author: PER CURIAM.

text:
    Kevin C. BERTRAM, Appellant, v. U.S. BANK N.A., as Trustee, Appellee.
    No. 2D13-3973.
    District Court of Appeal of Florida, Second District.
    July 9, 2014.
    Rehearing Denied Oct. 6, 2014.
    Kevin C. Bertram, pro se.
    Jeremy W. Harris, Masimba M. Mutam-ba and Khari E. Taustin of Morris, Laing, Evans, Brock & Kenney, Chtd., West Palm Beach, for Appellee.
   PER CURIAM.

Kevin C. Bertram appeals the final order discharging his notice of lis pendens and denying his motion for relief from the final judgment of foreclosure. Because we find no merit in Bertram’s arguments on appeal, we affirm.

However, to the extent that the order on appeal may bar Bertram from further filings in the circuit court, we reverse. The record does not reflect that the circuit court provided Bertram with notice or an opportunity to respond. See Owens v. Forte, 135 So.3d 445, 445 (Fla. 2d DCA 2014) (citing State v. Spencer, 751 So.2d 47, 48-49 (Fla.1999) (requiring that pro se litigants receive notice and opportunity to respond before restricting their access to courts); and Delgado v. Hearn, 805 So.2d 1017, 1018 (Fla. 2d DCA 2001) (applying Spencer to civil causes of action filed by pro se litigants)). Although we do not pass on whether Bertram’s filings rise to the level of an abuse of process, “due process requires that courts first provide notice and an opportunity to respond before imposing this extreme sanction.” Delgado, 805 So.2d at 1018. Accordingly, we reverse the portion of the order barring Bertram from further pro se filings in the circuit court.

Affirmed in part and reversed in part.

ALTENBERND, WALLACE, and SLEET, JJ., Concur.


source: Caselaw Access Project

author: KHOUZAM, Judge.

license: Public Domain

text:
    Nadine PETERSON and William Peterson, Appellants, v. Ronald E. LUNDIN, Appellee.
    No. 2D14-541.
    District Court of Appeal of Florida, Second District.
    July 18, 2014.
    Rehearing Denied Oct. 15, 2014.

      Paul Morris of Law Offices of Paul Morris, P.A., Miami; and Pedro A. Cofiño of Cofiño & Associates, Miami Beach, for Appellants.
    Raymond L. Bass, Jr., of Bass Law Office, Naples, for Appellee.
   KHOUZAM, Judge.

Ronald E. Lundin filed a complaint against Nadine and William Peterson, claiming in part that he was entitled to possession of a dog (Krystal the Bedling-ton Terrier) as well as her offspring and that the Petersons were in wrongful possession of them. The circuit court entered partial summary judgment in favor of Lun-din on his replevin claim and ordered the Petersons to give Lundin possession of Krystal. The Petersons filed this appeal, arguing that summary judgment was improper and that the court had no authority to order them to turn Krystal over to Lundin. We reverse and remand.

I. SUMMARY JUDGMENT

First, the Petersons argue that the court erred in granting partial summary judgment on Lundin’s replevin count because genuine issues of material fact remained. We agree. To be entitled to judgment as a matter of law, Lundin, as the movant, had the burden to show that no genuine issue of material fact remained. See Competelli v. City of Belleair Bluffs, 113 So.3d 92, 92-93 (Fla. 2d DCA 2013). Where “ ‘the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.’ ” Id. (quoting Snyder v. Cheezem Dev. Corp., 373 So.2d 719, 720 (Fla. 2d DCA 1979)). We review the circuit court’s order de novo. Id. at 92.

Here, the record reflects that Lundin moved for summary judgment on count one of his complaint, in which he sought to replevy Krystal. He made clear that he continued to dispute that there was any agreement for the Petersons to have possession of Krystal except by revocable license. However, he argued that, even by the terms of the agreement as stated by Nadine Peterson, the Petersons were required to surrender permanent possession of the dog to him. He included the following written but unsigned agreement:

April 27, 2008. This is a co-ownership contract between Nadine Peterson [hereafter referred to as “seller”] and Ron Lundin [hereafter referred to as “buyer”]. Buyer agrees to purchase blue Bedlington Terrier puppy bitch for $1,200.00 plus pick puppy from a litter to be produced after her championship is acquired or 3-4 years from birthday. AKC Registration Number is RN 02866804, welped [sic] January 7, 2008. Stud to be in agreement with seller and buyer.

Lundin asserted that Nadine Peterson had conceded in her deposition testimony that each of the conditions precedent in this agreement had been met and that when the conditions had been met Krystal would be returned to Lundin. Therefore, he claimed, there was no issue of material fact as to whether Krystal should be returned to him.

The Petersons’ response to Lun-din’s motion for summary judgment included an affidavit by Nadine Peterson in which she disputed his assertions. She stated that she had never entered into a revocable license with Lundin. Instead, they had agreed to be co-owners of the dog. A registration for the American Kennel Club was attached, on which both Lundin and Nadine Peterson are listed as “Owner.” Nadine Peterson also maintained that there was no agreement by which she was supposed to automatically surrender Krystal to Lundin, that Lundin never agreed to the written contract included in the motion for summary judgment, and that all of the conditions of their agreement had not been met because Lun-din had agreed to pay for all of the expenses of showing Krystal but had not done so. We conclude that the conflict between Lundin’s statements and Nadine Peterson’s statements create a genuine issue of material fact and precludes summary judgment.

The Petersons also point out that Lundin failed to refute or overcome their affirmative defenses and counterclaims related to his replevin claim, including their affirmative defenses of estoppel and waiver as well as counterclaims of rescission of the verbal agreement, breach of the verbal agreement, fraudulent inducement, and unjust enrichment. “‘It is well established that in order for a plaintiff to obtain a summary judgment when the defendant has asserted affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish their legal insufficiency.’” Pavolini v. Williams, 915 So.2d 251, 253 (Fla. 5th DCA 2005) (quoting The Race, Inc. v. Lake & River Recreational Props., Inc., 573 So.2d 409, 410 (Fla. 1st DCA 1991)). “As for the counterclaims, the trial court [is] required to consider them to determine if no genuine issue of material fact exists and if the moving party is entitled to a judgment as a matter of law.” Sanchez v. Soleil Builders, Inc., 98 So.3d 251, 254 (Fla. 5th DCA 2012) (citing Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000)). Lundin has not attempted to dispute the Petersons’ affirmative defenses or counterclaims.

Lundin maintains that summary judgment was proper because Nadine Peterson’s affidavit baldly repudiates or alters her prior testimony. Specifically, he points to her statement that she would “sign off on Krystal,” arguing that that statement flatly contradicts her affidavit. It is true that “a party when met by a Motion for Summary Judgment should not be permitted by his own affidavit, or by that of another, to baldly repudiate his previous deposition so as to create a jury issue, especially when no attempt is made to excuse or explain the discrepancy.” Ellison v. Anderson, 74 So.2d 680, 681 (Fla.1954); see also Home Loan Co. Inc. of Boston v. Sloane Co. of Sarasota, 240 So.2d 526, 526 (Fla. 2d DCA 1970) (“A party opposing a motion for summary judgment will not be permitted to alter the position of his previous pleadings, admissions, affidavits, depositions or testimony in order to defeat a summary judgment”). But at the same time, “[t]he principle that a party defending a motion for summary judgment is entitled to all reasonable inferences in his or her favor ‘includes giving to the previous deposition any reasonable meaning which will not conflict with the subsequently filed affidavit.’ ’ Ouellette v. Patel, 967 So.2d 1078, 1083 (Fla. 2d DCA 2007) (quoting Koflen v. Great Atl. & Pac. Tea Co., 177 So.2d 529, 531 (Fla. 3d DCA 1965)). Here, Nadine Peterson’s affidavit and her previous testimony can be reconciled. The full context of her statement that she would “sign off on Krystal” is as follows:

Q: ... You have not returned [Kjrys-tal to Mr. Lundin, have you?
A: At this point I will sign off on [Kjrystal.
Q: That wasn’t my question. My question is, you have not returned [Kjrystal to Mr. Lundin, have you?
A: No, because everything gets canceled and—
Q: I’m not understanding.
A: Okay. No, I have not.
Q: Okay. Is there a reason you have not done so?
A: Well, there needs to be a lot of things that we need to come to agreement with before she goes back to him.

So Nadine Peterson’s testimony was consistent with her statements in the affidavit that there were conflicts as to the terms of the agreement, that the conditions of the agreement had not been met, and that therefore Lundin was not entitled to Krystal.

Accordingly, the circuit court erred in granting summary judgment, and we reverse the circuit court’s order.

II. CHANGE OF POSSESSION

Our reversal of the partial summary judgment on Lundin’s replevin claim will result in Krystal’s return to the Peter-sons on remand; however, we observe that the trial court also erred by ordering the change of possession of Krystal because the Petersons posted a $20,000 bond. Section 78.067(2), Florida Statutes (2013), provides that where a court has held a show cause hearing and determined that the plaintiff is entitled to possession of the property pending final adjudication, it shall direct that a writ of replevin be issued. The section further provides, however, that “the order shall be stayed pending final adjudication of the claims of the parties if the defendant files with the court a written undertaking executed by a surety approved by the court in an amount equal to the value of the property.” Here, the circuit court directed, in the same order in which it granted summary judgment in favor of Lundin, that possession of Krystal be surrendered to Lundin within ten days. The Petersons moved for a stay pending appeal, which the circuit court denied. The trial court should have stayed the order and allowed the Petersons to retain possession of Krystal pending final adjudication because they posted bond pursuant to section 78.067(2). On remand, Krystal should be returned to the Petersons pending final adjudication.

Reversed and remanded with instructions.

BLACK, J., and BAUMANN, HERBERT J., Jr., Associate Judge, Concur.

      . Because the order on appeal only addresses Krystal and not her offspring, we do the same here.

      . The Petersons also argue that the motion for summary judgment should not have been granted because Lundin untimely disclosed summary judgment evidence and his motion failed to state grounds with particularity. As we are reversing on other grounds, it is unnecessary to address these additional arguments challenging the summary judgment order.


author: LaROSE, Judge.

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Keith GAPUTIS, Respondent.
    No. 2D13-4258.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2014.
    Rehearing Denied Oct. 14, 2014.
    Stephen D. Hurm, General Counsel and Damaris E. Reynolds, Assistant General Counsel, Department of Highway Safety & Motor Vehicles, Tallahassee, for Petitioner.
    Anne Morris of Isaak Law, PLLC, Tampa, for Respondent.
   LaROSE, Judge.

The Department of Highway Safety & Motor Vehicles seeks certiorari relief from the circuit court’s order granting Keith Gaputis’s writ of prohibition. We have jurisdiction. See Fla. R. App. P. 9.080(b)(2)(B). We deny the petition.

This case involves a driver’s license suspension. See § 322.2615(1), Fla. Stat. (2011). After a formal review hearing, see § 322.2615(6), the Department entered a final order upholding Mr. Gaputis’s license suspension. By certiorari petition to the circuit court, Mr. Gaputis challenged the Department’s final order. See §§ 322.2615(14), .31. He argued that he had been denied procedural due process in the Department’s administrative hearing process. The circuit court agreed, granted the petition, and quashed the Department’s final order.

The circuit court did not remand the matter to the Department. However, the Department attempted to proceed with another formal administrative review hearing. Mr. Gaputis then filed a petition for writ of prohibition in the circuit court because his suspension period had expired. The circuit court granted the petition. It found controlling McLaughlin v. Department of Highway Safety & Motor Vehicles, 128 So.3d 815, 815 (Fla. 2d DCA 2012) (noting that when the Department administratively suspends a driver’s license, and the suspension period expires while a matter is under review but the department seeks further formal administrative hearings, the circuit court should quash the administrative order, rather than quash and remand for further proceedings; “no further proceedings are necessary on remand because the issue of the validity of the suspension of [the] driver’s license is moot”).

The Department now claims, incorrectly, that the circuit court applied the wrong law. As we recently stated in Forth v. Department of Highway Safety & Motor Vehicles, 148 So.3d 781 (Fla. 2d DCA 2014), McLaughlin is the correct applicable law.

Petition denied.

ALTENBERND and KELLY, JJ., Concur.


text:
    Ahmad J. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3614.
    District Court of Appeal of Florida, First District.
    Sept. 4, 2014.
    Rehearing Denied Oct. 28, 2014.
    Ahmad J. Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assis- ■ tance of appellate counsel is denied on the merits.

PADOVANO, THOMAS, and ROBERTS, JJ., concur.


author: WETHERELL, J.

text:
    Allen S. KRAAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-602.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2014.
    Rehearing Denied Oct. 22, 2014.
    Nancy A. Daniels, Public Defender, and David Alan Henson, Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, and Samuel Steinberg, Assistant Attorney General, for Appellee.
   WETHERELL, J.

Allen Kraay raises one issue in this direct appeal of his judgment and sentence for possession of a firearm by a convicted felon: whether the trial court erred in denying his pre-trial motion to dismiss based on Weeks v. State, 2013 WL 6818869, 39 Fla. L. Weekly D35 (Fla. 1st DCA Dec. 26, 2013). We affirm.

Kraay was charged with possession of a firearm by a convicted felon in violation of section 790.23(1), Florida Statutes (2012). Prior to trial, Kraay filed a motion to dismiss the charge based upon Weeks. The trial court denied the motion, reasoning that it was not bound by Weeks because the decision was then pending on rehearing and thus was not yet final. The case thereafter proceeded to trial. The jury found Kraay guilty as charged and the trial court sentenced him to a mandatory minimum term of three years in prison.

The reasoning underlying the trial court’s ruling on the motion to dismiss was erroneous because Weeks was binding on the trial courts of this district from the date the opinion was issued. However, the trial court’s ruling was correct because, contrary to the argument in the motion to dismiss, Weeks did not hold section 790.23 facially unconstitutional; it merely declared the statute unconstitutional as applied to replicas of antique firearms, and here, Kraay stipulated that the firearm he was charged with possessing was not an antique and the evidence presented at trial showed that the firearm was a modern .22 caliber automatic rifle. Accordingly, Weeks does not apply to this case.

AFFIRMED.

VAN NORTWICK and MAKAR, JJ„ concur.

      . See Rock v. State, 800 So.2d 298, 300 (Fla. 3d DCA 2001) (rejecting argument that Florida Supreme Court decision was not controlling because it was not yet final due to a pending motion for rehearing and explaining that the non-final decision “controls until it is altered or overturned”); Philip Padovano, Florida Appellate Practice § 20.7, at 404 (2011-2012 ed.) (explaining that finality of an appellate opinion and its effective date are distinct concepts and "[t]he effective date of an appellate decision is the date appearing on the face of the decision, even though most decisions do not become final until after the time has expired for filing a motion for rehearing”); but cf. Henderson v. State, 698 So.2d 1205 (Fla.1997) (explaining that when the Florida Supreme Court explicitly states that a ruling is prospective only, the ruling does not take effect until the time for rehearing has run).

      . See Weeks v. State, 146 So.3d 81, 85 39 Fla. L. Weekly D1798, D1800 (Fla. 1st DCA Aug. 26, 2014) (revised opinion) ("In sum, we hold section 790.23 is unconstitutionally vague as to antique replica firearms because the phrases 'firearm' and 'antique firearm' defined in chapter 790, do not give adequate notice of what constitutes a permissible replica of an antique firearm which may be lawfully carried by a convicted felon_”); accord Sexton v. State, 146 So.3d 515, 39 Fla. L. Weekly D1712 (Fla. 2d DCA Aug. 13, 2014) ("Because the constitutional concern addressed in [the original opinion in] Weeks appears to arise only in cases involving firearms that arguably might be regarded as a replica of an antique firearm, the issue does not result in the facial unconstitutionality of section 790.23(1).”); Walker v. State, 137 So.3d 594 (Fla. 2d DCA 2014) ("As we read [the original opinion in] Weeks, the First District seemingly found the statute unconstitutional as applied — i.e., to antique or replica firearms.... ”).


author: OSTERHAUS, J.

text:
    WELLS CAPITAL INVESTMENTS, LLC, Appellant, v. EXIT 1 STOP REALTY, Appellee.
    No. 1D13-5232.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2014.
    Rehearing Denied Oct. 29, 2014.
    Roger K. Gannam of Lindell & Farson, Jacksonville, for Appellant.
    Gary B. Tullís, Jacksonville, for Appel-lee.
   OSTERHAUS, J.

Appellant Wells Capital Investments, LLC, appeals a judgment requiring it to pay a commission on the sale of its property to Appellee Exit 1 Stop Realty, a real estate broker. Appellant argues that no commission is due because Exit 1 Stop voluntarily abandoned the sales brokerage commission agreement that the parties entered in 2009, long before the negotiation and final sale of the property in 2012. We agree and reverse. Because Exit 1 Stop stopped marketing and communicating with the seller about the subject property three years before the negotiations leading to the sale, we conclude that it abandoned the commission agreement as a matter of law and may not recover an agreement-related commission.

I.

The pertinent facts in this case are not disputed. In 2009, Wells Capital, a commercial real estate developer in Jacksonville, owned two contiguous parcels of land in Orange Park that it wished to lease or sell. In the spring of 2009, General RV (GRV) contacted Exit 1 Stop, a real estate brokerage firm, looking for Jacksonville-area land for its RV business. Recognizing that one of the parcels offered by Wells Capital might suit GRV (“Parcel 1”), Exit 1 Stop entered into a sale and lease commission agreement with Wells Capital in May 2009. Under the agreement, it would receive a commission if Parcel 1 was sold or leased to GRV (Parcel 1 Agreement). The agreement contained no expiration date, but it permitted Wells Capital to continue marketing Parcel 1 to others. Another party ultimately signed a ten-year lease for Parcel 1, so Exit 1 Stop received no commission. At that point, Exit 1 Stop ceased marketing or communicating with Wells Capital about Parcel 1.

Instead, the parties shifted their focus to Wells Capital’s other property (“Parcel 2”). Wells Capital and Exit 1 Stop signed a second sale and lease commission agreement for Parcel 2 that mirrored their prior agreement. GRV ultimately leased Parcel 2 in late 2009 (and subsequently bought it), earning Exit 1 Stop a commission under the Parcel 2 agreement.

Years passed and the tenant leasing Parcel 1 from Wells Capital fell on hard times, requiring the lease on Parcel 1 to be terminated in March 2012. Wells Capital began to market Parcel 1 a second time and, as part of this effort, pitched a sale of the property directly to GRV without involving Exit 1 Stop. After months of negotiating they struck a deal and GRV bought the property in June 2012.

After the sale closed, Exit 1 Stop learned of the sale and sought a sales commission. Wells Capital refused and Exit 1 Stop sued. Later, the trial court held a non-jury trial on the issue of whether Wells Capital owed a sales commission on Parcel 1 under the 2009 agreement and Exit 1 Stop prevailed. The trial court noted that the Parcel 1 Agreement had no express termination date, but considered it still to be binding because Exit 1 Stop had brought the parties together initially and would have helped negotiate the final sale but for its exclusion by Wells Capital and GRV. The trial court ordered Wells Capital to pay a $60,000 commission to Exit 1 Stop on the Parcel 1 sale. Wells Capital then appealed.

II.

Because the material facts in this case aren’t disputed, the issue of whether Exit 1 Stop forfeited its right to a sales commission by abandoning the 2009 agreement is an issue of law, subject to de novo review. See Richland Grove & Cattle Co. v. Easterling, 526 So.2d 685, 686 (Fla.1988). In Richland Grove, the Florida Supreme Court held that the failure to specify a time period in a brokerage agreement “does not give rise to a ‘brokerage in perpetuity.’ ” Id. at 687 (citation and internal quotations omitted). Instead, when a real estate broker’s contract does not provide a time for performance, the law implies a “reasonable time limitation,” requiring a broker to procure a purchaser within a reasonable time. Id; see also Shuler v. Allen, 76 So.2d 879, 882 (Fla.1955). A brokerage agreement terminates if the broker abandons efforts to find a purchaser.

If the broker voluntarily abandons his efforts, once begun, to find a purchaser for property, or fails to find one within a reasonable time, all without the fault of the owner, then his contract of employment is at an end, and thereafter the owner is at liberty to sell the property to anyone.

Richland Grove, 526 So.2d at 687 (quoting Parkey v. Lawrence, 284 S.W. 288, 287 (Tex.Civ.App.1926)). A dispositive factor in evaluating whether a brokerage agreement has been abandoned is whether the broker and seller continued communicating about the property from the time of the agreement until the sale. Id.

In this case, the undisputed evidence shows that Exit 1 Stop abandoned the 2009 brokerage agreement involving Parcel 1. As noted by the trial court, Exit 1 Stop “ceased its efforts to market [Parcel 1] to GRV” after a third entity leased the property in 2009. At that time, the parties also switched their focus from Parcel 1 to Parcel 2, a different parcel than the one at issue here. The parties ultimately negotiated a lease (and a later sale) of that parcel to Exit 1 Stop’s client, GRV. But besides the flurry of activity in 2009, culminating in the lease of Parcel 2 by GRV, Exit 1 Stop had no further communication with Wells Capital about Parcel 1. Instead, all remained quiet as to Parcel 1 for about three years, at which time the parcel became available again and Wells Capital and GRV negotiated its sale directly with each other.

The three years of silence and total inactivity by Exit 1 Stop, where the parties’ brokerage agreement had not specified a time period for performance, constituted legal abandonment of the Parcel 1 brokerage agreement. A number of cases confirm this conclusion. See, e.g., id. at 686 (“We find that the question is one of law where, as in this case, the broker did not contact the seller concerning the specific property for a period of two and one-half years. That circumstance requires a finding that the contract was abandoned.”); Wilkins v. W.B. Tilton Real Estate and Ins., Inc., 257 So.2d 573, 575 (Fla. 4th DCA 1971) (finding abandonment where the broker had no contact with seller for nineteen months although broker continued to advertise property and to show property to prospective buyers); Shuler, 76 So.2d at 882 (finding seventeen-month gap constituted abandonment). And it makes no difference that Wells Capital ultimately sold the property to a buyer that was first introduced by Exit 1 Stop. Once a contract is abandoned, a seller is free to sell its property to anyone, “including the purchaser first found by the broker, either by means of negotiations directly with the purchaser or through the medium of another broker.” Richland Grove, 526 So.2d at 687 (quoting Parkey, 284 S.W. at 287); see also Shuler, 76 So.2d at 882.

We recognize that the trial court analyzed this case differently, awarding Exit 1 Stop a commission on the basis of the “procuring cause” analysis in Rotemi Realty, Inc. v. Act Realty Co., 911 So.2d 1181 (Fla.2005). The circumstances here are different than in Rotemi Realty. The commission dispute in Rotemi Realty arose in the context of deciding whether one broker remained entitled to a commission where another broker and attorney assumed the lead role in negotiating the sale of a property. Unlike this case, Ro-temi Realty did not address abandonment due to a substantial time gap in the communications between the broker and seller. Rather, the broker seeking the commission in Rotemi Realty remained involved in the continuing negotiations — she conveyed the first offer, reported back the rejection of that offer, regularly communicated with the prospective buyer, and “maintained ‘constant contact’ with [the attorney who took over the negotiations], speaking with him ‘practically every day.’ ” Id. at 1189. The key point for the court in Rotemi Realty was that the broker had both “initiated” and “remained involved in the continuing negotiations.” Id.

Here, by contrast, Exit 1 Stop initially introduced Wells Capital and GRV in 2009, but then stopped communicating with Wells Capital about Parcel 1 and ceased marketing efforts for a three-year period prior to the start of the negotiations leading to the sale of Parcel 1. No “continuing negotiations” occurred in this case. And during the three-year gap, Exit 1 Stop did nothing in the mode of laying groundwork related to GRVs future purchase of Parcel 1. Under these circumstances, we decline Exit 1 Stop’s invitation to depart from the long-settled legal test of abandonment.

III.

We thus conclude that Exit 1 Stop abandoned the 2009 Parcel 1 Agreement as a matter of law, and that Wells Capital was free to negotiate and sell the property directly to GRV without any obligation to pay a commission to Exit 1 Stop under that agreement. For this reason, the judgment is reversed and this case is remanded with instructions to enter judgment in favor of the Appellant.

REVERSED AND REMANDED.

THOMAS, and RAY, JJ., concur.


text:
    Eric Michael CRAPSER, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2929.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2014.
    Rehearing Denied Oct. 29, 2014.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Wesley Paxson, III, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm without discussion appellant’s conviction and sentence for battery and lewd or lascivious molestation following a jury trial. Although appellant asserts the order of probation erroneously indicates that he entered a plea of nolo contendere, this claim is moot because the trial court granted appellant’s motion to correct this sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). However, the state properly concedes the trial court erred in assessing several statutory fines and costs.

First, the imposition of the $2100 fine pursuant to section 775.083(1), Florida Statutes (2007), the associated surcharge of $105 pursuant to section 938.04, Florida Statutes (2007), and the $20 cost pursuant to section 938.06, Florida Statutes (2007), was erroneous because the trial court did not individually pronounce the discretionary $2100 fíne during sentencing. Giles v. State, 103 So.3d 1058 (Fla. 1st DCA 2013); Nix v. State, 84 So.3d 424 (Fla. 1st DCA 2012); Mallory v. State, 70 So.3d 738 (Fla. 1st DCA 2011). On remand, the trial court may reimpose the fíne, surcharge, and cost after providing proper notice and an opportunity to be heard. Giles, 103 So.3d at 1058; Nix, 84 So.3d at 426.

Next, the additional cost imposed pursuant to section 938.05, Florida Statutes (2007), must be reduced from $225 to $200. Clavelle v. State, 80 So.3d 456 (Fla. 1st DCA 2012); Swift v. State, 53 So.3d 394 (Fla. 2d DCA 2011). Similarly, the additional cost imposed pursuant to section 938.10(1), Florida Statutes (2007), must be reduced from $151 to $101.

Finally, the $100 mandatory cost of prosecution pursuant to section 938.27(8), Florida Statutes (2008), must be stricken because appellant’s offenses were committed before July 1, 2008, the effective date of the authorizing statute. Sims v. State, 110 So.3d 975, 976 (Fla. 1st DCA 2013); Massengale v. State, 69 So.3d 1095 (Fla. 1st DCA 2011).

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

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


author: THOMAS, J.

text:
    CITY OF JACKSONVILLE FIRE AND RESCUE DEPARTMENT and City of Jacksonville Risk Management, Appellant, v. Johnny BATTLE, Appellee.
    No. 1D14-1040.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2014.
    Michael Arington of Eraclides, Gelman, Hall, Indek, Goodman & Waters, Jacksonville, for Appellants.

      John J. Schickel of Coker, Schickel, Sor-enson & Posgay, P.A., Jacksonville, Bryan S. Gowdy and Jennifer Shoaf Richardson of Creed and Gowdy, P.A., Jacksonville, for Appellee.
   THOMAS, J.

In this workers’ compensation case, the City of Jacksonville (the City) appeals an order from the Judge of Compensation Claims (JCC) finding compensable Appel-lee/Claimant’s hypertension and coronary artery disease (CAD), and awarding authorization of Dr. Castello to treat these conditions. We affirm.

The City argues that the JCC should not have found Claimant was entitled to rely on section 112.18, Florida Statutes (2012), which reads:

(1)(a) Any condition or impairment of health of any Florida state, municipal, county, port authority, special tax district, or fire control district firefighter or any law enforcement officer or correctional officer as defined in s.943.10(l),
(2), or (3) caused by tuberculosis, heart disease, or hypertension resulting in total or partial disability or death shall be presumed to have been accidental and to have been suffered in the line of duty unless the contrary be shown by competent evidence. However, any such firefighter or law enforcement officer must have successfully passed a physical examination upon entering into any such service as a firefighter or law enforcement officer, which examination failed to reveal any evidence of any such condition. ...

Section 112.18 creates a presumption of occupational causation for “any condition or impairment of health” for a claimant who meets the statutory prerequisites.

The parties here stipulated to all prerequisites except disability; Claimant is a firefighter, Claimant has hypertension and heart disease, and Claimant successfully passed a physical examination which failed to reveal any evidence of hypertension or heart disease.

To prove disability, Claimant presented medical evidence regarding his cardiac catheterization, which occurred on December 11, 2012. The record shows that due to an abnormal stress test, Claimant was medically required to undergo catheterization to treat and diagnose Claimant’s CAD. The procedure ended up being solely diagnostic (no stent was placed, although it could have been if determined necessary during the procedure). This catheterization, which Claimant was required to undergo as a result of the CAD and hypertension, confirmed that Claimant indeed has CAD, but did not result in any abnormal complications. Claimant was taken off work by a doctor for three days following the catheterization in order to recover from the procedure; had he not undergone the procedure, his hypertension and CAD would not have prevented him from working at that time.

The JCC found, and medical evidence (including doctor testimony) supports the findings, that the catheterization “was directly related to [Claimant’s] CAD and hypertension,” and that Claimant could not work during the procedure or for several days afterward in order to heal from the catheterization. To the extent the City challenges any inferences the JCC drew to make these findings, we see no error.

The City also challenges, however, the JCC’s ruling that the time during which Claimant could not work (during and after the catheterization) constitutes disability for the purposes of section 112.18. The JCC analogized this case to Rocha v. City of Tampa, 100 So.3d 138 (Fla. 1st DCA 2012), wherein Mr. Rocha’s abnormal stress test resulted in his doctor-imposed work restrictions until he could undergo a cardiac assessment, associated with his hypertension. This court held Mr. Rocha had proven disability because his work restrictions were “legitimately imposed as medically necessary ‘because of the injury,’ ” and “created actual incapacity by interfering with his ability ‘to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.’ ” 100 So.3d at 141-42.

The City argues that the analogy to Rocha was error as a matter of law, and that the analogous case is instead Bivens v. City of Lakeland, 993 So.2d 1100, 1103 (Fla. 1st DCA 2008), wherein Mr. Bivens had not produced any evidence that his heart disease affected his ability to perform his job duties. In Bivens, this court concluded that there was no disability— and thus no entitlement to the section 112.18 presumption — despite “that [Mr. Bivens] missed one day of work due to a doctor’s appointment, he later missed six days after a heart catheterization, and on a third occasion missed several hours for a stress test.” 993 So.2d at 1103.

We distinguish Bivens from the instant case, because in Bivens “no work restrictions were ever placed on Claimant when he was being evaluated or diagnosed with [heart disease.]” Id, In contrast, in the instant case there is medical evidence that Claimant was restricted from working because of the catheterization, and that the catheterization was because of his hypertension and CAD, which is analogous to the facts in Rocha.

The JCC’s finding in this case comports with the plain language of section 112.18, which is evidence of legislative intent to include recovery from invasive treatment and testing such as this: specifically, the statute’s first words broadly describe “[a]ny condition or impairment of health ... caused by” heart disease or hypertension (or tuberculosis) and “resulting in total or partial disability or death.” § 112.18(l)(a), Fla. Stat. (emphasis added). Here, because the “impairment of health” created by the catheterization in Claimant’s case was both caused or brought about by a listed disease (two, in fact) and resulted in work restrictions, it — as well as the listed disease — “shall be presumed to have been accidental and to have been suffered in the line of duty.” Thus, we affirm.

AFFIRMED.

PADOVANO and CLARK, JJ., concur.

      . Catheterizations are conducted under sedation, involve gaining access through either the femoral artery or the right radial artery, and result in medical orders to avoid soaking the wound or heavy lifting for several days after the procedure.


text:
    Robert L. COLLIER, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-0926.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2014.
    Rehearing Denied Oct. 21, 2014.
    William Mallory Kent, Jacksonville, for Appellant.

      Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Robert Collier appeals an order denying his postconviction motion to correct an illegal sentence. See Fla. R. Crim. P. 3.800(a). In 2009, Collier was convicted of armed robbery and sentenced to life imprisonment. In his postconviction motion, he alleged his life sentence is illegal because the trial court improperly took into account his lack of remorse and candor when imposing the sentence. See Green v. State, 84 So.3d 1169, 1171 (Fla. 3d DCA 2013) (“[A] lack of remorse, the failure to accept responsibility, or the exercise of one’s right to remain silent at sentencing may not be considered by the trial court in fashioning the appropriate sentence.”). However, such a claim asserts error in the sentencing process, as opposed to the legality of the sentence itself, and thus, cannot be raised in a rule 3.800(a) motion. See Guilford v. State, 88 So.3d 998, 999 (Fla. 2d DCA 2012) (holding claim that trial court erroneously took into account defendant’s failure to admit guilt and accept responsibility not cognizable in rule 3.800(a) motion). Accordingly, Collier’s motion was properly denied.

AFFIRMED.

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


author: WETHERELL, J. MAKAR, J.,

text:
    FRATERNAL ORDER OF POLICE, GATOR LODGE 67, Appellant, v. CITY OF GAINESVILLE, Florida, Appellee.
    No. 1D13-4068.
    District Court of Appeal of Florida, First District.
    Sept. 23, 2014.
    Rehearing Denied Oct. 22, 2014.

      Paul A. Donnelly and Christopher B. Deem of Donnelly & Gross, P.A., Gaines-ville, for Appellant.
    Stephanie M. Marchman, Senior Assistant City Attorney, Gainesville, for Appel-lee.
   WETHERELL, J.

This appeal presents two issues of first impression concerning the availability of compliance review hearings under section 112.534, Florida Statutes, to review alleged intentional violations of the rights afforded to law enforcement officers and correctional officers by part VI of chapter 112, Florida Statutes, which is commonly referred to as the Law Enforcement Officers’ (LEO) Bill of Rights. The issues are (1) whether an officer under investigation by his or her agency for a disciplinary matter is entitled to a compliance review hearing to review alleged violations of the LEO Bill of Rights occurring after the investigation is complete, and (2) whether a compliance review hearing is available when the investigation is based upon a complaint against the officer from a person within the officer’s agency. For the reasons that follow, we hold that a compliance review hearing is available to review alleged intentional violations of the LEO Bill of Rights arising during an investigation irrespective of the source of the complaint that led to the investigation, but that a compliance review hearing is not available to review violations occurring after the investigation is complete.

I. Factual and Procedural Background

This case arose out of the Gainesville Police Department’s investigation of two of its officers, Officer A and Officer B. Both of the officers are members of the appellant, Fraternal Order of Police, Gator Lodge 67 (“the Union”).

A. Officer A

Officer A was the subject of a complaint filed by a public citizen. The internal affairs unit of the police department investigated the complaint and interviewed Officer A. It is undisputed that Officer A was afforded all of his rights under the LEO Bill of Rights during his interview and the investigation.

After completing the investigation, the investigator sent his report and the proposed disciplinary action forms to an employee in the City of Gainesville’s human resources (HR) department to review for compliance with City policy. The HR department employee suggested several wording changes and additions to the forms, but she did not suggest any changes to the investigative report or the proposed disciplinary action.

The police department thereafter notified Officer A of the proposed disciplinary action: a 80-hour suspension, along with “written instruction and cautioning.” After requesting and receiving a copy of the investigative file, Officer A made a public records request for and received his personnel file, whereupon he first learned of the HR department employee’s review of the investigative report and disciplinary action forms.

The following day, Officer A submitted a written “Notice of Intentional Violation and Demand for Compliance Review Hearing Pursuant to Florida Statute 112.534” to the police chief. The notice alleged that, in violation of sections 112.582 and 112.533, Officer A was not provided a complete copy of the investigative file and that non-law enforcement personnel (namely the HR department employee) participated in the internal affairs investigation. The police chief denied the request for a compliance review hearing based upon Officer A’s failure to comply with the procedural requirements in section 112.534.

Officer A was subsequently afforded a so-called “Bill of Rights Conference” pursuant to section 112.532(4)(b) at which he was given an opportunity to address the findings in the investigative report. Thereafter, the police department imposed the proposed disciplinary action. Officer A unsuccessfully appealed the disciplinary action through the grievance process in the collective bargaining agreement between the City and the Union.

B. Officer B

Officer B was the subject of a complaint filed by a non-law enforcement employee of the police department. The internal affairs unit of the police department investigated the complaint and interviewed Officer B. It is undisputed that Officer B was afforded all of his rights under the LEO Bill of Rights during the interview.

Upon conclusion of the investigation, the investigator prepared a report recommending disciplinary action against Officer B. The police department thereafter gave Officer B notice of the proposed disciplinary action: a 40-hour suspension and 8 hours of diversity training.

After Officer B was afforded a Bill of Rights Conference to discuss the findings in the investigative report, the police chief directed the internal affairs unit to ask the complainant to submit to a polygraph examination. The complainant did so, and the police department thereafter notified Officer B of its intent to impose the same disciplinary action contained in the prior notice. The notice also advised Officer B of his right to another Bill of Rights Conference.

On the morning of the second Bill of Rights Conference, Officer B submitted a “notice to come into compliance” to the investigator. The notice alleged the investigation had exceeded the 180-day period provided in section 112.532(6)(a) and that the police department violated Officer B’s rights under the LEO Bill of Rights by not providing him with the results of the polygraph examination.

Officer B was provided a copy of the polygraph examination results that same day. Nevertheless, later in the day, Officer B submitted a “notice of intentional violation [and] demand for a cure” to the police chief. This notice referred to the notice provided to the investigator earlier that morning and asserted that the internal affairs unit indicated its intent to continue the alleged violations.

Several days later, Officer B submitted a written “Notice of Intentional Violation and Demand for Compliance Review Hearing Pursuant to Florida Statute 112.584” to the police chief. The notice alleged that, in violation of sections 112.582 and 112.533, Officer B was not provided a complete copy of the investigative file (namely, the polygraph examination results) and that the investigation exceeded 180 days. The police chief denied the request for a compliance review hearing based, in part, on the fact that Officer B did not request a hearing until after the investigation was completed and the notice of disciplinary action was issued.

The police department thereafter imposed the proposed disciplinary action against Officer B. The disciplinary action was subsequently overturned through the grievance process in the collective bargaining agreement, and Officer B received back pay for the period that he was suspended.

C. Trial Court Proceedings

The Union filed a complaint for declaratory relief in the circuit court seeking a declaration concerning the police department’s obligation to convene compliance review hearings for Officers A and B and other similarly situated officers. The trial court held an evidentiary hearing on the complaint and thereafter entered a final judgment determining that neither officer (nor “those similarly situated”) was entitled to a compliance review hearing.

As to Officer A, the trial court reasoned the declaratory judgment action was moot because the only remedy provided in section 112.534 is the “immediate removal of the investigator from involvement in the investigation” and the investigation of Officer A had been completed and he had already served the resulting disciplinary action. As to Officer B, the trial court reasoned that the remedy provided in section 112.534 is not available because the investigation of Officer B resulted from an internal complaint and, based upon McQuade v. Department of Corrections, 51 So.3d 489 (Fla. 1st DCA 2010), “[t]he LEO Bill of Rights is not applicable to complaints that arise internally to a law enforcement agency.”

This appeal followed.

II. Analysis

The issues raised in this appeal involve the proper interpretation of the LEO Bill of Rights, and particularly, section 112.534. We review these issues de novo because the interpretation of a statute is a pure question of law. See Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 367 (Fla.2013). Moreover, in determining whether to affirm or reverse the order on appeal, we focus on the result reached by the trial court, not its reasoning. See Dade Cnty. Sch. Bd. v. Radio Station WQBA 731 So.2d 638, 644-45 (Fla.1999).

The LEO Bill of Rights affords law enforcement officers and correctional officers various rights when the officer is subject to an investigation by his or her agency that could result in disciplinary action. See § 112.532, Fla. Stat. The rights include the right to be informed of the nature of the investigation and the evidence against the officer before any interrogation; the right to counsel during any interrogation; the right to be notified of the reasons for any disciplinary action before it is imposed; the right to a transcript of any interrogation; the right to a complete copy of the investigatory file; and the right to address the findings in the investigatory report with the agency before the disciplinary action is imposed. See §§ 112.532(l)(d), (l)(g), (l)(i), (4)(a), (4)(b), Fla. Stat. Additionally, the LEO Bill of Rights prescribes the conditions under which any interrogation of the officer must be conducted, including limitations on the time, place, manner, and length of the interrogation, and restrictions on the interrogation techniques. See §§ 112.532(l)(a), (l)(b), (l)(c), (l)(e), (l)ffl, Fla. Stat.

Prior to 2009, a law enforcement officer or correctional officer who was injured by his or her employing agency’s failure to comply with the LEO Bill of Rights could petition the circuit court for an injunction to “restrain and enjoin such violation” and to “compel the performance of the duties imposed by [the LEO Bill of Rights].” § 112.534(1), Fla. Stat. (2008). Effective July 1, 2009, this broad judicial remedy was replaced with a multi-step process culminating in a “compliance review hearing” before an administrative panel with the authority to award only limited relief: removal of the investigator from further involvement with the investigation of the officer. See Ch. 2009-200, § 3, Laws of Fla. (amending section 112.534).

A. Availability of a Compliance Review Hearing After the Investigation is Complete

The first issue in this appeal is whether compliance review hearings are available to review alleged intentional violations of the LEO Bill of Rights occurring after the investigation is complete and the agency notifies the officer of the proposed disciplinary action. Our analysis of this issue begins, and ends, with the plain language of section 112.534, which provides in pertinent part:

(1) If any law enforcement agency or correctional agency, including investigators in its internal affairs or professional standards division, or an assigned investigating supervisor, intentionally fails to comply with the requirements of this part, the following procedures apply....
(a) The law enforcement officer or correctional officer shall advise the investigator of the intentional violation of the requirements of this part which is alleged to have occurred. The officer’s notice of violation is sufficient to notify the investigator of the requirements of this part which are alleged to have been violated and the factual basis of each violation.
(b) If the investigator fails to cure the violation or continues the violation after being notified by the law enforcement officer or correctional officer, the officer shall request the agency head or his or her designee be informed of the alleged intentional violation. Once this request is made, the interview of the officer shall cease, and the officer’s refusal to respond to further investigative questions does not constitute insubordination or any similar type of policy violation.
(c) Thereafter, within 3 working days, a written notice of violation and request for a compliance review hearing shall be filed with the agency head or designee which must contain sufficient information to identify the requirements of this part which are alleged to have been violated and the factual basis of each violation. All evidence related to the investigation must be preserved for review and presentation at the compliance review hearing. For purposes of confidentiality, the compliance review panel hearing shall be considered part of the original investigation.
(d) Unless otherwise remedied by the agency before the hearing, a compliance review hearing must be conducted within 10 working days after the request for a compliance review hearing is filed, unless, by mutual agreement of the officer and agency or for extraordinary reasons, an alternate date is chosen. The panel shall review the circumstances and facts surrounding the alleged intentional violation.The compliance review hearing shall be conducted in the county in which the officer works.
(e) It is the responsibility of the compliance review panel to determine whether or not the investigator or agency intentionally violated the requirements provided under this part. It may hear evidence, review relevant documents, and hear argument before making such a determination; however, all evidence received shall be strictly limited to the allegation under consideration and may not be related to the disciplinary charges pending against the officer. The investigative materials are considered confidential for purposes of the compliance review hearing and determination.
(f) The officer bears the burden of proof to establish that the violation of this part was intentional. The standard of proof for such a determination is by a preponderance of the evidence. The determination of the panel must be made at the conclusion of the hearing, in writing, and filed with the agency head and the officer.
(g) If the alleged violation is sustained as intentional by the compliance review panel, the agency head shall immediately remove the investigator from any further involvement with the investigation of the officer. Additionally, the agency head shall direct an investigation be initiated against the investigator determined to have intentionally violated the requirements provided under this part for purposes of agency disciplinary action. If that investigation is sustained, the sustained allegations against the investigator shall be forwarded to the Criminal Justice Standards and Training Commission for review as an act of official misconduct or misuse of position.

§ 112.534(1), Fla. Stat.

This statutory language is clear, and the procedure provided in the statute is straightforward. First, under paragraph (a), the officer under investigation must advise the investigator of the alleged intentional violation of the LEO Bill of Rights. Then, if the investigator fails to cure the violation or continues the violation, under paragraph (b), the officer must inform the agency head of the alleged violation and the investigator must stop the interview of the officer. Next, under paragraph (c), the officer has three days to file a written notice of violation and request for a compliance review hearing. Finally, under paragraph (d), a compliance review hearing must be held within 10 working days unless the violation is remedied or the officer and the agency mutually agree to a later hearing.

Paragraph (e) establishes the purpose of the hearing: “to determine whether or not the investigator or agency intentionally violated the requirements provided under [the LEO Bill of Rights].” The Union contends that this paragraph undercuts the trial court’s ruling because it clearly contemplates review of alleged violations by the investigator or the agency. The problem with the Union’s argument is that it ignores the limited remedy provided in paragraph (g) — removal of the investigator from any further involvement with the investigation of the officer — and it would render meaningless much of the remainder of the statute, at least with respect to alleged violations by the agency occurring after the investigation is complete.

For example, once the investigation is complete, it would make no sense to require the investigator to be notified and be given an opportunity to cure the violation. But that is what paragraph (a) requires. Likewise, the provisions of paragraph (b) — requiring the interview to cease and providing that the failure to respond to further investigative questions is not grounds for discipline — would serve no purpose if the procedure in section 112.534 was construed to apply to alleged violations occurring after the investigation is complete.

We are obligated to give meaning to all parts of a statute and, in doing so, we simply cannot accept the Union’s argument that a compliance review hearing is available to review alleged violations of the LEO Bill of Rights occurring after the investigation is complete. We recognize that, by construing section 112.534 to apply only to alleged violations occurring during the course of the investigation, the scope of the remedy for violations of the LEO Bill of Rights is considerably more limited than it was prior to 2009. This, however, is a function of the 2009 amendments to section 112.534, which replaced a broad judicial remedy with a narrow administrative remedy. The solution to this problem — to the extent there is one — lies with the Legislature, not the courts.

Here, the trial court correctly concluded that Officer A was not entitled to a compliance review hearing. By the time Officer A requested such a hearing, the investigation of the complaint against him was complete, and the police department had notified him of the proposed disciplinary action. At that point, a compliance review hearing would have been a meaningless exercise because it would not have provided any remedy for the violations alleged by Officer A.

In reaching this conclusion, we have not overlooked Migliore v. City of Lauderhill, 415 So.2d 62 (Fla. 4th DCA 1982), approved 431 So.2d 986 (Fla.1983), which can be read to support the proposition that the remedy in the prior version of section 112.534 was not limited to alleged violations of the LEO Bill of Rights occurring during the investigation. Specifically, the court observed that:

This section [section 112.534, Florida Statutes (1981) ] operates only to immediately restrain violation of the rights of police officers by compelling performance of the duties imposed by Sections 112.531 to 112.533. Thus, where an officer under investigation is being interrogated without benefit of counsel, the agency may be restrained from violating his right to counsel; if an officer is dismissed without notice, the agency can be compelled to provide the proper notice; and, if an officer is refused review by the complaint review board, under appropriate circumstances, the agency can be compelled to grant such review.

Id. at 65. However, at the time of Migl-iore (and, until 2009), the remedy provided in section 112.534 was considerably broader that it is now. Compare § 112.534, Fla. Stat. (1981, 2008) (providing for an injunction “to restrain and enjoin” violations of the LEO Bill of Rights and “to compel performance of the duties imposed by [the LEO Bill of Rights]”) with § 112.534(l)(g), Fla. Stat. (2009) (explaining that if the alleged violation is sustained by the compliance review panel, the agency “shall immediately remove the investigator from any further involvement with the investigation of the officer” and “direct an investigation be initiated against the investigator”).

We have also not overlooked the Union’s argument that, even after the investigation is complete, the officer should be afforded a compliance review hearing to “clear his name.” We are not persuaded, however, that the Legislature intended the compliance review hearing to be a name-clearing hearing (as appears to be the case with the complaint review boards under section 112.582(2)); rather, as explained above, it is clear from an in toto reading of section 112.584 that the exclusive purpose of the compliance review hearing is to remedy violations of the LEO Bill of Rights occurring during the investigation by removing the investigator from further involvement in the case.

Finally, we have not overlooked the dissent’s argument that section 112.534(l)(g) indicates that the compliance review hearing is intended to serve a dual remedial purpose and that our interpretation of the statute does not give effect to the legislative intent that investigative misconduct be dealt with appropriately, even if first discovered after the investigation is complete. This argument is not without support in the statutory language providing for the investigation of the investigator; however, in our view, such an investigation is merely ancillary to the purpose of the compliance review hearing because, unlike the removal of the investigator, the investigation of the investigator does not “remedy” the violation of the LEO Bill of Rights and provides no direct benefit to the officer under investigation. Moreover, limiting the availability of compliance review hearings to alleged violations arising during an investigation does not insulate investigative misconduct from review because, as acknowledged by the City at oral argument, nothing precludes an officer who is the subject of an alleged violation occurring after the investigation is complete from filing an internal affairs complaint against the investigator or agency official who committed the violation. See also § 943.1395(6)(a), Fla. Stat. (providing that the Criminal Justice Standards and Training Commission may investigate “verifiable complaints” against certified officers made to the commission).

B. Availability of a Compliance Review Hearing When the Investigation Arises Out of an Internal Complaint

The second issue in this appeal is whether compliance review hearings are available to review alleged intentional violations of the LEO Bill of Rights arising in an investigation of complaint made by a person within the officer’s agency. Our resolution of this issue begins with statutory language in sections 112.532 and 112.534, but also requires us to consider the McQuade decision relied on by the trial court.

Section 112.532 broadly provides, without qualification or exemption, that the rights listed in that statute are available “whenever a law enforcement officer or correctional officer is under investigation ... for any reason.” § 112.532(1), Fla. Stat. (emphasis added). This language is clear and unambiguous and cannot be reasonably construed to support the proposition that all of the rights afforded by the LEO Bill of Rights are limited to investigations arising out of external complaints.

Likewise, nothing in section 112.534 ties the availability of a compliance review hearing to the source of the complaint. Instead, the statute provides a remedy when an agency or investigator “fails to comply with the requirements of [the LEO Bill of Rights].” § 112.534(1), Fla. Stat. Although courts have held that some portions of the LEO Bill of Rights apply only to external complaints, it would make no sense to construe section 112.534 to provide for compliance review hearings only to remedy alleged violations arising out of investigations of external complaints because the source of the complaint has no bearing on most of the rights afforded by the LEO Bill of Rights. See, e.g., § 112.532(1) (rights during interrogation), (4) (right to advance notice of disciplinary action), (5) (protection against retaliation), Fla. Stat.; § 112.533(2) (confidentiality of complaints), (3) (right to inspect personnel file), Fla. Stat.

Having interpreted the applicable statutes, our analysis would typically end here. But, because the trial court construed this court’s decision in McQuade to stand for the proposition that “[t]he LEO Bill of Rights is not applicable to complaints that arise internally to a law enforcement agency,” our analysis would not be complete without considering that decision.

McQuade was an appeal of a final order of the Public Employees Relations Commission (PERC) dismissing an appeal filed by a correctional officer after he was fired by the Department of Corrections as a result of a complaint made by another correctional officer. See 51 So.3d at 491. The officer argued that the Department was barred from taking disciplinary action against him because, in violation of section 112.532(6)(a), Florida Statutes (2008), more than 180 days passed between the date of the complaint and his firing. Id. PERC rejected this argument and dismissed the officer’s appeal. Id. Upon review of the dismissal order, this court affirmed PERC’s conclusion that the 180-day period in section 112.532(6)(a) does not apply to internal complaints. Id. at 490, 495. This holding was based largely on the Fourth District’s decision Migliore, which was adopted verbatim by the Florida Supreme Court. Id. at 493-94.

The issue in Migliore was whether the purpose of the complaint review boards provided for in section 112.532(2), Florida Statutes (1981), was to review disciplinary action against a law enforcement officer. See 415 So.2d at 64. The court explained that the only statute providing a possible explanation of the function of the boards is section 112.533, Florida Statutes (1981), which requires each law enforcement agency to have a system to investigate and determine “complaints received by such employing agency.” Id. Based on this language, the Migliore court concluded that the purpose of the complaint review boards is to “provide[e] a law enforcement officer with a means of vindicating his actions and his reputation against unjust and unjustified claims made against him by persons outside the agency which employs him.” Id. (emphasis added). Accord Op. Att’y Gen. Fla. 86-91 (1986) (explaining that complaint review boards are advisory, not adjudicatory, in nature and are “to be utilized for the disposition of complaints made by persons outside of the law enforcement or correctional officer’s agency and not for review of disciplinary action against law enforcement officers”).

McQuade reasoned that the 180-day period in section 112.532(6)(a), Florida Statutes (2008), does not apply to internal complaints because the period is triggered by the receipt of a complaint and “[t]he Migl-iore court concluded that a law enforcement’s ‘receipt’ of a complaint, as that language was used in section 112.534, Florida Statutes (1981), meant its receipt of a complaint from a person outside the agency.” Id. at 494-95. The court also explained that PERC lacked jurisdiction to enforce the LEO Bill of Rights because the “enforcement of its provisions is to be accomplished [under section 112.534(1), Florida Statutes (2008) ] through the circuit court, rather than [PERC].” Id. at 494.

Contrary to the City’s argument in this appeal, McQuade did not hold that the entire LEO Bill of Rights is inapplicable to internal complaints. It merely held that the 180-day period in section 112.532(6)(a), Florida Statutes (2008), does not apply to internal complaints. Moreover, because McQuade involved an internal complaint, the fact that the court also stated that the remedy in section 112.534, Florida Statutes (2008), was available to the officer undercuts the trial court’s broad reading of the decision. Indeed, the opinion would be internally inconsistent if it, on one hand, it is read to hold that the LEO Bill of Rights is inapplicable to internal complaints but, on the other hand, it explained that the remedy in section 112.534, Florida Statutes (2008), was available to the officer in that case who was the subject of an internal complaint.

We recognize that the McQuade court stated that “Migliore has been cited broadly for the proposition that the LEO Bill of Rights does not apply to investigations initiated by a complaint that originates from within the agency that employs the officer under investigation.” Id. at 493 (citing Kelly v. Gill, 544 So.2d 1162 (Fla. 5th DCA 1989)). That, however, was not the holding of Migliore or the Kelly case cited in McQuade for this proposition.

As discussed above, the narrow issue decided in Migliore was whether the complaint review boards provided for in section 112.532(2), Florida Statutes (1981), had authority to review disciplinary action taken against an officer. See 415 So.2d at 64. Although the court held that the boards’ purpose was to provide a means for the officer to vindicate his actions and reputation against “claims made against him by persons outside the agency which employs him,” id., the court did not purport to limit the application of any other provision of the LEO Bill of Rights to external complaints. Indeed, in discussing whether the circuit court had jurisdiction under section 112.534, Florida Statutes (1981), to review disciplinary action against the officer, the court explained the operation of that statute without any suggestion that the statute’s remedy was limited to external complaints. See id. at 65 (explaining that section 112.534 “operates only to immediately restrain violation of the rights of police officers by compelling performance of the duties imposed by Sections 112.531 to 112.533”).

Likewise, the issue in Kelly was not whether the LEO Bill of Rights applies to internal complaints. Instead, the issue was whether the LEO Bill of Rights applied to an investigator employed by the state attorney. See 544 So.2d at 1164. The court held that the investigator was not covered by the LEO Bill of Rights because he was not a law enforcement officer, as defined in section 112.531. Id. at 1165. Although the court did cite Migl-iore in a footnote for the proposition that “it would appear that all of [the LEO Bill of Rights] deals specifically with investigations, complaints, and disciplinary action as a result of claims made against an officer by persons outside the agency [that] employs him,” id. at 1165 n. 5 (emphasis in original), this statement was classic dicta because it was prefaced by the acknowledgment that it was “not necessary to decide this appeal.” Id.

In sum, neither McQuade, Migl-iore, nor Kelly stand for the broad proposition that the LEO Bill of Rights only applies when the officer is under investigation based upon an external complaint, and to the contrary, the plain language of sections 112.532 and 112.534 do not limit compliance review hearings based upon the source of the complaint. Accordingly, the trial court erred in finding that Officer B was not entitled to compliance review hearing because he was under investigation based upon an internal complaint.

Nevertheless, the trial court reached the correct result because, as was the case with Officer A, Officer B did not request a compliance review hearing until after the internal affairs investigation was concluded and he was notified of the proposed disciplinary action. Furthermore, Officer B would not have been entitled to a compliance review hearing in any event because (1) the police department’s failure to immediately provide him a copy of the polygraph results was remedied before the hearing was requested, see § 112.534(l)(d), Fla. Stat. (indicating that a compliance review hearing need not be held if the alleged violation is “otherwise remedied by the agency before the hearing”), and (2) based upon McQuade, the police department’s alleged failure to complete its investigation of the internal complaint against Officer B within 180 days is not a violation of the LEO Bill of Rights.

III. Conclusion

In sum, for the reasons stated above, although the trial court erred in determining that Officer B was not entitled to a compliance review hearing because he was under investigation based upon an internal complaint, the court correctly determined that neither Officer A nor Officer B was entitled to a compliance review hearing under the circumstances of this case. Accordingly, we affirm the final judgment.

AFFIRMED.

PADOVANO, J., concurs.

MAKAR, J., concurs in part and dissents in part with opinion.

MAKAR, J.,

concurring in part, and dissenting in part.

I concur except as to Part 11(A) of the majority opinion, which holds that a compliance review hearing is unavailable under section 112.534, Florida Statutes, after an agency first provides an investigative report to an officer.

At issue is the remedial scope of section 112.534, which is within the “bill of rights” for law enforcement and correctional officers. See §§ 112.531-535, Fla. Stat. Section 112.534 reflects an overall purpose of providing law enforcement and correctional officers under investigation with process and remedies where “official misconduct” is alleged against their investigators. Portions of section 112.534 support the conclusion that a key purpose of the compliance review process is to address allegations of intentional violations by investigators discovered before an investigative report is released and to provide a remedy, such as removing the investigator. See § 112.534(l)(g), Fla. Stat. (“If the alleged violation is sustained as intentional by the compliance review panel, the agency head shall immediately remove the investigator from any further involvement with the investigation of the officer.”). No dispute exists that officers can raise claims of investigative misconduct prior to the time an investigative report is disclosed to them and that removal of an investigator is available.

Nothing in the statute’s language or structure, however, establishes a legislative intention that the compliance review process be limited to only this purpose and this remedial option. Indeed, the statute provides as an additional remedy for intentional violations that an “agency head shall direct an investigation be initiated against the investigator determined to have intentionally violated the requirements provided under this part for purposes of agency disciplinary action.” If the agency’s investigation sustains the violations, the “sustained allegations against the investigator shall be forwarded to the Criminal Justice Standards and Training Commission for review as an act of official misconduct or misuse of position.” Id. This additional remedy reflects a legislative intent that confirmed investigative misconduct be dealt with appropriately, even if first discovered upon issuance of an investigative report.

Had the legislature intended to limit this remedial option to only violations discovered before an investigation is complete, it could have said so; but it has not. Missing from the legislative mandate that a compliance review panel “shall review the circumstances and facts surrounding the alleged intentional violation,” see § 112.534(l)(d), is statutory language saying that such review may occur only if “the violation was discovered and alleged during the investigation.” No such limitation exists. Instead, the language of section 112.534, read in conjunction with the remainder of the bill of rights, does not prohibit an officer, who first learns of possible investigative misconduct in such a report, from seeking a compliance review hearing even though the investigative work is deemed complete at that point. Because investigations may be continued or reopened under section 112.532(6)(b) if new evidence is discovered, drawing a judicial line at too early a point could have the unintended effect of depriving officers of remedies prematurely in some instances.

Given the statute’s remedial nature, the better reading of section 112.534 is that the compliance review process is available to adjudge claims of intentional violations if (a) they are discovered before an investigative report is released or, as is the case here, (b) they could not be discovered pri- or to, but surfaced and were promptly reported immediately after, the initial release of the investigative reports. The statute can serve these two remedial purposes: it can walk and chew gum at the same time.

      . All statutory references are to the 2009 version of the Florida Statutes unless otherwise indicated.

      . The parties agreed below to refer to the officers by these pseudonyms even though the City disputed the Union’s claim that the identity of the officers was confidential under sections 112.533(2)(a) or 112.534(l)(e). We express no view as to whether it was necessary or appropriate to refer to the officers by pseudonyms under the circumstances of this case because that issue is not before us.

      . Very little evidence was presented about other allegedly similarly situated officers, and the only finding made by the trial court pertaining to other officers was that, "[a]s to other [Gainesville Police Department] officers, between the effective date of the compli-anee review panel provisions contained in section 112.534, Florida Statutes, and the conclusion of trial, several requests for a compliance review panel have been made, but none has ever been convened."

      . See Op. Att’y Gen. Fla. 90-65 (1990) (observing that section 112.532(1) “contains no qualifications or exemptions from the requirement that the rights contained in s. 112.532, F.S. apply to any interrogation of a police officer by members of his agency if the investigation could lead to disciplinary action, demotion, or dismissal of the officer.”).

      . See McQuade, 51 So.3d at 494 (holding that the 180-day period in section 112.532(6)(a) does not apply to internal complaints); Migl-iore, 415 So.2d at 64 (holding that the purpose of the complaint review boards in section 112.532(2) is to provide the officer a means, to vindicate his actions and reputations against claims made by persons outside ■ the officer’s agency).

      . See Op. Att’y Gen. 83-90 (1983) (concluding that the statute providing for confidentiality of complaints against law enforcement officers and correctional officers applies to complaints filed by anyone, "whether that person is a member of the public or another agency or the employing agency”).

      7. This reference to section 112.534 is an apparent scrivener’s error because the Migliore court was construing the phrase "complaints received by such employing agency” in section 112.533. See 415 So.2d at 64.

      . We recognize that McQuade's reliance on Migliore for this proposition is inconsistent with several opinions in which the Attorney General relied on statutory amendments adopted after Migliore to conclude that the language in section 112.533 referring to the receipt of complaints applies to both internal and external complaints. See Op. Att’y Gen. 2000-64 (2000); Op. Att’y Gen. 93-61 (1993); Op. Att’y Gen. 83-90 (1983); see also Mullins v. Dep’t of Law Enforcement, 942 So.2d 998, 1001 (Fla. 5th DCA 2006) (citing Attorney General Opinion 93-61 for the proposition that the LEO Bill of Rights applies to both internal and external complaints). However, the amendments referred to by the Attorney General did not modify the specific statutory language relied upon by the court in Migliore. Compare § 112.533, Fla. Stat. (1981) (“Every agency employing law enforcement officers shall establish and put into operation a system for receipt, investigation, and determination of complaints received by such employing agency from any person”) (emphasis added) with § 112.533(l)(a), Fla. Statute (2009) ("Every law enforcement agency and correctional agency shall establish and put into operation a system for the receipt, investigation, and determination of complaints received by such agency from any person, which shall be the procedure for investigating a complaint a law enforcement and correctional officer and for determining whether to proceed with disciplinary action or to file disciplinary charges ....”) (emphasis added); see also McQuade, 51 So.3d at 494 (noting that the pertinent statutory language construed in that case "is not materially distinguishable” from the statute construed in Migliore );

      . Although the McQuade court’s citation to Kelly was preceded by the "see, e.g." indicator, suggesting that there are other cases that stand for the same proposition, our research failed to locate any other case holding that the LEO Bill of Rights applies only when the officer is under investigation based upon an external complaint.


text:
    PLANNED PARENTHOOD OF GREATER ORLANDO, etc., Appellant, v. MMB PROPERTIES, etc., Appellee.
    No. 5D14-2920.
    District Court of Appeal of Florida, Fifth District.
    Sept. 24, 2014.

      Donald E. Christopher and Kyle A. Dia-mantas of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Orlando, for Appellant.
    Dennis R. O’Connor and Derek J. Angelí of O’Connor & O’Connor, LLC, Winter Park, and Maureen A. Arago and Keith P. Arago of The Arago Law Office, Kissim-mee, for Appellee.
   ON EMERGENCY MOTION FOR ■STAY OF INJUNCTION

PER CURIAM.

Appellant, Planned Parenthood of Greater Orlando, Inc. (“Planned Parenthood”), has filed an emergency motion seeking to stay a temporary injunction entered by the trial court. The underlying case involves the interpretation of a restrictive covenant. Because Planned Parenthood has demonstrated a likelihood of success on the merits and that it will be harmed absent a stay, we grant the motion.

Planned Parenthood is a nonprofit organization that operates three health centers in Central Florida. Recently, Planned Parenthood purchased property at 610 Oak Commons Boulevard in the Oak Commons Medical Park in Kissimmee, Florida. That property is subject to a Declaration of Restrictions containing a covenant that prohibits the property from being used as an “Outpatient Surgical Center” or a “Diagnostic Imaging Center,” unless such uses are “ancillary and incidental to a physician’s practice of medicine.” Appellee, MMB Properties (“MMB”), also owns property in the Oak Commons Medical Park.

Upon MMB’s request, the trial court entered an order temporarily enjoining Planned Parenthood from “directly or indirectly violating the Declaration of Restrictions at 610 Oak Commons, Kissimmee, Florida.” Specifically, the trial court stated that the violations included “but [were] not limited to the performance of surgical abortions and the provision of sonographic or other diagnostic imaging services.”

We review a trial court’s decision on a motion to stay for an abuse of discretion. See Sunbeam Television Corp. v. Clear Channel Metroplex, Inc., 117 So.3d 772, 772 (Fla. 3d DCA 2012). To obtain a stay, the moving party must establish “(1) a likelihood of success on the merits, and (2) a likelihood of harm absent the entry of a stay.” Id. (citing Campbell v. Chitty, 131 So.3d 9 (Fla. 1st DCA 2012); Perez v. Perez, 769 So.2d 389, 391 (Fla. 3d DCA 1999)). We believe that Planned Parenthood has proved both.

First, it is apparent that the trial court erred as a matter of law when it enjoined Planned Parenthood from providing sonographic and other diagnostic imaging services because MMB never requested this relief in its pleadings or in its motion for temporary injunction. See, e.g., Cortina v. Cortina, 98 So.2d 334, 337 (Fla.1957) (holding that an order that adjudicates issues not raised in the pleadings is voidable on appeal); Cardinal Inv. Grp., Inc. v. Giles, 813 So.2d 262, 263 (Fla. 4th DCA 2002) (holding that trial court erred in granting injunctive relief that was not requested by the parties).

Likewise, Planned Parenthood is likely to succeed on the merits regarding the portion of the injunction that prevents it from providing surgical procedures. The Declaration of Rights allows surgery to occur in the Oak Commons Medical Center so long as it is “ancillary and incidental to a physician’s practice of medicine.” The trial court found that Planned Parenthood is not a “physician’s practice” because it is a § 501(c)(3) tax-exempt nonprofit organization. Simply because an organization chooses to obtain nonprofit status does not mean that it is not a physician’s practice. The trial court’s other findings with respect to this issue are similarly unsupported by the record. When examining the record as a whole, including the affidavits Planned Parenthood filed in support of its motion for rehearing, there is a likelihood that Planned Parenthood will prevail on appeal, either because it is not an Outpatient Surgical Center or, even if it is, the surgeries it performs are ancillary to a “physician’s practice.”

Lastly, we note that Planned Parenthood has sufficiently proved that it will suffer harm absent a stay.

MOTION GRANTED.

EVANDER, COHEN, and LAMBERT, JJ., concur.

      . We also agree with Planned Parenthood that the "including but not limited to” language renders the order vague; thus, the order does not adequately put Planned Parenthood on notice of what is prohibited. See, e.g., 4UOrtho, LLC v. Practice Partners, Inc., 18 So.3d 41, 43 (Fla. 4th DCA 2009) ("[0]ne against whom [an injunction] is directed should not be left in doubt about what he is to do.” (quoting Pizio v. Babcock, 76 So.2d 654, 655 (Fla.1954))).


text:
    David J. ROSS and Stacy M. Ross, Appellants, v. TOWER HILL PREFERRED INSURANCE COMPANY, Appellee.
    No. 5D13-1515.
    District Court of Appeal of Florida, Fifth District.
    Sept. 29, 2014.
   BY ORDER OF THE COURT.

ORDERED that the September 26, 2014 Mandate, having been issued in error, is vacated and withdrawn.


author: CIKLIN, J.

text:
    Michael MANSUETO, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-522.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2014.
    Rehearing Denied Nov. 18, 2014.

      Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Michael Mansueto appeals his convictions for four counts of sexual battery on a child while in a position of familial or custodial authority committed against his biological daughter. He argues that the trial court erred by permitting a witness to vouch for the credibility of a Williams rule witness and by allowing the testimony of the Williams rule witness to become a feature of the trial. Because Mansueto failed to properly object to the errors now alleged on appeal, we affirm.

Before trial commenced, the state filed a notice of intent to call the victim’s sister (Mansueto’s other daughter) as a Williams rule witness. Following an evidentiary hearing on the state’s notice of intent, the trial court properly found that the evidence was reliable and showed a common scheme and plan. Mansueto then sought to exclude references to the Williams rule evidence in both opening statements and closing arguments. The trial court denied his request, but explained that it would consider any properly made objection regarding the use of the Williams evidence as a feature at trial.

The victim testified at trial regarding the sexual battery she suffered as a minor at the hands of Mansueto, describing a quid pro quo system in which Man-sueto would give her money, privileges, or permission for certain activities in exchange for submitting to sexual acts. The victim also described a birthmark on Man-sueto’s penis, which was corroborated with a photograph entered into evidence by the state. The victim’s sister (“sister”) testified to also being a victim of Mansueto under a similar pattern of abuse and confirmed that the state’s photograph correctly depicted Mansueto. Mansueto made no objection to the Williams rule testimony becoming a feature.

The defense vigorously cross-examined the sister about prior representations the sister allegedly made to a detective in which she indicated that she had not been molested by Mansueto. Additionally, the defense introduced into evidence a sketch of Mansueto’s birthmark drawn by the sister, apparently to show variations between the drawing and the previously admitted photograph.

After the state rested, the defense called both the mother of the victim (“mother”) and the sister. The mother testified to a prior false allegation of abuse made by the victim against “Norman,” the victim’s stepfather (and mother’s second husband).

On cross-examination by the state, the mother testified that the victim and the sister together told their mother that Man-sueto had molested them, which the mother believed to be true. When the state asked the mother about her belief in the accusations against Mansueto versus her conclusion that the accusations against Norman were false, the mother clarified that she believed the allegations against Mansueto because the sister (apparently unlike the victim) never lied to her. The defense objected to the question and asserted, “It’s the ultimate issue for the jury.” The trial court overruled the objection. The jury found Mansueto guilty.

On appeal, Mansueto argues that the trial court erred in admitting the mother’s testimony concerning the veracity of the sister and further asserts that the trial court committed error by permitting Williams rule evidence to become a feature at trial. The state argues that the errors raised by Mansueto were not preserved for review because Mansueto failed to lodge proper objections. We agree.

Generally, proper preservation of an issue for appellate review requires three components: (1) a timely, contemporaneous objection, (2) a stated legal ground for the objection, and (3) to be cognizable on appeal, the argument “must be the specific contention asserted as legal ground for the objection, exception, or motion below.” State v. Calvert, 15 So.3d 946, 948 (Fla. 4th DCA 2009) (citations omitted) (emphasis in original). Issues not properly raised in the lower tribunal are typically waived on appeal save for unpreserved issues that constitute fundamental error. See Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982).

Stated another way, “to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” Tillman v. State, 471 So.2d 32, 35 (Fla.1985) (citations omitted). Below, Mansueto objected and asserted, “It’s the ultimate issue for the jury.” Because the “ultimate issue” ground alleged as the legal basis of the objection during trial is distinct from the error now alleged on appeal (improper vouching for a witness’s credibility), Man-sueto’s issue on appeal was not preserved for our review.

As to Mansueto’s issue on appeal alleging that the trial court erred in permitting the Williams rule evidence to become a feature at trial, Mansueto likewise failed to lodge an objection at the time the evidence was being presented below. The contemporaneous objection rule requires a party to object during trial at the time of the alleged error. Overton v. State, 976 So.2d 536, 574 (Fla.2007). The rationale for the contemporaneous objection rule “is two-fold: 1) to require an objection at the time the error is committed to give the trial court the opportunity to correct it; and 2) to prevent a litigant from allowing an error to go unchallenged so it may be used as a tactical advantage later.” Crumbley v. State, 876 So.2d 599, 601 (Fla. 5th DCA 2004) (citing F.B. v. State, 852 So.2d 226 (Fla.2003)).

It cannot be said that the errors alleged by Mansueto on appeal were fundamental in nature and thus we affirm.

Affirmed.

STEVENSON and FORST, JJ., concur.

      . Williams v. State, 117 So.2d 473 (Fla.1960).

      . Williams rule evidence becomes a proscribed "feature” of trial “when inquiry into the collateral crimes ‘transcend[s] the bounds of relevancy to the charge being tried’ and the prosecution 'devolves from development of facts pertinent to the main issue of guilt or innocence into an assault on the character of the defendant.’ ” Conde v. State, 860 So.2d 930, 945 (Fla.2003) (quoting Williams, 117 So.2d at 475). Simply put, Williams rule evidence is a feature if it " ‘overwhelms’ evidence of the charged crime and becomes ‘an impermissible attack on the defendant’s character or propensity to commit crimes.' ” Grier v. State, 27 So.3d 97, 101 (Fla. 4th DCA 2009) (quoting Samuels v. State, 11 So.3d 413, 418 (Fla. 4th DCA 2009)).

      . In some instances, assertion of a contemporaneous objection may raise concerns of a speaking objection particularly when a trial judge has issued an adamant pre-trial order in limine. The issue of speaking objections and the need to seek a bench conference has previously been addressed by this court:
      Judges frown on speaking objections and often both lawyers and trial judges do not want the jury to hear the argument on the objection because of a legitimate concern that a discussion in front of the jury may only highlight the error. Yet, a properly articulated specific objection is necessary not only for appellate preservation but to assist the trial court in making a proper ruling as well. Therefore, to address the tension between the need for a specific objection and the desire to shield the jury from the argument, often either the trial judge or the lawyer will ask that the objection be heard at sidebar.

        Datus v. State, 126 So.3d 363, 366 (Fla. 4th DCA 2013) (quoting Salazar v. State, 991 So.2d 364, 380-81 (FIa.2008) (Pariente, J., specially concurring) (footnote omitted)).
      Needless to say however, there is no viable substitute for well-versed trial advocacy and no shortcut for acquiring a firm grasp on the articulation of proper and contemporaneous trial objections.


text:
    STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Mary HARTZOG, Respondent.
    No. 1D14-2341.
    District Court of Appeal of Florida, First District.
    Oct. 9, 2014.

      Stephen D. Hurm, General Counsel, and Damaris E. Reynolds, Assistant General Counsel, Tallahassee, for Petitioner.
    Kerry Adkison, Chipley, for Respondent.
   PER CURIAM.

The Department of Highway Safety and Motor Vehicles (“Department”) petitions for second-tier certiorari review of the circuit court’s order granting the certiorari petition that respondent, Mary Hartzog, filed. In its order, the circuit court quashed an order denying respondent’s request for the reinstatement of her driving privilege. Because we agree with the Department that the circuit court failed to apply the correct law, we grant the Department’s petition and quash the circuit court’s order. In doing so, we note respondent’s admission in this proceeding that she can show no cause why the Department’s petition should not be granted.

Respondent’s driver’s license was permanently revoked in July 2005 after she committed multiple offenses of driving under the influence. She later sought reinstatement of her license. During the May 10, 2013, reinstatement hearing, she acknowledged driving a vehicle without a license on December 26, 2009. The transcript of her driving record shows that she was charged with driving with a revoked license as a result of the incident. In denying respondent’s request for reinstatement, the hearing officer noted the requirement in section 322.271, Florida Statutes, that there be no driving for five years prior to a reinstatement hearing. Respondent filed a certiorari petition with the circuit court challenging the hearing officer’s order. In its order granting the petition and quashing the hearing officer’s order, the circuit court detailed respondent’s reasons for seeking reinstatement of her license and found that the hearing officer did not make any determination with respect to respondent’s qualifications, fitness, or need to drive as required by section 322.271. The circuit court denied the Department’s motion for rehearing. This proceeding followed.

On first-tier certiorari review of agency action, a circuit court must determine: (1) whether procedural due process was accorded; (2) whether the essential requirements of the law were observed; and (3) whether the administrative findings and judgment were supported by competent, substantial evidence. Broward Cnty. v. G.B.V. Int’l, Ltd., 787 So.2d 838, 843 (Fla.2001). District courts apply a two-prong test on second-tier certiorari review: (1) whether the circuit court applied the correct law; and (2) whether the circuit court afforded procedural due process. State, Dep’t of Highway Safety & Motor Vehicles v. Edenfield, 58 So.3d 904, 906 (Fla. 1st DCA 2011).

The pertinent law in this case is section 322.271(5), Florida Statutes (2012), which provides in part:

[A] person whose driving privilege has been permanently revoked because he or she has been convicted four or more times of violating s. 316.193 or former s. 316.1931 may, upon the expiration of 5 years after the date of the last conviction or the expiration of 5 years after the termination of any incarceration under s. 316.193 or former s. 316.1931, whichever is later, petition the department for reinstatement of his or her driving privilege.
(a) Within 30 days after receipt of a petition, the department shall provide for a hearing, at which the petitioner must demonstrate that he or she:
1. Has not been arrested for a drug-related offense for at least 5 years prior to filing the petition;
2. Has not driven a motor vehicle without a license for at least 5 years prior to the hearing:
3. Has been drug-free for at least 5 years prior to the hearing; and
4. Has completed a DUI program licensed by the department.
(b) At the hearing, the department shall determine the petitioner’s qualification, fitness, and need to drive, and may, after such determination, reinstate the petitioner’s driver’s license.

(Emphasis added.)

Based upon this statute, the hearing officer correctly denied respondent’s petition on the ground that she drove a vehicle without a license within five years of the hearing date. The circuit court’s focus upon subsection (5)(b) of the statute was improper given that respondent failed to demonstrate all of the requirements provided for in subsection (5)(a). Because the circuit court failed to apply the correct law, we grant the Department’s certiorari petition and quash the circuit court’s order. See State Dep’t of Highway Safety & Motor Vehicles v. Saxlehner, 96 So.3d 1002, 1005 (Fla. 3d DCA 2012) (holding that the circuit court’s granting of the respondent’s certiorari petition and reversing the order sustaining the suspension of the respondent’s driver’s license constituted a clear departure from the essential requirements of law where the court failed to apply the correct statutory and administrative provisions governing formal review hearings for suspension of one’s driving privileges); State, Dep’t of Highway Safety & Motor Vehicles v. Grapski, 696 So.2d 950, 951-52 (Fla. 4th DCA 1997) (noting that when a requirement for reinstatement of a license, such as enrollment in a DUI course, is made mandatory by statute, reinstatement is an administrative function over which the trial court has no discretion and that it is the duty of the courts and the Department of Highway Safety and Motor Vehicles to follow the provisions of chapter 322).

For these reasons, we quash the order on review.

PETITION GRANTED; WRIT ISSUED; ORDER QUASHED.

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


text:
    Nestor ROJAS, Appellant, v. STATE of Florida, Michael D. Crews, Etc., Appellees.
    No. 5D14-1501.
    District Court of Appeal of Florida, Fifth District.
    Oct. 10, 2014.
    Nestor Rivera Rojas, Indiantown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tammy S. Metcalf, Assistant Attorney General, Tallahassee, for Appel-lee.
   PER CURIAM.

Appellant, Nestor Rojas, appeals the trial court’s dismissal of a petition for writ of habeas corpus which alleged Tomoka Correctional Facility treated Appellant cruelly and inhumanly. Appellant argues the trial court erred by dismissing the petition as moot when Appellant was transferred to another correctional institution.

Appellant was convicted of various sex offenses in Citrus County and was sentenced to sixty months incarceration. Appellant filled a habeas petition with the Florida Supreme Court, which referred the matter to the Volusia County Circuit Court. The Florida Department of Corrections responded by a motion to dismiss alleging Appellant’s petition was moot because Appellant had been transferred to Martin Correctional Institution.

The trial court properly dismissed the action because it was moot. See Godwin v. State, 593 So.2d 211, 212 (Fla.1992) (“A case is ‘moot’ when it presents no actual controversy or when the issues have ceased to exist.”); Martinez v. Singletary, 691 So.2d 587, 538 (Fla. 1st DCA 1997) (“Generally, an inmate’s grievance regarding the conditions of his confinement at a certain institution becomes moot upon his transfer to another facility.”).

AFFIRMED.

PALMER and EVANDER, JJ., and HARRIS, C.M., Senior Judge, concur.