text:
    FI-EVERGREEN WOODS, LLC, Airamid Health Management N/K/A Airamid Health Services, LLC, Themis Health Management, LLC and Debra Howe, Appellants, v. May L. ROBINSON, Appellee.
    No. 5D12-1742.
    District Court of Appeal of Florida, Fifth District.
    Oct. 4, 2013.

      Amy L. Christiansen of Spector Gadon & Rosen, LLP, St. Petersburg, for Appellants.
    Isaac R. Ruiz-Carus and Lydia D. War-dell of Wilkes & McHugh, P.A., Tampa, for Appellee.

      . Parol evidence can include “a verbal agreement or other extrinsic evidence where such agreement was made before or at the time of the instrument in question.” Duval Motors Co. v. Rogers, 73 So.3d 261, 265 (Fla. 1st DCA 2011) (quoting J.M. Montgomery Roofing Co. v. Fred Howland, Inc., 98 So.2d 484, 485 (Fla. 1957)).

   WALLIS, J.

Fi-Evergreen Woods, LLC (“Fi-Evergreen”), Themis Health Management, LLC (“Themis Health”), and Airamid Health Management, LLC n/k/a Airamid Health Services, LLC (“Airamid Health”), appeal an order denying their respective motions to compel arbitration. Debra Howe also appeals the order; however, the lower court did not rule on her motion in its order. We, therefore, do not have jurisdiction to consider her appeal. We have jurisdiction to consider the remaining arguments of Fi-Evergreen, Themis Health, and Airamid Health (“Appellants”). Because a substantial issue was raised as to the making of the arbitration agreement, we reverse and remand for the lower court to conduct an evidentiary hearing.

T.C. Robinson (“Husband”) admitted his wife, May Robinson (“Resident”), to a nursing home after she fractured her left hip. In her complaint, Resident alleged that she resided at the nursing home from February 16, 2011, to March 28, 2011, and from April 4, 2011, to May 4, 2011. She alleged that, while in the care of the nursing home, she fractured her right hip and suffered other medical complications due to Appellants’ negligence. Resident also alleged that Appellants breached a fiduciary duty by accepting payments and not providing appropriate care. Finally, Resident sought to recover under the Adult Protective Services Act, section 415.1111, Florida Statutes (2011), under which she alleged that she was a vulnerable adult with a long-term disability who did not have capacity to consent.

The same counsel represented Debra Howe and Appellants. However, for each appellant, counsel filed separate motions and amended motions to stay and demand for arbitration, despite the language being substantially similar. Fi-Evergreen filed its Motion to Compel Arbitration on January 24, 2012. Themis Health and Airamid Health filed a joint Motion to Stay and Demand for Arbitration on January 24, 2012. Debra Howe did not file a motion to compel arbitration in January 2012.

On February 10, 2012, Resident filed her Memorandum in Opposition to Defendants’ Arbitration Motions and Request for Hearing, arguing she was entitled to a presumption of competence, despite alleging in her complaint that she had a long-term disability and was without the capacity to consent. On February 20, 2012, Fi-Ever-green, Themis Health, and Airamid Health filed amended motions to compel. Also, on February 20, 2012, Debra Howe filed an initial Motion to Stay and Demand for Arbitration.

In the arbitration agreement attached to the motions and amended motions to compel arbitration, Husband signed the agreement and indicated his relationship to Resident as “Husband.” Resident’s name does not appear on the agreement. Husband did not complete the portion of the agreement that asked him to describe his authority to sign on behalf of Resident. Husband failed to indicate in the agreement whether he had documentation of power of attorney, legal guardianship, authorization from the Resident, or none of the above.

On April 9, 2012, the lower court entered an order denying (1) Fi-Evergreen’s Motion to Compel Arbitration and (2) Themis Health and Airamid Health’s joint Motion to Stay and Demand for Arbitration. The lower court did not rule on Appellants’ amended motions or Debra Howe’s initial motion. The lower court found that the arbitration agreement on its face was wholly lacking and, thus, unenforceable because Husband had not indicated on the agreement his authority to sign on Resident’s behalf.

We review de novo an order denying a motion to compel arbitration. Hubbard Constr. Co. v. Jacobs Civil, Inc., 969 So.2d 1069, 1072 (Fla. 5th DCA 2007) (citing Avid Eng’g, Inc. v. Orlando Marketplace, Ltd., 809 So.2d 1 (Fla. 5th DCA 2001)).

Courts consider three elements under the Florida Arbitration Act and federal statutory provisions when ruling on a motion to compel arbitration: “(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999) (quoting Terminix Int’l Co. v. Ponzio, 693 So.2d 104, 106 (Fla. 5th DCA 1997)). The present case implicates only the first element— whether a valid written agreement to arbitrate exists. The applicable provision of the Florida Arbitration Act at issue in the present case provides:

(1) A party to an agreement or provision for arbitration subject to this law claiming the neglect or refusal of another party thereto to comply therewith may make application to the court for an order directing the parties to proceed with arbitration in accordance with the terms thereof. If the court is satisfied that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine the issue and, according to its determination, shall grant or deny the application.

§ 682.03(1), Fla. Stat. (2012) (emphasis added). We have previously indicated that “[t]he clear wording of [section 682.03(1) ] requires the trial court to conduct a hearing on a party’s motion to compel when there is a ‘substantial issue’ regarding the making of the arbitration agreement.” Crystal Motor Car Co. of Hernando, LLC v. Bailey, 24 So.3d 789, 791 (Fla. 5th DCA 2009) (reversing and remanding after the trial court expressly found a factual issue without first conducting an evidentiary hearing); see also Tandem Health Care Of St. Petersburg, Inc. v. Whitney, 897 So.2d 531, 532 (Fla. 2d DCA 2005) (“[T]he statutory requirement that the court ‘shall summarily hear and determine the issue’ contemplates an expedited evidentiary hearing.” (citing Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, 425 So.2d 127, 129 (Fla. 4th DCA 1982))). Furthermore, “[t]he statutory directives are mandatory in nature.” Tandem Health Care, 897 So.2d at 532 (citing Acumen Constr., Inc. v. Neher, 616 So.2d 98, 99 (Fla. 2d DCA 1993)). Thus, if the existence of a valid arbitration agreement turns on the resolution of factual issues, the lower court must conduct an expedited evidentiary hearing. Id. at 533.

A failure to sign an arbitration agreement does not automatically render the agreement invalid. Santos v. Gen. Dynamics Aviation Servs. Corp., 984 So.2d 658, 660 (Fla. 4th DCA 2008) (noting that Florida Arbitration Act does not require a written arbitration agreement to be signed to be enforceable). Unlike documents that fall within the statute of frauds, section 725.01, Florida Statutes (2011), the Florida Arbitration Act, section 682.02, Florida Statutes (2012), does not require the party to be charged to sign an arbitration agreement. H.W. Gay Enters., Inc. v. John Hall Elec. Contracting, Inc., 792 So.2d 580, 581 (Fla. 4th DCA 2001) (holding that by their words and conduct, the parties assented to the terms of the contract — an arbitration clause — which did not require a signature). The lower court’s determination — the agreement was wholly unenforceable on its face because only Husband signed without indicating the authority to do so — was error.

In the absence of a signature, the courts look to a party’s words and conduct to determine whether the party assented to the agreement. Id. An exception to the general rule that only parties to an arbitration agreement can be compelled to arbitrate exists “when the signatory of the arbitration agreement is authorized to act as the agent of the person sought to be bound, and ‘[n]on-signatories may be bound by an arbitration agreement if dictated by ordinary principles of contract law and agency.’ ” Stalley v. Transitional Hosps. Corp. of Tampa, Inc., 44 So.3d 627, 629-30 (Fla. 2d DCA 2010) (quoting Martha A. Gottfried, Inc. v. Paulette Koch Real Estate, 778 So.2d 1089, 1090 (Fla. 4th DCA 2001)). “An agency relationship can arise by written consent, oral consent, or by implication from the conduct of the parties.” Stalley, 44 So.3d at 630 (citing Thomkin Corp. v. Miller, 156 Fla. 388, 24 So.2d 48, 49 (1945)).

The lower court should have considered parol evidence at an evidentia-ry hearing. Typically, the parol evidence rule provides that evidence outside the contract language “may be considered only when the contract language contains a latent ambiguity.” Duval Motors Co., 73 So.3d at 265 (citing Wheeler v. Wheeler, Erwin & Fountain, P.A., 964 So.2d 745, 749 (Fla. 1st DCA 2007)). “[W]hen a contract is rendered ambiguous by some collateral matter, it has a latent ambiguity, and the court must hear parol evidence to interpret the writing properly.” MacGray Servs., Inc. v. Savannah Assocs. of Sarasota, LLC, 915 So.2d 657, 659 (Fla. 2d DCA 2005) (quoting RX Solutions, Inc. v. Express Pharmacy Servs., Inc., 746 So.2d 475, 476 (Fla. 2d DCA 1999)). Usually, a court may not resolve a patent ambiguity — an ambiguity appearing on the face of the document — by consideration of parol evidence. MacGray Servs., Inc., 915 So.2d at 659 (citing Crown Mgmt. Corp. v. Goodman, 452 So.2d 49, 52 (Fla. 2d DCA 1984); Landis v. Mears, 329 So.2d 323, 325-26 (Fla. 2d DCA 1976)).

However, courts allow parol evidence regarding identity, capacity, and the parties’ relationship with one another even when the ambiguity exists on the face of the document because the court would not be rewriting the terms of the contract. Landis, 329 So.2d at 326 (stating that when “the ambiguity is patent, to admit evidence would be improper since it would, in effect, allow the court to rewrite the contract for the parties by supplying information the parties themselves did not choose to include,” but “that distinction is not relevant here since the court was only interested in determining the capacity of the parties who entered the agreement rather than in varying or supplying any terms to the agreement”). The lower court should permit Appellants to present parol evidence addressing the patent ambiguity regarding Husband’s capacity to sign the arbitration agreement and whether an agency relationship exists on the face of the document. Babul v. Golden Fuel, Inc., 990 So.2d 680, 683 (Fla. 2d DCA 2008) (holding that the ambiguity in the face of the contract concerning the identity of the parties and the relationship between a principal and an agent require that the defendant should be entitled to present parol evidence that they entered into this contract as agents for a corporate principal (citing Landis, 829 So.2d at 326; Producers Fertilizer Co. v. Holder, 208 So.2d 492, 494 (Fla. 2d DCA 1968))).

Accordingly, the lower court should have conducted an evidentiary hearing pursuant to section 682.03(1), Florida Statutes (2012), to resolve one of two factual issues: (1)whether Resident assented to the arbitration agreement in the absence of her signature; or (2) whether Husband had authority to sign on Resident’s behalf. Therefore, the trial court’s order denying Fi-Evergreen’s and Themis Health and Airamid Health’s motions to compel arbitration is reversed and remanded for further proceedings.

REVERSED and REMANDED.

GRIFFIN and PALMER, JJ., concur.

      . This Court has jurisdiction. Fla. R. App. P. 9.130(a)(3)(C)(iv).

      . To preserve an issue for appellate review, the appellant must have obtained, inter alia, a ruling in the lower tribunal. See Carratelli v. State, 832 So.2d 850, 856 (Fla. 4th DCA 2002). The lower court neither considered nor issued a ruling on Debra Howe's Motion to Compel Arbitration. This Court does not have jurisdiction to hear Debra Howe's appeal because there is not a non-final order from which she can appeal. Fla. R. App. P. 9.130(a)(3)(C)(iv) (including "the entitlement of a party to arbitration” as an appealable non-final order). The lower court's order clearly indicated the motions on which it ruled and, thus, the omission of Debra Howe appears not to be simply a scrivener’s error.

      . Resident’s name, May Robinson, does not appear on the agreement.

      . During the pendency of this appeal, the Florida Arbitration Act was extensively revised and is now known as the Revised Florida Arbitration Act. Ch. 2013-232, § 8, Laws of Fla. (eff. July 1, 2013). The plain language of section 682.03 no longer contains the term “hear.” Compare § 682.03(1), Fla. Stat. (2012) ("[The court] shall summarily hear and determine the issue ....”), with § 682.03(l)(b), Fla. Stat. (2013) ("[T]he court shall proceed summarily to decide the issue....”). The Legislature's intent is clear that the Revised Florida Arbitration Act applies prospectively. See § 682.013(3), Fla. Stat. (2013) ("The Revised Florida Arbitration Code does not affect an action or proceeding commenced or right accrued before July 1, 2013.”). Therefore, in this appeal, we follow the pre-2013 version of section 682.03, which contained the term "hear” and was in effect when this suit was initiated. We do not reach the issue of whether the omission of the term "hear" in section 682.03, Florida Statutes (2013), obviates the requirement of an eviden-tiary hearing.


source: Caselaw Access Project

author: PER CURIAM. SCHUMANN, B.B., Associate Judge,

license: Public Domain

text:
    Jared BRETHERICK, Appellant, v. STATE Of Florida, Appellee.
    No. 5D12-3840.
    District Court of Appeal of Florida, Fifth District.
    Nov. 1, 2013.

      Eric J. Friday, of Fletcher & Phillips, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Perceiving a threat from another driver completely stopped in the lane ahead of him on a busy highway, Jared Bretherick [“the Defendant”] pointed a firearm at the driver and held him at gunpoint. As a result of this action, he was charged with aggravated assault. After an evidentiary hearing, the trial court denied his pretrial motion to dismiss based on Florida’s self-defense immunity statute, commonly called the “Stand Your Ground” law. The issues in this case are, first, whether the Defendant has the right of review before trial of the denial of his motion by petition for writ of prohibition; second, whether the burden of proof at the evidentiary hearing on the motion to dismiss was properly placed on the Defendant to prove entitlement to immunity; and finally, assuming the Defendant bears the burden of production and persuasion, whether that burden was met in this case.

The standard of review requires that the trial court’s findings of fact must be supported by competent, substantial evidence, while the conclusions of law are subject to de novo review. Mederos v. State, 102 So.3d 7, 11 (Fla. 1st DCA 2012). Although there was some conflicting testimony presented below, the trial court made specific findings of fact based on credibility determinations that establish the following facts in this case.

On December 29, 2011, the Bretherick family was on vacation in Central Florida, driving toward Downtown Disney, on a heavily travelled, six-lane divided road in Osceola County. Ronald Bretherick, the father, was driving in the middle lane westbound when, in his rearview mirror, he saw a blue truck rapidly approaching them. The truck almost side-swiped them as it passed in the right lane. As the truck passed the Brethericks, the driver, Derek Dunning, “stared at them in a threatening manner,” but made no statements or gestures.

Dunning’s truck cut in front of the Bretherick vehicle in the middle lane, slammed on the brakes, and came to a complete stop. There was no traffic or other impediment that required this action. Ronald Bretherick also stopped his vehicle, one to two car lengths behind Dunning’s truck. Dunning got out of his truck and walked toward the Bretherick vehicle. He was unarmed. Without exiting, Ronald Bretherick held up a holstered handgun, and Dunning returned to his truck without uttering a word.

After Dunning got back into his truck, the Defendant, Ronald’s adult son, got out of the rear passenger’s seat. He approached the driver’s side of Dunning’s truck within a few feet of the driver, while pointing the handgun at Dunning. The Defendant told Dunning to move his truck or he would be shot. Dunning misunderstood, and believed that the Defendant told him that if he moved, he would be shot. This slight but critical misunderstanding explains everyone’s subsequent actions.

The Defendant returned to his own vehicle and took up various positions, continuing to point the gun at Dunning. The Brethericks, Dunning, and several passersby all called 911. The Defendant’s mother and sister exited their vehicle and took refuge in a ditch on the north side of the road. The Defendant told his family that Dunning said he had a gun, but no one saw Dunning with a weapon, and the trial court found this not to be credible. At some point, Dunning’s truck rolled back twelve to eighteen inches toward the Brethericks’ vehicle. The police arrived and diffused the volatile encounter.

As a result of this incident, the Defendant was charged with one count of aggravated assault with a firearm in violation of sections 784.021(l)(a) and 775.087(2), Florida Statutes (2011). On April 3, 2012, the Defendant filed a motion to dismiss, alleging immunity from prosecution, pursuant to section 776.032, Florida Statutes (2011). After an evidentiary hearing, the trial court denied the motion to dismiss, and the Defendant sought review.

A threshold issue is whether the denial of this pretrial motion is subject to review at this time. The First, Second, and Fourth District Courts of Appeal have held that a petition for writ of prohibition is the appropriate method for obtaining review before trial of the denial of a motion to dismiss under the self-defense immunity statute. See Little v. State, 111 So.3d 214, 216 (Fla. 2d DCA 2013); Mederos, 102 So.3d 7; Joseph v. State, 103 So.3d 227 (Fla. 4th DCA 2012). Non-final orders in criminal cases that challenge the authority of the trial court’s jurisdiction are traditionally subject to review by petition for writ of prohibition. In Joseph, the Fourth District determined that a writ of prohibition was the appropriate method for obtaining immediate review of a trial court’s denial of a claim of self-defense immunity based on the Florida Supreme Court’s decision in Tsavaris v. Scruggs, 360 So.2d 745 (Fla.1977), which employed this remedy to review the denial of a pretrial claim of immunity from prosecution. In light of the decisions in the First, Second and Fourth District Courts, we agree that the appropriate vehicle to obtain review before trial of the denial of a “Stand Your Ground” motion invoking self-defense immunity is by petition for writ of prohibition.

Next, the Defendant argues that the trial court improperly placed the burden of proof on him to prove his entitlement to immunity. He acknowledges that the Florida Supreme Court’s decision in Dennis v. State, 51 So.3d 456 (Fla.2010), supports the State’s contention that he bears the burden of proving his entitlement to self-defense immunity by the preponderance of evidence.

In Dennis, the Florida Supreme Court held that where a criminal defendant files a motion to dismiss, on the basis of the “Stand Your Ground” statute, which relates to justified use of force, the trial court should conduct a pretrial evidentiary hearing and decide the factual question of the applicability of the statutory immunity. In reaching this conclusion, the Court rejected the State’s argument that a motion to dismiss based on statutory immunity is properly denied when there are disputed issues of material fact. Significantly, the Dennis court expressly approved the procedure set forth in Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008), for ruling on motions to dismiss, filed pursuant to section 776.032. Dennis, 51 So.3d at 463 (“In summary, we conclude that the procedure set out by the First District in Peterson best effectuates the intent of the Legislature .... ”). The approved procedure placed the burden of proof at the pretrial evidentiary hearing on the defendant:

“[W]e hold that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.”

Dennis, 51 So.3d at 460 (quoting Peterson, 983 So.2d at 29). (Emphasis added).

Nevertheless, the Defendant argues that this ruling fails to appropriately apply the plain meaning of the statute. “Placing the burden on a person who acted in self defense, after they have been charged makes the immunity granted largely illusory, and fails to give effect to each word in the statute.” We are bound by Dennis and, accordingly, we reject this argument and find that the trial court properly placed the burden of proof on the Defendant.

At the hearing below, the Defendant contended that he was justified in using force to defend himself and his family against Dunning’s imminent use of unlawful force, which he alleged to be the forcible felony of false imprisonment. However, based on the trial court’s findings of fact, which are supported by competent, substantial evidence, we conclude that the motion to dismiss was properly denied.

A person is justified in using deadly force when he or she reasonably believes such force is necessary to prevent imminent death or great bodily harm to him or herself or another, or to prevent the imminent commission of a forcible felony. § 776.012, Fla. Stat. (2011). False imprisonment is defined as “forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.” § 787.02(l)(a), Fla. Stat. (2011).

The trial court correctly found that Dunning’s actions did not rise to the level of false imprisonment, aggravated assault, or any other forcible felony, and therefore, the Defendant could not justify his use of force on this basis. No one saw Dunning with a gun. Dunning retreated to his vehicle when Ronald Bretherick held up a holstered weapon. The trial court also properly determined that there was no longer an imminent threat and that the Defendant’s subjective fear at that point was objectively unreasonable.

There was at least one car length between Dunning’s vehicle and the Breth-ericks’ vehicle. When Dunning’s truck rolled back not more than eighteen inches, that action standing alone did not constitute the act of false imprisonment as the Defendant contends. Notably, the Defendant’s mother and sister exited the vehicle and took refuge nearby. Several other cars passed by in the two lanes on either side of the middle lane where the Dunning and Bretherick vehicles sat. It was not reasonable for the Defendant to believe that it was necessary for him to approach Dunning’s truck with a gun drawn in order to defend himself or his family.

As noted by the trial court, there was conflicting testimony presented at the hearing on the motion to dismiss. The issue of who bears the burden of proof may well be significant where the case is an extremely close one, or where only limited evidence is presented for the trial court’s consideration. Because, as observed in Judge Schumann’s thoughtful-concurring opinion, the burden of proof issue was not the primary focus of the Dennis opinion, we certify the following question for consideration by the Florida Supreme Court:

ONCE THE DEFENSE SATISFIES THE INITIAL BURDEN OF RAISING THE ISSUE, DOES THE STATE HAVE THE BURDEN OF DISPROVING A DEFENDANT’S ENTITLEMENT TO SELF-DEFENSE IMMUNITY AT A PRETRIAL HEARING AS IT DOES AT TRIAL?
AFFIRMED.
QUESTION CERTIFIED.

SAWAYA and EVANDER, JJ., concur.

SCHUMANN, B.B., Associate Judge, concurs and concurs specially, with opinion.

SCHUMANN, B.B., Associate Judge,

concurring specially.

If I were writing on a clean slate, I would find that the trial court erred in placing the burden of proof at the pretrial hearing on the Defendant.

Section 776.032(1), Florida Statutes (2011), provides that when a person uses force as permitted by statute, he or she is “immune from criminal prosecution and civil action for the use of such force” unless the person is a law enforcement officer acting in the performance of his or her duties. “As used in this subsection, the term ‘criminal prosecution’ includes arresting, detaining in custody, and charging or prosecuting the defendant.”

In Dennis, the issue was whether the trial court should conduct an evidentiary hearing when a defendant claims self-defense immunity, or instead, whether the State could simply file a traverse disputing a material fact, and avoid a pretrial eviden-tiary hearing. The Supreme Court disapproved the Fourth District’s reasoning in Dennis v. State, 17 So.3d 305 (Fla. 4th DCA 2009), which followed the 3.190(c)(4) procedure, and instead approved the approach advanced by the First District in Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008).

In Peterson, the First District reviewed the self-defense immunity statute, and addressed the absence of procedures for implementation. For guidance, the Peterson court turned to a decision from Colorado, People v. Guenther, 740 P.2d 971 (Colo.1987). In that case, the court decided that a Colorado statute providing immunity from prosecution for burglary of a dwelling was an extraordinary protection, and so it was reasonable to require the defendant to prove his entitlement to immunity from prosecution. The court noted that a criminal defendant usually bears the burden of establishing his or her entitlement to dismissal of criminal charges at the pretrial stage, and so it was appropriate to impose the same burden when the defendant claimed self-defense immunity. Relying on Guenther, the Peterson court held that it was the defendant’s burden to demonstrate how immunity attaches by a preponderance of evidence.

There are significant differences between Colorado’s statute and the self-defense immunity provided by section 776.032(1). Section 18-1-704.5(3) of the Colorado statute provides: “Any occupant of a dwelling using physical force, including deadly force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.” Colo. Rev. Stat. § 18-1-704.5(3). The Colorado statute applies only to home invasion burglaries and does not define immunity from criminal prosecution as beginning at arrest. It would appear that this is a far more limited immunity than is granted by section 776.032.

In approving the procedural holding of Peterson, the Florida Supreme Court determined that a pretrial evidentiary hearing was necessary to test whether the defendant’s use of force was legally justified and therefore immune from prosecution. The Court observed that a non-adversarial probable cause determination by a judge was already required once a criminal defendant was taken into custody, and so a probable cause standard argued by the State would render the self-defense immunity statute meaningless. “Accordingly, the grant of immunity from ‘criminal prosecution’ in section 776.032 must be interpreted in a manner that provides the defendant with more protection from prosecution for a justified use of force than the probable cause determination previously provided to the defendant by rule.” Dennis, 51 So.3d at 463.

Rejecting a probable cause standard in favor of a preponderance standard still does not answer the question of who bears the burden of production and persuasion. I agree that Dennis approved the procedure in Peterson, which placed the burden on the defendant, and that decision is binding in this case. However, the issue directly addressed in Dennis was whether an evidentiary hearing was required at all, not who bore the burden. The burden of proof issue is squarely raised here.

At least two other states with self-defense immunity laws which duplicated Florida’s statute have determined that the burden of proof should lie with the State in a pretrial evidentiary hearing. Rodgers v. Commonwealth, 285 S.W.3d 740 (Ky.2009); State v. Ultreras, 296 Kan. 828, 295 P.3d 1020 (2013). If this Court were reviewing this issue without the benefit of the Dennis decision, I would find more ¡persuasive these decisions from supreme courts in states other than Colorado, reviewing statutes nearly identical to Florida’s “Stand Your Ground” statute.

In Rodgers, the Kentucky Supreme Court determined that their legislature had clearly stated its intent to create an immunity from defending against criminal charges by defining “criminal prosecution” to include “charging or prosecuting” a defendant. 285 S.W.3d at 754; Ky. Rev. Stat. Ann. § 503.085(1). This meant that courts would be called upon to determine whether a defendant was entitled to self-defense immunity. The Kentucky Supreme Court concluded that a defendant should be able to invoke the immunity provision at the earliest stage of the proceeding because it was “designed to relieve a defendant from the burdens of litigation.” Rodgers, 285 S.W.3d at 755. The court held that once a defendant raises the issue of immunity, the State has the burden of proof to establish probable cause to proceed, which requires a determination that the use of force was not justified. Id. The State may satisfy this burden by “directing the court’s attention to the evidence of record including witness statements, investigative letters prepared by law enforcement officers, photographs and other documents of record.” Id.

The Kansas Supreme Court reached the same conclusion in Ultreras when it reviewed a statute that mirrors Florida’s statute. 295 P.3d at 1031; Kan. Stat. Ann. § 21-5231. They reasoned that granting immunity imposes a burden on law enforcement before arrest and on the prosecution before filing charges that indicates a legislative ■ intent to put the burden of proof on the State. By placing that burden on the defense, as a practical matter, a defendant could never obtain the benefit of immunity from arrest or initiation of charges.

Further, requiring the State to maintain the burden of production is consistent with the burden of production that applies when the issue of justified force is raised as a defense at trial.... Evidence of justification simply becomes a consideration in deciding whether the State has met that burden. To impose the burden on the defendant would carve one portion of the proceeding from the general requirement that the State carry the burden of production and that carving would result in a confusing situation of shifting burdens and is not justified by the provisions of the statute. Accordingly, we find that placing the burden with the State to negate a claim of immunity in establishing probable cause is the most reasonable interpretation.

Ultreras, 295 P.3d at 1031.

Placing the burden of proof on the State at the pretrial hearing on a motion to dismiss based on self-defense immunity gives meaning to the grant of immunity at the earliest stages of criminal proceedings, defined to include arrest, detention, filing of charges, and prosecution. This interpretation recognizes the distinction between an assertion of a broad grant of immunity from criminal prosecution and more prosaic pretrial pleadings. It avoids a confusing shift of the burden of proof from the defense in a pretrial hearing to the State at trial. If the State is unable to sustain its lesser burden of proof at a pretrial hearing, then it would be unable to prove its case beyond a reasonable doubt at trial.

In a close case, who bears the burden of proof by a preponderance standard may be dispositive. The victim here drove recklessly, nearly side-swiping the Brethericks’ vehicle. Then the victim slammed on the brakes and came to a complete stop directly in front of the Brethericks in the middle of a busy six-lane divided highway. The victim got out of his vehicle and walked back toward the Brethericks’ truck, then returned to his vehicle, folded the side mirrors in, and at one point, rolled back towards the Brethericks. The Defendant had a subjective fear of imminent death or great bodily harm to himself or his family. It may be that had the burden of proof been placed on the State instead of Breth-erick, the result in this case may have been different.

Kentucky and Kansas, states with statutes that were modeled directly on our “Stand Your Ground” law, have found that the burden of proof properly rests with the State at the pretrial stage to demonstrate that the use of force in self-defense was unjustified. This construction creates a better procedural vehicle to test the State’s case at the earliest possible stage of a criminal proceeding. Self-defense immunity statutes are designed to relieve a defendant from the burdens of criminal prosecution from arrest through trial. Placing the burden of proof on the State throughout each phase of criminal prosecution best fulfills the legislative intent to create a broad grant of immunity. Although I agree that we are bound by Dennis, in light of the reasoning and result reached in Rodgers and Ultreras, I fully concur in certifying the question to the Florida Supreme Court for resolution.

      . The issues raised in these decisions were not fully formed when the opinion issued in Gray v. State, 42 So.3d 341 (Fla. 5th DCA 2010). In that case, on direct appeal after conviction, the defendant renewed the issue raised previously on a petition for writ of certiorari in Gray v. State, 13 So.3d 114 (Fla. 5th DCA 2009). This Court held that the proper procedure was addressed in Peterson, which was ultimately affirmed by the Florida Supreme Court in Dennis, and which we follow here.

        . Section 776.032(1), Florida Statutes, provides:
      A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term "criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant. Kentucky’s statute section 503.085(1) states: A person who uses force as permitted in KRS 503.050, 503.055, 503.070, and 503.080 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom the force was used is a peace officer, as defined in KRS 446.010, who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law, or the person using force knew or reasonably should have known that the person was a peace officer. As used in this subsection, the term "criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

      . The Kansas statute, previously section 21-3219 and currently section 21-5231 provides:
      A person who uses force which, subject to the provisions of K.S.A. 21-5226, and amendments thereto, is justified pursuant to K.S.A. 21-5222, 21-5223 or 21-5225, and amendments thereto, is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer who was acting in the performance of such officer’s official duties and the officer identified the officer's self in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, “criminal prosecution” includes arrest, detention in custody and charging or prosecution of the defendant.


author: PALMER, J.

text:
    Kevin Wayne WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-167.
    District Court of Appeal of Florida, Fifth District.
    Nov. 1, 2013.

      Kevin Wayne White, DeFuniak Springs, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Kevin Wayne White (defendant) appeals the trial court’s order summarily denying his amended motion for post-conviction relief, filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. Determining that the trial court erred in denying one of the grounds raised, we affirm in part and reverse in part.

The defendant pled guilty to the charges of robbery with a deadly weapon and fleeing to elude law enforcement officers at high speed. In a separate case, he pled guilty to a second charge of robbery with a deadly weapon. He negotiated a plea with the State which provided, in paragraph 5, that the prosecution was recommending a “cap of ten years concurrent on both cases.” The written plea agreement further provided: “I understand that, in addition to the terms in paragraph 5, I might also be placed on probation.” The trial court accepted the defendant’s plea and sentenced him to concurrent sentences of 86 months’ imprisonment followed by 15 years’ probation on each robbery count, and to 86 months’ imprisonment on the fleeing count. No direct appeal was filed.

The defendant timely filed a rule 3.850 motion raising the following claims for relief: (1) his plea was involuntary, as the trial court violated the 10-year cap set forth in the plea agreement; (2) trial counsel was ineffective for failing to move to withdraw the defendant’s plea after the trial court violated the 10-year cap; and (3) his sentence was illegal as the trial court failed to award him the proper amount of jail credit. The trial court summarily denied the defendant’s motion. This appeal timely followed.

The defendant’s first claim was that his plea was involuntary because the sentence imposed by the trial court violated the cap set forth in the plea agreement. This claim was waived for purposes of receiving post-conviction relief because the defendant failed to file a motion to withdraw his plea. Barnhill v. State, 828 So.2d 405 (Fla. 5th DCA 2002).

The defendant’s second claim was that his trial counsel was ineffective for failing to move to withdraw his plea after the trial court violated the terms of the plea agreement. This claim lacks merit. Consistent with the mandate set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Florida Supreme Court has held that a defendant alleging ineffective assistance of counsel must prove both deficient performance and prejudice. Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citations omitted). A motion to withdraw the defendant’s plea would not have been successful because the terms of the defendant’s sentence were consistent with the terms of his plea agreement. In that regard, the plea provided for a 10-year cap on imprisonment with the express possibility that probation could be imposed in addition to a term of imprisonment.

Next, the defendant contended that his sentence was illegal because he did not receive the correct amount of jail credit. He claimed entitlement to 309 days of jail credit instead of the 241 days credited to him.

At sentencing, the trial court orally pronounced, “you will be given credit in this case where you’ve been incarcerated for a considerable period of time of 309 days subtracted from any periods of incarceration[.j” The written sentence conflicts with the oral pronouncement which states: “It is further ordered that the defendant shall be allowed a total of 241 Day(s) as credit for time incarcerated before imposition of this sentence.” The trial court’s summary denial of this claim is reversed and, on remand, the trial court is instructed to address the apparent conflict between the oral pronouncement and the written sentence. See Guerra v. State, 927 So.2d 248, 249 (Fla. 2d DCA 2006) (“The postconviction court did not address the issue of whether the written sentence conformed to the oral pronouncement!)] ... Therefore, we reverse and remand for the postconviction court to review the record and determine whether there is a discrepancy between the oral pronouncement and the written sentencing order. If a discrepancy exists, the written sentence must be corrected to conform to the oral pronouncement.”)

The defendant’s motion lastly alleged that defense counsel was ineffective for failing to challenge the sufficiency of the evidence. The claim was not timely raised, therefore, we affirm the summary denial of same. See Zeigler v. State, 632 So.2d 48, 50 (Fla.1993), cert. denied, 513 U.S. 830, 115 S.Ct. 104, 130 L.Ed.2d 52 (1994) (“Motions pursuant to rule 3.850 will not be considered ‘if filed more than 2 years after the judgment and sentence become final.”) (quoting Fla. R. Crim. P. 3.850(b)).

AFFIRMED in part; REVERSED in part; REMANDED.

COHEN and WALLIS, JJ., concur.

      . § 812.13, Fla. Stat. (2008).

      . § 316.1935, Fla. Stat. (2008).


author: PER CURIAM.

text:
    John E. MILES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2850.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2013.
    Rehearing Denied Dec. 17, 2013.
    John E. Miles, pro se, Petitioner.
    Jennifer Parker, General Counsel, and Beverly Brewster, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is dismissed as moot.

THOMAS, WETHERELL, and RAY, JJ., concur.


text:
    Michelle Leigh KEMP, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2179.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2013.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This direct criminal appeal was brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the entire record, we affirm the trial court’s revocation of appellant’s community control and the resulting sentence but remand for correction of a scrivener’s error.

In its order revoking the appellant’s community control, the trial court erroneously listed as the basis for revocation all four violations alleged in the violation of community control affidavit. The record does not reflect that the appellant admitted to the allegations based upon the commission of new law offenses or that the state demonstrated a basis to revoke as to these allegations. Instead, the plea form explicitly stated that the appellant admitted to violating her curfew and the failure to submit to electronic monitoring, but not the violations based upon the commission of two new law offenses. It was reiterated during sentencing that the new law offenses were contested and were not being considered in these proceedings. Therefore, we remand for the trial court to correct the order of revocation to reflect that revocation was based on the failure to comply with the appellant’s curfew and the failure to submit to electronic monitoring. See Harvin v. State, 882 So.2d 1089, 1089 (Fla. 1st DCA 2004) (affirming the revocation of probation in an Anders appeal, but remanding for correction of the order to reflect only the violations admitted to as its basis); Narvaez v. State, 674 So.2d 868, 869 (Fla. 2d DCA 1996) (noting that the written order of revocation must comport with the oral pronouncement and remanding with instructions to strike from the order the violations neither admitted to nor found by the court).

AFFIRMED; REMANDED with directions.

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


text:
    Clarence PERKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1177.
    District Court of Appeal of Florida, First District.
    Nov. 19, 2013.
    Nancy A. Daniels, Public Defender, Joanna A. Mauer, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Michael McDermott and Bryan Jordan, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Burrows, 940 So.2d 1259, 1262 (Fla. 1st DCA 2006).

ROBERTS and CLARK, JJ., and MOSELEY, MARK W., Associate Judge, concur.


text:
    Cornelius STRICKLAND, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6674.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2013.
    Nancy A. Daniels, Public Defender, Tallahassee; Richard J. D’Amico, Ormond Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This Anders appeal arises from a judgment and sentence for possession of a firearm by a convicted felon pursuant to section 790.28, Florida Statutes (2008). We affirm the judgment and sentence, but remand with instructions to correct two scrivener’s errors on’ the trial court’s cost and fines worksheet. The first appears in a fee listed and assessed on the worksheet that cites a non-existent statute, section 938.93, Florida Statutes, which should be changed to “section 938.03, Florida Statutes.” The second appears in the last fee listed and assessed on the worksheet that cites a non-existent statute, section 938.185, Florida Statutes, which should be changed to “section 939.185, Florida Statutes.”

WOLF, ROBERTS, and MAKAR, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Betty DUNKLIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2512.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2013.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This direct criminal appeal was brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Finding no reversible error, we affirm the revocation of Appellant’s probation and the judgment and sentence. However, because the record provides no indication that the trial court entered a written order of revocation of probation, we remand for the trial court to enter such an order. See Pressley v. State, 903 So.2d 1053 (Fla. 1st DCA 2005); Hallman v. State, 845 So.2d 265 (Fla. 1st DCA 2003).

AFFIRMED and REMANDED with directions.

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


text:
    Simmie KENDRY, Appellant, v. MEADOWLARK REAL ESTATE, LLC, Jeff Vigue, Rapid Funding Group, Randy Rugg, and Thomas C. Santoro, Appellees.
    No. 1D13-3037.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2013.
    Simmie L. Kendry, pro se, Appellant.
    Dennis E. Guidi of Harris, Guidi, Ros-ner, Dunlap & Rudolph, P.A., Jacksonville, for Appellee Thomas C. Santoro.
   PER CURIAM.

We reverse the trial court’s order dismissing the suit for lack of prosecution pursuant to Florida Rule of Civil Procedure 1.420(e). After almost three years with no record activity, the trial court issued a notice of proposed dismissal, informing the parties that the case would be dismissed within sixty days unless record activity occurred or unless a party showed good cause in writing why the action should remain pending. Appellant filed a response to the notice, a notice of trial, and a writ of habeas corpus ad testificandum less than two weeks after the court issued the notice. After conducting a hearing, the trial court concluded that because the case was not at issue, Appellant’s notice of trial and writ of habeas corpus testifican-dum were nullities. Based on this finding, the trial court entered an order of dismissal. This was error.

Although a transcript of the hearing was not provided to this Court, the language in the order of dismissal suggests that the trial court declared Appellant’s filings to be a nullity only because they did not move the case forward. While it is debatable whether the filings advanced the litigation, Appellant’s filings were made within sixty-day grace period and were sufficient to avoid dismissal of the cause. Chemrock Corp. v. Tampa Elec. Co., 71 So.3d 786, 792 (Fla.2011). The supreme court has expressly rejected the distinction between active and passive record activity, holding that “any filing of record is sufficient to preclude dismissal.” Id. (emphasis added). We, therefore, REVERSE and REMAND for further proceedings.

VAN NORTWICK, ROWE, and MARSTILLER, JJ., concur.


text:
    John P. MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4850.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2013.
    John P. Moore, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. The dismissal is without prejudice to appellant’s right to file a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). See Adams v. State, 734 So.2d 1086, 1087 (Fla. 1st DCA 1999).

BENTON, PADOVANO, and RAY, JJ., concur.


text:
    Mark T. HASH, Petitioner, v. STATE of Florida and Reschin Moore, Respondents.
    No. 1D13-4814.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2013.

      David F. Chester, Tallahassee; Michael Dolce of Dolce & Paruas, PLLC, West Palm Beach, and Katherine Viker, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee; James C. Banks, Tallahassee.
   PER CURIAM.

Via emergency order, this panel granted the petition for writ of habeas corpus which challenged the petitioner’s incarceration upon a finding of criminal contempt. We now write to explain our reasoning.

By order of October 3, 2013, the lower tribunal held the petitioner in both direct and indirect criminal contempt of court and sentenced him to 5 months and 29 days in jail. The lower tribunal’s order to show cause why the petitioner should not be held in criminal contempt of court did not include any facts or specific allegations constituting the basis for the purported criminal contempt; instead, the order simply stated, “Mark Hash shall appear at the Court at 10:45 a.m. on September 18, 2013, in Courtroom 3H, of the Leon County Courthouse, Tallahassee, Florida, and show cause why he should not be held in contempt of court and if found in contempt, to be sanctioned as appropriate, including jail time and attorney’s fees.” This notice was insufficient. “[P]rior to the imposition of a sentence for indirect criminal contempt ... [a] defendant must receive notice of the essential facts that constitute the criminal contempt and have an opportunity to show cause why the sentence should not be imposed.” Anton v. Anton, 106 So.3d 34 (Fla. 3d DCA 2013); see also Fla. R. Crim. P. 3.840(a), (g). “Due process of law requires that the accused be sufficiently advised of the charge so as to accord him reasonable opportunity to meet the charges by way of defense or explanation.” Deter v. Deter, 353 So.2d 614, 617-18 (Fla. 1st DCA 1977). Fundamental error results when a trial court fails to comply with this rule. See Anton at 35 (citing Pugliese v. Puqliese, 347 So.2d 422 (Fla.1977)).

Inasmuch as the order finding the petitioner guilty of contempt of court appeared to also find the petitioner guilty of direct criminal contempt for making “misrepresentations,” the order only discusses specific misrepresentations that were made outside the presence of the court. Not having been witnessed or heard directly by the trial court, these cannot constitute direct criminal contempt. See J.M. v. Gargett, 101 So.3d 352, 353 n. 1 (Fla. 2012) (citing A.A. v. Rolle, 604 So.2d 813, 814 n. 5 (Fla.1992) for the proposition that direct criminal contempt “ ‘occurs when the act constituting the contempt is committed in the immediate presence of the court’ ”). The court’s order does not discuss any specific conduct committed in the direct presence of the court. Accordingly, the facts alleged in the court’s order support only a finding of indirect criminal contempt — a charge for which the petitioner failed to receive adequate notice.

PETITION GRANTED.

WOLF, CLARK, and MARSTILLER, JJ., concur.


author: MARSTILLER, J.

text:
    Eduardo HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5952.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2013.
    Rehearing Denied Jan. 23, 2014.

      Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Michael McDermott, Assistant Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appel-lee.
   MARSTILLER, J.

Eduardo Hernandez appeals his convictions and sentences for using a computer online service to solicit a person believed to be a child to engage in unlawful sexual conduct, and for traveling to engage in unlawful sexual conduct with a child after committing the above-described solicitation. As grounds for reversal, Hernandez asserts that the trial court erred by denying his motion for judgment of acquittal because the State put on insufficient evidence to prove solicitation, and by denying his facially sufficient motion to disqualify the trial judge establishing a reasonable fear the judge would not sentence him fairly. We affirm.

I. Motion for Judgment of Acquittal

The State charged Hernandez with violating the following laws:

(3) CERTAIN USES OF COMPUTER SERVICES OR DEVICES PROHIBITED. — Any person who knowingly uses a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to:
(a) Seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child, to commit any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in any unlawful sexual conduct with a child or with another person believed by the person to be a child ...
commits a felony of the third degree[.]
(4) TRAVELING TO MEET A MINOR. — Any person who travels any distance either within this state, to this state, or from this state by any means, who attempts to do so, or who causes another to do so or to attempt to do so for the purpose of engaging in any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in other unlawful sexual conduct with a child or with another person believed by the person to be a child after using a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to:
(a) Seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child, to engage in any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in any unlawful sexual conduct with a child ...
commits a felony of the second degree[.]

§ 847.0135(3)(a), (4)(a), Fla. Stat. (2011).

At his trial, the State put on evidence that, as part of a sting operation, Tallahassee Police Officer Laura Gereg placed an advertisement on the Internet site www. craigslist.org (“craigslist”), in the “casual encounters” section, with the tagline “Butterfly 4 Release — w4m (Tallahassee, FL).” The body of the ad read, “Wantn [sic] somel to capture & release 2 the wild. U got what it takes... only talented apply.” Hernandez responded to the ad, and the following email conversation ensued between him and the undercover officer:

HERNANDEZ: Hi. i’m eddy, let me know if ur bored.
OFFICER GEREG: hey eddy....i m bored, lookn 4 fun down wit an yunger girl?
HERNANDEZ: Yeah for sure. I can dig it. what are u up to
OFFICER GEREG: well i m almost 15 chilln.. .lookn to get out u cool wit dat? lets tlk
HERNANDEZ: Yea I suppose, would you be discreet?
OFFICER GEREG: r u kiddn me hell yes i would b....would get my ass kicked if anyl found out
HERNANDEZ: well what are you doing. we can meet and maybe try and see if this can work. I’d like it to
OFFICER GEREG: i would too but what we gonna do? i could sneak out in about an hr or so.
HERNANDEZ: yea i can give you my number. I have a car. I can pick you up. i guess let me know where to go
OFFICER GEREG: i will let u know but what we gonna do? need a reason to risk gettn my ass kicked by my rents LOL
HERNANDEZ: [redacted] We could fool around and if you like it we can do more perhaps. Maybe do this more often [redacted] idk what else would you want to try
OFFICER GEREG: [redacted] fool around like how? if i m sneakn out I wanna know wat 2 b ready 4... so I can get ready
HERNANDEZ: well if i like you and you like me i’ll fuck you. if you want to try other things we can fuck as long as you’re able to be out. i’m open to anything i think
OFFICER GEREG: i m down wit dat... long as u bring protection not on the pill... .yet... .when u wanna do this?
HERNANDEZ: yea of course, how about 12:30ish.
OFFICER GEREG: I cud prob do that... .the rents r headn 2 bed now they should b sound asleep by then... u anywhere near trille rd?
HERNANDEZ: yea. real close, im over by park
OFFICER GEREG: lets plan on that? 1230 at circle k on shamrock cool? HERNANDEZ: sounds good, looking forward to it babe
OFFICER GEREG: me too... how will i know its u, got a pic or who m i lookn 4?
HERNANDEZ: I’ll be in a blueish toy-oya [sic] minivan. I’ll be wearing a salmon colored Ralph lauren t. I have black hair, no pics that i have on my desktop i dont think
HERNANDEZ: what about you. what outfit should i be looking for
OFFICER GEREG: Ok, i m in jeans, flip flops, got brn hair and prolly gonna throw on my bik jacket
HERNANDEZ: hott. sounds good
OFFICER GEREG: k baby.... a lil nervous... u aint a creeper r u?
HERNANDEZ: I’m nervous too. Not a creeper, i just love play
OFFICER GEREG: play? good tthing u aint
HERNANDEZ: play just refers to sex. i’m heading out now.
OFFICER GEREG: alright babe... .i will sneak out at about 1225 and should b there by 1230.

Hernandez argues that nothing he said in the email exchange constituted solicitation. He contends he merely stated what he was going to do, which, under Randall v. State, 919 So.2d 695 (Fla. 4th DCA 2006), does not amount to solicitation as a matter of law. The defendant in Randall was charged with soliciting a minor to commit a lewd or lascivious act. See § 800.04(6), Fla. Stat. (2003). At trial, the victim testified that the two had taken a walk during which they did not converse, but that upon reaching an overpass and sitting on the ground, the defendant told her he “wanted” to lick her vagina, while touching her. Randall, 919 So.2d at 695-96. The appellate court held that the defendant’s statement did not constitute an act of solicitation. Id. at 697.

The facts are significantly different here. Hernandez and the undercover officer engaged in a lengthy email conversation during which, as the above-quoted exchange shows, Hernandez endeavored to convince the person he believed to be a 14-year-old girl to sneak away from home and meet him to have sex. This he did by first suggesting they could “fool around and if you like it we can do more perhaps.” Then, when the girl seemed to doubt it was worth the risk of getting in trouble with her parents, Hernandez said he would have sex with her for “as long as you’re able to be out,” and, importantly, he agreed to bring “protection” with him. Considering these statements and all the evidence de novo, in the light most favorable to the State, we conclude Hernandez’s statements, under the circumstances present here, were sufficient for the jury to find he solicited a person believed to be a minor to engage in unlawful sexual conduct. Cf. State v. Murphy, 124 So.3d 323 (Fla. 1st DCA 2013), (affirming conviction for using online service to solicit person believed to be the parent of a child to consent to the child’s participation in unlawful sexual conduct, where defendant’s statements were intended to allay father’s concerns and thereby obtain consent). Accordingly, we affirm the trial court’s denial of Hernandez’s motion for judgment of acquittal.

II. Motion to Disqualify

Pretrial, Hernandez moved to disqualify the trial judge based on statements the judge made when sentencing two individuals in earlier cases that had arisen from the same online sting operation that ensnared Hernandez. The other defendants were adjudicated guilty of the same two crimes with which the State charged Hernandez. The motion averred, in pertinent part:

4. During the sentencing hearing of Mr. Cantrell [who had been convicted by a jury], his defense counsel urged Judge Hankinson to impose a downward departure sentence from the Criminal Punishment Code lowest permissible sentence of 42 months. After hearing the testimony of witnesses and argument of counsel, Judge Hankinson held that Mr. Cantrell’s case was “not outside the mainstream” for these offenses and that he would not exercise his discretion to go below the lowest permissible sentence of 42 months.
5. Mr. Chavez [who entered an open plea] was sentenced immediately after Mr. Cantrell. Again, his counsel argued that Mr. Chavez should be sentenced below the lowest permissible sentence of 42 months. As with Mr. Cantrell, Judge Hankinson ruled that he would not depart from the 42 month sentence. In addition, Judge Hankinson stated he “is trying to be consistent” in the sentences he imposes for these offenses. Judge Hankinson also stated that based upon the cases he has seen charging these offenses he had no doubt a jury would have convicted Mr. Chavez if he had gone to trial. Further, Judge Hankin-son stated he saw no reason to depart from the sentence of 42 months because he “has to protect the public” against persons charged with these offenses.
9. A judge’s public pronouncement indicating the judge’s own sentencing preferences could be interpreted as a fixed intention and thus establish a reasonable fear on the part of the defendant that the judge has a bias in refusing to consider a sentencing option that is among the range of sentencing options available to him[.] ...

Under Florida Rule of Judicial Administration 2.330(f), a judge to whom an initial motion to disqualify is directed determines only whether the motion is legally sufficient, and not whether the facts alleged are true. If the motion sets forth facts that would create an objectively reasonable fear of not receiving a fair and impartial trial, it is legally sufficient, and the judge must grant it. See § 38.10, Fla. Stat.; Gregory v. State, 118 So.3d 770, 778 (Fla.2013).

The trial judge presiding in Hernandez’s case denied the motion to disqualify. Hernandez contends the judge’s statements evince a fixed sentencing policy, leading him reasonably to fear the judge would not consider a downward departure sentence in any circumstance. We disagree. According to Hernandez’s motion, the defendants in the two other cases sought downward departure from the lowest permissible scoresheet sentence. See §§ 921.0024(2), 921.0026, Fla. Stat. (2011). One defendant presented witness testimony in an attempt to establish mitigating circumstances; the other defendant, it appears, argued for leniency because he had pled to the offenses instead of going to trial. The judge’s statements, as recounted and quoted in the motion, indicate that neither defendant presented sufficient grounds to justify mitigating their sentences. Neither the desire to be consistent in sentencing, nor the desire to protect the public, reasonably imply an unwillingness to consider-or a fixed policy against — departing downwardly from the scoresheet minimum when sentencing defendants convicted of crimes similar to those committed by Hernandez. Cf. Martin v. State, 804 So.2d 360, 364 (Fla. 4th DCA 2001) (granting petition for writ of prohibition because judge’s statement in interview that incarceration should always be followed by probation could reasonably be interpreted as announcing fixed intention to invariably impose probation with jail or prison sentence). On the contrary, it appears from the motion that the judge would consider a downward departure if there were mitigating circumstances in a given case setting it apart from the “mainstream.” For these reasons, we conclude the facts alleged in Hernandez’s motion failed to create an objectively reasonable fear the trial judge would not be fair and impartial. The motion therefore was facially insufficient, and we affirm the order denying it.

Based on the foregoing, Hernandez’s convictions and sentences are AFFIRMED.

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

      . See Johnston v. State, 863 So.2d 271, 283 (Fla.2003).

      . We review the motion de novo for legal sufficiency. See Stein v. State, 995 So.2d 329, 334 (Fla.2008).

      . The record before us provides no illumination on what those circumstances were.


author: ALTENBERND, Judge.

text:
    Richard N. WATTS, Esquire, Petitioner, v. JUSTICE ADMINISTRATIVE COMMISSION, Respondent.
    No. 2D13-2138.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 2013.
    J. Andrew Crawford of J. Andrew Crawford, P.A., St. Petersburg, for Petitioner.
    Ana Cristina Martinez, General Counsel, and Christian D. Lake, Assistant General Counsel, The Justice Administrative Commission, Tallahassee, for Respondent.
   ALTENBERND, Judge.

Richard N. Watts seeks certiorari review of an order awarding him attorney’s fees in an amount less than he requested for his services as court-appointed counsel to a defendant in a criminal case. This proceeding is very similar to Watts v. Justice Administrative Commission, 115 So.3d 431 (Fla. 2d DCA 2013), in which we granted certiorari relief. We also grant relief in this case.

Mr. Watts was appointed to represent a defendant who was charged with capital sexual battery. His client entered into a negotiated plea the day before trial. Mr. Watts then submitted a billing to the Justice Administrative Commission (JAC), seeking $20,752.50 for 276.70 hours at $75 per hour. The matter was set for hearing before the circuit court.

At the hearing, Mr. Watts testified as to the work he performed and introduced his billing, which provided detailed information to substantiate the bill. The prosecutor agreed that the case was particularly difficult and complicated. Counsel for the JAC explained that, although the JAC had initially objected to the bill, it had done an audit and Mr. Watts had accepted their deductions. Thus, the JAC had no objection to the bill as presented to the trial court and agreed that it was reasonable. Mr. Watts explained that the basic operating expenses for his office, including staff salaries and other overhead, consumed $50 of his hourly rate and that any rate lower than $75 would be “confiscatory.” There was no evidence to the contrary.

The justification behind exceeding the statutory flat fee is to ensure that indigent defendants are not receiving incompetent and ineffective representation due to low fee rates. See White v. Bd. of Cnty. Comm’rs of Pinellas Cnty., 537 So.2d 1376, 1379-80 (Fla.1989); Watts, 115 So.3d at 432. Despite the seeming agreement as to the reasonableness of this bill in relation to the services provided, the trial court ruled that it would award $15,000 — 200 hours at $75 per hour.

We recognize that the trial court is not bound by the decision made by the JAC. See § 27.5304(3), Fla. Stat. (2012). It would not necessarily be a departure from the essential requirements of the law for the judge to reject a portion of the billing. Likewise, we do not believe that the judge is required to detail each and every item in the bill that he or she concludes to be excessive or unreasonable. But when it is uncontested that any hourly award less than $75 would be confiscatory, the decision to reduce the billing from $20,752.50 to $15,000 — a reduction of more than 25 percent — without any explanation would seem to be an arbitrary decision approaching a violation of due process.

We conclude that the reduced award without any explanation in the face of the evidence in the record departs from the essential requirements of the law. Accordingly, we grant the petition and remand for reconsideration of the fee motion.

Granted.

KHOUZAM and SLEET, JJ., Concur.

      . A fee award may not exceed 200 percent of the statutory flat fee absent a specific finding by the court that double the flat fee would be confiscatory. See § 27.5304(12)(d), Fla. Stat. (2012). Here, based on his August 2011 appointment, the flat fee to be paid to Mr. Watts was $2000. See § 27.5304(1), Fla. Stat. (2012) (requiring that specific flat fee rates shall be established annually in the General Appropriations Act); ch. 2011-69, § 4, at 1239, Laws of Fla. (setting the applicable annual flat fee at $2000 for "capital sexual battery” cases). The court further found that $4000 would be considered confiscatory.


text:
    Dennis Wayne ELLIOTT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4685.
    District Court of Appeal of Florida, First District.
    Dec. 26, 2013.
    Dennis Wayne Elliott, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

By “petition for leave to file belated motion for discretionary review,” Dennis Wayne Elliott alleges that following the denial of his amended motion for post-conviction relief, he timely placed into the hands of prison officials for mailing a motion for rehearing and for leave to file a second amended motion for post-conviction relief. He has provided this court with copies of the motion, which bears an institutional mailing stamp corroborating his claim concerning the date he surrendered it to prison officials.

Under Florida Rule of Appellate Procedure 9.420(a)(1) Elliott’s motion is deemed to have been “filed” when it was turned over to prison officials for mailing. Accordingly, he need only resubmit the stamped copy of his motion to the circuit court with a motion requesting that it be accepted as timely filed and considered on the merits. Cf. Hair v. Crews, 116 So.3d 616 (Fla. 1st DCA 2013) (denying petition for writ of mandamus without prejudice to petitioner’s right to refile where the pleading at issue was not received by the court). We therefore DENY Elliott’s petition without prejudice to him pursuing this remedy.

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


author: EVANDER, J.

text:
    Patricia G. WOLACK, Appellant, v. Tena M. PATE, In Her Official Capacity, etc., Appellee.
    No. 5D13-778.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2013.
    Patricia G. Wolack, Ocala, pro se.
    Sarah J. Rumph, of Florida Parole Commission, Tallahassee, for Appellee.
   EVANDER, J.

Patricia Wolack appeals from the summary dismissal of her petition for writ of habeas corpus. In her petition, Wolack challenged the Florida Parole Commission’s determination of her presumptive parole release date. Although the trial court correctly determined that Wolack’s claim was not appropriately raised in a habeas petition, it should have treated the petition as one seeking mandamus relief and transferred the cause to the appropriate venue.

Habeas relief is not an available remedy for the allegedly improper action of the Parole Commission in setting or extending a presumptive parole release date. Kirsch v. Greadington, 425 So.2d 153 (Fla. 1st DCA 1983); Pannier v. Wainwright, 423 So.2d 533 (Fla. 5th DCA 1982). The inmate’s proper remedy is to file a petition for writ of mandamus against the Parole Commission in Leon County. Sullivan v. Fla. Parole Comm’n, 920 So.2d 106 (Fla. 2d DCA 2006).

In the instant case, the trial court should have treated the petition as one for mandamus and transferred the cause to Leon County. See Currie v. State, 955 So.2d 1200, 1201 (Fla. 1st DCA 2007) (although trial court correctly determined that proper vehicle for inmate’s challenge to Parole Commission’s determination of presumptive parole release date was by mandamus action, proper remedy was to transfer cause to Leon County rather than dismissing or denying inmate’s petition for writ of habeas corpus); Sullivan, 920 So.2d 106 (“Rather than dismissing the petition, the circuit court should have transferred it to Leon County.”).

REVERSED .and REMANDED.

GRIFFIN and COHEN, JJ., concur.


text:
    Melissa SIMS, Appellant, v. Travis HOLLOWAY, Appellee.
    No. 5D13-3484.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2013.
    Rebeccah Beller, of Beller & Busta-mante, PL, Jacksonville, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Melissa Sims appeals from an order granting her former husband’s motion to change venue. We reverse because Sims was deprived of due process of law when the trial court entered the order without affording Sims the opportunity to be heard on the motion. See J.L.S. v. R.J.L., 708 So.2d 293 (Fla.2d DCA 1998) (order granting change of venue reversed where trial court entered order without notice or hearing). On remand, the parties are entitled to an evidentiary hearing on the motion.

REVERSED and REMANDED.

SAWAYA, ORFINGER and EVANDER, JJ., concur.


text:
    Joseph M. SRZEDZINSKI, Appellant, v. Latisha BURGESS, Appellee.
    No. 5D13-97.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2013.
    Rehearing Denied Jan. 23, 2014.
    Sandra K. Ambrose, of Sandra K. Am-brose, P.A., Lake Mary, for Appellant.

      Clifton H. Gorenflo, of Gray, Gorenflo & Partlow, P.A., Sanford, for Appellee.
   PER CURIAM.

The former husband, Joseph M. Srzed-zinski, appeals the final judgment dissolving his marriage to the former wife, Latisha Burgess, asserting numerous errors. We affirm in all respects except as to one issue relating to the parenting plan. The final judgment denied the former wife’s request to relocate with the child from Seminole County to Hillsborough County, and provided that the former wife’s address would be used for school boundary determination and registration. However, the parenting plan reflects the former wife’s Hillsborough County address. On remand, the trial court shall require the parties’ child to be returned to Seminole County. Should the former wife fail to return with the child, the trial court shall reconsider the time sharing arrangement and the address utilized for school purposes.

AFFIRMED in part; REVERSED in part; REMANDED.

ORFINGER, BERGER and WALLIS, JJ., concur.


author: COHEN, J.

text:
    Susan DUNCAN, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D12-4003, 5D12-4005.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 2014.
    Rehearing Denied Jan. 22, 2014.
    Valarie Linnen, Atlantic Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

In this consolidated appeal, Susan Duncan appeals her judgments and sentences entered in two cases after two jury trials. In case number 5D12-4003, Duncan was convicted of obtaining property by worthless check. In case number 5D12-4005, Duncan was convicted of six counts of grand theft. In each case, she argues on appeal that the trial court erred by denying her motion for judgment of acquittal.

Finding the evidence sufficient to sustain the convictions of grand theft in case number 5D12-4005, we affirm without additional comment. However, we agree with Duncan that in case number 5D12-4008, the evidence supported a conviction for only a misdemeanor worthless check charge under section 832.05(2), Florida Statutes (2010).

The facts underlying case number 5D12-4003 are simple. Duncan hired the victim, Central Signs, to manufacture and install a sign for her new business. Duncan paid Central Signs a deposit, and the remaining monies were due upon installation of the sign. No specific form of payment was contemplated by their agreement. After Central Signs completed and installed the sign, Duncan wrote it a check, which was dishonored based upon insufficient funds. Central Signs sent Duncan the requisite statutory notice of worthless check via certified mail. However, the check was never honored. Following a trial, a jury found Duncan guilty of obtaining property or services in return for a worthless check under section 832.05(4), Florida Statutes.

Duncan argues that the evidence in the case reflected payment of a preexisting debt and thus supported only a misdemeanor conviction. It has long been recognized that, to sustain a felony charge for obtaining goods or services by means of a worthless check, “it must be demonstrated that the check was the inducement for the furnishing of goods or services to the issuer.” Strickland v. State, 559 So.2d 1288, 1289 (Fla. 2d DCA 1990) (citing Helms v. State, 128 So.2d 756 (Fla. 1st DCA 1961)). “A worthless check tendered for payment of a pre-existing debt will sustain only the lesser misdemeanor proscribed by section 832.05(2), Florida Statutes ....” Id. (citing State v. Harris, 136 So.2d 633 (Fla.1962); Laytner v. State, 239 So.2d 857 (Fla. 3d DCA 1970)). For example, in Helms, the checks at issue were given to a carpenter and painter at the end of a work week. The court held that the services rendered “were not obtained by means of the checks, but were rendered by the payees with the hope or expectation that at the end of the work-week they would be paid for their services.” Helms, 128 So.2d at 757. Similarly, in Strickland, the court found that a felony conviction could not be sustained under section 832.05 because there was “no indication that the offer of payment by check preceded the services rendered.” Strickland, 559 So.2d at 1289; accord Nece v. State, 683 So.2d 622, 622 (Fla. 2d DCA 1996) (holding that “the conviction must be reduced to a misdemeanor because there was no evidence that an offer of payment by check induced the services rendered”).

As in Strickland and Helms, the evidence in the instant ease did not establish that the payment by check induced the manufacture and installation of the sign. Accordingly, we reverse Duncan’s conviction for obtaining property by worthless check and remand for entry of a misdemeanor worthless check conviction and re-sentencing.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

EVANDER and WALLIS, JJ., concur.


author: GRIFFIN, J.

text:
    MARIAN FARMS, INC., etc., Appellant, v. SUNTRUST BANKS, INC., etc., Appellee.
    No. 5D12-886.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 2014.
    Rehearing Denied Feb. 10, 2014.
    Nicholas A. Shannin, of The Shannin Law Firm, P.A., Orlando, and James R. Provencher and Lisa Finaldi Simmons, of Provencher & Simmons, P.A., Orlando, for Appellant.
    John R. Stump and Douglas C. Spears, of Swann, Hadley, Stump, Dietrich & Spears, P.A., Winter Park, for Appellee.
   GRIFFIN, J.

Appellant, Marian Farms, Inc. [“Marian Farms”], seeks review of the order dismissing its fourth amended complaint for damages it allegedly suffered when Sun-Trust Banks, Inc. [“SunTrust”] allowed fraudulent or unauthorized conduct of an employee. The trial court found, as a matter of law, that the plaintiff failed to allege the basis for any theory of liability or independent duty owed to the plaintiff by SunTrust distinct from its depositor relationship. SunTrust sought dismissal of the fourth amended complaint based on Florida’s economic loss rule.

This is not a case where Marian Farms merely attempted to recast a breach of its contractual relationship with SunTrust based on the depository agreement by asserting claims that Sun-Trust negligently performed its contractual duties to its depositor by wrongfully disbursing monies in rebanee on forged instruments. Rather, Marian Farms has alleged independent torts and causes of action separate from SunTrust’s wrongful disbursement of funds on deposit. For example, Marian Farms has asserted negligence on the part of SunTrust in accepting forged loan documents and personal guarantees of the principals of Marian Farms without verifying their authenticity. Similarly, Marian Farms alleges that, in a separate transaction, SunTrust accepted obviously forged loan documents without attempting to verify authorization for a loan secured by Marian Farms’ equipment. In yet a separate alleged act of negligence, Marian Farms alleges that SunTrust accepted a forged corporate resolution authorizing the dishonest employee of Marian Farms to make withdrawals from the corporate account, including a representation that authorization had been verified, when in fact, it had not. In light of Tiara Condo. Ass’n, Inc. v. Marsh & McLennan Co., 110 So.3d 399 (Fla.2013), which was decided after entry of the order dismissing the plaintiffs fourth amended complaint, we reverse the appealed order.

We also reverse the order of the trial court that Marian Farms is not entitled to a jury trial on any of its claims based on a jury trial waiver contained within SunTrust’s “Rules and Regulations for Deposit Accounts.” A jury trial waiver is not applicable to the independent torts or other causes of action asserted by Marian Farms where the wrongful act alleged is an act or omission separate from a breach of the depository agreement. The fact that Marian Farms’ losses arising out of the various claims of negligence or other causes of action may be the same damages as those resulting from the breach of the depository agreement does not bar these claims and does not control Marian Farms’ entitlement to a jury trial arising out of separate wrongful acts alleged.

REVERSED and REMANDED.

LAWSON, J., and MENDOZA, C.E., Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Lars Bertil JIBORN, Appellee.
    No. 5D13-45.
    District Court of Appeal of Florida, Fifth District.
    Jan. 10, 2014.
    Rehearing Denied Feb. 17, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    William R. Ponab and Michael J. Snure, of Snure & Ponall, P.A., Winter Park, for Appebee.
   PALMER, J.

The State of Florida appeals the order entered by the trial court granting the motion to dismiss the amended information filed by Lars Jiborn (defendant), which charged him with traveling to meet a minor for an unlawful sexual act and solicitation of a minor via computer. We reverse.

The charges against the defendant stemmed from email and text correspondence between the defendant and an undercover police officer, who the defendant believed to be the mother of a 14-year-old child. The trial court entered an order granting the defendant’s dismissal motion, concluding that the defendant could not violate these statutes without having direct communication with a child. In State v. Wilson, Case No. 18-387, 128 So.3d 946 (Fla. 5th DCA Dec. 27, 2013), we considered an essentially identical factual situation and reversed the trial court’s dismissal order. For the reasons articulated in Wilson, we reverse the instant order, and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

LAWSON and COHEN, JJ„ concur.

      . See § 847.0135(3)(a),(4)(a), Fla. Stat. (2011).

      . Appellate review is authorized pursuant to rule 9.140(c)(1)(A) of the Florida Rules of Appellate Procedure. See State v. Feagle, 604 So.2d 824 (Fla. 1st DCA 1991).


author: FORST, J.

text:
    Leslie K. HARRIS, Appellant, v. ABERDEEN PROPERTY OWNERS ASSOCIATION, INC., Aberdeen Golf & Country Club, Inc., and Bristol Lakes Homeowners Association, Appellees.
    No. 4D12-1435.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2014.

      Donna Greenspan Solomon of Solomon Appeals, Mediation & Arbitration, Ft. Lauderdale, for appellant Leslie K. Harris.
    Kristen A. Tajak of Cole Scott & Kis-sane, P.A., Miami, for appellee Aberdeen Property Owners Association, Inc.
    Robert Rivas of Sachs Sax Caplan, P.L., Tallahassee, for appellee Aberdeen Golf & Country Club, Inc.
   ON MOTION FOR REHEARING

FORST, J.

We grant the Motions for Rehearing filed, respectively, by Aberdeen Property Owners Association and Aberdeen Golf & Country Club, withdraw our previously issued opinion dated August 21, 2013, and replace it with the following:

The Appellant, Leslie Harris (“Harris”), challenges the final summary judgment entered by the trial court on her action for declaratory relief. The court’s ruling was based on the statute of limitations. We reverse the final summary judgment to the extent that it found Harris’s claim for declaratory relief was barred by the statute of limitations. We otherwise affirm.

In 2006, Harris took title to property in Bristol Lakes, a residential community in the Aberdeen development. Aberdeen Property Owners Association (“Aberdeen POA”) is the master association for the Aberdeen development, while Bristol Lakes Homeowners Association (“Bristol Lakes HOA”) is the homeowners association for Bristol Lakes. At the time Harris took title, the governing documents of Bristol Lakes HOA, as amended in November of 2004 and recorded in December of 2004, did not require membership in the Aberdeen Golf & Country Club (“Aberdeen Club”). However, Aberdeen POA’s governing documents, as amended and recorded in June of 2004, did require mandatory membership. Because of this conflict, Bristol Lakes HOA sued Aberdeen POA in 2005. Aberdeen Club intervened in the suit.

In 2010, Aberdeen Club and Bristol Lakes HOA entered into a settlement agreement which provides for non-fee, non-privileges membership by Bristol Lakes homeowners. It also contains a provision that appears to require homeowners who took title after October 30, 2004 and who had not joined Aberdeen Club or paid club dues to retroactively join the Club as of the date they took title and to pay, in increments, fees that had accrued from the date they took title to the date of the settlement agreement.

Subsequently, in 2010, Harris brought suit against Aberdeen POA, Aberdeen Club, and Bristol Lakes HOA, seeking declaratory relief regarding membership in the Club. Her amended complaint contains three counts. Count I is for declaratory relief, and requests clarification as to whether Harris is required to join the Club and pay all fees and dues from 2006 onward. Count I also asks the trial court to “declare the mandatory membership amendment improperly enacted .... ” Count II alleges that Bristol Lakes HOA breached its fiduciary duty by entering into the settlement agreement. Count III requests supplemental relief if declaratory relief is granted, including injunctive relief.

In its answer, Aberdeen POA raised the affirmative defense of the statute of limitations. Harris filed a motion for summary judgment, apparently seeking a ruling in her favor on the defense. Aberdeen POA filed a cross-motion for summary judgment based on the statute of limitations. The court entered a final summary judgment in favor of Aberdeen POA, in which the court found that the five-year limitations period applied under section 95.11(2)(b), Florida Statutes (2010), that the cause of action accrued in 2004 when Aberdeen POA’s mandatory membership amendment was recorded, and that Harris’s claim was brought outside of the limitations period.

On appeal, Harris raises two issues, but only one has merit. Harris argues the court erred in finding the limitations period started running when the Aberdeen POA amendment was recorded. Harris maintains the cause of action did not accrue until she took title to property affected by the amendment, on October 24, 2006, less than four years prior to her filing her complaint on October 4, 2010.

“Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Fredrick v. N. Palm Beach Cnty. Improvement Dist., 971 So.2d 974, 978 (Fla. 4th DCA 2008). “The standard of review governing a trial court’s ruling on a motion for summary judgment posing a pure question of law is de novo.” Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001); see also Briggs v. Jupiter Hills Lighthouse Marina, 9 So.3d 29 (Fla. 4th DCA 2009) (reviewing de novo a trial court’s entry of summary judgment based on statute of limitations).

The parties agreed below to the applicability of section 95.11(2)(b), Florida Statutes (2010), which provides for a limitations period of five years for “[a] legal or equitable action on a contract, obligation, or liability founded on a written instru-menté]” We agree this section applies to Harris’s complaint. Thus, the issue for this court is when the cause of action accrued. See § 95.031(1), Fla. Stat. (2010). The trial court entered summary judgment on Counts I and III. Count I requested declaratory relief and also challenged the validity of the mandatory membership amendment itself; Count III requested supplemental relief pursuant to sections 86.011, 86.021 and 86.061, Florida Statutes (2010). Aberdeen POA argues that the limitations period began to run, not just for Harris, but for anyone who might at some point challenge the mandatory membership amendment, at the time the amendment was recorded in 2004.

To the extent that Harris challenges the validity and the enactment of the mandatory membership amendment, we agree with Aberdeen POA that the statute of limitations with respect to such a challenge began to run from the 2004 date the amendment was recorded in the public records. See Fredrick, 971 So.2d at 979-80 (holding the statute of limitations on a challenge to municipal assessments imposed for expansion of a road began to run either from the date the assessments were created or the date they were approved); Keenan v. City of Edgewater, 684 So.2d 226, 227 (Fla. 5th DCA 1996) (holding that a challenge to a resolution imposing special assessments for the purpose of construction of a water and sewer treatment plant accrued when the resolution was passed); see also Winkelman v. Toll, 661 So.2d 102, 107 (Fla. 4th DCA 1995) (noting that Florida has a notice-type recording statute, which functions to give “notice to the world” that a property is subject to any properly recorded provisions and regulations). Accordingly, any challenge to the validity/enactment of the amendment itself is barred by the applicable statute of limitations which, in this case, is section 95.11(2)(b), Fla. Stat. (2010) (imposing a five-year limitation on any “legal or equitable action on a contract, obligation, or liability found on a written instrument”).

In order to be entitled to declaratory relief, a party must show:

There is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interests are all before the court by proper process or class representation and that the relief sought is not merely giving of legal advice by the courts or the answer to questions propounded from curiosity.

Coal for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So.2d 400, 404 (Fla.1996) (quoting Santa Rosa County, v. Admin. Comm’n, Div. of Admin. Hearings, 661 So.2d 1190, 1192-93 (Fla.1995)).

“A cause of action accrues when the last element constituting the cause of action occurs.” 95.031(1), Fla. Stat. (2005). As this court has noted, “[p]ut another way, the limitations period begins to run when the action 'may be brought.’ ” City of Riviera Beach v. Reed, 987 So.2d 168, 170 (Fla. 4th DCA 2008) (citing State Farm Mut. Auto. Ins. Co. v. Lee, 678 So.2d 818, 821 (Fla.1996)).

Harris argues that all the elements of declaratory relief were not present until she took title to the property in 2006 and became subject to the mandatory membership amendment. Until she took title to the property, her argument goes, she had no interest in the matter and suffered no damages. To that end, Paragraph 35 of Harris’s amended complaint alleges “[a]n actual, present practical need for declaration exists of the rights and obligations between and among Plaintiff, Harris, on the one hand, and Defendants POA, and HOA, on the other, in regards to the two competing amendments .... ” Harris further averred in her amended complaint that she relied upon the HOA amendment’s language indicating that membership in the Aberdeen Club was not mandatory for Bristol Lakes homeowners.

Focusing on the elements of a declaratory relief action, we find that until Harris took title in October of 2006, there was no “immunity, power, privilege or right of the complaining party” that was “dependent upon the facts or the law applicable to the facts.” See City of Hollywood v. Petrosino, 864 So.2d 1175, 1177-78 (Fla. 4th DCA 2004) (finding that former employee’s declaratory relief action accrued when he was hired and informed he could not participate in pension plan, as all the elements of a declaratory relief action existed at that time). Accordingly, because Harris filed suit within five years of taking title, it was error for the trial court to enter summary judgment based on the statute of limitations with respect to Harris’s request for declaratory relief regarding the competing 2004 POA and HOA amendments.

Affirmed in part; Reversed and Remanded in part.

TAYLOR and LEVINE, JJ., concur.

      . We deny the Appellees’ Motions for Rehearing En Banc and Motions for Certification.

      . No Bristol Lakes homeowners were required to remain members of the Aberdeen Club or pay Club fees subsequent to the date of the settlement agreement.

      . Count II was filed against Bristol Lakes HOA and is the subject of an appeal dealt with separately. See Harris v. Bristol Lakes Homeowners Ass'n, 120 So.3d 568 (Table) (Fla. 4th DCA 2013).


text:
    Anthony J. FAILS, Appellant, v. PUBLIC DEFENDERS OFFICE, et al., Appellee.
    No. 1D13-5113.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2014.
    Anthony J. Fails, pro se, Appellant.
    Nancy A. Daniels, Public Defender, Tallahassee; Pamela Jo Bondi, Attorney General, and W. Kirby Bissell, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellee’s motion to dismiss, filed on November 25, 2013, is granted. See Green v. Stepp, 87 So.3d 1261 (Fla. 4th DCA 2012). The appeal is dismissed for lack of jurisdiction.

CLARK, WETHERELL, and RAY, JJ., concur.