text:
    J.T. MIXSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3434.
    District Court of Appeal of Florida, First District.
    Aug. 19, 2014.
    Rehearing Denied Sept. 24, 2014.
    J.T. Mixson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROBERTS, MARSTILLER, and SWANSON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Linda YELTON, Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    No. 1D13-5630.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2014.
    Rehearing Denied Sept. 23, 2014.
    Wendell Finner, Jacksonville Beach, for Appellant.
    Jessica Zagier Wallace of Carlton Fields Jorden Burt, P.A. and Michael K. Winston and Dean A. Morande of Carlton Fields Jorden Burt, P.A., West Palm Beach, for Appellee.
   PER CURIAM.

We reverse the non-final order on appeal denying Appellant’s motion to quash service of process. The order states that Appellant waived her defense of lack of jurisdiction by filing a pro se motion for enlargement of time to respond to Appellee’s mortgage foreclosure complaint. However, a motion for enlargement of time that does not go to the merits of the case is not “active participation” in the proceedings, and therefore, does not constitute submission to the court’s jurisdiction and waiver of any objection to service of process. See DeGiovanni v. BAG Home Loans Serv., L.P., 83 So.3d 934, 935-36 (Fla. 2d DCA 2012); Byers v. VIA Card Services, N.A., 82 So.3d 1166, 1167-68 (Fla. 4th DCA 2012); Barrios v. Sunshine State Bank, 456 So.2d 590, 590-91 (Fla. 3d DCA 1984).

REVERSED and REMANDED.

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


author: SHEPHERD, C.J.

text:
    Melvin LAKECHEA, Appellant, v. MAGNOLIA INSURANCE COMPANY, Appellee.
    No. 3D13-2841.
    District Court of Appeal of Florida, Third District.
    Aug. 27, 2014.

      Alvarez, Carbonell, Feltman & DaSilva, PL, and Paul B. Feltman, for appellant.
    Jamila G. Gooden, Senior Attorney, Florida Department of Financial Services, Division of Rehabilitation and Liquidation, for appellee.
    Before SHEPHERD, C.J., and SUAREZ and SALTER, JJ.
   SHEPHERD, C.J.

Melvin Lakechea, an insured under a policy of homeowner’s insurance issued by Magnolia Insurance Company, appeals a trial court order vacating an order substituting Florida Insurance Guaranty Association (FIGA) in the stead of Magnolia, which is insolvent, and staying the ease below to allow Lakechea to “proceed with any actions regarding this case with the [Circuit] Court of Leon County Florida and/or the receiver for the insolvent insurer.” For the reasons explained below, we reverse the order on appeal and remand for further proceedings.

This case arises out of a dispute between Lakechea and Magnolia for water damage to his home, alleged to have been suffered on January 30, 2009. On April 30, 2010, while an action for damages brought by Lakechea against Magnolia for recovery on the policy was pending in Miami-Dade County Circuit Court, the Leon County Circuit Court entered a consent order appointing the Florida Department of Financial Services (DFS) receiver, pursuant to Chapter 631 of the Florida Statutes, for the purpose of the liquidation of Magnolia. Magnolia, by notice, informed the Miami-Dade court of the consent order, and that, pursuant to sections 631.50-70 of the Florida Statutes, it was henceforth the responsibility of FIGA to process pending claims against Magnolia. Soon thereafter, Magnolia moved and obtained an order dismissing it from the action. Lakechea, in turn, submitted his claim to FIGA and sought to substitute FIGA in place of Magnolia in the lawsuit.

Puzzlingly, after being dismissed from the lawsuit, Magnolia, through private counsel separate from counsel for the receiver, objected to FIGA being substituted in its place. Several motions, responses, and hearings later, the trial court ordered that FIGA’s role in the instant action should be determined by the Leon County Circuit Court, which appointed the receiver. This was error.

We know of no authority to support a collateral transfer of this case to the Leon County Circuit Court to determine whether FIGA should become a party to the proceedings below, and the parties have provided us none. We therefore reverse the order of the trial court transferring the case below to Leon County. See Kuvin, Klingensmith & Lewis, P.A. v. Fla. Ins. Guar. Ass’n, 371 So.2d 214 (Fla. 3d DCA 1979).

When an insurer becomes insolvent, “FIGA is deemed the ‘insurer’ to the extent of covered claims and has the same obligations as the insolvent insurer.” Jones v. Fla. Ins. Guar. Ass’n, 908 So.2d 435, 454 (Fla.2005); see also, § 631.57, Fla. Stat. (2010). Although there is a permanent stay on any action against DFS as receiver, FIGA is amenable to suit in connection with any unpaid claims. Compare § 631.041, Fla. Stat. (2010) with § 631.57(2)(c). Accordingly, we reverse that portion of the order vacating the order substituting FIGA and remand the case to the trial court for further proceedings.

Reversed and remanded with directions.


author: WALLIS, J.

text:
    NATIONSTAR MORTGAGE, LLC, Appellant, v. Stephanie M. ZORIE, Appellee.
    No. 5D13-4217.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2014.
    Rehearing Denied Sept. 17, 2014.

      Nancy M. Wallace and Michael J. Larson of Akerman LLP, Tallahassee, and William P. Heller of Akerman LLP, Fort Lauderdale, for Appellant.
    Stephanie M. Zorie, Sante Fe, NM, pro se.
   WALLIS, J.

After the trial court denied two motions to dismiss Appellant’s, Nationstar Mortgage, LLC (“Nationstar”), initial complaint in a foreclosure action against Appellee, Stephanie M. Zorie, the court granted her motion for judgment on the pleadings because the promissory note and mortgage did not contain a prepayment rider referenced in the note. Nationstar then filed a motion to amend the complaint, which the trial court denied. Nationstar appeals both the judgment for Zorie on the pleadings and the denial of the motion to amend. Because the prepayment rider did not contain material terms of the note and mortgage, and because the complaint and its attachments stated a valid cause of action, the trial court erred when it granted Zorie’s motion for judgment on the pleadings. We reverse and remand for additional proceedings.

On November 4, 2008, Nationstar filed a two-count foreclosure complaint against Zorie. Count one alleged that on February 19, 2007, Zorie executed a note and mortgage in favor of Fremont Investment and Loan (“Fremont”), Fremont assigned the note and mortgage to Nationstar, and by June 1, 2008, Zorie defaulted on the mortgage by failing to make regular payments. In the complaint, Nationstar alleged it owned and held the note and mortgage. Nationstar attached a summary of the original promissory note’s contents and a copy of the original mortgage. However, a copy of the note was not attached to the complaint. Count two sought to reestablish a lost or destroyed promissory note under section 673.3091, Florida Statutes (2008). On December 11, 2008, Nationstar filed the original note and mortgage with a blank endorsement from Fremont and an assignment of lien showing the October 6, 2008 assignment of the note to Nationstar. The note referenced an attached prepayment rider, which was not attached.

On April 10, 2009, the trial court entered a default judgment against Zorie for failure to respond. Two weeks later, Zorie responded to the complaint for the first time by filing a motion to produce documents. In May 2009, she filed an answer, admitting to being late or missing several mortgage payments since June 2008. As an affirmative defense, Zorie alleged Na-tionstar did not have the right to foreclose on the note and mortgage. In May 2009 and November 2012, Zorie filed motions to dismiss for failure to state a cause of action, both of which the trial court denied.

On September 16, 2013, Zorie filed a motion for judgment on the pleadings, arguing: (1) Nationstar waived the ability to prove standing at the time the complaint was filed by withdrawing the claim to reestablish a lost or destroyed note; (2) Nationstar was required to attach a copy of the note and mortgage to the complaint; and (3) the copy of the original note was “incomplete on its face” as a result of the missing prepayment rider. The trial court held a hearing on September 25, 2013.

The trial court entered final judgment in favor of Zorie on October 24, 2013, mistakenly treating Zorie’s motion for judgment on the pleadings as a motion for summary judgment. The trial court provided no rationale to support its decision.

On November 4, 2013, Nationstar filed a motion for rehearing, requesting to amend the complaint to add a count for reformation of the note. On November 14, 2013, the trial court denied Nationstar’s motion for rehearing, denied the motion to amend, and entered the amended final judgment in favor of Zorie. At oral argument, both parties conceded that the prepayment rider was immaterial to the sufficiency of the complaint.

We review a trial court’s decision granting judgment on the pleadings de novo. Thompson v. Napotnik, 923 So.2d 537, 539 (Fla. 5th DGA 2006) (citing Syvrud v. Today Real Estate, Inc., 858 So.2d 1125 (Fla. 2d DCA 2003)). “In passing on a motion for judgment on the pleadings made by a defendant, all well-pleaded material allegations of the complaint and all fair inferences to be drawn therefrom are taken as trae and the inquiry concerns whether the plaintiff has stated a viable cause of action.” Siegel v. Whitaker, 946 So.2d 1079, 1081 (Fla. 5th DCA 2006) (citing Martinez v. Fla. Power & Light Co., 863 So.2d 1204 (Fla.2003)). “A motion for judgment on the pleadings is decided only on the pleadings and attachments thereto and may be granted only if the movant is entitled to judgment as a matter of law.” Id. at 1081 (citing Thompson, 923 So.2d at 537). Florida courts have consistently held that a “complaint incorporates the exhibits attached thereto,” and the exhibits are “considered part of the pleadings.” Nicholas v. Ross, 721 So.2d 1241, 1243 (Fla. 4th DCA 1998); see also Labbee v. Harrington, 913 So.2d 679, 683-84 (Fla. 3d DCA 2005). “Judgment on the pleadings can be granted only if, on the facts as admitted for the purposes of the motion, the moving party is clearly entitled to judgment.” Cutler v. Aleman, 701 So.2d 390, 391 (Fla. 3d DCA 1997) (quoting Yunkers v. Yunkers, 515 So.2d 419, 420 (Fla. 3d DCA 1987)). “[T]he party that holds the note and mortgage in question has standing to bring and maintain a foreclosure action.” Wells Fargo Bank, N.A. v. Morcom, 125 So.3d 320, 321 (Fla. 5th DCA 2013) (quoting Deutsche Bank Nat’l Trust Co. v. Lippi, 78 So.3d 81, 84 (Fla. 5th DCA 2012)), rev. denied, 139 So.3d 299 (Fla.2014).

To prevail on a motion for judgment on the pleadings, Zorie needed to demonstrate that the complaint failed to state a cause of action for foreclosure on the mortgage. Here, the complaint sufficiently alleged that Zorie executed a note and mortgage on February 19, 2007, in favor of Fremont, who assigned it in October 2008 to Nationstar. Nationstar filed its complaint in November 2008, alleging that Zorie defaulted on the mortgage by failing to make regular payments since June 2008. The complaint initially sought to reestablish the note although Nationstar filed a copy of the original note and mortgage shortly after filing the complaint. Zone’s May 2009 answer included an admission that she had missed several mortgage payments since June 2008. The properly appended summary of the promissory note provided the specific material terms for the loan. All of these facts were both contained in the pleadings and properly before the trial court at the time of the subject hearing. Nationstar properly pleaded a cause of action for foreclosure. As such, the trial court erred by granting judgment on the pleadings. Accordingly, we reverse the amended final judgment, and remand for further proceedings in accordance with this opinion.

REVERSED and REMANDED.

PALMER and LAMBERT, JJ., concur.

      . As a result of our holding that the trial court erred when it granted the judgment on the pleadings, we decline to discuss whether the trial court abused its discretion when it denied the motion to amend the complaint. See generally Carry. Eslinger, 101 So.3d 423, 424 (Fla. 5th DCA 2012) (reversing trial court's denial of plaintiff’s request to amend a complaint after the trial court granted judgment on the pleadings for failure to state a cause of action); see also Crown v. Chase Home Fin., 41 So.3d 978, 980 (Fla. 5th DCA 2010) ("Pub-lie policy further favors the liberal granting of leave to amend where the failure to do so will likely prevent the cause from being resolved on its merits.” (citing Gate Lands Co. v. Old Ponte Vedra Beach Condo., 715 So.2d 1132, 1135 (Fla. 5th DCA 1998))).

      . Almost five years after filing the original note and mortgage, in June 2013, with the litigation still pending, Nationstar withdrew its second count, seeking to reestablish a lost or destroyed promissory note.

      . On February 28, 2011, Nationstar served Zorie with a complete copy of the original mortgage and note, including the prepayment rider,.

      . At the hearing, the parties concluded their discussion with the court on the completeness of the note, as follows:
      THE COURT: All right. Here is the Note. (Indicating document.) No prepayment letter attached to it.
      [Zorie]: That is a significant part of the Note, Your Honor.
      THE COURT: So, what are you going to do about that?
      [Attorney for Nationstar]: Judge, I don’t know.
      THE COURT: Well, you dismissed the count to reestablish the Note. You didn’t, but somebody did. So, what am I supposed to do?

      THE COURT: Well, this is a Motion for Judgment on the Pleadings.
      [Attorney for Nationstar]: Right; it is.
      THE COURT: If you went to trial on this Complaint with this Note, wouldn’t I have to give an involuntary dismissal? The Note is not complete; right?
      [Attorney for Nationstar]: It would not appear as such, Your Honor.

      THE COURT: [ (Addressing Zorie) ] Do you have a proposed judgment?
      [Zorie]: No, Your Honor, but I would be happy to prepare one.
      Zorie argues on appeal that Nationstar admitted the note was incomplete. We reject her argument because the transcript is ambiguous. Nationstar could have admitted the incomplete nature of the note — thus admitting the failure of its complaint — or disagreed with the trial court’s conclusion that Zorie would be entitled to "an involuntary dismissal” at trial.

      . We acknowledge the second district’s expansion under limited circumstances of the review of a motion for judgment on the pleadings to include documents not attached to but referenced by the pleadings. U.S. Fire Ins. Co. v. ADT Sec. Servs., Inc., 134 So.3d 477, 479 (Fla. 2d DCA 2013) ("If a party refers to a document within the complaint, a trial court may rely on that document to determine the nature of the claim being alleged.” (citing Veal v. Voyager Prop. & Cas. Ins. Co., 51 So.3d 1246, 1249-50 (Fla. 2d DCA 2011))). However, at this time we do not address whether to adopt the view of the second district because this case can be resolved on the pleadings and documents attached to the complaint.

      . Had the trial court applied the standard consistently, Zorie would have prevailed — albeit erroneousIy-Under this standard, Zorie should have prevailed on either of her motions to dismiss for failure to state a cause of action, at which time Appellant would have been given the opportunity to amend. Siegel, 946 So.2d at 1081 ("The applicable test [for a motion for judgment on the pleadings] is the same as if the defendant made a motion to dismiss for failure to state a cause of action.” (citing Henao v. Professional Shoe Repair, 929 So.2d 723 (Fla. 5th DCA 2006))); but cf. Carr v. Eslinger, 101 So.3d 423, 424 (Fla. 5th DCA 2012) (holding that a trial court granting judgment on the pleadings based on the same perceived deficiencies as alleged in a previously denied motion to dismiss was not error because the motion to dismiss was a non-final order).


author: RICE, ELIZABETH G., Associate Judge.

text:
    BARTOW HMA, LLC a/k/a Bartow Regional Medical Center, Appellant, v. Ollie J. KIRKLAND; Larry D. Thomas, M.D.; James R. Smith, M.D.; Linda Holt; Schumacher Group Of Florida, Inc.; Polk Emergency Group, LLC, Appellees.
    No. 2D13-3483.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 2014.

      Dinah Stein and Mark Hicks of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and Michael A. Petruccelli and Paul C. Buckley of Fann & Petruccelli, P.A., Ft. Lauder-dale, for Appellant.
    John W. Frost, II, and Lydia S. Zbrzeznj of Frost Van den Boom & Smith, P.A., Bartow, for Appellee Ollie J. Kirkland.
    No appearance for remaining Appellees.
   RICE, ELIZABETH G., Associate Judge.

Bartow HMA, LLC appeals the trial court’s order awarding $23,761 in attorney’s fees (“fee order”) to Ollie J. Kirkland as a discovery sanction in the underlying medical malpractice case. Because the trial court lacked jurisdiction to award $21,252 in appellate attorney’s fees, we reverse that portion of the fee award only.

Facts and Procedural Background

Following a discovery dispute in which Bartow HMA argued that certain documents sought by Kirkland were protected, the trial court ordered the requested documents be produced. Bartow HMA thereafter filed a petition for writ of certiorari to the Second District Court of Appeal seeking to quash the order to produce. The petition was denied. During the cer-tiorari proceeding, Kirkland did not seek attorney’s fees nor were any attorney’s fees authorized or awarded by this court.

Kirkland then filed in the trial court a renewed motion to compel production of the documents that were the subject of the certiorari proceeding. In her motion, Kirkland also sought the “award of attorney’s fees and costs associated with the filing of this motion and for such other relief this court deems just and proper.” After a hearing on the motion to compel, the trial court granted the motion and entered an order explicitly providing that “Plaintiffs request for attorney[’]s fees and costs as relates to obtaining the documents and this Motion is hereby GRANTED, with the Court reserving only as to amount.” The order further required Kirkland to file an affidavit as to attorney’s fees and costs. If Bartow HMA agreed with the fee amount, it was to pay the agreed amount to Kirkland’s counsel; if it disagreed with the amount, the matter was to be set for hearing. Pursuant to the trial court’s order, Kirkland’s counsel provided Bartow HMA an affidavit of attorney’s fees and a fee schedule reflecting $2,034 in fees. The parties unfortunately were unable to reach an agreement as to the fee amount, and on March 28, 2013, Kirkland noticed the matter for hearing, in accordance with the order.

The hearing to establish the amount of fees was held nearly two months later on May 21, 2013. Minutes before the hearing commenced, Kirkland’s counsel provided Bartow HMA’s counsel a new attorney’s fee affidavit. Exhibit A to this second affidavit, entitled “Attorneys’ Fees Incurred in Compelling Bartow Regional to Produce Discovery Documents,” provided detail of $2,509 in fees, composed of $2,034 purportedly incurred in preparing the motion and attorney’s fee affidavit and $475 purportedly incurred in preparing for the fee hearing itself. Exhibit B, entitled “Appellate Attorneys’ Fees for Case No. 2D12-1196 Filed on March 8, 2012,” provided detail of the $21,252 in fees purportedly incurred by Kirkland from March 12, 2012, to June 25, 2012, in “obtaining the documents.” On June 24, 2013, the trial court entered the fee order on appeal in which it awarded Kirkland all the attorney’s fees she sought. The award included not only Kirkland’s counsel’s work before the trial court in pursuing the motion to compel, but also all of the time spent defending the certiorari petition before this court and preparing for the attorney’s fee hearing.

Discussion

Bartow HMA raises four issues on appeal. The first three address the award of appellate fees. Because we agree with Bartow HMA’s jurisdictional argument, we do not address its remaining challenges to the appellate fees award as they have been rendered moot. We address Bartow HMA’s fourth issue merely to explain this court’s rationale for affirming the trial court’s award of $2,509 in attorney’s fees.

I. Whether the trial court lacked jurisdiction to award Kirkland appellate attorney’s fees.

Bartow HMA argues that the trial court erred in awarding fees to Kirkland for time incurred defending Bartow HMA’s petition for writ of certiorari filed before this court. Specifically, Bartow HMA argues that because Kirkland filed no motion for appellate attorney’s fees in the certiorari proceeding, and because this court has not authorized any such fees, the trial court lacked jurisdiction to award them. Because a trial court has no authority to award appellate attorney’s fees absent specific authorization from the appellate court, the trial court lacked jurisdiction to award the $21,252 in fees sought by Kirkland, and therefore, this portion of the award must be reversed.

“A trial court cannot award appellate attorney’s fees unless the appellate court has authorized such an award.” Ra-dos v. Rados, 791 So.2d 1130,1131 (Fla. 2d DCA 2001). This is because appellate courts generally have exclusive jurisdiction to award appellate attorney’s fees. Respiratory Care Servs., Inc. v. Murray D. Shear, P.A., 715 So.2d 1054, 1056 (Fla. 5th DCA 1998). To pursue a claim for appellate attorney’s fees, litigants accordingly are “required to file a motion in the appellate court under rule 9.400(b), stating the legal basis for the claim.” Rados, 791 So.2d at 1131-32. This requirement applies equally to certiorari proceedings before the appellate court. See Closuit v. Crane Envtl., Inc., 850 So.2d 652, 653 (Fla. 2d DCA 2003). Absent an appellate court’s authorization, a circuit court has “no authority to award attorneys’ fees for services in [the appellate] court, even as a sanction.” Id. at 653 (emphasis added) (reversing portion of judgment awarding fees for time spent in responding to petition for writ of certiorari); see also Wood v. Steen, 830 So.2d 965, 966 (Fla. 1st DCA 2002). Here, it is undisputed that Kirkland filed no motion for attorney’s fees during the certiorari proceeding, and none were authorized by this court.

Kirkland seeks to sidestep this well-established law by arguing that the fees incurred in defending the certiorari proceedings were not “appellate” fees, but merely fees incurred in “obtaining the documents.” Hence, Kirkland contends, the trial court properly had jurisdiction to award such fees. This argument is devoid of merit and so nonsensical, it borders on frivolity. Kirkland’s argument, if accepted, would permit a trial court, through the power of the pen, to effectuate an “end run” around this court’s (or for that matter, any other type of court’s), exclusive jurisdiction. Neither Kirkland in its strategic crafting of the fee order language nor the trial court in adopting Kirkland’s “phraseology” in its fee order can alter the true nature of the fees at issue. Quite simply, as Kirkland’s own second fee affidavit clearly reflects, these fees are “Appellate Attorneys’ Fees for Case No. 2D12-1196 Filed on March 8, 2012.”

For these reasons, we reject Kirkland’s argument and conclude that the trial court awarded fees for “time spent in responding to the petition for writ of certiorari,” and thus the award must have been authorized by the appellate court to stand. Closuit, 850 So.2d at 653. As no such fees were authorized or awarded by this court in the certiorari proceeding, the trial court lacked jurisdiction to award the fees at issue. We likewise conclude that the limited exception for probate proceedings described in Kirkland’s answer brief is inapplicable to this case. See In re Estate of Udell, 501 So.2d 1286 (Fla. 4th DCA 1986); see also Bissmeyer v. Southeast Bank, N.A., 596 So.2d 678, 679 (Fla. 2d DCA 1991) (declining to consider motion for attorney’s fees for services rendered in appeal of probate matter because such motion rests within the exclusive province of the circuit court).

II. Whether the $2,509 awarded to Kirkland for trial court fees presents reversible error.

Bartow HMA additionally argues that the portion of the fees award addressing time spent in the trial court likewise was improper. Specifically, it argues that because no motion for sanctions was set for the May 21, 2013, hearing, it was improper for the trial court to award fees as a sanction. Although not expressly stated in its briefs, this argument appears to rely on the due process requirement of notice. However, as Bartow HMA unquestionably had notice that the hearing would address the amount of fees to which the prior order granted entitlement, we conclude this argument is meritless. Attorney’s fees awards for which the trial court has jurisdiction are reviewed for an abuse of discretion. See, e.g., DiStefano Constr., Inc. v. Fidelity & Deposit Co. of Md., 597 So.2d 248, 250 (Fla.1992) (“T]he award of attorney’s fees is a matter committed to sound judicial discretion which will not be disturbed on appeal, absent a showing of clear abuse of discretion.”).

The March 28, 2013, notice of hearing clearly provided that the hearing would address the amount of fees “pursuant to the Court’s Orders on Plaintiffs Motion to Compel Documentation in Accordance with Plaintiffs Request for Production from Defendant, Bartow HMA, LLC dated 9/21/12 and 1/18/13.” Although the record fails to include any relevant filings — neither motions nor orders — dated January 18, 2013, the language on the notice clearly indicates the hearing would address the amount of fees awarded under the September 21, 2012 order granting the motion to compel. Any argument by Bartow HMA that it lacked notice that the hearing would address fees for time spent litigating the production of the documents is specious. The single case cited by Bartow HMA in support of this argument is amply distinguishable and fails to affect the analysis. See Joseph S. Arrigo Motor Co., Inc. v. Lasserre, 678 So.2d 396, 397 (Fla. 1st DCA 1996) (reversing trial court’s order granting motion to compel and ordering payment of fees where trial court “prematurely rendered th[e] order prior to the date set for hearing, thereby depriving [the Appellant] an opportunity to be heard on the motion”). In this case, the fee hearing occurred before the fee order was entered, and Bartow HMA had both notice and an opportunity to be heard. We therefore conclude that the trial court did not abuse its discretion in awarding fees for the time spent before the trial court.

Bartow HMA argues alternatively that the fee award should be reduced to the amount Kirkland requested in her first affidavit. Like the primary argument advanced in support of the second issue above, this one is predicated in part on an allegation of improper notice. Bartow HMA additionally argues in the alternative that such fees are non-compensable because a party is not entitled to fees incurred in assessing the amount of fees. However, because a close review of the record reveals that neither of these alternative arguments was advanced in the trial court, they are unpreserved for appellate review. See, e.g., Braddy v. State, 111 So.Bd 810, 836 (Fla.2012) (“We have repeatedly held that in order to preserve an issue for appellate review, the specific legal argument or ground upon which it is based must be presented to the trial court.”) (citations and internal quotation marks omitted).

Conclusion

Because the trial court lacked jurisdiction to award Kirkland appellate attorney’s fees, we reverse the trial court’s attorney’s fee award of $21,252. We affirm the remainder of the fee order and the trial court’s award of attorney’s fees to Kirkland in the amount of $2,509.

Affirmed in part; reversed in part.

WALLACE and SLEET, JJ., Concur.

      . In reviewing Kirkland’s first attorney’s fee affidavit, it appears Kirkland made a mathematical error in calculating the total amount of fees she had incurred. Kirkland overstated her fees by $25; the total value given was $2,059, even though the stated hours and rates added up to only $2,034. The error was discovered and corrected by Kirkland in Exhibit A “Attorneys’ Fees Incurred in Compelling Bartow Regional to Produce Discovery Documents” attached to Kirkland's second attorney’s fee affidavit.


author: WALLACE, Judge.

text:
    Cameron D. ANCRUM, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5329.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 2014.

      Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Cameron D. Ancrum appeals his judgment and sentences for possession of a firearm with an altered serial number, possession of cocaine, possession of cannabis, and possession of paraphernalia after entering an open, no contest plea to those offenses while reserving his right to appeal the trial court’s denial of his dispositive motion to suppress. We affirm in part and reverse in part.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

Mr. Ancrum argued in the trial court that police illegally searched his personal property and seized contraband after a relative consented to a search of the bedroom where he was staying. The relative leased a three-bedroom apartment and had permitted Mr. Ancrum to stay there with her and her children for a couple of weeks before his arrest. Mr. Ancrum occupied one of the bedrooms. Although he had provided the relative some money for expenses, he did not pay rent. The relative and her children continued to have access to the bedroom that Mr. Ancrum occupied. Moreover, Mr. Ancrum did not take any steps to establish any greater degree of privacy in his bedroom by padlocking the door or securing any other space inside of the room.

When police officers arrived at the apartment to arrest Mr. Ancrum on charges unrelated to this case, the relative permitted them to enter the apartment and the bedroom where Mr. Ancrum was sleeping. After the officers arrested Mr. Ancrum and removed him from the room, the relative consented to a search of the bedroom. The officers found crack cocaine in an open cigarette pack on the floor of the bedroom closet and cannabis and paraphernalia inside of a jacket on the bedroom floor. Based upon the evidence seized during the search, the State charged Mr. Ancrum with possession of cocaine with intent to sell within 1000 feet of public housing, possession of cannabis, and possession of paraphernalia. Mr. Ancrum moved to suppress the evidence seized during the search. After the trial court denied his motion, Mr. Ancrum entered an open plea to possession of cocaine, possession of cannabis, and possession of paraphernalia while reserving his right to appeal the trial court’s dispositive ruling on his motion to suppress.

II. THE TRIAL COURT’S RULING

In denying Mr. Ancrum’s motion to suppress, the trial court concluded that the relative had actual authority to consent to the officers’ entry into her apartment and had apparent authority to permit a search of the bedroom that Mr. Ancrum occupied. The trial court further concluded that “[t]he officers had the authority to search the closet in the bedroom occupied by [Mr. Ancrum] based upon consent given by [the relative]. The cigarette pack that contained cocaine was not particularly identifiable to [Mr. Ancrum] at the time and was lawfully seized and searched.” Conversely, the trial court found that Mr. Ancrum’s jacket “was particularly identifiable to [Mr. Ancrum] and therefore [the relative] did not have apparent authority to provide consent to the officer[s] for the search of the contents within the jacket.” The trial court concluded, however, that because “the jacket was on the bedroom floor near the bed in which [Mr. Ancrum] was located and arrested, was within plain view of the officers, and was within the wing span of [Mr. Ancrum] at the time of his arrest[,] ... the jacket was properly searched as incident to the arrest.”

III. DISCUSSION .

A. The Consent to Search

On appeal, Mr. Ancrum concedes that his relative had actual authority to consent to the search of the bedroom that he occupied, but he challenges the search of the cigarette pack and the search of the jacket. We agree with the trial court’s legal conclusion that the relative had actual authority to consent to the search of the apartment and at least apparent authority to consent to the search of the bedroom. In addition, the officers reasonably believed that the relative’s authority and consent extended to the bedroom closet, which was not secured in any way.

B. The Cigarette Pack

We also agree with the trial court’s finding that the open cigarette pack discovered on the closet floor was properly seized and searched because the cigarette pack was not particularly identifiable as the personal property of Mr. Ancrum for two reasons. First, the cigarette pack was not secured inside of a purse or backpack, but was open and lying on the floor. Second, unlike a purse or backpack, a cigarette pack is not an inherently personal item. People do not generally store items intended to be kept private in a cigarette pack. When left open in an area to which others have common access, a cigarette pack is arguably similar to a box of cookies or a pack of gum that might be opened by others.

Because of the nature and location of the open cigarette pack, the officers could have reasonably believed that the relative had common authority over and common use of the cigarette pack. Further, the officers knew that Mr. Ancrum had only been staying in the apartment for a couple of weeks, and it would not be unreasonable to assume that someone other than Mr. Ancrum had left the cigarette pack on the closet floor. See King v. State, 79 So.3d 236, 238-39 (Fla. 1st DCA 2012) (“[L]aw enforcement may only rely on a person’s apparent authority to give consent [to search personal property] if such consent is reasonable given the totality of the circumstances.” (quoting Brock v. State, 24 So.3d 703, 704 (Fla. 1st DCA 2009)). Under the circumstances shown here, we conclude that the officers were not required to conduct further inquiry about ownership of the cigarette pack before searching it. See id. at 289 (“If the basis for the asserted authority is not clear, the officer must conduct further inquiry before relying on the third party’s representations.”).

C. The Jacket

On the other hand, we agree with the trial court’s finding that the jacket was a personal item, particularly identifiable to Mr. Ancrum, and that the relative did not have apparent authority to consent to the search of the jacket. We disagree, however, with the trial court’s determination that the officers’ search of the jacket was justifiable as a search incident to Mr. Ancrum’s arrest.

“Searches incident to arrests ... are permitted: (1) to protect the officer’s safety, and (2) to prevent destruction of evidence.” Brown v. State, 377 So.2d 819, 820 (Fla. 1st DCA 1979) (interpreting Chi-mel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)). Accordingly, “[a] warrantless search incident to a lawful arrest is limited to the area within the immediate control of the defendant.” State v. Futch, 715 So.2d 992, 994 (Fla. 2d DCA 1998). “A warrantless search outside the area controlled by a defendant cannot be upheld as a search incident to an arrest.” Brown, 377 So.2d at 821.

In Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the Supreme Court addressed the search of a motor vehicle incident to the arrest of a defendant who had recently been an occupant of the vehicle. The Court held, in part, that once law enforcement had removed the defendant from the vehicle, a search of the vehicle incident to the defendant’s arrest could not be justified as a means to protect the arresting officer or to prevent the destruction of evidence because the defendant no longer had access to the vehicle or its contents. Id. at 341-48,129 S.Ct. 1710.

Recently, in Smallwood v. State, 113 So.3d 724 (Fla.2013), the Florida Supreme Court applied the Supreme Court’s reasoning in Gant to the search of a defendant’s cell phone incident to his arrest. The court noted that after Gant, “while the search-incident-to-arrest warrant exception is still clearly valid, once an arrestee is physically separated from an item or thing, and thereby separated from any possible weapon or destructible evidence, the dual rationales for this search exception no longer apply.” Id. at 735. Accordingly, the search of an item from which a defendant has been physically separated cannot be upheld as a search incident to the defendant’s arrest.

Here, Mr. Ancrum’s jacket was located on the floor in the bedroom where Mr. Ancrum was arrested. And, while arresting Mr. Ancrum, the officers pulled him from his bed to the floor. But there was no evidence about the proximity of the jacket to the bed or Mr. Ancrum, and there was no testimony that the jacket was within his immediate control at any point. Thus the trial court’s finding that the jacket was within Mr. Ancrum’s “wing span” is not supported by the evidence. More important, the officers removed Mr. Anc-rum from the bedroom before the search. Thus the trial court’s conclusion that the officers could search the jacket incident to Mr. Ancrum’s arrest is contrary to the holding in Smallwood because Mr. Ancrum was physically separated from the jacket when it was searched. Accordingly, we reverse the trial court’s denial of the motion to suppress with regard to the cannabis and the paraphernalia found in the jacket.

IV. CONCLUSION

For the foregoing reasons, we affirm the trial court’s order to the extent that it denies suppression of the rock cocaine discovered in the cigarette pack, and we affirm Mr. Ancrum’s convictions and sentences for possession of a firearm with an altered serial number and for possession of cocaine. We reverse the order to the extent that it denied suppression of the cannabis and paraphernalia found in Mr. Ancrum’s jacket, and we reverse Mr. Anc-rum’s convictions and sentences for possession of cannabis and for possession of paraphernalia. On remand, the trial court shall discharge Mr. Ancrum on those charges.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and SLEET, JJ., Concur.

      . The officers also seized a firearm, which fell out of the bed where Mr. Ancrum was sleeping during his arrest. The State charged Mr. Ancrum with possession of a firearm with an altered serial number after seizing the firearm. Mr. Ancrum has not challenged the seizure of the firearm or his conviction for possession of a firearm with an altered serial number in this appeal.

      . "In law enforcement training, the phrases used to remember the area that can be searched following the arrest of a person are often referred to as the area of ‘immediate control,’ the theoretical ‘wingspan’ of the arrested person, or the grabbable area.” Jeffrey R. Beck, Arizona v. Gant: Heightening a Person's Expectation of Privacy in a Motor Vehicle Following Searches Incident to Arrest, 55 S.D. L. Rev. 299, 307 n. 106 (2010) (citing John G. Mills, Jr. et al., The Law Officer's Pocket Manual, § 7.6 (2008 ed.)).


text:
    Lagarrian R. DONALDSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2407.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 2014.

      Lagarrian R. Donaldson, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Lagarrian R. Donaldson appeals the postconviction court order granting in part and summarily denying in part his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The State properly concedes error. Therefore, we reverse and remand for an evidentiary hearing on one of Donaldson’s claims. We affirm the denial of his remaining claims without comment.

Donaldson pleaded no contest to first-degree burglary, and the court sentenced him as a youthful offender to three years’ imprisonment followed by three years’ probation. During his incarceration, Donaldson successfully completed the youthful offender training program, also known as “boot camp.” Donaldson was resentenced to probation for the remainder of his original prison sentence followed by the original three years’ probation.

As a part of a negotiated agreement, Donaldson admitted to violating his probation by committing the new offenses of burglary of a dwelling, a second-degree felony, and grand theft, a third-degree felony. The court revoked Donaldson’s probation and resentenced him to fifteen years’ imprisonment for first-degree burglary, and, for the new law violations, to fifteen years’ imprisonment for burglary and five years’ imprisonment for grand theft, all to be served concurrently.

Donaldson then filed this motion for postconviction relief, alleging in part that (1) his fifteen-year sentence for first-degree burglary was illegal because he was originally sentenced as a youthful offender and had successfully completed boot camp; and (2) his plea was involuntary because counsel misadvised him that he faced life in prison for first-degree burglary when he actually only faced up to a year in jail after violating probation. The postconviction court granted relief on Donaldson’s first claim after the State conceded error; under the statute applicable to Donaldson, a youthful offender who violated probation could not be sentenced to more than 364 days in jail if he had completed the youthful offender “boot camp” program. See §§ 958.04(2)(b), .045(5)(c), Fla. Stat. (2005); Cutler v. State, 927 So.2d 249, 250 (Fla. 2d DCA 2006); Bloodworth v. State, 769 So.2d 1117, 1118 (Fla. 2d DCA 2000). He was resentenced to one year in jail for first-degree burglary. However, the post-conviction court denied Donaldson’s involuntary plea claim, reasoning that Donaldson had already received relief in the form of resentencing.

The postconviction court erred in denying this claim. When a defendant enters into a plea agreement for an illegal sentence, the correction of the illegal sentence does not necessarily preclude the defendant from stating a claim that his plea was involuntary. “[W]hen a defendant pleads guilty with the understanding that the sentence he or she receives in exchange is legal, when in fact the sentence is not legal, the defendant should be given the opportunity to withdraw the plea when later challenging the legality of the sentence.” Forbert v. State, 437 So.2d 1079, 1081 (Fla.1983). As the State concedes, Donaldson alleged a facially sufficient claim that is not conclusively refuted by the record. See Davis v. State, 15 So.3d 770, 772 (Fla. 2d DCA 2009). Therefore, we reverse the summary denial of this claim and remand for an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

VILLANTI, WALLACE, and SLEET, JJ., Concur.

      . Section 958.045 has since been amended to remove this limitation on sentencing. See ch. 06-270, § 1, at 2842, Laws of Fla.


text:
    Teresa ARVIZU, as Personal Representative of the Estate of Olegario Rincon, etc., Appellant, HEIGHTS ROOFING, INC., Israel J. Garcia, and Hector Cabrera, Appellees.
    No. 3D13-1339.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2014.
    Friedman, Rodman & Frank, P.A., and Raquel Y. Reyes-Lao and Ronald D. Rod-man, for appellant.
    Cole, Scott & Kissane, P.A., and Scott A. Cole and Daniel M. Schwarz, Miami, for appellees.
    Before ROTHENBERG, SALTER, and LOGUE, JJ.
   PER CURIAM.

Although this case reflects a tragic workplace accident that cost Olegario Rin-con his life, there was insufficient evidence that his supervisors acted with culpable negligence within the meaning of section 440.11(l)(b), Florida Statutes (2009), as is required to remove this case from the ambit of the laws of Worker’s Compensation. See Fla. Dep’t of Transp. v. Juliano, 864 So.2d 11, 16 (Fla. 3d DCA 2003) (holding there was no evidence of culpable negligence where supervisors were merely aware of poor condition and could have done more to remedy it); Mekamy Oaks, Inc. v. Snyder, 659 So.2d 1290, 1291 (Fla. 5th DCA 1995) (holding supervisor’s removal of safety switch did not amount to crime of culpable negligence). Summary judgment is affirmed.


text:
    Johnny Ray HOLT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-1073.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2014.
    Rehearing Denied Oct. 1, 2014.
    Johnny Ray Holt, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.

      Before ROTHENBERG, LOGUE, and SCALES, JJ.
   PER CURIAM.

Affirmed. See Lukeharb v. State, 776 So.2d 906, 922 (Fla.2000) (holding governing law “does not prohibit a defendant from being separately convicted and sentenced for felony murder and the qualifying felony”).


author: LEWIS, C.J. BENTON, J., MAKAR, J., SWANSON, J.,

text:
    Laura Rivero LEVEY, Appellant, v. Ken DETZNER, Secretary of State, State of Florida; Penelope Townsley, Supervisor of Elections, Miami-Bade County, Florida; and David Richardson, Appellees.
    No. 1D14-3854.
    District Court of Appeal of Florida, First District.
    Sept. 3, 2014.
    Opinion on Rehearing En Banc
    Denied Sept. 22, 2014.
    John R. Kelso of Levey Lieberman LLP, Miami Beach, for Appellant.
    J. Andrew Atkinson, General Counsel, and Ashley E. Davis, Assistant General Counsel, Florida Department of State, for Appellee Florida Secretary of State Kenneth W. Detzner.
    R.A. Cuevas, Jr., Miami-Dade County Attorney; Oren Rosenthal and Michael B. Valdes, Assistant County Attorneys, Miami, for Appellee Penelope Townsley.

      Mark Herron, Robert J. Telfer, III, and J. Brennan Donnelly of Messer Caparello, P.A., Tallahassee, for Appellee David Richardson.
   LEWIS, C.J.

Laura Rivero Levey is an intended candidate for the District 113 seat in the Florida House of Representatives. She appeals an adverse final judgment rejecting her claim for declaratory and injunc-tive relief in the form of an order directing that her name be placed on the ballot for the November 2014 general election. We affirm.

Addressing the process of qualifying for election to federal, state, county, or district office, section 99.061(7), Florida Statutes (2014), sets forth the items that must be received by the appropriate filing officer by the end of the qualifying period in order for a candidate to be qualified. Relevant to this matter, subparagraph (7)(a)l. provides as follows:

(7)(a) In order for a candidate to be qualified, the following items must be received by the filing officer by the end of the qualifying period:
1. A properly executed check drawn upon the candidate’s campaign account payable to the person or entity as prescribed by the filing officer in an amount not less than the fee required by s. 99.092, unless the candidate obtained the required number of signatures on petitions pursuant to s. 99.095. The filing fee for a special district candidate is not required to be drawn upon the candidate’s campaign account. If a candidate’s check is returned by the bank for any reason, the filing officer shall immediately notify the candidate and the candidate shall have until the end of qualifying to pay the fee with a cashier’s check purchased from funds of the campaign account. Failure to pay the fee as provided in this subpara-graph shall disqualify the candidate.

(Emphasis added).

The qualifying period for the 2014 election cycle commenced at 12:00 p.m. on Monday, June 16, 2014, and ended at 12:00 p.m. on Friday, June 20, 2014. On June 17, 2014, Levey completed the filing of her qualifying papers with the Secretary of State and tendered a check for the qualifying fee drawn on her campaign account. However, the check was not honored by Levey’s bank, and state officials were not notified of that fact until after the qualifying period had closed. Upon learning that the check had been returned, Levey attempted to tender a cashier’s check for the filing fee accompanied by a letter from her bank explaining that the return of the qualifying check was due to bank error and through no fault of hers, but that tender was refused because the qualifying period had expired.

Levey’s complaint for declaratory and injunctive relief sought a declaration that she was a qualified candidate and injunctive relief ordering the Secretary of State to add her to the list of qualified candidates and directing the Supervisor of Elections to add her name to the ballot for the November 2014 general election. Cross-motions for summary judgment were filed, and following a hearing on the matter, the trial court rendered its final judgment concluding that despite the harshness of the result, section 99.061(7)(a)l. precluded the granting of relief. We agree.

Legislative intent is the polestar that guides a court’s interpretation of a statute.' Greene v. Clemens, 98 So.3d 791, 793 (Fla. 1st DCA 2012). A court must endeavor to construe a statute to effectuate the Legislature’s intent. Id. In discerning legislative intent, a court must look to the actual language used in the statute. Id. When a statute is clear and unambiguous, a court will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent. Id. It is not the prerogative of a court to construe an unambiguous statute differently from the plain language of the words employed, nor is the wisdom of the statute within the ambit of the court’s authority. See Bingham v. Manson, 363 So.2d 370, 371 (Fla. 1st DCA 1978).

The statute at issue is clear and unambiguous. Although we agree with the trial court that this result is harsh, it is mandated by the clear language of the statute. If a candidate’s qualifying check is returned for any reason, the candidate must pay the qualifying fee by cashier’s check before the end of the qualifying period. Levey’s check was returned, the reason for that occurring is immaterial, and she failed to cure the deficiency within the time allotted by the statute. This circumstance “shall disqualify the candidate.” Courts are not at liberty to extend, modify, or limit the express and unambiguous terms of a statute. See Hill v. Davis, 70 So.3d 572, 575 (Fla.2011); see also State v. Chubbuck, 141 So.3d 1163 (Fla.2014).

The result in this case is buttressed by the fact that under an earlier version of section 99.061, if a candidate’s qualifying check was returned, the candidate was allowed 48 hours after being notified of that fact by the filing officer to pay the fee by cashier’s check, “the end of qualifying notwithstanding.” See § 99.061(7)(a)l., Fla. Stat. (2010). The operative language of the current statute, which eliminated the possibility of a post-qualifying cure period for candidates for federal, state, county, and district offices, was adopted by the Legislature in a 2011 amendment. See Ch. 11-10, § 14, at 22, Laws of Fla. It is not within a court’s power to rewrite the statute or ignore this amendment, and any remedy Levey or others aggrieved by the amendment may have lies with the Legislature, not the courts.

AFFIRMED.

RAY, J., concurs; BENTON, J., dissents with opinion.

BENTON, J.,

dissenting.

Among the “others aggrieved” are the voters deprived of the opportunity to cast their votes to decide who will represent them in the Florida House of Representatives from District 113. Yet neither they nor Laura Rivero Levey are at fault in any way or “could,” in the words of the order under review, “have done [anything] differently that would have changed what happened during the week of qualifying (June 16-20).”

In conformity with the qualifying statute, Mrs. Levey timely filed everything the statute called for, including “a properly executed check drawn” on her campaign account for $1,781.82, the full amount of the filing fee. § 99.061(7)(a)l., Fla. Stat. (2014). Although her campaign account contained sufficient funds, the bank initially refused to honor the filing fee check because of a hold it alone had decided to place on the account.* The bank has since acknowledged that the hold was a mistake on its part and now stands ready to honor the check.

Promptly on being informed of the first check’s dishonor when initially presented, Mrs. Levey tendered a second check, this one certified. While it is true that the second, certified check arrived after qualifying had closed — she was not, after all, told there was any problem before the qualifying period had ended — the certified check was wholly superfluous under the facts of the present case. (Incidentally, the Secretary of State has a policy against accepting certified checks except as “cure checks,” ie., a policy not to accept certified checks if tendered initially along with qualifying papers.)

In the present case, there was no need for any “cure check.” The check Mrs. Levey originally tendered, which the Secretary of State accepted, has never been returned to her. The State needs only to see that it is presented anew to the now apologetic bank and direct the Supervisor of Elections in Miami-Dade County to let the voters choose between Mrs. Levey and Mr. Richardson.

ORDER ON MOTION FOR REHEARING EN BANC

A judge of this court requested that this cause be considered en banc in accordance with Florida Rule of Appellate Procedure 9.381(d). All judges in regular active service have voted on this request. Less than a majority of those judges voted in favor of rehearing en banc. Accordingly, the request for rehearing en banc is denied.

LEWIS, C.J., WOLF, ROBERTS, CLARK, WETHERELL, ROWE, MARSTILLER, RAY, and OSTERHAUS, JJ., concur.

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

MAKAR, J., dissents in an opinion in which THOMAS, J., joins.

SWANSON, J., dissents with opinion.

MAKAR, J.,

dissenting from the denial of rehearing en banc.

Presented with two interpretations of an election statute, one that puts a compliant candidate on the ballot and one that does not, our court has chosen the latter course, an en banc vote failing by two votes. Our supreme court has said, however, that election statutes should not be read in overly-rigid ways that deprive the people of their constitutionally-recognized political power to vote for candidates of their choosing. Under these circumstances, en banc review is warranted due to the exceptional importance of the question presented. Rule 9.381(a), Fla. R.App. P. (2014).

I.

Laura Rivero Levey would like to represent the people of House District 113, located in Miami-Dade County, which has a total of 68,218 registered voters. The qualifying period for the 2014 election cycle began at noon on Monday, June 16, 2014, and was set to end at noon on Friday, June 20, 2014. On the second day of that week, Levey timely filed all necessary paperwork to run as a Republican candidate against the incumbent Democrat, who likewise timely filed the required paperwork. Both also timely filed checks in the proper amounts for their qualifying fees, which were drawn upon their respective campaign accounts and made payable to the Florida Department of State (the Department as shorthand).

Based on their submitted paperwork, both Levey and her Democratic compatriot were certified as “qualified” because each had complied with relevant statutory requirements, including the subparagraph at issue in this case, which states:

(7)(a) In order for a candidate to be qualified, the following items must be received by the filing officer by the end of the qualifying period:
1. A properly executed check drawn upon the candidate’s campaign account payable to the person or entity as prescribed by the filing officer in an amount not less than the fee required by s. 99.092, unless the candidate obtained the required number of signatures on petitions pursuant to s. 99.095. The filing fee for a special district candidate is not required to be drawn upon the candidate’s campaign account. If a candidate’s check is returned by the bank for any reason, the filing officer shall immediately notify the candidate and the candidate shall have until the end of qualifying to pay the fee with a cashier’s check purchased from funds of the campaign account. Failure to pay the fee as provided in this subparagraph shall disqualify the candidate.

§ 99.061(7)(a)l, Fla. Stat. (2014) (various emphases added). Each of the differently highlighted portions are discussed in turn below.

Turning first to the italicized-only portions of the statute, it states that a candidate is deemed “qualified” if she provides the Department by the end of the qualifying period with a check that meets statutory requirements (properly executed, drawn on campaign account, payable to proper person or entity, and so on). No dispute exists that Levey did so; she was thereby deemed “qualified” and the Division of Elections officially informed her so. Likewise, as to her opponent.

What happened in the post-qualifying period, however, triggered the present controversy and spawned the statutory construction dispute at issue. Under section 99.061(7)(a)l, a candidate who is deemed otherwise “qualified” can be disqualified based on the last sentence in the subparagraph (italicized and bolded above), which provides that the “[f]ailure to pay the fee as provided in this subpara-graph shall disqualify the candidate.” Which leads to the banking snafu at center stage in this matter.

Levey’s check from SunTrust was drawn upon her campaign account as the statute requires (other payment methods, such as a certified check, PayPal®, or the like, are impermissible) and was filed timely with the Department. Once filed, qualifying fee checks embark on a circuitous route. The Department deposits checks into an account at Bank of America, which then undertakes efforts to collect the funds. Notice that a check is dishonored goes to the Florida Department of Financial Services (DFS), not to the Department; the reason is that funds deposited in the state treasury become treasury funds under the control of DFS.

A check’s odyssey through this labyrinth may span a number of days. As a result, qualifying fee checks may not clear before the end of qualifying and may require some effort by banking institutions and election officials to determine whether payment is forthcoming. Such was the case with Levey’s check.

The Department deposited Levey’s Sun-Trust check in its Bank of America account on Wednesday, June 18th. Soon thereafter, Bank of America presented the check for payment, but was told that Sun-Trust had placed a hold on it, apparently because someone in its fraud department decided to investigate the validity of a check from the Republican Party of Florida that had been deposited in Levey’s account (the party check had cleared on June 16, 2014). After a second attempt to deposit the check and being told a hold remained on Friday, June 20th, Bank of America returned Levey’s check to DFS on Saturday, June 21st, (after the qualifying deadline), denoting it as “uncollected funds.” To this point, with qualifying now over, neither the Department of State, the Division, nor Levey had been notified that any problem existed; and as we’ll see later, Levey could not avail herself of the certified check cure in section 99.061(7)(a)l (underlined in the statute above).

The weekend having passed, the next business day, Monday, June 23rd, DFS prepared a debit memorandum notifying the Department that Levey’s check had been returned. DFS sent the memorandum via interoffice mail, the Department not receiving it until two days later on June 25th. According to the Bureau Chief of Election Records, debit memoranda are delivered by interoffice mail, not electronically.

Two days later, on Friday, June 27th, the Division — apparently unaware of the looming kerfuffle over Levey’s qualifying check — certified her as qualified as a candidate for House District 113. Levey’s certification was on the last day of the statutory deadline for doing so. See § 99.061(6), Fla. Stat. (2014) (“The Department of State shall certify to the supervisor of elections, within 7 days after the closing date for qualifying, the names of all duly qualified candidates for nomination or election who have qualified with the Department of State.”).

Another weekend passed. On Monday, June 30th, the Division first became aware of the situation. In response, it called Levey the next day, July 1st, to notify her that her check had not cleared and that she was going to be disqualified.

Understandably distraught, Levey responded on Thursday, July 3rd, with a letter from a senior vice president of Sun-Trust explaining that the snafu related to Levey’s qualifying check was entirely due to bank error and no fault of Levey; a cashier’s check from SunTrust drawn from funds in Levey’s account was tendered as well.

Almost a week later on Wednesday, July 9th, Levey — having heard nothing from the Department — filed suit seeking a declaration that she was a qualified candidate; she also sought an order directing the Secretary to add her to the list of qualified candidates and directing the Supervisor of Elections to add her name to the ballot for the November 2014 general election.

Two days later, the Department advised Levey that — despite having initially been deemed qualified by the Division — she was now disqualified because her check was deemed dishonored; her cashier’s check was later returned to her.

After discovery and an August 8th hearing on the parties’ motions for summary judgment, the trial court ruled against Le-vey on August 18th. In doing so, it found that “[tjhere was nothing [Levey] could have done differently that would have changed what happened during the week of qualifying.” Nonetheless, it stated:

3. The application of the law in this case results in a harsh decision, but the Court is bound by precedent that says when the Legislature speaks clearly to a particular item, the Court is not to guess at what it means. Specifically, the Legislature in Section 14, Chapter 2011-40, Laws of Florida, amended Section 99.061(7)(a)7 [sic], Florida Statutes, to eliminate or preclude the relief sought by [Levey] in this case.
4. Although a check, properly made and drawn on the campaign account, was delivered during the qualifying period, it was returned. The result was the qualifying fee in this case was not paid before the end of the qualifying deadline as required by statute.

(Emphasis added). Levey appealed and a divided panel of this court affirmed.

II.

Two alternative statutory interpretation paths are in play. The first relies upon a plain reading of the statutory language to reach a sensible and workable result that, happily, effectuates the political power of the citizenry. See Art. 1, § 1, Fla. Const. (“All political power is inherent in the people”). This reading also conforms to principles of strict statutory construction, and advances the judicial philosophy in candidate qualification cases that statutes should be construed to enable the people to exercise their right to vote for their favored candidates. State ex rel. Siegen-dorf v. Stone, 266 So.2d 345, 346 (Fla.1972) (“Literal and ‘total compliance’ with statutory language which reaches hypersensitive levels and which strains the quality of justice is not required to fairly and substantially meet the statutory requirements to qualify as a candidate for public office”).

In candidate qualification cases, this court has recognized the “general philosophy of our Supreme Court was stated in [Siegendorf], wherein that Court held a technical flaw in a candidate’s qualifying papers should not prevent his candidacy!.]” Bayne v. Glisson, 300 So.2d 79, 82 (Fla. 1st DCA 1974). Thus, rather than disenfranchise candidates and voters, “[i]t is better in such factual situations to let the people decide the ultimate qualifications of candidates unless they appear clearly contrary to law.” Siegendorf, 266 So.2d at 347; see also Hurt v. Naples, 299 S.2d 17 (Fla.1974) (“Widening the field of candidates is the rule, not the exception, in Florida.”); see generally Validity and effect of statutes exacting filing fees from candidates for public office, § 7[b] (“What constitutes payment — Timeliness of payment or filing receipt”), 89 A.L.R.2d 864 (“The most frequently occurring problem in connection with the meaning of filing fee statutes is whether the fee, admittedly due, has been paid within the time prescribed by the law, and in answering it the tendency of the courts has been to construe the provisions liberally in favor of the candidate.”).

This philosophical norm in mind, we turn to the statute. No dispute exists that Levey fully complied with everything she was required to do. She submitted all the requisite items, including a valid check in the proper amount in a timely manner. The statute proclaims that “[i]n order for a candidate to be qualified” specified “items must be received by the filing officer by the end of the qualifying period” including a “properly executed check drawn upon the candidate’s campaign account payable to the person or entity as prescribed by the filing officer in an amount not less than the fee required by s. 99.092 .§ 99.061(7)(a)l, Fla. Stat. A plain reading of this statutory language supports the conclusion that because Levey fully complied with these requirements, she met the requirements to be qualified; indeed, she was deemed qualified.

That, of course, does not end the story. Simply submitting a compliant check in a timely manner does not ensure one’s ultimate qualification for the ballot. Despite being initially deemed qualified, a candidate in Levey’s position is subject to possible disqualification for actually failing to pay the fee. The last sentence of statute says so: “Failure to pay the fee as provided in this subparagraph shall disqualify the candidate.” Id. What constitutes a “failure to pay” and what effort the Department must take to ensure payment are undefined; no rule or policy exists. Further, nothing in the statute says a candidate’s check must clear the bank prior to the end of qualifying; nor does it place any post-qualifying time limit on when it must do so. The statute only states that the “failure to pay the fee” results in disqualification, which leaves unanswered the parameters of the authority and discretion the Department may exercise in these situations.

At this point it is worth noting two things. First, nothing in statutory language supports the tidal court’s conclusion that a qualifying fee must be paid “before the end of the qualifying deadline as required by statute.” To the contrary, the statute is silent on when payment is to be effectuated. Indeed, the statute as written — and applied by the Department— only requires the submission of a check that meets the requirements (set out in the first sentence of subparagraph 7(a)l) before the end of qualifying; payment can and must occur sometime thereafter. As discovery shows, and reason dictates, for checks submitted late in the qualifying process, the payment of qualifying fee checks can and does occur after qualifying is over.

Second, because payment issues necessarily must be resolved even after qualifying is over, the Department has an affirmative duty to do so. Nothing in the statute (nor in any rule) prohibits the Department from exercising authority and discretion as to payment issues during the post-qualifying period. See § 99.061(10), Fla. Stat. (“The Department of State may prescribe by rule requirements for filing papers to qualify as a candidate under this section.”). While neither the statute nor a rule specifies how the Department is to process payment for timely-received qualifying fee checks, it is obvious that it must do so. Discovery in this case shows that the Department engaged in appropriate investigation and notification activities that pose no meaningful administrative burdens.

Most importantly, the context in which the Department operates — i .e., qualifying candidates for public office — suggests that standards or practices that cause admittedly “harsh” results, such as the case at hand, should be avoided. The supreme court’s philosophy in this class of cases, one that allows room for substantial compliance, governs. See Browning v. Young, 993 So.2d 64, 67 (Fla. 1st DCA 2008) (applying substantial compliance doctrine in holding that error in candidate’s financial disclosure form did not disqualify her from public office). Problems may arise (such as the erroneous hold on Levey’s check in this case that temporarily and wrongfully delayed payment) that can be resolved quickly as the bank’s confession of error did as to Levey’s check. The Legislature has given no indication that it wants the Department to disqualify fully compliant candidates based on easily correctable bank errors arising after qualifying has ended. While the State has an interest in the orderly administration of the candidate qualification process, the balance decidedly shifts in favor of putting candidates on the ballot under the circumstances presented.

Indeed, it is hard to believe that legislators intended that a fully compliant candidate, such as Levey, be disqualified due to an error beyond her control — when they could easily find themselves in the same position. None of the intervening snafus and delays within the banking system were attributable to Levey, as the trial court specifically held: “[t]here was nothing [she] could have done differently that would have changed what happened during the week of qualifying.”

A second and competing construction of section 99.061(7)(a)l, Florida Statutes, relies heavily on a sentence (underlined in subparagraph above) that has no application in this case. It states:

If a candidate’s check is returned by the bank for any reason, the filing officer shall immediately notify the candidate and the candidate shall have until the end of qualifying to pay the fee with a cashier’s check purchased from funds of the campaign account.

Under plain language principles, this sentence is best understood as creating a limited remedy that allows a candidate to file a certified check as a cure before qualifying is over, provided the Department notified the candidate that her check had been returned. It is a remedial sentence, not a punitive one. The remedy serves no purpose if notification is not given until after qualifying is over; a candidate cannot submit a certified check before the “end of qualifying” if she wasn’t notified until after the qualifying period has ended. Levey was not notified by the Department about any potential problems with the check until after qualifying was over: indeed, the Department did not even know of the problem until ten days after qualifying had ended. Beyond having no application in this case, Levey had no need to cure anything; her check was valid when written and remains valid today.

The alternative construction of this sentence extrapolates its provisions onto the posi-qualifying period. This makes little sense because the sentence creates a remedy, a certified check, which can be filed only before “the end of qualifying.” Nothing in this sentence speaks to returns of checks- or other check-related problems arising after the end of qualifying; instead, it has a limited, focused purpose to remedy returned check problems that arise prior to the end of qualifying.

Similarly, nothing shows a legislative intent that the phrase “returned for any reason” applies other than in the period before the end of qualifying. The alternative construction of the statute, however, applies this phrase to check-related problems that arise after the end of qualifying, which — rather than a strict construction of the sentence — amounts to an expansion of it. In context, it makes sense that the Department should “immediately” notify candidates whose checks are “returned for any reason” so that they can file certified checks as a cure before the end of qualifying. Doing so allows for a potentially efficient mechanism to cure returned check problems arising before qualifying ends. But this case is not one of the situations to which the sentence applies. And the application of this phrase to post-qualifying determinations of whether a candidate should be disqualified for the “[fjailure to pay the fee” imposes a harsh penalty the Legislature has not authorized.

In addition, the alternative approach relies on the italicized portion of the payment/disqualification sentence as having special significance (“Failure to pay the fee as provided in this subparagraph shall disqualify the candidate.”). If the Legislature intended this italicized language to mean that all qualifying checks (whether they be the initial checks submitted or certified cure checks under the remedial sentence) must clear and yield payment before the end of qualifying, it woefully failed. While the italicized language might support the conclusion that a certified check is the requisite method of curing returned check problems discovered prior to the end of qualifying, it is a major leap to conclude that candidates are disqualified if their timely-filed checks do not clear and provide payment until after the end of qualifying.

What’s more, the 2011 amendment to the cure sentence in section 99.061(7)(a)l yields little support for the alternative reading of the statute.

If a candidate’s check is returned by the bank for any reason, the filing officer shall immediately notify the candidate and the candidate shall have until, — the end of qualifying notwithstanding, have 48 hours-from-tho-time-sueh notification is received, excluding Saturdays, Sundays, and legal holidays, to pay the fee with a cashier’s check purchased from funds of the campaign account.

Chapter 2011^0, Laws of Fla. § 14. While the Legislature tightened the time-frame for paying fees with certified checks returned prior to the end of qualifying, it created uncertainty as to what happens when check problems arise after the end of qualifying. The language of the revised statute simply does not address the matter directly. And if the Legislature intended the harsh, if not draconian, result in this case, it could have easily (re)written the statute to say so.

Finally, a troubling and unintended consequence of disqualifying otherwise qualified candidates on the type of banking error in this case is the potential for political shenanigans. What if political operatives wrongfully induce a banking official to put a hold on a gubernatorial candidate’s check causing its return after qualifying’s end? Ditto as to checks from a political party? Or if a bank official or employee undertakes a pre-textual check fraud investigation that renders a candidate’s qualifying account without funds temporarily? Must the Department turn a blind eye and rotely disqualify candidates in these situations? Asking the question answers it: the Department should not.

III.

In conclusion, the natural and literal construction of section 99 .061(7)(a)l, one that allows for the Department’s acceptance of payment on checks that are erroneously held by a bank, makes the most sense. In contrast, extrapolating statutory provisions that apply only in the pre-qualifying period to situations that arise in the post-qualifying period creates a harsh and unreasonable result the Legislature could not have intended. Disqualifying a candidate who did everything right is both unreasonable and unnecessary. Treiman v. Malmquist, 342 So.2d 972, 975 (Fla. 1977) (“The right of the people to select their own officers is their sovereign right, and the rule is against imposing unnecessary and unreasonable disqualifications to run.”). As it currently stands, the 68,218 registered voters in House District 113 get the short end of the stick. There will be no robust candidate debates, no campaigning on important legislative issues affecting their futures, and no choice between candidates with alternative visions for their district; instead, they have a qualified candidate unnecessarily pushed to the sidelines and another qualified candidate who wins by default without running the race. These circumstances, and the exceptional importance of the legal question presented, warrant en banc review.

SWANSON, J.,

dissenting on denial of en banc.

I concur with Judge Makar that en banc review is warranted in this case. The issues presented are of great public importance and the final opinion will serve as broadly impacting precedent.

      . Whether Levey was completely without fault in failing to pay the qualifying fee in the manner required by the statute is disputed by the parties. The existence of such a factual dispute would preclude summary judgment, but because the statute applies if a candidate’s qualifying check is "returned by the bank for any reason,” who was at fault is of no consequence to our disposition.

      . Notably, in the same session law, the Legislature amended section 105.031, governing qualifying for nonpartisan offices, but did not eliminate the 48-hour cure period provided in that law. See Ch. 11-40, § 51, at 56, Laws of Fla.; § 105.03l(5)(a)l., Fla. Stat. (2014). * While there was evidence that the bank tried to reach Mrs. Levey to inform her that it had put a hold on a check deposited in her campaign account (and that the check, drawn by the Republican Party of Florida on an account at the same bank, had cleared the Republican Party’s account on June 16), there was no evidence that the bank succeeded in reaching her or that she was in any way at fault for the snafu at the bank. As Chief Judge Francis clearly and correctly said at the hearing below, "The candidate [Mrs. Levey] did not do anything wrong. I’ll make that clear.”

      . See Fla. Dep’t of State, Div. of Elec., 2014 Primary Election, Active Registered Voters by House District, available at http://election.dos. state.fl .us/voter-registration/statistics/pdf/2014/ pri2014_County Party HouseDist.pdf (data as of July 28, 2014). Of that number, 27,902 are registered as Democrats, 16,881 are registered as Republicans, 1,545 are registered with other miscellaneous parties, and the remaining 21,890 are nonparty affiliated. Id.

      . The bank investigator's stated reason for why the check drew scrutiny was that the "$2,000 deposit was a very large deposit into a brand new account” that had no "customer history.”

      . Her situation is unlike cases where a candidate fails to file her qualification papers or filing fees timely, see, e.g., State ex rel. Taylor v. Gray, 157 Fla. 229, 25 So.2d 492 (Fla.1946) (failure to pay "qualifying fee within the time required by law”).

      . The trial court's finding notwithstanding, the suggestion that Levey may have had some fault in what happened is not borne out by the record. At most, SunTrust claimed it sent an email to Levey about a hold on the check; Levey denied receiving an email and no evidence of the actual email exists (only an unhelpful "screen shot” from an all but abandoned software program). But whatever missteps occurred were by the bank, which accepted full responsibility for its errors. For this reason, no material disputed facts exist making summary judgment proper. Even if the candidate had received an email from the bank about a hold (not a "return” of the check, which is different), the fact remains that the Department did not know about and failed to provide notification of a potential problem until after the end of qualifying.

      . Under Department policy, a certified check cannot be submitted initially; it can only be submitted as a remedy for a "returned check” under this sentence. Which explains why the Department declined to accept the certified check Levey submitted after the end of the qualifying period.


text:
    Natanya-Ahayva SCHARF, etc., Appellant, v. Ira SCHARF, Appellee.
    No. 5D13-4072.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2014.
    Rehearing Denied Sept. 17, 2014.
    Matthew R. McLain, of Brownstone, P.A., Winter Park, for Appellant.
    Julie D. Leckart, of The Mandel Law Firm, New York, New York, for Appellee.
   PER CURIAM.

We affirm the appealed orders in their entirety, except we strike from paragraph Í) of the December 9, 2013 order the language that awards Appellee ultimate decision-making authority in the areas of “medical and health care and extracurricular activities” of the children. We remand for the entry of an amended order.

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

LAWSON, WALLIS and LAMBERT, JJ., concur.


author: MORRIS, Judge.

text:
    Victor TIANGA, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1496.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 2014.
    Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessica Stephans, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Victor Omar Tianga appeals the imposition of his habitual felony offender (HFO) sentence for aggravated assault. The State properly concedes error, and we reverse and remand for resentencing.

The State has the burden of proving that a defendant qualifies as an HFO. Edison v. State, 848 So.2d 498, 499 (Fla. 2d DCA 2003). Among other elements, the State must prove that the defendant has at least two prior convictions and that the felony for which the defendant is to be sentenced and one of the two prior felony convictions are not convictions pursuant to section 893.13, Florida Statutes, relating to purchase or possession. § 775.084(l)(a)(3), Fla. Stat. (2011).

At Tianga’s sentencing hearing, the State entered certified copies of five prior convictions for possession of cocaine into evidence and called a fingerprint expert to confirm that the prints on the certified convictions matched Tianga’s fingerprints. The State also introduced a criminal tracking form from the Department of Corrections showing three additional prior convictions for Tianga, including one for grand theft. This form did not contain Tianga’s fingerprints or photograph. Based on this evidence, the court found that Tianga qualified for habitual offender status and sentenced him as an HFO to five years’ incarceration. As the State concedes, this finding was erroneous because the criminal tracking form did not sufficiently identify Tianga as the person named in the form. See Bodie v. State, 983 So.2d 1196, 1197 (Fla. 2d DCA 2008) (reversing when State presented computer printout without the defendant’s fingerprints or photograph to establish that defendant qualified for enhanced sentencing); Alcantara v. State, 39 So.3d-535, 537 (Fla. 5th DCA 2010) (reversing when State presented a “rap sheet” as proof of a predicate conviction).

Accordingly, we reverse Tianga’s sentence and remand for resentencing. On remand, the trial court may again impose a habitual offender sentence only if the State is able to provide the proper documentation to demonstrate that Tianga qualifies for such sentencing. See State v. Collins, 985 So.2d 985, 994 (Fla.2008).

Reversed and remanded for resentenc-ing.

SILBERMAN and VILLANTI, JJ., Concur.


text:
    Deangelo HORN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3744.
    District Court of Appeal of Florida, First District.
    Sept. 9, 2014.
    DeAngelo Horn, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, RAY, and OSTERHAUS, JJ., concur.