text:
    Kenneth MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2830.
    District Court of Appeal of Florida, First District.
    Oct. 23, 2013.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Meredith Hinshelwood, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Adjudicated guilty both of sexual battery with a deadly weapon and of kidnapping with a weapon, Kenneth Miller received concurrent terms of life imprisonment. On appeal, he challenges only the conviction and sentence for kidnapping, arguing the evidence was insufficient to support a separate kidnapping conviction, in addition to the conviction for sexual battery. We agree and reverse the conviction and sentence for kidnapping.

The amended information alleged that Mr. Miller “did confine, abduct or imprison [the victim] forcibly, secretly, or by threat against her will and without lawful authority, with intent to commit or facilitate the commission of a felony, and/or to inflict bodily harm upon or terrorize [the victim], and during the commission of the aforementioned kidnapping,” he “carried or had in his possession a weapon, contrary to the provisions of Sections 787.01(l)(a)[2. and 3.] and 775.087(l)(a), Florida Statutes-.” But the evidence revealed no asportation of the victim. The victim was not bound, and the act relied on as establishing confinement was placing a pillow over the victim’s face.

The victim testified that, early on the morning of August 24, 1999, she awoke when she felt a hand on her shoulder. When she began screaming, she testified, the perpetrator put a pillow over her face. Although she initially struggled and tried to push him off, she stopped struggling after she had difficulty breathing, thinking she might pass out. The assailant removed the pillow after she stopped fighting back. Once more able to breathe freely, she again tried to push her assailant away, but he grabbed her hand, placed what she believed to be a knife against the side of her neck, and sexually assaulted her.

More than a decade later, based on DNA evidence, Mr. Miller was identified as the assailant and charged with kidnapping as well as sexual battery. Section 787.01(l)(a), Florida Statutes (1999), provides:

The term “kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:
1. Hold for ransom or reward or as a shield or hostage.
2. Commit or facilitate commission of any felony.
3. Inflict bodily harm upon or to terrorize the victim or another person.
4. Interfere with the performance of any governmental or political function.

Mr. Miller moved for judgment of acquittal on the kidnapping count and argued any confinement was slight, inconsequential, and merely incidental to the act of sexual battery.

Likewise on appeal, Mr. Miller argues the state failed to prove the victim was confined within the meaning of the statute arid failed to prove intent to terrorize her beyond the harm or terror inherent in sexual battery. In part he relies on language in Mobley v. State, 409 So.2d 1031, 1034 (Fla.1982), where the Florida Supreme Court said that if section 787.01(1)(a)2. (which prohibits the unlawful confining of another person with the intent to commit or facilitate the commission of any felony) were “construed literally this subsection would apply to any criminal transaction which inherently involves the unlawful confinement of another person, such as robbery or sexual battery.”

To avoid this dilemma, our supreme court set forth the following test applicable when a defendant is charged with kidnapping to facilitate the commission of another crime:

[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.

Faison v. State, 426 So.2d 963, 965 (Fla.1983) (quoting State v. Buggs, 219 Kan. 203, 547 P.2d 720, 731 (1976)). “[TJhere can be no kidnapping where the only confinement involved is the sort that, though not necessary to the underlying felony, is likely to naturally accompany it.” Berry v. State, 668 So.2d 967, 969 (Fla.1996).

The confinement in the present case did not amount to kidnapping. Mr. Miller placed the pillow over the victim’s face after she began screaming and struggling and removed the pillow when she stopped fighting back. There was no one else in the house at the time, and no showing that the risk of detection was substantially lessened. The victim’s confinement was minor, and incidental to the sexual battery. The unwelcome sexual acts would not have occurred without some restraint of the unwilling victim. The “confinement” did not outlast the sexual battery itself. See, e.g., Orukotan v. State, 85 So.3d 542, 546 (Fla. 4th DCA 2012) (reversing kidnapping conviction for failure to establish the first and third prongs required by Faison because “while the defendants bound the victim, put a pillowcase over his head, and placed him in the bathroom, the defendants released the victim twice before the robbery had been completed” and “because the defendants untied the victim before the completion of the robbery, the act neither had any significance independent of the robbery nor substantially lessened the risk of detection”).

Mr. Miller’s act of placing a pillow over the victim’s face also fails to establish confinement pursuant to section 787.01(l)(a)3. (which prohibits the unlawful confining of another person with the intent to .inflict bodily harm upon or to terrorize the victim). Although the three-part test set forth in Faison is limited to kidnapping under section 787.01(l)(a)2., and has been held not to be determinative when a defendant is charged with confining, abducting or imprisoning with the intent to “inflict bodily harm upon or to terrorize,” Allen v. State, — So.3d -, -, 2013 WL 3466777, 38 Fla. L. Weekly S592, S596 (Fla. July 11, 2013), the state must still prove as one element of the offense of kidnapping that a defendant confined, abducted or imprisoned the victim.

In Conner v. State, 19 So.3d 1117 (Fla. 2d DCA 2009), the defendant jumped out of a van, caught a thirteen-year-old girl, who had been sitting at her school bus stop, after she had run only a few feet, pushed her to the ground, put a stocking around her neck, and strangled her to the point that- she was unable to breathe, before he fled at the sound ,of an approaching vehicle. The court ruled that the defendant did not abduct or imprison the school girl,- and examined Florida case law for guidance in determining whether the conduct constituted a “confining” of the victim:

Generally, the act of binding the victim is sufficient to constitute a “confinement.” See Berry v. State, 668 So.2d 967, 969 (Fla.1996), aff'g Berry, 652 So.2d 836; Henderson v. State, 778 So.2d 1046, 1048 (Fla. 1st DCA 2001). Holding a carjacking victim down in her own car while travelling 200 yards before forcibly ejecting the victim from the vehicle is also a “confinement,” Cathcart v. State, 643 So.2d 702, 703 (Fla. 4th DCA 1994), as is the removal of a child from a location near her home to a place or places unknown for a period of at least four hours with the knowledge or consent of the child’s parents, Miller v. State, 233 So.2d 448, 450 (Fla. 1st DCA 1970). However, holding a victim in a headlock in order to shoot the victim is not a “confinement.” Mackerley v. State, 754 So.2d 132, 137 (Fla. 4th DCA 2000), quashed on other grounds, 111 So.2d 969 (Fla.2001).
We may also shed some light on the meaning of “confining” in the context of the specific charge against Mr. Conner by examining the decisions that have found the evidence to support a conviction for kidnapping under subsection (l)(a)(3). The facts in these cases have generally involved the movement of the victim within a structure and the holding of the victim in a particular room or rooms within the structure, the holding of the victim in a moving vehicle, or the binding of the victim.

Id. at 1124 (footnotes omitted). The Second District reversed the defendant’s conviction for kidnapping, concluding the evidence was insufficient to constitute confinement necessary to establish kidnapping (even though the defendant’s actions undoubtedly terrorized the young victim). The victim’s freedom of movement was restricted when she was pushed to the ground and choked, but the momentary restraint did not, in the court’s judgment, amount to asportation or confinement of the victim that amounted to kidnapping. Id.

In the present case, too, the evidence is insufficient to prove asportation or confinement that amounts to kidnapping. The state has brought to our attention no case in which a conviction for kidnapping under section 787.01(l)(a)3. was upheld in the absence of asportation, where the putative victim was not bound, and where restraint incidental to another crime lasted no longer than commission of the other crime. Accordingly, while the judgment and sentence for sexual battery with a deadly weapon stands, we reverse the judgment and sentence for kidnapping.

Reversed.

LEWIS, C.J. and WETHERELL, J„ concur.

         Cf. Allen v. State, - So.3d -, -, 2013 WL 3466777, 38 Fla. L. Weekly S592, S596 (Fla. July 11, 2013) (finding sufficient evidence to support the kidnapping conviction pursuant to section 787.01(l)(a)3. when the victim was confined for "a substantial period of time, during which ... [the victim's] legs were tied with a belt so that she could not move” and noting that the facts established "the kidnapping was not merely incidental to the killing, but was sufficiently separate from the murder”); Kopsho v. State, 84 So.3d 204, 218 (Fla.2012) (affirming conviction for kidnapping pursuant to section 787.01(l)(a)3. when the evidence supported a finding that Lynne, the victim, travelling in a truck with Kopsho, "was confined by force against her will at least from the moment Kopsho revealed the gun until she successfully exited the truck” and "any confinement that began while Kopsho and Lynne were in the truck continued as Kopsho chased Lynne along the side of the road”); Perry v. State, 57 So.3d 910, 913 (Fla. 1st DCA 2011) (affirming conviction for kidnapping under section 787.01(l)(a)3. based on evidence that the "beating administered by Appellant lasted at least seven minutes and involved the victim being beaten in one room, dragged by her hair into another room where the beating continued, and then dragged by her neck or hair outside where the beating concluded”); Maldonado Melendez v. State, 51 So.3d 624, 625 (Fla. 5th DCA 2011) (affirming conviction under section 787.01(1)(a)3., based on evidence he "dragged the victim at gunpoint, by her hair, down a hallway and up half a flight of stairs to a more secluded landing in the back of a building”); State v. Lumarque, 990 So.2d 1241, 1241-42 (Fla. 3d DCA 2008) (concluding there was sufficient evidence to withstand a motion to dismiss the charge of kidnapping with the intent to inflict bodily harm upon or to terrorize the victim when the victim "testified that Lumarque grabbed her by the neck and dragged her through the house to her bedroom, where he strangled her, smothered her with a pillow, and forced her to perform oral sex”); Lee v. State, 770 So.2d 231, 231-32 (Fla. 3d DCA 2000) (affirming conviction under section 787.01(1)(a)3. and concluding that evidence the “victim was dragged by her throat for almost ten feet from one room to another in the course of the defendant's vicious attack upon her is sufficient to demonstrate the confinement, abduction or imprisonment required to establish any form of kidnapping”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ben Lamont DENSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3610.
    District Court of Appeal of Florida, First District.
    Oct. 23, 2013.
    Nancy A. Daniels, Public Defender, and Richelle M. Marsico, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Wesley Paxson, III, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Ben Lamont Denson, appeals his convictions and sentences for possession of cocaine with intent to sell or deliver and sale or delivery of cocaine. He argues that the trial court erred in limiting his attorney’s cross-examination of the State’s witnesses regarding the location of the officers during the controlled buy at issue and the secure location used by the officers and the confidential source both before and after the buy. The State acknowledges that Appellant should have been permitted to cross-examine the witnesses as to this information. See A.E. v. State, 599 So.2d 713 (Fla. 1st DCA 1992); Johnson v. State, 595 So.2d 132 (Fla. 1st DCA 1992), disapproved on other grounds, Heuss v. State, 687 So.2d 823 (Fla.1996); see also Rainner v. State, 801 So.2d 997 (Fla. 4th DCA 2001); Judd v. State, 781 So.2d 440 (Fla. 4th DCA 2001).

The State argues, however, that any error in this case was harmless. See Jenkins v. State, 107 So.3d 555, 557 (Fla. 1st DCA 2013) (noting that the harmless error test places the burden on the State to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, in other words, that there is no reasonable possibility that the error contributed to the verdict). We agree. Unlike the situations in the cited cases where the defense was prohibited from cross-examining the witnesses about the locations from where they observed the alleged incidents or transactions, the undisputed evidence in this case established that none of the four officers involved in the operation witnessed the controlled buy from their location. As such, the State is correct that evidence of the secure location and the officers’ location during the controlled buy would not have strengthened Appellant’s defense that the buy was not as controlled as the officers portrayed it to be.

Accordingly, we AFFIRM.

LEWIS, C.J., WOLF and MAKAR, JJ., concur.


text:
    Thomas MARTIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1731.
    District Court of Appeal of Florida, First District.
    Oct. 23, 2013.
    Thomas P. Martin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

As the State correctly concedes, contrary to the trial court’s order, petitioner’s motion for reduction or modification of sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c) was timely. The State also correctly concedes that the trial court’s order constitutes a departure from the essential requirements of law, entitling petitioner to the writ of certiorari he seeks. See, e.g., Pruitt v. State, 932 So.2d 617 (Fla. 1st DCA 2006). The petition seeking a writ of certiorari is granted; the trial court’s order denying petitioner’s rule 3.800(c) motion as untimely filed is quashed; and the case is remanded for further proceedings.

PETITION FOR WRIT OF CERTIO-RARI GRANTED.

LEWIS, C.J., WOLF and MAKAR, JJ., concur.


author: BENTON, J.

text:
    Shawn Michael SPROTT, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5876.
    District Court of Appeal of Florida, First District.
    Oct. 23, 2013.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Charlyne M. “Khai” Patterson, Assistant Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Shawn Michael Sprott appeals the sentence pronounced on rehearing after remand in Sprott v. State, 99 So.3d 634 (Fla. 1st DCA 2012). When resentenced on remand, he had already served 890 days of his original, erroneously imposed prison sentence. He argues that, in addition to the 364 days’ credit he received against jail time for time he had served on the original sentence, he is entitled to 26 days’ credit against the probationary portion of his current sentence. We reverse and remand with directions he receive 26 days’ credit against the probationary portion of the sentence pronounced on remand.

In 2011, after appellant entered a plea of no contest to count 1: uttering a forged bill, count 2: possession of forged notes, count 3: attempted scheme to defraud, and count 4: possession of a forged, stolen, or fictitious driver’s license, the trial court adjudicated him guilty on all four counts and sentenced him to 24 months in state prison. On direct appeal, however, we reversed the original sentence as excessive, on grounds a nonstate prison sentence was mandatory, because his criminal punishment code score sheet reflected only 20 points, and the record did not support the trial court’s conclusory finding that “a nonstate prison sanction would present a danger to society.” Sprott, 99 So.3d at 635.

The case is now before us on direct appeal from the resentencing on remand. Although, by the time the trial court re-sentenced appellant to 364 days in county jail (with 364 days’ credit) and two years’ probation, he had served 390 days in prison under the superseded sentence, he does not argue on this appeal that the entire probationary period was illegal. He contends only that he should receive credit for 26 (390-364) days of the prison sentence he served against the probationary period ordered on resentencing.

We accept the state’s concession that appellant’s argument that he is entitled to 26 days’ credit against the probationary period is preserved. On the merits, we agree with appellant that, under Golden v. State, 84 So.3d 396 (Fla. 1st DCA 2012), he is entitled to 26 days’ credit against his probationary sentence. See id. at 399 (“Golden is entitled to credit against the reinstated sentence [five years’ probation] for time served in prison on the sentences here vacated.”).

Reversed and remanded, with directions.

VAN NORTWICK and PADOVANO, JJ., concur.

      . On this appeal, he makes no other challenge to the probationary portion of the sentence pronounced on remand. At the resentencing hearing where the county jail term was imposed, appellant did argue that, because he had already served time in excess of 364 days, he should not be sentenced to probation in addition to "a county jail term alone." Fla. R.Crim. P. 3.701(d)(8).
      Later, appellant filed a pro se motion under Florida Rule of Criminal Procedure 3.800(b)(2), arguing that his current "sentence exceeds a nonstate prison sanction.” Because he had already served a sentence that exceeded a nonstate prison sanction, "any form of punishment in addition would also be in excess deeming defendant’s current sentence illegal,” he maintained. Appellant having filed the motion pro se, although represented by counsel at the time, the trial court struck the motion on that ground.
      Appellant’s counsel never adopted the pro se motion, and the argument that no probationary period at all could lawfully be imposed has not been raised on the present appeal.

      . Under section 775.082(10), Fla. Stat. (2011), "the court must sentence the offender to a nonstate prison sanction” if the total sentence points are 22 or fewer, absent written findings that "a nonstate prison sanction could present a danger to the public.”


author: CRENSHAW, Judge.

text:
    Linda BETZOLDT, as Personal Representative of the Estate OF Hazel Dawdy, Deceased, Appellant, v. AUTO CLUB GROUP INSURANCE COMPANY, Appellee.
    No. 2D12-5368.
    District Court of Appeal of Florida, Second District.
    Oct. 25, 2013.

      Charles P. Schropp and Charles M. Schropp of Schropp Law Firm, P.A., Tampa; and Dennis G. Diecidue of The Dieci-due Law Firm, P.A., Tampa, for Appellant.
    Anthony J. Russo and Jared M. Krukar of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Appellee.
   CRENSHAW, Judge.

At issue in this appeal is the circuit court’s exercise of personal jurisdiction over the defendant, Auto Club Group Insurance Company (Auto Club). Because the trial court erred in granting Auto Club’s motion to dismiss for lack of personal jurisdiction, we reverse.

Background

This case arises from a third-party bad-faith insurance claim. Linda Betzoldt is the personal representative of the estate of Hazel Dawdy, a Michigan resident. At the time this action accrued, Auto Club was Ms. Dawdy’s insurer; Auto Club only issues policies to Michigan drivers. In the underlying case, Ms. Dawdy injured another woman in a car accident in Tampa. The injured woman made a claim against Ms. Dawdy; Auto Club attempted to accept an offer to settle for policy limits. However, according to the complaint, Auto Club never procured (or delivered) affidavits from Ms. Dawdy regarding other insurances to the injured party’s attorney in Tampa, nor advised Ms. Dawdy of the settlement offer. With this failure, the injured party did not accept the settlement offer and sued Ms. Dawdy, resulting in a judgment of $459,381, only $100,000 of which Auto Club paid. Ms. Dawdy subsequently died and Betzoldt,.as personal representative of Ms. Dawdy’s estate, sued Auto Club for bad faith arising out of the excess judgment. Auto Club moved to dismiss the complaint for lack of personal jurisdiction, and the trial court granted the motion.

Long-Arm Statute

The first question in this case is whether the cause of action falls under Florida’s long-arm statute, section 48.193, Florida Statutes (2012). See Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). Subsection (l)(d) of section 48.193 does not govern because it refers to “[contracting to insure any person, property, or risk located within this state at the time of contracting.” Virginia Farm Bureau Mutual Insurance Co. v. Dunford, 877 So.2d 22, 23 (Fla. 4th DCA 2004), rejected a similar claim and cited Meyer v. Auto Club Insurance Ass’n, 492 So.2d 1314 (Fla.1986): “We agree with the insurer that it did not contract to insure a risk located within this state at the time of contracting under section 48.193(l)(d).” As to this point, Dunford, Meyer, and this case are indistinguishable, and the trial court did not err in granting the motion to dismiss on this ground.

Whether subsection (l)(g) of the long-arm statute is satisfied is the more difficult analysis. It allows for jurisdiction over a defendant who has “[b]reaeh[ed] a contract in this state by failing to perform acts required by the contract to be performed in this state.” Id. Resolving the issue in this case necessarily requires that we determine whether Betzoldt alleged facts, taken as true, that Auto Club breached a contract requiring performance in Florida. See Wallace v. Dean, 3 So.3d 1035, 1042-43 (Fla.2009) (taking facts as true for the purpose of a motion to dismiss a complaint). There is no contest at this point in the litigation as to whether Auto Club breached the agreement, and we assume it did for the purpose of this jurisdictional analysis. See id. Further, “[t]he insurer’s failure to exercise good faith is ... a breach of contract. And, because the policy covered accidents in all states, it was a contractual obligation to be performed in Florida in this case.” Dunford, 877 So.2d at 23-24. For the reasons that follow, we agree with the Dunford court.

Betzoldt’s bad-faith claim comprises two distinct components: (1) failure to advise her of the substance of the settlement offer, and (2) failure to procure the necessary affidavit, the failure of which triggered the rejection of the offer- to settle for policy limits. The first claim, failure to advise Betzoldt of the substance of the offer of settlement, bears no relationship to Florida. Auto Club could advise Bet-zoldt of such an offer in Michigan, and from Michigan. The agreement to advise her did not require any performance in Florida. However, on the other hand, the failure “to procure a statement under oath from her or her ‘insurance agents disclaiming the existence of any additional known insurers” could not happen entirely outside Florida. Auto Club points out that the complaint merely discusses procurement of the affidavit, and not its delivery to the attorney, who is in Florida. Of course, it is only the delivery that has a nexus to Florida, and not the procurement. However, “[w]e must ... assume that all of the facts alleged are true and draw all reasonable inferences in favor of the pleader.” C & J Sapp Pub’g Co. v. Tandy Corp., 585 So.2d 290, 292 (Fla. 2d DCA 1991) (emphasis added). Here, the logical inference is that if Auto Club never procured the affidavit it needed, it never delivered that affidavit to the attorney in Florida. The delivery of the affidavit was required to occur in Florida. Assuming the facts as true, therefore, there was a breach based on a “fail[ure] to perform acts required by the contract to be performed in” Florida. § 48.193(l)(g). Because we determine that the allegations of the complaint bring the cause within the ambit of the long-arm statute, we must next determine whether Auto Club has minimum contacts with Florida. See Venetian Salami, 554 So.2d at 502.

Minimum Contacts

“[U]nder a given factual situation, even though a nonresident may appear to fall within the wording of a long[-]arm statute, a plaintiff may not constitutionally apply the statute to obtain jurisdiction in the absence of the requisite minimum contacts with the forum state.” Id. As to the issue in this case, we are not without guidance, but we must determine which precedent applies.

The trial court was presented with both. Dunford and Meyer and followed Meyer because it concluded that precedent was binding. Although we recognize that a holding from this court or the supreme court is binding on the trial courts of this district, we conclude that Meyer is inappo-site to this case. Meyer, 492 So.2d 1314; Dunford, 877 So.2d at 23-24. Rather, the circuit court should have followed Dun-ford.

Why Dunford Applies

Dunford is nearly on all fours with this case. Both Dunford and this case are third-party bad-faith cases. “In the present case, the insurer, as it was required to do under the policy, undertook the defense of a claim brought against the insured in Florida, and breached its duty of good faith.” Dunford, 877 So.2d at 24.

Moreover, Dunford specifically distinguishes itself from Meyer:

Meyer is distinguishable from the present case in that in Meyer the insured sued under the policy for PIP benefits, a claim which did not arise out of any activity of the insurer in Florida. ... [T]he insurer has not cited a single case from Florida or any other jurisdiction holding that it would violate due process to allow a suit to proceed in the state where the insurer was guilty of a bad faith refusal to settle a claim against the insured.

Dunford, 877 So.2d at 24 (emphasis added). Auto Club points out that neither of the drivers is from Florida and that Auto Club does not issue policies in Florida. It notes that there is no allegation of Auto Club’s bad faith in the insured’s defense. It argues, “[t]he demand letter happened to have been sent by a Florida attorney, but it might have just as easily come from an attorney in Pennsylvania or Michigan.” But the focus must be not from where the demand letter originated, but where Auto Club had to send it, i.e. where Auto Club had to perform its duties under the contract. See § 48.193(l)(g). Auto Club’s ultimate argument is that its “conduct in connection with [Florida] is [not] ‘such that [it] should reasonably anticipate being haled into court [ ]here.’ ” Venetian Salami, 554 So.2d at 500 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). But in Dunford, the Fourth District held:

In this case the insurer agreed to exercise good faith in defending claims against the insured throughout the United States. It should have foreseen that a breach of that duty in Florida, resulting in a Florida judgment, would subject it to being haled into a Florida court. The maintenance of this suit ¿ccordingly does not violate due process under International Shoe [Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ].

Dunford, 877 So.2d at 25. The Dunford court rested in part on Eli Lilly & Co. v. Home Insurance Co., 794 F.2d 710, 720 (D.C.Cir.1986). Citing World-Wide Volkswagen, Eli Lilly explained, that “[t]he touchstone of our due process inquiry is whether it would have been ‘foreseeable’ ” that the insurer would be haled into court in the jurisdiction. 794 F.2d at 720. The Eli Lilly court held that the insurer knew that its insured distributed its product nationwide.

They therefore were aware ..that [Eli] Lilly was likely to be sued in any jurisdiction in the nation .... Moreover, [the insurer was] aware that if [Eli] Lilly was sued it was likely to attempt to implead [the insurer] if a dispute arose over their duty to indemnify or defend. In such an ■eventuality it would be completely foreseeable that the insured would successfully hale the insurance company into court.

Dunford, 877 So.2d at 24-25 (quoting Eli Lilly, 794 F.2d at 720).

Betzoldt’s reference to McGow v. McCurry, 412 F.3d 1207, 1215 (11th Cir. 2005), abrogated on state law grounds by Diamond Crystal Brands, Inc. v. Food Movers International, Inc., 593 F.3d 1249 (11th Cir.2010), is well taken insofar as the McGow court stated, in referring to a fifty-state policy: “[P]resumably, [the insurer] offers this type of broad coverage to induce customers to buy its policies and to pay higher premiums for them.’” Id. (quoting Rossman v. State Farm, Mut. Ins. Co., 832 F.2d 282, 287 (4th Cir.1987)). This is not just a throwaway, but is vital to the jurisdiction of the forum over the defendant because higher premiums are an example of a corporation “passing the expected costs [of litigation] on to customers.” World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. 559. In World-Wide Volkswagen, the Supreme Court discussed a corporation’s options when it faces the reality of multistate litigation-buying its own insurance, passing the costs on to customers, or severing its connection with the forum. Id. Auto Club is not obliged to issue nationwide policies.

Auto Club reasonably should have foreseen being haled into court in Georgia because its policy covered the entire United States. Auto Club hence should have recognized that an accident could occur in any state and could result in litigation, and that Auto Club could be called upon to litigate and to pay in Georgia or any other state within the covered territory.... [I]nsuranee by its nature involves the assertion of claims, and resort to litigation is often necessary. Thus, not only was it foreseeable that Auto Club might be sued in Georgia in connection with an accident in Georgia covered by its policy, but the expectation of being haled into court in a foreign state is an express feature of its policy.

McGow, 412 F.3d at 1215 (quotation marks and citation omitted).

Meyer’s Inapplicability and Its Consequences

As noted above, Meyer is distinguishable as a PIP case rather than a third-party bad-faith case. This distinction should not be minimized because it relates to various reasons Meyer is not binding on this case. First, as discussed, long-arm jurisdiction is entirely different between subsections (l)(d) and (l)(g) and Meyer was limited to subsection (l)(d). Turning to minimum contacts, this is a specific jurisdiction case, not a general jurisdiction case. In a specific jurisdiction case, “ ‘jurisdiction arises out of a party’s activities in the forum that are related to the cause of action alleged in the complaint.’ ” McGow, 412 F.3d at 1214 n. 3 (quoting Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir.2000) (emphasis added)). Because the cause of action in Meyer was based on PIP, rather than third-party bad faith, the entire minimum-contacts lens varies. The Florida Supreme Court’s statement that “[t]he property covered under the policy and the risk insured against were likewise in Michigan, not Florida” is inapposite because it is specifically designed to address a PIP action, not a bad-faith claim. Meyer, 492 So.2d at 1315. Therefore, we agree with Dunford and find Meyer distinguishable. Accordingly, the cause is reversed and remanded for further proceedings.

Reversed.

VILLANTI and LaROSE, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Glenn David SANCHEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3774.
    District Court of Appeal of Florida, Second District.
    Oct. 25, 2013.

      Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Glenn David Sanchez appeals his judgments and sentences for robbery with a firearm and unauthorized use of a credit card. We affirm but write to explain the discrepancy between the oral and written sentence for one offense.

Mr. Sanchez pleaded open to these two offenses in a written plea agreement. The plea agreement incorrectly described the unauthorized use of a credit card as a third-degree felony when, in light of the allegations in the information, it was actually a second-degree misdemeanor. See § 817.481(3)(b), Fla. Stat. (2010); § 812.014(3)(a), Fla. Stat. (2011). This error in the plea agreement caused the trial judge at the hearing to describe the crime as a felony and to inform Mr. Sanchez that it was punishable by up to five years in prison. The trial judge then orally sentenced Mr. Sanchez to ten years’ imprisonment followed by five years’ probation for the robbery and a concurrent five-year term of imprisonment for the unauthorized use of a credit card.

At some point, someone must have noticed the error in the plea agreement and the sentence that was orally imposed. The written judgment accurately reflects that the credit card crime is a misdemeanor and Mr. Sanchez was sentenced to time served for that offense. It is noteworthy that Mr. Sanchez also received 360 days of jail credit on his sentence for the robbery and that these sentences are directed to run concurrently with ten-year sentences of imprisonment for other offenses that were imposed about four months prior to this sentencing hearing.

Given that Mr. Sanchez had no plea agreement for any specific sentence, that the written sentences are legal, and that the correction from the oral pronouncement does not appear to prejudice Mr. Sanchez in any way, we affirm the judgments and sentences.

Affirmed.

CASANUEVA and MORRIS, JJ„ Concur.


author: DAVIS, Chief Judge.

text:
    Jose HERNANDEZ, Appellant, v. COLONIAL GROCERS, INC., Appellee.
    No. 2D11-3415.
    District Court of Appeal of Florida, Second District.
    Oct. 25, 2013.
    Luis A. Cabassa and David H. Browne of Wenzel Fenton Cabassa, P.A., Tampa, for Appellant.
    Evan G. Frayman and Andrew C. Hill of Harper, Kynes, Geller, Greenleaf & Fray-man, P.A., Clearwater, for Appellee.
   DAVIS, Chief Judge.

Jose Hernandez challenges the trial court’s nonfinal order granting Colonial Grocers, Inc.’s motion to compel arbitration in his action against Colonial in which he alleged violations of the Fair Labor Standards Act and section 440.205, Florida Statutes (2010), of the Florida Workers’ Compensation Act. We reverse.

After Hernandez filed his action against Colonial, Colonial moved to compel arbitration pursuant to its employee manual, a copy of which Hernandez had signed in conjunction with his employment. The arbitration clause of the manual provides as follows:

Any controversy or .claim arising out of or relating to the employment relationship created between the employer (Company) and employee (you), including all topics covered in this Employee Manual, and the interpretation of this Manual, or any alleged breach of it, shall be settled by arbitration in accordance with the Arbitration Rules of the American Arbitration Association, with such arbitration to take place in the County of Hillsborough, State of Florida with an agreed upon arbitrator. If the parties cannot agree on an arbitrator, a court of competent jurisdiction shall appoint an arbitrator at the request of either Party. Although the parties shall initially bear the cost of arbitration equally, the prevailing party, if any as determined by the arbitrator at the request of the parties which .is hereby deemed made, shall be entitled to reimbursement for its share of costs and reasonable attorneys’ fees, as well as interest at the statutory rate.

(Emphasis added.) The trial court granted Colonial’s motion, and Hernandez challenges that decision.

On appeal, Hernandez first argues that the arbitration agreement is unenforceable because it requires him to share the initial costs of arbitration. He relies on Flyer Printing Co. v. Hill, 805 So.2d 829 (Fla. 2d DCA 2001), arguing that it provides a bright-line rule that any fee-splitting provision renders an arbitration clause unenforceable. We do not agree with Hernandez’s reading of Flyer Printing and reject the notion that this court set forth such a bright-line rule in that case.

However, Hernandez also argues on appeal that the instant arbitration agreement is unenforceable because it includes a prevailing party attorney’s fee provision that contradicts the attorney’s fee provision of the statute under which he brought suit. Our opinion in Flyer Printing speaks directly to this argument, and its application renders the arbitration clause in Colonial’s employee manual unenforceable.

The plaintiff in Flyer Printing brought suit under Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act of 1992. Flyer Printing moved to compel arbitration, and the trial court denied the motion. In reviewing that denial, this court acknowledged that “parties may agree to arbitrate statutory claims, including claims under Title VII” but noted that “when an arbitration agreement contains provisions that defeat the remedial purpose of the statute, the agreement is not enforceable.” Id. at 881. The specific issue before this court in Flyer Printing was “whether the' parties’ arbitration agreement, by its terms, improperly restricted Hill’s statutory rights under Title VII.” Id. at 832 (emphasis omitted). This court affirmed the trial court, stating as follows:

[W]e approve the circuit court’s refusal to enforce the parties’ arbitration agreement because it required Hill to bear half the fees and costs associated with the arbitration. In so doing, the agreement contravened Hill’s statutory right to seek a full award of her fees and costs under. Title' VII and the Florida Civil Rights Act, thus defeating the remedial purposes of those statutes.

Id. at 833.

Here, Hernandez brought suit under the federal Fair Labor Standards Act and the Florida Workers’ Compensation Law. The federal act states that a prevailing plaintiff is entitled to an award of reasonable attorney’s fees, but it does not allow for prevailing party fees for the defendant. 29 U.S.C. § 216(b). The instant arbitration agreement, however, states that whichever party prevails “shall be entitled to reimbursement for its share of costs and reasonable attorneys’ fees.” Accordingly, should the arbitrator declare Colonial the prevailing party, Hernandez would be obligated under the arbitration agreement to pay Colonial’s attorney’s fees. This renders the potential cost of arbitration to be far greater to Hernandez than the potential cost of civil litigation, which under no circumstances would include Colonial’s attorney’s fees. As such, while the parties’ agreement may not contravene any of Hernandez’s rights under the federal act, it does expose him to a potential liability to which he would not be exposed if the litigation occurred in civil court because the federal statute specifically protects him from such liability.

This is a sufficient enough chilling effect to defeat the remedial pui-pose of the federal act. The attorney’s fees provision of the Fair Labor Standards Act is intended to encourage employees to seek redress when they believe they have been wronged by an employer. The arbitration agreement, however, does just the opposite — it discourages the employee from pursuing a claim. As such, under Flyer Printing, it is unenforceable. See 805 So.2d at 833 (“An arbitration agreement containing provisions that defeat a federal statute’s remedial purpose is ... not enforceable.”).

We reject Colonial’s suggestion on appeal that Flyer Printing is no longer good law because the Eleventh Circuit case upon which it relied has since been reversed. We recognize that in Flyer Printing this court cited Perez v. Globe Airport Security Services, Inc., 253 F.3d 1280 (11th Cir.2001), for the proposition that arbitration provisions proscribing statutorily available remedies are illegal. And it is true that the Eleventh Circuit has since vacated its opinion in Perez, but it did so based on a stipulation of dismissal entered into by the parties prior to the mandate issuing. See Perez v. Globe Airport Sec. Servs., Inc., 294 F.3d 1275, 1276 (11th Cir.2002).

Furthermore, this court’s reliance on Perez in Flyer Printing was for the proposition that “ ‘[t]he [United States Supreme] Court’s decision in Green Tree [Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 91, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000),] does not cast doubt on the continuing vitality of the primary holding in Paladino [v. Avnet Computer Technologies, Inc., 134 F.3d 1054 (11th Cir.1998) ]. An arbitration agreement containing provisions that defeat a federal statute’s remedial purpose is still not enforceable.’ Perez, 253 F.3d [at] 1286-87.” Flyer Printing, 805 So.2d at 833. Despite the ultimate fate of Perez, 253 F.3d 1280, this court was free to agree with the reasoning put forth in Paladino and to rely on it as persuasive authority. See Paladino, 134 F.3d at 1062 (“When an arbitration clause has provisions that defeat the remedial purpose of the statute, ... the arbitration clause is not enforceable.”). As such, Flyer Printing is still the law of the Second District.

For the reasons discussed, we reverse the trial court’s order granting Colonial’s motion to compel arbitration and remand for further proceedings.

Reversed and remanded.

ALTENBERND and NORTHCUTT, JJ., Concur.

      . 29U.S.C. § 216(b) (2006).

      . Because we are reversing on this basis, we need not address Hernandez’s argument that the arbitration agreement should be deemed unenforceable because the cost of arbitration is prohibitively expensive. Furthermore, we need not address the issue of whether it is the purview of the trial court or the arbitrator to determine whether there is a valid arbitration agreement as that issue has been settled in the trial court’s favor by the Florida Supreme Court in Shotts v. OP Winter Haven, Inc., 86 So.3d 456, 465 (Fla.2011).


author: SAWAYA, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. T.W., Mother of D.W., D.D., and D.S. Children, Respondent.
    No. 5D13-3196.
    District Court of Appeal of Florida, Fifth District.
    Oct. 25, 2013.
    Rosemarie Farrell, of Children’s Legal Services, Orlando, for Petitioner.
    Philip A. Haas, of Haas Law, P.A., Melbourne Beach, and Jeffrey D. Deen, of Office of Criminal Conflict and Civil Regional Counsel, Casselberry, for Respondent.
   SAWAYA, J.

Petitioner filed an Emergency Petition for Certiorari seeking expedited review of an order rendered by the trial court ordering reunification of the mother with her two older children, who had previously been sheltered. The order was entered at the mother’s drug court status hearing. Petitioner had no prior notice that reunification would be addressed, Petitioner was not afforded an opportunity to present witnesses or otherwise prepare to address this issue, and no proper evidentiary hearing was held where witnesses were called to testify under oath.

When it became apparent that the trial court was going to address reunification at the status hearing, Petitioner strenuously objected claiming complete surprise. The trial court overruled that objection and ordered reunification based on unsworn statements made by the mother and the case worker.

The lack of proper notice and the failure to conduct an evidentiary hearing where Petitioner had a fair opportunity to present evidence deprived Petitioner of its due process rights. The result is an order that departs from the essential requirements of the law and causes irreparable harm that cannot be remedied on appeal. See Dep’t of Children & Families v. W.H., 109 So.3d 1269 (Fla. 1st DCA 2013) (granting petition for certiorari and quashing order of reunification, concluding that Department’s due process rights were violated when the order was entered without proper notice and an evidentiary hearing). We therefore grant the petition, quash the order under review, and remand this case for further proceedings.

Petition Granted, Order Quashed, and Remanded.

TORPY, C.J., and WALLIS, J., concur.


text:
    Daniel O’SHEA, Appellant, v. Anne O’SHEA, Appellee.
    No. 5D13-2159.
    District Court of Appeal of Florida, Fifth District.
    Oct. 25, 2013.
    Daniel S. O’Shea, Fort Lauderdale, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Because of the lack of a transcript, we are compelled to affirm. See Arnold v. Whitley, 97 So.3d 339 (Fla. 5th DCA 2012) (judgment of trial court comes to appellate court clothed with presumption of correctness and may not be disturbed in absence of record demonstrating error).

AFFIRMED.

GRIFFIN, EVANDER and COHEN, JJ., concur.


text:
    Javonty Akeeba PARIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4736.
    District Court of Appeal of Florida, Fifth District.
    Oct. 25, 2013.
    Peter Loblack of Law Office of Peter Loblack, P.A., Plantation, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Javonty Paris appeals the order denying his Florida Rule of Criminal Procedure 3.850 motion to withdraw plea and vacate sentence. On appeal, he raises two arguments as to why he should be allowed to withdraw his nolo contendere plea, only one of which merits discussion.

Paris alleges that his trial counsel was ineffective because she failed to advise him of the clear immigration consequences of the plea. He claims that, if counsel had informed him that the plea would likely subject him to deportation, he would have proceeded to trial or attempted to negotiate a better plea. The Supreme Court has established that defense counsel’s failure to give legal advice regarding deportation consequences of a plea can constitute ineffective assistance. See Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Here, the record does not conclusively refute Paris’s allegation of ineffective assistance of counsel. Therefore, we remand for the trial court to either attach portions of the record conclusively refuting Paris’s allegation that his counsel was ineffective or hold an eviden-tiary hearing on the issue.

REMANDED WITH . INSTRUCTIONS.

TORPY, C.J., ORFINGER and COHEN, JJ., concur.


author: PALMER, J.

text:
    Tony Lemar FISHER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-3430.
    District Court of Appeal of Florida, Fifth District.
    Oct. 25, 2013.
    James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Tony Lemar Fisher (defendant) appeals the restitution order entered against him. Because the order improperly awards restitution for items not included in the defendant’s original sentence, we reverse.

The defendant attacked the victim causing injuries to her hands and wrists. He pled guilty to the charge of attempted first-degree murder with a deadly weapon and burglary of a dwelling while armed. Under the terms of the plea agreement, the defendant agreed to pay restitution to the victim for treatment and therapy. Specifically, at the sentencing hearing (held in 1997), the court ordered the defendant to pay “on going” restitution to the victim for “medical, physical, psychiatric and psychological care, including non-medical care and treatment given under any recognized method of healing.”

Upon the defendant’s release from prison in 2012, his probation officer could not determine the amount of restitution due the victim. Accordingly, another restitution hearing was held. At that hearing, the State requested the court to grant restitution to. the victim in the amount of her student loans; the State did not request restitution for medical care and related services. The trial court awarded the restitution sought by the State, determining that the victim’s severe hand injuries prevented her from doing manual labor and prompted her to seek a college education so she could gain employment.

The defendant argues that the trial court violated his constitutional protection against double jeopardy by ordering him to pay the victim restitution to cover her student loans because the ruling increased his sentence. We agree.

It is a double jeopardy violation for a trial court to increase the amount of restitution a defendant is required to pay after the sentence is entered and payment of restitution is ordered. See Strickland v. State, 681 So.2d 929 (Fla. 3d DCA 1996). Thus, the instant restitution order violated the defendant’s double jeopardy rights because it imposed an obligation to pay the victim’s student loans when the original restitution order required restitution only for expenses related to the victim’s medical costs. Accordingly, we reverse the restitution order and remand for a new restitution hearing. See Locus v. State, 785 So.2d 594 (Fla. 1st DCA 2001). At such hearing, the State can seek the full amount of restitution due for the victim’s “medical and related services and devices related to physical, psychiatric and psychological care, including non-medical care and treatment rendered in accordance with a recognized method of healing.”

REVERSED and REMANDED.

TORPY, C.J. and ORFINGER, J., concur.

      . Although the defendant failed to raise this argument during the restitution hearing, it is authorized because errors that violate a defendant's double jeopardy rights are deemed fundamental. See Bailey v. State, 21 So.3d 147 (Fla. 5th DCA 2009).


text:
    James Michael ZIMMERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2802.
    District Court of Appeal of Florida, Fifth District.
    Oct. 25, 2013.
    Jack R. Maro, of Law Office of Jack R. Maro, P.A., Ocala, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

James Zimmerman appeals his conviction for sexual battery on a physically helpless person. The only issues raised on this direct appeal relate to the alleged ineffectiveness of his trial counsel. We affirm. A claim of ineffective assistance of counsel may be raised on direct appeal only where the ineffectiveness is apparent on the face of the record. Gore v. State, 784 So.2d 418, 437-38 (Fla.2001). Our af-firmance is without prejudice to Zimmerman’s right to seek postconviction relief.

AFFIRMED.

PALMER, EVANDER and BERGER, JJ., concur.


author: ROWE, J.

text:
    Charles D. RAMSEY and Gudrun Ramsey, Husband and Wife, Appellants, v. HOME DEPOT U.S.A., INC. and John Markham Newbern, Appellees.
    No. 1D12-5781.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2013.
    Stephen H. Echsner of Aylstock, Witkin, Kreis & Overholtz, PLLC, Pensacola, for Appellants.
    Joseph A. Kopacz and James P. Wac-zewski of Luks, Santaniello, Petrillo & Jones, Tampa, for Appellees.
   ROWE, J.

Appellants, Charles and Gudrun Ramsey, challenge the trial court’s grant of summary judgment in favor of Appellees, Home Depot and John Newbern. Because the Ramseys failed to show that there were genuine issues of material fact in dispute, we affirm the final order on appeal.

I. Factual Background

Gudrun Ramsey was a customer at Home Depot and parked her car in one of the designated accessible parking spaces. On her way back to the car, she tripped over a wheel stop at the front of the parking space where her car was located. As a result of the fall, Mrs. Ramsey was physically injured and she incurred medical expenses. The Ramseys filed a negligence action against Home Depot, alleging that Home Depot owed Mrs. Ramsey a duty to exercise reasonable care to maintain the premises in a reasonably safe condition and a duty to warn of any dangerous, hazardous, and unsafe conditions which existed on the property. The Ram-seys alleged that the wheel stop was a dangerous and hazardous condition. Home Depot moved 'for summáry judgment, arguing that, as a matter of law, it had no duty to warn Mrs. Ramsey as the wheel stop was an open and obvious danger and that there were no disputed issues of material fact as to whether Home Depot maintained the premises in a reasonably safe condition.

In support of its motion for summary judgment, Home Depot submitted the affidavit of Rowland Lamb, a professional engineer, who described the accessible parking spaces as being twelve feet wide and twenty feet long. He averred that the spaces had six-foot wheel stops located in the center of the parking space and a posted accessibility sign mounted in a concrete bollard. He opined that the accessible parking spaces met the requirements of the Americans with Disabilities Act, the Florida Building Code, and the Escambia County Land Development Code. Home Depot also submitted the testimony of Bruce Talvey, a construction manager for Home Depot, who averred that the purpose of the bollards was to prevent the accessibility signs from being easily bent. He asserted that the bollards were not designed to prevent cars from entering the pedestrian walkway between the rows of accessible parking spaces.

The Ramseys relied on their expert’s affidavit and Mrs. Ramsey’s deposition to oppose the motion for summary judgment. Mrs. Ramsey testified that the accident occurred between 9:00 and 10:00 a.m., on a clear, sunny day. She testified that as she left the store, she was carrying her purchases, her purse, and her car keys. She testified that she tried to walk around the car, but she was focused on the accessibility sign and did not see the wheel stop because it was the same color as the parking lot. She testified that her left foot caught on the wheel stop, causing her to fall.

James Anderson, a professional engineer, averred that Home Depot could have used shorter wheel stops to eliminate the risk of tripping. He opined that the placement of wheel stops in an area for disabled patrons made them inherently dangerous because they created a barrier to a flat, even walking surface. Mr. Anderson asserted that a reasonable alternative design was available that completely eliminated the wheel stops and only used concrete bollards to protect the pedestrians in the walkway. After reviewing the evidence and hearing the arguments of the parties, the trial court granted Home Depot’s motion for summary judgment and entered final judgment in its favor. This appeal follows.

II. Analysis

We review the trial court’s ruling on the summary judgment motion de novo. Mills v. State Farm, Mut. Auto. Ins. Co., 27 So.3d 95, 96 (Fla. 1st DCA 2009). “[Summary judgment should be entered only when there is no genuine issue of any material fact, and even the slightest doubt as to the existence of such a question precludes summary judgment.” Laidlaw v. Krystal Co., 53 So.3d 1128, 1129 (Fla. 1st DCA 2011).

In order for the Ramseys’ negligence claim to survive summary judgment, they were required to offer evidence tending to show that Home Depot either: (1) failed to warn Mrs. Ramsey of a concealed' danger which was or should have been known to Home Depot and which was unknown to Mrs. Ramsey and could not be discovered through the exercise of due care; or (2) failed to use ordinary care to maintain its premises in a reasonably safe condition. Rocamonde v. Marshalls of Ma., Inc., 56 So.3d 863, 865 (Fla. 3d DCA 2011).

a. Open and Obvious Hazard

With respect to the first prong of the negligence test, the trial court properly determined that the Ramseys’ claim that Home Depot failed to warn of a concealed condition was barred as a matter of law. The Ramseys’ claim fails as a matter of law because the wheel stop over which Mrs. Ramsey tripped was not concealed, but instead was an open and obvious condition. Although a property owner has a duty to maintain its premises in a reasonably safe manner for its invitees, there is no duty to warn against an open and obvious condition which is not inherently dangerous. Aaron v. Palatka Mall, L.L.C., 908 So.2d 574, 576-77 (Fla. 5th DCA 2005).

Generally, á wheel stop placed in the center of a parking space and clearly visible presents no unreasonable risk of harm. See Aaron v. Logro Corp., 226 So.2d 8 (Fla. 3d DCA 1969), review denied, 238 So.2d 422 (Fla.1970). Here, Mrs. Ramsey tripped over a concrete wheel stop in the parking lot of her local Home Depot. Mrs. Ramsey testified that the accident occurred in the morning on a clear and sunny day. The wheel stop was located at the top of the parking space and was centered within the parking stripes. The bright yellow concrete bollard holding the accessibility sign was located above the wheel stop in the parking space and was centered on the wheel stop. The wheel stop was made of concrete and the parking lot was made of asphalt. There were no allegations that the wheel stop or the concrete bollard were not properly maintained or that either suffered from design defects.

This was not a situation where the wheel stop was located in a fire lane next to the sidewalk, Bryant v. Lucky Stores, Inc., 577 So.2d 1347 (Fla. 2d DCA 1990), or a situation where the wheel stop was not centered between the parking stripes. Ricciardelli v. Fla. Fed. Sav. & Loan Ass’n, 564 So.2d 620 (Fla. 4th DCA 1990). Furthermore, Mrs. Ramsey’s accident did not occur on a rainy night with insufficient lighting. Palatka Mall, 908 So.2d at 579. Rather, taking into consideration all of the facts and circumstances surrounding the accident, it is apparent that this particular wheel stop was an open and obvious condition. See Westchester Exxon v. Valdes, 524 So.2d 452, 455 (Fla. 3d DCA 1988) (“An owner or occupier of a place of business is not an insurer of his customers’ safety; rather, he owes his customers only a duty to protect against those risks which are reasonably foreseeable.”). The wheel stop would have been readily observable to patrons employing their own senses. Krol v. City of Orlando, 778 So.2d 490, 493 (Fla. 5th DCA 2001). Here, Mrs. Ramsey admitted that at the time of the accident, she was not looking where she was walking, but instead was looking at the accessibility sign when she tripped over the wheel stop and fell. The fact that Mrs. Ramsey did not see the wheel stop does not render the wheel stop a dangerous condition, let alone one that was not open and obvious. City of Melbourne v. Dunn, 841 So.2d 504, 505 (Fla. 5th DCA 2003). For these reasons, we find, that the trial court correctly determined that the wheel stop was an open and obvious condition.

b. Duty to Maintain the Premises in a Reasonably Safe Condition

Our analysis does not end with the determination that the condition was open and obvious. The trial court correctly concluded that the Ramseys failed to raise a genuine issue of material fact as to whether Home Depot complied with its duty to maintain the premises in a reasonably safe condition.

In support of its motion, Home Depot made a prima facie showing of entitlement to summary judgment by submitting photographic evidence of the condition of the parking lot, demonstrating that the wheel stops were not inherently dangerous, and by offering expert testimony to establish that the wheel stops were in compliance with the Americans with Disabilities Act, as well as state and local building codes. Further, Home Depot offered its expert’s affidavit citing the ADA Standards for Accessible Design, which depict the use of wheel stops in accessible parking spaces.

In opposition to Home Depot’s motion, the Ramseys’ expert, Mr. Anderson, averred that (1) Home Depot could have used five-foot instead of six-foot wheel stops; (2) that the use of wheel stops and concrete bollards in the accessible spaces was “redundant;” (3) that safer designs were available for the accessible spaces that completely eliminated the use of wheel stops; and (4) that the use of wheel stops in an accessible space does not provide a flat, even walking surface for disabled patrons.

Although the Ramseys argue that the affidavit of Mr. Anderson created a factual dispute as to this issue, viewing Mr. Anderson’s affidavit in the light most favorable to the Ramseys, we conclude that Mr. Anderson’s averments concerning alternate parking lot designs were insufficient to create a genuine issue of material fact as to Home Depot’s duty to conform to any of those designs. See Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC, 75 So.3d 865, 870 (Fla. 2d DCA 2011) (holding that a bare assertion in an affidavit without any supporting facts or documents was nothing more than a factual conclusion); Heitmeyer v. Sasser, 664 So.2d 358 (Fla. 4th DCA 1995) (holding that an expert’s affidavit was conelusory because it did not provide any reasoning to support the expert’s conclusions); Stolzenberg v. Forte Towers South, Inc., 430 So.2d 558, 559 (Fla. 3d DCA 1983) (holding that an affidavit was insufficient as containing “mere conclusions” because the affidavit did not indicate the source of the affiant’s knowledge). Mr. Anderson attested only to his own personal preferences rather than to the requirements of any law, code, regulation, or recognized industry safety standard; his unsupported opinion did not establish that Home Depot failed to maintain the accessible parking space in a reasonably safe manner or that the parking space design was in any way defective; and he offered only generalized, coneluso-ry opinions that the wheel stops in Home Depot’s parking lot created a dangerous condition. Conelusory, general assertions do not create factual disputes necessary to avoid summary judgment. K.E.L. Title Ins. Agency, Inc. v. CIT Tech. Fin. Servs., Inc., 58 So.3d 369, 369 (Fla. 5th DCA 2011); Valenzuela v. GlobeGround N. Am., LLC, 18 So.3d 17, 25 (Fla. 3d DCA 2009).

Because the Ramseys failed to come forward with any evidence that Home Depot failed to use ordinary care to maintain the accessible parking area in a reasonably safe condition, we conclude that trial court correctly determined that no genuine issues of material fact existed as to this prong of the negligence test.

III. Conclusion

The trial court properly granted summary judgment to Home Depot in this negligence case because the Ramseys failed to establish that Home Depot had a duty to warn of the presence of a wheel stop that was located in an open and obvious place and because the conclusory allegations in Mr. Anderson’s affidavit were insufficient to create a disputed issue of material fact as to whether Home Depot maintained its premises in a reasonably safe condition. We, therefore, AFFIRM the final order on appeal.

THOMAS and CLARK, JJ., concur.


author: PER CURIAM. CLARK, J,

text:
    Dionte DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1338.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2013.
    Nancy A. Daniels, Public Defender, M. Gene Stephens, Assistant Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Monique Rolla, Assistant Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

BENTON and THOMAS, JJ., concur.

CLARK, J., specially concurs with opinion.

CLARK, J,

specially concurring.

I agree that Appellant’s conviction should be affirmed.

While affirmance of Appellant’s conviction is warranted, I write to express my concern about the prosecutor’s actions in failing to disclose significant information to the court. Prosecutors are officers of the court and must shoulder an “awesome responsibility.” Salazar v. State, 991 So.2d 364, 383 (Fla.2008) (Pariente, J., specially concurring). The Prosecutor’s job is not to obtain convictions, it is to serve justice and conduct a fair and impartial trial— they must “refrain from improper methods calculated to produce a wrongful conviction.” See Gore v. State, 719 So.2d 1197, 1202 (Fla.1998).

Here, the prosecutor withheld knowledge of a sitting juror’s involvement in the law enforcement investigation of the case being tried — when the prosecutor was unquestionably aware of that fact. The prosecutor admitted to being specifically told that the juror was involved in the investigation of the case for which he was also a sitting juror. Neither the defense nor the court was aware of this juror’s involvement in the case. Both were entitled to this information.

This failure to disclosure such significant information could jeopardize the integrity of our judicial system and the propriety of the judicial process; a system and process counsel swore to defend and uphold. Yet, as concerned as I am with this conduct, because the evidence of Appellant’s guilt was substantial and the juror was replaced with an alternate before deliberations began, the taint of the prosecutor’s misconduct did not seep to the jury, the trial, or the verdict. See Scott v. State, 66 So.3d 923, 931-32 (Fla.2011); McGirth v. State, 48 So.3d 777, 791 (Fla.2010); England v. State, 940 So.2d 389, 401-02 (Fla.2006).

The trial court properly ensured Appellant received an impartial jury and fair trial by removing the juror who had been involved in the law enforcement investigation, and seating an alternate juror. Appellant has not shown a probability that the prosecutor’s knowledge of the juror’s involvement in the case would have changed the outcome of the trial. I cannot conclude that the prosecutor’s failure to disclose important information about a juror vitiated the trial, denied Appellant a fair trial or result, or contributed to Appellant’s conviction. Thus, despite my concern, I agree that the trial court did not abuse its discretion in denying Appellant’s motion for mistrial.


text:
    Charity April GRICE, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3278.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2013.
    Nancy A. Daniels, Public Defender and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Giselle D. Lylen, Assistant Attorney General and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

After review of counsel’s Response to Order to Show Cause, the appeal is DISMISSED without prejudice to Appellant seeking a belated appeal.

VAN NORTWICK, CLARK, and OSTERHAUS, JJ., concur.


author: PER CURIAM. MAKAR, J.,

text:
    PALMETTO BLUFF PROPERTIES, LLC, a Florida limited liability company, Edgar C. Marshall, IV, an individual, and Lanier J. Edwards, an individual, Appellants, v. TRUSTMARK NATIONAL BANK, Gulf Reflections Owners’ Association, Inc., a Florida not for profit Corporation, Florida Community Services Corp. of Walton County, Inc., a Florida not for profit Corporation, Angus G. Andrews, Jr., Terry Pilcher, and John Gillis, Appellees.
    No. 1D12-3503.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2013.

      Robert 0. Beasley of Litvak Beasley & Wilson, LLP, Pensacola, for Appellants.
    Michael P. Dickey and Jeffrey S. Carter of Barron & Redding, P.A., Panama City, for Trustmark National Bank and John Gillis; Harry Matthew Fuqua, Marianna, for Angus G. Andrews, Jr., and Terry Pil-cher; William H. Green, Defuniak Springs, for Florida Community Services Corp. of Walton County, Inc., a Florida not for profit Corporation.
   PER CURIAM.

AFFIRMED.

LEWIS, C.J. and WOLF, J., concur.

MAKAR, J., dissenting.

MAKAR, J.,

dissenting.

Fraud is generally not a proper subject of a summary judgment because “it requires an explanation of the facts and circumstances of the alleged wrongdoing to determine if they collectively constitute a fraud and for that reason such determination is seldom one that can be made in a legally sufficient manner without a trial.” Baker v. United Servs. Auto. Ass’n, 661 So.2d 128, 132 (Fla. 1st DCA 1995). That said, summary judgment on a fraud claim is proper where no doubt exists that any interpretation of the evidence, considered in the light most favorable to the non-moving party, shows no issue for trial. Because the evidence appears to be conflicting as to (1) whether Gus Andrews was an agent for Trustmark, upon whose board he served, and (2) whether Jon Gillis, an executive vice-president of Trustmark, made statements that induced plaintiffs into the transaction at issue, summary judgment in favor of Trustmark and its board member and officer on the fraudulent inducement and breach of fiduciary duty claims was improper.


text:
    Michael D. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3748.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2013.
    Nancy A. Daniels, Public Defender, Paula S. Saunders, Assistant Public Defender, Tallahassee, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, Criminal Appeals, Brittany Ann Rhodaback, Assistant Attorney General, Tallahassee, FL, for Appellee.
   PER CURIAM.

Appellant, Michael D. Johnson, appeals his conviction and sentence for attempted second-degree murder. As properly conceded by the State, fundamental error occurred during the proceedings when the jury was read the attempted voluntary manslaughter by act instruction disapproved of in State v. Montgomery, 39 So.3d 252, 256 (Fla.2010) (“(Defendant) intentionally caused the death of (victim).”) (quoting Fla. Std. Jury Instr. (Crim.) 7.7 (2006)). See also Williams v. State, 123 So.3d 23, (Fla.2013) (extending Montgomery to jury instruction on attempted voluntary manslaughter by act). We therefore reverse Appellant’s conviction and sentence for attempted second-degree murder and remand to the trial court for a new trial on that count. We affirm Appellant’s remaining conviction and sentence for possession of a firearm by a convicted felon.

AFFIRMED in part, REVERSED in part and REMANDED.

VAN NORTWICK, CLARK, and OSTERHAUS, JJ., concur.


text:
    Ana V. McCANN, Wife, Appellant, v. Richard D. McCANN, Husband, Appellee.
    No. 1D12-5418.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2013.
    Wm. Bruce Mueneh and Jonathan J. Luca of the Law Offices of Mueneh & Luca, PLLC, Jacksonville, for Appellant.
    Neal L. Betancourt of Rotchford & Be-tancourt, P.A., Jacksonville, for Appellee.
   PER CURIAM.

We affirm the final judgment dissolving the parties’ marriage, except as to the requirement that the former wife maintain life insurance with the children as beneficiaries. On remand, the trial court shall strike that provision. In all other respects, the final judgment is affirmed.

Affirmed in part, reversed in part and remanded.

BENTON, VAN NORTWICK, and PADOVANO, JJ, concur.


author: CLARK, J.

text:
    Warren Lee EDWARDS, Appellant, v. Michael D. CREWS, Secretary, Florida Department of Corections, Appellee.
    No. 1D12-5891.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2013.

      Warren Lee Edwards, pro se.
    Pamela Jo Bondi, Attorney General and Charles R. McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

Warren Lee Edwards appeals the dismissal of his petition for writ of habeas corpus by the circuit court in the county in which he is detained. See § 79.09, Fla. Stat. In the petition for writ of habeas corpus, Edwards asserted that he was entitled to immediate release due to a deficiency in the pre-trial probable cause for his arrest and due to a lack of sufficiency in the paperwork accompanying his acceptance into custody by the Century Correctional Institution in Escambia County, Florida. The dismissal of the petition is affirmed.

Appellant’s challenge to the judgment and sentence under which he is detained, on the ground that the pre-arrest probable cause affidavits and arrest warrants were faulty, was properly dismissed because such claims must be raised at trial and, if preserved, on direct appeal of the judgment. See Zuluaga v. State Dep’t of Corrections, 32 So.3d 674 (Fla. 1st DCA 2010) (rule 3.850, Fla. R. Crim. P., has completely superseded writ of habeas corpus to collaterally challenge a sentence). Challenges to the original probable cause are properly raised at trial and on direct appeal but are not a viable basis for post-conviction relief, Jessie v. State, 726 So.2d 356 (Fla. 5th DCA 1999), or a postconviction writ of habeas corpus.

Considering Appellant’s claim that he was improperly accepted into custody by the Century Correctional Institution without full compliance with section 944.17(5), Florida Statutes, the writ of ha-beas corpus is no,t available to remedy such administrative deficiency. While a prisoner might be entitled to correction of his or her commitment file if deficiencies in the documents are discovered, section 944.17(5), Florida Statutes contains no indication that the Florida Legislature created a legal cause of action for prisoners to enforce the documentary requirements therein. See Sykes v. State, 974 So.2d 1138 (Fla.1st DCA 2008). Likewise, the statute does not provide that any omission or lack of compliance by the Department of Corrections or any correctional institution might have any effect upon the validity of the court’s judgment and sentence or confer a liberty interest upon a prisoner. Section 944.17, Florida Statutes does not create a cause of action for prisoners to challenge their detention under a facially valid judgment and sentence and provides no support for any claim of entitlement to immediate release.

The order dismissing the petition for writ of habeas corpus is AFFIRMED.

VAN NORTWICK and OSTERHAUS, JJ., concur.


text:
    Telissa A. BROWN, wife, Appellant, v. Schane D. BROWN, husband, Appellee.
    No. 1D13-0125.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2013.

      Jonathan J. Luca and Wm. Bruce Muench of Law Offices of Muench & Luca, PLLC, Jacksonville, for Appellant.
    No appearance, for Appellee.
   PER CURIAM.

Telissa A. Brown, the former wife, appeals a final judgment which modifies a previously entered judgment of dissolution. Because there was no showing of a substantial and material change in circumstances, we reverse.

The parties’ agreement as to child custody and support, among other things, was adopted by the trial court in its final judgment of dissolution. Thereafter, the former husband moved to modify that part of the judgment pertaining to custody and child support. The matter was heard by a magistrate who stated in his recommendation:

The Court cannot say that the testimony and evidence presented by the Former Husband, alone, amounts to a substantial and material change in circumstances. However, when the testimony and evidence presented by the Former Husband is combined with the Former Wife’s lack of objection to the Former Husband receiving additional time with the child, the Court finds that this amounts to a substantial and material change in circumstances. Former Wife’s attorney did argue that the Court should not memorialize this extra time-sharing into a separate order when the existing provisions of the parties’ Consent Judgment provides that the parties can allow each other extra time when requested. The Court does not agree with the Former Wife’s attorney’s argument.

The trial court adopted this provision verbatim in its judgment granting modification of child custody and support.

To the extent the magistrate’s report finds that the former wife consented to modification, such a finding is not supported by competent, substantial evidence of record. The former wife did testify that she tried to be accommodating when the former husband asked for additional time, as she wanted the children to have a good relationship with their father. She did not consent to modification, however, as evidenced by her response opposing the motion to modify. The matter was sent to mediation, and no agreement could be reached. She continued to contest modification at the hearing. Further, as argued to the magistrate below, a parent’s consent to extra visitation is not a basis for a modification. See Henderson v. Henderson, 537 So.2d 125, 127 (Fla. 1st DCA 1988); Smoak v. Smoak, 658 So.2d 568 (Fla. 1st DCA 1995); Sidman v. Marino, 46 So.3d 1136 (Fla. 1st DCA 2010). Section 61.13(3), Florida Statutes, requires proof that modification of a parenting plan and time-sharing schedule is in the best interests of the child and is based upon a substantial, material, and unanticipated change in circumstances. See Sidman.

Accordingly, the modification judgment is reversed.

BENTON, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    Jeanna CARPENTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0165.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2013.

      Jeanna Carpenter, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General and Bryan Jordan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is GRANTED, the circuit court’s order dismissing the motion for modification of sentence under rule 3.800(c), Florida Rules of Criminal Procedure is QUASHED, and this matter is REMANDED for consideration of the motion on the merits. Fla. R.App. P. 9.420(a)(2); Manspeaker v. State, 90 So.3d 998 (Fla. 1st DCA 2012).

VAN NORTWICK, CLARK, and OSTERHAUS, JJ., concur.


text:
    Donnell BATTS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3564.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2013.
    Donnell Batts, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because the Court’s jurisdiction was not invoked in a timely fashion, the appeal is dismissed. However, the dismissal is without prejudice to appellant filing a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

LEWIS, C. J., ROWE and MAKAR, JJ., concur.


text:
    Andrey Moses WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3817.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2013.
    Stacy A. Scott, Public Defender, Susan A. Ward, Assistant Public Defender, Gainesville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because the Court’s jurisdiction was not invoked in a timely fashion, the appeal is dismissed. However, the dismissal is without prejudice to appellant filing a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). All pending motions are denied as moot.

LEWIS, C. J., ROWE and MAKAR, JJ., concur.


text:
    Richard A. HEARSEY and Kimie L. Hearsey Appellant, v. SUNTRUST MORTGAGE, INC. et al., Appellee.
    No. 5D13-2346.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 2013.
    Richard A. Kalinoski, Jr., Christmas, for Appellants.
    Tricia J. Duthiers, and Frank P. Cueneo of Liebler, Gonzalez & Portuondo, Miami, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a).

GRIFFIN, LAWSON and BERGER, JJ., concur.


text:
    Kristopher Brian WALKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2764.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2013.
    Bruce A. Miller, Public Defender, and Katherine R. Jaquet, Assistant Public Defender, Pensacola, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.141(c)(5).

THOMAS, ROBERTS, and CLARK, JJ., concur.


text:
    Jerry WEST, Petitioner, v. JACKSON CORRECTIONAL INSTITUTION, Respondent.
    No. 1D13-3601.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2013.

      Jerry West, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied on the merits. See Al-Hakim v. State, 783 So.2d 293 (Fla. 5th DCA 2001).

THOMAS, ROBERTS, and CLARK, JJ., concur.


text:
    Hollins D. MILLS, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-3688.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2013.
    Hollins D. Mills, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied on the merits. See Al-Hakim v. State, 783 So.2d 293 (Fla. 5th DCA 2001).

THOMAS, ROBERTS, and CLARK, JJ., concur.


text:
    Rufus Joseph JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0362.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2013.
    Rufus Joseph Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is dismissed. Munn v. Florida Parole Comm’n., 807 So.2d 733 (Fla. 1st DCA 2002).

WETHERELL, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Randy SPENCER, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D13-3556.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2013.

      Randy Spencer, pro se, Petitioner.
    Sarah J. Rumph, General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

In light of the circuit court’s issuance of an order to show cause why the petition pending below should not be granted, the petition for writ of mandamus is denied on the authority of Munn v. Florida Parole Commission, 807 So.2d 733 (Fla. 1st DCA 2002). Petitioner’s motion requesting that the court treat his petition for writ of mandamus as seeking certiorari review of the circuit court’s order to show cause is denied.

LEWIS, C.J., ROWE and MAKAR, JJ., concur.


text:
    Vandine L. BENNETT, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and MB Redevelopment Inc., Appellees.
    No. 1D13-3738.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2013.
    Vandine L. Bennett, pro se, Appellant.
    Norman A. Blessing, General Counsel, and Louis A. Gutierrez, Assistant General Counsel, Tallahassee, for Appellees.
   PER CURIAM.

The Court has determined that appellant’s notice of appeal failed to invoke its appellate jurisdiction in a timely manner. Accordingly, appellee’s motion to dismiss, filed on September 19, 2013, is granted and the appeal is dismissed.

THOMAS, ROBERTS, and CLARK, JJ., concur.


text:
    Darryl Maurice YOUNG, Petitioner, v. CHIEF OF CLASSIFICATION, Respondent.
    No. 1D13-4037.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2013.
    Darryl Maurice Young, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Pettway v. State, 776 So.2d 930 (Fla.2000). All pending motions are likewise denied.

LEWIS, C.J., ROWE and MAKAR, JJ., concur.


author: VILLANTI, Judge.

text:
    DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner, v. STATE of Florida and Michael Barnett, Respondents.
    No. 2D13-2818.
    District Court of Appeal of Florida, Second District.
    Nov. 1, 2013.
    Alicia Victoria Gonzalez, Tampa, for Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Respondent State of Florida.
    Bob Dillinger, Public Defender, and Jill Menadier, Assistant Public Defender, Clearwater, for Respondent Michael Barnett.
   VILLANTI, Judge.

The Department of Children & Family Services seeks a writ of certiorari to quash the trial court’s order that involuntarily committed criminal defendant Michael Barnett to the Department’s care and custody after he was found incompetent to proceed on criminal charges. Both the Attorney General’s Office and Barnett agree that the trial court departed from the essential requirements of the law in committing Barnett to the Department because his involuntary pretrial commitment is not authorized under the provisions of section 916.13, Florida Statutes (2012). Therefore, we grant the petition, quash the trial court’s order to the extent that it committed Barnett to the Department, and remand for further proceedings.

Barnett is a criminal defendant in at least two cases pending in the circuit court. After questions arose concerning Barnett’s competence, he was examined by two separate mental health experts. Both determined that he was incompetent to proceed due to cognitive disorders arising from head trauma. In December 2011, the trial court adjudged Barnett incompetent to proceed and committed him to the Department for treatment and placement recommendations.

The Department provided treatment until June 2012, at which time the Department’s “forensic intervention trainer” reported that Barnett had reached his maximum level of competency and should be reevaluated. In August 2012, Dr. Jill Poorman reevaluated Barnett, opined that he remained incompetent to proceed, and stated that his competence was “likely unrestorable.” Following a subsequent evaluation in October 2012, Dr. Poorman indicated that Barnett’s competence was “unrestorable, given the nature of his diagnosis.” Dr. Poorman also opined that Barnett lacked the ability to adequately care for himself, and she noted that his behavior had become increasingly aggressive. Therefore, she recommended that he be placed in a locked facility, and she further expressed her belief that Barnett met the criteria for involuntary hospitalization. Based on Dr. Poorman’s report, the circuit court again adjudged Barnett incompetent to proceed in November 2012, and it again committed him to the Department “to be placed in a mental health treatment facility, pursuant to § 916.13(2), Fla. Stat.”

The Department filed a motion to intervene and to vacate the order committing Barnett to the Department, arguing that Barnett did not meet the statutory criteria for commitment to the Department because his competence could not be restored. On December 20, 2012, the circuit court granted the Department’s motion and vacated the portion of the November 2012 order that committed Barnett to the Department. In that order, the court noted that “Dr. Poorman was commencing civil commitment proceedings.” However, Barnett was thereafter held only briefly as a result of the Baker Act proceedings initiated by Dr. Poorman.

In March 2013, Barnett was back before the court on new criminal charges. On May 17, 2013, the circuit court entered an order adjudging Barnett incompetent and specifically finding that “he is not restora-ble to competency due to [his] mental illness.” Based on Barnett’s incompetence, the circuit court again committed him to the Department “to be placed in a mental health facility.”

The Department again filed a motion to intervene and vacate the order committing Barnett to the Department. The Department again pointed out that Barnett did not meet the statutory criteria for commitment to the Department because, as was previously found by both the expert and the trial court, his competence was not restorable. At an initial hearing on the Department’s motion, the circuit court expressed its frustration with the Department, saying:

We’re in the real world now, so do you want to have a real discussion or anything else you want to indicate regarding that? The guy can’t live in the community; he’s demonstrated over a period of time. He needs to be in the State Hospital; that’s the bottom line. So like it, don’t like it; that’s fine. You want to take it to the 2 DCA, have at it if that’s the case. I’m not putting the guy out on the street that has no ability to comply with a 916 release.

When the Department pointed out that it was simply following the dictates of the statute, the court told the Department that “quoting me what some obscure regulation says is not a solution and not an answer.” The court then suggested that the Department’s counsel see whether any compromise solution could be developed, and it reset the hearing for a week later.

At the rescheduled hearing, the Department again pointed to the statutory language that mandated that Barnett be re-storable to competency for commitment to the Department to be proper. The State conceded that Barnett did not meet the statutory criteria for commitment, but it noted that it had suggested that the Department should “compromise” and take Barnett anyway. The Department rejected the State’s suggested “compromise.” In denying the Department’s motion to vacate, the circuit court stated:

I’m not — you want that order? Go see the DCA. Let those three guys put Mr. Barnett back out on the street if they feel comfortable with that; guys or gals. So let the DCA make that call if that’s the call they want to make. Putting me in the position is unconscionable. It starts with the rules and regulations that suggest that.
If the DCA says release him, good, I’ll recuse myself and somebody else can release him, but I’m not going to do that. I would be abdicating my responsibility, and I’m not doing it. So no, no, hell no, under the circumstances. So the DCF motion to intervene and vacate is denied.

The Department now seeks a writ of cer-tiorari to quash the portion of the order committing Barnett to its care and custody-

Section 916.13 permits a court to involuntarily commit a defendant to the Department when that defendant is charged with a felony and found incompetent to proceed because of mental illness. However, the court may commit a defendant only if that defendant “meets the criteria for involuntary commitment to the department under the provisions of this chapter.” § 916.13(2). Those criteria include that there be “a substantial probability that the mental illness causing the defendant’s incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future.” § 916.13(l)(c) (emphasis added). A court that commits a defendant in violation of these statutory requirements improperly encroaches on the legislature’s authority to prescribe the limits of an agency’s obligations and on an agency’s obligation to expend its appropriated funds in accordance with the laws governing that agency. Cf. Fla., Dep’t of State, Div. of Elections v. Martin, 916 So.2d 763, 769-70 (Fla.2005) (noting that it is the legislature’s obligation to set forth the standards and guidelines by which an agency must act and the court’s obligation to determine whether those agencies are acting in accord with the legislature’s intent); Dep’t of Revenue ex rel. v. Nesbitt, 975 So.2d 549, 551-52 (Fla. 4th DCA 2008) (holding that the trial court had no authority to order the Department of Revenue to take action in violation of its statutory obligations or in derogation of. its statutory authority); Office of State Attorney for Eleventh Judicial Circuit v. Polites, 904 So.2d 527, 532 (Fla. 3d DCA 2005) (noting that when a court interferes with an agency’s spending of its appropriated funds, the court -violates the separate of powers doctrine by “encroaching on the powers of the agency”). Moreover, doing so violates the rules of procedure promulgated by the supreme court, which provide that a court may commit a defendant for treatment only if “the defendant meets the criteria for commitment as set forth by statute.” Fla. R. Crim. P. 3.212(c)(3)(A). Hence, as recognized even by the trial judge here, a trial court simply has no authority to commit a criminal defendant to the Department when that defendant does not meet the statutory criteria. In fact, doing so is an abdication of the trial court’s responsibility to apply the laws duly enacted by the legislature.

In this ease, no one disputes that Barnett has a physical brain injury that has resulted in mental illness which is of such a nature that Barnett “is not restora-ble to competency.” As the court’s own findings demonstrate, Barnett does not satisfy the requirements for involuntary pretrial commitment found in section 916.'13(l)(c). While we certainly sympathize' with the trial court’s frustrations and unwillingness to contribute to potential chaos, we note that the rule of law simply does not permit a trial court to fashion its own remedy in derogation of statutory limitations, and good intentions cannot expand the trial court’s power in this regard. It is up to the legislature — not the trial court or this court — to close any gaps that may exist in the statutory scheme and to address the inadequacies of the existing law when applied to facts such as these. Hence, the trial court departed from the essential requirements of the law by committing Barnett in violation of the statutory requirements, and we must grant the Department’s petition and quash the trial court’s order to the extent that it involuntarily committed .Barnett.

On remand, the trial court must hold an expedited hearing to determine whether there is any lawful basis to continue to hold Barnett involuntarily. This may include consideration of whether the State should again initiate civil commitment proceedings pursuant to the Baker Act or other pertinent statutes. If no such lawful basis for involuntary commitment exists, the trial court must release Barnett. If the court orders release, it should consider whether appropriate conditions may again be lawfully imposed under rule 3.212(d). See, e.g., Dep’t of Children & Family Servs. v. Amaya, 10 So.3d 152, 157 (Fla. 4th DCA 2009) (noting that “[t]he proper course when an incompetent defendant does not meet the criteria for commitment, and cannot be restored to competency, is for the State to initiate civil commitment proceedings under the Baker Act or for the court to release the defendant ‘on appropriate conditions’ as provided in Rule 3.212(d)” (citing Abreu-Gutierrez v. James, 1 So.3d 262, 267 (Fla. 4th DCA 2009); Dep’t of Children & Families v. Gilliland, 947 So.2d 1262, 1263 (Fla. 5th DCA 2007); Oren v. Judd, 940 So.2d 1271, 1274 (Fla. 2d DCA 2006); Mosher v. State, 876 So.2d 1230, 1232 (Fla. 1st DCA 2004))). And, given the circuit court’s comments at the hearings leading to the order at issue here, we direct that this case be assigned to a different circuit judge on remand.

Petition granted and case remanded with instructions.

WALLACE, J., Concurs.

SILBERMAN, J., Concurs in result only.

      . §§ 394.451-47891, Fla. Stat. (2012).