author: ORFINGER, J.

text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, etc, Appellant, v. Manuel BRANCO and Irma Branco, Appellees.
    No. 5D13-2929.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2014.
    Rehearing Denied Oct. 15, 2014.

      G. William Bissett, Jr., of Kubicki Draper, PA, Miami, for Appellant.
    Nancy A. Lauten and George A. Vaka, of Vaka Law Group, Tampa, and Kenneth C. Thomas, Jr., of Marshall Thomas Burnett, Land O’Lakes, for Appellees.
   ORFINGER, J.

Florida Insurance Guaranty Association (“FIGA”) appeals an order compelling appraisal of a sinkhole loss under a homeowner’s insurance policy issued to Manuel and Irma Branco. FIGA contends that the trial court erred in ordering appraisal because: (1) the policy provides for appraisal only if the amount of loss was disputed and, here, only the method of repair is disputed; (2) the Brancos waived their right to demand appraisal; and (3) the order implicitly approves the Brancos’ selection of a partner in the law firm representing them as their appraiser, contrary to the policy’s requirement to select “disinterested” appraisers. We agree that the trial court erred in allowing the Bran-cos to select an appraiser who was not “disinterested.” We reject FIGA’s other arguments.

The Brancos’ home sustained suspected sinkhole damage in April 2010. They reported the loss to their homeowner’s insurer, HomeWise Preferred Insurance Company (“HomeWise”), several days later. In response, HomeWise retained an engineering firm to perform a limited structural assessment. Following receipt of the engineer’s report, HomeWise denied the Brancos’ claim, concluding that a “sinkhole loss,” as defined in the policy, had not occurred. Several months later, the Bran-cos sued HomeWise, alleging breach of contract. HomeWise filed its answer and defenses in May 2011, denying that it had breached the insurance contract because the Brancos’ property had not sustained a covered loss.

In November 2011, HomeWise was declared insolvent and FIGA stepped in to deal with the “covered claims” within the scope of its enabling statutes. As a result, the Brancos’ case was automatically stayed. In August 2012, after the stay expired, the Brancos filed an amended complaint, substituting FIGA as the named defendant due to HomeWise’s insolvency. FIGA then asked the court for an additional stay to allow further investigation of the claim. The court extended the stay, and FIGA completed its additional testing in early March 2013. On April 8, 2013, FIGA answered the Brancos’ amended complaint, admitting, for the first time, “that sinkhole activity was identified as a contributing cause of damage to the [Bran-cos’] property,” and that the Brancos “are entitled to the amount payable for the actual repair of the loss/actual repairs to the property, not to exceed policy limits

The Brancos demanded appraisal in a letter to FIGA on April 30, 2013. On May 23, 2013, the Brancos moved the court to compel appraisal. The Brancos’ appraisal request was based on a provision in the insurance policy that provided, in relevant part:

6. If you and we fail to agree on the amount of loss either may
b. Demand an appraisal of the loss. In this event each party will choose a competent and disinterested appraiser within twenty (20) days after the receipt of a written request from the other
(1) The two appraisers will choose a competent and independent umpire
(2) The appraisers will separately set the amount of the loss and assign the amount of loss attributable to each specific policy coverage
(3) If the appraisers submit a written report of an agreement to us, the amount agreed upon will be the amount of the loss
(4) If they fail to agree, they will submit their difference to the umpire
(5) A decision by any two must assign the amount of loss attributable to each specific policy coverage

(Emphasis added).

On June 24, 2013, FIGA again asked the trial court for an additional stay to allow for neutral evaluation of the Brancos’ claims and, simultaneously opposed the Brancos’ motion to compel appraisal. The trial court granted FIGA’s request for an additional stay and further ordered that “[t]he parties are to first attempt to resolve the underlying claims in the lawsuit through neutral evaluation, and barring resolution, the parties are to then take the matter through appraisal.” FIGA appeals this order to the extent that it requires appraisal.

FIGA first argues that the trial court erred in ordering the parties to appraisal because their dispute with the Brancos is over the “method of repair” rather than the “amount of loss.” Interpretation of insurance policies is reviewed de novo, e.g., State Farm Florida Insurance Co. v. Phillips, 134 So.3d 505, 507 (Fla. 5th DCA 2014), as are orders compelling appraisal, e.g., Citizens Property Insurance Corp. v. Demetrescu, 137 So.3d 500, 502 (Fla. 4th DCA 2014).

Appraisals are creatures of contract and the subject or scope of appraisal depends on the contract provisions. Citizens Prop, Ins. Corp. v. Casar, 104 So.3d 384, 385-86 (Fla. 3d DCA 2013). Absent ambiguity, the plain meaning of an insurance policy controls. E.g., Arias v. Affirmative Ins. Co., 944 So.2d 1195, 1197 (Fla. 4th DCA 2006) (quoting Se. Fire Ins. Co. v. Lehrman, 443 So.2d 408, 408-09 (Fla. 4th DCA 1984)). Courts should resort to rules of interpretation only when the policy language is ambiguous or otherwise susceptible to multiple meanings. E.g., Phillips, 134 So.3d at 507 (citing Arias, 944 So.2d at 1197).

When the disagreement concerns the amount of loss, not coverage, it is for the appraisers to arrive at the amount to be paid. Johnson v. Nationwide Mut. Ins. Co., 828 So.2d 1021, 1025 (Fla.2002). The issue in this case is whether the method or extent of necessary repairs is within the scope of an “amount of loss” appraisal policy provision. At least one court, considering this question, answered affirmatively, reasoning:

Estimating the dollar value of a loss presupposes a judgment of what repairs are necessary to recoup from the loss. Appraisers could not perform their duties if they were prohibited from opining on these matters. And in practice, where there have been two different assessments of the amount of loss — one by Plaintiffs’ assessor, one by Defendant’s — it is not surprising that the assessors may have some disagreement as to whether the covered occurrence actually caused a certain portion of the putative damage, as well as disagreements about the scope and method of necessary repairs. But to say such disputes are sufficient to negate the appraisal provision in the policy would effectively eliminate appraisal as a workable method of alternative dispute resolution.

Williamson v. Chubb Indem. Ins. Co., No. ll-cv-6476, 2012 WL 760838, at *4 (E.D.Pa. Mar. 8, 2012); see also UrbCam-Com/WSU I, LLC v. Lexington Ins. Co., No. 12-CV-15686, 2014 WL 1652201, at *6 (E.D.Mich. Apr. 23, 2014) (approvingly citing Williamson, and holding that dispute regarding necessary repairs, and length of time, to reopen building goes to “amount of loss,” which falls squarely within ambit of appraisal); Correnti v. Merchs. Preferred Ins. Co., Civ. No. 12-6303, 2013 WL 373273, at *2 (E.D.Pa. Jan. 31, 2013) (determining that as dispute was over “extent of damage,” it was dispute regarding “amount of loss,” and, thereby, required appraisal); Sydney v. Pac. Indem. Co., Civil Action No. 12-1897, 2012 WL 3135529, at *3 (E.D.Pa. Aug. 1, 2012) (“A disagreement as to the scope of the repairs and replacements needed to remedy a loss is still within the purview of the appraisal clause.”).

We agree with the analysis in Williamson and believe that FIGA’s interpretation of the appraisal clause in the policy would render the appraisal process meaningless. Although FIGA may characterize the dispute over the necessary repairs as a coverage issue, in reality, it is an “amount of loss” issue. There is no dispute that HomeWise insured the Brancos’ home at the relevant time for sinkhole losses, and FIGA has now admitted that the Brancos have sustained a covered loss. The logical disagreement between an insured and the insurer after a covered loss would be, as the court in Williamson stated, “disagreement as to whether the covered occurrence actually caused a certain portion of the putative damage, as well as disagreements about the scope and method of necessary repairs.” 2012 WL 760838, at *4. The extent and cost of the necessary repairs to the Brancos’ property will determine, in large part, the amount FIGA owes. To accomplish their task, the appraisers will have to consider the necessary method and scope of required repairs to evaluate the amount of the Brancos’ loss. Williamson, 2012 WL 760838 at *4; see Currie v. State Farm Fire & Cas. Co., Civil Action No. 13-6713, 2014 WL 4081051, at *5 (E.D.Pa. Aug. 19, 2014). For these reasons, we reject FIGA’s contention that the appraisers cannot determine the method or scope of the necessary repairs when determining the amount of the loss.

FIGA also argues that the Brancos waived their right to appraisal by initiating and participating in litigation. In this regard, appraisal clauses are viewed similarly to arbitration clauses. Thus, we review the trial court’s findings of fact for competent, substantial evidence, and its conclusions of law de novo. Fla. Ins. Guar. Ass’n v. Castilla, 18 So.3d 703, 704 (Fla. 4th DCA 2009); Doctors Assocs. v. Thomas, 898 So.2d 159,162 (Fla. 4th DCA 2005) (reiterating that question of waiver is one of fact, reviewable for competent, substantial evidence, and all questions about waivers of arbitration should be construed in favor of arbitration, rather than against it). Here, while the trial court made no findings of fact on the issue of waiver, the facts are not in dispute. Therefore, we review the waiver issue de novo. See Truly Nolen of Am., Inc. v. King Cole Condo. Ass’n, 143 So.3d 1015, 1017 (Fla. 3d DCA 2014).

In the context of arbitration, a waiver of the right to arbitrate occurs when a party actively participates in a lawsuit or engages in conduct inconsistent with the right to arbitrate. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005). Active partic-, ipation in a lawsuit is considered a waiver because it is generally presumed to be inconsistent with the right to arbitrate. Thomas, 898 So.2d at 162; see, e.g., Morrell v. Wayne Frier Manufactured Home Ctr., 834 So.2d 395, 395-98 (Fla. 5th DCA 2003) (finding waiver where party litigated for eleven months with various motions and pleadings); ARI Mut. Ins. Co. v. Hogen, 734 So.2d 574, 576 (Fla. 3d DCA 1999) (finding waiver when party engaged in “aggressive” litigation for nine months with pleadings, interrogatories, requests for productions, sought hearings, and contested other party’s motions and pleadings); Owens & Minor Med., Inc. v. Innovative Mktg. & Distribution Servs., Inc., 711 So.2d 176, 176 (Fla. 4th DCA 1998) (finding waiver when party litigated for thirteen months, secured prejudgment writ of garnishment, made multiple requests for admissions, filed pleadings and motions, and contested other party’s pleadings and motions); Gray Mart, Inc. v. Fireman’s Fund Ins. Co., 703 So.2d 1170, 1171-73 (Fla. 3d DCA 1997) (finding waiver following fourteen months of litigation and demand for appraisal one month before trial).

As FIGA notes, the Brancos litigated their case for more than two years with multiple pleadings and discovery requests. However, the question of waiver of appraisal is not solely about the length of time the case is pending or the number of filings the appraisal-seeking party made. Instead, the primary focus is whether the Brancos acted inconsistently with their appraisal rights. Saldukas, 896 So.2d at 711; see Am. Capital Assur. Corp. v. Courtney Meadows Apartment, L.L.P., 36 So.3d 704, 707 (Fla. 1st DCA 2010) (finding party did not waive right to appraisal as party had not acted inconsistently with right from time of demand).

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

Because coverage for the Brancos’ loss was initially denied, appraisal would not have been appropriate until April 2013 at the earliest, when FIGA conceded that a covered loss had occurred. After FIGA admitted coverage and the trial court lifted the stay, the Brancos filed one request for admissions and demanded appraisal three weeks later. Because the Brancos demanded appraisal shortly after FIGA conceded coverage, and propounded only a single request for admissions before seeking appraisal, we view this case as closer to those finding no waiver. See, e.g., Courtney Meadows, 36 So.3d at 707 (indicating appraisal demand was timely as policy did not contain any language to invoke appraisal within set time from receiving or waiving sworn proof of loss); Castilla, 18 So.3d at 703-05 (explaining appraisal clause may be invoked for first time after litigation has commenced and concluding that party did not act inconsistently with right to appraisal by participating in suit). Thus, we conclude, as did the trial court, that the Brancos did not waive their right to appraisal.

Finally, FIGA argues that the trial court erred in ordering appraisal after the Bran-cos nominated one of their own attorneys, Alan S. Marshall, as an appraiser, violating the policy’s requirement of “disinterested” appraisers. The Brancos concede that their policy requires disinterested appraisers, and admit that Attorney Marshall is “a partner in the law firm representing them.” Further, Attorney Marshall actually represented the Brancos below, as his name appears on several documents filed on their behalf. Because these facts are undisputed and the interpretation of the insurance policy is a pure question of law, the trial court’s acceptance of Attorney Marshall as a “disinterested appraiser” is reviewed de novo. Truly Nolen, 143 So.3d at 1017; Demetrescu, 137 So.3d at 502; Phillips, 134 So.3d at 507; Castilla, 18 So.3d at 704.

Parties to a contract are free to contract for the qualifications of the decision makers in their preferred form of alternative dispute resolution. Lee v. Marcus, 396 So.2d 208, 210 (Fla. 3d DCA 1981); see Citizens Prop. Ins. Corp. v. M.A & F.H. Props., Ltd., 948 So.2d 1017, 1020 (Fla. 3d DCA 2007). Our research has revealed no Florida case that has squarely addressed whether a party’s attorney may serve as a “disinterested appraiser.” The Brancos rely on the third district’s holding in Rios v. Tri-State Insurance Co., 714 So.2d 547, 548-49 (Fla. 3d DCA 1998), which interpreted “independent appraiser” to allow the appointment of an appraiser whose compensation was calculated as a percentage of the eventual appraisal award. See also Galvis v. Allstate Ins. Co., 721 So.2d 421, 421 (Fla. 3d DCA 1998) (reaching same conclusion when policy required “disinterested appraiser”). Rios was in large part premised on, and extensively quoted from, the then-existing version of the Code of Ethics for Arbitrators in Commercial Disputes, promulgated jointly by the American Arbitration Association (“AAA”) and the American Bar Association (“ABA”). Rios, 714 So.2d at 550. That version of the Code of Ethics did not explicitly address the neutrality of arbitrators, but simply required disclosure of any direct or indirect financial interest in the outcome of the proceeding. However, the revised Code of Ethics adopted by AAA and ABA, effective since March 1, 2004, changes the landscape considerably, thus, undercutting the continued viability of the holding in Rios. The current Code of Ethics provides, in relevant part:

[I]t is preferable for all arbitrators including any party-appointed arbitrators to be neutral, that is, independent and impartial, and to comply with the same ethical standards. However, parties in certain domestic arbitrations in the United States may prefer that party-appointed arbitrators be non-neutral and governed by special ethical considerations. These special ethical considerations appear in Canon X of this Code.
This Code establishes a presumption of neutrality for all arbitrators, including party-appointed arbitrators, which applies unless the parties’ agreement, the arbitration rules agreed to by the parties or applicable laws provide otherwise.

American Arbitration Association, The Code of Ethics for Arbitrators in Commercial Disputes (Oct. 21, 2011), https://www. adr.org/aaa/faces/arbitratorsmediators/ aboutarbitratorsmediators/codeofethics (follow “Code of Ethics for Arbitrators in Commercial Disputes” hyperlink).

Unlike the Code of Ethics relied upon in Rios, the current Code of Ethics establishes a presumption of neutrality for all arbitrators, including party-appointed arbitrators. This fundamental change undermines the Rios holding, particularly when, as here, the contract requires the appointment of “disinterested” appraisers. If an appraiser owes his nominating party a “fiduciary duty of loyalty” or a “confidential relationship,” as do attorneys, then “[t]he existence of such a relationship between a litigant and an [appraiser] creates too great a likelihood that the [appraiser] will be incapable of rendering a fair judgment.” Donegal Ins. Co. v. Longo, 415 Pa.Super. 628, 610 A.2d 466, 468-69 (1992) (citing Bole v. Nationwide Ins. Co., 475 Pa. 187, 379 A.2d 1346, 1350 (1977) (Roberts, J., dissenting, but agreeing with majority that attorney in present employment of party cannot serve as arbitrator)); see Land v. State Farm Mut. Ins. Co., 410 Pa.Super. 579, 600 A.2d 605, 607 (1991) (holding that “indirect connection” between party and arbitrator was not objectionable, unlike attorney-client relationship); see also The Florida Bar v. Padgett, 481 So.2d 919, 919 (Fla.1986) (explaining that attorneys owe a fiduciary duty to their clients). This conclusion makes common sense.

The policy provision, which requires a “disinterested appraiser,” expresses the parties’ clear intention to restrict appraisers to people who are, in fact, disinterested. Given the duty of loyalty owed by an attorney to a client, we conclude that attorneys may not serve as their clients’ arbitrators or appraisers when “disinterested” arbitrators or appraisers are bargained for. See Tiger Fibers, LLC v. Aspen Specialty Ins. Co., 571 F.Supp.2d 712, 716 (E.D.Va.2008) (finding that under statute governing parties’ appointment of disinterested appraisers to assess insurance losses, disinterestedness of selected appraiser pertains to partiality of appraiser for or against specific parties to dispute); N. Assur. Co., Ltd., of London v. Melinsky, 237 Mich. 665, 213 N.W. 70, 71 (1927) (explaining that appraisers should be disinterested and not represent parties selecting them); Longo, 610 A.2d at 469 (determining that arbitrator’s legal representation of party, even though in matter unrelated to dispute in arbitration, gave rise to confidential relationship, which created likelihood that arbitrator would be incapable of rendering fair judgment); see also Allstate Ins. Co. v. Suarez, 833 So.2d 762, 765 (Fla.2002) folding that while appraisal may be less formal than arbitration, its proceedings should still be conducted in accordance with contract provisions); Lee, 396 So.2d at 210 (adopting principle that parties are free to bargain for “disinterested” appointees).

For these reasons, we reverse that part of the order allowing Attorney Marshall to serve as an appraiser. In all other respects, we affirm the order.

AFFIRMED in part; REVERSED in part; REMANDED.

WALLIS and LAMBERT, JJ., concur.

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

      . See § 631.67, Fla. Stat. (2011) (requiring automatic six-month stay on activation of FIGA); see also Snyder v. Douglas, 647 So.2d 275, 279 (Fla. 2d DCA 1994) (holding extension beyond statutorily mandated six-month stay is subject to discretion of trial court).

      .When an insurer becomes insolvent, "FIGA is deemed the ‘insurer' to the extent of covered claims and has the same obligations as the insolvent insurer,” except as limited by statute. Jones v. Fla. Ins. Guar. Ass’n, 908 So.2d 435, 454 (Fla.2005); see also § 631.57, Fla. Stat. (2010).

      . We have jurisdiction. See Fla. R. App. P. 9.130(3)(C)(iv).

      . In dicta, the Florida Supreme Court has observed that appraisal clauses "require an assessment of the amount of a loss. This necessarily includes determinations as to the cost of repair or replacement and whether or not the requirement for a repair or replacement was caused by a covered peril or a cause not covered ...State Farm Fire & Cas. Co. v. Licea, 685 So.2d 1285, 1288 (Fla.1996) (emphasis added): see also Gonzalez v. State Farm Fire & Cas. Co., 805 So.2d 814, 817 (Fla. 3d DCA 2000) (noting that under Licea where insurer admits there is covered loss, "the appraisers are to inspect the roof and arrive at a fair value for the [covered loss] damage, while excluding payment for the repairs required by [other causes]”).

      . FIGA also expresses concern about the outcome of the case, including having to pay the insured directly, in contravention of section 631.54(3)(c); having to pay more than the "covered losses,” under a particular version of section 631.54; having to pay attorney’s fees for which it is not liable; and so on. However, these issues are not properly before this Court because the order under review does not require any payment.

      . To the extent that this issue is normally resolved with an evidentiary hearing, neither party suggests that they ever requested a hearing below.

      . That may be because the very idea of suggesting that one’s own attorney is disinterested seems so odd.

      . "Disinterested" is defined as "[fjree from bias, prejudice, or partiality; not having a pecuniary interest $4Ca disinterested witness,” Black’s Law Dictionary 536 (9th ed. 2009), and "not having the mind or feelings engaged: not interested ... free from selfish motive or interest: unbiased,” Miriam-Webster’s Collegiate Dictionary 333 (10th ed. 2000). The latter also defines "disinterestedness” as "the quality of being objective or impartial.” Id..; see also Tiger Fibers, LLC v. Aspen Specialty Ins. Co., 571 F.Supp.2d 712, 716 (E.D.Va.2008) (defining "disinterested” as "lacking or revealing lack of interest,” "not influenced by regard to personal advantage,” "free from selfish motive," or "not biased or prejudiced”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Maren L. DeWEESE, Appellant, v. Ashton J. HAYWARD, In his Official Capacity as Mayor of the City of Pensacola, a Florida Municipal Corporation, and Richard Barker, Jr., In his Official Capacity as Chief Financial Officer of the City of Pensacola, Appellee.
    No. 1D13-6153.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2014.
    Rehearing Denied Oct. 17, 2014.

      J. Alistair McKenzie of McKenzie, Hall & De La Piedra, Pensacola, for Appellant.
    J. Nixon Daniel, III and Jack W. Lurton of Beggs & Lane, Pensacola, for Appellee.
   PER CURIAM.

AFFIRMED. See Rickman v. Whitehurst, 74 So. 205 (Fla.1917).

CLARK, WETHERELL, and MAKAR, JJ., concur.


text:
    Garrick JOHN, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-0706.
    District Court of Appeal of Florida, First District.
    Sept. 26, 2014.
    Garrick John, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Holly N. Simcox, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits.

WOLF, BENTON, and MAKAR, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Stephen J. CHESSER, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-463.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 2014.

      Stephen J. Chesser, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

Stephen Chesser appeals the denial of his motion for postconviction relief. We reverse in part.

Chesser entered open guilty pleas to nine counts of possession of photographs depicting sexual conduct by a child with intent to promote, § 827.071(4), Fla. Stat. (2005), and to sixty counts of possession of child pornography, § 827.071(5). The court sentenced him to concurrent terms of fifteen years’ imprisonment on counts one through five, concurrent terms of fifteen years’ imprisonment on counts six through nine, and concurrent terms of five years’ imprisonment on counts ten through sixty. The three blocks of concurrent terms ran consecutively to each other, for a total sentence of thirty-five years’ imprisonment. Counts one through nine were the charges of possession with intent to promote, § 827.071(4).

Chesser appealed his convictions, and this court affirmed them. Chesser v. State, 966 So.2d 393 (Fla. 2d DCA 2007) (table decision). He then filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, alleging ineffective assistance of counsel. The postconviction court granted an evidentia-ry hearing on each of the three grounds raised. After the hearing the court denied Chesser’s motion in its entirety. We affirm without further comment the court’s ruling that counsel was not ineffective in failing to seek a competency examination of Chesser before he entered his pleas. But we reverse the denials of Chesser’s other two grounds, which alleged ineffective assistance concerning his convictions and sentences for possession with intent to promote.

Section 827.071(4) provides:

It is unlawful for any person to possess with the intent to promote any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, includes any sexual conduct by a child. The possession of three or more copies of such photograph, motion picture, representation, or presentation is prima facie evidence of an intent to promote. Whoever violates this subsection is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The Fourth District, in State v. Parrella, 736 So.2d 94 (Fla. 4th DCA 1999), analyzed the language of the above-quoted subsection to determine “the allowable units of prosecution.” Id. at 95-96. Parrella had shown undercover officers portions of four different videotapes that depicted children involved in sexual acts. The State had charged four counts of violation of the statute, but the circuit court had dismissed three of them. The district court approved the circuit court’s decision.

Examining the language of the subsection to determine the legislative intent, the Parrella court focused on the legislature’s use of the phrase “any photograph” as opposed to “a photograph.” When the legislature has employed the word “a,” “courts have discerned a legislative intent that each item of contraband be the basis for a separate unit of prosecution.” But if, instead, the word “any” is used, as in subsection 827.071(4), “courts have discerned a legislative intent that all of the contraband be viewed in the episodic sense with only a single unit of prosecution intended.” Id. at 95. Thus the court held that the four different videotapes Parrella showed the officers could support only one conviction under section 827.071(4).

In Wade v. State, 751 So.2d 669 (Fla. 2d DCA 2000), this court was presented with the same issue raised in Parrella and reached the same result. Wade was arrested when he accepted delivery of three child pornography videotapes he had purchased from undercover agents. He consented to a search of his rooms and law enforcement discovered three or more printed reproductions of three photographs. Wade was charged with, and a jury convicted him of, three counts of possession with intent to distribute. Wade argued that Parrella supported a conviction for only one section 827.071(4) crime for all the images discovered in the search of his rooms.

The Wade court agreed. It held that the multiple copies of the photographs provided evidence of Wade’s intent to promote the photos. But because they were all discovered in one search, there was only one episode of promotion, and therefore only one conviction for a section 827.071(4) crime was permissible. Id. at 671 (citing Parrella). See also Crosby v. State, 757 So.2d 584 (Fla. 2d DCA 2000) (contrasting the language of section 827.071(5) which made it unlawful to possess a pornographic photograph of a child and therefore permitted separate prosecutions for each photograph discovered in a single search with the language in section 827.071(4) making it unlawful to possess any such photograph with intent to promote); Hudson v. State, 761 So.2d 1161 (Fla. 2d DCA 2000) (relying on Wade and reversing forty-eight convictions for possession of child pornography with intent to promote and remanding for resentencing for one conviction).

The testimony at the evidentiary hearing on Chesser’s rule 3.850 motion established that law enforcement obtained all of the images supporting the nine charges of possession of child pornography with intent to promote in one search of a shed on his parents’ property. Chesser’s counsel testified at the hearing and the court found that “he did not believe the sentences on the nine counts of possession of photographs depicting sexual conduct by a child with intent to promote were illegal.” The postconviction court ruled “based on the fact that there were nine different images and different dates for each of those images, [Chesser] could be legally sentenced on all nine counts.” Its ruling was legally incorrect under the holdings of Parrella, Wade, and Hudson. The dates that the images were created was not determinative; if law enforcement discovered all the images in one search, they supported only one conviction under section 827.071(4).

Chesser’s counsel was unaware that under the facts of the case his client legally could be convicted of only one count of possession of child pornography with intent to promote. As a result, he failed to file a motion to dismiss the other eight charges. This constituted deficient performance that prejudiced his client. See Sochor v. State, 883 So.2d 766, 771 (Fla.2004) (citing Strickland v. Washington 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). We reverse the postconviction court’s denial of grounds II and III in Chesser’s rule 3.850 motion.

When Chesser was sentenced, the court imposed the maximum penalty allowed by law, fifteen years’ imprisonment, on each count. See § 827.071(4); 775.082(3)(c).

We vacate the convictions for possession with intent to promote charged in counts two through nine. We remand with directions to dismiss those counts, to correct Chesser’s written sentence to reflect only one conviction for possession with intent to promote, and to strike the sentence imposed for counts six through nine.

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

DAVIS, C.J., and MORRIS, J„ Concur.

      . We recognize that this court’s recitation of the facts in the Wade opinion is somewhat unclear concerning whether the reproductions were of the same image or were of different images. Any confusion is, however. dispelled by the court's statement that “[h]ere, the multiple copies of three different photos provide prima facie evidence that Wade intended to promote these photos.” 751 So.2d at 671 (emphasis supplied).


author: MORRIS, Judge.

text:
    Vladimir CHERENFANT, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2887.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 2014.
    Howard L. Dimmig, II, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Vladimir Cherenfant appeals the revocation of his sex offender probation for the offense of lewd and lascivious battery. We affirm the revocation of his probation without comment but remand for the trial court to strike the violation of condition fourteen from the order of revocation because the trial court orally found that this violation had not been proven. See Senat v. State, 62 So.3d 1236 (Fla. 2d DCA 2011).

Affirmed; remanded with directions.

ALTENBERND and KHOUZAM, JJ., Concur.


text:
    Michael PERSAUD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4249.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2014.
    Michael Persaud, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

THOMAS, ROBERTS, and ROWE, JJ., concur.


text:
    Curtis Lee KING, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4153.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2014.
    Curtis Lee King, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

THOMAS, ROBERTS, and ROWE, JJ., concur.


text:
    Steven Kyle CREWS, Ens Legis, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3502.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2014.
    Steven Kyle Crews, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R. App. P. 9.141(c)(5)(A).

THOMAS, ROBERTS, and ROWE, JJ., concur.


text:
    Steven Kyle CREWS, Ens Legis, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3500.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2014.
    Steven Kyle Crews, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R. App. P. 9.141(c)(5)(A).

THOMAS, ROBERTS, and ROWE, JJ., concur.


author: VILLANTI, Judge.

text:
    Ricardo CORONADO, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-6123.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 2014.

      Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Ricardo Coronado appeals the withhold of adjudication and the sentence imposed after he pleaded no contest to charges of possession of methamphetamine and possession of drug paraphernalia while reserving his right to appeal the denial of his dispositive motion to suppress. Because the warrant affidavit was insufficient to establish probable cause to search the residence where the drugs were found, we reverse and remand for discharge.

On August 15, 2013, Deputies Christopher Maffei and Ryan Daniels of the Hills-borough County Sheriffs Office submitted a sworn application for a search warrant. The affidavit initially outlined the experience both officers had in investigating narcotics crimes. It then stated that both officers had responded to an address in Hillsborough County to serve an outstanding warrant on one Eddie Rodriguez. The affidavit did not indicate the nature of the offenses that supported the warrant for Rodriguez’s arrest.

Upon arriving at the address in question, the officers saw a grey Ford Ranger pickup truck parked on the premises. When they ran the license plate number affixed to the truck to see whether the vehicle belonged to Rodriguez, they discovered that the plate was actually registered to a 1997 blue Audi that had been reported stolen in Hillsborough County sometime in 2013.

The officers made contact with the owner of the house, Leovijilda Coronado. After they determined that Rodriguez was not on the property, they asked about the pickup truck. Mrs. Coronado told the officers that the truck belonged to her son, Ricardo Coronado, and she summoned him from the house to speak with the officers. Mr. Coronado told the officers that he had found the license plate in the ditch next to the house about a week earlier and that he assumed it was abandoned, so he took it. As Mr. Coronado was talking to the officers, they noticed numerous vehicles and vehicle parts in the backyard behind the residence. In response to further questioning, Mr. Coronado told the officers that he scrapped vehicles for their parts so that he could repair vehicles for Mends.

The officers requested permission to search the backyard for any vehicle parts that might belong to the stolen Audi, and Mr. Coronado agreed. As Mr. Coronado was walking the officers through the backyard, Deputy Maffei claimed he detected the odor of marijuana emanating from a small shed in the yard. When the officers asked Mr. Coronado if they could search the shed, he indicated that they would need to seek permission from his mother. The officers then asked Mrs. Coronado for permission to search the shed, but she refused permission.

Based on these events, Deputy Maffei drafted an affidavit that requested authority to search not only the shed, backyard, and vehicles on the property, but also the Coronado residence. Despite containing no facts other than those noted above, the affidavit alleged that the officers had reason to believe that the residence was “being used in violation of the Florida Comprehensive Drug Abuse Prevention Act and/or Theft statute 812.014.” The magistrate authorized the wárrant on August 15, 2013, and law enforcement executed the warrant the same day. No marijuana was found in the shed or anywhere else on the property; no parts belonging to the stolen Audi were found; and no other stolen car parts were found either. However, the search of the residence revealed a small quantity of methamphetamine.

After being charged with possession of the methamphetamine, Mr. Coronado filed a motion to suppress. The trial court held an evidentiary hearing on the motion, at which both Deputy Maffei and Deputy Daniels testified. Deputy Maffei testified that the shed from which the odor of marijuana was emanating was a small wooden shed that was about thirty feet away from the house. He also clarified that it was the odor of burnt marijuana that he had detected. When Deputy Maffei asked Mr. Coronado about the odor, Mr. Coronado responded that he had no idea why anyone would smell marijuana coming from the shed. However, Mr. Coronado refused to permit the officers to look in the shed, saying that the property belonged to his mother. Mrs. Coronado subsequently refused the officers permission to look in the shed.

At that point, according to Deputy Maf-fei, he decided to get a warrant based on the odor emanating from the shed and also “partly based on the fact that a stolen vehicle part was located on the property and strewed [sic] about the property there were numerous other vehicles, parts.” He included the residence in the affidavit because “[i]n our experience, when we write search warrants for homes and trailers such as this, it’s not uncommon for us to locate other items of evidentiary value in adjacent structures, like sheds, vehicles and what have you.” And in this case, “[sjeeing that the residence was so close to the structure where we got the odor of marijuana, we have reason to believe there may be also paraphernalia or items of evidentiary value in the structure of the home.”

Deputy Daniels also testified at the motion hearing. He confirmed that he smelled the odor of marijuana coming from a shed that was about thirty feet behind the house. Deputy Daniels also clarified that when Deputy Maffei left the property to obtain the search warrant, Deputy Daniels remained at the property to ensure that no one went into or out of the shed. The fact that Deputy Daniels was waiting at the property while the affidavit was prepared and reviewed was not contained in the affidavit.

In arguing that the search warrant was valid, the State asserted that it would not be reasonable to limit the officers to just the location where they actually smelled the marijuana. Instead, the State argued that the odor of marijuana coming from the shed gave the officers probable cause “to search everything on that property to look for anything he thought would come back to any criminal activity going on.” Mr. Coronado argued that “smelling the odor of marijuana in a shed in somebody’s yard does not give you the right to search the residence. It does not extend PC to your home.” The trial court denied the motion to suppress with no explanation, either in its oral or written ruling.

On appeal from a ruling denying the suppression of evidence seized pursuant to a search warrant, “[t]his court’s review consists of ‘a legal examination of the evidence in the affidavit to determine whether it establishes probable cause— with a presumption of correctness given to the trial court, which in turn gave great deference to the magistrate.’ ” Barrentine v. State, 107 So.3d 483, 484 (Fla. 2d DCA 2013) (quoting Pilieci v. State, 991 So.2d 883, 894 (Fla. 2d DCA 2008)). “In determining whether probable cause exists to justify a search, the trial court must make a judgment, based on the totality of the circumstances, as to whether from the information contained in the warrant there is a reasonable probability that contraband will be found at a particular place and time.” Pagan v. State, 830 So.2d 792, 806 (Fla.2002) (citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Hence, the warrant affidavit must establish via case-specific facts a • nexus between the place to be searched and evidence of probable criminality. See Burnett v. State, 848 So.2d 1170, 1173 (Fla. 2d DCA 2003). Mere speculation that some evidence of criminal activity might be found if a broad enough search is permitted is insufficient to support the issuance of a warrant. See, e.g., Dyess v. State, 988 So.2d 146, 149 (Fla. 1st DCA 2008).

Here the question for this court is whether the facts set forth in the search warrant affidavit establish a reasonable probability of finding narcotics and/or stolen vehicle parts in the Coronado residence. The answer is clearly no. The facts set forth in the affidavit did establish probable cause to obtain a warrant to search the shed for evidence of narcotics based on the officers’ having smelled the odor of marijuana emanating from the shed. Cf. Smith v. State, 904 So.2d 534, 537 (Fla. 1st DCA 2005) (noting that, like the “plain view” doctrine, the “plain smell” doctrine provides probable cause to search the location of the smell). The affidavit also arguably established probable cause to search the yard and the vehicles in it for evidence of theft of car parts based on the “stolen” license plate and the various car parts strewn throughout the yard. However, the affidavit contained absolutely no facts that would establish probable cause to believe that the Coronado residence itself contained any evidence of illegal activity, and mere proximity, standing alone, cannot create probable cause where none otherwise exists. Thus the affidavit was insufficient on its face to support the issuance of a search warrant for the residence.

In this regard, this case is quite similar to that of Thompson v. State, 548 So.2d 806 (Fla. 1st DCA 1989). There, officers received a tip from an informant that Thompson was cultivating marijuana in a greenhouse attached to the side of his trailer, home. Id. at 807. Another informant likewise reported that he had seen marijuana plants growing in the greenhouse. Id. This second informant also reported that he had seen Thompson removing “something” from the greenhouse and taking it into the trailer. Id. Based on these reports, officers obtained a search warrant for both the greenhouse and the trailer. Id. Thompson moved to suppress the items obtained from the trailer and greenhouse pursuant to the search warrant, but the trial court denied the motion. Id. On appeal, however, the First District reversed in part, noting that while the affidavit contained a sufficient factual predicate to support the search of the greenhouse, it did not contain a sufficient factual predicate to support the search of the trailer because “an assertion that marijuana has been observed growing immediately outside a dwelling is not sufficient in itself to support a warrant for a search of the dwelling.” Id. at 808. The court also noted that the assertion that “something” had been removed from the greenhouse and taken into the trailer, without a specific indication of what was removed and taken inside, was also insufficient to support the warrant for the search of the trailer. M; see also Howard v. State, 483 So.2d 844, 846 (Fla. 1st DCA 1986) (holding that observation of marijuana growing in the yard of a residence was insufficient to support a warrant for a search of the residence itself).

Here, as in Thompson and Howard, the detection of the odor of marijuana coming from the shed on the Coronado property was equivalent to an observation of contraband and was sufficient to support the search warrant as it pertained to the shed. Notably, Mr. Coronado does not challenge the sufficiency of the warrant as it relates to the search of the shed. However, the detection of the odor coming from the shed, without more, was insufficient to support a search warrant for the residence itself. The affidavit at issue contained not a single fact that would even arguably support a conclusion that any evidence of narcotics violations or stolen property would be found within the Coronado residence. Without case-specific facts providing a nexus between the odor in the shed and the residence itself, the warrant was invalid as to the residence.

In support of the trial court’s ruling, the State argues that the good faith exception to the warrant requirement applies to these facts. The good faith exception permits the use of evidence seized pursuant to a warrant unsupported by probable cause “when a police officer has acted in an objectively reasonable manner, in objective good faith, and as a reasonably well-trained officer would act in seeking the warrant from a detached and neutral magistrate and thus has reasonably relied upon the warrant in executing a search within the warrant’s terms and scope.” Pilieci, 991 So.2d at 896. However, the good faith exception does not apply when “the officer has acted dishonestly, recklessly, or under circumstances in which an objectively reasonable officer would have known the affidavit or the existing circumstances were insufficient to establish probable cause for the search.” Id.-, see also Gonzalez v. State, 38 So.3d 226, 230 (Fla. 2d DCA 2010); Garcia v. State, 872 So.2d 326, 330 (Fla. 2d DCA 2004) (holding that good faith exception did not apply when the search warrant affidavit failed to establish a nexus between the objects of the search and the residence to be searched). Moreover, the good faith exception does not apply to a search warrant for a residence when “[t]he supporting affidavit contains absolutely no allegation in regard to any infraction of the law occurring inside the home.” Howard, 483 So.2d at 847.

Here, an objectively reasonable officer would have known that the search warrant affidavit, which contained not a single allegation to support a conclusion that narcotics, stolen items, or other evidence of criminal activity would be found in the Coronado residence, was insufficient to establish probable cause for a search of that residence. Therefore, the good faith exception does not apply, the motion to suppress should have been granted, and the trial court erred in denying it. Hence, we reverse and remand for discharge.

Reversed and remanded for discharge.

SILBERMAN and CRENSHAW, JJ., Concur.


text:
    WINTER HAVEN HOSPITAL, INC., a Florida corporation, Appellant, v. Brandy K. LILES, Appellee.
    No. 2D13-807.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 2014.

      Susan W. Fox of Fox & Loquasto, P.A., Orlando; G. Bruce Hill and Thomas Schieffelin of Hill, Adams, Hall & Schieffe-lin, P.A., Winter Park; and Daniel A. Martinez and Inguna Varslavane-Callahan of Martinez Denbo, LLC, St. Petersburg, for Appellant.
    Joel D. Eaton of Podhurst Orseck, P.A., Miami; and Weldon Earl Brennan of Brennan, Holden & Kavouklis, P.A., Tampa, for Appellee.
   MORRIS, Judge.

Winter Haven Hospital, Inc. (the Hospital), appeals a final judgment awarding Brandy Liles $500,000 in compensatory damages against the Hospital and $1,000,000 in punitive damages against the Hospital. We reverse the final judgment and remand for a new trial in accordance with this opinion.

I. Facts

Ms. Sutka, a forty-nine-year-old woman, was receiving treatment at the Hospital’s emergency room on March 26, 2005, for shortness of breath and abdominal pain. Early in the morning on March 27, Ms. Sutka passed away. Ms. Sutka’s daughter, Brandy Liles, requested an autopsy to determine Ms. Sutka’s cause of death. Ms. Liles signed the Hospital’s autopsy permission form, which provides as follows:

Permission is granted to the authorities of Winter Haven Hospital, Inc., to perform a postmortem examination and to retain such tissues and organs as may be deemed necessary for further study on the remains of the above named decedent. Due care will be taken on the part of the hospital authorities to avoid mutilation or disfigurement of the body.

Dr. Gordon, a partner in Ridge Pathology Consultants, performed the autopsy, but when Ms. Liles received the report, she did not agree with the cause of death as determined by Dr. Gordon. She inquired about a second autopsy at the funeral home that was handling her mother’s burial, but Ms. Liles was told that her mother’s internal organs had not been returned to the funeral home after the autopsy. Ms. Liles contacted the Hospital and learned that her mother’s organs had been incinerated.

Ms. Liles filed a complaint against the Hospital, Dr. Gordon, and Ridge Pathology, alleging separate counts of outrage against Dr. Gordon, Ridge Pathology, and the Hospital based on the disposal and incineration of Ms. Sutka’s organs without the express consent of Ms. Liles. She also alleged one count of conspiracy against Dr. Gordon, Ridge Pathology, and the Hospital and separate counts of vicarious liability against Ridge Pathology and the Hospital for the actions of Dr. Gordon. The Hospital filed a motion to dismiss, arguing that Ms. Liles had failed to comply with the medical malpractice statutes of chapter 766, Florida Statutes (2004). The trial court denied the Hospital’s motion to dismiss. The trial court subsequently granted Ms. Liles’ motion to add claims for punitive damages against Dr. Gordon, Ridge Pathology, and the Hospital.

At trial, Dr. Gordon’s video deposition was played for the jury. He had been a private practicing pathologist at the Hospital for twenty-nine years. During this time, his regular practice had been to dispose of the organs tested during the autopsy by placing them in red biohazard bags, which are later collected and incinerated. He had also worked at the University of Florida for four years, where they also disposed of organs this way. Dr. Gordon received Ms. Sutka’s medical chart and the autopsy permission form signed by Ms. Liles, and he contacted Ms. Sutka’s attending physician to discuss the case with him; Dr. Gordon did not discuss the case with Ms. Sutka’s family, and he was not aware of any specific wishes of the family. Dr. Gordon stated that the family had a right to request the return of Ms. Sutka’s organs and that he would have honored that request if he had received it. When the funeral home contacted him for Ms. Sut-ka’s organs, this was the first time in thirty-four years that a family had requested the organs. He did not intend to hurt Ms. Liles when he disposed of Ms. Sutka’s organs, and he did not believe he had done anything wrong or reckless in disposing of the organs as he had been doing for over thirty years.

Two employees of the Hospital testified regarding the Hospital’s autopsy policy, which provides that “[hjistology staff will ... call Environmental Services to meet them in the morgue to pick up organs removed during the autopsy which have been placed in red biohazard bags by the Pathologists. Environmental Services will transport the organs to the incinerator for disposal.” One of the employees testified that to her knowledge, the policy of incinerating the removed organs was not made known to families before the autopsies are conducted.

An environmental services employee of the Hospital testified that the red bioha-zard bags are collected along with the other hospital waste and incinerated on site along with the other waste. The ashes from the incinerator are then sent to a landfill.

A former nurse at the Hospital testified that she had Ms. Liles sign the autopsy consent form at the direction of the attending physician. The nurse had Ms. Liles read the form by herself and sign it; the nurse did not explain the form to Ms. Liles. The nurse had no memory of any discussion she might have had with Ms. Liles.

Ms. Liles presented the testimony of Dr. Nelson, a pathologist and chief medical examiner for Polk, Hardee, and Highlands Counties. He stated that his office always returns internal organs to the body after conducting an autopsy. He usually does not deal with consent forms for autopsies, but the form he uses informs the family that organs may be retained and disposed of and that the family may object. If the family wants to have the funeral before he is finished with the organs, the family receives the body without the organs. He also testified regarding the disposal of biomedical waste and that it “is not proper for human materials to be mixed with garbage or trash”:

Those specimens, those materials from the body, are handled differently. They are not mixed with the garbage or with the trash. They are put in separate red biohazardous waste bags, and they are incinerated by the hazardous waste hauler. They’re not taken to the landfill and dumped with the garbage pickup that you have at the curb.

He believed that the consent form used by the Hospital was deficient because it did not “spell out exactly what’s going to take place after the autopsy, with various organs and tissues.” He conceded that the consent form in this case meets the requirement of section 872.04, Florida Statutes (2004), which simply requires written consent and is the only law applicable to private autopsies. Dr. Nelson also agreed that organs that have been examined during an autopsy become biohazardous waste and that incineration of such waste is the most common practice and is necessary for public health. Dr. Nelson agreed that not all facilities put the organs back into the body. He also agreed that the Florida Association of Medical Examiners guidelines provide that retained organs are not customarily returned to the body for burial and should be treated as biomedical waste.

Dr. Nelson stated that the lack of informed consent and the way the Hospital disposed of Ms. Sutka’s organs was outrageous. But he stated that Dr. Gordon had performed the autopsy in a manner that was compliant with the applicable standard of care, and he did not believe that Dr. Gordon performed the autopsy so as to inflict emotional distress on Ms. Liles. He stated that mixing the internal remains with other trash without consent of the family is mutilation of the body, but he agreed that blood is often flushed down the sewer during embalming. Dr. Nelson believed that the attending physician is responsible for obtaining consent for an autopsy from the family; the pathologist is not involved in that process.

The funeral director who received Ms. Sutka’s body testified that Ms. Liles was upset when she found out that a second autopsy could not be performed, not because she could not give her mother a proper burial. He had received bodies from the Hospital both with and without organs, but he had never received bodies without organs from other hospitals.

Ms. Liles testified that after speaking with her mother’s attending physician, she requested an autopsy to learn why her mother died. When she signed the consent form at the nurses’ station, no one told her that her mother’s organs would not be returned to the body. If they had told her, she would not have signed the form. She did inform several people that she did not want her mother cremated. Ms. Liles had requested a second autopsy because she did not agree with Dr. Gordon’s conclusions regarding her mother’s cause of death; she believed her mother was perfectly healthy and did not die of natural causes. She was devastated when she learned that the organs had been incinerated because she could not keep her promise to her mother that her mother would not be cremated. She has not been able to find peace due to her not being able to honor her mother’s final wishes. She also testified that she became even more upset when she learned the week before trial that her mother’s organs were “in a landfill somewhere, with no telling what else garbage I’ve heard.” She said that when she goes on her lunch break and sees the garbage can marked “waste,” she cannot eat because she thinks of where her mother is. She conceded that her mother may have already been buried when she contacted the funeral home about a second autopsy. Ms. Liles admitted to being aware from the consent form that her mother’s organs could be retained for further study or research.

Ms. Liles also presented evidence that a sample autopsy consent form promulgated by the College of American Pathologists (CAP) gives the next of kin the right to object to the retention of organs and informs the next of kin that organs will be disposed of as the pathologist or hospital determines or as required by law.

The Hospital presented the testimony of Dr. Davis, a pathologist and professor at the University of Kentucky College of Medicine and a state medical examiner for Kentucky. He testified that Dr. Gordon’s handling of the organs as biohazardous materials was “Absolutely” appropriate and within accepted standards. Organs removed during an autopsy are biohazar-dous and are ultimately incinerated as medical waste. This was done at other hospitals where he has served and is the standard procedure around the country. Dr. Davis did not believe that there was anything reckless about the consent form used in this case; it is “reasonable” and “better than some [he had] seen around the country.” He had had only one family in thirty-one years request that the organs be returned to the body. He testified that the attending physician handles the autopsy issue with the family and that the pathologist plays no role in that. Dr. Davis testified that the CAP consent form is offered as a starting point and that the CAP “does not order pathologists how to do this.” The CAP consent form is not a policy of the CAP. Dr. Davis had been a member of the CAP committee that created the sample CAP consent form. Over the Hospital’s objection, Dr. Davis was questioned regarding the cremation statute and the fact that Ms. Liles had not signed a written authorization for cremation, although he believed that “cremation means the entirety of the body, with or without internal organs.”

Dr. Gordon testified that during an autopsy, organs are dissected and the field is “unavoidably tainted with mucous, bowel, blood, serum and urine and feces, or traces of it.” The autopsy creates a nonsterile field. After he has completed the dissection and sampling of the organs, they are placed into red biohazard bags. The bags are placed in coolers and later picked up for incineration. Upon his examination of

Ms. Sutka, he found pneumonia, bleeding in the lungs, acute and chronic kidney infection, chronic tobacco use, enlarged heart and liver, and sleep apnea. Ms. Sutka was 5T" tall and weighed 380 pounds. He listed the official cause of death as “respiratory arrest, secondary to desquamative interstitial pnuemonia, with pulmonary hemorrhage, possibly complicated by sleep apnea and morbid obesity, DIP, secondary to smoking.” Dr. Gordon admitted that after this incident, he now places all organs in a red biohazard bag and places the bags with the body for shipment to the funeral home, although Dr. Gordon believes that the safest practice is to dispose of the biohazardous waste in the autopsy room so as to avoid the handling by multiple people of materials that are potentially infected. He believes that an inherent part of the autopsy is the incineration of internal organs as biohazar-dous waste and that even organs that are retained for further study must be disposed of eventually.

Before Ms. Sutka’s case, Dr. Gordon had not had a family request the examined organs in all of the years he had been a practicing pathologist. He believed that his disposal of the organs was “appropriate and within the standard of care” and was in accordance with the way he was taught at the University of Florida.

Dr. Gordon and Ridge Pathology Consultants presented the testimony of Dr. Strickland, a pathologist at Bay Pines VA Healthcare System and an assistant clinical professor of pathology at the University of South Florida College of Medicine. Dr. Strickland believed that Dr. Gordon’s autopsy of Ms. Sutka and his disposal of the organs for incineration met the applicable standard of care and was not reckless or outrageous. Dr. Gordon’s handling of the organs was consistent with the way Dr. Strickland would practice. Dr. Strickland had never had a family member inquire about the organs removed as part of the autopsy process. In his experience in practice and in teaching hospitals, the organs are retained and disposed of as medical waste by incineration, which is the most common and cost-effective way of disposal. He believed that this is in accordance with Florida law, which ensures that the waste is not a danger to the public. The Hospital’s consent form contains all the required elements and is consistent with other forms he has seen; Dr. Strickland believed that disposal of the organs is implicit in the form. Dr. Strickland admitted that the consent form he uses gives the next of kin the right to object to retention of organs. Over the Hospital’s objection, Dr. Strickland was also asked about the cremation statute and the fact that written authorization for cremation is required.

At the close of the evidence, the Hospital argued motions for directed verdicts on the issues of outrage, punitive damages, and the vicarious liability of the Hospital for Dr. Gordon’s actions. The trial court denied the Hospital’s motions.

The jury found that Dr. Gordon, Ridge Pathology, and the Hospital engaged in “extreme and outrageous conduct [that] was a legal cause of severe emotional distress” to Ms. Liles (the tort of outrage) but found in favor of Dr. Gordon, Ridge Pathology, and the Hospital on the conspiracy count. The jury also found that the Hospital owed a duty to Ms. Liles for the acts of Dr. Gordon and that Dr. Gordon was acting as an agent of the Hospital and in the scope of Dr. Gordon’s authority. The jury awarded compensatory damages for past severe emotional distress in the amount of $1,000,000. The jury also found that punitive damages were warranted against the Hospital in the amount of $1,000,000 and against Ridge Pathology in the amount of $90,000 but that punitive damages were not warranted against Dr. Gordon.

After the jury verdict, Ms. Liles settled with Dr. Gordon and Ridge Pathology and voluntarily dismissed her claims against Dr. Gordon and Ridge Pathology with prejudice. The trial court entered a final judgment against the Hospital and in favor of Ms. Liles for $500,000 in compensatory damages and for $1,000,000 in punitive damages. The Hospital now appeals.

II. Analysis

A. Medical malpractice

The Hospital first argues that the trial court erred in failing to treat this case as a medical malpractice case subject to the provisions of chapter 766. We disagree.

Section 766.106(l)(a), Florida Statutes (2004), defines a “[cjlaim for medical negligence” or “claim for medical malpractice” as “a claim, arising out of the rendering of, or the failure to render, medical care or services.” In addition, the medical negligence or malpractice must have resulted in personal injury or death to the claimant. § 766.104(1) (“No action shall be filed for personal injury or wrongful death arising out of medical negligence ... unless ... there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.”). The autopsy performed by Dr. Gordon did not constitute the rendering of medical care or services. And while an autopsy requires the exercise of medical skill and judgment, Ms. Liles’ claim is based on the disposal of her mother’s organs, which does not require medical skill and judgment. See Bell v. Indian River Mem’l Hosp., 778 So.2d 1030, 1034 (Fla. 4th DCA 2001) (holding that parents’ claims of outrage and negligent handling of a body were not subject to the medical malpractice statutes because “hospital personnel did not engage in any medical skill or judgment in the disposition of the child’s remains”); Liles v. P.I.A. Medfield, Inc., 681 So.2d 711, 712 (Fla. 2d DCA 1995) (holding that plaintiffs claim that medical providers did not comply with Baker Act was not subject to medical malpractice statutes; “[ajlthough a medical diagnosis is necessary in order to involuntarily commit a patient, the process of complying with the statute does not require medical skill or judgment”). Furthermore, Ms. Liles, who was not a patient, seeks compensation for damages she suffered as a result of the incineration of her mother’s organs, not for any injury or death suffered by her mother, the patient. See Reeves v. N. Broward Hosp. Dist., 821 So.2d 319, 322 (Fla. 4th DCA 2002) (“[N]ot every alleged wrongful act by a healthcare provider, or its employee, amounts to medical malpractice. The alleged wrongful act must be directly related to the improper application of medical services to the patient and the use of professional judgment or skill. It is undisputed that [plaintiff] received no medical services from the Hospital that required the use of professional judgment or skill.” (citation omitted)). For these reasons, the trial court properly determined that this is not a case of medical malpractice subject to the requirements of chapter 766.

B. Cremation instruction

The Hospital further claims that the trial court erred in instructing the jury, over the Hospital’s objection, that “[a] cremation may not be performed until a legally authorized person gives written authorization for such cremation.” This sentence comes directly from section 470.0255, Florida Statutes (2004), which addresses the arrangement, authorization, and time requirements for a cremation to be performed. The Hospital claims that the cremation statutes do not apply because organs removed from a body during an autopsy are biomedical waste excluded from the cremation statutes. The Hospital argues that the cremation procedures are meant for funeral homes and crematoriums and do not apply to the incineration of internal organs in a medical setting.

Cremation is defined as “any mechanical or thermal process whereby a dead human body is reduced to ashes and bone fragments. Cremation also includes any other mechanical or thermal process whereby human remains are pulverized, burned, re-cremated, or otherwise further reduced in size or quantity.” § 470.002(24). Human remains “means the body of a deceased human person for which a death certificate ... is required ... and includes the body in any stage of decomposition and the residue of cremated human bodies.” § 470.002(23).

Dr. Gordon testified that Ms. Sutka’s organs were disposed of and incinerated as biomedical or biohazardous waste. “Biomedical waste” is “any solid or liquid waste which may present a threat of infection to humans.” § 381.0098(2)(a), Fla. Stat. (2004). It includes “nonliquid human tissue and body parts” but “does not include human remains that are disposed of by persons licensed under chapter 470,” such as funeral directors, embalmers, and direct disposers. § 381.0098(2)(a). Biomedical waste must be handled, treated, and disposed of according to the law set forth in section 381.0098 and the regulations set forth by the Departments of Health and Environmental Protection. § 381.0098(1).

We agree that the trial court erred in applying the law regarding cremation because Ms. Sutka’s organs do not constitute a “dead human body” as set forth in 470.002(24) or “human remains” as defined in section 470.002(23). As Dr. Daws aptly explained, the term cremation applies to “the entirety of the body, -with or without internal organs.” And the testimony established that after the organs were dissected and examined during the autopsy, they constituted biomedical waste. The Hospital was harmed by the incorrect cremation instruction because the facts were undisputed that Ms. Liles had not given written consent for cremation and because Ms. Liles was permitted to question key witnesses regarding the consent required for cremation and the lack of such consent in this case.

C. Tort of outrage

The Hospital further argues that Ms. Liles failed to demonstrate the elements of the tort of outrage (intentional infliction of emotional distress).

The elements of the tort of [outrage] are:

(1) The -wrongdoer’s conduct was intentional or reckless, that is, he intended his behavior when he knew or should have known that emotional distress would likely result;

(2) the conduct was outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community;

(3) the conduct caused emotion[al] distress; and

(4) the emotional distress was severe. Gallogly v. Rodriguez, 970 So.2d 470, 471 (Fla. 2d DCA 2007) (second alteration in the original) (citing LeGrande v. Emmanuel, 889 So.2d 991, 994-95 (Fla. 3d DCA 2004)). “Conduct claimed to cause severe emotional distress must be ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.’ ” Matsumoto v. Am. Burial & Cremation Serve., Inc., 949 So.2d 1054, 1056 (Fla. 2d DCA 2006) (quoting Ponton v. Scarfme, 468 So.2d 1009, 1011 (Fla. 2d DCA 1985)). “[T]he conduct must be evaluated on an objective basis to determine whether it is ‘atrocious[ ] and utterly intolerable in a civilized community.’ That determination is a question of law.” Id. (quoting Ponton, 468 So.2d at 1011) (citation omitted). In considering whether the trial court should have granted a directed verdict on this issue, we “‘must evaluate the testimony in the light most favorable to the nonmoving party and every reasonable inference deduced from the evidence must be indulged in favor [of] the nonmov-ing party.’ ” GEICO Gen. Ins. Co. v. Hoy, 136 So.3d 647, 651 (Fla. 2d DCA 2013) (quoting Sims v. Cristinzio, 898 So.2d 1004,1005 (Fla. 2d DCA 2005)).

The jury found that both Dr. Gordon and the Hospital had engaged in “extreme and outrageous conduct [that] was the legal cause of severe emotional distress to” Ms. Liles. The jury also found that the Hospital owed a nondelegable duty for the acts of Dr. Gordon and that Dr. Gordon was acting as an agent of the Hospital and within the scope of Dr. Gordon’s authority. And Ms. Liles presented evidence regarding both Dr. Gordon’s conduct and the Hospital’s conduct before and after Dr. Gordon’s involvement. Therefore, we must consider whether Ms. Liles presented sufficient evidence to support a finding of outrage against Dr. Gordon (for which the jury found the Hospital responsible) and whether she presented sufficient evidence to support a finding of outrage against the Hospital for the Hospital’s own actions.

First, we conclude that there was no basis to support a finding of outrage against the Hospital for the actions of Dr. Gordon. Dr. Gordon received the autopsy permission form and medical chart but never spoke to Ms. Liles and was not aware of her wishes. Dr. Gordon had never had a family ask for the return of the organs; thus, he should not have known that Ms. Liles wished for her mother’s organs to be returned. Dr. Gordon, Dr. Davis, and Dr. Strickland all testified that Dr. Gordon acted appropriately and within the acceptable standard of care in treating the organs as biomedical waste and not returning the organs to the body, as he had been doing for over thirty years. Even Ms. Liles’ expert, Dr. Nelson, testified that not all facilities return the organs to the bodies. Dr. Gordon testified that he did not mean to hurt Ms. Liles when he disposed of her mother’s organs. And Dr. Nelson, Ms. Liles’ expert, even testified that Dr. Gordon acted appropriately and that Dr. Nelson did not believe that Dr. Gordon intended to inflict emotional distress on Ms. Liles. Therefore, there was no evidence that Dr. Gordon’s actions were outrageous and reckless or intentional.

However, we cannot conclude that there was no evidence to support the jury’s finding of outrage against the Hospital for its actions independent of Dr. Gordon. Ms. Liles testified that she specifically informed the staff at the Hospital that she did not want her mother cremated, and the evidence was undisputed that the Hospital’s policy was to incinerate organs that have been placed in red bioha-zard bags after an autopsy. The consent form failed to inform Ms. Liles that her mother’s organs would be incinerated or how they would be incinerated. While cremation and incineration are treated differently under the law, Ms. Liles testified that she believes that her mother’s organs were cremated against her mother’s wishes. The environmental services employee of the Hospital testified that the biomedical waste was incinerated in the same incinerator with the Hospital’s other trash. Dr. Nelson testified that this was outrageous conduct, and even Dr. Gordon testified that “[y]ou don’t mix biohazar-dous material with non-biohazardous garbage” because it would be wrong and probably against the law. Ms. Liles specifically testified that she was upset by the fact that her mother’s organs had been incinerated and that they had been mixed with trash. In light of this evidence regarding the Hospital’s conduct, we cannot say that the trial court erred in submitting this limited issue to the jury. See Hoy, 136 So.3d at 651 (“ ‘If there are conflicts in the evidence or different reasonable inferences that may be drawn from the evidence, the issue is factual and should be submitted to the jury.’” (quoting Sims, 898 So.2d at 1005)); Smith v. Telophase Nat’l Cremation Soc’y, Inc., 471 So.2d 163, 166 (Fla. 2d DCA 1985) (affirming denial of crematorium’s motion for directed verdict in case where jury found that crematorium committed tort of intentional infliction of emotional distress when it gave deceased’s widow another person’s ashes and scattered deceased’s ashes at sea against his wishes; “it [is] within the province of the jury to find that the facts, and the proper inferences from the facts, establish that [crematorium’s] conduct was extreme and outrageous”); see also Williams v. City of Minneola, 575 So.2d 683, 691 (Fla. 5th DCA 1991) (recognizing that “our society ... shows a particular solicitude for the emotional vulnerability of survivors regarding improper behavior toward” their dead loved one and that in such cases, “behavior which in other circumstances might be merely insulting, frivolous, or careless becomes indecent, outrageous[,] and intolerable”).

D. Punitive damages

The Hospital argues that the award of punitive damages against the Hospital cannot stand based on the errors discussed above. We agree. But we note that Ms. Liles may be able to prove a claim for punitive damages on retrial for the Hospital’s actions independent of Dr. Gordon. See § 768.72(2)(b), Fla. Stat. (2004); Chrysler Corp. v. Wolmer, 499 So.2d 823, 825 (Fla.1986).

III. Conclusion

The trial court should have entered a directed verdict in favor of the Hospital on the issue of whether the Hospital was liable for the actions of Dr. Gordon on the tort of outrage. And the trial court erred in instructing the jury on the cremation statute, and this erroneous instruction was harmful to the Hospital. Accordingly, we reverse the final judgment and remand for a new trial on Ms. Liles’ claims for outrage and punitive damages against the Hospital for the Hospital’s actions independent of Dr. Gordon.

Reversed and remanded.

DAVIS, C.J., and CASANUEVA, J., Concur.

      . Section 470.0255 was renumbered to section 497.607 effective October 1, 2005. Ch. 2004-301, § 132, at 2089, Laws of Fla. Chapter 470 addressed funeral directing, embalming, and direct disposition, and these services are now governed by chapter 497.

      . Section 470.002 was repealed effective October 1, 2005, ch.2004-301, § 157, at 2103, Laws of Fla. (effective Oct. 1, 2005), and these terms are now defined in section 497.005.

      . Section 381.0098(2)(a) was amended to refer to chapter 497. Ch.2004-301, § 137, at 2095, Laws of Fla. (effective Oct. 1, 2005).

      . Biomedical waste must be treated “by steam, incineration, or an [approved] altema-tive process” by the Department of Health prior to disposal, and "[¡Incineration of biomedical waste shall be achieved in a biological waste incinerator permitted by the Department of Environmental Protection.” Fla. Admin. Code R. 64E-16.007(1), (3).

      .We note that the legislature added a list of the licenses that may be issued under chapter 497. See § 497.141, Fla. Stat. (2005); ch.2004-301, § 11, at 1957-59, Laws of Fla. (effective Oct. 1, 2005). The procedures for cremations apply to "any person licensed pursuant to this chapter." § 470.0255, Fla. Stat. (2004); § 497.607, Fla. Stat. (2005). Hospitals or pathologists performing autopsies are not included in the list of chapter 497 licenses.

      . We note that the jury’s verdict did not specify which damages were attributable to Dr. Gordon and which damages were attributable to the Hospital. The jury awarded $1,000,000 in total compensatory damages to Ms. Liles, after finding all three defendants had committed the tort of outrage, but after Ms. Liles settled with Dr. Gordon and Ridge Pathology, the trial court entered the final judgment awarding Ms. Liles $500,000 in compensatory damages against the Hospital. Of this $500,000 in compensatory damages, it is not clear what amount was based on the Hospital’s liability for Dr. Gordon’s actions or what amount was based on the Hospital’s own conduct.


author: LaROSE, Judge.

text:
    PALMETTO SURETY CORPORATION, Appellant, v. STATE of Florida & Paula S. O’Neil, Pasco County Clerk of Court, Appellees.
    No. 2D13-6095.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 2014.
    Lisa H. Colón of Law Office of Lisa H. Colón, P.A., Miami; and Bruce S. Reich of Bruce S. Reich, P.A., Miami Beach, for Appellant.
    Clint Edge Roberson of McClain, Alfonso & Meeker, P.A., Dade City, for Appel-lees.
   LaROSE, Judge.

Palmetto Surety Corporation appeals the trial court’s final order denying its application for remission of bond estrea-ture. See §§ 903.26, .28, Fla. Stat. (2013). We have jurisdiction, see Fla. R. App. P. 9.030(b)(1)(A), and affirm.

Palmetto posted a $10,000 appearance bond for a defendant held for felony petit theft. The. defendant failed to appear in court as required. An arrest warrant issued and the bond estreated. Several days later, the Clerk timely issued a certificate of bond forfeiture. § 903.26(2)(a), Fla. Stat. On the day that the Clerk issued the notice of forfeiture to Palmetto, the defendant’s dead body was found in Marion County.

Palmetto moved to set aside the forfeiture pursuant to section 903.28(2), contending that it had maintained routine and repeated supervisory contacts with the defendant and his family members to ensure the defendant’s court appearance. Palmetto also asserted that it diligently sought the defendant’s location and, on the same date as the notice of forfeiture issued, learned the defendant was dead.

The Clerk opposed Palmetto’s motion, relying on State v. Sunshine State Bail Bonds, Inc., 967 So.2d 1084 (Fla. 2d DCA 2007) (holding that surety was not entitled to remission or excused of its obligation to take precautionary action to prevent defendant from leaving jurisdiction; doctrine of impossibility of performance did not apply to the circumstances presented), and State ex rel. Gardner v. Allstar Bail Bonds, 983 So.2d 1218 (Fla. 5th DCA 2008) (holding that doctrine of impossibility of performance did not apply so as to entitle surety to partial remission of forfeited bond). The trial court agreed with the Clerk.

In pertinent part, section 903.28(2) states that:

(2) If the defendant surrenders or is apprehended within 90 days after forfeiture, the court, on motion at a hearing upon notice having been given to the clerk of the circuit court and the state attorney as required in subsection (8), shall direct remission of up to, but not more than, 100 percent of a forfeiture if the surety apprehended and surrendered the defendant or if the apprehension or surrender of the defendant was substantially procured or caused by the surety, or the surety has substantially attempted to procure or cause the apprehension or surrender of the defendant, and the delay has not thwarted the proper prosecution of the defendant.

We review the trial court’s order for an abuse of discretion. See Accredited Sur. & Cas. Co., Inc. v. Putnam Cnty., Fla., 528 So.2d 430, 431 (Fla. 5th DCA 1988).

Palmetto contended that it substantially attempted to procure or cause the apprehension or surrender of the defendant. See Conti Heritage Ins. Co. v. Orange Cnty., 798 So.2d 837 (Fla. 5th DCA 2001) (holding that substantial attempts by surety may entitle it to remission of bond forfeiture); Cnty. Bonding Agency v. State, 724 So.2d 131 (Fla. 3d DCA 1998) (same). In the trial court, Palmetto argued that “based upon the death of this defendant on the very date of notice of forfeiture, as well as based upon the surety’s pre-trial as well as post capias/pre-forfeiture mailing efforts to effect the defendant’s apprehension and surrender, that remission of forfeiture is merited.”

The Clerk opines that the surety must show surrender or apprehension as a predicate to remission of bond estreature. We have no occasion to address that issue. At the hearing before the trial court, Palmetto relied upon a single general affidavit attached to its motion, made by one of the guarantors, and argument of counsel. This was insufficient to show reversible error on appeal. See § 903.28(8).

The affidavit is woefully deficient in relevant facts showing entitlement to remission. Section 903.28(8) requires that:

An application for remission must be accompanied by affidavits setting forth the facts on which it is founded; however, the surety must establish by further documentation or other evidence any claimed attempt at procuring or causing the apprehension or surrender of the defendant before the court may order remission based upon an attempt to procure or cause such apprehension or surrender.

Palmetto failed to recite, by affidavit or actual evidence, what specific efforts it made to show that it substantially attempted to procure the return of the defendant. See Accredited Sur. & Cas. Co., Fla., 528 So.2d at 431. Accordingly, we find no abuse of discretion in the trial court’s denial of Palmetto’s motion.

Affirmed.

NORTHCUTT, J., and HIRSCH, MILTON, Associate Judge, Concur.


author: KHOUZAM, Judge.

text:
    Ronald Eugene TYNER, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-732.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 2014.
    Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Ronald Eugene Tyner appeals the sentence imposed after he admitted to violating his probation. The State properly concedes error, and we reverse and remand for resentencing.

In 1985, Tyner entered a no contest plea to burglary of a structure committed in 1979, and the trial court sentenced him to life in prison. After this court twice reversed and remanded for resentencing, the trial court resentenced Tyner in 1989 to twelve years’ imprisonment followed by life probation upon his election to be sentenced under the guidelines. In 2018, Tyner admitted to violating his probation by committing several offenses in Indiana, and the trial court sentenced him under the criminal punishment code to 480 months’ imprisonment.

In this appeal, Tyner argues and the State agrees that the trial court erred in sentencing him under the criminal punishment code because “[t]he law is well-settled that following revocation of probation the trial court must use the original score-sheet used at the time the defendant was placed on probation.” Adekunle v. State, 916 So.2d 950, 952 (Fla. 4th DCA 2005), receded, from on other grounds, Moses v. State, 13 So.3d 490, 491-92 (Fla. 4th DCA 2009); see Yourn v. State, 652 So.2d 1228, 1230 (Fla. 2d DCA 1995) (“Yourn was sentenced on the grand theft charge in 1989, therefore, the 1989 scoresheet was the appropriate one for the court to use when sentencing him for violation of probation on that charge.”). The trial court’s order denying Tyner’s motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2) indicates that the court mistakenly believed that because Tyner’s violation of probation was based on the commission of new offenses, he was correctly sentenced under the criminal punishment code. But, as the State notes, Tyner was not sentenced for new crimes in 2013; he was sentenced for violating his probation for the 1979 offense. The criminal punishment code only applies to offenses committed on or after October 1, 1998. See § 921.002, Fla. Stat. (2013). Consequently, Tyner should have been sentenced using the scoresheet used to originally place him on probation in 1989.

Accordingly, we reverse Tyner’s sentence and remand for resentencing. As Tyner correctly notes, “the trial court may sentence [him] to any period of incarceration permitted by the original guidelines range, including a one-cell increase for violation of probation, with credit for time served.” Harris v. State, 771 So.2d 565, 567 (Fla. 5th DCA 2000).

Reversed and remanded for resentenc-ing.

NORTHCUTT and LaROSE, JJ., Concur.

      . See Tyner v. State, 536 So.2d 1167 (Fla. 2d DCA 1988); Tyner v. State, 491 So.2d 1228 (Fla. 2d DCA 1986).

      . This court affirmed this sentence on appeal. Tyner v. State, 545 So.2d 961 (Fla. 2d DCA 1989).


author: SILBERMAN, Judge.

text:
    Ozell WILSON, Appellant, v. STATE Of Florida, Appellee.
    No. 2D14-1535.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 2014.

      Ozell Wilson, pro se.
   SILBERMAN, Judge.

Ozell Wilson appeals the order summarily denying his motion filed under Florida Rule of Criminal Procedure 3.850. We reverse the denial of ground two but affirm the denial of Wilson’s remaining claims without comment.

Wilson was charged with attempted burglary of a structure, felony petit theft, and possession of burglary tools, but the State tried him only on the theft charge, having nolle prossed the remaining counts. The jury found Wilson guilty, and the trial court sentenced him to five years’ imprisonment.

In ground two of his rule 3.850 motion, Wilson asserted that trial counsel informed him of an offer from the State of three years’ imprisonment in exchange for his entering a plea in the case. He immediately told counsel that he would accept the offer and asked her to schedule a sentenc- . ing hearing. But counsel allegedly advised him to reject the offer because the State’s case consisted primarily of Wilson’s unrecorded post-Miranda statement to law enforcement, and she was seeking to suppress it. Counsel assured Wilson he would be acquitted at trial. Wilson claimed that in advising him to reject the offer, counsel failed to tell him the statutory maximum that he faced if he went to trial and lost.

Wilson further stated in his motion that based on counsel’s advice, he rejected the offer, went to trial, and was convicted. He was sentenced to five years’ imprisonment. Finally, consistent with the requirements of Alcorn v. State, 121 So.3d 419, 422 (Fla.2013), he asserted that if counsel had advised him correctly he would have accepted the State’s offer, the State would not have withdrawn the offer, the court would have accepted the offer, and his sentence would have been less severe.

In denying ground two, the postconviction court incorrectly found that Wilson did not allege any deficient performance by counsel. Wilson’s allegation that counsel failed to inform him of the maximum penalty he faced if he did not prevail at trial is an allegation of deficient performance by counsel. See id.

Accordingly, we reverse the postconviction court’s denial of ground two and remand for the court to either attach portions of the record that conclusively refute the claim or hold an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and SLEET, JJ., Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Daniel RAWLSTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-6430.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 2014.
    Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Daniel Rawlston appeals his sentences imposed after violation of probation. The State correctly concedes error, and we reverse and remand for resentencing.

The State charged Rawlston with eight counts of committing a lewd, lascivious, or indecent act upon a child under the age of sixteen for events that occurred on January 1, 1997. Rawlston entered pleas of no contest pursuant to a negotiated plea agreement, and the trial court sentenced him to concurrent terms of eight years in prison, followed by fifteen years’ probation.

Rawlston served the incarcerative portion of his sentences but did not comply with the terms of his probation. Ultimately, the trial court revoked his probation and sentenced him to consecutive terms of fifteen years in prison for counts one, two, and three; a consecutive term of thirteen years in prison for count four; and concurrent terms of three years’ probation for counts five through eight, to run consecutively to counts one through four, totaling fifty-eight years in prison followed by three years of probation. Absent a departure sentence, these sentences exceed the maximum guidelines sentence of 24.625 years that could be imposed for Rawlston’s convictions under the 1994 guidelines. See Fla. R. Crim. P. S.702(d)(19) (“The total sentence shall be within the guidelines sentence unless a departure is ordered.”); Ault v. State, 866 So.2d 674, 687 (Fla.2003) (explaining that because chapter 95-182, Laws of Florida, was declared unconstitutional, the 1994 sentencing guidelines apply for those convicted of crimes that occurred after October 1, 1995, and before May 24, 1997). Accordingly, we reverse Rawlston’s sentences and remand for the trial court to impose lawful sentences.

Reversed and remanded.

KELLY, MORRIS, and SLEET, JJ., Concur.


text:
    Joel NAVARRO and Cristina Navarro, Appellants, v. OCWEN LOAN SERVICING LLC, Appellee.
    No. 2D13-6248.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 2014.

      Michael W. Udowychenko of Udowy-chenko Law Firm, P.A., Kissimmee, for Appellants.
    Steven C. Rubino of Aldridge Connors, LLP, Delray Beach, for Appellee.
   MORRIS, Judge.

Joel and Christina Navarro appeal a nonfinal order denying the Navarros’ motion to quash service of process in a foreclosure action filed against them by Ocwen Loan Servicing, LLC. The Navarros moved to quash, claiming that Ocwen “failed to properly complete service of process or substitute service of process.” See § 48.031, Fla. Stat. (2012). The record indicates that the Navarros never received service of process, and Ocwen concedes on appeal that service was never effectuated on the Navarros. See Baker v. Stearns Bank, N.A., 84 So.3d 1122, 1126 (Fla. 2d DCA 2012) (holding that “the party invoking the jurisdiction of the court”’ has “the initial burden to sustain the validity of service”). Accordingly, we reverse the order denying the Navarros’ motion to quash and remand for further proceedings. We do not comment on whether the complaint should be dismissed under Florida Rule of Civil Procedure 1.070(j), which requires service within 120 days of the filing of the complaint, see Chaffin v. Jacobson, 793 So.2d 102, 103-04 (Fla. 2d DCA 2001), as there is no indication that this issue was considered by the trial court.

Reversed and remanded.

ALTENBERND and CASANUEVA, JJ., Concur.


text:
    Colon H. RUSSELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4360.
    District Court of Appeal of Florida, First District.
    Oct. 8, 2014.
    Colon H. Russell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

THOMAS, MARSTILLER, and MAKAR, JJ., concur.


text:
    Michelle Lynn FRY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2536.
    District Court of Appeal of Florida, First District.
    Oct. 9, 2014.
    Michelle Lynn Fry, pro se, Petitioner.

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

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the September 4, 2012, judgment and sentence, in Hamilton County Circuit Court case number 11-135-CF-B. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

ROWE, MARSTILLER, and MAKAR, JJ., concur.


text:
    Rodrick K. WIMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4204.
    District Court of Appeal of Florida, First District.
    Oct. 9, 2014.
    Rodrick K. Wims, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, BENTON, and MAKAR, JJ., concur.


text:
    Xavier GIVENS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4238.
    District Court of Appeal of Florida, First District.
    Oct. 9, 2014.
    Xavier Givens, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, BENTON, and MAKAR, JJ., concur.


text:
    Terrill Lee PALMORE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4369.
    District Court of Appeal of Florida, First District.
    Oct. 9, 2014.
    Terrill Lee Palmore, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, BENTON, and MAKAR, JJ„ concur.