author: MORRIS, Judge.

text:
    STATE of Florida, Petitioner, v. Debra LaFAVE, Respondent.
    No. 2D11-5209.
    District Court of Appeal of Florida, Second District.
    Aug. 15, 2012.
    Rehearing Denied Oct. 9, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee; Robert J. Krauss, Chief Assistant Attorney General; and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Petitioner.
    John M. Fitzgibbons and B. Kay Klein of The Law Offices of John M. Fitzgib-bons, Tampa, for Respondent.
   MORRIS, Judge.

In this proceeding, the State seeks cer-tiorari review of the circuit court’s order granting Debra LaFave’s motion for early termination of probation which was entered in direct violation of the negotiated plea agreement she entered into with the State for a downward departure, nonprison sentence. Although the State has no statutory right of appeal in this instance, we hold that we have jurisdiction to review its petition for common law writ of certiorari. We grant the State’s petition in order to correct a departure from the essential requirements of the law resulting in a gross miscarriage of justice.

I. Facts

Debra LaFave, a school teacher, was charged in Hillsborough County with two counts of lewd or lascivious battery, see § 800.04(4)(a), Fla. Stat. (2003), for committing sexual battery on a fourteen-year-old middle school boy. She was also charged in Marion County for committing additional incidents of sexual battery against the same child in that county.

Her two Hillsborough County charges, both second-degree felonies, were each punishable by up to fifteen years in prison. See § 775.082(3)(c), Fla. Stat. (2003). However, under the Criminal Punishment Code, her lowest permissible sentence was 15.1875 years in prison. See §§ 921.0024(2), .00265(1), Fla. Stat. (2003).

Pursuant to a negotiated plea agreement with the State, LaFave pleaded guilty in 2005 to the Hillsborough County charges in exchange for a nonprison sentence of supervision, which was a downward departure from the prison requirements of the Criminal Punishment Code. The circuit court accepted her plea, according to the agreement, and sentenced her to three years of community control to be followed by seven years of sex offender probation. As an express condition of her plea agreement, LaFave agreed to serve her entire sentence and to not seek early termination of probation. This agreement was ratified and confirmed by the circuit court by virtue of its acceptance of her negotiated plea. Subsequent to her plea in Hillsbor-ough County, the State Attorney’s Office in Marion County dropped the Marion County charges against her, deeming the matter resolved by the Hillsborough County disposition.

Six years into her ten-year nonprison sentence, LaFave unabashedly sought early termination of her probation in 2011 in direct violation of her plea agreement. She asked the circuit court to terminate her sex offender probation four years early. On October 3, 2011, over objections from both the state attorney and the Department of Corrections, the circuit court granted her motion and terminated her probation as requested. The circuit court’s order was filed on October 5, 2011. The State filed its petition for writ of certiorari in this court on October 21, 2011.

II. Analysis

A. Jurisdiction.

i. The State has no right of appeal in this case.

LaFave has forcefully argued, and we agree, that the State has no right of appeal in this case. The State’s right to appeal in a criminal case is available only as provided by statute. See State v. McMahon, 94 So.3d 468 (Fla.2012); State v. MacLeod, 600 So.2d 1096, 1097 (Fla.1992). Section 924.07(1), Florida Statutes (2011), sets forth the limited circumstances in which the state has a right to appeal. Rule 9.140(c) of the Florida Rules of Appellate Procedure “serves as the procedural counterpart to section 924.07 [and] lists the same types of orders that the State may appeal in a criminal case.” McMahon, 94 So.3d at 473. Neither the statute nor the rule specifically provides the State with a right to appeal a circuit court order granting early termination of probation.

Pursuant to section 924.07(l)(e) and (i) and rule 9.140(c)(l')(M), the State may appeal an illegal sentence or a downward departure sentence. But there is no authority for the State to appeal either a modification or termination of probation because a modification or termination of probation does not result in the imposition of a sentence. See State v. Blackman, 488 So.2d 644, 644 (Fla. 2d DCA 1986); State v. Gray, 721 So.2d 370, 371 (Fla. 4th DCA 1998); see also State v. Russell, 67 So.3d 1179 (Fla. 4th DCA 2011) (relying on Gray in dismissing a state appeal of an order modifying probation).

In State v. Brooks, 890 So.2d 503 (Fla. 2d DCA 2005), with facts uniquely similar to those in LaFave’s case, we concluded that the State had a right to appeal a circuit court order granting the defendant’s timely motion to reduce or modify a sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c). As a result of the motion, the circuit court converted the defendant’s prison sentence to sex offender probation. 890 So.2d at 504. We held that because the new modified sentence constituted a downward departure sentence, an appeal was authorized pursuant to section 924.07(l)(i). We con-eluded that the circuit court erred in granting the defendant’s motion and mitigating her original prison sentence to probation because the original prison sentence was a result of a negotiated plea agreement with the State. 890 So.2d at 505. LaFave’s situation is distinguishable from the defendant’s situation in Brooks because LaFave’s early termination of probation cannot be construed as a sentence for purposes of section 924.07(l)(e) and (i), even under the most tortured legal reasoning.

Because the law is clear that the categories enumerated in section 924.07 are the only bases upon which the State may appeal as a matter of right, see, e.g., McMahon, 94 So.3d at 471; MacLeod, 600 So.2d at 1098, and because none of the enumerated categories are applicable in this case, we therefore conclude that the State may not appeal the circuit court order terminating LaFave’s probation.

ii. This is an extraordinary circumstance under which the State may seek common law certiorari review in the absence of a right to appeal.

In Jones v. State, 477 So.2d 566, 566 (Fla.1985), the Florida Supreme Court addressed whether an order dismissing violation of probation charges could be reviewed by certiorari when the district court had already determined that there was no statutory basis for appeal. In deciding that the State could not seek certio-rari review of such an order, the court noted its prior holdings that “no right of review by certiorari exists if no right of appeal exists.” Id. (citing State v. C.C., 476 So.2d 144 (Fla.1985), and State v. G.P., 476 So.2d 1272 (Fla.1985)).

Notably, Chief Justice Boyd — in a special concurring opinion — cautioned that the court’s holding should not be read to mean that “when there is no entitlement to an appeal, certiorari is ipso facto not available as a remedy.” Id. at 567 (Boyd, C.J., specially concurring). Rather, Chief Justice Boyd noted that in G.P., 476 So.2d 1272, the case on which the majority relied in denying the state relief, certiorari was deemed not available because the common law prerequisites for certiorari relief were not met. 477 So.2d at 567. Chief Justice Boyd continued by noting that while “cer-tiorari review may not be made into a substitute [for appellate review], ... the common[ ]law writ of certiorari is within the jurisdiction of the district courts of appeal and issuable in the appellate court’s discretion under certain circumstances when there is no right of appeal.” Id. at 568. Chief Justice Boyd then went on to explain that certiorari review is very limited, is not available to review mere legal error, and should only be exercised where there has been a departure from the essential requirements of the law resulting in a gross miscarriage of justice. Id. at 569.

In State v. Pettis, 520 So.2d 250, 253 (Fla.1988), the Florida Supreme Court cited Jones for the proposition that “no right of review by certiorari exists in criminal cases if no right of appeal exists.” The court limited this holding “to orders of final dismissal” and stated that it should not be “construed to prohibit district courts of appeal from entertaining state petitions for certiorari from pretrial orders in criminal cases.” Id. In his dissent, Justice Shaw stated that “the majority adopt[ed] an overly restrictive view of [the] right to petition for certiorari.” Id. at 256 (Shaw, J., dissenting). Justice Shaw opined that Jones incorrectly relied on G.P., 476 So.2d 1272, which had, in turn, incorrectly relied on C.C., 476 So.2d 144. 520 So.2d at 256. Justice Shaw commented that the issue of the State’s right to seek certiorari review was not addressed by C.C. and that the court in G.P. therefore “took a quantum leap by announcing that the state has no greater right by certiorari than it does by appeal.” Id. In doing so, Justice Shaw stated that G.P. and Jones “directly conflict[ed] with decades of well-established case law,” including State v. Harris, 136 So.2d 633 (Fla.1962).

In Harris, the Florida Supreme Court was asked “whether the state has the right to seek certiorari from a decision of a district court in which that court in a criminal case rules adversely to the state and favorably to an accused.” Id. at 634. The court rejected the defendant’s assertion that section 924.07 somehow limited the state’s right to seek certiorari review, stating that “[t]he statute deals only with direct appeals in criminal proceedings and clearly does not and was not intended to proscribe the authority of the state to seek either common law certiorari now exercised by the district courts or constitutional certiorari of the variety now exercised by this Court.” 136 So.2d at 634. Notably, Harris has not been overruled. It was not addressed in the majority opinion in Jones and was only mentioned in passing in Pettis.

We point out that this court has expressed its agreement with Chief Justice Boyd’s view in Jones. In State v. Wilson, 483 So.2d 23, 24 (Fla. 2d DCA 1985), this court interpreted Jones, G.P., and C.C. by stating that

we choose to follow Chief Justice Boyd’s cautionary special concurrence in Jones and not interpret Jones or G.P. to mean that certiorari is never available where a statutory right to an appeal does not exist. Rather, we choose to adhere to the line of cases which grant[s] the state the right to seek the common law writ of certiorari to review a nonappealable interlocutory order where it demonstrates a departure from the essential requirements of law and where there is no other avenue of review.

Id. at 25 (citation omitted).

We recognize that the order in this case is not a type of interlocutory or pretrial order that has been held to be reviewable by certiorari, as addressed in Pettis or Wilson. But the order does not fall into the category of “final orders of dismissal” that are not subject to certiorari review, as addressed in Pettis, Jones, G.P., and C.C. The order terminating LaFave’s probation is a rare, postsentencing order which, for reasons set forth below, constitutes a violation of the plea agreement between La-Fave and the State. The implications of such an order are extremely prejudicial to the State, and the ability of the State to seek certiorari review of such an order, where there is no other avenue for relief, is crucial “to the fair administration of criminal justice” and necessary “to correct an erroneous and highly prejudicial ruling.” Pettis, 520 So.2d at 253.

Accordingly, we rely on the rationale of Harris, Pettis, and Wilson and hold that in this rare instance, the State may seek certiorari review of the circuit court order terminating LaFave’s probation.

Indeed, given the uncertainty of the law in this area (as emphasized by the parties’ briefs in which both sides take inconsistent positions on this issue) and the importance of predictability and availability of review by the state in criminal cases, we hereby certify the following question of great public importance:

IN THE ABSENCE OF A STATUTORY RIGHT TO APPEAL, MAY THE STATE SEEK CERTIORARI REVIEW OF AN ORDER TERMINATING PROBATION WHERE IT CAN SHOW THAT THE CIRCUIT COURT DEPARTED FROM THE ESSENTIAL REQUIREMENTS OF THE LAW BY VIOLATING THE PLEA AGREEMENT BETWEEN THE STATE AND THE DEFENDANT WHICH CALLED FOR NO EARLY TERMINATION?

B. Merits

i. The circuit court was required to honor the negotiated plea agreement which it had previously accepted.

LaFave received the benefit of her bargain by avoiding a lengthy prison sentence required by the Criminal Punishment Code in exchange for her promise not to seek an early termination of probation. Even so, she argues that she should not be held to honor her part of the bargain. She contends that the State is not entitled to relief because it cannot prove that there was an inherent illegality or irregularity that resulted in a gross miscarriage of justice. Her position is that section 948.05, Florida Statutes (2003), allowed the circuit court to terminate her probation early and that the court therefore did not depart from the essential requirements of the law.

Section 948.05 provides that

[a] court may at any time cause a probationer or offender in community control to appear before it to be admonished or commended, and, when satisfied that its action will be for the best interests of justice and the welfare of society, it may discharge the probationer or offender in community control from further supervision.

(Emphasis added.) But while section 948.05 generally provides circuit courts with that authority, a key factor in this case is the fact that LaFave accepted the benefits of a very favorable negotiated plea agreement that expressly prohibited early termination of probation.

Florida courts have routinely recognized that circuit courts lack discretion to modify sentences previously imposed pursuant to plea agreements. See State v. Howell, 59 So.3d 301, 302 (Fla. 5th DCA 2011); State v. Gutierrez, 10 So.3d 158,159 (Fla. 3d DCA 2009); see also Arango v. State, 891 So.2d 1195, 1196 (Fla. 3d DCA 2005) (on motion for rehearing) (denying certiorari “[s]ince the plea bargain ... did not give the trial court any discretion over the length of the sentence” and, therefore, the court was “without the discretion to reduce the agreed sentence”). This is because plea bargains are contracts. See Carson v. State, 37 So.3d 884, 886 (Fla. 1st DCA 2010); Gutierrez, 10 So.3d at 159; Obara v. State, 958 So.2d 1019, 1022 (Fla. 5th DCA 2007); State v. Swett, 772 So.2d 48, 50 (Fla. 5th DCA 2000); Garcia v. State, 722 So.2d 905, 907 (Fla. 3d DCA 1998). And a defendant can “waive any right to which he [or she] is legally entitled under the Constitution, a statute, or a contract.” Garcia, 722 So.2d at 907; State, Dep’t of Health & Rehab. Servs. v. E.D.S. Fed. Corp., 631 So.2d 353, 355 (Fla. 1st DCA 1994); see also Hedrick v. State, 543 So.2d 873, 873 (Fla. 3d DCA 1989) (affirming denial of motion to correct sentence where plea agreement specifically provided that appellant agreed “not to ‘seek early termination ... from either the State Hospital or from probation,’ ” which constituted a waiver of his right to do so; court held that waiver precluded appellant’s request to be given credit for time spent in custody against the incarceration in a mental health facility that was a special condition of his probation).

Thus, where a defendant has enjoyed the benefits of a plea bargain, Florida courts have, not surprisingly, consistently refused to relieve the defendant of his or her burden under the contract. See Carson, 37 So.3d at 886; Gutierrez, 10 So.3d at 159; Swett, 772 So.2d at 52; Garcia, 722 So.2d at 907; State v. Jordan, 630 So.2d 1171, 1172 (Fla. 5th DCA 1993); Novaton v. State, 610 So.2d 726, 728 (Fla. 3d DCA 1992); Hedrick, 543 So.2d at 874; Scott v. State, 465 So.2d 1359, 1361 (Fla. 5th DCA 1985). This is because the defendant’s agreement to the plea is considered “part of a quid pro quo whereby the state has agreed to drop or reduce a charge” or, as in this case, to accept a very reduced sentence. Swett, 772 So.2d at 50. Consequently,

[t]o allow [a defendant] to accept the benefits of a plea bargain, and then years later collaterally attack his own negotiated sentence, would seriously compromise finality, discourage the use of negotiated pleas in the trial courts, deplete judicial resources, and “discourage the state from entering into future plea bargains with other defendants.”

Carson, 37 So.3d at 885 (quoting Gutierrez, 10 So.3d at 159); see also Swett, 772 So.2d at 51 (“A trial court may consider the appropriateness of a sentence which deviates from the sentencing range contained in a plea agreement. However, the court’s authority to impose such a sentence in a plea context is circumscribed.”).

With regard to the circuit court, while it is true that “ordinarily a contract cannot bind one who is not a party thereto or [who] has not in some fashion agreed to accept its terms,” CH2M Hill S.E., Inc. v. Pinellas Cnty., 598 So.2d 85, 89 (Fla. 2d DCA 1992), that principle does not apply here because the circuit court agreed to the terms of the plea agreement when the circuit court accepted LaFave’s plea. Once the circuit court did so, it could no longer modify the terms of the agreement reached between LaFave and the State.

Accordingly, it was an abuse of judicial power resulting in a gross miscarriage of justice for the circuit court to accept the negotiated plea, which included LaFave’s commitment to not seek early termination of probation in exchange for the State’s agreement to a downward departure sentence, and then later grant her motion for early termination. Permitting the circuit court to go behind the terms of the plea agreement would undermine the public trust and confidence in the judicial branch.

ii. The State was not prohibited from using the “no early termination” provision in the negotiated plea agreement.

LaFave contends that this court’s case law specifically prohibits the use of “no early termination” provisions in plea bargains because such provisions divest the Department of Corrections (DOC) of its authority to recommend early termination pursuant to section 948.04(3) and such provisions prevent future courts from exercising discretion to discharge defendants pursuant to section 948.05. See, e.g., Murphy v. State, 976 So.2d 1242, 1243 (Fla. 2d DCA 2008); Swedish v. State, 724 So.2d 640, 640 (Fla. 2d DCA 1999); Jones v. State, 666 So.2d 191, 192 (Fla. 2d DCA 1995); Baker v. State, 619 So.2d 411, 412 (Fla. 2d DCA 1993); see also Arriaga v. State, 666 So.2d 949, 950 (Fla. 4th DCA 1996). However, a crucial distinguishing factor in the above-cited cases is that they do not involve negotiated pleas. Swedish involved the imposition of a sentence pursuant to a conviction after trial, 724 So.2d at 640, and Murphy, Baker, and Arriaga involved the trial court’s unilateral inclusion of the condition, Murphy, 976 So.2d at 1243; Baker, 619 So.2d at 412; Arriaga, 666 So.2d at 949. Jones, 666 So.2d at 192, however, is silent on the issue.

iii. LaFave is bound by the “no early termination” provision of her negotiated plea agreement.

LaFave argues that sections 948.04(3) and 948.05 specifically preclude “no early termination” provisions from being binding, citing Clark v. State, 579 So.2d 109, 109-111 (Fla.1991). However, Clark dealt with specific procedures for enhancing terms of a previously imposed probation pursuant to section 948.06. These are not our facts. Moreover, LaFave has cited no statutory authority precluding the State from inserting a “no early termination” provision in a negotiated plea bargain. Thus, Clark is not applicable.

Furthermore, in Carson, the defendant was placed on drug offender probation pursuant to a negotiated plea, despite the fact that he would not have qualified for that type of probation had he gone to trial and been convicted. 37 So.3d at 885-86. The First District rejected Carson’s argument that his sentence was illegal, stating “[i]n our view, it is not ‘illegal’ to allow a defendant to agree to serve a special type of probation, e.g., because of a substance abuse problem, even though the trial court could not impose such a condition on an unwilling defendant convicted at trial.” Id. at 886. The court also asked and answered its own question as further explanation:

May a court lawfully impose a negotiated sentence that does not exceed the statutory maximum term, but includes terms that the court could not otherwise impose on a defendant without his acquiescence? We think that a trial court has that authority, and we think that the State and the defendant can agree to such terms. Thus, a defendant cannot later collaterally attack his own negotiated sentence.

Id. at 887.

Applying Carson to the facts of this case demonstrates that the State’s inclusion of the “no early termination” provision did not violate sections 948.04(3) and 948.05. Rather, the right to seek early termination was a specific right that LaFave chose to waive in return for a very favorable downward departure sentence that allowed her to avoid going to prison for more than fifteen years. The fact that the circuit court could not have imposed such a condition if LaFave had been convicted after trial or had entered an open plea does not affect the enforceability of the terms of the plea bargain to which she agreed. See Carson, 37 So.3d at 886.

iv. The “no early termination” provision does not violate the doctrine of separation of powers.

The “no early termination” provision is not unconstitutional because it did not divest DOC of its ability to recommend early termination pursuant to section 948.04(3). In fact, in this case, DOC expressly recommended against early termination. See Arriaga, 666 So.2d at 950 (Farmer, J., dissenting) (noting that provision at issue merely stated “no early termination” and therefore did not attempt “to tie the hands of DOC in any way”). Rather, the provision was an express waiver of LaFave’s right to seek early termination. And, as noted previously, a defendant can “waive any right to which [she] is legally entitled under the Constitution, a statute, or a contract.” Garcia, 722 So.2d at 907 (emphasis added). Thus, to the extent that LaFave is asserting some constitutional right based on DOC’s authority to recommend early termination or a statutory right based on the circuit court’s general authority to discharge probationers early, she has waived those rights.

The issue in this case is not whether a trial court may interfere with the functions of the executive branch (of which the state attorney is a part), but rather, the issue is whether a party may contract away certain rights. While a non-party to a contract may retain certain rights, if that nonparty’s actions frustrate the contracting parties’ intent, courts will act to effectuate the parties’ intent. See, e.g., Hashem v. State, 61 So.3d 1290, 1290 (Fla. 3d DCA 2011) (involving DOC’s allocation of credit for time served which effectively violated sentence imposed as a result of a plea agreement; court held that “[i]f the sentence, as written, cannot be carried out because of DOC’s guidelines, then the defendant is entitled to be resen-tenced in a manner that effectuates the intent of his plea agreement”); Dellahoy v. State, 816 So.2d 1253, 1253 (Fla. 5th DCA 2002) (holding that “DOC’s forfeiture of the [appellant’s] gain time cannot be countermanded by the court, but neither can that forfeiture thwart the plea bargain”); Williams v. Dep’t of Corr., 734 So.2d 1132, 1133 (Fla. 3d DCA 1999) (noting that “any attempt to compel enforcement of the negotiated plea agreement [which contemplated that appellant would serve a certain period of time] would be a usurpation of the DOC’s executive authority” but remanding case for resentencing “in a manner that effectuates the intent of the plea agreement and takes into account the effect of the DOC’s forfeiture of [the appellant’s] gain time or allows [the appellant] to withdraw his plea”). Because the intent of the plea agreement was that LaFave would not receive early termination of her probation, the circuit court was obligated to deny LaFave’s motion or, at the very least, to permit the State to withdraw from the plea agreement.

III. Conclusion

Accordingly, we grant the State’s petition for writ of certiorari, quash the order of the circuit court, and remand with instructions that LaFave’s probation be reinstated pursuant to the terms and conditions of her negotiated plea agreement and original sentence in this case.

Petition granted; order quashed; question certified.

WHATLEY and WALLACE, JJ„ Concur.

      . Prior to Jones and Pettis, this court and others have permitted the state to seek certio-rari review where the state has not had a means for appellate review pursuant to statute. See, e.g., State v. Gibson, 353 So.2d 670, 671 (Fla. 2d DCA 1978) (reviewing order withholding adjudication of guilt and placing defendant on probation; noting that order was not appealable under section 924.07 because it was not an order imposing sentence, but treating case as a petition for writ of certiorari); State v. Wilcox, 351 So.2d 89, 90 (Fla. 2d DCA 1977) (same); State v. Beardsley, 464 So.2d 188, 188-89 (Fla. 4th DCA 1985) (acknowledging that rule 9.140(c) did not provide the state with the right to appeal an order that withdrew a previously entered adjudication of guilt, but concluding that certio-rari review was appropriate because there was "simply no authority to support what the trial judge did in this case”). Subsequent to Jones and Pettis, we acknowledged that "[cjertiorari is an original proceeding designed to provide extraordinary relief [and] is not intended to provide review when an error can be repaired on appeal.” State v. Bjorkland, 924 So.2d 971, 975 (Fla. 2d DCA 2006) (holding state could not seek certiorari review of an order when state had the right to repair the error "by pretrial appeal” but failed to file a timely notice of appeal within fifteen days).
      Also subsequent to Jones and Pettis, the Fifth District acknowledged that certiorari review is available to review nonappealable orders in criminal cases in limited circumstances. See Rogers v. State, 918 So.2d 390, 391 (Fla. 5th DCA 2006) (on motion for rehearing) (holding that court lacked jurisdiction to review order denying defendant's motion to modify probation but noting that "[tjhere are extraordinary circumstances in which such orders may be reviewable by means of certiorari ... where there has been ‘a violation of a clearly established principal of law resulting in a miscarriage of justice’ " (quoting Combs v. State, 436 So.2d 93, 96 (Fla.1983))).

      . In so holding, we note that there are two cases from the Third District that are in conflict with our view that an absence of a right to appeal an order does not automatically preclude the possibility of certiorari review. State v. Jordan, 783 So.2d 1179 (Fla. 3d DCA 2001) (en banc) (declining to exercise certio-rari jurisdiction over sentencing order which departed from terms of a substantial assistance agreement between defendant and state); State v. F.G., 630 So.2d 581 (Fla. 3d DCA 1993) (declining to exercise certiorari jurisdiction over juvenile disposition orders). We do not certify conflict, however, because the facts of those cases are distinguishable from the facts in this case.

      . Garcia, 722 So.2d at 907, references Jones as involving a negotiated plea. However, the Jones opinion makes no mention of a negotiated plea; therefore, the Garcia court incorrectly analyzed Jones. The plea in Garcia was a negotiated plea, and the Garcia court distinguished Jones on the basis that the early termination provision in Garcia only prohibited the defendant from seeking early termination prior to five years of successful completion of probation (the original term of probation was seven years). 722 So.2d at 907. According to the Third District, the early termination provision there did not divest DOC of its authority nor did it prohibit a future court from terminating the defendant’s probation prior to the full seven-year term. Id.


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    Laura MASON, Petitioner, v. Russell JANSSEN, Respondent.
    No. 2D11-4817.
    District Court of Appeal of Florida, Second District.
    Sept. 14, 2012.
    Rehearing Denied Nov. 26, 2012.
    Walter A. Otto, Jr. of The Otto Law Firm, St. Petersburg, for Petitioner.
    Allison M. Perry of Law Office of Allison M. Perry, P.A., Tampa, and Mary Lou Wagstaff of Wagstaff Law Office, P.A., Largo, for Respondent.
   NORTHCUTT, Judge.

Laura Mason seeks a writ of certiorari to quash a circuit court order that denied her amended motion to compel Russell Janssen’s compliance with discovery and directed that discovery would be permitted only if Mason filed a motion for modification of child support. We grant the petition.

The parties had a child in February 1994 and began litigating within a few months thereafter. In 1997, Mason filed a supplemental petition to establish child support, and Janssen .filed an answer and counter-petition to establish visitation. Mason also filed a motion for temporary child support. After mediation, the parties reached a settlement of some kind in January 1998. In April, the circuit court entered an order approving the mediated stipulation regarding temporary support. The court never entered a final order on the petition or counterpetition.

In the April 1998 temporary support order, Janssen’s child support obligation of $1286 was temporarily reduced to $800 a month. The order contemplated a rede-termination of child support in eight months. Apparently, that redetermination never occurred, and the parties were back in mediation in March 1999 and at impasse in April. They returned to mediation again in August of that year and were again at impasse in September.

There was virtually no record activity for the next four years. In 2004, Janssen filed a pro se motion for contempt, and the case was referred to a general magistrate but then continued. For another six years or so, there was no record activity in this case, nor was there a dismissal for failure to prosecute. See Fla. Fam. L. R. P. 12.420; Fla. R. Civ. P. 1.420.

In March 2010, Janssen filed a supplemental petition for modification and a motion to file dependency pleadings under seal. In August, Mason filed a motion to determine child support, and the parties engaged in some discovery. Mason subsequently filed a motion to compel discovery, which the court denied after a hearing.

Mason’s 2010 motion to determine child support referred to the 1997 petition and asserted that no final determination of support had ever been entered. Mason sought discovery from Janssen covering the last thirteen years. At the hearing on her amended motion to compel discovery, Mason argued that she was entitled to have her child support calculated. Jans-sen countered that the parties had agreed to the temporary support amount, which he had paid over the many years since. Janssen produced a 2001 letter from Mason’s former attorney to Janssen’s former attorney which seemed to indicate that the parties were settled on the support obligation. But this letter was not introduced into evidence. Janssen’s attorney stated that “if we want to have an evidentiary hearing on that, we can.”

In its order, the court found that

the parties had a tacit or implicit agreement between them based on the child support of $800.00 that has been ... paid about which no one has complained since them original agreement to modify child support dated April 2, 1998, which was approved in an Order Approving Mediated Agreement entered on April 15,1998.

The court further found “that there has been at least some settlement or agreement between the parties because payments were being made and accepted and no one complained.” The court denied Mason’s amended motion to compel and ordered “that if a proper petition for modification of child support is filed herein, both parties shall comply with the Family Law Rules of Procedure with regard to exchange of financial information for a three year period preceding the filing of the petition.”

Mason argues that the order was a departure from the essential requirements of law because the court’s findings are not supported by competent, substantial evidence. The brief facts stated above were drawn largely from the circuit court docket, which Mason included in the appendix to her petition. In fact, the court took no testimony at the hearing, and there is no record evidence to support any of its findings. This constitutes a departure from the essential requirements of law. See Newman v. State, 174 So.2d 479, 481 (Fla. 2d DCA 1965) (holding that certiorari, while not available to review the weight of evidence, will lie to quash a judgment completely unsupported by any evidence (citing State Beverage Dep’t v. Willis, 159 Fla. 698, 82 So.2d 580 (1947)); see also Sylvia H. Walbolt and Leah A. Sevi, The “Essential Requirements of the Law” — When Are They Violated, 85 Fla. Bar. J. 21, 23-24 (Mar.2011) (discussing certiorari cases holding that the total lack of evidence constituted a departure from the essential requirements of law).

The issue, then, is whether Mason suffered irreparable harm, which is a jurisdictional precondition to certiorari relief. See Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646 (Fla. 2d DCA 1995). Orders denying discovery are generally not worthy of certiorari review; the harm can usually be corrected on appeal. Giacalone v. Helen Ellis Mem’l Hosp. Found., Inc., 8 So.3d 1232, 1234 (Fla. 2d DCA 2009). The same is true of orders dismissing claims without prejudice. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987) (“Ordinarily, orders on motions to strike or dismiss claims do not qualify for review by certiorari.”), superseded on other grounds by statute, § 768.72, Fla. Stat. (1989).

But we distinguish this order because it effectively ended Mason’s case. The child turned eighteen years old in February 2012. A motion for child support modification would not reach back into the case. See § 61.14(l)(a), Fla. Stat. (2010) (allowing modification of child support retroactively only to the filing date of modification request). Thus, Mason lacks a remedy on appeal. Accordingly, we grant the petition and quash the order.

We acknowledge the difficulty of the circuit court’s undertaking in this case. Its order was born of the procedural jumble caused by the parties’ failure to bring their original dispute to a proper conclusion many years ago. But if Janssen has a defense to Mason’s motion to determine child support based on settlement, estop-pel, laches, or the like, it can only be determined after proper pleading and proof. It was not appropriately advanced at a nonevidentiary discovery hearing.

Petition granted.

CRENSHAW and BLACK, JJ., Concur.


text:
    Montuelle Francois WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5245.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2012.
    Rehearing Denied Dec. 28, 2012.
   NORTHCUTT, Judge.

Montuelle Wright appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850, in which he raised twenty-one grounds for relief. We reverse and remand for further proceedings on ground twenty-one only and affirm without comment on all other grounds.

On February 18, 2008, Wright was convicted of lewd or lascivious battery, a second-degree felony, and sentenced to fifteen years’ imprisonment as a prison releasee reoffender (PRR). Specifically, Wright was alleged to have engaged in consensual sexual intercourse with a girl between the ages of twelve and sixteen. A key piece of evidence at trial was Wright’s own recorded post-Miranda admission to these events.

In ground twenty-one, Wright alleged that his counsel was ineffective for advising him to reject a favorable plea offer based on inaccurate assurances that a motion to suppress his confession would be granted. In addition, he alleged that his counsel informed him that she had recently won a case similar to his.

The postconviction court denied this claim, finding that counsel’s assertion that there was a substantial possibility that Wright would receive a favorable ruling on a motion does not translate into misadvice simply because the motion was unsuccessful. Indeed, in Morgan v. State, 991 So.2d 835 (Fla.2008), the supreme court held that the defendant’s allegation that he rejected a plea offer at trial counsel’s urging based on counsel’s incorrect assertion that the defendant would prevail at trial was not in itself sufficient to establish a basis for postconviction relief. The court ruled that the defendant must allege some specific deficiency on the part of counsel, e.g., that counsel’s assessment of the chances of success at trial was unreasonable under the facts and circumstances of the case, or that counsel had not investigated or otherwise was not familiar with the case. Id. at 841. Furthermore, Wright failed to provide any details regarding the allegedly foregone plea offer, which is required as part of the prejudice analysis in claims such as these. Id. at 839-40 (citing Cottle v. State, 733 So.2d 963, 967 (Fla.1999)).

Because ground twenty-one amounts to a facially insufficient attempt at an otherwise cognizable claim, see Gomez v. State, 832 So.2d 798, 794 (Fla. 3d DCA 2002), we must reverse the summary denial on this ground only. On remand, the postconviction court shall strike ground twenty-one with leave to amend to file a facially sufficient motion within a reasonable time. See Spera v. State, 971 So.2d 754, 761 (Fla. 2007).

Affirmed in part; reversed in part; and remanded.

KELLY and CRENSHAW, JJ„ Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The United States Supreme Court has recently issued two decisions that further clarify and develop the pleading requirements in these types of claims. See Missouri v. Frye, - U.S. -, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Lafler v. Cooper, - U.S. -, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012).


author: ALTENBERND, Judge.

text:
    Gerry B. GREENE, Petitioner, v. Kenneth TUCKER, Secretary, Department of Corrections, Respondent.
    No. 2D11-4565.
    District Court of Appeal of Florida, Second District.
    Nov. 28, 2012.
    Rehearing Denied Jan. 11, 2013.

      Gerry B. Greene, pro se.
    Jennifer Parker, General Counsel, and Beverly Brewster, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.
   ALTENBERND, Judge.

Gerry B. Greene petitions this court for a writ of certiorari with respect to the circuit court’s denial of his petition for writ of habeas corpus. The habeas petition in the circuit court challenged the Department of Corrections’ disapproval of Mr. Greene’s request for the restoration of gain time that the Department forfeited after the Florida Parole Commission revoked his conditional release. Because Mr. Greene does not assert that the circuit court failed to afford him procedural due process and he has not established that the circuit court failed to observe the essential requirements of law resulting in a miscarriage of justice, we deny the petition for writ of certiorari. We write to explain the Department’s process for restoration of such gain time and to memorialize all of Mr. Greene’s filings in the event that he continues with similar filings. From this record, it would appear that Mr. Greene would be more likely to obtain a restoration of gain time by focusing his energy on exceptional conduct within his facility and not on exceptional litigation in the courts.

In May 1992, a circuit court in St. Johns County sentenced Mr. Greene to twenty-five years in prison as a habitual offender for trafficking in cocaine. The offense occurred in February 1992. He served about fifteen years of this sentence before being released on conditional release in August 2007. See § 947.1405, Fla. Stat. (1991).

Less than three years after his release, a Flagler County deputy sheriff arrested Mr. Greene for petit theft and burglary. While those charges were pending, his conditional release officer filed a violation report with the Commission, commencing the revocation proceedings. See, e.g., Fla. Admin. Code R. 23-23.011 (2009) (concerning the procedure for the revocation of conditional release). Mr. Greene waived his right to have a hearing on the alleged violations, and in February 2010 the Commission revoked Mr. Greene’s conditional release effective September 1, 2009. When Mr. Greene returned to custody, the Department forfeited his gain time. See § 944.28, Fla. Stat. (1991) (concerning the Department’s authority to declare a forfeiture of gain time, without notice or a hearing, upon revocation of conditional release). Since then, Mr. Greene has sought various types of relief with respect to the revocation of his conditional release and the handling of his gain time.

This certiorari proceeding concerns the handling of Mr. Greene’s gain time. He initially requested the restoration of forfeited gain time on a form that he submitted to the Department on either August 31 or September 1, 2010. This apparently was the earliest possible time that he could make the request. The Department rejected this request without providing a written response to Mr. Greene, and he filed a grievance. In response to the grievance, the Department advised him to resubmit his request, which he did in October 2010. His prison’s institutional classification team (“ICT”) reviewed his request and rejected it, explaining its reasons in a written memorandum dated November 29, 2010. He then filed an administrative appeal with the Department, which was denied.

Mr. Greene, who was and is imprisoned in Polk County, challenged the Department’s denial by filing a petition for writ of habeas corpus with the circuit court in Polk County, which was docketed by the Polk County Clerk of Courts as circuit court case number 2011CA-000036. Mr. Greene’s initial petition for writ of habeas corpus in the case was dismissed without prejudice and he thereafter filed another petition for writ of habeas corpus in the case. The circuit court reviewed the latter petition and issued an order to show cause to the Department why Mr. Greene was not entitled to some relief. As part of its response, the Department actually required the ICT to conduct a reconsideration of its ruling. The reconsideration did not alter the ruling but generated a supplemental memorandum explaining the ICT’s ruling in greater detail. After considering the Department’s response and Mr. Greene’s reply, the circuit court denied Mr. Greene’s petition. Mr. Greene thereafter filed this petition for writ of certiorari challenging the circuit court’s denial of his petition for writ of habeas corpus.

In his petition for writ of habeas corpus, Mr. Greene claimed that he would be eligible for immediate release if the Department had properly processed his request for restoration of gain time. He claimed that the Department had not followed its own rules in handling his request. The circuit court essentially concluded that Mr. Greene had not demonstrated that he was entitled to restoration of his gain time or to relief that might be available by a petition for writ of habeas corpus, and it denied the petition.

Mr. Greene’s position, at its core, is that he qualified for the restoration of his forfeited gain time under the Department’s rules and thus the rules required that his request be forwarded to the final approving authority and then granted. His position is incorrect for at least two reasons.

First, except in circumstances for which restoration of forfeited gain time is entirely prohibited, which is not the case here, the restoration of forfeited gain time in cases of conditional release revocation is a matter of discretion by the Department. See § 944.28(1), (3), Fla. Stat. (2010). Thus, if the Department has properly revoked a defendant’s conditional release, it is not required to restore the forfeited gain time; the defendant has no right or entitlement to the restoration. The Department simply cannot be compelled to restore Mr. Greene’s forfeited gain time. See, e.g., Singletary v. Dunlap, 701 So.2d 589 (Fla. 2d DCA 1997).

Second, although Mr. Greene demonstrated that the ICT had made one error in applying the Department’s rules to the facts of his case, the ICT articulated additional bases for disapproving Mr. Greene’s request. These other bases supported the ICT’s decision that Mr. Greene was not eligible for restoration of the forfeited gain time.

The Department’s administrative rules address the restoration of gain time. See Fla. Admin. Code R. 33-601.105. The applicable rule contains a provision that allows an inmate to submit a request for the restoration of gain time if the inmate believes he or she is eligible, but the rule contains a qualifier: “There is no entitlement for consideration based upon an inmate’s request.” Fla. Admin. Code R. 33-601.105(3)(b).

That said, in order even to be eligible for restoration, the inmate must satisfy the criteria set forth in subparts (1) and (2) of the rule. Subpart (1) of the rule states:

Restoration of gain time as a positive management tool. Gain time that has been forfeited under the current commitment as a result of ... revocation of ... conditional release shall be subject to restoration when the restoration would produce the same or greater benefits as those derived from the forfeiture in the first place. Only those inmates whose adjustment and performance since their ... revocation of ... conditional release has exceeded that which is required to comply with all the behavioral objectives are eligible for consideration. The restoration shall only be considered when the inmate has clearly performed positively over a period of time and it appears the inmate will continue this positive adjustment without further violating the rules of the department or the laws of the state and the inmate is serving that portion of the sentence which, but for the forfeiture of gain time, would have been completed.

Fla. Admin. Code R. 33-601.105(1).

Subpart (2) of the rule includes similar considerations but also lists other criteria. Among those is the criterion that “[tjhere must be a minimum of one year from the effective date of the parole revocation, probation revocation, community control revocation, or violation of the conditions of provisional release, supervised community release, conditional medical release, control release, or conditional release.” Fla. Admin. Code R. 33~601.105(2)(b)(l).

Finally, the rule describes a mechanism to process the request. Fla. Admin. Code R. 33-601.105(3). It states:

(3) How processed.
(a) Restoration of gain time will be considered only when the inmate has met the criteria specified in subsections (1) and (2) of this rule.
(b) There is no entitlement for consideration based upon an inmate’s request.
(c) If an inmate believes that he or she is eligible for restoration of forfeited gain time, the inmate must make a request for restoration on Form DC6-236, Inmate Request, and submit the request to his or her classification officer. Requests submitted to other department staff will not be processed. Form DC6-236 is incorporated by reference in Rule 33-103.019, F.A.C.
(d) If the inmate meets the criteria in subsection (2), the classification officer shall forward the request to the institutional classification team (ICT) with a recommendation either for or against restoration. If the inmate does not meet the criteria in subsection (2), the classification officer shall return the request to the inmate, indicating in writing which criteria is not met.
(e) The ICT shall consider the request based upon the criteria in subsections (1) and (2). If the ICT recommends restoration of forfeited gain time, the recommendation shall be forwarded to the final approving authority for final action. If the ICT does not make a recommendation for restoration to the final approving authority, the request shall be returned to the inmate along with the basis for the denial.
(f) The final approving authority for restoration of forfeited gain time will be the Assistant Secretary of Institutions or designee. Upon receipt of the recommendation from the ICT, the final approving authority shall approve or deny the recommendation based upon the criteria in subsections (1) and (2).
(g) The institution where the inmate is assigned will be notified and the facility staff will notify the inmate of the decision and the basis for the decision.

Fla. Admin. Code R. 33-601.105(3)(a)-(g).

The ICT’s initial rejection memorandum mentioned two reasons for its rejection of Mr. Greene’s request. One of the reasons was that Mr. Greene failed to meet the one-year minimum requirement in rule 33-601.105(2)(b)(l). In reconsidering Mr. Greene’s request, the Department recognized that this subpart of the rule was written such that the one-year period was measured from the date of the violation rather than from the date upon which the conditional release was revoked. Thus, the ICT was mistaken when it determined that Mr. Greene had not met this criterion.

But other reasons provided by the ICT supported its decision that Mr. Greene was not eligible for restoration of the forfeited gain time. In its initial rejection memorandum, the ICT explained that it “felt that the short period of time [Mr. Greene had] served since returning on violation of Conditional Release [did] not meet the criteria noted in” subpart (1) of the rule. In its subsequent memorandum on reconsideration of Mr. Greene’s request, the ICT determined that Mr. Greene’s performance upon return to prison did not exceed that which was required to comply with all behavioral objectives inasmuch as Mr. Greene had not participated in any self-betterment programs available to assist him with his eventual reentry into the community. This criterion is set forth in subpart (2). It states:

The inmate’s adjustment and performance must exceed that which is required to comply with all behavioral objectives since return as a parole, probation, community control, provisional release, supervised community release, conditional medical release, control release, or conditional release violator....

Fla. Admin. Code R. 33-601.105(2)(b)(3) (emphasis added).

After considering the criteria in subsections (1) and (2), the ICT did not recommend restoration. Under rule 33-601.105(3)(e), the ICT must forward its recommendation for restoration. Because it did not recommend restoration, pursuant to this rule it did not forward Mr. Greene’s request to the final approving authority.

It is clear that the Department has great discretion in making these decisions. Absent some extraordinary error or perhaps a patently arbitrary and capricious application of its rules, the circuit court will have very limited power when considering a petition for writ of habeas corpus seeking to overrule a decision addressing restoration of gain time. Even if a circuit court determined that some relief were appropriate, the relief would not come from the circuit court. See, e.g., Dunlap, 701 So.2d at 590. That court could, at most, instruct the Department to perform its review a second time with closer consideration of its own rules.

In his habeas petition, Mr. Greene made the conclusory assertion that he met all of the criteria in subparts (1) and (2) of rule 33-601.105, and he asserted that the ICT was thus required to forward his request to the final approving authority “who also must grant the restoration of [his] gain-time, pursuant to F.A.C. 33.601.105(3)(f), to do otherwise would be an abuse of discretion.” Mr. Greene was simply incorrect. Thus, Mr. Greene has not and cannot establish that the circuit court’s ultimate conclusion is a departure from the essential requirements of the law resulting in a miscarriage of justice.

We would suggest that Mr. Greene reflect on that part of the Department’s rules that explains: “The restoration shall only be considered when the inmate has clearly performed positively over a period of time and it appears the inmate will continue this positive adjustment without further violating the rules of the department or the laws of the state.” Fla. Admin. Code R. 33-601.105(1). His best hope for early release is dependent upon his own positive performance in his facility.

Mr. Greene’s petition for writ of certio-rari is denied.

KELLY and KHOUZAM, JJ., Concur.

      . See Greene v. State, 625 So.2d 1293 (Fla. 5th DCA 1993) (affirming conviction for first-degree felony trafficking in cocaine). See also Greene v. State, 919 So.2d 565, 565 (Fla. 5th DCA 2006) (denying petition for writ of habe-as corpus and prohibiting "further pro se pleadings or filings relating to circuit court case number 92-287”); Greene v. State, 716 So.2d 279, 279 (Fla. 5th DCA 1998) (affirming order that denied defendant's motion to correct sentence and prohibiting defendant "from filing in this court any further pro se petitions or appeals regarding the sentence imposed in Circuit Court Case No. CF92-287” because he "abused the judicial process by filing successive post-conviction pleadings raising the same sentencing issues”).

      . Apparently, the charges in Flagler County remained pending for a long time, but they have now been dismissed.

      . Mr. Greene has filed multiple petitions with this court. We have taken judicial notice of our files in each of the cases addressed in this footnote. Generally, the cases can be divided into four categories: (1) filings related to the claim that Mr. Greene’s status as a habitual offender should not have precluded him from receiving basic gain time; (2) filings related to the Commission’s revocation of Mr. Greene’s conditional release; (3) filings related to the Department’s forfeiture of Mr. Greene's gain time upon the revocation of his conditional release; and (4) filings related to Mr. Greene’s efforts to obtain restoration of his forfeited gain time.

        Category (1). In case number 2D 11-293, Mr. Greene obtained certiorari review of an order in which the circuit court denied one of Mr. Greene’s multiple petitions for writ of habeas corpus. In the habeas proceeding, Mr. Greene asserted, in part, that he had not been awarded basic gain time on his 1992 sentence and that if he were given his basic gain time he would be entitled to immediate release from prison. Mr. Greene argued below and in the certiorari proceeding that he was entitled to basic gain time notwithstanding the fact that he was sentenced as a habitual offender and thus ineligible for an award of basic gain time under the statutes in effect at the time he committed his offense. See § 775.084(4)(e), Fla. Stat. (1991). In the cer-tiorari proceeding, Mr. Greene acknowledged that his gain time had been forfeited after the revocation of his conditional release, but he did not present an argument specifically directed to the forfeiture. This court denied Mr. Greene’s petition for writ of certiorari in case number 2D 11-293. Greene v. Buss, 63 So.3d 763 (Fla. 2d DCA 2011) (table decision). We also entered an order granting Mr. Greene’s motion to dismiss and dismissing a related petition for writ of mandamus in case number 2D 10-6198. Greene v. State, 52 So.3d 666 (Fla. 2d DCA 2011) (table decision).

        Category (2). In case number 2D12-1511, Mr. Greene obtained certiorari review of a circuit court order that denied a petition for writ of habeas corpus in which Mr. Greene challenged the revocation of his conditional release. This court denied Mr. Greene’s petition for writ of certiorari. Greene v. Fla. Parole Comm’n, No. 2D12-1511, 99 So.3d 951, 2012 WL 3740721 (Fla. 2d DCA Aug.29, 2012) (table decision). We also entered an order dismissing a related petition for writ of mandamus in case number 2D12-784, see Greene v. State, 86 So.3d 1125 (Fla. 2d DCA 2012), and another order in case number 2D12-965 denying a petition for writ of mandamus that was duplicative of the petition in case number 2D 12-784 and that also related to case number 2D12-1511, see Greene v. State, 90 So.3d 285 (Fla. 2d DCA 2012). Mr. Greene filed an "emergency petition for writ of habeas corpus” docketed by this court as case number 2D12-2276, which also concerned the revocation of his conditional release, and this court entered an order denying Mr. Greene’s “emergency” petition. Greene v. Fla. Parole Comm’n, 86 So.3d 1125 (Fla. 2d DCA 2012) (table decision). A currently pending but unperfected appeal also appears to concern the revocation of Mr. Greene’s conditional release. Greene v. State, No. 2D 12-2194 (Fla. 2d DCA filed April 26, 2012). Thus, issues related to the Commission’s revocation of Mr. Greene’s conditional release should be nearing an end.

        Category (3). In case number 2D 11-4861, Mr. Greene obtained certiorari review of a circuit court order that denied a petition for writ of habeas corpus in which the circuit court noted that Mr. Greene's gain time had been properly forfeited. This court denied Mr. Greene's petition in case number 2D 11-4861. Greene v. State, 88 So.3d 942 (Fla. 2d DCA 2012) (table decision).

        Category (4). The present case (no. 2D 11-4565) falls in this category. We previously entered an order in a related matter, case number 2D 11-600, in which we denied as moot Mr. Greene’s petition for writ of mandamus involving the same circuit court case number (no. 2011CA-000036, Polk County) as that in the present certiorari proceeding. Greene v. State, 60 So.3d 1062 (Fla. 2d DCA 2011) (table decision).

      . The ICT is defined in the 2010 Florida Administrative Code Rule 33-601.209 as "the team consisting of the warden or assistant warden, classification supervisor, a correctional officer chief, and other members as necessary when appointed by the warden or designated by rule.”

      . A petition for writ of habeas corpus is the proper mechanism for an inmate to challenge the Department's deprivation of the inmate's gain time if a prisoner’s sentence would have expired had the Department properly awarded gain time. See Stovall v. Cooper, 860 So.2d 5, 7 (Fla. 2d DCA 2003) (distinguishing a petition for writ of mandamus from a petition for writ of habeas corpus in the context of an action that sought review of a gain-time decision after the exhaustion of all administrative remedies). Polk County was the proper venue for Mr. Greene's petition. See Bush v. State, 945 So.2d 1207, 1213 n. 11 (Fla.2006) (quoting section 79.09, Florida Statutes (2005), the supreme court explained in dicta that “a habeas petition filed in circuit court alleging entitlement to immediate release ‘shall be tiled with the clerk of the circuit court of the county in which the prisoner is detained' ”).

      .Because of the volume of filings related to Mr. Greene's cases, we note that the order denying Mr. Greene's petition in this case was rendered on August 29, 2011.

      . Mr. Greene also asserted a number of procedural arguments below and in this certiora-ri proceeding that we have not addressed in this opinion because they are based on Mr. Greene’s misapplication of the law and they are completely meritless.

      . We acknowledge that we have provided a review more expansive than required in a certiorari proceeding. We have done so simply to clarify our analysis. Certainly, if Mr. Greene is entitled to no relief under the reasoning discussed in this opinion, he would be entitled to no relief under a more stringent certiorari review.


author: BLACK, Judge.

text:
    Abel MIRANDA, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1613.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 2013.
    Rehearing Denied April 8, 2013.

      Terry P. Roberts of Law Office of Terry P. Roberts, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Abel Miranda appeals his convictions and sentences for second-degree murder with a firearm and burglary with assault. He raises three issues. Because the State failed to present sufficient evidence upon which the jury could convict Miranda, the trial court reversibly erred in denying Miranda’s motion for judgment of acquittal. We therefore reverse Miranda’s convictions and remand for entry of a judgment acquitting Miranda of the charged crimes. We do not reach the remaining issues raised on appeal.

I. Facts

In the early morning hours of November 30, 2007, Pedro Delio Treto-Garcia was murdered in his home in Punta Gorda, Florida. The house is in a rural area on a large tract of land and sits back from the road. The property has a gate for entry from and exit to the road. Although there are neighboring homes, they are located 100 to 300 feet from the victim’s home. The victim shared his home with his girlfriend, Adis Samara Molina Armas (Ms. Molina). Ms. Molina was in the home the morning of November 30 and witnessed the victim’s death.

The basic facts, as testified to by Ms. Molina, are undisputed. On the night of November 29, 2007, Ms. Molina and the victim went to sleep on the second-floor balcony, as they had done on prior occasions. Sometime around 4 a.m., Ms. Molina left the balcony to sleep in the adjoining master bedroom. Minutes later Ms. Molina heard a loud noise coming from the first floor of the house and a man, whom she described as young, white, around 5'6" tall, and chubby, appeared at the master bedroom doorway. It was dark in the room and Ms. Molina covered herself with a comforter, but she was able to see the man’s face and that he had a firearm. The man spoke in Spanish and said, “I’m going to kill your woman. I’m going to shoot your woman.” Ms. Molina testified that the man’s choice of words and dialect led her to believe he was Cuban. The man then approached the balcony and shots were fired.

Following the shots, two more men came upstairs. They were young, around 5'6" tall, and thin. Ms. Molina noticed no distinguishing characteristics on any of the men. The intruders then forcibly removed the victim from the balcony and kicked him down the stairs. Shortly thereafter, the men left the home. Ms. Molina, having gotten out of bed, looked through the master bedroom window and saw three men running toward the front gate. She then went downstairs, saw that the victim was alive, attempted to call 911, and upon realizing her cell phone was not charged, ran to the nearest neighbor’s home. Despite receiving cardiopulmonary resuscitation (CPR), by the time police and paramedics arrived at the home, around 5:30 a.m., the victim was dead.

In addition to detailing the events of the night the victim was murdered, Ms. Molina testified that a camouflage shirt belonging to the victim had been in the house the night of the murder. She also confirmed that a camouflage shirt was found by the gate to the property the next morning. Although she knew the victim’s shirt was not unique, she believed the shirt found by the gate to be the same shirt that had been in the house the night of the victim’s murder.

Ms. Molina also testified that she had been shown a photographic lineup of suspects containing Miranda’s photograph but that she had not identified Miranda as one of the three intruders. She was then asked — with Miranda standing in front of her — whether he looked like one of the intruders. She responded that he did not. Finally, Ms. Molina testified that although she initially told officers that the victim did not have a gun, she had later admitted that he did and that she had hidden it after the shooting.

In addition to Ms. Molina’s testimony, the State presented testimony from one of the victim’s neighbors, a responding paramedic, responding officers, and a crime scene technician and a crime lab analyst, both employed by the Florida Department of Law Enforcement (FDLE), among others. The victim’s neighbor testified to the aftermath of the shooting, his attempts at CPR, and to Ms. Molina’s overall demean- or before and after officers arrived on scene. He described Ms. Molina’s behavior before officers arrived on the scene as “nonchalant,” stating that she sat on the sofa and folded clothes. However, when officers arrived, he described her demean- or as “hysterical” and testified that her behavior changed depending on the proximity of officers, becoming increasingly hysterical when officers were near her. Ms. Molina explained her nonchalant behavior during the time that her neighbors were administering CPR to the victim by stating, “I was taking a break.”

The remaining witnesses established the cause of the victim’s death, the location of his death, the locations of blood and blood spatter, the locations of a camouflage shirt and bolt cutters, the presence of blood on the shirt and bolt cutters, and the number of DNA profiles found at the scene.

Over objection, the State was permitted to introduce evidence of a marijuana grow house located on the victim’s property. The grow house contained approximately forty pounds of marijuana, worth between $150,000 and $240,000. Aside from being located on the victim’s property, the State presented no evidence linking the victim to the marijuana. However, the State argued that the value of the marijuana provided motive. The State’s evidence also did not connect Miranda to the grow house.

The FDLE crime lab analyst discussed, in detail, how she tested for DNA on both the camouflage shirt and bolt cutters after areas on both items tested presumptively positive for blood. Specifically, the inside collar and inside lower back areas of the shirt were tested. Both areas contained Miranda’s blood-DNA. The tested areas did not reveal DNA from the victim. The bolt cutters — found approximately a mile and a half from the scene — were not sent to FDLE for testing. However, a swab taken from the bolt cutters was tested and returned a positive match for Miranda’s DNA. According to the FDLE witnesses, there was no way to determine how old the blood on the bolt cutters was or how the blood was transferred to them.

The FDLE analyst also testified to the absence of Miranda’s DNA on the gate and in the house, despite the presence of other, unidentified DNA samples. The State’s witnesses established that multiple blood samples were sent to FDLE for DNA testing; of those, only two contained blood identified as Miranda’s. Miranda was not linked to the bloody footprints found in the house or to the fingerprints on the door showing forced entry.

II. Issue

The determinative issue on appeal is whether the trial court erred in denying Miranda’s motion for judgment of acquittal, predicated on the argument that the State’s evidence failed to prove that Miranda committed murder and burglary with assault. To convict Miranda of second-degree murder with a firearm the State had to establish that (1) the victim is dead; (2) the victim’s death was caused by Miranda’s criminal action; (3) the death was an unlawful killing accompanied by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life; and (4) Miranda carried, displayed, used, threatened to use, or attempted to use a firearm. See §§ 775.087(1), 782.04(2), Fla. Stat. (2007); Fla. Std. Jury Instr. (Crim.) 7.4. To convict him of burglary with assault, the State was required to establish that (1) Miranda unlawfully entered the victim’s home; (2) at the time he did so, Miranda intended to commit an offense therein; and (3) Miranda assaulted the victim or Ms. Molina. See § 810.02(1), Fla. Stat. (2007); Fla. Std. Jury Instr. (Crim.) 13.1; Joseph v. State, 965 So.2d 357, 358 (Fla. 4th DCA 2007). The crux of Miranda’s motion for judgment of acquittal below and his argument on appeal is that the State failed to establish the essential element of identity in each crime — that it was Miranda who caused the victim’s death and that it was Miranda who entered the victim’s home.

Miranda contends that the State’s ease was purely circumstantial. Conversely, the State argues it had direct evidence to support its case. While the State is correct that it presented some direct evidence, that evidence does not address the crucial element of identity. Ms. Molina provided direct evidence of the circumstances of the victim’s death, and the evidence of Miranda’s DNA directly connected Miranda to the camouflage shirt and bolt cutters; however, Ms. Molina did not identify Miranda as one of the three men who entered her home and killed the victim and the DNA evidence did not place Miranda at the scene of the murder at the time the victim was killed. See Burkell v. State, 992 So.2d 848, 854 (Fla. 4th DCA 2008) (Farmer, J., dissenting) (“Footprints and blood-DNA may operate as direct evidence for some specific issues.... But here the State relied on these two kinds of evidence to prove something beyond mere presence or identity. The State asked the jury to infer from the footprints and blood-DNA evidence that it was the father who had committed the premeditated murder.”). Circumstantial evidence has been defined as “proof of certain facts and circumstances from which the trier of fact may infer that the ultimate facts in dispute existed or did not exist. The conclusion as to the ultimate facts must be one which in the common experiences of men may reasonably be made.” Davis v. State, 90 So.2d 629, 631 (Fla.1956); accord Singleton v. State, 105 So.3d 542, (Fla. 2d DCA 2012). Thus, the only evidence connecting Miranda to the crimes charged is circumstantial and we must apply the circumstantial evidence standard of review on appeal. See Singleton, 105 So.3d 542; Egberongbe v. State, 765 So.2d 108, 110 (Fla. 1st DCA 2000).

Our review of the denial of a motion for judgment of acquittal is de novo. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). Where “the evidence of guilt is wholly circumstantial, it is the trial judge’s task to review the evidence in the light most favorable to the State to determine the presence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences.” Crain v. State, 894 So.2d 59, 71 (Fla.2004) (citing State v. Law, 559 So.2d 187, 189 (Fla.1989)). “Suspicions alone cannot satisfy the State’s burden of proving guilt beyond a reasonable doubt....” Ballard v. State, 923 So.2d 475, 482 (Fla.2006). Moreover, absent other evidence of identity, the State must establish that the circumstantial evidence of Miranda’s guilt — his blood-DNA — was left at the scene at the time of the murder. See id. at 483; Hill v. State, 973 So.2d 655, 655-56 (Fla. 2d DCA 2008); Mutcherson v. State, 696 So.2d 420, 422 (Fla. 2d DCA 1997); cf. Burkett, 992 So.2d at 851-52 (distinguishing Ballard based on footprint evidence establishing that defendant had been at the scene of the murder at or near the time of the murder and directly contradicting defendant’s statements).

The State’s case, reduced to its core, rested on the following: (1) Miranda’s nationality — he is Cuban; (2) the camouflage shirt, which was present at the scene prior to the victim’s murder; and (3) the bolt cutters, found some distance from the scene. There was no evidence presented as to when or how Miranda’s blood was transferred to the shirt or bolt cutters. In fact, the State’s evidence established that it was impossible to determine the age of the blood on the bolt cutters or how the blood was transferred to them. The State’s evidence did not establish the age of the blood on the camouflage shirt or how the blood was transferred to it. See Ballard, 923 So.2d at 483. Perhaps more importantly, Ms. Molina’s testimony was exculpatory and supported Miranda’s argument that he was not present during the victim’s murder. Ms. Molina testified that Miranda did not look like one of the three men she saw in her home on November 30. Miranda’s hypothesis of innocence was that he had never been to Punta Gorda or to the victim’s property; he lived in Miami. His explanation for how his blood came to be on the camouflage shirt and bolt cutters was that one of the victim’s marijuana grow-house workers from Miami left the items on the property. This explanation tied into the State’s apparent theory that the victim was killed as a result of his involvement in drug trafficking.

Although the presence of Miranda’s blood-DNA tended to show guilt, the State’s evidence failed to establish Miranda’s presence at the scene at the time of the murder and is not “competent evidence from which the jury could infer guilt to the exclusion of all other inferences.” Crain, 894 So.2d at 59; accord Ballard, 923 So.2d at 482. Cf. Nshaka v. State, 92 So.3d 843, 849 (Fla. 4th DCA 2012); Leonard v. State, 731 So.2d 712, 719 (Fla. 2d DCA 1999). Finally, Ms. Molina’s testimony rebutted the critical element of eausa-tional identity. See Egberongbe, 765 So.2d at 110; cf. Cordero-Artigas v. State, 75 So.3d 838, 841-42 (Fla. 2d DCA 2011). Her testimony refuted the inference of guilt created by the blood-DNA and created reasonable doubt. See Egberongbe, 765 So.2d at 111.

The State’s evidence was insufficient to withstand the motion for judgment of acquittal and to convict Miranda. See Ballard, 923 So.2d at 482. As a result, the trial court erred in denying the motion.

Reversed and remanded with instructions to enter a judgment of acquittal.

ALTENBERND and LaROSE, JJ., Concur.

      . On cross-examination, Ms. Molina testified that she did not recall whether she had called the victim’s brother and nephew before running to the neighbor's house for assistance.

      . Ms. Molina testified that she administered CPR; however, the neighbor testified that he and another neighbor administered CPR while Ms. Molina remained “nonchalant.”

      . On cross-examination, Ms. Molina testified that she had not recalled anything about the camoflauge shirt when initially questioned by the police and that it was only in a later interview that she remembered seeing it in the house.

      .Miranda was the only person charged with the murder of the victim. Nothing in our record suggests that Miranda identified other potential suspects or otherwise "flipped” on the perpetrators. Ms. Molina also was unable to identify other potential suspects from the lineup.

      . Miranda was convicted of second-degree murder with a firearm. The State concedes that it failed to prove Miranda actually possessed a firearm and that the firearm portion of the judgment should be stricken. See § 775.087(1); Powell v. State, 724 So.2d 1207, 1207-08 (Fla. 2d DCA 1998).

        . Although he argues an impermissible stacking of inferences on appeal, see Miller v. State, 770 So.2d 1144, 1149 (Fla.2000), Miranda’s motion for judgment of acquittal did not include an inference-stacking argument. Therefore, it is not preserved for appeal. See Victorino v. State, 23 So.3d 87, 103 (Fla.2009).

      . Miranda contended that the grow-house workers were from Miami, a city the victim and Ms. Molina frequented. On appeal, Miranda raises the propriety of admitting the grow-house evidence at trial; however, we do not reach the issue. The importance of the grow-house evidence for purposes of this opinion is limited to its relevance to Miranda’s claim of innocence.

      . In addition to admitting the grow-house evidence, the court also overruled Miranda’s objection and permitted the State to present, in its opening argument, that the victim had recently started carrying a gun and that the morning of his death the victim left a phone message for someone, saying: "They’re going to hold that against me. You need to call me back immediately.” No testimony was presented as to the phone message, and Miranda raises the denial of his motion for mistrial based on this issue in his appeal.


author: CASANUEVA, Judge.

text:
    Dolores Claudio ORTIZ, Appellant, v. Misael REGALADO, Sr., Personal Representative of the Estate of Ismelys Regalado, deceased; Ismerai Regalado; Misael Regalado, Jr., a minor, by and through his natural father and legal guardian, Misael Regalado, Sr.; Lourdes Regalado-Falcon; Misael Regalado, Sr., individually and jointly, Appellees.
    No. 2D11-1071.
    District Court of Appeal of Florida, Second District.
    March 1, 2013.
    Rehearing Denied May 13, 2013.
    See also 116 So.3d 451, 2013 WL 765007.

      Elizabeth Wheeler of Elizabeth C. Wheeler, P.A., Orlando, for Appellant.
    Henry G. Gyden of Swope, Rodante P.A., Tampa (withdrew after briefing); Dale M. Swope, Lisha Bowen, and Stephanie Miles of Swope, Rodante P.A., Tampa, for Appellees.
   CASANUEVA, Judge.

This appeal arises from a final judgment resulting from a jury’s multi-million dollar verdict for damages from a fatal auto collision. Appellant Dolores Claudio Ortiz (“Mr. Ortiz”) is the father of Andy Claudio Ortiz with whom he shares title to their auto. While driving this auto, Andy was involved in a fatal collision with appellee Lourdes Regalado Falcon (“Mrs. Regala-do”) who was transporting her three minor children: Ismelys Regalado, who was killed in the crash; appellee Ismerai Rega-lado; and appellee Misael Regalado, Jr. Mrs. Regalado is married to appellee Mi-sael Regalado Sr. (“Mr. Regalado”), the father of her children. Mr. and Mrs. Re-galado are the joint lessees of the auto Mrs. Regalado was driving when Andy Ortiz struck it. The Regalados instituted the lawsuit underlying this appeal against Andy Ortiz for negligence and against Mr. Ortiz as vicariously liable by reason of their joint ownership of Andy’s car. The jury found that Andy Ortiz and Mrs. Rega-lado were each fifty percent negligent. It is from the trial court’s final judgment apportioning the damage award that Mr. Ortiz appeals.

As a threshold issue, we deal with the Regalados’ pending motion to dismiss in which they argue that this court is without jurisdiction to hear Mr. Ortiz’s appeal. We disagree and deny their motion to dismiss without further discussion.

Mr. Ortiz presents two issues: first, that the trial court erred in denying him the benefit of a statutory cap on a damage award against an owner of a vehicle who entrusts it to another; and second, that he should not be required to pay damages that exceed Andy’s percentage of fault. We affirm that part of the trial court’s ruling that is the basis for his first issue but reverse the final order based on his argument in the second issue.

I. The Verdict and The Final Judgment For Damages

The jury returned a verdict awarding Mr. Regalado, as the personal representative of the estate of Ismelys Regalado: $11,575 for medical/funeral expenses; Mr. Regalado, individually: $1,000,000 for past and future pain and suffering; Mrs. Rega-lado: $1,000,000 for past and future pain and suffering; Ismerai Regalado: $220,000 for past and future pain and suffering and future medical expenses; and Misael Re-galado, Jr.: $225,000 for past and future pain and suffering and future medical expenses. In the final judgment, the trial court ordered that Mr. Ortiz and Andy Ortiz pay the following amounts: $793.76 for the uncovered medical/funeral expenses to Mr. Regalado as the personal representative of his deceased daughter’s estate; $1,000,000 to Mr. Regalado, Sr., individually; $500,000 to Mrs. Regalado; $110,000 to Ismerai Regalado; and $112,500 to Misael Regalado, Jr. The awards to Mrs. Regalado and the two surviving children reflect the fifty percent reduction the trial court made from the jury’s verdict due to Mrs. Regalado’s comparative negligence and are the subject of Mr. Ortiz’s first issue. Mr. Regalado’s individual award is the subject of Mr. Ortiz’s second issue. Mr. Ortiz contends in his first issue that section 324.021(9)(b)(3), Florida Statutes (2006), should be applied to limit what he, as a vicariously liable defendant, must pay. In his second issue, he contends that he should not be obligated to pay Mr. Regalado damages exceeding Andy’s percentage of fault. We discuss these two issues in turn.

II. Limitation On Mr. Ortiz’s Vicarious Liability Under Section 324.021(9)(b)(3), Florida Statutes (2006)

Mr. Ortiz does not question that Andy Ortiz was negligent in driving their jointly-owned vehicle when Andy struck the Regalado vehicle. However, he maintains that as the co-owner of that vehicle, he is entitled to the limitation on damages for negligent operation of the vehicle that section 324.021(9)(b)(3) provides. This subsection sets a limit on damages for which an owner of a vehicle is responsible when the owner loans the vehicle to another whose negligent operation of the vehicle results in damages to another. The relevant portion of the subsection states:

(b) OwnerAessor. — Notwithstanding any other provision of the Florida Statutes or existing case law:
3. The owner who is a natural person and loans a motor vehicle to any permissive user shall be liable for the operation of the vehicle or the acts of the operator in connection therewith only up to $100,000 per person and up to $300,000 per incident for bodily injury and up to $50,000 for property damage.

§ 324.021(9)(b)(3).

Because his vehicle was negligently operated by the other co-owner and resulted in damages, Mr. Ortiz argues that his individual responsibility is thus limited to $100,000 per person or $300,000 total for this accident. He claims that the proper application of these statutory caps would limit his liability to $100,000 for the wrongful death of Ismelys Regalado, and a composite $200,000 for damages awarded to Ismerai and Misael, Jr., less any sums previously paid for claims arising from this accident. Mr. Ortiz makes this argument despite the fact that the statute unequivocally states that it operates to protect an owner who “loans” his or her vehicle. Mr. Ortiz does not deny that he did not technically “loan” the car to his son because his son had just as much right to use it as did Mr. Ortiz. Citing Black’s Law Dictionary 954 (8th ed. 2004) (defining the term as a “grant of something for temporary use”), Mr. Ortiz argues that the word “loan” is ambiguous in the context of co-owners because when one owner is using the vehicle, the other co-owner must necessarily have “grant[ed] ... [the] temporary use” of the vehicle to the other co-owner.

We find no such ambiguity in the statute’s use of the term “loans.” An owner of an object can only loan that object to another who has no legal right to the object. Therefore, because “ ‘the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction [and] the statute must be given its plain and obvious meaning.’ ” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)).

We are further unpersuaded by Mr. Ortiz’s argument relating to the requirement to liberally construe remedial statutes, which he claims this subsection to be. He conceives this latter argument by analogizing to the fact that the next subsection, § 324.021(9)(c)(1), gives similar relief to companies whose business is renting or leasing motor vehicles but not to owners whose vehicles are used by another in the owner’s ordinary course of business. Whether or not the statute is remedial in nature, a question we are not here called upon to answer, the term “loans” is unambiguous on its face.

We must “give statutory language its plain and ordinary meaning, unless the words are defined in the statute or by the clear intent of the legislature.” Green v. State, 604 So.2d 471, 473 (Fla.1992) (citing Se. Fisheries Ass’n v. Dep’t of Natural Res., 453 So.2d 1351 (Fla.1984)). “If necessary, the plain and ordinary meaning of the word can be ascertained by reference to a dictionary.” Id. (citing Gardner v. Johnson, 451 So.2d 477 (Fla.1984)).

King v. King, 82 So.3d 1124, 1130 (Fla. 2d DCA 2012); see also State v. Mitro, 700 So.2d 643, 645 (Fla.1997) (using dictionary to define words “available” and “authentic” when statute containing these words was challenged for vagueness); L.B. v. State, 700 So.2d 370, 372 (Fla.1997) (relying on dictionary definition when words “common pocketknife” were challenged as vague); State v. Hagan, 387 So.2d 943, 945 (Fla. 1980) (relying on dictionary definition of “trawl net” to find statute not unconstitutionally vague).

This term, “loans,” is not defined in the statute nor do we find a clear intent of the legislature to give it a different meaning and apply it as between co-owners; we thus give it its dictionary meaning. We conclude that the trial court did not err in denying Mr. Ortiz the statutory cap of section 324.021(9)(b)(3) to limit what he is required to pay Mrs. Regalado or either of her surviving children based on his vicarious liability for Andy Ortiz’s negligent operation of their jointly-owned vehicle.

Because vicarious liability is of major concern to the citizens of Florida, we certify the following question as one of great public importance:

DOES SECTION 324.021(9)(b)(3) APPLY TO LIMIT THE AMOUNT OF DAMAGES ONE CO-OWNER OF A VEHICLE MUST PAY WHEN THE OTHER CO-OWNER OPERATES THEIR JOINTLY OWNED VEHICLE NEGLIGENTLY AND INCURS DAMAGES PAYABLE TO A THIRD PARTY?

III. Mr. Ortiz’s Liability as Limited by Andy’s Percentage of Fault

The jury found that Andy and Mrs. Re-galado shared equally in the negligence that caused the collision between them. No one disputes the jury’s finding of comparative negligence. Mr. Ortiz only disputes that part of the final judgment that orders him and his son to pay Mr. Regala-do the full million dollar award in the jury’s verdict without halving it. To obtain this reduction, Mr. Ortiz posits various theories. We address only his argument based on the doctrine of contribution among joint tortfeasors, as provided in section 768.31, Florida Statutes (2006).

A.Preservation of the Contribution Issue

As can be seen in the companion case of Andy Claudio Ortiz v. Misael Regalado, Sr., 2D11-1073, Andy unsuccessfully moved to amend his answer to include a counterclaim for contribution against Mrs. Regalado. Although the Re-galados do not dispute that Andy preserved the contribution issue in his case, they argue that Mr. Ortiz did not do so in his separate case. We disagree with their claim. A fair reading of the record shows that Mr. Ortiz’s pleadings sufficiently put the Regalados on notice that he would be seeking contribution from Mrs. Regalado should the jury find her at fault in any manner. It is unreasonable to claim that although it was Andy’s counsel who argued for a contribution counterclaim, the trial court and opposing counsel did not understand that the contribution argument encompassed Mr. Ortiz in addition to Andy. In any event, the trial court allowed, with the Regalados’ counsel’s concurrence, the contribution issue to be argued after trial at which time both Mr. Ortiz and Andy presented their arguments.

B.The Statute, Section 768.31

To begin our discussion, we quote the portions of section 768.31 relevant to our inquiry:

(2) RIGHT TO CONTRIBUTION.—
(a) Except as otherwise provided in this act, when two or more persons become jointly or severally liable in tort for the same injury to person or property, or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.
(b) The right of contribution exists only in favor of a tortfeasor who has paid more than her or his pro rata share of the common liability, and the tortfea-sor’s total recovery is limited to the amount paid by her or him in excess of her or his pro rata share. No tortfeasor is compelled to make contribution beyond her or his own pro rata share of the entire liability.
(3) PRO RATA SHARES.—In determining the pro rata shares of tortfeasors in the entire liability:
(a) Their relative degrees of fault shall be the basis for allocation of liability-
(b) If equity requires, the collective liability of some as a group shall constitute a single share.
(c) Principles of equity applicable to contribution generally shall apply.
(4) ENFORCEMENT.—
(a) Whether or not judgment has been entered in an action against two or more tortfeasors for the same injury or wrongful death, contribution may be enforced by separate action.
(b) When a judgment has been entered in an action against two or more tortfeasors for the same injury or wrongful death, contribution may be enforced in that action by judgment in favor of one against other judgment defendants, by motion upon notice to all parties to the action.
(c) If there is a judgment for the injury or wrongful death against the tortfea-sor seeking contribution, any separate action by her or him to enforce contribution must be commenced within 1 year after the judgment has become final by lapse of time for appeal or after appellate review.

C.Discussion

Based on this statute, Mr. Ortiz argues that because Mrs. Regalado was fifty percent liable for the injuries Mr. Regalado suffered, she should be required to contribute $500,000 of his one million dollar award. Subsection 4(b) of the statute allows the contribution to be enforced either in the same action or by a separate action. Mr. Ortiz and Andy wanted to raise the issue of contribution in the instant action and did so by moving to amend by adding a counterclaim, but the trial court denied them this statutorily allowed avenue because it concluded that it was a not a contribution issue but a Fa-bre issue, i.e., that Mrs. Regalado was a Fabre defendant. And, as noted above, the defendants succeeded in convincing the jury that Andy was not solely negligent. However, Fabre is not strictly applicable to this situation because Mrs. Regalado was not an absent party. “A ‘Fabre defendant’ is a nonparty defendant whom a party defendant asserts is wholly or partially responsible for the negligence alleged.” Salazar v. Helicopter Structural & Maint., Inc., 986 So.2d 620, 622 n. 1 (Fla. 2d DCA 2007) (citing Fabre, 623 So.2d at 1187). A contribution action is necessarily against a party because contribution is limited to a party who has been found to be jointly or severally liable in tort for the same injury or wrongful death. See § 768.31(2)(a). Although a jury might “find” the Fabre defendant jointly negligent, because the Fabre defendant was not a party to the suit, and thus not under the jurisdiction of the court, no judgment can be entered against him or her because of due process concerns.

It is thus clear that the trial court erred in denying the amendment to add a claim for contribution. The court mitigated this error by allowing the parties to raise the issue of contribution posttrial. However, when the contribution issue was ripe posttrial-because the jury had determined that Mrs. Regalado was fifty percent negligent-a successor judge compounded the earlier error. The substitute judge heard the arguments but entered judgment upon the Regalados’ motion without ruling for or against setoffs for contribution. A third judge, who heard Mr. Ortiz’s motion to reconsider entry of final judgment or to alter the final judgment, refused to change the final judgment entered by the second judge because the contribution arguments had been made to his predecessor. All three judges erred in not allowing a contribution from Mrs. Re-galado as a joint tortfeasor responsible for Mr. Regalado’s damages.

We recognize that a contribution issue can be determined in a separate action. See § 768.31(4)(a), (c). This was one of the Regalados’ arguments against addressing the contribution issue in this case. But Mr. Ortiz, with good reason and as allowed by statute, wanted it determined in this suit. We agree that the better course of action was to have the issue decided as part of the same suit, as was Mr. Ortiz’s prerogative. Deciding the issue of contribution in this action was not only a savings of judicial resources but it reduced the risk that after paying Mrs. Regalado her damages, there might be a chance that she could no longer contribute; she might soon be judgment proof either because her damage award was spent or because she might have absconded from the jurisdiction.

IV. Conclusion

We affirm that part of the trial court’s ruling that section 324.021(9)(b)(3) was not applicable to Mr. Ortiz as a co-owner and certify a question of great public importance. We reverse that part of the final judgment that awarded Mrs. Regalado one million dollars and remand for consideration of the contribution issue.

Affirmed in part, reversed in part, and question certified.

KELLY and LaROSE, JJ., Concur.

      . Andy Claudio Ortiz is the appellant in the companion case of Claudio v. Regalado, No. 2D 11-1073, that was consolidated for record purposes only.

      . Generally, before a case is perfected and assigned to a panel for oral argument and a decision on the merits, a motions panel will hear a motion to dismiss such as the one the Regalados filed. However, in this case, the motions panel deferred the Regalados’ motion to dismiss to the merits panel.

      .Mr. Ortiz does not dispute the propriety of this $793.76 award to Mr. Regalado as the personal representative of the estate of Isme-lys Regalado.

      . Cf. § 265.565(2)(b), Fla. Stat. (2012) (defining "[l]oans,” "loaned,” or "on loan” as referring "to property in possession of the museum not accompanied by a transfer of title to the property or accompanied by evidence that the lender intended to retain title to the property and to return to take physical possession of the property in the future”) (emphasis added).

      . Mr. Ortiz has not raised the issue, and thus we do not decide, whether he can in the first instance be held vicariously liable for Andy’s negligent operation of their jointly-titled vehicle because he did not "loan" the car to Andy and thus put himself within the plain meaning of the statute.

      . Although there was no indication that Andy Ortiz had been under the influence while driving, the appellate record suggests that he was distracted by using his cell phone when the collision occurred. The appellate record also suggests that he had the right of way and Mrs. Regalado entered the intersection prematurely, without ascertaining that it was safe to do so, thus contributing her share of the fault.

      . Fabre v. Marin, 623 So.2d 1182 (Fla.1993).

      . Thus it can be said that a person subject to contribution and a Fabre defendant are mutually exclusive in the same lawsuit.

      . Mrs. Regalado’s situation clearly illustrates the dichotomy between a Fabre defendant and a contribution defendant in the same lawsuit. The jury awarded her one million dollars which the trial court properly reduced by fifty percent due to her comparative negligence. And the judgment states that her award is five hundred thousand dollars. But she is still subject to contribution as a joint tortfeasor and must contribute, along with Andy, to the damage award of the innocent victim of her negligence in this case, i.e., Mr. Regalado. Whether her contribution will come by reducing the judgment in her favor in this case or from some other source is a matter beyond the scope of this opinion.

      . We note that the doctrine of interspousal immunity has been abrogated in Florida. See Fabre, 623 So.2d at 1186 n. 2 ("If the accident had happened today, Mrs. Marin could sue her husband [who was held jointly liable for her injuries] because the doctrine of inter-spousal immunity has now been abrogated. Waite v. Waite, 618 So.2d 1360 (Fla.1993).”).