text:
    Felipe DE LA HOZ, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Timothy P. Ryan, Director, Miami-Dade Corrections etc., and the State of Florida, Respondents.
    No. 3D13-811.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 2013.
    Rehearing Denied Oct. 29, 2013.

      Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for respondents.
    Before SUAREZ and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   ON PETITION FOR WRIT OF HABEAS CORPUS

SUAREZ, J.

Felipe De La Hoz petitions for a writ of habeas corpus to vacate his April, 2010, second-degree murder conviction and to remand for a new trial pursuant to the decision in Haygood v. State, 109 So.3d 735 (Fla.2013). We have jurisdiction. Fla. R.App. P. 9.030(b)(3). We grant the petition based solely on the particular procedural history of his appeal.

De La Hoz was charged with and convicted of second degree murder with a firearm. His appeal claimed fundamental error in two of the jury instructions on lesser included offenses given at his trial: the Florida standard jury instruction for manslaughter-by-act and the Florida standard jury instruction for manslaughter by culpable negligence. The Florida standard jury instruction for manslaughter-by-act given at his trial included the language, “intentionally caused the death of.... ” The Florida Supreme Court in State v. Montgomery, 39 So.3d 252 (Fla.2010), held that the giving of this instruction was error as the language erroneously required the jury to find that the defendant intended to kill the victim in order to find him guilty of manslaughter-by-act. The court further held that because Montgomery’s conviction for second-degree murder was only one step removed from the necessarily lesser included offense of manslaughter, the giving of the erroneous instruction was fundamental error and reversible per se. De La Hoz was also convicted of second-degree murder and the erroneous pre-Montgomery manslaughter-by-act instruction was given at his trial. The Florida standard jury instruction on manslaughter by culpable negligence was also given at his trial. The Florida Supreme Court, in Haygood v. State, 109 So.3d 735 (Fla.2013), held that giving the manslaughter by culpable negligence instruction did not cure the fundamental error in giving the erroneous -pre-Montgomery manslaughter-by-act instruction where the defendant, as in this case, is convicted of an offense not more than one step removed from manslaughter and the evidence supports a finding of manslaughter-by-act, but does not reasonably support a finding of culpable negligence by the defendant. Hay-good was pending for review in the Florida Supreme Court at the same time as de la Hoz’ appeal on the identical issue at the Third District Court of Appeal.

The evidence in the Petitioner’s case did not support a theory of culpable negligence. The jury was left with the pre-Montgomery manslaughter-by-act instruction that improperly required proof of intent to kill. See Montgomery, 39 So.3d at 257. In fact, the record shows that the jury was struggling with the erroneous offense definitions, because the jury asked the question: “Manslaughter first, second degree? What is the difference in the meaning of intentionally cause the death and the death by the criminal act of?” By agreement, the trial court told the jury to refer to their copies of the instructions, which contained the flawed manslaughter definition. The jury convicted De La Hoz of second degree murder with a firearm.

Haygood v. State, 109 So.3d 735 (Fla.2013), had been accepted by the Florida Supreme Court for review on May 5, 2011, while the Petitioner’s appeal was before the Third District Court of Appeal. In his initial brief, and at oral argument, the Petitioner argued that the instruction given to his jury on manslaughter-by-act was fundamentally erroneous under Montgomery, and where culpable negligence was unsupported by the evidence in his case, giving that particular additional instruction did not cure the error. De La Hoz asked this Court to certify the question to the Florida Supreme Court along with Hay-good because the issues were identical. This Court per curiam affirmed De La Hoz’s appeal on November 16, 2011. De La Hoz v. State, 77 So.3d 1268 (Fla. 3d DCA 2011) (Table). The Petitioner then timely requested a written opinion, or citation to Haygood, which would have allowed him to appeal that issue to the Florida Supreme Court, but this Court denied the motion. On further timely motion filed by the Petitioner to stay or recall the mandate in order to allow him to seek discretionary review, this Court again denied the request. The term of court ended on December 31, 2011, and the mandate issued in February, 2012.

The Florida Supreme Court decided Haygood on February 14, 2013, holding that the culpable negligence instruction did not cure the fundamentally erroneous manslaughter-by-act instruction — the identical instructions given in De La Hoz’s trial and the identical issue that he had timely challenged on direct appeal and by motion.

In its Response to this Petition, the State acknowledges that the Petitioner’s sole issue on direct appeal was whether the pre-Montgomery manslaughter-by-act instruction was fundamental error and, if so, whether that defect was cured by giving the manslaughter by culpable negligence instruction, and correctly points out that the De La Hoz case was not in the Haygood “pipeline.” To have been in the Haygood “pipeline,” the case must have been stayed or pending on appeal when Haygood was decided in February, 2013. See Mitchell v. Moore, 786 So.2d 521, 530 (Fla.2001) (recognizing that the “pipeline” theory allows a defendant to seek application of a new rule of law if the case is pending on direct review or not yet final at the time the new rule of law was announced). De La Hoz’s case was final in February, 2012, when the mandate issued, and thus this particular relief is unavailable.

The State also argues that Hay-good is not retroactively applicable to the Petitioner’s appeal. The State is again correct, but retroactivity is not the issue here. The issue is whether it is a manifest injustice, that — despite the best efforts of the Petitioner’s appellate counsel — the Petitioner’s appeal was prevented from accompanying Haygood for review in the Florida Supreme Court on the identical issue that led to remand for a new trial in Haygood’s and others’ cases.

The State further argues that Haygood is inapplicable because there was no reasonable evidence to support a finding that De La Hoz could have been convicted of culpable negligence. Thus, the State argues, the alternative instruction on culpable negligence was a meaningless gesture, and second degree murder was the only offense realistically available to the jury under the evidence presented. The problem with the State’s argument is that it leads to the inevitable conclusion that, even if Haygood were not applicable given the evidence, Montgomery clearly applies. The Petitioner’s jury was given the fundamentally erroneous pre-Montgomery Florida standard jury instruction on manslaughter-by-act which, in De La Hoz’ case, is fundamental error and reversible per se. Therefore, De La Hoz is still entitled to a new trial.

At this point, the petitioner’s sole remedy is via habeas. Although this Court’s term expired in December, 2011, the Court may still grant habeas relief based on manifest injustice. Where the issue is deemed one of fundamental error, as it was in Haygood, the writ of habeas can be used to provide relief after the expiration of term of court in limited circumstances. See Minnich v. State, — So.3d —, 36 Fla. L. Weekly D216, 2011 WL 265765 (Fla. 1st DCA Jan.28, 2011); Zeno v. State, 910 So.2d 394 (Fla. 2d DCA 2005); Raulerson v. State, 724 So.2d 641 (Fla. 4th DCA 1999). In this case, the record clearly shows that the Petitioner’s appellate counsel made every timely procedural and legal effort to enable De La Hoz to seek discretionary review in the Florida Supreme Court on the Haygood issue. There was no legal or procedural impediment at that time to granting the relief requested by the Petitioner. Under these limited circumstances, where the record supports it, not to extend the same relief to De La Hoz as was provided to similarly situated defendants during the same time frame (see fn.9) is manifestly unjust.

We therefore grant the petition for writ of habeas corpus, vacate the Petitioner’s underlying conviction, and remand for a new trial pursuant to the holdings in Montgomery and Haygood.

Writ of habeas corpus granted; conviction vacated, and remanded for new trial.

      . At the time of De La Hoz’s trial in 2010, the standard jury instructions on manslaughter-by-act and culpable negligence provided, in relevant part:
      To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:
      1. (Victim) is dead.
      2. a. (Defendant) intentionally caused the death of (victim).

      However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide as I have previously explained those terms....
      But culpable negligence is more than a failure to use ordinary care toward others. In order for negligence to be culpable, it must be gross and flagrant.
      Culpable negligence is a course of conduct showing reckless disregard for human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.

        The negligent act or omission must have been committed with an utter disregard for the safety of others.
      Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.
      Fla. Std. Jury Instr. (Crim.) 7.7. (2007).
      Although the language used by the trial court departed slightly from the standard jury instructions, the instructions as given by the trial court were consistent with the standard instructions in use at that time.

      . Montgomery was decided only several days before the conclusion of the Petitioner’s trial.

      . See fn.2.

      . In his direct appeal, De La Hoz acknowledged this Court’s holding in Cubelo v. State, 41 So.3d 263 (Fla. 3d DCA 2010), rev. granted, No. SC10-1759 (Fla. Sep. 7, 2010), concluding that giving an additional instruction for culpable negligence cured the erroneous manslaughter instructions. Cúbelo is currently pending before the Florida Supreme Court on order to Respondent, State of Florida, to show cause why the Court should not accept jurisdiction, summarily quash the decision below, and remand for reconsideration in light of the Haygood decision.

      .De la Hoz was unable to petition the Florida Supreme Court for review because that court does not use conflict jurisdiction to review a per curiam affirmance unsupported by written opinion. It could, however, review a per curiam affirmance with a citation to a case that is pending on review, which is what De La Hoz specifically asked for, but which relief this Court denied. See Persaud v. State, 838 So.2d 529, 532 (Fla.2003) (concluding the Florida Supreme Court’s discretionary review jurisdiction can be invoked only from a district court decision expressly addressing a question of law within the four comers of the opinion itself by statement or citation establishing the point of law upon which the decision rests).

      . The Petitioner's timely motion to stay or recall the mandate was denied over Judge Schwartz's dissent, who indicated he would have granted the motion.

      . At the time, the holdings in Cubelo v. State, 41 So.3d 263 (Fla. 3d DCA 2010), and Haygood v. State, 54 So.3d 1035 (Fla. 2d DCA 2011), were still applicable, as those cases had been accepted by the Florida Supreme Court for discretionary review, but not yet decided.

      . De La Hoz could have become a “pipeline” case had this Court granted the Petitioner's motion to stay the mandate pending resolution of Haygood.

      .This Court and other Florida district courts have granted certification to a number of appeals decided contemporaneously with De La Hoz and raising the same issue as presented in Haygood. For example, see Cubelo v. State, 41 So.3d 263 (Fla. 3d DCA 2010), rev. granted, No. SC10-1759 (Fla. Sep. 7, 2010); Garrido v. State, 76 So.3d 378 (Fla. 3d DCA 2011), rev. granted, No. SC12-60 (Fla. Jan. 10, 2012); Nieves v. State, 22 So.3d 691 (Fla. 2d DCA 2009), rev. granted, No. SC09-2216 (Fla. Dec. 2, 2009); McNealy v. State, 67 So.3d 1187 (Fla. 2d DCA 2011), rev. granted, No. SC11-1842 (Fla. Sep. 15, 2011); Salonko v. State, 42 So.3d 801 (Fla. 1st DCA 2010), rev. granted, No. SC 10-842 (Fla. Apr. 29, 2010). We note that all of these are currently proceeding on orders to show cause why the decisions should not be summarily quashed and remanded for reconsideration in light of the Haygood decision.

      . The Florida Supreme Court decided Montgomery on April 8, 2010; De La Hoz was convicted thirteen days later, on April 21, 2010, with the same jury instructions on manslaughter-by-act deemed fundamentally erroneous by the Court in Montgomery.

      . The grant of this petition is decided solely on the procedural history of this appeal. It in no way addresses, nor is it intended to address, the merits of the case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    J.K., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-50.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 2013.
    James S. Purdy, Public Defender, and John M. Selden, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. J.B.S. v. State, 90 So.3d 962 (Fla. 1st DCA 2012). See also, J.S. v. State, 805 So.2d 37 (Fla. 5th DCA 2001).

GRIFFIN, LAWSON and COHEN, JJ., concur.


text:
    Joseph MATASSA, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4469.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 2013.
    James S. Purdy, Public Defender, and Aliene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Rutledge v. State, 1 So.3d 1122 (Fla. 1st DCA 2009).

PALMER, EVANDER and BERGER, JJ., concur.


text:
    Tarrus Hakeem KELLY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3186.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2013.
    Tarrus Hakeem Kelly, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROBERTS, SWANSON, and MAKAR, JJ., concur.


text:
    Anthony RHANEY, II, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4483.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2013.
    Anthony Rhaney, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROBERTS, SWANSON, and MAKAR, JJ., concur.


text:
    Charles DANIELS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4423.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2013.
    Charles Daniels, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROBERTS, SWANSON, and MAKAR, JJ., concur.


author: CLARK, J.

text:
    STATE of Florida, Appellant, v. Stephen Todd BOWMAN, Appellee.
    No. 1D12-3227.
    District Court of Appeal of Florida, First District.
    Oct. 9, 2013.

      Pamela Jo Bondi, Attorney General and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellant.

      Chuck Collins of the Chuck Collins Law Firm, Monticello, for Appellee.
   CLARK, J.

The State appeals the trial court’s downward departure sentence of Appellee for two counts of violations of section 943.0485, Florida Statutes (failure of sexual offender to report in person and failure of sexual offender to timely report). Upon Appel-lee’s plea to the charges, the trial court imposed two consecutive 5-year sentences, suspended upon completion of 5 years of probation and various special conditions. Because the trial court erred in its finding of a valid legal ground to depart, the sentence is reversed and this case is remanded for resentencing.

The parties agreed that the minimum permissible sentence under the Criminal Punishment Code scoresheet calculation was 66.75 months incarceration, and that the suspended prison sentences conditioned upon probation constituted a downward departure from the minimum permissible sentence. See State v. Adkison, 56 So.3d 880 (Fla. 1st DCA 2011) (“A sentence consisting of a suspended prison term followed by probationary period is treated as a downward departure sentence.”). Section 921.0026(1), Florida Statutes, prohibits a downward departure “unless there are circumstances or factors that reasonably justify the downward departure.” In addition, “[a]ny sentence imposed below the lowest permissible sentence must be explained in writing by the trial court judge.” § 921.002(3), Fla. Stat.

The record in this case does not contain any written explanation by the trial judge for its downward departure. However, this omission alone does not require reversal in this case. The record contains a transcript of the sentencing proceedings and the trial court expressed its reasons for departure therein. See Pease v. State, 712 So.2d 374 (Fla.1997).

On the merits, it is well-settled that “[a] trial court’s decision whether to depart from the guidelines is a two-part process.” State v. Whiteside, 56 So.3d 799, 800 (Fla. 2d DCA 2011). The trial court’s first step is to “determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it.” Banks v. State, 732 So.2d 1065, 1067 (Fla.1999). Section 921.0026(2) lists valid mitigating factors which may support a downward departure, but a trial court is authorized to depart for non-statutory reasons as well. If a trial judge bases a downward departure on a non-statutory ground, “the issue is whether [such ground is] prohibited, and if not, whether there is competent substantial evidence in the record to support” it. State v. Thompkins, 113 So.3d 95, 99 (Fla. 5th DCA 2013). Further, the trial court must determine if a non-statutory mitigator “is consistent with legislative sentencing policies.” State v. Knox, 990 So.2d 665, 669 (Fla. 5th DCA 2008). In this case, the issue is whether the trial court based its departure sentence on a valid legal ground not listed in section 921.0026(2).

During the sentencing hearing, the court expressed its opinion that the lowest permissible sentence was “a bit harsh” when Appellee was only a few weeks late to register and had no obvious intent to violate the registration requirements. However, a trial court’s opinions that the lowest permissible sentence is too harsh, or that the severity of the sentence is not commensurate with the seriousness of the crime, are prohibited grounds upon which to depart. State v. Sigmen, 115 So.3d 1121 (Fla. 1st DCA 2013) (lowest minimum sentence “too harsh;” without any factual finding to support lack of proportionality, not a valid mitigator); State v. Thompkins, 113 So.3d 95 (Fla. 5th DCA 2013); see also State v. Baker, 498 So.2d 1031 (Fia. 1st DCA 1986). “A trial court may not ignore the criminal sentencing policy established by the legislature simply because that policy offends the trial court’s sensibilities.” State v. Ayers, 901 So.2d 942 (Fla. 2d DCA 2005).

The trial court’s primary non-statutory mitigating factor to explain the downward departure was “the Heartland Doctrine,” a federal sentencing policy applicable to “atypical” cases not contemplated by the federal sentencing guidelines. Although we find no Florida case specifically prohibiting this ground, we likewise find no case applying this federal policy to Florida sentences. “The provision of criminal penalties and of limitations on such penalties is a matter of predominantly substantive law and, as such, is a matter properly addressed by the Legislature.” § 921.002(1), Fla. Stat. The Florida Legislature has codified Florida’s policies for sentencing, including departure sentences, in Florida’s Criminal Punishment Code, sections 921.002-921.0027, Florida Statutes. While similarities to the federal system of sentencing for federal offenses are certainly present, Florida has not adopted wholesale the policies or commentary pertaining to federal sentencing guidelines and laws. The trial court’s reliance on the federal “Heartland” doctrine for sentencing in atypical federal cases, without further explanation of how this policy corresponds to Florida’s sentencing policies as set out by the Florida Legislature and case law interpretations of those policies, was not a valid legal ground for departure from Florida’s Criminal Punishment Code. The Federal Sentencing Guidelines Manual and the attached commentary, including the “heartland doctrine,” do not have any direct application to Florida sentencing determinations by Florida state courts.

In light of the foregoing, the sentence is REVERSED and this case REMANDED for resentencing. If the trial court finds grounds upon which to enter a departure sentence, it shall explain the sentence in writing.

VAN NORTWICK and OSTERHAUS, JJ., concur.

      . As described in Koon v. United States, 518 U.S. 81, 92-93, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), the "heartland doctrine” allows a federal court to depart from the federal sentencing guidelines "if the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the [federal] Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.’ 18 U.S.C. § 3553(b).” The Supreme Court referred to the federal Guidelines Manual, 1995 U.S.S.G. ch. 1, pt. A, introduction to comment 4(b), which explains that the federal sentencing guidelines are to be treated by federal courts "as carving out a 'heartland,' a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted. Ibid." Koon, 518 U.S. at 93, 116 S.Ct. 2035 (quoting 1995 U.S.S.G. Introduction).


text:
    Henry L. HOGAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2193.
    District Court of Appeal of Florida, First District.
    Oct. 9, 2013.

      Henry L. Hogan, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant filed a motion pursuant to Florida Rule of Criminal Procedure 3.850 motion arguing that trial counsel was ineffective because he misadvised the appellant of the maximum sentence that he faced when considering the state’s plea offer. The appellant claims that the state offered him three years’ imprisonment in exchange for pleading guilty to two charges. He claims that counsel advised him the maximum sentence he faced was fifteen years based upon one of the charges, possession of a firearm by a convicted felon, a second-degree felony, if the appellant proceeded to trial and was convicted. However, because the state subsequently served him with notice that it intended to seek to have him sentenced as a habitual felony offender, he instead faced thirty years’ imprisonment for the possession of a firearm charge. He argues that had he known that he faced thirty years’ imprisonment he would have taken the three years offered by the state. Instead he proceeded to trial and, upon conviction, was sentenced to fifteen years’ imprisonment.

The trial court summarily denied the appellant’s claim, concluding that the appellant was not prejudiced because he was sentenced to 15 years’ imprisonment, the maximum he thought he was facing when he rejected the plea offer, rather than the 30 years he could have gotten as a habitual felony offender. See generally Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, the trial court’s order is at odds with the recent supreme court decision in Alcorn v. State, 121 So.3d 419 (Fla.2013) (holding that to establish prejudice a defendant must demonstrate that he would have accepted the plea offer had counsel advised the defendant correctly, the prosecutor would not have withdrawn the plea offer, the court would have accepted the offer, and the conviction or sentence, or both, under the offer’s terms would have been less severe than the actual judgment and sentence imposed).

Consequently, we reverse the summary denial of this claim and remand for the trial court to either attach the portion of the record that conclusively refutes the appellant’s claim, as analyzed under Al-corn, or to hold an evidentiary hearing on the matter.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

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

      . The appellant raised a second claim in his motion, but because he has filed an initial brief and has not argued this second claim in the brief, he has waived the right to have this Court consider this matter in this appeal. See White v. White, 627 So.2d 1237 (Fla. 1st DCA 1993). We therefore affirm the summary denial of this claim.


text:
    Michael A. TORREY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0768.
    District Court of Appeal of Florida, First District.
    Oct. 9, 2013.
    Michael Torrey, pro se, Appellant.
    Pamela Jo Bondi, Attorney General and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Ray JAMES, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-3013.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2013.
    Ray James, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See James v. Crews, 120 So.3d 628 (Fla. 1st DCA 2013).

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


text:
    Ray JAMES, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-3017.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2013.
    Ray James, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See James v. Crews, 120 So.3d 628 (Fla. 1st DCA 2013).

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


text:
    Lawrence BAKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4345.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2013.
    Lawrence Baker, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Seth SUTHERLAND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4510.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2013.
    Seth Sutherland, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


author: SAWAYA, J.

text:
    Patrick MACCHIONE, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-685.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 2013.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, J.

Patrick Macchione is a deeply disturbed individual who suffers from “severe” mental illness. This may explain, but does not excuse (mental competence is not an issue), his obsession with the victim and his threats to take the victim’s life. Macchione comes to this court with an array of convictions that include sixteen violations of repeat violence injunction and one conviction each for aggravated stalking after an injunction, aggravated stalking with a credible threat, and violation of section 836.10, Florida Statutes (2009), which makes it a crime if a person “writes or composes and also sends or procures the sending of any letter or inscribed communication ... to any person, containing a threat to kill or do bodily injury to the person to whom such letter or communication is sent_” § 836.10, Fla. Stat. (2009). Of these convictions, Macchione challenges only the latter, contending that the trial court committed reversible error in denying his motion to dismiss that charge. The question presented is whether, as Macchione contended in his motion and contends in this appeal, the threatening electronic communications in the form of Twitter postings and YouTube videos were not prohibited by section 836.10 when he composed and transmitted them in 2009.

These convictions are the result of a plea Macchione entered. He reserved the right to appeal the denial of the motion to dismiss he had previously filed. The court found, and the State agreed, that the motion is dispositive of the charge alleging violation of section 836.10, and hence this appeal. The facts and circumstances surrounding the commission of this offense are not particularly helpful to the resolution of the issue before us. It is enough simply to say that the threats to harm and kill the victim were contained in YouTube videos and Twitter postings and that all of the charged communications were stipulated by the State to be electronic communications composed and transmitted in 2009.

The significance of the stipulated facts lies in the historical development of section 836.10. The statute was enacted in 1913 and provided that it was a criminal offense “if any person write or compose and also send or procure the sending of any letter or inscribed communication ... to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent....” Ch. 6503, Laws of Fla. (1913). The statute has been amended four times since its original enactment, but the first three amendments (the third amendment occurred in 1971) virtually left unchanged the pertinent provisions we are concerned with. The fourth amendment, expressly made effective October 1, 2010, did significantly amend the statute by incorporating the following changes (strike through means deletion, underline means addition):

If Any person who writes or composes and also sends or procures the sending of any letter, or inscribed communication, or electronic communication, so written-or composed, whether such letter or communication be signed or anonymous, to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent commits, the person-so writing or composing and so sending or procuring-the- sending- of-saeh letter "OF communication7 shall be guilty of a felony of the second degree punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Ch.2010-51, § 1, at 381, Laws of Fla. Macchione contends that this amendment constitutes a substantive change by including the prohibition against sending a threatening “electronic communication.” Because it is a substantive change as opposed to a clarification, Macchione further contends that the 2009 version of the statute that he was charged with violating does not make his electronic communications (Twitter postings and YouTube videos) a criminal offense. He cannot be convicted under the 2010 amendment, he argues, because that would constitute a violation of the constitutional protection against ex post facto laws. The State takes the opposite view, contending that the 2010 amendment to section 836.10 clarified that electronic communications were intended all along by the Legislature to fall within the meaning of the statutory provisions enacted in the 1913 era and therefore no ex post facto violation occurred.

The prohibition against ex post facto laws is found in both the United States and Florida constitutions. U.S. Const, art. I, § 10; art. I, § 10, Fla. Const. This constitutional proscription “forbids the enactment of ‘laws with certain retroactive effects,’” Shenfeld v. State, 44 So.3d 96, 100 (Fla.2010) (quoting Stogner v. California, 539 U.S. 607, 610, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003)), that fall into four general categories recognized by the courts as providing an authoritative guide governing the evaluation of all ex post facto claims. Shenfeld; Stogner. Of these categories, the first one, categorizing as an improper ex post facto law “[ejvery law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,” is applicable here. Shenfeld, 44 So.3d at 100 (quoting Stogner, 539 U.S. at 612, 123 S.Ct. 2446, which adopted the four categories listed in Colder v. Bull, 3 U.S. 386, 3 Dall. 386, 1 L.Ed. 648 (1798)); see also Collins v. Youngblood, 497 U.S. 37, 46, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). Clarifying amendments are generally not considered substantive enactments because they usually do not make acts criminal that were not previously declared criminal or increase the punishment for offenders. Rather, such amendments are understood as clarifying or explaining the legislative intent that animated enactment of the original statute, and usually do not fit within the parameters of any accepted category of ex post facto law. See State v. Nuckolls, 606 So.2d 1205, 1207 (Fla. 5th DCA 1992). If the 2010 amendment is a clarification of the statute as originally enacted in 1913, as the State contends, Mac-chione’s conviction must be affirmed.

There are factors the courts apply when determining whether a statutory amendment is a clarification of existing law that may be applied retroactively. They include: whether the amendment responds to a recent controversy; the span of time between enactment of the original statute and the amendment; and the contents of the title of the bill containing the amendment. Each will be discussed seriatim.

“When ... an amendment to a statute is enacted soon after controversies as to the interpretation of the original act arise, a court may consider that amendment as a legislative interpretation of the original law and not as a substantive change thereof.” Lowry v. Parole & Prob. Comm’n, 473 So.2d 1248, 1250 (Fla.1985) (citations omitted); see Foster v. State, 861 So.2d 434, 439 (Fla. 1st DCA 2002); Matthews v. State, 760 So.2d 1148, 1150 (Fla. 5th DCA 2000); State v. Sedia, 614 So.2d 533, 535 (Fla. 4th DCA 1993). Our canvass of the pertinent case law revealed no reported decision applying the pre-amendment version of section 886.10 to electronic communications, so we see no controversy created by the courts. We also do not see anything the State has submitted that would suggest a controversy was brewing elsewhere that would prompt the Legislature to enact the amendment.

The span of time between the enactment of the statute and its amendment, see Parole Commission v. Cooper, 701 So.2d 543, 544-45 (Fla.1997), and State Farm Mutual Automobile Insurance Co. v. Laforet, 658 So.2d 55, 62 (Fla.1995), is a factor that bodes particularly well for Macchione’s position that the amendment is not a clarification. In Cooper, the court held that “it is inappropriate to use an amendment enacted ten years after the original enactment to clarify original legislative intent,” 701 So.2d at 544-45, and in Laforet, the court held that “[i]t would be absurd ... to consider legislation enacted more than ten years after the original act as a clarification of original intent_” 658 So.2d at 62. Here, the pertinent provisions of the statute virtually remained unchanged from the time of its enactment in 1913 until October 1, 2010, and this span of 97 years exceeds more than nine times the ten-year period applied in Cooper and Laforet. And the span of time between the prior amendment in 1971 (which did not alter the pertinent provisions of the statute) and the 2010 amendment is almost three times the ten-year period. See Ramcharitar v. Derosins, 35 So.3d 94, 99 (Fla. 3d DCA 2010) (reversing an order finding the amendment was a clarification; concluding that “the 2003 revision to section 440.10 occurred twenty years after the Court decided Abernathy and some twenty-nine years after the 1974 amendment to section 440.10. As was held by the Court in similar circumstances, given that the membership between the 1974 and 2003 Legislatures was substantially different, it would be absurd to consider the 2003 revision as a clarification of the Legislature’s original intent in 1974 ....”); see also M.W. v. Davis, 756 So.2d 90, 103 n. 26 (Fla.2000) (“Due to the gap between when the language was originally placed in the statute and the most recent amendment, the 1999 amendment cannot be seen as clarifying the Legislature’s intent in 1986 .... “ (citation omitted)).

The courts also look to the title of the bill where legislative intent is often revealed to see if the Legislature made any indication that the amendment was intended to be a clarification of the statute. See Earth Trades, Inc. v. T & G Corp., 108 So.3d 580, 585 (Fla.2013) (“In the title of the 2003 session law amending section 489.128, the Legislature stated that its intent was to ‘clarify! ] that the prohibition on enforcement of construction contracts extends only to enforcement by the unlicensed contractor.’ Ch.2003-257, at 1290, Laws of Fla.”); see also Kasischke v. State, 991 So.2d 808, 809 (Fla.2008) (“We certainly agree that the bill title may be helpful in determining legislative intent.” (citation omitted)); State v. Webb, 398 So.2d 820, 825 (Fla.1981) (“The title is more than an index to what the section is about or has reference to; it is a direct statement by the legislature of its intent.” (citation omitted)). The title to the bill enacting the amendment to the statute at issue here provides:

An act relating to threats; amending s. 836.10, F.S.; revising provisions relating to the sending of or procuring the sending of letters or inscribed communications containing certain threats of death or bodily injury; including electronic communications in provisions; providing an effective date.

Ch.2010-51, § 1, at 381, Laws of Fla. In Hassen v. State Farm Mutual Automobile Insurance Co., 674 So.2d 106 (Fla.1996), the Florida Supreme Court, conducting an analysis of a similar title, stated:

[T]he conclusion that the amendment at issue here was intended to be a substantive rather than a remedial change in the law is further supported by the title to chapter 92-318, which reads in pertinent part “[a]n act relating to insurance; ... amending s. 627.727, F.S.; ... revising provisions with respect to subro-gation rights of underinsured motorist insurers.” Ch. 92-318, at 3081-84, Laws of Fla. Parker v. State, 406 So.2d 1089, 1092 (Fla.1981) (recognizing that title of enacting legislation is one indicator of legislative intent).

Hassen, 674 So.2d at 109-10.

We believe the title clearly indicates that the Legislature intended to make a substantive change to be applied prospectively as opposed to a retroactive clarification. The title specifically provides that the amendment is “including electronic communications” as a separate category theretofore never included in the prohibitions of the statute. Ch.2010-51, § 1, at 381, Laws of Fla. Now the amended statute lists three alternative prohibitions, “letter, inscribed communication, or electronic communication” that may form the basis of a criminal prosecution, whereas before there were only two. Compare § 836.10, Fla. Stat. (2009), with § 836.10, Fla. Stat. (2010).

The title also states that an effective date is provided, October 1, 2010, which is well after the date Macchione sent the electronic communications. Ch.2010-51, §§ 1-2, Laws of Fla. When the Legislature provides an effective date for an amendment, it effectively rebuts any argument that the amendment is to be applied retroactively. State Dep’t of Revenue v. Zuckerman-Vernon Corp., 354 So.2d 353, 358 (Fla.1977); Ramcharitar, 35 So.3d at 98; Promontory Enters., Inc. v. S. Eng’g & Contracting, Inc., 864 So.2d 479, 484 (Fla. 5th DCA 2004); Middlebrooks v. Dep’t of State, Div. of Licensing, 565 So.2d 727, 728-29 (Fla. 1st DCA 1990).

Macchione relies on the staff analysis to show that the Legislature’s intent was to enact a substantive amendment to be applied prospectively. A shroud of uncertainty has been placed over the use of staff analyses by statements made by the Florida Supreme Court indicating that “ ‘[t]his Court is not unified in its view of the use of legislative staff analyses to determine legislative intent,’ ” Kasischke, 991 So.2d at 810 (quoting GTC, Inc. v. Edgar, 967 So.2d 781, 789 n. 4 (Fla.2007)), and that “even if staff analyses may sometimes help in determining legislative intent, and even if we could expect defendants to review them to determine what conduct was permitted, the Staff Analysis here fails to clarify the Legislature’s intent.” Kasischke, 991 So.2d at 811. But unlike the staff analysis in Kasisehke, the reports we have reviewed do clearly support Mac-chione’s contention that a substantive change was intended by the Legislature when it enacted the amendment. In any event, we note that we did not need to rely on those reports to arrive at our conclusion. We simply note them here because they are supportive of that conclusion.

Perhaps sensing the eventual demise of its clarification argument, the State has débuted a new argument, which it now promotes as the main attraction. For the first time in its brief (the State did not make this argument to the trial court), the State contends that the amendment is immaterial because the Twitter postings and YouTube videos fall under the purview of the statute as originally written in 1913. This argument parrots the reasoning utilized by the trial court in denying Mac-chione’s motion, which characterized the amendment as “unnecessary.” We reject this argument and the trial court’s reasoning because they necessarily strip the amendment of any meaning and render it a collection of useless words enacted for no purpose. “It is a basic rule of statutory construction that ‘the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.’” Dennis v. State, 51 So.3d 456, 463 (Fla.2010) (quoting Martinez v. State, 981 So.2d 449, 452 (Fla.2008) (other citation omitted)); State v. Goode, 830 So.2d 817, 824 (Fla.2002); Unruh v. State, 669 So.2d 242, 245 (Fla.1996) (“As a fundamental rule of statutory construction, ‘courts should avoid readings that would render part of a statute meaningless.’” (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 456 (Fla.1992))); Sharer v. Hotel Corp. of Am., 144 So.2d 813, 817 (Fla.1962) (“It should never be presumed that the legislature intended to enact purposeless and therefore useless, legislation.”); Quarantello v. Leroy, 977 So.2d 648, 651 (Fla. 5th DCA), review denied, 987 So.2d 1210 (Fla.2008).

The State’s argument and the trial court’s reasoning suffer from another fatal flaw: they are premised on a very broad and extravagant interpretation of the statute that draws inference upon inference to arrive at their conclusions. The first inference is that because the Legislature must have been aware of telegrams and telegraphs, which were in use in 1913, it must have intended to include that form of composition and communication in the statute when it was enacted that year. From that inference another inference is drawn that the Legislature must have intended to include all forms of electronic composition and communications when it enacted the root form of the statute in 1913. And from that inference yet another is drawn, which is that the Legislature intended in 1913 that “mail” and “inscribed communication” include threatening Twitter postings and YouTube videos. But the Legislature did not specify telegrams and telegraphs as proscribed threats and it could have easily done so. And we hardly think that Twitter postings and YouTube videos were intended by the Legislature in 1913 to fall within the plain meaning of the terms “letter” and “inscribed communication.” Moreover, as the development and use of electronic communications has grown exponentially over the last two decades to include Twitter postings and YouTube videos, it is beyond the realm of legislative contemplation to suggest that this dramatic growth and these new forms of composition and communications formed the Legislature’s intent in 1913 when it first enacted the statute.

Even if it would be reasonable to interpret the 2009 version of the statute to include YouTube videos and Twitter postings as letters or inscribed communications (and we do not think it would be), the rule of lenity would dictate the opposite interpretation. Lenity is a deeply-rooted common law principle of statutory construction requiring strict interpretation of ambiguous criminal statutes in favor of the accused. It has not only become ensconced in our jurisprudence, it has become a statutory directive. See § 775.021(1), Fla. Stat. (2009) (“The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.”). Its importance has been emphasized by the courts, which describe it as “[o]ne of the most fundamental principles of Florida law,” Perkins v. State, 576 So.2d 1310, 1312 (Fla.1991), and its derivation comes from due process directives that require criminal statutes to say with some precision what is prohibited so everyone will be given sufficient notice of matters that may result in deprivation of life, liberty, or property. Id. Therefore, if the statute is reasonably susceptible to either interpretation, it must be strictly construed in Macchione’s favor.

We conclude that the particular threats Macchione electronically composed and communicated do not fall within the provisions of the 2009 version of section 836.10. Although these electronic communications are prohibited by the amendment enacted in 2010, that amendment constitutes a substantive change meant to be applied prospectively, and to sustain Macchione’s conviction under that amendment would violate the constitutional proscriptions against ex post facto laws. We, therefore, reverse his conviction for violating section 836.10 and vacate the sentence imposed for that offense. We remand this case to the trial court to render a corrected judgment and sentence.

REVERSED and REMANDED with instructions.

PALMER and EVANDER, JJ., concur.

      . Because of Macchione’s mental illness, the State stipulated to a downward departure sentence based on the fact that Macchione was unable to conform his conduct to the requirements of the law. The sentences he received for the counts charging aggravated stalking after entry of an injunction and for aggravated stalking with a credible threat were four years in prison followed by one year of community control for each offense. These sentences were ordered to be served concurrently. He was sentenced to one year of probation for each of the counts charging violation of an injunction to be served concurrently. For the offense of violating section 836.10, Macchione was sentenced to two years of community control to be followed by thirteen years of probation.

      . An order had initially been entered in the case finding Macchione incompetent to proceed. A subsequent order was rendered concluding that Macchione had been restored to competency and his plea was accepted.

      . When interpreting a statute, our principal objective is to discern legislative intent from the text of the statute, see Anderson v. State, 87 So.3d 774, 777 (Fla.2012), and when "the Legislature does not define the words used in a statute, this [c]ourt first examines the plain language of the statute in order to determine the parameters of a specific element of an offense.” Paul v. State, 112 So.3d 1188, 1194-95 (Fla.2013) (citing Marrero v. State, 71 So.3d 881, 886 (Fla.2011)). As Justice Holmes stated, in the context of statutory construction, “whatever the consequences, we must accept the plain meaning of plain words.” United States v. Brown, 206 U.S. 240, 244, 42 Ct.Cl. 534, 27 S.Ct. 620, 51 L.Ed. 1046 (1907). A dictionary may be utilized as an aid to understanding the ordinary meaning of statutory terms. Paul, 112 So.3d at 1195; State v. D.C., 114 So.3d 440, 442 (Fla. 5th DCA 2013).
      Black’s Law Dictionary defines "letter” in pertinent part as "[a] written communication that is usu. enclosed in an envelope, sealed, stamped, and delivered (esp., an official written communication).” Black's Law Dictionary 986 (9th ed.2009). The word “inscribe” is similarly defined as "to write, engrave, or print as a lasting record” or to “enter on a list: enroll,” http://www.merriam-webster. com/dictionary/inscribe (last visited September 7, 2013), and "[t]o write, print, carve, or engrave (words or letters) on or in a surface” and "[t]o mark or engrave (a surface) with words or letters.” The American Heritage Dictionary 664 (2d ed. 1985). The Twitter postings and YouTube videos Macchione composed are neither letters, as that word is commonly understood, nor inscribed communications under these definitions.


author: EVANDER, J.

text:
    UNIVERSAL CHECKS & FORMS, INC., et al., Appellants, v. PENCOR, INC. and William H. Shurm, Appellees.
    No. 5D12-3593.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 2013.
    Neal J. Blaher, of Law Office of Neal J. Blaher, Altamonte Springs, for Appellants.

      Scott A. Cole and Kathryn L. Smith, of Cole, Scott & Kissane, P.A., Miami, for Appellees.
   EVANDER, J.

Universal Checks & Forms, Inc., Universal Print Management, Inc., and Brian Thornton (collectively “Universal”) appeal a final judgment dismissing their complaint against Pencor, Inc., and William Shurm (collectively “Pencor”). The trial court dismissed the complaint on the basis that Universal’s claims were preempted by the Employment Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. Because they only peripherally involve ERISA, Universal’s claims are not preempted and, accordingly, we reverse.

Universal filed a complaint for breach of fiduciary duty and negligence in connection with Pencor’s recommendation and sale to Universal of a defined benefit plan. According to the complaint, Pencor failed to disclose a critical feature of the defined benefit plan, namely, the impact of the age of employees on those employees’ share of the plan.

The complaint alleged that in 2005, Pen-cor presented Universal with the idea of establishing a defined benefit plan as a tax shelter and retirement savings vehicle. Pencor represented that Universal’s 71-year-old clerical employee would be entitled to only a small benefit while Universal’s principal, Brian Thornton, would “reap the lion’s share” from the plan. Pencor did not explain that because of the clerical employee’s age, her share of the benefits would rapidly increase. In reli-anee on Pencor’s representations, Universal implemented the recommended plan. Pencor received a commission/fee for the transaction.

When the clerical employee retired in 2011, Universal was obligated to pay her $96,700 from the plan even though she had never been paid more than $20,000 annually. Universal alleged that but for Pencor’s recommendation and representations, Universal would not have subscribed to a defined benefit plan but would have opted for some other form of retirement plan through which it would have only been required to pay the clerical employee approximately $15,000, at most, toward her retirement. It is Universal’s position that Pencor recommended a defined benefit plan that was unsuitable for Universal. The complaint requested compensatory damages of no less than $80,000, disgorgement of commissions, prejudgment interest, costs, and fees.

Pencor moved to dismiss the complaint on the basis that the claims were preempted by ERISA. The motion was granted and the trial court entered a final judgment of dismissal.

ERISA was passed by Congress in 1974 to “safeguard employees from the abuse and mismanagement of funds that had been accumulated to finance various types of employee benefits.” Massachusetts v. Morash, 490 U.S. 107, 112, 109 S.Ct. 1668, 104 L.Ed.2d 98 (1989). The United States Supreme Court has described ERISA as “a comprehensive statute designed to promote the interests of employees and their beneficiaries in employee benefit plans.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983).

In enacting ERISA, Congress intended to make the regulation of pension plans solely a federal concern. Firestone Tire & Rubber Co. v. Neusser, 810 F.2d 550, 552 (6th Cir.1987). Consequently, ERISA preempts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan....” 29 U.S.C. § 1144(a) (emphasis added).

Initially, the Supreme Court gave a broad dictionary interpretation to the “relate to” preemption language, stating that a law “relates to” an employee benefit plan “if it has a connection with or reference to such a plan.” Shaw, 463 U.S. at 96-97, 103 S.Ct. 2890. However, the Shaw court also recognized that some state actions may affect employee benefit plans “in too tenuous, remote, or peripheral a manner to warrant a finding that the law ‘relates to’ the plan.” Id. at 100 n. 21, 103 S.Ct. 2890.

Later, in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co., 514 U.S. 645, 656, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995), the Court narrowed its broad dictionary definition, describing the statute’s “relate to” language as “unhelpful.” Instead, the Court decided that in determining preemption issues, it would look to the objectives of the ERISA statute. Specifically, the Court concluded that Congress intended

to ensure that plans and plan sponsors would be subject to a uniform body of benefits law; the goal was to minimize the administrative and financial burden of complying with conflicting directives among States or between States and the Federal Government ..., [and to prevent] the potential for conflict in substantive law ... requiring the tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction.

Id. at 656-57, 115 S.Ct. 1671 (quoting Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990)).

In the instant case, we do not believe that permitting Universal to proceed with its action against Pencor would, in any way, interfere with Congress’s intent to ensure that plans and plan sponsors are subject to a uniform body of benefits law. Universal is not asserting wrongdoing in the administration of the employee benefit plan, nor is it challenging the terms and conditions of the plan as created. Rather, Universal is alleging that Pencor engaged in tortious conduct by recommending that Universal create an employee benefit plan as a retirement investment vehicle and tax shelter. The recommendation, and the tortious conduct allegedly associated with it, necessarily occurred before the plan was even formed.

In Bertoni v. Stock Building Supply, 989 So.2d 670 (Fla. 4th DCA 2008), our sister court, citing to Firestone, applied a three-part test to determine whether the plaintiffs state law claim related to an ERISA plan or was so remote and peripheral as to not be preempted. This test requires a court to determine:

(1) whether the state law represents a traditional exercise of state authority;
(2) whether the law affects relations between principal ERISA entities; and
(3) the effect that state law, if applied, would have on the plan.

Id. at 675.

Here, the application of this test supports Universal’s contention that its claims are not preempted by ERISA. First, the neutral application of Florida tort law represents a traditional exercise of state authority. Id. Second, there is no allegation that Pencor is an ERISA entity. Third, the litigation will not impact the plan. The plan itself is not a party to the lawsuit and the litigation, regardless of the outcome, will not result in any funds being paid from or received by the plan. Furthermore, there is no relief sought that would change the nature or terms of the plan, make any changes to benefits being paid out, or otherwise address the ongoing administration of the plan.

We find further support for our decision from Morstein v. National Insurance Services, Inc., 98 F.3d 715 (11th Cir.1996). In Morstein, the plaintiff alleged that the defendants, an independent insurance agent and his agency, had fraudulently induced her to purchase an ERISA-governed insurance plan and had been negligent in processing her application for the plan. Id. at 717. In concluding that the plaintiffs actions were not preempted, the Mor-stein court observed that to permit preemption of the plaintiffs claim would not serve Congress’s intent to protect the interest of employees and other beneficiaries of employee benefit plans:

To immunize insurance agents from personal liability for fraudulent misrepresentation regarding ERISA plans would not promote this objective. If ERISA preempts a beneficiary’s potential cause of action for misrepresentation, employees, beneficiaries, and employers choosing among various plans will no longer be able to rely on the representations of the insurance agent regarding the terms of the plan.

Id. at 728.

Similarly, we conclude that Congress’s intent to protect the interests of employees and other beneficiaries of employee benefit plans would not be furthered by immunizing an investment adviser from suit if the adviser’s client has suffered damage because the investment advisor recommended a defined benefit plan that was unsuitable for the client. See Perkins v. Time Ins. Co., 898 F.2d 470, 473 (5th Cir.1990) (Congress did not intend for ERISA preemption to extend to state law tort claims brought against insurance agents where such would “immunize agents from personal liability for their solicitation of potential participants in an ERISA plan prior to its formation”); Padeh v. Zagoria, 900 F.Supp. 442 (S.D.Fla.1995) (holding that state law negligence and negligent misrepresentation claims against investment advisers and insurance representatives for negligently advising plaintiffs to invest proceeds from sale of investment into pension plan that was ill-suited for their needs did not relate to pension plan and were not preempted by ERISA).

We conclude that Universal’s claims do not relate to an ERISA plan and, therefore, are not preempted by ERISA.

REVERSED and REMANDED.

TORPY, C.J. and PALMER, J., concur.

      . As an alternative basis for affirmance, Pen-cor argues that Universal’s action is barred by the statute of limitations. This issue was not raised in Pencor's motion to dismiss and, accordingly, we decline to address it on appeal.

      . See 29 U.S.C. § 1002(35) (defining, with certain exceptions, a “defined benefit plan” as a pension plan other than an individual account plan).


author: COHEN, J.

text:
    Mistie FETZER, Appellant, v. Kyle T. EVANS, Appellee.
    No. 5D12-2716.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 2013.

      Sharon L. Stedman, Orlando, for Appellant.
    Melanie M. Demps, of McMichen, Cina-mi & Demps, PLLC, Orlando, for Appel-lee.
   COHEN, J.

Mistie Fetzer (“Former Wife”) appeals from the final judgment denying her petition to relocate to Indiana with the child born of her marriage to Kyle Evans (“Former Husband”). We affirm.

The parties were married for nearly three years, living in California. One child was born of the marriage. The parties divorced in 2008, and the Superior Court of California for Solano County entered a final judgment of dissolution (“the California judgment”). The California judgment incorporated the parties’ marital settlement agreement (“MSA”), which included a time-sharing schedule providing for shared parental responsibility. Specifically, the MSA provided: “Each party shall have [the child] three continuous days per week and every other Saturday. This schedule shall continue on until further order of the court or written agreement of the parties.” At the time the parties entered into the MSA, both Former Wife and Former Husband resided in California, but Former Wife anticipated moving to Florida. Accordingly, the MSA provided:

IN THE EVENT that [Former Wife] relocates to Orlando, Florida within the twelve months following the effective date of this agreement, the child custody and visitation order will be modified as follows:
a. The parties shall share joint legal and joint physical custody of [the child]. [Former Wife] shall have primary physical custody of [the child].
e. In the event that [Former Husband] relocates to Florida, the parties will resume joint legal and joint (50/50) physical custody of [the child].

Former Wife moved to St. Cloud, Florida, in April 2008. In an effort to be closer to his child, Former Husband followed, moving to Orlando, Florida, in August 2010. On November 20, 2010, without court approval or Former Husband’s consent, Former Wife relocated with the child to Indiana. On December 3, 2010, Former Husband filed a petition to domesticate the California judgment. He also filed a verified motion for a temporary injunction to prevent the removal of the child. The trial court denied the motion, but set the matter for a hearing on January 27, 2011.

On January 26, 2011, Former Wife filed an affidavit contesting both personal and subject matter jurisdiction. The next day, she filed a notice of special appearance and a motion to dismiss Former Husband’s petition for domestication, again arguing that the Florida court lacked both personal and subject matter jurisdiction.

On February 2, 2011, the trial court entered an order domesticating the California judgment. The order provided that the Florida court would accept full jurisdiction over the parties and subject matter of the California judgment upon receipt of a California order declining jurisdiction. On May 10, 2011, Former Husband filed an order from the Superior Court of California for Solano County declining jurisdiction over the matter.

In the meantime, Former Husband filed a motion for contempt and for return of child. On September 14, 2011, the trial court entered an order on that motion, requiring Former Wife to return the child to Osceola County on or before 11:59 p.m. on October 16, 2011. The trial court set a hearing for October 17 and ordered that the child be brought to the hearing. Although she was served with the order, Former Wife did not return the child to Osceola County by October 16. Instead, she attended the October 17th hearing telephonically. Following the hearing, the trial court entered an order denying Former Wife’s motion to dismiss and directing the parties to attend mediation.

The parties attended mediation on November 15, 2011, which resulted in an impasse. The next day, Former Wife filed a petition to relocate the child pursuant to section 61.13001, Florida Statutes (2011). Former Husband filed a verified objection to the petition.

On April 27, 2012, a non-jury trial on Former Wife’s petition to relocate was held, where the following evidence was presented. At the time of the trial, the child was eight years old. Former Husband was an aerospace equipment technician for the United States Air Force at the time the parties separated. Before Former Wife moved to Florida, the parties had equal time-sharing with the child. When Former Husband agreed to allow Former Wife to move to Florida with the child, there was a “good chance” that he would be transferred to an Air Force base in Florida. From the time the child moved to Florida in April 2008 until the time Former Husband moved to Florida in August 2010, Former Husband spent all of his leave time visiting the child.

When Former Husband later learned that he would be unable to transfer to Florida, he decided to end his career in the Air Force so that he could be closer to his daughter. Other than his daughter, he had no reason to move to Orlando. He had no family or friends in the area and he took a considerable pay cut by leaving his military career. Former Husband’s fian-cée also left a career in the Air Force and moved to Florida so that Former Husband could be a part of his child’s life. From the time he moved to Orlando in August 2010 until Former Wife and the child moved to Indiana in November 2010, Former Husband had time-sharing with the child almost every week from Thursday after school until Monday morning.

Prior to leaving the Air Force and moving to Florida, Former Husband informed Former Wife of his plan to relocate to Orlando. At no time did Former Wife advise him that she planned to move to Indiana. On November 15, 2010, approximately two and a half months after moving to Florida, Former Husband received an email from Former Wife stating that she was relocating to Indiana within one week because her current husband received an offer for a job to begin on November 22, 2010. Former Wife further stated, “as long as we are able to come to a signed and notarized agreement, we can freely change our custody agreement. If we choose to take our custody agreement before a judge for ruling, we will either have to return to California or wait for Florida to adopt the custody agreement (this could take up to a year).” She provided a sample relocation agreement for Former Husband to review.

After a meeting where Former Husband objected to Former Wife relocating with the child, Former Wife became upset, “had a few choice words,” and left. Undeterred, Former Wife moved to Indiana with the child that same week. She neither advised Former Husband that she had decided to relocate the child despite his objection, nor did she give him an opportunity to say goodbye to the child in person. Former Wife did not inform the child’s school that she was moving to Indiana, and Former Husband began receiving phone calls from the school, inquiring about the child’s absences. Former Wife later provided Former Husband with a post office box address, but refused to give him her physical address in Indiana.

Following the hearing, the trial court entered a final judgment denying Former Wife’s petition to relocate. Applying the factors enumerated in section 61.13001(7), Florida Statutes, the trial court found that Former Wife failed to prove by a preponderance of the evidence that relocation was in the best interest of the child. Specifically, the trial court found:

[Former Wife] has shown by her actions a complete disregard to previous Court Orders. It is clear to the Court that after [Former Husband] complied with the previous California Court Order by moving to Orlando in order to be closer to his daughter, [Former Wife] and her now husband under took [sic] measures to re-locate out of Central Florida and did not provide [Former Husband] notice until shortly before the move. This included bringing a Relocation Agreement to [Former Husband] on very short notice before the sudden move to Indiana. The Court has observed the demeanor and evaluated the credibility of the witnesses and relied on those observations and evaluations in determining the disputed issues of fact. The Court finds [Former Wife] comes into this proceeding with unclean hands and has attempted to interfere with the relationship of her daughter and [Former Husband]. If the Court were to grant [Former Wife’s] Motion to Relocate, it is extremely unlikely [Former Wife] would comply with further Court Orders and would impede contact between the child and [Former Husband].

The trial court ordered Former Wife to return the child to Orlando by June 4, 2012. The judgment further provided that if she moved back to Orlando, the parties would resume equal time-sharing, as set forth in the California judgment.

When Former Wife did not return the child as ordered, Former Husband filed a motion to enforce the final judgment. Former Wife responded by filing a motion for rehearing or reconsideration, in which she argued that the trial court did not have jurisdiction over the parties and that the trial court’s findings were not supported by the evidence. That motion was denied.

Former Wife filed a timely notice of appeal from the final judgment denying her petition to relocate. She then filed an emergency motion to stay pending appeal, which the trial court denied, stating, “[Former Wife] has created her claim of ‘emergency’ by her unilateral removal of the child from Florida, without permission of the [Former Husband] or this Court.”

Former Wife raises a number of issues on appeal. For example, she argues that the trial court erred in applying section 61.13001, Florida Statutes — the statute governing relocation — to this case. Former Wife submits that the trial court should have instead required Former Husband to prove that there had been a substantial change in circumstances since entry of the initial judgment determining time-sharing, pursuant to section 61.13, Florida Statutes. We first note that Former Wife did not raise this issue below. In fact, she specifically sought relief pursuant to section 61.13001 in her petition to relocate. Moreover, her argument lacks merit. Former Husband was not required to prove a substantial change in circumstances because he was not seeking a modification of the time-sharing schedule. See § 61.13, Fla. Stat. (2011) (explaining that in order to modify a parenting plan or time-sharing schedule, the noncustodial party must prove a substantial change in circumstances). Instead, he merely sought to enforce the time-sharing schedule set forth in the California judgment, which provided for equal time-sharing once he moved to Florida. We cite this issue as an example of the nature of the arguments Former Wife raises on appeal, all of which are devoid of merit.

We conclude that the trial court’s judgment is well-supported by the evidence. Accordingly, we affirm.

AFFIRMED.

SAWAYA and BERGER, JJ„ concur.

      . Apparently, no sanctions were imposed for violation of the court order requiring Former Wife to bring the child to court.

      . The facts are presented in the light most favorable to the appellee, Former Husband. See Neuman v. Harper, 106 So.3d 974, 976 (Fla. 5th DCA 2013).


author: ORFINGER, J.

text:
    BOMBARDIER AEROSPACE CORPORATION, Appellant/CrossAppellee, v. SIGNATURE FLIGHT SUPPORT CORPORATION, Appellee/Cross-Appellant.
    Nos. 5D12-2401, 5D12-2403.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 2013.

      Alexander Muszynski, III and Cameron E. Shackelford, of Meier, Bonner, Muszyn-ski, O’Dell & Harvey, P.A., Longwood; John S. Hoff and Jeffrey F. Clement, of Hoff & Herran, Chicago, IL, for Appellant/Cross-Appellee.
    Michael G. Shannon, John M. Murray and Christopher D. Cloud, of Murray, Morin & Herman, P.A., Tampa, for Appel-lee/Cross-Appellant.
   ON MOTION FOR REHEARING

ORFINGER, J.

We grant rehearing, withdraw our prior opinion, and substitute the following in its place.

This consolidated appeal and cross-appeal arise from a breach of contract action. Bombardier Aerospace Corporation challenges a final judgment entered in favor of Signature Flight Support Corporation on Bombardier’s action for breach of contract. For its part, Signature appeals the denial of its motion for directed verdict regarding its statute of limitations defense and the directed verdict in favor of Bombardier on Signature’s counterclaim. We affirm the directed verdict on Signature’s counterclaim without further discussion. However, for the reasons that follow, we affirm in part and reverse in part the final judgment entered in favor of Signature and against Bombardier.

Bombardier manages an 83-aircraft fleet for use by its clients across the United States. Signature is a Fixed Base Operator (“FBO”), providing ground services to aircraft owners/operators at airports nationwide. Bombardier and Signature entered into a FBO Services Agreement (“FBO Agreement”) for Signature to perform FBO services on Bombardier’s aircraft fleet at numerous airports in the United States. The FBO Agreement's choice of law provision specified the application of Texas law.

At issue here is Paragraph 4(f) of the FBO Agreement concerning Signature’s responsibility for damage to Bombardier aircraft, which provided:

Signature and [Bombardier] agree to be liable to the other for indirect, incidental, consequential, special or exemplary damages, whether in contract or tort (including strict liability and negligence) such as but not limited to, loss of revenue, diminution or loss of value, loss of use or profits, or the costs associated with substitute or replacement aircraft up to a maximum of $200,000 per event. Signature agrees to pay for direct damages to aircraft due to negligence or willful misconduct.

Between 2004 and 2006, Signature damaged six aircraft in Bombardier’s fleet, i.e., N607FX, N426FX, N137FX, N432FX, N246FX, and N429FX. After completing repairs to the aircraft, Bombardier presented damage claims to Signature, demanding payment for direct and consequential damages relating to each of the damaged aircraft. In April 2009, Bombardier submitted a final demand to Signature for $1,267,782.78, the damages that it attributed to the six aircraft. Signature refused to pay.

On August 17, 2009, Bombardier sued Signature for damages to the six aircraft. At trial, Signature sought a directed verdict on its affirmative defense, arguing that the statute of limitations precluded some of Bombardier’s claims. The trial court denied a directed verdict, and allowed Bombardier to go forward on all six breach of contract counts. While the jury found that Signature’s employees damaged all six aircraft, it determined that Bombardier was not entitled to recover any damages because it made an unreasonable pre-suit demand.

On appeal, Signature contends that the Texas statute of limitations barred the N607FX, N426FX and N137FX claims. We agree. A party asserting a breach of contract claim must sue within four years after the claim accrues. Tex. Civ. Prac. & Rem. Code § 16.004; Stine v. Stewart, 80 S.W.3d 586, 592 (Tex.2002). Determining when a cause of action accrues is a question of law, not fact. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex.2003); Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 567 (Tex.2001). The court determines what conduct is required by the parties, and, insofar as a dispute exists concerning the failure of a party to perform the contract, the court submits the disputed fact questions to the jury. 14 Tex. Jur. Contracts § 377 (2012). As a general rule, under Texas law, a cause of action accrues and the statute of limitations begins to run when facts come into existence that authorize a party to seek a judicial remedy. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex.1990). In most cases, a cause of action accrues for breach of contract when a wrongful act causes a legal injury, regardless of when the plaintiff learns of that injury or if all resulting damages have occurred. Knott, 128 S.W.3d at 221; S.V. v. R.V., 933 S.W.2d 1, 4 (Tex.1996).

Bombardier filed its breach of contract action on August 17, 2009. Consequently, any claim accruing more than four years earlier would be time-barred. The undisputed facts show that Signature damaged N607FX on September 24, 2004, while N426FX and N137FX were damaged in a single incident on April 23, 2004. Because Bombardier filed its breach of contract lawsuit more than four years after the causes of action accrued, these claims are barred. Therefore, as to these three claims, we affirm the judgment in favor of Signature. The remaining three claims were timely filed, as they accrued less than four years prior to the filing of the lawsuit.

With regard to the remaining claims, we reverse the final judgment. In determining whether Bombardier was entitled to damages as a result of Signature’s breach of the FBO Agreement, Bombardier was not required to prove, and thus, the jury should not have been asked to resolve whether it had made a “reasonable” pre-trial demand. Texas law does not recognize a claimant’s unreasonable demand as an affirmative defense to a breach of contract action. Under Texas law, if a claimant makes an excessive demand, the claimant may forfeit its right to attorney’s fees in the ensuing litigation, but no authority exists to deny a claimant its otherwise lawful damages. See Findlay v. Cave, 611 S.W.2d 57, 58 (Tex.1981); Lairsen v. Slutzky, 80 S.W.3d 121, 131 (Tex.App.2002). The Texas doctrine of excessive demand is an affirmative defense only to an award of attorney’s fees. See Kurtz v. Kurtz, 158 S.W.3d 12, 21 (Tex.App.2004). The trial court’s ruling led to a punitive forfeiture of Bombardier’s right to damages to three of its aircraft, a result not permitted under Texas law. See Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774 (Tex.2009) (“Forfeitures are not favored in Texas, and contracts are construed to avoid them.”). On remand, because the jury has already determined liability, only a new trial on damages regarding the N432FX, N246FX, and N429FX claims is necessary.

For the benefit of the parties and the trial court on retrial, we address several evidentiary issues that arose during trial. On remand, the existence of, or amount of insurance coverage, is not relevant to the issue of damages, and therefore, is not a proper matter for the jury’s consideration. See, e.g., Carls Markets, Inc. v. Meyer, 69 So.2d 789, 793 (Fla.1953); Gold, Vann & White, P.A. v. DeBerry, 639 So.2d 47, 54 (Fla. 4th DCA 1994). Similarly, Signature may not assert as an affirmative defense the duty to cooperate, which is an implied condition in the performance of a contract, and thus, relates solely to the issue of liability, not damages. See SP Terrace, L.P. v. Meritage Homes of Texas, LLC, 334 S.W.3d 275, 285 (Tex.App.2010) (reiterating that duty to cooperate is implied in every contract to extent necessary for contract’s performance, and thus, when one party prevents another from timely performing its contractual obligations, failure to timely perform is excused). However, Signature’s expert, Patrick Moylan, and witness, Paul McBreen, may testify at the retrial if their testimony would be relevant on the issue of damages. Chavez v. State, 12 So.3d 199, 205 (Fla.2009); Harvey v. State, 129 Fla. 289, 176 So. 439, 440 (1937); Weese v. Pinellas Cnty., 668 So.2d 221, 223 (Fla. 2d DCA 1996). We also find no error in the trial court’s ruling, which permitted Mr. McBreen to testify in the original trial, as Bombardier failed to demonstrate that his testimony substantially endangered the fairness of the proceedings. See Walters v. Keebler Co., 652 So.2d 976, 977 (Fla. 1st DCA 1995) (holding witness should be allowed to testify absent prejudice, and exclusion of unlisted witness’s testimony is “drastic remedy” to be used only in “most compelling circumstances”); Utica Mut. Ins. Co. v. Penn. Nat’l Mut. Cas. Ins. Co., 639 So.2d 41, 43 (Fla. 5th DCA 1994) (holding court did not abuse discretion by admitting witness’s testimony, despite late notice by party offering testimony, where opposing party was afforded opportunity to depose witness night before trial and declined to do so). Finally, Signature may raise the duty to mitigate damages as an affirmative defense in the new trial. See, e.g., Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 167 (Tex.1982) (“It is well established that the plaintiff in a breach of contract action can only recover ‘such damages as he could not have prevented with reasonable exertions and expense.’ ”) (quoting Walker v. Salt Flat Water Co., 128 Tex. 140, 96 S.W.2d 231, 232 (1936)). As a new trial on damages only is required, Signature may present the testimony of its expert, Wayne Muhler, or any other evidence on this issue, if relevant. See generally Roma Constr. Co. v. Goodman, 557 So.2d 58, 58-59 (Fla. 3d DCA 1989) (holding that trial court improperly limited issue to amount of damages suffered on appellate court’s order requiring new trial on damages); City of Pensacola v. Capital Realty Holding Co., 417 So.2d 687, 688 (Fla. 1st DCA 1982) (reiterating that trial judge’s taking of additional evidence upon remand for further proceedings was not abuse of discretion as trial judge is vested with broad discretion in handling or directing course of trial).

For these reasons, we affirm the directed verdict on Signature’s counterclaim, affirm the final judgment with respect to the N607FX, N426FX and N137FX claims, but reverse and remand for a new trial on damages on the N432FX, N246FX, and N429FX claims.

AFFIRMED in part, REVERSED in part, and REMANDED.

PALMER and EVANDER, JJ., concur.

      . Choice-of-law provisions are enforceable in Florida. See Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co., 761 So.2d 306, 311 (Fla.2000). "An agreement between parties to be bound by the substantive laws of another jurisdiction is presumptively valid, and this Court will enforce a choice-of-law provision unless applying the chosen forum’s law would contravene a strong public policy of this State.” Se. Floating Docks, Inc. v. Auto-Owners Ins. Co., 82 So.3d 73, 80 (Fla.2012). No such policy is implicated in this case.

        . N432FX was damaged on October 29, 2005, N246FX was damaged on April 30, 2006, and N429FX was damaged on October 4, 2006.

      . Relying on Intermedies, Inc. v. Grady, 683 S.W.2d 842 (Tex.App.1984), Bombardier argues that Signature breached its duty to pay for the damages and therefore, it had four years after that refusal to file its breach of contract action. We disagree that the FBO Agreement was an agreement to pay. While Signature had a duty to pay reasonable damages for the losses it caused, the contract between the parties is primarily one for FBO services, not for the payment of money by Signature. Courts must determine the parties’ intent from the instrument as a whole, considering each provision not in isolation but with reference to the entire contract. TX. C.C., Inc. v. Wilson/Barnes Gen. Contractors, Inc., 233 S.W.3d 562, 567 (Tex.App.2007).

      . Mr. Moylan’s testimony related to liability at the original trial. We do not address the relevance of his testimony on the issue of damages.


text:
    Michael MONTIJO, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4539.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 2013.
    F. Wesley Blankner, Jr., of Jaeger & Blankner, Orlando, for Appellant.
    No Appearance for Appellee.
   ON MOTION TO REINSTATE APPEAL

PER CURIAM.

We dismissed this appeal by order after attorney F. Wesley Blankner, Jr., failed to file an initial brief despite securing repeated extensions of time to do so. In the order dismissing the appeal, we requested that the Florida Bar investigate Mr. Blankner for his apparent violations of the Rules of Professional Conduct. See R. Regulating Fla. Bar 4-1.1 (“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”) (emphasis added); R. Regulating Fla. Bar 4-1.3 (“A lawyer shall act with reasonable diligence and promptness in representing a client.”). Mr. Blankner then moved to reinstate the appeal on behalf of his client. We granted that motion by order, but stated in the reinstatement order that “all other aspects” of the dismissal order would stand. We write to clarify that it is the request that the Florida Bar investigate Mr. Blankner’s conduct that we intended to “stand.” We also write to give context to that request.

Since 2011, Mr. Blankner has appeared as counsel of record in at least nine cases before our court. In Dwayne Hardy v. State of Florida, 115 So.3d 372 (Fla. 5th DCA 2018) the initial brief was due on December 21, 2011. When nothing was filed, we issued an order to show cause as to why the case should not be dismissed for lack of prosecution. Three motions for extension of time followed. The single-issue initial brief was not filed until May 7, 2012, after we denied Mr. Blankner’s final motion for extension of time but nonetheless extended the deadline for filing the brief one last time.

In Patrick Mourra v. State of Florida, No. 5D11-3889, the initial brief was due on February 11, 2012. Counsel received three extensions of time, and a brief was ultimately filed on May 29, 2012, after we cautioned counsel by order that no further extensions would be granted. The answer brief was filed on June 15, 2012, and Mr. Blankner then filed a motion for extension of time to file the reply brief. Before we could rule on the motion, however, Mr. Mourra discharged Mr. Blankner for only raising one issue on appeal when Mr. Mourra believed there to be other meritorious issues. Mr. Blankner’s initial brief was striken at Mr. Mourra’s request, and Mr. Mourra proceeded to brief the case pro se.

In Shawnta McNeally v. State of Florida, No. 5D11-3447, Mr. Blankner filed a notice of appeal on October 5, 2011, seeking to appeal a September 2, 2011, judgment and sentence. We issued a show cause order because it appeared that we lacked jurisdiction. Mr. Blankner responded that he had orally notified the trial court that the appellant would be appealing, but offered no reasonable explanation for failing to meet the jurisdictional deadline for filing the notice of appeal. We dismissed the appeal by order, without prejudice to the appellant’s filing of a petition for belated appeal.

In Ronnie Manning v. State of Florida, No. 5D12-2135, the initial brief was due on September 30, 2012. After we granted three motions for extension of time filed by Mr. Blankner, the brief was due on May 3, 2013. When nothing was filed on that date, we issued a show cause order asking why the case should not be dismissed for lack of prosecution. Mr. Blank-ner responded with an apology for letting the long-extended deadline slip his notice, and an additional motion for extension of time, which we granted. Rather than meet this deadline, Mr. Blankner filed a fifth motion for extension, which we denied in an order stating that the initial brief was to be filed within ten days (which effectively acted as an extension, despite the language denying the motion). Mr. Blankner did not meet this deadline either, but filed a sixth motion for extension of time. He then filed a one-issue initial brief on July 15, 2013, which we ultimately accepted as timely.

In Andrew Duran v. State of Florida, No. 5D12-3134, the initial brief was due on December 16, 2012. On December 17, 2012, Mr. Blankner filed a motion for extension of time, which we granted. A second extension was also granted up to February 21, 2013. After this deadline passed, we issued an order to show cause for lack of prosecution on March 5, 2013. Mr. Blankner responded that he had erroneously calendared the due date for the initial brief, and had intended to request an enlargement of time — which he then requested. We granted this request, but denied a fourth motion on May 1, 2013, warning Mr. Blankner that failure to file the initial brief by May 17, 2013 could result in dismissal of the appeal. Mr. Blankner filed the initial brief (raising a single sentencing issue and presenting less than one page of argument) on May 20, 2013, which we accepted past the extended deadline.

In Charles M. Vandersnick v. State of Florida, No. 5D13-135, the initial brief was due on March 15, 2013. We granted three extensions of time at Mr. Blankner’s request, and denied a fourth motion on August 28, 2013, giving Mr. Blankner a final ten days to file the brief. On September 9, 2013, Mr. Blankner filed a fifth motion for extension, followed by a one-issue initial brief (containing five pages of argument) on September 16, 2013 — which we again accepted despite its filing beyond the extended deadline.

In Timothy B. Janes v. State of Florida, No. 5D13-1472, the initial brief was due on May 10, 2013. Although Mr. Blankner filed a notice of appeal, another lawyer also filed a notice of appeal. The other counsel sought and received multiple extensions of time and ultimately filed an initial brief on September 3, 2013. On July 26, 2013, we issued an order requiring Mr. Blankner to advise the court as to whether he was also counsel of record in the case. Mr. Blankner failed to respond to this order. On August 20, 2013, we then issued an order to show cause as to why sanctions should not be imposed for Mr. Blankner’s failure to respond to the court’s July 26th order. Mr. Blankner responded on September 4, 2013 by moving to withdraw as counsel of record, with an explanation that he had been unaware that anyone else had been retained as counsel in the case (which raises the question of why Mr. Blankner had filed nothing for the months prior, when the initial brief had been due). As for his failure to respond to the July 26th order, Mr. Blank-ner explained that his firm had experienced “computer troubles” and had no record of receiving the July 26th order. Mr. Blankner was allowed to withdraw from the case, and no sanctions were issued.

In the instant case, the initial brief was due on May 3, 2013. On May 2, 2013, Mr. Blankner moved for an extension of sixty days, which was granted (extending the deadline to July 1, 2013). On June 28th, Mr. Blankner requested another sixty-day extension, which we granted by order dated July 9, 2013 (extending the deadline to September 2, 2013). The order also advised Mr. Blankner that “no further enlargement of time will be granted.” Ignoring this language from our July 9th order, Mr. Blankner filed yet another motion for extension of time, explaining that he had been too busy with other client matters to prepare the initial brief by the final deadline. We then dismissed the appeal, although we have now reinstated it based upon our concern that Mr. Blank-ner’s client not be prejudiced by Mr. Blankner’s wholly unacceptable dilatory conduct.

We caution Mr. Blankner that if he is requested to represent a client on appeal in this court in the future, he should decline the representation unless he anticipates having the time, in light of his other professional and personal obligations, to act with reasonable diligence and promptness on behalf of his client in the case. Cognizant of our obligation to see that cases are handled in a timely manner, see Fla. R. Jud. Admin. 2.545, we also intend to reconsider our approach to motions for extension of time in future cases.

SAWAYA, LAWSON and WALLIS, JJ„ concur.

      . In addition to the eight cases discussed in the body of this opinion, in Case Number 5D11-758 Mr. Blankner filed a notice of appeal on behalf of Jean-Claude Coriolan, challenging an order summarily denying Mr. Co-riolan’s motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. No other motions or briefs were docketed in that case. See Fla. R. App. P. 9.141(b)(2)(C) (providing that briefs are not required when a criminal post-conviction motion is denied below without an evidentiary hearing).