Graham.

Because Geter, in my view, was wrongly decided, this court should not have followed it in Gonzalez. Correctly applying the test for retroactive application of new decisional law, as set forth in Witt, Miller would apply retroactively, and appellant Smith would be entitled to a new sentencing hearing.

      . I also agree with Chief Judge Benton's analysis in his concurring opinion in Falcon, 111 So.3d 973.

      . In Florida, first degree murder is a capital felony. § 782.04(1), Fla. Stat. The sentence mandated -by statute upon conviction of a capital felony is death or life without parole. § 775.082(1). Because appellant was a juvenile at the time he committed his offense, he could not be sentenced to death pursuant to Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).