author: WALLACE, Judge.

text:
    Stephen MIZNER, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1917.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2014.

      Howard L. Dimmig, II, Public Defender and Stephen M. Grogoza, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appel-lee.
   WALLACE, Judge.

Upon the court’s own motion,

IT IS ORDERED that the opinion dated July 30, 2014, is withdrawn, and the attached opinion is substituted therefore.

On its own motion, the court withdraws its opinion of July 30, 2014, and substitutes the following opinion in its place. The opinion is unchanged substantively except that we substitute the following language for the last two sentences of our original opinion: We affirm the judgment imposed with regard to Count 2, traveling to meet a minor, and we vacate Mr. Mizner’s sentence for Count 2. Because Mr. Mizner’s conviction for attempt to commit sexual battery by a person eighteen years of age or older upon a child less than twelve years of age was the primary offense on Mr. Mizner’s scoresheet, he is entitled to resentencing with a corrected scoresheet on his remaining conviction for traveling to meet a minor. See Vroom v. State, 48 So.3d 82, 84 (Fla. 2d DCA 2010). We also certify conflict with Murphy.

A jury found Stephen Mizner guilty of multiple offenses arising from his entanglement in a “sexual mentor” sting operation that was initiated by law enforcement officers on the Internet. Mr. Mizner appeals his judgment and sentences, raising multiple issues. Finding merit in some of his arguments and rejecting others, we affirm in part and reverse in part.

I. THE FACTS

On November 1, 2011, a special agent employed by the Florida Department of Law Enforcement (the FDLE Agent) was assigned to the Department’s cybercrime squad operating out of the Tampa region. On that day, the FDLE Agent began an undercover online operation with the Har-dee County Sheriffs Office designed “to identify individuals who may be online seeking to sexually exploit children.” The FDLE Agent and the other officers set up a “sexual mentor” sting operation. In this type of operation, a law enforcement officer places an online advertisement in which the officer pretends to be an older relative — usually but not always a mother — soliciting a man to “teach” the older relative’s minor relation about sex.

A fictitious, online persona known as “Cindy Hawkins” — created by the FDLE Agent — was an integral part of the undercover operation. The fictitious “Cindy” was thirty-five years old and single. She lived in Zolfo Springs with her ten-year-old daughter, “Sabrina.” Like her mother, “Sabrina” was fictitious, a product of the FDLE Agent’s imagination. As part of their investigation, the FDLE Agent and other law enforcement officers had established an actual “undercover residence” in Zolfo Springs to which targets of the sting operation might travel for the purpose of a sexual encounter with a minor and then be arrested.

The FDLE Agent began the sting operation on November 1 at 2:07 p.m. by placing an online advertisement in the “casual encounters” subsection of the personals section of the Sarasota Craigslist. The ad began as follows: “Single Mom Looking for Family Fun — w4m-35 (Zolfo Springs, FL).” The FDLE Agent explained at trial that “w4m” indicated that the ad was placed by a woman looking for a man. The reference to “35” denoted “Cindy’s” age; “Zolfo Springs” was her place of residence. The ad continued: “I am single mom with a lOyo daughter and we are both nudists. We are seeking family fun. Must be discreet and DD. Email if interested.” The FDLE Agent explained further that “DD” typically meant “disease and drug free,” but that it could also mean “discreet and actually drug free.” The ad was signed, “Cindy,” and once again designated her location as in Zolfo Springs.

On the day that the ad appeared, Mr. Mizner had reached a low point in his life. He was forty-one years old. Mr. Mizner had previously lived and worked in another state. He had recently moved to Sarasota after the breakup of a relationship with a woman that had lasted approximately fifteen years. Although Mr. Mizner had not been married, he and his former partner had two daughters. When Mr. Mizner moved to Florida, his daughters had remained with their mother. Mr. Mizner was unable to find employment in Sarasota, and he was living at the home of a relative. In addition, Mr. Mizner did not own a vehicle, and he lacked the means for his own transportation. He had begun to drink heavily. . Despite the personal problems that Mr. Mizner had experienced after his relocation to Florida, he had no prior history of pedophilia or of involvement with child pornography. In fact, he had no prior criminal history except a conviction for driving under the influence that was more than ten years old.

Fifteen minutes after the FDLE Agent placed the personal ad on Craigslist, Mr. Mizner responded as follows by e-mail: “Hello cindy ... how are you ... i am interested ... i like hanging out nude.” The FDLE Agent’s initial reply as “Cindy” inquired about Mr. Mizner’s interest in “family fun with my daughter and I.” (Emphasis added.) After a few e-mail exchanges, Mr. Mizner and “Cindy” began a lengthy series of communications over a period from November 1 through November 3. At the beginning of these exchanges, “Cindy” inquired if Mr. Mizner would be willing to act as a sexual mentor for the ten-year-old “Sabrina.” Although Mr. Mizner’s initial expression of interest was directed to the thirty-five-year-old “Cindy,” he readily agreed to her proposal that he act as a sexual mentor for “Sabrina.” The FDLE Agent also arranged for a female Sarasota County Sheriffs detective (the Detective) to have two controlled telephone conversations with Mr. Mizner during which the Detective played the role of “Cindy.” Throughout the lengthy series of communications by various means that followed, the FDLE Agent and the Detective linked a relationship with the thirty-five-year-old “Cindy” to Mr. Mizner’s willingness to accede to “Cindy’s” insistence on finding a man who would teach her ten-year-old daughter about sex.

The tactical goal of the sting operation was to have the targets travel to the undercover residence in Zolfo Springs, prepared to have sexual intercourse with “Sabrina.” Upon arrival, the unsuspecting targets could be arrested for various offenses, including attempted sexual battery on a minor less than twelve years of age. However, Mr. Mizner lived in Sarasota, and he did not own a vehicle. For this reason, “Cindy” agreed to drive to Sarasota and to meet Mr. Mizner at a fast food restaurant located on Clark Road in Sarasota, at an exit just off of Interstate 75. The time and date for the initial meeting were set at 10:30 a.m. on Friday, November 4. “Cindy” and Mr. Mizner were to have lunch at the restaurant and get acquainted. If all went well, “Cindy” was to drive Mr. Mizner approximately sixty miles from Clark Road in Sarasota to her home in Zolfo Springs. There, Mr. Mizner and “Cindy” would spend time together until they could pick up “Sabrina” from school. If all went well, Mr. Mizner planned to spend the weekend in Zolfo Springs with “Cindy” and “Sabrina.”

Mr. Mizner was waiting at the fast food restaurant at 10:30 a.m. when the Detective, who was playing the role of “Cindy,” arrived in her unmarked vehicle. Before going to the restaurant, Mr. Mizner had stopped at a convenience store and purchased a box of candy for “Sabrina” and two boxes of condoms in accordance with “Cindy’s” previous instructions. Mr. Miz-ner got into the Detective’s vehicle and requested a hug from the Detective, whom he believed to be “Cindy.” The Detective complied and hugged Mr. Mizner. At approximately 10:35 a.m., law enforcement officers stationed nearby moved in, pulled Mr. Mizner from the car, and arrested him in the restaurant’s parking lot. In order that Mr. Mizner would not immediately realize that the Detective was actually a law enforcement officer playing the role of “Cindy,” the officers went through the motions of placing her under arrest as well.

After Mr. Mizner was in custody, a deputy employed by the Sarasota County Sheriffs Department (the Deputy) interviewed him at the sheriffs office. At this point, Mr. Mizner did not realize that Cindy and Sabrina were fictitious persons. However, he did suspect that the Detective, whom he still believed to be “Cindy,” was actually a detective operating undercover. When the Deputy inquired of Mr. Mizner concerning whether he actually intended to assist “Cindy” by having sexual intercourse with “Sabrina,” he responded, “There’s no way I would have been able to go through with it. No way. I have a conscience. I have daughters.” Captivated by “Cindy’s” convincing online and telephonic persona, Mr. Mizner said that he “wanted to go in [to the restaurant], you know, and meet her and just talk to her and, you know, get a vibe, like you would on a blind date.” Mr. Mizner’s post-arrest interview suggests that he was more interested in developing a relationship with the thirty-five-year-old “Cindy” than he was with her ten-year-old daughter. Unfortunately for him, Mr. Mizner’s instant messages and telephone conversations with “Cindy” do not display a similar reluctance to participate in sexual behavior with “Sabrina.” In fact, Mr. Mizner’s communications to “Cindy” explicitly discuss proposed sexual behavior involving him, “Cindy,” and “Sabrina.”

II. THE PROCEDURAL BACKGROUND

The State filed an information against Mr. Mizner charging him with four offenses: Count 1, soliciting a parent to consent to sex with a minor in violation of section 847.01S5(3)(b), Florida Statutes (2011), a third-degree felony; Count 2, traveling to meet a minor in violation of section 847.0135(4)(b), a second-degree felony; Count 3, unlawful use of a two-way communications device in violation of section 934.215, Florida, Statutes (2011), a third-degree felony; and Count 4, attempt to commit sexual battery by a person eighteen years of age or older upon a child less than twelve years of age in violation of sections 794.011(2)(a) and 777.04(1), (4)(b), Florida Statutes (2011), a first-degree felony. At trial, Mr. Mizner raised the defense of subjective entrapment, and the trial court instructed the jury on that defense. However, he did not raise the issue of objective entrapment in the trial court. Mr. Mizner did not take the stand in his own defense, and he did not call any witnesses on his behalf. The jury rejected Mr. Mizner’s subjective entrapment defense and found him guilty as charged on all four counts.

The trial court adjudged Mr. Mizner to be guilty in accordance with the jury’s verdict. The trial court imposed sentences on Mr. Mizner as follows: Count 1, five years in prison; Count 2, fifteen years in prison; Count 3, five years in prison; and Count 4, twenty years in prison followed by ten years of sex offender probation. The trial court designated the sentences to run concurrently. Also, the trial court designated Mr. Mizner to be a sexual predator.

III. MR. MIZNER’S APPELLATE ISSUES

On appeal, Mr. Mizner raises five issues. First, he argues that the trial court erred in denying his motion for judgment of acquittal and motion for new trial with regard to Count 1, the soliciting offense. Second, Mr. Mizner contends that the trial court erred in denying his motion for judgment of acquittal on count 4, the offense of attempted sexual battery. Third, Mr. Mizner asserts that the trial court erred in refusing to give the jury his special jury instruction on attempted sexual battery. Fourth, Mr. Mizner argues that his convictions for soliciting and unlawful use of a two-way communications device violate double jeopardy because they are subsumed within the other offenses and occurred during a single act. Finally, Mr. Mizner asserts that fundamental error exists with regard to all four of the offenses for which he was found guilty because the conduct of the law enforcement officers at issue is so outrageous that it constitutes objective entrapment. We find merit in Mr. Mizner’s second and fourth arguments. Mr. Mizner’s first and fifth arguments are without merit and do not warrant further discussion. Based on our disposition of Mr. Mizner’s second argument, his third argument is moot. We turn now to a discussion of Mr. Mizner’s arguments about the sufficiency of the evidence to prove the commission of attempted sexual battery and the double jeopardy issues.

IV. DISCUSSION

A. Mere Preparation or Overt Act toward the Commission of Sexual Battery?

On his second appellate issue, Mr. Miz-ner concedes that he appeared at the restaurant on Clark Road at the appointed time carrying a box of candy for “Sabrina” and two boxes of condoms. However, Mr. Mizner argues that his actions in this regard were preparatory only and did not amount to the overt act necessary to prove an attempt to commit a sexual battery on a minor less than twelve years of age. In order to analyze Mr; Mizner’s argument on this issue, we must first review the pertinent facts.

During Mr. Mizner’s initial exchange of instant messages with “Cindy” on November 1, he suggested that the parties meet at the fast food restaurant on Clark Road. “Cindy” subsequently responded to this suggestion as follows: “I like [the restaurant] you mentioned before because we could sit an [sic] talk first and get to know each other first.” In a subsequent telephone conversation with Mr. Mizner, the Detective, who was playing the role of “Cindy,” outlined her plan for the meeting with Mr. Mizner and subsequent events. First, Mr. Mizner and “Cindy” would have lunch at the restaurant and talk. Later, after arriving at “Cindy’s” home in Zolfo Springs, they would pick up “Sabrina” from school, return home, and have dinner. Finally, “Cindy,” “Sabrina,” and Mr. Miz-ner would retire to “Cindy’s” bedroom.

The pertinent law concerning the necessity for an overt act to prove an attempt is relatively straightforward, but it is often difficult in its application to individual cases. Section 777.04(1) defines an attempt for purposes of the criminal law as follows: “A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt.” “In Florida, the two elements comprising an attempt to commit a crime are (1) a specific intent to commit the crime and (2) an overt act done toward its commission that is beyond mere preparation.” Enix v. State, 69 So.3d 354, 357 (Fla. 2d DCA 2011) (citing State v. Coker, 452 So.2d 1135, 1136 (Fla. 2d DCA 1984)). The Coker court explained the difference between mere preparation and an overt act as follows:

Preparation generally consists of devising or arranging the means or measures necessary for the commission of the offense. The attempt is the direct movement toward the commission after
preparations are completed. The act must reach far enough toward accomplishing the desired result to amount to commencement of the consummation of the crime. Some appreciable fragment of the crime must be committed and it must proceed to the point that the crime would be consummated unless interrupted by a circumstance independent of the attempt[e]r’s will. The act need not be, however, the ultimate, the last ,proximate, or the last possible act toward consummation of the crime.

Coker, 452 So.2d at 1136 (citations omitted). “[T]he line between preparatory acts and overt acts is difficult to draw and tends to be case specific.” Hudson v. State, 745 So.2d 997, 1000 (Fla. 2d DCA 1999).

In reviewing the facts in this case, two reasons lead us to conclude that Mr. Mizner’s conduct constituted mere preparation and not overt acts leading to the commission of a sexual battery on a minor less than twelve years of age. First, the arrangements that “Cindy” made for Mr. Mizner to meet “Sabrina” were expressly conditional. According to “Cindy’s” instant message, she and Mr. Mizner were to “sit an [sic] talk first and get to know each other first.” If either party felt uncomfortable for any reason, he or she could just walk away. It follows that the meeting at the restaurant in Sarasota was just a preliminary step to whatever might follow. A decision by both parties to proceed further was necessary before Mr. Mizner could be introduced to “Sabrina.” Under these circumstances, it cannot be said that an appreciable fragment of the crime had been committed at the restaurant and that it would proceed to the point that the crime would be completed unless interrupted by a circumstance independent of Mr. Mizner’s will.

Second, when Mr. Mizner was arrested in the restaurant parking lot in Sarasota, he was approximately sixty miles and eight-to-ten hours away from the proposed sexual contact with “Sabrina.” Before that event could occur, the following steps needed to happen: (1) Mr. Mizner and “Cindy” had to eat lunch at the restaurant; (2) “Cindy” had to drive Mr. Mizner to Zolfo Springs; (3) Mr. Mizner and “Cindy” had to pick up “Sabrina” from school; and (4) dinner had to be prepared, served, and eaten. It would have been impossible for Mr. Mizner to have committed a sexual battery upon “Sabrina” in Sarasota. Here, the nature of the impossibility at issue is not that “Sabrina” is a fictitious persona. Instead, to the extent that “Sabrina” is a person for the purpose of our analysis of Mr. Mizner’s culpability under the law of attempts, she was attending school in another community approximately sixty miles away when the law enforcement officers placed Mr. Mizner under arrest. Thus Mr. Mizner could not have committed a sexual battery upon “Sabrina” in Sarasota. Undeniably, at the time of his arrest in the restaurant parking lot, Mr. Mizner had not committed an act reaching far enough toward accomplishing a sexual battery to amount to the beginning of the completion of that crime. These circumstances distinguish Mr. Mizner’s case from other cases where the target of the sting operation arrived at a residence or a vehicle within which he believed that the minor was waiting. In those cases, unlike this one, the target had a realistic expectation of imminent contact with the minor. See Hudson, 745 So.2d at 1000; Carlisle v. State, 105 So.3d 625, 626-27 (Fla. 5th DCA 2013); Bist v. State, 35 So.3d 936, 941-42 (Fla. 5th DCA 2010).

Here, Mr. Mizner’s lack of his own transportation prevented the FDLE Agent and the other law enforcement officers from achieving their tactical goal of having him drive himself to the undercover residence in Zolfo Springs. See generally Sheetz, supra at 414-15 (discussing the tactical and strategic reasons that law enforcement agencies prefer to have the target of such investigations meet the undercover officer at the officer’s location). Thus they had to improvise with a meeting at a distant location and to make the arrest of Mr. Mizner in Sarasota. This hitch in their operational plan does not justify ignoring the absence of an overt act by Mr. Mizner toward the commission of a sexual-battery on “Sabrina.”

For these reasons, the trial court erred in denying Mr. Mizner’s motion for a judgment of acquittal on count 4 of the information, attempted sexual battery on a minor less than twelve years of age. Accordingly, we reverse Mr. Mizner’s judgment and sentence for attempted sexual battery and remand for his discharge on that offense.

B. The Double Jeopardy Issues.

On his fourth appellate issue, Mr. Mizner argues that his convictions for soliciting a parent to consent to sex with minor, in violation of section 847.0135(3)(b), and unlawful use of a two-way communications device, in violation of section 934.215, violate the prohibition against'double jeopardy. He argues that the elements of the offense of soliciting are subsumed within the elements of the offense of traveling to meet a minor and that his convictions for both offenses within the same criminal episode violate the prohibition against double jeopardy. Similarly, he argues that the elements of the offense of unlawful use of a two-way communications device are subsumed into the elements of the offenses of soliciting and traveling and that all of the offenses occurred during a single episode. Accordingly, his conviction for the unlawful use of a two-way communications device violates the prohibition against double jeopardy. Mr. Mizner did not raise his double jeopardy arguments in the trial court, but he may raise them for the first time on appeal because a double jeopardy violation constitutes fundamental error. Bell v. State, 122 So.3d 958, 959 n. 1 (Fla. 2d DCA 2013).

The State acknowledged in its answer brief and at oral argument that the offenses do not each contain a separate element of proof that the others do not and that the offense of solicitation is subsumed within the traveling offense and that the offense of unlawful use of a two-way communications device is subsumed within the traveling and soliciting offenses. Thus, the State acknowledged that Mr. Mizner’s convictions would not withstand scrutiny under a Blockburger analysis, as codified in section 775.021(4)(b), Florida Statutes (2011), if they were committed within the same criminal episode.

Mr. Mizner’s argument, and the State’s concession, that the solicitation offense is subsumed within the traveling offense is consistent with this court’s recent holding to that effect in Shelley v. State, 134 So.3d 1138 (Fla. 2d DCA 2014), review granted, No. SC14-755, 2014 WL 3360176 (Fla. Jul. 1, 2014). In addition, we agree with the parties’ arguments that the offense of unlawful use of a two-way communications device in this case was subsumed within the soliciting and traveling offenses.

Section 934.215 provides, in pertinent part, that “[a]ny person who uses a two-way communications device, including, but not limited to, a portable two-way wireless communications device, to facilitate or further the commission of any felony offense commits a felony of the third degree.” The offenses of soliciting and traveling both require the use of “a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission” as an element of those offenses, and both offenses are felonies. § 847.0135(3)(b), (4)(b). Thus the proof of the unlawful use of a two-way communications device was subsumed within the proof of the soliciting and traveling offenses in this case.

The State argues that because the evidence at trial would support a finding that each of the offenses occurred on different days during separate episodes we should affirm Mr. Mizner’s convictions. We recognized in Shelley “that convictions for both soliciting and traveling may be legally imposed in cases in which the State has charged and proven separate uses of computer devices to solicit.” 134 So.3d at 1142. However, because in Shelley the State charged only one use of computer devices to solicit based on conduct that occurred on the same day as the traveling offense, we rejected the State’s argument that the evidence reflected three separate uses of computer devices such that the soliciting charge was not subsumed within the traveling charge. Id. at 1141-42.

Although the offenses charged in this case spanned more than one day, the State charged single counts of soliciting, traveling, and unlawful use of a two-way communications device. And, the State charged each of the offenses over the same time period, from November 1, 2011, to November 4, 2011. Thus we reject the State’s argument, as we did in Shelley, that the evidence could support convictions for each offense as occurring during a separate criminal episode. The State did not charge the offenses as occurring during separate criminal episodes; rather, it charged them as occurring during a single criminal episode. See id. (“We find no legal basis to deny a double jeopardy challenge based on uncharged conduct simply because it could have been charged.”) Accordingly, we vacate Mr. Mizner’s judgment and sentences for soliciting a parent to consent to sex with a minor and for unlawful use of a two-way communications device.

Finally, we note that in Shelley, we rejected the State’s argument that although the soliciting offense in that case was subsumed in the traveling offense, the legislature intended to allow multiple punishments for the two crimes. After reviewing the statutory language, we concluded in Shelley that “there is an explicit statement of the legislature’s intent to authorize multiple punishments for each violation of section 847.0135(3)(b) [ (soliciting) ]. However, there is no explicit statement of intent to authorize multiple punishments for conduct that violates both section 847.0Í35(3)(b) and section 847.0135(4)(b) [ (traveling) ].” Id. at 1140. We noted that the First District had reached the opposite conclusion in State v. Murphy, 124 So.3d 323 (Fla. 1st DCA 2013), and certified conflict with Murphy.

Here, the State summarized in its brief the First District’s conclusion in Murphy as follows: “[BJecause these two offenses[, soliciting and traveling,] are separately established and defined and punished as separate degrees of offenses, there is no double jeopardy violation.” But the State acknowledged that the offenses of soliciting and traveling are “part of the very same statutory section” and “[t]hus, it is debatable whether the statutory scheme clearly establishes the legislature’s intent to separately convict and punish a defendant for these two offenses when they are committed in the same criminal episode.”

On the issue of legislative intent, we are bound by our decision in Shelley, which has been accepted for review by the Florida Supreme Court. However, as we did in Shelley, we certify conflict with the First District’s holding in Murphy.

V. CONCLUSION

For the foregoing reasons, we vacate Mr. Mizner’s judgment and the sentences imposed with regard to Count 1, soliciting a parent, and Count 3, unlawful use of a two-way communications device. We reverse Mr. Mizner’s judgment and sentence on Count 4, attempt to commit sexual battery. On remand, the trial court shall discharge Mr. Mizner on this offense. We affirm the judgment imposed with regard to Count 2, traveling to meet a minor, and we vacate Mr. Mizner’s sentence for Count 2. Because Mr. Mizner’s conviction for attempt to commit sexual battery by a person eighteen years of age or older upon a child less than twelve years of age was the primary offense on Mr. Mizner’s score-sheet, he is entitled to resentencing with a corrected scoresheet on his remaining conviction for traveling to meet a minor. See Vroom v. State, 48 So.3d 82, 84. (Fla. 2d DCA 2010). We also certify conflict with Murphy.

Affirmed in part; vacated in part; reversed and remanded in part; and conflict certified.

ALTENBERND and NORTHCUTT, JJ., Concur.

      . For examples of cases involving a "sexual mentor" sting operation, see State v. Murphy, 124 So.3d 323 (Fla. 1st DCA 2013); United States v. Poehlman, 217 F.3d 692 (9th Cir. 2000); United States v. Gamache, 156 F.3d 1 (1st Cir. 1998); State v. Canaday, 263 Neb. 566, 641 N.W.2d 13 (2002). The “sexual mentor” version of internet sting operations directed at pedophiles can be problematic because some targets of the operation may feel pressured to agree to “teach” a child about sex in the hope of obtaining a sexual relationship with the child’s older relative. See Christa M. Book, Do You Really Know Who is on the Other Side of Your Computer Screen? Stopping Internet Crimes Against Children, 14 Alb. L.J. Sci. & Tech. 749, 762, 771 (2004).

      . Subjective entrapment occurs when
      [a] law enforcement officer ... for the purpose of obtaining evidence of the commission of a crime ... induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.
      § 777.201(1).

      . Objective entrapment occurs where “even a predisposed defendant’s due process rights are violated.” Gennette v. State, 124 So.3d 273, 277 n. 5 (Fla. 1st DCA 2013); see also Bist v. State, 35 So.3d 936, 939, 941 (Fla. 5th DCA 2010) (discussing the defense of outrageous government conduct or objective entrapment in the context of a sting operation directed at pedophiles); Michael W. Sheetz, CyberPredators: Police Internet Investigations Under Florida Statute 847.0135, 54 U. Miami L.Rev. 405, 431-38 (2000) (discussing the defense of objective entrapment). "Due process is violated when the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” Bist, 35 So.3d at 939 (internal quotation marks omitted).

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

      . Section 775.021(4) provides in pertinent part as follows:
      (b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
      1. Offenses which require identical elements of proof.
      2. Offenses which are degrees of the same offense as provided by statute.
      3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

      .The Fourth and Fifth Districts reached a similar result in Hartley v. State, 129 So.3d 486 (Fla. 4th DCA 2014), and Finder v. State, 128 So.3d 141 (Fla. 5th DCA 2013). In Pin-

        der, the district court agreed with the defendant’s "argument that a single violation of □section [847.0135](3)(b)[, soliciting,] would be a lesser-included offense of an offense found under subsection (4)(b), [traveling,]” but affirmed the defendant's convictions for each offense because "the information alleged, and the evidence established, more than one violation of subsection (3)(b).” 128 So.3d at 142.


source: Caselaw Access Project

author: CONNER, J.

license: Public Domain

text:
    Jonathan Joseph COVELLO, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-765.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2014.

      Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack, Assistant Attorney General, West Palm Beach, for appel-lee.
   ON MOTION FOB REHEARING

CONNER, J.

We grant the appellee’s motion for rehearing, withdraw our opinion dated October 15, 2014, and issue the following in its place:

Jonathan Joseph Covello appeals his judgment and sentence after a jury found him guilty of burglary of a dwelling with an assault while masked, home invasion robbery while masked, and grand theft. On appeal, Covello argues that the trial court erred in: (1) denying his motion to reopen his case after an item of evidence was misrepresented by the State; (2) denying his motion for judgment of acquittal as to the burglary of a dwelling with an assault and grand theft counts; and (3) failing to take any action on the count of home invasion robbery while masked in violation of double jeopardy. We reverse the trial court’s denial of Co-vello’s motion to reopen his case. We also reverse Covello’s conviction for grand theft because the evidence supported a conviction for only first degree petit theft. We affirm without discussion the denial of the motion for judgment of acquittal as to the burglary of a dwelling with an assault ' while masked. The double jeopardy issue is rendered moot by our reversal for a new trial.

Factual Background and Trial Proceedings

At trial, the victim of all three of the charges testified that she was home alone at night, when she was awoken by someone standing next to her bed telling her to wake up. It was dark in the room, but the victim said that she could tell the intruder was young. He was wearing a black hooded sweatshirt and jeans. The hood on the sweatshirt was pulled over his head so that it covered most of his face.

The victim testified that she and the intruder went to various rooms in her house, and the intruder took items, such as her grandson’s Nintendo DS, a video camera, a camera and case, a necklace, a cell phone, and some keys. Although her bedroom had been dark, the victim testified that when the two were in the kitchen she could see better because there were no blinds on the kitchen window and there was a streetlight outside. She could see that the intruder had a “real short haircut,” was not very tall, had no bangs hanging down, and appeared to have a “crew cut.”

After the two walked around the house for about ten minutes, the intruder left the victim’s home out of the back door, telling her to “have a nice night now, ma’am, okay?” The victim locked the door and called 911.

Once officers arrived, the victim explained that her cell phone was missing. The officers used the GPS on the phone to track its location to a house on Hernando Street. An officer brought the victim to that location to conduct a show up.

While the investigation was beginning, Officer T responded to the area and stopped two young men walking in the road who seemed suspicious. The individuals were Thomas and Sizemore. Officer T testified that neither of the two males had anything in their hands, but that Size-more was wearing swimming trunks and no shirt or shoes. Officer T let the two go after taking down their information and the location where they were heading, which was a house on Hernando Street.

Officer G, a K-9 officer, also responded to the victim’s house, and began to track the scent left by the intruder with his K-9. Officer G testified that his K-9 tracked the scent from the victim’s back door to a body of water nearby, resumed the track at a different location, and ended in front of the same house on Hernando Street to which Thomas and Sizemore said they were heading. Once tracked to the house on Hernando Street, Officer G was informed that there was someone in the attic of the house. Officer G went to the attic, announced his presence, crawled up, and eventually apprehended Covello after he “popped up” and took off to the other side of the attic.

J.B., a friend of Thomas, testified that she went to Thomas’s house on Hernando Street on the night of the incident to visit him. When she and her friends arrived at his house, no one was there, so they went inside and waited on the couch. She testified that about five minutes after she arrived, Thomas and Sizemore arrived home, and then a few minutes later, Covello arrived. J.B. stated that Covello was “sweaty and panicking when he arrived,” did not have anything in his hands, and was wearing only jeans and no shirt. She stated that, when he came in, Covello said “I just robbed somebody” and ran into the bedroom. He then ran out of the bedroom and said that the “cops are here, I’m going to the attic.” J.B. testified that after hearing that, she decided she and her friends should leave, but when they started to leave the house, police officers were already in the driveway. She told the officers that Covello was hiding in the attic.

Outside the house, Detective C spoke to Sizemore and Thomas. He testified that Sizemore was “soaking wet” and “drenched,” like he had just been swimming in his clothes, not just sweating. He further testified that Thomas was also wet and his legs were covered in grass and dirt.

At the house on Hernando Street, Officer M conducted a show-up with the victim using Thomas, Sizemore, and Covello. Thomas was shown to the victim first, but the victim said that he was not the perpetrator because he was too tall with a lot of hair. Sizemore was shown next, but the victim said he was not the perpetrator because he was shorter with “too much hair” and his hair was blonde (suggesting the perpetrator’s hair was darker). The third person she was shown was Covello. Unlike Thomas and Sizemore, Covello was in handcuffs during the show-up. The victim said she was “pretty sure” that he was the person in her home based on his build and his hair.

The State entered a photograph of Co-vello into evidence during its examination of Officer G. After making an in-court identification of Covello as the person he found in the attic, the State attempted to lay the foundation for the photograph of Covello:

Q: Officer, I’m showing you what’s been previously marked as State’s exhibit 51, do you recognize that?
A Yes.
Q: Okay, and what is that?
A: That is a picture of the suspect.
Q: Ah, and by, by suspect you mean the person you just pointed to, right?
A: Yes.
Q: Okay. And the hairstyle in this photograph, is it similar to how it looks today?
A: Yes.
Q: Okay. And was this person the way he looked on December 1st of 2010 when you apprehended him in the attic?
A: Yes.

When the State sought to enter the photograph into evidence, Covello objected. At sidebar, Covello argued that the photograph in the State’s exhibit had been excised from a larger picture, he was not sure when the picture was taken, and asked to know when the picture was taken for potential impeachment purposes. The State responded that the exhibit was excised from Covello’s booking photo, so it did not want to show the remainder of the picture since it showed Covello in his jail clothes. The State then represented:

Court: So [exhibit 51] was the date of his arrest?
State: Yeah.
Defense: So that’s your, your representation. I’ll go with that if that’s...
State: Yes, I mean...
Defense: What they say. Okay, good enough.
State: I’ll, but, but I wanna make sure that there’s no, because if, if you were also wanting for impeach-merit he’s gonna answer it’s his booking photo, so I just wanna make sure that’s not the avenue you intend to go and not expect him to, no, okay, I just wanna make sure.
Defense: No.

The photograph was admitted into evidence as State’s exhibit 51.

During its closing argument, the State referred to State’s exhibit 51 as follows:

Now Mister Sizemore, they want you to believe he must be the culprit, but [the victim] was specifically asked did this person have bangs and if you look at this picture of Mister Sizemore that was taken the night of the incident and this is State’s exhibit 49 for the record ah, he has hair nothing like Jonathan Covello. Nothing like it. And you have a picture in that evidence of Mist, what Mister Covello’s hair looked like on that night. It looks nothing like this.
Short, shaved hair and this, again this came out as evidence, this was the night of the incident. The night of the incident, nothing like Brett Sizemore, nothing like it.

(emphasis added).

After closing arguments, but before the jury instructions were given, Covello brought an issue with State’s exhibit 51 to the trial court’s attention. Covello’s attorney stated that Covello had just shown him his actual booking photograph taken the night of his arrest, and pointed out that State’s exhibit 51 was excised from a photograph taken when Covello had been transported from a different county jail only a few days prior to the trial. Based on this information, defense counsel asked to reopen Covello’s case, for him to testify in a limited fashion and to lay the foundation to introduce his actual booking photograph from the night he was arrested. Defense counsel stated that Covello understood that by taking the stand to lay the foundation, he would be open to impeachment based on his prior convictions. Upon inquiry, Covello testified he had his booking photograph in his property locker at the jail at the beginning of trial, but he was unable to retrieve it from his property locker until the night before his proffer of testimony.

The State argued that it would be “borderline ludicrous” to allow Covello to reopen his case, that the officer authenticated the photograph as looking similar to what Covello looked like on the night of his arrest, and if the State “misspoke” in its closing argument, stating that State’s exhibit 51 was taken the night of the arrest, that was not how the testimony was presented at trial. The trial court denied the request to reopen evidence because the photograph was in Covello’s possession throughout the trial and he had demanded a speedy trial. Covello proffered his testimony that State’s exhibit 51 was actually taken the Friday before trial, and the proposed defense exhibit 3 was the photograph taken when he was booked into the jail on December 1, 2010.

The jury found Covello guilty on all three counts, as charged. The trial court sentenced Covello to life for the burglary count and five years concurrent for the grand theft count. The trial court did not adjudicate or sentence him on the home invasion robbery charge because the State acknowledged it would violate double jeopardy to adjudicate Covello of both burglary of a dwelling with an assault while masked and home invasion robbery while masked, but asked the judge

to sentence on the burglary of a dwelling with an assault while masked ... however for purposes of appeal the State is asking that you not dismiss the home invasion count, you just kinda leave it out there that way he’s not being sentenced on that charge, but it’s not dismissed by this Court.

This appeal followed.

Legal Analysis

State’s Exhibit 51

“The decision to reopen a case lies within the discretion of the trial court and will not be disturbed on appellate review absent an abuse of discretion.” Santiago v. State, 21 So.3d 877, 881 (Fla. 4th DCA 2009) (quoting Donaldson v. State, 722 So.2d 177, 181 (Fla.1998)) (internal quotation marks omitted). However, “a denial will be reversed where the request is timely made and the jury will be deprived of evidence which might have had significant impact upon the issues to be resolved.” Santiago, 21 So.3d at 881 (quoting Delgado v. State, 573 So.2d 83, 86 (Fla. 2d DCA 1990)).

The jury was deprived of evidence which might have had a significant impact upon the issues to be resolved. The State argued to the jury that its exhibit 51 was a photograph taken from the night Covello was arrested. The record on appeal shows this assertion to be misleading. Comparing the photograph from the night Covello was arrested with State’s exhibit 51, there is a difference in Covello’s hair length. Since the victim’s identification of Covello as the person who was in her home was based at least partially on his hair length, it was important that the jury be able to view how Covello’s hair actually looked on the night of his arrest.

Even if there is a difference between the hair lengths of Sizemore and Covello in the photographs, as the State argues, there are additional factors which indicate that Covello should have been given an opportunity to show the jury the actual photograph from the night he was arrested: (1) the victim’s description of the intruder’s haircut and length,, (2) the relative difference in the length of Covello’s hair in State’s exhibit 51 and defense exhibit 3, and (3) the fact that the victim indicated that she was “pretty sure” Covello was the intruder. Since the standard is whether the jury was deprived of evidence which might have had a significant impact, these factors, as well as the implications therefrom which Covello could have argued, would have provided the jury with not only evidence of which it was previously deprived, but also a true depiction of the facts of the case. Additionally, since the State’s closing argument focused on comparing the photograph of Sizemore and the photograph of Covello in its exhibit 51 from “the night of the incident” as the State argued, it is clear that the jury should have been given the opportunity to view a true comparison of the hair styles.

Additionally, Covello’s request to reopen his case was timely. In Santiago, we reversed a trial court’s ruling denying a defendant’s request to reopen his case after the jury was instructed. 21 So.3d at 879. In that case, a Jimmy Ryce trial was held. Id. at 878. Only one of the defendant’s doctor-witnesses was allowed to give an opinion regarding the defendant’s risk to reoffend, and she opined that he was not a risk to reoffend. Id. at 879. The defendant’s doctor-witness testified that she was a member of a psychology association. Id. The State offered a -witness in rebuttal who testified and provided a letter from the organization stating that the defendant’s doctor-witness was not a member of the organization. Id. After the closing arguments were given and the jury was instructed, but before deliberations began, the defendant’s attorney informed the court that the defendant’s doctor-witness had just gotten off of a plane and would fax a copy of her membership card in the organization to prove she was a member. Id. at 879-80. The defendant requested that he be allowed to reopen his case to enter the copy of the membership card into evidence to rebut the State’s witness’s assertion that she was not a member of the organization. Id. at 880. The trial court denied the request. Id.

In discussing the timeliness of a request to reopen evidence at trial, we quoted our ■ supreme court:

Even if the case had been technically closed, it would have been an abuse of discretion to refuse to open the case and permit the evidence to be introduced, upon the proper showing being made as to why it had been previously omitted.

Id. at 881-82 (quoting Steffanos v. State, 80 Fla. 309, 86 So. 204 (1920)) (citation omitted). We held that, since the State’s evidence misled the jury, and was compounded by the prosecutor’s argument in closing that reinforced the statements testified by the State’s witness, the defendant should have been allowed to reopen his case. Id. at 882.

In this case, the trial had not even proceeded as far as the trial in Santiago, as the jury had not yet been instructed. Therefore, the fact that Covello requested that he be allowed to reopen his case after closing arguments does not make his request per se untimely. Our supreme court has held that a defendant should be allowed to reopen his case when “the cause had not proceeded so far that the ends of justice would have been defeated, or the orderly processes of the court disturbed, by an admission of the testimony.” Steffa-nos, 86 So. at 206. Here, the jury had not yet been instructed, and there would have been little disorder to the process to allow Covello to submit defense exhibit 3 into evidence. Since the photograph that Co-vello wanted to introduce would have been entered with his limited testimony, it would not have interrupted the proceedings.

The State argues that any error involved in the trial court’s ruling was harmless. We disagree. Since the appearance of the hair of all three suspects played a vital role in the victim’s identification of Covello, we cannot say, beyond a reasonable doubt, that the trial court’s denial of Covello’s motion to reopen his case “did not contribute to the verdict.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986). Covello should have been given the opportunity to correct the misrepresentation that the State presented to the jury. We therefore reverse Covello’s conviction, and remand the case for a new trial.

Judgment of Acquittal as to Grand Theft

“Appellate review of the denial of a motion for judgment of acquittal is de novo.” Burkell v. State, 992 So.2d 848, 851 (Fla. 4th DCA 2008) (citations omitted).

In order for a person to be convicted of “grand theft, the State must prove that the value of the [property taken] was greater than $300.” Mansfield v. State, 954 So.2d 74, 76 (Fla. 4th DCA 2007) (citing § 812.014(2)(c)l„ Fla. Stat. (2005)). “Florida courts have found that an owner’s opinion of fair market value is sufficient where it is supported by ‘evidence establishing the condition, quality, age, or depreciation of the item at the time it was stolen.’” Sanchez v. State, 101 So.3d 1283, 1287 (Fla. 4th DCA 2012) (quoting K.W. v. State, 983 So.2d 713, 715 (Fla. 2d DCA 2008)) (emphasis added).

The State failed to elicit sufficient testimony from the victim regarding the value of the items taken. For most of the items, the State failed to even elicit a fair market value, and where it did, the opinion was not supported with evidence establishing condition, quality, age, or depreciation of the items. The only stolen item for which the State established an adequate fair market value for was the cell phone, which the victim estimated had a fair market value of $200. The establishment of the $200 value of the phone is not enough to prove that the value of the items taken was greater than $300.

Because there was insufficient proof of value to prove grand theft, the judgment of acquittal as to grand theft should have been granted, and the count should have proceeded as a petit theft. See Mansfield, 954 So.2d at 77. On retrial, the State is prohibited from proceeding on a theory that the value of the stolen property was more than $300. Florida Rule of Criminal Procedure 3.640 states that:

When a hew trial is granted, the new trial shall proceed in all respects as if no former trial had occurred except that when an offense is divided into degrees or the charge includes a lesser offense, and the defendant has been found guilty of a lesser degree or lesser included offense, the defendant cannot thereafter be prosecuted for a higher degree of the same offense or for a higher offense than that of which the defendant was convicted.

Fla. R. Crim. P. 3.640. Additionally, our supreme court, in Delgado v. State, 948 So.2d 681, 686 (Fla.2006), “recognize[d] that an acquittal is required when a conviction is not supported by factually sufficient evidence, and that such an acquittal gives rise to double jeopardy protections.” (emphasis added) (internal citations omitted). Since we determine that the State provided factually insufficient evidence at trial, jeopardy attached, and Covello cannot be retried for any degree of theft greater than first-degree misdemeanor petit theft. We find this consistent with rule 3.640 as well, since, if the trial court had granted Covello’s motion for judgment of acquittal at trial, as we find would have been proper, the jury would have been able to find Covello guilty of only a first-degree misdemeanor petit theft.

Reversed and remanded.

STEVENSON and TAYLOR, JJ., concur.

      . Although moot, we point out that the State concedes error as to the inaction by the trial court regarding the home invasion robbery count (invited by the State). Although the trial court did not sentence or adjudicate Co-vello on the home invasion robbeiy while masked charge, a court cannot avoid a double jeopardy issue by failing to act on a charge. See Murphy v. State, 16 So.3d 269 (Fla. 5th DCA 2009) ("A trial court must adjudicate and sentence a defendant convicted of a crime, or in an appropriate case, adjudicate the defendant not guilty due to a lack of sufficient evidence to convict, double jeopardy, or any other legally sufficient reason. The trial court may not simply refuse to act.”).

      . Covello was held in a jail in another county during trial and was transported between jails on more than one occasion. For security reasons, a photograph was taken of him each time he was transported between jails.

      . A "Jimmy Ryce” trial is a proceeding to determine if a defendant should be involuntarily committed for treatment as a sexually violent predator. § 812.135, Fla. Stat. (2014).


author: PER CURIAM

text:
    Omar FERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D14-805, 3D14-948.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 2014.

      Omar Fernandez, in proper person.
    Pamela Jo Bondi, Attorney General, and Brent J. Kelleher, for appellee.
    Before WELLS, EMAS and LOGUE, JJ.
   ON MOTION FOR REHEARING

PER CURIAM

Addressing Appellant’s Motion for Rehearing and “Motion to Notify” filed in these consolidated appeals from orders denying his motions to withdraw his plea and to correct an illegal sentence, we grant rehearing, vacate our earlier decision affirming those orders and substitute this opinion in its stead.

The gist of Appellant’s motions below is that he agreed to plead guilty and to a 39.6 month sentence because the trial court, relying on an inaccurately calculated guidelines scoresheet, represented to him that this was a bottom of the guidelines sentence. More specifically, Appellant claims (1) that the scoresheet on which the trial court relied incorrectly scored a prior conviction for simple battery, a misdemeanor, as an aggravated battery, a second degree felony, which should have resulted in a bottom of the guidelines sentence of 36.15 months rather than the 39.6 months represented, and (2) if the guidelines scoresheet had been correctly calculated he would not have accepted the 39.6 month sentence offered. The trial court summarily denied these motions.

While we agree that Appellant has made a sufficient showing that the battery was improperly calculated, resulting in a “false bottom” of the guidelines and entitling him to an evidentiary hearing, we do not necessarily agree (nor do we determine here) that when properly calculated the bottom of the guidelines will be less than the 39.6 months offered and accepted. We note this issue only because an Assistant Public Defender, present at the hearing conducted below on these motions, advised the trial court of “a genuine concern that if a new score sheet were to be filed it would actually be greater than the number — the 39.6 and that was a concern that I had addressed with [Appellant] prior to the plea.” We therefore, reverse the orders entered below denying Appellant’s motions to vacate plea and to correct sentence to conduct a hearing to determine whether the scoresheet on which the trial court relied was incorrectly calculated and if so, whether but for the incorrect calculation, Appellant would not have entered into a plea to the incorrectly calculated bottom of the guidelines scoresheet.

Accordingly, the orders on appeal are reversed and this matter remanded for further proceedings in accordance herewith.

      . Should Appellant prevail on these claims, his plea will be withdrawn, his judgment and sentence vacated, and a new and accurate guidelines scoresheet shall be prepared accurately scoring all of Appellant's prior convictions, and the parties shall be returned to the same procedural posture as that existing before the current plea. Nothing in this opinion shall obligate the court below to offer a bottom of the guidelines sentence should Appellant prevail on his claims, nor shall anything herein preclude it from offering a plea to any newly-calculated bottom of the guidelines.


author: PER CURIAM.

text:
    Robert J. BOGDANOFF, Appellant, v. BROKEN SOUND CLUB, INC., Appellee.
    No. 4D13-3124.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2014.
    Rehearing En Banc Denied Jan. 29, 2015.

      Shane M. Farnsworth of Shane M. Farnsworth, P.A., Delray Beach, for appellant.
    Dale W. Schley, II, of Laing & Weicholz, P.L., Boca Raton, for appellee.
   PER CURIAM.

Appellant Robert J. Bogdanoff appeals the final order of summary judgment entered against him and in favor of Appellee Broken Sound Club, Inc. (“Broken Sound”) on its complaint to recover delinquent dues and fees from Appellant’s membership in Broken Sound Club. Appellant also appeals the order granting Broken Sound’s motion to transfer the cause from county court to circuit court, the order granting Broken Sound’s motion to dismiss his counterclaim, and the denial of his motion to disqualify a judge. We find no error in the trial court’s decisions below and, therefore, affirm the final judgment without further comment except as to the issue of the transfer of the case from county court to circuit court.

Appellant maintains that the transfer of his case to the circuit court was improper because Broken Sound’s complaint only alleged the jurisdictional limits of the county court and no amended complaint was filed, leaving the circuit court without subject matter jurisdiction to hear the case. We review the question of subject matter jurisdiction de novo. Sanchez v. Fernandez, 915 So.2d 192, 192 (Fla. 4th DCA 2005).

The parties correctly assert that a court’s subject matter jurisdiction over a case generally depends on the good-faith allegations in the complaint as to an amount in controversy. See Wendler v. City of St. Augustine, 108 So.3d 1141, 1143 n. 3 (Fla. 5th DCA 2013). While recognizing this, the Florida Supreme Court has stated that the test is twofold and held that, “notwithstanding the bona tides of the plaintiffs demand at the time of institution of suit, as a matter of judicial power the county court is precluded from entering a judgment for damages in excess of its mandated jurisdiction.” White v. Marine Transp. Lines, Inc., 372 So.2d 81, 84 (Fla.1979). Since 1992, the county court has had jurisdiction to hear matters in controversy not exceeding $15,000. § 34.01(1X0), Fla. Stat. (2012).

In our instant case, transfer of the cause was proper where the amount owed by Appellant to Broken Sound continued to accrue over the years of pending litigation and the county court would have been precluded from entering a final judgment as to the correct amount owed, which exceeded $15,000. While Appellant does not challenge the jurisdictional limitation of the county or circuit court, he asserts that Broken Sound’s failure to amend the original complaint to invoke the subject matter jurisdiction of the circuit court deprives the circuit court of that jurisdiction.

“If it should appear at any time that an action is pending in the wrong court of any county, it may be transferred to the proper court within said county by the same method as provided in rule 1.170(j).” Fla. R. Civ. P. 1.060(a). Rule 1.170(j), governing transfers of actions when counterclaims and crossclaims are added to make the demand exceed the jurisdictional limitation of a court, notes that the transfer should occur “with only such alterations in the pleadings as are essential.” Fla. R. Civ. P. 1.170(j). What is essential to a pleading is what is necessary to put the other party on notice of what is to be tried and claimed for relief. See Fla. R. Civ. P. 1.110(b); Brown v. Gardens by the Sea S. Condo. Ass’n, 424 So.2d 181, 183 (Fla. 4th DCA 1983).

Whereas the allegations in the complaint were sufficient to put Appellant on notice that monthly dues and fees would continue to accrue after the filing of the complaint, it was not essential for Broken Sound to amend the complaint to reflect such accrual. We therefore hold that no amended complaint is required to allege the jurisdictional limits of the circuit court when transferring a cause from the county court where the transfer is necessary to allow a plaintiff to obtain full relief relating to fees and assessments originally pled that continue to accrue while litigation is pending.

Affirmed.

CIKLIN, CONNER and FORST, JJ., concur.


author: GROSS, J.

text:
    BOARD OF COUNTY COMMISSIONERS BROWARD COUNTY FLORIDA, a political subdivision of the State of Florida, Appellant, v. Lori PARRISH, Broward County Property Appraiser, Appellee.
    No. 4D14-101.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2014.
    Certification of S.Ct. Denied Feb. 3, 2015.

      Joni' Armstrong Coffey, Broward County Attorney, Andrew J. Meyers, Chief Appellate Counsel, and Rocio Blanco Garcia, Assistant County Attorney, Fort Lauder-dale, for appellant.
    William R. Scherer of Conrad & Scherer, LLP, Fort Lauderdale, and Bruce S. Rogow and Tara A. Campion of Bruce S. Rogow, P.A., Fort Lauderdale, for appel-lee.
   GROSS, J.

This case is a tug of war between Broward County’s property appraiser, a constitutional officer, and the Board of County Commissioners. The Board wants to have as much control over its budget as possible; the property appraiser believes that the Board’s discretion over her budget is limited by the budget review process set by state law. The Florida Constitution says that the Board’s “powers of local self-government” may not be “inconsistent with general law.” Art. VIII, § 1(g), Fla. Const. Our reading of applicable state statutes compels the conclusion that the property appraiser’s view of her budgetary process is correct, so we affirm the order granting a writ of mandamus.

Factual Background

By way of background, section 195.087, Florida Statutes (2013), requires the Florida Department of Revenue (“the FDOR”) to determine the budget for each county’s property appraiser. Under this statute, on or before June 1 of each year, property appraisers must submit to the FDOR “a budget for the operation of the property appraiser’s office for the ensuing fiscal year beginning October 1,” and furnish a copy of such budget to the subject county’s commissioners. § 195.087(l)(a), Fla. Stat. (2013). Following submission, the FDOR has until July 15 to notify the property appraiser and the board of county commissioners of its tentative budget amendments and changes. Id. Thereafter, “the property appraiser and the board of county commissioners may submit additional information or testimony to the [FDOR] respecting the budget” until — at the latest — August 15, at which point the FDOR “shall make its final budget amendments or changes to the budget and shall provide notice thereof to the property appraiser and board of county commissioners.” Id.

Should the property appraiser or board of county commissioners take exception with the FDOR’s final budget determination, either is entitled to appeal the matter to the Administration Commission — comprised of the Governor and Cabinet — no later than fifteen days after the county concludes its section 200.065(2)(d), Florida Statutes (2013), public hearing to finalize the county’s budget and set its millage rate. § 195.087(l)(b), Fla. Stat. (2013).

Unlike a plenary appeal to this court, an appeal to the Administration Commission is not a matter of right, as the statute dictates merely that the Commission “may hear appeals” from the FDOR’s final action. Id. If the Administration Commission considers the matter and finds “any aspect of the budget [to be] unreasonable in light of the workload of the office of the property appraiser in the county under review,” it may amend the judgment as necessary. Id. Upon completion of this process, the resulting budget request “as approved by the department and as amended by the commission ... become[s] the operating budget of the property appraiser for the ensuing fiscal year beginning October 1, except, that the budget so approved may subsequently be amended under the same procedure.” Id.

In this case, the Board informed its constitutional officers — including its property appraiser, Lori Parrish — that the county was expecting a 1.8% appropriation increase, leaving the property appraiser with a target budget of $14,600,200. On June 5, 2013, the Board revised its appropriation figure to 3.8%, increasing the property appraiser’s projected budget to $14,886,000.

Notwithstanding the Board’s position on her budget, on May 31, 2013, the property appraiser submitted to the FDOR her office’s proposed 2014 fiscal year budget, requesting $18,819,000. Consistent with section 195.087(1), the FDOR reviewed the budget request, made certain amendments and changes, and on July 11, 2013, notified both the property appraiser and the Board that it reached a tentative budget for the office of $18,712,207. Displeased with the determination, the Board responded by submitting additional information to the FDOR, including the aforementioned projected budget and its explanation for the calculation. Nevertheless, when the statutory deadline of August 15 arrived, the FDOR informed both sides no further changes would be forthcoming, leaving the county responsible for $16,563,527 of the bill.

Unwilling to bind itself by the FDOR’s decision, the Board convened during a September 24, 2013 public hearing to discuss adopting a 2014 fiscal budget that appropriated less funds to the property appraiser than the amount approved by the FDOR. During the hearing, Commissioner Martin David Kiar moved to approve the property appraiser’s budget as set by the FDOR, arguing that under section 195.087(l)’s statutory scheme, a property appraiser “is entitled and should receive the Department of Revenue approved budget.” In a sentiment joined by several commissioners and the mayor, Commissioner Kiar explained:

[W]e owe the Property Appraiser the money that the Department of Revenue approved. We technically owe that money to her. That’s money that we’re supposed to appropriate to.
If we’re upset with that, we can appeal to the Cabinet but we have to appropriate that money. That is technically her money. It’s been approved by the Department of Revenue. It’s been set up by that.

Despite these concerns, the Board’s majority approved a final 2014 fiscal year budget appropriating only $15,855,000 for the property appraiser, a significant drop from the FDOR’s approved amount. In conjunction with this decision, the Board chose to appeal the FDOR’s final budgetary decision to the Administration Commission. Since supplemental authority was never submitted, and the 2014 fiscal year has come to a close, it appears no decision from the Administration Commission’s will issue.

Procedural Posture

Believing the Board’s action to be unauthorized, the property appraiser filed a request with Broward County for a quarterly draw of $4,140,881.75, conforming to the FDOR’s budgetary determination. After the county countered with an offer of $8,963,750.00, the property appraiser filed a petition for writ of mandamus in the circuit court against the Board, requesting that the Board be compelled “to fully fund the [FDOR] approved Fiscal Year-2014 operation budget, as required per Florida Statutes, §§ 192.091 and 195.087.” Aside from the irreparable harm caused by her inability to carry out her statutory duty, the property appraiser argued that “[b]e-cause the county commission’s duty to adhere to the [FDOR’s] final budget is wholly ministerial, its refusal to fully fund the [property [a]ppraiser [wa]s the ... type of agency inaction that mandamus is designed to redress.”

After the trial court entered an alternative writ of mandamus, the Board responded by characterizing the petition as an “improper attempt to circumvent the exclusive appellate procedures established by the Florida Legislature” in section 195.087(l)(b), involving an appeal to the Administration Commission. In addition, the Board asserted the petition failed to satisfy the elements justifying a writ of mandamus.

Following a non-evidentiary hearing, in December 2018, the trial court entered a final order granting the property appraiser’s mandamus petition, compelling the Board to “immediately fund [the property appraiser’s] budget in accordance” with the FDOR’s final budget determination. In so ruling, the trial court noted that while section 195.087(l)(b) provides either the property appraiser or board of county commissioners the ability to appeal the FDOR’s final budget determination to the Administration Commission, the budget approved by the FDOR is “final” such that the property appraiser maintained “an immediate right to be funded so as to discharge [her] constitutional duties.” The trial court cautioned, however, that its order was “not intended to usurp the budgetary authority of [the Board, the FDOR,] or the Administration Commission”; rather, its purpose was to direct the Board to “comply and discharge their ministerial act of funding the budget for [the property appraiser] as approved or subsequently amended by the” FDOR.

The Circuit Court Did Not Abuse its Discretion in Granting a Writ of Mandamus Requiring the Board to Fund the Property Appraiser in Accord with the FDOR’s Approved Budget, Even Though the Board Sought Review with the Governor and Cabinet

The question before us concerns whether the FDOR’s final determination of the property appraiser’s budget entitled her to recover from the Board a quarterly draw in that amount at the start of the fiscal year, notwithstanding the pendency of an appeal with the Administration Commission. Close analysis of the applicable statutory framework supports the property appraiser’s position.

While the granting of a writ of mandamus petition is typically reviewed for an abuse of discretion, see Ilkhani v. Lamberti, 50 So.3d 1180, 1181 (Fla. 4th DCA 2010), “to the extent our decision turns on statutory interpretation, we apply a de novo standard of review.” Harvard ex rel. J.H. v. Village of Palm Springs, 98 So.3d 645, 647 (Fla. 4th DCA 2012) (citing Anthony v. Gary J. Rotella & Assocs., P.A., 906 So.2d 1205 (Fla. 4th DCA 2005)).

As its primary issue on appeal, the Board asserts the property appraiser lacks a clear legal right sufficient to warrant mandamus relief since neither section 195.087’s “statutory scheme nor ease law expressly addresses a duty to provide interim funding” in the amount approved by the FDOR, where an appeal is pending with the Administration Commission. The property appraiser counters that, in accordance with section 192.091, Florida Statutes (2013), “unless and until the Governor and Cabinet, sitting as the Administration Commission, amend the [FDOR’s budgetary determination,] the budget stands as approved and must be proportionally funded by the” Board.

“Mandamus is a common law remedy used to enforce an established legal right by compelling a person in an official capacity to perform an indisputable ministerial duty required by law.” Poole v. City of Port Orange, 33 So.3d 739, 741 (Fla. 5th DCA 2010) (citing Puckett v. Gentry, 577 So.2d 965, 967 (Fla. 5th DCA 1991)). “ ‘To be entitled to mandamus relief, the petitioner must have a clear legal right to the requested relief, the respondent must have an indisputable legal duty to perform the requested action, and the petitioner must have no other adequate remedy available.’ ” Barnett v. Antonacci, 122 So.3d 400, 404 (Fla. 4th DCA 2013) (quoting Pleus v. Crist, 14 So.3d 941, 945 (Fla.2009)). Mandamus, therefore, cannot be used “ ‘to compel a public agency to exercise its discretionary powers in a given manner,’ ” Dep’t of Children & Family Servs. v. Burton, 802 So.2d 467, 469 (Fla. 2d DCA 2001) (quoting Williams v. James, 684 So.2d 868, 869 (Fla. 2d DCA 1996)), or in “cases of doubtful right.” State ex rel. Haft v. Adams, 238 So.2d 843, 844 (Fla. 1970) (quoting State ex rel. Perkins v. Lee, 142 Fla. 154, 194 So. 315, 317 (1940)).

Central to mandamus relief is the ministerial character of the compelled action — a situation arising where there “ ‘is no room for the exercise of [the respondent’s] discretion, and the performance being required is directed by law.’ ” Wright v. Frankel, 965 So.2d 365, 370 (Fla. 4th DCA 2007) (quoting Shulmister v. City of Pompano Beach, 798 So.2d 799, 802 (Fla. 4th DCA 2001)). In the agency context, “official action is considered ministerial when it is arrived at as the result of the performance of a specific duty arising from legislatively designated facts.” Solomon v. Sanitarians’ Registration Bd., 155 So.2d 353, 356 (Fla.1963). “It is the nature of the particular thing to be done that determines whether its character is ministerial for mandamus purposes.” W. Flagler Assocs., Ltd. v. Bd. of Bus. Regulation, 241 So.2d 369, 378 (Fla.1970).

To place this issue in its proper context, it is essential to grasp the FDOR’s role in establishing a county property appraiser’s budget, as established by the Legislature. Thus, we begin our analysis by discussing why the Legislature, through section 195.087(1), interjected the FDOR — a state agency — into a dispute between a county property appraiser and a board of county commissioners.

In enacting Chapter 195, the Legislature’s stated purpose was “to recognize and fulfill the state’s responsibility to secure a just valuation for ad valorem tax purposes of all property and to provide for a uniform assessment as between property within each county and property in every other county or taxing district.” § 195.0012, Fla. Stat. (2013) (emphasis added). In effectuating this goal, the Legislature charged the FDOR “with implementing [this] intention” by, among other things, “supervising Florida property appraisers and other local taxation officials and ensuring that they comply with the laws which govern the assessment, collection and administration of ad valorem taxes.” Dep’t of Revenue v. Ford, 438 So.2d 798, 800 (Fla.1983) (citation omitted). As our supreme court cautioned in Bums v. Butscher, 187 So.2d 594, 596 (Fla.1966), absent this stable statewide presence, the “[e]xercise of unbridled discretion by 67 Tax Assessors without their being anchored to any master plan would result in ... imbalance.”

The FDOR’s role in setting the budget for each county’s property appraiser serves the goal of a “uniform assessment as between property within each county.” § 195.0012, Fla. Stat. (2013). Prior to 1973, section 195.011, Florida Statutes, broadly tasked the FDOR with reviewing budgets submitted by assessors and tax collectors to determine whether the requested amount was sufficient “to carry on [the assessor or tax collector’s] work”; if the budget was inadequate or excessive, the FDOR was required to return the budget to the assessor or tax collector, together with its ruling, to allow the entity to make the required budgetary revisions prior to resubmission. § 195.011, Fla. Stat. (1971).

In 1978, the Legislature “substantially reworded” this budget review scheme by enacting section 195.087, which provided the FDOR with appreciably more guidance and safeguards, particularly as applied to property appraisers. See Ch. 73-172, Laws of Fla. The Attorney General in 1973 explained that this change derived in part from the Legislature’s desire to preserve uniformity within the property appraisal process:

The integrality of, and the procedural safeguards incorporated in, the foregoing budget review system give rise to the inference that the legislature ... intended to establish a comprehensive uniform expression of state policy regarding the review of county assessors’ budgets to secure their functional sufficiency to achieve uniform state-wide assessment practice.

Op. Att’y Gen. Fla. 73-389 (1973); see also In re Polygraphex Sys., Inc., 275 B.R. 408, 414 (Bankr.M.D.Fla.2002) (stating that the “main thrust” of Chapter 195 “is to ensure uniformity in the collection and assessment of property taxes”).

Viewing section 195.087 through this lens, with the insertion of the FDOR as the arbitrator between property appraisers and county commissioners in the budgetary process, the Legislature sought to shield property appraisers from local political pressure to avoid compromising the goal of statewide valuation uniformity.

In the budgetary process, the property appraiser is the yin to the board of county commissioners’ yang. Each year the board of county commissioners is required to prepare, summarize, and approve a balanced county budget, meaning “the total of the estimated receipts available from taxation and other sources” must “equal[ ] the total of appropriations for expenditures and reserves.” § 129.01(2)(a)-(b), Fla. Stat. (2013). Ad valorem taxes — which comprise the majority of the county’s recoverable taxes — derive from combining the property appraiser’s valuation of the county’s property with the county commissioners’ approved millage rate — the rate at which the county’s real property is taxed. See §§ 129.03(1), 200.001, 200.065, Fla. Stat. (2013). Given this relationship, the property appraiser’s valuation heavily impacts a county’s ability to expand its budget — if a county’s aggregate real property decreases in value, its operating budget also decreases absent a millage rate increase.

Since raising taxes is politically unpopular, county commissioners have a powerful incentive to pressure their property appraiser to arrive at higher property valuations. If a county’s real property valuation increases, it is market forces and the property appraiser, not the county commissioners, who shoulder the tax hike blame. For this reason, the property appraiser’s budget is established by an unelected, independent entity — the FDOR— instead of county commissioners. Free from political pressures, the FDOR may hone in on the adequacy of the property appraiser’s proposed budget, without the distraction of the next election.

These considerations underscore why condoning the Board’s course of action in this case would not only be contrary to the Legislature’s intent but problematic in practice. Under section 195.087’s budget review system, the board of county commissioners assumes the role of advocate rather than decision-maker. As articulated by the Attorney General in 1997 when discussing section 197.087(2), which applies to an analogous review for tax collectors, while section 195.087 “requires that a copy of the budget be furnished to the board of county commissioners, it does not provide for, or otherwise require, approval by the county commission.” Op. Att’y Gen. Fla. 97-02 (1997) (emphasis added). Rather, “it is the [FDOR] that is charged under the statute with determining whether the budget is adequate.” Id.

Consistent with the Attorney General’s viewpoint, section 192.091(l)(a), Florida Statutes (2013), provides that “[t]he budget of the property appraiser’s office, as approved by the Department of Revenue, shall be the basis upon which the several tax authorities of each county, except municipalities and the district school board, shall be billed by the property appraiser for services rendered.” (Emphasis added). The statute further directs that payments to the property appraiser “shall be made quarterly by each such taxing authority.” § 192.091(l)(b), Fla. Stat. (2013). (Emphasis added). These provisions, when read in pari materia with section 195.087, express the legislative desire that the FDOR’s final budgetary decision serve as the property appraiser’s definitive budget for billing purposes. By placing the cards in the FDOR’s hands, the Legislature precluded a board of county commissioners from strong-arming a property appraiser during budgetary disputes by withholding funds pending a discretionary appeal. Rather, as section 192.091(l)(a) dictates, the FDOR’s budgetary determination must be honored until a budget amendment or a decision by the Administration Commission replaces it.

This notion is strengthened by the discretionary nature of the Administration Commission’s appellate review. Pursuant to section 195.087(l)(b), the Administration Commission is neither compelled to hear budgetary appeals from the property appraiser or the board of county commissioners, nor required to-provide a timetable for making its decision. Rather, the statute provides that the Administration Commission “may hear appeals,” suggesting that the decision to hear an appeal is a purely discretionary one, leaving open the possibility — as occurred in this case — that the commission may never rule upon the appeal at all. •

Given this indeterminate structure, had the Legislature intended the FDOR’s final budgetary determination to receive an automatic stay pending appeal to the Administration Commission, it would have provided such remedy, as it has done in similar situations, or at the very least set a timeline for the Administration Commission’s action. See, e.g., § 380.07(4), Fla. Stat. (2013) (stating, within the context of appeals to the Florida Land and Water Adjudicatory Commission, that “[t]he filing of [a] petition stays the effectiveness of the order until after the completion of the appeal process”). By failing to do so, and crafting an appellate process predicated on discretion, it is clear — and logical given the disruption such a stay would bring — that the absence of a stay within the statute was a significant' omission, nullifying the Board’s argument that it may impose a de facto stay by withholding funds from the property appraiser.

To combat this conclusion, the Board contends section 195.087(l)(b)’s linking of the deadline to file an appeal with the Administration Commission to fifteen days after the conclusion of a section 200.065(2)(d) hearing evidences the Legislature’s intent that county commissioners be permitted to set an interim budget pending appeal. The section 200.065(2)(d) hearing is the culmination of the budget creation process, during which the county commissioners conduct a public hearing before finalizing the county’s budget and millage rate for the fiscal year. While it is true that section 200.065(2)(d) allows the board of county commissioners to “amend [its] adopted tentative budget as it sees fit” and “adopt a final budget” at this hearing, such a broad, general conferment of power does not contravene section 192.091’s specific mandate requiring the board to honor the FDOR’s decision — otherwise, the FDOR’s decision would be superfluous.

Furthermore, the Legislature’s tying of the appellate deadline to the conclusion of the section 200.065(2)(d) hearing does little to support the Board’s position. It makes sense that appeals be filed after the county’s budget is finalized so the Administration Commission can fully appreciate, within the context of the county’s total budget, the impact of a potentially excessive or inadequate property appraiser budget.

We have considered the other arguments raised by the Board and find them to be unpreserved or without merit.

Affirmed.

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

      . As the Supreme Court has explained,
      [a] general law operates universally throughout the state, or uniformly upon subjects as they may exist throughout the state, or uniformly within permissible classifications by population of counties or otherwise, or is a law relating to a state function or instrumentality.

        Fla. Dep’t. of Business & Prof l Regulation v. Gulfstream Park Racing Ass’n, 967 So.2d 802, 807 (Fla.2007) (quoting State ex rel. Landis v. Harris, 120 Fla. 555, 163 So. 237, 240 (1934)).

      . At oral argument, the County suggested that the question presented in this case was moot. Without deciding the issue of mootness, we consider the case on its merits because it presents a controversy "capable of repetition, yet evading review.” N.W. v. State, 767 So.2d 446, 447 n. 2 (Fla.2000); see also B.G. v. State, 137 So.3d '548, 548 (Fla. 4th DCA 2014).

      .Section 200.065(2)(d), Florida Statutes (2013), states in full:
      Within 15 days after the meeting adopting the tentative budget, the taxing authority shall advertise in a newspaper of general circulation in the county as provided in subsection (3), its intent to finally adopt a millage rate and budget. A public hearing to finalize the budget and adopt a millage rate shall be held not less than 2 days nor more than 5 days after the day that the advertisement is first published. During the hearing, the governing body of the taxing authority shall amend the adopted tentative budget as it sees fit, adopt a final budget, and adopt a resolution or ordinance stating the millage rate to be levied. The resolution or ordinance shall state the percent, if any, by which the millage rate to be levied exceeds the rolled-back rate computed pursuant to subsection (1), which shall be characterized as the percentage increase in property taxes adopted by the governing body. The adoption of the budget and the millage-levy resolution or ordinance shall be by separate votes. For each taxing authority levying millage, the name of the taxing authority, the rolled-back rate, the percentage increase, and the millage rate to be levied shall be publicly announced prior to the adoption of the millage-levy resolution or ordinance. In no event may the millage rate adopted pursuant to this paragraph exceed the millage rate tentatively adopted pursuant to paragraph (c). If the rate tentatively adopted pursuant to paragraph (c) exceeds the proposed rate provided to the property appraiser pursuant to paragraph (b), or as subsequently adjusted pursuant to subsection (11), each taxpayer within the jurisdiction of the taxing authority shall be sent notice by first-class mail of his or her taxes under the tentatively adopted millage rate and his or her taxes under the previously proposed rate. The notice must be prepared by the property appraiser, at the expense of the taxing authority, and must generally conform to the requirements of s. 200.069. If such additional notice is necessary, its mailing must precede the hearing held pursuant to this paragraph by not less than 10 days and not more than 15 days.

      . See art. V, § 4(b)(1), Fla. Const.

      . "If a petition for writ of mandamus shows a prima facie case for relief, the [trial] court shall issue an alternative writ in mandamus to which the defendant in the mandamus proceeding shall respond as provided in Florida Rule of Civil Procedure 1.140.” Brown v. State, 93 So.3d 1194, 1196 (Fla. 4th DCA 2012) (citing Parish v. State, 59 So.3d 1229, 1230 (Fla. 4th DCA 2011); Fla. R. Civ. P. 1.630(d)(3)).

      .Section 195.087(l)(a), Florida Statutes (2013), provides in full as follows:
      On or before June 1 of each year, every property appraiser, regardless of the form of county government, shall submit to the Department of Revenue a budget for the operation of the property appraiser's office for the ensuing fiscal year beginning October 1. The property appraiser shall submit his or her budget in the manner and form required by the department. A copy of such budget shall be furnished at the same time to the board of county commissioners. The department shall, upon proper notice to the county commission and property appraiser, review the budget request and may amend or change the budget request as it deems necessary, in order that the budget be neither inadequate nor excessive. On or before July 15, the department shall notify the property appraiser and the board of county commissioners of its tentative budget amendments and changes. Prior to August 15, the property appraiser and the board of county commissioners may submit additional information or testimony to the department respecting the budget. On or before August 15, the department shall make its final budget amendments or changes to the budget and shall provide notice thereof to the property appraiser and board of county commissioners.

      . See In re Polygraphex Sys., Inc., 275 B.R. 408, 415-16 (Bankr.M.D.Fla.2002) (detailing the FDOR’s relationship with property appraisers).

      . In the statute’s initial 1941 iteration, this responsibility fell upon the state’s elected comptroller. See Ch. 41-20722, Laws of Fla.

      . Section 195.087(2), Florida Statutes (2013), still applies substantially the same budget review system for tax collectors.

      . Section 195.087(l)(b) provides in full:
      The Governor and Cabinet, sitting as the Administration Commission, may hear appeals from the final action of the department upon a written request being filed by the property appraiser or the presiding officer of the county commission no later than 15 days after the conclusion of the hearing held pursuant to s. 200.065(2)(d). The Administration Commission may amend the budget if it finds that any aspect of the budget is unreasonable in light of the workload of the office of the property appraiser in the county under review. The budget request as approved by the department and as amended by the commission shall become the operating budget of the property appraiser for the ensuing fiscal year beginning October 1, except that the budget so approved may subsequently be amended under the same procedure. After final approval, the property appraiser shall make no transfer of funds between accounts without the written approval of the department. However, all moneys received by property appraisers in complying with chapter 119 shall be accounted for in the same manner as provided for in s. 218.36, for moneys received as county fees and commissions, and any such moneys may be used and expended in the same manner and to the same extent as funds budgeted for the office and no budget amendment shall be required.


text:
    Anthony W. BROOM, Petitioner, v. Scott CREWS, Warden, Mayo Correctional Institution Annex, Respondent.
    No. 1D14-5457.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2014.
    Rehearing Denied Jan. 20, 2015.
    Anthony W. Broom, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

PADOVANO, MARSTILLER, and OSTERHAUS, JJ., concur.


author: ORFINGER, J.

text:
    FLORIDA INSURANCE GUARANTY, etc., Appellant, v. Kenneth SILL and Kathryn Sill, Appellees.
    No. 5D13-3363.
    District Court of Appeal of Florida, Fifth District.
    Dec. 12, 2014.

      Henry G. Gyden and Dorothy V. DiF-iore, of Haas, Lewis, DiFiore, P.A., Tampa, for Appellant.
    John M. Byrne, of Bryne Law Firm, Tampa, for Appellees.
   ON MOTION FOR REHEARING

ORFINGER, J.

We grant the motion for rehearing, withdraw our prior opinion and substitute this opinion in its stead.

The Florida Insurance Guaranty Association (“FIGA”) appeals a non-final order, compelling it to participate in an appraisal in its sinkhole insurance dispute with Kenneth and Kathryn Sill. FIGA contends that appraisal is inappropriate under the facts of this case, the Sills waived their rights to appraisal, and the trial court should have conducted an evi-. dentiary hearing to determine whether an appraisable issue existed. We affirm the order insofar as it compels appraisal.

In November 2009, the Sills had a homeowner’s insurance policy with HomeWise Preferred Insurance Company. Their home sustained suspected sinkhole darn-age, but HomeWise denied the claim. The Sills sued HomeWise in December 2010 for breach of contract. HomeWise answered, denying that a sinkhole loss had occurred. In December 2011, following HomeWise’s insolvency, the action was stayed when FIGA was activated and assumed the Sills’ claim. In May 2012, the stay was lifted, and FIGA was substituted as the defendant. In October 2012, the trial court granted FIGA’s request for an additional stay pending the outcome of neutral evaluation. The neutral evaluator concluded that sinkhole activity could not be ruled out as a cause of the Sills’ loss, and recommended certain subsurface repairs. On April 15, 2013, FIGA accepted coverage for the Sills’ loss by letter. On May 13, the Sills wrote back, demanding appraisal. On July 30, the Sills filed a motion to compel appraisal, which was granted.

On appeal, FIGA first argues that the trial court should not have ordered appraisal because the only dispute between the parties was about the “method of repair” rather than the “amount of loss.” In Florida Insurance Guaranty Ass’n v. Branco, 148 So.3d 488, 491-93 (Fla. 5th DCA 2014), we rejected virtually identical arguments. We again reject these arguments.

FIGA next asserts that the Sills waived their rights to appraisal by engaging in extensive litigation from December 2010 to July 2013. We review this issue de novo on the undisputed facts. Branco, 148 So.3d at 493. Waiver of the right to seek appraisal occurs when the party seeking appraisal actively participates in a lawsuit or engages in conduct inconsistent with the right to appraisal. See id. at 493 (citing Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005)). As we explained in Branco,

the question of waiver of appraisal is not solely about the length of time the case is pending or the number of filings the appraisal-seeking party made. Instead, the primary focus is whether [the insureds] acted inconsistently with their appraisal rights. Saldukas, 896 So.2d at 711; see Am. Capital Assur. Corp. v. Courtney Meadows Apartment, L.L.P., 36 So.3d 704, 707 (Fla. 1st DCA 2010) (finding party did not waive right to appraisal as party had not acted inconsistently with right from time of demand).
Unlike arbitration, “[a]ppraisal exists for a limited purpose-the determination of ‘the amount of the loss.’ ” Citizens Prop. Ins. Corp. v. Mango Hill # 6 Condo. Ass’n, 117 So.3d 1226, 1230 (Fla. 3d DCA 2013). Until the insurer has a reasonable opportunity to investigate and adjust the claim, there is no “disagreement” (for purposes of appraisal) regarding the value of the property or the amount of loss to be appraised. Citizens Prop. Ins. Corp. v. Galeria Villas Condo. Ass’n, 48 So.3d 188, 191 (Fla. 3d DCA 2010) (reversing prematurely-ordered appraisal). An insurer that denies coverage does not need to seek appraisal before litigation because “[i]t would make no sense to say that [the insurer] was required to request ... appraisal on a loss it had already refused to pay.” Gonzalez v. State Farm, Fire & Cas. Co., 805 So.2d 814, 817 (Fla. 3d DCA 2000); see Chimerakis v. Sentry Ins. Mut. Co., 804 So.2d 476, 480 (Fla. 3d DCA 2001) (holding “an action to compel appraisal does not accrue until the policy conditions precedent have been performed or waived, and appraisal is then refused”). Absent contract language to the contrary, we see no reason why the insured should not have the same flexibility in cases when coverage is denied. But see Cypress Pointe at Lake Orlando Condo. Ass’n v. Mt. Hawley Ins. Co., No. 6:10-cv-1459-Orl-36TB S, 2012 WL 6138993, at *2 (M.D.Fla. Nov. 19, 2012) (finding insured acted inconsistently with appraisal right by pursuing litigation for two years, though insurer consistently denied coverage).

148 So.3d at 493-94.

Here, FIGA acknowledged that the Sills had suffered a sinkhole loss, and agreed to comply with the neutral evaluator’s recommendations on April 15, 2013. Because coverage had previously been denied, appraisal was not appropriate until that time. Id. at 494 (determining appraisal not appropriate until coverage conceded or determined). The Sills demanded appraisal less than a month later and pursued no litigation activities in the interim. These undisputed facts do not demonstrate waiver. See id. (finding no waiver despite filing of discovery request).

Finally, FIGA argues that the trial court erred in compelling appraisal without an evidentiary hearing. The issue of waiver may, at times, require a hearing. See Doctors Assocs. v. Thomas, 898 So.2d 159, 162 (Fla. 4th DCA 2005) (holding question of waiver reviewable for competent, substantial evidence). However, when, as here, the underlying facts are undisputed, all that remains is to apply the law to the facts, and no evidentiary hearing is required. See Truly Nolen of Am., Inc. v. King Cole Condo. Ass’n, 143 So.3d 1015, 1017 (Fla. 3d DCA 2014) (reviewing issue of waiver de novo where facts undisputed); see also Bruce v. Reese, 431 Fed. Appx. 805, 806 (11th Cir.2011) (holding, in context of preliminary injunction, “[a]n evi-dentiary hearing does not need to be held where the facts necessary to rule on the motion are undisputed”).

Finding no error in the court’s determination to compel appraisal, we affirm. We dismiss the appeal as to the remaining issues raised by FIGA as they are outside our scope of review.

AFFIRMED IN PART; DISMISSED IN PART, and REMANDED.

WALLIS and LAMBERT, JJ., concur.

      . "FIGA is a public, nonprofit corporation created by statute to provide a mechanism for payment of covered claims under certain classes of insurance policies issued by insurers which have become insolvent.” Fla. Ins. Guar. Ass’n v. Devon Neighborhood Ass’n, 67 So.3d 187, 189 (Fla.2011); see §§ 631.51, 631.55, Fla. Stat. (2011).

      . FIGA also raises concerns regarding the limits on its liability and having to directly pay the insureds in contravention of section 631.54(3), Florida Statutes (2011). Our scope of review is limited to determining whether the court erred in compelling appraisal. We have no authority to decide whether the trial court applied the correct version of section 631.54(3), Florida Statutes. See Fla. R.App. P. 9.130(3)(C)(iv) (granting district court jurisdiction to review nonfinal order that determine “entitlement of a party to ... appraisal under an insurance policy”). However, we note that the First District has recently addressed this issue. See Fla. Ins. Guar. Ass'n v. Bernard, 140 So.3d 1023 (Fla. 1st DCA 2014) (collecting cases and holding that statutory definition of "covered claim” in effect at time insurer is adjudicated insolvent determines scope of FIGA’s liability under FIGA Act).


text:
    Larry JOSSEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3826.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2014.
    Rehearing Denied Jan. 20, 2015.

      Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Larry Jossey appeals his conviction for armed robbery raising several issues, each of which we affirm. He asked this court to apply the reasoning of Rosemond v. United States, — U.S. -, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014), to find error in Florida’s standard jury instruction on principals, because it allowed defendant to be convicted as a principal for robbery with the use of a firearm based upon evidence that he intended that the robbery be committed without requiring any showing that he intended that a firearm be used. We do not reach this issue because defendant did not object below and he failed to establish fundamental error.

AFFIRMED.

PADOVANO, RAY, and OSTERHAUS, JJ., concur.