text:
    Adam J. LAFFERTY, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5414.
    District Court of Appeal of Florida, Second District.
    June 14, 2013.

      Howard L. Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Chief Judge.

Adam J. Lafferty appeals his judgment and sentence for the third-degree felony of robbery by sudden snatching. He was previously convicted and served his sentence for petit theft for the taking of the items in the victim’s purse that was the subject of the robbery by sudden snatching. We agree with Lafferty that double jeopardy principles prohibit his subsequent prosecution for robbery by sudden snatching. Thus, the trial court should have granted Laffert/s motion to dismiss, and we reverse Laffert/s conviction and sentence for robbery by sudden snatching.

This case arises from a purse snatching that occurred on June 6, 2011, outside a Target store. A complaint/arrest affidavit filed in county court on June 8, 2011, alleged that Lafferty committed the offense of petit theft by having property in his possession that was stolen from the victim of a robbery by sudden snatching. The complaint alleged that the robbery was still being investigated. It further alleged that the stolen property was valued at less than $300, but the complaint did not allege that the property was valued at $100 or more. The complaint cited the violation of section 812.014, Florida Statutes (2010), the theft statute, but did not provide which subsection of the statute was violated.

A judgment and sentence rendered on June 10, 2011, showed that Lafferty entered a no contest plea and was adjudicated guilty of the offense of petit theft. The judgment does not cite a statute number for the petit theft. Lafferty was sentenced to time served of one day and ordered to pay costs; jurisdiction was reserved to determine the amount of restitution to the victim.

On July 22, 2011, the State filed an information in circuit court charging Laf-ferty with robbery by sudden snatching for the event that occurred on June 6, 2011, in violation of section 812.131(2)(b). The victim is the same victim listed on the judgment and sentence in the petit theft case. Lafferty filed a motion to dismiss, alleging a double jeopardy violation. After a hearing on the motion, the trial court denied the motion, relying upon McKinney v. State, 66 So.3d 852 (Fla.), cert. denied, — U.S. -, 132 S.Ct. 527, 181 L.Ed.2d 369 (2011). Lafferty subsequently entered a guilty plea, reserving the right to appeal the denial of his motion to dismiss. Laf-ferty was sentenced to eight months in prison, and it was undisputed that the amount of restitution to the victim for the value of the property taken was $245. Lafferty timely appealed.

Lafferty contends on appeal that the trial court should have granted his motion to dismiss because the robbery by sudden snatching is a successive prosecution that violates the prohibition against double jeopardy contained in the Fifth Amendment to the United States Constitution and article I, section 9 of the Florida Constitution. Our review of a double jeopardy claim with undisputed facts is a question of law reviewed de novo. McKinney, 66 So.3d at 853.

To determine if a subsequent prosecution violates double jeopardy principles, the courts employ the Blockburger test, also known as the same-elements test, codified in section 775.021(4), Florida Statutes (2010). See State v. Johnson, 676 So.2d 408, 410 (Fla.1996); Duff v. State, 942 So.2d 926, 928 (Fla. 5th DCA 2006). Section 775.021(4) provides as follows:

(4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature' is to convict and sentence for each' criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

(Emphasis added.)

The court first determines whether the Blockburger test of section 775.021(4)(a) shows that the offenses each contain an element that the other does not. Duff, 942 So.2d at 928. “If they do not, double jeopardy bars multiple prosecutions or convictions. If they each contain separate elements, then the court must determine if one of the three exceptions in section 775.021(4)(b) applies.” Id. The Blockburger test, looks to the statutory elements of the offenses, not to the particular pleadings or proof. Id. at 929.

The offense of robbery by sudden snatching contains elements that are not contained in the offense of petit theft. To prove robbery by sudden snatching, the State must establish that money or property of some value was taken from the victim’s person with the intent to deprive the victim of the right to the property and that in the course of the taking the victim “ ‘was or became aware of the taking.’” Clark v. State, 43 So.3d 814, 816 n. 4 (Fla. 1st DCA 2010) (quoting In re Standard Jury Instructions in Criminal Cases—Report No. 2008-08, 6 So.3d 574, 587 (Fla.2009)). The offense of petit theft does not require the taking to be from the victim’s person and does not require the victim to become aware of the taking during the course of the taking.

However, petit theft of the second degree does not contain an element that robbery by sudden snatching does not contain. Section 812.014(1) defines theft as follows:

(1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
(a) Deprive the other person of a right to the property or a benefit from the property.
(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

Absent exceptions inapplicable here, if the value of the stolen property is $100 or more, but less than $300, the offense is petit theft of the first degree which is a first-degree misdemeanor. § 812.014(2)(e). The theft of any property not specified in subsection (2) is petit theft of the second degree which is a second-degree misdemeanor. § 812.014(3)(a).

The State relies upon McKinney, in which our supreme court determined that convictions for grand theft and robbery with a firearm that arose out of the same criminal transaction did not violate double jeopardy principles. 66 So.3d at 857. In determining that each offense required proof of an element that the other did not, the court recognized that grand theft requires the State to prove the element of the value of the property taken. Id.; see also § 812.014(2)(c)(l) (providing that if the property stolen is valued at $300 or more, but less than $5000, then the theft is grand theft of the third degree).

In Estremera v. State, 89 So.3d 291, 292 (Fla. 5th DCA 2012), which involved a double jeopardy claim concerning robbery and petit theft, the Fifth District distinguished McKinney. In doing so, the Fifth District recognized that petit theft is a necessarily lesser-included offense of robbery. Id. A necessarily lesser-included offense by definition is subsumed by the primary offense. See Clark, 43 So.3d at 816. Petit theft of the second degree is a necessarily included, or category one, offense of robbery by sudden snatching. See Fla. Std. Jury Instr. (Crim.) 15.4. Thus, petit theft of the second degree has no elements that robbery by sudden snatching does not. Because the Block-burger test set forth in section 775.021(4)(a) is not met, the offenses cannot be treated as separate offenses and double jeopardy principles bar a subsequent prosecution for robbery by sudden snatching. See Johnson, 676 So.2d at 410; Duff, 942 So.2d at 928.

The State argues that, unlike Estrem-era, the present case is not distinguishable from McKinney. The State contends that it appears that Lafferty entered a no contest plea to petit theft in the first degree, an offense which requires proof that the property stolen is valued at $100 or more, but less than $300. See § 812.014(2)(e). The State concludes that the conviction was for petit theft in the first degree by looking to the plea hearing in the robbery by sudden snatching case where it was asserted that the value of the property taken was $245 and restitution in that amount was ordered. However, as noted above, in conducting the Blockburger test the courts must focus on the statutory elements and are not to consider the pleadings or the proof. Duff, 942 So.2d at 929.

Neither the complaint/arrest affidavit nor Lafferty’s judgment for petit theft indicated that he was charged with or convicted of a violation of section 812.014(2)(e) (petit theft in the first degree). The complaint only alleged a violation of section 812.014 in general and did not allege that the value of the property stolen was $100 or more. Based on that charge, Lafferty could only be convicted of a violation of section 812.014(3)(a) (petit theft in the second degree) which requires no value element. See Tillman v. State, 329 So.2d 370, 371 (Fla. 2d DCA 1976) (stating that when the value of property was not alleged in the information, the defendant could only be convicted of petit larceny even though the proof at trial showed grand larceny); Michutka v. State, 506 So.2d 1, 2 (Fla. 1st DCA 1986) (stating that it is fundamental error to convict a defendant of a crime with which he was not charged).

Thus, Lafferty has been convicted of petit theft in the second degree, an offense that contains no elements that are not already contained in the offense of robbery by sudden snatching. Therefore, according to section 775.021(4)(a), the offenses are not separate, and double jeopardy principles prohibit this subsequent prosecution for robbery by sudden snatching. Accordingly, the trial court should have granted Lafferty’s motion to dismiss, and we reverse his conviction and sentence for robbery by' sudden snatching.

Reversed.

ALTENBERND and SLEET, JJ., Concur.

      . A second complainVarrest affidavit was filed on July 4, 2011, alleging that Lafferty committed the offense of robbery by sudden snatching based on the same event that gave rise to the petit theft charge.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Carlos MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-6532.
    District Court of Appeal of Florida, Second District.
    June 14, 2013.
    Carlos Martinez, pro se.
   PER CURIAM.

Carlos Martinez appeals the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Martinez was found guilty of attempted second-degree murder with a firearm in count one and was sentenced to life in prison with a twenty-five-year minimum mandatory. Martinez asserts that his conviction for attempted second-degree murder with a firearm, which was reclassified as a first-degree felony under section 775.087(l)(b), Florida Statutes (2007), is subject to a sentence not to exceed thirty years under section 775.082(3). We agree and reverse and remand for resentencing.

The postconviction court incorrectly found that Martinez’s sentence was legal because he was convicted of second-degree murder, a first-degree felony, and that the offense was reclassified as a life felony pursuant to section 775.087(l)(a). The information, judgment, sentence, and jury verdict attached to the postconviction court’s order demonstrate that Martinez was charged with and found guilty of attempted second-degree murder with a firearm, a second-degree felony. §§ 782.04(2), 777.04(4)(c), Fla. Stat. (2007). The offense was reclassified as a first-degree felony under section 775.087(l)(b), because the jury found that Martinez actually possessed and discharged a firearm during the commission of the offense, inflicting great bodily harm upon the victim.

Because the jury found that Martinez’s discharge of a firearm inflicted great bodily harm, it was within the trial court’s discretion under section 775.087(2)(a)(3) to impose a minimum mandatory from twenty-five years to life. See Mendenhall v. State, 48 So.3d 740, 742 (Fla.2010). However, “ ‘once the trial court imposed the minimum mandatory sentence of twenty-five years, it could not exceed the thirty-year maximum penalty for a first[-]degree felony under section 775.082(3)(b).’” McLeod v. State, 52 So.3d 784, 786 (Fla. 5th DCA 2010) (quoting Wooden v. State, 42 So.3d 837, 837 (Fla. 5th DCA 2010)) (reversing the defendant’s life sentence with a twenty-five-year minimum mandatory for attempted second-degree murder with a firearm because the sentence improperly exceeded the statutory maximum under section 775.082(3)(b)). Because the court imposed a twenty-five-year minimum mandatory term, Martinez’s life sentence impermissibly exceeds the thirty-year statutory maximum under section 775.082(3)(b) and is therefore illegal. See Sheppard v. State, 113 So.3d 148 (Fla. 2d DCA 2013).

Accordingly, we reverse the order of the postconviction court and remand for resen-tencing.

Reversed and remanded.

CASANUEYA, LaROSE, and CRENSHAW, JJ., Concur.

      . Martinez was found guilty of three counts of attempted second-degree murder: counts one, two, and four. In counts two and four, the jury found that he possessed and discharged a firearm. He was sentenced on both counts to thirty years in prison with a twenty-year minimum mandatory term. Martinez challenges only the sentence imposed in count one.


author: SLEET, Judge.

text:
    D.B., Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1456.
    District Court of Appeal of Florida, Second District.
    June 14, 2013.
    Howard L. Dimmig, II, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellee.
   SLEET, Judge.

D.B., a juvenile, challenges his adjudications of delinquency for carrying a concealed firearm, possession of a firearm by a minor, possession of a firearm with an altered serial number, and four counts of robbery with a firearm. D.B. raises three arguments on appeal, but we find merit only in D.B.’s contention that the trial court erred in failing to amend D.B.’s disposition orders to specify the maximum penalties for the offenses and the amount of time served in secure detention prior to disposition. Thus, we affirm D.B.’s adjudications of delinquency, but we reverse for correction of his disposition orders.

D.B. was arrested for his participation in a series of robberies committed on taxi and pizza-delivery drivers. Following the adjudications of delinquency, the trial court committed D.B. to a high-risk residential facility until his nineteenth birthday on the felony charges of carrying a concealed firearm and robbery. As to the remaining misdemeanor charges, the trial court committed D.B. to the facility not to exceed one year. Thereafter, D.B. filed a motion under Florida Rule of Juvenile Procedure 8.135(b)(2) to correct his disposition order in case number 10-CJ-1750, contending that the trial court erroneously grouped the misdemeanor charges of possession of a firearm by a minor and possession of a firearm with an altered serial number with the third-degree felony of carrying a concealed firearm. D.B. also argued that the order should be amended to reflect the statutory maximum for the offenses, to specify the amount of time served in secure detention prior to disposition, and to state that D.B. was committed until his nineteenth birthday or the statutory maximum, whichever occurs first.

After holding a hearing on the motion, the trial court granted D.B.’s motion and amended all five disposition orders to reflect a commitment of five years on the felony charges and 365 days on the misdemeanor charges with five years of po-stcommitment probation on the felony charges and one year on the misdemeanor charges. D.B. then filed a second motion to correct his disposition orders, arguing that the amended orders had to be corrected to state that he was to be committed until his nineteenth birthday or the statutory maximum, whichever occurred first, and to specify the amount of time spent in secure detention and the maximum penalty for the offenses. D.B. also contended that the trial court erred in amending the orders to reflect a period of postcommitment probation. The trial court did not rule on the second motion.

We find that several of D.B.’s contentions are without merit. However, as the State concedes, the trial court erred in failing to correct D.B.’s disposition orders to specify the amount of time spent in secure detention prior to disposition and the maximum penalty for the offenses as required by Florida Rule of Juvenile Procedure 8.115(d)(2). See Fla. R. Juv. P. 8.115(d)(2) (prescribing that an order of disposition “state the disposition of each count, specifying the charge title, degree of offense, and maximum penalty defined by statute and specifying the amount of time served in secure detention before disposition”); see also G.V. v. State, 863 So.2d 1271 (Fla. 2d DCA 2004). Accordingly, we affirm D.B.’s adjudications of delinquency, but we reverse the amended disposition orders and remand for correction of the orders in accordance with this opinion.

Affirmed in part; reversed in part; and remanded with directions.

ALTENBERND and KELLY, JJ., Concur.

      . These seven charges were brought in five separate petitions for delinquency, lower court case numbers 10-CJ-1749, 10-CJ-1750, 10-CJ-1755, 10-CJ-1806, and 10-CJ-1817, but the charges were resolved in a single adjudicatory hearing.


text:
    Michael Amechee SIMMONS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5317.
    District Court of Appeal of Florida, First District.
    June 14, 2013.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412 (Fla.2012).

WOLF, MAKAR, and OSTERHAUS, JJ., concur.


text:
    Michael Amechee SIMMONS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5306.
    District Court of Appeal of Florida, First District.
    June 14, 2013.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412 (Fla.2012).

WOLF, MAKAR, and OSTERHAUS, JJ., concur.


text:
    Troy BISHOP, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1377.
    District Court of Appeal of Florida, First District.
    June 18, 2013.
    Nancy A. Daniels, Public Defender, Owen Chin, Assistant Public Defender, Kathleen Stover, Assistant Public Defender, and Glen P. Gifford, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We reverse and remand for the lower court to vacate appellant’s conviction for theft, and we affirm his conviction for dealing in stolen property. Blackmon v. State, 58 So.3d 343 (Fla. 1st DCA 2011), review granted, 67 So.3d 198 (Fla.2011). We affirm his remaining convictions without comment.

REVERSED IN PART, AFFIRMED IN PART, and REMANDED.

WOLF, PADOVANO, and LEWIS, JJ., concur.


author: MARSTILLER, J.

text:
    Roderick Delano JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2186.
    District Court of Appeal of Florida, First District.
    June 24, 2013.

      Nancy A. Daniels, Public Defender, and M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
   MARSTILLER, J.

Roderick Delano Jones (“Appellant”) appeals his conviction and sentence for drug trafficking, asserting the trial court reversibly erred by allowing the State to rebut his claim of entrapment with evidence of a prior criminal act that, like the charged offense, resulted from law enforcement inducement. He argues the State may only establish his predisposition to commit the charged offense with evidence of criminal conduct prior to the inducement. “Post-inducement” criminal conduct, he contends, is irrelevant to the issue of predisposition, and therefore inadmissible. We disagree, and affirm.

On July 18, 2011, Appellant entered a second-hand store — a fictitious business set up by several law enforcement agencies as part of an undercover operation— and sold 40 hydrocodone pills to undercover Escambia County Sheriffs Deputy Jason Gilmore. The State thereafter charged Appellant with, and tried him for, drug trafficking. At trial, the State introduced into evidence the video recording of the transaction. Appellant admitted to selling the drugs to Deputy Gilmore on July 18, 2011, but claimed entrapment because, during one conversation in June 2011, the deputy induced him by asking if he could “get possession of ... drugs.” Appellant also admitted he had three prior felony convictions involving the sale of drugs; the most recent conviction occurred in 1996. To rebut the entrapment claim, the State sought to introduce a video recording of Appellant selling hydroco-done pills to Deputy Gilmore in the second-hand store on July 15, 2011. The State argued the evidence was relevant to prove Appellant’s predisposition to commit the July 18, 2011, charged offense. The trial court admitted the July 15 video as rebuttal evidence.

Appellant argues that, to rebut an entrapment claim, the prosecution must prove the defendant was predisposed to commit the crime before being approached by government agents. Because Deputy Gilmore spoke to him in June 2011 about getting drugs, Appellant posits the July 15 drug transaction itself resulted from the deputy’s inducement. Therefore, the transaction is simply irrelevant to the issue of predisposition, and thus, cannot serve to rebut the charge of entrapment. Because the July 15 video was not relevant to any other material fact, he argues, it served only to show the jury that Appellant had engaged in another, uncharged, drug sale. The trial court therefore reversibly erred by admitting the video into evidence.

Florida’s entrapment statute provides:

(1) A law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting as an agent of a law enforcement officer perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he or she induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.
(2) A person prosecuted for a crime shall be acquitted if the person proves by a preponderance of the evidence that his or her criminal conduct occurred as a result of an entrapment. The issue of entrapment shall be tried by the trier of fact.

§ 777.201, Fla. Stat. (2011). The two theories of entrapment are “objective entrapment,” which concerns law enforcement conduct amounting to a denial of due process, and “subjective entrapment,” which focuses on whether the defendant was predisposed to commit the crime. See James v. State, 525 So.2d 426, 427 (Fla. 1st DCA 1987).

As to subjective entrapment, which is at issue in this case, “the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to being approached by Government agents.” Jacobson v. United States, 503 U.S. 540, 549, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992). “Predisposition ... focuses upon whether the defendant was an ‘unwary innocent’ or, instead, an ‘unwary criminal’ who readily availed himself of the opportunity to perpetrate the crime.” Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). The state may prove predisposition with evidence of “the defendant’s prior criminal activities, his reputation for such activities, reasonable suspicion of his involvement in such activity, or his ready acquiescence in the commission of the crime.” State v. Casper, 417 So.2d 263, 265 (Fla. 1st DCA 1982). “[EJvidence of prior unlawful acts, similar to the one with which the defendant is charged, is ordinarily admissible to rebut a defense of entrapment.” Id. “However, admission of evidence of predisposition is limited to the extent it demonstrates predisposition on the part of the accused both prior to and independent of the government acts.” Munoz v. State, 629 So.2d 90, 99 (Fla.1993).

Appellant presents no legal authority to support his contention that the State may only rely on “pre-inducement” criminal conduct to establish predisposition. On the other hand, the supreme court in Munoz indicated that post-inducement acts can be relevant to proving predisposition. Discussing methods the prosecution may employ to rebut an entrapment claim, the court stated, “care must be taken in establishing the predisposition of a defendant based on conduct that results from the inducement.” Munoz, 629 So.2d at 99 (emphasis added). Arguably dictum, this statement nonetheless refutes Appellant’s assertion that criminal acts undertaken after alleged inducement by law enforcement are categorically irrelevant to prove predisposition.

In addition, Kent v. State, 704 So.2d 121 (Fla. 1st DCA 1997), which the State cites, establishes that the relevance of collateral criminal activity is not based solely on when the activity occurred. To do so would “place[ ] too high a premium on the time of the collateral offense.” Id. at 123. Rather, a court is to consider the circumstances attendant to both the collateral criminal act and the charged offense. In Kent, we considered whether evidence of a subsequent cnme can be relevant to prove the defendant’s predisposition to commit the charged offense. Rejecting the defendant’s argument that only prior acts are admissible to show predisposition, we explained, “a subsequent offense could reveal a criminal intent formed earlier[,]” or, “[depending on the circumstances, a subsequent offense might also complete a pattern of criminal activity that refutes a claim of police inducement.” Id. 123-24.

Here, the circumstances show Appellant had three prior convictions for drug sale offenses. The July 15 and July 18 transactions between Appellant and Deputy Gilmore share similarity of acts and location, and were proximate in time. Only one incident of alleged inducement occurred — a conversation between Appellant and Deputy Gilmore — before Appellant presented to the second-hand store a month later on July 15 prepared to sell drugs. Appellant negotiated a price for the hydrocodone pills, and offered to obtain more for Deputy Gilmore. Three days later, Appellant returned with more pills to sell, as promised. We conclude these circumstances make the July 15 transaction relevant to proving whether Appellant was not an “unwary innocent” induced into criminal activity by an undercover officer, but an “unwary criminal” who availed himself of the opportunity Deputy Gilmore presented to make money by selling drugs. The trial court therefore did not err by admitting the July 15 video to rebut Appellant’s entrapment claim. Cf. State v. Ramos 632 So.2d 1078, 1079 (Fla. 3d DCA 1994) (upholding trial court ruling that defendant was not predisposed to commit drug transaction crime, where no prior criminal history or law enforcement intelligence evidenced narcotics activities by defendant, and confidential informant contacted defendant 15 or 16 times to persuade him to commit offense).

AFFIRMED.

VAN NORTWICK and RAY, JJ, concur.


author: WETHERELL, J.

text:
    J.D., Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D12-4655.
    District Court of Appeal of Florida, First District.
    June 24, 2013.

      Katherine Stone Agliano of Barbas, Nunez, Sander, Butler & Hovsepian, P.A., Tampa, for Appellant.
    Gregory D. Venz, Assistant General Counsel, Department of Children and Families, Tallahassee; and Deanne C. Fields, Assistant Region Counsel, Department of Children and Families, Tampa, for Appellee.
   WETHERELL, J.

J.D. appeals a final order of the Department of Children and Families (DCF) denying her request for an exemption from disqualification under section 435.07, Florida Statutes (2011). J.D. contends that DCF erred in rejecting the administrative law judge’s (ALJ’s) recommendation that she be granted an exemption because she met her burden to demonstrate rehabilitation. We conclude that, under the circumstances of this case, DCF did not abuse its discretion in denying the exemption request despite its erroneous rejection of the ALJ’s finding of rehabilitation. Accordingly, we affirm the final order.

In May 2011, DCF informed J.D. that she was not eligible to work in a position having direct contact with children or vulnerable adults served by programs administered by DCF because of two disqualifying offenses: a 1988 conviction for purchase of cocaine and a 1989 conviction for child abuse. J.D. requested an exemption from disqualification under section 435.07. DCF denied the exemption request based on its “concern regarding [J.D.J’s anger management history and lack of treatment” and the fact that “one incident included choking her 13 y/o son with a coat hanger.”

J.D. timely requested an administrative hearing. The request was referred to the Division of Administrative Hearings for the assignment of an ALJ to conduct the hearing. The transcript of the hearing was not filed below and is not part of the record on appeal.

After the hearing, the ALJ issued a recommended order containing findings of fact, conclusions of law, and a recommendation that DCF “enter a final order granting ... J.D.’s request for an exemption from disqualification.” The recommended order detailed J.D.’s criminal history, which in addition to the two disqualifying offenses, included four arrests between 1999 and 2001, but also found that “since 1999, [J.D.] has had no documented instances where she has displayed an inability to regulate her emotions or otherwise temper her expressions of anger.” Additionally, the “conclusions of law” section of the recommended order explained:

13. [DCF] ... denied [J.D.]’s request for exemption due to ‘concerns regarding [her] anger management history and lack of treatment [where] [o]ne incident included choking her 13 year old son with a coat hanger.’ While it is true that [J.D.] did choke her son, it is not accurate to say that she choked her son with a coat hanger. Equally important, however, for purposes of the instant proceeding, is the fact that this incident, though unfortunate, occurred more than 23 years ago.
14. On July 17, 1999, [J.D.] joined and became a member of Mt. Pleasant Baptist Church where to this day, she remains an active and devoted parishioner. The last episode where [J.D.] exhibited conduct demonstrating an inability on her part to manage her feelings of anger occurred on November 2, 1999. [J.D.] has obviously acquired and been able to utilize certain coping strategies that have allowed her to successfully manage any emotions of anger that she may have felt during the last 12 1/2 years. It matters not that [J.D.] may have primarily acquired her coping strategies through her relationship with Mt. Pleasant Baptist Church, as opposed to traditional psychotherapy, as suggested by [DCF], By proving the absence of anger management failures during the last 12 1/2 years, [J.D.] has established by clear and convincing evidence that she has overcome her previous inability to control her temper.
15. Not only has [J.D.] learned how to control the expression of her feelings of anger, but she has also implemented a commendable self-improvement plan that has yielded extremely positive results. [J.D.] has had stable employment for many years, she has successfully completed drug treatment and support-related activities, and she is currently working on a degree in human services at Hillsborough County Community College. [J.D.] is to be applauded for turning her life around.
16. In considering the instant record, it was arbitrary for [DCF] to conclude that [J.D.]’s request for exemption should be denied due to concerns about her anger management history and lack of documented treatment related thereto. [J.D.] has met her burden of clearly and convincingly demonstrating that she is rehabilitated and, accordingly, she should not be disqualified from employment in a Position of Special Trust.

In the final order, DCF accepted the findings of fact and conclusions of law in the recommended order, except for the last sentence of paragraph 14 and paragraph 16 in its entirety. The final order explained:

I do not disagree with the ALJ’s conclusion [J.D.] has made significant strides in her life over the past ten years. [J.D.] may well be an appropriate candidate for an exemption from an agency other than [DCF]. An exemption from [DCF] would permit [J.D.], without further scrutiny, to act in a custodial or familial role with children in a variety of settings. [J.D.], in fact, seeks an exemption from [DCF] in order to volunteer at a shelter home for mothers with young children. [J.D.] was convicted of criminal child abuse for an incident involving her own son in 1989, and was arrested more than ten years later following another domestic altercation. Although [J.D.] has not been arrested for violence since completing drug treatment and becoming active in her church in 2002, I cannot conclude she poses no danger to vulnerable children who may be placed in her care.

Based on this reasoning, the final order denied J.D.’s request for an exemption from disqualification. This timely appeal followed.

An agency’s decision to grant or deny an exemption is subject to the deferential abuse of discretion standard of review. See Heburn v. Dep’t of Children & Families, 772 So.2d 561, 563 (Fla. 1st DCA 2000). Under this standard, “[i]f reasonable men could differ as to the propriety of the action taken by the [lower tribunal], then the action is not unreasonable and there can be no finding of an abuse of discretion.” Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980); see also id. (“Discretion ... is abused when the ... action is arbitrary, fanciful, or unreasonable ....”) (quoting Delno v. Market Street Railway Co., 124 F.2d 965, 967 (9th Cir.1942)).

Individuals such as J.D. who are seeking to work in a position having direct contact with children or vulnerable adults served by programs administered by DCF are required to undergo a Level 2 background screening. See § 402.305, Fla. Stat. The purpose of the screening is to determine whether the individual has been arrested for or convicted of certain enumerated disqualifying offenses, including felony drug offenses and child abuse. See § 435.04(2)(hh), (rr), Fla. Stat.

An individual who has a disqualifying offense may request an exemption from disqualification from the head of the appropriate agency, which in this case is the Secretary of DCF. See § 435.07(1), Fla. Stat. The agency head is authorized to grant an exemption for certain disqualifying offenses, including felonies such as those committed by J.D. for which the sentence expired more than three years prior to the request for an exemption. See § 435.07(l)(a), Fla. Stat.

To be eligible for an exemption, the applicant has the burden to demonstrate that he or she should not be disqualified from employment by “setting forth clear and convincing evidence of rehabilitation.” § 435.07(3)(a), Fla. Stat. In determining whether the applicant has met this burden, the agency head is to consider matters such as:

the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the [applicant] since the incident, or any other evidence or circumstances indicating that the [applicant] will not present a danger if employment or continued employment is allowed.

Id. Additionally, the agency head may consider whether the applicant has been arrested for or convicted of another crime subsequent to the conviction for the disqualifying offense for which the exemption is being sought, even if the new crime is not a disqualifying offense. § 435.07(3)(b), Fla. Stat.

The ultimate issue of fact to be determined in a proceeding under section 435.07 is whether the applicant has demonstrated rehabilitation by clear and convincing evidence. But even if rehabilitation is shown, the applicant is only eligible for an exemption, not entitled to one. The agency head still has the discretion to deny the exemption notwithstanding the showing of rehabilitation, but he or she must articulate the rationale for doing so in order to facilitate judicial review. See Heburn, 772 So.2d at 563-64; Phillips v. Dep’t of Juvenile Justice, 736 So.2d 118, 119 (Fla. 4th DCA 1999) (“[Ejven if Phillips’ presentation constituted clear, convincing, and un-refuted evidence that he qualified for an exemption, the agency was not under any obligation to give him one.”).

The agency head’s preliminary decision may be “contested” pursuant to section 435.07(3)(c). This statute, as amended in 2010, provides:

The decision of the agency head regarding an exemption may be contested through the hearing procedures set forth in chapter 120. The standard of review by the administrative law judge is whether the agency’s intended action is an abuse of discretion.

The parties disagree as to the proper scope and focus of the proceeding contemplated by section 435.07(3)(c). J.D. argues that the role of the ALJ in such a proceeding is to determine whether the applicant demonstrated that he or she is rehabilitated and, based on that finding, to recommend whether the exemption should be granted or denied. DCF argues that based on the language in the second sentence of the statute, the role of the ALJ is to conduct a quasi-appellate review of the reasonableness of the agency’s intended action on the exemption request and not to determine whether the applicant is rehabilitated or to recommend whether the exemption should be granted or denied. We do not think either of these positions is entirely correct.

The first sentence of section 435.07(3)(c) suggests that the Legislature intended a “typical” chapter 120 proceeding in which the purpose is to “formulate final agency action, not to review action taken earlier and preliminarily.” McDonald v. Dep’t of Banking and Fin., 346 So.2d 569, 584 (Fla. 1st DCA 1977); see also Couch Const. Co. v. Dep't of Transp., 361 So.2d 172, 176 (Fla. 1st DCA 1978) (explaining that chapter 120 hearings “are designed to give affected parties an opportunity to change the agency’s mind”); § 120.57(l)(k), Fla. Stat. (“All proceedings conducted under this subsection shall be de novo.”). However, the reference in the second sentence to a “standard of review” suggests that the ALJ is to conduct a quasi-appellate review of the agency’s preliminary decision and not to create a new evidentiary record to be used in formulating final agency action or to recommend what the final agency action should be.

If the statute were construed to require the ALJ to conduct a quasi-appellate review of the agency’s preliminary decision based only on the facts available to the agency when it made its decision, then the provisions of the first sentence of the statute referring to “the hearing procedures set forth in chapter 120” would be rendered meaningless because those procedures contemplate the presentation and consideration of new evidence. See generally §§ 120.569, 120.57(1), Fla. Stat. By contrast, if, as J.D. appears to argue, the statute were construed to allow the ALJ to conduct a “typical” chapter 120 hearing to formulate final agency action in which the agency’s preliminary decision is given no deference, then the provisions of the second sentence referring to a review of the agency’s intended action based on an appellate standard of review would be rendered meaningless.

We are required to construe statutes in a way that gives meaning and effect to all of their provisions. See Bennett v. St. Vincent’s Med. Ctr., Inc., 71 So.3d 828, 838 (Fla.2011). Doing so here leads to the conclusion that although the ultimate legal issue to be determined by the ALJ in a proceeding under section 435.07(3)(c) is whether the agency head’s intended action was an “abuse of discretion,” the ALJ is to evaluate that question based on the facts determined from the evidence presented at a de novo chapter 120 hearing.

This is akin to the role of the ALJ in a bid protest proceeding under section 120.57(3) where the ALJ is charged with reviewing the agency’s proposed action against appellate-like “standard[s] of proof.” See § 120.57(3)(f), Fla. Stat. (requiring the ALJ to determine whether a proposed bid award is “clearly erroneous, contrary to competition, arbitrary, capricious” or, in the case of a rejection of all bids, whether the action was “illegal, arbitrary, dishonest, or fraudulent”). The hearing in a bid protest proceeding is “de novo,” id., but its purpose is to “evaluate the action taken by the agency.” State Contracting and Engineering Corporation v. Department of Transportation, 709 So.2d 607, 609 (Fla. 1st DCA 1998); see also Intercontinental Props., Inc. v. Dep’t of Health & Rehab. Servs., 606 So.2d 380, 386 (Fla. 3d DCA 1992) (explaining that, in the context of a bid protest, a de novo proceeding “simply means that there was an evidentiary hearing ... for administrative review purposes” and does not mean that the ALJ “sits as a substitute for the [agency] and makes a determination whether to award the bid de novo.”).

Thus, while we agree with DCF that the ALJ is to evaluate the reasonableness of the agency’s intended action on an exemption request and not to determine anew whether the exemption should be granted or denied, we do not read section 435.07(3)(c) to preclude the ALJ from determining whether the applicant demonstrated rehabilitation. Indeed, without being able to make that factual determination, the ALJ would not be in a position to reach the legal conclusion as to whether the proposed decision was an abuse of discretion because the legal conclusion depends in large part upon whether the applicant met his or her burden to show rehabilitation.

The agency is not bound by the ALJ’s legal conclusion as to whether the intended action was an abuse of discretion, but the agency’s review of that issue is circumscribed by the standards in section 120.57(1)(£). See B.J. v. Dep’t. of Children & Family Servs., 983 So.2d 11, 15 n. 1 (Fla. 1st DCA 2008). Thus, even if the ALJ determines (as a matter of fact) that the applicant met his or her burden to demonstrate rehabilitation and thus concludes (as a matter of law) that it would be an abuse of discretion for the agency to deny the exemption, the agency head retains the discretion to deny the exemption so long as the final order “states with particularity its reasons for rejecting or modifying such conclusion of law ... and make[s] a finding that its substituted conclusion of law ... is as or more reasonable than that which was rejected or modified.” § 120.57(1)(l), Fla. Stat.

Here, in the last sentence of paragraph 14 of the recommended order, the ALJ determined that J.D. had overcome her anger management issues, and in paragraph 16 the ALJ determined that J.D. met her burden to demonstrate that she is rehabilitated. These determinations were labeled as conclusions of law, but they are actually findings of fact. See B.J., 983 So.2d at 14 (reversing a final order denying an exemption where DCF improperly reweighed issues of fact, focusing on credibility, including the finding that the appellant had established rehabilitation); K.J.S. v. Dep’t of Children & Family Servs., 974 So.2d 1106, 1109 (Fla. 1st DCA 2007) (reversing a final order denying an exemption where DCF improperly rejected the ALJ’s findings of fact including the finding that the appellant presented clear and overwhelming evidence of rehabilitation); see also Gross v. Dep’t of Health, 819 So.2d 997, 1005 (Fla. 5th DCA 2002) (holding that the determination as to whether a party met its burden of proof is a factual question); Battaglia Props. v. Fla. Land & Water Adjudicatory Comm’n, 629 So.2d 161, 168 (Fla. 5th DCA 1993) (explaining that the label used by the hearing officer was not determinative and that if a conclusion of law is incorrectly labeled as a finding of fact “the label is disregarded and . the item is treated as though it were properly labeled”). Accordingly, DCF did not have the authority to reject these findings “unless [it] first determine[d] from a review of the entire record, and state[d] with particularity in the order, that the findings of fact were not based on competent substantial evidence.” § 120.57(1)(Z), Fla. Stat. Because DCF did not comply with this statutory requirement (nor could it because the transcript of the hearing was not filed below), DCF erred in rejecting the ALJ’s findings that J.D. has overcome her anger management issues and is rehabilitated.

DCF did not, however, err in rejecting the ALJ’s conclusion in paragraph 16 of the recommended order that it was “arbitrary” (and, thus, an abuse of discretion under the Canakaris standard) for DCF to deny J.D.’s exemption request. Indeed, as explained above, the agency was free to reject that conclusion as long as it explained its rationale for doing so in accordance with section 120.57(1)(().

In its final order, DCF explained with sufficient particularity its rationale for denying the exemption request when it noted that, despite making positive changes in her life, J.D. was not suited for work with vulnerable children in a custodial or familial role because she had been convicted of child abuse for an incident in which, as found by the ALJ, she choked her son. Based upon this rationale, we cannot say that DCF abused its discretion in denying J.D.’s request for an exemption from disqualification. See Heburn, 772 So.2d at 563-64 (affirming the denial of an exemption because the denial was not unreasonable or outside of the range of discretion delegated to DCF); Phillips, 736 So.2d at 119 (affirming the denial of an exemption, noting that the court “may not substitute its judgment for that of the agency on an issue of discretion”).

Accordingly, the final order is AFFIRMED.

PADOVANO and SWANSON, JJ., concur.

      . J.D. was arrested for aggravated assault with a weapon in November 1999, driving under the influence (DUI) in June 2000, possession of cocaine and drug equipment in September 2000, and petty larceny in May 2001. She pled guilty to the DUI charge and a fine was imposed; the other charges were "nolle pressed. ”

      . Section 435.07 was amended in 2010 as part of a comprehensive bill on background screening. See ch. 2010-114, Laws of Fla. The bill added the second sentence to paragraph (3)(c) and amended the first sentence of that paragraph to conform to the change made to subsection (1) requiring the "head of the appropriate agency” to grant exemptions from disqualification. Id. at § 41. The legislative staff analysis provides no insight as to the purpose or intent of the new second sentence, although the analysis does note that, under existing law, the agency’s preliminary decision on an exemption request "is contestable under the traditional administrative appeal process found in chapterl20, F.S.” See Fla. H.R. Comm, on Crim. & Civ. Just. Pol’y, HB 7069 (2010) Staff Analysis at 7 n. 14 (final March 10, 2010) (on file with comm.).

      . We note that ALJs have also adopted conflicting views of the statute. Compare H.W. v. Dep’t of Children & Families, 34 FALR 2963, 2973 (DOAH Dec. 30, 2011) ("The burden is on the aggrieved applicant ... to demonstrate to the [ALJ] that, given the information that the agency head had available at the time, the ‘intended action’ of denying the applicant’s exemption request [was an abuse of discretion].”) with S.E. v. Dep’t of Children & Families, 34 FALR 3381, 3387 (DOAH Feb. 12, 2012) (explaining that in a disqualification exemption proceeding, "neither party is restricted to the information that was earlier before the agency when making its preliminary decision” and that, although a new evi-dentiary record is developed, the "ALJ is then required ... not to make an independent finding as to the ultimate fact of whether rehabilitation has been proven, but rather to defer to the agency’s conclusion, unless no reasonable person could take the agency’s position in light of the determined facts”) and with P.J. v. Dep't of Children & Families, 34 FALR 2985, 2993 (DOAH Jan. 20, 2012) (explaining that the AU’s "task” in a disqualification exemption proceeding is to determine "(a) whether, based on clear and convincing evidence, [the applicant] has been rehabilitated and, if so, (b) whether [the agency head]'s intended action to deny [the applicant] an exemption from disqualification constitutes an abuse of discretion”).

      . DCF adopted this view in several final orders, see, e.g., P.J., 34 FALR at 2985-86, but in its answer brief, DCF appears to have abandoned this view in favor of the view expressed by the ALJ in S.E., supra.


text:
    Yves SAINTYL, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1666.
    District Court of Appeal of Florida, First District.
    June 24, 2013.
    Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm Appellant’s convictions and sentences but remand for the trial court to correct a scrivener’s error in the judgment. The judgment should reflect that the applicable subsection of the attempt statute is section 777.04(4)(c).

AFFIRMED and REMANDED.

WETHERELL, ROWE, and RAY, JJ., concur.


text:
    Dale J. JACKSON and Pamela F.A. Jackson, Appellants, v. THE PALMS OF PERDIDO, LLC, and First National Bank of Florida, Appellees.
    No. 1D12-1231.
    District Court of Appeal of Florida, First District.
    June 24, 2013.
    Michael C. Rayboun of Rayboun Mulligan, PLLC, Tallahassee, for Appellants.
    Charles F. Beall, Jr., and Yancey F. Langston of Moore, Hill & Westmoreland, P.A., Pensacola, for Appellee The Palms of Perdido, LLC.
    No appearance for Appellee First National Bank of Florida.
   PER CURIAM.

The appellants seek reversal of an order granting attorney fees to the appellee, The Palms of Perdido, LLC (“The Palms”), as the prevailing party in the underlying civil suit. The fee order was based on a final summary judgment in favor of The Palms, which this court recently reversed in part. See Jackson v. The Palms of Perdido, LLC, 107 So.3d 446 (Fla. 1st DCA 2013). Therefore, we reverse the order granting attorney fees to The Palms. See Marty v. Bainter, 727 So.2d 1124, 1125 (Fla. 1st DCA 1999) (“[A]n award of attorney’s fees and costs predicated on a reversed or vacated final judgment also must be reversed”). Reversal is without prejudice to The Palms’s right to file a future fee motion at the conclusion of the underlying litigation.

Reversed.

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


author: PER CURIAM. ROTHENBERG, J. LOGUE, J.,

text:
    FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, etc., Appellant, v. Evelyn LOPEZ-BRIGNONI, et al., Appellees.
    No. 3D10-2024.
    District Court of Appeal of Florida, Third District.
    June 26, 2013.
    Clarke Silverglate and Wesley R. Parsons, Miami, for appellant.
    Weiss Serota Helfman Pastoriza Cole & Boniske and Joseph Serota; Grossman Roth and Robert C. Gilbert; Lytal, Reiter and William S. Williams (West Palm Beach); Berman DeValerio and Michael J. Pucillo, Palm Beach Gardens, for appel-lees.
    Before SUAREZ, ROTHENBERG and LAGOA, JJ.
   ON MOTION FOR REHEARING OR CERTIFICATION

PER CURIAM.

The motion for rehearing or for certification is denied.

SUAREZ and LAGOA, JJ., concur.

ROTHENBERG, J.

I would grant for the reasons stated in my dissent to the majority opinion dated September 12, 2012.

ON MOTION FOR REHEARING EN BANC

Before WELLS, C.J., and SHEPHERD, SUAREZ, CORTIÑAS, ROTHENBERG, LAGOA, SALTER, EMAS, FERNANDEZ and LOGUE, JJ.

The motion for rehearing en banc is denied.

WELLS, C.J., and SHEPHERD, SUAREZ, CORTIÑAS, LAGOA, EMAS and FERNANDEZ, JJ., concur.

ON MOTION FOR REHEARING EN BANC

LOGUE, J.,

dissenting.

I believe this case warrants en banc review. Whether or not the majority’s opinion is correct, the decision will impact the 83,630 homeowners whose trees were destroyed and the budget of the State of Florida. Because “the outcome of the case (or its notoriety) is of greater moment or impact within the community” and “the case is important beyond the effect it will have on the litigants,” this matter presents a textbook example of a case of exceptional importance that should be considered en banc, even under the very exacting, but proper standard set forth by Judge Shepherd in University of Miami v. Wilson, 948 So.2d 774, 791 (Fla. 3d DCA 2006) (Shepherd, J., concurring); see also Fla. R.App. P. 9.331(d). A mistake now will hurt tens of thousands of homeowners and even more taxpayers. In such circumstances, we would be prudent to follow the old adage of carpenters “to measure twice and cut once.”

This conclusion is particularly true because, as Judge Rothenberg explains in her dissent, the method of valuing the trees proposed by the homeowners’ appraiser is deficient as a matter of law. While Judge Rothenberg demonstrated that the method of valuation was fatally flawed under the law governing damages for class actions, the method of valuation is equally flawed under the law governing damages in eminent domain.

At the outset, the analysis of the method of valuation in eminent domain must focus on the appraiser’s assignment. The homeowners’ appraiser had the task of calculating the value of each citrus tree owned by a member of the class and destroyed by the Department of Agriculture and Consumer Services as part of its Citrus Canker Eradication Program. To accomplish this assignment, the appraiser adopted a method of valuation that relied upon three characteristics of each tree to be valued: (1) height; (2) condition; and (3) location. The appraiser testified that he had information from the Department for each tree’s height and condition, but that he had no information regarding any tree’s location. Given the methodology chosen by the appraiser himself, the lack of information on location is the rub.

Because the appraiser lacked the required individual information of each tree’s location, he was forced to use a substitute. Instead of using the actual information regarding each tree’s location, the appraiser manufactured a generic factor of .75 to adjust for the value attributable to the tree’s location. Here, he deviated from accepted appraisal practices in a manner that caused his method of valuation to be fundamentally flawed in two ways.

I.

The first flaw is that the appraiser was unable to provide any discernible, fact-based chain of reasoning to explain how he derived the generic factor of .75 to adjust for location. When asked to explain how he determined the adjustment of .75 for location, the appraiser explained, “I just— again, an appraisal is a subjective art and I felt that was a reasonable discount.” He repeatedly referred to his use of adjustments as “subjective.”

In eminent domain, just like any other field of law, “no weight may be accorded an expert opinion which is totally concluso-ry in nature and is unsupported by any discernible, factually-based chain of underlying reasoning.” Div. of Admin., State Dep’t of Transp. v. Samter, 393 So.2d 1142, 1145 (Fla. 3d DCA 1981).

In the leading case in this area, Walters v. State Road Department, 239 So.2d 878 (Fla. 1st DCA 1970), the court overturned a jury verdict based upon an appraisal in which the appraiser could not explain how he determined the adjustments used in reaching his value. Noting that “there was no way [for the opposing party] to rebut a secret, purely subjective, formula that existed, if at all, only in the mind of a partisan appraiser,” the court held that a value based on such testimony “is necessarily in derogation of the constitutional guarantee of ‘full compensation.’” Id. at 882.

In case after the case, Florida courts have rejected valuations in eminent domain cases where the appraiser could not explain the basis for his or her adjustments. In Samter, for example, this Court overruled a jury verdict in an eminent domain case where an appraiser could not explain his 50% adjustment to a comparable sale such that “[i]t is clear that the 50% figure ... came only from the top of [the appraiser’s] head.” 393 So.2d at 1145; see also Ayers Estate v. Hernando Cnty., 706 So.2d 349, 350 (Fla. 5th DCA 1998) (striking an appraiser’s testimony because “[a]l-though he said that he ‘used market data, interviews with [persons] and other materials ... to come up with these adjustments,’ on cross-examination he would not or could not produce any of the market data or names of persons to support his statements.”) (second alteration in original).

Turning to this case, the testimony of the homeowners’ appraiser regarding the location adjustment clearly came from nowhere other than the top of the appraiser’s head, like the testimony rejected in Sam-ter. The testimony of the homeowners’ appraiser that his adjustments were “subjective” and that he “felt” a certain adjustment was reasonable is more subjective, conclusory, speculative, and conjectural than the appraisal testimony rejected in Walters. It is defective as a matter of law.

II.

There is a second, independent flaw in the method used by the homeowners’ appraiser. Even if the appraiser could explain how he arrived at his generic factor of .75, such a “one-size-fits-all” adjustment cannot reasonably be expected to arrive at the actual value of individual trees whose value will vary based upon their different locations according to the homeowners’ appraiser’s own methodology.

As mentioned above, to separately value each of the individual trees owned by the different plaintiffs and class members, the appraiser adopted a method that requires the following individual information for each tree: (1) height; (2) condition; and (3) location. For each tree, he was provided the height and condition, but not the location. Because he lacked the required individual information of each tree’s location, the appraiser manufactured a generic factor of .75 to adjust for the value attributable to the tree’s location. But the appraiser’s attempt to substitute actual location information specific to each tree by using a generic adjustment of .75 only guarantees an inaccurate result.

This fundamental flaw can be illustrated by a simple analogy. Imagine that a tailor plans to sew a pair of pants for each student in a graduating class using three measurements: (1) inseam; (2) outseam; and (3) waist size. For each student, he is given the inseam and outseam, but not the waist size. He makes the pants, nevertheless, by using a waist size of 26 as a generic measurement instead of the actual waist size of each student. When the pants are donned by the students, the results will, of course, be silly, if not downright comical. Many students will be unable to close the front of their pants; others will have their new pants fall around their ankles. It would be pure happenstance if any pair of pants actually fit any particular student. That is exactly the case here.

Using a generic, “one-size-fits-all” adjustment for location no more solves the problem of the missing information regarding the location of each tree than using a generic factor for waist size solves the problem of the missing waist sizes in the hypothetical. The results are bound to be not merely inaccurate, but ludicrous. Some trees will be overvalued; some trees undervalued; and no tree is likely to receive its actual fair market value.

This inherent flaw causes the proposed method of valuation to fall woefully short of the objective and verifiable methods required in eminent domain proceedings in this state to ensure that the injured party receives no more and no less than “full compensation.”

For these reasons, I respectfully dissent from the decision of the majority to deny rehearing en banc. I would rehear this matter, reverse the order certifying the class, and remand this matter to allow the class representatives to propose a valuation method that would provide full valuation for each tree lost by a homeowner.

ROTHENBERG and SALTER, JJ., concur.

      . "[W]e should consider en banc review only if: (1) the outcome of the case (or its notoriety) is of greater moment or impact within the community rather than its effect upon the law of the state, and either (a) the case is important beyond the effect it will have on the litigants or (b) will affect the ability of other potential litigants to seek their own remedies, or (2) the outcome of the case may reasonably and negatively influence the public’s perception of the judiciary's ability to render meaningful justice.” Wilson, 948 So.2d at 791.