text:
    The STATE of Florida, Petitioner, v. Radames BORREGO, Respondent.
    No. 3D12-2988.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 2013.

      Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for petitioner.
    Carlos J. Martinez, Public Defender, and John E. Morrison, Assistant Public Defender, for respondent.
    Before ROTHENBERG, EMAS and LOGUE, JJ.
   ROTHENBERG, J.

“Every litigant, including the State in criminal cases, is entitled to nothing less than the cold neutrality of an impartial judge.” It is the duty of courts to scrupulously guard this right of the litigant and to refrain from attempting to exercise jurisdiction in any matter where his qualification to do so is seriously brought into question. The exercise of any other policy tends to discredit and place the judiciary in a compromising attitude which is bad for the administration of justice.

Livingston v. State, 441 So.2d 1083, 1086 (Fla.1983) (quoting State ex. rel. Mickle v. Rowe, 100 Fla. 1382, 131 So. 331, 332 (Fla.1930)). The Florida Supreme Court has additionally noted that while “[t]he judiciary cannot be too circumspect, neither should it be reluctant to retire from a cause under circumstances that would shake the confidence of litigants in a fair and impartial adjudication of the issues raised.” Livingston, 441 So.2d at 1086 (quoting Dickenson v. Parks, 104 Fla. 577, 140 So. 459, 462 (1932)). Because the State’s motion to disqualify the Honorable Milton Hirseh was legally sufficient, the motion should have been granted. We therefore grant the instant petition.

JURISDICTION

This Court has jurisdiction to issue a writ of prohibition pursuant to article V, section 4(b)(3) of the Florida Constitution, and Florida Rule of Appellate Procedure 9.030(b)(3). Prohibition is “the proper avenue for immediate review of whether a motion to disqualify a trial judge has been correctly denied.” Sutton v. State, 975 So.2d 1073, 1076 (Fla.2008).

THE MOTION TO DISQUALIFY

The defendant, Radames Borrego, is charged with committing various crimes in the two felony cases at issue assigned to Judge Hirseh. Both cases involve fingerprint identifications and in both cases the defendant filed motions requesting the trial court to: (1) prohibit the latent print examiner from testifying that the fingerprints he/she obtained from the defendant matched those found at the scene of the two subject burglaries; (2) make a finding that a particular report regarding fingerprint analysis was authoritative even if the latent fingerprint examiner testified that it was not authoritative; and (3) allow the defense to use this report in cross examination of the latent fingerprint examiner.

Prior to filing its response to these motions, the State moved to disqualify the judge. Attached to the motion to disqualify was an affidavit sworn to by the prosecutor assigned to these two cases Derek Ko. In the affidavit, Mr. Ko states that after being assigned to prosecute these cases, he learned that in a separate case, State v. Marcus Valentine, case number F10-19822, Judge Hirseh informed the parties that they should become familiar with his writings on the subject of fingerprints and Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and provided a copy of these materials to the prosecutor in the Valentine case, Ms. Brean. The affidavit further avers that, subsequent to this disclosure, in a separate conversation with another prosecutor, David Gilbert, Judge Hirseh suggested that the State file a motion to disqualify him because of his preconceived opinions on the subject of fingerprint evidence. When Mr. Gilbert suggested to Judge Hirseh that he should recuse himself based on his expressed feelings, Judge Hirseh stated he would prefer that the State file a motion to disqualify him, which he would grant. In addition to these statements, the affidavit states that Judge Hirseh told a third prosecutor, Christine Zahralban, that if the judge had a case in which the issue of the reliability of fingerprint evidence was raised prior to trial, he would recuse himself from hearing that case. Based on these statements made by Judge Hirseh and, in light of the defendant’s challenges to the fingerprint evidence and the defendant’s pending motions, the prosecutor in the instant cases took Judge Hirsch at his word and orally requested that he recuse himself. Judge Hirsch replied that he would not disqualify himself sua sponte, but he was expecting the State to file a motion to disqualify him.

Importantly, these allegations were sworn to in separate affidavits submitted by Mr. Ko, the prosecutor assigned to these cases, and by Mr. Gilbert, one of the other prosecutors to whom Judge Hirsch allegedly made these statements. Like Mr. Ko, Mr. Gilbert confirmed in his affidavit that when the defense filed a motion attacking the admissibility of fingerprint evidence and alleging that the science of fingerprints could not pass the Frye test in the Valentine case, Judge Hirsch told the parties they should become familiar with his writings on the subject and provided a copy of these materials to Ms. Brean, the prosecutor in Valentine. Mr. Gilbert further attested to the fact that he subsequently had a conversation with Judge Hirsch wherein Judge Hirsch suggested that the State file a motion to disqualify him because of his preconceived opinions on the subject of fingerprints. When Mr. Gilbert suggested to Judge Hirsch that, in light of his expressed feelings, he should recuse himself sua sponte, Judge Hirsch responded that he would prefer that the State file the motion, which he would grant.

However, despite the averments in these affidavits that Judge Hirsch acknowledged having preconceived opinions on the subject of fingerprints, urged two separate prosecutors on different occasions to file motions to disqualify him in cases where the reliability of fingerprint evidence was raised prior to trial, and told these prosecutors that if they filed such a motion he would grant it, Judge Hirsch denied the motion to disqualify filed by Mr. Ko. This was error.

DISCUSSION

Judge Hirsch should have granted the motion for disqualification which the State alleged he solicited and assured that State he would grant. Canon 3E (1) of the Florida Code of Judicial Conduct provides that “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.... ” The question of whether disqualification is required “focuses on those matters from which a litigant may reasonably question a judge’s impartiality rather than the judge’s perception of his ability to act fairly and impartially.” Livingston, 441 So.2d at 1086. The test for determining the legal sufficiency of a motion to disqualify is whether the motion established “a well-grounded fear that the movant will not receive a fair trial at the hands of the judge.” MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1334 (Fla.1990).

Although Judge Hirsch’s disclosure of his writings on the issue of fingerprints most likely do not require his disqualification , his invitations to file motions to disqualify him in cases where the reliability of fingerprint evidence becomes an issue, and his assurances that he would grant such motions if filed, certainly would cause a reasonable person to question the judge’s ability to fairly and impartially adjudicate the issues surrounding the reliability and admissibility of fingerprint evidence in a judicial proceeding.

We therefore hold, as our sister courts and as we have previously held, that where a judge makes a disclosure, invites the parties to file a motion to disqualify him, and suggests that such a motion will be granted, the motion, if filed, must be granted. See Stevens v. Americana Healthcare Corp. of Naples, 919 So.2d 713, 716 (Fla. 2d DCA 2006), which held as follows:

We hold only that where, as in this case, a judge makes such a disclosure, invites the parties to make a motion for disqualification, and suggests that the motion will be granted, the judge cannot thereafter properly deny a timely motion for disqualification based on the facts disclosed. In short, a judge should not offer to recuse himself or herself based on a voluntary disclosure of information relevant to the question of disqualification unless the judge means it.

see also Deloach v. State, 911 So.2d 888, 888 (Fla. 1st DCA 2005) (holding that where the trial judge offered to recuse himself and the appellant accepted the offer to disqualify, the trial judge should have fulfilled the offer); Cobo v. Pepper, 779 So.2d 599, 600 (Fla. 3d DCA 2001) (concluding disqualification was required and stating that “the judge’s spontaneous offer to recuse herself evidences her awareness of being biased and of having prejudiced this case. The judge should have declined to officiate any further”); Pistorino v. Ferguson, 386 So.2d 65, 67 (Fla. 3d DCA 1980), stating:

The courts of this State are firmly committed to the proposition that the due process guarantee of a fair trial contains in its core the principle that every litigant is entitled to nothing less than the cold neutrality of an impartial judge. Where the judge is conscious of any bias or prejudice which might influence his official action against any party to the litigation, he should decline to officiate whether challenged or not. In the present case the trial judge’s spontaneous commitment to recuse himself at the option of counsel for the mother is convincing evidence of his own awareness of bias and speaks louder than his subsequent disclaimer, implicit in his denial of the motion to recuse,

(emphasis added) (internal citations omitted).

Although we decline to address each of the meritless arguments made by the Assistant Public Defender on behalf of the trial judge in response to this petition, we do address the following arguments he raised: (1) “[a] legally sufficient motion for disqualification cannot be based upon rumors or gossip about what the trial judge allegedly said to unidentified people, at unidentified times, and under unidentified circumstances”; (2) “[a] mere speculative fear of bias will not be legally sufficient; rather, the fear must be objectively reasonable”; (3) most of Mr. Ko’s affidavit was “rehashed hearsay,” suggesting that hearsay may not form a basis for disqualification of a trial judge; and (4) the State should be estopped from seeking Judge Hirsch’s disqualification on the basis of Mr. Gilbert’s “ex parte” conversation with Judge Hirsch.

The record reflects that the State’s motion for disqualification of Judge Hirsch was not based on “rumor or gossip” from unidentified people under unidentified circumstances. It was based, in part, on statements the judge allegedly made directly to one of the affiants, David Gilbert, who detailed under oath the circumstances upon which the statements were made. Regarding the additional statements on which the State relied, the State identified each and every person to whom they were made and the circumstances under which they were made. Additionally, the State’s fear that the judge was biased against the reliability of fingerprint evidence was not merely speculative- Rather, it was based on the judge’s own suggestion that he be disqualified based on his views and his invitation for the State to file a motion for disqualification, which he stated he would grant.

Although the State’s motion for disqualification was not based solely on hearsay evidence, we note that hearsay may form the basis for disqualification. See Barnett v. Barnett, 727 So.2d 311, 812 n. 2 (Fla. 2d DCA 1999) (“Mr. Barnett’s argument that the motion is legally insufficient because it is based on hearsay is without merit. Under the current rule, the motion need only be sworn to by the party signing it. There is no requirement that the party have personal knowledge of the facts alleged nor that the motion be accompanied by sworn affidavits of persons with such knowledge.”); see also Fla. R. Jud. Admin. 2.330.

Lastly, the suggestion that the statements the judge allegedly made to Mr. Gilbert should not be relied on because they were made in an ex parte communication between the prosecutor and the judge is rank speculation and has no place in an appellate brief.

For the reasons articulated in this opinion, we conclude the trial court was required to grant the motion for disqualification he solicited and stated he would grant. As this Court stated in Pistorino, “the trial judge’s spontaneous commitment to recuse himself at the option of counsel ... is convincing evidence of his own awareness of bias and speaks louder that his subsequent disclaimer, implicit in his denial of the motion to recuse.” Pistorino, 386 So.2d at 67. Because we conclude the judge should have granted the motions to disqualify him, his subsequent rulings were without authority and are hereby vacated. See Cobo v. Pepper, 779 So.2d 599, 600 (Fla. 3d DCA 2001).

Petition granted.

      . The writings referred to have not been included in the record on appeal. The State’s petition is not based on the judge's writings, but rather his words, including his offers and assurances that he would grant a motion to disqualify himself if one was filed in a case where fingerprint evidence became an issue in a case. Further, our ruling is not based on the judge’s "writings.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michael M. HUDSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2357.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 2013.
    Michael M. Hudson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA and SALTER, JJ.
   PER CURIAM.

Affirmed. See, e.g., Barnard v. State, 949 So.2d 250, 251 (Fla. 3d DCA 2007) (“Habeas corpus may not be used to file successive 3.850 motions or to raise issues which would be untimely if considered as a motion for postconviction relief under rule 3.850.” (citing Baker v. State, 878 So.2d

1236, 1245-46 (Fla.2004))); see also Hernandez v. State, — So.3d-(Fla.2012).


text:
    Jeison G. REGLA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2272.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 2013.
    Jeison G. Regia, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA and SALTER, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, — So.3d - (Fla.2012).


text:
    Earle T. BRUCE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-6167.
    District Court of Appeal of Florida, First District.
    Jan. 17, 2013.
    Earle Bruce, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., DAVIS and ROBERTS, JJ., concur.


text:
    Billy COMER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-6165.
    District Court of Appeal of Florida, First District.
    Jan. 17, 2013.
    Billy Comer, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., DAVIS and ROBERTS, JJ., concur.


text:
    John Lee PUGH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-6163.
    District Court of Appeal of Florida, First District.
    Jan. 17, 2013.
    John L. Pugh, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., DAVIS and ROBERTS, JJ., concur.


text:
    Frank SCIAMMETTA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-6138.
    District Court of Appeal of Florida, First District.
    Jan. 17, 2013.
    Frank Sciammetta, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., DAVIS and ROBERTS, JJ., concur.


text:
    Alan GRANT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-6122.
    District Court of Appeal of Florida, First District.
    Jan. 17, 2013.

      Alan Grant, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., DAVIS and ROBERTS, JJ., concur.


text:
    Stancel S. DRAYTON, Petitioner, v. STATE Of Florida, Respondent.
    No. 1D12-6116.
    District Court of Appeal of Florida, First District.
    Jan. 17, 2013.
    Stancel S. Drayton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., DAVIS and ROBERTS, JJ., concur.


text:
    Martin LINDSEY, Petitioner, v. FLORIDA PAROLE COMMISSION, et al., Respondents.
    No. 1D12-6023.
    District Court of Appeal of Florida, First District.
    Jan. 17, 2013.
    Martin Lindsey, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DISMISSED. See Powell v. Florida Department of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999).

DAVIS, LEWIS, and ROBERTS, JJ., concur.


text:
    Ronald P. MITCHELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1956.
    District Court of Appeal of Florida, First District.
    Jan. 17, 2013.

      Ronald P. Mitchell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., DAVIS and ROBERTS, JJ., concur.


author: ORFINGER, C.J.

text:
    Dennis James CARLISLE, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1916.
    District Court of Appeal of Florida, Fifth District.
    Jan. 18, 2013.

      James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock Mcguigan, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, C.J.

Dennis J. Carlisle appeals his convictions of attempted lewd and lascivious battery and traveling to meet a minor (for sexual conduct). We affirm.

Mr. Carlisle contends that the trial court erred in denying his motion for judgment of acquittal regarding the charge of attempted lewd and lascivious battery. We disagree, finding this case is controlled by Bist v. State, 35 So.3d 936 (Fla. 5th DCA 2010). Mr. Carlisle took significant steps toward consummating his desire to have sex with a person he believed was a thirteen-year-old boy. He conducted sexually explicit email and text exchanges and arranged to meet the boy and his father to engage in sexual activity. Beyond these preparatory acts, Mr. Carlisle drove to the boy’s home, arriving with lubricant to utilize in his sexual escapades. These acts, viewed in the light most favorable to the State, are sufficient to prove a prima facie case of attempted lewd and lascivious battery.

Mr. Carlisle also argues that it was error to deny his request for an evi-dentiary hearing to determine whether the use of restraints was necessary during his trial. We agree. As a general rule, a defendant has the right to appear before the jury free from physical restraints. See Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). The Sixth Amendment guarantee of the right to a fair trial means that an accused “is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.” Taylor v. Kentucky, 436 U.S. 478, 485, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978). However, while this right is not absolute, since it is an “inherently prejudicial practice,” the use of restraints is permissible only when justified “by an essential state interest specific to each trial.” Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986).

In Bello v. State, 547 So.2d 914 (Fla.1989), the court held that a hearing on necessity must precede the decision to shackle, if a defendant timely objects and requests an inquiry into the necessity for the restraints. Here, apparently the sheriff, not the court, made the decision to shackle Mr. Carlisle. The court should not blindly defer to the security measures established by the sheriff or other security official. See Jackson v. State, 698 So.2d 1299, 1302 (Fla. 4th DCA 1997); McCoy v. State, 503 So.2d 371 (Fla. 5th DCA 1987). Shackling must not be done absent some showing of necessity. Bello, 547 So.2d at 918. That did not occur here. Mr. Car-lisle’s request for a hearing should have been granted.

While the trial court erred in requiring Mr. Carlisle to be shackled in the jury’s presence, the error was harmless. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (stating harmless error test places burden on state to prove beyond reasonable doubt that error complained of did not contribute to resulting verdict). Here, the court took action to limit the jury’s awareness of the shackles. Further, the evidence was not in substantial dispute. The jury had copies of the relevant emails and text messages, together with Mr. Carlisle’s inculpatory statement. The trial court’s error in failing to make a case-specific, individual assessment of the nature of any danger posed by the Mr. Car-lisle was harmless beyond a reasonable doubt. Accordingly, we affirm Mr. Car-lisle’s convictions.

AFFIRMED.

SAWAYA and COHEN, JJ., concur.

      . In deciding whether to physically restrain a defendant and what method to use, the court must balance its obligation to maintain courtroom safety against the risk "that the security measures may impair the defendant’s presumption of innocence.” Diaz v. State, 513 So.2d 1045, 1046 (Fla.1987). A court may order physical restraints only if it is found to be necessary to maintain the security of the courtroom. Id. Before ordering a defendant shackled at trial, the trial court must make a case-specific and individualized assessment that considers: (1) the defendant’s criminal history and the nature of the pending charges, with special attention to whether either involved violent acts; (2) whether the defendant has disrupted criminal proceedings in the past; and (3) whether the defendant has engaged in any threatening behavior. U.S. v. Talley, 315 Fed.Appx. 134, 145 (11th Cir.2008).


text:
    Brandon BIDDINGS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-4375.
    District Court of Appeal of Florida, Fifth District.
    Jan. 18, 2013.
    Christian Conrad, Orlando, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 2010-CF-3218-B, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, JACOBUS and BERGER, JJ., concur.


text:
    Ryan CAUDILL, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2316.
    District Court of Appeal of Florida, Fifth District.
    Jan. 18, 2013.
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Ryan Caudill appeals from the final judgment finding he violated his community control on a felony criminal mischief case. The State concedes error as it relates to the violation of condition 5 based on a positive urinalysis for cocaine. While the trial court found violations relating to the failure to pay restitution, it specifically stated that it would not impose sanctions for these violations. Thus, it becomes unnecessary to determine whether the evidence supported those violations.

The only remaining violation consisted of being out of place without the consent of the community control officer. We find the evidence was sufficient to support this violation. However, we remand to the trial court because, although the court made oral findings as to the various conditions of community control violated, it failed to enter a written order specifying the conditions violated. See Bell v. State, 60 So.3d 558, 558 (Fla. 5th DCA 2011) (remanding for entry of written order specifying conditions violated). Because we cannot ascertain from the face of the record what sentence the court would have handed down for this one violation, on remand the trial court must also determine whether the single violation merits the sentence imposed.

JUDGMENT VACATED; CASE REMANDED.

PALMER, LAWSON and COHEN, JJ„ concur.

      . Caudill was also on concurrent probation on two misdemeanor charges.


text:
    Dexter PRICE, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1428.
    District Court of Appeal of Florida, Fifth District.
    Jan. 18, 2013.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

See United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (holding permission to search can be obtained from third party who possessed common authority over or other sufficient relationship to premises or effects sought to be inspected; common authority does not rest on property interest, but rather on mutual use of property by persons generally having joint access or control for most purposes).

AFFIRMED.

ORFINGER, C.J., SAWAYAand COHEN, JJ., concur.


author: WARNER, J.

text:
    Roger GORHAM, Appellant, v. ZACHRY INDUSTRIAL, INC., Appellee.
    No. 4D11-2620.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2013.

      Kenneth B. Schwartz, West Palm Beach, for appellant.
    James H. Wyman of Hinshaw & Culbertson LLP, Fort Lauderdale, for appel-lee.
   WARNER, J.

Appellant challenges the trial court’s summary judgment in his personal injury claim against his employer. The trial court concluded that the employer had worker’s compensation immunity based upon the facts of the case. The appellant contends that material issues of fact remained as to whether he met the exception for employer immunity set forth in section 440.11, Florida Statutes. We agree with the trial court that, based upon the narrow exception adopted by the Legislature that an employer must know that its conduct is virtually certain to cause injury, the employer is entitled to immunity.

Appellant, Gorham, an employee of ap-pellee, Zachry Industrial, Inc., sued Za-chry in June 2008, alleging an intentional tort causing injury to appellant while he was working on a construction project. Zachry had contracted with Florida Power & Light (“FPL”) to build a natural gas plant in Loxahatchee, Florida. During the process of setting a wall at the plant, Gorham was injured. To avoid Zachry’s statutory worker’s compensation immunity from tort, he alleged in his complaint that Zachry “engaged in conduct that it knew based on explicit warnings specifically identifying a known danger was virtually certain to result in injury or death to [Gorham],” and that Gorham “was not aware of the risk because the danger was not apparent and [Zachry] deliberately concealed or misrepresented the danger so as to prevent [Gorham] from exercising informed judgment about whether to perform the work.” Gorham sought damages based on the accident.

The incident in which Gorham was injured occurred while Gorham was working as a rigger on the FPL power plant construction site. On the day of the accident, the crew was attempting to lift and place a nine-ton wall. Two cranes were available to lift the large pre-fabricated wall into place. A tag line to keep the wall from swaying as the crane lifted the wall was attached to the wall, and because of the danger of swaying, attention to the wind speed was very important. On the day before the incident, the general foreman cancelled this lift because the winds were over 20 miles per hour.

That morning, the general foreman and the supervising foreman conducted a safety meeting with the crew. They filled out a Safety Task Assignment form. The form contained questions such as “How Can I Get Hurt.” The supervisor filled in “Bad Weather.” Another entry asked “How Can I Keep From Getting Hurt,” and the supervisor wrote, “Watch for lightning & high winds.” The entire crew, including Gorham, signed the form.

The morning of the incident Gorham participated in the first lift, in which the wall was raised slightly. Gorham said he didn’t feel any wind. The crane operator could not check the wind speed, however, because his crane did not have an anemometer, although he noted that there was no wind at 10:15 a.m. Even so, the crane operator radioed the general foreman to ascertain if he had checked the wind speed, who said that he had, and the speed was 16-18 miles per hour. The crane operator, however, recalled that the foreman told him the speed was 12-15 miles per hour.

At the time of the lift, Gorham was on the tag line. The general foreman sounded the horn, meaning that the lift would commence. After the wall was vertical, Gorham walked over to help others disconnect shackles off the wall. The crane operator began to move the wall alongside the cooling tower near the site, and once the wall got into that area, “[t]he wind owned it.” Gorham tried to stabilize the wall, which then began dragging Gorham.

The crane operator sounded the emergency horn, which means that “everybody is supposed to run” and “[l]et it go.” Gor-ham, however, did not let go, grabbed a rope around his arm, and wrapped his arm ai’ound the tag line. The crane operator pulled the swinging wall up against the stack to stop the movement. The operator told the general foreman that the wind grabbed the wall as it came around the corner and that Gorham was holding onto the rope at the time. Gorham received significant injuries to his arm.

The crane operator waited for the wind to die down for forty-five minutes to an hour and then made the second attempt. In the meantime, he checked the wind again, which was varying between 5 and 25 mph. The wind continued to cause difficulties in completing the second lift.

In his deposition, Gorham testified that he thought that the general foreman had not checked the wind speed, even though the crane operator had called him for a check. Gorham was certain that no one checked the wind speed, except for at 8 a.m. that morning, while the lift occurred around noon. He testified, however, that because he was on the tag line (which would be more dangerous in higher winds), he, too, asked the general foreman to check the wind, although he did not believe that the foreman actually checked the wind.

Contrary to Gorham’s testimony, the general foreman said that Gorham had not personally asked him to check the winds. Nevertheless, he had checked the winds as requested by the supervising foreman, and they were at 16-18 miles per hour. As noted above, the crane operator recollected that the general foreman had reported winds between 12 to 15 miles per hour, because he would not have made the lift if the winds were 18 miles per hour. Gor-ham testified that it was the crane operator who told him after the incident that the winds had not been checked.

Gorham admitted that “[t]he wind is the first” danger in performing such a lift, since it “is always a factor.” He said, “The weather is 90 percent of it.” He admitted that he had always been aware of these dangers. However, Gorham testified that even with this knowledge, he “counted on [the foreman] to tell me, either make the lift or not make the lift.” Additionally, Gorham stated that even though he thought the wind speed “had to be over 30 miles an hour,” he “was kind of under the impression that the wind speed was fine because of what I got from my general foreman ... that the wind was fine is exactly what I was told.” Before the lift, however, another crew member and Gor-ham had a conversation in which both agreed that while there may not be a problem with the wind standing the wall up, there may be a problem setting it.

However, Gorham also testified that the general foreman “may have” told him that the wind speed was 12 or 18 miles per hour, at which point Gorham would have admittedly gone ahead with the lift. Gor-ham also acknowledged that when he was walking the entire path of the lift before the lift, he observed sand blowing off the ground “[r]ight in front of the crane,” which made him believe that “[t]he wind was too high through the whole thing.”

Zachry moved for summary judgment. In its motion, Zachry argued that there are no disputed issues of material fact on the question of whether it was entitled to immunity under section 440.11(1), Florida Statutes, which provides for workers’ compensation immunity when the plaintiff is provided with workers’ compensation. After a lengthy hearing on all the issues, the court granted the summary judgment, ruling that Gorham did not demonstrate the statutory requirements for the exception to workers’ compensation immunity. First, the employer did not know, as a result of an explicit warning of a known danger, that there was a virtual certainty that injury or death would occur as a result of the lift. Second, Gorham was aware of the risks involved, and no evidence showed that the employer deliberately misled him into taking a risk. Gor-ham appeals this summary judgment.

We review such a summary judgment de novo. Bender v. CareGivers of Am., Inc., 42 So.3d 893, 894 (Fla. 4th DCA 2010). “When reviewing a ruling on summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party; the burden is upon the moving party to show conclusively the complete absence of any genuine issue of material fact.” Harvey v. Deutsche Bank Nat. Trust Co., 69 So.3d 300, 303 (Fla. 4th DCA 2011). In considering a summary judgment, the trial court determines only whether the moving party has proved a negative — the non-existence of a material fact. Winston Park, Ltd. v. City of Coconut Creek, 872 So.2d 415, 418 (Fla. 4th DCA 2004).

Section 440.11, Florida Statutes, provides for immunity of an employer from personal injury suits for work-related injuries. It also includes an exception for intentional torts:

The liability of an employer ... shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee ... except ... [w]hen an employer commits an intentional tort that causes the injury or death of the employee. For purposes of this paragraph, an employer’s actions shall be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence, that[ ] ... [t]he employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

§ 440.11(l)(b)2., Fla. Stat. Thus, the elements which the employee must prove for the intentional tort exemption to workers compensation immunity are: 1) employer knowledge of a known danger, based upon prior similar accidents or explicit warnings specifically identifying the danger that was virtually certain to cause injury or death to the employee; 2) the employee was not aware of the danger, because it was not apparent; and 3) deliberate concealment or misrepresentation by the employer, preventing employee from exercising informed judgment as to whether to perform the work. Id. See also Fla. Std. Jury Instr. (Civ.) 414.5. All three elements must be proved by clear and convincing evidence to overcome statutory immunity of the employer.

“Essentially, under this no-fault system, the employee gives up a right to a common-law action for negligence in exchange for strict liability and the rapid recovery of benefits.” Turner v. PCR, Inc., 754 So.2d 683, 686 (Fla.2000). The language of the current version of the statute, which is applicable in this case, was adopted by the Legislature in 2003 as a reaction to Turner, in which the court adopted an objective, but less stringent, construction of the intentional tort exception. Our supreme court acknowledged that the virtual certainty standard of employer conduct adopted by the Legislature is more strict than the standard of Turner. See Travelers Indent. Co. v. PCR Inc., 889 So.2d 779 (Fla.2004). The court compared it to the standard used in New Jersey under a similar law:

This newly enacted, virtual-certainty standard is similar to the standard adopted by the New Jersey Supreme Court in Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 501 A.2d 505 (1985)....
The strictness of the Millison standard (and its similarity to Florida’s newly enacted, virtual-certainty standard) was revealed not only by the New Jersey Supreme Court’s articulation, but also by its application of the standard. Millison held that the employees’ claim that their employer knowingly allowed them to be exposed to asbestos and concealed from them the known dangers of such exposure “c[a]me up short of the ‘substantial certainty5 needed to find an intentional wrong resulting in avoidance of the exclusive-remedy bar of the compensation statute.” 501 A.2d at 514-15. By contrast, the court held that the employees’ second claim did meet the standard. That claim alleged that the employer (through workplace physical examinations performed by company doctors) learned that the employees were suffering from asbestos-related diseases and fraudulently concealed this fact from the employees. Id. at 516 (“These allegations go well beyond failing to warn of potentially-dangerous conditions or intentionally exposing workers to the risks of disease. There is a difference between, on the one hand, tolerating in the workplace conditions that will result in a certain number of injuries or illnesses, and, on the other, actively misleading the employees who have already fallen victim to those risks of the workplace.... Such intentionally-deceitful action goes beyond the bargain struck by the Compensation Act.”).

Id. at 783 n. 5. Millison relied on Prosser on Torts and its definition of intentional conduct:

“[T]he mere knowledge and appreciation of a risk-something short of substantial certainty-is not intent. The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong.”

501 A.2d at 514 (quoting W. Prosser & W. Keeton, The Law of Torts § 8, at 36 (5th ed.1984)). Our Legislature has taken this one step further and required virtual certainty, even more stringent than substantial certainty.

Based on this strict standard, Za-chry met its obligation of proving the nonexistence of the elements supporting an exclusion from statutory immunity. No evidence supports the requirement that “[t]he employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee.” § 440.11(l)(b)2., Fla. Stat. To prove that, there must be evidence that Zachry, through its foreman, knew that the wind speed was in excess of what was safe to perform the lift and that lifting in that condition would with virtual certainty produce injury or death. While there is a dispute as to whether the foreman even took readings, taking the evidence in favor of Gorham, it can be said that he did not take the wind readings and allowed the lift to occur not knowing what the wind speed was.

However, there is no evidence that such a lift would with virtual certainty cause injury. Indeed, that afternoon the lift was performed without any injuries, even in increasing wind speeds. The employer’s conduct may be grossly negligent, but as noted in Prosser, it is not intentional. Za-chry writes in its brief, “Gorham in essence alleged nothing more than withholding knowledge of a potentially dangerous condition.... Even if he had been able to establish as much, this is patently insufficient to show conduct that is ‘virtually certain’ to result in injury or death.” We agree.

Because the employer furnishes workers compensation to its employees on a strict liability basis, the exception to immunity from suit was drawn narrowly by the Legislature. Indeed, after Turner, the Legislature adopted an extremely strict exception which, we suspect, few employees can meet. To date, we have not found, nor has a case been cited to us, where an employer has lost its immunity for its conduct.

Written in the conjunctive, the statute requires satisfaction of all three of its elements to warrant an exception to the employer’s statutory immunity. As the evidence conclusively shows the absence of a material fact on the second element, the trial court correctly entered summary judgment for the employer.

Affirmed.

STEVENSON, J„ and STONE, BARRY J., Senior Judge, concur.


author: ROTHENBERG, J.

text:
    L.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-704.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2013.
    Carlos J. Martinez, Public Defender, and Kathryn J. Strobach, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, and Jacob Addicott, Certified Legal Intern, for appellee.
    Before SHEPHERD and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

L.C. appeals an order withholding adjudication of delinquency and placing him on probation, contending the trial court erred by denying his motion to suppress marijuana found on his person following a pat-down search. We affirm.

Officer Rivers testified that he saw L.C. walking down a street not far from a high school during school hours; L.C. appeared to be young; and L.C. was carrying a book bag. Officer Rivers conducted a Terry stop, which L.C. acknowledges was lawful, to inquire into the possibility that L.C. was truant. See D.O. v. State, 77 So.3d 787, 790 (Fla. 3d DCA 2011) (“Law enforcement, in a very real sense, fulfills a role as a ‘community caretaker’ when they encounter truants, child runaways, children locked out of their home, and children beyond the control of their parents. They have not only the authority, but also a statutory obligation, to quickly reunite the child with their parent or guardian, or return the child to school or the appropriate agency that can provide the services needed in light of the individual circumstances.”).

At trial, Officer Rivers explained that when he stops a child whom he believes is truant, he attempts to ascertain whether the child has permission to be out of school, such as participating in a work study program or having written permission from a parent to go to a doctor appointment. In response to Officer Rivers’ inquiry, L.C. gave “some story” as to why he did not have to be in school, but the “story” did not “sit right with” Officer Rivers. Therefore, prior to placing L.C. into the police vehicle, Officer Rivers conducted a pat-down search for officer safety. Based on his years of experience, Officer Rivers immediately recognized that the item he felt was marijuana, and thereafter, retrieved the marijuana from L.C.’s pocket.

In challenging the denial of his motion to suppress, L.C. contends Officer Rivers did not have a basis to conduct a pat-down search for officer safety because Officer Rivers did not confirm that L.C. was, in fact, truant, and therefore, Officer Rivers did not have the authority to take L.C. into “custody” as set forth in section 984.13(l)(b), Florida Statutes (2011). We disagree.

Section 984.13(l)(b) permits a law enforcement officer to take a child into custody when the officer has “reasonable grounds to believe” the child is truant. Specifically, section 984.13(l)(b) provides:

(1) A child may be taken into custody:
(b) By a law enforcement officer when the officer has reasonable grounds to believe that the child is absent from school without authorization or is suspended or expelled and is not in the presence of his or her parent or legal guardian, for the purpose of delivering the child without unreasonable delay to the appropriate school system site. For the purpose of this paragraph, “school system site” includes, but is not limited to, a center approved by the superintendent of schools for the purpose of counseling students and referring them back to the school system or an approved alternative to a suspension or expulsion program. If a student is suspended or expelled from school without assignment to an alternative school placement, the law enforcement officer shall deliver the child to the parent or legal guardian, to a location determined by the parent or guardian, or to a designated truancy interdiction site until the parent or guardian can be located.

In the instant case, the evidence presented at trial demonstrates that Officer Rivers observed L.C., who appeared to be young and carried a book bag, walking down a street near a high school during school hours. Believing that L.C. was truant from school, Officer Rivers stopped L.C. to inquire. When L.C.’s explanation did not make sense, Officer Rivers took L.C. into “custody” and conducted a pat-down before placing him in his patrol car to be transported to school. Therefore, based on the totality of these circumstances, Officer Rivers had the necessary “reasonable grounds to believe” L.C. was “absent from school without authorization”; the State was not required to present evidence that Officer Rivers “confirmed” that L.C. was truant; and the pat-down prior to placing L.C. in Officer Rivers’ police vehicle in order to transport L.C. to school was lawful. Accordingly, we affirm the order withholding adjudication of delinquency and placing L.C. on probation, concluding the trial court correctly denied L.C.’s motion to suppress.

Affirmed.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


author: CORTINAS, J. SHEPHERD, J.,

text:
    AVENTURA MANAGEMENT, LLC, a Florida Limited Liability Company, Appellant, v. SPIAGGIA OCEAN CONDOMINIUM ASSOCIATION, INC., a Florida Non-Profit Corporation, Appellee.
    No. 3D11-2545.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2013.
    Stratton & Roman and Douglas D. Stratton, Miami Beach, and Brett Fein-stein, Miami Beach, for appellant.
    Ramon C. Palacio, Ramon C. Palacio; Cole, Scott & Kissane and Benjamin M. Esco, Miami; Doug H. Stein, Miami Beach, for appellee.
    Before SHEPHERD and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   CORTINAS, J.

Aventura Management, LLC (Appellant) seeks review of a final order granting summary judgment to Spiaggia Ocean Condominium Association, Inc. (Appellee). We reverse.

In July 2008, Appellee initiated lien foreclosure proceedings against the owner of unit # 402 (the Unit) in the Spiaggia Ocean Condominium located at 9499 Collins Avenue in Surfside. In July of 2009, Appellee obtained a default final judgment of foreclosure and a foreclosure sale was scheduled for December 17, 2009. In September 2009, the holder of the first mortgage on the Unit, the Bank of New York (the Bank), initiated foreclosure proceedings against the owner and named Appel-lee as a defendant.

The first mortgage far exceeded the value of the Unit. At auction, Appellee placed the sole bid and took title subject to the first mortgage held by the Bank. Appellee then proceeded to rent the Unit. The Bank subsequently obtained a final judgment of foreclosure, and a second foreclosure sale was scheduled on September 30, 2010. Appellant was the successful bidder and obtained title to the Unit, at which point Appellee relinquished its ownership interest.

After Appellant had acquired the Unit, Appellee attempted to recover from Appellant the past due assessments, late fees, and interest that had accrued since the original owner defaulted. Appellee maintained that, as third party purchaser, Appellant was liable under section 718.116(l)(a), Florida Statutes (2009) (the Statute), which provides in pertinent part:

A unit owner, regardless of how his or her title has been acquired, including by purchase at a foreclosure sale or by deed in lieu of foreclosure, is liable for all assessments which come due while he or she is the unit owner. Additionally, a unit owner is jointly and severally liable with the previous owner for all unpaid assessments that came due up to the time of transfer of title.

After receiving a demand for payment, Appellant claimed that it was not liable for the past due assessments. Rather, Appellant argued that as an intervening owner between the prior owner and Appellant, Appellee was responsible for the assessments owed by the previous owner. Appellant brought a declaratory judgment action seeking an interpretation of the Statute, arguing that it was liable only for assessments accruing after it took title to the Unit. Both parties moved for summary judgment, and the trial court granted Appellee’s motion, ruling that Appel-lee’s lien did not merge with the certificate of title it was issued in connection with its foreclosure action, and that Appellant was obligated to pay all amounts owed on the Unit. The trial court further held that Appellee was not jointly and severally liable to Appellant for any amounts. This appeal followed.

The Statute clearly provides that “a unit owner is jointly and severally liable with the previous owner for all unpaid assessments that came due up to the time of transfer of title.” § 718.116(l)(a) (emphasis added). Appellee was the previous owner of the Unit. The plain language of the Statute does not state or suggest that an exception is to be made when the previous owner is the condominium association. Appellee raises three arguments against following the plain meaning of the Statute, none of which are persuasive.

First, Appellee argues that its lien did not merge with the certificate of title issued at the December 2009 foreclosure sale. Merger exists, according to Appel-lee, only where the parties demonstrate a clear intent for merger to take place. See Lassiter v. Kaufman, 581 So.2d 147, 148 (Fla.1991) (“[A]n intention that a transaction operate as merger is essential to a merger in equity.”); Contos v. Lipsky, 433 So.2d 1242, 1245 (Fla. 3d DCA 1983) (in the absence of a showing of express or implied intent, a court “must presume that the lessee ... intended the result most beneficial to her, that is, no merger”). Lassiter and Contos, however, do not involve mortgage foreclosure actions. It is indisputable that a mortgage merges with a final judgment of foreclosure and is extinguished by the sale of the underlying property. See, e.g., One 79th St. Estates, Inc. v. Am. Inv. Servs., 47 So.3d 886, 889 (Fla. 3d DCA 2010) (“When a mortgage is foreclosed, the mortgage is ‘merged’ into the final judgment and loses its separate identity.”); Nack Holdings, LLC v. Kalb, 13 So.3d 92, 94 n. 2 (Fla. 3d DCA 2009) (“The mortgage is merged into the judgment, is thereby extinguished, and ‘loses its identity.” ’) (citation omitted). Appellee is correct that the hen survives the foreclosure; merger of the lien with the final judgment is incompatible with the liabilities established by the Statute. However, while the Statute clearly indicates that the hen survives a foreclosure, it just as clearly indicates that the prior owner is jointly and severally liable with the current owner for all past due assessments up to the time of the transfer of title.

Appellee also argues that an exception should be read into the Statute when the condominium association itself is an owner, to avoid an otherwise absurd result. The Statute is one portion of a general framework, according to Appellee, designed to provide condominium associations with a mechanism for the preservation of their rights with regard to fee assessments. To that end, section 718.116(5)(a) provides “[t]he association has a hen on each condominium parcel to secure the payments of assessments.” § 718.116(5)(a), Fla. Stat. (2009). Similarly, section 718.116(6)(a) states, in pertinent part, “[t]he association may bring an action in its name to foreclose a hen for assessments in the manner a mortgage of real property is foreclosed and may also bring an action to recover a money judgment for unpaid assessments without waiving any claim of hen.” § 718.116(6)(a), Fla. Stat. (2009). The Association posits that the sole purpose of this statutory scheme is to provide condominium associations with the means by which they can protect their interests, and that it would be absurd to apply the Statute in such a way as to deprive a condominium association of its right to collect past due assessments.

This argument fails. The Statute provides a remedy for condominium associations faced with owners in default, establishing the class of persons from whom a condominium association may demand relief for past due assessments. That class includes current owners and prior owners. However, the Statute nowhere requires a condominium association to position itself as the current or prior owner. That outcome is the result of external market forces, namely that condominium associations may find, as Appellee did, that no one is willing to bid on a foreclosed unit at a foreclosure sale.

Finally, Appellee argues that Appellant was on notice of the amounts owed on the Unit, for which it would be held liable. When Appellant purchased the Unit, it had access to the Declaration of Condominium of Spiaggia Ocean Condominium, Appel-lee’s claim of lien, Appellee’s lis pendens, and Appellee’s default final judgment of foreclosure against the original owner. This argument, too, fails. Nothing in the record demonstrates that Appellant was unambiguously informed by Appellee that liability for past due assessments would be borne entirely by Appellant and the original defaulting owner, and that Appellant would not have recourse to the statutorily established joint and several liability.

Reversed.

SCHWARTZ, Senior Judge, concurs.

SHEPHERD, J.,

dissenting.

I respectfully dissent.

The majority opinion presents a conundrum. It first concludes, correctly in my view, that Spiagga Ocean Condominium Association’s statutory lien, afforded by section 718.116(5)(a), Florida Statutes (2008), “survives the foreclosure.” Maj. Op. at 5; see also Lassiter v. Kaufman, 581 So.2d 147, 148 (Fla.1991); Contos v. Lipsky, 433 So.2d 1242, 1245-46 (Fla. 3d DCA 1983). It then invokes subsection (l)(a) of the same statute, stating that “the prior owner,” which it interprets to be the Association, “is jointly and severally liable with the current owner for all past due assessments up to the time of the transfer of title” to the Association. The opinion begs the question: what happens to the lien? I gather the majority would respond that it is forever suspended. However, there exists a way to give meaning to both the statutory lien in subsection 5(a) and the statutory language of subsection (l)(a).

The way begins with the application of the familiar rule that, wherever possible, construction of any law or constitutional provision is favored which gives effect to every clause and every part thereof. Burnsed v. Seaboard Coastline R.R. Co., 290 So.2d 13, 16 (Fla.1974) (constitutional provisions); Goode v. State, 50 Fla. 45, 45, 39 So. 461, 463 (1905) (statutes). A corollary to this rule, of course, is that a construction that would leave without effect part of the language used should be rejected if possible. See State v. M.M., 407 So.2d 987, 990 (Fla. 4th DCA 1981).

Applying these rules to the case before us, it is apparent the fundamental purpose of the Legislature in promulgating section 718.116 was to assist condominium associations to be made whole in the collection of past due assessments, while at the same time not unduly impairing the value of collateral held by first mortgagees. In furtherance of this design, the Legislature has given condominium associations a statutory lien on each condominium unit over which it has jurisdiction, to secure payment of assessments without the necessity of filing a claim of lien in the public records, with the single exception of first mortgagees, where record notice is required. § 718.116(5)(a).

Thus, under the legislative scheme, third-party purchasers of condominium units, like Aventura Management, LLC, are subject to old-fashioned caveat emptor principles. Their protection lies in satisfying themselves before purchase, whether by contract or judicial sale, of the status of past-due assessments on the unit. To this end, section 718.116(8)(a), Florida Statutes (2008), obligates a condominium association, upon written request, to provide a statement to “a unit owner or his or her designee” of all assessments and other moneys owed to the Association by the unit owner with respect to the parcel.

Aventura Management, LLC and the majority focus almost exclusively on subsection (l)(a) of section 718.116 of the statute. However, statutory interpretation is a holistic endeavor. I find no incongruity or inconsistency in the notion of joint and several liability between Aventura Management, LLC and the condominium association and execution by the Association on its admittedly existing statutory lien right. The former sounds in law; the latter is an equitable action. Section 718.116 expressly authorizes the condominium association to proceed in the alternative as befits its interests. See § 718.116(6)(a), Fla. Stat. (2008) (“The association may bring an action in its name to foreclose a lien for assessments in the manner a mortgage of real property is foreclosed and may also bring an action to recover a money judgment for unpaid assessments without waiving any claim of hen.”) (emphasis added). Cf. Royal Palm Corp. Ctr. Ass’n v. PNC Bank, NA, 89 So.3d 923, 929 (Fla. 4th DCA 2012) (explaining that under the traditional common law, upon a default by the mortgagor, a mortgagee “may sue either on the note or foreclose on the mortgage, and may pursue all remedies “at the same time or consequently”).

The order of the trial court finds the Association’s hen survives the foreclosure and sale by the first mortgagee. It also finds the acquisition of title by Spiagga Ocean Condominium Association, Inc. does not operate to reheve Aventura Management, LLC of its liability for unpaid assessments prior to the time it took title to the unit. The statute could be clearer. However, based upon my study, I believe the decision of the trial court most accurately reflects the intention of the legislature as expressed by the statute. I would affirm the decision of the trial court.

      . Additionally, Appellee demanded reasonable attorneys’ fees and costs incurred by Appellee in its attempts to collect the past due assessments.

      . In its complaint, Appellant also sought unjust enrichment and statutory damages.

      .Appellant was found liable for all amounts owed as of the date it was issued the certificate of title, including amounts accruing while Appellee held title, less all amounts received by Appellee through rents or other mitigation efforts.

      . We note, however, that nothing in the Statute precludes entities, such as appellee, from attempting to collect unpaid assessments from the prior owner from whom it purchased the Unit, subject of course to any applicable statute of limitations. § 718.116(l)(a), Fla. Stat. (2009). Joint and several liability for unpaid assessments between the current and prior owner is established by the Statute "at the time of transfer of title,” and it is not extinguished by subsequent transfers of title.

      . The portion of the Declaration of Condominium cited by Appellee contains identical language to section 718.116(6)(a), stating, in pertinent part, “The association may bring an action in its name to foreclose a lien for assessments in the manner a mortgage of real property is foreclosed and may also bring an action to recover a money judgment for unpaid assessments without waiving any claim of lien.”

      . Indeed, I think it quite possible, but not necessary, for me to parse here, that the Legislature might well have meant the phrase "the previous owner” in section 718.116(l)(a) to include any previous owner. The weight placed by the majority on the definite article might well be greater than it legally can bear.


author: LOGUE, J.

text:
    Michael McCLAIN, Appellant, v. Madlen McCLAIN, Appellee.
    No. 3D11-583.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2013.

      Quintairos, Prieto, Wood & Boyer, P.A., and James J. McNally, Miami, for appellant.
    Madlen McClain, in proper person.
    Before SALTER, FERNANDEZ, and LOGUE, JJ.
   LOGUE, J.

Michael McClain, the husband, appeals from the portion of the final judgment of dissolution of marriage that granted permanent periodic alimony to Madlen McClain, the wife. Because the wife never asked for alimony in her pleadings, we vacate the portion of the final judgment of dissolution which awarded alimony.

The husband filed a petition for dissolution of marriage seeking equitable distribution, exclusive possession of the marital home, shared parental responsibility, and child support. The wife, who was represented by counsel in the court below, filed an answer to the petition which did not seek alimony or spousal support. At one point in the proceedings, the wife moved to amend her answer to include counterclaims for alimony and for damages resulting from an alleged tort. But the wife never obtained an order on that motion. As trial approached, the wife filed a pretrial statement which fisted “child support, child time-sharing, and division of marital property”-but not alimony-as the issues to be tried.

At the end of the trial, the judge indicated that he intended to award alimony. The husband objected specifically on the basis that alimony “was never plead and there is no counterclaim asking for alimony.” The final judgment of dissolution, nevertheless, required the husband to pay $1,000 a month in alimony “until Wife remarries, lives in a supportive relationship as that term is defined by statute or dies.”

The husband appealed the final judgment of dissolution. We agree with the husband that the trial court erred in awarding alimony in these circumstances. “A court is not at liberty to award alimony where the benefitting spouse has failed to seek such relief in the pleadings.” Hines v. Hines, 494 So.2d 297, 297 (Fla. 3d DCA 1986); see also Palumbo v. Palumbo, 576 So.2d 799, 800 (Fla. 1st DCA 1991); Massey v. Massey, 478 So.2d 478, 479 (Fla. 2d DCA 1985); Cooper v. Cooper, 406 So.2d 1223, 1224 (Fla. 4th DCA 1981). Unless and until is granted, the mere filing of a motion to amend the pleadings does not constitute an actual amendment to the pleadings. Accordingly, the portion of the final judgment awarding alimony is vacated. The remainder is affirmed.

Reversed in part, affirmed in part.


text:
    Malcolm HALL, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D11-4467, 1D11-4692.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2013.

      Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We previously consolidated these cases for briefing purposes. We now consolidate them for disposition on the merits.

In case number 1D11-4467, Appellant seeks review of his judgment and sentence for aggravated child abuse. In case number 1D11-4692, Appellant seeks review of the order revoking his probation based on this new law offense as well as the resulting judgment and sentence in the 2004 case for which he was on probation.

We find no merit in Appellant’s claim that the trial court abused its discretion in allowing Dr. Moorer to provide expert testimony concerning the child’s head injury, and we affirm Appellant’s conviction for aggravated child abuse and the revocation of his probation based on this new law offense without further comment. We do, however, find merit in Appellant’s sentencing error claim.

At the time of the offense giving rise to these cases, Appellant was on probation for a 2004 case involving three counts of burglary of a dwelling, three counts of dealing in stolen property, two counts of defrauding a pawnbroker, and one count of criminal use of personal identification. At the sentencing hearing in these cases, the trial court revoked Appellant’s probation on all of the counts in the 2004 case and orally sentenced him to 15 years in prison on the burglary counts and to time served on the remaining counts. The revocation order and the judgment and sentence in the 2004 case conformed to the oral pronouncement on the burglary counts, but sentenced Appellant to 5 years in prison on the remaining counts.

While this appeal was pending and before the initial brief was filed, Appellant filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) to correct the discrepancy between the oral pronouncement and the written sentence. The motion was filed on March 16, 2012, and on May 25, 2012, the trial court clerk filed a supplemental record with this court certifying that no order had been entered on the motion. The State asserted in its answer brief that this issue is moot because “the trial court entered an order on June 20, 2011[sic] granting Appellant’s motion to correct sentencing error.” The record contains no such order.

Rule 3.800(b)(2)(B) provides that a motion to correct sentencing error filed while an appeal is pending is to be resolved in accordance with the procedures in subdivision (b)(1)(B) of the rule. That subdivision requires the trial court to file an order on the motion within 60 days and provides that the motion is deemed denied if no order is filed within that timeframe. See Fla. R.Crim. P. 3.800(b)(1)(B) (“If no order is filed within 60 days, the motion shall be considered denied.”).

Here, the 60-day period expired on May 15, 2012. The trial court clerk certified that no order was entered on the motion prior to that date and, thus, the motion was deemed denied. Moreover, even if the State was correct that the trial court entered an order granting the motion on June 20, 2012, that order was a nullity because it was entered after the 60-day period in rule 3.800(b)(1)(B). See Calidonio v. State, 951 So.2d 87, 88 (Fla. 1st DCA 2007) (“[A] trial court has no jurisdiction to rule on a rule 3.800(b) motion after 60 days and an order filed more than 60 days after the motion was filed is a nullity.”). Thus, the sentencing error claim framed by Appellant’s rule 3.800(b)(2) motion is properly before this court and is not moot.

On the merits of the claim, it is well settled that the trial court’s oral pronouncement of sentence controls over the written sentencing order. See Williams v. State, 957 So.2d 600, 603 (Fla.2007). Here, the order revoking Appellant’s probation and the resulting judgment and sentence in the 2004 case conformed to the oral pronouncement of sentence with respect to the burglary counts, but not the remaining counts. Accordingly, in case number 1D11-4692, we reverse the sentences imposed on all counts other than the burglary counts and remand with directions that the revocation order and the judgment and sentence in the 2004 case be corrected to conform to the oral pronouncement on the other counts. We affirm the revocation order and the judgment and sentence in the 2004 case in all other respects, and we also affirm the judgment and sentence in case number 1D11-4467.

AFFIRMED in part; REVERSED in part; REMANDED with directions.

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


text:
    Somchai MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1211.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2013.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412 (Fla.2012); see also Shelton v. Secretary, Department of Corrections, 691 F.3d 1348 (11th Cir.2012) petition for cert. filed, No. 12-7430 (U.S. Nov. 20, 2012).

WOLF, THOMAS, and CLARK, JJ., concur.


text:
    Lee Allen DAVIS, Appellant, v. DUETSCHE BANK NATIONAL TRUST COMPANY, as Trustee of Ameriquest Mortgage Securities, Inc. Asset Backed Pass Through Certificates, Series 2005-R2 under the Pooling and Servicing Agreement dated as of March 1, 2055, without Recorse, Meta Forrester, a/k/a Meta E. Forrester; Meta Lehman; and any unknown Heirs, Devises, Grantees, Creditors, and other unknown persons or unknown spouses claiming by, through and under any of the above-named Defendants, Appellees.
    No. 1D12-2235.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2013.
    Lee Allen Davis, pro se, Appellant.
    Butler & Hosch, P.A., Orlando (no appearance), for Appellees.
   PER CURIAM.

DISMISSED. See Bruno v. A.E. Handy & Assoc., Inc., 787 So.2d 251, 252 (Fla. 5th DCA 2001) (contrasting default judgment with interlocutory “simple default” that contained no award of damages or other affirmative relief). All pending motions are denied as moot.

PADOVANO, ROWE, and RAY, JJ., concur.


text:
    Lee Allen DAVIS and Meta E. Forrester, Appellant, v. Meta LEHMAN; Unknown Tenant 1, and Any Unknown Heirs, Devisees, Grantees, Creditors, and Other Unknown Persons or Unknown Spouses Claiming by, through and Under Any of the Above-Named Defendants, Duetsche Bank National Trust Company, as Trustee of Ameriquest Mortgage Securities, Inc. Asset Backed Pass through Certificates, Series 2005-R2 Under the Pooling and Servicing Agreement Dated as of March 1, 2005 Without Recourse, Appellee.
    No. 1D12-2347.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2013.
    Lee Allen Davis and Meta E. Forrester, pro se, Appellants.
    Butler & Hosch, P.A., Orlando (no appearance), for Appellees.
   PER CURIAM.

DISMISSED. See Bruno v. A.E. Handy & Assoc., Inc., 787 So.2d 251, 252 (Fla. 5th DCA 2001) (contrasting default judgment with interlocutory “simple default” that contained no award of damages or other affirmative relief). All pending motions are denied as moot.

PADOVANO, ROWE, and RAY, JJ„ concur.


text:
    Kenneth WIGNER, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6827.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2013.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412 (Fla.2012); Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011), review denied, 104 So.3d 1083 (Fla.2012).

BENTON, C.J., DAVIS, and ROBERTS, JJ., concur.


author: TORPY, J.

text:
    ORLANDO LAKE FOREST JOINT VENTURE, etc., Appellant, v. LAKE FOREST MASTER COMMUNITY, etc., Appellee.
    No. 5D12-1123.
    District Court of Appeal of Florida, Fifth District.
    Jan. 25, 2013.

      T. Todd Pittenger and Kelly J.H. Garcia of Akerman Senterfitt, Orlando, for Appellant.
    David A. Theriaque, Christopher F. Busch and S. Brent Spain of Theriaque & Spain, Tallahassee, for Appellee.
   TORPY, J.

In this dispute regarding the meaning of an agreement restricting the use and development of real property, we view the dispositive issue as whether the agreement restricts the development of the subject lots to a shopping center, thereby prohibiting its development as an apartment complex. Although the operative portion of the agreement makes no such restriction, the trial court concluded that a “WHEREAS” clause contained within the recital compels such a construction. After de novo review, we conclude that the unambiguous, operative portion of the agreement controls over the prefatory language in the recital. Alternatively, we conclude that, even if the whereas clause is considered in interpreting the agreement, it does not support the trial court’s construction of the agreement. Accordingly, we reverse the summary final judgment in favor of Appellee and remand this cause with instructions that the trial court enter summary judgment in favor of Appellant.

A detailed recitation of the facts is unnecessary to an understanding of our holding. In a nutshell, Appellant and Appellee are parties to an eighteen-page document labeled Declaration of Restrictions and Reciprocal Easement Agreement. The agreement affects five lots that were owned by Appellant at the time of its execution (Lots 1, 2, 3, 4 and Tract B) and an adjacent access road owned by Appellee over which easement rights were granted. The operative portion of the agreement is expressed in eleven sequentially numbered “Articles” addressing, inter alia, use restrictions and covenants, construction approvals, other covenants and obligations of Lot 1 owner, and covenants running with the land. Appellee concedes that these “operative” provisions, although delineating use restrictions and covenants on Appellant’s property, do not contain restrictions compelling the development of all or any portion of the property as a shopping center or for commercial purposes.

The center of the dispute involves the effect of the following “WHEREAS” clause located in the agreement’s introduction:

WHEREAS, in order to facilitate the development and integrated use of the Commercial Property as a shopping center (the “Shopping Center”), it is the intention of [Appellant] that this Agreement shall reserve and establish certain perpetual easements, agreements, rights and obligations by and among the future owners of Lots 1, 2, 3, and 4, and Tract B, to run with the land, as hereinafter more fully set forth.

Appellee urges that this whereas clause restricts development of Lots 1, 2, 3, 4 and Tract B to a shopping center. Although a portion of the property, specifically Lots 1 and 2, were developed as a shopping center, Appellant desires to develop a portion of Lot 3 as an apartment complex, a proposed use that Appellee claims is prohibited under the agreement without its consent. Appellee sought and obtained an injunction prohibiting the proposed use and development.

Even assuming that Appellee’s proffered construction of the whereas clause manifests an intent to restrict the development of all of Appellant’s property to a shopping center, we conclude that the whereas clause is prefatory and not binding. The agreement is clearly arranged in such a manner to separate the recital from the operative portions, which are expressed in detailed, numbered articles. Specific articles in the operative portion address development and use restrictions and covenants that run with the land. The operative portion of the document is both comprehensive and unambiguous. Under these circumstances, the prefatory language should not be considered to vary the unambiguous terms of the operative portion of the document. See Johnson v. Johnson, 725 So.2d 1209, 1212-13 (Fla. 3d DCA 1999) (holding that “whereas” clause is nonbinding on parties to contract and not operative provision of otherwise unambiguous agreement).

Alternatively, even were we to consider the prefatory language in this case, we do not construe it to unambiguously burden all or any portion of the lots in the manner argued by Appellee. A use restriction on land must be strictly construed in favor of unrestricted use of the land. McInerney v. Klovstad, 935 So.2d 529, 531 (Fla. 5th DCA 2006). Here, the prefatory statement that “hereinafter” enumerated use restrictions are intended to “facilitate” a particular development and use does nothing more than explain why the enumerated restrictions were imposed.

We need not address the propriety of Appellant’s unilateral amendment to the agreement because we conclude that the amendment was not necessary to authorize the property’s use as an apartment complex. It follows that Appellant could further restrict this use by limiting the number of units without the consent of Appellee.

We have not overlooked Appellee’s argument that Appellant’s subsequent conduct manifested an understanding that the agreement prohibits the proposed use. We reject this argument without further discussion. Nor do we deem Appellant’s admissions in its pleadings regarding the amendment to compel or support a different construction of the agreement.

REVERSED AND REMANDED.

SAWAYA and JACOBUS, JJ., concur.


text:
    Margarita QUINONES, as Personal, Etc., Appellant, v. Juanita Quinones DE JESUS et al., Appellee.
    No. 5D11-3425.
    District Court of Appeal of Florida, Fifth District.
    Jan. 25, 2013.
    Charles D. Hood, Jr., and Tamara R. Gaines, of Smith, Hood, Bigman, P.A., Daytona Beach, for Appellant.
    Linda C. Hankins, of Lowndes, Dros-dick, Doster, Kantor & Reed, P.A., Orlando, for Appellee.
   PER CURIAM.

The only issue raised in this appeal concerns the decedent’s domicile. Accordingly, the trial court’s findings of fact relating to domicile were the sole findings reviewed by this court. This court’s affirmance of the trial court’s determination that the decedent’s domicile was outside the state of Florida carries with it no imprimatur as to any unrelated findings by the trial court.

AFFIRMED.

SAWAYA, TORPY and JACOBUS, JJ., concur.


text:
    Theodore Demond PRESLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3467.
    District Court of Appeal of Florida, First District.
    Jan. 25, 2013.
    Nancy A. Daniels, Public Defender; Jamie N. Spivey and Steven L. Seliger, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412 (Fla.2012).

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


text:
    Derrick William FORGE, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0281.
    District Court of Appeal of Florida, First District.
    Jan. 25, 2013.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412 (Fla.2012).

ROBERTS, WETHERELL, and MARSTILLER, JJ., Concur.


text:
    Bryanne WHITE, Appellant, v. FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellee.
    No. 1D12-162.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2013.
    Marie A. Mattox, Tallahassee, for Appellant.
    Thomas M. Beason, General Counsel, and Marshall G. Wiseheart, Senior Assistant General Counsel, Tallahassee, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Tillery v. Fla. Dep’t of Juvenile Justice, 104 So.3d 1253 (Fla. 1st DCA 2013).

MARSTILLER, RAY and SWANSON, JJ., concur.


author: DAMOORGIAN, J.

text:
    Claudia J. FONG, on her behalf and on behalf of all those similarly situated, and Melanie I. Birken, on her behalf and on behalf of all those similarly situated, Appellants, v. Howard C. FORMAN, as Clerk of the Circuit Court, Appellee.
    No. 4D11-3675.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.

      George G. Mahfood of Broad and Cassel, Miami, and Carl H. Lida of The Law Office of Carl H. Lida, P.A., Plantation, for appellants.
    Susan F. Delegal and Donna M. Krusbe of Billing, Cochran, Lyles, Mauro & Ramsey, P.A., West Palm Beach, for appellee.
   DAMOORGIAN, J.

Claudia J. Fong and Melanie I. Birken, as representatives of a class of individuals (collectively referred to as Plaintiffs), appeal the trial court’s dismissal of their suit against Howard C. Forman, as the Clerk of the Circuit Court for the Seventeenth Judicial Circuit in Broward County. We affirm.

The events leading to this suit began when each Plaintiff was issued a non-criminal traffic citation in Broward County. After receiving their' citations, the Clerk sent Plaintiffs a “Ticket Bill of Rights” outlining their options to resolve the citations. Their options were: 1) pay the fine; 2) elect to attend driver improvement school; or 3) request a hearing. After none of the Plaintiffs chose to exercise any of these options within the allotted time period, the Clerk reported them to the Department of Highway Safety and Motor Vehicles (“DHSMV”), which in turn suspended their licenses. Plaintiffs were required to pay a fee to have their licenses reinstated.

Plaintiffs filed a class action suit against the Clerk. In their suit, they alleged that under section 318.14(1), Florida Statutes (1998), the Clerk was obligated to cite them to appear in front of an “official” before it could report them to the DHSMV. They further alleged that the Clerk’s failure to do so was the result of a “policy or practice” adopted by the Clerk. Plaintiffs sought restitution in the form of a refund for the administrative fees they were required to pay in conjunction with the suspension of their licenses, and a declaration that the Clerk’s “policy or practice” was illegal. The Clerk moved to dismiss the suit, arguing that the alleged “policy or practice” was set forth in an administrative order entered by the chief judge of the circuit court, and thus the Clerk was entitled to judicial immunity when effectuating that administrative order. Plaintiffs conceded that the Clerk was following an administrative order, but argued that the doctrine of judicial immunity was not applicable to the Clerk. The trial court found that judicial immunity barred the suit, and granted the Clerk’s motion to dismiss. This appeal follows.

We begin our analysis by clarifying what this suit is and is not about. Although it seems plain to us that the heart of Plaintiffs’ claim requires a determination as to the legality of the administrative order, Plaintiffs chose to forego challenging the source of their problem and instead tried to wage a collateral attack against the Clerk for doing as he was required. If Plaintiffs wanted to challenge the administrative order, they were required to do so via a writ of certiorari to the district court of appeal. 1-888-Traffic Schls. v. Chief Cir. Judge, Fourth Judicial Cir., 734 So.2d 413, 414 (Fla.1999) (proper method for challenging chief judge of judicial circuit’s jurisdiction to enter an administrative order was via writ of certiorari to the district court). Thus, the question presented is not whether the policies set forth in the administrative order are valid, but whether judicial immunity bars any suit against a quasi-judicial official who is performing a judicial act at a judge’s directive. We hold that it does.

The doctrine of judicial immunity “insures that judges are immune from liability for damages for acts committed within their judicial jurisdiction [and] is essential to the preservation of an independent judiciary.” Berry v. State, 400 So.2d 80, 82-83 (Fla. 4th DCA 1981). Judges enjoy absolute immunity for acts performed in the course of their judicial capacities unless they clearly act without jurisdiction. Id. at 83. This doctrine has been extended to quasi-judicial officials, such as a clerk of court, performing judicial acts. See Office of State Attorney, Fourth Judicial Cir. of Fla. v. Parrotino, 628 So.2d 1097, 1098 (Fla.1993) (doctrine of judicial immunity extends to state attorneys); Johnson v. Harris, 645 So.2d 96, 98 (Fla. 5th DCA 1994) (holding that doctrine of judicial immunity protected judge’s assistant).

In Fuller v. Truncate, 50 So.3d 25 (Fla. 1st DCA 2010), rev. denied, 59 So.3d 110 (Fla.2011), our sister court held that a quasi-judicial official following the directive of a judge is entitled to judicial immunity. In a situation factually identical to the instant case, a class of plaintiffs sued a clerk of court claiming that the clerk acted improperly by recommending to the DHSMV that their licenses be suspended -without first scheduling a hearing. Id. at 27. The clerk moved to dismiss the suit, arguing that he was following protocol established in an administrative order. Id. On appeal from an order denying the clerk’s motion to dismiss, the First District clarified that in Florida, judicial immunity applies to all forms of suits against judicial officials, not just suits for money damages. Id. at 29-30. It then held that the clerk was immune from suit because the chief judge of the circuit court’s “decision to recommend that the [DHSMV] suspend the licenses of certain cited drivers without first scheduling a court hearing” was a judicial act which the clerk of court carried out under the authority and direction of the administrative order. Id. at 28-29.

Although Plaintiffs attack the logic of Fuller, courts from other jurisdictions have reached the same conclusion. For example, in Kincaid v. Vail, 969 F.2d 594, 600 (7th Cir.1992), the Seventh Circuit held that a clerk following the directive of a judge is cloaked in judicial immunity. There, two plaintiffs filed suit against the clerk of court, alleging that the clerk of court wrongfully refused to accept their complaint and filing fees. Id. at 595. The clerk claimed immunity on the basis that he acted at a judge’s direction. Id. at 597-98. The district court granted summary judgment in the clerk’s favor, and the Seventh Circuit affirmed, holding that the clerk’s challenged actions “were done at judicial direction and therefore are nonme-chanical functions integral to the judicial process that are entitled to absolute immunity.” Id. at 601. See also Richman v. Sheahan, 270 F.Sd 430, 437 (7th Cir.2001) (noting that “for court personnel and adjuncts who do not exercise a discretionary function comparable to a judge’s, the justification for extending absolute immunity is most compelling when the lawsuit challenges conduct specifically directed by the judge-”).

We find Fuller to be directly on point and consistent with the established principle that a quasi-judicial official carrying out the directive of a judge is protected from suit by the doctrine of judicial immunity. Fuller, 50 So.3d at 28-29. The decision by the chief judge of the judicial circuit to forego citing the Plaintiffs to appear at a hearing before recommending that the DHSMV suspend their licenses was undoubtedly a judicial act. When the Clerk sent the notices to the DHSMV, it was performing that judicial act under the authority of the judge’s directive. Accordingly, the Clerk is immune from suit.

Affirmed.

MAY, C.J., and GERBER, J., concur.

      . Although the existence of the administrative order was not acknowledged within the four corners of the complaint, the trial court properly considered it since it was raised by the consent of the parties and judicial immunity implicates the court's subject matter jurisdiction. Seminole Tribe of Fla. v. McCor, 903 So.2d 353, 357 (Fla. 2d DCA 2005) (holding that it was proper for the court to go outside the four corners of the complaint when considering a motion to dismiss based on immunity); Morgan v. Dep't of Envtl. Prot., 98 So.3d 651, 653 (Fla. 3d DCA 2012) (“A trial court may look to facts gathered outside the pleadings, including affidavits, to determine subject matter jurisdiction.").


author: CIKLIN, J.

text:
    Gregory L. WILLIAMS, Appellant, v. Thomas OSKING, Appellee.
    No. 4D11-4818.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.

      Michael E. Conroy, Richard J. McAlpin and Craig P. Liszt of McAlpin Conroy, P.A., Miami, for appellant.
    Theresa Montalbano Bennett, B.C.S., Fort Lauderdale, for appellee.
   CIKLIN, J.

Gregory Williams appeals the denial of his motion to strike the jury panel following a potential juror’s negative comment regarding one of Williams’s expert witnesses. The trial court conducted an individual and sequestered examination of each prospective juror, and every juror that served in this case stated the comment would not affect the juror’s judgment. We determine that this procedure was adequate to ensure that the parties received a fair and impartial jury and thus conclude the trial court did not abuse its discretion in refusing to strike the panel.

This case arose from a boating accident. At a marina, Williams negligently steered his yacht into Thomas Osking’s sailboat, causing Osking to fall and injure his back. Osking filed suit against Williams, seeking recovery for, among other things, personal injuries resulting from the accident.

The case proceeded to trial on issues of comparative fault, damages, and the extent to which the accident aggravated Osking’s pre-existing spinal condition. One of Williams’s witnesses was a medical professional who evaluated Osking and was prepared to testify regarding Osking’s injuries.

During jury selection, the list of Williams’s prospective witnesses was read to the jury panel. When asked if he knew any of the potential witnesses, one of the prospective jurors stated he was familiar with Williams’s medical professional. The potential juror stated: “[M]y dad had a lawsuit against him. Well, I just thought about it. He kind of screwed my dad’s back up.” At sidebar, Williams moved to strike the entire thirty-seven-member panel because of the prospective juror’s comments. The court denied Williams’s motion to strike the panel but granted the cause challenge as to the prospective juror who made the comment.

Thereupon, the court and parties engaged in a day-long, individual, sequestered examination of each remaining member of the panel. Each panel member was asked whether the member heard the comment, whether hearing the comment would affect the member’s judgment of the medical professional’s expert testimony, and whether the member could apply the law fairly after hearing the comment. Every potential juror who expressed potential bias as a result of hearing the comment was struck for cause. The jurors that eventually served in the case stated they would be able to disregard the comment and apply the law fairly.

After the individual examination of each juror, Williams renewed his motion to strike the entire panel, which the court denied. The jury found that Williams was seventy-percent liable for the accident. After the verdict was returned, Williams moved for a new trial on several grounds, including the denial of the motion to strike the panel. The court denied the motion for new trial and entered final judgment in favor of Osking for over $500,000.

The denial of a motion to strike the jury panel is reviewed under the abuse of discretion standard. Brower v. State, 727 So.2d 1026, 1027 (Fla. 4th DCA 1999).

The trial court’s decision to conduct individually sequestered examinations of each juror was based on a procedure approved by this court. See id. In Brower, the defendant was on trial for two counts of first-degree murder and one count of armed robbery. During voir dire, prospective jurors were heard making comments such as “hang him,” “they ought to just hang him,” “[w]hy are we going through this? Where I come from, we would have just strung him up,” and “[tjhey’re going to have to prove to me that he did not do it.” Id. at 1026. Other prospective jurors exhibited behavior indicating they were not taking the proceedings seriously. All of the prospective jurors that made the offensive remarks were excused.

The defendant’s counsel moved to strike the entire panel, which the court denied. The court and defendant’s counsel then conducted extensive, individual, sequestered examinations of the potential jurors regarding whether they had prejudged the case and whether they understood the seriousness of the proceedings. Id. at 1026-27.

We affirmed the court’s decision to deny the motion to strike the jury panel. We noted that the defendant “was not deprived of a fair trial by the trial court’s decision to conduct an inquiry and proceed with those jurors who had not acted offensively and who [defendant] has not shown were otherwise tainted.” Id. at 1027.

The trial court’s decision in the instant case to proceed with an extensive, individual, sequestered examination of each juror was sufficient to ensure that the parties received a fair jury. The court gave Williams a full opportunity to question the potential jurors regarding the comment, and Williams was unable to show that the jurors were unfairly biased as a result of hearing the comment.

Williams asserts that there is a distinction between statements of opinion and statements of fact by potential jurors. This is correct, at least in the context of criminal cases, when a potential juror’s comment relates to the defendant’s prior crimes or the potential juror reveals an inadmissible fact regarding the defendant to the jury panel. See, e.g., Wilding v. State, 427 So.2d 1069, 1069-70 (Fla. 2d DCA 1988). We distinguish this case by pointing out that the potential juror’s comment in this matter was a statement regarding Williams’s witness, not Williams himself.

We have considered the other issues raised by Williams in this appeal and affirm without comment.

Affirmed.

TAYLOR and LEVINE, JJ., concur.

      . Prior to trial, Williams admitted liability for the collision and Osking’s property damage but denied that Osking was injured as a result of the accident.

      . The procedure we approve of in this matter is based on our decision in a first-degree murder case. See Brower, 727 So.2d at 1026. Considering we found the procedure sufficient to protect the rights of a criminal defendant when the defendant’s life and liberty were at stake, the same procedure employed by the trial court was clearly sufficient (and within the trial court’s discretion) to protect the rights of the parties in this civil case.