author: THOMAS, J. PADOVANO, J., PER CURIAM.

text:
    ALACHUA COUNTY, Charlotte County, Escambia County, Flagler County, Hillsborough County, Doug Beldon as Hillsborough County Tax Collector, Lee County, Leon County, Doris Maloy as Leon County Tax Collector, Manatee County, Nassau County, Okaloosa County, Pasco County, Pinellas County, Diane Nelson as Pinellas County Tax Collector, Polk County, Joe G. Tedder as Polk County Tax Collector, Seminole County, St. Johns County, Wakulla County, and Walton County, Appellants, v. EXPEDIA, INC., et al., Appellees.
    No. 1D12-2421.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2013.
    Opinion on Rehearing April 16, 2013.
    Roberto Martinez, Paul C. Huck, Jr., and Francisco R. Maderal of Colson Hicks Eidson, Coral Gables; Robert L. Nabors, Harry F. Chiles, and Bethany A. Burgess of Nabors, Giblin & Nickerson, P.A., Tallahassee; Edward A. Dion and Stephanie Casey of Nabors, Giblin & Nickerson, P.A., Fort Lauderdale, for Appellants.
    Larry Smith, Deputy County Attorney, Mary G. Jolley, Assistant County Attorney for the County of Volusia, DeLand, Amicus Curiae for the County of Volusia and School Board of Volusia County, Florida.
    Mark E. Holcomb of Madsen Goldman & Holcomb, LLP, Tallahassee, for Appel-lees Expedia, Inc., Hotels.com, LP, Hot-wire, Inc., Orbitz, LLC, Orbitz For Business, Inc., and Trip Network.
    Darrell J. Hieber of Skadden, Arps, Slate, Meagher & Flom, LLP, Los Ange-les, California, for Appellees priceline.com, Incorporated, Travelweb LLC, and Low-estfare.com LLC.
    Brian S. Stagner, of Kelly Hart & Hall-man, LLP, Fort Worth, Texas, pro hac vice for Appellees Travelocity.com LP, Sabre Holdings Corporation, and Travelocity.com, Inc.
   THOMAS, J.

In this case before us, we address the Tourist Development Tax, codifed in section 125.0104, Florida Statutes, and levied pursuant to Florida’s Local Option Tourist Development Act of 1977. The question presented on appeal is whether the Tourist Development Tax (“Tax”) applies to the entire amount that Appellees (“Online Travel Companies” or “Companies”) collect from hotel customers who reserve their hotel room through Online Travel Companies. We find that the additional sums of money earned by the Companies are not taxable. And as required by Florida Supreme Court precedent, we must read the statute “strongly in favor of the taxpayer and against the government.” Maas Bros., Inc. v. Dickinson, 195 So.2d 193, 198 (Fla.1967). Thus, we affirm the trial court’s ruling that the Tax applies only to the amount of money the Companies send to the hotels for the reserved rooms, and not to the additional compensation retained by the Companies. As the trial court here correctly determined, it is for the Legislature, and not the judiciary, to decide whether to apply the Tax to the full amount that the Companies charge their customers who utilize their website to obtain a hotel reservation.

Factual & Procedural Background

Online Travel Companies operate websites that allow consumers to view comparative information about competing travel service providers, such as hotels, car rental companies, and airlines. If a customer makes a reservation request from one of the Companies’ websites, that Company submits a reservation request to the hotel on behalf of the customer. The hotel decides whether to accept the request, based on rate and availability, and if the hotel chooses to accept the reservation, the hotel makes the reservation in the customer’s name. The Company then collects the total payment directly from the customer when the reservation is completed, and sends a portion of the payment to the hotel. The customer pays nothing to the hotel for the room. Upon arrival, the hotel provides the hotel room to the customer.

Appellants asserted below that the Tourist Development Tax applied to the difference between the monetary amount paid to the hotel and the amount collected by the Companies from consumers using their websites. In their declaratory action, Appellants asserted that the Companies were exercising a taxable privilege by renting, leasing or letting hotel rooms; however, in their summary judgment motion, Appellants argued that the taxable privilege at issue was being exercised not by the Companies, but by tourists renting hotel rooms.

Thus, the trial court found that it first had to determine “who and what the Legislature intends to tax” — tourists who utilize hotels and motels in Florida, or “the hotels and motels themselves for the privilege of doing business here?” If the Tax was intended to apply to the consumer, then the full amount paid by the consumer to the Companies would be subject to the Tax, and the Companies would be obligated to collect and remit the Tax on the amount involved in the transaction which exceeded the amount the Companies pay to the hotel. But “[i]f the privilege the Legislature seeks to tax is the opportunity of operating a hotel in Florida, which was the Legislature’s clear intention in 1949 when it passed the Transits Rental Tax (TRT) under Florida Statute 212.03, then the hotel in which the tourist stays must collect the tax on the lesser amount that the hotel receives for the room and submit that lesser amount of tax to the counties.”

The trial court noted that the Tax is currently paid only on the amount received by hotels, not the “mark-up realized” under the Merchant Model, and determined that if this mark-up “is to be subjected to the [Tax] in the future the Legislature, not the Court, must by statute clearly inform the [Companies] of what is to be taxed and that the [Companies] are responsible for collecting and remitting the tax to the counties.” The court also found that the Tax statute, “as currently written does not clearly impose the [Tax] on the amount that the [Companies] charge to their customers,” and that this ambiguity must be resolved in the Companies’ favor “and against extending the reach of the taxing authority.”

The court also addressed Appellants’ alternative argument that the Companies’ Merchant Model meant that the Companies “have morphed from a pure service provider matching the tourists with a hotel owner into a taxpayer who actually ‘rents, leases, or lets’ the rooms to the tourist as defined by the statute.” The court found that the Companies “may have brought themselves within the reach of the [Tax],” but that neither the Legislature nor the Department of Revenue have yet acted to declare as much. Thus, the court granted the Companies’ motion and denied Appellants’ motion.

Analysis

The Tourist Development Tax was enacted in 1977. It allows participating counties to assess what is commonly called a “bed tax” for hotel stays within their territorial limits. The statute provides:

It is declared to be the intent of the Legislature that every person who rents, leases, or lets for consideration any living quarters or accommodations in any hotel, apartment hotel, motel, resort motel ... for a term of 6 months or less is exercising a privilege which is subject to taxation under this section, unless such person rents, leases, or lets for consideration any living quarters or accommodations which are exempt according to the provisions of chapter 212.

§ 125.0104(3)(a)l., Fla. Stat. (emphasis added).

This tax is “in addition to any other tax imposed pursuant to chapter 212 and in addition to all other taxes and fees and the consideration for the rental or lease.” § 125.0104(3)(e), Fla. Stat. The reference to chapter 212 addresses the statewide bed tax, known as the “Transient Rentals Tax” authorized in the “Florida Revenue Act of 1949” codified at section 212.01, et. seq., Florida Statutes. Section 212.03(l)(a), Florida Statutes, is similar to section 125.0104(3)(a)l. It provides:

It is hereby declared to be the legislative intent that every person is exercising a taxable privilege who engages in the business of renting, leasing, letting, or granting a license to use any living quarters or sleeping or housekeeping accommodations in, from, or a part of, or in connection with any hotel....

§ 212.03(l)(a), Fla. Stat.

The crux of this dispute involves determining what is the privileged activity which the Tourist Development Tax taxes — renting a room to a tourist, or a tourist renting a room from, a hotel? That is, did the Legislature declare- that it is a privilege to rent a hotel room in Florida, or did it declare that it is a privilege to operate a hotel in this state? Appellants argue that the plain language of the statute states that it is tourists who are exercising a privilege, not the hotels. We respectfully disagree.

Both the Tourist Development Tax and the Transient Rentals Tax impose a duty to charge, collect, and remit the bed tax. See § 125.0104(3)(f), Fla. Stat. (“The tourist development tax shall be charged by the person receiving the consideration for the lease or rental, and it shall be collected from the lessee, tenant, or customer at the time of payment of the consideration for such lease or rental.”); § 125.0104(8)(a), Fla. Stat. (“Any person who is taxable hereunder who fails or refuses to charge and collect from the person paying any rental or lease the taxes herein provided ... is, in addition to being personally liable for the payment of the tax ... ” criminally liable.); § 212.03(2), Fla. Stat. (“The tax provided for herein shall be in addition to the total amount of the rental, shall be charged by the lessor or person receiving the rent in and by said rental arrangement to the lessee or person paying the rental, and shall be due and payable at the time of the receipt of such rental payment by the lessor or person, as defined in this chapter, who receives said rental or payment.”). Logically, therefore, that duty is imposed on the hotels, not the tourist. Thus, although the tourist is obligated to pay the tax when it is charged, the tourist is not obligated to charge himself the tax, collect it from himself, or remit it to the proper taxing authority. That duty is imposed on hotels, motels, and others for exercising the privilege of engaging in the business of renting rooms to consumers.

Appellants contend that their position that the taxable privilege is exercised by tourists is supported by our supreme court’s opinion in Miami Dolphins, Ltd. v. Metropolitan Dade County, 394 So.2d 981 (Fla.1981). We disagree. In that case, the appellant argued that the Tourist Development Tax violated the equal protection clause in the United States Constitution, because the “county is attempting to impose a tax on nonresidents alone on the privilege of renting living space for less than six months.” Id. at 988. We note, however, that this was the appellant’s characterization of the issue. The supreme court rejected the equal protection argument, observing that the Tourist Development Tax is “imposed ... on anyone who rents certain kinds of living space for a term of six months or less,” and “is imposed on all renters of the covered types of premises” regardless of whether they are residents or non-residents. Id. at 989. The court did not hold, nor was it asked to address, whether the taxable privilege addressed in the Tourist Development Tax is exercised by those renting rooms from hotels or by those renting rooms to tourists. It simply recognized the obvious — the tax is imposed on tourists and residents and collected by the hotels.

Furthermore, the court also held that the Transient Rental Tax statute is to be read together with the Tourist Development Tax statute. Id. at 987-88. As with the latter, the ultimate person paying the Transient Rental Tax is the tourist, not the hotel. In both instances, the Legislature determined that operating a hotel in a county is a privilege “subject to taxation,” and with that privilege comes the obligation to collect the Tax from the customer.

Thus, we hold that the privilege being exercised for purposes of the Tourist Development Tax is renting rooms to tourists, not the other way around. This leaves us with Appellants’ alternative argument that the Companies have an obligation to charge the Tourist Development Tax on the entire amount they collect from customers, not just the portion of that amount they forward to the hotels.

Again, the statute states that the local option tax is “due on the consideration paid for occupancy in the county .... ” § 125.0104(3)(a)2.a., Fla. Stat. (emphasis added). It also provides that the tax is levied on the “total consideration charged for such lease or rental.” § 125.0104(3)(c), Fla. Stat. (emphasis added). This tax is to be charged by the “person receiving the consideration for the lease or rental .... ” § 125.0104(3)(f), Fla. Stat. (emphasis added). Once charged and collected, the person “receiving the consideration for such lease or rental” must remit the tax to the Department of Revenue. § 125.0104(3)(g), Fla. Stat. (emphasis added).

It is well-established law in Florida that courts must “construe tax statutes in favor of taxpayers where an ambiguity may exist.” Harbor Ventures, 366 So.2d at 1174. Here, because the legislature has not provided a statutory definitional scheme to create special meanings for the terms “rents, leases, or lets for consideration,” the court must give those words their ordinary and common usage. See Fla. Dep’t of Revenue v. New Sea Escape Cruises, Ltd., 894 So.2d 954, 961 (Fla.2005).

To “rent, lease or let” in ordinary meaning denotes the granting of possesso-ry or use rights in property. Inherent in that idea is the notion that one actually has sufficient control of the property to be entitled to grant possessory or use rights. Thus, the consideration received for the “lease or rental” is that amount received by the hotels for the use of their room, and not the mark-up profit retained by the Companies for facilitating the room reservation. See also Fla. Admin. Code R. 12A-1.061(3)(a) (“Rental charges or room rates for the use or possession, or the right to the use or possession, of transient accommodations are subject to tax....”). Notably, section 125.0104(3)(e), Florida Statutes, recognizes the difference between taxes and fees on the one hand, and financial consideration on the other: “The tourist development tax shall be in addition to any other tax imposed pursuant to chapter 212 and in addition to all other taxes and fees and the consideration for the rental or lease.” See also Fla. Admin. Code R. 12A-1.061(3)(b) (“Rental charges or room rates include any charge or surcharge to guests or tenants for the use of items or services that is required to be paid by the guest or tenant as a condition of the use or possession, or the right to the use or possession, of any transient accommodation.”). Thus, the tax at issue is on the actual rate paid for occupancy of the room, that is, the consideration for the room itself (the “rental or lease”), not any taxes or other fees.

Indeed, “rental” is defined as “income received from rent.” Black’s Law Dictionary, 1300 (7th ed. 1999). Additionally, “net rent” is defined as the “rental price for property after payment of expenses, such as ... taxes.” Id. at 1299. Also, in interpreting section 212.03(2), Florida Statutes, this court in Florida Revenue Commission v. Maas Bros., Inc., explained that it is not “the incident of payment and receipt of the rental charged that constitutes the taxable transaction and creates the tax liability” under the Act, but engaging in the business of renting space. 226 So.2d 849, 852-53 (Fla. 1st DCA 1969).

The Companies are simply conduits through which consumers can compare hotels and rates and book a reservation at the chosen hotel. They do not grant pos-sessory or use rights in hotel properties owned or operated by third-party hoteliers, as contemplated by the Tourist Development Tax enabling statute or the counties’ ordinances. In this role, the Companies collect the monies owed for the room, including taxes and fees, and pass on to the hotels the money for the room rental and the taxes on the price of the room. The consideration the Companies ultimately keep is not for the rental or lease, but for their service in facilitating the reservation.

At the risk of belaboring the obvious, the Companies do not own, possess or have a leasehold interest to convey in any hotel room, but merely transfer a reservation request from the tourist to a hotel.

The Companies are not in the business of renting, leasing, letting, or granting licenses to use transient accommodations, as they are online travel companies, not hoteliers. Similarly, the difference between the fees they charge their customers, and what the hotels require be paid to place a customer in a room, is not “solely for the use or possession” of the hotel room. Rather, the Companies operate their businesses, including sophisticated websites, to the benefit of both their customers and the hotels. The Tourist Development Tax does not plainly evince an intention to include the additional fees that Companies charge for advertising hotel facilities, setting up internet websites, and forwarding and assisting in the making of reservations on behalf of hotel customers. The rent itself — the amount charged by the hotels for allowing customers to occupy their rooms — is what has been taxed.

Conclusion

For the foregoing reason, we AFFIRM the trial court’s summary judgment in favor of Appellees, and its denial of Appellants’ motion for summary judgment.

AFFIRMED.

DAVIS, J., concurs.

PADOVANO, J., Dissents with Opinion.

PADOVANO, J.,

dissenting.

I respectfully dissent. The local option tourist development tax authorized by section 125.0104, Florida Statutes, is a tax on the amount of money a tourist pays to stay in a hotel in Florida. The portion of those funds earned by an online travel company, whether remitted by the hotel after payment of the bill or retained initially by the travel company at the time of the reservation, is subject to the tax. This conclusion is required not only by precedent we are bound to follow, but also by the plain language of the statute.

The holding by the majority that a portion of the total bill paid by the tourist is exempt from the local option tourist development tax is contrary to the decision by the Florida Supreme Court in Miami Dolphins, Ltd., v. Metropolitan Dade County, 394 So.2d 981 (Fla.1981). One of the questions presented in that case was whether the tax discriminated against tourists from other states. The supreme court answered the question in the negative and, as a part of its decision, the court defined the nature of the tax. As the court stated, the county ordinance implementing the local option tourist development tax imposed the tax on “the total rental charged every person who rents, leases or lets for consideration any living quarters ... for a term of six months or less.” Id. at 989. (emphasis added). The court observed that the tourist development tax is a tax imposed on all renters of the covered types of premises. Id. (emphasis added).

It is clear from the language of the Miami Dolphins opinion that the Florida Supreme Court considers the local option tourist development tax as a tax due on funds paid by the tourist, not a tax due on money received by the hotel. It is also clear from the language of the opinion that the tax is due on the gross amount of the hotel bill, not on the net amount the hotel may receive after payment of expenses or commissions to an online booking agent. Yet the majority of this court has concluded that the tax at issue is actually a tax on the business of renting a hotel room and the amount due is limited to the hotel’s portion of the total funds paid by the tourist to rent the room. On this point, I believe that the majority has misapplied the holding in Miami Dolphins.

I acknowledge that the issue before the court in Miami Dolphins is not the same as the issue we have before us here. If the matter were that simple we would have no controversy at all. The point is that the supreme court defined the nature of the tax by stating that it was a tax on money paid by the tourist, not as a tax on the money received by the hotel after payment of expenses. Curiously, the majority seems to concede this point in its statement that the Miami Dolphins decision “simply recognized the obvious — the tax is imposed on tourists and residents and collected by the hotels.” I think this statement regarding the nature of the tax is obvious, as well, but it is contrary to the rationale of the majority opinion.

The online travel companies rely heavily on the statement of legislative intent in section 125.0104, Florida Statutes, which is as follows:

(8)(a)l. It is declared to be the intent of the Legislature that every person who rents, leases, or lets for consideration any living quarters or accommodations in any hotel, apartment hotel, motel, resort motel, apartment, apartment motel, roominghouse, mobile home park, recreational vehicle park, condominium, or timeshare resort for a term of 6 months or less is exercising a privilege which is subject to taxation under this section, unless such person rents, leases, or lets for consideration any living quarters or accommodations which are exempt according to the provisions of chapter 212.

The travel companies contend that this section authorizes a tax on the exercise of the privilege of “renting, leasing or letting” rooms to transients.” (emphasis added). But that is not what the statute says. To the contrary, the statute merely identifies the act of renting, leasing and letting as the taxable event. It does not state that the tax is to be assessed on the rental income received by the hotel for the privilege of renting a room “to” a tourist as the travel companies argue. This section of the statute is written passively to define the transaction that is subject to the tax.

The travel companies argue that the statute must be construed to impose a tax on the business income received by the hotels, because the terms “rent” and “lease” are used to describe actions taken by the owner of the property, in this case the hotel. They point out in the answer brief that “rent” means “to grant the possession and enjoyment of property ... in return for payment,” that “lease” means “to grant the temporary possession or use of (lands, tenements, etc.) to another, usually for compensation at a fixed rate; let,” and that “let” means “to grant occupancy or use of (land, buildings, rooms, space, etc., or movable property)” in return for payment. Dictionary.com (based on Random House Dictionary) (2012); see also Collins English Dictionary (10th ed. 2009). The problem with this argument is that the terms “rent” and “lease” are also used to describe an action taken by the person who pays for the right to occupy the property.

The first definition of the transitive verb “rent” in the American Heritage Dictionary of the English Language online is “[t]o obtain occupancy or use of (another’s property) in return for regular payments.” AHDictionary.com. Indeed, the hard copy of the American Heritage Dictionary does not even include the meaning in which one grants the use of property to another. It lists only the meaning consonant with the primary online definition— “[t]o use (another’s property) in return for regular payments” — and “[t]o be for rent.” American Heritage Dictionary 708 (4th ed. 2001). Likewise, the MacMillan Dictionary online lists as the first definition of “rent” as “to pay money regularly to use a house, room, office, etc. that belongs to someone else.” MacMillanDiction-ary.com; see also Cambridge Dictionary Online, Dictionary.Cambridge.org/dictionary/american-english/. The Oxford Dictionaries U.S. English Usage site lists only the connotation, “pay someone for the use of (something, typically property, land, or a car): they rented a house together in Spain.” Oxford Dictionaries Online, Ox-fordDictionaries.com (emphasis in original). As Bryan Garner explains, the transitive verb “rent”

may refer to the action taken by either the lessor or the lessee; the word has had this doubleness of sense from at least the 16th century. Both the lessee and the lessor are renters, so to speak, though usually this term is reserved for tenants.

Bryan A. Garner, A Dictionary of Modem Legal Usage (2d ed.), p. 756 (emphasis in original).

Garner makes a similar observation as to the term “lease”: “To say that one leases property nowadays does not tell the reader or listener whether one is lessor or lessee.” Id. at 514. Accordingly, dictionaries, including Black’s, generally list dual definitions of “lease.” See Black’s Law Dictionary, 909 (8th ed.); The American Heritage Dictionary of the English Language Online, AHDictionary.com; Merrianu-Webster Dictionary Online, Merriam-Webster.com/; Oxford Dictionaries Online, OxfordDictionaries.com. The definition in the Cambridge Dictionary Online lists the sense in which the lessee is the acting party as the first of the two alternate meanings. See Cambridge Dictionary Online, http://dictionary. cambridge.org/ (“to use or allow someone else to use land, property, etc. for an agreed period of time in exchange for money: I leased my new car instead of buying it.”) (emphasis in original).

Because these terms can be used interchangeably to describe the action by either party in the making of a lease or rental agreement, we cannot say for certain that they are used in the statute to describe the act of providing a hotel room for a price. We could just as well read the phrase “any person who rents ...” to mean any person who pays money to a hotel for the privilege of staying there. And while “let” has no other meaning than the one in which the property owner is the actor, this term is listed in the disjunctive in the statute. Therefore, it need not be understood as merely another term for “rent” or “lease.” Again, the statute merely defines the kind of transaction that is subject to the tax. It does not seek to assess the tax based on the activity of one of the parties to the transaction.

For these reasons, I do not think that the statement of legislative intent in section 125.0104 supports the argument by the travel companies that the tax is imposed for the privilege of operating a hotel in Florida. And even if that were the ease, the statement of legislative intent would not override the plain and unambiguous language of the operative parts of the statute — that is, the parts of the statute that describe how the tax is to be assessed and collected. See S.R.G. Corp. v. Dep’t of Revenue, 865 So.2d 687, 689 (Fla.1978) (stating that legislative intent is determined primarily from the language of the statute). Several key parts of the statute reveal that the tax is to be based on the total amount of money paid by the tourist, not on the net amount retained by the hotel.

For example, section 125.0104(3)(a)2.a states the “[t]ax shall be due on the consideration paid for occupancy.” Here, the legislature is plainly referring to the amount of money paid by the tourist, not the amount of money retained by the hotel. And if there could be any doubt that the tax is based on the gross amount paid by the tourist, it would be completely removed by section 125.0104(3)(c), which specifies that the tax shall be assessed “at a rate of 1 percent or 2 percent of each dollar and major fraction of each dollar of the total consideration charged for such lease or rental.” (Emphasis added.) This provision undercuts the argument that a portion of the consideration can be exempted from taxation. As the statute provides, the tax is to be levied on the full amount paid for the room.

I acknowledge that an ambiguity in a tax statute must be resolved in favor of the taxpayer, see Department of Revenue v. Brookwood Associates, Ltd., 324 So.2d 184, 186 (Fla. 1st DCA 1975); Maas Brothers, Inc. v. Dickinson, 195 So.2d 193, 198 (Fla.1967), but the statute at issue here does not strike me as ambiguous at all. It is broad in the sense that it covers many different kinds of tourist accommodations, and it is general in the sense that it refers without specification to both lessors and lessees. But it is not confusing or unclear. It imposes a tax on the funds paid by a tourist to rent a room in a hotel. The matter is no more complicated than that. As a federal judge observed in ruling on the identical issue, the tax is imposed on the “bargain struck” and that is the money the tourist pays for access to the hotel room. See Village of Rosemont, III v. Priceline.com, Inc., 2011 WL 4913262 (N.D. Ill., 2011).

The majority is correct to say that section 125.0104, Florida Statutes must be read in conjunction with Chapter 212, the Florida Revenue Act of 1949. And the majority is also correct in pointing out that section 212.03(l)(a) specifies that the taxable privilege for the purpose of Chapter 212 is the business of operating a hotel. However, it does not follow from these two propositions that the taxable privilege for the purpose of section 125.0104 is the privilege of operating a hotel, as the majority concludes. Statutes are read in pari mate-ria only to resolve ambiguities and, as I have explained, there is no ambiguity in section 125.0104. Moreover, section 125.0104 was enacted after section 212.03(l)(a)(l), and the specific language in section 212.03(l)(a)(l) about the privilege of operating a hotel was not carried forward in section 125.0104. If we are to draw any conclusion from this omission at all, it would be that the taxable event for the purpose of section 125.0104 is not the privilege of operating a hotel.

It is significant in my view that the tourist development tax is paid on some transactions arranged by the online companies but not on others. The travel companies employ two different business models. Under the practice described as the “agency model,” the travel company books the room, the tourist pays the full amount of the bill to the hotel, and the hotel remits a fee to the travel company. By the practice described as the “merchant model,” the travel company books the room, collects the full amount of the hotel bill from the tourist, pays a portion of the bill to the hotel, and retains a portion of the bill for booking thé room.

When the travel company employs the agency model, the tax is computed and paid on the full amount of the bill for the room, and the fee that is remitted to the travel company is treated as an expense. In contrast, the tax is not computed on the full amount of the bill if the transaction is arranged under the merchant model. In that case, the tax is paid only on the portion of the funds paid by the tourist that are actually remitted to the hotel. The tax is not paid on that portion of the funds retained by the travel company.

Because the merchant model is merely a different method of completing the same transaction, it cannot have the effect of changing the tax liability on the transaction. When resolving a tax issue, the courts must look to the substance of the transaction, not its form or label. See Leon Co. Educ. Facilities Auth. v. Hartsfield, 698 So.2d 526, 529 (Fla.1997); Reinish v. Clark, 765 So.2d 197, 208 (Fla. 1st DCA 2000); TEDC/Shell City, Inc. v. Robbins, 690 So.2d 1323, 1325 (Fla. 3d DCA 1997). By this basic principle, a taxpayer cannot avoid a tax merely by characterizing a transaction as something other than what it truly is.

If the travel companies could escape the tax merely by changing the form of the transaction, the hotels could do the same thing on their own. There would be nothing to prevent a large hotel chain from setting up a wholly owned subsidiary and then using that company for the exclusive purpose of advertising and promotion and for booking hotel rooms. The subsidiary could then charge the hotel for a portion for the room rate for every booking it makes and retain its portion of the bill tax-free. In my view, a scheme like this is no worse than the one the travel companies have devised here; nor is it any better. Both schemes seek to avoid taxation by making the transaction appear to be something other than what it is.

The issue presented in this case is just emerging in Florida, but it has been decided in other jurisdictions in a way that is contrary to the majority opinion. For example, in Expedia, Inc. v. City of Columbus, 285 Ga. 684, 681 S.E.2d 122 (2009), the Supreme Court of Georgia held that an online travel company using the merchant model must pay a local accommodation tax on the portion of the hotel bill it retains when booking the room. Because the statute at issue in that case imposed a tax on the “lodging charges actually collected” from the tourist, the court concluded that the “wholesale rate” the hotel charged the travel company could not be the rate upon which the tax was computed. Likewise in City of Charleston, S.C. v. Hotels.com, LP, 586 F.Supp.2d 538 (D.S.C.2008), a federal court held than an online travel company was required to pay the local accommodation tax on the portion of the hotel bill it retained for booking rooms in’ the City of Charleston. The statute in that case imposed a tax on the “gross proceeds” derived from the rental. The Florida statute is substantially the same in that it imposes a tax on “total consideration” for the lease or rental. And in Village of Rosemont, Ill. v. Priceline.com Inc., 2011 WL 4913262 (N.D.Ill., 2011), the court held that Price-line.com was obligated to pay a local accommodation tax on the amount it retained when it booked hotel rooms under the merchant model we have before the court in this case. Numerous other courts have concluded that requiring the online travel companies to pay a local accommodation tax on a hotel bill does not violate the dormant commerce clause. See Mayor & City Council of Baltimore v. Priceline.com Inc., 2012 WL 3043062 (D.Md., 2012); City of San Antonio v. Hotels.com, 2008 WL 2486043 (W.D.Tex.2008); Travelscape, LLC v. S. Carolina Dep’t of Revenue, 391 S.C. 89, 705 S.E.2d 28 (2011).

There are certainly differences in the wording of the statutes in these cases, but the fundamental principle is the same in all of them. The tax at issue is a tax on the total amount of money a tourist pays to stay in a hotel room. That amount cannot be artificially reduced by setting a wholesale rate for the room and then treating the difference on the funds retained by an online travel company as if it is not part of the money the tourist has paid to stay in the room. With respect for my colleagues in the majority, I think that the result should be no different here.

For these reasons, I would hold that the portion of the hotel bill that is retained by the online travel companies is part of the total consideration paid for the accommodation and that it is therefore subject to the local option tourist development tax.

ON MOTION FOR REHEARING EN BANC OR CERTIFICATION

PER CURIAM.

Appellants’ Motion for Rehearing En Banc Or, In the Alternative, Requesting a Certification to the Florida Supreme Court of a Question of Great Public Interest, was filed March 15, 2013. We deny the motion for rehearing en banc, but grant the motion for certification.

We certify the following question to the Florida Supreme Court as one of great public importance:

DOES THE “LOCAL OPTION TOURIST DEVELOPMENT ACT,” CODIFIED AT SECTION 125.0104, FLORIDA STATUTES, IMPOSE A TAX ON THE TOTAL AMOUNT OF CONSIDERATION RECEIVED BY AN ONLINE TRAVEL COMPANY FROM TOURISTS WHO RESERVE ACCOMMODATIONS USING THE ON-LINE TRAVEL COMPANY’S WEBSITE, OR ONLY ON THE AMOUNT THE PROPERTY OWNER RECEIVES FOR THE RENTAL OF THE ACCOMMODATIONS?

BENTON, C.J., PADOVANO and THOMAS, JJ., concur.

      . There have been several proposed legislative bills to expressly include or exclude the Companies from the Tourist Development Tax. See Fla. HB 1241 (2010); Fla. HB 335 (2010); and Fla. HB 493 (2011).

      . This process is known as the "merchant model” which differs from the "agency model” in that, with the latter, the consumer pays the hotel for the room and the hotel then remits a commission to the Online Travel Company.

      . This issue was the subject of litigation in the Ninth Judicial Circuit, in addition to the order on appeal here. We acknowledge our use of some of the analysis of the summary judgment order by Judge Lauten in Orange County and Martha O. Haynie, Orange County Comptroller v. Expedia, Inc. and Orbitz, LLC (Fla. Cir. Ct., 9th Cir. Case No. 2006-CA-2104).

      . Note that this provision clearly applies to hotels and motels, etc., and provides that they, too, are taxable under the Tourist Development Tax.

      . The privilege involved here of renting rooms to tourists is also supported by the plain wording in other provisions in the statute. The statute explicitly provides that the privilege exercised is renting, leasing, or letting a room "for consideration,” and that the tax at issue is due "on the consideration paid for occupancy” of such a room in the applicable county. § 125.0104(3)(a)l., 2.a., Fla. Stat. In a contract, one party sells a product or service for consideration, and the other party pays for the product or service with that consideration. The statute itself recognizes this principle: "The tourist development tax shall be charged by the person receiving the consideration for the lease or rental, and it shall be collected from the ... customer at the time of payment of the consideration for such lease or rental.” § 125.0104(3)(f), Fla. Stat. (emphasis added). "The person receiving the consideration for such rental or lease shall receive, account for, and remit the tax” to the Department of Revenue. § 125.0104(3)(g), Fla. Stat. (emphasis added).


source: Caselaw Access Project

author: CLARK, J.

license: Public Domain

text:
    Rafael Uberto Lopez VILLALTA, as Personal Representative of the Estate of Walter Villalta, Appellant, v. CORNN INTERNATIONAL, INC., a Florida Corporation, L & W Drywall Services, Inc., a Florida Corporation, and Lesters Fuel Oil Services, a Florida Corporation, d/b/a Tropic Aire of North Florida, Appellees.
    No. 1D11-6848.
    District Court of Appeal of Florida, First District.
    March 6, 2013.
    Rehearing Denied April 26, 2013.
    Ralph G. Patino, of Patino & Associates, Coral Gables, and Ralph O. Anderson, of Ralph O. Anderson, P.A., Ft. Lauderdale, for Appellant.
    Hilda Klein and Diane H. Tutt, of Con-roy, Simberg, Ganon, Krevans, Abel, Lur-vey, Morrow & Scheffer, P.A., Hollywood, for Appellee Cornn International, Inc.
   CLARK, J.

The appellant, the personal representative of the estate of Walter Villalta, challenges a summary final judgment entered in favor the appellee, Cornn International, in a civil action for damages upon the death of Mr. Villalta. In the summary judgment the trial court properly ruled that to avoid the statutory immunity from suit provided in the Workers’ Compensation Law at section 440.11(1), Florida Statutes, the appellant was required to establish that Cornn International committed an intentional tort. The trial court determined that the depositions, affidavits, and other supporting evidence did not reflect an intentional tort. The summary judgment is therefore affirmed.

The general contractor for the project subcontracted the drywall work to Cornn International, who further subcontracted the drywall finishing to L & W Drywall Services. Mr. Villalta was employed as a drywall finisher by L & W. Mr. Villalta was thus employed by the general contractor’s sub subcontractor, and Cornn International’s sub contractor. Upon that vertical relationship, Cornn International became Mr. Villalta’s statutory employer pursuant to section 440.10(1), Florida Statutes, and was thus entitled to the immunity from civil suit granted by section 440.11(1), Florida Statutes. See Mena v. J.I.L. Construction Group, 79 So.3d 219 (Fla. 4th DCA 2012); Latite Roofing & Sheet Metal Co. v. Barker, 886 So.2d 1064 (Fla. 4th DCA 2004); see also Dempsey v. G & E Construction Co., 556 So.2d 426 (Fla. 4th DCA 1989).

While engaged in the drywall employment as described above, Mr. Villalta fell from a scaffold and sustained fatal injuries. The appellant filed a civil suit for damages naming several defendants, including Cornn International which then asserted its immunity from suit granted by section 440.11(1). An exception to the statutory immunity applies if an intentional tort was committed. See § 440.11(l)(b), Fla. Stat. The evidence submitted by the appellant did not show the commission of an intentional tort in this case. The appellant relied on a theory of gross negligence and asserted that the suit could be brought against Cornn International pursuant to section 440.10(l)(e)2., Florida Statutes, which provides section 440.11 immunity for a subcontractor sued by the employee of another subcontractor, unless the first subcontractor’s own gross negligence was the major contributing cause of the injury. However, reliance on the gross negligence provision in section 440.10(l)(e)2., ignores the distinction between a vertical subcontracting relationship as described in Chase v. Tenbroeck, 399 So.2d 57 (Fla. 3d DCA 1981), and upon which section 440.11(1) immunity applies, and the horizontal type of subcontractor relationship to which section 440.10(l)(e)2. may be invoked. See also Ramcharitar v. Derosins, 35 So.3d 94 (Fla. 3d DCA 2010); Amorin v. Gordon, 996 So.2d 913 (Fla. 4th DCA 2008).

As explained in Chase v. Tenbroeck, supra, a vertical relationship is created when a contractor sublets part of the work to a subcontractor, who then further sublets work to another subcontractor. That is the situation in the present case. In contrast, a horizontal relationship exists between subcontractors engaged on the same construction project but under different subcontracts outside the vertical chain of a contractor to subcontractor to sub-subcontractor. The immunity granted to subcontractors outside that vertical chain is governed by section 440.10(1), including the section 440.10(l)(e)2. provision for gross negligence. See Amorin v. Gordon, 996 So.2d 913 (Fla. 4th DCA 2008). The immunity for subcontractors within a vertical relationship, as in the present case, is governed by section 440.11(1), with the section 440.11(l)(b) intentional tort exception. See Mena v. J.I.L. Construction Group, supra. Because the evidence submitted by the appellant in this case does not support an intentional tort, and because Cornn International was in a vertical subcontracting relationship with L & W and was Mr. Villalta’s statutory employer for workers’ compensation benefits, Cornn International was entitled to the section 440.11(1) immunity. The gross negligence exception in section 440.10(l)(e)2. does not apply in this situation, and the summary judgment in this civil suit was properly entered for Cornn International, in accordance with section 440.11(1).

The appealed order is AFFIRMED.

WOLF and VAN NORTWICK, JJ, concur.


author: TAYLOR, J.

text:
    Deitrick JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-95.
    District Court of Appeal of Florida, Fourth District.
    March 6, 2013.
    Rehearing Denied May 3, 2013.

      Antony P. Ryan, Regional Counsel, and Genevieve Hall, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Deitrick Johnson was convicted of eight counts of robbery with a firearm and sentenced to fifty years of imprisonment on each count, to be served concurrently. We affirm on all issues raised by the defendant, but write to address his arguments that the trial court erred by: 1) admitting evidence of a collateral robbery at the defendant’s trial, 2) refusing to sever the three robberies for which the defendant was tried, and 3) admitting the defendant’s cell phone records, even though the state failed to comply with the requirements of section 934.23, Florida Statutes (2003).

Several chain drugstores located in Bro-ward County were robbed by armed men during the fall of 2007. The defendant and a co-defendant were arrested and charged with four of these robberies. Three of the robberies occurred on October 8, 2007. The other occurred on September 4, 2007. During a pre-trial motion in limine, the state presented the following evidence regarding the four robberies:

(1) All the robberies took place within a month of each other;
(2) All the robberies occurred at chain drugstores, mostly at CVS;
(3) All the robberies took place between the hours of three and six o’clock in the morning;
(4) All the drugstores were located in Broward County;
(5) All the robberies involved two male perpetrators;
(6) In each robbery, the perpetrators wore masks;
(7) In each robbery, the perpetrators entered the store holding guns;
(8) In each robbery, the perpetrators wore dark clothing;
(9) In each robbery, the perpetrators told the drugstore employees to lay on the ground;
(10) In each robbery, one perpetrator stayed in the front of the store while the other immediately made his way into the back;
(11) In each robbery, the perpetrators were in and out of the drugstore in a short period of time;
(12) In each robbery, the defendants’ cell phones were used to place calls to each other just before and after the robberies;
(13) In each robbery, the defendants’ cell phones were used at or near the location of the robberies.
(14) In most of the robberies, the perpetrators took or disabled the employees’ cell phones.

After hearing this evidence, the trial court held that the September 4, 2007 robbery was admissible collateral crime evidence because it was relevant regarding the issues of modus operandi and identity. The trial court also held that the three October 8, 2007 robbery counts could be tried together as one crime spree and denied the defendant’s motion to sever these offenses. Finally, the trial court ruled that the defendant’s cell phone records, which only included his historical cell site information, could be admitted at trial. The case proceeded to trial, and a jury found the defendant guilty on all charges.

The first two issues on appeal concern the propriety of admitting evidence of the September robbery at the defendant’s trial for the October robberies. Similar crime evidence, also known as Williams rule evidence, is codified in section 90.404(2)(a), Florida Statutes (2009), and may be admitted at trial when it is relevant to prove a material fact in issue. Cartwright v. State, 885 So.2d 1010, 1013 (Fla. 4th DCA 2004). To admit evidence of a collateral crime at trial, the state must first prove by clear and convincing evidence that the defendant committed the collateral act. Alsfield v. State, 22 So.3d 619, 621 (Fla. 4th DCA 2009) (citing Audano v. State, 641 So.2d 1356, 1359 (Fla. 2d DCA 1994)). When the “purported relevancy of the collateral crime evidence is the identity of the defendant,” the state must also show “identifiable points of similarity between the collateral act and the charged crime.” Durousseau v. State, 55 So.3d 543, 552 (Fla.2010) (quoting Peterson v. State, 2 So.3d 146, 153 (Fla.2009)). We review the trial court’s ruling on the admissibility of collateral crime evidence for an abuse of discretion. Kane v. State, 975 So.2d 1277, 1280 (Fla. 4th DCA 2008) (citing Macias v. State, 959 So.2d 782, 784 (Fla. 4th DCA 2007)).

We reject the defendant’s contention that the September robbery was not admissible because the state did not present clear and convincing evidence that the defendant committed it. Cell phone records placed the defendant at the drugstore around the time of the robbery. Surveillance video of the robbery showed that one of the suspects was wearing a camouflage hat, and a camouflage hat was found in the parking lot of the drugstore shortly after the robbery occurred. The defendant’s DNA was found on the hat. This was clear and convincing evidence that the defendant committed the September robbery.

Based on the similarities between the robberies, we also reject the defendant’s argument that the September robbery was not sufficiently similar to the October robberies. The trial court acted within its discretion when it determined that this Williams rule evidence was admissible. See Corinthian v. State, 761 So.2d 1180, 1180-81 (Fla. 4th DCA 2000) (finding no error in the admission of collateral crime evidence on the issue of identity because of the “numerous similarities between the collateral crimes admitted and the [robbery] for which [the defendant] was on trial”). The evidence was sufficiently similar to the charged crimes, relevant on the issues of modus operandi and identity, was not unduly prejudicial, and did not become a feature of the trial.

We also find no error in the trial court’s denial of the defendant’s motion to sever the three charged robbery offenses. A trial court’s ruling on a motion for severance is reviewed for an abuse of discretion. Williams v. State, 40 So.3d 89, 91 (Fla. 4th DCA 2010). The three robberies all occurred within a three-hour time span during the early morning hours in the northwestern area of Broward County. In addition to geographic and temporal proximity, the robberies were perpetrated in a similar manner, as described above. The trial court’s determination that the three robberies represent a crime spree is supported by the evidence and the law. See Bundy v. State, 455 So.2d 330, 345 (Fla.1984) (“In determining whether two acts or transactions are connected for purposes of consolidation, this Court has considered the temporal and geographical association, the nature of the crimes, and the manner in which they were committed.”) (citations omitted), abrogated on other grounds by Fenelon v. State, 594 So.2d 292 (Fla.1992); Stephens v. State, 863 So.2d 434, 436 (Fla. 4th DCA 2003) (explaining that offenses may be tried together as part of a crime spree when they share “temporal and geographical proximity, as well as a similarity between the offenses”); Rohan v. State, 696 So.2d 901, 903 (Fla. 4th DCA 1997) (concluding that two burglaries were committed during a “spree” where they were committed within a period of less than one hour when defendant forced his way into separate residences of two women and the crimes were not interrupted by a significant period of respite), abrogated on other grounds by State v. Smith, 840 So.2d 987 (Fla.2003).

Crossley v. State, 596 So.2d 447 (Fla.1992), cited by the defendant, is distinguishable. There, the Florida Supreme Court held that the trial court abused its discretion by refusing to sever a kidnapping and armed robbery that occurred at 3:00 in the afternoon from another armed robbery that occurred several hours later. The court reasoned that the crimes were very different (the first robbery occurred in a parking lot; the second one at a convenience store), the episodes were entirely independent, and there was no evidence that directly connected them.

Unlike Crossley, in this case each robbery was committed at a similar location and in a similar way. There was virtually no delay between the robberies; the first occurred within three hours of the last. Furthermore, the robberies were directly connected because evidence showed that the defendants’ cell phones were used around the time of each robbery, and the calls originated near each robbery. The trial court reasonably concluded that the robberies were part of one unbroken and interconnected chain of events.

The cell phone evidence mentioned above is the subject of the defendant’s next point on appeal. The defendant argues that the trial court committed fundamental error in admitting phone records, retrieved without a warrant, which showed that the time and location where the defendant and a co-defendant made and received cell phone calls corresponded with the time and location of the robberies. Citing privacy concerns and Fourth Amendment protection, the defendant urges us to hold that this information, known as historical cell phone site information, should have been suppressed. However, the defendant acknowledges that we addressed this issue in Mitchell v. State, 25 So.3d 632 (Fla. 4th DCA 2009). In Mitchell, we held that “historical cell site information is not content-based. The user of a cell phone has no expectation of privacy in those records.” Id. at 635 (citing Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)). We went on to note that “because historical cell site information discloses only the defendant’s past location and does not pinpoint his current location in a private area, it does not implicate Fourth Amendment protections.” Id. (citing United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983)). We therefore find no error in the admission of the historical cell site information, even though the records were obtained without a warrant. See Tracey v. State, 69 So.3d 992, 1000 (Fla. 4th DCA 2011) (“[T]he exclusionary rule is not a remedy for violations of section 934.23.”).

Finally, we find no merit in the defendant’s argument that the trial court erred in giving a jury instruction on principals and in denying the defendant’s motion for judgment of acquittal on all counts.

Accordingly, we affirm the judgment and sentence.

Affirmed.

MAY, C.J., and CONNER, J., concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . The trial court also held that the prior uncharged robbery was admissible because it was inextricably intertwined with the charged robberies. Although we disagree with the trial court’s ruling on this issue, we affirm because evidence of the prior uncharged robbery was permissible Williams rule evidence. See Curtis v. State, 748 So.2d 370, 372 (Fla. 4th DCA 2000) ("Even where a trial court’s stated reasons for ruling are erroneous, an appellate court will affirm if the result is right but for the wrong reason.”).


author: HANZMAN, MICHAEL, Associate Judge.

text:
    Symone MAXWELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1123.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.
    Rehearing Denied May 3, 2013.

      Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   HANZMAN, MICHAEL, Associate Judge.

Appellant, Symone Maxwell, was charged by information with neglect of an elderly and/or disabled adult, a crime defined as:

A caregiver’s failure or omission to provide an elderly person or disabled adult with the care, supervision, and services necessary to maintain the elderly person’s or disabled adult’s physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the elderly person or disabled adult....

§ 825.102(3)(a)(l), Fla. Stat. (2008). Appellant was found guilty as charged and sentenced to five years in prison. She asserts that the trial court erred by denying her motion for acquittal, claiming that the evidence presented was legally insufficient to prove the charged offense. See Span v. State, 732 So.2d 1196, 1197 (Fla. 4th DCA 1999). Our standard of review is de novo, see State v. Williams, 742 So.2d 509, 511 (Fla. 1st DCA 1999), as we “determine sufficiency as a matter of law.” Tibbs v. State, 397 So.2d 1120, 1123 n. 10 (Fla.1981).

For reasons explained below we conclude that Appellant’s conduct, though possibly criminal, was not proscribed by the statute under which she was charged when construed most favorably to the accused, a construction we are obligated to adopt pursuant to the “Rule of Lenity.” See § 775.021(1), Fla. Stat. (2008) (criminal statutes “shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.”) McLaughlin v. State, 721 So.2d 1170, 1172 (Fla.1998) (“[I]t is a well-established canon of construction that words in a penal statute must be strictly construed” (citation omitted)); Wallace v. State, 860 So.2d 494, 497 (Fla. 4th DCA 2003) (through § 775.021(a) “[t]he Legislature committed itself to the “Rule of Lenity” in the construction of criminal statutes-”). We therefore reverse Appellant’s conviction.

Appellant was the nighttime caretaker for ninety-one-year-old Nettie Stewart (“Nettie”). The State alleged that Appellant regularly gave Nettie Ambien — a controlled substance she had not been prescribed — so she would “pass out,” thereby allowing Appellant to entertain male friends. When viewed in the light most favorable to the State, the evidence, though clearly conflicting, was sufficient for the jury to conclude that over an approximate six-month period Appellant, in fact, gave Nettie the non-prescribed medication. The question therefore is not whether the evidence was sufficient to prove that Appellant engaged in the conduct she was accused of, it is whether that conduct — the affirmative act of administering this medication — constituted “neglect” as defined by section 825.102(3)(a)l.

In answering this question we are mindful that our task is not to determine legislative intent with precision. Rather, we are charged with the duty of deciding whether section 825.102(3)(a)l is “susceptible of differing constructions” and, if so, whether application of the one most favorable to Appellant leads us to conclude that her conduct is not criminalized by the statute. “[Statutes creating and determining crimes cannot be extended by construction or interpretation to punish an act, however wrongful, unless clearly within the intent and terms of the statute.” Hutchinson v. State, 315 So.2d 546, 547 (Fla. 2d DCA 1975). This principle “rests on the due process requirement that criminal statutes must say with some precision exactly what is prohibited.” Perkins v. State, 576 So.2d 1310, 1312 (Fla.1991).

We begin our analysis by pointing out that section 825.102(3)(a) — the neglect provision — is part of Chapter 825, titled “Abuse, Neglect and Exploitation of Elderly and Disabled Adults.” As the title suggests, this Chapter criminalizes different types of behavior. Section 825.102(1) makes it a third degree felony to “abuse” a disabled or elderly person; section 825.102(3) criminalizes “neglect” of an elderly or disabled adult; section 825.1025 is aimed at lewd and lascivious offenses committed in the presence of a disabled or elderly person; and section 825.103 is directed at “exploitation.” Each statute specifically defines the conduct criminalized, and no provision refers to, or incorporates, definitions contained within another. Each definition is free standing and self-contained.

The first substantive provision — section 825.102(1) — criminalizes “abuse,” defined to include, among other things, any “intentional act” that could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult.” § 825.101(l)(b), Fla. Stat. (2008). Subsection (3) of the statute goes on to address the crime of “neglect” which, as we pointed out earlier, is defined as a caregiver’s “failure” or “omission” to provide care ... necessary to maintain the elderly person’s ... physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the elderly person .... ” § 825.102(3)(a)l, Fla. Stat. (2008). A holistic reading of section 825.102 therefore suggests that subsection (1) covers affirmative acts, and subsection (3) covers “failures” and “omissions,” thereby ensuring that both “acts” and “omissions” that could reasonably be expected to harm an elderly or disabled adult are subject to prosecution.

A careful examination of the “neglect” subsection in isolation reinforces this view. First, the word “failure,” as defined and commonly understood, encompasses a “deficiency,” a “cessation of supply,” an “omission” or “non-performance.” Webster’s Encyclopedic Dictionary, 315 (1980). Similarly, to “omit” is defined as to “neglect,” “disregard,” “[t]o pass over,” “to let slip” and to fail “to do something that should have been done.” Id. at 580. The plain and ordinary meaning of these terms suggests that this subsection is intended to capture a caregiver’s inaction. See Gyongyosi v. Miller, 80 So.3d 1070, 1075 (Fla. 4th DCA 2012) (when a term in a statute is not defined, courts must look to its plain and ordinary meaning, which can be discerned from a dictionary).

A contextual reading of this provision further suggests that it is intended to criminalize only failures or omissions, as it clearly contemplates the withholding of necessities (i.e., food, clothing, shelter and medicine) “essential” to the elderly person’s well-being. In other words, it criminalizes depriving elderly or disabled persons of items critical to their health and sustenance. But unlike the “abuse” provision subsection (3) does not expressly criminalize affirmative acts. And since affirmative acts are in fact covered by the “abuse” provision, we may infer that they are not included within the scope of the “neglect” provision. See, e.g., Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (a familiar principal of statutory construction is that a negative inference may be drawn from the exclusion of language from one statutory provision that is included in other provisions of the same statute.) See also, Russello v. United States. 464 U.S. 16, 23, 104 S.Ct. 296. 78 L.Ed.2d 17 (1983) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”).

We recognize that another interpretation is also reasonable, as one surely could argue that an affirmative act — such as administering non-prescribed medication— which could reasonably result in harm, is ipso facto a “failure” to provide “care.” But one also could argue with equal — if not greater force — that section 825.102(3)(a)l criminalizes only a “failure” or “omission” to deliver necessities; in other words, deprivation. Because both of these competing interpretations are plausible, and persons of reasonable intelligence could differ on which was intended, the statute is at the very least ambiguous and “must be strictly construed most favorably to the accused.” Polite v. State, 973 So.2d 1107, 1112 (Fla.2007).

As we said earlier, our task is not to find which of these reasonable constructions was in fact intended by the Legislature. Our role is simply to determine whether the statute is susceptible to a construction which would place Appellant’s conduct beyond its reach, thereby implicating the Rule of Lenity. See § 775.021(1), Fla. Stat. (2008). We hold that it is.

The trial court’s judgment of conviction is reversed.

GROSS and DAMOORGIAN, JJ., concur.


author: PER CURIAM.

text:
    Aaron Franklin BROWN, Appellant, v. NORTH FLORIDA SURGEONS, P.A. and G. Steven Webb, M.D. et al., Appellee.
    No. 1D12-3383.
    District Court of Appeal of Florida, First District.
    March 22, 2013.
    Rehearing Denied April 25, 2013.
    Robert F. Jordan of Jordan Law Firm, PLLC, Lake City, for Appellant.
    James T. Murphy and Jill F. Bechtold of Mathis & Murphy, P.A., Jacksonville, for Appellee.
   PER CURIAM.

AFFIRMED. See Franks v. Bowers, 62 So.3d 16 (Fla. 1st DCA 2011).

VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.


author: MAY, C.J.

text:
    George PORTER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3579.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, C.J.

The defendant appeals his sentence of five years in prison for grand theft. He argues the trial court erred in enhancing his sentence to a prison term without a jury finding that he was a “danger to the community,” pursuant to section 775.082(10), Florida Statutes (2010). We disagree and affirm.

The State charged the defendant with grand theft and uttering a worthless check to a general contractor. The jury found the defendant guilty of both charges. The defendant scored 14.7 points, consisting of the current charge and a record of five prior convictions for felony worthless check, four for misdemeanor worthless check, and one for grand theft. The State requested the statutory maximum sentence of five years in prison, arguing the defendant was a “danger to the community.”

Defense counsel objected and argued that a jury must find the defendant is a “danger to the community” under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and section 775.082(10), Florida Statutes (2010). The trial court disagreed and found the defendant was an economic “danger to the community,” citing McCloud v. State, 55 So.3d 643 (Fla. 5th DCA 2011). The court sentenced the defendant to five years in prison.

On appeal, the defendant continues to argue that the trial court was required to sentence him to non-state sanctions under section 775.082(10) absent a jury finding that he was a “danger to the community.” He argues that under Blakely, he is entitled to a jury determination of any fact which enhances his sentence. We disagree for two reasons. First, section 775.082(10) is a mitigation statute, not an enhancement statute. Second, the trial court relied on the one factor for which Blakely does not require a jury finding-prior convictions.

Let’s start with Florida’s crime and punishment statutes. The State charged the defendant with grand theft, pursuant to section 812.014(2)(c), Florida Statutes (2010). The grand theft charge is a third-degree felony subject to a maximum penalty of five years in Florida State Prison. § 775.082(3)(d), Fla. Stat. (2010). Under Florida’s Criminal Punishment Code, the trial court is permitted to sentence the defendant to any permissible sentence not to exceed the maximum sentence allowed for the degree of crime. § 921.002(g), Fla. Stat. (2010).

In 2009, due to an ever-increasing prison population, the cost of prison building and operation, and the downturn in the economy, the Florida Legislature enacted section 775.082(10). This was an effort to stem the tide of prison commitments. Jones v. State, 71 So.3d 173, 175 n. 4 (Fla. 1st DCA 2011).

The enactment was a mandated mitigation of an otherwise available maximum penalty. The safety valve to this mandated mitigation was the discretion given to the trial court to adhere to the Criminal Punishment Code in lieu of the mandated mitigation of the defendant’s sentence when the trial court made a written finding that the defendant was a “danger to the community.”

The trial court exercised its discretion, and made the requisite written finding:

The Defendant was convicted by a jury for Grand Theft. Consistent with the defendant’s life-long mo[d]us oper-andi, the theft was accomplished by means of writing a worthless check. The jury also convicted the defendant of a worthless check felony charge based upon the same conduct. The Court dismissed that charge because the state charged and proceeded under the wrong subsection of the statute. At sentencing, the defendant scored only 14.7 points despite previously having been convicted of five felony worthless check charges, four misdemeanor worthless check charges and one grand theft charge. As reflected by his prior convictions, certified judgments and sentences of which the state entered into the record at sentencing, the Defendant is in his mid-sixties and has engaged in financial fraud his entire adult life.
The financial and emotional damage in this case was significant. When viewing this case, and the defendant’s criminal history, no reasonable person could conclude that the defendant will not continue to commit financial crimes whenever he is released from incarceration, it has been his lifelong mo[d]us operandi.
Prior sentences have had no effect on deterring the defendant from committing financial crimes. The criminal justice system has continuously failed to protect the public from the defendant’s criminal financial conduct. The public is entitled to be secure in its financial dealings. That is one of the cornerstones of our economic system in this county.
It is clear that the defendant has been a danger to the public in the past, is now a danger to the public, and will be a danger to the public in the future, when not incarcerated. For that reason, it is overwhelmingly clear to this Court that he is a danger to the public and that a county jail sentence does not suffice as the appropriate punishment in this case.

This finding allowed the trial court to sentence the defendant, pursuant to the Criminal Punishment Code. We find no error.

Affirmed.

WARNER and POLEN, JJ., concur.

      . The jury found the defendant guilty of both charges, but the trial court dismissed the worthless check charge because the State had proceeded under the wrong subsection of the statute.


text:
    Prince Jamala GREY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3286.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.
    Prince Jamala Grey, Monticello, pro se.
    No appearance required for appellee.
   PER CURIAM.

This is appellant’s second post-conviction appeal challenging his sentence as outside the sentencing guidelines when the guidelines do not apply. Because appellant has filed successive motions and appeals raising or attempting to re-litigate meritless claims, he is cautioned that filing any further frivolous pleadings may result in the sanction of no longer accepting his pro se filings. See State v. Spencer; 751 So.2d 47 (Fla.1999).

Affirmed.

POLEN, GROSS and CIKLIN, JJ., concur.


text:
    Robin Lynn OLESON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2528.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General^ Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

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

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


text:
    Jose VEGA, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-883.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.
    Jose Vega, Live Oak, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Jose Vega (Defendant) appeals an order summarily denying his rule 3.850 motion for postconviction relief. We affirm in part and reverse in part.

The state attached, to its response to this court, portions of the record to refute the tenth and eleventh grounds, which were the subject of this court’s order to show cause: that counsel was ineffective in conceding Vega’s guilt to the jury without his approval. However, the state may not supplement the record on appeal by filing the relevant portions of the record directly with this court. Runge v. State, 24 So.3d 768, 769 (Fla. 4th DCA 2009) (citing Hastings v. State, 670 So.2d 1176, 1177 (Fla. 4th DCA 1996)).

Accordingly, the order is reversed in part and remanded either for attachment of portions of the record refuting the claim or for an evidentiary hearing. In all other respects, we affirm.

Affirmed in part; Reversed in part and Remanded for fiirther proceedings.

STEVENSON, CIKLIN and CONNER, JJ., concur.


text:
    Waymond J. GIBSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-868.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.
    Waymond J. Gibson, Avon Park, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed with directions to correct the scrivener’s error as to count one to reflect the trial court’s order correctly awarding appellant 5,256 days prison credit on that count. State v. Rabedeau, 2 So.3d 191 (Fla.2009); Williams v. State, 8 So.3d 502 (Fla. 1st DCA 2009).

Affirmed and remanded with directions.

MAY, C.J., DAMOORGIAN and LEVINE, concur.


text:
    J.G., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-654.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.
    Carey Haughwout, Public Defender, and Amy Lora Rabinowitz, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the written order of disposition but remand with directions to correct the scrivener’s error in the final judgment of guilt to reflect the juvenile’s correct name.

Affirmed and Remanded.

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


text:
    Simone JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4373.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

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

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


text:
    Travis STOLLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-622.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

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

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


author: DAMOORGIAN, J.

text:
    Sean CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-91.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Sean Campbell appeals his conviction and sentence for one count of armed burglary with a firearm, one count of armed kidnapping with a firearm, three counts of armed robbery with a-firearm, and one count of aggravated battery. Campbell raised several issues on appeal. We find only one issue of merit, and reverse his conviction and sentence for kidnapping. We affirm on all other issues.

By way of background, Campbell and an accomplice were charged and tried as co-defendants for their respective roles in a home invasion robbery. The facts of this crime and underlying trial are outlined in our decision concerning the accomplice’s conviction and sentence. Orukotan v. State, 85 So.3d 542 (Fla. 4th DCA 2012). There, we reversed the accomplice’s conviction and sentence for kidnapping on the grounds that the evidence as proven at trial did not support a conviction for kidnapping. Id. at 547. Because Orukotan dealt with the exact same facts and crime, we reverse Campbell’s conviction and sentence for kidnapping as well.

Reversed in Part and Affirmed in Part.

POLEN and LEVINE, JJ., concur.

      . Campbell also argued the following points: 1) the court erred when it did not exclude a witness from testifying about late disclosed evidence; 2) the court erroneously denied his motion for continuance based on the temporary unavailability of co-counsel; and 3) the court improperly limited Campbell’s cross-examination of witnesses.


text:
    Jerome KING, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2424.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.
    Rehearing Denied May 3, 2013.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant appeals his convictions for attempted first-degree murder and attempted robbery with a firearm and his sentences of thirty years in prison with a twenty-five year minimum mandatory. In the first two issues, appellant argues he should have been allowed to cross-examine witnesses concerning potential sentences they would face for uncharged crimes and that a detective’s unobjected-to testimony constituted hearsay. We affirm these issues, as they are without merit. In the third issue, appellant contends that the trial court erred in reclassifying the attempted robbery with a firearm to a first-degree felony and sentencing him to thirty years in prison. Appellant does not challenge the imposition of the twenty-five year minimum mandatory sentence under section 775.087(2)(a)3., Florida Statutes (2009). We agree that the reclassification was in error. Because the use of a firearm is an essential element of attempted robbery with a firearm, the offense cannot be reclassified under section 775.087(1), Florida Statutes (2009). Higgins v. State, 890 So.2d 519, 519 (Fla. 4th DCA 2005). Accordingly, we reverse and remand for re-sentencing in accordance with this opinion. See Edwards v. State, 108 So.3d 696 (Fla. 5th DCA 2013); Termitus v. State, 86 So.3d 1179, 1181 (Fla. 5th DCA 2012).

Affirmed in part, reversed in part, and remanded.

DAMOORGIAN, CIKLIN and LEVINE, JJ., concur.


text:
    Timothy MITZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-752.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.
    Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant appeals his convictions for burglary of a dwelling with an assault or battery, resisting an officer without violence, and sexual battery on a person twelve years of age or older and sentence of life in prison. Appellant raises two issues on appeal: whether the trial court committed fundamental error by instructing the jury on a theory allegedly not charged in the information and whether the trial court erred in denying his motion for mistrial based on a single reference to his membership in a gang, which the trial court instructed the jury to disregard. We find both issues to be without merit and therefore affirm.

Affirmed.

DAMOORGIAN, CIKLIN and LEVINE, JJ., concur.


text:
    Daniel Orlando KULJIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2780.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Daniel Kuljis, appeals his conviction and sentence for second-degree murder. Appellant presents three issues for our review: (1) that the trial court erred in denying appellant’s motion for judgment of acquittal and request for entry of a judgment for manslaughter, (2) that the trial court erred in refusing to give appellant’s special jury instruction on manslaughter, and (3) that the prosecutor’s closing argument was so egregious that appellant was deprived of a fair trial. After careful review of the record, we find all of appellant’s arguments to be without merit. Consequently, we affirm appellant’s second-degree murder conviction.

Affirmed.

POLEN, DAMOORGIAN and LEVINE, JJ., concur.


author: STEVENSON, J.

text:
    Stepphone FREEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-304.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.
    Rehearing Denied May 31, 2013.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Defendant Stepphone Freeman appeals his convictions for grand theft and burglary of a dwelling. The only evidence of the stolen property’s value was the testimony of the owner as to its purchase price. However, this court has previously held that evidence of purchase price is insufficient to establish current value. Aycock v. State, 87 So.3d 1259, 1260 (Fla. 4th DCA 2012); see also Marrero v. State, 71 So.3d 881, 891 (Fla.2011) (holding there is no “life experience” exception to the general rule that the State must establish the value of property)^ We reverse defendant’s conviction for grand theft and remand to the trial court with instructions to vacate the conviction and enter a judgment of petit theft. We affirm defendant’s conviction for burglary of a dwelling, finding no abuse of discretion in the trial court’s evi-dentiary ruling that the defendant “opened the door” to questions about the nature of his prior convictions. See Allred v. State, 642 So.2d 650, 651 (Fla. 1st DCA 1994) (impeachment evidence that defendant had hit former spouse and former girlfriend was admissible when defendant asserted he would not strike a woman).

Reversed in part; Affirmed in part.

CIKLIN and GERBER, JJ., concur.


text:
    Joseph COLEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2724.
    District Court of Appeal of Florida, Second District.
    April 5, 2013.
   PER CURIAM.

Joseph Coleman raises two grounds for relief in his petition alleging ineffective assistance of appellate counsel filed pursuant to Florida Rule of Appellate Procedure 9.141(d). We deny without comment the claim raised in ground two of the petition. In ground one, Coleman alleges that counsel was ineffective for failing to argue that the standard instruction provided to the jury for attempted manslaughter by act constituted fundamental error. We agree that appellate counsel was ineffective in failing to raise this issue, and we conclude that Coleman is entitled to a belated direct appeal on this issue only.

We first note that subsequent to the filing of the present petition, the supreme court in Williams v. State, — So.2d-, 38 Fla. L. Weekly S99 (Fla. Feb. 14, 2013), held that the use of the standard attempted manslaughter by act instruction constituted fundamental error when the defendant was convicted of attempted second-degree murder because the instruction improperly contained an intent-to-kill element and the offense of attempted manslaughter by act is not more than one step removed from the offense of attempted second-degree murder. Id. at-, S100-02. In determining that the attempted manslaughter by act instruction was fundamentally erroneous under the facts of that case, the court relied on its opinion in State v. Montgomery, 39 So.3d 252, 258 (Fla.2010), which held that the use of the then-standard manslaughter by act instruction constituted fundamental error when Montgomery was convicted of second-degree murder because it contained an additional element of intent to kill. Williams, — So.2d at -, 38 Fla. L. Weekly at S101. Citing to Houston v. State, 87 So.3d 1 (Fla. 2d DCA 2011), the supreme court noted that this court was one of the four District Courts of Appeal to hold that the standard manslaughter by act instruction was fundamentally erroneous because it added an intent-to-kill element. Williams, — So.2d at -, 38 Fla. L. Weekly at S102.

We must now determine whether Coleman’s counsel was ineffective in failing to raise the error in the attempted manslaughter instruction. Our decision in this case is controlled by our opinion in Deravil v. State, 98 So.3d 1172, 1173-74 (Fla. 2d DCA 2012), wherein we held that Deravil’s appellate counsel was ineffective in failing to argue that the attempted manslaughter instruction was fundamentally erroneous. Deravil was charged with attempted first-degree premeditated murder and was convicted of the lesser-included offense of attempted second-degree murder with a weapon. Both attempted second-degree murder and attempted manslaughter by act are necessarily lesser-included offenses of attempted first-degree premeditated murder. Id. at 1173. Deravil’s jury was provided the standard attempted manslaughter by act instruction which improperly imposed an additional element of intent to kill. Id. Coleman was charged with attempted first-degree murder and convicted of attempted second-degree murder with a firearm. Coleman’s jury was also provided the standard attempted manslaughter by act instruction.

The initial brief in Deravil’s direct appeal was filed subsequent to the issuance of the supreme court’s opinion in Montgomery and subsequent to the issuance of Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009), approved by Williams, — So.2d at -, 38 Fla. L. Weekly at S100, wherein the First District held that the standard attempted manslaughter by act instruction was fundamentally erroneous. Deravil, 98 So.3d at 1173. The initial brief in Coleman’s direct appeal was also filed subsequent to the issuance of both Montgomery and Lamb. We therefore conclude that Coleman’s appellate counsel rendered ineffective assistance in failing to argue that the attempted manslaughter by act instruction constituted fundamental error. See Deravil, 98 So.3d at 1173-74.

We grant the petition with instructions to the trial court to, within thirty days from the issuance of the mandate in this case, appoint an appellate attorney to file a brief limited to the issue outlined above. Appellate counsel shall, within thirty days from the date of the appointment, file a new notice of appeal and reference this opinion in the notice of appeal.

Petition denied in part and granted in part with directions.

ALTENBERND, CRENSHAW, and BLACK, JJ., Concur.

      . A proposed amended instruction awaiting supreme court approval would remove the intent-to-kill element from the standard attempted manslaughter by act instruction. Banek v. State, 75 So.3d 762, 764 n. 1 (Fla. 2d DCA 2011).

      . Williams was also charged with attempted first-degree murder and was convicted of attempted second-degree murder. Williams, — So.2d at-, 38 Fla. L. Weekly at S100.

      . Coleman was also convicted of kidnapping as charged in count two of the information. This court affirmed Coleman's convictions and the sentences imposed thereon. Coleman v. State, 63 So.3d 760 (Fla. 2d DCA 2011) (table decision).


author: KHOUZAM, Judge.

text:
    Sarah R. PATROWICZ, as Personal Representative of the Estate of Joseph H. Winner, Petitioner, v. Cynthia WOLFF, Respondent.
    No. 2D12-5535.
    District Court of Appeal of Florida, Second District.
    April 5, 2013.
    Matthew A. Linde of Matthew A. Linde, P.A., Fort Myers, for Petitioner.
    P. Brandon Perkins of The Powell Law Firm, P.A., Fort Myers, for Respondent.
   KHOUZAM, Judge.

Sarah R. Patrowicz, as Personal Representative of the Estate of Joseph H. Winner, petitions this court for a writ of certio-rari quashing a discovery order compelling the production of documents allegedly subject to the attorney-client privilege. Because the trial court departed from the essential requirements of the law by ordering the production of allegedly privileged documents without first conducting an in camera inspection to determine whether the privilege applies, we grant the petition and quash the order.

In the underlying suit, plaintiff Cynthia H. Wolff filed a Notice of Intent to Subpoena Third Party Records from Patrow-icz’s attorney, Matthew A. Linde, pursuant to Florida Rule of Civil Procedure 1.351(b). The proposed subpoena sought the entire estate planning file relating to the decedent’s estate, including correspondence, memoranda, and notes. Patrowicz filed a timely written objection to the proposed subpoena. After a hearing on the objection, the trial court overruled it and authorized Wolff to issue the subpoena.

Wolff served the subpoena on Linde. Linde filed a written objection to the subpoena and Wolff set the matter for a hearing. At the hearing, Linde argued that under rule 1.351(c) his objection to the subpoena was self-executing and that the hearing was therefore improper because the matter should have proceeded instead to a deposition. Linde stated at the hearing that the basis for his objection was that the documents sought were protected by the attorney-client privilege. Wolff did not allege that any exception to the privilege applied. Without taking any evidence or argument as to whether the documents were actually privileged, the trial court overruled the objection and ordered Linde to produce all of the documents sought.

Patrowicz timely filed her petition, arguing that the trial court departed from the essential requirements of the law by ordering the production of allegedly privileged documents without first addressing whether they were actually protected. We agree.

An objection to a subpoena filed pursuant to rule 1.351 is self-executing. Russell v. Stardust Cruisers, Inc., 690 So.2d 743, 744 (Fla. 5th DCA 1997). “[W]hen any objection is filed, Rule 1.351 ceases to be available” and the party seeking the documents may proceed only by taking a deposition of the records custodian. ABC Liquors, Inc. v. Berkey, 589 So.2d 457, 458 (Fla. 5th DCA 1991); see also rule 1.351(c) (“If the person upon whom the subpoena is served objects at any time before the production of the documents or things, the documents or things shall not be produced under this rule, and relief may be obtained pursuant to [the rule governing depositions].”). Consequently, an objection “requires that a deposition of the records custodian be taken in order to obtain the requested documents.” Russell, 690 So.2d at 744. The basis for the objection need not be specified until the deposition. Morgan, Colling & Gilbert, P.A. v. Pope, 756 So.2d 201, 201 (Fla. 2d DCA 2000).

“A trial court’s order erroneously compelling discovery of information protected from discovery by the attorney-client privilege is reviewable by certiorari.” Bennett v. Berges, 84 So.3d 373, 374-75 (Fla. 4th DCA 2012). A party claiming that documents sought by an opposing party are protected by the attorney-client privilege is entitled to have those documents reviewed in camera by the trial court prior to their disclosure. Id. at 375. This is equally true where the subpoena on its face requests communications between attorney and client. See Nationwide Mut. Fire Ins. Co. v. Hess, 814 So.2d 1240, 1243 (Fla. 5th DCA 2002). The failure to address whether a claimed privilege applies prior to ordering the disclosure of documents is a departure from the essential requirements of the law. See Snyder v. Value Rent-A-Car, 736 So.2d 780, 782 (Fla. 4th DCA 1999).

As a threshold matter, we note that it was unusual to hold a hearing on the written objection filed pursuant to rule 1.351(c) because the rule is self-executing. Pa-trowiez accurately argues that the correct procedure would have been for the parties to proceed to a deposition. Russell, 690 So.2d at 744; see also rule 1.351(c).

But the reason we must quash the order is that the trial court ordered pro-duetion of the documents without first reviewing them and determining whether the attorney-client privilege applied. Not only did Linde specify that his objection was based on the attorney-client privilege, but the subpoena on its face explicitly requested communications between an attorney and his client. Consequently, the trial court was required to conduct an in camera inspection of the documents prior to ordering their disclosure. We therefore quash the order compelling the production of the documents and remand the case for further proceedings.

Petition granted; order quashed; case remanded for proceedings consistent with this opinion.

ALTENBERND and CASANUEVA, JJ., Concur.


text:
    Kenneth E. REEVES, Appellant, v. ORANGE COUNTY SHERIFF’S OFFICE, Appellee.
    No. 5D11-4275.
    District Court of Appeal of Florida, Fifth District.
    April 5, 2013.
    Kenneth E. Reeves, Milton, pro se.
    Eric D. Dunlap, of Assistant General Counsel, Orlando, for Appellee.
   PER CURIAM.

Appellant challenges the lower court’s order denying his petition for writ of mandamus in this public records request case. Appellant argues that the lower court should have held an accelerated hearing, to determine whether Appellee failed to comply with the statutory requirements of chapter 119, Florida Statutes (2009). We agree that Appellant is entitled to an accelerated hearing. § 119.11(1), Fla. Stat. (2009); Woodfaulk v. State, 935 So.2d 1225, 1226 (Fla. 5th DCA 2006).

Accordingly, we reverse and remand with instructions that the lower court schedule an accelerated hearing.

REVERSED AND REMANDED.

SAWAYA, TORPY and JACOBUS, JJ., concur.


text:
    Stanley SIMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5155.
    District Court of Appeal of Florida, First District.
    April 8, 2013.

      Michael J. Titus, Assistant Regional Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this appeal filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we affirm Appellant’s conviction and sentence for grand theft. However, because the trial court struck the fíne imposed and because the offense occurred between May 2007 and February 2008, the $20 cost for the Crime Stoppers Trust Fund imposed pursuant to section 938.06(1), Florida Statutes, must also be stricken. See Harris v. State, 100 So.3d 245, 246 (Fla. 1st DCA 2012); Chamblee v. State, 93 So.3d 1184, 1186 (Fla. 1st DCA 2012); Clavelle v. State, 80 So.3d 456, 457 (Fla. 1st DCA 2012); Mallory v. State, 70 So.3d 738, 738 (Fla. 1st DCA 2011); Pullam v. State, 55 So.3d 674, 675 (Fla. 1st DCA 2011); Lang v. State, 856 So.2d 1105, 1106 (Fla. 1st DCA 2003); see also Spear v. State, 109 So.3d 232 (Fla. 1st DCA 2013) (holding that the $20 cost imposed pursuant to section 938.06(1) is mandatory whether or not a fine is imposed for offenses committed after the July 1, 2010, effective date of the amendment to the statute).

We also conclude that the $100 cost imposed pursuant to section 938.27(8), Florida Statutes, must be stricken given that the offense was committed prior to the effective date of the 2008 amendment which imposed a mandatory cost of no less than $100 when a felony offense is charged. See Massengale v. State, 69 So.3d 1095, 1095 (Fla. 1st DCA 2011) (accepting the appellant’s argument that the trial court erred in imposing the mandatory $100 cost of prosecution pursuant to the 2008 version of section 938.27(8) because the appellant’s offenses were committed before the amendment’s effective date); see also Hills v. State, 90 So.3d 927, 928 (Fla. 1st DCA 2012) (noting that while the imposition of the costs of prosecution pursuant to section 938.27 was historically discretionary and, therefore, required a request by the State for such costs, the 2008 amendment removed the trial court’s discretion to impose the costs and created mandatory minimum costs). The record provides no indication that the State requested or established $100 for the cost of prosecution.

Accordingly, we AFFIRM Appellant’s conviction and sentence, STRIKE the $20 and $100 costs, and REMAND for entry of a corrected judgment.

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


text:
    Michael RILEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1415.
    District Court of Appeal of Florida, First District.
    April 9, 2013.
    Michael Riley, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(d)(5).

LEWIS, THOMAS, and MAKAR, JJ., concur.


text:
    Steven E. ALLEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0774.
    District Court of Appeal of Florida, First District.
    April 9, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
    Steven E. Allen, pro se, Petitioner.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(5)(A).

LEWIS, THOMAS, and MAKAR, JJ., concur.