author: PER CURIAM. VILLANTI, Judge,

text:
    Ashley M. TOYE, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5605.
    District Court of Appeal of Florida, Second District.
    Jan. 22, 2014.

      Stuart M. Pepper, Cape Coral, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Ashley Toye appeals the summary denial of her motion filed pursuant to Florida Rules of Criminal Procedure 3.800(a) and 3.850, in which she claimed that the decision in Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), rendered her mandatory sentence of life in prison without the possibility of parole illegal because she was a juvenile when she committed her offenses. The postconviction court dismissed her motion as untimely, relying on the Third District’s decision in Geter v. State, 115 So.3d 375, 385 (Fla. 3d DCA 2012) (en banc), which held that the Miller decision does not apply retroactively. The First District reached the same conclusion in Gonzalez v. State, 101 So.3d 886, 888 (Fla. 1st DCA 2012). However for the reasons that follow, we conclude that Miller applies retroactively, certify conflict with Geter and Gonzalez, and reverse the postconviction court’s order.

Background

A jury found Toye guilty of two counts of first-degree felony murder, two counts of kidnapping, two counts of aggravated assault, and one count of tampering with evidence based on events that occurred when Toye was seventeen years old. The trial court sentenced Toye to the required sentence of life in prison without the possibility of parole for the felony murders, see § 775.082(1), Fla. Stat. (2006), and to concurrent sentences totaling a term of twenty-five years for the other charges. In 2008, before the Supreme Court issued its decision in Miller, this court affirmed Toye’s judgments and sentences per curiam. Toye v. State, 988 So.2d 1104 (Fla. 2d DCA 2008) (table decision).

After the Miller decision was issued, Toye filed her postconviction motion claiming that her life sentence was illegal. The postconviction court denied the motion because it was filed more than two years after Toye’s judgment and sentence became final. It also found that Miller did not apply retroactively and so did not constitute an exception to the two-year window of rule 3.850. We reverse, however, because we hold that the rule established in Miller — that a mandatory sentence of life imprisonment without the possibility of parole imposed on a juvenile homicide offender violates the Eighth Amendment— should be given retroactive effect.

Miller v. Alabama

In Miller, the Supreme Court held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” 132 S.Ct. at 2469. Miller focused heavily on the concept of proportionality and relied on two lines of Eighth Amendment cases: (1) those that categorically banned “sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty,” such as Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (barring life imprisonment without the possibility of parole for juveniles convicted of nonhomicide offenses), and Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (banning the death penalty for all juvenile offenders); and (2) those that prohibited the mandatory imposition of the death penalty and demanded individualized sentencing considerations before imposing the death penalty, such as Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (requiring that sentencing authorities not be precluded from considering the defendant’s character and circumstances of the offense as mitigating circumstances for imposing the death penalty). Miller, 132 S.Ct. at 2463-64. As these cases demonstrate, the idea that “death is different” and the concept of proportionality are particularly applicable to juvenile offenders vis-a-vis sentencing.

In fact, the Miller Court acknowledged that juveniles are “constitutionally different from adults.” Id. at 2464. They are less mature, less responsible, and concomitantly more reckless and impulsive. Furthermore, juveniles sentenced to life in prison will serve a greater percentage of their lives in confinement than will an adult. These factors must be taken into account when sentencing juveniles, and they serve to bar mandatory sentences that would absolutely require juveniles to spend the remainder of their lives in prison. Id. at 2464-69. Hence, a juvenile who commits a homicide after Miller is entitled to have the court consider potentially mitigating factors before it may impose a life sentence without parole. However, only if Miller applies retroactively can Toye’s sentence be revisited.

Retroactivity in Florida: The Witt Analysis

In determining whether a Supreme Court decision applies retroactively, Florida courts first look to the content and language of the opinion itself. Barrios-Cruz v. State, 63 So.3d 868, 871 (Fla. 2d DCA 2011). Because the Miller opinion is silent on retroactivity, we must apply the three-prong test set forth in Witt v. State, 387 So.2d 922 (Fla.1980), to determine whether to apply Miller retroactively. See Johnson v. State, 904 So.2d 400, 408-09 (Fla.2005).

Witt held that a change in decisional law that requires reversing a once-valid conviction and sentence applies retroactively only if it “(a) emanates from [the Florida Supreme] Court or the United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance.” Witt, 387 So.2d at 931. There is no question that the first two prongs of the Witt analysis are satisfied in this case; we must focus solely on whether the Miller decision constitutes a development of fundamental significance.

Developments of Fundamental Significance

Under Witt, decisional developments of fundamental significance fall within two broad categories: (1) those that ‘“place beyond the authority of the state the power to regulate certain conduct or impose certain penalties,’ and (2) ‘those ... which are of sufficient magnitude to necessitate retroactive application.’ ” Barrios-Cruz, 63 So.3d at 871 (quoting Witt, 387 So.2d at 929). In one sense, Miller would not seem to fall within the first category because it does not affect the State’s power to impose certain penalties, i.e., a sentence of life without parole, because juvenile homicide offenders can still receive such a sentence under a discretionary sentencing scheme that takes into consideration the offender’s “youth and attendant characteristics.” Miller, 132 S.Ct. at 2471. But the decisions in Miller and Roper effectively invalidated section 775.082(1), Florida Statutes (2012), as applied to juveniles convicted of a capital felony, such as Toye who was sentenced in 2006 under the identical statute. Hence, Miller invalidated the only statutory means for imposing a sentence of life without the possibility of parole on juveniles convicted of a capital felony. Cf Chambers v. State, 831 N.W.2d 311, 343 (Minn.2013) (Page, J. dissenting) (arguing that since the Minnesota legislature made the sentences mandatory, sentencing authorities did not have authority from the legislature to conduct individualized determinations or exercise discretion of any kind). Arguably, Miller has dramatically disturbed the power of the State of Florida to impose a nondiscretionary sentence of life without parole on a juvenile convicted of a capital felony, and thus the decision falls within this first category of developments of fundamental significance.

Stovall-Linkletter Test

It is even more apparent that Miller falls within the second category of developments of fundamental significance — those “which are of sufficient magnitude to necessitate retroactive application” under the three-part Stovall-Linkletter test. Witt, 387 So.2d at 929. That three-fold test considers: “(a) the purpose to be served by the new rule; (b) the extent of reliance on the old rule; and (c) the effect on the administration of justice of a retroactive application of the new rule.” Id. at 926.

In developing the second category, the Florida Supreme Court adapted the then-current ABA Standards Relating to Post-Conviction Remedies. See id. at 929 n. 25. Under the ABA standards, Miller would apply retroactively because it is a significant change in the law that forbids sentencing authorities from ignoring a juvenile’s “diminished culpability and heightened capacity for change,” thereby lessening the risk of disproportionate punishment. 132 S.Ct. at 2469. But because the sentencing authority cannot consider a juvenile’s youth and attendant circumstances without an evidentiary hearing, Miller not only changed rules of procedure but also afforded a class of offenders the right to individualized sentencing determinations in accordance with the proportionality doctrine undergirding the Eighth Amendment’s prohibition against cruel and unusual punishment. Therefore, Miller is inarguably “a significant change in law, whether substantive or procedural, applied in the process leading to [the] applicant’s conviction or sentence.” Witt, 387 So.2d at 929 n. 25 (quoting ABA Standards Relating to Post^Conviction Remedies § 2.1(a)(vi) (Approv. Draft 1968)). In addition, each part of the Stovall-Linkletter test supports this conclusion.

a. The Purpose to be Served

First, the purpose to be served by Miller weighs heavily in favor of applying it retroactively. Miller’s discussion of individualized attendant circumstances, such as the juvenile’s age, the juvenile’s family and home environment, the circumstances of the homicide, and the extent of the juvenile’s participation in the homicide, makes clear that these particular considerations could not be generically predetermined by the legislature. 132 S.Ct. at 2469. The Court guaranteed this right by requiring courts to consider — when they previously were not required to do so — each specific offender’s youth and attendant circumstances before imposing a sentence of life without the possibility of parole so as to avoid cruel and unusual punishment under the Eighth Amendment. Thus, Miller does far more than “cast serious doubt on the veracity or integrity of the original trial proceeding,” Witt, 387 So.2d at 929, because no original constitutionally meaningful sentencing hearing was held in the first place. Accordingly, we must reject the State’s argument in this case, as well as the conclusions in Geter and Gonzalez, that Miller should be characterized as a mere evolutionary refinement in criminal procedure that should not be applied retroactively.

In our view, the State and the First and Third Districts fail to recognize that either procedural or substantive developments in the law can be of a fundamental significance, and either can apply retroactively. In developing its retroactivity analysis, Witt acknowledged the competing interests in “ensuring finality of decisions on the one hand, and ensuring fairness and uniformity in individual cases on the other within the context of post-conviction relief from a sentence of death.” 387 So.2d at 925. In this balance, Witt recognized that changes in the law that “drastically alter the substantive or procedural underpinnings of a final conviction and sentence” outweigh the State’s interest in finality of litigation. Id. Without question, Miller is just such a change in the law because it requires consideration of the nature of the offense committed and the juvenile’s individual attendant circumstances as part of the application of the Eighth Amendment’s prohibition against cruel and unusual punishment. Although Miller may have described its holding as a requirement that sentencing authorities follow a certain process, 132 S.Ct. at 2471, the “process” that the Supreme Court described flows from Roper, Graham, and the Supreme Court’s death penalty jurisprudence, and it is necessary to uphold the Eighth Amendment’s proportionality requirement. Miller, 132 S.Ct. at 2471. In this context, the word “process” clearly referenced the creation of a new substantive right for juvenile offenders that did not previously exist.

The Third District’s comparison of the purpose served by Miller to the purposes discussed in Hughes v. State, 901 So.2d 837 (Fla.2005) (holding that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), does not apply retroactively), and Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011) (holding that Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively), is misplaced because Hughes and Hernandez both concern a defendant’s Sixth Amendment rights. See Geter v. State, 115 So.3d 385, 394-97 (Fla. 3d DCA 2013) (en banc) (Ernas, J., dissenting) (distinguishing the retroactivity of Apprendi’s holding that the Sixth Amendment guarantees that the jury, rather than the judge, determine any fact that would expose the defendant to a sentence beyond the statutory maximum); Chambers, 831 N.W.2d at 336 (Anderson, J., dissenting) (distinguishing the retroac-tivity of Eighth Amendment rights from Sixth Amendment rights, such as Padilla ). Padilla concerned counsel’s duty to inform defendants of the potential effect of a conviction upon their immigration status, Hernandez v. State, 124 So.3d 757, 759 (Fla.2012), a matter unrelated to the veracity and integrity of the judgment in the case in which counsel represented the defendant. See Witt, 387 So.2d at 929. And unlike Apprendi, Miller does not simply shift the fact-finding determination from the judge to the jury. See Apprendi, 530 U.S. at 483, 120 S.Ct. 2348. Rather, Miller creates a new right to present mitigating circumstances when no such right previously existed. Chambers, 831 N.W.2d at 336-37 (Anderson, J., dissenting). The creation of this new right militates in favor of applying Miller retroactively.

b. Reliance on the Old Rule

Second, retroactive application of Miller does not cast a large cloud of uncertainty over the finality of judgments as have other decisions retroactively affecting a defendant’s trial or conviction. The law that can no longer be enforced after Miller, section 775.082(1), Florida Statutes (2012), had been in effect since May 25,1994. Ch. 94-228, § 1, Laws of Fla. (1994). As recognized in Judge Emas’ dissent in Geter, only 266 juvenile homicide offenders are serving mandatory sentences of life in prison without the possibility of parole. 115 So.3d at 398 (citing Human Rights Watch, State Distribution of Youth Offenders Serving Juvenile Life Without Parole (2009), available at http://www.hrw. org/news/2009/10/02/state-distribution-juvenileoffenders-serving-juvenile-life-without-parole)). Thus, the number of cases relying on the old rule is relatively small.

Additionally, the rule at issue concerns only the juvenile’s sentence and the conditions under which the court may impose a sentence of life without the possibility of parole. Id. The juvenile’s conviction remains intact. Hence, on remand, courts are limited to resentencing the juvenile after applying the appropriate considerations. Cf. Witt, 387 So.2d at 926 (“[F]i-nality will be illusory if each convicted defendant is allowed the right to relitigate his first trial upon a subsequent change of law.” (emphasis added)). Moreover, Miller ’s retroactive -application would comport with prior Florida decisions that applied the Supreme Court’s prohibition of the mandatory imposition of the death penalty retroactively, because sentences of death and life without the possibility of parole are the harshest sentences that can be imposed. Geter, 115 So.3d at 393 (Emas, J., dissenting).

There is currently some debate among the district courts regarding the appropriate sentence for juveniles whose life without parole sentence did not become final until after the Supreme Court decided Miller. Compare Washington v. State, 103 So.3d 917, 922 (Fla. 1st DCA 2012) (Wolf, J., concurring) (suggesting the trial court “impose a sentence of a term of years up to life without [the] possibility of parole”) with Horsley v. State, 121 So.3d 1130, 1132 (Fla. 5th DCA) (reviving the previous version of the statute, section 775.082(1), Florida Statutes (1993), and imposing a sentence of life with the possibility of parole after twenty-five years), review granted, No. SC13-1938, 2013 WL 6224657 (Fla. Nov. 14, 2013). However, this single consideration, applied retroactively to a small number of sentences, would not “destroy the stability of the law, [or] render punishments uncertain and therefore ineffectual.” Witt, 387 So.2d at 929. This is especially true because the district courts are already addressing this issue for juveniles sentenced to life without the possibility of parole after Miller issued. Thus, this factor likewise militates in favor of retroactivity.

c. Effect on the Administration of Justice

Third, applying Miller retroactively would have little effect on the administration of justice. Judge Emas’ dissent points out that the 266 defendants to whom Miller could retroactively apply constitutes only 0.26% of Florida’s inmate population. Geter, 115 So.3d at 398-99. And as noted above, the only additional burden on the judicial system would be resentencing these 266 juveniles upon receipt of a postconviction motion. Moreover, this burden will not be onerous in terms of determining what sentence to impose as the appellate courts are already addressing this issue for defendants whose sentences were pending when Miller issued. See Horsley, 121 So.3d at 1132.

The Third District’s concern about the burden upon the courts, which is echoed by the State in its response in this case, is overstated and overlooks the distinction between disturbing a longstanding conviction and revisiting the sentence imposed upon a juvenile who, even if convicted years ago, remains imprisoned. Thus, this third factor also militates in favor of retro-activity.

Conclusion

In sum, the Supreme Court’s decision in Miller constitutes a development of fundamental significance because it removes the authority of the State to impose a mandatory sentence of life in prison without the possibility of parole on juvenile homicide offenders and because it is a change in the law of sufficient magnitude under the Sto-vall-Linkletter test. Therefore, we hold that Miller applies retroactively to provide postconviction relief for juvenile homicide offenders sentenced to mandatory terms of life in prison without the possibility of parole. Accordingly, we reverse the post-conviction court’s order denying Toye’s motion, remand for the circuit court to resentence Toye on counts one and two in accordance with the requirements of Miller, and certify conflict with Geter and Gonzalez. Since the parties have not argued — either below or in this appeal— what the proper range of sentencing options on remand should be, we decline to do so on our own in this appeal. See, e.g., Anheuser-Busch Cos. v. Staples, 125 So.3d 309, 312 (Fla. 1st DCA 2013) (noting that an appellate court is “not at liberty to address issues that were not raised by the parties”). At the resentencing hearing, the postconviction court should entertain argument from the parties on this issue.

Reversed and remanded; conflict certified.

LaROSE, J., Concurs.

VILLANTI, J., Concurs in part and dissents in part.

ALTENBERND, J., Concurs with opinion.

VILLANTI, Judge,

Concurring in part and dissenting in part.

I fully concur in the majority’s decision to reverse the summary denial of Toye’s motion for postconviction relief based on the retroactivity of Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and to remand for resentencing. However, I disagree with the majority’s decision to refuse to provide any guidance to the postconviction court concerning the sentencing options available to it on remand. While “[pjrudenee dictates that issues such as the constitutionality of a statute’s application to specific facts should normally be considered at the trial level[,] ... [o]nce this Court has jurisdiction, ... it may, at its discretion, consider any issue affecting the case.” Cantor v. Davis, 489 So.2d 18, 20 (Fla.1986). Hence, in my view, this court should address the issue and specifically should utilize the doctrine of statutory revival to authorize the post-conviction court to impose a legal sentence on Toye pursuant to the 1993 version of section 775.082(1).

No one disagrees that the effect of the decisions in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and Miller is to invalidate the current version of section 775.082(1). The majority believes that the parties should be permitted to explore the sentencing possibilities on remand and make arguments to the court concerning the range of available sentencing options. However, the simple fact is that given the unconstitutionality of section 775.082(1), a statutory gap now exists under which there is no legal sentence available to the sentencing court for a juvenile convicted of a homicide offense. Hence, while the postconviction court will certainly hold the required Miller hearing at which the parties will argue their respective positions concerning the appropriate sentence for Toye, the hearing will in fact be an entirely Sisyphean endeavor because there is simply no legal sentence that can be imposed at its conclusion. I believe that putting the postconviction court in such a rudderless position is, at best, improvident. Pragmatically speaking, rather than remanding for an illusory resentencing hearing, this court should exercise its discretion and apply the doctrine of statutory revival to fill the untenable gap that has arisen in the wake of the Miller decision.

Under the doctrine of statutory revival, “when the judicial branch invalidates an act of the legislature, the prior statute is brought back to life to avoid an unintended gap in the law.” Partlow v. State, 134 So.3d 1027, 1033, 2013 WL 45743 (Fla. 1st DCA Jan. 4, 2013) (Makar, J., concurring in part and dissenting in part). Hence, rather than having courts essentially legislate from the bench by creating a new statutory scheme out of whole cloth, “we simply revert to a solution that was duly adopted by the legislature itself.” Horsley v. State, 121 So.3d 1130, 1132 (Fla. 5th DCA), review granted, 2013 WL 6224657 (Fla. Nov. 14, 2013). This is not an unprecedented act. See, e.g., B.H. v. State, 645 So.2d 987, 995 (Fla.1994) (“Florida law has long held that, when the legislature approves unconstitutional statutory language and simultaneously repeals its predecessor, then the judicial act of striking the new statutory language automatically revives the predecessor unless it, too, would be unconstitutional.”); Smith v. Smathers, 372 So.2d 427, 429 (Fla.1979) (explaining in the context of an election law that the “repealed sections of the statute are hereby revived and shall remain in force and effect to provide a procedure for write-in candidacies in future elections until properly changed by the legislature”). Because statutory revival requires the court to apply a previously duly enacted statute, it respects the legislature’s authority to prescribe criminal penalties and is the antithesis of judicial activism.

Reviving the last constitutional version of the statute would fill the Miller gap and provide the postconviction court with the legal authority to exercise the sentencing discretion that the Miller Court clearly envisioned would be afforded to juvenile homicide defendants until such time as a legal statute is properly enacted by the legislature. And, like the Fifth District in Horsley and Judge Makar’s concurring opinion in Partlow, I would certify the following question to the supreme court:

WHETHER THE SUPREME COURT’S DECISION IN MILLER V. ALABAMA, — U.S. -, 132 S.Ct. 2455, 188 L.Ed.2d 407 (2012), WHICH INVALIDATED SECTION 775.082(1)’S MANDATORY IMPOSITION OF LIFE WITHOUT PAROLE SENTENCES FOR JUVENILES CONVICTED OF FIRST-DEGREE MURDER, OPERATES TO REVIVE THE PRIOR SENTENCE OF LIFE WITH PAROLE ELIGIBILITY AFTER 25 YEARS PREVIOUSLY CONTAINED IN THAT STATUTE? ALTENBERND, Judge, Concurring.

I concur in our decision to give Ashley M. Toye retroactive relief from her life sentence without possibility of parole. I comment that I am not entirely convinced that this case is a “homicide” case governed by Miller rather than a “non-homicide” case governed by Graham. Relying on the briefs in Ms. Toye’s direct appeal to this court, it appears that she was a principal to a felony murder and not the person who actually killed the victim. The facts in this case are horrific, but it is not clear to me that the United States Supreme Court has decided whether principals to felony murder fall within the purview of the Graham holding or the Miller holding. See generally Arrington v. State, 113 So.3d 20 (Fla. 2d DCA 2012).

Judge Villanti in this case, and Judge Makar in his dissent in Partlow v. State, 134 So.3d 1027, 2013 WL 45743 (Fla. 1st DCA Jan. 4, 2013), both present a reasonable argument for application of the doctrine of statutory revival on remand for resentencing. If a statute has been amended in an unconstitutional manner, returning to the last properly enacted statute to assure that a statute exists for application to all persons makes sense to me. I am less convinced, however, that it is a good idea or even permissible to revive a statute for application to a very small population of persons for whom the existing statute is essentially unconstitutional as applied. I do not join in Judge Villan-ti’s proposed certified question but only because I believe that the parties should have an opportunity to conduct a resen-tencing hearing at which that issue can be fully explored before the issue is sent to the supreme court.

Given the very difficult and time-consuming legal issues that have arisen since the decisions were announced in Graham and Miller — not only in the several hundred earlier cases but also in all similar pending and future cases-a prospective statute allowing for life with the possibility of parole for defendants under the age of eighteen and maybe even under the age of twenty-one or twenty-four would be a cost-effective solution in Florida that would allow for long but measured sentences for young persons who commit serious crimes, in part, because of their immaturity. If prisoners who received life sentences without possibility of parole in the past for crimes committed during their minority were permitted by statute to elect resen-tencing under the new law, we could quickly address the 300 or so cases that are currently creating a constitutional quagmire in Florida.

The Florida Legislature should understand that there is at least a small risk, especially for new offenses controlled by Graham and Miller, that a court would conclude that no statutory provision for punishment exists for this small group of defendants. If that is the case, then they either cannot receive a sentence or the sentence cannot exceed one year in prison. This state has long had a statute that provides:

When there exists no such provision by statute, the court shall proceed to punish such offense by fine or imprisonment, but the fíne shall not exceed $500, nor the imprisonment 12 months.

§ 775.02, Fla. Stat. (2013).

There is little case law addressing this statute. The First District has held that it applies only to common law crimes. See Holmes v. State, 342 So.2d 134, 135 (Fla. 1st DCA 1977), receded, from on other grounds by Stanfill v. State, 360 So.2d 128 (Fla. 1st DCA 1978). The offenses involved in the Graham and Miller cases are not common law crimes. However, in so holding, the court in Holmes concluded that no punishment existed for a statutory crime for which the legislature had provided no penalty. The supreme court has never determined whether section 775.02 applies only to common law crimes. The title to the section suggests this is the case, but the body of the statute does not state this directly and, strictly construed, it might apply in this instance. See § 775.021(1), Fla. Stat. (2013). The Florida Legislature could eliminate this risk if it addresses this sentencing issue during the next session.

      . We note that the First District recently certified the issue to the Florida Supreme Court as a question of great public importance, and review has been granted in Falcon v. State, 111 So.3d 973 (Fla. 1st DCA), review granted, No. SC13-865, 2013 WL 6978507 (Fla. June 3, 2013). See also Smith v. State, 113 So.3d 1058 (Fla. 1st DCA 2013).

      . In our view, Miller does not explicitly hold that its decision applies retroactively. Thus, we cannot accept Chief Judge Benton’s theory in his concurring opinion in Falcon v. State,
        111 So.3d 973, 975 (Fla. 1st DCA 2013), that reading both Miller and the companion case of Jackson v. Norris, 2011 Ark. 49, 378 S.W.3d 103 (2011), rev'd, Miller, - U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407, together makes it clear that the Court intended Miller to apply retroactively because the Court remanded Jackson’s case for resentencing even though his judgment and sentence were final.

      . In contrast, the federal courts and most state courts apply the retroactivity test articulated in Teague v. Lane, 489 U.S. 288, 311-13, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion) (adopted by Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), abrogated on separate grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)). See abo Danforth v. Minnesota, 552 U.S. 264, 266, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008) (holding that state courts may "give broader effect to new rules of criminal procedure than is required by [Teague ]”).

      . Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).

      . In reaching its conclusion that Miller is a mere procedural change in the law that should not apply retroactively, Geter relied on other Third District cases which incorrectly applied the "purpose to be served” requirement. 115 So.3d at 378-79. Geter quoted the Third District's previous retroactivity analysis of Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), but added the requirement that miscarriages of justice requiring retroactive application can only apply to "substantive criminal law.” 115 So.3d at 378-79 (quoting Hernandez v. State, 61 So.3d 1144, 1150 (Fla. 3d DCA 2011)). However, the Florida Supreme Court decision relied on in Hernandez did not limit retroactivity to substantive changes in the law. See Hughes v. State, 901 So.2d 837 (Fla.2005) (holding that Apprendi v. Hew Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), does not apply retroactively). Further, the Florida Supreme Court did not create this distinction when affirming the Third District’s decision in Hernandez and holding that Padilla does not apply retroactively. See Hernandez v. State, 124 So.3d 757 (Fla.2012).

      . In accordance with our view, we note that some individual district judges have also suggested that Miller should apply retroactively because the precedent upon which the Supreme Court relied in Miller applied retroactively. See, e.g., Geter, 115 So.3d at 394 (Emas, J., dissenting); Chambers, 831 N.W.2d at 338 (Anderson, J., dissenting) (same); see also State v. Ragland, 836 N.W.2d 107, 116 (Iowa 2013) ("If a substantial portion of the authority used in Miller has been applied retroactively, Miller should logically receive the same treatment.”). Miller "flows straightforwardly from our precedents; specifically, the principle of Roper, Graham, and our individualized sentencing cases that youth matters for purposes of meting out the law's most serious punishments.” 132 S.Ct. at 2471.

      . I would also note that, even when the legislature does act on this issue, "it faces hurdles including the state constitutional constraint that the ‘[rjepeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.’ ” Partlow v. State, 134 So.3d 1027, 1032, 2013 WL 45743, n. 7 (Fla. 1st DCA Jan. 4, 2013) (Makar, J., concurring in part and dissenting in part) (quoting Art. X, § 9, Fla. Const.). Thus, even if the legislature enacts a new sentencing statute this term, such statute will not fill the gap created by Miller.

      . In earlier codifications, it appears that the context of what is now section 775.02 was immediately preceded by the statutory provision that is now found at section 775.01. See § 775.01; Hepburn v. Chapman, 109 Fla. 133, 149 So. 196, 203 (1933). Section 775.01 states: "The common law of England in relation to crimes, except so far as the same relates to the modes and degrees of punishment, shall be of full force in this state where there is no existing provision by statute on the subject.” Sections 775.01 and 775.02 are now separated by other statutory provisions. But when the two sections are read back to back, the words "no such provision” in section 775.02 appear to refer to common law crimes for which there are no existing provisions by statute.


source: Caselaw Access Project

author: LaROSE, Judge.

license: Public Domain

text:
    Alex ALONSO, Appellant, v. DEUTSCH BANK NATIONAL TRUST COMPANY, as Trustee of the Home Equity Mortgage Loan Asset-Backed Trust Series INABS 2006-D, Home Equity Mortgage Loan Asset-Backed Certificates, Series INABS 2006-D Under the Pooling and Servicing Agreement Dated September 1, 2006, Appellee.
    No. 2D12-5525.
    District Court of Appeal of Florida, Second District.
    Jan. 24, 2014.
    Henry W. Hicks and Adam J. Knight of Henry W. Hicks, P.A., Tampa, for Appellant.
    Benjamin B. Brown of Quarles & Brady, LLP, Naples, for Appellee.
   BY ORDER OF THE COURT.

Appellant’s motion for rehearing filed November 22, 2013, is granted in part to remand for correction of the foreclosure judgment amount. The per curiam opinion dated November 8, 2013, is withdrawn, and the attached opinion is substituted therefor. No further motions for rehearing will be entertained in this appeal.

LaROSE, Judge.

Alex Alonso appeals a uniform final judgment of foreclosure in favor of Deutsche Bank National Trust Company. We affirm the judgment of foreclosure; we reverse the amount of damages awarded. We remand for the trial court to enter an amended judgment awarding damages in the amount of $362,283.31, the unpaid principal loan balance proven at trial.

Affirmed in part, reversed in part, and remanded.

KELLY and MORRIS, JJ., Concur.


author: PER CURIAM.

text:
    Benjamin P. HAMMOCK, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-174.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 2014.
    Rehearing Denied March 3, 2014.
    Mary E. Fitzgibbons of Fitzgibbons Law Firm, P.A., Kissimmee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We vacate the convictions on counts 4 and 6 based on double jeopardy grounds. In all other respects, the judgments and sentences are affirmed.

AFFIRMED IN PART; VACATED IN PART.

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


text:
    Danny O. DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-6211.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2014.
    Rehearing Denied March 4, 2014.
    Danny O. Davis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


author: NORTHCUTT, Judge.

text:
    Mark HUTCHINSON, III, Petitioner, v. STATE of Florida, Respondent.
    No. 2D13-4720.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2014.
    Julianne M. Holt, Public Defender, Tampa, and Paul L. Figueroa, Assistant Public Defender, Tampa, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Respondent.
   NORTHCUTT, Judge.

Mark Hutchinson III petitioned for a writ of prohibition to preclude the circuit court from proceeding with the trial of his pending criminal charges in violation of the speedy trial rule. See Fla. R. Crim. P. 3.191. Prohibition is an appropriate remedy when an accused has been denied his right to a speedy trial and his motion for discharge has been rejected. Clark v. State, 3 So.3d 1268, 1269 (Fla. 5th DCA 2009). We previously granted Hutchinson’s petition in an unpublished order, and we now issue this opinion to explain our ruling.

Hutchinson, a juvenile, was arrested on February 12, 2013, and subsequently charged as an adult with aggravated battery with a deadly weapon and simple battery. On the morning of August 5, 2013, Hutchinson’s scheduled trial date, the court convened and began calling the cases on that morning’s docket. Hutchinson, whose case was listed on the early part of the docket, was not present in the courtroom when the court called his case. His attorney informed the court of such, and he asked that Hutchinson’s case be pushed further down the docket. The court declined to do so, and instead it issued a capias for Hutchinson’s arrest. Later during the docket call, Hutchinson’s attorney advised the court that Hutchinson had arrived several minutes after his case was called, was immediately taken into custody, and was then present in the courtroom. The court revoked Hutchinson’s pretrial release and forfeited his bond.

On August 6, 2013, defense counsel filed a notice of expiration of speedy trial. At the hearing on the notice of expiration the following day, defense counsel requested a trial date within the ten-day recapture period required by the speedy trial rule. See Fla. R. Crim. P. 3.191(p)(3). The State argued that by virtue of Hutchinson’s tardiness to court on August 5, he had “failed to appear” and thus waived his speedy trial right. In response, defense counsel pointed out that it was the State’s burden to establish that Hutchinson was “unavailable for trial.” Ultimately, the court agreed with the State that Hutchinson’s tardiness “constitute^] a failure to appear and a capias issued.” For this reason, the court denied the request to set his trial within ten days. It scheduled the trial for October 14, 2013, after the expiration of the speedy trial recapture period.

After the recapture period expired, defense counsel filed a motion for discharge and an amended motion for discharge. Relying on its earlier ruling at the August 7 hearing on the notice of expiration, the court refused to discharge Hutchinson. Hutchinson then petitioned this court for a writ of prohibition, which we granted for the following reasons.

Florida Rule of Criminal Procedure 3.191(a) provides that a person charged with a felony must be brought to trial within 175 days of arrest. “If trial of the accused does not commence within the periods established by [rule 3.191], a pending motion for discharge shall be granted by the court unless it is shown that ... the accused was unavailable for trial under subsection (k).... ” Fla. R. Crim. P. 3.191(j)(3); see Fla. R. Crim. P. 3.191(p)(3). Subsection (k) defines unavailability for trial as follows:

A person is unavailable for trial if the person or the person’s counsel fails to attend a proceeding at which either’s presence is required by these rules, or the person or counsel is not ready for trial on the date trial is scheduled. A person who has not been available for trial during the term provided for in this rule is not entitled to be discharged.

This subsection also provides that “[n]o presumption of nonavailability attaches, but if the state objects to discharge and presents any evidence tending to show nonavailability, the accused must establish, by competent proof, availability during the term.” Thus, it is the State’s initial burden to present evidence tending to show that a defendant was unavailable for trial. Fla. R. Crim. P. 3.191(k); Holston v. State, 958 So.2d 1057, 1057 (Fla. 4th DCA 2007). “Proof that the defendant made himself ... unavailable can be found by the trial court if the defendant, or his counsel, fails to attend a proceeding required by the rules or required by notice of the court.” Dixon v. State, 901 So.2d 384, 386 (Fla. 3d DCA 2005).

In this case, the State failed to meet its burden. At the August 7 hearing on Hutchinson’s notice of expiration, the State did not present any evidence as such. Rather, it simply relied on the fact that Hutchinson arrived late to the docket call on August 5. Standing alone, this was not evidence tending to show nonavailability for purposes of the speedy trial rule. The circuit court’s conclusion to the contrary likely rested on an erroneous conflation of the speedy trial rule and the rule governing pretrial release.

The phrase “failure to appear” does not occur in the speedy trial rule. It is a concept that specifically relates to pretrial release and bond forfeiture under Florida Rule of Criminal Procedure 3.131(c), which imposes consequences for a defendant who willfully and knowingly “fails to appear” in breach of a bond as specified in section 903.26, Florida Statutes (2012). Section 903.26(2)(b) provides in pertinent part that:

Failure of the defendant to appear at the time, date, and place of required appearance shall result in forfeiture of the bond.... However, the court may determine, in its discretion, in the interest of justice, that an appearance by the defendant on the same day as required does not warrant forfeiture of the bond; and the court may direct the clerk to set aside any such forfeiture which may have been entered.

(Emphasis added). Thus, a defendant’s late arrival to a scheduled proceeding could constitute a failure to appear at the required time in breach of his bond, for which a trial court would be empowered to revoke the defendant’s pretrial release. Although a court’s discretion to do so is not unfettered, see Espinal v. Ryan, 31 So.3d 818, 819 (Fla. 3d DCA 2010) (granting habeas relief to a defendant whose pretrial release and bond was revoked because he was fifteen minutes late to a hearing), the circuit court in this case acted within its lawful authority when it revoked Hutchinson’s pretrial release, forfeited his bond, and issued a capias when he did not timely appear at the August 5 hearing. See § 903.26(2)(b), (2)(c). Ultimately, Hutchinson’s bond was reinstated, which is appropriate “if the delay has not thwarted the proper prosecution of the defendant.” § 903.26(5)(c).

Unlike the pretrial release and bond provisions of rule 3.131 and section 903.26, the speedy trial rule does not address a failure to appear at a specified time. Rather, it turns on a defendant’s unavailability for trial, defined as a failure to attend a proceeding. See Fla. R. Crim. P. 3.191(k). Thus, the mere fact that a defendant arrived late to a proceeding, standing alone, is not evidence “tending to show nonavailability” for purposes of the speedy trial rule. But even if such evidence could be characterized as sufficient for purposes of the State’s initial burden under the speedy trial rule, in this case it was directly refuted by the fact that Hutchinson arrived in court before the docket call was completed. In other words, the record conclusively reflects that Hutchinson did not fail to attend the proceeding, and there was no other evidence that Hutchinson was “unavailable for trial” within the meaning of rule 3.191(k).

We do not suggest that a defendant’s late arrival can never constitute a failure to attend a proceeding for purposes of the speedy trial rule. Certainly, a defendant’s tardiness could be so extreme or disruptive that it effectively could be deemed to be a failure to attend the proceeding. But rule 3.191(k) specifies that “[n]o presumption of nonavailability attaches.” Thus, the State cannot satisfy its initial burden under the rule by showing that the defendant simply arrived late to court. Rather, it must submit evidence tending to show that the defendant’s tardiness was of a nature that it was the functional equivalent of a failure to attend the proceeding. As mentioned, the State did not make such a showing in this case; under the circumstances, it could not.

Under the facts of this case, Hutchinson was not unavailable for trial, and he did not' waive his speedy trial rights. Although we do not condone Hutchinson’s tardiness, he was entitled to discharge because he was not brought to trial within the recapture period.

For these reasons, we granted the petition and prohibited the circuit court from continuing to exercise jurisdiction over Hutchinson on counts one and two of the information filed in circuit court case number 13-CF-003447A.

KELLY and LAROSE, JJ., Concur.

      . The record is unclear as to how late Hutchinson was. Defense counsel advised the court on the day in question that Hutchinson was seven minutes late. However, in subsequent motions the defense asserted that he was fifteen to eighteen minutes late, perhaps measured from the time court began that day rather than from the time Hutchinson’s case was called. In a later hearing a prosecutor who was not present at the August 5 court session contended that Hutchinson had been as many as forty-five minutes late. What is clear and undisputed is that Hutchinson did ultimately appear in court during the docket call on the day of his scheduled trial.

      . When filing the notice of expiration, defense counsel relied on the "passoff” sheet prepared by the prosecutor, which inaccurately noted that speedy trial had run on August 5, 2013. In fact, the 175th day after Hutchinson’s arrest was August 6, 2013, and therefore the notice was premature by one day. As such, it was invalid. See Fla. R. Crim. P. 3.191(h) (“[A] notice of expiration of speedy trial time filed before expiration of the period of time for trial is invalid and shall be stricken on motion of the prosecuting attorney.”). However, the State did not move to strike the notice, and defense counsel later amended it to allege the correct date.


text:
    Keith B. BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5949.
    District Court of Appeal of Florida, First District.
    Feb. 4, 2014.
    Rehearing Denied March 10, 2014.
    Keith B. Brown, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Hedrick v. State, 6 So.3d 688, 693 (Fla. 4th DCA 2009) (holding that a motion to disqualify is not deemed automatically granted by operation of the rule when the movant has failed to serve the judge as required by rule 2.330(c)).

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


text:
    Joseph Lee THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1760.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2014.
    Joseph Thomas, pro se.
   PER CURIAM.

The order striking Joseph Lee Thomas’s motion to compel the return of property is affirmed without prejudice for Thomas to file an authorized motion. Should Thomas choose to file such a motion, the circuit court shall entertain Thomas’s motion pursuant to the procedure outlined in Bolden v. State, 875 So.2d 780, 782-83 (Fla. 2d DCA 2004).

Affirmed without prejudice.

CASANUEVA, SILBERMAN, and BLACK, JJ., Concur.


text:
    Bruce FLOYD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0325.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2014.
    Rehearing Denied March 20, 2014.
    Bruce Floyd, 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.

LEWIS, C.J., WOLF and ROBERTS, JJ., concur.


text:
    Kenyeta T. MURRAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5868.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2014.
    Rehearing Denied March 7, 2014.
    Nancy A. Daniels, Public Defender, and Richard M. Bracey, III, Assistant Public Defender, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, for Appellee.
   PER CURIAM.

The State charged Appellant, Kenyeta Murray, with one count of adoption fraud and two counts of grand theft. Simply, Appellant offered to give up the same unborn child for adoption to multiple individuals. Appellant took money and other items from each, knowing she was not going to let either adopt her child. And, prosecutors claimed Appellant had done this before — at least once, if not twice.

Appellant entered an open plea of guilty. Pursuant to section 775.082(10), Florida Statutes, Appellant scored a nonstate prison sanction. Pursuant to the same section, though, the trial court made the factual finding Appellant “could present a danger to the public.” With that finding, the court sentenced her to three years’ imprisonment.

Appellant now challenges her sentence, claiming it violates the mandates of Ap-prendi /Blakely because the trial judge, instead of a jury, made the written finding which increased her sentence from non-state prison to three years’ imprisonment. We disagree because (i) Appellant waived her right to rely upon Apprendi/Blakely, and (ii) the judge’s written findings were sufficient to justify the conclusion Appellant “could present a danger to the public.”

As an initial matter, a defendant may waive her rights under Apprendi Blakely, 542 U.S. at 310, 124 S.Ct. 2531. In the context of plea deals, “the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding.... If appropriate waivers are procured, States may continue to offer judicial factfinding as a matter of course to all defendants who plead guilty.” Blakely, 542 U.S. at 310, 124 S.Ct. 2531. Waiver is the “voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right.” Williams v. State, 932 So.2d 1233, 1237 (Fla. 1st DCA 2006); see Black’s Law Dictionary waiver (9th ed. 2009) (waiver is the “voluntary relinquishment or abandonment — express or implied — of a legal right or advantage”).

Here, Appellant’s counsel told the judge he informed Appellant the sentence was entirely up to the court. Then, the judge made it clear, and Appellant understood, “there will be no trial in this case.” Appellant stated she discussed her potential ten-year prison exposure with her attorney and discussed the State’s outstanding two-year imprisonment offer. Appellant signed and acknowledged understanding her plea form, which similarly advised Appellant there would be no trial. And importantly, the court explained, “we will have a full sentencing hearing.... But, ma’am, do you understand, that your sentence will be entirely within my discretion, ma’am, do you understand that.” Further, the judge questioned Appellant on whether she had discussed this premise with her counsel; Appellant stated she had.

Moreover, the court discussed Appellant scoring no prison time and that “the Court would have to do a factual finding for an upward deviation,” and “the Court does have to have factual findings, which the Court, if it finds there is a legal and factual basis can do.” And finally, that “if the Court found there was a legal and factual basis to do so, the Court could” upwardly depart, and that “if the Court found there was both a legal and factual basis, it could do an upward deviation.” The court even stopped the proceedings to make Appellant’s counsel “double verify” that she discussed the matter with Appellant and everyone understood. Consistently and repeatedly, the court specifically explained it would be making findings, it would be performing all further tasks, and it would be responsible, fully, for Appellant’s sentence and any deviation from the scoresheet.

Given this extensive baek-and-forth, acknowledgment of the specific sentencing statute at play and the need for factual findings, and the repeated, specific indications the court would be in control of making any factual findings necessary to deviate from the scoresheet, Appellant’s wilful continuation and agreement constitutes waiver. Not to mention, neither Appellant nor her counsel raised a concern over the subsequent two-plus months of proceedings. In sum, the judge told her there would be no trial and no jury— Appellant understood, acknowledged, and accepted this. The court did its part to inform Appellant of the situation and Appellant understood and knowingly accepted the judge as factfinder after discussion with the judge and counsel. Appellant validly waived any Apprendi/Blakely concern.

Appellant next contends that even if waived, the trial court’s factual finding Appellant “could present a danger to the public” was unsupported by the record. Again, we disagree. The record contains sufficient written findings, presented in the trial court’s order, to support the determination Appellant could present a danger to the public; thus, it was not error to deviate from the scoresheet range.

Accordingly, the trial court did not err by making the factual finding and her determination is supported by the record. We AFFIRM.

CLARK, WETHERELL, and RAY, JJ„ concur.

      . Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ("[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury”).

      . Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).


author: MAKAR, J.

text:
    Sara R. JOHNSON, Petitioner, v. AMERICAN FIRST FEDERAL, INC., Respondent.
    No. 1D13-1388.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2014.
    Rehearing Denied March 18, 2014.

      Dana L. Manner of Dana L. Manner, P.L., Miami, for Petitioner.
    Michelle B. Tagert, Marianna, for Respondent.
   MAKAR, J.

American First Federal (American) filed a complaint in circuit court against Sara R. Johnson, seeking replevin of, and to foreclose its security interest in a 2002 Ford F150, which was alleged to have a value of less than $15,000. Johnson filed a motion to abate the action, arguing that the circuit court lacked jurisdiction because the value of the truck was under $15,000 and thereby within the county court’s jurisdiction. The circuit court denied the motion, stating it had jurisdiction because the “$15,000 threshold is something that is restrictive to a county court, but not restrictive for the circuit court.” The circuit court proceeded in the matter, granting summary judgment for American. A deficiency final judgment issued, and this prohibition petition followed.

In her petition, Johnson argues that the circuit court lacks jurisdiction over the complaint because the dispute is contractual in nature and thereby subject to the provisions of commercial law, and because the amount in controversy is less than $15,000.00, the monetary threshold for circuit court jurisdiction. In support of these arguments, Johnson cites Aysisayh v. Ellis, 497 So.2d 1316 (Fla. 1st DCA 1986) and Spradley v. Doe, 612 So.2d 722 (Fla. 1st DCA 1993), but distinguishes the applicability of Alexdex Corporation v. Nachon Enterprises, Inc., 641 So.2d 858 (Fla.1994) (reviewing Nachon Enterprises, Inc. v. Alexdex Corp., 615 So.2d 245 (Fla. 3d DCA 1993)).

In Alexdex, the supreme court addressed whether circuit courts had jurisdiction to foreclose a lien on real property, notwithstanding the amount at issue, $4,140.44, was within the county court’s jurisdictional limits. The court reviewed the applicable jurisdictional law and held that circuit courts statutorily have jurisdiction over lien foreclosures on real property, see § 26.012(2)(g), Fla. Stat., but that, contrarily, circuit courts statutorily have exclusive equity jurisdiction despite county courts statutorily having equity jurisdiction within their jurisdictional limits. 641 So.2d at 862; see §§ 26.012(2)(c), 34.01(4), Fla. Stat. Given the apparent inconsistency (i.e., how could circuit courts have exclusive jurisdiction if county courts have limited jurisdiction over such matters?), the court turned to legislative history and concluded that circuit and county courts have concurrent jurisdiction, the latter only within its jurisdictional limits. 641 So.2d at 862 (“to give each statute its full effect, we conclude that the legislature intended to provide concurrent equity jurisdiction in circuit and county courts, except that equity cases filed in county courts must fall within the county court’s monetary jurisdiction, as set by statute”) (footnote omitted).

Johnson distinguishes Alexdex as a real property case, while the dispute over the Ford F150 here is a matter of personal property. While Alexdex did, in part, address that part of the statute granting jurisdiction to circuit courts over matters involving the “title and boundaries” of real property, the court nonetheless found that an inconsistency existed because a hen foreclosure action on real property was also an equitable action over which circuit and county courts generally had jurisdiction. The court did not end its inquiry simply because real property was involved; rather, the crux of the case was the inconsistency in the grant of equity jurisdiction to both the circuit and county courts, which the court resolved by holding that county courts have concurrent jurisdiction over such actions, provided the amount at issue is within statutory limits. In other words, county and circuit courts have concurrent jurisdiction, but the county court’s jurisdiction is confined to matters under $15,000.

The Third District’s recent decision in Millennium Diagnostic Imaging Center, Inc. v. State Farm Mutual Automobile Insurance Co., 2014 WL 54723 (Fla. 3d DCA Jan. 8, 2014), demonstrates this point. At issue was whether a circuit court had jurisdiction over a discovery action even though its monetary jurisdiction was unmet. The appeals court rejected the argument that the action had to be brought in a county court, stating:

Millennium argues that the circuit court did not have jurisdiction over State Farm’s discovery action because the circuit court’s monetary jurisdiction threshold was not satisfied. However, while county courts have equity jurisdiction in cases that fall within the county courts’ monetary jurisdiction, that jurisdiction is not exclusive; rather, the county courts share concurrent jurisdiction with the circuit courts in matters of equity. See Alexdex Corp. v. Nachon Enters., Inc., 641 So.2d 858, 862 (Fla.1994). Because the monetary amount in this case does not exceed the monetary ceiling for county court jurisdiction, both the county court and circuit court were vested with equity jurisdiction in this matter.

Id. at *2. By analogy, the county and circuit courts are vested with equity jurisdiction in this matter because even though the monetary amount is below the “ceiling” for the county court’s jurisdiction, provided — as next discussed — a claim in equity is presented.

Which leads to the nature of the two claims asserted: foreclosure on a security interest on the truck and replevin. Johnson essentially argues that only money is at issue in this dispute and that neither claim is equitable in nature. This argument is similar to that made in Millennium, where Millennium argued that a claim seeking discovery was not equitable in nature. Id. In concluding that the discovery claim was one in equity, the Third District set out the general parameters of equitable versus legal claims: “distinction between an action at law and an action in equity often ‘depends on the nature of the breach and the remedy sought.’ An action at law generally involves a claim for money damages, whereas an equitable claim seeks an order directing a person to do or not to do a specific act.” Id. (citations omitted).

Relevant to this case, the weight of authority is that a foreclosure action on a security interest in chattel (a secured transaction) is equitable in nature. See, e.g., Scheneman v. Barnett, 53 So.2d 641 (Fla.1951); Alford v. Leonard, 88 Fla. 532, 102 So. 885, 889 (1925); Skinner v. Moore, 86 Fla. 365, 98 So. 331, 332 (1923); Hooks v. Farmers’ Union Warehouse Co., 62 Fla. 496, 56 So. 501, 501 (1911); Weston v. Jones, 41 Fla. 188, 25 So. 888 (1899); Tuten v. Gazan, 18 Fla. 751, 751 (Fla.1882). For this reason, jurisdiction is concurrent in the circuit court and county court, the latter because the amount at issue is under $15,000. Alexdex, 641 So.2d at 862.

In contrast, replevin is a “possesso-ry statutory interest at law” over which the county court would have jurisdiction if the amount at issue was within the statutory limit (as it is here). See Spradley v. Doe, 612 So.2d 722 (Fla. 1st DCA 1993). On this point, Johnson relies on Aysisayh, which facially seems to support her position, though two points caution against its application. The first is Alexdex, whose jurisdictional analysis undercuts Johnson’s argument. Second, Aysisayh was decided under a former version of the replevin statute, section 78.08, which was entitled “Venue and Jurisdiction.” The court in Aysisayh quoted and highlighted the statute as then written, saying:

Section 78.03 establishes venue and jurisdiction requirements for replevin actions, and states that ‘[t]he action shall be brought in the court in the county where the property is which has jurisdiction of the value of the property sought to be replevied’ (emphasis supplied).

Aysisayh, 497 So.2d at 1316. The pro se litigant in Aysisayh filed in circuit court, but the highlighted language was deemed to clearly provide that “jurisdiction over the replevin of property valued in the complaint at $3,100 would lie in the county rather than the circuit eourt[.]” Id. at 1316 ($5,000 was the jurisdictional dividing line at that time). As such, this Court remanded with instructions to transfer the case to the county court.

Section 78.03, however, was sub-divided and reworded in 1993. The title of section 78.03 was changed from “Venue and Jurisdiction” to “Jurisdiction” and its language revised as follows:

Ch. 93-81, Laws of Florida. This change made jurisdiction for a replevin action proper in “a court of competent jurisdiction” not just a county court. Newly-created section 78.032, entitled “Venue,” provided:

An action for replevin may be brought in any county where the property sought to be replevied is located, where the contract was signed, where the defendant resides, or where the cause of action accrued. An action that includes a cause of action for replevin and other causes of action may be brought in any county where venue is proper under chapter 47 for any of the other causes of action or in any county where venue for the replevin is proper under this section.

Id. This new section expanded the possible counties in which venue was proper beyond the one where the property was located. The overall result is that circuit and county courts have concurrent jurisdiction over a replevin action, and that venue is proper in a number of counties potentially. Nonetheless, a statutory re-plevin action is a legal claim, and because the amount in controversy is within the county court’s limits, it would — standing alone — be required to be filed in the county court.

Because circuit court jurisdiction exists over the equitable claim, but not over the closely-related legal claim, we resort to the principle of Alexdex that the concurrent equity jurisdiction of the county and circuit court’s does not require a circuit court— where a claim for equitable relief is properly asserted in that court — to transfer the case to county court due to the insufficiency of the monetary jurisdictional amount alleged. See Recanzone v. May Co., 712 So.2d 474 (Fla. 4th DCA 1998) (action in circuit court for “damages and injunctive relief’ not in excess of county court’s jurisdictional amount may not be transferred to county court). Consistent with this principle, we note that had the initial complaint been filed in a county court (where venue was proper), that court would have jurisdiction if the amount in controversy was within its jurisdictional limits. Plaintiffs have this choice when claims in equity are asserted. See Philip J. Padovano, Civil Practice § 1.5 (2013 ed.) (“Stated another way, an equitable claim can be asserted in the county court or in the circuit court if the amount in controversy is less than $15,000. This is a matter for the plaintiff to decide.”)

For these reasons, we deny Johnson’s petition seeking to prohibit the circuit court’s continuing jurisdiction over this case.

DENIED.

ROBERTS and SWANSON, JJ., concur.

      . Judge Padovano's treatise provides the example that "if the plaintiff elects to file the case in the circuit court, the assigned circuit judge may not thereafter transfer it to the county court merely because the county court would also have jurisdiction. However, an entirely different situation exists if an equitable claim is valued at more [than] $15,000. In that case, the circuit court would have exclusive jurisdiction.” Padovano, supra, § 1.5.


text:
    Carlos VIERA, Petitioner, v. STATE Of Florida, Respondent.
    No. 2D11-4093.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2014.
    Carlos Viera, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley and Nancy Jack, Assistant Attorneys General, Tampa, for Appellee.
   PER CURIAM.

In his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(d), Carlos Viera contends that his appellate counsel was ineffective for failing to argue that the then-standard jury instruction for manslaughter by act as given to the jury in Viera’s trial for second-degree murder was fundamental error. Based on the facts of Viera’s case and for the reasons discussed in Horne v. State, 128 So.3d 953 (Fla. 2d DCA 2013), we are constrained to reverse Viera’s second-degree murder conviction and remand for a new trial.

Reversed and remanded.

CASANUEVA, MORRIS, and BLACK, JJ., Concur.


author: WALLIS, J.

text:
    John A. OLIVER and Sean P. Sheppard, Appellants, v. Mary Anne OLIVER, Brandon Beardsley, and Daniel Mowrey, Appellees.
    No. 5D12-3215.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2014.
    Rehearing Denied March 10, 2014.
    Sean P. Sheppard of Sheppard Firm, P.A., Fort Lauderdale, for Appellants.
    Jessie L. Harrell of Creed & Gowdy, P.A., Jacksonville, for Appellees.
   WALLIS, J.

John A. Oliver and his attorney, Sean P. Sheppard, (“Appellants”) appeal the lower court’s order granting attorney’s fees pursuant to Florida Rule of Civil Procedure 1.380(a)(4) jointly and severally against Appellants after Brandon Beardsley and Daniel Mowrey (“Appellees”) prevailed on a motion for protective order that prevented Appellants from deposing Appel-lees. During the attorney’s fees hearing, Appellants admitted Appellees’ entitlement to fees, choosing to contest only whether the fees were reasonable. On appeal, Appellants are, contrary to their position before the trial court, attempting to contest Appellees’ entitlement to attorney’s fees. We, therefore, find that Appellants’ challenge to Appellees’ entitlement to attorney’s fees was waived in the trial court. Additionally, Appellants maintain their position that independent expert testimony was required regarding the reasonableness of the fees. See Sea World of Florida, Inc. v. Ace Am. Ins. Companies, Inc., 28 So.3d 158, 160 (Fla. 5th DCA 2010) (citing Crittenden Orange Blossom Fruit v. Stone, 514 So.2d 351, 352-53 (Fla.1987)). Because Appellees concede this point, we reverse and remand for the lower court to hear expert testimony. All remaining issues are without merit.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

TORPY, C.J., and GRIFFIN, J., concur.

      . Fla. R. Civ. P. 1.280(c).

      . An argument not raised at trial is waived for purposes of appellate review. Dep't of Rev. v. Yambert, 883 So.2d 881, 884 n. 3 (Fla. 5th DCA 2004) (citing Kozich v. Hartford Ins. Co. of Midwest, 609 So.2d 147 (Fla. 4th DCA 1992)).


author: BLACK, Judge.

text:
    Charles D. COMBS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3255.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 2014.

      Paul Horning and Marc F. Plotnick of Plotnick Law, P.A., St. Petersburg, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appel-lee.
   BLACK, Judge.

Charles Combs was convicted of two counts of robbery with a mask. He was sentenced to concurrent terms of thirty years in prison as a prison releasee reof-fender. Because we conclude that the trial court failed to conduct a Faretta hearing following Combs’ unequivocal request to represent himself, we must reverse. Our resolution renders all but one of Combs’ remaining six issues moot.

On December 16, 2011, the trial court held a hearing to address Combs’ motion to dismiss counsel and to revisit his notice of intent to use reverse Williams rule evidence. Following the denial of the motion to dismiss counsel, the court advised Combs that the next step was to determine whether he wanted to represent himself. The court told Combs that he would need to file a Faretta motion if he wished to represent himself. The following exchange occurred thereafter:

Court: Your motion to dismiss [counsel] is denied.... A written order will be forthcoming [as to the Williams rule issue].
Combs: How do I do the Faretta hearing then, your honor?
Court: Sir, I’m not here to give you legal advice.
Combs: No, I’m saying I would like to have a—
Court: Okay.
Combs: I would like to have a Faretta— Court: What did I just say?
Combs: I’m notifying the court that I would like to represent myself.
Court: What did I just say? Were you listening?
Combs: Yes, I was listening, your hon- or.
Court: Okay. So if you were listening—
Combs: You said my next step would be to do a Faretta hearing.
Court: File a motion for a Faretta hearing.

Combs’ statement that he was “notifying the court” that he wished to represent himself was unequivocal. Once a defendant unequivocally requests to represent himself, “ ‘pursuant to Faretta and this Court’s precedent, the trial court is obligated to hold a hearing to determine whether the defendant is knowingly and intelligently waiving his right to court-appointed counsel.’ ” Herron v. State, 113 So.3d 852, 854 (Fla. 2d DCA 2012) (quoting McCray v. State, 71 So.3d 848, 864 (Fla.2011)). “The ‘failure to take the preliminary step of holding a hearing on a defendant’s unequivocal pro se request results in per se reversible error.’ ” Id. (quoting McCray, 71 So.3d at 864); accord Wilson v. State, 76 So.3d 1085, 1088 (Fla. 2d DCA 2011). “ ‘[O]ur review is not amenable to a harmless error analysis,’ and we must reverse and remand for a new trial.” Id. (quoting Flournoy v. State, 47 So.3d 403, 403 (Fla. 2d DCA 2010)).

We note that contrary to the implied assertion of the trial court, a written motion to proceed pro se is not required. Oral invocations of the right to self-representation are sufficient to warrant a Faret-ta inquiry provided the request is unequivocal, as here. See Vollmer v. State, 101 So.3d 383, 384 (Fla. 2d DCA 2012); Hutchens v. State, 730 So.2d 825, 826 (Fla. 2d DCA 1999); Laramee v. State, 90 So.3d 341, 344 (Fla. 5th DCA 2012). And rather than require a written motion, “[i]f the trial court’s docket did not permit a contemporaneous Faretta inquiry, it should have scheduled the inquiry for a date certain before the scheduled trial date.” See Hutchens, 730 So.2d at 826. By failing to conduct a Faretta hearing, the court “sought to place the burden on the accused to renew his request at a later date” in violation of the defendant’s constitutional right. Id.

Because the issue may arise on retrial, we address the trial court’s error in sustaining the State’s hearsay objections to portions of Combs’ testimony.

The masked robbery with which Combs was charged was committed by two men. It appears undisputed, based upon police officers’ testimony, that one of the men was Dennis Kauffman. Two days after the robbery, Kauffman committed suicide.

Combs’ defense was that Kauffman and Anthony Foreman were responsible for the crime. Foreman had previously confessed to robbing the bank, detailing how he used items belonging to Combs as a disguise in the commission of the crime. Combs sought to introduce several out-of-court statements of Foreman and Kauff-man made just before the robbery to support his defense that Foreman and Kauff-man planned and committed the robbery together.

At a bench conference following the State’s repeated hearsay objections to Combs’ testimony, defense counsel argued that section 90.808(3), Florida Statutes (2011), permitted the statements to be introduced. He contended that Combs would testify as to conversations he had with Foreman and Kauffman prior to the robbery in which both men stated their intention to rob the bank. The court sustained the hearsay objections without elaboration.

Section 90.803(3)(a) is the then-existing state of mind hearsay exception. “A statement of the declarant’s then-existing state of mind ... including a statement of intent, plan, motive, [or] design ... when such evidence is offered to .... [p]rove or explain acts of subsequent conduct of the declarant,” is admissible. § 90.803(3)(a)(2). Relevancy is also a consideration in determining admissibility under the state of mind exception. Charles W. Ehrhardt, Ehrhardt’s Florida Evidence § 803.3b (2011 ed.). That is, “[t]he conduct that the declaration is offered to prove must be relevant to the issues in the case.” Id. And there must be “evidence demonstrating that the declarant acted in accord with the state of mind or intent.” Penalver v. State, 926 So.2d 1118, 1128 (Fla.2006).

With regard to Kauffman’s hearsay statements, “[t]he rule is quite generally recognized that the statements of a deceased person as to the purpose and destination of a trip or journey he is about to take are admissible.” See Bowen v. Keen, 154 Fla. 161, 17 So.2d 706, 711 (1944). Clearly, Kauffman’s alleged statements were relevant and supported by the fact that the robbery occurred. Foreman’s alleged statements were also admissible. Foreman’s inculpatory statements were relevant to Combs’ defense; Foreman’s confession was admitted into evidence. And again, the fact that the robbery occurred is sufficient evidence demonstrating that Foreman acted in accord with his stated intent. See Penalver, 926 So.2d at 1118. Further, although Foreman’s confession was admitted, so was his recantation. His credibility, as well as Combs’, was an issue before the jury. Foreman’s alleged statements would have been valuable to the defense. See Morris v. State, 487 So.2d 291, 292 (Fla.1986).

Based on the foregoing, we reverse and remand for a new trial.

SILBERMAN and KELLY, JJ., Concur.

      . Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . Williams v. State, 110 So.2d 654, 658-63 (Fla.1959); see also Simpson v. State, 3 So.3d 1135, 1145 n. 6 (Fla.2009) (defining reverse Williams rule evidence).


text:
    Mike Naim MUSALLAM, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4145.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 2014.
    Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

When Mike Musallam pleaded no contest to charges of felon in possession of a firearm, § 790.23(a), Fla. Stat. (2011), and possession of a concealed weapon, § 790.01(2), he reserved for appeal the denial of his dispositive motion to suppress the handgun from which the charges stemmed. We conclude that law enforcement’s discovery of the gun was the fruit of an illegal detention. Therefore, we reverse Musallam’s convictions and remand with directions to discharge him.

Musallam came to the attention of law enforcement because he and several friends were smoking cigarettes in a public park. Smoking was prohibited in the park. A park employee spied the men and called a sheriffs deputy, who could issue a trespass warning. The deputy arrived and spoke with the men, each of whom eon-sented to a search of his person. In the course of his conversations, the deputy learned that the men had come to the park in a car but none of them had a valid driver’s license. The deputy instructed them not to drive the car. The men departed on foot, but a few minutes later the park employee saw Musallam approach the car and retrieve something from its passenger-side door pocket. The park employee alerted the deputy, who returned and stopped Musallam.

The deputy observed a bulge in Musal-lam’s pocket that he had not noticed during their earlier encounter. When the deputy asked Musallam for consent to a pat down, Musallam asserted that the deputy had no reason to search him, and he refused. The deputy then detained Musal-lam and radioed for back-up. When the additional deputies arrived, the deputy began walking toward Musallam. At that point, Musallam advised that there was a gun in his pocket. The deputy retrieved the weapon.

There can be no dispute that Mu-sallam disclosed his possession of the weapon as a direct consequence of his detention. Thus, the suppression issue turns on the propriety of the detention. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); F.E.H. v. State, 28 So.3d 213 (Fla. 4th DCA 2010) (holding that cannabis should have been excluded where defendant disclosed his possession of it during improper investigative detention). An officer may effect a temporary investigative detention if the circumstances reasonably indicate that the person detained has committed, is committing, or is about to commit a crime. § 901.151, Fla. Stat. (2012). The detention must be based on more than an “inarticulate hunch.” Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It is proper only when the officer has a “well-founded, articulable suspicion of criminal activity.” Popple v. State, 626 So.2d 185, 186 (Fla.1993).

Here, the circuit court held that Musallam was detained legally, positing that “[the deputy] knows something’s up because five minutes before [the bulge] wasn’t there and these guys are in the park.” But knowing “something’s up” is no more than a hunch; it does not amount to a well-founded, articulable suspicion of criminal activity sufficient to justify an investigative detention. See Newkirk v. State, 964 So.2d 861, 863 (Fla. 2d DCA 2007) (holding that investigative detention was not authorized where officer, who observed teenaged defendant and another minor run from some woods and saw defendant place something in his pants and cover it with his shirt, stopped the youths to “find out what was going on”); Eldridge v. State, 817 So.2d 884, 888-89 (Fla. 5th DCA 2002) (observing that the officer’s testimony that he felt defendant was lying and had something to hide demonstrated that the officer merely had a hunch).

Manifestly, there is nothing objectively suspicious about the fact that, having been directed to depart a public park and to leave behind the car in which he had arrived, a person would first retrieve his personal belonging from the car and put it in his pocket. See Rinehart v. State, 778 So.2d 331, 333 (Fla. 2d DCA 2000) (holding that fact that two people entered a car parked near a building that contained both businesses and residences at 4:30 a.m. during the spring break period was insufficient to give law enforcement a well-founded, articulable suspicion that criminal activity might be afoot); Carter v. State, 454 So.2d 739, 742 (Fla. 2d DCA 1984) (holding that investigative detention was not justified where officers made only brief observations of conduct that was at least equally consistent with noncriminal activity, leading them to “feel,” “suspect,” or “believe” that criminal activity might be afoot).

The deputy testified that the park was in a high crime area and that Musallam acted “evasively.” But he did not describe any behavior that suggested Musallam was engaging in, or was about to engage in, a crime. See F.E.H., 28 So.3d at 216 (holding that officer who observed two males standing in parking lot of closed business during late hours in a high narcotics area lacked reasonable suspicion to justify investigative detention); Maldonado v. State, 992 So.2d 839, 843 (Fla. 2d DCA 2008) (concluding that defendant’s nervous and evasive behavior during traffic stop, his lying about the starting point of his trip, and his travel during early morning hours on an interstate highway that was a known drug corridor were insufficient to justify investigative detention beyond time necessary to write traffic citation); Eldridge, 817 So.2d at 888 (holding that defendant’s nervousness, failure to give a specific street address, and possession of large amount of cash did not establish reasonable suspicion); Sims v. State, 622 So.2d 180, 181-82 (Fla. 1st DCA 1993) (driving in high crime area and nervousness after traffic stop held insufficient to justify investigative detention beyond issuance of traffic citation). To the contrary, the deputy’s testimony that the park was a high crime area merely underscored why someone reasonably — and innocently— would remove personal items from a car that he had been instructed to abandon. See Carter, 454 So.2d at 742 n. 2 (noting that defendant sitting inside lighted vehicle parked outside lounge during business hours could have been searching for a misplaced cigarette lighter or performing numerous other innocent activities).

The circuit court erred when it denied the motion to suppress. We reverse Mu-sallam’s convictions and remand with directions to discharge him.

ALTENBERND and CASANUEVA, JJ., Concur.