author: RAY, J. WOLF, J., MAKAR, J.,

text:
    Thomas PARTLOW, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5896.
    District Court of Appeal of Florida, First District.
    Jan. 4, 2013.
    Rehearing Denied Feb. 4, 2013.

      Nancy A. Daniels, Public Defender; and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   RAY, J.

A jury found Thomas Partlow guilty of first-degree murder (Count One) and robbery with a deadly weapon (Count Two). The trial court adjudicated him guilty of both offenses and sentenced Partlow to a mandatory life sentence without eligibility for parole on Count One pursuant to section 775.082(1), Florida Statutes (2009), and to 45 years’ incarceration on Count Two. The court ordered the sentences to run consecutively. When he committed these crimes, Partlow was sixteen years old. Partlow argues two points on appeal: 1) the trial court erred by denying his motion to suppress, as there was no well-founded or reasonable suspicion of criminal activity to detain him, and 2) his sentence of life without eligibility for parole constitutes cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution. Finding no error by the trial court on the suppression issue, we affirm Partlow’s convictions on both counts. In light of the United States Supreme Court’s recent decision in Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), we reverse Part-low’s mandatory life sentence for first-degree murder and remand for resentencing on the authority of Washington v. State, 103 So.3d 917 (Fla. 1st DCA 2012). We write further to explain why the trial court correctly denied the motion to suppress.

Partlow moved to suppress his statements and all physical evidence obtained during an alleged unlawful investigatory detention. The trial court denied the motion after an evidentiary hearing. This ruling raises a mixed question of law and fact that ultimately determines Part-low’s constitutional rights. See Brye v. State, 927 So.2d 78, 80 (Fla. 1st DCA 2006). In such instances, we “defer[] to the trial court on issues of historical fact but conduct[] a de novo review of the constitutional issue.” Connor v. State, 803 So.2d 598, 605 (Fla.2001); see United States v. Bajakajian, 524 U.S. 321, 336-37 & n. 10, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998); Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). We interpret the evidence and all reasonable inferences in favor of sustaining the trial court’s ruling on a motion to suppress. Johnson v. State, 438 So.2d 774, 776 (Fla.1983).

The pertinent facts are as follows. At around 9:00 P.M. on January 25, 2010, brothers Larry and Lonny Jones were driving home from seminary school. They observed two young black males, who exited a car and soon became involved in what appeared to be “a struggle” with a third male in a parking lot. This occurred near a business that was closed for the day. These eyewitness brothers stated that another person, the driver, remained in the car during this incident. As the brothers turned their own car around, the two young black males returned to the vehicle in the parking lot and left the scene. Rather than pursue the vehicle, the brothers rendered assistance to the dying victim, who said he had been robbed and stabbed. When the police arrived at the scene, the brothers described the automobile as a white, four-door sedan, possibly a “Chevy” Malibu, with different-colored bondo (a paste sprayed on the surface, which hardens to cover or seal damage) on the front passenger’s side bumper or fender. A “be-on-the-lookout” (BOLO) report went out to law enforcement. The BOLO described two or three young black males occupying a white, four-door Chevy Malibu or Monte Carlo sedan with bondo covering damage to the right front bumper.

At approximately 2:00 P.M. on January 28, 2010, Officer Sarria observed a passing white Chevy Malibu with bondo covering damage to the right front bumper. This sighting occurred fewer than three miles from where the stabbing took place, and it was the only ear the officer had seen that matched the specific BOLO description. Several young black males were in the car. Officer Sarria followed the Chevy Malibu until it parked at a house, and then he positioned his patrol vehicle in a hiding place while awaiting additional police support. As the driver of the Chevy Malibu exited the car, the police approached and detained him and the other occupants, including Partlow. After the police read Partlow his rights and obtained his signed waiver of rights form, Partlow admitted his active participation in the crimes. Specifically, Partlow stated that he and two other juvenile co-defendants had targeted a pedestrian, the victim. A co-defendant forcibly took three dollars from the victim and handed the money to Partlow, who stabbed the victim in the chest with a knife as the victim attempted to run away. The autopsy of the victim concluded that the stab wound to the victim’s chest resulted in extensive hemorrhaging in the chest cavity and was the cause of death.

The motion to suppress contended that the police lacked a legitimate basis to justify an investigatory stop and detention. Under the Conformity Clause in article I, section 12 of the Florida Constitution, we must construe the Fourth Amendment according to the United States Supreme Court’s own interpretation. State v. Setzler, 667 So.2d 343, 344 (Fla. 1st DCA 1995). It is well-established that “[wjith-out a founded suspicion of criminal activity, a police officer does not have the right to detain a person absent that person’s consent.” Gaffney v. State, 974 So.2d 425, 426 (Fla. 2d DCA 2007) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)); see § 901.151, Fla. Stat. (2009) (setting out the circumstances in which an officer has authority to temporarily detain a person). In Hunter v. State, 660 So.2d 244, 249 (Fla.1995), the Florida Supreme Court explained that “[a] ‘founded suspicion’ is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge.”

In deciding whether an officer had a reasonable, well-founded suspicion of criminal activity to warrant an investigatory detention, the trial court must consider the totality of the circumstances. Huffman v. State, 937 So.2d 202, 206 (Fla. 1st DCA 2006). Among the relevant factors in determining the legality of a temporary investigatory detention based on a BOLO are “the length of time and distance from the offense,” the “specificity of the description of the vehicle and its occupants,” and “the source of the BOLO information.” Hunter, 660 So.2d at 249; see State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978). Given the totality of the circumstances, the trial court concluded that the police had legitimate grounds and acted reasonably in detaining and investigating the occupants of the Chevy Malibu.

The law supports the denial of the motion to suppress. See Hunter, 660 So.2d at 249; Setzler, 667 So.2d at 343; Coney v. State, 341 So.2d 238 (Fla. 3d DCA 1976). In Coney v. State, the officer received a BOLO describing a white 1968 vehicle, possibly a Chevrolet, having numerous rust spots, a temporary Florida license plate, and two black male occupants, one of whom wore a hat and had a goatee. Id. at 239. Several hours later, the officer observed a car and its occupants closely matching the BOLO. The officer stopped the car and requested identification. Within minutes, a second officer arrived at the site and recognized inside the car an item stolen from his home ten days earlier. The police arrested the suspects. The Third District Court affirmed because this was a reasonable investigatory stop and detention. Id.

For similar reasons, the officers in the instant case had a legitimate basis to detain and investigate Partlow and the other occupants of the Chevy Malibu. The strength of the other relevant Hunter factors — the two eyewitness sources of the information, the specificity of their descriptions of the automobile and its occupants, the fact that the officer saw no other vehicle closely matching the BOLO description, and the geographical proximity between the crime site and the detention — mitigates any concern we may have had about the lapse of 2-1/2 days between the BOLO and the sighting of the ear.

The trial court correctly denied Part-low’s motion to suppress. We affirm the conviction and sentence for robbery with a deadly weapon in Count Two. We affirm the conviction for first-degree murder but vacate the sentence in Count One and remand for resentencing.

WOLF, J., CONCURS WITH OPINION; MAKAR, J., CONCURS IN PART, DISSENTS IN PART WITH OPINION.

WOLF, J.,

concurring.

I concur in the decision to remand for resentencing without addressing the sentencing options available to the trial court because I am constrained by our prior decision in Washington v. State, 108 So.3d 917 (Fla. 1st DCA 2012). For the reasons expressed in my concurrence in Washington and Judge Makar’s opinion in the instant case, I feel we should address the legality of these sentencing options.

In all other respects, I concur in Judge Ray’s opinion.

MAKAR, J.,

concurring in part, dissenting in part.

I concur with the majority, except as to the application of the Supreme Court’s decision in Miller v. Alabama, which invalidated mandatory sentences of life without parole for juvenile offenders convicted of homicide offenses. In this “pipeline” case, we are faced with the question of what lawful sentences may be imposed on juvenile offenders convicted of capital murder in light of Miller. In Washington v. State, a panel of this Court did not address what sentencing options are legally available; instead, the panel deemed a discussion on this topic to be premature and remanded for resentencing under Miller without further guidance. While this minimalist approach has its appeal as an act of judicial restraint, and is a prudential limitation on this panel, the question of what sentencing options are available in Florida post -Miller is a purely legal issue that should be passed upon now and certified to the Florida Supreme Court: the question is ripe and its prompt resolution is important to the administration of the judicial system in this class of pipeline cases.

I.

In the wake of Miller, Florida faces a significant number of hearings to resen-tence juveniles convicted of murder who received mandatory life sentences without the possibility of parole. Since 1994, that sentence has been the only one available for juvenile offenders under section 775.082(1), Florida Statutes. Because Miller has now deemed it unconstitutional, the next sections briefly discuss the possible sentencing options. As discussed below, I would hold that the operative sentencing language of the 1993 version of section 775.082(1) is revived and juvenile offenders should be resentenced to life with the possibility of parole after 25 years; I would also certify a question to the Florida Supreme Court so that it might exercise its discretion to review the important sentencing issues presented de novo.

A. Statutory Revival

The State of Florida unequivocally advocates that only one constitutional sentencing option exists: revival of the 1993 version of section 775.082(1), Florida Statutes, which imposes a life sentence with the possibility of parole after 25 years (“life with parole-25”). Resolution of the State’s legal position merits judicial attention now; indeed, it appears to be the clearest path that provides a definitive resolution most consistent with precedent and separation of powers principles.

The concept of judicial revival, though infrequently used, is well-grounded in federal and Florida precedents. It is based in large measure on separation of powers principles akin to those applied when courts determine whether invalid portions of legislation are severable. See Fla. Dep’t of State, Div. of Elections v. Martin, 916 So.2d 763, 773 (Fla.2005)(“ ‘Severability is a judicial doctrine recognizing the obligation of the judiciary to uphold the constitutionality of legislative enactments where it is possible to strike only the unconstitutional portions.’ The doctrine of severability is ‘derived from the respect of the judiciary for the separation of powers, and is designed to show great deference to the legislative prerogative to enact laws.” ’)(internal citations and quotations omitted). Revival is a close cousin of severability: when the judicial branch invalidates an act of the legislature, the prior statute is brought back to life to avoid an unintended gap in the law. Citing Supreme Court precedent, the Sixth Circuit summarized the concept as follows:

It has long been held that a statute which is unconstitutional does not repeal a prior statute on the subject when a contrary construction would create a void in the law which the legislative body did not intend. The prior statute is “revived” to avoid a chaotic hiatus in the law.

White Motor Corp. v. Citibank, N.A., 704 F.2d 254, 261 (6th Cir.1983) (citing Frost v. Corp. Comm’n, 278 U.S. 515, 526-27, 49 S.Ct. 235, 73 L.Ed. 483 (1929) (prior version of statute, which “expressed the will of the Legislature” that enacted it, “must stand as the only valid expression of the legislative intent” when its subsequent amendment is deemed unconstitutional)). Likewise, the Florida Supreme Court has judicially “revived” statutes whose successors were held invalid. For example, in the election law context, the supreme court held that the “repealed sections of the statute are hereby revived and shall remain in force and effect to provide a procedure for write-in candidacies in future elections until properly changed by the legislature.” Smith v. Smathers, 372 So.2d 427, 429 (Fla.1979).

In the criminal law context, the most recent and pertinent Florida Supreme Court case on statutory revival is B.H. v. State, 645 So.2d 987 (Fla.1994), which stated:

Florida law has long held that, when the legislature approves unconstitutional statutory language and simultaneously repeals its predecessor, then the judicial act of striking the new statutory language automatically revives the predecessor unless it, too, would be unconstitutional.5 As courts in other states have noted, this rule generally is applicable only where the loss of the invalid statutory language will result in a “hiatus” in the law that would be intolerable to society.

Id. at 995 (text of footnote 5 and internal citations omitted). This language provides a mechanism for filling an intolerable gap in the law by reverting to prior statutory language; the judicial inquiry focuses on what language was repealed to make room for the new, albeit-unconstitutional, language.

Application of this approach in B.H. resulted in the revival of statutory language in the juvenile escape statute that “fully and clearly” defined the crime at issue without the unconstitutional delegation of authority that “unwittingly” made its way into the successor statute. Id. at 996. Having decided the case on this basis, the supreme court — in dicta — -stated in footnote 5:

This necessarily means that there cannot be a revival of any statute other than the immediate predecessor. If the immediate predecessor statute is defective, then no further revival is possible under any circumstances. There also may be cases in which the immediate predecessor statute was enacted so long ago in the past that it no longer reflects the consensus of society and therefore should not be revived.

Id. at 995 n. 5. It is dicta because it was unnecessary to decide the case; indeed, the court concluded this footnote by saying the stated circumstances were “not the case before us today.” Id. Nevertheless, footnote five is persuasive dicta that cannot simply be ignored; it has its own West Headnote and a few courts have cited it.

This said, the question is whether statutory revival is available to fill the gap that would otherwise exist in light of Miller, one that would be intolerable due to the lack of a penalty for the commission of first-degree murder by a juvenile. The statutory language making the sentence for Partlow’s first-degree murder conviction a mandatory one has been in section 775.082(1) since 1994 when the legislature enacted Chapter 94-228:

(1) A person who has been convicted of a capital felony shall be punished by death if life imprisonment and shall be required to serve- no less-than-twenfy-five (25) years-before becoming eligible for parole unless the proceeding held to determine sentence according to the procedure set forth in section 921.141 results in findings by the court that such person shall be punished by death, otherwise such person shall be punished by life imprisonment and :
(a) if convicted of murder in the first degree or of a capital felony under s. 791.161, shall be ineligible for parole, or
(b) if convicted of any other capital felony, shall be required to serve no less than 25 years before becoming eligible for parole in-the-latter event such person shall be^ punished by death.

Ch. 94-228, § 1, Laws of Fla. (effective May 25, 1994). As the stricken portion indicates, prior to the 1994 adoption of a mandatory life without parole sentence for first-degree murder, a person convicted of that crime was to be punished “by life imprisonment and [was] required to serve no less than twenty-five (25) years before becoming eligible for parole[.]” This is the portion of the statutory language the State advocates is revived due to Miller.

The only change to 775.082(1) since 1994 was in 1995 when the legislature modified subsection 1 as follows:

(1) A person who has been convicted of a capital felony shall be punished by death if the proceeding held to determine sentence according to the procedure set forth in section 921.141 results in findings by the court that such person shall be punished by death, otherwise such person shall be punished by life imprisonment anck
(a) if convicted of- murder in the first degree or-of-a.capital felony -under- s. 791.161, shall be ineligible for parole,-©?
(b) if convicted of any other capital felony,-shall-be-?equired46-sepve-no-less than-25-year-s-before-becoming-eligible for parole.

Ch. 95-294, § 4, Laws of Fla. (effective Oct. 1, 1995). This revision to section 775,082(1) made no change to the statutory sentence for persons convicted of murder in the first degree: life imprisonment without parole. What changed is that the legislature made all capital felonies subject to life imprisonment without parole. Because this change left the penalty for first-degree murder entirely unchanged, it is difficult to see its applicability in statutory revival analysis.

Indeed, revival of the 1994 language does no injustice to the dicta in B.H. The concerns in footnote five of B.H. are twofold. The first is that revival can reach no “statute other than the immediate predecessor.” This form of “horizontal” statutory revival is based on the legal fiction that the legislature would have preferred application of the language in the predecessor statute had it known its revisions to it would be deemed unconstitutional. As a matter of judicial prudence, footnote five draws the line at the immediately preceding version of the statute.

But can the “immediate predecessor” be a version of the statute that left the relevant criminal penalty unchanged? In this regard, one could technically view the “immediate” predecessor to section 775.082(1) to be the statute as it read before the 1995 revision. But that would ignore that the amendment in 1995 did nothing to change the sentence for persons convicted of first-degree murder; it merely expanded that sentence’s reach from just first-degree murder convictions to all capital felony convictions. Thus, the relevant portion of section 775.082(1) at issue in this first-degree murder case is the repeal and replacement of life with parole-25 with mandatory life in 1994. See State ex rel. Boyd v. Green, 355 So.2d 789, 795 (Fla.1978)(“Where a repealing act is adjudged unconstitutional, the statute (or in this case the rule) it attempts to repeal remains in force.”). Under these circumstances, where no change in the statutory penalty occurred in 1995, the dicta in footnote five should not be inflexibly applied to preclude revival of the life with parole-25 sentence, which was the predecessor penalty in section 775.082(1). For these reasons, the 1995 language poses no hurdle for statutory revival purposes.

Next, would revival of this pre-1994 sentencing option be so disconnected from today’s world as to be out-of-sync with contemporary norms? I think not. A second concern in B.H. is whether the passage of time has undermined society’s possible acceptance of the revived remedy. The main concern with revival of a criminal statute that no longer reflects societal consensus (or that is beyond the “immediate predecessor” statute), at least in the criminal context, is rooted in due process concerns, which are not present when the revived statute merely imposes a lesser sentence. Further, eighteen years have passed since the life with parole-25 sentence for first-degree murder was abolished in 1994. This period is not so remote in time that revival of the predecessor sentence would “no longer re-flecte] the consensus of society.” B.H., 645 So.2d at 995 n. 5. Indeed, the State currently has an operative parole system in place for offenders convicted under the predecessor versions of this statute. That the State of Florida vigorously defends revival is a significant factor to consider in evaluating societal acceptance.

It is argued that revival of the predecessor penalty would require the legislature to expand the parole board’s responsibility to cover such cases, thereby raising separation of powers issues. This point is legitimate, but tellingly the State sees it as no impediment on this basis. Because the parole board is already in place — and actually handles active cases under the predecessor statute today — reviving the predecessor statute requires no legislative action. Instead, sentencing in these cases would revert to the sentencing structure that continues to operate for a large number of Florida inmates.

That revival might create a “hybrid” type of statutory scheme does not preclude such a result. The “propriety of such a ‘hybrid’ statute, containing elements taken from two different legislative schemes adopted in different years, raises a question of state law.” Waldrup v. Dugger, 562 So.2d 687, 693 (Fla.1990). For obvious reasons, “courts should disfavor creating a hybrid statute comprised of parts taken from both present-day and superseded enactments. Such an action interjects the judiciary into a realm of policy considerations that properly belongs to the legislature.” Id. at 693 n. 16. But the Florida Supreme Court did so in Waldrup, in large measure, because it was “requested to do so by the administrative agency entrusted by the legislature to oversee and administer the particular statutes now under review.” Id. (noting that agency had apparent authority to “waive any objection the state otherwise might raise regarding the creation of a hybrid statute of the type suggested here”). In contrast to Waldrup, where a state agency advocated for the statutory scheme, it is the State of Florida itself in this case that seeks revival of the life with parole-25 sentence, thereby minimizing concerns that the judiciary is injecting itself in legislative policy-making.

Another objection is that revival would result in one-size-fíts-all sentences of life with parole-25, which contrasts with Miller’s individual-centric approach to sentencing juveniles. But, it must be kept in mind that Miller involved juveniles facing mandatory life sentences without the possibility of parole. A life with parole-25 sentence is quantitatively and qualitatively a far different sentence from mandatory life without parole, the strongest of all available punishments for juveniles. Fairly read, Miller does not require individualized sentencing of juveniles for anything other than sentences of life without parole.

One of the major points discussed in the Public Defender’s supplemental brief in Washington, is that remand will allow -for the presentation of evidence of “how persons who have served 25 years on life sentences for murders committed when they were under 18 have faired [sic] in parole proceedings. Ample data should exist.” It is an interesting point, but as we have seen in Graham and Miller, this type of data is routinely presented in appellate proceedings, even if not entered formally into the record at the trial level; delaying the Florida Supreme Court’s discretionary review on this basis is not persuasive. Moreover, it is unclear why data on life with parole-25 sentences is important under Miller, a decision that only addressed the constitutionality of mandatory life sentences without the possibility of parole.

The Public Defender’s brief also argues against life with parole-25 sentences because, in its view, the parole system in Florida is inadequate — indeed unconstitutional — as applied to juvenile offenders because it “largely disregards many of the mitigating circumstances of youth and gives negligible consideration to the offender’s gains and maturity and rehabilitation.” If this Court were to hold, as the Public Defender claims, that parole in Florida is unconstitutional as applied to juvenile offenders, it would amount to a far greater intrusion under separation of powers principles and effectively eliminate all sentencing options that include parole. The adequacy of the parole system in Florida, as applied to juvenile offenders, is simply not at issue in this class of cases.

Finally, a core concern with statutory revival in B.H. is not implicated here. In B.H., the statute at issue defined the elements of a crime; revival of the prior version risked criminalizing activity that may not have been prohibited by the invalid statute. Here, the elements of a crime are not at issue; it is only the punishment for the crime of murder — an act that has always been prohibited. Further, due process concerns are not implicated because the defendant will necessarily benefit from a reduced sentence: life with the possibility of parole is less severe than life without the possibility of parole.

B. Other Remedial Options

Term of Years With/Without Parole

Notably, the Public Defender in its initial brief requested that “Appellant’s life sentence without parole on [the first-degree murder conviction] should be vacated and the case remanded with directions that he be sentenced to life in prison with a possibility of parole after twenty-five years.” The Public Defender has changed course after Miller and now argues for a term of years with immediate parole; Judge Wolf urges a term of years without parole. The former would require a substantial intrusion into separation of powers by judicially creating a remedy that has never existed in Florida over the past century for first-degree murders. The latter has much appeal because it hews closely to two principles upon which the current mandatory life without parole sentence is based: (1) no parole, and (2) potentially long terms of incarceration. A term of years without parole, however, has never been a legislatively authorized sentence in Florida for first-degree murder. Admittedly, it is a pragmatic problem-solving approach, but it also envisions the imposition of an individualized sentencing process in light of Miller (discussed in the next section), which — without further legislative direction — should be limited to only where the State seeks a life without parole sentence.

Life Without Parole After Youth-Mitigation Hearing

The panel in Washington suggests that the State can seek a life without parole sentence on remand, a “constitutionally permissible sentencing option,” provided it conducts “an individualized examination of mitigating circumstances in considering the fairness of imposing such a sentence.” Washington, 103 So.3d at 920. The State opposes this option as unauthorized and illegal under Florida’s current statutory structure. The State is correct that the legislature has not authorized such a discretionary sentence; it currently authorizes only a mandatory sentence. Even assuming the legislature would agree to discretionary life sentences, it is wholly indeterminate what youth-mitigation process the trial courts are to follow to comply with Miller. In Florida, not a single statute, court rule, or other guidepost exists that directly addresses this process; it will have to be created from whole cloth on remand.

Moreover, if a discretionary life without parole sentence were available under Florida law, it makes more sense to certify a question to the Florida Supreme Court to confirm this legal conclusion and simultaneously seek guidance — for the benefit of trial courts statewide — on what youth-mitigation process is required. Absent review by the supreme court now, the many re-sentencing hearings to be held in Florida over the coming months and years may well be for naught; a second round of resentencing hearings will be required unless trial courts have followed the same sentencing path that our high court eventually validates. Establishing uniformity in sentencing options now will eliminate uncertainty; delaying resolution of the inevitable does the opposite.

Notably, if the State chooses to pursue a life without parole sentence and is unsuccessful, the trial court is back to square one and must decide what other sentencing options exist — for which it is provided no direction. Even if life without parole is an available punishment, the State may decide not to pursue it; after all, the United States Supreme Court has said it expects this punishment will be “uncommon” in practice, inferring that lesser punishment levels will be the norm. Miller, 132 S.Ct. at 2469 (“[W]e think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”). The State might also decide it is too costly to conduct potentially burdensome youth-mitigation hearings in these cases; mitigation litigation is expensive, in part, because of the cost of reports and testimony of experts and other professionals (as well as testimony and evidence of the families of the defendant and that of the victims and their families). All in all, the uncertainties and costs of seeking life sentences without parole for juveniles could be so significant that prosecutors would prefer to pursue another sentence; but, if they choose to do so, they need to know their options — as do the persons convicted of or currently facing first-degree murder charges.

II.

In summary, I concur that the trial court did not err in denying Appellant’s motion to suppress. I also agree that resentencing on the first-degree murder conviction is required under Miller v. Alabama. The State of Florida seeks revival of the statutory sentence previously available for those who commit first-degree murder: life with eligibility for parole after 25 years of incarceration. I would hold that the Supreme Court’s decision in Miller operates to revive this predecessor remedy under Florida law, but certify a question of great public importance for the Florida Supreme Court’s consideration. In doing so, I would urge the court to accept jurisdiction in light of the pure legal issues presented and the need to give defendants, prosecutors, public defenders, and trial judges the guidance necessary to conduct sentencing and resentencing of juveniles who have committed first-degree murder.

      . In Washington, this Court expressly declined to address the sentencing options available to the trial court on remand and left open the possibility for the juvenile defendant in that case to again be sentenced to life without the possibility of parole should the court deem such sentence justified after conducting the individualized inquiry required by Miller. The State argues that the only sentencing option available to the trial court is a mandatory sentence of life, with a possibility of parole in twenty-five years, pursuant to the "revival" of section 775.082(1), Florida Statutes (1993). The merits of the State’s position are fully articulated and advanced in Judge Makar’s opinion below. Adopting his own concurring opinion in Washington, Judge Wolf advocates resentencing for a term of years without the possibility of parole. We do not pass on the revival option, or any other sentencing option, at this juncture to avoid intra-district conflict with Washington and the potential for disparate sentencing treatment of similarly situated juveniles.

      .The three cases on which Partlow primarily relies for reversal are materially distinguishable. Rodriguez v. State, 948 So.2d 912 (Fla. 4th DCA 2007) (concluding that the police lacked a reasonable, well-founded suspicion of criminal activity, where the actual source of the BOLO facts was unclear and the police observed no suspicious activity before the stop); Sapp v. State, 763 So.2d 1257 (Fla. 4th DCA 2000) (reversing an order denying the motion to suppress, where the BOLO was too general, Sapp did not exhibit any suspicious behavior before the stop, and the trial court acknowledged that "probably a hundred cars” met the generic description and contained two black males driving in the vicinity 2-1/2 to 3-1/2 hours after the reported crime); L.T.S. v. State, 391 So.2d 695 (Fla. 1st DCA 1980) (finding no objective, articulable basis to suspect criminal activity, where the midnight BOLO lacked specificity and the State presented no evidence concerning other relevant factors such as the level of traffic on the road at that hour, or the existence of other possible escape routes).

      . -U.S.-, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

      . Juveniles whose cases were not final on appeal prior to Miller's release will be entitled to the benefits of that decision. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); Wuornos v. State, 644 So.2d 1000, 1007 n. 4 (Fla.1994); Smith v. State, 598 So.2d 1063, 1066 (Fla.1992).

      . 103 So.3d 917 (Fla. 1st DCA 2012).

      . Judge Wolf, in his concurrence in Washington, agreed to a remand in light of Miller but disagreed with the panel’s decision not to pass upon what sentencing options are available. Washington, 103 So.3d 917 (Wolf, J., concurring). He disagreed with the sentencing options advocated by the State (statutory revival) and the public defender (term of years with immediate parole), stating the most appropriate sentencing option would be a term of years without the possibility of parole. Id.

      . To the extent a legislative solution exists, it faces hurdles including the state constitutional constraint that the "[r]epeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.” Art. X, § 9, Fla. Const.; see Smiley v. State, 966 So.2d 330 (Fla.2007); State v. Watts, 558 So.2d 994 (Fla.1990).

      . The State of Florida asked this Court to certify questions in its post-decision motion in Washington, which was denied.

      . This issue is of pressing concern for two additional reasons. First, Florida faces a significant number of pending and prospective prosecutions of juveniles under this statute for which resolution of these legal issues is of substantial importance. Based on statistics published by the Department of Corrections, as many as fifty-five juveniles per year are sentenced to life without the possibility of parole for homicide offenses. As long as the issue remains unresolved, the number of cases resolved after Miller (and to which any new sentencing scheme is applicable) will only continue to grow. Second, whether juvenile offenders whose cases were final before Miller was issued will be entitled to its benefits depends on whether Miller has retroactive effect, an issue currently of some debate. See Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012) (rejecting retroactive application of Miller), Geter v. State, 115 So.3d 375 (Fla. 3d DCA 2012) (same). If Miller is ultimately deemed retroactive, the number of post-conviction cases in Florida will increase significantly.

      .Nota bene that this sentence is not the sentence at issue in Miller (more later). Also note that the Public Defender advocated this, and only this, sentence in its initial brief, but has changed its position (also more later).

      . The vitality of this portion of the opinion is not without doubt. A majority of justices concurred in that portion of the plurality opinion discussing principles of statutory revival (Justices Grimes, Wells, McDonald and Overton). Only two justices, however, explicitly agreed with it (Justices Grimes and Wells). Two others agreed that statutory revival would apply if the challenged statute were unconstitutional; but it was not in their view (Justices McDonald and Overton). Further clouding the matter. Justice McDonald's opinion stated it was a concurrence "in result only.” B.H., 645 So.2d at 997 (McDonald, X, concurring in result only). This type of concurrence typically does not create precedent. Gerald Kogan & Robert Craig Waters, The Operation and Jurisdiction of the Florida Supreme Court, 18 Nova L.Rev. 1151, 1175 (1994) ("There may be cases in which a justice writes a ‘concurring in result only' opinion that also appears to agree with more than just the result. However, it seems doubtful that such an action could constitute the fourth vote needed to give the opinion validity as precedent.”). Three justices dissented, stating that statutory revival did not apply or violated due process (Justices Kogan, Harding, and Shaw). B.H., 645 So.2d at 997 (Kogan, J., dissenting). As a consequence, the fractured decision in B.H. answers some questions but leaves others open for further review and refinement in the context of the present case.

      . See Lon L. Fuller, Legal Fictions (1967)(categorizing the many types of fictions used in the development of the law, such as the presumption that everyone knows the law and that corporations are people).

      . The concept of "vertical” revival, that a court may remand for resentencing on uncharged lesser included offenses under a criminal code, is a controversial one that currently divides state and federal courts. See State v. LaFleur, 307 Conn. 115, 51 A.3d 1048, 1069 (2012)("[C]ourts are divided between those that have a bright line rule precluding modification, and those that make a case-by-case determination based upon fairness.”). The court in LaFleur noted:
      there is a distinct split of authority on this question among both state and federal courts. Some courts have held that it is appropriate for an appellate court to order the modification of a judgment to reflect a conviction of a lesser included offense, even in the absence of a jury instruction on that lesser offense, when it is not unfair to the defendant to do so.... Other courts have barred such a modification unless the jury has been instructed on the lesser included offense.

        Id. at 1068 n. 27 (quoting State v. Sanseverino, 291 Conn. 574, 969 A.2d 710, 720-21 (2009)(compíling cases)(case citations, paren-theticals, and footnote omitted)); see also Shields v. State, 722 So.2d 584, 586 (Miss.1998)("Other courts have had difficulty with this issue as well and have taken a variety of positions.”) (compiling and discussing federal and state cases). Federal courts uniformly allow for resentencing on lesser included offenses, but are divided on whether they must be charged or may be uncharged. Compare United States v. Hunt, 129 F.3d 739, 746 (5th Cir.1997)(remanding for entry of judgment on uncharged lesser included offense where "the lack of instruction on the lesser included offense was not unduly prejudicial” to the defendant) with United States v. Dinkane, 17 F.3d 1192, 1198 (9th Cir.1994)(requiring that jury be instructed on the lesser-included offense). In Florida, we have a statute that states:
      When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. § 924.34, Fla. Stat. (2012). The statute has been applied to first-degree murder cases, Hines v. State, 227 So.2d 334 (Fla. 1st DCA 1969), and to an uncharged lesser offense, Shaara v. State, 581 So.2d 1339 (Fla. 1st DCA 1991), but has been recently narrowed significantly on constitutional grounds, see State v. Sigler, 967 So.2d 835 (Fla.2007).

      . The limitation to only the predecessor statute is somewhat artificial because, arguably, the legislature would prefer any prior statutory penalty scheme that is deemed constitutional to the alternative of having no penalty statute at all, provided due process concerns are met.

      . This section reviews only those remedial options discussed in this case and Washington; others may exist. Revival of the common law punishment for first-degree murder — death'—is not an option and is not discussed. See Cook v. State, 46 Fla. 20, 35 So. 665, 677 (1903)(noting that “the common-law definition of murder, classing the most atrocious under murder in the first degree” for "which the death penalty is inflicted”).

      . I would certify the question as "Whether the Supreme Court’s decision in Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which invalidated section 775.082(1)’s mandatory imposition of life without parole sentences for juveniles convicted of first-degree murder, operates to revive the prior sentence of life with parole eligibility after 25 years previously contained in that statute?” This question, of course, would not limit our supreme court's review of any of the proposed sentencing alternatives if discretionary jurisdiction is accepted.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Demetry E. FAIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6608.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2013.

      Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Demetry E. Fain appeals an order revoking probation and sentencing him to fifteen years’ imprisonment. He argues that the trial court reversibly erred in denying his counsel’s request for a closing argument at the end of the evidentiary portion of the hearing. We agree.

Appellant was entitled to an opportunity to be heard on the issue of whether he violated his probation. See Pearson v. State, 51 So.3d 1286, 1286 (Fla. 4th DCA 2011); Estevez v. State, 705 So.2d 972, 973 (Fla. 3d DCA 1998) (citing Black v. Romano, 471 U.S. 606, 611, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985)). This opportunity includes the right to a closing argument. Pearson, 51 So.3d at 1286; Estevez, 705 So.2d at 973. Because we do not know how a closing argument might have affected the judge’s perception of the evidence, we decline the State’s invitation to deem the denial of closing argument harmless. Cf. Herring v. New York, 422 U.S. 853, 862-64, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975) (noting that a closing argument may correct misperceptions in what would otherwise appear to be an “open and shut” bench trial and that there is no way for a judge to know if a closing argument will have such an effect without allowing the argument to proceed). Accordingly, we reverse and remand for a new hearing.

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


text:
    Kenneth NORRIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4314.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2013.
    Kenneth Norris, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the February 9, 2012, judgment and sentence in Columbia County Circuit Court case number 05-0505-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

PADOVANO, ROWE, and RAY, JJ., concur.


text:
    Bobby GRAHAM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5290.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2013.
    Bobby Graham, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. Logan v. State, 846 So.2d 472 (Fla.2003) (holding that generally, a criminal defendant cannot proceed pro se while represented by counsel).

PADOVANO, ROWE, and RAY, JJ., concur.


text:
    Albert KELLY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D12-941.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2013.
    Albert Kelly, Jr., Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief, which was addressed to an aggravated battery conviction and in which the appellant presented several claims, including a contention that trial counsel was ineffective in failing to investigate and seek an evaluation regarding the appellant’s competence to stand trial. As alleged in the motion, and indicated in other documents in the record, the appellant was placed in a psychiatric ward upon his arrest, and continued to be held there while awaiting his aggravated battery trial. It was also alleged, and the record further confirms, that the appellant was declared incompetent to stand trial in another proceeding where he was represented by other counsel, just months after the aggravated battery proceeding.

The claim regarding counsel’s failure to investigate the appellant’s competency in the aggravated battery case is facially sufficient, and is not negated by the record attachments, and therefore should not have been summarily denied. See Williams v. State, 46 So.3d 118 (Fla. 1st DCA 2010); Jackson v. State, 29 So.3d 1161 (Fla. 1st DCA 2010); see also Houle v. State, 74 So.3d 143 (Fla. 1st DCA 2011).

The appealed order is reversed as to the denial of this ineffective assistance claim. The order is affirmed as to the denial of the other claims, and the case is remanded.

DAVIS, CLARK, and MARSTILLER, JJ., concur.


text:
    Brandon J. COLLIER, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4563.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2013.

      Jeffrey E. Lewis, Regional Conflict Counsel, and Michael J. Titus, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Trisha Meggs Pate and Brooke Poland, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, Brandon Collier, was charged with armed robbery with a firearm. He raises two issues on appeal, only one of which merits discussion. The appellant argues that the trial court abused its discretion when it denied one of the appellant’s peremptory strikes after improperly finding the strike was not race-neutral.

This Court reviews a trial court’s finding that a party’s use of peremptory challenges was race-neutral with an abuse of discretion standard. Hoskins v. State, 965 So.2d 1, 7 (Fla.2007).

Parties are constitutionally entitled to the assurance that peremptory challenges will not be exercised in a manner that excludes members of discrete racial groups. State v. Neil, 457 So.2d 481, 486 (Fla.1984); Nowell v. State, 998 So.2d 597, 601 (Fla.2008) (“It is well settled in Florida that peremptory challenges may not be used to exclude prospective jurors solely because of their race or ethnicity.”). The initial presumption is that peremptory juror challenges are exercised in a nondiscriminatory manner. Smith v. State, 59 So.3d 1107, 1114 (Fla.2011).

In Melbourne v. State, the Florida Supreme Court set forth three mandatory steps for a race-based challenge to a peremptory strike. 679 So.2d 759, 764 (Fla.1996). Under the first step, three sub-steps are required. Id. First, the objecting party must make a timely objection on the ground that the strike is based on race. Id. Second, the objecting party must show that the venireperson is a member of a distinct racial group. Id. Third, the objecting party must request that the court ask the striking party its reason for the strike. Id.

Here, the sub-steps of the first initial step of Melbourne were fulfilled. First, the state asked for a race-neutral reason for defense counsel’s peremptory strike. Next, the court stated that the prospective juror was a white male. Finally, the court asked for the race-neutral reason.

Because the state fulfilled the first initial step of Melbourne, the burden shifted to defense counsel to come forward with a race-neutral explanation. See id. Defense counsel put forth two race-neutral explanations. First, defense counsel explained he sought to peremptorily strike the prospective juror because the prospective juror and his wife were victims of burglaries. See Symonette v. State, 778 So.2d 500, 502 (Fla. 3d DCA 2001) (“The fact that a juror has been the victim of a crime has been held to be a valid race-neutral reason for the exercise of a peremptory challenge.”). Second, defense counsel explained he sought to strike the prospective juror because the prospective juror’s relative worked for a law enforcement agency. See Hayes v. State, 94 So.3d 452, 465 (Fla.2012) (“Courts have universally considered a prospective juror’s familial relationship with someone in law enforcement to be a valid and facially neutral reason for the exercise of a peremptory challenge.”). Defense counsel fulfilled its burden to come forward with race-neutral explanations. The second Melbourne step was completed.

In the third Melbourne step, if the reason given is facially race-neutral and the court believes, given all the circumstances surrounding the strike, that the explanation is not pretext, the strike will be sustained. Melbourne, 679 So.2d at 764. In this last step, the court’s focus is not on the “reasonableness of the explanation but rather its genuineness.” Id. Florida’s appellate courts have fairly consistently reversed for a new trial where the record provides no indication that the trial court engaged in a genuineness inquiry. Hayes, 94 So.3d at 463-64; see Bellamy v. Crosby, 31 So.3d 895, 901 (Fla. 1st DCA 2010) (finding that the record was devoid of any findings that the neutral reasons for striking the jurors were genuine); see Simmons v. State, 940 So.2d 580, 582 (Fla. 1st DCA 2006) (finding the court failed to conduct a genuineness inquiry when it merely stated, “That is a race-neutral reason. Whether or not we view it favorable for the State or favorable for the Defense, it is a race-neutral reason.”). Where a record is devoid of any indication that the trial court considered circumstances relevant to whether a strike was exercised for a discriminatory purpose, the reviewing court cannot assume a genuineness inquiry was actually conducted. Hayes, 94 So.3d at 463 (finding no genuineness inquiry was conducted when the court mistakenly considered defense counsel’s peremptory strike for cause).

Because defense counsel offered race-neutral reasons, the trial court was required to engage in a genuineness analysis. The trial court found that the reasons given were not race-neutral because: (1) the court disagreed with the accuracy of the statement about the relative’s employment in law enforcement and (2) the crimes committed against the prospective juror differed from the instant crime. The state argues this was an “implicit” genuineness analysis. However, there is no evidence in the record that the trial court considered whether the strike was exercised for a discriminatory purpose. In fact, the court’s analysis was more akin to a for-cause analysis rather than a genuineness analysis. Because the trial court failed to consider the circumstances relevant to whether the strike was exercised for a discriminatory purpose, the trial court abused its discretion when it denied the peremptory strike.

Accordingly, the appellant’s judgment is REVERSED and REMANDED for proceedings consistent with this opinion.

BENTON, C.J., DAVIS, and ROBERTS, JJ., concur.

      . While the court, rather than the state, fulfilled the second sub-step, the purpose of the step, to show the venireperson was a member of a distinct racial group, was accomplished.


text:
    Aaron Sylvester HOPE, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5430.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2013.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant was convicted of attempted first-degree murder (count 1), aggravated battery with a deadly weapon (count 2), and three counts of aggravated assault •with a deadly weapon (counts 3, 4, and 5). The convictions were affirmed on direct appeal, but the case was remanded for resentencing because the aggravated battery charge had been dismissed. See Hope v. State, 68 So.3d 366 (Fla. 1st DCA 2011).

On remand, Appellant was sentenced to life in prison with a mandatory minimum of 25 years on count 1, and 20 years concurrent with 20-year mandatory minimums on counts 3, 4, and 5. The mandatory mínimums were imposed under the 10/20/life statute based on the jury’s findings that Appellant discharged a firearm causing great bodily harm during the commission of count 1 and that he discharged a firearm during the commission of counts 3, 4, and 5.

In this direct appeal from resen-tencing, Appellant argues 1) that the mandatory minimum for count 1 is illegal because the information for that count alleged only discharge of a firearm (for which the mandatory minimum is 20 years), not discharge causing great bodily harm; and 2) that the mandatory minimums for counts 3, 4, and 5 are illegal because the information for those counts alleged only possession of a firearm (for which the mandatory minimum is 3 years), not discharge. We cannot consider these claims on the merits because they were not preserved for appellate review by a contemporaneous objection or a rule 3.800(b)(2) motion. See Jackson v. State, 983 So.2d 562, 568 (Fla.2008) (quoting Brooks v. State, 969 So.2d 238, 241-42 (Fla.2007)). We decline Appellant’s invitation to make an exception to the preservation requirement simply because his claims appear to have merit based on Young v. State, 86 So.3d 541 (Fla. 2d DCA 2012), and cases cited therein. See also Driggers v. State, 917 So.2d 329, 333 (Fla. 5th DCA 2005); Altieri v. State, 835 So.2d 1181, 1183 (Fla. 4th DCA 2002).

Accordingly, we affirm Appellant’s sentences. We do so, however, without prejudice to Appellant raising the above claims in a motion for postconviction relief under rule 8.800(a) or rule 3.850, see Jackson, 988 So.2d at 568, or a petition alleging ineffectiveness of appellate counsel. See Evans v. State, 904 So.2d 638 (Fla. 1st DCA 2005).

AFFIRMED.

ROBERTS, WETHERELL, and SWANSON, JJ., concur.

      . Counts 3, 4, and 5 were third-degree felonies. See § 784.021(2), Fla. Stat. (2008). The 20-year sentences for these counts were based on the trial court's imposition of the 20-year mandatory mínimums pursuant to section 775.087(2)(a)2. See § 775.087(2)(c), Fla. Stat. (2008) ("If the minimum mandatory terms of imprisonment imposed pursuant to [the 10/20/life statute] exceed the maximum sentences authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the mandatory minimum sentence must be imposed.”). Without the 20-year mandatory mínimums, the maximum sentence for each of these counts would have been 5 years. See § 775.082(3)(d), Fla. Stat. (2008).

      . Appellate counsel initially filed an Anders brief, but after considering Appellant's pro se brief, we directed counsel to file a supplemental initial brief addressing the preservation and merits of the following issue: "whether the minimum mandatory sentences imposed on resentencing are legal under section 775.087(2), Florida Statutes, because the information did not specifically charge great bodily harm in count 1 or discharge of a firearm in counts 3, 4, and 5.” See In re Anders Briefs, 581 So.2d 149, 151 (Fla.1991); State v. Causey, 503 So.2d 321 (Fla.1987). We find no merit in the other issue raised in Appellant's pro se brief.

      . See § 775.087(2)(a)2„ Fla. Stat. (2008) (providing that a person who is convicted of certain enumerated offenses, including attempted murder, shall be sentenced to a minimum term of imprisonment of 20 years if such person discharged a firearm during the commission of the offense).

      . See § 775.087(2)(a)l„ Fla. Stat. (2008) (providing that "a person who is convicted for aggravated assault ... shall be sentenced to a minimum term of imprisonment of 3 years if such person possessed a 'firearm' ... during the commission of the offense”).

      . Appellant raised theses claims in a pro se motion to correct sentencing error filed after the notice of appeal was filed, but that motion was a "nullity” because Appellant was still represented by trial counsel when the motion was filed and neither trial counsel nor appellate counsel adopted the motion. See Logan v. State, 846 So.2d 472, 475-76 (Fla.2003).

        . We deny the State’s motion to dismiss on the authority of Hughes v. State, 565 So.2d 354 (Fla. 1st DCA 1990).


text:
    William FRIEDMAN, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Alea Group, LLC, Appellees.
    No. 1D12-4093.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2013.
    William Friedman, pro se, Appellant.
    Norman A. Blessing, General Counsel, Reemployment Assistance Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

DISMISSED. Fla. R.App. P. 9.110(c); see generally Durando v. Palm Beach County, 719 So.2d 1258 (Fla. 1st DCA 1998).

BENTON, C.J., DAVIS and ROBERTS, JJ., concur.


text:
    Skot WILSON, Appellant, v. AURORA LOAN SERVICES, LLC, Diana G. Henderson, et al., Appellees.
    No. 1D12-4424.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2013.
    Skot Wilson, pro se, Appellant.
    Albertelli Law, Tampa (no appearance), for Appellees.
   PER CURIAM.

DISMISSED. See generally Knabb v. Hutson, 212 So.2d 665, 666 (Fla. 1st DCA 1968) (noting that the issuance of a writ of possession is a ministerial duty of the clerk); Nogales v. Countrywide Home Loans, Inc., 100 So.3d 1161 (Fla. 2d DCA 2012) (dismissing appeal and noting that “a late-filed appeal is not the appropriate procedure to seek relief’).

BENTON, C.J., DAVIS and ROBERTS, JJ., concur.


text:
    Demond DUMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1275.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2013.
    Nancy A. Daniels, Public Defender, and Luke Newman, Special Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Demond Dumas, challenges his conviction and sentence on two grounds, only one of which has merit. Appellant argues that the trial court committed fundamental error by considering whether he expressed remorse when imposing his sentence. We agree and reverse.

A lack of remorse or a failure to accept responsibility may not be considered by the trial court when fashioning an appropriate sentence. Green v. State, 84 So.3d 1169, 1171 (Fla. 3d DCA 2012). In this case, the trial court specifically referenced Appellant’s lack of remorse and his continued protestation of innocence when it announced Appellant’s sentence. The court’s statement can reasonably be read only as conditioning the sentence, at least in part, on Appellant’s lack of remorse and claim of innocence, which is a violation of Appellant’s due process rights. See Jackson v. State, 39 So.3d 427, 428 (Fla. 1st DCA 2010) (reversing a sentence because the trial court improperly based the defendant’s sentence on his lack of remorse); Nawaz v. State, 28 So.3d 122, 124-25 (Fla. 1st DCA 2010) (finding that fundamental error occurred when the trial court based a sentence partly on an impermissible ground); Whitmore v. State, 27 So.3d 168, 169-72 (Fla. 4th DCA 2010) (concluding that fundamental error occurred when the court based its sentence on the defendant’s lack of remorse and refusal to accept responsibility). Appellant is entitled to re-sentencing before a different judge. Jackson, 39 So.3d at 428.

We AFFIRM the conviction, VACATE the sentence, and REMAND with instructions to resentence Appellant before a different judge.

REVERSED and REMANDED.

PADOVANO, ROWE, and RAY, JJ., concur.


text:
    Michael VOELTZ, Appellant, v. Barack Hussein OBAMA, Florida Democratic Party Nominee for President to the 2012 Democratic National Convention; Ken Detzner, Secretary of State of Florida; and Florida Elections Canvassing Commission, Appellees.
    No. 1D12-3489.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2013.
    Rehearing Denied March 22, 2013.
    Larry Klayman, Washington D.C., for Appellant.
    Mark Herron, Joseph B. Donnelly, and Robert J. Telfer, III, of Messer, Caparello & Self, Tallahassee; Stephen F. Rosenthal of Podhurst Orseck, Miami; and Richard B. Rosenthal of The Law Offices of Richard B. Rosenthal, P.A., Miami., for Appel-lee President Barack Obama.
    Daniel E. Nordby, General Counsel, Ashley E. Davis, Assistant General Counsel, Pamela Jo Bondi, Attorney General, and James A. Peters, Assistant Attorney General, Tallahassee, for Appellees Ken Detzner, Secretary of State of Florida, and The Florida Elections Canvassing Commission.
   PER CURIAM.

DISMISSED as moot.

BENTON, C.J., DAVIS, and ROBERTS, JJ., concur.


text:
    Christian STARKES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4525.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2013.
    Rehearing Denied April 24, 2013.
    Christian Starkes, 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 denied, but the newly assigned judge is encouraged to expeditiously dispose of the motion pending below. See Wilson v. State, 775 So.2d 1003 (Fla. 1st DCA 2001).

VAN NORTWICK, LEWIS, and SWANSON, JJ., concur.


text:
    Patrick Lamont BURWELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0089.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2013.
    Rehearing Denied April 10, 2013.
    Patrick Lamont Burwell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Kenneth A. FRANK, Appellant, v. COMERICA BANK, a Texas Banking Association, Appellee.
    No. 4D12-3572.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.
    Kenneth A. Frank, Pompano Beach, pro se.
    Brian K. Hole and Katherine M. Joffe of Holland & Knight LLP, Fort Lauderdale, for appellee.
   PER CURIAM.

We affirm without discussion the trial court’s denial of Frank’s motion to quash service. We dismiss the remainder of Frank’s appeal. An order denying a motion to dismiss for lack of standing is not listed as an appealable non-final order under Florida Rule of Appellate Procedure 9.130. Therefore, we lack jurisdiction to review the trial court’s order in regard to standing. Morton & Oxley, Ltd. v. Charles S. Eby, M.D., P.A., 916 So.2d 820, 821 (Fla. 2d DCA 2005); Supal v. Pelot, 469 So.2d 949, 950 (Fla. 5th DCA 1985).

Affirmed in part; dismissed in part.

DAMOORGIAN, C.J., CIKLIN and CONNER, JJ., concur.


text:
    James WALKER, Appellant, v. CITY OF PEMBROKE PINES, Appellee.
    No. 4D12-2675.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.
    Rehearing Denied Aug. 30, 2013.
    Mark J. Berkowitz of Mark J. Berkow-itz, P.A., Fort Lauderdale, for appellant.
    Shana H. Bridgeman and James A. Cherof of Goren, Cherof, Doody & Ezrol, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See City of Hollywood v. Hogan, 986 So.2d 634, 641-42 (Fla. 4th DCA 2008) (adopting federal ADEA analysis for age discrimination claim under Florida Civil Rights Act of 1992; stating “[a]ge discrimination statutes protect only employment decisions which disadvantage an older worker in favor of a younger worker”) (citing Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 124 S.Ct. 1236, 157 L.Ed.2d 1094 (2004)); see also Miami-Dade Cnty. v. Eghbal, 54 So.3d 525, 526 (Fla. 3d DCA 2011) (adopting federal analysis for state age discrimination claim, including the requirement that, to state a prima facie case, plaintiff must prove “the position was filled by a worker who was substantially younger than the plaintiff’), review denied, Miami-Dade County v. Eghbal, 71 So.3d 117 (Fla.2011).

DAMOORGIAN, C.J., STEVENSON and GERBER, JJ., concur.


text:
    Dianna Robin DENNIS, individually and as Co-Trustee of the Thomas Gordon Dennis Revocable Trust of 1989 as amended and Lauren Keely Haws, Appellants, v. Harriet D. KLINE and Deutsche Bank Trust Company, N.A., as Co-Trustee of the Thomas Gordon Dennis Revocable Trust 1989 as amended, Appellees.
    Nos. 4D12-1881, 4D12-2589.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.

      Edward Downey, Rachel M. Evert and R. Lee McElroy, IV of Downey & Downey, P.A., Palm Beach Gardens, for appellants.
    James G. Pressly, Jr. of Pressly & Pressly, P.A., West Palm Beach, for appel-lee, Harriet D. Kline.
   ON MOTION FOR CLARIFICATION

PER CURIAM.

We. grant appellants’ motion for clarification filed June 25, 2013. In light of the reversal of the final judgment in Case No. 4D12-1881, the judgment awarding attorneys’ fees and costs, appealed in Case No. 4D12-2589, is also reversed and remanded to the circuit court for further proceedings.

WARNER, GROSS and LEVINE, JJ., concur.


author: WARNER, J.

text:
    UNITED STATES SUGAR CORPORATION and SBG Farms, Inc., Appellants, v. 1000 FRIENDS OF FLORIDA, Sierra Club, Florida Wildlife Federation, and Palm Beach County, Appellees.
    No. 4D12-2373.
    District Court of Appeal of Florida, Fourth District.
    Aug. 7, 2013.
    Linda A. Conahan, Amy B. Boulris and Aaron J. Horowitz of Gunster, Yoakley & Stewart, P.A., Fort Lauderdale, for appellants.
    ' Richard Grosso, Fort Lauderdale, Sara Fain, Miami, and Lisa Interlandi, North Palm Beach, for appellees 1000 Friends of Florida, Sierra Club, and Florida Wildlife Federation.

      Robert P. Banks, West Palm Beach, for appellee Palm Beach County.
   CORRECTED OPINION

WARNER, J.

In this challenge to a development order permitting mining on U.S. Sugar’s property within the Agricultural Production Future Land Use area in Palm Beach County, the trial court granted summary judgment holding that the order is inconsistent with the Comprehensive Plan of Palm Beach County and enjoining activities under that order, based upon 1000 Friends of Fla., Inc. v. Palm Beach Cnty., Bergeron Sand & Rock Mine Aggregates, Inc., 69 So.3d 1123 (Fla. 4th DCA 2011), and 1000 Friends of Fla., Inc. v. Palm Beach Cnty., Rinker Materials of Fla., d/b/a Cemex, 75 So.3d 1270 (Fla. 4th DCA 2011). In both cases, this court struck down similar development orders. We affirm based upon Bergeron and Cemex.

The development order in question in this case was obtained by both Florida Rock Industries, Inc. and United States Sugar Corporation. Florida Rock was the lessee and U.S. Sugar was the owner of the subject property. After Bergeron and Cemex were decided, Florida Rock gave up its lease, and U.S. Sugar claimed that it intended to mine under the permit consistent with the comprehensive plan, attempting to distinguish the order from the previously decided cases where the companies did not intend to comply with the plan’s strict requirements regarding mining in agricultural areas.

Whether a development order is consistent with a comprehensive plan is determined by comparing what the order permits, not what the current holder intends to do under the order. The current order permits general commercial mining, a use prohibited under the comprehensive plan. The burden is on the applicant to show that the development order conforms strictly to the comprehensive plan. Machado v. Musgrove, 519 So.2d 629, 632 (Fla. 3d DCA 1987). The adopted order is inconsistent with the plan. If in fact U.S. Sugar wants to mine in a manner consistent with the plan, then it should reapply and limit its application so that any order which grants the application would be properly consistent with the comprehensive plan.

Affirmed.

STEVENSON and TAYLOR, JJ„ concur.


text:
    Glenn BLACKLEDGE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2138.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 2013.
    Rehearing Denied June 19, 2013.

      Richard F. Della Fera of Entin & Della Fera P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

We grant appellant’s motion for rehearing, withdraw the prior opinion and issue the following in its place.

Appellant appeals the summary denial of his motion for postconviction relief from his sentence for multiple counts of vehicular homicide, imposed after a violation of probation on his original sentence. Although appellant raises multiple claims of ineffective assistance of counsel and other defects, we reverse on one ground only, namely the appellant’s allegation that his counsel was ineffective in failing to object to the state admitting evidence of his DUI arrest while on probation, which he claimed violated his plea agreement. As the state failed to conclusively refute this allegation, we reverse.

Appellant was charged with multiple counts of DUI manslaughter, vehicular homicide, and felonious driving with a blood alcohol level in excess of 0.08, causing injuries. He agreed to plead guilty to the vehicular homicide charges, with the state nolle prossing the remaining charges. In exchange for his plea, the state agreed to an adjudication and a sentence of one year in the Broward County jail for each count, running concurrently, followed by one year of community control, followed by thirteen years probation, with several special conditions, which included not violating the law, driving restrictions, and not possessing alcoholic beverages.

Three years later, appellant was charged with violating the terms of his probation by: (i) driving under the influence; (ii) violating a driver’s license restriction; and (iii) using or possessing an alcoholic beverage. These arose from an incident where he drove to a Super Bowl party, had an alcoholic beverage (the number of which was in dispute), and then drove home after the party, when he was stopped by the police and arrested for DUI. Defendant admitted to the allegations of violating a driver’s license restriction and using or possessing an alcoholic beverage but did not admit to DUI. The court sentenced defendant to 37.375 years’ imprisonment in counts 9 through 12, running concurrently. Defendant’s judgment and sentence were per curiam affirmed on direct appeal. See Blackledge v. State, 6 So.3d 618 (Fla. 4th DCA 2009).

Defendant timely filed a rule 3.850 motion raising seven grounds for relief. We affirm all grounds except ground two.

In ground two, defendant claimed that he never admitted to the allegation that he drove while under the influence of alcohol. He also alleged in a sworn motion that he entered into an agreement with the state that no evidence or argument regarding the DUI would be introduced. According to defendant, the state violated its agreement by offering the probable cause affidavit for the DUI, which the court ultimately relied on when it imposed a sentence. Defendant faulted counsel for his failure to object to the admission of the probable cause affidavit.

In its response, the state argued that no such agreement was made with defendant to preclude evidence of the DUI. This statement does not conclusively refute the defendant’s sworn allegations, and the court attached no portions of the record which refuted the defendant’s allegations. See Ajuste v. State, 12 So.3d 305, 306 (Fla. 4th DCA 2009). Nevertheless, the state did submit the probable cause affidavit for the DUI, which the trial court clearly considered and relied on in sentencing the defendant. For this reason, we reverse as to ground two of defendant’s motion and remand for attachment of portions of the record which conclusively refute the defendant’s allegations or for an evidentiary hearing on the issue.

Rehearing granted. Affirmed in part; reversed for further proceedings in accordance with this opinion.

GERBER and CONNER, JJ., concur.


text:
    SIENNA RIDGE HOMEOWNERS’ ASSOCIATION, INC., a Florida not-for-profit corporation, Appellant, v. ASIA PACIFIC SOVEREIGN FUND, LLC, a Florida limited liability company, et al., Appellee.
    No. 4D12-2593.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 2013.
    Rehearing Denied Aug. 28, 2013.
    Mauri Peyton of PeytonBolin, PL, Fort Lauderdale, for appellant.
    No appearance for appellee.
   On Motion for Rehearing.

PER CURIAM.

We grant the motion for rehearing, accept the transcript of proceedings, withdraw our prior opinion, and issue the following in its place.

Appellant, a homeowners’ association, challenges the trial court’s order granting a motion to compel appellant “to honor final judgment” of foreclosure. The motion was brought by appellee, a third-party purchaser at the foreclosure sale, in an attempt to resolve the amount of money due to appellant for unpaid assessments and fees for collection. Appellee did not move to intervene in the proceedings, nor can we say that the appellee was enforcing the final judgment when it merely requested of the appellant an amount of unpaid assessments for which the third-party purchaser would be liable. Even if appellee had filed a motion to intervene, post-judgment intervention is extraordinary and disfavored. See PS Capital, LLC v. Palm Springs Town Homes, LLC, 9 So.3d 643, 645 (Fla. 3d DCA 2009). The appropriate way to resolve this issue, given the impasse between the parties as to the amount, was to file an independent action. See, e.g., E. Cnty. Water Control Dist. v. Lee Cnty., 884 So.2d 93, 93-95 (Fla. 2d DCA 2004).

Reversed.

WARNER, GROSS and LEVINE, JJ., concur.


author: MAY, J. LEVINE, J.,

text:
    Marianne EDWARDS, Appellant, v. The SUNRISE OPHTHALMOLOGY ASC, LLC, d/b/a Foundation for Advanced Eye Care; Gil A. Epstein, M.D.; and Fort Lauderdale Eye Institute, Inc., Appellees.
    No. 4D12-143.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 2013.
    Rehearing Denied Oct. 10, 2013.

      Rodrigo L. Saavedra, Jr., of Rodrigo L. Saavedra, Jr., P.A., Fort Lauderdale, for appellant.
    Burt E. Redlus of Law Offices of Burt E. Redlus, P.A., Miami, for appellees Gil A. Epstein, M.D., and Fort Lauderdale Eye Institute, Inc.
   MAY, J.

Three words beginning with “s”: similar, specialize, and specialty, and their use in our medical negligence statutes, are called into question in this appeal. The plaintiff appeals an order dismissing her medical negligence action against an ophthalmologist and his employer because she failed to obtain a written opinion from an expert — as defined by section 766.102, Florida Statutes (2009) — to support the negligence claim. She argues the court erred in dismissing the ophthalmologist from the action. We disagree and affirm.

The plaintiff filed a complaint against her ophthalmologist and the surgical center where the surgery was performed. She alleged that she contracted a rare bacterial infection as a result of lower eyelid surgery. According to the complaint, the negligence resulted in the plaintiff having to undergo additional surgery and sustaining disfigurement of her eye.

Prior to filing the complaint, the plaintiff served the ophthalmologist with a Notice of Intent to Initiate Litigation for Medical Malpractice and a verified affidavit from an infectious disease doctor. That doctor opined that the plaintiff contracted the infection because the ophthalmologist failed to use proper sterilization techniques during the eye surgery. The ophthalmologist responded to the plaintiffs lawyer, acknowledging receipt of the notice of intent and affidavit, and advising that he did not believe the notice was sufficient because the infectious disease doctor was not an expert in the same specialty — ophthalmology. The ophthalmologist subsequently filed an Answer, asserting noncompliance with sections 766.102, 766.106, 766.202, and 766.203, Florida Statutes (2009), as an affirmative defense.

The ophthalmologist then moved for a determination of whether the infectious disease doctor qualified as an expert under section 766.102. The ophthalmologist filed a memorandum and attached the infectious disease doctor’s affidavit, CV, deposition transcript, correspondence between the parties’ attorneys, and the expert opinion of a board certified ophthalmologist. The plaintiff filed a response.

At an unrecorded hearing, the trial court ruled that the infectious disease doctor’s affidavit was insufficient to comply with section 766.102’s requirement of specialization, and dismissed the ophthalmologist. From this order, the plaintiff now appeals.

We have de novo review. Oliveros v. Adventist Health Sys./Sunbelt, Inc., 45 So.3d 873, 876-77 (Fla. 2d DCA 2010).

The plaintiff argues the ophthalmologist waived compliance with the chapter 766 pre-suit requirements by failing to specifically plead it. Id. We disagree. The Answer asserted the plaintiff “failed to comply with the spirit or law embodied by Florida Statute 766.106.... Specifically, these defendants claim that plaintiff failed to serve a corroborating written medical expert.opinion in compliance with the requirements of F.S. 766.203(2), F.S. 766.202(6) and F.S. 766.102.” This assertion was sufficiently specific to place the. plaintiff on notice. In addition, the acknowledgment letter sent a year prior to filing the Answer specifically challenged the sufficiency of the infectious disease doctor’s affidavit because he was not an ophthalmologist. There was no waiver.

The Florida Legislature has designed a statutory framework for filing medical negligence actions. A plaintiff must conduct an investigation to determine if “there are reasonable grounds to believe” that a defendant was negligent and that the “negligence resulted in injury” to the plaintiff. § 766.203(2), Fla. Stat. (2009). The plaintiff must then “notify each prospective defendant by certified mail, return receipt requested, of intent to initiate litigation for medical negligence.” § 766.106(2)(a), Fla. Stat. (2009). The plaintiff is required to submit “a verified written medical expert opinion from a medical expert as defined in s. 766.202(6)....” § 766.203(2), Fla. Stat. (2009).

Section 766.202(6) defines a medical expert as “a person ... engaged in the practice of his or her profession who holds a health care professional degree from a university or college and who meets the requirements of an expert witness as set forth in s. 766.102.” § 766.202(6), Fla. Stat. (2009). Under section 766.102, if the defendant is a specialist, the medical expert must “[sjpecialize in the same specialty as the health care provider ... or specialize in a similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim and have prior experience treating similar patients.” § 766.102(5)(a), Fla. Stat. (2009) (emphasis added).

The myriad of factual scenarios giving rise to medical negligence claims has caused differing outcomes in cases attempting to apply the term “similar specialty.” See, e.g., Weiss v. Pratt, 53 So.3d 395 (Fla. 4th DCA 2011) (emergency room physician qualified to testify against orthopedic surgeon); Barrio v. Wilson, 779 So.2d 413 (Fla. 2d DCA 2000) (pulmonologist not qualified to testify against emergency room physician). As we have previously noted: “[wjhat is clear is that nothing is clear about ‘similar specialty.’ ” Weiss, 53 So.3d at 400.

In Weiss, we found no error in the trial court allowing an emergency room physician to testify against an orthopedic surgeon. However, the area of testimony was limited to how to move an injured football player from the field. We specifically indicated that our holding was limited to the facts of the case, and that, had the area of testimony concerned more specialized medical knowledge, the outcome may have been different. Id. at 401. We find Weiss distinguishable, and this case gives us the perfect opportunity to elucidate the distinction.

Here, the plaintiff sued her ophthalmologist for complications of eye surgery. The complaint specifically alleged the ophthalmologist:

(1) “held himself out to the public to be a specialist in the field of ophthalmology, specializing in ophthalmic plastic and reconstructive surgery”; and
(2) “breached the prevailing standard of care for proper sterile technique and/or proper sterilization technique in order to prevent the contamination of [the plaintiffs] surgical site.... ”

The plaintiff submitted an expert affidavit from an infectious disease doctor. These doctors do not “[sjpecialize in the same specialty.” § 766.102(5)(a)l. Fla. Stat. (2009). Simply put, the infectious disease doctor is not an eye surgeon nor is the ophthalmologist an infectious disease doctor.

The dissent suggests however that the infectious disease doctor satisfied the statute’s requirement that the expert’s specialty include “the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim.” Id. (emphasis added). Here, the medical condition was ophthalmic in nature, a bilateral blephro-plasty. The infectious disease doctor does not “specialize in a similar specialty that includes the evaluation, diagnosis, or treatment of’ a bilateral blephroplasty or any type of surgery. And, the infectious disease doctor’s affidavit does not suggest otherwise.

If we were to allow an infectious disease doctor to be considered a similar specialty to an ophthalmologist or one “that includes the evaluation, diagnosis, or treatment of the medical condition” — a bilateral blephroplasty — we would impose the infectious disease doctor’s expertise on a dissimilar eye-surgery specialist. This ■vitiates the very nature of a physician’s specialization. Neither could we impose the eye surgeon’s specialization on the infectious disease doctor. In fact, the ophthalmologist in this case referred the plaintiff to an infectious disease specialist when he discovered the infection for the very reason that another type of specialist was needed.

As we identified in Weiss, there are some cases that involve allegations of more common medical knowledge and skill that may be possessed by doctors of dissimilar specialties. More likely than not, however, the allegations against a specialist require an expert in the identical specialty with the same or similar expertise to satisfy section 766.102’s specialization requirement. We therefore affirm the trial court’s dismissal of the ophthalmologist.

Affirmed.

GERBER, J. concurs.

LEVINE, J., dissents with opinion.

LEVINE, J.,

dissenting.

I respectfully dissent from the majority opinion as I would reverse the trial court’s dismissal of the plaintiffs medical negligence suit. The majority agrees with the trial court’s dismissal and finds that the plaintiff failed to obtain an expert opinion that satisfied the “specialization requirement” of section 766.102, Florida Statutes (2009). I would reverse the trial court and find that the plaintiff did satisfy the requirements of the applicable statute that governed expert witness pre-suit affidavits in medical malpractice actions in effect at the time of suit.

Prior to initiating a medical malpractice action, the plaintiff must conduct a presuit “investigation to ascertain that there are reasonable grounds to believe that: (a) [a]ny named defendant in the litigation was negligent in the care or treatment of the claimant; and (b) [sjuch negligence resulted in injury to the claimant.” § 766.203(2), Fla. Stat. (2009). Then, the plaintiff must “notify each prospective defendant by certified mail, return receipt requested, of intent to initiate litigation for medical negligence.” § 766.106(2)(a), Fla. Stat. (2009).

“[A]t the time the notice of intent to initiate litigation is mailed,” the plaintiff must submit “a verified written medical expert opinion from a medical expert as defined in s. 766.202(6) ... which statement shall corroborate reasonable grounds to support the claim of medical negligence.” § 766.203(2)(b), Fla. Stat. (2009). Section 766.202(6) defines a medical expert as “a person duly and regularly engaged in the practice of his or her profession who holds a health care professional degree from a university or college and who meets the requirements of an expert witness as set forth in s. 766.102.” Pursuant to section 766.102, if the defendant doctor is a specialist, then the medical expert must “[s]pecialize in the same specialty as the health care provider ... or specialize in a similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim and have prior experience treating similar patients.” § 766.102(5)(a)l., Fla. Stat. (2009) (emphasis added).

In this case, the trial court merely stated that “[i]t is determined that the affidavit is insufficient” without further elaboration. The majority elaborates that the affidavit is deficient because “[sjimply put, the infectious disease doctor is not an eye surgeon nor is the ophthalmologist an infectious disease doctor.”

The Florida Supreme Court held in Patry v. Capps, 633 So.2d 9, 13 (Fla.1994), that “when possible the presuit notice and screening statute should be construed in a manner that favors access to courts.” See also Kukral v. Mekras, 679 So.2d 278, 284 (Fla.1996) (“[T]he medical malpractice statutory scheme must be interpreted liberally so as not to unduly restrict a Florida citizen’s constitutionally guaranteed access to the courts, while at the same time carrying out the legislative policy of screening out frivolous lawsuits and defenses.”). Further, we should be guided by this court’s decision in Weiss v. Pratt, 53 So.3d 395 (Fla. 4th DCA 2011).

In Weiss, this court found that
while the doctor’s specialty was orthopedic surgery, the plaintiff based its claim in part on what the doctor failed to do on the football field, failing to place the plaintiff on a backboard. The emergency room expert was not an orthopedic surgeon, but he had the expertise of what to do in such a circumstance. Had the allegations concerned some aspect of orthopedic surgery requiring a specific level of specialization, the emergency room physician may not have been qualified to render an expert opinion.

Id. at 401.

Our court stated further,
It would certainly be easier to require the precise area of specialization, but then that requirement might devolve into sub-specialty, sub-sub-specialty until there was no one with the same sub-sub-sub-specialty. The statute as written allows for sufficient expertise to ensure fairness. It does that by requiring either the same specialty or an expert with sufficient experience to testify.

Id. (emphasis added).

In the present case, the defendant physician’s specialty was ophthalmology and the plaintiffs expert was a physician engaged in the practice of medicine related to epidemiology and infectious disease. The plaintiffs expert opined that there were reasonable grounds that the defendants were medically negligent by “failing to use, in the operating room, proper sterile technique and/or proper sterilization technique in order to prevent the contamination of [the plaintiffs] surgical site with Noeardia” (the bacterial infection allegedly contracted by the plaintiff). The expert’s curriculum vitae reflects that he has considerable experience in the areas of medicine upon which he opined. He went to reputable universities, earning his medical degree in 1988 and a master’s degree in public health with a focus on epidemiology. He is board certified in infectious diseases, teaches medical school courses on epidemiology and population health, and is a director of infection control at several hospitals. He has also acted as an ad hoc reviewer for various journals related to infectious diseases.

Clearly, the plaintiffs expert was, as recognized in Weiss, “an expert with sufficient experience to testify” about how the plaintiff contracted the infectious disease due to the alleged failure of the defendants to use proper sterilization techniques. Id. The plaintiffs expert satisfied the statutory requirement that the expert’s specialty include “the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim.” § 766.102(5)(a)l., Fla. Stat. (2009). Who better than an expert in epidemiology and infectious disease could testify about the medical condition of Nocardia and how it could be contracted?

The majority states that “the medical condition is ophthalmic in nature” and therefore the doctor providing the affidavit needed to specialize in a similar specialty. In fact, one could argue that the medical condition was immunologic in nature, as the complaint involved an allegation that the surgery was not sterile. Part and parcel of any treatment “ophthalmic in nature,” including ophthalmic surgery, is that the surgery be aseptic and free of bacteria. See PDR Medical Dictionary 1712 (1st ed. 1995) (defining “aseptic surgery” as “the performance of an operation with sterilized hands, instruments, etc., and utilizing precautions against the introduction of infectious microorganisms from without.”).

We should also note that effective July 1, 2013, the legislature deleted the statutory language allowing that the expert’s specialty include “the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim.” Section 766.102(5)(a)l. now defines the specialization requirement to include only those who “[specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered.” The bill analysis recognizes that “[t]he bill limits the class of individuals who may offer expert testimony against a defendant specialist in a medical negligence action. These experts must specialize in the same, rather than similar, medical specialty as the defendant.” Fla. Comm, on Judiciary, SB 1792 (2013), Staff Analysis 1 (Mar. 29, 2013).

“The court has the right and the duty, in arriving at the correct meaning of a prior statute, to consider subsequent legislation.” Gay v. Can. Dry Bottling Co. of Fla., 59 So.2d 788, 790 (Fla.1952) (citation omitted). “When the legislature amends a statute by omitting words, we presume it intends the statute to have a different meaning than that accorded it before the amendment.” Capella v. City of Gainesville, 377 So.2d 658, 660 (Fla.1979); see also Norman J. Singer & J.D. Shambie Singer, 1A Sutherland Statutory Construction § 22:29 (7th ed. 2012) (“When a statute is amended and words are omitted, courts presume the legislature intended the statute to have a meaning different from the one it had before amendment.”). “[A]n amendment indicates that [the legislature] intended to change the original act by creating a new right or withdrawing an existing one. Therefore, any material change in the language of the original act is presumed to indicate a change in legal rights.” 1A Sutherland § 22:30 (footnote omitted). Thus, we can presume that the recent amendment by the legislature signifies a change in the law as it relates to who may file a medical expert affidavit. In this case, the pre-amendment statutory language supports the conclusion that the af-fídavit of the plaintiffs medical expert satisfied the requirements of the statute in effect at the time of suit.

In summary, I would reverse the dismissal of the trial court, and I would find the plaintiffs expert affidavit compliant with the law applicable at the time of suit.

      . Reference to the ophthalmologist includes his employer throughout the opinion.

      . Sunrise Ophthalmology ASC, LLC remains in the case.

      . The dissent acknowledges the Florida Legislature has now clarified the statute to require the same specialty to avoid the confusion the statute's previous language has caused.