author: ALLEN, J.

text:
    Joni MACRI, Nicodemo (Nic) Macri, and The Estate of Jena Macri, Deceased, Appellants, v. CLEMENTS AND ASHMORE, P.A., d/b/a North Florida Women’s Care, David O’Bryan, M.D., Rachel Depart, CNM, and Florida Birth-Related Neurological Injury Compensation Association, Appellees.
    No. 1D07-5818.
    District Court of Appeal of Florida, First District.
    July 16, 2009.

      Donald M. Hinkle, of Hinkle and Foran, Tallahassee, for Appellants.
    Wilbur E. Brewton, General Counsel, Kelly B. Plante, and Tana D. Storey, of Brewton Plante, P.A., Tallahassee, for Ap-pellee Florida Birth-Related Neurological Injury Association.
    Dennis Jackson Martin & Fontela, P.A., Tallahassee, and Carr, Allison, Pugh, Howard, Oliver & Sisson, Tallahassee, and Mark Hicks, Dinah Stein, and Erik P. Bartenhagen, of Hicks, Porter, Ebenfeld & Stein, Miami, for Appellees Clement and Ashmore, P.A., d/b/a North Florida Women’s Care, and David O’Bryan, M.D., and Rachel Depart, CNM.
   ALLEN, J.

The appellants challenge a summary judgment entered for the appellees on wrongful death claims with allegations of medical negligence. Among other defenses, the appellees asserted that those claims are precluded by the exclusivity of remedy provision in the Florida Birth-Related Neurological Injury Compensation Plan, at section 766.303(2), Florida Statutes. The appellants maintained that the claims are allowed under the “willful and wanton” exception in section 766.303(2). In entering summary judgment the court reasoned that the claims could not proceed as the appellants had not pled the “willful and wanton” exception in their complaint. But section 766.303(2) exclusivity is an affirmative defense, which the appellants did not have to negate in their complaint, and the court should not have entered the summary judgment.

The appellants’ civil action for wrongful death and bodily injury was based on allegations of medical negligence in connection with the birth and ensuing death of a child. The action was filed against the delivering obstetrician and the attending nurse-midwife, along with the professional association which was their employer, and the hospital where the child was born. The hospital was subsequently dismissed, upon its settlement of a medical negligence claim for this incident. Meanwhile, the wrongful death action was abated on motion by the other defendants so as to compel the appellants to pursue relief under the Florida Birth-Related Neurological Injury Compensation Plan. This Plan, as established at sections 766.301 through 766.316, Florida Statutes, provides no-fault compensation for qualifying injuries. However, only a limited recovery may be had under the Plan, and that is made the exclusive remedy with only certain exceptions. See § 766.303(2), Fla. Stat. Furthermore, the Plan indicates that no civil action may be pursued until determinations are made under the Plan as to whether there is a birth-related neurological injury, as well as to other matters affecting compensability. See § 766.304, Fla. Stat.

Although the appellants did not want to seek recovery under the Plan, they were compelled to do so before they could resume their civil action. They therefore filed an administrative petition seeking the necessary determinations under section 766.309, Florida Statutes, regarding the applicability of the Plan for the injuries sustained by the child. An administrative law judge determined that the child sustained a qualifying birth-related neurological injury, but that the settlement of the medical negligence claim against the hospital precluded an award of benefits under the Plan. That ruling was made in accordance with section 766.304, which precludes a Plan award if there has been recovery by settlement or judgment in a civil action.

The appellants acknowledged that they were not entitled to recovery under the Plan, and after obtaining the ruling from the administrative law judge the appellants returned to the circuit court where the civil action remained pending. The doctor, the nurse-midwife, and their employer subsequently moved for summary judgment, asserting that the civil action is barred by the exclusivity of remedy provision in section 766,303(2). The appellants pointed out that such exclusivity is an affirmative defense which the defendants had not raised in answering the complaint, and the circuit court denied the initial motion for summary judgment. Defendants thereafter submitted a supplemental answer raising this affirmative defense, and renewed motions for summary judgment were filed. The appellants responded by noting that section 766.303(2) exclusivity does not .pertain in situations of willful and wanton disregard, and the appellants averred that their civil action was based on such conduct. The appellants also submitted affidavits from an obstetrician and a nurse-midwife, who both indicated that there was clear and convincing evidence of willful and wanton disregard in the way the defendants handled the labor and birth.

Despite the appellants’ reliance on the willful and wanton exception to section 766.303(2) exclusivity, the circuit court eventually entered summary judgment for the defendants on the wrongful death claims. In ruling for the defendants the court observed that the appellants’ complaint had not used the “willful and wanton” language, which the court described as an “obtuse” pleading requirement. The court concluded that, in light of the statutory proscriptions in sections 766.303(2) and 766.304, such an express allegation should have been made before the administrative determination of no award under the Plan became binding, in order for the appellants to rely on the willful and wanton exception to the exclusivity in section 766.303(2).

As the appellants pointed out below, section 766.303(2) exclusivity is an affirmative defense to be raised by the defendants. See Fla. Health Sciences Cntr. v. Div. of Admin. Hearings, 974 So.2d 1096 (Fla. 2d DCA 2007). An affirmative defense does not ordinarily have to be anticipated in a complaint, see Shahid v. Campbell, 552 So.2d 321 (Fla. 1st DCA 1989), and unless raised by the defendants could be deemed to be waived. See, e.g., Southern Mgmt. & Dev. v. Gardner, 992 So.2d 919 (Fla. 4th DCA 2008). The specific allegations of negligence in the complaint in the present case were sufficient and the appellants did not have to negate the section 766.303(2) exclusivity which the defendants claimed, until the defendants raised that matter as an affirmative defense. Once the defense was properly raised the appellants asserted the willful and wanton exception, thus complying with the ordinary requirements of civil procedure and also satisfying the requirements of section 766.303(2). The circuit court therefore should not have entered the summary judgment for the defendants.

As provided in section 766.303(2), the statutory grant of exclusivity of remedy under the Plan does not pertain when there is clear and convincing evidence of willful and wanton disregard, if the civil action is filed prior to and in lieu of payment of an award under the Plan (or before an award becomes conclusive and binding). And as indicated in section 766.304, an award should not be made under the Plan if there has been a settlement or final judgment in a civil action. The appellants’ settlement with the hospital where the child was born thus precludes an award under the Plan, but that does not affect the civil action against the doctor, the nurse-midwife, and the professional association which was their employer. The appellants suggest that the unavailability of any recovery under the Plan, in light of the settlement with the hospital, should avoid the section 766.303(2) exclusivity without the necessity of clear and convincing evidence of willful and wanton disregard. But that does not comport with the statutory grant of exclusivity, which does not depend on actual recovery and instead may be invoked as an affirmative defense upon the existence of a qualifying birth-related neurological injury (with the provision of services by a participating practitioner) without regard to whether an award is actually made under the Plan. See Univ. of Miami v. Klein, 603 So.2d 651 (Fla. 3d DCA 1992). And contrary to the appellants’ argument as to the impact this might have on their constitutional right of access to the courts, the no-fault system of compensation in the Plan is similar to other no-fault systems which have been upheld upon constitutional challenges based on the right of access. See, e.g., Martinez v. Scanlan, 582 So.2d 1167 (Fla.1991). As with those cases, even if recovery is not actually obtained under the Plan the no-fault system of compensation therein is a reasonable alternative to .the civil recourse which might have otherwise been available.

The appellants also suggest that regardless of whether there was any willful and wanton disregard in this case, the nurse-midwife should not be able to invoke section 766.303(2) exclusivity if the nurse-midwife did not pay the section 766.314(4)(c), Florida Statutes, assessment for a midwife to be a “participating physician” under the Plan. But that assessment pertains for a midwife who wants to be independently'considered as a participating physician, whereas the nurse-midwife here performed services with the delivering obstetrician and was employed by his professional association. The nurse-midwife was thus covered under the umbrella of the doctor’s status as a participating physician. This case is unlike Fluet v. Florida Birth-Related Neurological Injury Compensation Assoc., 788 So.2d 1010 (Fla. 2d DCA 2001), where a supervising doctor was not actually present and directly involved at the birth, and where the parties agreed that the midwife could not invoke the protections of the Plan. It does not appear that there was any such agreement in the present case, and the nurse-midwife here may invoke section 766.303(2) exclusivity, which the appellants might then overcome by showing clear and convincing evidence of willful and wanton disregard.

As their final issue, the appellants argue that the defendants should not be allowed to invoke section 766.303(2) exclusivity, as not all of those medical providers furnished the patient with notice of participation in the Plan in accordance with section 766.316, Florida Statutes. That enactment indicates that a hospital and participating physicians should each provide such notice to the obstetrical patient. In Galen of Florida, Inc. v. Braniff, 696 So.2d 308 (Fla.1997), it was established that such notice is a condition precedent for invocation of section 766.303(2) exclusivity. See also Univ. Med. Cntr. v. Athey, 699 So.2d 1350 (Fla.1997). But unlike Galen and Athey, where there was no notice given by any medical provider, in the present case the delivering obstetrician satisfied the statutory requirement by furnishing the patient with the necessary notice. Although the hospital here may not have provided its own separate notice, the doctor’s invocation of section 766.303(2) exclusivity is not limited by the hospital’s absence of notice. See Gugelmin v. Div. of Admin. Hearings, 815 So.2d 764 (Fla. 4th DCA 2002). While in Gugelmin the hospital gave notice but the doctor did not, and the present case involves the converse situation, Gugelmin indicates that the medical provider who gave the patient notice of participation in the Plan may rely on section 766.303(2) exclusivity regardless of whether another provider failed to give the patient such notice. That approach is consistent with this court’s ruling in Schur v. Florida Birth-Related Neurological, 832 So.2d 188 (Fla. 1st DCA 2002), where a doctor who did not give the required notice could not invoke the exclusivity defense, despite such notice having been provided by another entity. In Schur the party who did not give notice was not allowed to use another party’s notice as a means to invoke section 766.303(2) exclusivity, whereas here the doctor is invoking such exclusivity based on the notice he gave the patient. And the nurse-midwife here did not have to provide her own notice, as she does not seek to establish independent status as a participating physician, and instead provided services in connection with the doctor and is within the umbrella of his participation and coverage under the Plan.

The circuit court should not have entered this summary judgment, as the appellants presented a basis to allow their wrongful death claims under the willful and wanton exception to the affirmative defense of section 766.303(2) exclusivity. In accordance with section 766.303(2), such claims depend on clear and convincing evidence of willful and wanton disregard. The summary judgment is reversed and the case is remanded.

WOLF and DAVIS, JJ., concur.


source: Caselaw Access Project

author: BARFIELD, J.

license: Public Domain

text:
    LOCKHART BUILDERS, INC., Appellant, v. DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF WORKERS’ COMPENSATION, Appellee.
    No. 1D08-3468.
    District Court of Appeal of Florida, First District.
    July 16, 2009.
    Rehearing Denied Aug. 21, 2009.
    Bill McCabe, Longwood, and Keith A. Mann, Sarasota, for Appellant.
    Cohn M. Roopnarine, Department of Financial Services, Division of Workers’ Compensation, Tallahassee, for Appellee.
   BARFIELD, J.

The final order of the Department of Financial Services (DFS), which rejected the recommended order of the Administrative Law Judge and approved the penalty assessed by its Division of Workers’ Compensation for appellant’s noncompliance with the statutory requirement that it secure workers’ compensation coverage for three employees of one of its subcontractors, is AFFIRMED. See Twin City Roofing Const. Specialists, Inc. v. Fla. Dep’t of Fin. Servs., 969 So.2d 563 (Fla. 1st DCA 2007). However, the case is REMANDED to DFS for correction of the final order to reflect that appellant is released from the stop-work order, conditioned upon its timely payment of the penalty in the agreed upon installments.

PADOVANO and WEBSTER, JJ., concur.


author: WOLF, J.

text:
    Lana A. HARRIS, as Personal Representative of the Estate of Richard E. Harris, Deceased, for and on behalf of said Estate and the survivors thereof, Appellant, v. Walter H. SOHA, Jr., M.D. and North Florida Anesthesia Consultants, P.A., Appellees.
    No. 1D08-4468.
    District Court of Appeal of Florida, First District.
    July 16, 2009.

      Stephen J. Pajcic, III and Seth Pajcic of Pajcic & Pajcic, P.A., Jacksonville; and William A. Bald of Dale, Bald, Showalter, Mercier & Green, P.A., Jacksonville, for Appellant.
    Gary A. Shipman, William E. Whitney, and Rebecca F.S. Drube of Dunlap & Shijoman, P.A., Santa Rosa Beach, for Ap-pellees.
   WOLF, J.

Appellant, Lana Harris, raises a number of issues concerning the propriety of the trial court’s order granting appellees’ motion for directed verdict. We find no merit in the appeal. However, two .issues raised by appellant warrant discussion. Ms. Harris argues that the trial court erred in finding that section 768.13(2)(c)(l), Florida Statutes (2004), was applicable because (1) Dr. Soha was not visiting a patient of his practice when he responded to her husband, and (2) his response was not voluntary.

Ms. Harris brings this action as a personal representative of the estate of her husband, Richard Hams. Mr. Harris was taken to the emergency room at St. Vincent’s Medical Center suffering from a reaction to a medication which caused his throat and tongue to swell. The attending emergency room physician requested the assistance of an anesthesiologist. Witness testimony established that anesthesia did not provide on-call services to the emergency room, although occasionally anesthesiologists on call for other areas of the hospital voluntarily provided assistance in the emergency room upon request, if they were available. Appellee, Dr. Soha, was the anesthesiologist on call for the obstetric suite and had been called in to provide an epidural for a patient in labor around the time that Mr. Harris was admitted. Dr. Soha responded to the emergency room physician’s request for assistance. Shortly thereafter, Mr. Harris died from complications. Ms. Harris subsequently filed suit, alleging that Dr. Soha failed to take actions which may have prevented her husband’s death.

The trial court found that the Good Samaritan Act, section 768.13(2)(c)(l), Florida Statutes (2004), was applicable, which provides that:

Any health care practitioner as defined in s. 456.001(4) who is in a hospital attending to a patient of Ids or her practice or for business or personal reasons unrelated to direct patient care, and who voluntarily responds to provide care or treatment to a patient with whom at that time the practitioner does not have a then-existing health care patient-practitioner relationship, and when such care or treatment is necessitated by a sudden or unexpected situation or by an occurrence that demands immediate medical attention, shall not be held liable for any civil damages as a result of any act or omission relative to that care or treatment, unless that care or treatment is proven to amount to conduct that is willful and wanton and would likely result in injury so as to affect the life or health of another.

(Emphasis added). Following the close of Ms. Harris’ case, the trial court found that there was insufficient evidence and granted appellees’ motion for directed verdict. We review the trial court’s directed verdict de novo. See Rosa v. Dep't of Children & Families, 915 So.2d 210, 211 (Fla. 1st DCA. 2005).

First, Ms. Harris argues that section 768.13(2)(c)(l), Florida Statutes, was inapplicable because Dr. Soha was not at the hospital “attending to a patient of his or her practice or for business or personal reasons” when he responded to the emergency room. Ms. Harris acknowledges that Dr. Soha was at the hospital attending to his patient, but argues that the patient in the obstetric suite was not a patient of his “practice.” She reasons that anesthesiologists are not physicians who have patients of their own practices because they offer their services to any patient in the hospital who needs a doctor of their specialty. Thus, she asserts that this section of the Good Samaritan Act is inapplicable for anesthesiologists in general if they are at the hospital attending to a patient. However, she acknowledges that the Good Samaritan Act would be applicable if an anesthesiologist or any other type of physician were in the hospital “for business or personal reasons.” § 768.13(2)(c)(l), Fla. Stat.

Therefore, the narrow reading of this section advocated by Ms. Harris would reach the arbitrary result of excluding anesthesiologists from immunity under this section only if they were attending to a patient, but not if they were at the hospital for business or personal reasons. This result contravenes the legislature’s intent that the immunity offered under this section “encourage health care practitioners to provide necessary emergency care to all persons without fear of litigation.” § 768.13(2)(c)(3), Fla. Stat.

Instead, pursuant to the plain language of the statute, the phrase “a patient of his or her practice ” operates simply to distinguish the next requirement under this section, which is that the doctor then provide assistance to a patient “with whom at that time the practitioner does not have a then-existing health care patient-practitioner relationship.” § 768.13(2)(c)(l), Fla. Stat. (emphasis added). Thus, the trial court did not err in finding section 768.13(2)(c)(l), Florida Statutes, was applicable here because Dr. Soha was attending to a patient of his practice when he responded to the emergency room.

Second, Ms. Harris argues that the trial court erred in finding that the Good Samaritan Act, section 768.13(2)(c)(l), Florida Statutes, was applicable here because the jury could have concluded that Dr. Soha’s response to the emergency room was not voluntary. She argues that although there was no formal policy requiring anesthesiologists to provide on-call services for the emergency room, the jury could have reasonably concluded that an informal policy existed which required Dr. Soha to respond based on testimony that anesthesiologists had previously responded to the emergency room upon request, if they were available. However, testimony that anesthesiologists had previously volunteered to respond fails to demonstrate that anesthesiologists had a responsibility for patients in the emergency room. Therefore, the trial court did not err in finding that the Good Samaritan Act was applicable here because Dr. Soha’s response to the emergency room was voluntary. Thus, the trial court’s directed verdict for appellees is affirmed.

KAHN and VAN NORTWICK, JJ., concur.


author: CASANUEVA, Judge.

text:
    Anthony DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4424.
    District Court of Appeal of Florida, Second District.
    July 17, 2009.
   CASANUEVA, Judge.

Anthony Davis challenges the postcon-viction court’s final order summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse as to claims one and six and remand for further proceedings. We affirm the denial of the remaining claims without further discussion.

Davis entered a negotiated plea in which he pleaded guilty to one count of possession of cannabis in excess of twenty grams and admitted to violating his probation previously imposed for a 1998 charge of robbery with a weapon. In exchange, Davis received a sixty-month sentence for the drug charge and a concurrent sixty-three-month sentence for the violation of probation. The State nolle prossed charges of possession of cannabis with intent to sell and possession of paraphernalia. Davis did not file a direct appeal.

In his rule 3.850 motion, Davis alleged in claim one that counsel “badgered” him into accepting the plea agreement by erroneously informing him that the maximum penalty he could, and probably would, receive on the offense underlying the violation of probation was thirty years when the actual maximum was 364 days, given that he had originally received a youthful offender sentence. Davis alleged that had he been apprised of the correct maximum penalty, he would have instead rejected the plea and proceeded to trial. In its response, the State acknowledged the sentencing law but argued that the claim was facially insufficient because Davis failed to allege that he had, in fact, successfully completed youthful offender boot camp so that the 364-day maximum would apply to him. The State also pointed out that, although the record contained a Department of Corrections letter recommending Davis for boot camp, with the “Approve” box checked by the judge, the record was devoid of progress reports and a “resentenc[ing] to probation” following boot camp. As a result, the postconviction court dismissed claim one without prejudice to the filing of a facially sufficient motion.

Davis filed a second motion repeating what he had already averred and added that he had “attended and successfully completed the Boot Camp Program, so the maximum penalty the court could impose ... was ... 364 days.” The court found that the second motion was:“simply a reassertion” of the claim alleged in the original motion and once again dismissed the claim with leave to file a facially sufficient motion. Davis filed a third motion in which he repeated the averments of claim one found in the second motion without further amendment. In its final order, the post-conviction court wrote as follows:

The Defendant’s claim is, again, a reassertion of [the] claim[ ] [asserted in his two previous motions]. The Court files in the instant cases remain devoid of any evidence that the Defendant successfully completed “boot camp.” The Defendant has provided the Court no evidence he successfully completed the program. Accordingly, the Defendant’s [claim one] is DENIED with prejudice.

Davis’s claim is essentially one of involuntary plea due to counsel’s having allegedly misinformed him of the possible penalties he would have faced following an unsuccessful trial. In this context, he was required to allege (1) counsel’s deficient performance and (2) that but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. See Brazeail v. State, 821 So.2d 364, 367-68 (Fla. 1st DCA 2002) (quoting Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). He alleged both of these elements in his motions. The postconviction court added a foundation requirement appropriate to Davis’s particular claim — that Davis had successfully completed youthful offender boot camp. Following the court’s instructions, he alleged this in his second motion.

We conclude that Davis’s claim one, as amended in his second motion, is facially sufficient. He was required only to set forth “a cognizable claim for relief based upon the legal and factual grounds asserted.” Jacobs v. State, 880 So.2d 548, 550 (Fla.2004). He was not required to provide the court with documentary evidence that he had successfully completed boot camp. Cf., e.g., Keen v. State, 855 So.2d 117, 118 (Fla. 2d DCA 2003) (noting that the movant was not required to provide a notarized statement supporting his allegations; “he must only provide a brief statement of facts in support of the motion”); Simon v. State, 997 So.2d 490, 492 (Fla. 4th DCA 2008) (commenting that the State’s argument that the court should affirm because the appellant failed to provide a plea transcript or a copy of the plea agreement “turns [rule 3.850(d) ] on its head and is without merit”); see also Fla. R.Crim. P. 3.850(c) (listing the required contents of a postconviction motion). Once Davis set forth a legally sufficient claim, the postconviction court was required to either attach those portions of the record that refute the claim if such documentation exists or hold an evidentiary hearing. See Fla. R.Crim. P. 3.850(d); Jacobs, 880 So.2d at 550-51. We therefore reverse as to claim one and remand for the trial court to either attach record documents that conclusively refute this claim or hold an evi-dentiary hearing. See Jacobs, 880 So.2d at 550-51.

In claim six, Davis alleged that counsel was ineffective for failing to investigate the defense that the cannabis did not belong to him and that absent such neglect there is a reasonable probability that he would have gone to trial. Within claim six, Davis referred to the averments of claim three for additional details. In claim three, Davis alleged, in pertinent part,

[He had] told counsel that the cannabis was not his and that it belonged to his caretaker.
Furthermore, Defendant’s caretaker admitted to Counsel that the cannabis belonged to her and expressed her willingness to testify to that fact. Counsel also knew that all evidentiary materials tending to establish guilt were found in the Defendant’s caretaker’s bedroom and not his.

The posteonviction court initially found the claim facially sufficient and ordered a response from the State. The court agreed with the State’s analysis that the claim was conclusory and gave Davis leave to file a facially sufficient claim. Davis essentially repeated the claim without substantive expansion; as a result, the court summarily denied it.

The postconviction court was correct in its initial conclusion that the claim was facially sufficient. In a recent case we summarized the relevant law as follows:

“A trial attorney’s failure to investigate a factual defense or a defense relying on the suppression of evidence, which results in the entry of an ill-advised plea of guilty, has long been held to constitute a facially sufficient attack upon the conviction.” Williams v. State, 717 So.2d 1066, 1066 (Fla. 2d DCA 1998). To state such a claim, a defendant must allege that counsel was ineffective for failing to advise the defendant of or failing to investigate a possible defense and must allege that there is “a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial.” Grosvenor v. State, 874 So.2d 1176, 1181 (Fla.2004); see also Flowers v. State, 793 So.2d 36, 36 (Fla. 2d DCA 2001); Robinson v. State, 972 So.2d 1115, 1116 (Fla. 5th DCA 2008). This type of claim is not waived by the entry of a guilty plea. See Flowers, 793 So.2d at 36; Jenrette v. State, 761 So.2d 414, 415 (Fla. 2d DCA 2000); Williams, 717 So.2d at 1066.

Whatley v. State, 7 So.3d 1126 (Fla. 2d DCA 2009). In determining that reasonable probability,

a court should consider the totality of the circumstances surrounding the plea, including such factors as whether a particular defense was likely to succeed at trial, the colloquy between the defendant and the trial court at the time of the plea, and the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at a trial.

Grosvenor v. State, 874 So.2d 1176, 1181-82 (Fla.2004).

Here, Davis alleged both deficient performance and that there was a reasonable probability that, absent that performance, he would have proceeded to' trial rather than pleading guilty. We therefore reverse as to claim six and remand for the trial court to either attach record documents that conclusively refute the claim or hold an evidentiary hearing. In ruling on the claim, the court should consider the factors recited in Grosvenor.

Finally, we caution Davis that, if he prevails on one or both of his claims, the ultimate result of withdrawing his plea could be a sentence longer than sixty-three months.

Affirmed in part; reversed as to claims one and six and remanded with instructions.

WALLACE and KHOUZAM, JJ., Concur.

      . See §§ 958.04(2)(b), 045(5)(c), Fla. Stat. (1997); Bloodworth v. State, 769 So.2d 1117 (Fla. 2d DCA 2000).

      . In a subsequent motion, Davis amended this last allegation by averring that he would have proceeded to a probation violation hearing.

      . It is not clear why there should be nothing in the record documenting how Davis came to be on probation. If he was on probation as a result of something other than the successful completion of youthful offender boot camp, see § 958.045(5)(c), the relevant documents would refute Davis’s claim. If the record is somehow defective and cannot refute the claim, then an evidentiary hearing is the post-conviction court’s other option. See Fla. R.Crim. P. 3.850(d); Jacobs, 880 So.2d at 550-51.


author: WALLACE, Judge.

text:
    Aunterrio J. CHERRY, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3178.
    District Court of Appeal of Florida, Second District.
    July 17, 2009.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Aunterrio J. Cherry appeals an order directing him to pay restitution to a county detention facility for the costs of medical services provided to him while he was an inmate at the facility. Because the medical expenses were unrelated to Mr. Cherry’s offense, the trial court erred in ordering him to pay these costs to the detention facility as restitution. Accordingly, we reverse the restitution order.

THE FACTS

Mr. Cherry was charged with committing a battery on a law enforcement officer and misdemeanor possession of marijuana. A jury acquitted him on the battery charge, but it found him guilty of possession of marijuana. The trial court sentenced Mr. Cherry to a year in the Pinellas County Jail on the marijuana charge and reserved jurisdiction to order restitution. Eight and one-half months later, the trial court entered a restitution order under section 775.089(5), Florida Statutes (2005). The restitution order names the Pinellas County Sheriff as the “Victim,” and it directs Mr. Cherry to pay the Sheriff the sum of $1233.01.

This court has previously affirmed Mr. Cherry’s judgment and sentence for misdemeanor possession of marijuana. See Cherry v. State, 991 So.2d 862 (Fla. 2d DCA 2008) (table decision). In this appeal, Mr. Cherry challenges only the restitution order that was entered after his judgment and sentence. The State properly concedes error.

DISCUSSION

The trial court ordered Mr. Cherry to pay restitution to the Pinellas County Sheriff for the costs of medical treatment that he received while he was an inmate at the Pinellas County Jail. Section 775.089(l)(a) provides, in pertinent part:

In addition to any punishment, the court shall order the defendant to make restitution to the victim for:
1. Damage or loss caused directly or indirectly by the defendant’s offense; and
2. Damage or loss related to the defendant’s criminal episode,
unless it finds clear and compelling reasons not to order such restitution.

Under the statute, “the loss or damage to be compensated must be ‘directly or indirectly’ related to the offense committed by the defendant.” Glaubius v. State, 688 So.2d 913, 915 (Fla.1997). “[T]o order restitution under the statute, the court must find that the loss or damage is causally connected to the offense and bears a significant relationship to the offense.” Id.

The medical expenses incurred on behalf of Mr. Cherry were not related to his offense of possession of marijuana. Accordingly, the trial court erred in ordering Mr. Cherry to pay these expenses as restitution. Cf. Morran v. State, 662 So.2d 1339, 1340 (Fla. 2d DCA 1995) (holding that the trial court may not impose the payment of the cost of medical expenses incurred while the defendant was in custody as a condition of probation); Comeau v. State, 611 So.2d 68, 69 (Fla. 1st DCA 1992) (same). We also note that the trial court erred in entering the restitution order over a timely defense objection in the absence of competent, substantial evidence to prove the amount of restitution sought. See § 775.089(7); Glaubius, 688 So.2d at 915; Bellot v. State, 964 So.2d 857, 859 (Fla. 2d DCA 2007); Delks v. State, 622 So.2d 624, 625 (Fla. 2d DCA 1993).

For the foregoing reasons, we reverse the order and judgment for restitution. Our reversal is without prejudice to the Pinellas County Sheriffs right to seek reimbursement for the medical expenses at issue under either section 901.35, Florida Statutes (2005), or section 951.032, Florida Statutes (2005).

Reversed.

WHATLEY and LaROSE, JJ., Concur.


author: PER CURIAM.

text:
    Randall DEATHERAGE, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5508.
    District Court of Appeal of Florida, Second District.
    July 17, 2009.
   PER CURIAM.

Randall Deatherage appeals the order dismissing without prejudice in part, and denying in part, his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm, without comment, the postconviction court’s denial of Deather-age’s second claim. As to his first claim, we reverse the postconviction court’s dismissal without prejudice because the claim should have been denied.

Deatherage was sentenced to two years in state prison on two counts (in separate cases) of driving while his license was suspended or revoked, a third-degree felony. In his first claim, Deatherage alleged that his sentence is illegal because he lacked the requisite prior convictions necessary for felony convictions. The postconviction court ruled that the issue was not cognizable in a rule 3.800(a) motion and dismissed the claim without prejudice for Deatherage to raise it in a rule 3.850 motion, even though his motion was submitted with an oath and within the time allowed for rule 3.850 motions.

As a general rule, a rule 3.800(a) motion raising claims that are not cognizable under rule 3.800(a) but are cognizable under rule 3.850 should not be dismissed but rather should be treated as a motion filed pursuant to rule 3.850 when the motion meets timeliness and formal requirements of that rule. See Riviere v. State, 965 So.2d 845 (Fla. 2d DCA 2007). In this case, however, the erroneous legal basis of Deatherage’s claim demonstrates that he is not entitled to relief.

Deatherage argues that his felony convictions and state prison sentences should be converted to misdemeanors and county jail sentences by the retroactive application of subsection (10) of section 322.34, Florida Statutes, which became effective July 1, 2008. Ch. 2008-53, §§ 1, 3, Laws of Fla. With the addition of section 322.34(10), a person whose underlying license suspensions or revocations were for violations enumerated in section 322.34(10)(a) will no longer be subject to the third-degree felony penalty as otherwise provided by section 322.34(2)(e) for driving with a suspended license for a third or subsequent time, provided the person does not have a prior forcible felony conviction. Instead, under section 322.34(10)(b)(2), a second or subsequent conviction of driving while a license has been suspended or revoked for violations enumerated in section 322.34(10)(a) is now a first-degree misdemeanor.

As a substantive change to a criminal statute, section 322.34(10) does not apply retroactively to offenses committed before its effective date. See Art. X, § 9, Fla. Const. (“Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.”); Castle v. State, 330 So.2d 10, 11 (Fla.1976) (holding that a defendant was not entitled to be sentenced under a later enacted statute that reduced the maximum penalty for his crime); Santiago v. State, 731 So.2d 787, 788 (Fla. 1st DCA 1999) (holding that an amendment changing the predicate for a felony offense under section 322.34 did not apply retroactively); see also State v. Battle, 661 So.2d 38, 39 (Fla. 2d DCA 1995) (“The controlling statute for punishment is the statute in effect at the time of the commission of the crime.”).

In his motion, Deatherage alleged that he was sentenced on January 22, 2008, necessarily indicating that the offenses occurred before the effective date of section 322.34(10). Therefore, Deatherage’s claim, on its face, shows that he is not entitled to the relief he seeks. Accordingly, we reverse the postconviction court’s order to the extent Deatherage’s first claim was dismissed without prejudice and remand with directions for the postconviction court to deny the claim. The postconviction court’s order is affirmed in all other respects.

Affirmed in part; reversed in part; remanded with directions.

FULMER, WHATLEY, and KHOUZAM, JJ., Concur.


author: KAHN, J.

text:
    Jeffrey E. LEWIS, et al., Appellants, v. LEON COUNTY, et al., Appellees.
    No. 1D09-188.
    District Court of Appeal of Florida, First District.
    July 17, 2009.
    Rehearing Denied Aug. 18, 2009.

      Bill McCollum, Attorney General, Jonathan A. Glogau, Special Counsel, Scott D. Makar, Solicitor General, Louis F. Hubener, Chief Deputy Solicitor General, Tallahassee, for Appellants.
    Robert L. Nabors, Harry F. Chiles, Carly J. Schrader and Bethany A. Burgess of Nabors, Giblin & Nickerson, P.A., Tallahassee; Edward A. Dion of Nabors, Giblin & Nickerson, P.A., Fort Lauderdale; Virginia Saunders Delegal, General Counsel, Florida Association of Counties, Inc., Tallahassee, for Appellees.
    Daniel D. Eckert, Deland, for Appellee County of Volusia.
   KAHN, J.

In two actions that were consolidated below, appellees, twenty-six Florida counties (“counties”), filed suit seeking a declaratory judgment that Section 19, Chapter 2007-62, Laws of Florida, is unconstitutional under both Article V, Section 14, and Article VII, Section 18(a), of the Florida Constitution. The trial court entered an order of final summary judgment in favor of the counties. Appellants now challenge the trial court’s determination that Section 19 of Chapter 2007-62, Laws of Florida, is unconstitutional. For the reasons that follow, we affirm the trial court’s determination on all grounds.

BACKGROUND

After adoption of Article V of the Florida Constitution in 1972, local government was the main source of funding for the state court system. City of Ft. Lauderdale v. Crowder, 983 So.2d 37, 39 (Fla. 4th DCA 2008). In 1998, however, the citizens of Florida adopted Article V, Section 14, as part of Revision 7. The new provision changed responsibility for funding the state court system, shifting the majority of the burden from the counties to the state. Id. Certain important capital expenses remained the obligation of the counties as to “trial courts, public defenders’ and state attorneys’ offices.... ” Art. V, § 14(c), Fla. Const.

In 2007, the Legislature approved Chapter 2007-62, Laws of Florida, which established the Office of Criminal Conflict and Civil Regional Counsel (“Regional Conflict Counsel”). § 27.511, Fla. Stat. (2007). Regional Conflict Counsel serve as court-appointed counsel to represent indigent defendants, primarily in cases where public defenders have conflicts of interest. Crist v. Fla. Ass’n of Criminal Defense Lawyers, Inc., 978 So.2d 134, 138 (Fla.2008). This system effectively replaced the previous system where, in the case of a conflict, private counsel would be appointed from a registry list. Id. The private registry remains in use in cases where both the public defender’s office and Regional Conflict Counsel have conflicts. Id. Section 19 of Chapter 2007-62, Laws of Florida, amends section 29.008, Florida Statutes, to include Regional Conflict Counsel within the term “public defenders’ offices.” Thus, the Legislature effectively mandated that counties pay certain constitutionally defined costs to house the offices of both the public defender and Regional Conflict Counsel.

The counties argue that Article Y, Section 14, of the Florida Constitution limits the Legislature’s intent and imposes funding responsibility for court-appointed counsel wholly upon the state. They further argue that it is beyond the Legislature’s power to enact a statute that attempts to modify or enlarge a constitutionally defined term. Permitting such modification, they contend, defeats the purpose of Article V, Section 14, set forth by the framers and voted on by the people of Florida. Conversely, appellants argue that Article V, Section 14, does not prohibit the Legislature from requiring counties to fund Regional Conflict Counsel.

The counties further urge that Section 19 of Chapter 2007-62 violates Article VII, Section 18(a), of the Florida Constitution. Article VII, Section 18(a), establishes the proposition that before the Legislature may enact a general law requiring counties to expend local funds, it must first determine the law fulfills an important state interest. This has been referred to as the unfunded mandates provision. Crowder, 983 So.2d at 39.

Appellants respond that nothing in Article VII, Section 18(a), requires the Legislature to follow any particular procedure and that a legislative decision under Section 18(a) can be evidenced by something other than a formal declaration identifying the state interest as “important.” The counties clearly disagree. They contend that because Chapter 2007-62 imposes a mandate on counties to expend local funds, the Legislature was required, under the Constitution, to declare that the legislation fulfills an important state interest.

ANALYSIS

We approve the trial court’s decision and hold that Section 19 of Chapter 2007-62, Laws of Florida, unconstitutionally shifts the funding responsibility for certain costs of court-appointed counsel from the state to the counties. We hold the act unconstitutional also because the Legislature failed to make the constitutionally required determination of an important state interest. As these issues involve the constitutionality of a statute and interpretation of the Florida Constitution, they are subject to de novo review. Crist, 978 So.2d at 139.

In construing constitutional provisions, courts must first examine the actual language used in the Constitution. Crist, 978 So.2d at 140. “If that language is clear, unambiguous, and addresses the matter in issue, then it must be enforced as written.” Fla. Soc’y of Ophthalmology v. Fla. Optometric Ass’n, 489 So.2d 1118, 1119 (Fla.1986). The words of the Constitution “are to be interpreted in their most usual and obvious meaning, unless the text suggests that they have been used in a technical sense.” Wilson v. Crews, 160 Fla. 169, 34 So.2d 114, 118 (1948) (quoting City of Jacksonville v. Glidden Co., 124 Fla. 690, 169 So. 216, 217 (1936)).

In 1998, the Constitution Revision Commission amended Article V, Section 14, of the Florida Constitution, which reads in pertinent part:

(a) Funding for the state court system, state attorneys’ offices, public defenders’ offices, and court-appointed counsel, except as otherwise provided in subsection (c), shall be provided from state revenues aj)propriated by general law.
(c) Counties shall be required to fund the cost of communications services, existing radio systems, existing multi-agency criminal justice information systems, and the cost of construction or lease, maintenance, utilities, and security of facilities for the trial courts, public defenders’ offices, state attorneys’ offices, and the offices of the clerks of the circuit and county courts performing court-related functions.

Art. V, § 14, Fla. Const. “The new plan for funding the judicial system primarily placed the burden on the state, with’ the share of the counties greatly reduced.” Crowder, 983 So.2d at 39. The counties’ obligation to fund replacement counsel shifted to the State of Florida. State v. Pub. Defender, 11th Jud. Cir., 12 So.3d 798, 801 (Fla. 3d DCA 2009) (citing Article V, § 14(c), Fla. Const.; Crist, 978 So.2d at 138).

In addition to the Constitution’s plain language that court-appointed counsel must be funded by state revenue, the Statement of Intent drafted by the Constitution Revision Commission clearly states the Commission’s intent to make the state wholly responsible for funding court-appointed counsel:

It is the intent of the proposers that the state be primarily responsible for funding the state court system, state attorneys’ offices and public defenders’ offices, and wholly responsible for funding court-appointed counsel and related costs necessary to ensure the protection of due process rights.

Fla. Stat. Ann., Const. Art. V, § 14 (West 2009).

Appellants argue that neither the language of the Constitution nor the Statement of Intent anticipated the creation of another public entity such as Regional Conflict Counsel. Although perhaps true, this argument does not avail its crafters. Both the plain language of Revision 7 and the framers’ expression of intent demonstrate that the state will be “wholly responsible for funding court-appointed counsel and related costs necessary to ensure the protection of due process rights.” Fla. Stat. Ann., Const. Art. V, § 14 (West 2009).

The Florida Supreme Court has already held that Regional Conflict Counsel are not public defenders and do not perform the constitutional duties of public defenders. Crist, 978 So.2d at 146. Instead, the legal character of Regional Conflict Counsel should depend on what they do, not on how they might be characterized for purposes of funding. Id. at 145. The court also held that “there appears to be no significant legal difference between the current Regional Conflict Counsel system and the prior system of appointing private counsel in conflict cases.” Id. at 146. “Other than the fact that the Regional Conflict Counsel are government officers and private registry counsel are independent contractors, their responsibilities are identical- — to represent indigent defendants in criminal cases when the public defender has a conflict.” Id. Appellants concede that Regional Conflict Counsel are “court appointed counsel.”

■ Because we find no significant legal difference between the Regional Conflict Counsel system and the previous private court-appointed counsel system, we conclude that Section 19 of Chapter 2007-62, Laws of Florida, stands inconsistent with the Constitution’s language and the framers’ intent. Section 19 attempts to require counties to fund Regional Conflict Counsel’s overhead costs. Article V, Section 14(c), however, clearly requires the state to fund such costs.

We further approve the circuit court’s holding that the Legislature adopted Section 19 of Chapter 2007-62 in violation of Article VII, Section 18(a), of the Florida Constitution. Section 18(a) provides that

[n]o county or municipality shall be bound by any general law requiring such county or municipality to spend funds or to take an action requiring the expenditure of funds unless the legislature has determined that such law fulfills an important state interest.

Art. VII, § 18(a), Fla. Const. Although Chapter 2007-62 contains general statements of intent as to the creation of Regional Conflict Counsel, it provides no indication that the Legislature ever determined that creation of the Office fulfills an important state interest. Appellants argue that the “importance” of the act was declared when the Legislature deemed this law “necessary,” and stated the law’s purpose to provide adequate representation to persons entitled to court-appointed counsel under the federal and state constitutions. Such does not, however, demonstrate any attempt to comply with the purposeful restraint imposed under the Constitution. See Ch. 2004-263, § 2, Laws of Florida (following the procedures recommended by the House and Senate leadership in 1991 by inserting a separate provision in the bill stating unequivocally: “The Legislature determines and declares that this act fulfills an important state interest.”).

Moreover, the Staff Analysis for CS/SB 1088, later codified into Chapter 2007-62, Laws of Florida, lacks any contemplation of unfunded mandate issues. See Professional Staff Analysis and Economic Impact Statement, Florida Senate, Criminal and Civil Justice Appropriations Committee, CS/SB 1088 (March 28, 2007), section IV(A). CS/SB 1088 clearly required counties to expend local funds; nevertheless, in the Staff Analysis section titled “Municipality/County Mandates Restrictions,” the legislative staff simply inserted the word “none.” Id. This supports our conclusion that the Legislature simply did not consider the unfunded mandate issues; thus, the Legislature violated Article VII, section 18(a), of the Florida Constitution. We decline to approve appellant’s argument that a reviewing court may make the required determination where the Legislature did not. Such a holding would allow the constitutionally restricted exception to unfunded mandates to completely outstretch the general rule against such enactments.

CONCLUSION

The trial court correctly held that Section 19 of Chapter 2007-62, Laws of Florida, violates both Article V, Section 14, and Article VII, Section 18, of the Florida Constitution. We AFFIRM the trial court’s final judgment in all respects and enter judgment for appellees.

BROWNING, J., concurs; DAVIS, J., concurs in result.


text:
    ALACHUA LAND INVESTORS, LLC, a Florida Limited Liability Company f/k/a Blues Creek Development, Ltd., Petitioner, v. CITY OF GAINESVILLE, a political subdivision, Respondent.
    No. 1D08-5808.
    District Court of Appeal of Florida, First District.
    July 17, 2009.
    Rehearing Denied Aug. 25, 2009.
    Patrice Boyes and Ryan T. Hulslander, of Patrice Boyes, P.A., Gainesville, for Petitioner.
    Daniel M. Nee, Assistant Litigation Attorney, Office of the City Attorney, Gainesville, for Respondent.
   PER CURIAM.

Denying petitioner’s plat application, the Gainesville City Commission did not state its reasoning with written factual findings. Nonetheless, in the first-tier certiorari proceeding here at issue, the circuit court upheld the Commission’s decision after noting competent substantial evidence that could have supported denial of petitioner’s application. The circuit court ruled properly under existing law.

A circuit court, conducting certiorari review of a local government’s quasi-judicial decision on a development application, may uphold the decision even in the absence of supportive factual findings, so long as the court can locate competent substantial evidence consistent with the decision (and, of course, conclude the local government applied the correct law and did not deprive the petitioner of due process). See Broward County v. G.B.V. Int’l, Ltd., 787 So.2d 838, 846 (Fla.2001); Bd. of County Comm’rs of Brevard County v. Snyder, 627 So.2d 469, 476 (Fla.1993) (“While they may be useful, the board will not be required to make findings of fact.”). When assessing the sufficiency of evidence, the circuit court need only “review the record to determine simply whether the [local government] decision is supported by competent substantial evidence.” G.B.V. Int’l, 787 So.2d at 846 (emphasis in original).

The petition for writ of certiorari is DENIED.

WOLF, KAHN, and VAN NORTWICK, JJ., concur.


text:
    M.W., a child, Petitioner, v. DEPARTMENT OF JUVENILE JUSTICE, Respondent.
    No. 1D09-1799.
    District Court of Appeal of Florida, First District.
    July 17, 2009.
    Rehearing Denied Aug. 25, 2009.

      Nancy Daniels, Public Defender, and Kara A. Fenlon, Assistant Public Defender, Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, and Anne Conley, Assistant Attorney General, Tallahassee, for Respondent.
   KAHN, J.

M.W., a juvenile, petitions this court for habeas corpus relief, contending that he was unlawfully placed in secure detention based on a risk assessment instrument (RAI) that improperly “double scored” him for the same circumstance. Although M.W. has now been released from secure detention, we have retained jurisdiction in this matter because the issue is likely to recur yet may evade review. See J.R. v. State, 953 So.2d 690 (Fla. 1st DCA 2007).

Petitioner was arrested for an alleged violation of section 790.23(l)(b), Florida Statutes, which prohibits persons previously having been found to have committed certain delinquent acts from possessing any firearm, ammunition, or electric weapon or device, or carrying a concealed weapon, including a tear gas gun or chemical weapon or device. In petitioner’s case, he was alleged to have been in possession of a firearm. A violation of section 790.23(l)(b) is a second-degree felony, and unless otherwise specified, the RAI assesses eight points where the most serious current offense is a second-degree felony. Where the violation involves “possession of a firearm or concealed weapon by a youth previously adjudicated or with adjudication withheld for a crime that would be a felony if committed by an adult,” the RAI calls for the assessment of 10 points, rather than 8. Given the nature of M.W.’s offense, he was correctly assessed 10 points under the RAI category addressing his most serious current offense.

A separate category of the RAI addresses the “Mandatory Aggravating Circumstance: Illegal possession of a firearm,” and assesses 3 additional points when this factor is found to be present. M.W. was also assessed these 3 points which, when combined with the 10 points scored for his most serious current offense and a single point attributable to his prior record, resulted in a score in excess of the 12 points necessary to justify secure detention. Petitioner challenges inclusion of the additional 3 points. We agree with our sister court’s conclusion in D.P. v. State, 8 So.3d 1203 (Fla. 5th DCA 2009), that this scoring method runs afoul of the prohibition on “double-scoring” additional aggravation points for factors already accounted for and quantified in the RAI. See P.A.J. v. Gnat, 684 So.2d 310 (Fla. 1st DCA 1996); D.G.H. v. Gnat, 682 So.2d 210 (Fla. 1st DCA 1996); see also M.G. v. Berry, 998 So.2d 634 (Fla. 3d DCA 2008); D.G. v. Miles, 872 So.2d 348 (Fla. 2d DCA 2004). The fact that petitioner violated section 790.23(l)(b) by possessing a firearm had already been accounted for by the scoring of 10 points for that offense, rather than the 8 points that would have been scored had he violated the statute by some means other than possession of a firearm or concealed weapon.

Because M.W.’s alleged possession of a firearm had already been accounted for under his current offense score of 10 points, and in light of the foregoing authorities, we find error in the assessment of an additional 3 points in aggravation based on precisely the same factor. With the deletion of these points, petitioner’s RAI score alone would not have justified secure detention.

PETITION GRANTED.

PADOVANO and LEWIS, JJ., concur.


author: MONACO, C.J.

text:
    STATE of Florida, Appellant, v. Michael L. REAVES, Appellee.
    No. 5D08-2831.
    District Court of Appeal of Florida, Fifth District.
    July 17, 2009.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellee.
   MONACO, C.J.

The State appeals the trial court’s granting of a motion to suppress illicit drugs and a firearm that were found in a vehicle after a traffic stop. Because the evidence does not support the trial court’s factual findings, we reverse.

The facts testified to at the suppression hearing are generally agreed. A law enforcement officer, working in the early morning hours as part of a tactical anti-crime unit, checked the tag on a vehicle that he saw being operated in Orange County. He discovered electronically that the registered owner of the vehicle was a black male born in 1969, whose driver’s license had been suspended. No photo identification was sent to the officer, however. As the driver appeared to the officer to be a black male in his late thirties, the officer pulled over the vehicle.

According to the report of the officer (which was accurately mirrored in the testimony), after the vehicle stopped the following next transpired:

I asked the driver to exit the vehicle with his license and to walk back to my car. The driver, a black male, later identified as Richard L. Bailey produced his license. I noticed that as I was making contact with the driver, [Deputy Sheriff] Riley was walking over to us. As the driver produced his license, I asked the driver if there was anything illegal in the vehicle, he said “no.” I then asked him if I could search his vehicle for any weapons, drugs or anything illegal. He told me “no.” I then asked DS Riley to deploy his drug dog. While DS Riley walked his dog around the vehicle, I checked Bailey’s driver’s license. DS Riley told me that his dog had alerted on the driver’s side door of the vehicle. As I approached the driver’s side door, I noticed in plain view, a clear plastic baggie with a w'hite powder laying on top of the driver’s seat. Based on my training and numerous drug arrests, I identified the substance to be suspected powder cocaine. I then checked the center console of the vehicle and noticed a can of engine degreaser. I picked the can [up] and noticed that the can had a false bottom. In the can, I could see several clear plastic baggies containing a white substance. I again identified the substance to be suspected cocaine. Under the can of engine rle-greaser I found a loaded black semiautomatic handgun.

The appellant, Michael L. Reaves, was a passenger sitting in the front seat of the car. After being Mirandized, Mr. Reaves admitted that the drugs were his and that he kept the handgun for personal protection.

Mr. Reaves filed a motion to suppress all evidence and statements, claiming that the stop of the vehicle was unconstitutionally prolonged and not based on any reasonable suspicion of criminal activity once it had been determined that the driver had a valid driver’s license.

The testimony at the suppression hearing was relatively clear that Deputy Riley, who had been working the same area on patrol, pulled in behind the stopped vehicle for backup pui'poses. Mr. Reaves testified that it might have been 10 to 20 minutes later that the dog arrived. Nevertheless, at the time that the driver was producing his license and indicating that he did not want to authorize a search of the vehicle, the arresting officer asked Officer Riley to have his dog sweep the automobile. While the arresting officer was attempting to determine whether the person he had detained was the owner of the vehicle, Deputy Riley’s dog alerted on the driver’s side.

At the conclusion of the suppression hearing although the trial court found that the stop was valid, the checking of the license was authorized, and the officer was telling the truth, it decided to grant the suppression motion. The comments of the trial court indicate that it misunderstood the testimony to be that the K-9 sweep occurred after the completion of the license investigation, thus suggesting that the officer unnecessarily detained the driver without a basis for doing so. There does not appear to be evidentiary support for the trial court’s ruling in this respect.

A trial court’s ruling on a motion to suppress comes to an appellate court clothed with a presumption of correctness, and a reviewing court must interpret the evidence and reasonable inferences and deductions derived from the evidence in a manner most favorable to sustain a trial court’s ruling. See Doorbal v. State, 837 So.2d 940, 952 (Fla.), cert. denied, 539 U.S. 962, 123 S.Ct. 2647, 156 L.Ed.2d 663 (2003); Pagan v. State, 830 So.2d 792 (Fla.2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003); San Martin v. State, 717 So.2d 462, 468 (Fla.1998), cert. denied, 526 U.S. 1071, 119 S.Ct. 1468, 143 L.Ed.2d 553 (1999); Davis v. State, 922 So.2d 438, 443 (Fla. 5th DCA 2006). While the standard of review to be applied to factual findings of the court is whether competent, substantial evidence supports the findings, the trial court’s application of the law to the facts is reviewed de novo. See Bevard v. State, 976 So.2d 1163 (Fla. 5th DCA 2008); Utu v. State, 929 So.2d 718 (Fla. 5th DCA 2006); Houston v. State, 925 So.2d 404 (Fla. 5th DCA), review denied, 935 So.2d 1220 (Fla.2006); Dewberry v. State, 905 So.2d 963 (Fla. 5th DCA 2005); Young v. State, 803 So.2d 880 (Fla. 5th DCA 2002); State v. Kindle, 782 So.2d 971 (Fla. 5th DCA 2001); McMaster v. State, 780 So.2d 1026, 1027 (Fla. 5th DCA 2001); Hines v. State, 737 So.2d 1182 (Fla. 1st DCA 1999).

In the present case the evidence does not support the trial court’s factual findings. The trial court incorrectly recalled the arresting officer’s testimony. The testimony is clear that the officer asked for a K-9 sweep after obtaining the license but before making any determination about the validity of the driver’s license. Indeed Mr. Reaves concedes that the police report and the testimony support the chronology advanced by the State, but argues that the “detention was impermissibly prolonged and the driver and the Appellee should have been allowed to leave before the K-9 unit was able to sweep the car.” This position is based on the idea that the arresting officer knew from looking at the driver’s license that the driver was not the owner of the vehicle. This, of course, ignores the fact that the ongoing license check was part of the valid investigatory stop or detention.

Because there was no competent evidence to support the trial court’s findings of fact, the order granting the motion to suppress was erroneous. As the trial court specifically indicated that the ruling was based on its recollection of the order of events, and as the judge’s recollection was faulty, we reverse and i'emand for further proceedings.

REVERSED and REMANDED.

GRIFFIN and ORFINGER, JJ., concur.


author: SAWAYA, J.

text:
    Raymond H. GOFORTH, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-196.
    District Court of Appeal of Florida, Fifth District.
    July 17, 2009.

      Raymond H. Goforth, Malone, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SAWAYA, J.

We review an order denying a motion for postconviction relief filed by Raymond Goforth pursuant to rule 3.850, Florida Rules of Criminal Procedure. The motion contained fifteen grounds alleging ineffective assistance of counsel. Two were denied after an evidentiary hearing, and the remainder were summarily denied. Of the numerous assertions of error raised by Goforth, we believe that only one warrants reversal and remand for an eviden-tiary hearing. That error concerns the trial court’s summary denial of Goforth’s claim of ineffective assistance of trial counsel based on counsel’s failure to move for a mistrial when a State’s witness unexpectedly presented testimony to the jury that Goforth had recently been released from prison.

The record reveals that prior to his current criminal entanglements, Goforth was no stranger to the criminal justice system, having previously served time in prison. The underlying offenses that have led Go-forth to his present postconviction filings— burglary of a dwelling, grand theft of electronic equipment, and grand theft of a motorcycle — were apparently committed a very short time after Goforth was released from confinement. The case proceeded to trial, where an individual named Edward Sloan testified for the defense. He told the jury that he and Goforth’s brother-in-law, John Towner, had committed all three charged offenses. Sloan explained that he was admitting his actions because he did not want to see an innocent man convicted. After the defense rested, the prosecutor called John Towner’s father, Thomas Towner, to testify as a rebuttal witness. Thomas Towner testified that about a week and a half after Goforth got out of jail, a man came by the house looking for his motorcycle. Goforth talked to the man and then came into the house where he told Thomas Towner that he had been speaking with the man from whom he had obtained the motorcycle. Thomas Towner described Goforth as “upset.” Goforth’s counsel then cross-examined Towner as to why Goforth was upset, and Towner explained that Goforth

had just gotten out of prison and was working and trying to go straight and this is what he got for it. It’s kind of like he got a complex. You know, he felt like he had been done in or something, you know.
Q. Because he didn’t know the bike was stolen when the guy gave it to him?
A. Right. And he hadn’t done nothing, but here he was a good chance of going back to jail or something, jmu know—
Q. Thank you.
A. —for something he didn’t do.

Goforth alleges that this was the last testimony the jury heard. His trial counsel did not seek a curative instruction or ask for a mistrial.

The trial concluded, a judgment of acquittal was granted as to the count charging grand theft of the electronics, and the jury found Goforth guilty as charged of the burglary and grand theft of the motorcycle. His direct appeal resulted in a per curiam affirmance. Goforth v. State, 905 So.2d 146 (Fla. 5th DCA 2005). Goforth filed the instant Amended Motion for Post-Conviction Relief wherein he claims that his trial counsel rendered ineffective assistance when he failed to move for a mistrial after the improper testimony was presented to the jury. The trial court summarily denied this claim.

To prove a claim of ineffective assistance of counsel, the defendant must establish that: (1) “counsel’s performance was deficient” in that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”; and (2) “the deficient performance ¡prejudiced the defense” because “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The standard of appellate review when an appellate court reviews a summary denial of a rule 3.850 claim requires that “the claims must be either facially invalid or conclusively refuted by the record. Further, where no evidentiary hearing is held below, we must accept the defendant’s factual allegations to the extent they are not refuted by the record.” Peede v. State, 748 So.2d 253, 257 (Fla.1999) (citations omitted).

It is clear that the revelation of Go-forth’s prison sentence was unexpected and unintended, and the parties do not contend otherwise. The decision in Czubak v. State, 570 So.2d 925 (Fla.1990), is analogous, with the only distinguishing feature being that, unlike the instant case, defense counsel in Czubak did move for a mistrial, albeit unsuccessfully. The court in Czubak explained:

On cross-examination defense counsel was attempting, with some difficulty, to elicit from Schultz whether she suspected that Czubak killed Peterson before Detective Pierce suggested it to her. Counsel could not have anticipated that Schultz would respond by stating that Czubak was an escaped convict. The response was volunteered and totally irrelevant to the question posed.*
* We reject the state’s argument that Czubak was required to ask for a curative instruction. A curative instruction would not have overcome the error here.
The state claims that Schultz’s testimony was harmless error. We do not agree. Erroneous admission of collateral crimes evidence is presumptively harmful. Castro [v. State], 547 So.2d [111] 116 [ (Fla.1989) ]; Straight v. State, 397 So.2d 903, 908 (Fla.), cert. denied, 454 U.S. 1022, 102 S.Ct. 556, 70 L.Ed.2d 418 (1981). Error is harmless only “if it can be said beyond a reasonable doubt that the verdict could not have been affected by the error.” Ciccarelli v. State, 531 So.2d 129, 132 (Fla.1988). In view of the fact that the case against Czubak was largely circumstantial, we cannot say beyond a reasonable doubt that the verdict was not affected by the revelation that he was an escaped convict. Accordingly, we reverse and remand for a new trial.

Id. at 928. Similarly, in McGuire v. State, 584 So.2d 89, 89 (Fla. 5th DCA 1991), we explained:

The only issue on appeal is whether defendant was entitled to a mistrial because, during cross-examination, a witness for the state blurted out that the defendant had been “doing time in Georgia” and that “he was on a fifteen year sentence up in Georgia.” The Georgia conviction was unrelated to the current charges.
We agree that the admission of this testimony was reversible error. § 90.404(2)(a), Fla. Stat. (1990).

Id. at 89; see also Glancy v. State, 941 So.2d 1201, 1203 (Fla. 2d DCA 2006); Jackson v. State, 627 So.2d 70, 70-71 (Fla. 5th DCA 1993); Ward v. State, 559 So.2d 450 (Fla. 1st DCA 1990).

Here, the jury learned that Goforth was a convicted felon who had just been released from prison and thus had a propensity to commit bad acts. Goforth claims that the failure to cure this error by moving for a mistrial constitutes deficient performance by his trial counsel that deprived him of a fair trial. Goforth asks for an evidentiary hearing to resolve this claim. The State asserts that Goforth’s counsel made “a reasonable strategic decision” not to attempt to remedy the harm presented by this testimony. Certainly, the failure to move for a mistrial may constitute a reasonable trial tactic that does not justify a finding of ineffective assistance of counsel. See Suggs v. State, 923 So.2d 419 (Fla.2005) (upholding trial court’s conclusion after evidentiary hearing that failure to move for mistrial was reasonable trial strategy); Gorby v. State, 819 So.2d 664, 678 (Fla.2002) (“Reasoned trial tactics do not amount to ineffective assistance of counsel.”); Anderson v. State, 467 So.2d 781, 787 (Fla. 3d DCA 1985) (“In addition, counsel must weigh whether a mistrial at this point would be in the client’s best interests given his assessment of the likelihood of an acquittal.”); see also Peterka v. State, 890 So.2d 219, 233 (Fla.2004) (“ ‘Whether to object is a matter of trial tactics which are left to the discretion of the attorney so long as his performance is within the range of what is expected of reasonably competent counsel.’ ”) (quoting Stevens v. State, 552 So.2d 1082, 1084 (Fla.1989)); Brown v. State, 846 So.2d 1114, 1122 (Fla.2003); Kenon v. State, 855 So.2d 654, 656 (Fla. 1st DCA 2003) (“Absent extraordinary circumstances, strategic or tactical decisions by trial counsel are not grounds for ineffective assistance of counsel claims.”), review denied, 868 So.2d 523 (Fla.2004).

We do not know why Goforth’s trial counsel did not move for a mistrial because the trial court did not conduct an eviden-tiary hearing, and the record attachments provided by the trial court do not adequately refute Goforth’s claim. Perhaps it was a tactical decision not to seek a mistrial because a witness actually confessed to the crimes Goforth was charged with committing and counsel did not want to jeopardize a trial he thought would likely result in an acquittal. On the other hand, counsel may have failed to appreciate the impact such testimony would have on the jury. We conclude, based on the circumstances of the instant case, that Goforth has raised a meritorious claim that requires an evidentiary hearing to resolve. See Fla. R.App. P. 9.141(b)(2)(D) (“On appeal from the denial of relief, unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.”); Ford v. State, 825 So.2d 358 (Fla.2002); Hamilton v. State, 860 So.2d 1028, 1029 (Fla. 5th DCA 2003).

Accordingly, we reverse the trial court’s summary denial of this claim and remand for an evidentiary hearing. We affirm as to the other issues raised by Goforth.

REVERSED and REMANDED.

ORFINGER, J., concurs.

LAWSON, J., dissents without opinion.

      . Goforth argues that: (1) the court erred by denying his request for counsel to represent him at the hearing on his rule 3.850 motion; (2) the court erred in denying him relief on the two claims raised at the evidentiary hearing; and (3) the court erred by summarily denying relief on grounds V, VIII, and IX. The error we address in this opinion is designated ground number IX in Goforth's motion.


author: EVANDER, J.

text:
    John F. KRAMER, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-2015.
    District Court of Appeal of Florida, Fifth District.
    July 17, 2009.

      James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Kramer appeals from his conviction for tampering with physical evidence, and resisting without violence. He contends that the State’s evidence failed to establish that he was aware that a law enforcement investigation was about to commence when he allegedly swallowed a piece of crack cocaine. We find it unnecessary to address this issue because the trial court should have granted Kramer’s motion for judgment of acquittal where the arresting officer’s testimony established: 1) that the State’s evidence was obtained as the result of an unlawful investigatory stop; and 2) that the officer was not engaged in a lawful duty at the time of Kramer’s alleged resistance.

The State’s only witness was Deputy Dan Lyons. Lyons testified that on the evening in question, he was on patrol in a “well-known and well-documented drug area” when he observed Kramer walking on the side of the road. Lyons told Kramer he wanted to talk to him. Kramer was “actively chewing, ..., like he was chewing gum or something to that effect.” Subsequently, Lyons asked Kramer if he could look in Kramer’s mouth to see what Kramer was chewing. According to Lyons, Kramer did not respond, but continued chewing. Deputy Lyons then instructed Kramer “just show me what you are chewing on.” Kramer partially opened his mouth and Lyons observed an “off-white, rock-like substance ... and then there’s like a white paste on his tongue.” Lyons believed the white substance was crack cocaine. He ordered Kramer to spit it out while trying unsuccessfully to prevent Kramer from swallowing the substance. Kramer was then arrested. Throughout the deputy’s testimony, defense counsel objected on the grounds that Lyon’s observations of the substance in Kramer’s mouth were the result of an illegal search and seizure. He again raised this issue in support of his motion for judgment of acquittal.

The initial contact between Lyons and Kramer constituted a consensual encounter. However, when Deputy Lyons ordered Kramer to open his mouth, the consensual encounter was transformed into an investigatory stop. See Popple v. State, 626 So.2d 185 (Fla.1993); Parsons v. State, 825 So.2d 406 (Fla. 2d DCA 2002). To justify an investigatory stop of a citizen, the officer must have a reasonable suspicion that the individual has committed, is committing, or is about to commit a crime. Popple, 626 So.2d at 186. Kramer’s mere act of “actively chewing,” while walking late at night in a high-crime area, did not give Deputy Lyons a reasonable suspicion to believe that Kramer was engaged in criminal activity.

We acknowledge that this issue was not raised on appeal. However, ineffective assistance of appellate counsel may be considered during direct appellate proceedings where the ineffectiveness is apparent on the face of the record, and it would be a waste of judicial resources to require the trial court to address the issue. Sims v. State, 998 So.2d 494 (Fla.2008).

Defendant’s convictions are hereby REVERSED.

ORFINGER and COHEN JJ., concur.

      . § 918.13(l)(a), Fla. Slat. (2008).

      . § 843.02, Fla. Stat.'(2008).

      . The State was afforded the opportunity to file a supplemental brief addressing the Fourth Amendment issue.


text:
    Daniel D. COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-2684.
    District Court of Appeal of Florida, Fifth District.
    July 17, 2009.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Cooper was convicted, after a jury trial, of possession of a firearm by a convicted felon, and possession of less than 20 grams of cannabis. We affirm the firearm conviction without further discussion. However, we reverse the cannabis conviction and remand for a new trial on that count, because the trial court should have granted Cooper’s pretrial motion to sever the two counts.

The decision to grant or deny a motion for severance rests within the sound discretion of the trial court. Smith-ers v. State, 826 So.2d 916, 923 (Fla.2002). However, that discretion is sharply curtailed when it concerns a request to sever a charge of possession of a firearm by a convicted felon. Tucker v. State, 884 So.2d 168, 172 (Fla. 2d DCA 2004). Here, the admission of evidence that Cooper was a convicted felon was necessary to prove the count charging him with possession of a firearm by a convicted felon, but was inadmissible and unduly prejudicial with regard to the cannabis count. See State v. Vazquez, 419 So.2d 1088 (Fla.1982); Tucker; Craft v. State, 441 So.2d 704 (Fla. 2d DCA 1983); Smith v. State, 434 So.2d 18 (Fla. 5th DCA 1983).

AFFIRMED in part; REVERSED in part; REMANDED.

PALMER and SAWAYA, JJ, concur.

      . § 790.23, Fla. Stat. (2007).

      . § 893.13(6)00, Fla. Stat. (2007).


author: WEBSTER, J.

text:
    Charles F. JACQUES, Jr., Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Appellee. Sign Spec, Inc., Appellant, v. Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, Appellee.
    Nos. 1D08-2979, 1D08-2980.
    District Court of Appeal of Florida, First District.
    July 21, 2009.

      Anna Small, Donna Holshouser Stinson, and Cathy M. Sellers of Broad and Cassel, Tallahassee, for Appellants Charles F. Jacques, Jr., and Sign Spec, Inc.

      Joseph M. Helton, Jr., Chief Attorney, and Charles T. “Chip” Collette, Assistant General Counsel, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, Tallahassee, for Appellee.
   WEBSTER, J.

In these consolidated appeals, appellants claim that the Division of Pari-Mutuel Wagering of the Department of Business and Professional Regulation committed reversible error in denying their applications for slot machine occupational licenses because appellant Charles F. Jacques, Jr., a controlling officer of appellant Sign Spec, Inc., had prior felony convictions. In doing so, appellants assert that the Division incorrectly concluded that any felony conviction was a ground to deny licensure under section 551.107(6)(a), Florida Statutes (2007). Alternatively, if the Division’s interpretation of the statute was correct, appellants assert that the statute violates substantive due process and equal protection. Finally, appellants claim that the final orders violated section 120.57, Florida Statutes (2007), in several respects. Concluding that appellants’ claims are without merit, we affirm.

The Division issued letters informing appellants that it was denying their applications for slot machine occupational licenses because (1) appellant Jacques entered a nolo contendere plea with adjudication withheld in Madison County, Florida to felony charges of production of marijuana and possession of more than 20 grams of marijuana, which were disqualifying convictions under section 551.107(6)(a); and (2) appellant Jacques, as president of appellant Sign Spec, had the ability to control the actions of the corporation. By agreement of the parties, informal hearings were held pursuant to section 120.57(2), Florida Statutes. The parties’ stipulations to the facts and the Division’s “First Request to Take Official Recognition,” which consisted of the legislative history of chapter 551, Florida Statutes, constituted the only evidence submitted into the record. At the conclusion of the hearings, the hearing officer indicated that she was adopting the findings of fact and conclusions of law set forth in the letters of denial. After the hearings, both sides filed proposed recommended orders. The director of the Division entered final orders denying appellants’ applications for licen-sure, essentially adopting the Division’s proposed recommended orders. Specifically, the final orders found that (1) appellant Jacques, a controlling officer of appellant Sign Spec, entered nolo contendere pleas with adjudication withheld in Madison County, Florida for marijuana production and marijuana possession over 20 grams; and (2) these felony convictions were for disqualifying offenses, precluding licensure under section 551.107(6)(a) and Florida Administrative Code Rule 61D-14.009. To the extent that disqualification under the statute was discretionary rather than mandatory, the orders concluded that appellant Jacques’ criminal record showed that he was not entitled to the privilege of holding a slot machine occupational license. This appeal follows.

Section 551.107, Florida Statutes (2007), became effective in 2006 after the Florida Constitution was amended to authorize the operation of slot machines at certain existing pari-mutuel facilities in Broward and Miami-Dade Counties upon voter approval in a local referendum. See ch. 2005-362, §§ 1, 8, at 77-81, 90, Laws of Fla. The statute provides in pertinent part:

(6) (a).... [T]he division may deny, suspend, revoke, or refuse to renew any slot machine occupational license if the applicant for such license or the licensee has been convicted in this state, in any other state, or under the laws of the United States of a capital felony, a felony, or an offense in any other state that would be a felony under the laws of this state involving arson; trafficking in, conspiracy to traffic in, smuggling, importing, conspiracy to smuggle or import, or delivery, sale, or distribution of a controlled substance; racketeering; or a crime involving a lack of good moral character, or has had a gaming license revoked by this state or any other jurisdiction for any gaming-related offense.
(c) For purposes of this subsection, the term “conviction” means having been found guilty, with or without adjudication of guilt, as a result of a jury verdict, nonjury trial, or entry of a plea of guilty or nolo contendere.

In addition, Florida Administrative Code Rule 61D-14.009(7)(a) provides that the Division shall deny an application for a slot machine occupational license if a review of the application or the investigation of the applicant demonstrates that “[t]he applicant is a business entity with an officer, director, manager, shareholder or other person with the ability to control the actions of the applicant who ... [h]as been convicted of any disqualifying offense under Section 551.107(6), F.S.”

Appellants argue that appellant Jacques’ prior felony convictions for manufacture of marijuana and possession of more than 20 grams of marijuana were not for disqualifying offenses under section 551.107(6)(a) because they did not involve “arson; trafficking in, conspiracy to traffic in, smuggling, importing, conspii’acy to smuggle or import, or delivery, sale, or distribution of a controlled substance; racketeering; or a crime involving a lack of good moral character.” In doing so, they assert that the qualifying phrase “involving arson; trafficking in, conspiracy to traffic in, smuggling, importing, conspiracy to smuggle or import, or delivery, sale, or distribution of a controlled substance; racketeering; or a crime involving a lack of good moral character” modifies the antecedent terms “a capital felony,” “a felony,” and “an offense in any other state that would be a felony under the laws of this state.” The Division counters that the statute is clear and unambiguous, that the qualifying phrase modifies only the last antecedent, “an offense in any other state that would be a felony under the laws of this state,” and that any felony conviction is disqualifying under section 551.107(6)(a).

We agree with the Division’s interpretation which is supported by rules of statutory and grammatical construction. Under the “doctrine of the last antecedent,” “relative and qualifying words, phrases and clauses are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to, or including, others more remote.” Kasischke v. State, 991 So.2d 803, 811 (Fla.2008) (quoting City of St. Petersburg v. Nasworthy, 751 So.2d 772, 774 (Fla. 1st DCA 2000)). In addition, a qualifying phrase is read as limited to the last item in a series when the phrase follows that item without a comma. State ex rel. Owens v. Pearson, 156 So.2d 4, 6 (Fla.1963). Accord Kasischke, 991 So.2d at 812-13. We also note that the Division’s interpretation is consistent with the legislative staff analysis of the statutory language. Fla. House of Representatives Staff Analysis, HB 1-B, at 6 (Dec. 8, 2005).

We find additional support for the Division’s interpretation from an examination of the entire legislative scheme. A slot machine licensee must maintain a parimutuel permit pursuant to the provisions of chapter 550. § 551.104(4)(b), Fla. Stat. (2007). Section 550.1815(l)(b)l, Florida Statutes (2007), precludes any business entity from holding a pari-mutuel permit if an owner, partner, corporate officer or director, or employee has been convicted of “[a] felony in this state.” See Yeoman v. Constr. Indus. Licensing Bd., 919 So.2d 542, 544 (Fla. 1st DCA 2005) (noting that section 550.1815(l)(b)l provides an absolute bar to licensure where the applicant has a prior felony conviction). Reading these provisions together, it must be concluded that the legislature intended that a conviction for any felony in this state would be grounds to deny licensure under section 551.107(6)(a). Otherwise, if appellants’ reading of the statute is correct, an employee of a slot machine licensee with a non-enumerated Florida felony conviction could receive a slot machine occupational license under section 551.107(2)(a)l, but the slot machine licensee would become ineligible for a pari-mutuel permit under section 550.1815(l)(b)l and, as a consequence, would forfeit its slot machine license.

Assuming that a conviction for any felony would be grounds to deny licensure under section 551.107(6)(a), appellants claim that section 551.107(6)(a) is unconstitutional because it violates substantive due process and equal protection. Specifically, appellants claim that (1) the disqualification of all persons convicted of felonies is not reasonably related to the statute’s purpose of ensuring safe and lawful operation of slot machine gaming facilities; (2) the inclusion of a nolo contendere plea, with or without an adjudication of guilt, in the definition of “conviction” is not reasonably related to the regulation of slot machine gaming facilities to protect the public health, safety, and welfare; and (3) the statute impairs substantive rights if it applies retroactively to deny licensure to those who have convictions for disqualifying offenses prior to the statute’s enactment.

Where there is no suspect classification, substantive due process and equal protection analysis are essentially the same, i.e., whether the classification is non-arbitrary and rationally related to a legitimate state purpose. Polakoff v. Dep’t of Ins. & Treasurer, 551 So.2d 1223, 1225 (Fla. 1st DCA 1989). Accord State v. Robinson, 873 So.2d 1205, 1214 (Fla.2004); WCI Communities, Inc. v. City of Coral Springs, 885 So.2d 912, 914 (Fla. 4th DCA 2004). The rational basis standard is concerned only with the existence of a conceivably rational basis, not with whether the basis is actually considered by the legislature, and is highly deferential. WCI, 885 So.2d at 914. Moreover, the legislature has broad discretion in regulating and controlling gambling under its police powers, and the state may exercise its police power in a more arbitrary manner because gambling is inherently dangerous to society. Div. of Pari-Mutuel Wagering, Dep’t of Bus. Regulation v. Fla. Horse Council, Inc., 464 So.2d 128, 130 (Fla.1985). Contrary to appellants’ assertion, there is a rational basis for disqualifying persons who plead nolo contendere to felony offenses from licensure under section 551.107(6)(a). The Florida Supreme Court has recognized that the legislature can treat a nolo contendere plea, without an adjudication of guilt, as a conviction. See Montgomery v. State, 897 So.2d 1282 (Fla.2005). Because gambling historically has been susceptible to criminal influences, the legislature could reasonably conclude that denying licensure to those with felony convictions would promote the safe and lawful operation of slot machine gaming facilities.

Moreover, contrary to appellants’ assertion, the statute does not impair substantive rights by “retroactively” denying li-censure to those who have disqualifying convictions prior to the statute’s enactment. As pointed out by the Division, no one had a right to engage in slot machine gambling or be licensed to work in the slot machine gambling industry prior to the enactment of chapter 551 in January 2006. There is no due process violation where there is no retroactive impairment of a substantive vested right. See Metro. Dade County v. Chase Fed. Housing Corp., 737 So.2d 494, 503 (Fla.1999); DaimlerChrysler Corp. v. Hurst, 949 So.2d 279 (Fla. 3d DCA 2007); Lakeland Regional Med. Ctr., Inc. v. State, Agency for Healthcare Admin., 917 So.2d 1024 (Fla. 1st DCA 2006).

Finally, appellants claim that the final orders violated section 120.57, Florida Statutes (2007), because (1) the factual findings were not supported by competent substantial evidence in the record; (2) the factual findings were made by the division director rather than the hearing officer; and (3) the ultimate determination that appellants were disqualified from licensure was incorrectly characterized as a finding of fact rather than a conclusion of law. Because there were no disputed issues of material fact, the proceedings below were pursuant to section 120.57(2). Contrary to appellants’ assertion, there is nothing in section 120.57(2) precluding the division director from making factual findings. See Cohen v. Dep’t of Bus. Regulation, Div. of Pari-Mutuel Wagering, 584 So.2d 1083, 1085-86 (Fla. 1st DCA 1991). Furthermore, appellants never objected to any of the challenged factual findings in the final order which were taken from the Division’s proposed recommended order served on opposing counsel. Therefore, appellants’ claim is not preserved. Even if it was preserved, the findings were permissible inferences from the stipulated facts. Based on these findings, the Division did not abuse its discretion in determining that appellants had not met their burden of establishing entitlement to the privilege of holding a slot machine occupational license. Finally, any error in characterizing the ultimate determination that appellants were disqualified from licensure as a finding of fact rather than a conclusion of law was harmless.

AFFIRMED.

BARFIELD and PADOVANO, JJ., concur.

       The parties agree that section 550.1815 has no role in the denial of the slot machine occupational licenses in this case because appellants are not employees of a slot machine licensee/pari-mutuel permit holder; rather, they are in the business of designing and providing custom signage related to slot machine gaming to slot machine licensees. However, in construing the statutory language at issue, we have examined the legislative scheme beyond its application to appellants.