author: MORRIS, Judge.

text:
    FUNDAMENTAL LONG TERM CARE HOLDINGS, LLC, Murray Forman, and Leonard Grunstein, Appellants, v. The ESTATE of Juanita Amelia JACKSON, by and through Cathy JACKSON-PLATTS f/k/a Catherine Whatley, as Personal Representative of the Estate of Juanita Amelia Jackson, Appellee.
    No. 2D12-394.
    District Court of Appeal of Florida, Second District.
    Nov. 28, 2012.
    Rehearing Denied Feb. 8, 2013.
    Matthew Triggs, C. Sanders McNew, and Andrew L. Hoffman of Proskauer Rose LLP, Boca Raton, for Appellants.
    Isaac R. Ruiz-Carus and Joanna M. Greber of Wilkes & McHugh, P.A., Tampa, for Appellee.
   MORRIS, Judge.

Appellants — Fundamental Long Term Care Holdings, LLC, Murray Forman, and Leonard Grunstein — appeal a nonfinal order denying their motion to dismiss proceedings supplementary initiated against them by the estate of Juanita Jackson (the Estate). In denying the motion to dismiss, the trial court rejected appellants’ argument that the trial court lacked personal jurisdiction because the appellants never received service of process with an im-pleader complaint in the proceedings supplementary. We affirm the order on appeal and write to clarify the law on this issue.

I. Background

After settling with eleven defendants in nursing home litigation, the Estate obtained a default judgment for $110 million against two remaining defendants. The Estate then filed motions to implead sixteen new defendants, including the three appellants in this appeal, in proceedings supplementary under section 56.29, Florida Statutes (2010). The trial court entered orders granting the motions to im-plead and ordering the new defendants to show cause why they should not be held liable for the judgments. The appellants moved to dismiss, alleging among other things that the trial court lacked personal jurisdiction over them because the Estate failed to serve them with a summons and an impleader complaint. At the conclusion of a hearing, the trial court orally denied the appellants’ motion on the basis that “[t]his action has been filed pursuant to section 56.29. It’s a postjudgment action. Pursuant to that statute the motion to dismiss will be denied. This court has jurisdiction.” The trial court then entered a written order of denial, which the appellants now appeal.

II. Jurisdiction

The Estate claims that the nonfinal order may not be appealed based on cases which generally hold that an order im-pleading a third party in proceedings supplementary is not appealable. See Maryland Cas. Co. v. Century Constr. Corp., 656 So.2d 611 (Fla. 1st DCA 1995); Sverdahl v. Farmers & Merchs. Sav. Bank, 582 So.2d 738 (Fla. 4th DCA 1991); Machado v. Foreign Trade, Inc., 544 So.2d 1061 (Fla. 3d DCA 1989); Warren v. Se. Leisure Sys., Inc., 522 So.2d 979 (Fla. 1st DCA 1988). However, in those cases, the impleaded parties never sought to dismiss the proceedings supplementary on the basis of lack of personal jurisdiction. See Sverdahl, 582 So.2d at 740; Machado, 544 So.2d at 1062. In fact, in Warren, the court noted that the impleaded parties never challenged personal jurisdiction in their motions to dismiss and were therefore “not entitled to review at this stage of the proceedings.” 522 So.2d at 981. Here, the nonfinal order determines personal jurisdiction and we therefore have jurisdiction to review it. See Fla. R.App. P. 9.130(a)(3)(C)(i); see also Nat’l Lake Devs., Inc. v. Lake Tippecanoe Owners Ass’n, 417 So.2d 655, 657 (Fla.1982) (holding that “‘the term “jurisdiction of the person” refers to service of process or the applicability of the long[-]arm statute to nonresidents’ ” (quoting and approving Nat’l Lake Devs., Inc. v. Lake Tippecanoe Owners Ass’n, 395 So.2d 592, 593 (Fla. 2d DCA 1981))).

III.Analysis

On appeal, the appellants argue that proceedings supplementary under section 56.29 are governed by the Florida Rules of Civil Procedure and that the rules require that a newly impleaded defendant be served with a summons and complaint in order for the court to have personal jurisdiction over that newly impleaded defendant. In response, the Estate claims that there is no requirement that a plaintiff file an impleader complaint and serve process with that complaint in order to commence proceedings supplementary against new third parties. The Estate claims that the trial court properly denied the appellants’ motion to dismiss because the Estate followed the procedure set forth in section 56.29.

Proceedings supplementary under section 56.29 are special statutory “proceedings subsequent to judgment to aid a judgment creditor in collecting his judgment against the judgment debtor.” Rosenfeld v. TPI Int’l Airways, 630 So.2d 1167, 1169 (Fla. 4th DCA 1998). In order to initiate proceedings supplementary, the statute requires that the judgment creditor have an unsatisfied judgment and file an affidavit averring that the judgment is valid and outstanding. § 56.29(1); B & I Contractors, Inc. v. Mel Re Constr. Mgmt., 66 So.3d 1035, 1037 (Fla. 2d DCA 2011); NTS Fort Lauderdale Office Joint Venture v. Serchay, 710 So.2d 1027, 1028 (Fla. 4th DCA 1998); Office Bldg., LLC v. CastleRock Sec., Inc., No. 10-61582-CIV, 2011 WL 1674963, at *2 (S.D.Fla. May 3, 2011). “The statutory procedure was designed to avoid the necessity of the judgment creditor initiating an entirely separate action for a creditor’s bill.” Regent Bank v. Woodcox, 636 So.2d 885, 886 (Fla. 4th DCA 1994); see Office Bldg., LLC, 2011 WL 1674963, at *3.

In B & I Contractors, 66 So.3d at 1037, this court explained that section 56.29(1) provides that an affidavit be filed to commence the proceedings but this court noted that motions are commonly used also. This court suggested that once entitlement to the proceedings has been established by this process, third parties not before the court may be brought into the proceedings by impleader. Id. at 1037-38. This court did not discuss the process by which a new defendant should be impleaded.

The appellants correctly argue that the Florida Rules of Civil Procedure apply to proceedings supplementary under section 56.29. See Exceletech, Inc. v. Williams, 597 So.2d 275 (Fla.1992) (applying the rules and holding that the rules do not require a judgment creditor to be examined before a third party is impleaded in proceedings supplementary and that the rules do not require a petition to implead to be sworn to). But unless the civil rules provide to the contrary, the statutory procedure set forth in section 56.29 controls. See Fla. R. Civ. P. 1.010 (providing that the civil “rules apply to all ... special statutory proceedings in the circuit courts” and that “[t]he form, content, procedure, and time for pleading in all special statutory proceedings shall be as prescribed by the statutes governing the proceeding unless these rules specifically provide to the contrary”); see also BNP Paribas v. Wynne, 944 So.2d 1004, 1005 (Fla. 4th DCA 2005) (holding that the special statutory proceeding of a garnishment “‘shall be controlled by the statute itself unless the rules [of civil procedure] provide otherwise’ ” (alteration in original) (quoting Federated Stores Realty, Inc. v. Burnstein, 392 So.2d 573, 574 (Fla. 4th DCA 1980))); Crocker v. Diland Corp., 593 So.2d 1096, 1098 (Fla. 5th DCA 1992) (“In effect, the supreme court has indicated that if there is some aspect of a special statutory procedure it disapproves, it will say so by rule. Unless it does, the special statutory procedures apply.”).

There is no explicit rule requiring that a plaintiff wishing to initiate proceedings supplementary against a new third party must file an impleader complaint and serve process of that complaint on the new third party. Therefore, we must look to the procedure in section 56.29. Section 56.29 directs a plaintiff to file an affidavit attesting that the plaintiff holds an unsatisfied judgment as well as a motion to require the defendant in execution to appear before the court. § 56.29(1), (2). The trial court shall then enter an order requiring the defendant to appear before the court for an examination concerning the defendant’s property. § 56.29(2). The trial court’s “order shall be served in a reasonable time before the date of the examination in the manner provided for service of summons or may be served on such defendant or his or her attorney as provided for service of papers in the rules of civil procedure.” § 56.29(3) (emphasis added).

Although the statutory procedure above seems clear, the case law in Florida does not clearly answer the question before us. The appellants rely on several cases in support of their argument that an impleader complaint must be filed with process served on the new defendants in order for the trial court to have personal jurisdiction over the new defendants in proceedings supplementary. In Boats Express, Inc. v. Thackeray, 978 So.2d 206, 210 (Fla. 2d DCA 2008), a plaintiff filed a motion for proceedings supplementary in Florida to collect on a foreign judgment against Boats Express that had become enforceable in Florida. The plaintiff sought to implead the president and sole shareholder of Boats Express, and the trial court allowed him to be impleaded. The plaintiff never filed an amended pleading adding the new defendant, and “nothing was ever served on [the new defendant].” Id. Orders were entered requiring the new defendant to be examined and to present documents and referring to him as a witness, but nothing informed the new defendant that a judgment could be entered against him. A final judgment was entered against him. This court reversed the final judgment against the new defendant because no complaint had ever been filed against him and he was therefore deprived of an opportunity to be heard. Id. at 211. This court noted that “[t]he first actual step taken in a civil action is the filing of a complaint.” Id. (citing Fla. R. Civ. P. 1.050, which provides that an action is commenced when the complaint is filed).

Boats Express, Inc. suggests that an impleader complaint must be filed and served on a new defendant. But in that case, the new defendant was never served with any document informing him that he could be held liable for the judgment. Here, the new defendants were personally served with a copy of the order to show cause, as provided for in section 56.29(3), and the order clearly informed the new defendants that the Estate was seeking to enforce a judgment against them.

The appellants also rely on Forman v. Great American Resorts of Florida, 929 So.2d 1089 (Fla. 4th DCA 2006), which held that the third party had not been properly impleaded in the proceedings supplementary because although the plaintiff filed a motion for proceedings supplementary, the plaintiff did not file an im-pleader complaint and did not serve it on the third party. Id. at 1090. The court held that the third party was only a witness and not a party to the action and that the order directing the third party to appear was a discovery order not subject to appeal. Id. But Forman improperly relies on Florida Rule of Civil Procedure 1.180, titled “Third-Party Practice,” which addresses third-party defendants who may be brought in by a defendant as being liable to the defendant. As the Third District noted in Patterson v. Venne, 594 So.2d 331, 332 n. 4 (Fla. 3d DCA 1992), third-party practice is not invoked in proceedings supplementary. Rather, the “additional defendant is an impleader defendant, not a third[-]party defendant. The original defendant-judgment debtor is not making a claim against [the new defendant]; instead the original plaintiff is proceeding against [the new defendant] as a newly impleaded defendant.” Id.

The appellants also rely on Machado, 544 So.2d at 1062, but Machado only states that a new defendant must be fully impleaded and brought into the case as an actual party and given a full and fair opportunity to present his or her claims. It does not explain the procedural process that should be followed.

In some cases, plaintiffs have impleaded judgment debtors as new defendants by filing impleader complaints. See, e.g., Rosenfeld, 630 So.2d at 1167; Warren, 522 So.2d at 980; Mickler v. Aaron, 490 So.2d 1343 (Fla. 4th DCA 1986); Mitutoyo Am. Corp. v. Suncoast Precision, Inc., No. 8:08-mc-36-T-TBM, 2011 WL 2802938, at *1 (M.D.Fla. July 18, 2011); Office Bldg., LLC, 2011 WL 1674963. But at the most, those cases implicitly suggest, rather than hold, that an impleader complaint must be filed. See Rosenfeld, 630 So.2d at 1168 (holding that trial court had subject matter jurisdiction over the proceedings supplementary because judgment creditor filed an impleader complaint); Morningstar Healthcare, LLC v. Greystone & Co., No. 8:05-CV-949-T-MAP, 2008 WL 1897590, at *2 (M.D.Fla. Apr.28, 2008) (granting motion for proceedings supplementary and ordering judgment creditor to file complaint seeking to implead new defendant).

On the other hand, the impleading of new defendants has also occurred by motion. See, e.g., Regent Bank, 636 So.2d at 886 (holding that nothing more was required to implead new defendant than a motion to implead and the affidavit required under section 56.29); Luskin v. Luskin, 616 So.2d 559, 561-62 (Fla. 4th DCA 1993) (rejecting claim that new defendants were not properly served or given adequate notice of the proceeding; new defendants were impleaded by motion and the record showed that they were properly served under rule 1.080(b) and were also given notice of the trial date). In Pollizzi v. Paulshock, M.D., 52 So.3d 786 (Fla. 5th DCA 2010), the judgment creditor filed a motion to commence proceedings supplementary and to implead a new defendant, serving the motion on counsel for the new defendants. The matter proceeded to non-jury trial, and the trial court entered judgment against the new defendants. On appeal, the Fifth District rejected the new defendants’ argument that the order violated their right to due process, finding that the new defendants had received adequate notice and an opportunity to defend. Id. at 788-89.

In the Fifth District’s decision in Exceletech, Inc. v. Williams, 579 So.2d 850, 852-53 (Fla. 5th DCA 1991), approved in its entirety by the supreme court, 597 So.2d 275, the Fifth District stated that an im-pleaded defendant is not entitled to more than fair notice of the allegations and the opportunity to present its ease.

[F]air notice of the allegations by [the plaintiff] in seeking to collect on his judgment was afforded to [the new defendant] and it was given the opportunity to present its case at a hearing before an impartial decision maker. It was entitled to no more. Insofar as due process is concerned[,] the form which is utilized to notify the third party defendant of the creditor’s allegations, whether an order to show cause or a third party complaint, is immaterial.

Id. at 852-53.

Further, in the federal case that remanded the instant case back to state court, the district court noted that “[a] supplemental proceeding [under section 56.29] contemplates no complaint, no cause of action, no counter-claim, no finding of personal liability in either contract or tort, and no personal judgment against an impleaded party.” Estate of Jackson v. Ventas Realty, Ltd. P’ship, 812 F.Supp.2d 1306, 1310 (M.D.Fla.2011) (emphasis added); see also Gen. Trading Inc. v. Yale Materials Handling Corp., 119 F.3d 1485, 1496 n. 22 (11th Cir.1997) (noting that a summons and a complaint are not required to exercise personal jurisdiction over a new defendant in proceedings supplementary).

IV. Conclusion

In conclusion, there is no requirement in the civil rules that an impleader complaint be filed with process served on the new defendant in order to obtain personal jurisdiction over the new defendant in proceedings supplementary. In this case, the Estate properly followed the procedure set forth in section 56.29. Therefore, the trial court did not lack personal jurisdiction over the appellants on the basis of insufficient service of process. Accordingly, we affirm the order denying the appellants’ motion to dismiss.

Affirmed.

LaROSE and CRENSHAW, JJ„ Concur.

      . The rules cited by the appellants do not address this situation. See generally Fla. R. Civ. P. 1.070(a), 1.070(e), 1.080, 1.100(a), 1.110, 1.180. The appellants do not rely on Florida Rule of Civil Procedure 1.110, which provides the following:
      (h) Subsequent Pleadings. When the nature of an action permits pleadings subsequent to final judgment and the jurisdiction of the court over the parties has not terminated, the initial pleading subsequent to final judgment shall be designated a supplemental complaint or petition. The action shall then proceed in the same manner and time as though the supplemental complaint or petition were the initial pleading in the action, including the issuance of any needed process. This subdivision shall not apply to proceedings that may be initiated by motion under these rules.
      While this rule might appear to address the situation at hand, the Committee Notes to the rule provide the following:
      Subdivision (h) is added to cover a situation usually arising in divorce judgment modifications, supplemental declaratory relief actions, or trust supervision. When any subsequent proceeding results in a pleading in the strict technical sense under rule 1.100(a), response by opposing parties will follow the same course as though the new pleading were the initial pleading in the action. The time for answering and authority for defenses under rule 1.140 will apply. The last sentence exempts post judgment motions under rules 1.480(c), 1.530, and 1.540, and similar proceedings from its purview.

      . The procedure laid out in section 56.29(2) is consistent with Florida Rule of Civil Procedure 1.250(c), which generally provides that "[pjarties may be added by order of court on [the court’s] own initiative or on motion of any party at any stage of the action and on such terms as are just.” See Exceletech, 597 So.2d at 276 (suggesting that rule 1.250(c) is proper method by which to join parties in proceedings supplementary).


source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    FIRELINE BAIL BONDS and United States Fire Insurance Company, Appellants, v. Dwight E. BROCK, as Clerk of the Circuit Court for Collier County, Florida, Appellee.
    No. 2D12-1862.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 2013.
    Rehearing Denied April 3, 2013.

      Lisa H. Colón, Miami, and Bruce S. Reich, Miami Beach, for Appellants.
    Anthony J. Pires, Jr., of Woodward, Pires & Lombardo, P.A., Naples, for Ap-pellee.
   WALLACE, Judge.

Fireline Bail Bonds and United States Fire Insurance Company (the Surety) appeal the circuit court’s order denying their motion for remission of the forfeiture of two bail bonds. We reject the Surety’s argument that the addition of a new charge with a nonmonetary release discharged the Surety’s obligations on the two preexisting bail bonds. However, we agree with the Surety that its return of the defendant to custody within two years of the forfeiture of the bonds entitled the Surety to a partial remission of the forfeitures. Accordingly, we affirm the circuit court’s order in part and reverse it in part.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

On January 17, 2008, the State filed an information charging the defendant, Da-fayon Charles, with two counts of lewd or lascivious battery, a violation of section 800.04(4)(a), Florida Statutes (2007), and a second-degree felony. The State alleged that both offenses occurred between July 15 and 16, 2007; the offenses involved the same victim and arose out of a single incident. The defendant was originally held on the charges without bond. On April 14, 2008, the circuit court set bond at $25,000 on each count. Two months later, the Surety posted two $25,000 bonds, one for each count, and the defendant was released on bond.

On February 5, 2010, the State filed an amended information against the defendant. The charges against the defendant in counts one and two remained unchanged. The new information added a third count charging the defendant with lewd or lascivious molestation, a violation of section 800.04(5) (c) (2), and a second-degree felony. Like the original two charges, the third charge involved the same victim and arose out of the same incident.

For the purpose of the defendant’s bond status, the State and the circuit court treated the filing of the new charge as a nonevent. Law enforcement did not take the defendant into custody on the lewd or lascivious molestation charge. On the contrary, the defendant remained at liberty. And the circuit court did not set a bond on the new charge. No one notified the Surety of the filing of a third charge against the defendant.

On February 22, 2010, the defendant appeared for trial on the original charges. At that time, the circuit court arraigned the defendant on the additional charge, and he entered a plea of not guilty. After the defendant entered his plea, the circuit court continued the case to February 24, 2010, for trial. Once again, the defendant appeared for trial as scheduled, and jury selection began. However, after the lunch recess, the defendant did not return for the continuation of the trial.

Upon the defendant’s nonappearance, the circuit court issued a capias for his arrest and sent notices of forfeiture to the Surety on both bonds. On April 26, 2010, the Surety paid the bonds in full. Later, the Surety located the defendant in Pennsylvania and recommitted him to the custody of the Collier County Sheriff on May 1, 2011.

After the Surety returned the defendant to custody, it filed a motion seeking remission of the forfeitures of the two bail bonds. Pointing to the third charge filed without notice to it, the Surety argued “that the forfeitures should be set aside and the [S]urety discharged due to the substantial alteration to the contracted bond liability and the increased risk of flight due to the increased penalty faced by the defendant.” Alternatively, the Surety sought a partial remission of the bonds “based upon the May 1, 2011[,] recommit of the defendant within two years of the forfeitures.” After a hearing, the circuit court entered an order denying the Surety’s motion on both grounds. This appeal followed.

II. THE PARTIES’ ARGUMENTS

On appeal, the Surety argues that the State’s filing of an amended information that added a third second-degree felony to the charges against the defendant substantially increased the risk that he would flee. Thus the filing of the additional charge required notice to the Surety and its agreement to remain responsible on the bonds for the defendant’s appearance. Because the State did not notify the Surety of the filing of the additional charge and because the Surety did not agree to be responsible for the defendant’s appearance under the changed circumstances, it was relieved of the obligation to produce the defendant. Accordingly, the Surety concludes, it is entitled to a full remission of both bonds under section 903.28(1), Florida Statutes (2007). Alternatively, the Surety argues that it is entitled to a partial remission of the forfeitures under section 903.28(6).

In response, Dwight Brock, as Clerk of the Circuit Court of Collier County (the Clerk), points out that each of the two bonds on the original charges “is a standalone separate contract and the addition of a new charge with a nonmonetary release has no impact on the ... [Surety’s obligations under the separate bonds.” The Clerk supports his argument by directing our attention to the 2006 amendment adding subsection (4) to section 903.02 of the Florida Statutes. Section 903.02(4) provides as follows: “Any judge setting or granting monetary bail shall set a separate and specific bail amount for each charge or offense. When bail is posted, each charge or offense requires a separate bond.” Thus section 903.02(4) eliminates the use of so-called “blanket bonds” and requires a separate bond for each charge against the defendant. Before the addition of subsection (4) to section 903.02, Florida courts frequently set a single bail amount per indictment or information instead of a separate bail amount for each offense alleged within the charging instrument.

III. DISCUSSION

“A bail bond is a three-party contract between the state, the accused, and the surety, whereby the surety guarantees [the] appearance of the accused.” Pinellas Cnty. v. Robertson, 490 So.2d 1041, 1042 (Fla. 2d DCA 1986). A suretyship contract is subject to Florida’s general laws of contract. Am. Home Assurance Co. v. Larkin Gen. Hosp., Ltd., 593 So.2d 195, 197 (Fla.1992). Therefore, a surety’s liability on a bail bond for a criminal defendant does not extend beyond the written contractual terms of the bond. Cont’l Heritage Ins. Co. v. State, 990 So.2d 610, 611 (Fla. 3d DCA 2008) (citing Midland Ins. Co. v. State, 354 So.2d 961, 962 (Fla. 3d DCA 1978)). In the Midland case, the Third District said: “Where the criminal charges are substantially changed from the charges on which the bail bond was originally written, the surety is no longer obligated under the bond.” 354 So.2d at 962. The proposition stated by the Third District in Midland stems from the commercial law regarding the liability of a surety. See Reese v. United States, 9 Wall. 13, 76 U.S. 13, 21, 19 L.Ed. 541 (1869).

An increase in the severity of a charge or charges for which a surety is already liable on an existing bond increases the surety’s risk under the bond contract. It follows that such an increase in the charge or charges without a surety’s consent alters the terms of the bond contract and discharges the surety’s obligation under the bond. See Integrity Bail Bonds v. Pinellas Cnty. Bd. of Cnty. Comm’rs, 884 So.2d 85, 87 (Fla. 2d DCA 2004) (holding that a surety was discharged where the State increased the severity of the charge from a third-degree felony to a second-degree felony); A-Altemative Release Bail Bonds v. Martin Cnty., 882 So.2d 414, 415-16 (Fla. 4th DCA 2004) (same); Midland, 354 So.2d at 962 (holding that a surety liable on a bond for second-degree murder would be discharged by an increase in the charge to first-degree murder).

In this case, the State did not increase the severity of the charges for which the Surety was already liable on the existing bonds. Instead, the State amended the information by adding a new charge. We see a significant distinction between an increase in the severity of a charge for which a surety is already liable on a bond and the addition of a new charge for which a surety has not assumed any responsibility. An increase in the severity of the charge for which a surety is already liable on the bond alters the terms of the original contract and substantially increases the risk of the defendant’s flight and a breach of the existing bond. Such a unilateral alteration of the contract’s terms that increases the surety’s risk entitles the surety to discharge under settled principles of suretyship.

Unlike the increase in the severity of an existing charge, the addition of a new charge does not cause any change in a surety’s exposure under a preexisting bond or bonds. Granted, the addition of a new charge to an indictment or information may increase the risk that the defendant will flee. However, the addition of a new charge or charges to an existing indictment or information does not result in a surety’s discharge on an existing bond because the new charge or charges do not work any change in the surety’s contractual obligation. See United States v. Kodelja, 629 F.2d 1330, 1332 (9th Cir.1980) (holding that a surety liable on an existing bond was not discharged by the defendant’s release from custody after a second arrest on a different charge); Kansas v. Indem. Ins. Co. of N. Am., 9 Kan.App.2d 53, 672 P.2d 251, 253 (1983) (holding that a surety was not discharged from liability on a bond conditioned on the defendant’s appearance to answer a charge of aggravated assault when the state amended the charging document to add additional counts for rape, kidnapping, and unlawful restraint). It follows that the addition of the third charge here did not affect the Surety’s liability under the two preexisting bonds on the original charges in the event of the defendant’s nonappearance. Accordingly, the Surety was not discharged from its obligation on the bonds.

We have considered the decisions in American Bankers Insurance Co. v. Monroe County, 644 So.2d 560 (Fla. 3d DCA 1994), and Matt Howard Bail Bonds v. Escambia County Clerk of Court, 13 So.3d 109 (Fla. 1st DCA 2009), two cases on which the Surety relies in support of its position. In these cases, the appellate courts held that a surety was released from its obligation on a bond after the State filed an amended information adding a new charge. However, both of these cases are distinguishable on their facts.

In the American Bankers case, the surety posted a $50,000 bond for the defendant who was originally charged with trafficking in marijuana, a first-degree felony. 644 So.2d at 561. Later, without the surety’s agreement to remain on the bond, the State amended the information to add a second charge of conspiracy to traffic in marijuana, a second-degree felony. When the defendant failed to appear, the circuit court forfeited the bond. The surety moved to set aside the forfeiture, and the circuit court denied the motion. On appeal, the Third District reversed the circuit court’s order and remanded the case to the trial court with directions to set aside the bail bond forfeiture. Id.

American Bankers is distinguishable from this case because the bond at issue in that case was a blanket bond. In explaining its holding, the Third District repeatedly referred to this feature of the bond under consideration in that case. First, the court emphasized that the addition of the second charge “substantially changed ... the charges for which the bail bond was originally written.” Id. Next, the court said that “the likelihood of flight by a criminal defendant is much greater when an additional felony charge is added, as here, to the felony charge or charges for which the bail bond was originally written.” Id. Finally, the court characterized the addition of the second charge as a “substantial change in the original surety contract.” Id. at 562. Unquestionably, the bond at issue in the American Bankers case was a single blanket bond to which an additional charge was added without the surety’s consent. This material alteration in the contract -without the surety’s consent relieved the surety of its obligations under the bond. Id. at 561.

The facts and the holding in the Matt Howard case are similar to the facts and the holding in American Bankers. Indeed, the First District cited American Bankers as authority for its decision. Matt Howard, 13 So.3d at 111. Although the First District decided Matt Howard in 2009, the bond at issue in that case appears to be a blanket bond similar to the bond under review in American Bankers. Matt Howard, 13 So.3d at 110.

American Bankers and Matt Howard are not controlling here. In this case, unlike in those cases, there was no blanket bond. On the contrary, the Surety’s bonds were specific to the existing charges. The addition of the new charge did not affect the Surety’s contractual obligations under these bonds. In the absence of a material alteration of its contracts, the Surety was not discharged of its obligations under the bonds. Thus the circuit court did not err in denying the Surety’s motion for a full remission of the bonds.

However, the circuit court erred by failing to consider the Surety’s alternative request for a partial remission of the forfeitures. The Surety is entitled to a partial remission of the forfeitures based upon its return of the defendant to the custody of the Collier County Sheriff within two years of the forfeitures. On remand, the circuit court must reconsider the Surety’s request for a partial remission and enter an appropriate order.

IY. CONCLUSION

For these reasons, we affirm the circuit court’s order to the extent that it denied the Surety’s motion for the full remission of the two bond forfeitures. We reverse the circuit court’s order to the extent that it denied the Surety’s motion for a partial remission of the forfeitures based on its return of the defendant to custody within two years of the forfeitures. On remand, the circuit court shall reconsider the Surety’s request for a partial remission and enter an appropriate order remitting a portion of the forfeited amounts to the Surety.

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

VILLANTI and LaROSE, JJ., Concur.

      . Section 903.28(10) provides: "The clerk of the circuit court is the real party in interest for all appeals arising from an action for the remission of a forfeiture under this section.”

      . The Clerk makes various other arguments. The Clerk's other arguments are without merit and do not warrant further discussion.

      . Ch.2006-279, § 1, at 2878, Laws of Fla. The amendment became effective on October 1, 2006. Id., § 5, at 2880. Effective January 1, 2010, the Supreme Court of Florida amended Florida Rule of Criminal Procedure 3.131(b)(2) by adding the language of subsection 903.02(4) to the rule. In re Amendments to the Florida Rules of Criminal Procedure, 26 So.3d 534, 538-39 (Fla.2009).

      .The staff analysis for the bill explains the then-existing practice concerning the use of "blanket bonds” as follows: "Florida Statutes do not currently require (or prevent) a judge to set a separate bail for each offense charged. However, the usual practice is for judges to set one bail amount regardless of how many offenses a defendant is charged with.” Fla. H.R. Comm. on Crim. Justice, CS for HB 827 (2006), Staff Analysis 4, n. 26 (Apr. 25, 2006); see also Accredited Sur. & Cas. Co. v. Putnam Cnty., 561 So.2d 1243, 1244 (Fla. 5th DCA 1990) (”[T]he trial court set a blanket bond amount of $15,000.00 for all of [the defendant's] charges.”).


author: PER CURIAM.

text:
    Tyrone DONALDSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0454.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2013.
    Rehearing Denied April 9, 2013.
    Tyrone Donaldson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROBERTS, WETHERELL, and MARSTILLER, JJ., concur.


author: CRENSHAW, Judge.

text:
    Ronald WOODBURY, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-3215.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 2013.

      Christopher E. Cosden of The Wilbur Smith Law Firm, LLC, Fort Myers, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ralph F. Guerra, Assistant Attorney General, Tampa, for Appellee.
   CRENSHAW, Judge.

Ronald Woodbury appeals his conviction for misdemeanor driving under the influence (DUI), arguing that the circuit court did not have subject matter jurisdiction because it previously dismissed the felony DUI. He also argues that the misdemean- or charge was a nullity because the State filed it after the time for speedy trial expired. We affirm Woodbury’s conviction but write to explain why his arguments fail on appeal.

On December 29, 2010, Woodbury was arrested for DUI. On March 1, 2011, an information was filed charging Woodbury with felony DUI based on two prior DUI convictions. See § 316.193(2)(b)(l), Fla. Stat. (2010). On March 28, 2011, Wood-bury filed a motion to dismiss the felony, arguing that an uncounseled misdemeanor conviction cannot be used to enhance a subsequent crime to a felony. The State did not contest the motion, and the trial court granted the motion at a hearing, making the following ruling:

When defense counsel pointed out that the case remained on the trial court’s docket, the trial court stated,

[W]ith no objection from the State and conceding to the motion, I’ll grant the motion to dismiss the felony count. Obviously, I’m not making any other rulings which would affect your ability to refile this as a misdemeanor DUI or otherwise pursue prosecution as a misdemeanor. I’m also not addressing fee, trial, or anything of that nature.
Let’s just leave it on the trial docket. If anybody needs to set anything, they can.' I don’t know if, really, they can’t keep it in circuit court if they amend the information to a misdemeanor. I think they might be able to, but I don’t know.
I’m just going to leave this on the trial docket, and if it has been certed down and it’s some other court, then obviously, we’ll take no action on the trial date.

The trial court’s written order dismissing the felony DUI was entered on May 20, 2011. That same day, the State filed an information in county court, charging Woodbury with DUI. Woodbury subsequently filed a motion in the circuit court to discharge the misdemeanor on speedy trial grounds pursuant to Florida Rule of Criminal Procedure 3.191(a). After a hearing, the circuit court entered its order denying the motion for discharge and concluding that “[t]his court retains jurisdiction over the misdemeanor DUI charge which survived the dismissal of the felony DUI charge and it is a lesser[-]ineluded offense still pending before this court.”

A jury trial was held in the circuit court. Woodbury was found guilty of misdemean- or DUI, and he was sentenced to two hundred days in Pinellas County Jail. This appeal timely followed.

Woodbury first argues that the trial court did not have subject matter jurisdiction over the misdemeanor DUI once it dismissed the felony DUI. We disagree, and we conclude that the circuit court properly maintained jurisdiction of the lesser-included misdemeanor offense. Section 26.012(2)(d), Florida Statutes (2010), gives the circuit court exclusive original jurisdiction of “all felonies and of all misdemeanors arising out of the same circumstances as a felony which is also charged.” In Allen v. State, the First District held that the granting of a motion to dismiss a charge of felony petit theft based on the invalidity of prior convictions “does not divest the circuit court of jurisdiction to proceed through trial on the surviving misdemeanor petit theft.” 463 So.2d 351, 361 (Fla. 1st DCA 1985). The First District extended this holding, finding it “equally applicable to felony DUI prosecutions under section 316.193(2)(b).” Madison v. State, 540 So.2d 189, 190 (Fla. 1st DCA 1989). We similarly conclude here that the circuit court maintained jurisdiction over the lesser-included misdemeanor DUI when it granted Woodbury’s motion to dismiss the felony DUI. The words spoken by the trial court at the hearing and the State’s filing of an information in county court were not sufficient to divest the circuit court of jurisdiction. At best, the circuit and county courts had concurrent jurisdiction over the misdemeanor DUI when the State filed the information in county court, but the circuit court had not divested itself of jurisdiction.

Woodbury also contends that the misdemeanor DUI charge was a nullity because the State filed the information after the time for speedy trial had expired. See Fla. R. Crim. P. 3.191(a) (providing that “every person charged with a crime shall be brought to trial within 90 days of arrest if the crime charged is a misdemeanor”). However, rule 3.191(f) provides, “[wjhen a felony and a misdemeanor are consolidated for disposition in circuit court, the misdemeanor shall be governed by the same time period applicable to the felony.” And because we have concluded here that the circuit court maintained jurisdiction over the lesser-included misdemeanor DUI, we also conclude that the felony speedy trial time period governs. See Fla. R. Crim. P. 3.191(a) (providing that “every person charged with a crime shall be brought to trial within ... 175 days of arrest if the crime charged is a felony”). Notably, Woodbury’s motion to dismiss the felony charge was filed eighty-nine days after Woodbury’s arrest — just one day before the ninety-day expiration of speedy trial for a misdemeanor under rule 3.191(a). Based on these circumstances, we are compelled to reiterate that “[t]he purpose of the speedy trial rule is to assure a speedy trial, not a speedy discharge.” State v. Thomas, 659 So.2d 1322, 1324 (Fla. 3d DCA 1995) (Cope, J., specially concurring); see also State v. Belien, 379 So.2d 446, 447 (Fla. 3d DCA 1980) (stating that “ ‘gotcha!’ maneuvers will not be permitted to succeed in criminal, any more than in civil litigation”).

Based on the foregoing reasons, we affirm Woodbury’s misdemeanor conviction for DUI.

LaROSE and MORRIS, JJ., Concur.

      . The motion alleged that Woodbury was not brought to trial within the speedy trial time of ninety days and the State was not entitled to a recapture period.


author: CASANUEVA, Judge.

text:
    STATE of Florida, Appellant, v. Jacqueline Faye JONES, Appellee.
    No. 2D11-5924.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 2013.
    Rehearing Denied April 3, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellee.
   CASANUEVA, Judge.

The State of Florida appeals the trial court’s order granting Jacqueline Faye Jones’s motion to suppress evidence found in her residence pursuant to a search warrant. Although the affidavit filed in support of the application for a search warrant set forth facts describing two controlled buys occurring outside the residence, Ms. Jones’s motion to suppress contended the search warrant was issued without probable cause. While the record reflects that the trial court granted the motion, it does not disclose the trial court’s specific rationale for doing so. Accordingly, we proceed on the grounds articulated in Ms. Jones’s motion. After carefully reviewing the affidavit, we conclude that it contained sufficient probable cause to support the warrant’s issuance. Accordingly, we reverse.

Affidavit for Search Warrant

In the affidavit for the search warrant, Detective Bernardo Velazquez testified that a confidential informant (Cl) informed him that illegal narcotics were being sold from the residence at 1871 33rd Street. Detective Velazquez testified that the Cl had been associated with the Sarasota Police Department for approximately five months and during that time had provided narcotics intelligence, had purchased narcotics under controlled circumstances, and had been the instrumental informant in obtaining numerous search warrants which had resulted in the arrests of persons for narcotics violations. Detective Velazquez testified that he knows the Cl to be proven reliable.

Based on the information received from the Cl, Detectives Velazquez and Fran-gioni began an investigation of the residence and set up two controlled buys there. The affidavit states that within a forty-eight-hour period of December 10, 2010, the two detectives met with the Cl, searched the Cl, and gave him twenty dollars with instructions to purchase illegal narcotics from any individual located inside or on the curtilage of the residence. The Cl waited outside the residence and a black female known to the Cl as “Fye [sic] Jones,” born July 14,1961, came out of the residence and sold two baggies of powder cocaine to the Cl in exchange for twenty dollars. After the controlled buy, the Cl was again searched. Surveillance and perimeter security for the controlled buy was conducted by Detectives Frangioni and Howell in addition to a third detective. An identical second controlled buy was conducted within a forty-eight-hour period of December 21, 2010, during which Ms. Jones again sold two baggies of powder cocaine to the Cl in exchange for twenty dollars. Based on these facts, a search warrant was issued on January 11, 2011, and it was executed on January 13, 2011.

Analysis

In determining whether the search warrant was properly issued, the trial court was required “to examine the four corners of the supporting affidavit” to decide if there was a substantial basis for issuing the warrant. State v. Williams, 46 So.3d 1149, 1152 (Fla. 1st DCA 2010). “The trial court should afford ‘great deference’ to the magistrate’s decision and should not review the magistrate’s decision de novo.” State v. Exantus, 59 So.3d 359, 361 (Fla. 2d DCA 2011). The present case is unique because the judge who issued the search warrant was the same judge who later granted the motion to suppress evidence found during the search. The judge offered no explanation as to why she determined that the warrant had been wrongly issued. Regardless, the trial judge’s determination regarding whether probable cause existed to support the issuance of the warrant is examined by this court using the de novo standard of review. See Pagan v. State, 830 So.2d 792, 806 (Fla.2002). Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); see also Pagan, 830 So.2d at 806 (“In determining whether probable cause exists to justify a search, the trial court must make a judgment, based on the totality of the circumstances, as to whether from the information contained in the warrant there is a reasonable probability that contraband will be found at a particular place and time.”). “[A]n applicant is not required to provide a magistrate with direct proof the objects of the search are located in the place to be searched.” Williams, 46 So.3d at 1152. This court held in Burnett v. State, 848 So.2d 1170, 1173 (Fla. 2d DCA 2003), “the affidavit in the warrant application must satisfy two elements: first, that a particular person has committed a crime — the commission element, and, second, that evidence relevant to the probable criminality is likely located at the place to be searched — the nexus element.” (citing United States v. Vigeant, 176 F.3d 565, 569 (1st Cir.1999)).

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

We believe that the case at bar is controlled by State v. Kennon, 901 So.2d 375 (Fla. 2d DCA 2005). There, the Cl advised law enforcement that he was able to purchase narcotics at a specific residence. Id. at 376. Acting on that information, the officers observed the Cl approach the residence and observed Kennon exit the residence, hand a baggie of cocaine to the Cl, and walk back inside the residence. Id. The trial court granted the motion to suppress based on its finding that there was no nexus between the criminal behavior and the residence. This court reversed, holding that the “affidavit properly alleged that Kennon possessed drugs within the residence,” and therefore, the trial court erred in finding that the nexus element had not been met. Id.

The affidavit in the present case contains more information regarding the reliability of the Cl who supplied the information and conducted the controlled buys than the affidavit in Kennon. See Gates, 462 U.S. at 230, 103 S.Ct. 2317 (holding that the reliability, veracity, and “basis of knowledge” of an informant are all extremely relevant and should be considered in a totality of the circumstances analysis in determining whether there is probable cause to believe that narcotics are located at a particular residence). Further, there were two controlled buys in the present case, whereas in Kennon there was just one.

We also conclude that the affidavit in the present case satisfied both elements noted in Burnett, 848 So.2d at 1173. First, it showed that a particular person had committed a crime — Ms. Jones sold cocaine to the Cl on two occasions. Second, it showed that evidence relevant to the probable criminality was likely located at the residence — the Cl informed the detective that illegal narcotics were being sold from the residence and Ms. Jones had cocaine in her possession when she stepped outside of the residence on two separate occasions to sell it to the Cl, which sales occurred approximately eleven days apart. Therefore, there was a fair probability that contraband would be found in the residence. See Gates, 462 U.S. at 238, 103 S.Ct. 2317.

Ms. Jones asserts that the affidavit did not establish the probability of criminal activity in the residence because the controlled buys were conducted outside of the residence and there was no information establishing Ms. Jones’s connection to the residence. However, cases involving a controlled buy at a residence have never required that the affidavit for a search warrant establish that the seller had an ownership or lessee interest in the residence.

In State v. Gieseke, 328 So.2d 16, 17 (Fla.1976), the affidavit stated that during the previous ten days, the detective supervised a controlled buy during which a reliable Cl was given twenty dollars, was searched, and was observed by the detective entering the building at issue and leaving it fifteen minutes later. The Cl returned to the detective, who again searched the Cl and found one baggie of marijuana. The Florida Supreme Court held that “the successful controlled buy was a sufficient demonstration of the probable reliability of the informant’s intelligence information relative to the presence of additional contraband on the premises” and that the controlled buy alone was sufficient to conclude that more narcotics remained in the premises. Id. at 18. There is no indication in Gieseke that the person who sold the drugs to the Cl was identified or that the detective determined who owned or lived in the building. See also United States v. Warren, 42 F.3d 647, 650, 653 (D.C.Cir.1994) (holding that there was probable cause to issue search warrant where affidavit provided that reliable Cl had informed police crack cocaine was being stored and sold at apartment and one controlled buy was conducted at that apartment; however, there was no indication that affidavit contained information regarding who lived at apartment or who sold cocaine from the apartment); United States v. Allen, 960 F.2d 1055, 1056-57 (D.C.Cir.1992) (concluding that there was probable cause to issue search warrant where affidavit provided that Cl of well-established reliability told police that drugs were being sold from residence and Cl made a single controlled buy of crack cocaine from an unknown individual in the hallway of the residence).

Similarly, in Clark v. State, 635 So.2d 1010, 1011 (Fla. 1st DCA 1994), the affiant arranged for a Cl to purchase drugs at a house and the Cl was searched and given forty dollars to buy the drugs. Although the affiant maintained visual surveillance of the Cl as he walked to, entered, and left the house and the Cl returned with marijuana, the affiant did not search the Cl after the marijuana purchase. Id. There was no indication that the affidavit asserted the Cl had proven reliable in the past. Id. Further, there was no indication that police established that the person who sold the marijuana during the controlled buy lived at the residence.

In Clark, the First District rejected the appellant’s argument that, because the officer failed to search the Cl after the purchase, it was not a controlled buy, and therefore, the affidavit lacked sufficient probable cause. Id. at 1012. The court held that the circumstances of the buy were sufficient to show the Cl’s reliability and that the affidavit established the “probability of criminal activity” at the house, noting that “probable cause is a practical, common-sense question, the standard for which is the probability of criminal activity, and not a prima facie showing of such activity.” Id.

We also conclude that the fact that Ms. Jones stepped outside the residence and sold the drugs to the Cl does not lessen the probability that contraband would be found in the residence. Cf. State v. Price, 564 So.2d 1239, 1240-41 (Fla. 5th DCA 1990) (holding that warrant to search residence was supported by sufficient probable cause where one controlled buy was made at the residence and second controlled buy was made at a hotel); see also Delgado v. State, 556 So.2d 514, 516 (Fla. 2d DCA 1990) (concluding that there was probable cause for search warrant where “unwitting informant” purchased cocaine for officer from inside of residence and there is no indication in opinion that owner or renter of residence was identified).

We further note that the motion to suppress could have been denied on another ground. The detectives could permissibly rely on valid case law in applying for the warrant. In Davis v. United States, — U.S. -, 131 S.Ct. 2419, 2429, 180 L.Ed.2d 285 (2011), the Court held that “[e]vidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule.” Here, detectives could reasonably rely on Kennon, 901 So.2d 375, in applying for the search warrant, and therefore, evidence obtained pursuant to that warrant was not subject to the exclusionary rule.

Finally, we do not find merit in Ms. Jones’s argument that the information concerning the illegal drugs was stale. The last controlled buy occurred within a forty-eight-hour period of December 21, 2010, and the search warrant was issued twenty-one days later on January 11, 2011. “The courts of this state have generally refused to invalidate warrants because of ‘staleness,’ in the absence of extraordinary circumstances, if the issuance of the warrant occurs within thirty days of the observation of the evidence establishing probable cause.” State v. Lewis, 605 So.2d 590, 591 (Fla. 2d DCA 1992).

Accordingly, we reverse the order granting Ms. Jones’s motion to suppress and remand for proceedings consistent with this opinion.

Reversed and remanded with directions.

VILLANTI and MORRIS, JJ., Concur.

      . Ms. Jones was charged by information with trafficking in cocaine and possession of a controlled substance.

      . Although it is not very clear, the transcript reflects that this may have been the grounds for the trial court’s ruling.


author: PALMER, J.

text:
    Patricia CALHOUN, Appellant, v. Alvin NIENHUIS, etc., Appellee.
    No. 5D12-3213.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2013.
    Jeffrey D. Jensen, of Unice Salzman, PA, Palm Harbor, for Appellant.

      Ian D. Forsythe, of Hilyard, Bogan & Palmer, P.A., Orlando, for Appellee.
   PALMER, J.

Patricia Calhoun appeals the summary judgment entered against her in her negligence lawsuit against Alvin Nienhuis, in his official capacity as the Sheriff of Her-nando County (Sheriff). Determining that the trial court applied the wrong statute of limitations to Calhoun’s lawsuit, we reverse.

Calhoun sued the Sheriff for negligence. The complaint alleged that, while she was incarcerated as a pre-trial detainee in the Hernando County Jail, Calhoun was injured as a result of the negligence of jail employees. The complaint also alleged that, before filing suit, Calhoun complied with all pre-suit conditions of the waiver-of-sovereign-immunity statute, section 768.28, Florida Statutes (2010).

The Sheriff moved for summary judgment. He argued that Calhoun’s lawsuit was barred by the one-year statute of limitations for prisoner claims, section 95.11(5)(g), because she filed her complaint more than one year after the act of alleged negligence occurred. Calhoun responded that the applicable statute of limitations was the four-year limit for claims based on waiver of sovereign immunity, section 768.28(14). The trial court granted the Sheriffs motion, concluding that section 95.11(5)(g) controlled.

Calhoun appeals, arguing that the applicable statute of limitations is section 786.28(14), not section 95.11(5)(g). We agree.

The Legislature has waived the State’s sovereign immunity from liability for torts, “subject to the limitations specified in [section 768.28].” § 768.28(1). That statute requires a plaintiff to, among other things, provide pre-suit notice to the defendant within three years after the claim accrues. § 768.28(6)(a)-(b). The statute also imposes the following statute of limitations:

768.28 Waiver of sovereign immunity in tort actions; ... statute of limitations ...
(14) Every claim against the state or one of its agencies or subdivisions for damages for a negligent or wrongful act or omission pursuant to this section shall be forever barred unless the civil action is commenced by filing a complaint in the court of appropriate jurisdiction within k years after such claim accrues; except that an action for contribution must be commenced within the limitations provided in s. 768.81(4) [the statute of limitations in the Uniform Contribution Among Tortfeasors Act], and an action for damages arising from medical malpractice must be commenced within the limitations for such an action in s. 95.11(4) [the ordinary statute of limitations for medical malpractice].

§ 768.28(14) (emphasis added).

In contrast, section 95.11(5)(g) was enacted as part of a bill to reform procedures for inmate lawsuits. See Ch. 96-106, Laws of Fla. (1996). That section provides:

95.11 Limitations other than for the recovery of real property
Actions other than for recovery of real property shall be commenced as follows:
(5) Within one year.—
(g) Except for actions described in subsection (8) [challenging prison disciplinary proceedings], an action brought by or on behalf of a prisoner, as defined in s. 57.085, relating to the conditions of the prisoner’s confinement.

We conclude that section 768.28(14), rather than section 95.11(5)(g), applies in this case for several reasons.

First, chapter 95 contains an exception clause that provides that its limitation periods are superseded by other statutes: “A civil action or proceeding ... shall be barred unless begun within the time prescribed in this chapter or, if a different time is prescribed elsewhere in these statutes, within the time prescribed elsewhere.” § 95.011. Based on this clause, the Florida Supreme Court held, in a suit against a government health care provider, that section 768.28’s statute of limitations superseded section 95.11’s statutes of limitations and repose for medical malpractice actions. Pub. Health Trust v. Menendez, 584 So.2d 567 (Fla.1991). The Court explained that the exception clause “clearly provides that the periods of time provided in chapter 95 do not apply if a different period is provided elsewhere in the statutes .... [T]he language of [the clause] is plain: If a different statute prescribes a different time, then the periods of time in chapter 95 have no applicability.” Id. at 569.

Second, even absent chapter 95’s exception clause, section 768.28’s statute of limitations supersedes other statutes in suits against government entities. In Beard v. Hambrick, 396 So.2d 708 (Fla.1981), a decedent’s estate sued a sheriff for wrongful death. Our Supreme Court rejected the sheriffs argument that section 95.11’s statute of limitations for wrongful death applied, holding that section 768.28’s statute applied instead. The Court reasoned: “We believe that the legislature intended that there be one limitation period for all actions brought under section 768.28. We base this belief on the prerequisite notice provisions of this section and the need to have a uniform period for actions against governmental entities.” Id. at 712. See also Fla. Dep’t of Health & Rehab. Servs. v. S.A.P., 835 So.2d 1091, 1096 (Fla.2002) (“Time limitations on legal actions in Florida ordinarily are governed by the statutes of limitation set forth in chapter 95, but ... time limitations on chapter 768 actions are controlled by section 768.28( [14]).” (footnote omitted)); Horn v. State, Dep’t of Transp., 665 So.2d 1122, 1124-25 (Fla. 1st DCA 1996) (interpreting Beard as holding that 768.28’s statute of limitations “was intended to apply to all actions permitted by the limited waiver of immunity, notwithstanding the fact that a different statute of limitations might apply had the action been brought against a private defendant”).

Third, the Legislature has created express exceptions to the applicability of section 768.28’s statute of limitations, and prisoner claims under section 95.11(5)(g) are not one of those exceptions. Specifically, section 768.28(14) excepts claims for contribution and medical malpractice, providing that their respective statutes of limitations apply. Thus, under the maxim inclusio unius est exclusio alterius, prisoner claims within section 95.11(5)(g) should not be construed as being an exception to section 768.28(14).

In arguing that section 95.11(5)(g) applies here, the Sheriff relies on this court’s decision in Nicarry v. Eslinger, 990 So.2d 661 (Fla. 5th DCA 2008). However, Ni-carry does not control, because it did not address the applicability of section 768.28. Cf. Public Health, 584 So.2d at 569 (distinguishing earlier Florida Supreme Court opinion that applied one of section 95.11⅛ statutes of limitations because that opinion did not address applicability of section 768.28).

Accordingly, we reverse the trial court’s summary judgment because Calhoun’s action was timely filed within section 768.28(14)’s four-year limitation period.

REVERSED and REMANDED.

LAWSON and COHEN, JJ., concur.

      . The relevant facts of Public Health occurred before section 768.28’s statute of limitations was amended to except medical malpractice actions.

      . See Gay v. Singletary, 700 So.2d 1220, 1221 (Fla.1997) (explaining that this Latin maxim instructs that "when a law expressly describes the particular situation in which something should apply, an inference must be drawn that what is not included by specific reference was intended to be omitted or excluded”).


text:
    Thomas L. CRAMER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2365.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2013.
    Rehearing Denied April 4, 2013.
    Thomas L. Cramer, Mayo, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant was originally sentenced in five separate cases to serve a total of twenty-eight years in prison. This court’s decision in Cramer v. State, 5 So.3d 790 (Fla. 5th DCA 2009), did not alter the overall length of his combined sentences.

AFFIRMED.

LAWSON, JACOBUS and BERGER, JJ., concur.


text:
    STATE of Florida, Appellant, v. Jeffrey Scott DAVIS, Appellee.
    No. 2D12-1409.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellant.
    Jason M. Lucas of The Lucas Law Firm, P.A., Port Charlotte, for Appellee.
   MORRIS, Judge.

The State of Florida appeals from the circuit court’s order granting the defendant Jeffrey Scott Davis’s motion for judgment of acquittal notwithstanding the verdict. We conclude that the circuit court erred by granting the motion, and we reverse.

I. Background

Davis was charged with boating under the influence (BUI) for events which occurred in October 2008. During a bifurcated jury trial, Punta Gorda Police Officer Brandon Jacobsen testified that he observed Davis operating a boat about twenty-five yards out in the harbor in front of Harpoon Harry’s, a local restaurant and bar. The motor was running, and Jacob-sen observed Davis shifting the gears from forward to reverse. Both of Davis’s witnesses, as well as Davis himself, testified that Davis and his wife took the boat from Davis’s residence to the residence of friends where one of the friends boarded the boat. The Davises and their friend then took the boat to Harpoon Harry’s.

During the trial, the boat was consistently referred to as a boat and it was described as being twenty-five to twenty-six feet in length and having a four stroke engine. At no time did any of the witnesses express confusion about what object was being referred to when discussing the boat.

At the conclusion of the evidence, the circuit court provided the following jury instruction:

To prove the crime of Boating under the Influence, the State must prove the following two elements beyond a reasonable doubt:
1. Jeffrey Scott Davis operated a vessel.
2. While operating the vessel, Jeffrey Scott Davis
a. was under the influence of alcoholic beverages to the extent that his normal faculties were impaired or
b. had a breath-alcohol level of .08 or more grams of alcohol per 210 liters of breath.

The jury was then given the definition of vessel which provides that a vessel is “a boat that is subject to a license tax for operation and includes every description of watercraft, barge, and airboat, other than a seaplane, on the water used or capable of being used as a means of transportation on the water.”

Davis was convicted, and at the second portion of the trial before the circuit court, he was found to have a prior conviction for driving under the influence (DUI), as well as a prior conviction for BUI. As a result, the circuit court found him guilty of BUI (third violation within ten years). At that point, defense counsel moved for judgment of acquittal and judgment notwithstanding the verdict. Part of the defense’s argument was that the State failed to prove that the boat involved was a vessel as defined in section 327.85, Florida Statutes (2008), because there was no evidence that the boat was subject to a license tax for operation. The State conceded it did not present evidence on that issue, but it argued that based upon the evidence, the jury could reasonably conclude that the boat was, in fact, a vessel. The circuit court granted the motion finding that the State failed to prove all of the elements of the crime beyond a reasonable doubt.

II. The State’s appeal is not moot, and this court has jurisdiction.

Davis contends that the State’s appeal is moot because it did not file a notice of appeal addressing Davis’s motion for judgment notwithstanding the verdict. We reject this argument because the two motions were essentially aimed at reaching the same result, see State v. Nicholson, 819 So.2d 908, 909 (Fla. 4th DCA 2002), and both dealt with the same issue: whether the State proved all the elements of the crime beyond a reasonable doubt.

We also reject Davis’s argument that an order on a motion for judgment notwithstanding the verdict is not appeal-able because it is not listed as an appeal-able order in Florida Rule of Appellate Procedure 9.140(c). A motion for judgment of acquittal which is presented after the verdict has the same effect as a motion for judgment notwithstanding the verdict, and clearly this court has jurisdiction to review orders on motions for judgments of acquittal after a jury verdict. See Fla. R.App. P. 9.140(c)(1)(E); see also State v. Higdon, 814 So.2d 1196, 1196 (Fla. 2d DCA 2002) (involving appeal from an order granting a motion for judgment notwithstanding the verdict).

III. The State was not required to prove that the boat was subject to a license tax in order to prove the crime of BUI.

The relevant portions of section 327.35(l)(a) and (c) provide that a person commits the crime of BUI when they are operating a vessel within this state and:

(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that that the person’s normal faculties are impaired; [or]
(c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.

Vessel is defined in section 327.02(39) as being “synonymous with boat as referenced in s. 1(b), Art. VII of the State Constitution and includes every description of watercraft, barge, and airboat, other than a seaplane on the water, used or capable of being used as a means of transportation on water.”

Thus the statute does not define vessel as a boat which is subject to a license tax. In contrast, the jury instruction defines vessel as a boat that is subject to a license tax for operation. See Fla. Std. Jury Instr. (Crim.) 28.14. The reference in the jury instruction appears to come from section (l)(b) of article VII of the Florida Constitution which provides in relevant part that “boats ..., as defined by law, shall be subject to a license tax for their operation in the amounts and for the purposes prescribed by law, but shall not be subject to ad valorem taxes.”

If section 327.02(39) defined vessel only as including “every description of watercraft ... used or capable of being used as a means of transportation on water,” the result below likely would have been different. There was no question that the State proved that the boat was used to take Davis, his wife, and their friend from the friend’s house to a local restaurant and bar. However, because section 327.02(39) refers to section (l)(b) of article VII, which contains the reference to a license tax, we believe the statute is ambiguous. Consequently, we are guided by the rules of statutory interpretation which require us to “consider the statute as a whole, including the evil to be corrected, the language, title, and history of its enactment, and the state of law already in existence on the statute.” State v. Anderson, 764 So.2d 848, 849 (Fla. 3d DCA 2000).

The first part of the title of section 327.35 is “Boating under the influence.” And section 327.35(10) provides that “[i]t is the intent of the Legislature to encourage boaters to have a ‘designated driver’ who does not consume alcoholic beverages.” Thus neither the title nor the statement of legislative intent (i.e., the statement addressing the evil to be corrected) refer to a boat’s being subject to a license tax. The language of section 327.35 is also silent on any such requirement. Although some prior versions of the definition set forth in section 327.02(39) defined vessel as being synonymous with boats which were registered as provided in other statutes and as defined in the constitution, that explicit reference to a boat’s registration was deleted in 1981. However, the definition has consistently included the phrase “used or capable of being used for transportation on water.” Consequently, it is the vessel’s use for transportation on water that is necessary to establishing that a person was operating a vessel within the meaning of section 327.35. Indeed, the inclusion of that phrase is a crucial distinction from other types of crimes involving intoxicated persons. Cf. §§ 316.003(75), .193, Fla. Stat. (2008) (defining the crime of DUI which involves the operation of a vehicle, which is defined as “[ejvery device, in, upon, or by which any person or property is or may be transported or dram upon a highway, excepting devices used exclusively upon stationary rails or tracks”) (emphasis added).

While we do not ignore the reference in section (l)(b) of article VII of the Florida Constitution to a boat’s being subject to a license tax, we do not believe that the phrase as expressed in the constitution is an element of the crime of BUI. Article VII deals solely with finance and taxation matters, not with the definition of crimes. We note too that in 1999, the legislature added chapter 328 which addresses vessel registration requirements. In doing so, the legislature also modified the name of chapter 327 to “Florida Vessel Safety Law” and moved the provisions relating to registration requirements to chapter 328. See Ch. 99-289, §§ 1-37, at 3190-3211, Laws of Fla. The fact that the legislature separated the registration requirements from the provisions relating to boating safety issues suggests to us that the legislature did not intend for a boat’s registration status to dictate whether its operator could be charged with BUI. Further, we find the legislature’s choice of words to be instructive. Rather than defining vessel as a boat which is subject to a license tax, the legislature defined it as being “synonymous with boat.” § 327.02(39). We note too that the legislature did not define vessel as being synonymous with boat as defined in the constitution, but merely as referenced. Id. A synonym is “a word having the same or nearly the same meaning as another in the same language.” Webster’s New World Dictionary & Thesaurus 623 (1996). Construing the manner in which the legislature defined vessel (i.e., by deleting any explicit reference to a boat’s registration and instead citing to the reference in the constitution) along with the fact that the legislature created an entirely separate chapter to address registration requirements, we interpret the constitutional reference in section 327.02(39) to provide merely an example of what constitutes a vessel. That is, we find that the legislature intended for vessel to be defined as having nearly the same meaning as boat as referenced in the constitution. Had the legislature intended for a vessel to be defined by its registration requirements, the legislature would not have deleted the explicit reference to registration requirements. Further, had the legislature intended for the crime of BUI to require proof that a vessel was registered, it would have stated so.

In asking us to affirm, Davis contends that the Standard Jury Instructions in Criminal Cases Committee and the Florida Supreme Court in drafting and adopting the BUI jury instruction went to great lengths to narrow the definition of vessel to include only those boats which are subject to a license tax for operation. Davis also argues that had the legislature, the Committee, and the Florida Supreme Court intended for a broader definition to be utilized, they would not have used the restrictive language in the jury instruction and the reference to section (l)(b) of article VII in section 327.02(39). But as we have already explained, the legislature did not choose to include the “subject to a license tax for operation” phrase in the statute defining the crime of BUI and the reference to section (l)(b) of article VII in section 327.02(39) — which is merely a general definition applicable to all of chapter 327 — is merely to provide an example of what constitutes a vessel.

Further, accepting Davis’s interpretation of the statute would lead to absurd results. For example, section 328.48(2), Florida Statutes (2008), lists certain excepted types of vessels which are not subject to a license tax for operation such as United States government vessels or lifeboats. Davis’s interpretation of section 327.35 would mean that persons operating any of the excepted vessels in section 328.48(2) would be immune from prosecution for BUI. However, it is entirely possible that a federal government employee could become intoxicated and take a government vessel out into the water. Likewise, it is possible that an intoxicated cruise ship passenger could take a lifeboat out into the water. The dangers inherent in either of those possibilities are equivalent to the dangers present when an intoxicated person operates a registered vessel. We do not believe that the legislature intended for such persons to escape prosecution for BUI merely because they were operating one of the vessels excepted from registration requirements listed in section 328.48(2). Accordingly we reject Davis’s argument that the legislature intended for section 327.35 to apply only where the boat in question is subject to a license tax, and we construe that phrase in the jury instruction to be mere surplusage. We take this opportunity to suggest that the Standard Jury Instructions in Criminal Cases Committee revise the definition of vessel as used in the BUI jury instruction by omitting the reference to a boat being subject to a license tax for operation. Such a revision would be in accordance with section 327.35, and we believe it would more accurately reflect the legislative intent to discourage boating under the influence without regard to boating registration requirements.

Reversed and remanded for proceedings in accordance with this opinion.

VILLANTI and WALLACE, JJ., Concur.

      . Pursuant to section 327.35(2)(b), Florida Statutes (2008), a conviction for a third violation of this section which occurs within ten years after a prior conviction for a violation of this section elevates the charge to a third-degree felony. Section 327.35(6)(i) provides that any conviction for a DUI is also considered a previous conviction for purposes of establishing prior violations of section 327.35. Because Davis had previously been charged with DUI and BUI, his sentence upon conviction of the current charge would be dependent on prior convictions. However, Davis waived his right to a jury trial on the issue of prior convictions so that issue was left for the circuit court’s determination.

      . These instructions are in accordance with Florida Standard Jury Instruction (Criminal) 28.14.

      . Although the record before this court suggests the two prior convictions were for DUI, both parties proffered to this court that one of the prior convictions was for DUI and the other was for BUI.

      . The statement of legislative intent was added in 1998. See ch. 98-308, § 10, at 2692, Laws of Fla.

      . See ch. 81-100, § 1, at 182, Laws of Fla.

      . See, e.g., ch. 65-361, § 1, at 1228, Laws of Fla.; ch. 72-16, § 1, at 140, Laws of Fla.; ch. 79-334, § 23, at 1750, Laws of Fla.; ch. 81-100, § 1, at 182, Laws of Fla.; ch. 99-289, §§ 1-37, at 3190-3211, Laws of Fla.; ch. 2000-362, § 2, at 4043, Laws of Fla.; see also Melanie King, A Legislative History of Florida Statutes Chapter 327 (University of Florida Levin College of Law Conservation Clinic ed., 2008) (analyzing amendments to chapter 327).

      . Compare Stewart v. Dutra Constr. Co., 543 U.S. 481, 484, 125 S.Ct. 1118, 160 L.Ed.2d 932 (2005) (finding that under federal admiralty law, a dredge, which only had limited means of self-propulsion, constituted a vessel because it was used or capable of being used as a means of transportation on water, though that was not its primary purpose) with Lozman v. City of Riviera Beach, Fla., — U.S. -, 133 S.Ct. 735, 740-46, 184 L.Ed.2d 604 (2013) (discussing cases and determining that floating home did not qualify as a vessel because it was not primarily used as a means of transportation over water). Though this case does not involve federal admiralty law, Stewart and Lozman suggest that other courts would agree with our determination that a vessel is defined by its ability to be used for transportation on water.

      . Vessels used exclusively on private lakes and ponds, non-motor-powered vessels less than sixteen feet in length, and any non-motor-powered canoes, kayaks, racing shells, or rowing sculls, regardless of length are also excepted from the registration requirements. § 328.48(2)(a) and (d).

      . Thus, we believe that the BUI statute applies to all vessels which are used or capable of being used for transportation on the water even if that vessel is of a type which some Floridians might consider less dangerous, such as a nonmotorized sailboat. Although many Floridians enjoy the privilege of boating, that privilege comes with the responsibility to refrain from operating the vessel while under the influence in the same way operating a vehicle does. Section 327.35 does not limit its scope to only those vessels subject to registration requirements, and we decline to adopt any interpretation which would circumscribe the legislative intent. Cf. State v. Howard, 510 So.2d 612 (Fla. 3d DCA 1987) (holding that DUI statute applies to persons operating bicycles under the influence since bicycles are not excepted from statute).


text:
    STATE of Florida, Appellant, v. Andrew P. TOVAR, Appellee.
    No. 2D11-4805.
    District Court of Appeal of Florida, Second District.
    March 6, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellee.
   CASANUEVA, Judge.

The State of Florida appeals the grant of a motion for judgment of acquittal as to count one after a jury verdict finding Andrew P. Tovar, acting as a principal, guilty of felony battery. See § 924.07(l)(j), Fla. Stat. (2011); Fla. R.App. P. 9.140(c)(1)(E). Upon granting the motion, the trial court reduced the jury’s verdict and adjudicated Mr. Tovar guilty of misdemeanor battery as a lesser-included offense. We reverse.

The information filed against Mr. Tovar charged two offenses: count one was aggravated battery with a deadly weapon on Korey Barkley and count two was battery on Scot Fox. The two counts against Mr. Tovar were based on an altercation arising in the early morning hours of January 30, 2011, in a parking lot outside some bars and restaurants in downtown Ft. Myers. After an evening where all involved had been imbibing alcohol, Mr. Tovar and Robert Robbins got into a heated argument with Mr. Fox and Mr. Barkley and fisticuffs ensued. The fighting ended when Mr. Tovar and Mr. Robbins drove off after they heard that Mr. Fox had dialed 9-1-1 for police assistance. But after the police arrived and left, having been assured by Mr. Fox that the breach of the peace was over, Mr. Robbins, with Mr. Tovar as passenger in his car, returned to the scene and resumed the fighting, Mr. Robbins again attacking Mr. Barkley. Mr. Fox testified at trial that Mr. Tovar grabbed Mr. Barkley from behind and held his arms down while Mr. Robbins continued his attack. After. Mr. Fox pulled Mr. To-var off Mr. Barkley, Mr. Tovar and Mr. Robbins drove off again but were quickly pursued, and apprehended because Mr. Fox gave the police the car’s description and tag number.

Mr. Barkley’s account of the evening was similar to Mr. Fox’s, adding that Mr. Robbins stabbed him several times but that he did not realize he had been stabbed until after his assailants had left the scene. But he did see Mr. Robbins with a knife as Mr. Robbins was retreating to his car. When Mr. Robbins’ car was stopped a short time later, the investigating officer found an empty knife sheath in the car on the floorboard of the driver’s area but no knife.

Mr. Tovar, while being interviewed that night as well as when testifying at trial, denied that he or Mr. Robbins had stabbed anyone, claimed that he had remained in the car during the second altercation, and maintained that he did not even know that Mr. Robbins had a knife in his possession.

At both the close of the State’s case and at the close of the defense’s case, defense counsel moved for a judgment of acquittal as to count one, arguing that the State had not adduced sufficient evidence that Mr. Tovar had a conscious intent that a criminal act be done to Mr. Barkley so as to convict Mr. Tovar as a principal in the crime of aggravated battery with a deadly weapon. In moving for a judgment of acquittal, Mr. Tovar admitted the facts in evidence and all reasonable inferences in favor of the State. See Lynch v. State, 293 So.2d 44, 45 (Fla.1974). The trial court denied the motion at the close of the State’s case and refrained from ruling when the motion was renewed at the close of all the evidence, taking it under advisement and allowing count one to go to the jury as charged. When the jury returned with a verdict of guilty of the lesser-included crime of felony battery on count one, the trial court immediately ruled and granted the pending motion for judgment of acquittal as to that count and entered a judgment of misdemeanor battery. The State timely appealed the granting of the motion for judgment of acquittal as to felony battery.

On appeal, the State argues that it had presented sufficient evidence to establish a prima facie case that Mr. Tovar’s conduct that evening operated in conjunction with Mr. Robbins’ criminal conduct to commit a felony battery on Mr. Barkley. Its evidence, the State submits, required the trier of fact to make a credibility determination of the competing versions and conclude whether Mr. Tovar was, in fact, guilty as a principal. We agree.

The standard of review on appeal of a judgment of acquittal after a jury verdict is de novo. See State v. Williams, 742 So.2d 509, 511 (Fla. 1st DCA 1999) (citing State v. Eversley, 706 So.2d 1363, 1364 (Fla. 2d DCA 1998), quashed in part on other grounds, 748 So.2d 963 (Fla.1999)). Mr. Tovar asserted that the State had not presented sufficient evidence to overcome his hypothesis of innocence that he did not know that his friend, Mr. Robbins, had a knife and that he did not assist Mr. Robbins in any way regarding the battery of Mr. Barkley. No one disputes that it was Mr. Robbins who stabbed Mr. Barkley and not Mr. Tovar. Mr. Tovar could only be convicted of felony battery as a principal.

The law of principal in the first degree, section 777.011, Florida Statutes (2011), defines that status in the following manner:

Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense.

The parties agree on the elements the State needed to prove to establish that a defendant acted as a principal to a crime. See R.E. v. State, 13 So.3d 97, 98 (Fla. 4th DCA 2009). But it is clear from the verdict that the jury rejected Mr. Tovar’s version of events that he remained in Mr. Robbins’ car while the latter leaped out to resume the fight with Mr. Barkley and Mr. Fox.

When two people act in concert to commit a crime, one is responsible for the acts of the other. See Adams v. State, 341 So.2d 765, 768 (Fla.1976). According to the testimonies of State witnesses Mr. Fox and Mr. Barkley, Mr. Tovar joined in the fight between Mr. Robbins and Mr. Barkley by grabbing the latter around the neck and arms, thereby reducing Mr. Barkley’s ability to defend himself from Mr. Robbins’ blows, blows inflicted by fist and knife. This evidence pointed to Mr. Tovar as an aider and abettor to Mr. Robbins in the crime of felony battery on Mr. Barkley.

“[I]n order to be a principal in a crime, one must have a conscious intent that the crime be done and must do some act or say some word which was intended to and does incite, cause, encourage, assist, or advise another person to actually commit the crime.” L.J.S. v. State, 909 So.2d 951, 952 (Fla. 2d DCA 2005). But “ ‘a trial court should rarely, if ever, grant a motion for judgment of acquittal based on the state’s failure to prove mental intent.’ ” Hardwick v. State, 680 So.2d 1212, 1214 (Fla. 5th DCA 1994) (quoting Brewer v. State, 413 So.2d 1217, 1220 (Fla. 5th DCA 1982)). “Whether one had intent is generally a question given to a jury, for reasonable men may differ in determining intent when taking into consideration the surrounding circumstances.” State v. Herron, 70 So.3d 705, 706 (Fla. 4th DCA 2011).

The State presented a sufficient quantum of evidence from which the jury could conclude that Mr. Tovar was a principal in the crime of felony battery, and the trial court erred in taking that determination away from the jury. The issue of Mr. Tovar’s intent should have been decided by the fact finder. See State v. Carwile, 615 So.2d 748, 750 (Fla. 2d DCA 1993) (citing State v. J.T.S., 373 So.2d 418, 419 (Fla. 2d DCA 1979)). That a jury decide the intent of the defendant is the general rule whether the trial court was determining a motion to dismiss before trial or a motion for judgment of acquittal at trial.

Mr. Tovar’s motion for judgment of acquittal as to the degree of crime in count one should have been denied. Instead, the trial court, operating on its belief in Mr. Tovar’s version of events, removed that important credibility determination from the jury, thereby impermissibly acting as a seventh juror. See Tibbs v. State, 397 So.2d 1120, 1123 n. 10 (Fla.1981) (citing Abbott v. State, 334 So.2d 642, 647 (Fla. 3d DCA 1976) (noting that conflicts in the evidence and questions about the credibility of a witness will not justify reversal when the evidence is legally sufficient to support the conviction)); see also Ferebee v. State, 967 So.2d 1071, 1073 (Fla. 2d DCA 2007) (explaining that a trial court may not act as a seventh juror when determining if there were sufficient facts for the jury to make a determination of guilt but could do so on a motion for new trial).

Reversed and remanded with instructions to reinstate the jury verdict of guilty of felony battery and for further proceedings.

KELLY and KHOUZAM, JJ., Concur.

      . From what can be gleaned from the record, the participants were arguing about unwanted attentions being bestowed upon female companions.


text:
    COASTAL PALMS HOLDINGS, LLC, Appellant, v. Theodore M. PAXTON, Appellee.
    No. 2D12-2300.
    District Court of Appeal of Florida, Second District.
    March 6, 2013.

      Marion Hale and Sharon E. Krick of Johnson, Pope, Bokor, Ruppel & Burns, LLP, Clearwater, for Appellant.
    Jawdet I. Rubaii and Jack F. White, III, of Jawdet I. Rubaii, P.A., Clearwater, for Appellee.
   CASANUEVA, Judge.

Coastal Palms Holdings, LLC, appeals the final judgment entered against it in a replevin action brought by Theodore M. Paxton. Because of procedural irregularities, we are compelled to reverse.

A. Facts

Coastal Palms, as assignee of the mortgagee Bank of America, obtained a final judgment of foreclosure on an office building. The mortgage covered not only the real property but also fixtures, furniture, equipment, and after-acquired property. The notice of lis pendens filed as part of the foreclosure action included a list of the personal property and stated that the plaintiff was also foreclosing on the fixtures, equipment, appliances, furniture, security and access control apparatus, cabinets, furniture, pictures, and plants. A tenant in one of the suites in the building, Star Sun Management, Inc., was named as a defendant in the foreclosure action along with the mortgagor corporate owner of the building. Julius Szabo was the president of Star Sun Management as well as the managing member of the mortgagor corporation. Coastal Palms obtained its final judgment of foreclosure in September 2011 that included both the real property and the personal property identified in the mortgage and notice of lis pendens. Coastal Palms was thereafter the winning bidder at the foreclosure sale.

After the sheriff served the writ of possession on the tenant in November 2011, Coastal Palms corresponded with Star Sun’s pi’esident about personal property that had been left in Star Sun’s suite. In early December 2011, Mr. Paxton called Coastal Palms’ counsel to inform her that he had sublet Star Sun’s suite and therefore the property within it belonged to him. Coastal Palms requested that Mr. Paxton submit proof that he owned the property but no such proof was forthcoming. Mr. Szabo then informed Coastal Palms that the property in the suite belonged to him (Mr. Szabo) and that Mr. Paxton was his business associate. Meanwhile, Coastal Palms located an inventory book in the suite which indicated that certain items in the suite belonged to the mortgagor corporation. Based on this discovery and because Mr. Szabo was the managing member of the mortgagor corporation, in late December Coastal Palms allowed Mr. Paxton, as Mr. Szabo’s representative, to remove the personal property that was not subject to foreclosure from the suite. But in January 2012, Mr. Szabo claimed that all of the remaining personal property belonged to him and demanded that Coastal Palms return it. In February 2012, Mr. Paxton’s counsel wrote to Coastal Palms and alleged that all the remaining property in the suite belonged to Mr. Pax-ton. But Coastal Palms replied that all the remaining property in the suite had belonged to the mortgagor corporation and, as such, Coastal Palms became the owner of that personal property by virtue of the foreclosure sale.

Because Coastal Palms would not return the remaining property to him, on February 21, 2012, Mr. Paxton filed the underlying civil action for replevin against Coastal Palms. The complaint alleged that Mr. Paxton had purchased the property from Mr. Szabo on December 28, 2011, which was six months after the notice of lis pen-dens was filed in the foreclosure action. On February 28, 2012, the trial court entered an ex parte order to show cause. Coastal Palms was served with the complaint and the order to show cause and thereafter filed its answer and affirmative defenses on March 30, 2012. Coastal Palms claimed that because the alleged sale of the property to Mr. Paxton took place after the notice of lis pendens was filed, Mr. Paxton was not entitled to ownership of the property because it came into Coastal Palms’ possession by virtue of the completed foreclosure action and sale.

The hearing on the show cause order was held on April 3, 2012, and, at the conclusion of the hearing, the trial court took the matter under advisement. On April 18, the trial court entered a final judgment finding that the property belonged to Mr. Paxton. There had been no notice for trial pursuant to Florida Rule of Civil Procedure 1.440(b) filed or served on Coastal Palms to alert it that the April 3 hearing was anything other than a show cause hearing or that the trial court would make a final adjudication of the merits of the case in what was scheduled as a thirty-minute hearing. This appeal timely followed.

B. Analysis

An action for replevin is a civil action in which the Florida Rules of Civil Procedure apply. Writing for the court, Judge Wallace explained that “[t]he essence of an action of replevin is the ‘unlawful detention of personal property from plaintiff at the commencement of the action, regardless of whether defendant acquired possession rightfully or wrongfully.’ ” Brown v. Reynolds, 872 So.2d 290, 294 (Fla. 2d DCA 2004) (quoting Senfeld v. Bank of Nova Scotia Trust Co. (Cayman), 450 So.2d 1157, 1161 n. 5 (Fla. 3d DCA 1984)).

In this case, the final judgment resulted from a hearing triggered by the trial court’s order to show cause. The “show cause” hearing was authorized by section 78.067(2), Florida Statutes (2011). In pertinent part, the statute requires the trial court to hold a hearing and “make a determination of which party, with reasonable probability, is entitled to the possession of the claimed property pending final adjudication of the claims of the parties.” Id. Thus, the statute contemplates a temporary, pendente lite, award and not a final adjudication on the merits. “This determination is to be based on the ‘probable validity’ of the plaintiffs claim against the defendant and is preliminary to a final adjudication of the claims of the parties.” Keybank Nat’l Ass’n v. Passport Marine, Inc., 76 So.3d 1137, 1138 (Fla. 4th DCA 2012) (quoting JB Int’l, Inc. v. Mega Flight, Inc., 840 So.2d 1147, 1149 (Fla. 5th DCA 2003)). Regardless of the result of the show cause hearing, “the case proceeds as any other civil action would, and the trial court must still make a final adjudication of the claims of the parties in accordance with the Florida Rules of Civil Procedure.” Brown, 872 So.2d at 296.

C. Conclusion

In this case, the final judgment resulted only from the show cause procedure. It is thus clear that the action at the time of the show cause hearing was not ripe for final disposition. The record does not disclose that the parties followed the procedures required by rule 1.440 or that they utilized an authorized alternative procedure so as to permit a trial on the merits. Accordingly, to the extent that the order of April 18, 2012, purports to be a final judgment or adjudication on the merits, we reverse.

Reversed and remanded for further proceedings.

KELLY and VILLANTI, JJ„ Concur.

      . The order the trial court entered is titled "Final Judgment” and purports to be a final adjudication on the merits of the case, despite the fact that it does not include the routine expression “let execution issue.” Mr. Paxton contends that the order is not an appealable order but we disagree.


text:
    Sebastian WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3053.
    District Court of Appeal of Florida, Second District.
    March 6, 2013.
   CASANUEVA, Judge.

Sebastian Williams appeals the order summarily denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for the postconviction court to reinstate Mr. Williams’ youthful offender status.

On October 1, 2010, Mr. Williams entered guilty pleas in circuit court case number 08-7340 to two counts of sale of cocaine and two counts of possession of cocaine and in circuit court case number 08-3400 to four counts of robbery. The trial court withheld adjudication and placed him on probation as a youthful offender for six years, all terms to run concurrently.

On January 11, 2011, an affidavit of violation of probation was filed alleging that Mr. Williams violated his probation by possessing, carrying, or owning a firearm and committing the offense of resisting an officer without violence. Mr. Williams admitted to the violations, and the trial court sentenced him to a total of fifteen years’ imprisonment. However, the trial court did not continue Mr. Williams’ youthful offender status.

Upon finding that a youthful offender committed a substantive violation of probation, a trial court may impose the maximum sentence allowable for the crime, see § 958.14, Florida Statutes (2007); Mistretta v. State, 99 So.3d 561, 562 (Fla. 2d DCA 2012), but it must continue the defendant’s status as a youthful offender. See id. (reversing and remanding for the trial court to designate as a youthful offender the defendant who committed a new law violation while on youthful offender probation and was sentenced to eight years); Yegge v. State, 88 So.3d 1058, 1059-60 (Fla. 2d DCA 2012) (“[T]he sentencing court must maintain the defendant’s youthful offender status upon resentencing for a violation of probation even when the violation was substantive.”).

Accordingly, we reverse and remand with directions that the postconviction court reinstate Mr. Williams’ youthful offender status.

Reversed and remanded with directions.

LaROSE and CRENSHAW, JJ., Concur.