author: WOLF, J.

text:
    THRIVENT FINANCIAL FOR LUTHERANS, Appellant, v. STATE of Florida, DEPARTMENT OF FINANCIAL SERVICES, Appellee.
    No. 1D13-5299.
    District Court of Appeal of Florida, First District.
    Aug. 5, 2014.

      Timothy G. Schoenwalder of Blank & Meenan, P.A., Tallahassee, and Andrew B. Kay of Cozen O’Connor, Washington, D.C., for Appellant.
    Wendy L. Furman of Pett Furman, PL, Boca Raton, and Jason P. Gosselin and Laura M. Zulick of Drinker Biddle & Reath LLT, Philadelphia, PA, for American Council of Life Insurers, Amicus Curiae in support of Thrivent Financial for Lutherans.
    Richard T. Donelan, Jr., Chief Counsel, and Paul C. Stadler, Jr., Assistant General Counsel, Tallahassee, for Appellee.
    Steve Burgess, Insurance Consumer Advocate and Michael Kliner, Senior Attorney, Office of the Insurance Consumer Advocate, Florida Department of Financial Services, Amicus Curiae in support of Florida Department of Financial Services.
   WOLF, J.

Appellant, Thrivent Financial for Lutherans (Thrivent), appeals from a declaratory statement issued by the Department of Financial Services (DFS) interpreting section 717.107, Florida Statutes (2013). We find DFS’ interpretation of section 717.107 is clearly erroneous because it ignores the plain language of the statute. Accordingly, we reverse.

I.Relevant Statutes

Section 717.107, which is part of the Florida Disposition of Unclaimed Property-Act, requires insurers to remit to DFS any life insurance funds that remain “unclaimed” for a certain period of time— referred to as the “dormancy period”— after the funds become “due and payable.” DFS may impose penalties and charge interest on funds that are not reported and paid to DFS as required by chapter 717. See § 717.134, Fla. Stat. Section 717.107 states in relevant part:

(1) Funds held or owing under any life or endowment insurance policy or annuity contract which has matured or terminated are presumed unclaimed if unclaimed for more than 5 years after the funds became due and payable as established from the records of the insurance company holding or owing the funds, but property descñbed in paragraph (3)(b) is presumed unclaimed if such property is not claimed for more than 2 years. The amount presumed unclaimed shall include any amount due and payable under s. 627.4615.
(3) For purposes of this chapter, a life or endowment insurance policy or annuity contract not matured by actual proof of the death of the insured or annuitant according to the records of the company is deemed matured and the proceeds due and payable if:
(a) The company knows that the insured or annuitant has died; or
(b)l. The insured has attained, or would have attained if he or she were living, the limiting age under the mortality table on which the reserve is based;
2.• The policy was in force at the time the insured attained, or would have attained, the limiting age specified in sub-paragraph 1.; and
3.Neither the insured nor any other person appearing to have an interest in the policy within the preceding 2 years, according to the records of the company, has assigned, readjusted, or paid premiums on the policy; subjected the policy to a loan; corresponded in writing with the company concerning the policy; or otherwise indicated an interest as evidenced by a memorandum or other record on file prepared by an employee of the company.
(6) Notwithstanding any other provision of law, if the company learns of the death of the insured or annuitant and the beneficiary has not communicated with the insurer within 4 months after the death, the company shall take reasonable steps to pay the proceeds to the beneficiary.

(Emphasis added). Because section 717.107 references the time at which proceeds become due and payable “as established from the records of the insurance company,” the parties also rely on section 627.461, Florida Statutes (2013), which sets forth requirements for insurance contracts.

Every contract shall provide that, when a policy becomes a claim by the death of the insured, settlement shall be made upon receipt of due proof of death and surrender of the policy.

§ 627.461, Fla. Stat. (2013) (emphasis added).

II. Declaratory Statement

Thrivent sought a declaratory statement that life insurance funds become “due and payable as established from the records of the insurance company” under subsection 717.107(1) when the insurer receives proof of the insured’s death and surrender of the policy, as provided in section 627.461.

DFS issued a declaratory statement finding that life insurance funds are “due and payable” under subsection 717.107(1) upon the death of the insured, at which time the dormancy period is automatically triggered. DFS further found that section 717.107created an affirmative duty on insurers to use due diligence in searching databases, such as the Social Security Administration’s Death Master File, in order to determine if any of its insureds has died.

III. Analysis

“Any substantially affected person may seek a declaratory statement regarding an agency’s opinion as to the applicability of a statutory provision, or of any rule or order of the agency, as it applies to the petitioner’s particular set of circumstances.” § 120.565(1), Fla. Stat. (2013). “[A]n appellate court may reverse a declaratory statement only if the agency’s interpretation of the law is clearly erroneous.” Regal Kitchens, Inc. v. Fla. Dep’t of Revenue, 641 So.2d 158, 162 (Fla. 1st DCA 1994). “[W]here the administrative ruling or policy is contrary to the plain and unequivocal language being interpreted, the ruling or policy is clearly erroneous.” Eager v. Fla. Keys Aqueduct Auth, 580 So.2d 771, 772 (Fla. 3d DCA 1991). We find that DFS’ interpretation of section 717.107is contrary to the plain language of the statute and, therefore, is clearly erroneous.

The plain language of subsection 717.107(1) states that life insurance funds “become due and payable as established by the records of the insurance company.” Section 627.461 states that payment “shall be made upon receipt of due proof of death and surrender of the policy.” Therefore, the records of the insurance company do not establish funds as “due and payable” under subsection 717.107(1) until the insurer receives proof of death and surrender of the policy.

Alternatively, subsection 717.107(3) provides that contracts “not matured by actual proof of the death” as contemplated by subsection 717.107(1) are “deemed matured and the proceeds due and payable” if the insurer either “knows that the insured ... has died,” or if the insured “has attained, or would have attained if he or she were living, the limiting age.”

Nothing in the plain language of section 717.107supports DFS’ interpretation that funds become “due and payable” at the moment the insured dies. Further, if life insurance funds were automatically “due and payable” at the time of death under subsection 717.107(1), that would render meaningless subsection (3), which provides alternate means by which a contract “not matured by actual proof of the death” may be “deemed matured and the proceeds due and payable.” See Hechtman v. Nations Title Ins., 840 So.2d 993, 996 (Fla.2003) (“[W]ords in a statute should not be construed as mere surplusage.”); Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992) (“Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.”) (emphasis omitted).

DFS relies on section 717.102, Florida Statutes, to support its interpretation that life insurance is due and payable at the time of death, even if no claim is made. Subsection 717.102(2) states that “[p]rop-erty is payable or distributable for the purpose of this chapter notwithstanding the owner’s failure to make demand or to present any instrument or document required to receive payment.” Section 717.102 is titled a “general rule,” but that general rule does not control over section 717.107, which deals specifically with “[f]unds owing under life insurance policies.” See Murray v. Mariner Health, 994 So.2d 1051, 1061 (Fla.2008) (“[W]here two statutory provisions are in conflict, the specific provision controls the general provision.”).

Further, contrary to DFS’ assertion, this court’s interpretation of section 717.107 does not require that a claim be made before funds can be considered “unclaimed.” Subsection 717.107(1) states that if a claim is made, any funds that were not paid to the beneficiary after 5 years are deemed “unclaimed.” Thrivent explained at oral argument that this situation can occur if a beneficiary cannot be located. Or, subsection 717.107(3) provides instances in which funds are deemed unclaimed where no claim was made.

Finally, DFS argues this court should impose an affirmative duty on insurers to search death records in order to ascertain whether any insured has died. At oral argument, DFS indicated that insurers could fulfill this duty by searching databases such as Google, LexisNexis, or the Death Master File. However, nothing in the plain language of section 717.107 imposes an affirmative duty on insurers to search these death records. DFS asks this court to rewrite the statute based on policy considerations. However, “this Court may not rewrite statutes contrary to their plain language.” Hawkins v. Ford Motor Co., 748 So.2d 993, 1000 (Fla.1999). “[Pjolicy concerns ... must be addressed by the Legislature.” Id.

For the reasons discussed above, we find DFS’ interpretation of section 717.107 is clearly erroneous. Life insurance funds become “due and payable” under subsection 717.107(1) at the time the insurer receives proof of death and surrender of the policy as contemplated by section 627.461; or, funds become “due and payable” under subsection 717.107(3) when the insurer knows that the insured has died, or when the insured attained or would have attained the limiting age. Therefore, we REVERSE.

ROWE, J„ and PARKER, GREGORY S., Associate Judge, concur.


source: Caselaw Access Project

author: MORRIS, Judge.

license: Public Domain

text:
    Jason Wayne FAULKNER, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3454.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 2014.
    Howard L. Dimmig, II, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Jason Wayne Faulkner, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   MORRIS, Judge.

Jason Faulkner appeals the revocation of his community control and his resulting sentences in four cases, which total fifteen years in prison followed by ten years’ probation. We affirm his convictions and sentences with one exception. Upon revocation of Faulkner’s community control, the trial court sentenced him as a habitual felony offender in all four cases, but the offense of possession of methamphetamine in case 10-1156 is not a qualifying offense under the habitual felony offender statute. See § 775.084(l)(a)(3), Fla. Stat. (2009); Winthrop v. State, 974 So.2d 512, 513 (Fla. 2d DCA 2008). We also note that Faulkner was not sentenced as a habitual felony offender in case 10-1156 when he was originally sentenced to community control in 2010. Accordingly, we reverse his sentence for possession of methamphetamine in case 10-1156 and remand for the limited purpose of striking the habitual offender designation.

Affirmed in part, reversed in part, and remanded.

VILLANTI and BLACK, JJ., Concur.


author: PER CURIAM.

text:
    Luis A. SORO, Appellant, v. Jose L. SORO, Appellee.
    No. 3D14-826.
    District Court of Appeal of Florida, Third District.
    Aug. 6, 2014.
    Rehearing Denied Aug. 28, 2014.
    Luis A. Soro, in proper person.
    Jerome Hurtak, North Miami, for appel-lee.
    Before ROTHENBERG, LOGUE, and SCALES, JJ.
   PER CURIAM.

Upon consideration of the initial brief, and finding no preliminary basis for reversal has been demonstrated, the order below is summarily affirmed pursuant to Florida Rule of Appellate Procedure 9.315(a).

Affirmed.


text:
    Kimberly RODEN, as Personal Representative, for the Estate of Loretta Roden, deceased, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, individually and as successor my merger to Brown & Williamson Tobacco Corporation (a/k/a Brown & Williamson USA, Inc.), individually and as successor by merger to The American Tobacco Company (f/k/a The American Tobacco Company Inc.), a foreign corporation; Lorillard Tobacco Company, a foreign corporation; Lorillard, Inc., a foreign corporation; Altria Group, Inc., a foreign corporation and Philip Morris, U.S.A., Inc., (f/k/a Philip Morris Inc.), a foreign corporation; Vector Group Ltd, Inc., (f/k/a Brooke Group Ltd., Inc., f/k/a Brooke Group Holding Inc.), and holding company for Liggett Group, LLC, individually and successor by merger to the Liggett Group Inc., (f/ k/a Liggett & Myers Tobacco Company), a foreign corporation; Liggett Group, LLC., a foreign corporation; The Counsil for Tobacco Research U.S.A., a foreign corporation; The Tobacco Institute, Inc., a foreign corporation and John Doe Corporation, unknown at this time, Appellees.
    No. 4D11-4211.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2014.

      Chanthina Abney of Gary, Williams, Lewis & Watson, P.L., Stuart, for appellant.
    Geoffrey J. Michael of Arnold & Porter LLP, Washington, D.C., for appellee Philip Morris USA Inc.
    Charles R.A. Morse of Jones Day, New York, New York, for appellee R.J. Reynolds Tobacco Company.
    Elliot Scherker, David L. Ross, Julissa Rodriguez and Stephanie L. Varela of Greenberg Taurig, P.A., Miami, for appel-lee Lorillard Tobacco Company.
    Karen H. Curtis of Clarke Silvergate, P.A., Miami, Co-Counsel for appellee Lig-gett Group LLC.
   PER CURIAM.

Kimberly Roden appeals the trial court’s order granting the tobacco companies’ motion to dismiss. Roden argues that the trial court erred in determining that the complaint could not be amended to add a wrongful death claim. We agree.

In January 2008, the original plaintiff, Loretta Roden (“Loretta”), filed a complaint against the 'tobacco companies as a member of the Engle class. Loretta alleged that she suffered injuries caused by smoking cigarettes and the actions of the tobacco companies.

In May 2008, during the pendency of the case, Loretta died. Her death certificate listed the causes of death as cardiac arrest, myocardial infarction, and coronary artery disease. On September 29, 2008, Loretta’s daughter, Roden, filed a motion for substitution of party, seeking to substitute herself into the suit as Loretta’s personal representative. In January 2009, the trial court signed an order granting Roden’s motion to substitute.

In August 2011, the tobacco companies filed a motion to dismiss the complaint. In the motion to dismiss, the tobacco company argued that “the personal injury claim was extinguished by [Lorettaj’s death”, and therefore the complaint should be dismissed, and cited to Niemi v. Brown & Williamson Tobacco Corp., 862 So.2d 31 (Fla. 2d DCA 2003), and Taylor v. Orlando Clinic, 555 So.2d 876 (Fla. 5th DCA 1989). The tobacco companies also cited to section 768.20, Florida Statutes (2013), arguing that the statute dictated that the personal injury action could not survive Loretta’s death, and since Roden never filed a complaint or an amended complaint seeking a wrongful death claim, the action had “abated” and the complaint must be dismissed. The tobacco companies also argued that Roden could not be granted leave to amend the complaint to add a wrongful death claim because the wrongful death action had to be filed as a separate cause of action and that the statute of limitations for a wrongful death claim had already run.

After the tobacco companies filed the motion to dismiss, Roden sought leave to file an amended complaint which included a wrongful death claim. Roden stated that she had not promptly filed a wrongful death claim because she erroneously thought that a complaint, which included a wrongful death claim, had been filed by her prior attorney. The tobacco companies filed an opposition to this motion, along with a motion to dismiss the amended complaint.

In October 2011, after a hearing on the issues, the trial court judge entered an order granting the tobacco companies’ motion to dismiss. The order stated “that Defendant’s Motion to Dismiss is Granted based on FS 768.20 and Capone v. Philip Morris, 56 So.3d 34 (Fla. 3d DCA 2011)[sic] and Niemi v. Brown & Williamson, 862 So.2d 31 (Fla. 2d DCA 2003).” Roden appeals this order, raising two issues: (1) whether a wrongful death claim must be brought as a new and separate cause of action when a plaintiff dies during the pendency of a personal injury action, and (2) whether the statute of limitations for wrongful death claims bars Roden’s ability to amend the complaint in the instant case. We answer both in the negative.

I. Wrongful Death as a Separate Cause of Action

The first issue is whether a personal injury claim can be amended to add a wrongful death cause of action when a personal injury plaintiff dies during the pendency of the case. “Whether a personal injury complaint can be amended upon the death of an injured party plaintiff to add a wrongful death claim or to substitute parties is a pure question of law. Therefore, our standard of review is de novo.” Capone v. Philip Morris U.S.A., Inc. (Capone II), 116 So.3d 363, 373 (Fla.2013) (citing Universal Ins. Co. of N. Am. v. Warfel, 82 So.3d 47, 57 (Fla.2012)). In its order granting the tobacco companies’ motion to dismiss, the trial court judge specifically cited to section 768.20, Capone v. Philip Morris (Capone I), 56 So.3d 34 (Fla. 3d DCA 2011), and Niemi v. Brown & Williamson, 862 So.2d 31 (Fla. 2d DCA 2003). During the pendency of this appeal, the Florida Supreme Court reviewed Capone I and reversed the Third District’s holding. Capone II, 116 So.3d at 377.

The main issue our supreme court analyzed in Capone II was whether the term “abate” as used in section 768.20 means that a personal injury claim, upon the death of the plaintiff, is completely extinguished. Capone II, 116 So.3d at 376. The Court stated:

[W]e hold that when a personal injury action “abates” pursuant to section 768.20, this does not require that the entire case be deemed immediately void and must be dismissed.... Instead, “abate,” as that term is used in section 768.20 must be interpreted to cause the case to be suspended until the personal representative of the decedent’s estate is added as a party to the pending action and receives a reasonable opportunity to amend the complaint to state the damages sought under a wrongful death claim or to state both a claim for survival damages and, in the alternative, wrongful death where — as here — the cause of the decedent’s death may be disputed by the parties. Id. at 376-77 (internal citation omitted). The tobacco companies’ argument, with which the trial court agreed, that a wrongful death complaint must be brought as a separate cause of action, was explicitly rejected by our supreme court. Without the benefit of Capone II, it was thus error for the trial court to grant the tobacco companies’ motion to dismiss based on Capone I, which has been overturned.

II. Statute of Limitations and the Relation Back Doctrine

The tobacco companies also argue that their motion to dismiss was properly granted because the two year statute of limitations period on a wrongful death claim had run prior to Roden seeking to amend the complaint. Roden however, argues that the wrongful death claim relates back to the filing of the complaint and is therefore not time-barred. We agree that the claim relates back.

Florida Rule of Civil Procedure 1.190(c) states that “[w]hen the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.” Fla. R. Civ. P. 1.190(c) (emphasis added). “To survive a motion to dismiss after the statute of limitations has passed, an amended complaint must relate back to the original pleading made before the expiration of the statute of limitations.” Flores v. Riscomp Indus., Inc., 35 So.3d 146, 147 (Fla. 3d DCA 2010). A determination whether an amended complaint arises out of the same general facts and thus relates back is reviewed de novo. Id. at 147-48.

The tobacco companies cite to Cox v. Seaboard Coast Line R.R. Co., 360 So.2d 8 (Fla. 2d DCA 1978), in support of then-argument that the wrongful death claim should not relate back. In Cox, a minor and his parents were involved in a train-car collision. 360 So.2d at 9. The minor brought a wrongful death action for the death of his mother, recovered, and then brought a separate wrongful death suit for the death of his father. Id. After the two-year statute of limitations period for a personal injury action had run, the minor sought to amend the wrongful death complaint for his father’s death to add a personal injury claim for his own injuries. Id. The Second District affirmed the trial court’s order denying the minor leave to amend his complaint. Id. at 10. The court held that, although the rules regarding motions for leave to amend are generally construed liberally, the “[mjinor’s personal injury action [wa]s a different cause of action than his wrongful death cause of action.” Id. at 9-10. Therefore, the relation back doctrine did not apply because the doctrine “does not authorize a plaintiff, under the guise of an amendment, to state a new and different cause of action.” Id. at 9.

The tobacco companies also cite to School Board of Broward County, Florida v. Surette, 394 So.2d 147 (Fla. 4th DCA 1981), as authority. In Surette, the parents of a minor, who was killed when she was hit by an automobile, filed a wrongful death action, and then later amended the complaint to add a survival claim. 394 So.2d at 149. However, since the survival action was added to the claim after the statute of limitations had run, this court held that the case should be dismissed because

the amended complaint in the present case not only alleged a different cause of action from that alleged in the original complaint, but it was also filed by a different party. The original complaint was filed by the parents of the deceased for their own damages; the amended complaint was filed by the estate for different damages.

Id. at 154 (emphasis added).

We find this case distinguishable from both Cox and Surette. In Cox, the damages sought in the amended claim were from an injury separate and apart from the injury in the original complaint. The amended claim in Cox sought recovery for the injuries the minor himself sustained in the accident (personal injury claim), as opposed to the recovery sought in the original complaint, based on the fact that his father initially sustained physical injuries, then later died (wrongful death claim). In the instant case, the damages sought in both the personal injury claim and the wrongful death claim were based on the allegation that the initial, and eventual, injuries to the decedent were caused by smoking cigarettes. This case is also distinguishable from Surette, because, here, the amended complaint was not filed by a “different party,” since the trial court had previously granted Roden’s motion to substitute.

Black’s Law Dictionary defines “cause of action” as “[a] group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” Black’s Law Dictionary (9th ed. 2009) (emphasis added). Since the personal injury action arose based on Loretta’s claim of injury due to smoking cigarettes, and the wrongful death claim is based on the exact same facts, we determine that the two causes of action arose out of the same transaction. Just as the Third District held in Flores, “[although additional allegations of fact were inserted into the complaint as it progressed through its steps, and the legal theories of recovery were supplemented and modified, the substantive factual situation remained the same as that found in the original complaint.” 35 So.3d at 147 (emphasis added).

An additional consideration courts have analyzed in determining whether the relation back doctrine applies to a case is notice to the other party. For example, in Handley v. Anclote Manor Foundation, 253 So.2d 501, 502 (Fla. 2d DCA 1971), the Second District reviewed a trial court order dismissing an amended complaint which sought to add the guardian of the decedent’s son as a plaintiff to the action. The Second District reversed the trial court’s order, and held that the amended complaint related back to the original filing because

[t]here ha[d] been no prejudice shown. The defendants knew upon the filing of the original complaint that there was a child who survived the decedent and who might plausibly claim under the wrongful death statute on the same allegations of fact. There is no surprise, and in our view the consistent interpretation of our Rules would require the trial court to permit the amended complaint to stand as of the date of the original complaint’s filing.

Id. Although the Handley case involved an amendment adding a party, versus a different claim, in the instant case, just as in Handley, there were no surprises; Roden filed Loretta’s death certificate on September 29, 2008, less than five months after Loretta’s death. Therefore, the tobacco companies were on notice of Loretta’s death well before Roden sought to amend the complaint, and well within the two-year statute of limitations period. See also Frances v. Plaza Pac. Equities, Inc., 109 Nev. 91, 847 P.2d 722, 727 (1993) (“[Defendant] was fully informed of the factual basis for an eventual wrongful death claim through the original complaint. Moreover, [defendants counsel filed the suggestion of death on the record after [the decedent] died, thereby eliminating any conjecture as to whether [defendant] had notice of [the decedent]’s demise prior to [the representative]’s request to amend the complaint and add the wrongful death claim.”).

Both parties also discuss how different jurisdictions have decided the issue of whether a wrongful death claim relates back to the original filing. As the tobacco companies point out, these are based on different relation back doctrines and wrongful death statutes. However, multiple states, as well as cases based on the Federal Rules of Civil Procedure, which have similar “conduct, transaction, or occurrence” language in their relation back doctrines, have supported wrongful death claims relating back to the filing of the original complaint. See Lewin v. Am. Export Lines, Inc., 224 F.R.D. 389, 398 (N.D.Ohio 2004) (“Here, Plaintiffs seek to add a new claim, i.e. wrongful death, arising from the asbestos exposure asserted in the original Complaints. Based on the standard set forth in Rule 15(c)(2) and Sixth Circuit case law, this claim should ‘relate back’ to the original pleadings.”); Sompolski v. Miller, 239 Ill.App.3d 1087, 180 Ill.Dec. 932, 608 N.E.2d 54, 57-58 (1992) (holding that a wrongful death claim related back to a personal injury claim in an automobile accident case where the “wrongful death claim ... arose from the same transaction or occurrence” as the original complaint and “the defendant was advised of the essential facts necessary to prepare his defense,” even with the added claim); In re Olympia Brewing Co. Sec. Litig., 612 F.Supp. 1370, 1372 (N.D.Ill. 1985) (discussing cases where courts have found no relation back under rule 15, where amendments sought were distinct from the original pleadings, the facts set forth were separated by a significant amount of time, the claims sought to be added were based on facts of a different character, and the facts alleged led to different injuries); Velez v. Springer, 102 A.D.2d 823, 476 N.Y.S.2d 374, 375 (1984) (“There can be no question that an amendment of a complaint to assert a cause of action for wrongful death, based upon the same acts which have already occasioned a pending personal injury action, will be within the ‘relation back’ provisions.”).

Therefore, we reverse the trial court’s order granting the tobacco companies’ motion to dismiss, and remand the case for further proceedings consistent with this opinion.

Reversed and Remanded.

STEVENSON, TAYLOR and CONNER, JJ., concur.

      . Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla.2006)

      . The statute of limitations on a wrongful death claim is two years. § 95.11(4)(d), Fla. Stat. (2013).

      . Based on the record, it seems as though the parties argued Roden’s request for leave to file the amended complaint in conjunction with the tobacco companies’ motion to dismiss at the October 11, 2011 hearing. However, it also seems as though the trial court did not make an explicit ruling on Roden’s motion for leave to file an amended complaint, but implicitly rejected it by granting the tobacco companies’ motion to dismiss.


author: TAYLOR, J.

text:
    Charles SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-787.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2014.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   TAYLOR, J.

Appellant, Charles Smith, appeals from a circuit court order which adopted a magistrate’s recommended order and granted a treatment center’s petition to administer involuntary psychiatric medication and treatment. Because there was no competent, substantial evidence establishing that appellant’s multidisciplinary treatment team deemed his treatment necessary and essential, we reverse.

On appellate review of an order authorizing involuntary psychotropic treatment, the record must contain competent substantial evidence to substantiate compliance with section 916.107, Florida Statutes. Morgan v. State, 94 So.3d 677, 679 (Fla. 4th DCA 2012).

Section 916.107(3) (a), Florida Statutes (2013), states that “[a] forensic client shall be asked to give express and informed written consent for treatment.” The statute further states that “[i]f a client refuses such treatment as is deemed necessary and essential by the client’s multidisciplinary treatment team for the appropriate care of the client,” such treatment may be provided under certain enumerated circumstances. § 916.107(3)(a), Fla. Stat. (2013) (emphasis added).

To establish compliance with section 916.107(3)(a), the petitioner must present evidence that the patient’s multidisciplinary team has deemed the recommended treatment to be necessary and essential. See, e.g., Chapman v. State, 133 So.3d 1075, 1076 (Fla. 4th DCA 2014) (no competent substantial evidence existed to show compliance with section 916.107 where “the physician did not testify that the treatment team approved the treatment plan or deemed it necessary and essential”); Troutman v. State, 112 So.3d 638, 639 (Fla. 4th DCA 2013) (“[T]he psychiatrist did not testify that the other team members approved of the necessity of the recommended treatment.”); Louisma v. State, 78 So.3d 50, 52 (Fla. 4th DCA 2012) (“Case law requires ... at least some evidence that the multidisciplinary team has discussed and approved the necessity of treatment .... ”).

Stated another way, “[t]he record must contain evidence ‘that the treatment is deemed necessary by the patient’s multidisciplinary team, that the patient has refused to give express and informed consent as defined in the statute, and that the trial court has considered at least the four factors specified in clauses a-d of section 916.107(3)(a)3.’ ” Morgan, 94 So.3d at 679-80 (quoting Dinardo v. State, 742 So.2d 287, 289 (Fla. 1st DCA 1998)) (formatting altered).

Here, the record does not contain competent, substantial evidence to show compliance with section 916.107(3)(a). While the testifying psychiatrist described being part of appellant’s multidisciplinary team and identified the team members, there was no evidence that the multidisciplinary team deemed the recommended treatment to be necessary and essential. Therefore, the trial court erred in ordering treatment without evidence that appellant’s multidisciplinary team deemed the medications in appellant’s treatment plan to be necessary and essential.

We acknowledge that appellant never raised any argument below concerning the absence of evidence that the multidisciplinary team deemed the medications in appellant’s treatment plan to be necessary and essential. Nonetheless, we conclude that the State’s failure to present evidence of compliance with section 916.107(3)(a) is fundamental error that may be raised on appeal even if the argument was not preserved below.

“An error is fundamental when it goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process.” J.B. v. State, 705 So.2d 1376, 1378 (Fla.1998). The due process clause permits the government to forcibly administer antipsy-chotic medication to a mentally ill defendant in order to restore the defendant’s competency to stand trial, “but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.” Sell v. United States, 539 U.S. 166, 179, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003).

We find that the State’s failure to establish that a defendant’s multidisciplinary treatment team deemed the treatment necessary and essential as required under section 916.107(3)(a) goes to the foundation of the proceeding and is equivalent to the denial of due process. Thus, the complete failure of the evidence to establish compliance with section 916.107(3)(a) is the type of error that rises to the level of fundamental error, thereby excusing the preservation requirement.

Appellant also argues, for the first time on appeal, that the trial court erred in entering the order without evidence showing that he received, in writing, an individualized treatment plan which he had an opportunity to assist in preparing as required by section 916.107(2)(d), Florida Statutes (2013). Such an argument is not a claim of fundamental error and must be preserved for appellate review. See Dahl v. State, 139 So.3d 944 (Fla. 4th DCA 2014). Thus, because this argument was not preserved below, we cannot consider it.

Based on the foregoing analysis, we reverse the circuit court’s order and remand the case “for a further hearing at which the treatment center may present evidence of the treatment team’s discussion and approval of the treatment plan.” Troutman, 112 So.3d at 639.

Reversed and Remanded.

CONNER, J., and PEREZ, GLADYS, Associate Judge, concur.


text:
    Hector CARABALLO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1704.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2014.
    Hector Caraballo, in proper person.

      Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before WELLS, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Hector Caraballo appeals the trial court’s denial of his motion to void his plea in case number F02-12509C. Although the State has filed its Answer Brief maintaining its position that the record was sufficient to support the trial court’s denial of Caraballo’s motion to void the plea, the State does not object to remanding the case for an evidentiary hearing so that the trial court can reconsider the issue.

Caraballo claims in his Initial Brief that the court translator did not properly translate the plea agreement. However, for practical considerations as outlined in the State’s motion to expedite, we reverse and remand the case for an evidentiary hearing so Caraballo’s claim that the court translator erroneously interpreted the plea agreement and thus misadvised him regarding the nature of the plea agreement and/or sentence can be considered.

Reversed and remanded with instructions.


text:
    Genard CHESTNUT, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D13-1207, 1D13-1208.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2014.
    Rehearing Denied Aug. 28, 2014.
    Jeffrey E. Lewis, General Counsel, and Melissa J. Ford, Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Tallahassee; Genard Chestnut, pro se, for Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Genard Chestnut appeals his judgment and sentence for attempted second-degree murder and possession of a firearm by a convicted felon (Case No. 1D13-1207) and the revocation of his probation based upon these new law violations (Case No. 1D13-1208). We previously consolidated these cases for briefing and we now consolidate them for disposition.

Chestnut’s appointed appellate counsel filed an Anders brief asserting that she is unable to make a good faith argument that fundamental or reversible error occurred in the trial court, except for two minor sentencing errors that were raised in rule 3.800(b)(2) motions but were not corrected by the trial court: (1) the imposition of the $100 indigent legal assistance lien under section 938.29, Florida Statutes (2009), in the new law violation case without giving Chestnut the opportunity to contest the lien; and (2) the failure to enter a written probation revocation order. Chestnut filed a pro se brief raising eight issues.

After reviewing the issues raised by Chestnut and completing our independent review of the record, we issued an order directing the State to show cause why we should not remand for correction of the sentencing errors raised in the Anders brief. Cf. State v. Causey, 503 So.2d 321, 323 (Fla.1987). Having fully considered the arguments in the State’s response to the show cause order, we remand for correction of the sentencing errors raised in the Anders brief. Specifically, in Case No. 1D13-1207, we remand for the trial court to either strike the $100 indigent legal assistance lien or to give Chestnut an opportunity to contest the lien, see Sharpe v. State, 115 So.3d 1021, 1022 (Fla. 1st DCA 2013), Colson v. State, 114 So.3d 415, 417 (Fla. 1st DCA 2013), and Youman v. State, 112 So.3d 693, 694 (Fla. 1st DCA 2013); and, in Case No. 1D13-1208, we remand for entry of a written probation revocation order, see Dunklin v. State, 135 So.3d 349, 349 (Fla. 1st DCA 2013). In all other respects, we affirm the judgment and sentence and the revocation of Chestnut’s probation.

AFFIRMED and REMANDED with directions.

BENTON, WETHERELL, and MARSTILLER, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Anders Briefs, 581 So.2d 149 (Fla.1991).

      . Chestnut argued that the trial court erred by: (1) refusing to hold Nelson hearings each time one was requested and by failing to transcribe the hearing on June 30, 2011; (2) admitting "illegal cell phone” evidence; (3) not allowing the use of a police report to impeach a witness; (4) not allowing witness Jessica Daley to be impeached; and (5) giving incorrect jury instructions because a juror was not allowed to ask a question. Chestnut also argued that his appointed trial counsel was ineffective for: (6) failing to object to witness Mary Ash's testimony when she identified the "shooter” as "Jungo;” (7) failing to file a motion to suppress the photographic line-up that was conducted in a suggestive manner; and (8) refusing to present exculpatory evidence. We find no merit in any of these arguments.


author: EVANDER, J. LAMBERT, J.,

text:
    Emanuel EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-3403.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2014.

      James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Edwards was convicted, after a jury trial, of robbery with a firearm while inflicting great bodily harm (Count I), attempted first degree felony murder while inflicting great bodily harm (Count II), and attempted first degree felony murder while discharging a firearm (Count III). All three charges arose from a single criminal episode in which Edwards robbed Debra Duey and discharged his firearm twice, once hitting Duey and once missing Gregory Davis. The trial court sentenced Edwards, who was seventeen years old at the time of the offenses, to three consecutive thirty-year sentences. Pursuant to section 775.087(2), Florida Statutes (2008), the trial court also imposed mandatory minimum sentences of ten (10) years on Count I, twenty-five (25) years on Count II, and twenty (20) years on Count III. The mandatory minimum sentences were ordered to run consecutively.

Edwards raises two issues on appeal. First, he contends that the sentence for Duey’s robbery (Count I) is required to be a concurrent sentence. Second, Edwards argues that his aggregate term-of-years sentence totaling 90 years is the functional equivalent of a life sentence and, thus, unconstitutional under Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). We conclude that the trial court erred in requiring the mandatory minimum sentence on Count I to run consecutive to the mandatory minimum sentence for Duey’s attempted murder (Count II), but otherwise affirm.

Section 775.087 was amended in 1999 to add subsection (2)(d):

It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.

Ch. 99-12, § 1, at 540, Laws of Fla. (emphasis added).

In State v. Sousa, 903 So.2d 923, 926 (Fla.2005), the Florida Supreme Court determined that this amendment did not overrule its earlier decisions in State v. Christian, 692 So.2d 889 (Fla.1997), and State v. Thomas, 487 So.2d 1043 (Fla.

1986), but rather the amendment to the statute was consistent with those decisions. Id. at 927. This Court has construed the Florida Supreme Court decisions in Sousa, Christian, Thomas, and Palmer v. State, 438 So.2d 1 (Fla.1983), to mean that stacking is improper where the offenses occurred during a single episode unless the defendant discharges his firearm and injures multiple victims or causes multiple injuries to one victim. Irizarry v. State, 946 So.2d 555 (Fla. 5th DCA 2006); see also Swanigan v. State, 57 So.3d 989 (Fla. 5th DCA 2011) (holding error to impose consecutive mandatory minimum sentences under section 775.087(2) for attempted second-degree murder with firearm and possession of firearm by convicted felon where defendant and accomplice burst into home looking for money, kicked and hit one person and shot second person). Here, Counts I and II involve a single victim (Duey) and a single (albeit, major) injury, thereby precluding a stacking of mandatory minimum sentences on these two counts.

As to Edwards’ second issue, this Court has rejected the argument that a lengthy term of years sentence violates Graham. See Johnson v. State, 108 So.3d 1153 (Fla. 5th DCA 2013); Mediate v. State, 108 So.3d 703 (Fla. 5th DCA 2013); Henry v. State, 82 So.3d 1084 (Fla. 5th DCA), rev. granted, 107 So.3d 405 (Fla.2012).

AFFIRMED, in part; REVERSED, in part; REMANDED for resentencing.

COHEN, J., concurs.

LAMBERT, J., concurs and concurs specially, with opinion.

LAMBERT, J.,

concurring and concurring specially.

I concur because the majority opinion is consistent with our opinion in Irizarry v. State, 946 So.2d 555 (Fla. 5th DCA 2006). If I were writing on a clean slate, I would affirm the trial court’s imposition of consecutive sentences in all three counts because I believe that the sentences are consistent with the unambiguous language and the legislative intent of section 775.087(2)(d), Florida Statutes (2008).

      . The injury may consist of the heightened danger caused by the discharge of a firearm. Christian, 692 So.2d at 890 n. 1.

      . The First District Court of Appeal certified conflict with Irizarry in Walton v. State, 106 So.3d 522 (Fla. 1st DCA), review granted, 123 So.3d 1148 (Fla.2013).


author: DAVIS, Chief Judge.

text:
    B.R., a child, Petitioner, v. STATE of Florida, Respondent.
    No. 2D14-385.
    District Court of Appeal of Florida, Second District.
    Aug. 15, 2014.

      Julianne M. Holt, Public Defender, and Kevin Z. Temaul, Assistant Public Defender, Tampa, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Respondent.
   DAVIS, Chief Judge.

B.R., a juvenile, filed a petition for writ of habeas corpus seeking release from the detention center where she was being held under a secure detention order. We denied relief in a previous order and now write to explain our decision.

Following a January 13, 2014, adjudicatory hearing on two allegations of violation of probation, the trial court entered an order placing B.R. in secure detention pending a disposition hearing scheduled for January 28, 2014. B.R. was not in secure detention at the time of this adjudicatory hearing. On January 22, 2014, the court heard argument on the permissible length of detention following an adjudicatory hearing. B.R. maintained that she could only be held for seventy-two hours with a possible seventy-two-hour extension under section 985.26(5), Florida Statutes (2013). The State argued that under the plain language of section 985.26(3), B.R. could be detained for up to fifteen days. During that hearing, a representative from the Department of Juvenile Justice testified that B.R. had a history of absconding, failing to appear, and failing to comply with the court’s previous orders. The representative explained that “[B.R.] told us the last time we were in court in August, that she promised to comply with your orders and she didn’t ... she just ran to Lakeland.” The court found that B.R. presented a substantial risk of not appearing at her disposition hearing and that under section 985.26(3), she could be held in secure detention for fifteen days after her adjudicatory hearing.

B.R. filed an emergency petition for writ of habeas corpus on January 27, 2014, alleging that pursuant to section 985.26(5), her continued detention was illegal because she was not in secure detention at the time of the adjudicatory hearing. The State responded that under the plain language of section 985.26(3), B.R. could be held in secure detention for up to fifteen days. We agree.

“[T]he power to place juveniles charged with or found to have committed delinquent acts in secure detention is entirely statutory, and strict compliance with the statute is necessary.” K.T.E. v. Lofthiem, 915 So.2d 767, 770 (Fla. 2d DCA 2005) (citation omitted). Additionally, “[r]elated statutory provisions must be read together to achieve a consistent whole, and ... [w]here possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Larimore v. State, 2 So.3d 101, 106 (Fla.2008) (alterations in original) (quoting Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 199 (Fla.2007)) (internal quotation marks omitted).

Section 985.24 provides that all detention care determinations must be based on certain findings enumerated in the statute and may not be based on other expressly prohibited findings. The enumerated legitimate finding applicable to B.R.’s case is that the juvenile “[pjresents a substantial risk of not appearing at a subsequent hearing.” § 985.24(l)(a). Based on that finding, the relevant period at issue in the instant case is the time between B.R.’s adjudicatory hearing and her disposition. As such, the applicable statute is section 985.26(3), which provides in part that “a child may not be held in secure, nonsecure, or home detention care for more than [fifteen] days following the entry of an order of adjudication.” Accordingly, the trial court did not err in concluding that B.R. could be held in secure detention for fifteen days following her adjudication.

Consequently, we reject B.R.’s contention that section 985.26(5) applies here solely because she was not in secure detention at the time of her adjudication. That section provides that

[a] child who was not in secure detention at the time of the adjudicatory hearing, but for whom residential commitment is anticipated or recommended, may be placed under a special detention order for a period not to exceed [seventy-two] hours, excluding weekends and legal holidays, for the purpose of conducting a comprehensive evaluation as provided in s. 985.185.

By its plain language, subsection (5) is a narrow exception to section subsection (3) that only applies when (1) the “child ... was not in secure detention at the time of the adjudicatory hearing,” (2) “residential commitment is anticipated or recommended” for the child, and (3) the detention is explicitly “for the purpose of conducting a comprehensive evaluation.” § 985.26(5). While B.R. did allege that she was not in secure detention at the time of the adjudicatory hearing, she did not allege that residential commitment was anticipated or recommended or that the purpose of her detention was to conduct a comprehensive evaluation. And the instant record contains no indication of either of these circumstances.

Failing to meet all three of the criteria set forth in section 985.26(5) must therefore preclude its application over the more general provisions of section 985.26(3) in order to achieve a consistent result. See Larimore, 2 So.3d at 106. For instance, under B.R.’s reading of the statute, if a juvenile with a risk assessment instrument (RAI) score of twelve points or higher is placed in secure detention but is subsequently released pending adjudication because an adjudicatory hearing did not take place within twenty-one days under section 985.26(2), then the juvenile could only be held in secure detention for seventy-two hours after the adjudicatory hearing under section 985.26(5), while a child with a similar RAI but whose adjudicatory hearing did commence within the proper timeframe could be held up to fifteen days simply because there was no preadjudicatory gap in his or her detention. We decline to adopt a reading of the statute that would lead to such an inconsistent result.

Accordingly, we clarify that when detention is already authorized based on a risk assessment of the child, section 985.26(5) does not act as a limit on the court’s authority to place the juvenile into secure detention simply because he or she was not in secure detention at the time of the adjudicatory hearing. Instead, when residential commitment is anticipated or recommended, section 985.26(5) merely authorizes the court to place juveniles for whom secure detention might not otherwise have been authorized into secure detention while necessary evaluations for the court’s ultimate disposition are conducted. But the court may order qualified juveniles into secure detention for up to fifteen days under section 985.26(8), even though the juvenile may not have actually been in secure detention at the time of the adjudicatory hearing.

MORRIS and SLEET, JJ., Concur.

      . We also note that B.R. failed to attach her RAI to her petition or allege that she did not qualify for secure detention. Normally, we would deny the petition without prejudice for B.R. to refile her petition with the RAI attached. See State v. S.M., 131 So.3d 780, 785 (Fla.2013). But the record clearly indicates that B.R. was not entitled to be released from all forms of detention. If her RAI showed a score of twelve or more points, then she qualified for secure detention, see J.L.T. v. Dep’t of Juvenile Justice, 104 So.3d 1257, 1258-59 (Fla. 2d DCA 2013), and because she violated her probation she qualified for home detention regardless of her RAI score, see § 985.255(l)(h); see also S.M., 131 So.3d at 785. Therefore, although attaching the RAI may have shown that she did not qualify for a certain level of detention, that issue was not raised by B.R., and it is now moot in the instant case. However, we note that similar considerations in future cases may require an additional examination of the type of detention for which a juvenile qualifies if such an issue is properly alleged and not precluded by the record.


text:
    Antorri Deshea FARRIER, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3108.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2014.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Antorri Farrier timely appeals the judgment and sentences imposed for two counts of aggravated assault with a firearm, arguing those offenses were subsumed into the greater offense of burglary of a dwelling with an assault or battery with a firearm where the offenses occurred during the same incident and involved the same two victims. The State concedes that the multiple convictions violate the prohibition against double jeopardy, as held in McGhee v. State, 133 So.3d 1137, 1138-39 (Fla. 5th DCA 2014) (reversing conviction for aggravated assault with a firearm because it was subsumed into the greater offense of burglary of a dwelling with an assault or battery while armed with a firearm where offenses involved the same victim and occurred in the same incident) and Green v. State, 120 So.3d 1276, 1278 (Fla. 1st DCA 2013) (“[BJecause all of the elements of the crime of aggravated assault with a firearm are contained within the crime of burglary with an assault while armed with a firearm, convictions for both the burglary and the aggravated assault violate the prohibition against double jeopardy.”). We, therefore, reverse both convictions for aggravated assault with a firearm because they were subsumed into the greater offense of burglary of a dwelling with an assault or battery with a firearm. The remaining convictions are affirmed.

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA, ORFINGER, and BERGER, JJ., concur.


text:
    Ruben James JOSEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-4584.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2014.
    James S. Purdy, Public Defender, and Lisa A. Haskins, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Because the record reflects that the trial court expressly relied upon Josey’s failure to admit culpability when imposing Josey’s sentence, we are compelled to reverse and remand for resentencing before a different judge. See Holton v. State, 573 So.2d 284, 292 (Fla.1990) (“The fact that a defendant has pled not guilty cannot be used against him or her during any stage of the proceedings because due process guarantees an individual the right to maintain innocence even when faced with evidence of overwhelming guilt.”); Colon v. State, 53 So.3d 376, 379 (Fla. 5th DCA 2011) (“[W]e agree with [Appellant] that he is entitled to a new sentencing hearing because of the trial court’s express reliance on [Appellant’s] refusal to admit his culpability.”); Ritter v. State, 885 So.2d 413, 414 (Fla. 1st DCA 2004) (“While a sentencing court has wide discretion as to the factors it may consider in imposing a sentence, it is constitutionally impermissible for it to consider the fact that a defendant continues to maintain his innocence and is unwilling to admit guilt.”).

REVERSED and REMANDED for re-sentencing before a different judge.

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


text:
    Garry Earl FINKEN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-2210.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2014.
    Garry Earl Finken, Century Florida, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. 2010-CF-1523, in the Circuit Court in and for Marion County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

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


text:
    Ryan HARPER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-2258.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2014.
    Thomas A. Kennedy, Esq., Vero Beach, for Petitioner.
    Pamela Jo Bondi, Attorney General Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the November 26, 2013 order denying postconviction relief, filed in Case Nos. 2009-CF-61895 and 2009-CF-61970-74, in the Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

ORFINGER, LAWSON, EVANDER, JJ., concur.


text:
    Garry Earl FINKEN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-2212.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2014.
    Garry Earl Finken, Century Florida, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. 2010-CF-2131, in the Circuit Court in and for Marion County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

TORPY, C.J., LAWSON, BERGER, JJ., concur.


text:
    Patrick D. FORD, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4107.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2014.
    Dane K. Chase of Chase Law Florida, P.A., Saint Petersburg, for Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, convicted of two counts of attempted murder in the first degree with a firearm, filed a rule 3.800(a) motion arguing that his sentences have been illegally enhanced pursuant to section 775.087(1) from first-degree felonies to life felonies. The jury verdict form indicates that while the jury found the appellant guilty of the attempted murders, it specifically found the appellant did not actually possess a firearm during the commission of the offenses.

A defendant may not have his conviction reclassified to a higher degree felony under section 775.087(1) if he did not actually possess a firearm or other qualifying weapon. See Williams v. State, 622 So.2d 456, 465 (Fla.1993) (explaining that the state must prove a defendant has actual physical possession of the weapon to impose enhancement under either subsection (1) or (2) of section 775.087); Robins v. State, 602 So.2d 1272 (Fla.1992) (stating “actual physical possession of a weapon during the commission of a crime is required for the offense to be reclassified under section 775.087(1)[.]”); Williams v. State, 656 So.2d 574 (Fla. 1st DCA 1995) (reviewing an order denying a rule 3.800(a) motion and discussing that where a jury specifically finds that “ ‘a firearm not in [a defendant’s] physical possession was used’ in the course of committing” a murder, his sentence cannot be enhanced pursuant to section 775.087(1) unless the evidence indicates that he had “ ‘personal possession of the weapon during the commission of the felony.’ ”); Juarez v. State, 65 So.3d 110 (Fla. 4th DCA 2011) (noting that in State v. Rodriguez, 602 So.2d 1270 (Fla.1992), the supreme court held that a defendant’s qualifying felony conviction cannot be enhanced pursuant to section 775.087(1) unless the evidence establishes he had personal possession of a weapon; and moreover, a defendant’s conviction cannot be reclassified under this section if he is convicted under a Principal Theory).

Consequently, the trial court should not have reclassified the appellant’s convictions under section 775.087(1) to life felonies and imposed life sentences, as the jury specifically found the appellant did not actually physically possess a firearm.

We therefore reverse and remand for resentencing in accordance with this opinion.

REVERSED AND REMANDED.

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


author: OSTERHAUS, J.

text:
    Jonathan D. THOMAS, Appellant, v. HICKORY FOODS, INC., A Florida Corporation-for-Profit, Appellee.
    No. 1D13-6054.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2014.

      Reginald Luster, Jacksonville, for Appellant.
    R.H. Farnell, II, of Bedell, Dittmar, De-Vault, Pillans & Coxe, Jacksonville, for Appellee.
   OSTERHAUS, J.

Appellant, Jonathan D. Thomas, appeals the trial court’s order dismissing with prejudice his claim that his former employer, Hickory Foods, Inc., failed to pay the salary amount called for by the parties’ separation agreement. We reverse and remand because the terms of the separation agreement do not so directly conflict with the allegations in Thomas’s Complaint as to permit dismissal.

I.

We review a trial court’s ruling on a motion to dismiss for failure to state a cause of action de novo. Lewis v. Morgan, 79 So.3d 926, 928 (Fla. 1st DCA 2012) (citing Locker v. United Pharm. Group, Inc., 46 So.3d 1126, 1128 (Fla. 1st DCA 2010); Fla. R. Civ. P. 1.140(b)). “ ‘When ruling on a motion to dismiss for failure to state a cause of action, the trial court must accept the allegations of the complaint as true. Likewise, the appellate court must accept the facts alleged in a complaint as true when reviewing an order that determines the sufficiency of the complaint.’ ” Locker, 46 So.3d at 1128 (quoting Brewer v. Clerk of Circuit Court, Gadsden County, 720 So.2d 602, 603 (Fla. 1st DCA 1998) (citations omitted).

II.

In this case, the trial court sided with Hickory Foods’ argument in its motion to dismiss that the severance agreement directly conflicted with Thomas’s claim to being owed some fifty-six thousand dollars. The compensation provision of the severance agreement stated as follows:

3.Salary Continuation. Provided Thomas complies with the terms of this Agreement and the Restrictive Covenants herein, and in consideration of the promises and terms in this Agreement, the Company will pay Thomas an annual salary in the amount of $56,398.68 (Fifty-six Thousand Three Hundred and Ninety Dollars and Sixty-Eight cents) pro rata (the “Salary Continuation”) from the Termination Date through May 24, 2013 (the “Post Termination Period.”). The Company will continue to pay Thomas in semi-monthly installments via direct deposit as currently on file and in accordance with the Company’s normal payroll practices. Except for required deductions and withholdings, Thomas is responsible for the payment of all taxes associated with the monies he receives as a result of this Salary Continuation. The Salary Continuation will cease at any point if Thomas fails to comply with this Agreement of the Restrictive Covenant. Except as otherwise required by paragraph 17, Thomas is not required to provide any services to receive the Salary Continuation.

(Emphasis added). Provision 2 of the severance agreement indicated that the “Termination Date” was April 1, 2013.

It is correct that “[w]here a document on which the pleader relies in the complaint directly conflicts with the allegations of the complaint, the variance is fatal and the complaint is subject to dismissal for failure to state a cause of action.” Appel v. Lexington Ins. Co., 29 So.3d 377, 379 (Fla. 5th DCA 2010). But here it is not clear that the salary continuation provision directly conflicts with Thomas’s claim.

Thomas asserts that he is due $56,398.68 under the provision. Hickory Foods counters that the provision only entitles Thomas to be paid his regular pro rata salary amount through the end of the eight-week Post Termination Period— $8,676.72. The trial court’s short order dismissing the case with prejudice did not explain why it agreed with Hickory Foods’ interpretation. But, to us, Thomas’s claim does not appear to be in direct conflict with the severance agreement, but states a plausible interpretation of the agreement’s less than crystalline terms. For this reason, we do not agree that Thomas’s claim warranted dismissal with prejudice at this early stage of the litigation.

III.

Accordingly, we REVERSE and REMAND for further proceedings.

LEWIS, C.J., and THOMAS, J., concur.


text:
    Thomas McNEIL, III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2080.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2014.
    Thomas McNeil, III, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered August 27, 2013, in Duval County Circuit Court case number 16-2012-CF-005914-AXXX-MA is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

WOLF, ROBERTS, and ROWE, JJ., concur.


text:
    Daniel Ray DOTSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1900.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2014.
    Daniel Ray Dotson, pro se, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order denying defendant’s “request to correct status error” rendered January 21, 2014, in Escambia County Circuit Court case number 2005-CF-001656A, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

WOLF, ROBERTS, and ROWE, JJ., concur.


text:
    Robert Clifton YOUNG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1344.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2014.
    Robert Clifton Young, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered January 9, 2014, in Escambia County Circuit Court case numbers 2013-CF-002484-A and 2013-CF-002485-A, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

WOLF, ROBERTS, and ROWE, JJ., concur.


text:
    Michael Joseph NILIO, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-1088.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2014.
    Michael Joseph Nilio, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because the order on appeal was quashed by this court’s order entered June 25, 2014, in case numbers 1D14-0451 and 1D13-5003, the appeal is hereby dismissed as moot.

WOLF, ROBERTS, and ROWE, JJ., concur.


text:
    Michael Joseph NILIO, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-0821.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2014.
    Michael Joseph Nilio, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because the order on appeal was quashed by this court’s order entered June 25, 2014, in case numbers 1D14-0451 and 1D13-5003, the appeal is hereby dismissed as moot.

WOLF, ROBERTS, and ROWE, JJ., concur.


text:
    Lasedrick ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4930.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2014.
    Lasedrick Ross, pro se, for Appellant.
    Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the trial court’s resolution of Appellant’s successive collateral attack on his judgment and sentence in lower case number 08-CF-1290 — and we do so without comment. We write only to warn Appellant, much like the trial court did. Appellant has now filed four pro se, collateral attacks in this Court, all related to case number 08-CF-1290; and all to no avail. Appellant is warned that additional collateral attacks on this conviction and sentence, if again successive and improper, may result in sanctions, including an order from this Court barring Appellant from filing additional collateral attacks to his judgment and sentence without obtaining the endorsement of a licensed attorney, as well as referral to the Department of Corrections for disciplinary procedures.

The trial court’s order on appeal is AFFIRMED.

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


text:
    Montrell D. GREEN, Petitioner, v. Sgt. POWE, et al., Respondents.
    No. 1D14-2094.
    District Court of Appeal of Florida, First District.
    Aug. 19, 2014.
    Montrell D. Green, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DENIED. See Smartt v. First Union Nat’l Bank, 771 So.2d 1232 (Fla. 5th DCA 2000).

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


text:
    Gregory S. BURDOO, Petitioner, v. Kimberly SADLER, Esq., Law Offices of Robert Shafer, Respondent.
    No. 1D14-2708.
    District Court of Appeal of Florida, First District.
    Aug. 19, 2014.
    Gregory S. Burdoo, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Donahue v. Vaughn, 721 So.2d 356 (Fla. 5th DCA 1998).

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


text:
    Blake McQUEEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-3181.
    District Court of Appeal of Florida, First District.
    Aug. 19, 2014.
    Blake McQueen, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. See Jordan v. State, 549 So.2d 805 (Fla. 1st DCA 1989).

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


text:
    William Benjamin JENKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3382.
    District Court of Appeal of Florida, First District.
    Aug. 19, 2014.
    William Benjamin Jenkins, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Yves SAINTYL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3402.
    District Court of Appeal of Florida, First District.
    Aug. 19, 2014.
    Yves Saintyl, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R. App. P. 9.141(d)(6)(C).

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


text:
    William L. LEE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3436.
    District Court of Appeal of Florida, First District.
    Aug. 19, 2014.
    William L. Lee, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Taurice L. BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3511.
    District Court of Appeal of Florida, First District.
    Aug. 19, 2014.
    Taurice L. Brown, 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, MARSTILLER, and SWANSON, JJ., concur.


author: DAMOORGIAN, C.J.

text:
    Lloyd Oliver HUNT and Deborah Hunt, Appellants, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 4D13-272.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2014.

      Gregory C. Ward of The Ward Law Group, P.L., Miami, for appellants.
    Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami, and Butler, Pappas, Weihmuller, Katz, Craig, LLP, Tampa, for appellee.
   DAMOORGIAN, C.J.

Lloyd and Deborah Hunt appeal the circuit court’s final summary judgment in favor of their insurer, State Farm Florida Insurance Company. The Hunts primarily argue that their untimely pre-suit submission of a sworn proof of loss did not preclude them from recovery under the policy. We disagree and affirm.

By way of background, in October of 2005, the Hunts’ home was damaged by Hurricane Wilma. At the time Hurricane Wilma hit, the Hunts’ home was insured by State Farm. Under their policy, the Hunts were required to provide State Farm with immediate notice of any loss, and to submit a signed, sworn proof of loss “within [sixty] days after the loss.” Despite this requirement, the Hunts did not provide State Farm with a signed, sworn proof of loss until almost five years later, mere days before they filed suit against State Farm for breach of contract. State Farm moved for summary judgment, arguing that the Hunts materially breached their duties under the policy by not timely submitting a sworn proof of loss. The trial court agreed, finding that the Hunts breached a condition precedent to coverage and failed to introduce any record evidence to rebut that State Farm was prejudiced by their breach. Accordingly, it entered final summary judgment in State Farm’s favor.

We agree with the circuit court’s ruling, which we review de novo. Kramer v. State Farm Fla. Ins. Co., 95 So.3d 303, 306 (Fla. 4th DCA 2012). It is well settled in Florida that submission of a sworn proof of loss when required by an insurance policy is a condition precedent to coverage. Id.; Soronson v. State Farm Fla. Ins. Co., 96 So.3d 949, 953 (Fla. 4th DCA 2012). If the insured fails to comply with a condition precedent before filing suit, its breach is deemed material, and thus the insurer is relieved of its duties under the policy. Goldman v. State Farm Fire Gen. Ins. Co., 660 So.2d 300, 305 (Fla. 4th DCA 1995). See also Starling v. Allstate Floridian Ins. Co., 956 So.2d 511, 513-14 (Fla. 5th DCA 2007). However, if the insured complies with the policy’s conditions precedent before filing suit, albeit in an untimely manner, the insurer is only relieved of its duties under the policy if it was prejudiced by the insured’s breach. Kramer, 95 So.3d at 306. In such a scenario, prejudice to the insurer is presumed and the insured bears the burden of rebutting the presumption. Id. Here, the record reflects that the Hunts did not come forward with any evidence rebutting the presumed prejudice State Farm suffered as a result of their tardily submitted proof of loss. Thus, the trial court properly entered summary judgment in State Farm’s favor. Id.

Additionally, we note that we are aware of the Florida Supreme Court’s recent decision in State Farm Mutual Auto.Insurance Co. v. Curran, 135 So.3d 1071 (Fla.2014). We have considered Curran, and do not find it instructive as there, the court clarified the standards applicable to an insured’s breach of a condition subsequent to coverage — not a condition precedent as is at issue in the instant case. Id. at 1079.

Affirmed.

GROSS and KLINGENSMITH, JJ„ concur.


text:
    Robert DEAL, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-641.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2014.

      Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

On appeal from the trial court’s revocation of probation, Robert Deal argues that the trial court erred by: (1) denying his motion for continuance to retain private counsel; (2) relying on hearsay in finding that he left his county of residence; (3) finding that the State proved he had the ability to pay costs and willfully failed to do so; and (4) entering written revocation of probation orders which do not conform to the trial court’s oral pronouncements. Because we reverse as to the first argument, the remainder of the arguments are moot.

This appeal involves three cases in which Deal entered into negotiated pleas for possession of cocaine with intent to sell and sale of oxycodone. In each case, Deal’s probation officer filed violation of probation affidavits listing various allegations. After the violation of probation hearing was scheduled, the defense was granted a continuance, and the matter was reset for approximately one month later. At the request of the trial court, it was agreed that the violation of probation hearing was limited to the technical violations of probation, with the remaining substantive allegations set off for future resolution.

At the outset of the violation of probation hearing, Deal’s assistant public defender informed the trial court that Deal wanted to retain private counsel and that Deal’s mother was present to address the trial court on the matter. Deal’s mother requested a continuance in order to retain private counsel for her son. She explained that she had interviewed with a private attorney, provided his name, and stated that she had spoken to him twice in the past four days, although he was not present at the hearing because he was appearing in court out of town for another case. When asked, Deal’s mother indicated that she had paid him a retainer fee and explained that he had instructed her to request a continuance and call him as soon as one had been obtained. Deal’s assistant public defender then adopted the request for a continuance.

The trial court did not make any further inquiry and did not question Deal personally. When asked, the State informed the trial court that the matter had been continued once before, but neither objected to, nor agreed to another continuance. The trial court then denied Deal’s request for a continuance, without indicating its reasoning for doing so and noted that the-State was proceeding on only the technical charges that day, and that the substantive charges would be heard at a later date. The trial court further stated that:

THE COURT: [I]f [private counsel] wants to jump on board and handle the second half of it, you’re welcome to do that, if you can come up with an agreement with him. I don’t know how far down the road you’ve gotten as far as hiring him.

(emphasis added).

At the conclusion of the hearing, the trial court found that Deal violated several conditions of his probation. The trial court revoked his probation and sentenced him to 48 months in prison with credit for 366 days. By the time of sentencing, the State had dropped the allegations on the substantive violations.

On appeal, the denial of a motion for continuance to retain counsel of choice is reviewed for an abuse of discretion. Alvarez v. State, 75 So.3d 420, 422 (Fla. 4th DCA 2011).

“The Sixth Amendment of the United States Constitution protects the right of a criminal defendant to be represented by the attorney of his or her own choosing.” Id. (citing Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988)). Notably, however, this right is not absolute. This Court has previously explained that “a defendant does not have an absolute right to a particular lawyer and that it is within a trial court’s discretion to deny a defendant’s request for particular counsel when there is a ‘countervailing public interest in the fair and orderly administration of justice.’” Id. (quoting Foster v. State, 704 So.2d 169,173 (Fla. 4th DCA 1997)).

Still, any denial of an accused’s request for a continuance to retain counsel of choice must be based on an adequate inquiry into the surrounding circumstances and “proper findings to show that the defendant’s constitutional right is not being arbitrarily denied.” Id. at 423 (reversing for new trial where trial court denied a day-of-trial request for substitution of counsel and motion to continue without sufficient inquiry or proper findings). The trial court’s ruling should focus on balancing “the defendant’s right to counsel of his own choosing with considerations of judicial administration.” Id. at 422. In this regard, we have previously considered several relevant factors, including: whether the motion is being made in bad faith or as a delay tactic; whether a continuance would prejudice the State; or whether the court’s schedule would not permit a continuance. See id. (citing Jackson v. State, 979 So.2d 442, 445 (Fla. 4th DCA 2008)).

In this case, the trial court below failed to consider any of these circumstances before denying Deal’s motion for continuance to retain private counsel. The trial court made no finding that Deal was acting in bad faith or requesting a continuance for the purpose of delaying the administration of justice. In addition, there does not appear to be anything in the record that would support such a finding. Based on the exchange between Deal’s mother and the trial court, it appears that private counsel had been retained. Deal’s mother communicated his request to obtain a continuance and his court-appointed counsel adopted the request. The State did not object to the request nor did it argue that it would be prejudiced if a continuance were granted. Without ever questioning Deal, himself, on the motive for seeking to retain private counsel, the trial court simply denied the motion, apparently concluding that Deal would not be prejudiced in proceeding with his current counsel for the first half of the case. The trial court’s suggestion that Deal’s counsel of choice could “jump on board and handle the second half of it” erroneously deprived Deal of his right to be defended by his counsel of choice. See U.S. v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006).

Therefore, having failed to make an adequate inquiry into the surrounding circumstances and to make a clear finding that Deal’s constitutional right was not being arbitrarily denied, we hold that the trial court erred in denying his motion for a continuance to retain private counsel. Accordingly, we reverse and remand for a new violation of probation hearing.

Reversed and remanded.

GROSS, GERBER and CONNER, JJ, concur.


author: SALTER, J.

text:
    The STATE of Florida, Appellant, v. Aurora FERNANDEZ, Appellee.
    No. 3D13-435.
    District Court of Appeal of Florida, Third District.
    Filed Aug. 20, 2014.

      Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Before SHEPHERD, C.J., and ROTHENBERG and SALTER, JJ.
   On Partial Concession of Error

SALTER, J.

The State of Florida appeals orders dismissing a two-count information alleging unemployment compensation fraud (section 443.071(1), Florida Statutes (2012)) and grand theft (section 812.014(2)(c), Florida Statutes (2012)), based on unemployment benefits fraud. The trial court dismissed both counts based on the statute of limitations.

With respect to' Count II, grand theft, the defendant has properly conceded that the applicable statute of limitations is the five-year period specified in section 812.035(10), Florida Statutes (2012), rather than the three-year statute applied by the trial court based on arguments advanced by the defendant’s counsel at the time. All of the allegedly-criminal acts set forth in Count II occurred within the five-year period preceding the filing of the information. We thus reverse the order of dismissal as it relates to Count II, and remand the case to the trial court for further proceedings.

With respect to Count I, unemployment compensation fraud, section 775.15(2)(b), Florida Statutes (2012), provides that such a prosecution “must be commenced within 3 years after it is committed.” The information, filed December 4, 2012, alleged that the false statements or knowing, material non-disclosures by the defendant occurred between November 10, 2008 and February 10, 2010. The affidavit submitted in support of the arrest warrant listed 21 allegedly-fraudulent benefit payments obtained by the defendant between November 25, 2008, and February 9, 2010; only four of these were issued within the three-year statute of limitations. Each fraudulently-obtained payment of benefits is a separate violation under section 443.071(1). See State v. Dominguez, 27 So.3d 782 (Fla. 3d DCA 2010). The trial court erred in dismissing Count I in its totality, though the State’s case may be limited to those allegedly-criminal acts that were within the three-year period preceding the filing of the information.

Reversed and remanded for further proceedings in accordance with this opinion.


text:
    Stanford ELLIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1196.
    District Court of Appeal of Florida, Third District.
    Aug. 20, 2014.
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and WELLS and SCALES, JJ.
   PER CURIAM.

Affirmed. See Schwenn v. State, 898 So.2d 1180, 1131 (Fla. 4th DCA 2005).


author: EMAS, J.

text:
    U.S. BANK NATIONAL ASSOCIATION, etc., Appellant, v. Maritza CARRASQUERO, et al., Appellees.
    No. 3D13-2711.
    District Court of Appeal of Florida, Third District.
    Aug. 20, 2014.
    Moskowitz, Mandell, Salim & Simowitz and Todd A. Armbruster, Fort Lauder-dale, for appellant.
    Business Law Group, Jacob A. Brainard and Scott C. Davis, for appellees.
    Before EMAS, FERNANDEZ and SCALES, JJ.
   EMAS, J.

Affirmed. See Central Mortg. Co. v. Callahan, No. 3D13-1672, 2014 WL 3455485 (Fla. 3d DCA 2014).


text:
    Erik GARCIA and Irela Garcia, Appellants, v. BAC HOME LOANS, etc., et. al., Appellees.
    No. 5D13-2237.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2014.
    Mark P. Stopa, of Stopa Law Firm, Tampa, for Appellants.

      Miguel A. Gonzalez, John S. Graham and Alice K. Sum, of Fowler White Burnett, PA, Miami; Jason Joseph of Gladstone Law Group, P.A., Boca Raton; Trida J. Duthiers, J. Randolph Liebler, and Joshua R. Levine, of Liebler, Gonzalez & Portuondo, Miami for Appellees.
   PER CURIAM.

On May 25, 2007, Appellants gave a note and mortgage in the amount of $156,000 to Appellees. The mortgage went into default on October 1, 2009, and on March 5, 2010, foreclosure was filed. Appellees sought to foreclose on the Garcias’ property. For several months, litigation proceeded as normal and then, suddenly, all activity ceased. Nothing transpired between November 12, 2010, and November 7, 2011, when Appellants filed a notice of intent to dismiss for lack of prosecution, which was mailed to Appellees on November 4, 2011. Nothing more was filed in the sixty days following the notice of intent until January 6, 2012, when Appellants filed their motion to dismiss for lack of prosecution, which was mailed to Appellees on January 4, 2012. On January 17, 2012, Appellees filed a motion to amend their complaint. On February 13, 2012, the court entered its order dismissing Appel-lee’s complaint “without prejudice” and, in the same order, granting Appellee’s motion to amend. On June 7, 2012, the court acknowledged in its order that Appellee’s complaint had been dismissed for failure to prosecute.

The issue on appeal is whether the court erred in granting the leave to amend. Florida Rule of Civil Procedure 1.420(e) reads:

In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

Clearly, Appellees filed nothing within a ten-month period. After they received notice from Appellants, they filed nothing within the sixty-day period. The court, apparently acting on its own, dismissed Appellees’ complaint without prejudice and granted Appellees’ motion to amend. There was, therefore, no noticed hearing to start the five-day clock to show cause. Appellees’ only issue is whether the court properly granted the motion to amend. We hold, however, that during the throes of rule 1.420(e), when it is time to show cause, rule 1.190(a), authorizing amendment of pleadings, is inapplicable. In any event, the court misinterpreted the rule. Rule 1.420(e) does not authorize the dismissal of a complaint; it requires the dismissal of the action. Our only appropriate action is to reverse and remand with instructions for the court to conduct a good-cause hearing, and if none can be shown, dismiss the action. Appellees’ remedy then will be to file a new action for those claims not barred by the statute of limitations. See Singleton v. Greymar Assocs., 882 So.2d 1004 (Fla.2004); U.S. Bank Nat’l Ass’n v. Bartram, 140 So.Bd 1007 (Fla. 5th DCA 2014).

REVERSED and REMANDED with instructions.

ORFINGER, LAWSON, JJ., and HARRIS, C.M., Senior Judge, concur.


text:
    Edwin Deshawn BROOKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3397.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2014.
    Matt Shirk, Public Defender, and Elizabeth H. Webb, Assistant Public Defender, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Contending that the circuit court has unlawfully increased his bond, Brooks petitioned this court for habeas corpus relief. We previously denied his petition by unpublished order, and now -write to explain our reasons for doing so.

Brooks was arrested pursuant to warrant on a charge of lewd and lascivious conduct, a second-degree felony, and at first appearance his bond was set at $50,003. Thereafter, the state agreed to an order granting petitioner’s release on his own recognizance after he had been in custody more than 40 days without formal charges being filed. The state then filed its information charging petitioner with lewd or lascivious conduct on a victim less than 16 years of age. Petitioner remained on release status for some six months, until the state amended its-information to add a count of lewd or lascivious molestation of a child less than 12 years of age, a life felony, and filed a motion to increase bond. Petitioner opposed the motion, arguing that it alleged no new facts or changed circumstances concerning the criminal episode that were not available to the first appearance court. Following a hearing, the trial court granted the state’s motion, setting bond in the amount of $100,003 with no victim contact on the new charge, but preserving petitioner’s release on his own recognizance on the original charge.

In seeking habeas corpus relief, petitioner relies on case law holding that in light of the good cause requirement of Florida Rule of Criminal Procedure 3.131(d), an increase in bond is improper if the state fails to show any change in circumstances or information not made known to the first appearance judge. See, e.g., Bush v. State, 74 So.3d 130 (Fla. 1st DCA 2011); Sikes v. McMillian, 564 So.2d 1206 (Fla. 1st DCA 1990), Kelsey v. McMillan, 560 So.2d 1343 (Fla. 1st DCA 1990). Petitioner characterizes these authorities as standing for the proposition that in the absence of new facts concerning the criminal episode that were not known to the first appearance judge, the filing of additional charges after first appearance does not justify an increase in bond. Those cases, however, did not specifically address the issue whether the filing of more serious charges can constitute a change in circumstances which would justify altering the conditions of a release.

We conclude that the trial court’s decision was not an abuse of its broad discretion in matters relating to bond, given the substantial increase in the possible penalty petitioner faces as a consequence of now being charged with a life felony. Although it did not involve the addition of a new charge after first appearance, we find the reasoning of Calixtro v. McCray, 858 So.2d 1079 (Fla. 3d DCA), rev. denied, 865 So.2d 479 (Fla.2003), to be persuasive. In Calix-tro, the defendant was charged with sexual battery and his bond was initially set at first appearance at $7,500. At that time, the first appearance judge was informed that the defendant faced a guidelines sentencing range of 10.2 to 15 years in state prison, but at arraignment, the state filed written notices of its intent to pursue enhanced sentencing penalties, such that the defendant now could be sentenced up to 40 years with a 30-year minimum mandatory. The state therefore sought and was granted an increase in bond, and on the defendant’s ensuing petition for writ of habeas corpus, the district court denied relief, finding that the significant increase in the possible penalty the defendant faced constituted a change of circumstances warranting a modification of bond.

In reaching its decision, the court noted that pursuant to Florida Rule of Criminal Procedure 3.131(d)(3), a trial court may consider, among other things, “the nature and circumstances of the offense charged and the penalty provided by law.” Id. at 1079 (emphasis in original). It concluded that while the nature and circumstances of the offense had not changed between first appearance and the hearing on the motion to increase bond, the penalty provided by law had, and constituted sufficient evidence of a change in circumstances to warrant a modification of bond. We reach the same conclusion in this case. The potential penalty Brooks faces under the crimes charged in the amended information is markedly more severe than that he faced at the time of his first appearance. A primary purpose of bond is to ensure the appearance of the defendant at subsequent proceedings, and the possibility of a more severe penalty results in an enhanced possibility of flight. We therefore conclude that the trial court’s action complained of by petitioner did not amount to an abuse of discretion.

WOLF, ROBERTS, and ROWE, JJ„ concur.

      . A prosecutor is ethically obligated to refrain from prosecuting a charge that he or she knows is not supported by probable cause. See R. Regulating Fla. Bar 4-3.8(a). We assume the decisions of the prosecutor in this case comport with this principle. The filing of enhanced or additional charges after first appearance as a means of manipulating a modification of bond would be a grievous violation of this ethical obligation.