text:
    Daniel SHEDD, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1509.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2014.
    Rehearing Denied April 28, 2014.

      Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, C.J.

Appellant, Daniel Shedd, appeals his convictions for possession of marijuana (less than twenty grams), possession of alprazolam, and possession of hydrocodone following a jury trial. We reverse the possession of alprazolam and possession of hydrocodone convictions because the trial court’s failure to charge the jury on a “prescription defense” constitutes fundamental error and establishes ineffective assistance of counsel on the face of the record. We affirm Appellant’s possession of marijuana conviction.

By way of background, Appellant was pulled over by Florida Highway Patrol (“FHP”) officers for committing a traffic infraction while driving his mother’s vehicle. During the traffic stop, FHP asked to search the vehicle after noticing an open container, and Appellant consented. In the vehicle, FHP found prescription pill bottles containing alprazolam and hydroco-done as well as a small amount of marijuana. The prescriptions, like the vehicle, were in Appellant’s mother’s name. According to the FHP officers, Appellant admitted that the marijuana was his and told them that he had a prescription drug problem. However, Appellant also told the officers that the pills belonged to his mother. Appellant was subsequently arrested and charged with possession of the pills and marijuana.

At trial, Appellant’s defense attorney argued that the state did not meet its burden of proving possession because the pills belonged to his mother, as evidenced by their labels and the fact that they were in his mother’s car. Appellant’s mother testified in his defense, and explained that at the time he got pulled over, Appellant was on his way to meet up with her and was driving her car with her permission. She stated that she had a valid prescription for the alprazolam and hydrocodone, and maintained that both prescriptions were hers and that she put them in the vehicle. The state did not dispute that Appellant’s mother had a valid prescription for both alprazolam and hydrocodone.

Following the close of evidence, the court instructed the jury on the elements of possession of each substance as follows:

1) [Appellant] possessed a certain substance. .
2) That substance was [alprazolam, hy-drocodone, and marijuana respectively]-
3) [Appellant] had knowledge of the presence of the substance.

The court did not instruct the jury on any affirmative defense and defense counsel did not ask for any such instruction. The jury returned a guilty verdict on all three counts and the court sentenced Appellant to concurrent eighteen-month sentences followed by probation on the prescription charges and to thirty days with credit for time served on the marijuana charge.

On appeal, Appellant argues that the jury should have been instructed on a prescription defense and that his counsel was ineffective for failing to request such an instruction. As Appellant did not raise any issue with the trial court’s failure to provide the jury with a prescription defense instruction, we can only review for fundamental error. Ramirez v. State, 125 So.3d 171, 175 (Fla. 4th DCA 2013). “Where a court has failed to instruct on an affirmative defense, fundamental error occurs where a jury instruction is ‘so flawed as to deprive defendants claiming the defense ... of a fair trial.’ ” Id. (quoting Smith v. State, 521 So.2d 106, 108 (Fla. 1988)). Additionally, claims of ineffective assistance of counsel are only cognizable on direct appeal if the claimed ineffectiveness is apparent on the face of the record. Mansfield v. State, 758 So.2d 636, 642 (Fla.2000).

We hold that the court’s failure to instruct the jury on a prescription defense was fundamental error. Our recent holding in Ramirez supports this conclusion. 125 So.3d at 175. There, police charged the defendant with trafficking in hydroco-done after they raided a house occupied by the defendant and found hydrocodone on a night stand next to the bed where the defendant was sleeping. Id. at 173. The home was owned by the defendant’s mother and the hydrocodone was also prescribed to his mother. Id. Although the defendant’s defense was that he “was entitled to temporarily possess the pills, and thus should be acquitted of the trafficking charge, since his mother had a viable prescription and was not using them for an illegal purpose,” defense counsel did not request, and the court did not provide the jury with a prescription defense instruction. Id. at 174.

We reversed, explaining that possession is an element of trafficking and a valid prescription for a controlled substance is an affirmative defense to possession. Id. at 175 (citing McCoy v. State, 56 So.3d 37, 39 (Fla. 1st DCA 2010)). Further, “[t]he prescription defense is not limited to the person holding a valid prescription, but may also be asserted by ‘any individual authorized by the prescription holder of the medications on his or her behalf.’ ” Id. (quoting State v. Latona, 75 So.3d 394, 395 (Fla. 5th DCA 2011)). As the defendant’s position at trial was that he was legally holding his mother’s prescribed pills for safekeeping, we held that the prescription defense was his primary defense to the trafficking charge. Id. at 176. Since a defendant is deprived of a fair trial when the jury is not instructed on the law of a crucial defense, we concluded that the court’s omission resulted in fundamental error. Id.

Appellant’s case is indistinguishable from Ramirez. Although Appellant’s position at trial was that he was driving his mother’s vehicle (with her permission) and the vehicle contained Appellant’s mother’s prescription medication, i.e., Appellant was legally holding his mother’s pills for safekeeping via operation of her vehicle, the jury was not instructed on a prescription defense. Under Ramirez, this constitutes fundamental error. Id. Additionally, Ramirez dictates that Appellant’s counsel’s failure to request the prescription defense instruction constitutes ineffective assistance of counsel on the face of the record. Id. at 175 n. 1 (“This is one of those rare cases where ineffective assistance of trial counsel is ‘apparent on the face of the record.’ ”).

For these reasons, we reverse Appellant’s convictions for possession of alprazo-lam and hydrocodone and remand for a new trial. However, as the issues raised by Appellant do not have any bearing on his possession of marijuana conviction, we affirm in that respect.

Affirmed in Part; Reversed in Part and Remanded for a New Trial.

TAYLOR and LEVINE, JJ., concur.


source: Caselaw Access Project

author: KLINGENSMITH, J.

license: Public Domain

text:
    Geoffrey Walter EDELSTEN, Investments Australia LLC, Altels Management LLC, Barrington Springs House, LLC, Resort Management LLC, N770GE, LLC, a Delaware Limited Liability Company; the N770GE Delaware Trust; and Caroline Brennan, as Trustee of the Delaware Trust, Appellants, v. Rafael MAWARDI, an individual; Issac Keith Mawardi, an individual; and Limor Mawardi, an individual, Appellees.
    No. 4D13-2621.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2014.
    Rehearing Denied April 11, 2014.

      Carla T. Reece of Archer Bay, P.A., Orlando, for appellants.
    No appearance for appellees.
   KLINGENSMITH, J.

Appellees Rafael Mawardi,' Isaac Ma-wardi, and Limor Mawardi filed a lawsuit against appellants Geoffery W. Edelsten, Altéis Management USA, LLC (a Florida limited liability company), and its wholly-owned subsidiary Barrington Spring House, LLC (an Ohio limited liability company) and numerous other corporations in connection with various business transactions and investments, including an apartment complex located in Dayton, Ohio. During the course of the litigation, the trial court entered an order granting ap-pellees’ Emergency Motion for Appointment of Receiver regarding this Ohio property. For the reasons set forth below, we hold that the trial court lacked the authority to appoint a Florida resident as a receiver over Ohio real estate owned by an Ohio corporation.

In section II of the subject order under review, the trial court appointed the Florida receiver over Altéis for the express “purpose of maintaining the status quo and insuring the real estate owned in Dayton, OH is not further encumbered, and insuring that the financial needs for continued operation of the apartment complex are met to the extent possible from the rental receipts and from the sale of receiver certificates.” The order made no express finding about the ownership of the Ohio real estate, instead stating only that: “Defendants, ALTELS MANAGEMENT, LLC, a Florida LLC, and/or BARRING-TON SPRING HOUSE, LLC, an Ohio LLC, own property known as the River-view Park Apartments located in Dayton, OH.”

The record reflects that the recorded deed, as well as the note and mortgage on the property, show that the apartments are owned by Barrington Spring House, LLC. Despite this, the trial court empowered the Florida resident receiver to “take control of any and all existing accounts” and to “sell receiver certificates against the Ohio real estate to fund the ongoing operation of the Ohio property and for the purpose of covering any shortfall.”

Here, the trial court clearly intended to take control over the parent company (Al-tels) of the Ohio subsidiary (Barrington Spring House) as a means of controlling the apartment complex. However, the ap-pellees have presented no authority that would enable the trial court to properly exercise jurisdiction and control over an Ohio corporation by appointment of a Florida resident receiver. While the court may have had jurisdiction to appoint a receiver over the Florida corporation, this alone does not confer authority for appointing a receiver over any wholly-owned subsidiary. See Reynolds Am., Inc. v. Gero, 56 So.3d 117,120 (Fla. 3d DCA 2011) (stating it is “well settled that ‘[a] parent corporation and its wholly-owned subsidiary are separate and distinct legal entities’ ”); Am. Int’l Grp., Inc. v. Cornerstone Bus., Inc., 872 So.2d 333, 336 (Fla. 2d DCA 2004) (same). Likewise, there is no authority under Florida law that permits the appointment of a Florida resident receiver to control real estate located in another state. See Richardson v. S. Fla. Mortg. Co., 102 Fla. 313, 136 So. 393, 396 (1931) (“The general rule and one which obtains in many if not all the states as in the federal courts is: He [a receiver] has no extra territorial power of official action; none which the court appointing him can confer, with authority to enable him to go into a foreign jurisdiction to take possession of the debtor’s property_”) (citations and internal quotations omitted) (alteration in original); cf. Paciocco v. Young, Stem & Tannenbaum, P.A., 481 So.2d 39, 39 (Fla. 3d DCA 1985) (“A Florida trial court has no in rem jurisdiction over notes secured by mortgages on real property located in a foreign state .... ”).

The trial court’s appointment of the Florida resident receiver to oversee an Ohio corporation, and its Ohio real estate, also runs contrary to Ohio law, which expressly provides:

No party, attorney, or person interested in an action shall be appointed receiver therein except by consent of the parties. No person except a resident of this state shall be appointed or act as receiver of a railroad or other corporation within this state.

Ohio Rev. Code Ann. § 2735.02 (emphasis added); see also Metro. Sav. Bank v. Papadelis, No. 2380-M, 1995 WL 542214 (Ohio CtApp. Sept. 13, 1995) (“[T]he only limiting qualifications imposed upon a receiver are that except by consent, a party, attorney or person interested in the case cannot serve as a receiver, and a receiver of a corporation or railroad must be an Ohio resident.”).

As such, the trial court erred in appointing a Florida receiver to control an Ohio corporation and property. We therefore reverse section II of the court’s order, and remand for the termination of the receivership over Barrington Spring House, LLC, and its real property in Ohio.

Reversed and Remanded.

WARNER and FORST, JJ., concur.

      . As part of their claim, appellees assert that this mortgage was fraudulently placed on this property by Edelsten.


author: STEVENSON, J.

text:
    Donald L. HARRIS and Sandra K. Harris, his wife, Appellants, v. T.C. BROWN INVESTMENT GROUP, INC., a dissolved Florida corporation, Thomas C. Brown and Sandra E. Brown, his wife, Appellees.
    Nos. 4D13-380, 4D13-1196.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2014.
    Rehearing Denied May 1, 2014.

      Shelly J. Stirrat of Fox, Wackeen, Dun-gey, Beard, Bush, Goldman, Kilbride, Waters & McCluskey, LLP, Stuart, for appellants.
    Alan B. Rose and Stefanie R. Shelley of Page, Mrachek, Fitzgerald, Rose, Konopka & Dow, P.A., West Palm Beach, and Tim B. Wright of Wright, Ponsoldt & Lozeau, Trial Attorneys, LLP, Stuart, for appel-lees.
   STEVENSON, J.

Appellants, Donald Harris and Sandra Harris (“Buyer”), appeal from a final judgment entered in favor of Appellees, T.C. Brown Investment Group, Inc., Thomas Brown and Sandra Brown (“Seller”). Because we find the evidence was insufficient to support a finding that Seller had complied with the terms of the Escrow Agreement, we reverse the judgment entered in favor of Seller, and remand for entry of judgment in favor of Buyer on Buyer’s counterclaim for breach of contract.

In March of 2008, Buyer and Seller entered into a Contract for Sale and Purchase (“Contract”) of a house located in Jensen Beach, Florida. Before closing, the parties received a survey which showed the house extended three inches over the property line. The three inches extended onto a common area owned by the Bay Tree Homeowners Association. This common area also fell under the jurisdiction of St. Lucie County pursuant to a Planned Unit Development (“P.U.D.”) agreement. Presumably concerned about the encroachment issue, the parties hand-wrote on the Contract the following statement: “This contract is contingent on buyers obtaining notification from St. Lucie County for compliance of addition of rear patio and balcony.”

To further address this encroachment issue, Buyer and Seller signed an Escrow Agreement. Paragraph 3 of the Escrow Agreement provided:

The Seller will have twelve months from the date of closing to obtain all necessary variances from St. Lucie County and/or amendments to the P.U.D. Agreement and getting appropriate deeds, easements, licenses or agreement from the B.T. Homeowners Association, such that the property to wit: the two story dwelling as depicted on the survey, may remain in its current location, and such that a standard ALTA Owner’s Policy of Marketability can be issued without an exception for the encroachment.

The parties agreed to place $100,000, taken from the closing price, into an escrow account. This $100,000 was to be released to Seller if Seller provided the necessary documents, or released to Buyer if Seller failed to provide the necessary documents. Within a year, Seller obtained a perpetual easement from Bay Tree Homeowners Association; however, Seller never obtained official documentation from St. Lucie County which contained its approval of the encroachment. Based on this lack of documentation from St. Lucie County, the escrow agent never released the $100,000 to Seller. Seller subsequently filed a breach of contract claim against Buyer, while Buyer filed a breach of contract counterclaim against Seller. At trial, the court found in favor of Seller, finding Seller complied with the terms of the Escrow Agreement and finding Buyer was in breach of the Escrow Agreement.

We find the trial court’s final judgment was not supported by competent, substantial evidence because there was no evidence to support a conclusion that Seller had obtained “all necessary variances from St. Lucie County and/or amendments to the P.U.D. Agreement” such that St. Lucie County would allow the house to remain in its current location. See Siewert v. Casey, 80 So.3d 1114, 1116 (Fla. 4th DCA 2012) (“So long as competent, substantial evidence supports the trial court’s factual findings, we will not in essence offer a second trial on appeal by re-weighing the evidence.”). The sole government witness from St. Lucie County, Mark Satterlee, the Planning and Development Director, never testified that the house could remain in its current location. Satterlee testified that to resolve the issue, the County “offered” a minor replat and changing of the lot lines, but there was no evidence that this was ever done. Satterlee’s testimony simply implied that St. Lucie County would not get involved with an issue this minor as it had “a lot bigger fish to fry.” Nonetheless, the County’s present “bigger fish to fry” does not mean the encroachment would be acceptable to St. Lucie County at some time in the future. Without providing written documentation from St. Lucie County approving the encroachment, which was clearly contemplated under both the Contract and Escrow Agreement, Seller failed to comply with the terms of the Escrow Agreement.

Accordingly, we reverse the trial court’s judgment and remand for entry of judgment in favor of Buyer on Buyer’s counterclaim and for such further proceedings as necessary.

Reversed and remanded.

CIKLIN and KLINGENSMITH, JJ., concur.


author: PER CURIAM.

text:
    Brandon RICHMOND, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-878.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2014.

      Brandon Richmond, Arcadia, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s rule 3.800(a) motion seeking additional jail credit. The motion sought jail credit from the date a hold was placed on him for the violation of probation (VOP) in this case. This claim is without merit. See Gethers v. State, 838 So.2d 504, 508 (Fla.2003). Defendant did not establish that the face of the record showed when the VOP warrant was transmitted or executed. Affirmance is without prejudice for petitioner to file a legally sufficient motion seeking additional jail credit within the time permitted by Florida Rule of Criminal Procedure 3.801(b). See Amador v. State, 112 So.3d 570, 571 (Fla. 4th DCA 2013).

STEVENSON, GROSS and FORST, JJ., concur.


text:
    Nathan WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4361.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2014.
    Antony P. Ryan, Regional Counsel, Genevieve Hall and Jennifer Workman Jesness, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack, Assistant Attorney General, West Palm Beach, for appel-lee.
   PER CURIAM.

Affirmed. See Guzman v. State, 110 So.3d 480 (Fla. 4th DCA 2013). We certify conflict with Thomas v. State, 78 So.3d 644 (Fla. 1st DCA 2011), and certify the following questions to the Florida Supreme Court:

1. DOES GRAHAM V. FLORIDA, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), APPLY TO LENGTHY TERM-OF-YEARS SENTENCES THAT AMOUNT TO DE FACTO LIFE SENTENCES?
2. IF SO, AT WHAT POINT DOES A TERM-OF-YEARS SENTENCE BECOME A DE FACTO LIFE SENTENCE?

Affirmed; conflict certified; questions certified.

WARNER, FORST and KLINGENSMITH, JJ., concur.


author: COHEN, J.

text:
    Vishaul PAUL, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2449.
    District Court of Appeal of Florida, Fifth District.
    March 21, 2014.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   ON REMAND FROM THE SUPREME COURT

COHEN, J.

Pursuant to Haygood v. State, 109 So.3d 735 (Fla.2013), we withdraw the mandate issued June 6, 2011, and our previously entered opinion, and reverse and remand for a new trial.

REVERSED AND REMANDED.

GRIFFIN and SAWAYA, JJ., concur.


text:
    Tammie Nicole SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-277.
    District Court of Appeal of Florida, Fifth District.
    March 21, 2014.
    Tammi Nicole Smith, Ocala, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the July 10, 2013 judgment and sentence for violation of probation in Case No. 2004-02163-CF-52, in the Circuit Court in and for Putnam County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, ORFINGER and COHEN, JJ., concur.


author: FORST, J.

text:
    C.C., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1848.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2014.
    Rehearing Denied April 25, 2014.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Monique Rolla, Assistant Attorney General, West Palm Beach, for ap-pellee.
   FORST, J.

The juvenile defendant (“Defendant”) was adjudicated delinquent on the charge of loitering and prowling. We reverse the adjudication because the State failed to prove the first element required to establish the completed offense of loitering and prowling.

Defendant was spotted in the City of Hollywood around 10:00 in the morning by an off-duty officer from the Hollywood Police Department. This off-duty officer recognized Defendant as a resident of Hallan-dale Beach. Based on this, and the fact that it was a school day, the off-duty officer called the Hollywood Police Department and gave it a description of Defendant and another individual with whom Defendant was walking.

Thereafter, on-duty patrol officers from the City of Hollywood responded to the be-on-the-lookout (“BOLO”) that was dispatched over the radio. Upon arriving to the area, the officers saw individuals matching the BOLO description: “black males both wearing black t-shirts, carrying book bags, walking in the area.”

When the officers stopped their patrol car “just south” of Defendant’s location, Defendant and two other individuals, dropped their backpacks in a bush and attempted to conceal themselves behind a truck. The officers approached the individuals, including Defendant, and placed them under arrest. When asked at trial the basis for the arrest, the arresting officer responded “[i]t was the actions of hiding their backpacks and concealing themselves.”

While the Defendant was under arrest, the officers searched his backpack. Inside the backpack, officers found a four-way lug wrench with a “prying tool” on one end and a flathead screwdriver. As a result, Defendant was initially charged with possession of burglary tools, as well as loitering and prowling. (The possession of burglary tools charge was dropped prior to trial.)

At trial, defense counsel objected to any testimony about what was found in the backpack; this objection was overruled. At the close of the State’s ease, Defendant moved for a judgment of dismissal. Defense counsel argued that the State failed to present a prima facie case that Defendant committed the offense of loitering and prowling because the State failed to establish either element of the offense. In response, the State relied heavily on the items found within Defendant’s backpack to support its position that the facts supported the charge of loitering and prowling. The motion for judgment of dismissal was denied. The defense then rested its case and renewed its motion for judgment of dismissal, which was again denied. Defendant was then adjudicated delinquent on the charge of loitering and prowling.

We first find that the items found in Defendant’s backpack after his arrest should not have been admitted or considered by the trial court because the offense of loitering and prowling must be completed prior to any police action. See E.F. v. State, 110 So.3d 101, 105 (Fla. 4th DCA 2013) (“[T]he offense of loitering and prowling must be completed prior to any police action.”) (quotations and citation omitted); E.C. v. State, 724 So.2d 1243, 1245 (Fla. 4th DCA 1999) (‘We ... recognize that the possession of the twelve-inch screwdriver gives support to a suspicion of imminent criminal activity after the fact. However, the offense of loitering and prowling must be completed prior to any police action.”); D.S.D. v. State, 997 So.2d 1191, 1194 (Fla. 5th DCA 2008) (“Possession of burglary tools may support a suspicion of imminent criminal activity after the fact, but the offense of loitering and prowling must be completed prior to any police action.”); R.D.W. v. State, 659 So.2d 1193, 1194 (Fla. 2d DCA 1995) (“Although a gun was found on one of the boys and R.D.W. told officers that boy was going to do something crazy, the offense of loitering or prowling must be completed prior to any police action.”). Accordingly, the items found in Defendant’s backpack after he was placed under arrest were not relevant to prove the crime charged — namely, loitering and prowling.

“To establish the crime of loitering and prowling, the State must prove [both of] the following two elements: (1) the defendant loitered or prowled ‘in a place, at a time, or in a manner not usual for law-abiding individuals,’ and (2) the loitering was under ‘circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.’ ” E.F., 110 So.3d at 104 (quoting § 856.021, Fla. Stat. (2011)). Both elements of the offense must be committed in the officer’s presence prior to arrest. Id. (quoting J.M.C. v. State, 956 So.2d 1235, 1238 (Fla. 4th DCA 2007)). “Because of the potential for abuse, the loitering and prowling statute must be applied with special care.... [T]he proper application of this statute requires a delicate balancing between the protection of the rights of individuals and the protection of individual citizens from imminent criminal danger to their persons or property.” Jones v. State, 117 So.3d 818, 821 (Fla. 4th DCA 2013) (quoting Mills v. State, 58 So.3d 936, 939 (Fla. 2d DCA 2011)).

The first element of loitering and prowling — that the defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals — requires proof that the officer observed “unusual conduct indicating incipient criminal activity.” P.R. v. State, 97 So.3d 980, 983-84 (Fla. 4th DCA 2012). “The idea of this element is ‘suspicious criminal conduct which comes close to, but falls short of, actual commission or attempted commission of a substantive crime.’” E.F., 110 So.3d at 104 (quoting B.J. v. State, 951 So.2d 100, 103 (Fla. 4th DCA 2007)). “A mere ‘vaguely suspicious presence is insufficient’ to satisfy this element.” Id. (quoting P.R., 97 So.3d at 983). Instead, the defendant’s behavior must point “toward an imminent breach of the peace or threat to public safety.” P.R., 97 So.3d at 983 (citing E.C., 724 So.2d at 1244).

We are unable to distinguish this case from M.J. v. State, 121 So.3d 1151 (Fla. 4th DCA 2013). In M.J., the defendant was viewed by an officer who knew him from “prior dealings.” Id. at 1153. The officer observed M.J. in front of a house, in a high crime area of Broward County, and knew M.J. (who was seventeen years old) should have been in school. Id. The deputy made a U-turn in his vehicle to initiate a truancy investigation; but by the time he turned around, he saw M.J. start running and disappear from view. Id. In addressing the first element of the loitering and prowling statute, which requires proof of incipient criminal activity, this court stated:

Deputy Johnson saw M.J. and suspected him of being truant, not of committing a crime. M.J.’s flight after observing the deputy ... did not provide probable cause for a loitering and prowling arrest. Indeed, it may have been quite normal of a truant to flee from law enforcement. All other conduct on which the deputy relied in his decision to arrest M.J. occurred after stopping and detaining M.J. .... There was nothing at the time and place of M.J.’s detention to provide probable cause that any criminal activity had occurred, was occurring, or was about to occur.

Id. at 1155 (emphasis in original).

Nearly the identical facts are present in the instant case. An off-duty officer called in a BOLO because he recognized Defendant as a resident of Hallandale Beach, and knew that Defendant should have been in school. The on-duty officers who responded to the BOLO positioned their patrol cars “just south” of Defendant’s location. Only after Defendant saw the officers did he drop his backpack in some bushes and attempt to conceal himself. As in M.J., this conduct, while supporting a truancy investigation, was insufficient to establish the first element of loitering and prowling. See E.F., 110 So.3d at 104 (“(1) walking slowly while looking into carports and sides of houses in an area where burglaries had occurred, and (2) carrying a large satchel bag along with a yellow flashlight ... was not unusual or indicative of incipient criminal activity.”); P.R., 97 So.3d at 983-84 (“[A]ppel-lant’s act of walking from the bushes and turning around upon seeing the police did not come close to the commission or attempted commission of a crime.”); Mills, 58 So.3d at 940 (“Mills’ [sic] conduct of walking out from behind a closed business [at 12:30 a.m. in a high-crime area, which had recently been hit with a series of smash-and-grab burglaries], turning around when he saw officers, and walking back behind the closed business did not come close to the actual commission or attempted commission of a substantive crime.”).

In this case, the conduct observed by officers prior to Defendant reacting to the officers’ presence, while perhaps indicative of a truancy situation, did not rise to the level of “suspicious criminal conduct which comes close to, but falls short of, actual commission or attempted commission of a substantive crime.” See E.F., 110 So.3d at 104 (internal quotation omitted). As noted in M.J., truancy is not a crime. M.J., 121 So.3d at 1154 (citing C.G. v. State, 689 So.2d 1246, 1247 (Fla. 4th DCA 1997)). Defendant’s behavior in this case did not point “toward an imminent breach of the peace or threat to public safety.” See P.R., 97 So.3d at 983. If anything, Defendant’s presence in a city where he was not known to live, wearing a black shirt and carrying a backpack on a school day at 10:00 a.m., is nothing more than “[a] mere ‘vaguely suspicious presence [which] is insufficient’ ” to satisfy the first element of loitering and prowling. E.F., 110 So.3d at 104 (quoting P.R., 97 So.3d at 983).

The State argues that the first element was met once officers saw Defendant attempt to conceal himself and his backpack. These circumstances, however, are to be considered when determining whether the State established the second element of the offense — the “alarm or immediate concern” element. M.J., 121 So.3d at 1154-55 (“When a person takes ‘flight upon appearance of a law enforcement officer’ or ‘manifestly endeavors to conceal himself or herself or any object,’ this is a circumstance for consideration in determining the alarm or immediate concern element.”) (quoting § 856.021(2), Fla. Stat. (2012)) (emphasis added).

In light of our finding that the State failed to prove the first element of the offense occurred in the officers’ presence, we need not address whether the State established the second element. See E.F, 110 So.3d at 104 (“[B]oth elements of the offense must be committed in the officer’s presence prior to arrest.”). Because the State failed to establish the first element of loitering and prowling, we reverse Defendant’s adjudication of delinquency and direct the court to dismiss the delinquency petition on remand.

WARNER and KLINGENSMITH, JJ., concur.


author: DAMOORGIAN, C.J.

text:
    Jermaine C. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3174.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2014.

      Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, C.J.

Appellant, Jermaine Jackson, appeals his judgment and sentence for armed robbery with a firearm while wearing a mask. We reverse and remand for resentencing with regard to certain costs imposed against Appellant and affirm in all other respects.

Background

Appellant was found guilty of one count of robbery with a firearm while wearing a mask after the state established he held up a pizza delivery person at gunpoint. As this case deals only with the propriety of his sentence, the evidence as established at trial will not be explored further. However, it is important to note that Appellant was twenty at the time he committed the offense, but was twenty-one when he was tried and sentenced.

Following a sentencing hearing, the trial court sentenced Appellant to the statutory maximum of life in prison. § 812.13(2)(a), Fla. Stat. (2009). The court also imposed $1,500 in public defender costs and $500 in investigative costs.

Appellant then filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). In his motion, Appellant argued that his life sentence was disparate as compared to other similarly situated defendants. He also argued that the public defender and investigative costs should be reversed because the court did not inform Appellant that he had the right to dispute the public defender costs and the court’s imposition of the investigative costs was based on its own initiative and was not supported by any documentation. The court did not rule on Appellant’s motion within sixty days, and thus it is deemed denied. Sessions v. State, 907 So.2d 572, 573 (Fla. 1st DCA 2005).

On appeal, Appellant challenges his sentence arguing that: 1) the sentencing court considered impermissible factors when imposing his sentence; 2) the court erred in denying his 3.800(b)(2) motion to correct illegal sentence on the basis that it was disparate as compared to other similarly situated defendants; and 3) the court erred in denying his 3.800(b)(2) motion to correct certain costs imposed against him. Appellant also raises a facial challenge to the constitutionality of Florida’s Youthful Offender Act as amended in 2008. See § 958.04(l)(b), Fla. Stat. (2008). Appellant argues that the statute — which provides that a defendant’s eligibility for a youthful offender status is determined by how old he or she is at the time of sentencing as opposed to at the time of the crime— violates equal protection and substantive due process. See id.

After reviewing the record, we hold that the sentencing court did not consider any impermissible factors when it sentenced Appellant, nor did it err when it denied Appellant’s Rule 3.800(b)(2) motion based on his allegedly disparate sentence without an evidentiary hearing. Accordingly, we affirm on these grounds without further discussion. However, we write to reverse the costs imposed against Appellant and address the constitutionality of section 958.04(l)(b), Florida Statutes.

Public Defender and Investigative Costs

First, we hold that it was error for the court to deny Appellant’s 3.800(b)(2) motion as it pertains to the public defender and investigatory costs entered against him. Section 938.27(1), Florida Statutes (2011), requires that convicted criminals are liable for payment of investigative costs if requested by the investigating agency. Additionally, the court cannot impose such investigative costs without evidence of the amount of the costs. Phillips v. State, 942 So.2d 1042,1044 (Fla. 2d DCA 2006). Here, the record reflects that no investigating agency moved for fees, and the state did not submit any evidence establishing what investigative costs were actually incurred. Accordingly, the investigative costs entered against Appellant must be reversed and remanded for the trial court to either strike the costs or reimpose the costs if the statutory requirements are met. Diaz v. State, 901 So.2d 310, 311 (Fla. 2d DCA 2005).

Additionally, Florida Rule of Criminal Procedure 3.720(d)(1) provides that the court was required to notify Appellant of his right to a hearing to contest the amount of public defender costs. As the court did not comply with this requirement, this portion of Appellant’s sentence must also be reversed and remanded with instructions that the court provide Appellant with notice of his right to a hearing to contest the amount of the costs at the time of re-sentencing. Fla. R. Crim. P. 3.720(d)(1).

The Constitutionality of Florida’s Youthful Offender Act

Next, we write to address Appellant’s argument regarding the constitutionality of Florida’s Youthful Offender Act as amended in 2008. By way of background, in 1978, the legislature passed the Youthful Offender Act, thus creating an alternative sentencing scheme available to judges when sentencing certain youthful criminal defendants. See Ch. 78-84, Laws of Fla.; § 958.04(1), Fla. Stat. The express legislative intent of the Youthful Offender Act is “to improve the chances of correction and successful return to the community of youthful offenders sentenced to imprisonment by providing them with enhanced vocational, educational, counseling, or public service opportunities and by preventing their association with older and more experienced criminals during the terms of their confinement.” § 958.021, Fla. Stat. Youthful offender sentencing is not available for defendants guilty of a capital or life felony or for defendants who have been sentenced pursuant to the Youthful Offender Act for a prior offense. § 958.04(l)(c), Fla. Stat. Youthful offender sentencing is discretionary and features a six-year sentencing limit applicable to the original sentence and to any sentence imposed following a technical or non-substantive violation of probation. § 958.04(2)(a), Fla. Stat. This six-year cap applies even to crimes with higher minimum mandatories. See Mendez v. State, 835 So.2d 348, 349 (Fla. 4th DCA 2003).

Prior to 2008, youthful offender sentencing was available to a defendant who “committed [an eligible crime] before the defendant’s 21st birthday.” § 958.04(1)(b), Fla. Stat. (2007). However, in 2008, the legislature amended the youthful offender statute so that a court can only impose a youthful offender sentence if the “offender is younger than 21 years of age at the time sentence is imposed.” Ch. 2008-250, § 7, Laws of Fla.; § 958.04(1)(b), Fla. Stat. (2008) (emphasis added).

Appellant argues that this amendment violates equal protection in that it imper-missibly treats two classes of similarly situated people — those who commit a crime and are sentenced before they turn twenty-one and those who commit a crime before they turn twenty-one but are sentenced after — differently. He also asserts that the amendment violates substantive due process in that it may force a defendant on the brink of turning twenty-one to make concessions in his or her defense strategy in order to try to qualify for a youthful offender status. We do not agree.

Equal Protection

Under both the state and federal constitutions, “the concept of equal protection has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged.” Reynolds v. Sims, 377 U.S. 533, 565, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). “Equal protection does not require identity of treatment. It only requires that the distinction have some relevance to the purpose for which the classification is made, and that the different treatments be not so disparate as to be wholly arbitrary.” State v. Andersen, 208 So.2d 814, 820 (Fla.1968). “Where an equal protection challenge is brought before a court of law, that court must, from the outset, determine the appropriate level of judicial scrutiny to be applied to the state regulation under attack.” Fla. High Sch. Activities Ass’n v. Thomas By & Through Thomas, 434 So.2d 306, 308 (Fla.1983). If the challenged government action “abridge[s] some fundamental right or affect[s] adversely upon some suspect class of persons,” it must withstand strict scrutiny. Id. “To withstand strict scrutiny, a law must be necessary to promote a compelling governmental interest and must be narrowly tailored to advance that interest.” Westerheide v. State, 831 So.2d 93, 110 (Fla.2002). However, when no fundamental right or suspect class is implicated, “courts usually invoke the rational basis test, under which the law must bear some rational relationship to legitimate state purposes.” Id.

Florida courts have not addressed whether the Youthful Offender Act implicates a fundamental right. However, courts from other jurisdictions have held that there is no fundamental right to a youthful offender status, and thus have employed a rational basis analysis when considering whether a youthful offender statute violates equal protection. See People v. Perkins, 107 Mich.App. 440, 309 N.W.2d 634, 636 (1981) (holding that age requirements under youthful offender statute did not implicate a fundamental right); People v. Mason, 99 Misc.2d 583, 416 N.Y.S.2d 981, 984 (N.Y.Sup.Ct.1979) (holding that youthful offender treatment is not a fundamental right). We are persuaded by this authority, especially in light of the fact that no defendant is guaranteed a youthful offender sentence in Florida regardless of eligibility. See McKinney v. State, 27 So.3d 160, 161 (Fla. 1st DCA 2010) (the decision to grant or deny a defendant’s request for a youthful offender sentence is completely discretionary). Accordingly, as no fundamental right is implicated, Appellant’s equal protection argument is subject to a rational basis analysis.

Appellant correctly points out that the “at the age of sentencing” limitation contained in section 958.04(l)(b) has the effect of classifying and treating defendants who commit crimes between the ages of eighteen and twenty-one and are sentenced before they turn twenty-one different from defendants who commit crimes between the ages of eighteen and twenty-one but are sentenced after their twenty-first birthday. Appellant argues that “sentencing dates are not a meaningful or just distinction between otherwise similarly-situated defendants,” and thus the classification violates equal protection. In support of his position, Appellant points out that “[t]he time between arrest and sentence can vary based on factors such as county, courtroom, the particular lawyers involved, witness availability, intervening acts of nature, etc.” and thus, two hypothetical defendants who are the same age and who commit the same crime on the same day may end up getting treated differently under the law based on circumstances well-beyond their control.

While Appellant’s argument is logically compelling, under the rational basis test, “[t]he statute must be upheld if there is any conceivable state of facts or plausible reason to justify it, regardless of whether the Legislature actually relied on such facts or reason.” Samples v. Fla. Birth-Related, Neurological, 40 So.3d 18, 23 (Fla. 5th DCA 2010), approved sub nom. Samples v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 114 So.3d 912 (Fla.2013). While the legislature failed to provide any guidance as to why it changed the determination for youthful offender status eligibility from the defendant’s age at the time crime was committed to the defendant’s age at time of sentencing, there are some plausible explanations. For one, as discussed above, part of the legislature’s express intent in creating the youthful offender statute was to prevent young offenders’ “association with older and more experienced criminals during the terms of their confinement.” § 958.021, Fla. Stat. Limiting inclusion into a youthful offender program by the offender’s age at the time of sentencing could serve to ensure that the population in such a program truly remains “youthful.” This is all that is needed to establish a rational basis. Accordingly, Appellant’s equal protection argument fails.

Due Process

Substantive due process protects fundamental rights that are so “implicit in the concept of ordered liberty” that “neither liberty nor justice would exist if they were sacrificed.” Palko v. Conn., 302 U.S. 319, 325-26, 58 S.Ct. 149, 82 L.Ed. 288 (1937). When a state enacts legislation that infringes on fundamental rights, courts will review the law under a strict scrutiny test and uphold it only when it is “narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). “The Supreme Court has recognized that fundamental rights include those guaranteed by the Bill of Rights as well as certain ‘liberty’ and privacy interests implicit in the due process clause and the penumbra of constitutional rights.” Doe v. Moore, 410 F.3d 1337, 1343 (11th Cir.2005).

Appellant argues that the 2008 amendment to the youthful offender statute violates substantive due process in that it may cause a youthful defendant to make certain defensive concessions in an effort to obtain a sentence before turning twenty-one. Appellant maintains that this infringes on a defendant’s right to “a vigorous defense, the right to confront his accusers, the right to compel witnesses, and a jury trial.” As the rights to counsel, confrontation, and trial are guaranteed by both the federal and state constitutions, Appellant urges that we should apply strict scrutiny to the amendment. However, this is not the proper analysis.

When analyzing a substantive due process claim, a court must first craft “a careful description of the asserted right” in order to “narrowly frame the specific” issue before it so as not to “stray into broader constitutional vistas than are called for by the facts of the case at hand.” Moore, 410 F.3d at 1344 (quotations omitted). Additionally, the fact that a statute may have an indirect effect on a fundamental right does not subject it to strict scrutiny. See id.; McGuire v. Montgomery, 2013 WL 1336882, at *11 (M.D.Ala. Mar. 29, 2013) (holding that sex offender registration statute did not infringe on the appellant’s fundamental right to marry and carry on relationships because it did not “directly regulate the family relationship” even though it had the result of preventing appellant from living with his mother or wife since they did not reside at a compliant address); In re San Juan Dupont Plaza Hotel Fire Litig., 687 F.Supp. 716, 733 (D.P.R.1988) (“However, a statute having merely indirect effect on the fundamental right will not be subjected to strict scrutiny.”).

Although presented otherwise, Appellant’s argument is nothing more than a challenge to the 2008 amendment’s limiting effect on a defendant’s ability to obtain a youthful offender sentence. While this limitation may affect a defendant’s trial strategy and thus implicate his or her rights to counsel, confrontation, and trial, any such implication is indirect because the 2008 amendment does not control how a defendant actually defends him or herself. Viewing the youthful offender statute as amended in 2008 as a violation of a party’s fundamental rights to trial, etc., rather than as what it is — a limitation on the class of defendants who are eligible for an alternate sentence — would result in straying into broader constitutional territory than necessary. Because there is no fundamental right to a youthful offender sentence, the statute is not subject to strict scrutiny and must only pass the rational basis test. As discussed above, it does. Thus we also reject Appellant’s substantive due process challenge to section 958.04(l)(b).

For the foregoing reasons, we reverse and remand for resentencing so that the court can notify Appellant of his right to contest the public defender fees and reassess the propriety of the investigative fees. We affirm in all other respects.

Reversed and Remanded for Resentenc-ing.

TAYLOR and LEVINE, JJ., concur.

      . Age is not a suspect classification. White Egret Condo, v. Franklin, 379 So.2d 346, 351 (Fla. 1979).


author: MAY, J.

text:
    PNC BANK, NA, Appellant, v. Isidro A. DUQUE and Teresa A. Thomas, Appellees.
    No. 4D12-1799.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2014.
    Rehearing Denied May 21, 2014.

      Jeffrey M. Gano and Elizabeth T. Frau of Ronald R. Wolfe & Associates, P.L., Tampa, for appellant.
    Laura L. Brogan of American Legal, P.A., Coral Springs, for appellees.
   MAY, J.

The bank appeals a trial court order striking its pleadings and dismissing its foreclosure complaint with prejudice, as well as a subsequent order denying its motion to reinstate the pleadings and for rehearing. The bank argues that the court erred in dismissing its complaint for discovery violations. We agree and reverse.

The homeowners defaulted on their loan, resulting in the bank initiating foreclosure proceedings. The homeowners filed several discovery requests, and subsequently requested sanctions and moved to strike the bank’s pleadings, pursuant to Florida Rule of Civil Procedure 1.380. They alleged that the bank had steadfastly refused to comply with multiple court orders concerning their discovery requests, and as a “sophisticated lender represented by experienced counsel,” its “acts of disobedience [were] willful, deliberate and contumacious and not from an act of neglect or inexperience.” The homeowners asserted that their ability to defend their case had been prejudiced by the bank’s non-compliance.

The bank responded that the motion was not filed in good faith, and that the homeowners had strategically served multiple discovery requests to unnecessarily delay the foreclosure action. According to the bank, its counsel had fully cooperated with the homeowners on many occasions, but the homeowners’ counsel had not done the same. The bank further argued that dismissal with prejudice was appropriate only after consideration of the factors outlined in Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993).

The trial court deferred ruling after a hearing on the motion, and ordered another special hearing. After the second hearing, the trial court found that the bank had failed to comply with its discovery orders, and based on Kozel, dismissal was appropriate. Specifically, the court found the bank:

(a) is a sophisticated lender represented by experienced counsel, as such, [the bank’s] acts of disobedience are willful, deliberate and contumacious and not from an act of neglect or inexperience,
(b) ... actively participated in the failure to comply with this [c]ourt’s [o]r-der by failing to comply with [the homeowners’] discovery request,
(c) has not offered reasonable justification for its failure to comply with this [e]ourt’s [o]rders,
(d) ... has prejudice^] the [homeowners’] ability to defend this case.

The court reserved jurisdiction to award attorney’s fees and costs.

The bank moved to reinstate its pleadings and for rehearing. It also moved for clarification as to whether the dismissal was with prejudice. The trial court denied the motions and did not clarify whether the dismissal was -with prejudice. From these orders, the bank now appeals.

We review dismissals for failing to comply with discovery orders for an abuse of discretion. Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271,1273 (Fla.1990).

To promote the “orderly movement of litigation,” Florida Rule of Civil Procedure 1.380 authorizes sanctions for a party’s failure to comply with discovery orders. Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983). The “imposition of the ultimate sanction of dismissal” is warranted in cases “involving a protracted history of discovery abuses, numerous motions to compel, prior sanctions by the trial court, and patent prejudice to the opposing party.” Ham v. Dunmire, 891 So.2d 492, 499 (Fla.2004).

The six factors for determining whether a dismissal is warranted are:

1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.

Kozel, 629 So.2d at 818. We have “consistently required the record to show an express consideration of the Kozel factors.” Heritage Circle Condo. Ass’n v. State, Fla. Dep’t of Bus. & Prof'l Regulation, Div. of Condos., Timeshares & Mobile Homes, 121 So.3d 1141, 1144 (Fla. 4th DCA 2013). Even if a sanction is justified, the court must fashion a sanction that is proportional to the infractions committed. See Ham, 891 So.2d at 498.

When a trial court dismisses a complaint with prejudice, it must first consider whether a less-severe sanction is appropriate. Bank One, N.A. v. Harrod, 873 So.2d 519, 520 (Fla. 4th DCA 2004) (quoting Kozel, 629 So.2d at 818). In Harrod, we reversed an order of dismissal because the order failed to contain the required factual findings to indicate that the court had considered the Kozel factors, and the evidence did not establish that the bank, rather than counsel, had been at fault. Id. at 521.

We have reviewed the trial court’s order. While indicating that the court considered the six Kozel factors, the order lacked specific findings as to each. We do not condone the bank’s failure to comply with discovery and court orders; we feel the trial court’s frustration. But, as the bank argues, the homeowners made numerous confusing and cumulative discovery requests while failing to file a responsive pleading for two years. There was no evidence that the violations were caused by the bank itself. The homeowners suffered no prejudice, and the bank’s violations did not cause any significant problem with judicial administration.

The law does not always provide a good roadmap for trial courts. In this area of sanctioning non-compliant parties, however, our supreme court has done just that. See Kozel, 629 So.2d at 818. When the trial court fails to follow that roadmap, reversal is warranted. See Bank One, 873 So.2d at 521-22.

Reversed.

STEVENSON and GERBER, JJ., concur.


author: CIKLIN, J.

text:
    Christopher J. CARLISLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3377.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2014.
    Reconsideration Denied May 7, 2014.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Christopher Carlisle appeals his conviction for sexual battery on a child while in a position of familial or custodial authority. Carlisle argues the trial court improperly restricted his ability to cross-examine the victim regarding her recantation of previous sexual abuse allegations against Car-lisle. Because the trial court erred and the error was not harmless, we must reverse and remand for a new trial.

Facts

Carlisle and his wife adopted the victim and the victim’s younger brother when the children were very young. In 2005, when the victim was eleven, the victim told a therapist that Carlisle had inappropriately touched her. The police became involved and Carlisle was ordered to leave the home. About three to four months after initially accusing Carlisle, the victim recanted her accusations. Carlisle was then allowed to return to the family’s home.

In 2008, the victim told Mends that Car-lisle had again touched her inappropriately. The police again became involved, and the victim told the police that Carlisle touched her inappropriately once in January 2008 and again in March 2008. The victim stated that in one of the incidents, the victim awoke and saw Carlisle standing near her bed. Carlisle then digitally penetrated the victim. In the other incident, the victim awoke to find Carlisle kneeling beside her bed. Carlisle removed the victim’s pants and performed oral sex on her.

At the request of the police, the victim made two controlled calls to Carlisle, during which Carlisle made potentially incriminating statements.

Thereupon, the state charged Carlisle with one count of sexual battery on a child twelve years of age or older but younger than eighteen by a person in familial or custodial authority for the abuse occurring in 2008, and one count of lewd or lascivious molestation on a child younger than twelve years of age for the earlier incident of abuse that occurred in 2005.

The state filed a pretrial motion in limine to preclude Carlisle from cross-examining the victim regarding her recantation of the 2005 abuse allegations. The state argued the false accusation was inadmissible under section 90.610, Florida Statutes (2007), and this court’s decision in Washington v. State, 985 So.2d 51 (Fla. 4th DCA 2008). At a hearing on the motion, the victim testified she recanted the 2005 allegations because her adoptive mother ostracized the victim and isolated her from her siblings after she made the allegations. Because of the negative atmosphere in her home, the victim told her therapist she fabricated the allegations in order to gain attention. The victim testified that at the time she made the 2005 allegations against Carlisle she was angry at him for punishing her after she used his credit card to purchase items over the internet. The victim also testified that the substance of her 2005 accusations against Carlisle were inconsistent; she initially accused Carlisle of touching her breasts, touching her private areas, performing oral sex on her, and making her touch his private areas. Later, the victim modified her accusations and stated Carlisle only touched her breasts and buttocks.

After the victim’s testimony was presented at the motion in limine hearing, the state argued the victim’s recantation was inadmissible in a trial based on her accusation made three years after the recantation. Carlisle argued the recantation was admissible because it was made by the same victim against the same defendant under similar circumstances and because it was Williams rule evidence. The trial court granted the state’s motion in limine and precluded Carlisle from cross-examining the victim as to her 2005 recantation.

At trial, the state’s case rested primarily on the victim’s testimony and the controlled calls. The victim offered testimony pertaining to the 2008 abuse allegations but not the 2005 allegations. During cross-examination, the victim testified Car-lisle was the main disciplinarian of the household and that Carlisle had recently punished the victim for stealing items from her siblings. The victim also stated she felt alienated because her adoptive parents favored their biological children.

Through the lead detective, the state introduced the controlled calls. In the first call, the victim asked Carlisle if he remembered “how like a couple years ago you told me, like, you pulled me out of the car and you told me that you would stop touching me?” Carlisle asked where the victim was and the victim answered that she was at a friend’s house. Carlisle asked if anyone else was in the room, and the victim answered that she was alone. The victim stated “Anyways, yeah, it’s just, it’s been on my mind a lot lately. So I just ...”, at which point Carlisle stated “It won’t, it won’t happen anymore.” The victim stated “I want you to stop touching my private parts, daddy,” and Carlisle answered “You got it, honey.” The victim asked “But do you love me as a daughter? ... Not as a girlfriend?”, and Carlisle answered that he loved her as a daughter and not as a girlfriend.

The victim then stated “Okay, I love you, but I don’t want you to get in trouble. You have to stop touching me.” Carlisle answered “I will.” The victim asked Car-lisle why he touched her, and Carlisle answered “I don’t know. I guess I get, get confused sometimes, honey. I’m sorry” and “I think sometimes I get confused, honey, I’m sorry. Sometimes I, you know, I’m lonely and I’m, you know .... ” The victim asked “Well, isn’t mom there for you?”, and Carlisle answered “Not usually.” The victim asked him to promise it would not happen again, and Carlisle stated “I promise you. I swear it will not happen again.”

After the first controlled phoné call, Carlisle called the house of the victim’s friend where the victim told Carlisle she was during the call. The victim then made a second controlled call to Carlisle. Car-lisle stated “I was just worried you weren’t put up to that call like somebody, like a police officer or something.” The victim answered that she was not, and asked why he was worried about that. Carlisle answered “Well, because I could get arrested and it would, it’d blow my life. I’d have to kill myself.” Carlisle stated “I appreciate you ... having the guts to, to come forward and talk to me about it.” The victim answered that it had been on her mind and bothering her. Carlisle then stated “I guess I thought you kind of enjoyed it, too, so.” Carlisle asked whose phone the victim was calling from, and asked “The police aren’t coming to ... take me away?” The victim answered that they were not, and Carlisle stated “I’ll be more appropriate in the future.”

After the lead detective testified, the state rested. Outside the presence of the jury, Carlisle testified in a proffer to demonstrate why the victim’s recantation of the 2005 abuse allegations was relevant to explain his statements on the controlled calls. Carlisle testified that the experience of being falsely accused of sexual abuse and removed from his home was traumatic. Carlisle stated his fear of police involvement, evident on the controlled calls, stemmed from his fear of dealing with another fallacious accusation and being “thrown back in the system again.” Car-lisle testified that about three weeks before the victim made the controlled call, he had been “tickling” the victim and “pinched her butt.” During the tickling and pinching incident the victim called Carlisle a “pedophile.” Carlisle testified that when the victim made the controlled calls, he assumed she was talking about the tickling and pinching incident. Finally, Carlisle stated he was placating the victim on the calls because he “was trying to, to just go along with the flow and try and tell her what she needed to hear until I could get her off the phone and we could talk about this as a family.”

The trial court ruled that Carlisle could testify that he was falsely accused of sexual abuse in the past, but that he could not testify that the victim recanted her accusation. Carlisle testified in front of the jury, and repeated his explanations regarding the pinching incident to explain his statements on the controlled calls. Carlisle also offered explanations for his other statements on the calls. Carlisle testified his discussion of his relationship with his wife referred to the playfulness of the relationship and that when he said he thought the victim “enjoyed it too” he was referring to the tickling and pinching incident. Carlisle denied ever touching the victim’s vagina or otherwise touching her in a lewd manner. Carlisle also testified that when the victim made the 2008 allegations, she was facing punishment due to poor grades on her report card.

The victim’s younger brother testified that the victim told him she fabricated the 2008 allegations against Carlisle. The brother testified that the victim told him she could not recant her allegations because “she wouldn’t be able to live in the group home and she wouldn’t be able to have the scholarships, like be able to be supported.” The brother also testified that he slept in a bedroom across from the victim’s, that both of the children slept with their doors open, and that he never saw Carlisle inside the victim’s room late at night. On cross-examination, the brother admitted he had trouble remembering events when he was angry and that he had been angry when the victim told him the allegations were false.

The victim testified a second time as a rebuttal witness.- The victim denied telling her brother she lied about the abuse allegations. The victim testified she had told her brother that “sometimes I want to go back home” because the other girls at the group home were irritating.

The jury found Carlisle guilty and the court sentenced him to fifteen years in prison.

Pantoja v. State

Carlisle contends the trial court reversibly erred by limiting his ability to cross-examine the victim regarding her prior recantation and by limiting his ability to testify regarding the recantation. Carlisle further contends the evidence was admissible under sections 90.404(2) and 90.608(2), Florida Statutes, and that the trial court’s limitation of his ability to cross-examine the victim -violated the Confrontation Clause. The standard of review for the admissibility of evidence is abuse of discretion, limited by the rules of evidence. Washington, 985 So.2d at 52 (citation omitted). The standard of review for the trial court’s decisions regarding the scope and control of cross-examination is also abuse of discretion. See Medina v. State, 466 So.2d 1046, 1050 (Fla.1985) (citation omitted).

This case is controlled by Pantoja in which the Florida Supreme Court resolved the conflict between the Second District’s decision in daggers v. State, 536 So.2d 321 (Fla. 2d DCA 1988) and a First District case discussing cross-examination of a victim regarding prior false accusations. Pantoja v. State, 59 So.3d 1092, 1094 (Fla.2011). The Pantoja court addressed the issue of whether the defendant was allowed to cross-examine a child sexual battery victim regarding a prior report of sexual molestation against a different person, which the child had recanted. Id. at 1095. In that case, the trial court prohibited the defendant from cross-examining the child regarding the past false allegation of abuse, which was in conflict with the Second District’s decision in Joggers. Id. at 1094-95.

The Court addressed the potential admissibility of the prior false accusation under section 90.608, Florida Statutes (showing the witness is biased), and the Confrontation Clause. Id. at 1096-1100. A concurring opinion briefly discussed the application of section 90.404(2)(a) ('Williams rule evidence). Id. at 1100 (Pariente, J., concurring). The Court’s opinion on each of these issues was divided: Three justices concurred in the result and reasoning and two justices concurred only in the result. Id. at 1100-01.

Section 90.608(2) (Impeachment by Showing the Witness is Biased)

Pantoja addressed the admissibility of the false accusations under 90.608(2), which allows impeachment by “ ‘[sjhowing that the witness is biased.’ ” Id. at 1097 (quoting § 90.608(2), Fla. Stat. (2002)). The Court found that “the facts of Joggers did support the use of false reporting evidence to establish bias or motive pursuant to section 90.608(2),” but also concluded that the section did not apply to the facts of Pantoja. Id. The Court distinguished the Pantoja fact pattern from daggers under the following indicia: whether the pri- or allegations of abuse were against the defendant or a different person, the degree to which the current allegations of abuse and past allegations of abuse were similar, and whether the past allegations of abuse gave rise to a motive to lie in the current allegations. See id. Applying these factors to Pantoja’s appeal, the Court concluded the evidence was not admissible under 90.608(2) because the past allegations were not against Pantoja, the manner of abuse was different (the past abuse involved touching on the outside of the clothing, the later abuse involved physical and oral sexual acts under the clothing), and the past allegations indicated no motive to lie because no one believed or acted on the past allegations. See id.

Applying the Court’s discussion of section 90.608(2) to the instant case, we must conclude the trial court erred by prohibiting Carlisle from testifying regarding the recantation and from cross-examining the victim regarding her recanted allegations. The victim’s prior allegations of abuse were against Carlisle. The manner of abuse was similar (oral and digital contact with the victim’s vagina) — although the victim gave varying accounts of the older abuse incident. Finally, unlike Pantoja, the police acted on the victim’s past allegations of abuse and the victim therefore knew what effect her current allegations would have. This could conceivably support Carlisle’s allegations that the victim had a motive to lie about the abuse to gain attention or avoid punishment.

Confrontation Clause

The Court next addressed whether excluding the evidence of the past allegations violated the defendant’s rights to confront witnesses against him or his due process rights. Pantoja, 59 So.3d at 1098-1100. While “[sjeveral federal courts of appeals have concluded that there is no constitutional error in prohibiting cross-examination of a witness regarding an alleged false accusation against someone other than the defendant,” the Confrontation Clause requires that a defendant be allowed to cross-examine a witness regarding credibility “if that examination aims to reveal the motive, bias or prejudice of a witness/accuser.” Id. at 1099 (citations omitted). The Court noted that federal courts addressing similar issues apply the rule 403 balancing test to exclude the evidence if it has minimal probative value but could cause unfair prejudice, confusion of the issues, or could mislead the jury. Id. at 1099-1100 (citations omitted). The Court concluded:

The trial court’s exclusion of the victim’s prior accusation does not result in a confrontation violation for several reasons. First, the victim’s prior accusation was against her uncle, not Pantoja. Second, the victim’s accusation against her uncle involved a one-time incident involving “over-the-clothes” groping, whereas her accusation [against Panto-ja] involves “under-the-clothes” sexual acts that occurred on multiple occasions. Third, the victim testified that she did not recant her prior accusation against her uncle. Finally, cross-examination regarding the victim’s prior accusation would not have explained her knowledge of sex to the jury and might have caused the jury to infer that she had a propensity to lie about sexual abuse.

Id. at 1100.

Applying the Court’s discussion of the Confrontation Clause to the instant case, Carlisle’s constitutional rights were violated by prohibiting Carlisle from cross-examining the victim regarding the recanted allegations. The recanted allegations were against Carlisle, the manner of abuse was similar, and the victim admitted that she recanted the past allegations. Even with the risk that the jury may have erroneously considered the issue of the victim’s propensity to lie about sexual abuse, the exclusion of the evidence was nevertheless improper under the circumstances because the impeachment could have established that the victim had a motive to lie.

Section 90.404(2) (Reverse Williams Rule Evidence)

The evidence of the victim’s recantation was also admissible under section 90.404(2)(a), Florida Statutes (2007), as reverse Williams rule evidence. Justice Pariente noted in her concurring opinion that the evidence of recanted allegations of sexual abuse “might be admissible ... under section 90.404(2)(a).” Pantoja, 59 So.3d at 1100 (Pariente, J., concurring in result). The section provides:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

§ 90.404(2)(a), Fla. Stat. (2007).

For evidence to be admissible under section 90.404(2)(a), the evidence must have probative value to show a material fact, and the evidence is not admissible if its probative value is substantially outweighed by its unduly prejudicial nature. See McLean v. State, 934 So.2d 1248, 1255-56 (Fla.2006). In the instant case, the evidence of the prior recantation was relevant to show motive because it showed the specific reasons why the victim may have fabricated allegations of sexual abuse. When the victim recanted the allegations, she stated she made the allegations “for attention” and because she was angry that Carlisle had been upset with her. During trial, Carlisle attempted to show the victim fabricated the abuse allegations to avoid punishment by Carlisle, and the evidence of the prior allegations was relevant to show the victim knew what would happen if she once again made such allegations. The probative value of the recantation was not substantially outweighed by the risk of unfair prejudice.

Harmless Error

Finally, the state contends that even if the trial court erred by precluding testimony regarding the victim’s prior recantation, the error was harmless. See State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986) (“The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”) (citation omitted).

We cannot say that precluding evidence of the prior recantation was harmless. The victim’s credibility was the central issue of the trial, and evidence that she recanted prior allegations of sexual abuse against Carlisle could have significantly weakened her credibility. See Woods v. State, 92 So.3d 890, 892 (Fla. 4th DCA 2012). Although Carlisle’s statements on the controlled calls appeared to have been highly incriminatory, Carlisle’s proffer indicated that evidence of the recantation might have lent support to his suggestion that his statements were only comments pertaining to the so-called pinching and tickling incident.

Reversed and remanded.

STEVENSON and KLINGENSMITH, JJ., concur.

      . Before trial, the state dropped the lewd or lascivious molestation count.

      . In Washington, this court held that a victim testifying in an aggravated battery and carjacking case could not be impeached by evidence that the victim had filed a false police report in a totally unrelated matter when the victim was not convicted of any charges relating to the false report. Washington, 985 So.2d at 52. The court found the impeachment would be improper under 90.610 because that section allowed impeachment only by prior convictions. Id,

      .After Carlisle and his wife adopted the victim and her brother, Carlisle’s wife gave birth to triplets.

      . "Collateral crimes evidence includes similar fact evidence, which is governed by section 90.404, Florida Statutes, and is commonly referred to as ‘Williams rule evidence.’ ” Pulcini v. State, 41 So.3d 338, 344 (Fla. 4th DCA 2010) (citing Williams v. State, 110 So.2d 654 (Fla.1959)). " 'Reverse Williams rule’ evidence” refers to evidence of other crimes, wrongs, or acts by a person other than the defendant “that a defendant offers to show his or her innocence of the instant crime.” McDuffie v. State, 970 So.2d 312, 323 n. 2 (Fla.2007) (citation omitted).

      . 59 So.3d 1092 (Fla.2011).

      . We note that the Florida Supreme Court did not issue Pantoja until after the trial occurred in this case and thus the trial court did not have the benefit of Pantoja when it decided this issue.

      . The Court also discussed the potential admissibility of the prior recantation under sections 90.610 and 90.405(2), Florida Statutes. The Court rejected the concept that a general false reporting exception existed under section 90.610, and the Court found that a false report was only admissible under this section if the person who made the false report was convicted of a felony or a misdemeanor involving dishonesty or false statement. Id. at 1096-97. The Court also found the recantation would be inadmissible under section 90.405(2) because the victim’s character is not an element or defense of the crime of sexual battery. Id. at 1097. Neither of these sections would be a basis for finding evidence of the victim’s recantation admissible in the instant case. While the state was correct that the evidence was not admissible under section 90.610, that section specifically notes that ”[n]othing in this section affects the admissibility of evidence under s. 90.404 or 90.608.” § 90.610(3), Fla. Stat. (2007).

      . As then Chief Justice Canady pointed out in a dissenting opinion, in Jaggers the past abuse allegations were not against the same person as the later allegations. Id. at 1101 (Canady, C.J., dissenting). However, the Pantoja plurality opinion mentioned this as an important factor.

      . Florida’s equivalent is found in section 90.403, Florida Statutes (2007).


text:
    ARCH SPECIALTY INSURANCE COMPANY, a subsidiary of Arch Insurance Company, Appellant, v. KUBICKI DRAPER, LLP, Appellee.
    No. 4D12-3560.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2014.
    Rehearing Denied May 23, 2014.

      Carlos E. Mustelier Jr. of Winget, Spa-dafora & Schwartzberg, LLP, Miami, for appellant.
    Christopher J. Lynch and Steven K. Hunter of Hunter, Williams & Lynch, P.A., Miami, for appellee.
   CIKLIN, J.

The appellant (the plaintiff below), Arch Specialty Insurance Company (“Arch Specialty”), appeals the final summary judgment entered in favor of the appellee law firm Kubicki Draper, LLP (“Kubicki”), after the trial court denied Arch Specialty’s motion to amend its complaint to correct its name. We find the trial court erred in denying the motion to amend for two reasons. First, the mistake in the naming of the plaintiff was a misnomer and the parties were all aware of the true identity of the party bringing suit. Second, Kubicki’s summary judgment submissions show identities of interests between the incorrectly named plaintiff and the plaintiff that should have been named. Accordingly, we reverse and remand for further proceedings. We decline to address the portion of the appeal challenging the award of attorneys’ fees as the trial court did not set an amount of fees; thus, the issue is not ripe for review. Winkelman v. Toll, 632 So.2d 130 (Fla. 4th DCA 1994).

Factual Background

Arch Specialty brought suit against Ku-bicki for legal malpractice and alleged the following.

In an underlying action, Kubicki defended an accounting firm in a civil action for accounting malpractice. In accordance with the terms of the contract of insurance entered into between Arch Specialty and its insured (the accounting firm), Arch Specialty retained Kubicki to provide legal counsel and representation to the account-mg firm. In 2007, after Kubicki withdrew from representing the accounting firm, the accounting firm settled the lawsuit that was brought against the accounting firm. Arch Specialty suffered damages by having to fund the accounting firm’s settlement in an amount which Arch Specialty suggests was negligently inflated due to Kubicki’s alleged legal malpractice.

In 2012, almost five years after the settlement agreement was entered, Kubicki moved for summary judgment, arguing that the plaintiff, Arch Specialty, was not the accurate entity name of the insurance company actually paying out the settlement. Thus, Kubicki asserted, Arch Specialty did not have standing to initiate the action. According to the motion for summary judgment, Arch Insurance Company (“Arch Insurance”) — and not Arch Specialty — was the company that actually paid the settlement and therefore was the entity that possessed the required standing.

Kubicki attached supportive exhibits to its motion which showed that Arch Insurance was the entity that insured the accounting firm and paid the settlement— not Arch Specialty. The exhibits also showed that Arch Insurance and Arch Specialty were incorporated in different states.

One of the exhibits was Arch Specialty’s application to transact business in Florida. The application’s cover letter provided that Arch Specialty is a “member of Arch Insurance Group.” In another exhibit, insurance policy information regarding the accounting firm was on letterhead with the heading “Arch Insurance Group,” followed by the subheading “Arch Insurance Company.” In fact, the exhibits reflect that Arch Insurance and Arch Specialty had some common directors and the same secretary with both companies using the same address in New York City. That address was also Arch Specialty’s mailing address and the address provided for most of Arch Insurance and Arch Specialty’s officers and directors. In other words, a “clear identity of interest” existed.

Arch Specialty requested leave to amend to reflect the correct name for the plaintiff. The court effectively denied the motion when it granted summary judgment for Kubicki, finding that “[t]here is no issue of fact that the Plaintiff, Arch Specialty Insurance Company, is the incorrect party to these proceedings and did not itself suffer any of the losses claimed.” The court held that there was no record evidence that Arch Specialty and Arch Insurance were the same company. The court concluded that “when the correct party is incorrectly named the matter may be resolved simply under the doctrine of misnomer but when the incorrect party is correctly named, the remedy is substitution of parties.” The court ultimately entered final summary judgment for Kubicki.

Analysis

On appeal, Arch Specialty argues the trial court abused its discretion by denying the motion to amend where Arch Specialty merely sought to correct a misnomer, and where even a substitution of parties would be permissible since the two insurance companies have an identity of interest. Kubicki argues that Arch Specialty sought to bring an entirely new party into the litigation after the statutory limitations period expired. Kubicki also contends that the identity of interest exception to the relation back rule does not apply where Arch Specialty was inexcusably neglectful and further where Kubicki did not lull Arch Specialty into believing it had named the correct plaintiff.

The entry of a summary judgment is reviewed de novo. Everett Painting Co. v. Padula & Wadsworth Constr., Inc., 856 So.2d 1059, 1061 (Fla. 4th DCA 2003) (citations omitted). “The standard of review applicable to a motion to amend a complaint ... is abuse of discretion.” G.B. Holdings, Inc. v. Steinhauser, 862 So.2d 97, 99 (Fla. 4th DCA 2003) (citations omitted). A trial court’s denial of a motion to amend to substitute parties is also reviewed for an abuse of discretion. Estate of Eisen v. Philip Morris USA, Inc., 126 So.3d 323, 327 (Fla. 3d DCA 2013) (citations omitted).

Florida Rule of Civil Procedure 1.190 governs amendments to pleadings. Paragraphs (c) and (e) are relevant here and provide the following:

(c) Relation Back of Amendments. When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.
(e) Amendments Generally. At any time in furtherance of justice, upon such terms as may be just, the court may permit any ... pleading ... to be amended or material supplemental matter to be set forth in an amended or supplemental pleading. At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.

“It is well-settled that the rule permitting amendments to pleadings, and the relation-back doctrine, are to be liberally construed and applied.” Eisen, 126 So.3d at 328 (citations omitted). In 1956, the Florida Supreme Court recognized that the rules of civil procedure were more liberal than the common law with respect to amended pleadings. Cabot v. Clear-water Constr. Co., 89 So.2d 662, 663-64 (Fla.1956). Further, the pleadings and the trial are intended to “arrive at the truth,” rather than to engage in a game in which the “technique of the maneuver captures the prize.” Id. at 664. “The general rule is: ‘An amendment which merely corrects a misnomer might well relate back to the date the complaint was originally filed but this relation back rule is inapplicable where the effect is to bring new parties into the suit.’ ” Francese v. Tamarac Hosp. Corp., 504 So.2d 546, 547 (Fla. 4th DCA 1987) (citation omitted).

In Cabot, the complaint named as the defendant a nonexistent corporation, “Clearwater Construction Company,” instead of the individual who owned the unincorporated company, “Robert M. Snyder, doing business as Clearwater Construction Company, not incorporated.” Id. at 663. The trial court denied the plaintiffs motion to amend to name the correct defendant and dismissed the complaint. Id. On appeal, the Florida Supreme Court found that an amendment under these circumstances did not constitute a new cause of action barred by the statute of limitations. Id. at 664-65. The court reasoned that the cause of action would remain the same and that the mistake was merely one of characterization or description of the defendant. Id. at 665.

Here, the named plaintiff and the plaintiff that should have technically been named were both legally existing entities. Where there is no doubt regarding the identity of the party intended to be named, it is not unfair or unjust to permit a plaintiff to correct its pleading particularly because the defendant suffers no prejudice. See St. John’s Hosp. & Health Ctr. v. Toomey, 610 So.2d 62, 64 (Fla. 3d DCA 1992) (finding amendment of plaintiff from hospital to hospital foundation was correction of a misnomer which related back to original complaint where the subject of the suit remained the same, and the defendant had actual notice who the intended plaintiff was).

Although Arch Specialty inserted an incorrect plaintiff name in its original complaint, there is no doubt that the identity of the intended plaintiff was the insurance company which came out of pocket to pay the agreed settlement amount. Arch Specialty sought merely to correctly name it. Allowing the amendment would not prejudice Kubicki because the cause of action would still squarely center on the alleged malpractice associated with Kubicki’s representation of the accounting firm.

Kubicki argues an amendment cannot relate back based on identity of interest if the failure to name the correct party is due to inexcusable neglect. The cases relied upon by Kubicki are factually distinguishable and we must decline to apply them here. Kubicki also contends that the amendment should not relate back because Kubicki did nothing to lull Arch Specialty into believing it had named the correct plaintiff in the original complaint. The cases relied on by Kubicki for this proposition are distinguishable as they do not involve amendments to simply correct a misnomer where there are clear identities of interest. See Lindsey v. H.H. Raulerson Jr. Mem’l Hosp., 505 So.2d 577 (Fla. 4th DCA 1987); Johnson v. Taylor Rental Ctr., Inc., 458 So.2d 845 (Fla. 2d DCA 1984); Michelin Reifenwerke, A.G. v. Roose, 462 So.2d 54 (Fla. 4th DCA 1984).

Given all of the circumstances discussed herein, we find the trial court erred in denying the motion to amend and entering summary judgment for Kubicki.

Reversed and remanded for further proceedings.

STEVENSON and KLINGENSMITH, JJ., concur.

      . The statute of limitations for most types of professional malpractice is two years from when the cause of action is or should have been discovered. § 95.11(4)(a), Fla. Stat. (2007).

      . Circumstances indicating such an "identity of interest” include the following: "[W]hen the companies (1) operate out of a single office; (2) share a single telephone line; (3) have overlapping officers and directors; (4) share consolidated financial statements and registration statements; (5) share the same attorney, and (6) receive service of process through the same individual at the same location.” Schwartz v. Wilt Chamberlain’s of Boca Raton, Ltd., 725 So.2d 451, 453 (Fla. 4th DCA 1999) (citation omitted).

      . Beltran v. Miraglia, 125 So.3d 855, 860 (Fla. 4th DCA 2013) (finding that an amended complaint did not relate back to filing of original complaint for limitation purposes where the plaintiff sought to add an entirely new party defendant and the record reflected that the defendant’s answer and the documents referenced in the plaintiff’s original complaint put the plaintiff on notice that it had mistakenly named the incorrect defendant); Rayner v. Aircraft Spruce-Advantage, Inc., 38 So.3d 817, 821 n. 2 (Fla. 5th DCA 2010) (affirming trial court's finding that amended pleading did not relate back to filing of original complaint, and noting that appellant's failure to join correct defendant was plaintiff’s fault, since the correct defendant identified itself as the proper party to sue before the statute of limitations expired).


author: TAYLOR, J.

text:
    U.S. BANK, N.A., Appellant, v. Deborah VOGEL, Diana Barzroodipour, and Chris Greaves, Appellees
    No. 4D13-2132.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2014.

      John H. Pelzer of Greenspoon Marder, P.A., Fort Lauderdale, for appellant.
    No appearance for appellees.
   TAYLOR, J.

In this mortgage foreclosure action, U.S. Bank appeals from an order denying its motion to vacate a foreclosure sale. Because it was undisputed that a mistake occurred, the trial court grossly abused its discretion in denying the motion to vacate. We reverse.

In 2012, the trial court entered a final judgment of foreclosure in the amount of $118,063.26 in favor of U.S. Bank. After two scheduled foreclosure sales were can-celled, the Palm Beach County circuit court rescheduled the foreclosure sale for April 16, 2013. On April 10, 2013, U.S. Bank sent its counsel instructions to bid on the property at the scheduled sale in amounts up to $51,000. However, due to the failure of counsel’s newly hired clerk to follow the usual procedures for providing notification and bidding instructions for the upcoming sale to counsel’s Post Judgment Foreclosure Supervisor (“Supervisor”), counsel failed to bid on the property on behalf of U.S. Bank at the April 16, 2013 sale. A third party purchaser, appel-lee Chris Greaves, bought the property at the sale for $35,200.

U.S. Bank timely objected and moved to set aside the foreclosure sale. In the motion, U.S. Bank argued that the property was sold for a grossly inadequate price which resulted from a mistake or irregularity connected with the sale. The motion was supported by the Supervisor’s affidavit, which recounted the series of mishaps and miscommunications that occurred before the foreclosure sale.

At the hearing on the motion to set aside the foreclosure sale, the purchaser’s counsel conceded that U.S. Bank met the requirement of demonstrating a mistake, but nevertheless maintained that U.S. Bank also needed to show that the foreclosure sale price was grossly inadequate. Counsel for U.S. Bank disagreed and cited this court’s en banc decision in Arsali v. Chase Home Finance, LLC, 79 So.3d 845 (Fla. 4th DCA 2012) (“Arsali 7”). In Ar-sali I, we held that a trial court could vacate a foreclosure sale on equitable grounds even when the adequacy of the bid price was not at issue. Id. at 848-49.

In response to U.S. Bank’s argument, the purchaser’s counsel seemed to suggest that this court was “unsure” of its decision in Arsali I, since we certified the issue to the Florida Supreme Court. The purchaser’s counsel also attempted to distinguish Arsali I, claiming that Arsali I presented “a different set of facts because the price wasn’t really the issue,” whereas in this case the inadequacy of the price was “obviously an issue” because U.S. Bank’s motion primarily argued the inadequacy of the sales price.

The trial court orally denied the motion to set aside the foreclosure sale and later entered a written order overruling the objection to the sale. U.S. Bank appealed the order.

On appeal, U.S. Bank argues that the trial court grossly abused its discretion in refusing to vacate the foreclosure sale where there was undisputed evidence— and a concession by the purchaser — of a mistake on the part of U.S. Bank’s counsel. We agree.

The standard of review of a trial court’s ruling on a motion to set aside a foreclosure sale is whether the trial court grossly abused its discretion. Long Beach Mortg. Corp. v. Bebble, 985 So.2d 611, 613 (Fla. 4th DCA 2008). “[A]n equity judge considering whether to set aside a foreclosure sale has a large discretion which will only be interfered with by the appellate court in a clear case of injustice.” Id. (citation and internal quotation marks omitted). However, the issue of whether the trial court properly applied the law is reviewed de novo. See Pompano Beach Cmty. Redev. Agency v. Holland, 82 So.3d 1034,1036 (Fla. 4th DCA 2011).

In Arsali v. Chase Home Finance LLC, 121 So.3d 511 (Fla.2013) (“Arsali 77”), which was decided during the pendency of this appeal, the Florida Supreme Court held that proof of an inadequate bid price is not a necessary requirement in an action to set aside a judicial foreclosure sale. Id. at 514. Quoting from its prior decision in Moran-Alleen Co. v. Brown, 98 Fla. 203, 123 So. 561 (Fla.1929), the supreme court explained: “On the question of gross inadequacy of consideration, surprise, accident, or mistake imposed on complainant, and irregularity in the conduct of the sale, this court is committed to the doctrine that a judicial sale may on a proper showing made, be vacated and set aside on any or all of these grounds.” Id. at 515 The supreme court clarified that when it decided Arlt v. Buchanan, 190 So.2d 575 (Fla.1966), it “was not then establishing the basis for a test, purported by some of the district courts, that should be applied to judicial foreclosure sale set aside actions when the adequacy of the bid price is at issue.” Id. at 516.

Finding that no conflict exists between Brown and Arlt, the supreme court reemphasized that a judicial sale may, on a proper showing, be vacated and set aside on any or all equitable grounds. Id. at 515-18. The supreme court therefore approved of the result in Arsali I to the extent that we affirmed the trial court’s order vacating the judicial sale. Id. at 519. But the supreme court disapproved of our attempt to reconcile Brown and Arlt as establishing two separate tests that should be applied in actions to set aside a judicial sale, depending upon whether inadequacy of the bid price was at issue. Id. at 514-17, 520.

In light of the supreme court’s decision in Arsali II, it is now abundantly clear that proof of an inadequate bid price is not a necessary requirement in an action to set aside a judicial foreclosure sale. Instead, a judicial sale may be vacated on a showing of any equitable ground.

One such equitable ground for vacating a judicial sale is mistake. A mistake sufficient to set aside a judicial sale is shown where the owner became deprived of an opportunity to bid at the sale when, because of inadvertence or a mistake, an attorney who was to represent the owner there for that purpose was not present. Kerrigan v. Mosher, 679 So.2d 874, 875 (Fla. 1st DCA 1996).

Here, the purchaser is bound by his counsel’s concession that U.S. Bank was deprived of an opportunity to bid at the sale as a result of a mistake. See Holub v. Holub, 54 So.3d 585, 587 (Fla. 1st DCA 2011) (a party is bound by a factual concession made by that party’s attorney before a judge in a legal proceeding); U.S. Bank Nat’l Ass’n v. Bjeljac, 43 So.3d 851, 853 (Fla. 5th DCA 2010) (the question of whether the bank’s failure to have a representative present at the sale was the result of a mistake is inherently a factual question).

The breakdown in communication at the law firm representing U.S. Bank is the type of mistake that can justify vacating the foreclosure sale. See Long Beach, 985 So.2d at 614-15 (trial court grossly abused its discretion in failing to set aside foreclosure sale where the lender was the “innocent victim of the mistakes of its attorneys and agents”); cf. also Fernandez v. Suburban Coastal Corp., 489 So.2d 70, 71 (Fla. 4th DCA 1986) (affirming order vacating judicial sale where the lender acted diligently to protect its interests by employing an abstract company to attend the sale, but the abstract company inadvertently failed to attend the sale); Van Delinder v. Albion Realty & Mortg., Inc., 287 So.2d 352, 353 (Fla. 3d DCA 1973) (affirming order setting aside $50 foreclosure sale when owner’s attorney mistakenly failed to attend).

In sum, because the purchaser’s counsel conceded below that U.S. Bank established a mistake and his only argument was that the sale price was not grossly inadequate, the trial court grossly abused its discretion in denying the motion to vacate. Accordingly, we reverse and remand with directions to grant the motion to vacate.

Reversed and Remanded.

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

      . Because the order is appealable as a discrete final order, we have jurisdiction under Florida Rule of Appellate Procedure 9.030(b)(1)(A). See Popescu v. Laguna Master Assn, 126 So.3d 449, 450 (Fla. 4th DCA 2013).