author: SWANSON, J.

text:
    Brian STANTON, Appellant, v. FLORIDA DEPARTMENT OF HEALTH, Appellee.
    No. 1D11-5458.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2013.
    Rehearing Denied March 22, 2013.
    Marie A. Mattox, Tallahassee, for Appellant.
    Matthew M. Deleo, Chief Legal Counsel, Tallahassee, for Appellee.
   SWANSON, J.

Appellant, Brian Stanton, seeks review of the Florida Commission on Human Relations’ final order dismissing his whistle-blower complaint filed against appellee, the Florida Department of Health. The Commission ruled it lacked jurisdiction to investigate the claim under Florida’s “Whistle-blower’s Act” (“the Act”) found in sections 112.3187 through 112.31895, Florida Statutes (2011). We affirm for the reasons cited in our recent decision in Tillery v. Florida Department of Juvenile Justice, 104 So.3d 1253 (Fla. 1st DCA 2013).

In his complaint, appellant alleged that in April 2010 he reported “in writing the misuse of funds” by his “Program Director/Regional Coordinator” and his “Supervisor/Health Center Administrator,” and, thereafter, “in retaliation” following the start of an “internal investigation,” “a hostile work environment ensued,” which followed him throughout several transfers and ultimately resulted in his termination for “contrived allegations and reasons,” and as “a direct result of his prior Whistle Blower reporting.” In a letter dismissing the complaint, the Commission informed appellant it was “in receipt of [his] complaint alleging retaliation for engaging in protected whistleblower activity,” but was “unable to take action upon this claim because [appellant] failed to plead any factual basis for [his] allegation that actions taken by [appellee] were motivated by [appellant’s] April 2010 disclosures.” The Commission’s letter went on to inform appellant of his right to seek judicial review of its decision by filing an appeal within thirty days in the “appropriate District Court of Appeal.” Appellant filed his appeal and now argues (1) the Commission did not have the discretion to dismiss his complaint without first following the fact-finding and notice procedures mandated in section 112.31895, Florida Statutes (2011); (2) his complaint alleged violations of the Act; and (3) the Commission erred in failing to advise appellant of his right to file a complaint in Circuit Court.

In Tillery, we rejected arguments similar to those now raised by appellant after conducting a comprehensive review of the obligations and duties imposed on both a whistle-blower complainant and the Commission under the Act and the Commission’s own rules. In short we held, where a complaint “does not meet the prima facie elements necessary to initiate the operation of the Act,” the Commission, “which can only investigate claims covered by the Act, had no statutory authority to proceed with a fact-finding investigation” regarding the complainant’s allegations. 104 So.3d 1253. As we did in Tillery, we conclude here that appellant’s complaint likewise “failed to satisfy the complaint requirements contained in section 112.31895(l)(a) of the Florida Statutes,” id. at 1255, by alleging only conclusory allegations of retaliation based on appellant’s alleged disclosure, contrary to the provisions of section 112.3187(4), Florida Statutes (2011). Moreover, as relates to appellant’s “disclosure,” we note the complaint fails to demonstrate that the “supervisor,” to whom appellant disclosed the alleged unlawful behavior, possessed the necessary authority to investigate the matter, as mandated by section 112.3187(6). Therefore, according to Tillery, the Commission “had the inherent authority to dismiss [appellant’s] complaint.” Id. at 1255 (citing Robinson v. Dep’t of Health, 89 So.3d 1079, 1082-83 (Fla. 1st DCA 2012) (holding the Commission had the inherent authority to dismiss an untimely whistle-blower’s complaint because such authority was “necessarily incident to its power to review timely complaints”)).

Moreover, as regards appellant’s argument concerning the Commission’s failure to advise him of his right to file a complaint in circuit court, Tillery said this:

Because Tillery’s complaint failed to allege a whistle-blower claim, none of the duties and obligations normally attendant to handling such claims applied in this case. Correspondingly, the Commission was correct in declining to issue Tillery a notice of termination of investigation. As Tillery was not entitled to a notice of termination of investigation from the Commission, he had no right to pursue a remedy in the circuit court. The route to circuit court is opened to a whistle-blower complainant only after he receives notice of termination of investigation from the Commission. § 112.31895(8)(b), Fla. Stat.... Thus, the Commission committed no error by not informing Tillery of a right which he did not have. Under these facts, the only opportunity Tillery had for review of the Commission’s dismissal of his complaint was in this court, notice of which was included in the order of dismissal.

Id. (citation omitted). The same may be said of appellant’s claim.

Lastly, in a single sentence found on the penultimate page of his initial brief, appellant claims he “never got the chance to amend his claim if it was deficient.” As we recognized in Tillery, the Commission’s administrative rules grant a complainant the right “‘reasonably and freely’” to amend his complaint within sixty days of filing to “ ‘cure technical defects, or omissions, including verification, or to clarify and amplify allegations made therein.’” Id. (quoting Fla. Admin. Code R. 60Y-5.001(7)). We concluded, “at first blush,” that Tillery appeared to present a valid argument “that the Commission denied him the right to amend, and that the dismissal was unfair and unwarranted in light of these amendment rules.” Id. Tillery, however, neglected to include this argument in his initial brief but, instead, raised it for the first time in his reply brief. Consequently, we ruled he had waived the argument and the issue, thus, was not before us on appeal. Here, in contrast, appellant did make this point in his initial brief, but in a highly perfunctory manner, without providing any supporting argument or authority. It is a well-established maxim of appellate practice that “[c]laims for which an appellant has not presented any argument, or for which he provides only conclusory argument, are insufficiently presented for review and are waived.” Hammond v. State, 34 So.3d 58, 59 (Fla. 4th DCA 2010). As the Florida Supreme Court announced decades ago in Lynn v. City of Ft. Lauderdale, 81 So.2d 511(Fla.1955):

It is elementary that when a decree of the trial court is brought here on appeal the duty rests upon the appealing party to make error clearly appear.... An appellant does not discharge this duty by merely posing a question with an accompanying assertion that it was improperly answered in the court below and then dumping the matter into the lap of the appellate court for decision. Under such circumstances it must be held, as we now hold here, that we are under no duty to answer the question.

Id. at 513 (citation omitted). Accord Greenwood v. State, 754 So.2d 158, 160 (Fla. 1st DCA 2000) (declining to consider an issue “addressed in one sentence”); Henderson v. State, 569 So.2d 925, 927 (Fla. 1st DCA 1990) (ruling a “perfunctory argument” made by the appellant did not “properly preserve[] and present[]” the issue for review in the appeal). We hold the same to be true in the instant appeal. However, we repeat the admonition we pronounced in Tillery: “In the future, we trust that the Commission will follow its rules and afford complainants a reasonable opportunity to amend deficient complaints, particularly considering the remedial purposes of the Act.” 104 So.3d at 1256.

The Commission’s order is AFFIRMED.

MARSTILLER, and RAY, J.J., concur.

      . See Florida Administrative Code Rules 60Y-5 and 60Y-11 (2011).


source: Caselaw Access Project

author: FERNANDEZ, J.

license: Public Domain

text:
    MILLENNIUM DIAGNOSTIC IMAGING CENTER, INC., Petitioner, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. 3D12-1074.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 2013.
    As Corrected Jan. 8, 2014.

      Marlene S. Reiss, and Kenneth B. Schurr, Miami, for petitioner.
    Akerman Senterfitt, Marcy Levine Aid-rich, Nancy A. Copperthwaite, Miami, and Tracy T. Segal, West Palm Beach; Roig, Tutan, Rosenberg & Zlotnick and Jessica Zlotnick Martin, Deerfield Beach, for respondent.
    Before SUAREZ and FERNANDEZ, JJ„ and SCHWARTZ, Senior Judge.
   FERNANDEZ, J.

Millennium Diagnostic Imaging Center, Inc. petitions this Court for a writ of prohibition, or in the alternative, a writ of certiorari to quash the circuit court’s discovery order. We deny Millennium’s petition for prohibition because prohibition may not be used to revoke an order already entered. Furthermore, we deny Millennium’s petition for certiorari because Millennium neither alleged nor proved the elements necessary to obtain such a writ.

In 2010 and 2011, Millennium rendered MRI services to three insureds of appellee State Farm Mutual Automobile Insurance Company. The aggregate cost of the MRI’s performed on the insureds, whose insurance policies included no-fault (PIP) coverage, was less than $15,000. After the insureds assigned their PIP benefits to Millennium, Millennium sought payment of the benefits from State Farm.

State Farm investigated the claims to determine whether and to what extent they were payable. State Farm specifically sought to determine whether the services were lawfully rendered, reasonable, related, and medically necessary. Unable to verify that the two Millennium facilities that rendered the services were properly accredited, State Farm served Millennium with statutory requests for information pursuant to section 627.736, Florida Statutes (2010). The requests, sent in June and July of 2011, asked for written documentation of the MRI equipment used, and proof of accreditation, as well as various other documents. Millennium did not produce the documents requested. State Farm then filed an action for discovery pursuant to section 627.736, Florida Statutes (2010).

Millennium moved to dismiss State Farm’s action and filed PIP suits against State Farm in county court to recover the PIP benefits. In its motion to dismiss, Millennium argued that the circuit court did not have jurisdiction over the discovery action, that discovery could be done as part of the county court suits, and that the requested information went beyond .the scope of the PIP statute. After a hearing on the motion, the circuit court denied Millennium’s motion to dismiss and granted State Farm’s action for discovery.

Millennium then petitioned this Court for a writ of prohibition, or alternatively, a writ of certiorari to quash the circuit court’s order. We deny Millennium’s petitions.

Prohibition does not lie under these circumstances. “Prohibition is an extraordinary remedy, which will only be granted to restrain the exercise of judicial power where none exists.” Dep’t of Children & Family Servs. v. Interest of J.C., 847 So.2d 487, 491 (Fla. 3d DCA 2002). The purpose of prohibition is to prevent something rather than to undo something; thus, it cannot be used to revoke an order already entered. State ex rel. Sarasota Cnty. v. Boyer, 360 So.2d 388, 391-92 (Fla. 1978); Ortiz v. Fla. Parole Comm’n, 15 So.3d 941, 942 (Fla. 3d DCA 2009). Because prohibition is “preventative and not corrective,” prohibition will not lie to review the circuit court’s discovery order. Boyer, 360 So.2d at 391-92.

We note that even if the order had not yet been entered, the circuit court acted within its jurisdiction. “In the event of a dispute regarding an insurer’s right to discovery of facts under [section 627.736(6) ], the insurer may petition a court of competent jurisdiction to enter an order permitting such discovery.” § 627.736(6)(c), Fla. Stat. (2010) (emphasis added). Circuit courts have jurisdiction to hear “all cases in equity.” § 26.012(2)(c), Fla. Stat. (2013).

Millennium argues that the circuit court did not have jurisdiction over State Farm’s discovery action because the circuit court’s monetary jurisdiction threshold was not satisfied. However, while county courts have equity jurisdiction in cases that fall within the county courts’ monetary jurisdiction, that jurisdiction is not exclusive; rather, the county courts share concurrent jurisdiction with the circuit courts in matters of equity. See Alexdex Corp. v. Nachon Enters., Inc., 641 So.2d 858, 862 (Fla.1994). Because the monetary amount in this case does not exceed the monetary ceiling for county court jurisdiction, both the county court and circuit court were vested with equity jurisdiction in this matter. Cf. MRI Servs., Inc. v. State Farm Mid. Auto. Ins. Co., 807 So.2d 783, 786 (Fla. 2d DCA 2002) (noting that a county court has equity jurisdiction over a section 627.736(6)(c) discovery action where the amount in controversy does not exceed the county court’s jurisdictional amount and rejecting argument that circuit court alone has equity jurisdiction to order discovery).

In addition, Millennium claims that State Farm’s action for discovery under section 627.736(6)(c) is not a claim in equity. The distinction between an action at law and an action in equity often “depends on the nature of the breach and the remedy sought.” King Mountain Condo. Ass’n v. Gundlach, 425 So.2d 569, 571 (Fla. 4th DCA 1982). An action at law generally involves a claim for money damages, whereas an equitable claim seeks an order directing a person to do or not to do a specific act. State Farm Mut. Auto. Ins. Co. v. Green, 579 So.2d 402, 403 (Fla. 5th DCA 1991).

State Farm’s action for discovery was an equitable action that fell within the circuit court’s equitable jurisdiction. Florida courts have recognized section 627.736(6)(c) actions as actions in equity. See MRI Services, 807 So.2d at 786 (noting that the county court had equity jurisdiction over a section 627.736(6)(b) discovery action); see also State Farm Mut. Auto. Ins. Co. v. Goldstein, 798 So.2d 807 (Fla. 4th DCA 2001) (addressing section 627.736(6)(c) and the circuit court’s discovery order without stating that the circuit court lacked subject matter jurisdiction to rule on the order); Kaminester v. State Farm Mut. Auto. Ins. Co., 775 So.2d 981 (Fla. 4th DCA 2000).

Moreover, an order that grants discovery to a party is equitable rather than legal in nature. The “nature of the breach” here was the violation of a statute requiring a medical provider to comply with an insurer’s discovery requests relating to claims by its insureds. King Mountain, 425 So.2d at 571. The remedy for such a breach — a remedy section 627.736(6)(c) contemplates — is an order directing a party to comply with such discovery. Generally, courts of equity “order a [party] to do, or not to do, a specific act.” George Vining & Sons, Inc. v. Jones, 498 So.2d 695, 697 (Fla. 5th DCA 1986). Although State Farm’s remedy is granted by statute, codification alone does not transform an equitable action into a legal one. The Florida legislature has codified several actions that are undeniably equitable actions without transforming them into legal actions. See e.g. § 65.061, Fla. Stat. (2013). Therefore, the circuit court acted within its equity jurisdiction in hearing and ruling on State Farm’s action for discovery under section 627.736(6)(c).

Finally, we deny Millennium’s request for a writ of certiorari to quash the circuit court’s order. A party that petitions this Court for a writ of certiorari must demonstrate that the trial court departed from the essential requirements of law, resulting in irreparable harm that cannot be adequately remedied on final appeal. Kirlin v. Green, 955 So.2d 28, 29 (Fla. 3d DCA 2007). Material injury and irreparable harm are “jurisdictional prerequisites to certiorari relief.” Nucci v. Nucci, 987 So.2d 135, 139 (Fla. 2d DCA 2008). Millennium’s petition for certiorari relief asserts neither a material injury nor an irreparable harm; thus, Millennium is not entitled to certiorari relief.

Petitions denied.

      . State Farm moved to convert the writ proceeding to a final appeal. This Court denied the motion and directed State Farm to address the subject matter jurisdiction of the current writ.


author: WELLS, Judge. SHEPHERD, C.J.,

text:
    The STATE of Florida, Appellant, v. Gary G. DEBAUN, Appellee.
    No. 3D11-3094.
    District Court of Appeal of Florida, Third District.
    Oct. 30, 2013.

      Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellant.
    Alan Eckstein, Key West, for appellee.
    Before SHEPHERD C.J., and WELLS and LAGOA, JJ.
   WELLS, Judge.

The State of Florida appeals from an order interpreting the term “sexual intercourse” as used in section 384.24(2) of the Florida Statutes (2011) as meaning only contact between the genitals of a man and a woman and dismissing the charges against the appellee, Gary G. Debaun, for having uninformed HIV infected sexual intercourse with another man. Because we find that the term “sexual intercourse” as used in this provision applies to other behavior, including that between two men, we reverse.

Early in 2011, before entering into a sexual relationship with Debaun, C.M. asked that Debaun provide him with a laboratory report confirming Debaun’s HIV status. Although the laboratory report Debaun provided showed that he was HIV negative, C.M. learned, after having engaged in mutual fellatio and penile-anal penetration by'Debaun, that Debaun was in fact HIV positive. Debaun subsequently was charged with violating section 384.24(2), which makes it a crime for anyone who knows that he or she is infected with HIV to engage in “sexual intercourse” with anyone unless that person has been informed of the infection and consents to such intercourse:

It is unlawful for any person who has human immunodeficiency virus infection, when such person knows he or she is infected with this disease and when such person has been informed that he or she may communicate this disease to another person through sexual intercourse, to have sexual intercourse with any other person, unless that person has been informed of the presence of the sexually transmissible disease and has consented to the sexual intercourse.

§ 384.24(2), Fla. Stat. (2011).

Claiming that the term “sexual intercourse” as used in section 384.24(2) applies only to penetration of the female sex organ by the male sex organ, Debaun moved to dismiss the charges against him. The court below, while reasoning that the meaning of the term “sexual intercourse” as used in this provision was intended to apply to “any form of sexual activity,” nonetheless dismissed the charges against Debaun because of our sister court’s decision in L.A.P. v. State, 62 So.3d 693 (Fla. 2d DCA 2011). Therein, the Second District held that, for purposes of section 384.24(2), “sexual intercourse” is an act where a male’s penis is placed inside a female’s vagina and therefore section 384.24(2) did not apply to the activities (oral sex and digital penetration between two women) involved there.

The issue before us is one of statutory construction and is subject to de novo review. See Fla. Dep’t of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So.2d 1260, 1264 (Fla.2008). While we need not determine whether the term “sexual intercourse” as used in section 384.24(2) encompasses any and all forms of sexual activity, including all of the activities (i.e., digital penetration) at issue in L.A.P., we do find that the term encompasses more than just penetration of the female sex organ by the male sex organ and includes the acts at issue here (fellatio and penile-anal penetration).

“When a statute is clear, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Paul v. State, 112 So.3d 1188, 1195 (Fla.2013) (quoting State v. Burris, 875 So.2d 408, 410 (Fla.2004)). Rather, the court will first look to the language of the statute itself because the statute’s plain and ordinary meaning best reflects legislative intent. Id.

Where, as here, the legislature has not defined words used in a statute, it is appropriate to refer to dictionary definitions to ascertain the plain and ordinary meaning of a word. Id.; see also Sch. Bd. of Palm Beach Cnty. v. Survivors Charter Sch., Inc., 3 So.3d 1220, 1233 (Fla.2009). In this case, the dictionary definition of the term “sexual intercourse” when section 384.24 was enacted in 1986 is broader than just penetration of a vagina by a penis. In 1986, “sexual intercourse” was defined as:

Sexual intercourse n 1: heterosexual intercourse involving penetration of the vagina by the penis: COITUS 2: intercourse involving genital contact between individuals other than penetration of the vagina by the penis

Merriam Webster’s Third New International Dictionary 2082 (1986). Thus, De-baun and C.M. engaged in acts which fall within the plain and ordinary meaning of the term “sexual intercourse” as used in section 384.24(2). See E.A.R. v. State, 4 So.3d 614, 629 (Fla.2009) (“The intent of the Legislature is the polestar of statutory construction. To discern this intent, the Court looks ‘primarily to the plain text of the relevant statute, and when the text is unambiguous, our inquiry is at an end.”) (citation omitted).

Because we find that the plain and ordinary meaning of the term “sexual intercourse” as used in section 384.24(2) includes more than an act where a male’s penis is placed inside a female’s vagina, we need not, as did our sister court in L.A.P., look to case law defining this term as used in other statutes. While reference to case law and other statutes is a permissible means of determining the plain and ordinary meaning of words of common usage, we believe doing so in this case thwarts the legislative intent behind this law. See Paul, 112 So.3d at 1195 (quoting Burris, 875 So.2d at 410) (recognizing that the “statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent”).

In reaching this determination, we are guided by the tenets that a statute “must be construed in its entirety and as a whole,” see Koile v. State, 934 So.2d 1226, 1233 (Fla.2006) (quoting St. Mary’s Hosp., Inc. v. Phillipe, 769 So.2d 961, 967 (Fla.2000)), and in such manner that it does not “render part of [the] statute meaningless.” Id. (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 456 (Fla.1992)). To this end, “sexual intercourse” must be read in the context of not only section 384.24, but also in the context of Chapter 384 as a whole. See Fla. Dep’t of Envtl. Prot., 986 So.2d at 1265-66; Miele v. Prudential-Bache Sec., Inc., 656 So.2d 470, 472 (Fla.1995) (“[T]he context in which a term is used may be referred to in ascertaining the meaning of that term.”); Ceco Corp. v. Goldberg, 219 So.2d 475, 476-77 (Fla. 3d DCA 1969) (recognizing that “[o]ur task as a reviewing court is to afford a logical construction according to the general terms and intentions of the entire ... Act,” and that “it is axiomatic that we construe the statute as a whole entity ... in order to arrive at a construction which avoids illogical results”).

Chapter 384, of which section 384.24(2) is a part, is titled the “Control of Sexually Transmissible Disease Act” and addresses the threat to the public posed by sexually transmitted diseases. § 384.21, Fla. Stat. (2011); § 384.22, Fla. Stat. (2011). Section 384.23 defines a “sexually transmissible disease” as “a bacterial, viral, fungal, or parasitic disease” such as “chancroid, gonorrhea, granuloma inguinale, lympho-granuloma venereum, genital herpes simplex, chlamydia, nongonococcal urethritis (NGU), pelvic inflammatory disease (PID)/acute salpingitis, syphilis, [and] human immune deficiency virus infection [HIV].” § 384.23(3), Fla. Stat. (2011). Section 384.22 states as the Act’s purpose the intent to reduce the spread of these diseases:

Findings; intent. — The Legislature finds and declares that sexually transmissible diseases constitute a serious and sometimes fatal threat to the public and individual health and welfare of the people of the state and to visitors to the state. The Legislature finds that the incidence of sexually transmissible diseases is rising at an alarming rate and that these diseases result in significant social, health, and economic costs, including infant and maternal mortality, temporary and lifelong disability, and premature death. The Legislature finds that sexually transmissible diseases, by their nature, involve sensitive issues of privacy, and it is the intent of the Legislature that all programs designed to deal with these diseases afford patients privacy, confidentiality, and dignity. The Legislature finds that medical knowledge and information about sexually transmissible diseases are rapidly changing. The Legislature intends to provide a program that is sufficiently flexible to meet emerging needs, deals efficiently and effectively with reducing the incidence of sexually transmissible diseases, and provides patients with a secure knowledge that information they provide will remain private and confidential.

§ 384.22, Fla. Stat. (2011).

To this end, section 384.24(l)-(2) makes it unlawful for “any person” who has any of these diseases to have “sexual intercourse” with any “other person” without informing that person of the sexually transmissible disease. Many of the defined diseases may be transmitted by means other than penetration of the vagina by a penis. Blood, semen and vaginal secretions from an HIV-infected person can transmit HIV to another man or woman. See Centers for Disease Control and Prevention, http://www.cdc.gov/hiv/ resources/qa/transmission.htm. HIV transmission most commonly occurs through anal sex (penile-anal penetration) and vaginal sex (penile-vaginal penetration), but can occur through oral sex (mouth to genital contact) as well. Id. Genital herpes simplex may also be spread by anal, vaginal, or oral sex. See Centers for Disease Control and Prevention, http:// www.cdc.gov/std/Herpes/STDFact-Herpes. htm. So, too, may gonorrhea. See Centers for Disease Control and Prevention, http://www.cdc.gov/std/gonorrhea/ STDFact-gonorrhea.htm. In short, because the purpose of Chapter 384 is to prevent the spread of sexually transmissible diseases, many of which are transmitted by sexual contact other than vaginal penetration by a penis, it makes no sense to interpret the only act prohibited — sexual intercourse — as including only penetration of the vagina by the penis. Such a result would be absurd. See Paul, 112 So.3d at 1195; State v. Iacovone, 660 So.2d 1371, 1373 (Fla.1995) (“Statutes, as a rule, “will not be interpreted so as to yield an absurd result.’ ” (quoting Williams v. State, 492 So.2d 1051, 1054 (Fla.1986))).

Our analysis is further supported by the fact that the Venereal Diseases Act, the predecessor to the “Sexually Transmissible Disease Act” which is currently encompassed in Chapter 384, made it unlawful only for a woman with a venereal, or sexually transmissible disease, to engage in “sexual intercourse” with a man and vice versa:

Sexual intercourse with person afflicted with venereal disease illegal.— It is unlawful for any female afflicted with any venereal disease, knowing of such condition, to have sexual intercourse with any male person, or for any male person afflicted with any venereal disease, knowing of such condition, to have sexual intercourse with any female.

§ 384.02, Fla. Stat. (1985).

In 1986, all portions of the Venereal Diseases Act were repealed and replaced by the current Sexually Transmissible Disease Act. See Ch. 86-220, § 91, at 1681, Laws of Fla.; Ch. 86-220, § 91, at 1676-1681, Laws of Fla. The new Act expanded the number of diseases being regulated from the original three, syphilis, gonorrhea, and chancroid, to include granuloma inguinale, lymphogranuloma venereum, genital herpes simplex, chlamydia, nongo-nococcal urethritis (NGU), pelvic inflammatory disease (PID)/acute salpingitis, and the precursor to HIV. It also expanded its application from only sexual intercourse between “any female ... with any male person” and “any male person ... with any female,” to sexual intercourse between “any person ... with any other person.” Compare § 884.02, Fla. Stat. (1985) with § 384.24, Fla. Stat. (1986).

By virtue of these changes, it is evident that the legislature sought not only to address additional sexually transmissible diseases, but also to expand the definition of “sexual intercourse” beyond relationships between only a man and a woman. See generally Mangold v. Rainforest Golf Sports Ctr., 675 So.2d 639, 642 (Fla. 1st DCA 1996) (“When the Legislature makes a substantial change in the language of a statute, it is presumed to have intended some specific objective or alteration of law, unless a contrary indication is clear.”); see also Lifemark Hosps. of Fla., Inc. v. Afonso, 4 So.3d 764, 768 (Fla. 3d DCA 2009) (citing and quoting Mangold with approval).

In light of the foregoing we do not feel constrained to adopt, as did the Second District, the definition of “sexual intercourse” contained in other statutes, see § 826.04, Fla. Stat. (2013) (criminalizing incest between related persons); § 827.071, Fla. Stat. (2013) (criminalizing sexual abuse of children), or in case law. In particular, we do not apply the definition utilized by this court in Lanier v. State, 443 So.2d 178, 183 (Fla. 3d DCA 1983), overruled on other grounds by State v. Lanier, 464 So.2d 1192 (Fla.1985). There, this court determined whether consensual penetration of a twelve-year-old girl’s vagina by the penis of an adult man constituted “handling” and “fondling” as proscribed by section 800.04 of the Florida Statutes (1981). Deciding that the adult man had engaged in sexual intercourse— there described as the contact of the sexual organs of two people and penetration of the body of one by the other — with the girl, and not in “handling” or “fondling” her, this court stated:

The information herein charged the defendant with the handling and fondling by engaging in sexual intercourse. Such an allegation does not, in our view, set forth a crime contemplated by Section 800.04. Fundamental rules of statutory construction require that “[w]ords used by the legislature are to be construed in their plain and ordinary sense.” Reino v. State, 352 So.2d 853, 860 (Fla.1977). “Handle” is commonly defined as “to touch, feel, hold, take up, move, or otherwise affect with the hand” or to “use the hands upon.” Webster’s Third International Dictionary 1027 (1961). See also Black’s Law Dictionary 843 (rev. 4th ed. 1968). “Fondle” is a synonym for “caress,” and the pertinent definition is “to handle tenderly,” Webster’s, supra at 883, again implying the use of one’s hands. “Sexual intercourse,” on the other hand, “means actual contact of the sexual organs” of two persons and penetration of the body of another. Williams v. State, 92 Fla. 125, 127, 109 So. 305, 306 (1926) (citation omitted). Since the legislature specifically used words of distinct and clear meaning in Section 800.04, the courts “may not invade the province of the legislature and add words which change the plain meaning of the statute.” Therefore, reading “handle” or “fondle” as the trial court did in this case to include sexual intercourse is erroneous.

Lanier, 443 So.2d at 182-83 (some citations omitted).

The question here is not whether the terms “handle” or “fondle” encompass vaginal/penile penetration. The issue here is whether the term “sexual intercourse” used in the context of a statutory scheme enacted to prevent the spread of sexually transmissible diseases — a number of which may be spread by means other than vaginal/penile penetration — encompasses conduct beyond vaginal/penile penetration to include the conduct at issue here. We find that it does.

Accordingly, because we conclude that the plain and ordinary meaning of the term “sexual intercourse” as used in section 384.24(2) includes more than an act where a male’s penis is placed inside a female’s vagina, and encompasses the oral and anal sexual activity involved here, we reverse the order on review and remand for reinstatement of the charges against Debaun. In doing so we certify conflict with the decision in L.A.P. v. State, 62 So.3d 693 (Fla. 2d DCA 2011).

Reversed and remanded; conflict certified.

LAGOA, J., concurs.

SHEPHERD, C.J.,

dissenting.

“We do not inquire what the legislature meant; we ask only what the statute means.” So wrote Justice Oliver Wendell Holmes in The Theory of Legal Interpretation,, The majority argues that in 1986, when the Florida Legislature amended section 384.24(2) to substitute the gender neutral word “person” for “female ... with any male person” and vice versa, it must have “meant” to expand the application of section 384.24(2) to include sexual relations between two males or two females. The focus of the majority obscures the real issue: what is the meaning of “sexual intercourse.”

The phrase “sexual intercourse” has appeared in every iteration of the laws of this state relating to the regulation and treatment of sexually transmitted diseases since Florida first made it unlawful for “any one ... to expose another” to one of the then known sexually transmitted diseases. See Ch. 7829, § 1, Laws of Fla. (1919). For sixty-six years, from 1919 through 1985, this criminal law read as follows with minor modifications:

Section 1. That Syphilis, Gonorrhea and Chancroid are hereby designated as venereal diseases and are declared to be contageous infections, communicable and dangerous to the public health. It shall be unlawful for any one infected with either of these diseases to expose another to infection.
Section 2. It shall be unlawful for any female afflicted with any venereal disease, who knowing of such condition, to have sexual intercourse with any male person, or for any male person afflicted with any venereal disease, who knowing of such condition, to have sexual intercourse with any female.
Section 3. Any person who shall violate any of the provisions of Section one, and two of Section one, and two of this Act, shall be guilty of a misdemeanor and on conviction shall be punished for a misdemeanor.

Ch. 7829, §§ 1-3, Laws of Fla. (1919) (emphasis added).

In 1986, the Florida legislature revised the statute as part of a comprehensive reorganization, restatement and updating of Chapter 384 of the Florida Statutes. See Ch. 86-220, § 90, Laws of Fla. The revisions were substantial. Some new sections were added to the new law, notably including a “Definitions” section for the first time in the history of the statute. See § 384.23, Fla. Stat. (1986). The provision making any person suspected of being afflicted with a sexually transmitted disease “subject to physical examination,” which had remained unchanged since 1919, was revised to more clearly safeguard individual liberty interests as they are understood today. Compare Ch. 7829, Laws of Fla. (1919) with § 384.27, Fla. Stat. (1986). Similarly, the physician diagnosis and treatment reporting requirements of the law were revised to reflect modern-day sensibilities relating to personal privacy. See § 384.25, Fla. Stat. (1986). Gender identifiers, “female” and “male person” in section 384.24 were replaced by the gender-neutral word “person.” Notably, however, the phrase “sexual intercourse” remained in section 384.24 unchanged. After the 1986 revisions to Chapter 384, section 384.24 read as follows:

384.24. Unlawful acts
It is unlawful for any person who has chancroid, gonorrhea, granuloma inguinale, lymphogranuloma venereum, genital herpes simplex, chlamydia, nongonococcal urethritis (NGU), pelvic inflammatory disease (PID)/acute sal-pingitis, syphilis, or human T-lympho-tropic virus type III (HTLV-III) infection, when such person knows he or she is infected with one or more of these diseases and when such person has been informed that he or she may communicate this disease to another person through sexual intercourse, to have sexual intercourse with any other person, unless such other person has been informed of the presence of the sexually transmissible disease.

Ch. 86-220, Laws of Fla. (eff. July 1, 1986) (emphasis added). The legislature used the phrase “sexual intercourse” not once, but twice in the 1986 revision to Chapter 384.24. Cfi Ch. 7829 Laws of Fla. (1919). It is hard to argue the legislature was ignorant of its existence in the statute. Perhaps more significantly, it omitted to employ the obvious, direct method of proclaiming its intent by defining the phrase in the new section of Chapter 384 specifically created for “Definitions.”

The majority excuses the legislature’s failure to act by holding that the legislature implicitly re-defined the phrase “sexual intercourse” by substituting the gender neutral term “person” for the gender specific terms “male” and “female.” I believe this is a stretch too far. First, the substitution on which the majority places its reliance was made during a time when the gender neutralization of state statutes was in vogue. See Fla. HB 176 (1984); Fla. SB 41 (1984); Fla. SB 282 (1983) (proposed bills for creation of committees to eradicate, insofar as possible, sex discrimination in Florida Statutes) (available from Fla. Dep’t of State, Div. of Archives); Report of the Fla. Supreme Court Gender Bias Study Commission (March 1990); Lynn Hecht Schafran, Gender and Justice: Florida and the Nation, 42 Fla. L. Rev. 181 (1990). Florida completed this process with a comprehensive amendment to the Florida Statutes in 1995 and 1997. See Chs. 95-147-.148, Laws of Fla. (1995); Chs. 97-102-.103, Laws of Fla. (1997).

Second, except for the recently issued case, State v. D.C., 114 So.3d 440 (Fla. 5th DCA 2013), the case law both before and after the 1986 reorganization and restatement of Chapter 384 defined the phrase “sexual intercourse” as the act of placing a male’s penis inside a female’s vagina. See State v. Bowden, 154 Fla. 511, 18 So.2d 478, 480 (1944) (concluding that “penetration of the female private parts by the private male organ” is an essential element of “carnal intercourse with an unmarried female of previous chaste character under the age of eighteen years”); Williams v. State, 92 Fla. 125, 109 So. 305, 306 (1926) (“[sjexual intercourse means actual contact of the sexual organs of a man and a woman and an actual penetration into the body of the latter” (citation omitted)); L.A.P. v. State, 62 So.3d 693 (Fla. 2d DCA 2011); Green v. State, 765 So.2d 910, 913 (Fla. 2d DCA 2000). Importantly, this court likewise recognized the phrase “sexual intercourse” to mean “actual contact of the sexual organs’ of two persons and penetration of the body of another” without linguistic hesitation or remark just three years before the legislature revised and restated Chapter 384 in 1986. See Lanier v. State, 443 So.2d 178, 183 (Fla. 3d DCA 1983) (quoting Williams v. State, 109 So. at 306, quashed, 464 So.2d 1192 (Fla.1985)). The majority trips too lightly over this authority.

Instead, the majority proclaims the superiority of the dictionary over case law, and too hastily dashes to its goal. Setting aside the palpable question whether an inferior court can resort to a dictionary when clear precedent from our Supreme Court conflicts, see Hoffman v. Jones, 280 So.2d 431, 434 (Fla.1973) (admonishing district courts against “overruling” the Supreme Court), the majority misreads the second definition of “sexual intercourse” in the 1986 edition of Merriam-Webster’s unabridged dictionary for the simple reason that the lexicographers of that day limited the scope of the second definition to “genital contact,” the first word of which has its first definition in that same edition of Merriam-Webster’s unabridged dictionary as “GENERATIVE,” and the second being “of, relating to, being a sexual organ,” which in turn is defined as “an organ of the reproductive system; esp: an external generative organ — often used in pi.; compare “genitalia.” The definition of “genitalia” in turn comes full circle to the definition of “sexual organ,” namely “the organs of the reproductive system; esp.: the external genital organs.” The word “genital” in the 1986 unabridged dictionary therefore limits the acts included in the definition of “sexual intercourse” to those acts relating to male and, to a lesser extent, female reproductive organs. The majority’s resort to the dictionary over case law to decide this case, even if appropriate, provides no assistance to the majority in this case.

It might be that the legislature simply overlooked the need to expand the definition of sexual intercourse in section 384.24 in 1986. Or, it might have been that twenty-five years ago, there were insufficient votes in the state legislature to expand the definition. I prefer the former explanation. If I were a legislator, I would vote to amend the statute to clearly define the crime. Other state legislatures with nearly identical state statutes have done so. See Ga. Code Ann. § 16-5-60 (2003) (making it a felony for “an HIV infected person ... [to] ... [k]nowingly engage[] in sexual intercourse or perform! ] or submit to any sexual act involving the sexual organs of one person and the mouth or anus of another person [without] disclosing] to the other person the fact of that person’s being an HIV infected person prior to that intercourse or sexual act”); S.C. Code Ann. § 44-29-145 (1990) (making it a felony “for a person who knows that he is infected with Human Immunodeficiency Virus (HIV) to ... knowingly engage in sexual intercourse, vaginal, anal or oral, with another person without first informing that person of his HIV infection”); S.D. Codified Laws § 22-18-81 (2000) (making it a crime for “[a]ny person who, knowing himself or herself to be infected with HIV, [to] intentionally expose another person to infection by ... [e]ngaging in sexual intercourse or other intimate physical contact with [that] person”); Va. Code. Ann. § 18.2-67-4:1 (West 2004) (making it a Class 1 misdemeanor for “[a]ny person who, knowing he is infected with HIV ... [to have] sexual intercourse, cunnilingus, fellatio, anallingus or anal intercourse with another person without having previously disclosed the existence of his infection to the other person”); Wash. Rev.Code §§ 9A.36.011, 44.010 (1997) (making it a first degree assault for a person “with intent to inflict great bodily harm ... [to] expose[ ] or transmit[ ] the human immunodeficiency virus” to another and defining “sexual intercourse” to include “any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another whether such persons are of the same or opposite sex”). Notably, these statutes apply to “persons” just like the Florida statute.

The temptation to exercise will over judgment in this case is great. However, “judicial review of legislation does not carry with it a license to modify or amend legislative enactments.” Frank v. Fischer, 46 Wash.App. 133, 730 P.2d 70, 73 (1986), aff'd, 108 Wash.2d 468, 739 P.2d 1145 (1987); see also Fields v. Kirton, 961 So.2d 1127, 1130 (Fla. 4th DCA 2007) (“It is not the function of the courts to usurp the constitutional role of the legislature and judicially legislate that which necessarily must originate, if it is to be law, with the legislature.). Courts do legislatures no favors when they do their work for them. See Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 330, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006) (expressing wariness of legislatures who would rely on the court’s intervention in conforming laws to constitutional requirements); see also David H. Gans, Severability as Judicial Lawmaking, 76 Geo. Wash. L. Rev. 639, 644 (2008) (“Over time, the legislature may come to depend on the courts to fix statutes rather than do[ ] the hard work necessary to enact a properly tailored statute in the first instance. Politically, legislators may prefer this arrangement, for it frees them to pass the statute they want, knowing that courts will save as much of their handiwork as they can. But this arrangement breeds an unhealthy dependency on courts and results in a loss of accountability.”). “We have no more right to correct the mistakes of the Legislature than it would have to correct ours.” State v. Bratton, 90 Neb. 382, 133 N.W. 429, 431 (1911). This is especially so in this criminal case, where the rule of lenity must apply, whether we wish it to or not. See § 775.021(1), Fla. Stat. (2012).

I would affirm the decision of the trial court in this case.

      . HIV stands for human immunodeficiency virus.

      . All sexually transmissible diseases covered by Chapter 384, including HIV, have been subject to the foregoing analysis since the Control of Sexually Transmissible Disease Act was enacted in 1986. When enacted, the Act referred to "human T-lymphotropic virus type III (HTLV-III) infection.” See Ch. 86-220, § 90, at 1677, Laws of Fla.; § 384.23(3), Fla. Stat. (1986); § 384.24, Fla. Stat. (1986). HTLV-III is a "species” of human immunodeficiency virus 1 "that is the most prevalent HIV.” HIV-1 Definition, http://www. merriam-webster.com/dictionary/hiv-1 (last visited October 28, 2013). The Florida legislature amended the Act in 1988 to replace HTLV-III with "human immune deficiency virus infection [HIV],” and also added the element of consent by the uninfected person. See Ch. 88-380, § 26, at 2016, Laws of Fla.; § 384.23(3), Fla. Stat. (1988); § 384.24, Fla. Stat (1988). In 1997, the Florida legislature added subsections to section 384.24 that had not been there at its inception-placing HIV in subsection (2) and leaving all other sexually transmissible diseases in subsection (1). See Ch. 97-37, § 1, at 221-22, Laws of Fla. Beyond this change, the language in subsections (1) and (2) is identical. Id. At the same time, the legislature amended the penalties for violating section 384.24, upping the uniformed, unconsented transmission of HIV to a third degree felony and leaving the penalty for said transmission of the other diseases as a first degree misdemeanor. See Ch. 97-37, § 2, at 222, Laws of Fla; § 384.34(1), (5) Fla. Stat. (1997).

      . At the time, the term "venereal diseases” was defined as including only syphilis, gonorrhea and chancroid. See § 384.01, Fla. Stat. (1985).

      . Section 800.04 of the Florida Statutes (1981) at that time provided:
      Any person who shall handle, fondle or make an assault upon any child under the age of 14 years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lascivious act in the presence of such child, without the intent to commit sexual battery, shall be guilty of a felony of the second degree....

        Lanier, 443 So.2d at 181, n. 2.

      . While this appeal was pending in this court, the Fifth District Court of Appeal issued its decision in State v. D.C., 114 So.3d 440 (Fla. 5th DCA 2013). That court employed a similar analysis to that set forth herein in finding that the term "sexual intercourse" as used in section 384.24(2) is not limited to heterosexual vaginal intercourse.

      . Holmes, Oliver Wendell, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 419 (1899).

      . The minor modifications to the criminal provision of the statute during the time period are found in Combined General Laws of Florida, 7735 (1927); Ch. 71-136, § 333.

      . The other completely new sections were section 384.22 entitled "Findings; intent;” section 384.31 entitled "Serological testing of pregnant women; duty of attendant;” and section 384.33 authorizing the Department of Health and Rehabilitative Services to adopt rules to carry out the provisions of Chapter 384.

      . The penalty provision was moved to section 384.34 and read as follows:
      384.34 Penalties.—
      (1) Any person who violates the provision of s. 384.24, s. 3824.26, or s. 384.29 is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . available at http: //www.floridasupreme court.org/pub_info/documents/bias. pdf#xml=http://199.242.69.43/texis/searcb/ pdfhi.txt? query=report + of + florida + supreme + court + gender+bias + study+ commission+march +1990&pr=Florida+ Supreme+Court&prox=page&rorder= 1000&rprox= 1000&rdfreq= 500&rwfreq= 500&rlead= 1000&rdepth=0&sufs=2& order=r&cq=&id=5 lbf444bl 1.

      .Prior to 1999, Florida statutes were revised every two years, and, because of the extent of the required gender-neutralization of all statutes, the process required two session laws. See, e.g., Fla. Stat., Preface at vi-ix (2012).

      . That the majority misreads the definition is further confirmed by the fact that later editions of Merriam-Webster's Collegiate Dictionary contain the definition wished by the majority. See Merriam-Webster’s Collegiate Dictionary (2013) (defining "sexual intercourse" as "intercourse (as anal or oral intercourse) involving genital contact between individuals other than penetration of the vagina by the penis”) (emphasis added). Prior to 2003, the definition in Merriam Webster's Collegiate Dictionary was the same as that in the unabridged. Moreover, the definition cited by the majority actually first appears in Merriam-Webster’s unabridged dictionary in 1976, not 1986, as intimated by the majority. For these additional reasons, it cannot be said that “anal and oral intercourse" are included sub silencio in the 1986 unabridged.

      . The 1986 regular session of the Florida legislature commenced on April 8, 1986, and adjourned sine die on June 7, 1986. Fla. Legis., History of Legislation, 1986 Regular Session at 1, CS for HB 1313. The revised and restated Chapter 384 was passed by the Florida legislature on June 7, the last day of the 1986 session. See Fla. CS for HB 1313 § 384 (1986).


author: PER CURIAM.

text:
    Michael Joseph NILIO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3730.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2013.
    Rehearing Denied Dec. 11, 2013.

      Michael Joseph Nilio, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Jennifer Moore, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

THOMAS, ROBERTS, and CLARK, JJ., concur.


author: THOMAS, J.

text:
    CITY OF NORTH BAY VILLAGE/Florida Municipal Insurance Trust/Florida League of Cities, Inc., Appellants, v. Peter GUEVARA, Appellee.
    No. 1D13-0279.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2013.

      Damian H. Albert and David M. Schweiger of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale, for Appellants.
    Andrea L. Wolfson of Wolfson & Ko-nigsburg, P.A., Davie, for Appellee.
   THOMAS, J.

In this workers’ compensation appeal, the Employer/Carrier (E/C) argues that the Judge of Compensation Claims (JCC) erred in denying its statute of limitations defense and awarding benefits to Claimant. Because we agree the JCC erred in finding that the E/C was estopped from asserting a statute of limitations defense, we need not address the remaining issues raised by the E/C in this appeal.

The facts in this case are undisputed. Claimant, a law enforcement officer, advised his supervisor on March 15, 2007, that he had been placed on light duty following a physical that revealed his blood pressure was elevated. His supervisor completed a notice of injury, which was received by the Employer’s workers’ compensation insurance carrier on March 23, 2007.

On March 26, 2007, the Carrier sent Claimant an “initial claim packet” via certified mail, and Claimant’s wife signed the certified mail receipt. The packet included the informational brochure approved by the Department of Financial Services entitled “Facts for Florida Injured Employees,” as required by section 440.185(4), Florida Statutes (2006). On October 18, 2011, Claimant filed a petition for benefits on account of the March 15, 2007, date of accident, which is beyond the two-year limitations period set forth in section 440.19(1), Florida Statutes (2006).

In rejecting the E/C’s statute of limitations defense, the JCC found that the claim packet sent to Claimant by the E/C was so generic as to not provide meaningful information to Claimant, and the packet did not contain any information regarding the statutory presumption of causation afforded law enforcement officers under section 112.18(1), Florida Statutes (2006). The JCC also noted that the E/C did not authorize any medical treatment upon receiving notice of the claim; rather, the E/C fully controverted the claim with its April 4, 2007, notice of denial. On these bases, the JCC concluded that the E/C was es-topped from raising the statute of limitations defense provided in section 440.19(1).

The JCC erred both in finding the E/C failed to meet the requirements of section 440.185(4) and in finding that the E/C was otherwise estopped from raising the statute of limitations defense. Neither section 112.18(1) nor section 440.185(4), nor any other portion of chapter 440, requires the E/C to provide an injured worker any details regarding the presumption found in section 112.18(1). Here, the claim packet sent to Claimant included the pamphlet published by the Department of Financial Services, the item specifically referenced in and required by section 440.185(4). Hence, the legal basis for the JCC’s determination that the E/C did not meet the statutorily imposed requirement to provide Claimant with notice of his rights lacks merit. Because Claimant did not file a petition for benefits within the limitations period, and further, because the record does not support a finding that the E/C should otherwise be estopped from raising the statute of limitations defense, Claimant’s right to file a petition was barred by the statute of limitations as set forth in section 440.19(1).

REVERSED.

WETHERELL and RAY, JJ., concur.

      . Oral argument was heard in this case on September 17, 2013. The order scheduling oral argument was electronically sent to counsel for the parties on August 7, 2013, through the "Casemail” function of the eDCA system in accordance with this Court’s Administrative Order 12-1, which stated that "[effective March 1, 2012, all orders ... issued by this court will be transmitted to registered eDCA users in electronic format only through a link provided via Casemail.” Appellants’ counsel appeared at oral argument and was permitted to argue. Appellee’s counsel, Andrea L. Wolfson, did not appear at oral argument. The Clerk of the Court reported to the panel that the docket showed that Ms. Wolfson had not opened the Casemail containing the order scheduling oral argument; that this Casemail was sent to Ms. Wolfson at the same email address as earlier transmissions that had been opened; and that the Clerk contacted Ms. Wolfson’s office and was advised that Ms. Wolfson was out of the state and unaware of the scheduled oral argument. Ms. Wolfson's failure to open the Casemail containing the order scheduling oral argument does not excuse her failure to appear at argument without notifying the court that she would not appear; like all registered eDCA users, Ms. Wolfson was responsible for keeping her eDCA email address current and actively monitoring that address for Casemail from this Court.

      . Claimant also filed a petition for benefits based on an alleged September 13, 2011, date of accident, claiming hypertension and heart disease as his compensable injuries. The JCC denied compensability of the 2011 date of accident, finding Claimant was not disabled due to his hypertension and he did not have heart disease. Claimant did not cross-appeal this denial.


text:
    Marco Anthonio WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1607.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2013.
    Marco Anthonio Williams, pro se.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant pled guilty to the lesser offense of second-degree murder in exchange for a prison sentence of thirty-five years. He filed a petition for writ of habe-as corpus in the lower court, challenging his 1998 conviction and sentence in lower court case 98-547-CF. In addition to dismissing his habeas petition, the lower court ordered Appellant to show cause why he should not be prohibited from filing further frivolous pro se motions. Appellant appealed the lower court’s order to this Court, arguing that the lower court was simply trying to silence him from petitioning for his freedom by threatening Department of Corrections disciplinary action.

We affirmed the lower court’s dismissal of Appellant’s claims, and noted that Appellant has filed numerous appeals or petitions in this Court, all related to his 1998 criminal case. See 1D00-4878, 1D03-459, 1D07-735, 1D08-2280, 1D09-5491, 1D11-1305, 1D13-269, 1D13-2753, and 1D13-1607. Case 1D13-2753 is currently pending. In all the other cases, Appellant failed to obtain any relief, with the eases being either affirmed or dismissed.

Accordingly, on October 4, 2013, this Court directed Appellant to’ show cause why sanctions should not be imposed pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999). Appellant responded, alleging this Court is either “failing to writ[e] and read” his allegations “and/or is ‘rubber stamping’ his motion and petition as the lower court has been doing these pass[sic] 15 years so no mistakes can be admitted by the justice system.”

Based on this response, this Court concludes that Appellant has failed to set forth a legal basis that would preclude the imposition of sanctions and has failed to establish that the imposition of sanctions is not warranted.

Accordingly, we prohibit Marco Antho-nio Williams from filing any further pro se papers in this Court concerning his conviction and sentence in Duval County Circuit Court case number 98-547-CF. The Clerk of this Court is directed to no longer accept any future filings concerning this case unless they are filed by a member in good standing of The Florida Bar. Appellant is warned that any filings which violate the terms of this opinion may result in referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes.

SANCTIONS IMPOSED.

WOLF, ROBERTS, and MAKAR, JJ„ concur.


text:
    Kirklynn FERRELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3166.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2013.
    Deana K. Marshall of the Law Office of Deana K. Marshall, P.A., Riverview, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

THOMAS, MARSTILLER, and RAY, JJ., concur.


text:
    Christopher D. THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3972.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2013.
    Rehearing Denied Jan. 23, 2014.

      Christopher D. Thomas, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Munn v. Florida Parole Commission, 807 So.2d 733 (Fla. 1st DCA 2002).

THOMAS, MARSTILLER, and RAY, JJ., concur.


text:
    Anthony SANDERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5354.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2013.
    Rehearing Denied Jan. 23, 2014.
    Anthony Sanders, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

THOMAS, MARSTILLER, and RAY, JJ., concur.


author: COHEN, J.

text:
    Raul ROSADO, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4257.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2013.

      James S. Purdy, Public Defender, and John M. Selden, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON MOTION FOR REHEARING

COHEN, J.

We grant Raul Rosado’s motion for rehearing, withdraw our prior opinion, and substitute the following in its stead.

Raul Rosado appeals from the judgment and sentence entered after he was adjudicated guilty of kidnapping with intent to inflict bodily harm or terrorize, burglary of a conveyance with an assault, carjacking, aggravated battery causing great bodily harm, aggravated assault with an intent to commit a felony, and two counts of misdemeanor battery following a jury trial. On appeal, he argues that: (1) his convictions for both burglary with an assault and aggravated assault with an intent to commit a felony violate the prohibition against double jeopardy; (2) his convictions for aggravated battery and two counts of misdemeanor battery violate the prohibition against double jeopardy; and (3) the trial court imposed a vindictive sentence in sentencing him to forty years’ imprisonment. We affirm in part and reverse in part.

In the early morning hours of July 21, 2008, the victim was parked in a parking lot beneath the 1-4 overpass in downtown Orlando when a man she did not recognize approached her car. The man eventually convinced the victim to give him a ride to Orange Blossom Trail. During the car ride, the man pressed something against the victim’s side, demanding that she do as he said. The victim did not know what was pressed against her, but she feared that it was a gun. The man ordered the victim to turn onto the next side street and pull over, and she complied. Once the car was stopped, she told the man to get out, but he refused. When the victim attempted to exit the car, the man punched her in the face. She tried to reach for the door handle again, but the man choked her and hit her several times. He ordered her to push the driver’s seat back, but she refused. The man then reclined her seat and demanded that she remove her pants and underwear. The man digitally penetrated her and continued to hit and choke her as she struggled. The victim eventually was able to escape from the car, at which point the man jumped into the driver’s seat and sped off.

The victim flagged down assistance, law enforcement was called, and she was transported to the hospital. Law enforcement located the victim’s car the next day and processed it for evidence, but the case remained cold for over two years.

In 2010, the Orange County Sheriff’s Office received a tip identifying Rosado as the victim’s attacker. Detectives showed the victim a photographic line-up and she identified Rosado as her attacker. Based upon the victim’s identification, the Sheriffs Office obtained a warrant for Rosado’s DNA and determined that his DNA matched the DNA found on the victim’s body and in her car. Rosado’s fingerprints were also found on the car.

The State filed an information charging Rosado with: (1) sexual battery with a deadly weapon or physical force; (2) kidnapping with intent to inflict bodily harm or terrorize; (3) burglary of a conveyance with an assault; (4) carjacking; (5) aggravated battery causing great bodily harm; (6) aggravated assault with intent to commit a felony; and (7) felony battery. The jury found Rosado guilty as charged on counts two through seven. As to the sexual battery charge, the jury found Rosado guilty of the lesser-included offense of battery. At the sentencing hearing, the State announced that it would not go forward with attempting to prove Rosado’s prior battery conviction for the purposes of establishing felony battery. Accordingly, the trial court adjudicated Rosado guilty of misdemeanor battery on count seven.

On appeal, Rosado argues that some of his convictions violate the prohibition against double jeopardy. As to the convictions for both burglary with an assault and aggravated assault with intent to commit a felony, the State concedes error. Accordingly, we vacate Rosado’s conviction for aggravated assault with intent to commit a felony.

Rosado further submits that his convictions for aggravated battery causing great bodily harm and two counts of misdemeanor battery also violate the prohibition against double jeopardy. We agree. See Olivard v. State, 831 So.2d 823, 824 (Fla. 4th DCA 2002) (holding that dual convictions for battery and aggravated battery causing great bodily harm violated double jeopardy principles where defendant committed battery and aggravated battery against same victim, in same location, and defendant’s actions “were within the course of one continuous episode attacking [the victim]”); see also Arnold v. State, 514 So.2d 419, 421 (Fla. 2d DCA 1987) (“The battery is a necessarily included lesser offense of the aggravated battery, and the constitutional protection against double jeopardy prohibits separate convictions and sentences.”). We therefore vacate Rosado’s two misdemeanor battery convictions.

Rosado also claims that the trial court imposed a vindictive sentence by sentencing him to forty years’ imprisonment even though the State had initially offered him a twenty-five-year plea. However, Rosado did not raise this error below, either by contemporaneous objection at the sentencing hearing or by a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b). Thus, we first must determine whether this issue is cognizable on appeal.

Rule 3.800(b) allows the filing of a “motion to correct any sentencing error, including an illegal sentence” before filing an appeal, or, when an appeal is pending, before the first brief is filed. Florida Rule of Appellate Procedure 9.140(e), in turn, provides that “[a] sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal: (1) at the time of sentencing; or (2) by motion pursuant to Florida Rule of Criminal Procedure 3.800(b).” In Brannon v. State, 850 So.2d 452, 456 (Fla.2003), the supreme court held that “for defendants whose initial briefs were filed after the effective date of rule 3.800(b)(2), the failure to preserve a fundamental sentencing error by motion under rule 3.800(b) or by objection during the sentencing hearing forecloses them from raising the error on direct appeal.”

In Allende v. State, 882 So.2d 472, 473 (Fla. 5th DCA 2004), this Court held that to preserve a claim of vindictive sentencing, the defendant must either lodge a contemporaneous objection during the sentencing hearing or assert the argument in a motion filed pursuant to rule 3.800(b). In reaching this conclusion, we reasoned that a claim of vindictive sentencing is a “sentencing error” within the meaning of rule 3.800(b). Id.

After our decision in Allende, the Florida Supreme Court clarified the issue of which types of errors constitute “sentencing errors” subject to rule 3.800(b). See Jackson v. State, 983 So.2d 562 (Fla.2008). The supreme court made clear that not all errors that occur in the sentencing context constitute a “sentencing error” under rule 3.800(b). “Instead, errors we have recognized as ‘sentencing errors’ are those apparent in orders entered as a result of the sentencing process.” Id. at 572. The court set forth a non-exhaustive list of “sentencing errors” subject to the rule: claims that the defendant was improperly habitualized; that the sentence exceeded the statutory maximum; that the score-sheet was inaccurate; that the trial court improperly imposed a departure sentence; that the written order deviated from the oral pronouncement; that the trial court improperly assessed costs; that the trial court improperly sentenced the defendant to simultaneous incarceration and probation; that the trial court failed to award credit for time served; that the trial court failed to address in writing its decision to impose adult sanctions; and that a sentencing statute was unconstitutional. Id. at 572-73. The court explained that, generally, these types of errors are not apparent until the sentencing order itself is entered; thus, the defendant would not have had the opportunity to object to the error before the sentencing order was entered. Id. at 573. Conversely, the court held that the temporary absence of defense counsel during a victim impact statement was not the type of “sentencing error” that could be asserted under rule 3.800(b); rather, it was “an error in the sentencing process,” which was not subject to the rule and thus could be asserted for the first time on appeal if it amounted to fundamental error. Id. at 574.

Applying Jackson to the instant case, we conclude that a claim of vindictive sentencing is “an error that occurs during the sentencing process, not an error in the sentencing order,” Jackson, 983 So.2d at 574, and is therefore not a “sentencing error” within the meaning of rule 3.800(b). The issue of whether a sentence is vindictive is not readily apparent on the sentencing order or within the statutes that govern imposition of a lawful sentence.

Having concluded that a claim of vindictive sentencing is not a “sentencing error” subject to rule 3.800(b), we apply the general rule that an unpreserved error may be considered on appeal only if the error is fundamental. “[F]or an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process.” Jackson, 983 So.2d at 575 (quoting Hopkins v. State, 632 So.2d 1372, 1374 (Fla.1994)). In discussing fundamental error in the sentencing context, the supreme court has stated:

[I]n order to be considered fundamental, an error must be serious. In determining the seriousness of an error, the inquiry must focus on the nature of the error, its qualitative effect on the sentencing process and its quantitative effect on the sentence. In most cases, a fundamental sentencing error will be one that affects the determination of the length of the sentence such that the interests of justice will not be served if the error remains uncorrected.

Maddox v. State, 760 So.2d 89, 99-100 (Fla.2000) (citation omitted). In Maddox, the supreme court opined that “an error that improperly extends the defendant’s incarceration or supervision would likely impress us as fundamental.” Id. at 100 (quoting Bain v. State, 730 So.2d 296, 305 (Fla. 2d DCA 1999)). Applying that standard here, we conclude that the imposition of a vindictive sentence constitutes fundamental error because it extends the defendant’s length of incarceration.

We must next determine whether Rosado has established that a vindictive sentence was, in fact, imposed in this case. In determining whether a sentence is vindictive, courts look at the totality of the circumstances. Wilson v. State, 845 So.2d 142, 156 (Fla.2003). Factors to consider include whether the trial judge initiated plea discussions without being requested to do so by either party, or whether the trial judge appears to have departed from the role of impartial arbiter by either urging the defendant to accept a plea or by stating that the sentence imposed would hinge on future procedural choices, such as the exercise of the right to trial. Id. If either occurs, a harsher sentence following trial is presumed to be vindictive. Id. “Where the totality of the circumstances does not give rise to the presumption of vindictiveness, the burden remains upon the defendant to prove actual vindietiveness.” Id. at 156 n. 8 (citing Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989)).

In the instant case, a presumption of vindictiveness does not arise because the trial judge neither initiated the plea discussions nor departed from her role of neutrality. Rather, as most experienced trial judges do, prior to jury selection, she inquired of the parties as to whether any plea offers had been tendered and ensured that they had been communicated to Rosa-do. The judge further inquired whether Rosado had rejected that offer and was aware of the potential maximum sentence.

The following day, Rosado reopened the discussion when he stated he would accept the State’s plea offer as long as he was able to serve the sentence in another jurisdiction. The trial judge responded that while she was willing to accept the negotiated plea, she could not order that Rosado serve the sentence outside of Florida. Ro-sado replied that he would accept the plea as long as he did not have to plead guilty to the sexual battery charge, but the State refused to nolle prosequi that charge. Ro-sado proceeded to trial and was found guilty of several offenses, including two felonies punishable by life imprisonment. During the sentencing hearing that followed, the State presented compelling victim impact testimony from both the victim and her father. Although the trial judge could have sentenced Rosado to life imprisonment on two of the counts, she instead sentenced him to forty years’ imprisonment.

Based on the totality of the circumstances, we conclude that Rosado has not met his burden of proving actual vindictiveness. Accordingly, we affirm the sentence imposed by the trial court.

AFFIRMED IN PART; REVERSED IN PART.

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

      . Although Rosado did not raise these issues below, they are nevertheless cognizable on appeal because a double jeopardy violation constitutes fundamental error. See State v. Johnson, 483 So.2d 420, 422 (Fla.1986) (citing Benton v. Maryland, 395 U.S. 784, 794-96, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)).

      . The court, however, did not specifically address the issue of vindictive sentencing.

      . Our sister courts that have addressed the issue following Jackson have also held that the imposition of a vindictive sentence is not a "sentencing error” under rule 3.800(b). See Pierre v. State, 114 So.3d 319 (Fla. 4th DCA 2013); Mendez v. State, 28 So.3d 948 (Fla. 2d DCA 2010).

      . These issues are frequently raised in post-conviction ineffective assistance of counsel claims. Failure to make such inquiry below will often necessitate an evidentiary hearing years down the road.


text:
    Eric A. KNAPP, Appellant/Cross-Appellee, v. David L. TALTON, Walter A. McCully, et al., Appellee/Cross-Appellant.
    No. 5D13-375.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2013.
    Rehearing Denied Dec. 31, 2013.
    Dennis Wells, of Webb, Wells & Williams, P.A., Longwood, for Appellant/Cross Appellee.
    Jim McCrae and J. Keith Ramsey, of Holland & Knight LLP, Orlando, for Ap-pellee/Cross-Appellant.
   PER CURIAM.

AFFIRMED. See Fla. R. Civ. P. 1.540(b); Harrison v. La Placida Cmty. Ass’n, 665 So.2d 1138, 1141 (Fla. 4th DCA 1996) (holding that Rule 1.540 cannot be used to remedy legal error, such as “vacating] an order of dismissal upon a finding that [the] decision [to dismiss] was erroneous”); Averbuch v. Lauffer, 516 So.2d 973, 974 (Fla. 5th DCA 1987) (“[A] party may not utilize a motion for relief from judgment under Rule 1.540(b), Fla. R. Civ. P., to relitigate issues which have been previously litigated in a motion for rehearing pursuant to Rule 1.530, Fla. R. Civ. P. If the grounds are identical, a party’s failure to seek appellate review of the order denying the motion for rehearing precludes further judicial review.”) (quoting Sloan v. Sloan, 393 So.2d 642, 644 (Fla. 4th DCA 1981)).

ORFINGER, LAWSON and EVANDER, JJ., concur.


text:
    Amen E. IDUMWONYI, Appellant, v. Colette N. BELIZAIRE, Appellee.
    No. 1D12-4670.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2013.
    Rehearing Denied Jan. 22, 2014.
    Amen E. Idumwonyi, pro se, Appellant.
    William Bruce Muench, Jacksonville, for Appellee.
   PER CURIAM.

The husband in a pending action for dissolution of marriage appeals from an appealable non-final order establishing his obligation to pay temporary child support. We affirm that order on the merits, and we are precluded from reviewing the husband’s arguments concerning the court’s failure to rule on his motion to obtain timesharing with his children. Because the circuit court did not either grant or deny the husband’s motion in the order on appeal, the circuit court’s handling of that motion is beyond the scope of our review. See Pinellas Cnty. Sch. Bd. v. Crowley, 911 So.2d 881, 882 (Fla. 2d DCA 2005) (recognizing that jurisdiction to review a non-final order certifying a class was limited to review of the propriety of that order); see also Stanberry v. Escambia Cnty., 813 So.2d 278, 279 (Fla. 1st DCA 2002) (holding that jurisdiction to review a non-final order does not confer plenary appellate jurisdiction).

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


text:
    Robert SAVARD, Appellant, v. RIO VISTA MANAGEMENT GROUP d/b/a McDonald’s/USIS, Appellees.
    No. 1D12-5265.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2013.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale and Mark A. Touby of Touby & Chait, P.L., Coral Gables, for Appellant.
    Diane H. Tutt of Conroy, Simberg, Ga-non, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellees.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant in part Appellees’ Motion for Rehearing, withdraw our original opinion dated August 22, 2013, and substitute this opinion in its place.

In this workers’ compensation appeal, Claimant challenges an order of the Judge of Compensation Claims (JCC) which denies his claim for permanent total disability benefits. In light of this Court’s decision in Westphal v. City of St. Petersburg/St. Petersburg Risk Management & State of Florida, 122 So.3d 440 (Fla. 1st DCA 2013), we reverse the order and remand the case for further proceedings, in which the JCC may receive additional evidence. See City of Pensacola v. Capital Realty Holding Co., 417 So.2d 687, 688 (Fla. 1st DCA 1982) (“It is well settled that upon reversal and remand with general directions for further proceedings, a trial judge is vested with broad discretion in handling or directing the course of the cause thereafter.”).

REVERSED and REMANDED for further proceedings consistent with this opinion.

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


author: LOGUE, J.

text:
    Yuri SUCART and Jose Gustavo Gomez, Petitioners, v. OFFICE OF THE COMMISSIONER, etc., et al., Respondents.
    Nos. 3D13-1928, 3D13-2242, 3D13-2251.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2013.

      Sonn & Erez, PLC, and Jeffrey R. Sonn, Miami, for petitioner Yuri Sucart.
    Hinshaw & Culbertson LLP, and John Lukács, Coral Gables, for petitioner Jose Gustavo Gomez.
    Proskauer Rose LLP, New York, and Howard L. Ganz, Neil H. Abramson, Adam M. Lupion, Allan H. Weitzman, and Júrate Schwartz, Pro Hac Vice; Kobre & Kim LLP, and Matthew I. Menchel, Andrew C. Lourie, John D. Couriel, and Adriana Rivi-ere-Badell, Miami, for respondents.
    Before WELLS, EMAS, and LOGUE, JJ.
   LOGUE, J.

Yuri Sucart and Jose Gustavo Gomez seek writs of certiorari to prevent the plaintiff in the lawsuit below from taking their depositions. They contend that federal law preempts the lawsuit, and therefore the trial court lacks subject matter jurisdiction to issue the subpoenas. Because the record before us does not clearly establish that the lawsuit is preempted, Sucart and Gomez have failed to meet the high standard required for the issuance of the extraordinary writ. We therefore deny the petitions.

In the lawsuit below, the Office of the Commissioner of Baseball alleged that eight defendants tortiously interfered with contracts between the Commissioner and the Major League Players Association, including collective bargaining agreements that prohibited the use of certain performance-enhancing drugs. The complaint alleged that the defendants participated in a scheme to distribute the drugs to players, resulting in damages to the Commissioner. Although not parties to the lawsuit, Sucart and Gomez were subpoenaed to be deposed. In response, they filed various motions for protective orders to quash the subpoenas.

In resisting the subpoenas, Sucart and Gomez argued that the resolution of the tortious interference claims will require the trial court to interpret the collective bargaining agreements, and that these claims are therefore preempted by Section 301 of the federal Labor Management Relations Act. 29 U.S.C. § 185. See also Moon v. Goodyear Tire & Rubber Co., 519 Fed.Appx. 620, 623 (11th Cir.2013) (quoting Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988)) (“[I]f the resolution of a state-law claim depends upon the meaning of a collective bargaining agreement, the application of state law (which might lead to inconsistent results since there could be as many state-law principles as there are States) is pre-empted and federal labor law principles — necessarily uniform throughout the Nation — must be employed to resolve the dispute.”). The trial court denied their motions and Sucart and Gomez filed petitions with this court, which have been consolidated.

At the outset, we acknowledge that the trial court erred in finding that Sucart and Gomez, as non-parties, lacked standing to raise the trial court’s alleged lack of subject matter jurisdiction over the Commissioner’s claims, at least in regards to their motions for protective orders. Su-cart and Gomez assert, in part, that the trial improperly exercised subject matter jurisdiction over the matter when it subjected them to the court’s subpoena power. The trial court’s subpoena power is delineated in Florida Rule of Civil Procedure 1.410, the counterpart to Federal Rule of Civil Procedure 45. With respect to Rule 45, the United States Supreme Court has stated

Federal Rule of Civil Procedure 45 grants a district court the power to issue subpoenas as to witnesses and documents, but the subpoena power of a court cannot be more extensive than its jurisdiction. It follows that if a district court does not have subject-matter jurisdiction over the underlying action, and the process was not issued in aid of determining that jurisdiction, then the process is void and an order of civil contempt based on refusal to honor it must be reversed.

U.S. Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76, 108 S.Ct. 2268, 101 L.Ed.2d 69 (1988). Although this issue has not been addressed in Florida precedent, the comments to Rule 1.410 indicate that “Federal Rule 45 is the same in many respects” and that “Florida courts rely on the federal courts’ construction of the rule in the absence of a square holding in Florida.” Fla. R. Civ. P. 1.410 cmt. (1967). As such, Rule 1.410 must be interpreted as permitting a non-party under court subpoena to challenge the subpoena by raising the trial court’s lack of subject matter jurisdiction over the claim.

A slightly different issue concerns when and if a trial court’s rejection of such an argument is reviewable by cer-tiorari under Florida law. Turning to the petitions for certiorari, we begin with the premise that “[a] non-final order for which no appeal is provided by rule 9.130 may be reviewable by petition for a writ of certio-rari, ... only [where] [t]he petitioning party ... demonstrate^] that the contested order constitutes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3) that cannot be corrected on postjudgment appeal.” Bd. of Trs. of Internal Improvement Trust Fund v. Am. Educ. Enters., LLC, 99 So.3d 450, 454 (Fla.2012) (citations and internal quotations omitted). “[A] material injury in the proceedings that cannot be corrected on appeal” is “sometimes referred to as irreparable harm.” Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So.3d 712, 721 (Fla.2012), reh’g denied (May 4, 2012). In certain circumstances, certiorari may be appropriate to review orders compelling discovery from non-parties. See Hill v. Doughty, 765 So.2d 66 (Fla. 4th DCA 2000) (granting certiorari and quashing a discovery order entered against a non-party where there was “no evidence to support ... allegation of a relationship between the non-party petitioners and the judgment debtor”).

The burden on a party to show the departure from an essential requirement of law, however, is high. “A departure from the essential requirements of the law that will justify issuance of this extraordinary writ requires significantly more than a demonstration of legal error.” Vill. of Palmetto Bay v. Palmer Trinity Private Sch., Inc., 128 So.3d 19, 20 (Fla. 3d DCA July 5, 2012). This Court recently quoted with approval Justice Boyd’s classic formulation:

The required “departure from the essential requirements of law” means something far beyond legal error. It means an inherent illegality or irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated -with disregard of procedural requirements, resulting in a gross miscarriage of justice. The writ of certiorari properly issues to correct essential illegality but not legal error.

Id. (quoting Jones v. State, 477 So.2d 566, 569 (Fla.1985) (Boyd, C.J., concurring specially)).

Sucart and Gomez have not meet this burden in this case, at least in its pleading stage. It is far from clear on this record that the Commissioner’s claims would be preempted by Section 301. State-law claims are preempted by Section 301 “when resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). But “every state-law suit asserting a right that relates in some way to a provision in a collective-bargaining agreement, or more generally to the parties to such an agreement” is not “necessarily .... pre-empted by § 301.” Id. And “Section 301 preemption does not automatically divest state courts of jurisdiction, ... but only displaces state law causes of action that require interpretation of a collective bargaining agreement and mandates that federal law be applied.” Acevedo v. Caribbean Transp., Inc., 673 So.2d 170, 172 (Fla. 3d DCA 1996).

The instant lawsuit is not between parties to the collective bargaining agreement over the collective bargaining agreement. Instead, it is a lawsuit between one party to the collective bargaining agreement and various third parties over a tort. The collective bargaining agreement is, at best, ancillary to the plaintiffs’ cause of action. In this context, it is significant that Sucart and Gomez have failed to identify any specific provision of the collective bargaining agreement which is in dispute and which will need to be construed as part of this lawsuit. In fact, it is alleged in the second amended complaint that certain parties to the agreement have already admitted that the use of performance enhancing substances violated the collective bargaining agreement and that some Major League Baseball players acknowledged breaching the agreement in this regard. Accepting these allegations as true, as we must at this stage of the proceedings, it would appear that little or no interpretation of the agreement would be necessary to resolve the Commissioner’s claims here, and certainly not to the degree that the claims would be preempted by Section 301.

The issues raised by the lawsuit appear to center not on whether the players violated the contracts, but instead on what role, if any, the defendants played in the players’ already-acknowledged violation of the agreement. The resolution of the claims will depend on purely factual questions relating to the conduct and motivations of the defendants, “separate and distinct from those involving the construction or interpretation of the agreement.” Kresse v. City of Hialeah, 539 So.2d 534, 535 (Fla. 3d DCA 1989); see also Sw. Gulfcoast, Inc. v. Allan, 513 So.2d 219, 227 (Fla. 1st DCA 1987), receded from in part on other grounds, Fisher v. Int’l Longshoremen’s Ass’n, 827 So.2d 1096 (Fla. 1st DCA 2002) (holding that there was no preemption where “it was not shown that resort to an interpretation of the labor contract itself is necessary to define the state right being asserted”).

Of course, as the factual record develops, this conclusion might change. If discovery reveals that this case turns on the interpretation of a provision of the collective bargaining agreement which is disputed and that such an interpretation may have national ramifications, the conclusion that this case is not preempted would have to be re-examined. See Hernandez v. Coopervision, Inc., 661 So.2d 33, 35 (Fla. 2d DCA 1995). And, at that point, a determination would have to be made if the preemption eliminated the trial court’s jurisdiction or merely served as an affirmative defense. See Bertoni v. Stock Bldg. Supply, 989 So.2d 670, 674 (Fla. 4th DCA 2008).

At this stage of the proceedings, however, we cannot say that the trial court’s assertion of jurisdiction in this matter, which on its face appears reasonable, rises to the level “of an abuse of judicial power, an act of judicial tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice” which is what is required to justify the issuance of the extraordinary writ of cer-tiorari. Jones, 477 So.2d at 569. Therefore, discovery should go forward.

Petitions denied.

      . Because we conclude that the trial court did not depart from the essential requirements of the law, we need not address whether the discovery orders would cause material injury to Sucart and Gomez that would be irreparable by way of appeal at the conclusion of the case.


author: SWANSON, J. THOMAS, J.,

text:
    Robert W. WING, Former Husband, Appellant, v. Monica D’Arcio WING, Former Wife, Appellee.
    No. 1D13-1591.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2013.
    Rehearing Denied Jan. 23, 2014.

      Stephanie A. Sussman, Samuel S. Jacobson, and Kenneth B. Wright of Bledsoe, Jacobson, Schmidt, Wright & Wilkinson, Jacksonville, for Appellant.
    Corrine A. Bylund and Elliot Zisser of Zisser, Brown, Nowlis & Cabrey, P.A., Jacksonville, for Appellee.
   SWANSON, J.

Robert W. Wing (“Former Husband”) appeals from a non-final order raising four points for reversal. See Fla. R. App. P. 9.130(a)(3)(C)(iii). We affirm Point IV without further comment. We need not address Points II and III, as we are compelled to reverse on Point I, which challenges the trial court’s decision to allow Monica D’Arcio Wing (“Former Wife”) to relocate with the parties’ minor children to her native country of Italy. The trial court’s ruling was an error of law insofar as it failed to apply the explicit directives in section 61.13001(3), Florida Statutes (2009).

While we do not disagree with our dissenting colleague’s point that Former Husband was knowledgeable of Former Wife’s desire to relocate as early as her first counter-petition for dissolution of marriage filed in 2003, we cannot endorse the undeniable effect of his conclusion, which grafts onto the provisions of section 61.13001(3) a rule of substantial compliance that may be overcome only by proof of prejudice. The mandate in section 61.13001(3) is clear: The parent seeking to relocate “must file a petition to relocate and serve it upon the other parent”; “[t]he pleadings must be in accordance with this section”; “[t]he petition to relocate must be signed under oath or affirmation under penalty of perjury”; the petition “must” include an enumerated list of information as well as contain a notice statement, set out in bold capital letters, and concerning how a response to the petition objecting to relocation “must ” appear and on whom it “must ” be served; and “[t]he petition to relocate must be served on the other parent and on every other person entitled to access to and time-sharing with the child.” § 61.13001(3)(a) & (b), Fla. Stat. (2009) (emphasis added). “When a court construes a statute, its goal is to ascertain legislative intent, and if the language of the statute under scrutiny is clear and unambiguous, there is no reason for construction beyond giving effect to the plain meaning of the statutory words.” Crutcher v. Sch. Bd. of Broward Cty., 834 So.2d 228, 232 (Fla. 1st DCA 2002) (citing Aetna Cas. & Sur. Co. v. Huntington Nat’l Bank, 609 So.2d 1315, 1317 (Fla.1992)). See also Saunders v. Saunders, 796 So.2d 1253, 1254 (Fla. 1st DCA 2001); but see State Farm Mut. Auto. Ins. Co. v. O’Kelley, 349 So.2d 717, 718 (Fla. 1st DCA 1977) (holding “[w]hile courts are not at liberty to resort to rules of statutory interpretation where the language of the statute is plain and unambiguous ... where the words are ambiguous the cardinal rule of construction is to interpret the statute in such a way that effect be given to the intention of the legislature”).

We cannot- ignore the legislature’s use in the statute of the emphatic “must” in order to achieve a more convenient result. See Raulerson v. Wright, 60 So.3d 487 (Fla. 1st DCA 2011). While the facts in Raulerson, might have presented a greater imperative for the strict application of the mandatory notice terms of section 61.13001(3), as the dissent argues, we cannot conclude the facts of this case demand any less strict application. Section 61.13001(3) says what it says, and we are impelled by its clarity to give effect to its terms. See also Milton v. Milton, 113 So.3d 1040 (Fla. 1st DCA 2013). In the present case, because there was no valid agreement between the parties regarding the children’s relocation, as described in section 61.13001(2), Florida Statutes (2009), Former Wife was obliged to comply strictly with the requirements of section 61.13001(3). The numerous references to relocation in the parties’ respective pleadings did not excuse her duty under the statute. Raulerson, 60 So.3d at 490.

Consequently, we reverse that portion of the trial court’s order granting Former Wife’s permission to relocate with the children.

AFFIRMED, in part, and REVERSED, in part.

RAY, J., concurs and THOMAS, J., dissents with opinion.

THOMAS, J.,

dissenting with opinion.

I respectfully dissent.

Two days before the first day of a bench trial during which the issue of Former Wife’s relocation to Italy with the parties’ children was to be litigated, Former Husband, for the first time, raised the issue of Former Wife’s failure to file a petition that strictly complied with section 61.13001, Florida Statutes. Yet Former Husband was fully aware of Former Wife’s desire to relocate, from the time she filed the first of her counter-petitions for dissolution of marriage in 2003 and throughout the ensuing divorce- litigation. The relocation issue was also the subject of discovery, including deposition testimony, and the issue was listed on the pre-trial stipulation. On appeal, Former Husband has failed to identify any prejudice as a result of Former Wife’s failure to strictly comply with the statute.

In fact, at the beginning of the trial, Former Husband’s counsel told the court: “Upon a review of the pleadings in this case, I realized that there has not been compliance with the relocation statute. And the statute has obviously changed in form throughout the years that this case has been pending.” Thus, although Former Husband’s counsel was prepared to go to trial on the issue, upon realizing on the eve of trial that Former Wife had not strictly complied with a pleading requirement, he moved to strike that issue.

In response to this last-minute maneuver by Former Husband’s counsel, Former Wife’s counsel filed an amended version of her counter-petition that complied with the statutory pleading requirement in all respects except that it lacked Former Wife s signature under oath. But as previously noted, Former Wife was deposed about the issue, thus, there could be no prejudice to Former Husband regarding Former Wife’s prior sworn statement regarding relocation.

Juxtapose the facts here with those in Raulerson v. Wright, 60 So.3d 487 (Fla. 1st DCA 2011). There, the parent seeking to relocate with the parties’ child verbally notified the father of her intent just days before a previously scheduled hearing, and then hand delivered an unsworn notice of her intent to relocate. Id. at 488. The prejudice to the father in Raulerson was obvious on its face. Here, however, notice was never an issue, as the issue of relocation has been extensively litigated over a period of years. Thus, there was no prejudice, and Former Husband can identify no prejudice.

Thus, under these particular circumstances, the trial court correctly found that “the requirement for a formal ‘Petition for Relocation’ as defined by the statute [was] unnecessary in the instant case due to the date the dissolution was filed in 2003, the knowledge of the parties, prior to the trial, of all the factors which would have been sworn to under oath in a petition, and the lack of prejudice to the Husband.” Even if the trial court erred, the trial court’s ruling certainly was not an abuse of discretion under these facts, where no prejudice to Former Husband occurred. Consequently, I would affirm.