source: Caselaw Access Project

author:
QUINCE, J.
      CANADY, J.,

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Larry PHILLIPS, Respondent.
    No. SC11-411.
    Supreme Court of Florida.
    April 4, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, FL, Richard L. Polin, Chief-Assistant Attorney General, Bureau Chief, Miami Criminal Appeals, Miami,' FL, Robert Jay Rrauss, Chief-Assistant Attorney General, Bureau Chief, Tampa Criminal Appeals and Joseph Hwan-Yul Lee, Assistant Attorney General, Tampa, FL, for Petitioner.
    Kathleen A. Smith, Public Defender and Richard Reynolds Donnelly, Assistant Public Defender, Twentieth Judicial Circuit, Cape Coral, FL, for Respondent.
   QUINCE, J.

This case is before the Court for review of the decision of the Second District Court of Appeal in In re Commitment of Larry Phillips, 69 So.3d 951 (Fla. 2d DCA 2010). In its decision the district court ruled upon the following question, which the court has certified to be of great public importance:

DOES THE STATE HAVE JURISDICTION TO INITIATE CIVIL COMMITMENT PROCEEDINGS UNDER THE INVOLUNTARY CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS ACT AGAINST AN INMATE WHO IS ENTITLED TO IMMEDIATE RELEASE BASED ON A CORRECTED AWARD OF GAIN TIME?

Id. at 956. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We hold that because Phillips’ sentence had expired at the time the State initiated commitment proceedings under the Jimmy Ryce Act, Phillips was not in lawful custody, and consequently, the circuit court lacked jurisdiction over the commitment petition. Accordingly, we answer the certified question in the negative, and approve the Second District’s decision rendered below.

FACTS

The following facts, which are not in dispute, come from the Second District Court of Appeal’s opinion below:

In Febraary 1990 Phillips was arrested on a fugitive warrant in Georgia and extradited to Collier County where he was charged with three counts of committing a lewd and lascivious assault. After posting bond in Florida, Phillips was returned to Georgia for prosecution of a separate offense. In July 1990 a Georgia court sentenced Phillips to three years in prison followed by seventeen years of probation for that offense. Phillips was paroled in March 1992 and returned to Florida to resolve the Collier County case.
In April 1992 the Collier County circuit court sentenced Phillips to two years in prison followed by ten years of probation. The court awarded Phillips two years of credit for the time he had served in Georgia prior to his return to Florida. This effectively erased the two-year prison sentence, and Phillips was processed in and out of the Florida Department of Corrections (DOC) on the same day that he was sentenced. Phillips thereafter returned to Georgia to serve both his Georgia and Florida probationary terms.
Less than two years later, Phillips violated both his Georgia probation and his Florida probation by committing a new law offense [aggravated child molestation] in Georgia. A Georgia court revoked his probation and sentenced him to prison. In January 2004 Phillips was paroled from prison in Georgia and extradited to Florida to face the violation of probation charge in Collier County. [On June 10, 2004,] Phillips admitted to violating his Florida probation, and the court sentenced him to 5.5 years in prison with 177 days of jail credit [for the time Phillips spent in custody prior to the revocation of his probation]. [On April 6, 2005,] Phillips filed a [pro se Motion to Correct Sentence to Reflect Prison Time Credit] pursuant to Florida Rule of Criminal Procedure 3.800(a). Phillips requested that a Florida post-conviction court award him credit against his prison sentence for the two years of credit for time served in Georgia that the Florida court had awarded [on his original sentence] in 1992.[0]n September [30,] 2005 the postconviction court granted the motion and ordered the DOC to award Phillips the original jail and prison credit in addition to the credit for the 177 days....
On December 6, 2005, Phillips was released from the DOC and was transferred to the Florida Civil Commitment Center pursuant to section 394.9135(1), Florida Statutes (2005). The Department of Children and Family Services placed a seventy-two hour hold on Phillips and began its evaluation to determine whether he met the criteria for commitment as a sexually violent predator under the Act. [On December 12, 2005,] [t]he multidisciplinary team timely recommended civil commitment to the state attorney, who [then] filed a commitment petition [the same day].
In June 2009 Phillips, who was still in custody but had not been to trial, filed a motion to dismiss the commitment petition in the circuit- court [based on Larimore v. State, 2 So.3d 101 (Fla.2008), which held that an individual must be in lawful custody when commitment proceedings are initiated in order for the circuit court to have jurisdiction to adjudicate the commitment petition filed pursuant to the Jimmy Ryce Act]. Phillips argued that he was not in lawful custody at the time commitment proceedings were initiated on December 6, 2005, because his sentence had expired on August 31, 2005, based on the post-conviction court’s determination of entitlement to two years of prison credit against Phillips’ sentence of 5.5 years. Phillips relied on an affidavit executed by a DOC administrator which stated that, with the application of the prior prison and jail credit, Phillips’ sentence expired on August 31, 2005. The DOC included the award of 420 days of basic gain time and 234 days of incentive gain time in making this calculation.
[On November 16, 2009,] [t]he circuit court denied the motion to dismiss based on its determination that Phillips was in lawful custody when commitment proceedings were initiated because “[t]he time period from August 31, 2005 to December 6, 2005 was well within the legal term of [Phillips’] sentence of 5 1/2 years.”

In re Commitment of Larry Phillips, 69 So.3d 951, 952-53 (Fla. 2d DCA 2010) (footnotes omitted). The circuit court noted that absent gain-time, “[Phillips] would not have been released until approximately 1 1/2 years after the August 31, 2005 recalculated release date.”

On January 19, 2010, Phillips filed a petition for writ of prohibition with the Second District Court of Appeal, contending that because his sentence legally expired on August 31, 2005, he was not in lawful custody when commitment proceedings were initiated in December 2005. Id. at 953. The district court found that the sentence of five and one-half years for the violation of his probation was illegal because the court failed to award prior jail and prison credit. Id. at 955. Applying Lanmore, the Second District held:

Phillips cannot be committed pursuant to the Act if he was not in lawful custody when the State initiated commitment proceedings.... After the postconviction court determined that the prior prison and jail credits should be applied to correct the illegal sentence, the DOC recalculated Phillips’ sentence and found that it had expired as of August 31, 2005. Thus, Phillips was not in lawful custody when the State initiated commitment proceedings in December 2005.
Because Phillips was not in lawful custody at the time that proceedings under the Act were commenced, the circuit court does not have jurisdiction to adjudicate the commitment petition filed against Phillips under the Act.

Id. at 954-56. Accordingly, the Second District granted Phillips’ petition for writ of prohibition, dismissed the State’s commitment petition with prejudice, and ordered the immediate release of Phillips from any custody attributable to the State’s initiation of commitment proceedings under the Act. Id. at 956.

On March 8, 2011, we accepted jurisdiction of this case. On March 22, 2011, the Second District granted the State’s motion to stay issuance of the mandate. On October 10, 2011, after oral argument was held, we issued an order approving the Second District’s decision below, lifted the stay, and ordered Phillips’ immediate release from the custody of the Department of Children and Family Services (DCF). We now explain the reasoning behind our decision to approve the district court’s decision below.

ANALYSIS

The specific issue we are to decide is whether an inmate is in lawful custody at the time the State commences commitment proceedings pursuant to section 394.9135(1), Florida Statutes (2005), of the Involuntary Civil Commitment of Sexually Violent Predators Act, commonly known as the “Jimmy Ryce Act” (the Act), when the inmate’s sentence has actually expired due to postconviction credit for time previously served and/or an award of gain-time. The standard of review for the pure question of law before us is de novo. D’Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003). Before deciding this issue, we first note the pertinent provisions of the Act and review our case law which has interpreted the Act to require lawful custody. We conclude by commenting on the due process rights of individuals who are detained pursuant to the Act.

The Jimmy Ryce Act

The Involuntary Civil Commitment of Sexually Violent Predators Act, sections 916.31-49, Florida Statutes (1999), became effective on January 1, 1999. See ch. 98-64, § 24, at 455, Laws of Fla. Effective May 26, 1999, the Act was superseded, amended and renumbered to sections 394.910-.932, Florida Statutes (1999). See ch. 99-222, § 1, at 961, § 29, at 972, Laws of Fla. The Act “create[d] a civil commitment procedure for the long-term care and treatment of sexually violent predators.” § 394.910, Fla. Stat. (1999). A sexually violent predator is any person who “[h]as been convicted of a sexually violent offense; and [sjuffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.” § 394.912(10)(a), (b), Fla. Stat. (2005). The authority given to the State so that it may initiate commitment proceedings under the Act is found in section 394.913 (involving the furnishing of written notice to the multidisciplinary team and state attorney at least 545 days prior to the anticipated release from total confinement if the individual is serving a sentence in the Department of Corrections (DOC)), and section 394.9135 (involving the transfer of the individual to the custody of DCF if the anticipated release from total confinement becomes immediate for any reason).

Lawful Custody Requirement

The Act “applies to all persons currently in custody who have been convicted of a sexually violent offense, as that term is defined in s. 394.912(9), as well as to all persons convicted of a sexually violent offense and sentenced to total confinement in the future.” § 394.925, Fla. Stat. (2005) (emphasis added). Thus, the Legislature expressly used the term “custody” and not “lawful custody” in the applicability provision. The Act’s definitional section does not define custody, although it does broadly define “total confinement” to mean

that the person is currently being held in any physically secure facility being operated or contractually operated for the [DOC], the Department of Juvenile Justice, or the [DCF], A person shall also be deemed to be in total confinement for applicability of provisions under this part if the person is serving an incarcerative sentence under the custody of the Department of Corrections or the Department of Juvenile Justice and is being held in any other secure facility for any reason.

§ 894.912(11), Fla. Stat. (2005).

We have interpreted “custody” under the Act to mean that the Act applies to only individuals in “lawful custody,” not merely those individuals in actual custody. See Larimore, 2 So.3d at 110-11; State v. Atkinson, 831 So.2d 172, 173-74 (Fla.2002). In September 1996, Atkinson was sentenced to five years in prison for the conviction of a qualifying offense under the Act. Atkinson, 831 So.2d at 173. Subsequent to the Act’s effective date — January 1, 1999—Atkinson requested a resentenc-ing pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000). Atkinson, 831 So.2d at 173. In May 2000, the trial court resen-tenced Atkinson to twenty-one months in prison effective, nunc pro tunc, on the date of the original sentence. Id. The effect of the resentence was that Atkinson’s prison term would have expired, even absent gain-time, on June 25, 1998, and thus, pri- or to the effective date of the Act. Id. In June 2000, the State filed a petition to have Atkinson committed under the Act. Id.

Atkinson thereafter filed a petition for writ of prohibition with the Second District Court of Appeal, contending that the Act did not apply to him because he was not in lawful custody on the Act’s effective date. Id. The Second District found that the use of “custody” in the applicability provision meant “lawful custody.” Id. To require only actual custody, regardless of its lawfulness would produce unreasonable, harsh, or absurd consequences, and thus, contrary to public policy, the district court reasoned. Id. at 173-74. The Second District granted Atkinson’s petition for writ of prohibition because the circuit court was without jurisdiction over the commitment petition. Id. at 173. We agreed with the district court’s decision in Atkinson, finding that “[i]t would be contrary to the basic tenets of fairness and due process if we were to interpret [the applicability provision] as requiring only actual custody.” Id. at 174. Accordingly, we held that the Act was limited to persons who were in lawful custody on its effective date. Id.

After Atkinson but before Larimore, we issued our opinion in Tanguay v. State, 880 So.2d 533 (Fla.2004). In Tanguay, the individual was committed to the custody of the Department of Juvenile Justice. Id. at 535. His sentence expired in February 1999, but he was detained for an additional sixteen days after the expiration date in order for the State to initiate commitment proceedings under the Act. Id. After the commitment petition was filed in March 1999, Tanguay moved to dismiss the petition by claiming that the circuit court lacked jurisdiction since he was unlawfully detained beyond the expiration of his sentence. Id. The circuit court denied Tan-guay’s motion, and as a result, Tanguay filed a petition for writ of prohibition in the Second District. Id. at 585-86. The district court held that Tanguay’s due process rights were violated by detaining him beyond the expiration of his sentence but such did not warrant the dismissal of the petition because Tanguay failed to allege he was prejudiced by the unlawful confinement. Id. at 536.

In reviewing the district court’s opinion in Tanguay, a plurality of this Court stated that, “There was no ‘in custody1 requirement in the statute conferring jurisdiction in the circuit court which conditioned jurisdiction on the petitioner being ‘in custody1 on the date the petition was filed.” Id. at 537. As support, the plurality Court quoted section 916.35(1), Florida Statutes (Supp.1998), which provided that, “If the judge determines that there is probable cause to believe that the person is a sexually violent predator, the judge shall direct that the person be taken into custody and held in an appropriate secure facility.” Id. (emphasis added). The plurality Court approved the circuit court’s denial of Tanguay’s motion to dismiss, stating “that the fact that the petitioner was not in lawful custody when the commitment petition was filed [did] not divest the circuit court of jurisdiction to adjudicate the petition.” Id.

In 2008, this Court in Larimore reaffirmed the Atkinson Court’s interpretation that the applicability section of the Act was to be read to require lawful custody. 2 So.3d at 103. After pleading guilty to Act-qualifying offenses in two separate cases, Larimore was sentenced in 1991 to prison for a term of fifteen years in one case to be followed by probation for a term of five years in the other case. Id. at 104. With gain-time awarded, Larimore was released from prison in October 1998, and began serving his probationary term. Id. In February 2000, after violating his probation, the court revoked his probation and sentenced Larimore to five years in prison. Id. In August 2002, the First District held that Larimore was entitled to Tripp credit for the fifteen years served on his original prison sentence — which included prison time served as well as gain-time awarded — effectively erasing his five-year revocation of probation term. Id. The DOC thereafter forfeited 2,830 days of gain-time which Larimore had earned on his original prison sentence. Id. In November 2004, the State filed a commitment petition against Larimore pursuant to the Act. Id. The following month, the First District held that Larimore was entitled to an immediate release because the forfeiture of gain-time was not authorized. Id. Lari-more moved to dismiss the commitment petition, claiming that he was not in lawful custody on the effective date of the Act. Id. After the circuit court denied the motion, Larimore then filed a petition for writ of prohibition with the First District. Id.

The district court found that Larimore was not in lawful custody when the state filed its commitment petition in November 2004. Id. at 104-05. However, the district court concluded that the circuit court had jurisdiction over the commitment petition because “jurisdiction under the amended Act is not conditioned on a person being ‘in custody’ on the date the petition is filed.” Id. at 104. Accordingly, the First District denied Larimore’s petition for writ of prohibition, and certified conflict with the Second District’s decision in Gordon v. Regier, 839 So.2d 715 (Fla. 2d DCA 2003). Larimore, 2 So.3d at 104-05.

In Larimore, we clearly held that lawful custody is required whether the State is initiating commitment proceedings pursuant to section 394.913 or 394.9135 of the Act:

[A]s to the question of custody, we conclude that it is clear from a reading of all of the related provisions that the legislative intent of the Jimmy Ryce Act is that the person is in lawful custody at the time any initial steps are taken in the commitment process under either section 391.913 or 391.9135.
Because the Jimmy Ryce Act, by its express terms, is founded upon the concept that the individual be in lawful custody when any portion of the commitment proceedings [is] initiated, and because of the due process considerations ... we conclude that the Act requires that the individual be in lawful custody when commitment proceedings are initiated.

Id. at 110-11,117 (emphasis added). Lawful custody is required “in order for the circuit court to have jurisdiction to adjudicate the commitment petition.” Id. at 117. We explained that if the judge finds that there is probable cause to believe an individual is a sexually violent predator pursuant to section 394.9135, then “the judge shall order the person be maintained in custody and held in an appropriate secure facility for further proceedings in accordance with this part.” Id. at 109. Therefore, “[s]ection 394.9135 is predicated on the underlying premise that the individual is in custody when initial steps are taken in the commitment process, addressing what must happen when ‘the anticipated release from total confinement of a person who has been convicted of a sexually violent offense becomes immediate for any reason.’ ” Id. (quoting § 394.9135(1), Fla. Stat. (2004)). In addition, we found that the jurisdictional disclaimer provision in section 394.9135(4) “should not be extended beyond its actual text to dispense with the custody requirement where no steps in the proceedings have been initiated.” Id. at 113.

We also determined that the plurality Court’s decision in Tanguay — which held that the circuit court was not divested of jurisdiction to adjudicate the commitment petition even though the individual was not in lawful custody when the petition was filed — did not control our construction of the Act. Id. at 114. We explained that the language “taken into custody” under section 916.35(1), the statute in effect in Tanguay, did not appear in the current version of sections 394.915 or 394.9135. Id. Instead, if the judge finds that probable cause exists, under section 394.915, the judge shall order that the individual “remain in custody.” Id. With “remain in custody” replacing “taken into custody” coupled with the Legislature’s enactment of section 394.9135, “providing for special procedures where immediate release is anticipated,” we held that “there is no longer any statutory basis on which to hold that there is no ‘in custody’ requirement in the Jimmy Ryce Act.” Id. at 115. Accordingly, we ordered the dismissal of the State’s commitment petition with prejudice “[b]e-cause Larimore was not in legal custody when initial steps were taken to initiate civil commitment proceedings against him.” Id. at 117.

This Case

On September 30, 2005, the postconviction court granted Phillips’ motion to correct his sentence, ordering the DOC to apply original jail-time credit and to compute and apply credit for all previously served time. The DOC applied this court-ordered credit which, along with gain-time, resulted in a recalculated expiration of sentence date of August 31, 2005. Thereafter, on December 6, 2005, the State commenced commitment proceedings against Phillips by having the DOC transfer Phillips to the custody of the DCF pursuant to section 394.9135(1), which provides:

If the anticipated release from total confinement of a person who has been convicted of a sexually violent offense becomes immediate for any reason, the agency with jurisdiction shall upon immediate release from total confinement transfer that person to the custody of the [DCF] to be held in an appropriate secure facility.

§ 394.9135(1), Fla. Stat. (2005). We initially determine that Larimore’s construction of section 394.9135 controls the issue before us. Therefore, in order for the circuit court to properly exercise jurisdiction over the commitment petition, the individual must have been in lawful custody at the time the initial steps were taken under section 394.9135. Larimore, 2 So.3d at 117.

The question before us is whether Phillips was in lawful custody at the time commitment proceedings were initiated which occurred after the corrected expiration of sentence date. Phillips contends he was not in lawful custody; the State disagrees. The State argues that Larimore implies that an incarcerative sentence subject to an immediate termination due to a proper award of gain-time or credit for time previously served is “lawful custody” under section 394.9135, citing to footnotes four and eight of the opinion. We are not persuaded by the State’s definition of “lawful custody” under section 394.9135.

In Larimore, we stated that section 394.9135(1), “would occur, for example, where the inmate obtains an order for release from an incarcerative sentence.” 2 So.3d at 109. We then said in footnote four:

This interpretation is confirmed by Senate staff analyses on chapter 99-222, Laws of Florida, which added section 394.9135. The Florida Senate Committee on Children and Families’ staff analysis stated that the section addresses situations where, “because of unforeseen circumstances, it is anticipated that a person’s release from total confinement will become immediate. This section ... would assist in dealing with cases such as when inmates successfully challenge gain-time and.early release statutes and win early judicially mandated release from prison.” Fla. S. Comm, on Child. & Fams., CS for SB 2192 (1999) Staff Analysis 25 (Mar. 30, 1999); see also Fla. S. Comm, on Judiciary, CS for SB 2192 (1999) Staff Analysis 12 (Apr. 8, 1999) (stating that section 394.9135 “provide[s] an expedited involuntary civil commitment process for a person whose release becomes imminent due to factors such as successful gain-time challenges and early release statutes”). The section is intended to assist the Department of Children and Families and state attorneys with expediting cases in such circumstances. Child. & Fams. Comm. SB 2192 Analysis at 25; Judiciary Comm. SB 2192 Analysis at 12.

Id. at 109 n. 4. It is clear that the staff analyses quoted in footnote four demonstrate that section 394.9135 was enacted as a safety valve for certain situations, including where a postconviction court or an appellate court rules in the defendant’s favor, thereby entitling the defendant to credit for time previously served and/or gain-time. We do not find, however, any intention on the part of the Legislature to authorize the State to first travel under section 394.9135 after an inmate’s sentence expires. To the contrary, the staff analy-ses explain that section 394.9135 addresses situations where a release “will become immediate” or “becomes imminent.” Thus, section 394.9135 would be utilized in situations where the award of credit and/or gain-time causes an incarcerative sentence to expire in the immediate future.

After stating our holding in Larimore— that the Act requires individuals to be in lawful custody when commitment proceedings are initiated — we said in footnote eight:

In this case Larimore’s entire resen-tencing was unlawful. Thus, we do not reach the question of whether section 394.9135, Florida Statutes, would allow the State to take steps to initiate a commitment proceeding against a person who while in lawful custody obtains an order for immediate release for any reason. That issue is not before us.

Id. at 117 n. 8. We emphasized “while in lawful custody” and thus the issue contemplated in footnote eight hinges on whether or not the State initiated commitment proceedings while the individual was in lawful custody.

We hold that lawful custody under section 394.9135(1) requires the State to initiate commitment proceedings prior to the expiration of sentence date. When the anticipated release of a corrected sentence is imminent, the DOC may properly initiate the transfer of the individual to the custody of the DCF prior to the expiration of the individual’s incarcerative sentence pursuant to section 394.9135(1). Conversely, if the State first initiates commitment proceedings under section 394.9135(1) after the actual expiration of sentence date — which was accelerated due to credit for time-served and/or an award of gain-time — the individual is not in lawful custody and the circuit court is without jurisdiction to adjudicate the commitment petition.

Turning to the case at hand, Phillips was not in lawful custody when the State initiated commitment proceedings on December 6, 2005, because his sentence expired on August 31, 2005. Consequently, the circuit court lacked jurisdiction over the commitment petition. We note that nothing in the record suggests that Phillips intentionally delayed the filing of his pro se motion to correct his sentence in order to deprive DCF of jurisdiction. In fact, Phillips’ motion was filed almost five months before the recalculated expiration of sentence date of August 31, 2005.

The dissenters argue that “[t]he majority’s decision makes clear that ... offenders [subject to the Jimmy Ryce Act] have every incentive to avoid the correction of any error that extends the period of their confinement until they are no longer in ‘lawful custody.’ ” Dissenting op. at 1248. The dissent also quotes Judge Altenbernd, who concurred in part and dissented in part, in the decision below: “Phillips should not be allowed to deprive the [DCF] of jurisdiction over him by his own decision to forego an appeal and to delay a postconviction motion so that, on recalculation, his sentence expired before the un-preserved error was corrected.” Dissenting op. at 1248 (quoting Phillips, 69 So.3d at 957 (Altenbernd, J., concurring in part and dissenting in part)). However, the dissent omits Judge Alternbernd’s acknowledgment that Phillips may have wanted the trial court to award him credit before his recalculated sentence expired. See Phillips, 69 So.3d at 957 n. 8 (Altenbernd, J., concurring in part and dissenting in part) (“Admittedly, Mr. Phillips may have hoped that the trial court would resolve his motion prior to the end of August, but the resources of our trial courts are overwhelmed by such motions and this delay is not an unusual delay.”).

Individuals subject to the Act (i.e., prisoners who have been convicted of a sexually violent offense) do not have the power to unilaterally deprive a circuit court of jurisdiction over a commitment petition. In other words, whether a circuit court has jurisdiction over a commitment petition does not rest solely on the action or inaction of the defendant. Separate and apart from section 394.9135, the State is authorized to initiate commitment proceedings under section 394.913. Under this provision, the DOC must give written notice to the multidisciplinary team of a housed inmate who has been convicted of a sexually violent offense at least 545 days prior to that individual’s anticipated release. § 394.913(l)(a), Fla. Stat. (2005). If the inmate’s prison sentence is less than 545 days, then the DOC must furnish notice “as soon as practicable.” Id. Accordingly, the State is well-equipped to counteract an inmate’s subjective intent to delay the filing of a motion to correct an illegal sentence. In addition, the State at sentencing has a compelling interest in ensuring that the sentencing order is error free, including that the defendant has been awarded proper credit for the time served prior to the imposition of the sentence.

The State attempts to distinguish Lari-more from the instant case in that Lari-more involved an entirely unlawful sentence whereas Phillips’ sentence was legal except that the time-served credit and gain-time award were incorrect. This argument has no merit. It is significant that just like the individual in Larimore, Phillips, too, was in unlawful custody of the DOC when initial steps were taken to initiate civil commitment proceedings against him. Furthermore, as we said in Lari-more, which is equally applicable here, “[Interpreting the Jimmy Ryce Act as not requiring lawful custody for individuals who had been incarcerated at some point after the effective date of the Act but are not in lawful custody when commitment proceedings are initiated would be contrary not only to the overall intent of the Act but ‘would be contrary to the basic tenets of fairness and due process.’ ” 2 So.3d at 115 (quoting Atkinson, 831 So.2d at 174).

Contrary to the State’s contention, approving the decision of the district court below does not render section 394.9135 meaningless. Section 394.9135 “would apply where an inmate is about to be immediately released from an incarcerative sentence and the detailed procedures of section 394.913 and section 394.915(1) have not yet been followed to initiate commitment proceedings and retain the person in custody.” Id. at 109-10 (footnote omitted). In addition, section 394.9135 would conceivably apply to executive clemency proceedings pursuant to Chapter 940, Florida Statutes, as well as conditional medical releases under section 947.149, Florida Statutes.

Due Process

“[Cjivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). Under the Act, the trial court must conduct a trial to determine whether the individual is a sexually violent predator within thirty days after the finding of probable cause. § 394.916(1), Fla. Stat. (2005). In State v. Goode, 830 So.2d 817 (Fla.2002), we held the thirty-day time limit for bringing an individual to trial is mandatory, finding that the Legislature intended “scrupulous compliance.” Id. at 821, 826. Here, Phillips’ sentence expired on August 31, 2005, and Phillips was transferred to DCF on December 6, 2005, where he remained until at least October 10, 2011, when we ordered Phillips’ immediate release. Thus, after the expiration of his sentence, Phillips was unlawfully held in the State’s custody for more than six years without the trier-of-fact ever finding Phillips a sexually violent predator. Clearly, this unlawful detention seriously infringed upon Phillips’ due process rights.

We urge all participants during sentencing to make sure that the sentencing order accurately reflects the amount of credit the defendant is entitled to so that the DOC may properly calculate the individual’s anticipated release date when the individual begins serving his or her sentence. With a correctly calculated anticipated release date determined from the outset, the DOC may then properly comply with the requirement of furnishing written notice pursuant to section 394.913. This allows the State to initiate the commitment trial “well in advance of the [inmate’s] date of release from prison [so that] the due process concerns of commitment beyond imprisonment would be substantially alleviated.” Goode, 830 So.2d at 826.

The dissenters would recede from the Atkinson and Larimore decisions, dissenting op. at 1247, and find that “no constitutional ground has been established to preclude application of the Act to Phillips,” dissenting op. at 1246. While the State has a significant interest in “creatfing] a civil commitment procedure for the long-term care and treatment of sexually violent predators,” § 394.910, Fla. Stat. (2005), such interest must be balanced against the constitutional guarantee of due process of law. We have expressed that based on this constitutional ground the Act requires lawful custody. See Larimore, 2 So.3d at 117 (“Because the Jimmy Ryce Act, by its express terms, is founded upon the concept that the individual be in lawful custody when any portion of the commitment proceedings are initiated, and because of the due process considerations set forth above, we conclude that the Act requires that the individual be in lawful custody when commitment proceedings are initiated.”) (emphasis added).

CONCLUSION

Based on the foregoing, we hold that Phillips was not in lawful custody at the time the commitment procedures were initiated under the Act because his incarcera-tive sentence had already expired. Therefore, we answer the certified question in the negative, and approve of the Second District’s decision rendered below.

It is so ordered.

PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur.

CANADY, J., dissents with an opinion, in which POLSTON, C.J., concurs.

CANADY, J.,

dissenting.

I conclude that the plain language of the Involuntary Civil Commitment of Sexually Violent Predators Act, sections 394.910-.932, Florida Statutes (2005), known as the Jimmy Ryce Act, permits the initiation of proceedings against Larry Phillips and that no constitutional ground has been established to preclude application of the Act to Phillips. I therefore dissent from the majority’s decision to foreclose Phillips’ commitment as a sexually violent predator.

The foundation for the majority’s decision was laid in State v. Atkinson, 831 So.2d 172, 174 (Fla.2002), where the Court held that “the Ryce Act is limited to persons who were in lawful custody on its effective date.” Rejecting the plain meaning of the statutory text, the Atkinson Court read into the statute a requirement of “lawful custody” — as distinct from actual custody — on the ground that giving effect to the plain meaning of the text “would result in unreasonable, harsh, or absurd consequences” and “would be contrary to the basic tenets of fairness and due process.” Id. at 174. Justice Harding explained the deficiencies in the Court’s decision: “Neither the majority nor the district court explains what the ‘unreasonable, harsh, or absurd consequences’ would be if the statute is interpreted as requiring only actual custody. Furthermore, neither the district court below nor the majority cites any authority to support this interpretation of the ‘in custody’ requirement.” Id. at 174 (Harding, J., dissenting).

As Justice Harding pointed out, the majority’s pronouncement was at odds with the interpretation of a California statute with a similar “in custody” provision adopted by “five California appellate courts[, which] concluded that the custody requirement in California’s Sexually Violent Predator (SVP) Act requires only actual custody, not lawful custody.” Id. (citing People v. Jones, No. C034587, 2001 WL 1480301 (Cal. 3rd Ct.App. Nov. 21, 2001); People v. Hubbart, 88 Cal.App.4th 1202, 106 Cal.Rptr.2d 490 (2001); People v. Wakefield, 81 Cal.App.4th 893, 97 Cal.Rptr.2d 221 (2000); People v. Hedge, 72 Cal.App.4th 1466, 86 Cal.Rptr.2d 52 (1999); People v. Superior Court, 68 Cal.App.4th 1383, 81 Cal.Rptr.2d 189 (1999); Garcetti v. Superior Court, 68 Cal.App.4th 1105, 80 Cal.Rptr.2d 724 (1998)). Three of these decisions — Hedge, Superior Court, and Garcetti — were decided before the California Legislature revised the SVP Act to clarify that “unlawful custody” is not a jurisdictional bar where the unlawful custody is the result of a good faith mistake of fact or law. See 1999 Cal. Legis. Serv. Chap. 136 (S.B. No. 11) (West) (filed July 22, 1999). Furthermore, Justice Harding pointed to a federal district court decision, Johnson v. Nelson, 142 F.Supp.2d 1215 (S.D.Cal.2001), which rejected an inmate’s habeas claim that California had violated his due process rights because he was not in lawful custody at the time the SVP petition was filed. Subsequently, in Hubbart v. Knapp, 379 F.3d 773, 779-80 (9th Cir.2004), the United States Court of Appeals for the Ninth Circuit affirmed the denial of habeas relief sought by a person committed as a sexually violent predator in proceedings initiated when the petitioner was illegally detained for psychiatric treatment. The Ninth Circuit “deferred] to the state court, which held that ‘there is no due process violation where the person was not in lawful custody at the time the petition was filed ... [provided that] custody ... resulted] from a good faith error rather than negligent or intentional wrongdoing.’ ” Id. at 780 (first alteration added) (quoting Hubbart, 106 Cal.Rptr.2d at 510-11). These cases provide persuasive support for Justice Harding’s position that the Atkinson majority’s “lawful custody” requirement — which does not allow a Jimmy Ryce proceeding to be initiated when a defendant is in actual custody as a result of a good faith error — is not mandated by due process and “undermines the dual purposes of the Ryce Act, namely protecting the public and ensuring treatment to the dangerously mentally ill.” Atkinson, 831 So.2d at 174 (Harding, J., dissenting).

And Justice Harding’s position is supported by the basic framework the United States Supreme Court has established for evaluating whether civil commitment statutes satisfy the requirements of substantive due process. In upholding the Kansas Sexually Violent Predator Act against a substantive due process challenge, the Supreme Court in Kansas v. Hendricks, 521 U.S. 346, 357, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), recognized that historically “[sjtates have in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety.” The Supreme Court has

“consistently upheld such involuntary commitment statutes when” (1) “the confinement takes place pursuant to proper procedures and evidentiary standards,” (2) there is a finding of “dangerousness either to one’s self or to others,” and (3) proof of dangerousness is “coupled ... with the proof of some additional factor, such as a ‘mental illness’ or ‘mental abnormality’ ”... “that makes it difficult, if not impossible, for the person to control his dangerous behavior.”

Kansas v. Crane, 534 U.S. 407, 409-410, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002) (quoting Hendricks, 521 U.S. at 357-58, 117 S.Ct. 2072). Nothing in this framework suggests that a person has a due process right to be free from commitment simply because the commitment process is initiated at a time when the person is in custody due to a legal error. Indeed, the Supreme Court’s analysis of the due process issue did not focus on the requirement of the Kansas statute that a person subjected to commitment proceedings be a “presently confined person who ... is scheduled for release.” Hendricks, 521 U.S. at 352, 117 S.Ct. 2072.

I would recede from the unreasoned pronouncement contained in Atkinson, as well as the application of that pronouncement in Larimore v. State, 2 So.3d 101 (Fla.2009). The judicially imposed lawful custody requirement is “based on a serious interpretive error, which resulted in imposing a meaning on the statute that is ‘unsound in principle.’ ” Brown v. Nagelhout, 84 So.3d 304, 310 (Fla.2012) (quoting Allied-Signal, Inc. v. Director, Div. of Taxation, 504 U.S. 768, 783, 112 S.Ct. 2251, 119 L.Ed.2d 533 (1992)). The circumstances present in this context present especially compelling grounds for receding from our unsound precedent. Atkinson and Larimore unjustifiably foreclose application of the Jimmy Ryce Act in circumstances manifestly within the contemplation of the Legislature. See § 394.9135(1), Fla. Stat. (2005) (“If the anticipated release from total confinement of a person who has been convicted of a sexually violent offense becomes immediate for any reason, the agency with jurisdiction shall upon immediate release from total confinement transfer that person to the custody of the Department of Children and Family Services to be held in an appropriate secure facility.”) (emphasis added). As the majority concedes, “the Legislature expressly used the term ‘custody1 and not ‘lawful custody4 in the applicability provision” of the Jimmy Ryce Act. Majority op. at 1237. See § 394.925, Fla. Stat. (2005) (“This part applies to all persons currently in custody who have been convicted of a sexually violent offense, as that term is defined in s. 394.912(9), as well as to all persons convicted of a sexually violent offense and sentenced to total confinement in the future.”).

Judge Altenbernd observed that “Phillips should not be allowed to deprive the Department of Children and Family Services of jurisdiction over him by his own decision to forego an appeal and to delay a postconviction motion so that, on recalculation, his sentence expired before , the un-preserved error was corrected.” In re Commitment of Phillips, 69 So.3d 951, 957 (Fla. 2d DCA 2010) (Altenbernd, J., concurring in part and dissenting in part). Whether or not Phillips made a calculated choice to game the system, he has certainly pointed the way for other offenders who are facing the prospect of commitment pursuant to the Jimmy Ryce Act. The majority’s decision makes clear that such offenders have every incentive to avoid the correction of any error that extends the period of their confinement until they are no longer in “lawful custody.”

This is not the way our system of justice should work. The unfortunate consequence is that certain sexually violent predators — persons who are highly likely to commit repeat acts of predatory sexual violence' — are unjustifiably immune from commitment under the Jimmy Ryce Act.

POLSTON, C.J., concurs.

      . On October 21, 2005, Phillips filed a pro se motion to clarify the postconviction order, stating that the order failed to inform the DOC of the time he spent incarcerated in Georgia. On November 8, 2005, treating it as a motion for rehearing, the postconviction court denied the motion, reasoning that the original sentencing order clearly contemplated credit for the time he was imprisoned in Georgia.

      . The Florida Legislature made explicit findings as to sexually violent predators:
      [A] small but extremely dangerous number of sexually violent predators exist.... [who] generally have antisocial personality features which are unamenable to existing mental illness treatment modalities, and those features render them likely to engage in criminal, sexually violent behavior.... [T]he likelihood of sexually violent predators engaging in repeat acts of predatory sexual violence is high.... [T]he prognosis for rehabilitating sexually violent predators in a prison setting is poor, [and] the treatment needs of this population are very long term.
      § 394.910, Fla. Stat. (1999).

      . At trial, if the trier of fact determines that the individual is a sexually violent predator, then he or she is committed to the custody of the DCF for "control, care, and treatment until such time as the person’s mental abnormality or personality disorder has so changed that it is safe for the person to be at large." § 394.917(2), Fla. Stat. (2005); see also § 394.919(1), Fla. Stat. (2005) (stating that the DCF secretary or the secretary’s designee must authorize the individual to petition the court for release if it is determined that the individual “is not likely to commit acts of sexual violence if discharged”); § 394.920, Fla. Stat. (2005) (governing petitions for release).

      ."Lawful custody” is expressed once in the Act, referring to an individual's status for the crime of escape or attempting to escape. See § 394.927(1), Fla. Stat. (2005).

      . The term “total confinement” appears in both commitment procedures, sections 394.913 and 394.9135. See § 394.913(1)(a), Fla. Stat. (2005) ("[WJritten notice must be given: At least 545 days prior to the anticipated release from total confinement of a person serving a sentence in the custody of the Department of Corrections_”) (emphasis added); § 394.9135(1), Fla. Stat. (2005) ("If the anticipated release from total confinement of a person who has been convicted of a sexually violent offense becomes immediate for any reason, the agency with jurisdiction shall upon immediate release from total confinement transfer that person to the custody of the [DCF] to be held in an appropriate secure facility.”) (emphasis added).

      . In Heggs, this Court held that the 1995 sentencing guidelines were unconstitutional as violative of the single-subject rule. 759 So.2d at 621.

      . We also ruled, however, that no evidence obtained from Tanguay during the unlawful detention was to be used during the commitment proceedings. Tanguay, 880 So.2d at 537.

      . In Tripp v. State, 622 So.2d 941 (Fla.1993), we held that "if a trial court imposes a term of probation on one offense consecutive to a sentence of incarceration on another offense, credit for time served on the first offense must be awarded on the sentence imposed after revocation of probation on the second offense.” Id. at 942 (footnote omitted).

      . In Gordon, the Second District held that an individual released on conditional release was not in custody when the petition was filed, and therefore the State did not have jurisdiction to subsequently proceed against him under the Act. 839 So.2d at 720.

      . Former section 916.35 was renumbered as section 394.915. See ch. 99-222, § 9, Laws of Fla. Although the text of section 394.915 no longer includes the "taken into custody” language, the title of section 394.915 still refers to such language. § 394.915, Fla. Stat. (2005). The failure to amend the title of section 394.915 to conform with the text of that section appears to simply be an oversight on the part of the Legislature.

      . As Phillips was not in lawful custody, the situation described in footnote eight of inn-more is yet again not before us.

      . Although the postconviction court's granting of Phillips’ motion to correct his sentence on September 30, 2005, did not explicitly order his immediate release, we question why this order did not prompt the State to immediately thereafter attempt to initiate the commitment proceedings.

      . A lawyer representing a defendant subject to the Act who is aware of an unpreserved error in the sentencing order but decides to delay the seeking of the correction thereof in an attempt to deprive the circuit court of jurisdiction over the commitment petition may be found to have violated the Rules Regulating the Florida Bar. See Rule Regulating the Florida Bar 4-8.4(c), (d).

      . No motion for expedited review was filed with this Court. Cf. Moore v. Pearson, 789 So.2d 316, 318 (Fla.2001) (“This Court accepted jurisdiction and granted DOC's motion to stay the mandate of the district court's decision pending our review of the case. In light of the stay and Pearson’s liberty interest, the Court granted expedited review of the cause.’’).

      . We also noted in Goode, which was decided over ten years ago, that “often people [were] being detained for long periods after their scheduled release date without being taken to trial” and that "compliance with the thirty-day time limit for trial [was] rarely being practiced.” 830 So.2d at 825 n. 7.

      . The dissent finds that the “plain language of the [Act] permits the initiation of proceedings against Larry Phillips.” Dissenting op. at 1246. The dissent mentions both federal and state court cases applying California's Sexually Violent Predator (SVP) Act, which “requires only actual custody not lawful custody." Dissenting op. at 1246 (quoting Atkinson, 831 So.2d at 174-75 (Harding, Senior Justice, dissenting)). Under the original version of California’s SVP Act, commitment proceedings were applicable to "an individual who [was] in custody under the jurisdiction of the [DOC].” People v. Hubbart, 88 Cal.App.4th 1202, 106 Cal.Rptr.2d 490, 508 (2001) (quoting Cal. Welf. & Inst.Code § 6601(a) (1995) (emphasis added)). However, "[i]n 1999, the [California] Legislature added the following language to [the SVP Act]: ... 'A petition shall not be dismissed on the basis of a later judicial or administrative determination that the individual’s custody was unlawful, if the unlawful custody was the result of a good faith mistake of fact or law.' ” Hubbart, 106 Cal.Rptr.2d at 509 (quoting Cal. Welf. & Inst. Code § 6601(a)(2) (1999)). Therefore, there is a significant distinction between Florida and California law pertaining to the involuntary commitment of sexual violent predators: the California Legislature, unlike with the Florida Legislature, declared that an inmate's unlawful custody will not preclude the trial court from having jurisdiction over a commitment petition when the unlawful custody was a result of a good faith mistake of fact or law.
      We are mindful of the "jurisdictional disclaimer” provisions contained in the Jimmy Ryce Act, which are remarkably different from the California statutory provision referenced above. See § 394.913(4), Fla. Stat. (2005) ("The provisions of this section are not jurisdictional, and failure to comply with them in no way prevents the state attorney from proceeding against a person otherwise subject to the provisions of this part.”); § 394.9135(4), Fla. Stat. (2005) ("The provisions of this section are not jurisdictional, and failure to comply with the time limitations, which results in the release of a person who has been convicted of a sexually violent offense, is not dispositive of the case and does not prevent the state attorney from proceeding against a person otherwise subject to the provisions of this part.”). In Larimore, we determined that the "jurisdictional disclaimer” provisions “[did] not constitute a statutory waiver of the lawful custody requirement contained within the overall legislative scheme.” 2 So.3d at 106.


author: PER CURIAM.

text:
    Travis Sentell PLATTS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1839.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2013.
    Travis S. Platts, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Meredith Hinshelwood, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied as moot. The motion for extension of time filed in the lower tribunal on December 31, 2012, is construed as a timely notice of appeal directed to the denial of petitioner’s motion for post-conviction relief rendered December 17, 2012 in Duval County Circuit Court case number 12-2001-CF-9556-AXXX. The circuit court shall transmit the motion, so construed as a notice of appeal, to this court within 15 days of issuance of mandate in this cause. The circuit court is also directed to consider whether petitioner is entitled to appointment of counsel for that appeal.

PADOVANO, MARSTILLER, and MAKAR, JJ., concur.


text:
    Radu CRACIUN, Appellant, v. Adriana OPRITESCU, Appellee.
    No. 2D13-939.
    District Court of Appeal of Florida, Second District.
    Aug. 28, 2013.
    Radu Craciun, pro se.
    Monica P. Da Silva of Da Silva Law Firm, P.A., Tampa, for Appellee.
   PER CURIAM.

Radu Craciun, the former husband, appeals the trial court’s “Order on Former Wife’s Motion for Sole Parental Responsibility, Sole Timesharing, Passport Authorization, Permission to Travel with Child and Former Husband’s Motion to Strike.” We affirm the trial court’s order, but we remand for the trial court to correct the first sentence of paragraph E of the order to read: “Former Wife shall communicate with the Former Husband regarding non-medical and nonemergency medical decisions.”

Affirmed and remanded.

KELLY, WALLACE, and KHOUZAM, JJ., Concur.


text:
    Guy J. DUHAIME, Appellant, v. Brenda DUHAIME and Cecile Stewart, Appellee.
    No. 5D13-1055.
    District Court of Appeal of Florida, Fifth District.
    Aug. 30, 2013.
    Guy J. Duhaime, Wewahitchka, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Guy J. Duhaime appeals the dismissal of his civil action against his siblings, Brenda Duhaime and Cecile Stewart. Mr. Du-haime sued his siblings in Hernando County, claiming that they cheated him out of an inheritance. The trial court dismissed the claim, finding that venue was improper and that a similar lawsuit had previously been filed and dismissed in Polk County. We reverse.

If venue is improper, transfer, rather than dismissal is the proper remedy. Ki-netiks.Com, Inc. v. Sweeney, 789 So.2d 1221, 1222 (Fla. 1st DCA 2001). The pre-clusive effect of the Polk County case, if any, should be determined by the transferee court as the record contains nothing about the earlier case other than a vague reference to its existence.

REVERSED and REMANDED.

SAWAYA, ORFINGER and LAWSON, JJ., concur.


author: MARSTILLER, J.

text:
    Barry Allen KRUPKIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4503.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2013.

      Nancy A. Daniels, Public Defender and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   MARSTILLER, J.

In an information filed in April 2012, the State charged Barry Allen Krupkin with three counts of solicitation fraud, alleging that, in 2009, 2010, and 2011, Krupkin knowingly filed false or misleading information with the Department of Agriculture and Consumer Services (“Department”) when he “fail[ed] to disclose that he plead nolo contendré [sic] in a criminal case, in violation of Florida Statute 496.415.” (Bold type in original.) Krup-kin moved to dismiss the charges, asserting that he had relied on advice from his lawyer that he need not disclose his 2007 nolo contendere plea to organized fraud, and that, in any event, his charitable organization was exempt from having to register with the Department prior to soliciting contributions. The trial court denied the motion after holding an evidentiary hearing, and the matter proceeded to trial where, at the close of the evidence, Krup-kin moved for judgment of acquittal, arguing that the State had failed to rebut his prima facie good faith defense. The trial court denied this motion, as well, and the jury found Krupkin guilty as charged.

Krupkin appeals the convictions, arguing the trial court erroneously denied dismissal and judgment of acquittal. We review the court’s rulings de novo, and for the following reasons, affirm Krupkin’s convictions.

First, some background. Charitable organizations intending to solicit contributions in this state must file an initial registration statement with the Department, and file annual renewal statements thereafter, if applicable. See § 496.405(l)(a), Fla. Stat. (2009). If, however, such organizations solicit only from their members, they are exempt from the registration requirement. See § 496.406(2), Fla. Stat. (2009). The initial and renewal registration documents required under section 496.405 must include, inter alia, a statement of whether:

The charitable organization or sponsor or any of its officers, directors, trustees, or employees, regardless of adjudication, has been convicted of, or found guilty of, or pled guilty or nolo contendere to, or has been incarcerated within the last 10 years as a result of having previously been convicted of, or found guilty of, or pled guilty or nolo contendere to, any felony or any crime involving fraud, theft, larceny, embezzlement, fraudulent conversion, misappropriation of property, or any crime arising from the conduct of a solicitation for a charitable organization or sponsor within the last 10 years....

§ 496.405(2)(d)5., Fla. Stat. (2009) (emphasis added). “Knowingly fil[ing] false or misleading information in any document required to be filed with the department or in response to any request or investigation by the department ...” constitutes a criminal offense. § 496.415(2), Fla. Stat. (2009); see also § 496.417, Fla. Stat. (2009).

Krupkin is founder and director of United Veterans of America, a charitable organization. In 2009, 2010, and 2011, the Department sent Appellant a Renewal Registration Statement for Charitable Organizations and Sponsors, which asked, in pertinent part and in language virtually identical to that in section 496.405(2)(d)5.:

15. Has the charitable organization or sponsor or any of its officers, directors, trustees, or employees, regardless of adjudication, been convicted of, found guilty of, pled guilty or nolo contendere to, or been incarcerated within the last 10 years as a result of having previously been convicted of, or found guilty of, or pled guilty or nolo contendere to, any felony, or crime involving fraud, theft, larceny, embezzlement, fraudulent conversion, property, or any crime arising from conduct of a solicitation for a charitable organization or sponsor within the last 10 years?

Krupkin filed the forms, each time answering “No” to the question, notwithstanding his 2007 plea to organized fraud for which adjudication was withheld.

Krupkin, in moving to dismiss the charges against him, had the burden to show the undisputed facts either did not establish a prima facie case of guilt or did establish a valid defense. See State v. Carry, 75 So.3d 803, 804 (Fla. 5th DCA 2011). His motion claimed both. Having reviewed the evidence presented to the trial court, and resolving all inferences, as we must, against Krupkin, see Boler v. State, 678 So.2d 319, 323 (Fla.1996), State v. Booker, 529 So.2d 1239, 1239-40 (Fla. 1st DCA 1988), we conclude he failed to carry his burden.

Good faith reliance on the advice of counsel can be a defense to a specific intent crime. See generally Aversano v. State, 966 So.2d 493, 495 (Fla. 4th DCA 2007); Huff v. State, 646 So.2d 742, 743 (Fla. 2d DCA 1994) (same). Krupkin's testimony, at the motion hearing, that he relied on his lawyer’s advice in responding to the Department’s question did not establish ipso facto the reliance was in good faith. Krupkin said his lawyer told him “it [the prior criminal ease] was a withholding of adjudication ... and it [the statute] didn’t pertain to me. It had no value of it because I wasn’t guilty of anything so I could answer no.” But the lawyer’s advice was in glaring conflict with the unambiguous “regardless of adjudication” language on the renewal form and in the statute. Additionally, Krupkin testified to having graduated from law school, though he is not a licensed attorney. We find these circumstances raised a factual issue as to good faith, sufficient to defeat Krupkin’s motion to dismiss.

As to Krupkin’s claimed exemption from the registration requirements of section 496.405, even assuming this fact was undisputed, section 496.415(2) makes it a crime to knowingly provide false information “in response to any request ... by the department!.]” The facts here show the State established a prima facie case of guilt on that basis. In 2009, 2010, and 2011, the Department sent Krupkin a Renewal Registration Statement for Charitable Organizations and Sponsors to complete and file. This constituted a “request” by the Department, to which he responded by filing the forms three years running. Because the undisputed facts showed Krupkin violated section 496.415, his motion to dismiss was correctly denied.

Krupkin argues, alternatively, that he was entitled to acquittal because he presented, via his own testimony, a prima facie case of good faith reliance on advice of counsel, and the State failed to present any evidence to overcome his affirmative defense. Indeed, a trial court must accept a defendant’s “reasonable, unrebut-ted, and unimpeached testimony” and enter judgment of acquittal if the testimony is “entirely exonerating.” Dudley v. State, 511 So.2d 1052, 1057 (Fla. 3d DCA 1987). But “where the defendant’s exonerating testimony (a) is not reasonable on its face, or (b) is contradicted by other evidence in the case, or (c) is otherwise impeached, the trier of fact is privileged to reject such testimony!.]” Id. at 1058. And a defendant seeking judgment of acquittal admits not only the facts in evidence, but also every reasonable inference favorable to the State that can be drawn from the evidence. See Turner v. State, 29 So.3d 361, 364 (Fla. 4th DCA 2010); Rasley v. State, 878 So.2d 473, 476 (Fla. 1st DCA 2004). We conclude the evidence showing that Krupkin graduated from law school, and the fact that the lawyer’s advice did not square with the plain language of section 496.405, sufficed to rebut Krupkin’s exonerating testimony, if not render it unreasonable. The trial court, therefore, properly denied the motion for judgment of acquittal. See Turner, 29 So.3d at 364 (stating that courts should not resolve affirmative defense issue by judgment of acquittal where facts are disputed).

Accordingly, we AFFIRM Krupkin’s convictions.

LEWIS, C.J., and OSTERHAUS, J., concur.

      . See O'Leary v. State, 109 So.3d 874, 876 (Fla. 1st DCA 2013) ("We review a trial court's denial of a motion to dismiss under a de novo standard of review.”); Lukaszewski v. State, 111 So.3d 212, 213 (Fla. 1st DCA 2013) ("A trial court's ruling on a motion for judgment of acquittal is reviewed de novo.”).

      . The 2009, 2010, and 2011 versions of this provision and others in chapter 496, Florida Statutes, we cite herein are identical. Thus, we refer only to the 2009 statutes.

      . The State conceded it had no evidence to show that United Veterans of America solicited contributions outside its existing membership.

      . Krupkin raises a third argument for dismissal: The renewal form, and thus section 496.405(2)(d)5., only require disclosure of pri- or crimes "arising from conduct of a solicitátion.” Because the organized fraud to which he pled nolo contendere did not so arise, he responded truthfully to the question on the form. This argument was not presented below, and therefore, was not preserved for appeal. In any event, we find no merit to the argument, based on a plain reading of the unambiguous statutory language.


author: KHOUZAM, Judge.

text:
    Daniel V. HELESKI and Cathy A. Heleski, Appellants, v. Paul G. HARRELL, K. Suzanne Harrell, Mark E. Henneberry, and Joyce A. Henneberry, Appellees.
    No. 2D12-4136.
    District Court of Appeal of Florida, Second District.
    Aug. 30, 2013.
    E. Alexander Pujol of E. Alexander Pu-jol, LLC, Lakeland, for Appellants.
    Daniel F. Pilka of Pilka & Associates, P.A., Brandon, for Appellees.
   KHOUZAM, Judge.

The Heleskis began building a structure on their property in the Christina Woods Phase 9 residential subdivision without notifying or getting approval from the Christina Woods Phase 9 Homeowners’ Association (“HOA”). The structure is 24 feet by 24 feet and is separate from the Heleskis’ main house. The Harrells and Henneberrys, who are neighbors of the Heleskis, complained to the HOA that the structure was in violation of the neighborhood’s deed restrictions-the Declaration of Covenants, Restrictions, Limitations and Conditions. When the HOA approved the Heleskis’ project, the Harrells and Henne-berrys filed an action in circuit court to prohibit the construction. The circuit court granted summary judgment in favor of the Harrells and the Henneberrys, finding that the Heleskis were prohibited from building the structure. The Heleskis appealed. We reverse and remand.

We review the circuit court’s grant of summary judgment de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment may be properly granted only where no issue of material fact remains and the movant is entitled to judgment as a matter of law. Id. Indeed, summary judgment is improper if the record reflects even the slightest doubt that a genuine issue of material fact might exist. Baldwin v. Nature’s Hideaway, Phase I-B Homeowners Ass’n, Inc., 613 So.2d 1376, 1378 (Fla. 2d DCA 1993).

The general rule in Florida is that “ ‘a reasonable, unambiguous restriction will be enforced according to the intent of the parties as expressed by the clear and ordinary meaning of its terms.’ ” Imperial Golf Club, Inc. v. Monaco, 752 So.2d 653, 654 (Fla. 2d DCA 2000) (quoting Barrett v. Leiher, 355 So.2d 222, 225 (Fla. 2d DCA 1978)). The court must give effect to the commonly understood meaning of the terms used in the deed restrictions. See Klak v. Eagles’ Reserve Homeowners’ Ass’n, Inc., 862 So.2d 947, 954 (Fla. 2d DCA 2004). “Restrictive covenants are not favored and are to be strictly construed in favor of the free and unrestricted use of real property.... Any doubt as to the meaning of the words used must be resolved against those seeking enforcement.” Wilson v. Rex Quality Corp., 839 So.2d 928, 930 (Fla. 2d DCA 2003); see also Sweeney v. Mack, 625 So.2d 15, 17 (Fla. 5th DCA 1993).

The issue in this case centers on the language used in section 3 and section 9 of the Christina Woods Phase 9 deed restrictions. Section 3 states:

GARAGES. Each single-family dwelling shall have a private garage, capable of housing at least two (2) cars, together with a concrete driveway or such other driveway as is approved by the Developer, extending from the garage to the front lot line. All garages shall contain automatic electric door openers which shall be maintained in good operating condition. Each garage shall be attached to the dwelling and shall conform architecturally to the design of the dwelling. Unless otherwise approved by the Developer, the door opening of each garage shall not face any street.

Section 9, on the other hand, provides:

UTILITY BUILDINGS. No utility buildings, sheds or outbuildings shall be erected, placed or permitted to remain on any lot without the prior written consent of the Developer.

Neither “garage” nor “utility building” is defined in the deed restrictions. The American Heritage Dictionary defines an “outbuilding” as “[a] building separate from but associated with a main building” and a “shed” as “[a] small structure, either freestanding or attached to a larger structure, serving for storage or shelter.” The American Heritage Dictionary of the English Language (5th ed.2011), available at www.ahdictionary.com. A garage, on the other hand, is defined as “[a] building or indoor space in which to park or keep a motor vehicle.” Id.

The trial court found that section 3 only allows for a single, attached garage per single-family dwelling and prohibits the construction of additional, detached garages. The court determined that the He-leskis’ structure was a garage governed by section 3 because the Heleskis repeatedly referred to it as a “garage” in their building application and communications with the HOA. As to section 9, the court stated that “there is simply no way a garage may fit within the definition of ‘outbuilding’ as that term is used in § 9.”

But the fact that the Heleskis referred to the structure as a “garage” (they also referred to it as a “storage building”) does not conclusively establish that it is actually a “garage,” and the record is unclear as to how the Heleskis intend to use the structure. If the structure will be used to park vehicles, it will likely be considered a “garage” governed by section 3. If it will be used for storage, on the other hand, it probably will fall within the definition of a “utility building” under section 9 and section 3 will not apply. Though the parties suggest that due to its placement on the property the structure could not be used for parking vehicles, the record is ultimately unclear as to how the Heleskis intend to use the structure. As the question of whether the structure is a “garage” covered by section 3 or one of the “utility buildings” covered by section 9 turns on the intended function of the structure, a material issue of fact remains. We reverse the trial court’s order granting summary judgment and remand for proceedings consistent with this opinion.

Reversed and remanded.

ALTENBERND and SLEET, JJ„ Concur.


text:
    Vivian BRUNO, Appellant, v. Robert D. BRUNO, Appellee.
    No. 1D12-5515.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2013.
    Jason E. Negron, Shalimar, for Appellant.
    Wanda J. Clapp of Wanda J. Clapp, P.A., Shalimar, for Appellee.
   PER CURIAM.

Vivian Bruno (former wife) argues that the trial court erred by awarding her only durational alimony in the final judgment of dissolution, without supporting, statutorily-required findings. She also contends the monthly amount of alimony is inadequate. We agree, and reverse and remand for further proceedings.

The parties had been married nine years when Robert Bruno, 79 years old in 2011, petitioned for dissolution. Each entered the marriage as a homeowner and each deeded undivided half-interests in their homes to the other. They lived in what had been the former husband’s house and sold what had been the former wife’s house. In the final judgment of dissolution of marriage the marital home became the former husband’s sole property once-again, with the only off-setting distribution to the former wife being a small fraction of the husband’s pension. The trial court awarded the former wife, 68 years old in 2011, only “bridge the gap/durational alimony for a period of 36 months” in the amount of $700.00 per month. It is unclear how the trial court arrived at its decision as to the type or amount of alimony or where the former wife will now be able to live.

Section 61.08 requires the trial court to consider the parties’ need for alimony and their ability to pay, § 61.08(2), Fla. Stat. (2010), taking into account the financial resources of each party and all sources of income available to either party. See § 61.08(2)(d),(i), Fla. Stat. (2010). In the final judgment, the trial court made no findings regarding the parties’ income. But the record established that the husband’s monthly income is $4,690 while the wife’s is $545. There are no findings explaining the court’s arrival at the figure of $700 per month for alimony, given the disparity between the parties’ incomes or explaining the three-year limit in a case where both parties’ working lives may well be nearing an end.

Durational alimony is intended “to provide a party with economic assistance for a set period of time.” § 61.08(7), Fla. Stat. (2010). Because the record does not make clear that the trial court considered the disparity in the parties’ incomes and the financial resources of both parties, we remand for findings of fact relating to the award of alimony. See Kemmet v. Kemmet, 885 So.2d 408, 409 (Fla. 1st DCA 2004) (“Because the trial court did not make the findings of fact mandated by section 61.08(1), Florida Statutes (2003), regarding the amount of alimony it awarded and we are unable to divine from the record how it arrived at the amount (which appears somewhat low), we reverse the alimony award and remand for the required findings.”).

BENTON, THOMAS, and CLARK, JJ., concur.

      . The wife is to receive a total of $1,245 per month ($405 from social security, $140 from the husband’s pension plan, and $700 alimony) for 36 months.

      . Bridge the gap alimony is limited to a period of two years. See § 61.08(5), Fla. Stat. (2010). This award was for a three-year period.


author: LEVINE, J.

text:
    Marin STROIA, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1369.
    District Court of Appeal of Florida, Fourth District.
    Sept. 4, 2013.

      Carey Haughwout, Public Defender, and Richard Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   LEVINE, J.

The issue presented for our review is whether the trial court erred in allowing a peremptory strike of an African-American juror by the state, where the state accepted two white jurors who were similarly situated to the African-American juror. We find that the trial court erred in finding the state’s race-neutral reason for striking that African-American juror to be genuine, and as a result, we reverse appellant’s convictions and remand for a new trial.

Appellant was charged with one count of trespass of a structure with a firearm and one count of improper exhibition of a firearm, after appellant entered the Broward County Courthouse through the exit door with a firearm.

At trial, during jury selection, prospective juror 2, who was white, stated that her brother had been arrested in the past for illegal drugs. Juror 2’s father had also been arrested, but juror 2 did not know what her father’s arrest was for. Juror 2 indicated that neither of these incidents would affect her ability to be a fair and impartial juror.

Prospective juror 9, who was white, also stated that her stepbrother had been arrested for drugs. Juror 9 stated that her stepbrother’s arrest would not affect her ability to be fair and impartial.

Prospective jurors 5 and 15 were African-American. Neither juror 5 nor juror 15 had close family members who had been arrested.

Prospective juror 22 was also African-American. Juror 22 described himself as “[qjuiet.” Juror 22 had two brothers and a sister who had been arrested. One of juror 22’s brothers was arrested for a “[djrug charge.” Juror 22 did not know what his other brother and his sister had been arrested for. Despite these arrests of his family members, juror 22 confirmed that he could be a fair and impartial juror.

Early on in the selection process, jurors 2 and 5 were on the proposed jury. After the state exercised a peremptory challenge, juror 9 entered the proposed jury. After several more strikes were exercised, juror 15 entered the panel. The state accepted a panel containing these four jurors. More strikes were then exercised, and juror 22 entered the proposed panel. The following ensued:

[State]: State would strike number 22....
THE COURT: That’s the State’s last peremptory.
[Appellant]: Judge, I’m going to ask for a race neutral reason on [juror 22].
THE COURT: Let the record reflect that [juror 22] is a black male. State.
[State]: Yes, Your Honor. [Juror 22] has stated that several of his family members have been arrested for drug charges, various charges in Broward County.
[Appellant]: I will point out to the Court and for the record that [juror 2] has relatives who has [sic] been arrested. [Juror 9] has a stepbrother that has been arrested for drugs.
THE COURT: I’m sorry, one more time. [Juror 2],
[Appellant]: [Juror 2] told us she had a brother and a father, I think, who were arrested. And [juror 9] told us her stepbrother was arrested for drugs. And both of those are, apparently, acceptable to [the prosecutor]. I would also point out that he struck [juror 4], who is a black person, the way I view him. And I am going to ask the Court to find it’s not a genuine reason. Race neutral reason.
THE COURT: State, response.
[State]: That’s the only reason I have, Your Honor. That’s what he stated, that he has family members who have been arrested. Otherwise, he has been very quiet. None of us got much out of him. The State would point out that we accepted number 15 ... who is also an African-American male.
[Appellant]: I will also point out that the State accepted ... well, the bottom line is they accepted so far two people who told us the exact same thing that [the prosecutor] uses as a reason to justify what I consider to be a racially motivated strike.

The court and appellant then discussed whether the “quantities” of the arrests mattered, and the court stated, “No,, but there are other things involved here.” The court and appellant also agreed that juror 2 did not know what “the other arrests were for.” The colloquy continued:

THE COURT: It sounds like both of those you can ... In any event ... I mean, the question here is certainly [juror 22] is a member of a racial group. And the State has come forward with a race neutral explanation. So then the question here is does the Court believe that given all the circumstances surrounding the strike that the explanation is not a pretext.
[Appellant]: Let me add one thing for the record. Both [juror 2] and [juror 9] are white.
THE COURT: All right. For the record, you are not disputing that [juror 15] is also on the jury is black, correct?
[Appellant]: Correct. He didn’t say anything about an arrest I have. Maybe I’m wrong. If he did, I would point it out as well.
THE COURT: He has struck others that are not black.
[Appellant]: That’s true. Aren’t that many blacks on the panel.
THE COURT: Juror number five ... is also a black female.
[Appellant]: Yes, she is.
THE COURT: And so, I mean [juror 2] has already been a juror on a criminal case before.
[Appellant]: Right. How does that go to the genuineness of the explanation? THE COURT: Well, no. What the Court has to determine is based on all the circumstances surrounding the strike whether the explanation is not a pretext.
[Appellant]: I’m saying the most telling evidence that it’s not genuine is the fact that he accepted the two white jurors who told us that they had family members arrested, which he [sic] is the reason he is using to accuse ... excuse, rather, [juror 22], get rid of [juror 22], who is black and told us he had family members arrested.
THE COURT: But surrounding all the circumstances, and all the circumstances also establish he has ... some of his other peremptories were on individuals who were not black.
[Appellant]: That’s true.
THE COURT: Yet he did not exercise peremptories on two individuals who are black.
[Appellant]: That’s true too.
THE COURT: So, again, given all the circumstances, the question is ... I think the explanation is facially race neutral. I don’t see that that’s an issue at all. The question is is it a pretext.
THE COURT: Here you’re talking about an individual who has two brothers and a sister, all who have been arrested. And so he has ... the State has not exercised peremptories on two other black jurors and has exercised peremp-tories on several non-black jurors. So given all the circumstances surrounding the strike, I am going to find the explanation is not pretext. So I am going to go ahead and sustain the strike.

Before the jury was sworn, appellant renewed his objection to the strike of juror 22. Jurors 2, 5, 9, and 15 served on the jury. Appellant was subsequently convicted of armed trespass of a structure and improper exhibition of a dangerous weapon, for his conduct in entering the courthouse through the exit door with a firearm.

We review a trial court’s ruling in allowing the peremptory strike of a juror, where the strike has been alleged to have been exercised in a discriminatory manner, under a “clearly erroneous” standard. Cobb v. State, 825 So.2d 1080, 1086 (Fla. 4th DCA 2002). “The proper test under Melbourne requires the trial court’s decision on the ultimate issue of pretext to turn on a judicial assessment of the credibility of the proffered reasons and the attorney or party proffering them.... ” Hayes v. State, 94 So.3d 452, 462 (Fla.2012). “[Peremptory challenges are presumed to be exercised in a nondiscriminatory manner.” Cook v. State, 104 So.3d 1187, 1189 (Fla. 4th DCA 2012) (citation omitted).

In Melbourne v. State, 679 So.2d 759 (Fla.1996), the Florida Supreme Court set forth a three step procedure to be followed where a party objects to the assertion of a peremptory challenge on the grounds that the peremptory challenge is made on a discriminatory basis:

A party objecting to the other side’s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.
At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3). The court’s focus in step 3 is not on the reasonableness of the explanation but rather its genuineness. Throughout this process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination.

Id. at 764 (footnotes omitted). In determining whether the proffered reason for the strike is genuine under step 3, relevant circumstances for the trial court to consider include “the racial make-up of the veni-re; prior strikes exercised against the same racial group; a strike based on a reason equally applicable to an unchallenged juror; or singling the juror out for special treatment.” Wimberly v. State, 118 So.3d 816 (Fla. 4th DCA May 23, 2012) (citation omitted). When performing step 3, a trial court need not “recite a perfect script or incant specific words,” however, the trial court must “weigh[ ] the genuineness of a reason just as it would any other disputed fact.” Hayes, 94 So.3d at 463 (citation omitted).

“Florida courts have repeatedly held that it is racially discriminatory to exercise a peremptory challenge against a prospective juror in the minority where the proffered reason applies equally to a prospective juror in the majority.” Smith v. State, 799 So.2d 421, 424 (Fla. 5th DCA 2001).

For example, in Nowell v. State, 998 So.2d 597 (Fla.2008), the state sought to strike a Hispanic juror, in part because the juror was young and appeared to be of a similar age to the defendant. The supreme court found that age could be a legitimate race-neutral reason for a peremptory challenge, but nevertheless found that the trial court erred in accepting the “age-based justification” as genuine, because the state’s proffered reason was also “clearly applicable” to a “similarly aged white male whom the State failed to challenge.” Id. at 605. See also Wallace v. State, 889 So.2d 928, 930 (Fla. 4th DCA 2004) (concluding trial court abused its discretion in accepting state’s explanation that African-American juror worked for a law firm, where state never challenged a white lawyer); Foster v. State, 732 So.2d 22, 24 (Fla. 4th DCA 1999) (finding state’s asserted reason of prior arrests of immediate family members for strikes of African-American jurors was not genuine, where challenge “was equally applicable to non-black jurors who were not challenged”); Brown v. State, 733 So.2d 1128 (Fla. 4th DCA 1999); Richardson v. State, 575 So.2d 294 (Fla. 4th DCA 1991); Mitchell v. State, 548 So.2d 823 (Fla. 1st DCA 1989).

In this case, we find the trial court’s finding of genuineness as to the state’s proffered reason for its strike of juror 22 to be clearly erroneous. Juror 2 had a brother who had been arrested for drugs, and her father had been arrested for an unknown offense. Juror 9 had a stepbrother who had been arrested for drugs. Juror 22 had a brother who had also been arrested for drugs, and his sister and father had been arrested for unknown offenses. Therefore, we find that jurors 2, 9, and 22 were similarly situated such that the state’s explanation for striking juror 22, an African-American, was equally applicable to white jurors 2 and 9.

In finding the state’s proffered reason for its challenge to juror 22 to be genuine, the trial court did not distinguish between juror 22 and jurors 2 and 9. The trial court focused on the facts that the state had previously stricken non-African-American jurors, and that two African-American jurors remained on the jury panel. The trial court determined the genuineness of the strike based solely on these grounds. This was error. In Wallace, this court rejected “the state’s argument that the prosecutor’s use of a peremptory challenge was not pretextual in light of the fact that the prosecution had already accepted ... a black juror[ ] to sit on the panel.” 889 So.2d at 930. Relying on Abshire v. State, 642 So.2d 542, 544 (Fla.1994), this court found:

[T]he Florida Supreme Court specifically rejected the notion that all members of a protected class have to be struck in order for reversible error to occur. In [Abshire ], the supreme court stated that the fact women were seated on the jury is “of no moment,” because neither number alone nor the fact that a member of a minority has been seated is dispositive.

Wallace, 889 So.2d at 930-31; see also State v. Slappy, 522 So.2d 18, 24 (Fla.1988) (affirming grant of new trial “even though the final jury panel apparently contained one black”), receded from on other grounds by Melbourne, 679 So.2d at 765. Further, “[wjhether the state struck whites as well as blacks is irrelevant under the Batson[ ] analysis. The question is whether, in the case of any individual juror, the reason for the strike was purposeful discrimination.” Bellamy v. Crosby, 31 So.3d 895, 900 (Fla. 1st DCA 2010).

For these reasons, we reverse appellant’s convictions and sentences and remand for a new trial. In light of our decision, we decline to address whether the trial court erred in denying appellant’s motion for judgment of acquittal on the armed trespass count.

Reversed and remanded.

FORST, J., and KLINGENSMITH, JJ., concur.

      . Although the state also stated that juror 22 was "very quiet," we are unable to affirm the finding of genuineness based on this proffered reason. Assuming, without deciding, that the state was in fact asserting juror 22's quietness as an explanation for the strike, the trial court did not consider the genuineness of that explanation, as required by step 3 of Melbourne. See generally Hayes, 94 So.3d at 461 (stating that in determining whether explanation for the strike "is a pretext ‘given all the circumstances surrounding the strike,’ " that "the focus of this inquiry” is "the genuineness of the explanation”) (citation omitted).

      . Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (setting forth procedure for determining whether purposeful discrimination is shown in the use of peremptory challenges).


author: SINGHAL, RAAG, Associate Judge.

text:
    S2 GLOBAL, INC., Rapiscan Systems, Inc., and S2 Services Puerto Rico, LLC, Appellants, v. TACTICAL OPERATIONAL SUPPORT SERVICES, LLC, and Tactical Operational Support Services Puerto Rico, LLC, Appellees.
    No. 4D12-2662.
    District Court of Appeal of Florida, Fourth District.
    Sept. 4, 2013.

      John R. Hamilton of Foley & Lardner LLP, Orlando, for appellants.
    Jeffrey Harrington of Harrington Law Associates, PLLC, West Palm Beach, for appellees.
   SINGHAL, RAAG, Associate Judge.

S2 Global, Inc., Rapiscan Systems, Inc., and S2 Services Puerto Rico, LLC (appellants) challenge the trial court’s order granting Tactical Operational Support Services, LLC, and Tactical Operational Support Services, Puerto Rico, LLC’s (ap-pellees) motion to dismiss for forum non conveniens. We reverse the dismissal of the case because appellees’ motion to dismiss, brought outside the sixty day time limitation set forth in Florida Rule of Civil Procedure 1.061(g), was untimely and the late filing was not due to excusable neglect.

Factual Background

Appellants filed suit in Palm Beach County, Florida on May 7, 2010, seeking a declaratory judgment regarding obligations under a teaming agreement between the parties, and damages for fraud in the inducement as to this agreement. Appellees were served with the complaint by June 11, 2010, which was shortly after they had provided appellants with an un-filed complaint, which appellees were intending to file in the United States District Court for the District of Puerto Rico, outlining disagreements between the parties. Thus, by the time appellees had been served with appellants’ complaint, the parties knew the issues related to facts in both Florida and Puerto Rico.

The parties litigated their cases by engaging in discovery and filing motions. The trial court conducted hearings and entered orders. On January 17, 2012, ap-pellees filed suit against appellants in Puerto Rico. That suit included a cause of action based on Puerto Rico’s Sales Representatives Act (Law 21) and related to the events in this Florida case. Notably, on March 5, 2012, which was within sixty days of the filing of the suit, the Puerto Rican court dismissed the appellees’ suit without prejudice.

Only after the dismissal in Puerto Rico did appellees seek to dismiss the Florida cause of action because of forum non con-veniens. Appellees sought dismissal under Florida Rule of Civil Procedure 1.061, which codifies the forum non conveniens doctrine. Recognizing the untimeliness of the motion, appellees argued excusable neglect. To support this argument, appel-lees attached an affidavit to the motion which contained numerous numbered paragraphs. Only one of those paragraphs seemed to address excusable neglect and it read as follows:

16. At the time of filing the Puerto Rico action, Defendants believed its claims under law 21 and for restitution were not before this court as part of Plaintiff’s action. For that reason, and upon advice of counsel, Defendants decided to bunging [sic] separate suit in Puerto Rico.

(emphasis added).

When appellees served their “Motion to Dismiss, Transfer, or Define Scope of Action,” which forms the basis for this appeal, on May 4, 2012, the Florida case was nearly two years old. The trial court held a hearing on the motion during which the parties presented only legal argument. Appellees’ main argument was that the Puerto Rican court’s decision ostensibly dismissing their case without prejudice in effect caused excusable neglect. Appellants argued that the motion was untimely and that while there may have been mistake or ignorance of counsel, there was not excusable neglect. The trial court ultimately entered a written order granting appellees’ motion, finding it was untimely but as a result of excusable neglect, and further finding that the Kinney factors favored dismissal. This appeal followed.

Analysis

The standard of review regarding a trial court’s decision to dismiss a case under the doctrine of forum non conve-niens is abuse of discretion. Ira Mex, Inc. v. Se. Interior Constr., Inc., 777 So.2d 1107, 1108 (Fla. 4th DCA 2001). This standard of review would apply so long as the prevailing party complied with the requirements delineated in Florida Rule of Civil Procedure 1.061, which codifies the forum non conveniens doctrine. Where the question concerns a trial court’s interpretation of the Florida Rules of Civil Procedure, however, that question is one of pure law and is reviewed de novo. R.T.G. Furniture Corp. v. Coates, 93 So.3d 1151, 1153 (Fla. 4th DCA 2012).

Timeliness of Appellees’ motion.

Florida Rule of Civil Procedure 1.061 sets forth grounds for dismissal of a cause of action because of forum non con-veniens. This rule was adopted by the Florida Supreme Court in Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86, 93 n. 6, 94-95 (Fla.1996), and provides a four part analysis regarding dismissal CKinney factors) as follows:

(a) Grounds for Dismissal. An action may be dismissed on the ground that a satisfactory remedy may be more conveniently sought in a jurisdiction other than Florida when:
(1) the trial court finds that an adequate alternate forum exists which possesses jurisdiction over the whole case, including all of the parties;
(2) the trial court finds that all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice;
(3) if the balance of private interests is at or near equipoise, the court further finds that factors of public interest tip the balance in favor of trial in the alternate forum; and
(4) the trial judge ensures that plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice.
The decision to grant or deny the motion for dismissal rests in the sound discretion of the trial court, subject to review for abuse of discretion.

Fla. R. Civ. P. 1.061(a).

Additionally, Rule 1.061 sets a specific time frame within which a defendant must move to dismiss a complaint for forum non conveniens:

(g) Time for Moving for Dismissal. A motion to dismiss based on forum non conveniens shall be served not later than 60 days after service of process on the moving party.

Fla. R. Civ. P. 1.061(g).

In this case, the appellants filed their complaint on May 7, 2010, and the appellees were served by June 11, 2010. The appellees, however, did not serve their Rule 1.061 motion to dismiss until May 4, 2012, more than twenty months outside the time allowed by Rule 1.061(g). It is clear that motions to dismiss filed pursuant to Rule 1.061 “shall be served not later than 60 days after service of process on the moving party.” Fla. R. Civ. P. 1.061(g) (emphasis added). The language as written in the rule is unambiguous. “It is well settled that the Florida Rules of Civil Procedure are construed in accordance with the principles of statutory construction.” Saia Motor Freight Line, Inc., v. Reid, 930 So.2d 598, 599 (Fla.2006). Rules of statutory interpretation and construction do not come into play, however, when the language at issue is clear and unambiguous and conveys a clear and definite meaning. R.T.G. Furniture Corp., 93 So.3d at 1153. Here, the plain meaning of the rule warranted denial of the dismissal motion as untimely. Only upon a showing of excusable neglect could the motion have been granted.

Whether Appellees showed excusable neglect for their untimely motion.

In supporting the preference that cases are to be decided on their merits, we have allowed relief from time limitations in cases where a party has established excusable neglect. The factors giving rise to a finding of excusable neglect typically have been administrative mishandling, secretarial errors, and calendaring issues. See, e.g., Giron v. Fairways of Sunrise Homeowners’ Ass’n, 903 So.2d 1008 (Fla. 4th DCA 2005) (citing numerous cases finding excusable neglect). The Florida Rules of Civil Procedure set forth a mechanism for seeking relief in such situations. Specifically, Florida Rule of Civil Procedure 1.090(b) provides:

(b) Enlargement. When an act is required or allowed to be done at or within a specified time by order of court, by these rules, or by notice given thereunder, for cause shown the court at any time in its discretion (1) with or without notice, may order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made and notice after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect, but it may not extend the time for making a motion for new trial, for rehearing, or to alter or amend a judgment; making a motion for relief from a judgment under rule 1.540(b); taking an appeal or filing a petition for certiorari; or making a motion for a directed verdict.

Fla. R. Civ. P. 1.090(b).

The plain meaning of this rule allows the trial court to consider whether excusable neglect applies in the forum non conve-niens context, as motions under Rule 1.061 are not specifically excluded by Rule 1.091(b)(2). The trial court relied on ap-pellees’ affidavit in support of a finding of excusable neglect, stating: “Defendants in this case did actually assert their claim, based on Puerto Rican Law 21 in the Puerto Rican Court, and have continued to insist that their position in the lawsuit is wholly based on Puerto Rican Law 21, which Defendants correctly assert has no counterpart in Florida Law.” Accordingly, the court found appellees had established excusable neglect, and granted their motion to dismiss.

While appellees did actually assert their claim in a court in Puerto Rico as the trial judge found, they did not assert the claim until January 2012, more than twenty months after the appellants brought the Florida case. The court in Puerto Rico, in fact, dismissed the claim within sixty days of its filing. The appellees could have filed the Puerto Rico case at the same time the Florida case was filed, along with a timely motion to dismiss pursuant to Rule 1.061. The appellees’ proffered reasons for the lengthy delay in moving to dismiss the Florida case do not deal with calendaring, secretarial, or administrative errors. Ap-pellees did not inadvertently miss court dates. Rather, appellees’ counsel had a good grasp of the issues involving his clients, and made strategic decisions to handle the case a certain way. Reconsideration of tactical decisions and judgment calls does not constitute a basis for finding excusable neglect. Geer v. Jacobsen, 880 So.2d 717, 720-21 (Fla. 2d DCA 2004). We find the trial court abused its discretion in finding excusable neglect in this case.

Conclusion

Based upon the clear and unambiguous language in Florida Rule of Civil Procedure 1.061(g) setting forth a sixty day time limit from the date of service within which forum non conveniens dismissal motions must be brought, we conclude appellees untimely raised their motion to dismiss. Further, we find appellees failed to establish excusable neglect as the reason for the untimely filing. Accordingly, the trial court abused its discretion when it granted appellees’ motion to dismiss. We therefore reverse the order of dismissal, and remand for further proceedings consistent with this opinion.

Reversed and remanded.

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

      . Kinney Sys., Inc. v. Cont'l Ins. Co., 674 So.2d 86 (Fla.1996).