source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    Sean Andre SINGLETON, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3636.
    District Court of Appeal of Florida, Second District.
    July 11, 2012.
    James Marion Moorman, Public Defender, and Joshua Schoen, Special 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.

Sean Singleton raises multiple issues on appeal from his convictions for burglary and grand theft. We agree with his assertion that the trial court should have granted his motion for judgments of acquittal because the State’s evidence was legally insufficient to convict him. Accordingly, we reverse the convictions and remand for Singleton’s discharge.

The accusations against Singleton stemmed from the theft of items from a home one morning after the owner had departed for work. The victim testified that he left the house at around 6:30. Several hours later, the owner’s nephew arrived to use his uncle’s computer. The nephew testified that he let himself into the house with a key and immediately noticed that several items were missing, including a computer and a rear projection television set. He then heard a noise, so he went outside to call the police. While the nephew waited outside for the police to arrive, he saw Singleton standing with a dog in the yard next door; Singleton appeared to be taking the dog outside to relieve itself. The nephew testified that he had seen Singleton before, during visits to his uncle in the previous month or so.

Deputies from the Collier County Sheriffs Office responded to the nephew’s call and checked the burgled house, finding no one inside. At trial, a sheriffs sergeant testified that he noticed a rented box truck parked on the property next door. Situated on the property was a residential duplex. The truck was parked in the driveway of the unit nearest the victim’s house. This unit had eviction or foreclosure stickers on the window, and it appeared to be vacant. The adjoining unit seemed to be occupied, but the sergeant got no response when he knocked there.

The hood of the truck felt warm to the sergeant’s touch, but he could not say whether it had been running. The rear of the truck had a rolling cargo door, which was closed but not secured or locked. The sergeant noticed some leaves protruding from under the door. A crime scene technician later testified that the leaves matched shrubbery at the victim’s house but not shrubbery at the neighboring duplex.

The sergeant testified that he smelled a tobacco odor that seemed to emanate from inside the truck. Thinking that someone might be hiding there, he rolled up the cargo door. No one was inside, but the sergeant found what he described as a burning cigar, a Black and Mild brand with a plastic tip. It was resting on the rear edge of the cargo deck but had not been fully visible when the door was closed. Inside the truck, the sergeant also found the burglary victim’s stolen property-

Rental records reflected that the truck had been rented to Richard Clark, who was called to the scene. Clark testified that he had been helping a friend move from one of the duplexes. The day before the burglary, he and the friend, along with the friend’s eighteen-year-old son and Singleton, had partially loaded the truck. He and his friend agreed to return around 3:30 the following afternoon to finish loading; Clark did not know whether Singleton or his friend’s son heard this conversation. Clark had the only ignition key to the truck.

Clark said that the rear door of the truck had not been locked overnight and that the stolen items, the leaves, and the cigar had not been in the truck when he left the previous evening. According to Clark, he told the sergeant that during the move Singleton and his friend’s son had been smoking the type of cigar the sergeant had found in the truck. But the sergeant recounted that Clark said only that Singleton had been smoking that type. Subsequent testing detected Singleton’s DNA on the cigar.

Finally, the sergeant testified that Singleton arrived on the scene a bit later. The sergeant described him as very animated and boisterous. Singleton first said that he had last been at the duplex on the evening before, but when the sergeant indicated that he had different information, Singleton “said that he had been there that morning to deal with his dog.” Parenthetically, we note that the police report stated that Singleton had been staying with his friend and still had his dog there; at trial the State introduced no evidence showing where Singleton and his dog were living at the time of the burglary.

The sergeant testified that he did not know if Singleton went inside the victim’s house, nor did he know if Singleton carried the stolen property outside or put it in the truck. Photographs taken at the scene showed the stolen property neatly packed among the items that had been loaded into the truck from the duplex. A fingerprint found on one stolen item did not match Singleton’s prints. No fingerprints were found inside the burgled residence.

At the close of the State’s case, Singleton moved for judgments of acquittal. He argued that the State’s circumstantial evidence failed to rebut his reasonable hypothesis of innocence and required an impermissible pyramiding of inferences before the jury could reach guilty verdicts. The motion was denied, and Singleton repeats this argument on appeal.

When the State’s case is based wholly on circumstantial evidence, the evidence must be sufficient to establish each element of the offense and it must also exclude any reasonable hypothesis of innocence. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). When a circumstantial evidence case fails to exclude the defendant’s reasonable hypothesis of innocence, the defendant must be acquitted “no matter how strongly the evidence may suggest guilt.” State v. Law, 559 So.2d 187, 188 (Fla.1989).

The State contends that the circumstantial evidence standard is inapplicable here because there was direct evidence that Singleton’s DNA was on the cigar found at the scene. But that was not direct evidence of Singleton’s participation in the burglary and theft; it was direct evidence merely of a circumstance that suggested his participation. See Atkinson v. State, 429 So.2d 726 (Fla. 1st DCA 1983) (characterizing case that included DNA evidence as one based on wholly circumstantial evidence, but affirming convictions where evidence was inconsistent with appellant’s hypothesis of innocence). In his treatise on Florida evidence law, Professor Ehrhardt explained the difference between direct and circumstantial evidence as follows:

Direct evidence is evidence which requires only the inference that what the witness said is true to prove a material fact; e.g., “I saw A shoot B” is direct evidence that A shot B. Circumstantial evidence is evidence which involves an additional inference to prove the material fact; e.g., “I saw A flee the scene” is circumstantial evidence of A’s guilt and direct evidence of flight.

Charles W. Ehrhardt, Ehrhardt’s Florida Evidence § 401.1 (2011 ed.); see also Hertz v. State, 803 So.2d 629, 646 n. 17 (Fla.2001) (quoting Ehrhardt’s definition of direct evidence); Horne v. State, 997 So.2d 1262, 1265 (Fla. 4th DCA 2009) (“Circumstantial evidence is proof of certain facts and circumstances from which the [jury] may infer that the ultimate facts in dispute existed or did not exist.” (quoting Baugh v. State, 961 So.2d 198, 203 n. 5 (Fla.2007)) (internal quotation marks omitted)).

The State is also mistaken in its reliance on the statutory presumption that, in the absence of a reasonable explanation, one in possession of recently stolen property knew or should have known that the property was stolen. See § 812.022(2), Fla. Stat. (2008). Simply put: Singleton was not in possession of the stolen property. He did not have actual possession because the property was not in his hand or on his person, it was not in a container in his hand or on his person, and it was not within his “ready reach” and under his control. See Sundin v. State, 27 So.3d 675, 676-77 (Fla. 2d DCA 2009). Further, the property was not found in plain view on premises under Singleton’s control, which would have supported an inference that it was under his control. See id.

Nor did Singleton constructively possess the property. The State offered no evidence to show that he had dominion and control over the stolen items, which were located in the back of an unlocked truck that was rented to someone else who had the keys. See id. The presumption only applies to “fairly recent, exclusive and unexplained or unsatisfactorily explained” possession of stolen property. Solomon v. State, 145 So.2d 492, 498 (Fla. 2d DCA 1962) (emphasis added).

Thus, the statutory presumption of an accused’s guilty knowledge based on his possession of recently stolen property did not apply here. The question then is whether the State produced other competent evidence from which the jury could lawfully infer Singleton’s guilt to the exclusion of all other inferences. See Law, 559 So.2d at 189. We apply a de novo standard of review, taking the evidence in the light most favorable to the State. Pagan, 830 So.2d at 803.

We conclude that the State’s proof was woefully lacking. The sum total of the evidence against Singleton was (1) he was in the vicinity of the crime and the stolen property after the burglary, and (2) his smouldering cigar was left on the rear edge of the rental truck’s cargo deck sometime shortly before the sheriff’s sergeant discovered it there. At most, the State’s evidence simply established Singleton’s presence at the place where the victim’s property was stored after it was stolen. This was not legally sufficient to prove him guilty of the burglary and theft. See Owen v. State, 432 So.2d 579, 581 (Fla. 2d DCA 1983).

Even when coupled with knowledge that a crime is about to be committed, an accused’s mere presence at the scene does not eliminate a reasonable hypothesis that someone other than the accused committed the crime. See Valdez v. State, 504 So.2d 9, 10 (Fla. 2d DCA 1986) (“Mere knowledge that an offense is being committed is not the same as participation with criminal intent.”); see also Owen, 432 So.2d at 581 (“[W]hen the state relies on circumstantial evidence, the circumstances, when taken together, must be of a conclusive nature and tendency, leading on the whole to a reasonable and moral certainty that the accused and no one else committed the offense charged.”).

This principle is especially appropriate in a case such as this, in which circumstances affirmatively suggested innocent explanations for the accused’s presence. As the victim’s nephew testified, there was nothing unusual about seeing Singleton outside the duplex, and Singleton was not doing anything unusual; he was walking his dog. And, having spent the previous evening helping to load a friend’s belongings into a truck that had then sat unlocked overnight, Singleton reasonably could have been expected to open the truck’s door to check on the contents.

The evidence in this case was legally insufficient to support Singleton’s convictions. Accordingly, we must reverse the convictions and remand with directions to discharge him. Singleton’s other issues are thus rendered moot.

Reversed and remanded with directions.

KHOUZAM and BLACK, JJ., Concur.


author: MAKAR, J. CLARK, J.,

text:
    Marybeth MORGAN, Appellant, v. Annie MILTON, Appellee.
    Nos. 1D11-2242, 1D11-3649.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2012.
    Rehearing Denied Dec. 5, 2012.

      Caryn L. Bellus and Bretton C. Al-brecht, Kubicki Draper, Miami, for Appellant.

      John S. Mills and Andrew D. Manko, The Mills Firm, Tallahassee, for Appellee.
   MAKAR, J.

Defendant, Marybeth Morgan, appeals an award of damages to plaintiff, Annie Milton, for personal injuries arising out of an automobile accident. Ms. Morgan contends the jury verdict was tainted by misconduct because a juror lied during voir dire. We strongly condemn the juror’s misconduct, but applicable precedent leads us to affirm in this case.

During voir dire, each prospective juror was asked to complete a standard questionnaire regarding basic personal facts: place of residence, marital status, employment, and history of litigation. In addition, the trial court asked the venire if any of them had been involved in an automobile accident or had been a party to a lawsuit. Several members of the jury answered these questions in the affirmative, but juror Sabrina Poppell remained silent. When it was Ms. Poppell’s turn to answer the questionnaire, she responded “I have never served on a jury or been a party or a witness, no, sir.” Other members of the jury had answered affirmatively, and the trial court asked follow-up questions of those jurors regarding whether they felt the legal system had worked fairly for them; neither attorney asked follow-up questions about prior litigation, however.

During jury selection, Ms. Morgan used two of her three peremptory strikes, the first to strike a prospective juror who had been in several serious car accidents (though not involved in judicial proceedings) and seemed uncomfortable in the jury box. The second was used to strike the alternate juror (who suffered from chronic pain, had previously been in a car accident, had been in an arbitration proceeding with her bank, and whose sister worked in the same field as the plaintiff). Plaintiff used all of her three strikes, eliminating two venire members who had been involved in accidents and one who planned to attend a football game the night before trial. The final jury included one member with current litigation pending from an automobile accident and another who had hired a lawyer in an insurance dispute several years prior. The next morning, prior to the panel being sworn, the trial court dismissed one of the jurors for cause after the parties discovered he had been involved in an accident a month earlier and had hired a lawyer in that case — facts he had failed to disclose.

The jury awarded plaintiff nearly $500,000 in compensatory damages. The same day of the jury verdict, the trial judge that afternoon came across a collections case scheduled on his docket for the next week: the defendant in the case was juror Sabrina Poppell. The trial court promptly notified both parties’ attorneys, and Ms. Morgan subsequently filed a motion for a new trial based on Ms. Poppell’s misleading answers during voir dire.

The trial court held a hearing on the matter and determined that the juror was indeed the same Sabrina Poppell as the defendant in the collections case on his docket. He found that Ms. Poppell had misled the court and the parties due to her untrue statement in voir dire. He concluded, however, that Ms. Morgan had failed to demonstrate that the misrepresentation was material (as defined under the caselaw) and denied the motion for a new trial.

Ms. Morgan seeks reversal, claiming the juror’s misleading statements in voir dire violated her right to inquire into areas of potential bias. She argues the false answers denied her the opportunity to make an informed decision in selecting the jury. We review the trial court’s decision to deny a new trial for abuse of discretion. See Freedman v. De La Cuesta, 929 So.2d 25, 26 (Fla. 3d DCA 2006).

At first blush, the denial of a new trial here seems unfair to Ms. Morgan. She is correct that her right to inquire into previous litigation experience is denied when a juror falsely says she has never been involved in litigation. But a per se reversal rule does not apply in these situations. Instead, a reviewing court must balance that right against the need for finality in judgments, as not all false answers are significant enough to make a jury verdict sufficiently unreliable to justify a new trial.

The supreme court has adopted a three-part test for determining whether a juror’s concealment of information during voir dire warrants a new trial: “First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party’s lack of diligence.” De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla.1995); Bolling v. State, 61 So.3d 419, 419-20 (Fla. 1st DCA 2011).

Here, the second and third prongs are readily established: it is undisputed that Ms. Poppell concealed information, and it would be unreasonable to charge Ms. Morgan with failing to elicit such information given the prospective juror’s unequivocal but false statements about her litigation history. The first prong, relevance and materiality, is more nuanced and subjective to some degree. Past litigation experience is per se relevant to jury service. Roberts ex rel. Roberts v. Tejada, 814 So.2d 334, 339 (Fla.2002). To show materiality, however, the proponent of the new trial must show that the concealed information was material to jury service in the context of the specific case at hand. De La Rosa, 659 So.2d at 241. Moreover, it must be shown that the concealed information, if it had been disclosed, “would in all likelihood have resulted in a peremptory challenge.” Id. at 242 (citation omitted); Roberts, 814 So.2d at 340 n. 9. Materiality involves a matter to which counsel reasonably would have given “substantial weight” in the exercise of peremptory challenges. Mitchell v. State, 458 So.2d 819, 821 (Fla. 1st DCA 1984).

We find persuasive in this case that Ms. Morgan failed to exercise peremptory challenges to strike two other members of the venire who had disclosed involvement in litigation activities. Her strikes focused primarily on other factors, not litigation experience; admittedly, she did strike the alternate juror who, among other areas of questioning, was asked about an arbitration proceeding with her bank. But Ms. Morgan did not question any of the other jurors about their litigation experience, leaving little upon which to conclude that she would have questioned Ms. Poppell further had she disclosed her pending litigation. Instead, it appears from the record that Ms. Morgan did not find past litigation experience so material that she would “in all likelihood” have exercised a peremptory challenge against Ms. Poppell had she told the truth.

We pause in noting that the undisclosed litigation was pending before the very same trial judge. This fact raises a question of whether, despite not questioning all jurors about their litigation experience, Ms. Morgan would have questioned Ms. Poppell about her experience, particularly with this trial judge. We have been unable to find any case involving a similar situation that might shed light on whether this factor matters. While it raises a concern, we believe the trial court adeptly addressed the matter and was in a better position to determine whether it was material given the overall circumstances.

Indeed, Florida courts give great deference to such decisions because trial judges are in the unique position to evaluate the practices of the attorneys during voir dire and to determine what factors were material in jury selection. The parties direct us to a panoply of cases where new trials were warranted; nearly all involve the trial court’s initial grant of a new trial. Where they do not, some additional factor is present: identity of parties between the jury service case and the litigation concealed, as in Palm Beach County Health Department v. Wilson, 944 So.2d 428 (Fla. 4th DCA 2006); or absence in the record of sufficient facts to make a determination, as in State Farm Fire & Casualty Co. v. Levine, 837 So.2d 363 (Fla.2002). Tellingly, we find no case reversing a trial court’s determination that prior jury service was immaterial where trial counsel failed to strike the other members of the venire who had been involved in litigation. We decline, therefore, to find the trial court abused its discretion here.

We again emphasize the distressing conduct in this case: a juror, in whom the parties necessarily placed their faith to be a fair and neutral finder of fact, affirmatively misled the parties and the trial court under oath. We cannot and do not condone this conduct. It has not been shown, however, that the non-disclosure meets the legal standard under the caselaw to warrant a new trial.

AFFIRMED.

BENTON, C.J., concurs.

CLARK, J., dissents with opinion.

CLARK, J.,

dissents, with opinion.

I respectfully dissent.

The majority opinion suggests that Ms. Poppel’s concealment of her pending litigation before this judge is not material because the appellant’s counsel did not question two other jurors about their litigation experience. However, those jurors did reveal their litigation history during the questioning by the court on voir dire. In wrongly concealing her pending litigation, Ms. Poppel precluded any inquiry about her situation and what impact her situation might have on her ability to render a fair and impartial verdict.

In my view, being a party in another proceeding pending before the same judge is material — especially where the other proceeding was being litigated at the same time this trial was being litigated. Ms. Poppel’s pending proceeding was something which “counsel may reasonably be expected to give substantial weight in the exercise of his peremptory challenges.... ” See Mitchell v. State, 458 So.2d 819 (Fla. 1st DCA 1984). The concealment of material information prevented counsel from “making an informed judgment” which may have influenced counsel’s decision regarding peremptory challenges. Ms. Pop-pel’s candor and truthfulness may have “in all likelihood resulted in a peremptory challenge.” See Roberts v. Tejada, 814 So.2d 334 (Fla.2002).

Lawyers are entitled to make informed decisions about peremptory and cause challenges at voir dire, and should be able to base those informed decisions on truthful responses to inquiries on voir dire. Ms. Poppel’s concealment of a matter counsel may have reasonably accorded substantial weight raises concern as to the legitimacy of the jury verdict. As pointed out in State Farm Mutual Auto. Ins. v. Lawrence, 65 So.3d 52 (Fla. 2d DCA 2011), the juror’s concealment of a material fact casts doubt upon any confidence in the fairness of the verdict, and the integrity of the process.

Of course, it is impossible to know exactly what counsel would have done had he known the truth about this juror’s involvement in numerous lawsuits, including the one pending. However, once the truth was discovered, and a new trial was not ordered based on the juror’s failure to reveal a material fact, the confidence in our jury system faltered. Ms. Poppel’s untruthfulness injected doubt about the legitimacy of the process.

The denial of the request for new trial under these circumstances should be deemed an abuse of discretion. Preserving the right to a fair trial before a proper jury fosters confidence in and preserves the legitimacy of the legal process.

The judgment should be reversed and the case remanded for a new trial before a proper jury.


author: PER CURIAM.

text:
    Octavius WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2748.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2012.
    Rehearing Denied Jan. 28, 2013.
    Octavius Walker, Arcadia, pro se.
    No Appearance for Appellee.
   PER CURIAM.

We affirm the trial court’s order denying Walker’s rule 3.800(a) motion without prejudice to Walker filing a rule 3.800(a) motion that affirmatively demonstrates on the face of the record his entitlement to additional credit. See Woody v. State, 993 So.2d 1158 (Fla. 4th DCA 2008).

AFFIRMED.

GRIFFIN, EVANDER and JACOBUS, JJ., concur.


author: GLANT, DAVID A., Associate Judge.

text:
    Bryan Anthony ROMERO, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2122.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2012.
    Rehearing Denied Jan. 28, 2013.

      Bryan S. Gowdy of Creed & Gowdy, P.A., Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   GLANT, DAVID A., Associate Judge.

Bryan A. Romero raises two issues on appeal: 1) the trial court erred in allowing the state to exercise a peremptory strike on a venireperson based on the fact that she spoke Spanish and might not defer to the official translation 2) his life sentence without the possibility of parole for second-degree murder is unconstitutional under Graham v. Florida, — U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). We affirm on both issues for the reasons set forth below.

On a summer afternoon in Jacksonville, Florida, the victim Timothy Siebold and his girlfriend wanted to visit a neighborhood park. Unsure of how to enter, they asked for directions from three teenage boys nearby. At this moment, appellant and a friend walked past them. Appellant was 18. Appellant and his friend commented that Mr. Siebold and his girlfriend were probably buying drugs off the teenagers, whereupon a verbal altercation ensued between the parties. In a matter of moments, appellant pulled out a gun hidden under his shirt and shot Mr. Siebold, who was shirtless, in the chest. Appellant and his friend then ran off in opposite directions and appellant threw his gun into a bush. Mr. Siebold was rushed to Shands hospital but died that night. Appellant was found guilty of second-degree murder by a jury and sentenced to life without parole.

Appellant’s first issue is unpre-served for review because defense counsel affirmatively accepted the jury “immediately prior to its being sworn without reservation of his earlier-made objection.” Joiner v. State, 618 So.2d 174, 176 (Fla.1993). We briefly address this issue as a reminder to practitioners that the reasoning behind this rule is to prevent defense from proceeding to trial “before a jury he unqualifiedly accepted, knowing that in the event of an unfavorable verdict, he would hold a trump card entitling him to a new trial.” Id. at 176 n. 2. See also Mitchell v. State, 620 So.2d 1008, 1009 (Fla.1993); Milstein v. Mutual Sec. Life Ins. Co., 705 So.2d 639, 640 (Fla. 3d DCA 1998); Bauta v. State, 698 So.2d 860, 862 (Fla. 3d DCA 1997). Although there have been instances where an explicit renewal of the objection was deemed “futile” because a jury was sworn in within a matter of minutes after the initial objection, Gootee v. Clevinger, 778 So.2d 1005, 1009 (Fla. 5th DCA 2000), such was not the appellant’s case. Instead, there was a day’s lapse between appellant’s initial objection and the jury being sworn. Moreover, affirmative acceptance as required by Joiner can be inferred from counsel’s failure to renew his objection. See Milstein, 705 So.2d at 641; Watson v. Gulf Power Co., 695 So.2d 904, 905 (Fla. 1st DCA 1997). As this issue was not properly preserved, we do not reach the merits.

We now turn to appellant’s constitutional challenge under Graham v. Florida, — U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825, which prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. Id. at 2034. However, appellant was not a juvenile at the time of the offense. He urges us to overlook this fact by focusing on the juvenile nature of his mental and emotional development. He argues, in essence, that he was a juvenile in all but age.

At appellant’s sentencing hearing, which consisted of nine witnesses and produced over 100 pages of transcript, appellant urged the trial judge to view his age as a mitigating factor. Specifically, appellant demonstrated through the testimony of his examining psychologist that he is borderline mentally retarded with an IQ of approximately 70, that he has a learning disability, and never passed the seventh grade. Appellant also offered his proclivity for video games as well as his reliance on the advice of his mother as further evidence of his juvenile nature. At the hearing, defense counsel explicitly stated in closing, ‘Tour Honor, what I’m asking you for is to look at his age.” The trial judge did consider his age, but decided that given the brutality of this murder in broad daylight, Mr. Romero had “forfeited all opportunities to walk in the midst of our free society.” Unsuccessful in mitigating his life sentence, appellant now argues on appeal that Graham should be extended to him based on the same youth factors he advanced below.

Graham, is not controlling for an adult defendant. In so holding, we emphasize, as did the Second District, that the Supreme Court itself limited the scope of Graham. The Second District derived four necessary factors for Graham to apply, which we fully endorse:

(1) the offender was a juvenile when he committed his offense, (2) the sentence imposed applied to a singular nonhomi-cide offense, (3) the offender was “sentenced to life,” and (4) the sentence does not provide the offender with any possibility of release during his lifetime.

Walle v. State, 99 So.3d 967 (Fla. 2d DCA 2012). Appellant was 18 at the time of the offense and thus does not meet the first necessary factor. Nor does appellant’s case meet the second factor as a homicide was committed. Unless all four factors are met, Graham will not apply.

Not a single court in this country has extended Graham to an adult offender. On the contrary, several courts have reaffirmed that Graham is inapplicable to adult offenders. The Fourth District in Jean-Michel v. State, 96 So.3d 1043 (Fla. 4th DCA 2012) held that Graham itself refuted the contention that it applied to a 19 year old defendant. In United States v. Moore, 643 F.3d 451, 457 (6th Cir.2011), the adult defendant argued that his statutorily-mandated sentence of fifteen years for possession of a firearm as an “Armed Career Criminal” was unconstitutional by analogizing to Graham. He asserted that his reduced culpability, resulting from mental retardation, was not adequately considered as Graham would require. Moore, 643 F.3d at 457. The Sixth Circuit responded, “[i]n adopting a categorical approach, the Court drew a line exempting a specific class of offender (juveniles who do not commit homicide) from a specific punishment (life without the possibility of parole). But this approach does not apply in every Eighth Amendment challenge.” Id. See also United States v. Jones, 476 Fed.Appx. 651, 652 (6th Cir.2012) (“The Supreme Court’s decision' in Graham ... does not compel a different result because, unlike the defendant in Graham, Jones was an adult when he committed the ... offense”); United States v. Graham, 622 F.3d 445, 462 (6th Cir.2010) cert. denied Graham v. United States, — U.S. -, 131 S.Ct. 2962, 180 L.Ed.2d 251 (U.S.2011) (holding that Graham did not prohibit an adult defendant from receiving a life sentence imposed for his third qualifying felony under 21 U.S.C. § 841(b)(1)(A)); United States v. Scott, 610 F.3d 1009, 1018 (8th Cir.2010) (“The Court in Graham did not call into question the constitutionality of using prior convictions, juvenile or otherwise, to enhance the sentence of a convicted adult.”); United States v. Farley, 607 F.3d 1294, 1342 n. 34 (11th Cir.2010) (holding that Graham did not affect the defendant’s thirty-year mandatory minimum child-pornography sentence because the defendant was an adult at the time he committed the offense).

Appellant concedes that the rule of Graham does not apply to him, but urges this Court to advance the rationale of Graham on a case-by-case approach. Presumably, this would require us to scrutinize appellant’s life sentence based on his purported juvenile characteristics: low IQ, emotional immaturity, and low level of education. We decline to do so because nothing in Graham mandates, or even suggests that its rationale should be expanded to adult defendants. Were we to apply this novel analysis and find for the appellant, we would be bound to find, for example, that a life sentence for a 49 year old offender with similar juvenile traits would also be unconstitutional under the theory of diminished culpability due to his youth.

We apply Graham as written. We decline to take the extreme act of extending Graham to adult offenders in the absence of a clear and explicit directive from the Supreme Court.

Affirmed.

THOMAS and ROWE, JJ., concur.

      . Miller v. Alabama, - U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), decided two months after appellant's appeal, held that mandatory life sentences without parole for those under the age of 18 who committed a homicide violates the Eighth Amendment because such a mandatory sentencing scheme "prevent[ed] those meting out punishment from considering a juvenile’s 'lessened culpability’ and greater 'capacity for change’.” Id. at 2460. Appellant indirectly relies on Miller by citing Daugherty v. State, 96 So.3d 1076 (Fla. 4th DCA 2012), in which the Fourth District remanded a juvenile's non-mandatory sentence to life without parole for the trial court to "expressly consider whether any of the numerous ‘distinctive attributes of youth' referenced in Miller apply in this case.” Id. Appellant's reliance on these cases is misplaced because appellant is not a juvenile and his sentence was not statutorily-mandated. Assuming, arguendo, that Miller applies, appellant received a full sentencing hearing where his youth was extensively discussed. Thus Miller would not affect the outcome.

      . In formulating these factors, the Second District looked to Miller v. Alabama as guidance for applying Graham and noted that Graham’s "foundational principle" is that a state’s most severe penalty cannot be meted out to juveniles with complete disregard to the fact that they are children. See Walle v. State, 99 So.3d 967 (Fla. 2d DCA 2012).

      . See supra n. 1 discussing the inapplicability of Miller.


text:
    Joseph Paul LOWERY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-753.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2012.
    Rehearing Denied Jan. 28, 2013.
    Nancy A. Daniels, Public Defender and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, for Appellee.
   PER CURIAM.

In this Anders appeal, Joseph Lowery seeks reversal of the circuit court’s grant of his motion to correct illegal sentence to add a 3-year minimum mandatory provision, pursuant to section 775.087(2), Florida Statutes, but denying his request to withdraw his plea entered December 14, 2000. Appellant argues that he is entitled to withdraw his plea upon the entry of the corrected sentence because the 3-year mandatory minimum provision violates his original plea agreement. He relies on Hurd v. State, 807 So.2d 753 (Fla. 3d DCA 2002) and State v. Moore, 854 So.2d 832 (Fla. 5th DCA 2003) (where plea entered with express understanding that mandatory minimum will not be imposed, defendant must have opportunity to withdraw plea when court is required to enter mandatory minimum) to support his position.

The circuit court correctly found that Appellant’s motion under rule 3.800, Florida Rules of Criminal Procedure, was not the proper avenue to seek withdrawal of his plea. See Johnson v. State, 60 So.3d 1045 (Fla.2011). Rule 3.800 addresses the correction of sentencing errors, not the voluntariness or validity of pleas.

We note that our independent review of the record in this Anders appeal, as required by State v. Causey, 503 So.2d 321 (Fla.1987), reveals that Appellant’s original plea was not conditioned upon an agreement that no mandatory minimum sentence would be entered. The Sentence Recommendation, signed by Appellant on December 14, 2000, is devoid of any reference to an agreement that no mandatory minimum sentence would be imposed. To the contrary, the notation in the section entitled “Terms of Plea Entry and Sentence Recommendation Agreed Upon by the State and Defendant” provides: “Straight Up.” In addition, while the original mandatory minimum sentence of 10 years was later corrected by the trial court, the plea was not the. reason for this change. Appellant’s claim that his original plea precluded the entry of a statutorily required mandatory minimum sentence is thus refuted in the record.

Accordingly, the order granting correction of sentencing error, entered January 2, 2012, is AFFIRMED.

PADOVANO, THOMAS, and CLARK, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: CORTINAS, J.

text:
    GALLEON BAY CORPORATION, a Florida corporation, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, Florida, and the State of Florida, Appellees.
    No. 3D11-1296.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 2012.

      James S. Mattson, Key Largo; Andrew M. Tobin, Tavernier, for appellant.
    Jonathan A. Glogau, Chief Complex Litigation, and Lisa M. Raleigh, Special Counsel, Tallahassee; Derek V. Howard, Assistant County Attorney, Monroe County Attorney’s Office, Key West, for appel-lees.
    Before SUAREZ, CORTIÑAS and FERNANDEZ, JJ.
   CORTINAS, J.

When apt-named Galleon first set out to develop its property, it could not have possibly imagined the tumultuous seas it would encounter in the decades that followed. While galleons have not been spotted on our shores since the Eighteenth Century, this is our Court’s seventh encounter with this case.'

We first visited this matter ten years ago in 2002, when Monroe County filed a petition for second tier certiorari review of a Final Judgment Granting Writ of Certio-rari entered by the first trial judge presiding over this matter, now-retired Circuit Judge Richard Payne. We denied the petition in Monroe County v. Galleon Bay Corporation, 876 So.2d 569 (Fla. 3d DCA 2004).

We then saw another appeal and a petition for a writ of prohibition in 2004. These two cases were voluntarily dismissed. See State v. Bd. of Cnty. Comm’rs of Monroe Cnty., 908 So.2d 1077 (Fla. 3d DCA 2005).

In 2006, the matter returned to us by way of another petition for a writ of prohibition which we denied, as well as two other appeals which we affirmed. See State of Florida and Bd. of Cnty. Commr’s of Monroe Cnty. v. Galleon Bay Corp., 930 So.2d 627 (Fla. 3d DCA 2006); Bd. of Cnty. Comm’rs of Monroe Cnty. v. Galleon Bay Corp., 954 So.2d 1169 (Fla. 3d DCA 2007).

Now, after what Judge Payne fittingly referred to as an “odyssey of disappointment,” we revisit this case on plenary appeal. We reverse.

Factual Background

In the late 1960’s and into the 1970’s, Wolfgang Schleu and his wife, Hannelore Schleu, engaged in the acquisition of property on No Name Key, in Monroe County, Florida, for the purpose of developing residential subdivisions and selling the lots for residential purposes. No Name Key is located approximately 33.2 miles to the Northwest of Key West, Florida.

This case involves a portion of No Name Key called the Galleon Bay subdivision, which consists of 10.64 acres on No Name Key (the “Galleon Bay Property”). The Galleon Bay Property is presently comprised of 14 residential lots totaling 4.64 acres, a 2.05 acre land-locked lake which is surrounded by the residential lots, approximately 2.94 acres of land restricted in perpetuity by Conservation Easements, and 1.01 acres of roads and utility easements.

In the 1960’s and 1970’s, Mr. and Mrs. Schleu had separately platted and developed two other subdivisions on No Name Key, namely Bahia Shores and Dolphin Harbour. Bahia Shores was a 91-lot residential subdivision developed in 1969 and Dolphin Harbour was a 44-lot residential subdivision developed in 1970.

By 1984, Mr. and Mrs. Schleu were the sole owners of Galleon, which owned the Galleon Bay Property. Wolfgang Schleu passed away in 1984 and Hannelore Schleu became the sole shareholder of Galleon as a result. Not long thereafter, the Schleus’ daughter, Vivienne, became Galleon’s principal.

On September 15, 1986, the Galleon Bay Property was re-zoned to a “Commercial Fishing Village” (“CFV”). This type of zoning district allowed both residential development and limited commercial fishing uses. This was done at the request of Galleon and William Moore, the president of the Organized Fisherman of Florida who, at the time, held an option to purchase the Galleon Bay Property. In accordance with the CFV zoning classification and the Monroe County Code of Ordinances (“Code”), three residential dwelling units (“Lots”) were allowed, per acre, on the Galleon Bay Property. Subtracting the area of the lake and other areas which could not be developed, there remained approximately 8.6 upland acres, which, as a matter of right, equated to as many as 25 Lots on the Galleon Bay Property, based upon the density of 3 Lots per acre allowed by the Code. In 1989, the Florida Department of Environmental Regulation (“DER”) denied an application for a permit to dredge a channel from the lake located on the Galleon Bay Property to Florida Bay, and thereafter, the option to purchase the Galleon Bay Property was allowed to expire.

In 1990, Galleon submitted an application to plat the Galleon Bay Property for 42 Lots. After negotiations with the County, Galleon agreed to reduce the number of Lots to 14 single-family-lots, well below the 42 Lots originally sought, or the 25 Lots to which, presumably, Galleon would have been entitled as a matter of right. The Monroe County Commission (“Commission”) approved the plat in January 1991. The approved plat for the Galleon Bay Property, including the 14 Lots, is below:

However, the Florida Department of Community Affairs (“FDCA”) appealed the approved plat, and in response, Galleon filed suit against both the County and the FDCA. The lawsuit and FDCA’s appeal were both eventually settled, and after a compromise was reached, on April 21, 1994, the Commission approved a revised plat of the Galleon Bay Property by resolution. The revised plat was recorded along with a required Conservation Easement and a Declaration of Restrictions (“Declaration”). The Declaration, provided, in pertinent part that:

4. No one or more of said lots shall be used except for single family residential purposes and for those uses permitted under the “Commercial Fishing Village” (CFV) zoning designation of the Monroe County, Florida, Land Use Regulations, Volume III adopted February 28, 1986, and effective September 18,1996.

(emphasis added). Under the revised plat, while the Galleon Bay Property retained the 14 lots, the sizes of the lots were noticeably reduced. The new plat appeared as follows:

Until the approval of the revised plat, Galleon was unable to conduct any development activity on the Galleon Bay Property. In the intervening period of time, the County adopted Ordinance 16-1992, the Rate of Growth Ordinance (“ROGO”), which became effective on July 18, 1992. Under ROGO, the number of building permits for single-family homes issued by Monroe County was limited by using a point system. In accordance with the ordinance, separate queues were established for the Upper Keys, the Middle Keys, and the Lower Keys. When a building permit application is submitted, that applicant competed for one of the allocated permit slots with others in his or her queue for that particular quarter of the year. In order to be awarded a building permit, an applicant needed to be placed in one of the predetermined number of allocated slots available. Galleon submitted building permits for each of its 13 Lots in September 1996. In early January 1997, the applications were then placed in the ROGO queue for the Lower Keys.

Beneficial Use Determination and Vested Rights

In 1996, the ROGO plan was modified through the Florida Keys Year 2010 Comprehensive Plan (“2010 Plan”), which replaced the prior 1986 Comprehensive Plan. Included in the 2010 Plan were “grandfathering” provisions allowing landowners to file applications for administrative vested rights determinations and Beneficial Use Determinations (“BUD”). In January 1997, in accordance with the 2010 Plan, Galleon filed applications for a vested rights determination and a BUD. Following an evidentiary hearing on the vested rights application, the Hearing Officer entered an order granting vested rights which made several findings of fact, including that “[d]uring the period beginning with the initial plat approval on May 20, 1991, and ending on April 27, 1998, the applicant expended and obligated the sum of $578,670.00 to develop, permit, and sell the subject lots.” The Hearing Officer further concluded that:

[Galleon] ... acting in good faith, has made such a substantial change of position, and has incurred such extensive obligations and expenses that it would be highly inequitable and unjust to affect those rights by requiring [Galleon] to now conform to the land development regulations contained in the Year 2010 Comprehensive Plan, or to any land development regulations adopted after the plat was approved.

Despite the Hearing Officer’s recommendation that Galleon’s request for vested rights be granted, the Commission, following a twenty-five-minute hearing at which Galleon was allowed roughly only five minutes to argue, denied the recommended order.

Galleon sought review of the Commission’s denial by way of a petition for writ of certiorari in May 1999. Circuit Judge Richard Payne granted Galleon’s petition in September 2002. The final judgment made several findings, tracking the steps taken by Galleon in its quest to develop its property and addressing the errors committed by the Commission’s rejection and denial of the Hearing Officer’s recommended order.

In 1988 [Galleon] began the process of platting the subject parcel. After negotiating with Monroe County planning staff, Hearing Officer Tr. at 133-135, [Galleon] agreed to the first exaction by Monroe County by agreeing to plat only 14 lots, a 44% reduction from its allocated density of 25. The [FDCA] appealed the plat approval to the Florida Land & Water Adjudication Commission. After three more years, [FDCA], the County and [Galleon] reached a settlement that included approval of a revised plat, in which [Galleon] agreed to another exaction. The revised plat includes a conservation easement on both the manmade lake and the open space (land not designated as lots or roads), amounting to 48% of the subject property.... Recording the plat with the conservation easement left [Galleon] with nothing except the 14 lots and the roads.
After giving up 44% of its density, and conserving 48% of its land, to get a plat approved, the Commission cannot now say [Galleon] may not rely on the County’s two plat approvals as a basis for being grandfathered from the restrictions of the 2010 Plan. A local government may not whittle away a landowner’s property rights in exchange for meaningless land use approvals. Nor can the Commission pretend it did not know the intended use of the 14 lots it had approved on No Name Key. Plat approval was merely the first step in an overall project to build infrastructure, sell the lots and/or build homes thereon. Furthermore, [Galleon] filed building permit applications on all of the 13 lots that it owned.
There is no dispute over Hearing Officer Finding of Fact 15 (Commission Order No. 16), which states that from the date of the initial Plat approval, until the date of the evidentiary hearing, [Galleon] “expended and obligated the sum of $578,670 to develop, permit, and sell the subject lots.” At oral argument, the County argued “only about $35,000” of this total should be considered as funds expended on the lots. However, this Court does not have the power to reweigh competent substantial evidence that was accepted by both the Hearing Officer and the Commission.
One of the factual showings required of Galleon Bay, by the 2010 Plan’s grandfathering provision, was to show that “... the development has commenced and has continued in good faith without substantial interruption.” Policy 101.18.2(2)(a)(4)(b). The 2010 Plan also amended Monroe County ordinance 16-1992, the Dwelling Unit Allocation ordinance, commonly called the ROGO (for “Rate of Growth Ordinance”). The ROGO amendments alone were sufficient to make it practically impossible to build homes on Galleon Bay Subdivision. However, the only way a property owner could be compensated for land rendered unbuildable was to submit building permit applications to the County and wait four years before they would become eligible for compensation or a building permit.
To meet both the “development has commenced and continued” prong of the 2010 Plan’s grandfathering provision, and ultimately either receive building permits or just compensation, [Galleon] expended $35,062 during 1996 for the preparation and submission of applications for permits to construct single-family dwellings on the 13 remaining lots it owned at Galleon Bay Subdivision. These applications were submitted to Monroe County in September 1996. The 13 applications were placed in the ROGO queue in January 1997, and remained pending when the Commission’s hearing was held.
In conclusion, this Court finds that the Commission applied the incorrect law to the facts in this case. The Commission’s approvals of the Galleon Bay Subdivision plats, in 1991 and 1994, were just the first steps in the overall process of developing the property for single-family residential development. The Court cannot accept the Commission’s tacit arguments that it had no idea [Galleon] wanted to build homes on the 14 lots, or that it thought [Galleon] just wanted to plat its property in order to make it possible to sell land by lot numbers rather than metes and bounds descriptions. That might have worked in 1910, but in 1910 local governments did not negotiate concessions and conservation easements from plat grantors. The plat approvals have no value in isolation; they only have value if the end goal is achieved. The inescapable conclusion is that [Galleon’s] expenditures of over a half-million dollars were 100% applicable to the development of the 14 platted lots in Galleon Bay Subdivision, and were not applicable solely to the process of drawing lines on a piece of paper.
A Hearing Officer was appointed by the Commission to hear applications for “vested rights” under the 2010 Plan. The Hearing Officer conducted the evidentia-ry hearing in this matter, listened to the testimony, observed the demeanor of the witnesses, and reviewed the documents introduced into evidence. The function of the Hearing Officer is minimally set out in Policy 101.18.1(2) and (8) of the 2010 Plan, as follows:
A determination of vested rights ... shall require:
2. appointment of a hearing officer who shall give notice, schedule, and conduct a public hearing on the application;
3. the preparation of proposed Determination including findings of fact and conclusions of law which shall be submitted to the Board of County Commissioners;

Section 9.5 — 182(b)(5), in effect from September 15, 1986, to September 12, 1998, does not conflict with the 2010 Plan. It sets forth the following procedure for the Commission to follow upon receipt of a Recommended Order, although the “standards set out in section 9.5-188” conflict with the standards set out in Policy 101.18.2(2), and the latter would control.

(5) Within thirty (30) working days after receipt of a hearing officer’s recommended findings of fact and proposed order, the board of county commissioners shall adopt the recommended findings of fact and proposed order, with or without modifications or conditions, or reject the hearing officer’s recommendation. The board of county commissioners shall not be authorized to modify or reject recommended findings of fact or a proposed order unless the board finds that the record does not contain competent substantial evidence to support the recommendation or that the proposed order is contrary to standards set out in section 9.5-183 (Ord. No. 33-1986, § 8-302)
This Court finds that there is nothing in the record below to demonstrate that the Commission determined any portion of the Recommended order was not supported by competent substantial evidence, as required by United States Casualty Co. v. Maryland Casualty Co., supra, and Section 9.5-182(b)(5), MCC. As a result, the Commission’s final order denying vested rights is itself not supported by competent substantial evidence and must be quashed.

(Emphasis added). In 2002, the County sought second-tier certiorari review in this Court. We denied the County’s petition in June 2004. See Monroe Cnty. v. Galleon Bay Corp., 876 So.2d 569 (Fla. 3d DCA 2004).

The Inverse Condemnation Action

In May 2002, while it was pursuing administrative relief, Galleon sued the Board of County Commissioners (“BOCC”) for inverse condemnation. The State of Florida was later sued as a third party defendant. On the issue of liability, Judge Payne entered a judgment in favor of Galleon, which was later amended in January 2006. Following the judgment on liability, the State and the BOCC filed a petition for writ of prohibition, which we denied in State of Florida and Board of County Commissioners of Monroe County v. Galleon Bay Corporation, 930 So.2d 627 (Fla. 3d DCA 2006).

Next, the issue of compensation for the inverse condemnation was tried, and the jury returned a verdict in the amount of $3,000,000 in favor of Galleon. Believing that the jury had split the proverbial baby and awarded an amount that was roughly the midpoint between the $6,000,000 value amount to which Galleon’s expert had testified and the $250,000 amount to which the County’s expert had testified, Galleon moved for a new trial on damages. The trial court entered an order on September 12, 2006, granting a new trial as to the value of the Galleon Bay Property, finding in part that

The evidence presented by Defendant’s expert [Trent Marr] as to market value and as to highest and best use was essentially speculative and conjectural without foundation in objective facts which could form a basis for said opinions. [Marr’s] testimony should have been stricken in accordance with the principals set forth in Florida Department of Transportation v. Armadillo Partners, Inc., [849 So.2d 279 (Fla.2003)], and Hall [Holl] v. Talcott, [191 So.2d 40 (Fla.1966) ].

The County and State appealed the order granting a new trial, arguing that the trial court erred in its determination that Marr’s expert opinion appraisal testimony was inadmissible, and we affirmed the order, without opinion, in Board of County Commissioners of Monroe County v. Galleon Bay Corporation, 954 So.2d 1169 (Fla. 3d DCA 2007). By the time the appeal was concluded, Judge Payne had retired.

However, in what can only be described as highly unusual, the successor judge, Judge David Audlin, did not conduct a new trial on damages as contemplated by his predecessor judge or this Court. Instead, the successor judge revisited the earlier grant of summary judgment on liability in favor of Galleon and vacated the predecessor judge’s order on summary judgment. This, of course, sent the entire case back to square one. Shortly thereafter, Galleon filed a motion to disqualify Judge Audlin, which the trial court granted. Soon thereafter, the case was reassigned, and ultimately tried, before yet another judge. Following a bench trial on liability, the trial court entered a final judgment in favor of the BOCC and the State (“Final Judgment”).

Analysis

In addressing whether a “taking” has occurred, the United States Supreme “Court’s decisions have identified several factors that have particular significance. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations.” Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (emphasis added). The Supreme Court has also “frequently observed that whether a particular restriction will be rendered invalid by the government’s failure to pay for any losses proximately caused by it depends largely ‘upon the particular circumstances [in that] case.’” Id. (citation omitted). Furthermore, the United States Supreme Court has also found “categorical treatment appropriate ... where regulation denies all economically beneficial or productive use of land.” Lucas v. So. Carolina Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). Moreover, the Court has stated “on numerous occasions [that] the Fifth Amendment is violated when land-use regulation ‘does not substantially advance legitimate state interests or denies an owner economically viable use of his land.’ Id. at 1016 (citation omitted) (emphasis in original).

Here, the trial court, purportedly applying the standards set forth in Penn Central and Lucas, determined that a taking had not occurred. The trial court incorrectly analyzed several factors which eventually led to its flawed conclusion.

Without testimony or record evidence for support, the trial court improperly found that Galleon’s “original investment backed expectations have been met.” It did so by admittedly lumping Galleon’s 13 Lots with Mr. and Mrs. Schleu’s prior development of Bahia Shores and Dolphin Harbour, which had occurred decades ago. The trial judge, citing State Department of Environmental Regulation v. Schindler, 604 So.2d 565 (Fla. 2d DCA 1992), determined that it would “look at the property as a whole as opposed to merely the affected portions” in arriving at the conclusion that the 12 acres comprising the platted Galleon Bay Property are but a small part of the approximate total of 90 acres on No Name Key developed by Mr. and Mrs. Schleu. Thus, the trial court determined that a taking did not occur with respect to the Galleon Bay Property based on the separately-platted Bahia Shores and Dolphin Harbour subdivisions, which had been developed decades ago. We find this was error.

The Schindler case does not support the trial court’s holding. In simplest terms, the property at issue in Schindler was a 3.5 acre parcel of land encompassing 5 lots where 1.85 acres of the area had become submerged due to erosion. Id. at 566. Eventually, the appellees acquired the full 3.5 acres of land but were unable to obtain a permit to fill the submerged 1.85 acres. Id. The appellees in Schindler then sued the Department of Environmental Regulation and the Board of Trustees of the Internal Improvement Trust Fund for inverse condemnation. Id. The appellate court found that the “[a]ppellees ha[d] not rebutted the presumption that physically contiguous parcels are one unit,” and also specified that “[t]he submerged land which appellees argue is separate from the uplands is not platted as a separate piece of property as were the lots in [Department of Transportation v. Jirik, 498 So.2d 1253 (Fla.1986)].” Schindler, 604 So.2d at 567. Holding that there remained questions of fact as to “whether, when considering the 3.5 acres as a whole, a taking has occurred,” the trial court reversed the partial summary judgment. Id. at 568.

Here, unlike in Schindler, the Galleon Bay Property had been individually platted, as were the Bahia Shores and Dolphin Harbour subdivisions decades earlier. In contrast, the land at issue in Schindler was merely a submerged portion of the lots, with nothing to characterize it as a separate or individual parcel of land. Thus, Schindler in no way supports the trial court’s finding that Galleon’s original investment backed expectations have been met.

Moreover, the trial court, without any meaningful analysis, summarily disposed of the Florida Supreme Court’s holding in Jirik which is both applicable and controlling. Jirik, 498 So.2d 1253. The trial court stated in its Final Judgment:

The Defendant’s [sic] through their case demonstrated that the property has a variety of economically viable uses. [Galleon] could have built at least 1 house. Both the ROGO regulation and the deed restriction specifically permit aggregation of lots. Moreover, the Court finds that contrary to [Galleon’s] position, the legal principles set forth in DOT v. Jirik, 498 So.2d 1253 (Fla.1986) do not prohibit the aggregation of lots to build a single dwelling for purposes of determining an economically viable use of the property.

(Emphasis added). Jirik does not support the trial court’s holding. Id. The Florida Supreme Court held, in Jirik, that “vacant city property constitutes presumptively separate units if platted into lots.” Id. at 1257. The Florida Supreme Court stated:

Given the complexity and formalities of modern-day city planning, we believe that a presumption of separateness as to vacant platted urban lots is reasonable and would facilitate the determination of the separateness issue in the absence of contrary evidence. As one commentator noted, considerable time and expense is necessary to bring a modern subdivision to the platting stage.

Id. (citation omitted) (emphasis added). That Jirik involved a “city” lot does not render its holding or rationale inapplicable to this case. On the contrary, the record in this case shows the “complexity and formalities” of planning as well as the “considerable time and expense” to bring Galleon’s particular Lots to the platting stage. Although the Defendants cursorily dismiss Jirik’s application simply because it involved urban property, the plethora of restrictions, regulations, and particular environmental considerations implicated in platting this property in the Florida Keys suggests otherwise.

Moreover, as Judge Payne correctly observed, the platting process for the Galleon Bay Property began in the late 1980’s, continued for several years during which the County gave two plat approvals, and contributed to what, at the time, was an expenditure of $578,670 to develop, permit, and sell the platted lots. As Judge Payne noted, “[p]lat approval was merely the first step in an overall project to build infrastructure, sell the lots and/or build homes thereon.” Moreover, in his order granting summary judgment on the issue of liability, Judge Payne had addressed Jirik and found that:

The use of the adjective city in Jirik cannot be read to mean an incorporated municipality because Ms. Jirik’s lots were in Tavernier, in the Florida Keys, not in an incorporated city. [Galleon’s] lots are not in an incorporated city, but the Galleon Bay subdivision is bounded on the west by the 44-lot Dolphin Harbour residential subdivision and the 91-lot Bahia Shores residential subdivision. The Galleon Bay subdivision and its neighboring subdivisions are just as much of a “city” as Taver-nier was in 198.

(Emphasis added). Here, the trial court misapplied the Florida Supreme Court’s holding in Jirik and improperly considered the separately platted Bahia Shores and Dolphin Harbour subdivisions, which had occurred decades earlier, in determining that Galleon’s investment backed expectations were met.

The trial court also erred in its interpretation of Restriction 4 of the Declaration of Restrictions pertaining to the Galleon Bay Property, which was executed by Galleon in 1994, and duly recorded in Official Records Book 1305, Pages 1581-85 of the Public Records of Monroe County.

Restriction 4 provides as follows:

4. No one or more of said lots shall be used except for single family residential purposes and for those uses permitted under the “Commercial Fishing Village” (CFV) zoning designation of the Monroe County, Florida, Land Use Regulations, Volume III adopted February 28,1986, and effective September 18,1986.

(Emphasis added).

This particular restriction was reviewed and analyzed by Monroe County’s Director of Planning, Timothy J. McGarry, in a letter to the Executive Director of the Monroe County Land Authority on January 26, 1998. Mr. McGarry, as the Director of Planning for Monroe County, determined as follows:

Development on the lots must also comply with the attached deed restrictions, which have been in effect since the plat was recorded. The restrictions state that development on the lots must include a single family home with commercial fishing use. Therefore, commercial fishing uses could not be permitted independently of or prior to a single family home permit.

(Emphasis added.)

Despite the unambiguous use of the word “and” in the text of Restriction 4, as well as the determination by Monroe County’s Director of Planning that “and” meant “and,” the trial court found otherwise. Instead, the trial court, without setting forth a cognizable basis, found that the word “and” in Restriction 4 actually meant “or.” We find that the trial court departed from “the principle of contract interpretation which requires that the words used by the parties must be given their plain and ordinary meaning.” Beans v. Chohonis, 740 So.2d 65, 67 (Fla. 3d DCA 1999). Of course, “‘and’ is a conjunction to mean that both elements must be met.” Harrington v. Citizens Prop. Ins. Co., 54 So.3d 999, 1003 (Fla. 4th DCA 2010) (finding that the word “and,” as used in the insurance contract before the court, “join[ed] the elements of “where you reside’ and ‘which is shown as the ‘residence premises’ in the Declarations’ .... [Such that] [b]ased on the plain, unambiguous meaning, to meet the definition, one must both reside in the dwelling, and that location must be shown as the ‘residence premises’ in the Declarations.”). While we acknowledge that “[c]ourts may construe ‘and’ as ‘or’ in statutes where a construction based on the strict reading of the statute would lead to an unintended or unreasonable result and would defeat the legislative intent of the statute,” see Byte Intern. Corp. v. Maurice Gusman Residuary Trust No. 1, 629 So.2d 191, 192 (Fla. 3d DCA 1993) (citing Winemiller v. Feddish, 568 So.2d 483, 485 (Fla. 4th DCA 1990)), we find these cases distinguishable in that the language at issue before us is a restriction to land use, freely negotiated and agreed upon by parties, as opposed to a statute. Moreover, in this case, the use of the word “and” is entirely consistent with Galleon Bay Property’s zoning as a “commercial fishing village.” The trial court was, quite simply, not free to redefine the word “and” in Restriction 4.

Having erred in misinterpreting “and” to mean “or” in Restriction 4, the trial court then compounded its error by relying on the testimony of Trent Marr. In the Final Judgment, the trial court stated:

16.[t]he question is has [Galleon] been deprived of all or substantially all of the economically viable use of the property? The Court finds that it has not. While [Galleon] took the position that if the property could not be built upon it had no use and thus little, if any value, the Court finds otherwise.
18. The Court finds that per the testimony of Trent Marr, the property had an economically viable commercial fishing use for trap storage with a value of $250,000. The Court finds that [Galleon’s] arguments and attempts to undermine, attack, or discredit Mr. Marr’s opinion are unpersuasive. First of all, the Court finds that trap storage is a physically and legally possible use to which the property could be put. In this regard, the Court finds Defendant’s Exhibit 4, a June 29, 1990 memorandum from Vivienne Schleu/[Galleon] to the Planning Commission, wherein on page 4, Ms. Schleu explains why the property is suitable for trap storage, to be a piece of evidence strongly supporting the viability of [lobster or crab] trap storage.

Of course, Mr. Marr’s testimony that the Galleon Bay Property could be used solely for “trap storage,” without a required residence under Restriction 4, entirely depended on the trial court’s misinterpretation of the word “and” to mean “or.” Relying on Mr. Marr’s testimony, the trial court further found that “the application of the ROGO did not diminish the value of the property at all,” since, according to the trial court, Galleon could use its IB Lots for “trap storage.”

Thus, by 1) misapplying the Florida Supreme Court’s holding in Jirik, 2) improperly considering the Bahia Shores and Dolphin Harbour subdivisions in determining Galleon’s investment-backed expectations, 3) misinterpreting the word “and” in Restriction 4 to mean “or,” and 4) improperly relying on the testimony of Trent Marr for its determination that Galleon’s 18 Lots could be used for “trap storage,” the trial court erred in its determination that Galleon had not been deprived of all or substantially all of the economically viable use of its property.

Based upon the numerous errors we have addressed herein, we reverse and remand with instructions that the trial court enter a judgment of liability in favor of Galleon with a corresponding takings order and allow the case to proceed to a compensation trial.

Reversed and remanded.

      . Galleon Bay Corporation, a Florida corporation.

      . Prior to this, the Galleon Bay Property had been zoned "General Use," which allowed a density of one lot per acre.

      . The re-zoning to CFV occurred as part of a plan to create a channel from the lake on the Galleon Bay Property to the Gulf of Mexico.

      . See Monroe Cnty., Fla.Code of Ordinances, § 9.5-262; Ord. No. 33-1986, § 9-302; Ord. No. 26-1995, § 1; ord. No. 041-2003, § 1. The applicable provisions have been renumbered in Monroe County., Fla., Code of Ordinances, art. V§ 130-157 (2012).

      .The Code also allowed for up to 12 Lots per "buildable area," in conjunction with the use of Transferable Development Rights. This equated to potentially 82 Lots on the Galleon Bay Property.

      . By this point in time, one of the lots had been transferred to Dorothy Sue Abbott, in satisfaction of money she had previously loaned to Galleon.

      . By 2001, the Galleon Bay Property remained in the ROGO queue and Galleon Bay filed a separate application for administrative relief, as it was entitled to do following four consecutive annual allocation periods. See Monroe Cnty., Fla.Code of Ordinances, § 9.5-122(h)(1). Under the Code, the County could take various actions in response to the request for administrative relief, but ultimately decided to extend an offer to purchase the property from Galleon "at its fair market value.” See Id. at § 9.5-1222(h)(6). The purchase never came to fruition.

      . Approximately twelve (12) days prior to the commencement of trial, Mr. Marr completely changed his theory of appraisal. While he had been appraising the Galleon Bay Property for several years as having single family residential use as its highest and best use, shortly before trial, he changed his opinion to conclude that lobster and stone crab trap storage was the highest and best use.

      . The motion to disqualify included the affidavits of both Galleon’s principal, Ms. Vivienne Schleu, and its counsel, attorney James Matt-son. Ms. Schleu's affidavit stated in pertinent part:
      On January 30, 2006, during a hearing on the governments’ motions for summary judgment ... before Chief Judge Richard Payne, I overheard an Assistant Monroe County Attorney make a statement to his defense colleagues, to the effect that the defendants could expect a different outcome from Judge Audlin ... that "things would be different” after Judge Payne retired. I believe he made the statements after Judge Payne made his oral rulings.
      In his affidavit, Mr. Mattson stated that he had overheard the same statements. Mr. Mattson also asserted that at a case management conference, Judge Audlin "intimated that he was prepared to reconsider all non-final orders rendered by Judge Payne.” The State and the County filed motions for reconsideration of Judge Payne’s prior order granting summary judgment on liability. Judge Audlin granted the motions for reconsideration and ultimately vacated the order granting summary judgment.

      . Although the trial court references "12 acres,” the Galleon Bay Property is actually 10.64 acres.

      . The Code presently defines the purpose of the commercial fishing village district (CFV) as follows:
      The purpose of the CFV district is to establish areas where limited commercial fishing activities, including the mooring of boats, the nonmechanized off-loading of catches, the storage of a limited number of traps, and residential uses, can be integrated.
      Monroe Cnty., Fla.Code of Ordinances, art. V§ 130-31(2012).

      . We are compelled to note, even though Galleon does not raise this particular issue on appeal, that on the first day of the liability trial, the Plaintiff called Donald Craig, a consulting land use planner, as a witness. Mr. Craig testified, in relevant part, that the Declaration required both a single-family residential dwelling and some degree of commercial fishing use for each lot. On the morning of the second day of trial, the trial court, at the behest of the defendants, and despite the testimony merely reflecting the plain language of the Declaration and Mr. McGarry's letter, struck Mr. Craig’s testimony on the grounds that it constituted "surprise.”

      .This memorandum, of course, is dated four years before the final approval and recording of the applicable Galleon Bay Property plat and Declaration.

      . Judge Payne had previously found that Mr. Marr’s testimony should have been stricken in the earlier compensation trial.


text:
    Beverly VAUGHAN, Appellant, v. BROWARD GENERAL MEDICAL CENTER and North Broward Hospital District Risk Mgmt, Appellees.
    No. 1D12-0491.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2012.
    Rehearing Denied Jan. 28, 2013.

      Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Edward D. Schuster of Massey, Coican, Schuster & King, LLC, Fort Lauderdale, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant argues that the Judge of Compensation Claims (JCC) erred by admitting into evidence, and relying upon, unauthenticated correspondence to support her denial of physical therapy, costs, and attorney’s fees where Claimant objected on authentication and hearsay grounds. She asserts that the correspondence was not a “medical report” under section 440.29(4), Florida Statutes (2011), and the Employer/Carrier (E/C) did not set forth an intent to rely on such a report as required by statute. For the reasons set forth below, we agree and we reverse.

Background

On June 13, 2004, Claimant sustained compensable injuries to her head, neck, and right shoulder when she was attacked by a patient while working as a patient observer for the Employer. Claimant was diagnosed with a cervical strain, right shoulder sprain, anxiety, and multiple forehead abrasions. On November 7, 2007, Claimant was examined by her authorized treating orthopedist Dr. Paul Meli, who found evidence of a shoulder strain/sprain, limited range of motion of the neck, and a trapezial spasm, and ordered an MRI relative to Claimant’s cervical strain. On January 8, 2008, Dr. Meli recommended physical therapy to address Claimant’s cervical spine injury.

On December 3, 2008, Dr. Meli indicated that the temporary exacerbation of Claimant’s preexisting degenerative osteoarthritis of the shoulder and cervical spine had achieved complete resolution, and he placed Claimant at maximum medical improvement (MMI). On November 16, 2009, Claimant returned to Dr. Meli due to pain in her right shoulder and cervical spine; Dr. Meli again recommended physical therapy to address Claimant’s pain complaints and maintained that Claimant’s industrial accident was the major contributing cause (MCC) of the need for the recommended treatment.

On December 3, 2009, Dr. Meli ostensibly wrote a letter addressed “To Whom To May Concern,” indicating that, although Claimant should continue treatment of her right shoulder and cervical spine, after a review of Claimant’s chart, Claimant’s current symptoms were not related to her 2004 industrial accident.

On November 11, 2010, Claimant filed a petition for benefits (PFB) seeking, among other benefits, authorization of physical therapy, as recommended by Dr. Meli on November 16, 2009, re-authorization of Dr. Meli to evaluate Claimant for her work-related injuries, and an independent medical examination (IME). The E/C denied the claim and asserted that, per Dr. Meli’s opinion expressed in his December 3, 2009, correspondence, Claimant’s industrial accident was no longer the MCC of her need for treatment.

On December 29, 2010, Claimant obtained an IME with Dr. Raul Aparicio, an orthopedic surgeon who opined that physical therapy is medically necessary and reasonable to treat Claimant’s injuries from the industrial accident. Dr. Aparicio further opined that Claimant’s industrial accident is the MCC of the need for physical therapy.

Merits Hearing

Immediately before the merits hearing held on December 28, 2012, the E/C filed a motion to continue and asserted that the parties were unable to schedule the deposition of Dr. Meli. The JCC heard the E/C’s unopposed motion for a continuance at the beginning of the merits hearing. The E/C asserted Dr. Meli’s deposition was needed because there was some equivocation in his medical reports. Claimant agreed to the continuance, but counsel for the E/C stated that the E/C would not be prejudiced if the JCC denied the request for a continuance. The JCC, expressing concern that the case had been continued twice before, denied the request for a continuance.

At the merits hearing, the JCC addressed some evidentiary issues surrounding Dr. Meli’s December 3, 2009, correspondence, which formulate the basis of the dispute on appeal. Specifically, the E/C sought to introduce Dr. Meli’s 2009 correspondence, addressed “To Whom it May Concern,” wherein Dr. Meli opined that Claimant’s current symptoms were not related to her industrial accident. Claimant’s counsel argued that the document was inadmissible because it was hearsay and had not been authenticated. Claimant’s counsel further argued that the E/C had not overcome the evidentiary requirements under section 440.29(4), because the correspondence in question was not, in fact, a medical record, and introduction of the 2009 correspondence was not made upon proper motion in accordance with section 440.29(4). The E/C’s counsel indicated that he had not followed the procedure set forth in section 440.29(4) because he had not planned to use the document in his “case-in-chief.” Thereafter, the E/C’s counsel withdrew his statement that he would not be prejudiced by proceeding with the merits hearing. Claimant’s counsel renewed his objection to the introduction of Dr. Meli’s 2009 correspondence on the bases of hearsay, authentication, untimeliness under section 440.29(4), and the fact that it was not an office note contemporaneous with an office visit. After continued debate over the admissibility of the documents in question, the JCC overruled Claimant’s evidentiary objections on the basis that Claimant had not initially objected to the continuance requested by the E/C.

The parties then proceeded with the merits hearing. In the order on appeal, the JCC denied Claimant’s claims based upon Dr. Meli’s 2009 “correspondence”, which indicated that treatment to Claimant’s right shoulder and cervical spine were not related to her 2004 workers’ compensation injury. The JCC noted the objections of Claimant’s counsel — that this correspondence was a conference summary, not a medical report — but found that the evidence at trial did not support this contention. Claimant timely appealed.

Analysis

Initially, it is noted that the JCC did not make findings as to whether the E/C complied with section 440.29(4), Florida Statutes, whether the document in question was admissible, that is, whether the documents were authenticated, non-hearsay, or exceptions to hearsay, or whether the document in question was indeed a medical record. Rather, the JCC admitted the document in question over Claimant’s counsel’s repeated objections on the preceding bases as a result of Claimant’s counsel’s objection to the E/C’s counsel’s request for a continuance. Because this is not a basis for the admission of evidence, the order on appeal may be reversed on this basis alone.

Statutory Compliance— § Ji,k0.29(U)

Section 440.29(4), Florida Statutes (2011), provides:

All medical reports of authorized treating health care providers relating to the claimant and subject accident shall be received into evidence by the [JCC] upon proper motion. However, such records must be served on the opposing party at least 30 days before the final hearing. This section does not limit any right of further discovery, including, but not limited to, depositions.

(Emphasis added.) In Tutor Time Child Care/Learning Centers v. Patterson, 91 So.3d 264, 265 (Fla. 1st DCA 2012), this court stated “The clear purpose of this statute is to streamline the evidentiary process and do away with the necessity of calling a records custodian to introduce certain medical records.”

Medical Reports. Section 440.29(4) provides that “[a]ll medical reports of authorized treating health care providers relating to the claimant and subject accident” are admissible “upon proper motion.” The provision allows the admission of specified medical reports without the necessity of calling the medical record custodian if “proper motion’’ is made ....

Charles W. Ehrhardt, Florida Evidence § 103.8 (2011 ed.) (emphasis added).

Section 90.901, Florida Statutes (2011), states, “Authentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Section 440.29(4) permits only the medical records of the healthcare providers authorized by the E/C submitted by motion more than thirty days before the hearing (addressing due process concerns) to “be received into evidence ... upon proper motion ” (emphasis added). The thirty-day notice assures that the opposing party will have sufficient time to verify the authenticity of the records. Absent a bona fide dispute concerning the veracity of the records, requiring independent proof of authenticity would defeat the purpose of the statute. Thus, section 440.29(4), if adhered to, provides not only a hearsay exception, but also satisfaction of the requirement “that the matter in question is what its proponent claims.” See Patterson, 91 So.3d at 265.

Here, counsel for the E/C conceded that the E/C had not followed the procedure set forth in section 440.29(4). Thus, to the extent the JCC made an implicit finding that the E/C followed the procedure set forth in section 440.29(4), so as to afford hearsay and authentication exceptions, this was error as this finding is not supported by the record.

Evidentiary Analysis

Assuming the JCC’s admission of the document in question constitutes her implicit finding that same was admissible per the rules of evidence, the JCC erred as a matter of law. The Florida Evidence Code applies to workers’ compensation proceedings. U.S. Sugar v. Henson, 823 So.2d 104, 106 (Fla.2002); Alford v. G. Pierce Woods Mem’l Hasp., 621 So.2d 1380, 1382 (Fla. 1st DCA 1993); see generally Charles W. Ehrhardt, Florida Evidence § 103.3 (2011). Although section 440.29(1), Florida Statutes (2011) (stating a JCC shall not be bound by technical or formal rules of procedure), permits a JCC more latitude than judges of general jurisdiction, neither this section nor any other provision in the workers’ compensation law excepts workers’ compensation hearings from the rules of evidence. Amos v. Gartner, Inc., 17 So.3d 829, 833 (Fla. 1st DCA 2009) (citing Martin Marietta Corp. v. Roop, 566 So.2d 40, 42 (Fla. 1st DCA 1990)).

Authentication of evidence is required as a condition precedent to its admissibility. See § 90.901, Fla. Stat. (2011). Evidence sufficient to support a finding that the matter in question is what its proponent claims satisfies the authenticity requirement. See id. Extrinsic evidence of authenticity is required except for those documents that are self-authenticating. See § 90.902(1)-(11), Fla. Stat. (2011). Except as provided by statute, hearsay evidence is inadmissible. See § 90.802, Fla. Stat. (2011). Where no proper foundation is laid, a record cannot be admitted under an exception to the hearsay rule. Amos, 17 So.3d at 833 (citing Lowe’s of Tallahassee v. Giaimo, 552 So.2d 304, 305 (Fla. 1st DCA 1989) (reversing JCC’s admission of records into evidence where foundation satisfying rules of admissibility was not established)).

The admissibility and reliability of Dr. Meli’s December 3, 2009, correspondence was never established in accordance with the applicable rules of evidence. Dr. Meli’s December 3, 2009, correspondence—which, on its face, appears to have been prepared for the purposes of litigation in that it addresses a legal issue only and is not associated with a medical office visit—contains an opinion that, although Claimant needs treatment, Claimant’s current symptoms were not related to her compensable injury. This medical opinion is in direct conflict with that expressed by Dr. Meli on November 16, 2009, in his office note and DWC-25, both of which state that Claimant’s industrial accident remains the MCC of the need for the recommended treatment. Moreover, the document in question—a doctor’s letter— is hearsay not within the exceptions set out in sections 90.803(4) or (6), Florida Statutes (2011). ITT/Palm Coast Utils., CIGNA v. Douglas, 696 So.2d 390 (Fla. 1st DCA 1997) (citing Scotty’s, Inc. v. Sarandrea, 645 So.2d 121, 123 n. 1 (Fla. 1st DCA 1994) (holding doctor’s letter is inadmissible hearsay)). Under these facts, the JCC erred in admitting and independently relying upon the 2009 correspondence over Claimant’s authenticity and hearsay objections. Consequently, the JCC erred in relying on statements in the document in question for the truth of the matter asserted to deny Claimant’s request for physical therapy.

REVERSED and REMANDED.

CLARK, WETHERELL, and MAKAR, JJ., concur.


text:
    Lucious HANKINS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 4D12-3180.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 2012.
    Rehearing Denied Feb. 13, 2013.
    See also, 677 So.2d 112.
    Lucious Hankins, Jr., Perry, pro se.
    No response required for respondent.
   PER CURIAM.

The petitioner was ordered to show cause why sanctions should not be imposed for having filed an untimely, meritless, and successive post-conviction challenge. State v. Spencer, 751 So.2d 47 (Fla.1999). We have considered petitioner’s response that lack of access to “inmate writ writers” or “jailhouse law clerks” has prevented him from timely raising this claim. We find that the response does not excuse the petitioner’s frivolous filing and abuse of post-conviction relief process in this case.

Since his 1994 conviction was affirmed, petitioner has filed no less than eleven pro se proceedings in this Court. In the current petition for habeas corpus, petitioner alleges “manifest injustice” because of an alleged violation of the speedy trial rule before his trial in 1994. The record reveals, however, that the petitioner previously filed a timely Rule 8.850 motion and argued his attorney was ineffective in failing to assert speedy trial rights. We reversed and remanded the case for an evi-dentiary hearing. Hankins v. State, 677 So.2d 112 (Fla. 4th DCA 1996). The claim was denied on remand, and this court affirmed in Hankins v. State, 728 So.2d 284 (Fla. 4th DCA 1998). Following those proceedings, petitioner has filed at least six additional post-conviction motions and appealed each of the denials to this Court.

Petitioner’s alleged violation of the speedy trial rule is a procedurally barred claim of unpreserved trial court error. Petitioner again attempts to assert this meritless claim nearly twenty years after his trial. This Court has previously cautioned petitioner that any further abusive, repetitive, malicious, and/or frivolous filings would result in sanctions. That warning has gone unheeded. Petitioner’s abuse of post-conviction relief process interferes with this Court’s ability to consider legitimate claims. See McCutcheon v. State, 44 So.3d 156, 161 (Fla. 4th DCA 2010).

We therefore order the Clerk of this Court to no longer accept any papers filed by Lucious Hankins, Jr., unless the document has been reviewed and signed by a member in good standing of the Florida Bar. The Clerk shall forward a certified copy of this opinion to the appropriate institution for disciplinary procedures. § 944.279(1), Fla. Stat. (2012).

MAY, C.J., GROSS and TAYLOR, JJ., concur.

      . Hankins v. State, 76 So.3d 310 (Fla. 4th DCA 2011).


text:
    Luis M. JUEGA, Appellant, v. Stanley S. DAVIDSON, Individually, and as Trustee of the Stanley S. Davidson Trust, Appellees.
    No. 3D12-1817.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 2012.

      Carey Rodriguez Greenberg & O’Keefe and Juan J. Rodriguez and David M. Levine and Ernesto M. Rubi, Miami, for appellant.
    Tifford & Tifford and Arthur W. Tifford; Lawrence R. Metsch, Aventura, for appel-lee.
    Before CORTIÑAS, FERNANDEZ and LOGUE, JJ.
   CORTINAS, J.

In 1991, Simon Davidson (“Decedent”) died testate in Spain, and was survived by his son, Allan Davidson (“Allan”), and his brother, Stanley Davidson (“Stanley”). Luis M. Juega (“Juega”), a Spanish citizen and a resident of Marbella, Spain, was appointed by the Spanish court to serve as administrator of the Decedent’s estate.

Juega asserts that, at the time of his death, Decedent was the director of Nozo-mi Finance International Limited, a foreign corporation (“Nozomi Corporation”), and that following his death, Juega became the director of Nozomi Corporation, because it was an asset of the estate. In 1994, Nozomi Corporation filed suit in Miami-Dade County against appellees, Stanley individually, and as trustee of the Stanley S. Davidson Trust, seeking repayment of a note and mortgage foreclosure based upon a five million dollar loan made by Nozomi Corporation to Stanley before the Decedent’s passing. The loan was allegedly secured by a mortgage on property owned by Stanley in Miami-Dade County. In 1995, Juega, as administrator of the Decedent’s estate, joined Nozomi Corporation’s suit, asserting claims for conversion and civil theft on behalf of the estate.

The Spanish court eventually found Allan to be the Decedent’s sole heir, and in 2003, entered an order closing the estate. In conjunction with the closing of the estate, Juega was discharged from his duties as administrator. Following his discharge, Juega filed a fourth amended complaint in the Nozomi Corporation litigation. Stanley moved to dismiss the fourth amended complaint on multiple bases, the most pertinent of which was that Juega lacked standing to pursue the litigation after the Spanish court had closed the estate. Ap-pellees, in turn, argued that the real party in interest was Allan since he was Decedent’s sole heir and, as such, inherited the Decedent’s interest in the underlying lawsuit. In opposition to the motion to dismiss, Allan filed an affidavit in support of Juega’s standing, which stated, in part, that Allan had ratified every action taken by Juega and that Juega was “acting as [Allan’s] agent in prosecuting this action on [Allan’s] behalf.” The trial court, accepting the argument that Juega lacked standing under Rule 1.210(a) after his discharge as estate’s administrator, dismissed Juega from the lawsuit. Juega appealed and this Court reversed the trial court’s order of dismissal in Juega ex rel. Estate of Davidson v. Davidson, 8 So.3d 488 (Fla. 3d DCA 2009). We held that Juega, in his capacity as Allan’s authorized agent, had standing to proceed as a plaintiff in the action. Id. at 490.

Thereafter, appellees filed a verified amended counterclaim, which contained two counts against Juega in his individual capacity for civil conspiracy and conversion. Juega moved to dismiss the counts against him in his individual capacity for lack of personal jurisdiction. In support of his motion to dismiss, Juega filed an affidavit attesting, in pertinent part, that 1) he had resided in Spain since 1959; 2) he had never owned property in Florida; 3) at all times material to the allegations in the counterclaim, he had never personally operated, conducted, engaged in, or carried on any business in Florida; and 4) the only contact or dealings Juega ever had with Stanley in Florida were in Juega’s capacity as representative of the Decedent’s estate or as director of Nozomi Corporation. Stanley filed a memorandum in opposition to Juega’s motion to dismiss, although he did not explicitly contest the facts set forth in Juega’s affidavit. Stanley also argued that section 734.201(3), Florida Statutes, part of Florida’s Probate Code, conferred personal jurisdiction upon Juega. The trial court denied the motion to dismiss and this appeal followed. We reverse.

We review the trial court’s denial of the motion to dismiss for lack of personal jurisdiction de novo. Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla.2002).

We first note that procedurally, Juega, in his individual capacity, could not have been named a defendant in the amended counterclaim. There is no dispute that Juega’s participation in the underlying case was in his capacity as the administrator of the Decedent’s estate, and later as agent of Allan, as well as in his capacity as the director of Nozomi Corporation. Juega, individually, was never a named party. As we have previously held,

A plaintiff who brings or maintains an action solely in its capacity as the representative of another is not an “opposing party” against whom a counterclaim might be filed. Hall v. McDonough, 216 So.2d 84, 85 (Fla. 2d DCA 1968). A counterclaim cannot properly be brought or maintained against that plaintiff in its individual capacity. Id. Accord, Fidelity-Philadelphia Trust Co. v. Ball, 208 So.2d 282 (Fla. 3d DCA 1968). Moreover, Florida Rule of Civil Procedure 1.170 states that a counterclaim may only be brought against an “opposing party.”

Nationwide Terminals, Inc. v. MC Constr. Grp., Inc., 964 So.2d 705, 706 (Fla. 3d DCA 2007). Because Juega had not appeared in the underlying lawsuit in his individual capacity, he could not be named, in his individual capacity, as a Defendant in the appellees’ amended counterclaim. This basis alone merits reversal.

Juega further argues that despite the foregoing procedural infirmity, the trial court erred by not dismissing him as a named defendant in the amended counterclaim for lack of personal jurisdiction. While Juega argues the lack of sufficient jurisdictional facts on appeal, the appellees wholly ignore this and focus solely on section 734.201(3) to support their argument of personal jurisdiction over Juega. Section 734.201(3) provides in pertinent part:

Jurisdiction by act of foreign personal representative. — A foreign personal representative submits personally to the jurisdiction of the courts of this state in any proceeding concerning the estate by:
(3) Doing any act as personal representative in this state that would have given the state jurisdiction over that person as an individual.

§ 734.201(3), Fla. Stat.

The parties correctly note that there is no case law addressing whether this statute confers jurisdiction upon a defendant such as Juega under the facts of a case such as this. Juega correctly argues that the Probate Code is, in this case, inapplicable. As the Florida Supreme Court has stated, “[t]he Florida Probate Code constitutes a unified statutory scheme intended to govern all probate matters— section 731.102, Florida Statutes (2007), expressly states that the probate code ⅛ intended as unified coverage of its subject matter.’ ” Hill v. Davis, 70 So.3d 572 (quoting § 731.102, Fla. Stat. (2007)) (emphasis added). There is simply no basis for the appellees’ assertion that by virtue of participating in a civil action in capacities other than as an individual, Juega submitted to the jurisdiction of the court under the Probate Code. See also Crescenze v. Bothe, 4 So.3d 31, 33 (Fla. 2d DCA 2009) (addressing a different section of the Probate Code but finding that “[i]t is clear from the language of the statute and its place in Chapter 733 of the Probate Code that section 733.710(1) applies exclusively to claims against an estate in a probate proceeding and has no application in a civil action to terminate a trust.”) (emphasis added). Here, there was no ancillary estate opened in Florida, nor was Juega ever appointed a “personal representative” by the circuit court.

Moreover, the requirements of personal jurisdiction over Juega under Florida’s Long Arm Statute are not met. See § 48.193, Fla. Stat. Juega correctly argues, and the appellees do not dispute, that the requirements of the Long Arm Statute and Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989), were simply not satisfied or properly pled.

Accordingly, we reverse the trial court’s denial of Juega’s motion to dismiss the two counts against him in his individual capacity for lack of personal jurisdiction.

Reversed and remanded.

      . Stanley argues that the note has been satisfied. Nozomi Corporation disputes the satisfaction of the note.

      . There is no dispute that the Decedent's estate was administered and closed in Spain. At no point did Juega open an ancillary estate in Florida nor was he "appointed by the [circuit] court." To the contrary, as asserted by the appellees in their opposition to the motion to dismiss:
      The second action by which [Juega] personally submitted himself in his personal capacity to the personum jurisdiction of this [cjourt is the result of his inaction, namely his failure to obtain ancillary letters of administration or to file duly certified and apostilled copies of his letters of administration ("credentials") which any foreign representative of any country or state within the United States must present in order to gain standing as a personal representative to pursue any claim in the Florida court.

      . The Probate Code defines "foreign personal representative” as "a personal representative of another state or a foreign country.” § 731.201(17), Fla. Stat. The code further defines "personal representative” as "the fiduciary appointed by the court to administer the estate and refers to what has been known as an administrator, administrator cum tes-tamento annexo, administrator de bonis non, ancillary administrator, ancillary executor, or executor.” § 731.201(28), Fla. Stat. Furthermore, "court” is defined in the statute as "the circuit court.” § 731.201(7), Florida Statutes.