author: GERBER, J.

text:
    Donald WENDT, Kenny Wendt and Clarke Warne, Appellants, v. LA COSTA BEACH RESORT CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 4D08-2482.
    District Court of Appeal of Florida, Fourth District.
    June 17, 2009.
    Rehearing Denied Sept. 3, 2009.

      Keith T. Grumer of Grumer & Macaluso, P.A., Fort Lauderdale, for appellants.
    Scott M. Zaslav and Michael W. Mos-kowitz of Moskowitz, Mandell, Salim & Simowitz, P.A., Fort Lauderdale, for ap-pellee.
   GERBER, J.

Appellants challenge a trial court order dismissing with prejudice their action for indemnification. We affirm because appellants cannot state such a cause of action under the circumstances of this case.

Appellee, La Costa Beach Resort Condominium Association, Inc., operates a residential time share complex. Appellants, Donald Wendt, Kenny Wendt, and Clarke Warne, are former directors of the association. The association sued the directors for breach of fiduciary duty for allegedly misappropriating time share weeks for their own. benefit. A jury found that the directors breached their fiduciary duties and that the association’s damages were $275,000. On the directors’ counterclaim, the jury found that the association breached an implied contract with the directors and that the directors’ damages, collectively, were $57,000. The directors filed a motion for new trial, which the trial court granted.

The directors then filed a separate complaint against the association, seeking contractual and statutory indemnification for having to incur attorney’s fees and costs to defend the association’s suit. The directors based their contractual indemnification claim upon the association’s bylaws at article XII, entitled “Indemnifications”:

The Association shall indemnify every Director ... against all loss, cost and expense reasonably incurred by him in connection with any action, suit or proceeding to which he may be made a party by reason of his being or having been a Director ... of the Association, except as to matters wherein he shall be finally adjudged in such action, suit or proceeding, to be liable for or guilty of gross negligence or willful misconduct ....

The directors based their statutory indemnification claim upon various provisions of section 607.0850, Florida Statutes (2007), entitled “Indemnification of officers, directors, employees, and agents.” That statute allows a director to request a court to order a corporation to indemnify a director if the director reasonably incurs expenses, including counsel fees, in connection with any proceeding by reason of having been a director. According to subsection (1), the director must show that he or she acted in good faith and in a manner the director reasonably believed to be in, or not opposed to, the best interests of the corporation. Subsection (7) provides that the director shall not be entitled to indemnification if the director violated a criminal law, derived an improper personal benefit, or engaged in willful misconduct or a conscious disregard for the best interests of the corporation in certain proceedings. Subsection (9)(c), however, states that a court may order indemnification if the court determines that the director is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, regardless of whether such person met the standard of conduct set forth in subsections (1) or (7).

The association filed a motion to dismiss the directors’ indemnification action, arguing that the complaint failed to state a cause of action for either contractual or statutory indemnification, and that the directors were required to have filed those claims as compulsory counterclaims in the original lawsuit. In a brief order, the trial court agreed with the association’s arguments and dismissed the directors’ action with prejudice. The directors appeal that order to this court.

Our review is de novo. See Wallace v. Dean, 3 So.3d 1035, 1045 (Fla.2009) (“We review de novo the dismissal of a complaint for failure to state a cause of action.”); Whigum v. Heilig-Meyers Furniture, Inc., 682 So.2d 643, 646 (Fla. 1st DCA 1996) (a trial court’s characterization of an action as a compulsory counterclaim presents a pure issue of law which must be resolved by the de novo standard of review). “In reviewing an order granting a motion to dismiss, this court’s gaze is limited to the four corners of the complaint.” Goodall v. Whispering Woods Ctr., L.L.C., 990 So.2d 695, 697 (Fla. 4th DCA 2008). “The reviewing court ‘must accept the allegations of the complaint as true, but do[es] not defer to the trial court’s conclusions regarding the sufficiency of the allegations.’ ” Jimenez v. Cmty. Asphalt Corp., 968 So.2d 668, 670 (Fla. 4th DCA 2007) (citation omitted). “In other words, a ‘dismissal should be granted only when it has conclusively been demonstrated that plaintiff can prove no set of facts whatsoever in support of the cause of action.’ ” Id. (citation omitted).

The directors cannot state an action for indemnification under the circumstances of this case. “Indemnity is a right which inures to one who discharges a duty owed by him, but which, as between himself and another, should have been discharged by the other and is allowable only where the ivhole fault is in the one against whom indemnity is sought.” Houdaille Indus., Inc. v. Edwards, 374 So.2d 490, 492-93 (Fla.1979). “It shifts the entire loss from one who, although without active negligence or fault, has been obligated to pay, because of some vicarious, constructive, derivative, or technical liability, to another who should bear the costs because it was the latter’s wrongdoing for which the former is held liable.” Id. at 493. “Stated differently, an indemnity right exists when one is left open to liability due to the wrongful acts of another.” Time Ins. Co. v. Neumann, 634 So.2d 726, 729 (Fla. 4th DCA 1994). The classic example of an indemnity action is when a party held vicariously liable to a third person seeks recovery from another party whose action caused the damage. Safecare Med. Ctr. v. Howard, 670 So.2d 1020, 1022 (Fla. 4th DCA 1996).

Here, the directors have not alleged that they have discharged a duty which the association should have discharged, that they have been left open to liability due to the association’s wrongful acts, or that they have been held vicariously liable to a third person and seek recovery from the association whose action caused the damage. Rather, the directors, wholly ignoring the definition of “indemnity,” have sought to transform the remaining language in bylaws article XII and section 607.0850 into a vehicle for recovering their attorney’s fees and costs if they become the prevailing party in the association’s suit for breach of fiduciary duty. The trial court correctly dismissed the directors’ attempt to engraft that interpretation upon the bylaws and the statute.

The trial court’s decision is consistent with prior decisions of this court and our supreme court. See Century Vill., Inc. v. Chatham Condo. Ass’ns, 387 So.2d 523, 524 (Fla. 4th DCA 1980) (“It is quite obvious that the indemnification clause was not intended to apply to actions between the lessor and lessees, but rather to claims of third parties against the lessor.”); Penthouse N. Ass’n v. Lombardi 461 So.2d 1350, 1352-53 (Fla.1984) (“The fact that this is an action for breach of fiduciary duty and unjust enrichment further convinces us that the lessors indemnification argument must fail.”); Old Port Cove Prop. Owners Ass’n v. Ecclestone, 500 So.2d 331, 336 (Fla. 4th DCA 1986) (“We are convinced that the reasoning of Penthouse and Century Village applies to the facts of this case.”).

The directors argue that two cases from this court recognize a right to indemnification in actions between a corporation and its directors. Those cases do not stand for that proposition. See O’Brien v. Precision Response Corp., 942 So.2d 1030, 1032-33 (Fla. 4th DCA 2006) (pursuant to section 607.0850, trial court should have awarded attorney’s fees from corporation to chief operating officer who successfully defended claims which third party asserted against him); Hill v. Palm Beach Polo & Country Club Prop. Owners Ass’n, 885 So.2d 879, 880-81 (Fla. 4th DCA 2004) (collateral estoppel precluded property owner from bringing action against property owners’ association to recover litigation expenses pursuant to association’s bylaws).

In reaching today’s decision, we certify conflict with the First District’s opinion in Turkey Creek Master Owners Ass’n v. Hope, 766 So.2d 1245 (Fla. 1st DCA 2000), which states:

We note that section 607.0850 is more likely to be applied when [a] corporate employee or director is sued by a third party in relation to the actions of the employee or director as a corporate agent. In such a case, the corporate employer may be required to indemnify the agent for the expenses of his or her defense. However, the statute also provides for indemnification in a case such as this one ivhere a corporation has sued its own agent. In this situation, the corporation faces the possibility of being required to pay the legal fees and expenses of the very party it is suing, and it is therefore especially important to determine whether the circumstances justify a finding that the agent is reasonably entitled to indemnification for attorney’s fees.

Id. at 1247 (emphasis added).

The directors contend that they should have been afforded an opportunity to amend their complaint to allege additional facts to support their cause of action. Because any attempt to amend the complaint to state the requisite allegations for an indemnification action would be futile, the trial court properly entered the dismissal with prejudice. See Fields v. Klein, 946 So.2d 119, 121 (Fla. 4th DCA 2007) (“Leave to amend should not be denied unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile.”).

Because the trial court rightly found that the directors’ complaint for contractual and statutory indemnification did not state a cause of action, it is not necessary for this court to address the trial court’s alternative ruling that the directors were required to have filed those claims as compulsory counterclaims in the original lawsuit.

Affirmed.

FARMER and HAZOURI, JJ., concur.


source: Caselaw Access Project

author: CIKLIN, J.

license: Public Domain

text:
    L. Scott FRAZIER, David R. Ager, Allison V. Ager, Sean M. Crosby, Donald Norris, Douglas Galanter, Patrick Sutton, Robert Arenth, Jessie Mauerer, Jonathan Debie, David W. Brouwer, Valery P. Brouwer, Elizabeth Wright, James E. Hoskins, Deborah A. Hoskins, Richard Lemon, Nellie Lemon, Kara Noble, Neville Anderson, Donald Dixon, Mickey Lee Dixon, Lockcosta, LLC, and Locrob Investments, LLC, Appellants, v. Andre DREYFUSS; The Salem Law Group, P.A.; Salem Saxon, P.A.; and Lydia Ardon, Appellees.
    No. 4D08-1619.
    District Court of Appeal of Florida, Fourth District.
    June 17, 2009.
    Kevin C. Kaplan and Jeffrey B. Crockett of Coffey Burlington, Miami, for appellant.
    Jeffrey L. Hochman and Tamara M. Serudders of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale, for appellee Andre Dreyfuss.
   CIKLIN, J.

The appellants, the plaintiffs below, appeal from an order awarding attorney’s fees against them in favor of the appellee following the trial court’s dismissal of their action for failure to arbitrate their claims. We affirm because the appellee was the prevailing party under the count alleging securities fraud.

L. Scott Frazier and others (“buyers”) alleged in a third amended complaint that they bought thirteen vacation bungalows at a project known as Hermosa Paradise in Costa Rica. Appellee, Andre Dreyfuss (one of the original defendants below) was the president of Hermosa Paradise, the entity responsible for the development, promotion, marketing and advertising of the project (“seller”). The buyers believed they were purchasing a viable interest in Hermosa Paradise but later discovered that the subject property was public land allegedly owned by the Costa Rican government which, they assert, had little or no value. The buyers sued various individuals including the seller alleging, among various causes of action, civil theft, conspiracy, misrepresentation, and most pertinent, securities fraud. The seller responded by filing a motion to dismiss and to compel arbitration, arguing that the contract entered into between the parties contained a provision which mandated arbitration of disputes before the Costa Rican-American Chamber of Commerce in Costa Rica. The trial court entered an order which compelled arbitration and abated the action. Because the buyers took no apparent action to arbitrate their claims following the court’s abatement order, the seller sought and obtained additional orders requiring the buyers to pursue arbitration. During a hearing regarding one of those orders, the buyers announced that they had elected not to pursue their claims in arbitration because of the expense associated with the retention of counsel in Costa Rica. Thereafter, the seller filed a motion to dismiss the third amended complaint. The buyers took no action to oppose the motion to dismiss and the trial court dismissed the pending lawsuit for failure to comply with court orders requiring arbitration. The buyers did not appeal the order of dismissal. Subsequently, the seller filed a motion seeking prevailing party attorney’s fees pursuant to Chapter 517, Florida Statutes. The trial court awarded fees pursuant to section 517.21K6).

The trial court also awarded appellate attorney’s fees to the seller. Because the seller concedes error on this point, we write nothing further other than to remand the matter to the trial court so it may enter a further order consistent with this opinion.

After the award of trial level attorney’s fees, the buyers filed a motion to vacate pursuant to rule 1.540, Fla. R. Civ. P., which the trial court denied.

On appeal, the buyers assert that the seller was not the prevailing party for purposes of a fee award. They assert that they merely made a financial decision not to pursue arbitration in Costa Rica and, in essence, abandoned their claims before either party was determined to have prevailed. The seller asserts that he was entitled to fees because he prevailed when he obtained the dismissal.

We affirm the trial court’s award of attorney’s fees based on Alhambra Homeowners Ass’n v. Asad, 943 So.2d 316 (Fla. 4th DCA 2006). There the Asads painted their house without permission from their homeowners’ association (“HOA”). The HOA filed a complaint for injunction and damages including the payment of a fine. The Asads moved for summary judgment on grounds that the HOA had not given a statutorily mandated notice to the Florida Department of Business Regulation before filing suit. Recognizing that the Asads were correct as to the notice condition precedent, the HOA filed a voluntary dismissal without prejudice. Ultimately, the HOA gave the required notice, refiled its suit and the parties mediated their dispute with the Asads repainting their house and paying the HOA-imposed fines. Nonetheless, the Asads moved for an award of attorney’s fees as to the original voluntary dismissal filed by the HOA, arguing they were the prevailing party. The trial court agreed and awarded the Asads prevailing party attorney’s fees which the HOA appealed. This court held that even though the HOA later refiled the same suit, the Asads were the prevailing party in the initial HOA-dismissed suit and thus entitled to fees.

Applying Alhambra, we agree that regardless of whether or not the buyers ever instituted arbitration proceedings in Costa Rica or otherwise decided not to pursue their claims, the seller prevailed in the action when the case was dismissed. Although the buyers assert that such an award is “unjust” based upon the allegations of the third amended complaint, those allegations have never been subjected to any requirements of proof.

We have considered the other arguments raised by the buyers on appeal and find them to be without merit.

Affirmed in part; reversed in part.

GROSS, C.J. and WARNER, J., concur.

      . Section 517.211(6), Florida Statutes (2007) provides:
      In any action brought under this section, including an appeal, the court shall award reasonable attorney's fees to the prevailing party unless the court finds that the award of such fees would be unjust.

      . Rule 1.540(b), Fla. R. Civ. P., provides in pertinent part:
      (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged ...

      . Section 517.211(6), Fla. Stat. (2007) provides that the prevailing party is entitled to an award of attorney's fees unless such an award would be "unjust.”


author: ORFINGER, J.

text:
    STATE of Florida, Appellant, v. Bradley James VANDERHOFF, Appellee.
    No. 5D08-2507.
    District Court of Appeal of Florida, Fifth District.
    June 19, 2009.

      Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellee.
   ORFINGER, J.

The State appeals the sentence imposed on Bradley James Vanderhoff after he entered an open no contest plea to three counts of attempted murder of a law enforcement officer. The State argues that the trial court erred by imposing downward departure sentences and by failing to apply the twenty-year minimum mandatory prison sentence required by the 10/20/ Life statute, section 775.087(2), Florida Statutes (2005). We reverse, as we con-' elude the trial court was without authority to waive the twenty-year minimum mandatory sentence mandated by statute.

The information, charging Vanderhoff with three counts of attempted first-degree murder of a law enforcement officer, alleged that he possessed and discharged a firearm in the course of committing the crimes. As a result, the twenty-year minimum mandatory provision of section 775.087(2) was implicated. Immediately prior to jury selection, Vanderhoff entered an open plea to the court after there was a discussion concerning the potential sentences he faced if convicted:

THE COURT: If he is convicted or [sic] charged, he is facing 10/20/Life, he is facing life in prison; right? Minimum of 10; isn’t that right, [State]?
THE STATE: Sir?
THE COURT: There is a minimum of 10?
DEFENSE COUNSEL: A minimum of 20, Your Honor, because there is a [firearm] discharge.
THE STATE: 20, Judge. And that’s — on the score sheet, he has no priors, Judge. By the score sheet, it’s 117. But that doesn’t take into account 10/20/Life. No prior criminal history, Judge.
THE COURT: He has what?
THE STATE: He has no prior criminal history, Judge.
THE COURT: But you can’t use an isolated incident like this to go below the guidelines; right?
THE STATE: Actually, you can, Judge. If it’s — Judge, if [Defense counsel] showed you it was an isolated incident, that it ivas unsophisticated in its execution, and he had remorse, you could deviate, and you could go below.
THE COURT: Anyway, Y’all want to go to trial, I guess; don’t you?
THE STATE: Judge, let me tell you this; From where I’m sitting, I icnoiv it’s isolated. I know it’s unsophisticated. The only thing that I think [Defense counsel] would have to prove to you is remorse, and I’ll just leave it at that.
DEFENSE COUNSEL: ... I think Mr. Vanderhoff is in a position now with the understanding, with some of our off-record discussions, that he may be prepared to tender a plea this afternoon with the understanding by all the parties, Judge that you will not impose a sentence at this point. We will order a presentence investigation. We would schedule a sentencing at a later date when the Court has the ability to certainly review what the Probation and Parole Department finds and recommends. And we would be able to subpoena what witnesses we need for the board at that sentencing hearing, as well. And allow the State to do the same on their behalf, if that’s what they want to do.
Is that right, Mr. Vanderhoff?
THE DEFENDANT: Yes, Sir.
DEFENSE COUNSEL: Is that what you want to do here this afternoon, sir?
THE DEFENDANT: I want to be home with my kids. I want to be able to raise my kids.
DEFENSE COUNSEL: Let me first preface this by saying this: There are no agreements as to what any type of sentence this Court might impose. You understand that?
THE DEFENDANT: Yes, sir.
DEFENSE COUNSEL: The Court will rely on the presentence investigation report that’s ordered, that’s done by the Department of Probation and Parole, and you, in fact, assist in getting that done through Probation. And the Court will take into consideration any other evidence or witnesses that we want to present on your behalf prior to the Court sentencing you. Do you understand that?
THE DEFENDANT: Yes.
DEFENSE COUNSEL: You understand that this Court has the authority and, power to sentence you how it sees fit. If there are mitigating circumstances that the Court finds, he may sentence you [sic] or he may sentence you up to life in prison. You understand that, as well?
THE DEFENDANT: Yes.
DEFENSE COUNSEL: And that pretty much goes from (sic) anything in between. Now you score, as the State’s indicated, a minimum of 117 months in the Department of Corrections. There is a mandatory sentence of 20 years that applies to each one of those counts. Do you understand that?
THE DEFENDANT: Yes.
DEFENSE COUNSEL: And ive have talked about presenting some mitigating circumstances to the Court. The court may find those mitigating circumstances. They may find that there are no mitigating circumstances to sentence you, other than pursuant to the guidelines and/or the statutes that deal with the 10/20/Life minimum mandatory.
THE DEFENDANT: Right.
DEFENSE COUNSEL: Is that your desire? Do you want to tender a plea open to the Court at this time:
THE DEFENDANT: I’m scared to death, but yes.
THE COURT: ... We have also — the way the charges are, it’s a 10/20/Life, and the State, I believe, concedes there are two mitigating factors, lack of criminal history—
DEFENSE COUNSEL: Well, Judge, I don’t want to speak for them, but what they indicate—
THE STATE: I’ll say it. One of the ways you can do a doimwurd departure is if you find three things: Isolated incident, it was unsophisticated in its execution, and he sltows remorse.
I can tell you it is isolated. No criminal history. Nothing like this in his past. And he had no plan. It ivas ■unsophisticated. What ivas he going to do naked after taking a shot? He wasn't going anywhere.
THE COURT: Anyway, I guess those are three factors, and that will be addressed later on.
THE COURT: Okay. Has anyone led you to believe that I or the sentencing judge is going to do — impose any particular sentence/
THE DEFENDANT: No, sir.
THE COURT: I mean, it could range froin probation to community control up to life imprisonment, basically.
THE DEFENDANT: I understand, sir.
THE COURT: And you believe this to be in your best interest under the circumstances?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. All right. Sir, your plea is accepted....

(Emphasis added).

Despite the State’s earlier advice to the contrary, at the sentencing hearing held several weeks later, the State informed the trial court that it was required to impose the twenty-year minimum mandatory sentence mandated by section 775.087(2). Notwithstanding the statute, the trial court sentenced Vanderhoff to twelve years of probation, explaining:

THE COURT: ... All right. You know this is a very difficult case. And it’s troubling because of the seriousness of the charges. But we do have a better understanding I think now what — what happened and some of the reasons perhaps why it happened. Mental health issues obviously come to, you know, come into play. Fortunately, no one was seriously injured.
You were able to remain on bond apparently since this incident without violating any condition of your bond, which is important to the Court. But, also, it’s quite frankly, I mean, to be honest with you, I think it’s in your favor because I think if you were still incarcerated, I mean, that would — probably the Court probably would feel a little different, too. I mean, you do score — you could go to prison for life on this. There are some reasons the Court finds to depart from the guidelines. And it says the offense was committed, in an unsophisticated ■manner, and was an isolated incident for which, the defendant has shown remorse. That’s one of the statutory reasons. Also, it does speak of mental disorder but — amenable treatment and physical — some problems to some extent. I’m giving some weight to that also.
And then if you violate it, you are going to end up in prison more than likely. You are still facing a prison sentence of up to 10/20/Life sentence.

(Emphasis added). The State again objected to the trial court’s failure to impose the twenty-year minimum mandatory sentence required by section 775.087, Florida Statutes, and this appeal followed.

Because Vanderhoff discharged a firearm in the commission of the attempted murders, section 775.087(2)(a)2., Florida Statutes (2005), required the trial court to impose a twenty-year mandatory minimum sentence on each count. Arutyunyan v. State, 863 So.2d 410, 412 (Fla. 4th DCA 2003); see § 775.087(2)(e), Fla. Stat. (2005) (“If the minimum mandatory terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the mandatory minimum sentence must be imposed .... ”); § 775.087(2)(d), Fla. Stat. (2005) (“It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms ... be punished to the fullest extent of the law .... ”); see generally State v. Calzada-Padron, 708 So.2d 287, 287 (Fla. 2d DCA 1996) (recognizing that section 775.087 contains no provision permitting trial court to exercise discretion in imposing three-year minimum mandatory prison sentence once defendant has been convicted of certain enumerated felonies).

The 10/20/Life statute, section 775.087(2), Florida Statutes (2005), re-, moved most sentencing discretion from the judicial branch, and instead, placed it in the executive branch by establishing a mandatory minimum sentencing scheme. See Green v. State, 792 So.2d 643 (Fla. 1st DCA 2001); see also § 775.087(2), Fla. Stat. (2005); § 27.366(1), Fla. Stat. (2005). The discussion that occurred between the State, defense counsel and the trial court prior to Vanderhoffs plea, makes it clear that the parties incorrectly assumed that a mitigating factor that would justify a downward departure under the Criminal Punishment Code, could also allow the trial court to waive a minimum mandatory sentence. This is error, as only the State Attorney has the discretion to waive the minimum mandatory sentence implicated here. See §§ 27.366, 775.087(5), Fla. Stat. (2005). While the State certainly contributed to the confusion that preceded the entry of Vanderhoffs plea, we cannot say it intentionally waived the minimum mandatory sentence. Further, the State corrected its earlier misadvice to the court prior to sentencing. At that point, Van-derhoff should have been permitted to withdraw his plea, either on his defense counsel’s motion or the court’s own initiative.

Florida Rule of Criminal Procedure 3.172(c)(1) requires the trial judge to determine that a defendant understands the reasonable consequences of the plea, including “the maximum possible penalty, and any mandatory minimum penalty provided by law.... ” See Ashley v. State, 614 So.2d 486, 488 (Fla.1993). The trial court clearly misinformed Vanderhoff, in part due to the State’s and defense counsel’s advice, that it could depart from the 10/20/ Life statute and sentence him from “probation to community control up to life imprisonment.” Consequently, Vanderhoff should be allowed to withdraw his plea. See, e.g., Boles v. State, 827 So.2d 1073, 1074 (Fla. 5th DCA 2002) (observing that generally, when defendant is incorrectly advised of maximum sentence, he should be allowed to withdraw plea); Mantle v. State, 592 So.2d 1190, 1193 (Fla. 5th DCA 1992) (explaining that if record reveals reasonable basis to conclude defendant was misled by statement at plea hearing made by judge or by one or both attorneys, he should be permitted to withdraw plea); see also Fernandez v. State, 782 So.2d 944 (Fla. 4th DCA 2001) (vacating defendant’s convictions and sentences where record revealed defendant was misled by judge that he was facing 40 years as habitual offender when actually facing no more than 30 years when he pled no contest).

We reverse the sentences imposed and remand this matter for further proceedings consistent with this opinion.

REVERSED and REMANDED.

PALMER, C.J. and LAWSON, J., concur.

      . Because we conclude that the trial court’s failure to impose the minimum mandatory sentence required by section 775.087(3) is dispositive, we do not consider the downward departure from the sentencing guidelines.


text:
    Samuel RIVERA, Appellant, v. HAMMER HEAD CONSTRUCTION & DEVELOPMENT, etc., Appellee.
    Nos. 5D08-549, 5D08-1672.
    District Court of Appeal of Florida, Fifth District.
    June 19, 2009.
    Rehearing Denied Aug. 7, 2009.
    Jack W. Shaw, Jr., of Jack W. Shaw, Jr., P.A., Winter Park, for Appellant.
    Peter F. Carr, Jr., of The Carr Law Firm, P.A., Orlando, for Appellee.
   ORFINGER, J.

Samuel Rivera hired Hammer Head Construction and Development Corporation to make repairs and improvements to a townhouse he owned. After the project was substantially completed, a dispute arose between the parties concerning the amount owed to Hammer Head. As a result, Hammer Head recorded a claim of lien, and then filed suit seeking damages and to foreclose its lien. Hammer Head’s complaint alleged that “all conditions precedent to the filing of this action have occurred, have been performed, or have otherwise been waived or excused.” Rivera’s answer and affirmative defenses responded that he was “without knowledge” as to the accuracy of that allegation.

At trial, the evidence demonstrated that Hammer Head never provided a final contractor’s affidavit to Rivera. At the conclusion of Hammer Head’s case-in-chief, Rivera moved to involuntarily dismiss the lien foreclosure claim, arguing that Hammer Head’s failure to furnish a final affidavit invalidated its lien rights. The trial court denied Rivera’s motion, concluding that Rivera had waived the defense by failing to assert it specifically and with particularity. After judgment was entered in Hammer Head’s favor on both its contract and foreclosure claims, this appeal followed. For the reasons discussed hereafter, we affirm.

Sections 713.05 and 713.06(3)(d), Florida Statutes (2008), provide that when final payment becomes due under a direct contract, the contractor must give the owner a final payment affidavit in substantially the form prescribed by the statute. Section 713.06(3)(d)l. further provides that “[t]he contractor shall have no lien or right of action against the owner for labor, services, or materials furnished under the direct contract while in default for not giving the owner the affidavit....” Relying on this Court’s decision in Fort v. Lopez, 580 So.2d 227 (Fla. 5th DCA 1991), Rivera argues that Hammer Head’s failure to provide a final payment affidavit is fatal to its claim. In Fort, we wrote:

[Delivery of the required contractor’s affidavit is a condition precedent to the perfection of a mechanics’ lien in favor of the contractor, the occurrence of which must be alleged in the complaint in every action brought by a direct contract contractor to establish and foreclose a mechanics’ lien. The failure to provide such contractor’s lien is not a condition subsequent which must be asserted by the defendant owner as an affirmative defense. A complaint in an action by a contractor in privity with the owner, to establish and foreclose a mechanics’ lien which does not allege the delivery of the contractor’s affidavit, fails to state a cause of action.

580 So.2d at 228.

Curiously, Fort made no mention of two earlier cases on point, Davie Westview Developers Inc. v. Bob-Lin, Inc., 533 So.2d 879 (Fla. 4th DCA 1988), and Hodusa Corp. v. Abray Construction Co., 546 So.2d 1099 (Fla. 2d DCA 1989). In Davie, the court held that while a contractor’s affidavit is a condition precedent to bringing an action to foreclose a construction lien, the failure of the defendant property owner to plead specifically and with particularity the contractor’s non-performance of that condition as required by Florida Rule of Civil Procedure 1.120(c) constitutes a waiver of the condition or defense. Similarly, the Hodusa court recognized that furnishing an affidavit is a condition precedent to bringing an action to foreclose a mechanic’s lien, but failure to do so does not create a jurisdictional defect. Hodusa, 546 So.2d at 1101 (citing Holding Elec., Inc. v. Roberts, 530 So.2d 301 (Fla.1988)). The court also held that Hodusa was required under rule 1.120 to plead nonperformance of the condition precedent ‘specifically and with particularity’ and its failure to do so waived its right to assert that defense. Id. In Ingersoll v. Hoffman, 589 So.2d 223 (Fla.1991), the supreme court implicitly resolved the conflict by adopting the rule articulated in Hodusa and Davie, writing that “[i]f ... the defendant does not deny the satisfaction of the preconditions specifically and with particularity, then the plaintiffs allegations are assumed admitted, and the defendant cannot later assert that a condition precedent has not been met.” 589 So.2d at 225 (quoting Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992, 1010 (11th Cir. 1982)).

Thus, we conclude that Fort has been abrogated by Ingersoll. Consequently, the trial court was correct when it denied Rivera’s motion for an involuntary dismissal of Hammer Head’s lien foreclosure claim. We find no merit in the remaining issues asserted by Rivera. The judgment is affirmed.

AFFIRMED.

PALMER, C.J. and SAWAYA, J., concur.


author: KAHN, J. DAVIS, J.,

text:
    Barbara COOKE, Appellant, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, a foreign insurance corporation; United Parcel Service, Inc.; Hector L. Ramirez, and Carrera Transport, Inc., Appellees.
    No. 1D08-3602.
    District Court of Appeal of Florida, First District.
    June 22, 2009.
    Rehearing Denied July 28, 2009.

      Marian S. Lee and Mark A. Avera of Avera & Smith, LLP, Gainesville, for Appellant.
    Carl B. Schwait and Elizabeth M. Collins of Dell Graham, P.A., Gainesville, for Appellee Nationwide Mutual Fire Insurance Company; and Melisa L. Bodnar of Law Office of Glenn G. Gomer, Tampa, for Appellees United Parcel Service, Inc. and Hector L. Ramirez.
   KAHN, J.

Appellant Barbara Cooke seeks review of an adverse final summary judgment dismissing a suit arising from the death of her husband, Gary Cooke. The claim here involves multiple vehicles and two accidents that occurred on a stretch of southbound Interstate 75 in Alachua County. We reverse because the negligence, if any, of appellant’s decedent was not an intervening and superseding cause acting to break the chain of causation, which appellant claims was initiated by the negligence of one or more of the appellees.

BACKGROUND

Gary Cooke died when his sport utility vehicle collided with the back of a flatbed truck driven by Robert Kindler, not a party to this appeal. Mr. Cooke was operating his vehicle at the posted speed limit of 70 m.p.h. Mr. Kindler, using downshifting, had slowed his truck to a speed of 20 to 30 m.p.h.

Farther south on Interstate 75, perhaps as far as one and one-half miles, but the precise distance not being shown in the present record, another accident had occurred earlier. Although the facts of this earlier accident (“first accident”) may be disputed later in this litigation, for purposes of summary judgment, we recite the facts in a light most favorable to appellant, who was the non-moving party in the trial court. The first accident occurred when appellee Hector Ramirez (Ramirez), operating a tractor-trailer owned by appellee United Parcel Service, Inc. (UPS), encountered, or nearly encountered, a phantom vehicle that entered the southbound lane in which Ramirez was operating. Ramirez steered the UPS truck into the emergency lane, striking another tractor-trailer owned by Carrera Transport, Inc., and properly parked in the lane. The impact scattered UPS packages across the southbound lanes of Interstate 75. A little more than an hour after the first accident, Mr. Cooke met his demise in the second accident when his vehicle collided with Mr. Kin-dler’s.

The record shows that as a result of the first accident, southbound traffic on Interstate 75 had slowed and backed up to the crest of a hill north of the scene of the first accident. Deputy Hanson of the Alachua County Sheriffs Office parked his patrol car in the southbound emergency lane, with the hill between his car and the scene of the first accident. Deputy Hanson switched on his warning lights and ignited three or four roadside flares. According to Hanson’s testimony, traffic continued to move at a high rate of speed southbound past the patrol car. Deputy Hanson observed that most vehicles did not begin to slow and apply their brakes until reaching the top of the hill, at which point the drivers of those vehicles would have been able to see the first accident and the traffic that had backed up as a result of the debris strewn across the highway.

Mr. Kindler was operating at just below the posted speed limit of 70 m.p.h. when he passed the Hanson patrol car. Kindler did not see the emergency flares previously deposited by Deputy Hanson. Nevertheless, Kindler had been notified on his citizens’ band radio of traffic backups and lane closures ahead of him. Accordingly, after passing the patrol car, Mr. Kindler switched on his four-way flashers and slowed by downshifting his truck. Ultimately, and upon reaching the crest of the hill north of the first accident and south of Deputy Hanson’s patrol car, Mr. Kindler was traveling between 20 and 30 m.p.h.

As Kindler approached the scene of the first accident, and perhaps as Kindler was cresting the hill, the vehicle driven by Mr. Cooke collided with Kindler’s truck. Expert testimony suggests that Mr. Cooke had not slowed, and was, in fact, traveling at the posted speed limit of 70 m.p.h. Although Deputy Hanson estimated that the second accident occurred only 180 yards north of the first accident, subsequent investigations put the intervening-distance at a higher figure, perhaps as great as one and one-half miles.

Mr. Kindler gave a bit more detail as to the traffic conditions on Interstate 75. He testified that at the point of the second accident, the center lane was moving at about 25 m.p.h., and the left lane was moving at a pace somewhat less than the normal highway speed. The right lane was void of traffic, because it was blocked ahead, owing to the first accident.

Mrs. Cooke brought a wrongful death action, alleging that her husband’s death had been caused by the negligence, or combined negligence, of the phantom vehicle, Ramirez, UPS, and Carrera Transport. Appellee Nationwide Mutual Fire Insurance Company, as the uninsured motorist carrier for the Cookes, stands in the place of the phantom vehicle. The trial court dismissed Carrera Transport as a party to this suit. After pretrial discovery, UPS and Ramirez moved for summary judgment, as did Nationwide. The trial court granted the motions with the following ultimate conclusion of law:

In this case, the slowing of traffic from the first accident, which resulted from an impact involving a vehicle owned by Defendant UPS (which was driven by Defendant HECTOR L. RAMIREZ) and a Carrera Transport vehicle and was allegedly initiated by the actions of a “phantom vehicle,” merely provided an occasion for Mr. Cooke’s negligence, which caused the second accident. This court finds, as a matter of law, that Mr. Cooke’s actions and omissions constituted an intervening and superseding cause that acted to break the chain of causation.

ANALYSIS

“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law.” Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “Thus, our standard of review is de novo.” Id. In resolving this appeal, we must determine whether the trial court properly found the actions of appellees did not, as a matter of law, proximately cause Mr. Cooke’s death. “[Wjhere reasonable persons could differ as to whether the facts establish proximate causation — i.e., whether the specific injury was genuinely foreseeable or merely an improbable freak — then the resolution of the issue must be left to the fact-finder.” McCain v. Fla. Power Corp., 593 So.2d 500, 504 (Fla.1992) (emphasis in original). A trial judge may take the matter of proximate causation from the fact-finder “only where the facts are unequivocal, such as where the evidence supports no more than a single reasonable inference.” Id.

The doctrine of intervening and superseding cause sometimes stands as a factor in the proximate causation analysis. Nevertheless, the existence of such an intervening cause — generally the agency, act, or negligence of another, not a defendant in the action — does not always insulate the original negligent actor. Without commenting upon whether the ultimate facts will demonstrate negligence on the part of either Ramirez or the phantom vehicle, we note that a negligent actor “is not absolved of liability when his conduct ‘sets in motion’ a chain of events resulting in injury to the plaintiff.” Gibson v. Avis Rent-A-Car Sys., Inc., 386 So.2d 520, 522 (Fla.1980). “If an intervening cause is foreseeable the original negligent actor may still be held liable. The question of whether an intervening cause is foreseeable is for the trier of fact.” Id.

In considering the subject of intervening cause, this court has explained that, for such cause to sufficiently absolve the negligent party, “it must be independent of the original negligence, and it must not be set in motion by the original negligence.” Loomis v. Howell, 604 So.2d 1241, 1243 (Fla. 1st DCA 1992). An intervening cause stands as a barrier between the original negligence and the ultimate injury only if it is “fully independent and unforeseeable.” Id. The law will not require that “the original tort-feasor foresee the precise injury or the precise manner in which an injury occurs; it is enough that the resulting injury is within the scope of risk created by the original tort-feasor.” Id.

In arguing the negligence of appellant’s decedent constituted an intervening and superseding cause, appellees rely heavily upon Department of Transportation v. Anglin, 502 So.2d 896 (Fla.1987), and its progeny. Appellant, urging reversal of the summary judgment order, relies upon the rule of law emanating from Gibson. We examine the teachings of each case.

In Anglin, the plaintiff operated a truck on a highway wet from excessive rainfall related to a hurricane. 502 So.2d at 897. As the truck crossed a railroad track and drove through a deep puddle of water, the engine sputtered and died. Id. Plaintiff and her passengers then attempted to restart the truck by pushing the vehicle and utilizing the manual transmission. Id. About fifteen minutes later, another vehicle headed in the opposite direction passed the stalled Anglin vehicle. Id. The other vehicle went a short distance, slammed on its brakes, spun around, and headed back toward the Anglin vehicle. Id. Unfortunately, the driver of the second vehicle failed to stop and crashed into the back of the Anglin truck, causing serious personal injury. Id. at 897-98. Anglin filed suit against the railroad company, which maintained the tracks, and against the Florida Department of Transportation, which maintained the roadway, alleging negligence of one or both of these defendants in maintaining the railroad crossing so that a puddle of accumulated water proximately caused plaintiff’s injuries in the later accident. Id. at 898.

The circuit court entered summary judgment in favor of the railroad and the Department, finding that the actions of the second motorist, who turned abruptly, returned to the scene, and lost control of his vehicle, “were independent, efficient intervening causes of the accident which broke the chain of causation between the defendants’ alleged negligence and the plaintiffs injury.” Id. This court reversed but the supreme court reinstated the defense summary judgment. Id. at 898-900. The supreme court explained that tort liability will not attach “for results which, although caused-in-fact by the defendant’s negligent act or omission, seem to the judicial mind highly unusual, extraordinary, bizarre, or, stated differently, seem beyond the scope of any fair assessment of the danger created by the defendant’s negligence.” Id. at 899 (quoting Stahl v. Metro. Dade County, 438 So.2d 14, 19 (Fla. 3d DCA 1983)). According to the supreme court’s analysis, the actions of DuBose, the second motorist, “were so far beyond the realm of foreseeability that, as a matter of law and policy, the petitioners cannot be held liable for the respondents’ injuries.... [I]t was not reasonably foreseeable that DuBose would act in such a bizarre and reckless manner.” Id. at 899-900.

One cannot read Anglin without noting the colorful language the court utilized to explain the negligence of DuBose, which the court saw as the immediate cause of Anglin’s injuries. The court characterized DuBose’s actions as “far beyond the realm of foreseeability,” “bizarre,” and “reckless.” Id. at 899-900. We understand the court’s use of those terms as suggesting the remoteness, in terms of foreseeability, of the intervening negligence of DuBose, when compared to the allegations of negligent maintenance of a railroad crossing. Although the Anglin opinion describes the rare situation where the question of intervening cause will be taken from the finder of fact, the court also conceded the general rule: “ ‘Given the debatable nature of proximate cause issues in most such cases, it is not surprising that the courts have held that such issues are generally for juries to decide using their common sense upon appropriate instructions, although occasionally, when reasonable people cannot differ, the issue has been said to be one of law for the court.’ ” Id. at 899 (quoting Stahl, 438 So.2d at 21).

While clearly bound by the rule of Anglin, this court has not been reluctant to distinguish that case in instances where its rule would not be appropriate. See, e.g., Dykes ex rel. Dykes v. City of Apalachicola, 645 So.2d 50, 53 (Fla. 1st DCA 1994) (characterizing the rule of Anglin as applicable “only when conduct obviously falls within ‘unusual, extraordinary or bizarre’ category”); Pamperin v. Interlake Cos., Inc., 634 So.2d 1137, 1139 (Fla. 1st DCA 1994); Tallahassee Furniture Co. v. Harrison, 583 So.2d 744, 756 (Fla. 1st DCA 1991) (“In order for an intervening cause to relieve the negligent party from liability, such intervening cause must be truly independent of and not set in motion by the original negligence.”). In another case from this court declining to apply the Anglin rule, we explained that the tidal judge may take from the fact-finder the question of foreseeability as it relates to proximate cause “ ‘only where the facts are unequivocal, such as where the evidence supports no more than a single reasonable inference.’ ” Deese v. McKinnonville Hunting Club, Inc., 874 So.2d 1282, 1287 (Fla. 1st DCA 2004) (quoting McCain, 593 So.2d at 504).

Urging that Anglin’s rule does not encompass the present facts, appellant directs us to Gibson and similar cases. Under such cases, where the supposed intervening cause is foreseeable, the original negligent actor may still be liable for the resulting injuries. See St. Fort ex rel. St. Fort v. Post, Buckley, Schuh & Jernigan, 902 So.2d 244 (Fla. 4th DCA 2005); Deese, 874 So.2d at 1287-88; Zwinge v. Hettinger, 530 So.2d 318 (Fla. 2d DCA 1988). We agree with appellant that the present case is more closely aligned with Gibson and its progeny than with Anglin.

In Gibson, one of the defendants, Frank Arata, stopped his vehicle for no apparent reason on an inner lane of the interstate highway. 386 So.2d at 521. A second automobile stopped behind Arata, and the driver of that automobile exited and began directing traffic around both stopped cars. Id. The ultimate plaintiff stopped his car a few feet from the second car, but was subsequently struck from behind by yet a fourth vehicle driven by a co-defendant, McNealy. Id. At trial, the presiding judge granted a directed verdict in favor of Arata on the theory that McNealy’s negligence served as an efficient intervening cause insulating Arata from any liability for injuries suffered by the ultimate plaintiff. Id.

After an affirmance by the Third District, Gibson v. Avis Rent-A-Car Sys., Inc., 362 So.2d 960 (Fla. 3d DCA 1978), the supreme court took jurisdiction and quashed the appellate decision. Gibson, 386 So.2d at 521-23. Apropos of the present case, the supreme court observed, “[0]ne who is negligent is not absolved of liability when his conduct ‘sets in motion’ a chain of events resulting in injury to the plaintiff.” Id. Accordingly, if an intervening cause, such as Mr. Cooke’s alleged negligence in the present case, is foreseeable, the original negligent actor may still be held liable. Id. The question of whether the intervening cause is foreseeable is for the trier of fact. Id.

We decide the present case under Gibson, because nothing in the chain of events leading to Mr. Cooke’s death strikes us as extraordinary, bizarre, or “ ‘beyond the scope of any fair assessment of the danger created by [appellees’] negligence.’ ” Anglin, 502 So.2d at 899 (quoting Stahl, 438 So.2d at 19). The first accident in this case occurred on an interstate highway, before dawn, and at a point just beyond a hill, so as to obscure, at least somewhat, the view of oncoming motorists. The second accident, the one at issue in this case, occurred when Mr. Cooke failed to heed, or perhaps to even notice, the warning flares set out by the deputy (which warning flares were also not seen by the driver of the truck struck by Mr. Cooke). Mr. Cooke did not slow down and collided with the rear of the Kindler truck. Although a reasonable fact-finder could view this scenario as a chain of events, such chain is not attenuated, and is certainly not one beyond the anticipation of those involved in the first accident. The fact-finder could, accordingly, find the chain of events, including Mr. Cooke’s actions, foreseeable.

Finally, we note that the present fact pattern does not reveal the classic intervening act of negligence, such as that of the over-eager and careless DuBose in the Anglin case. Here, traffic slowed as a natural result of the first accident, and Mr. Cooke struck another vehicle that was part of the line of slowed traffic. Mr. Cooke’s negligence, if any, including his failure to heed the cautionary measures initiated by Deputy Hanson, could be properly viewed by the finder of fact as evidence of comparative negligence. The plaintiff’s own negligence does not, of course, serve to abrogate a chain of causation arising from the alleged tortfeasor’s negligence, but rather serves as a defensive matter, which may reduce the damages awardable to the plaintiff in an appropriate case. See, e.g., Hancock v. Dep’t of Corr., 585 So.2d 1068 (Fla. 1st DCA 1991).

CONCLUSION

Under the law as set out above, we need not assess the extent of Mr. Cooke’s own negligence, except to observe that such negligence was not unforeseeable as a matter of law. Accordingly, the question of foreseeability in this case will be for the finder of fact and should not be decided as a matter of law by classifying Mr. Cooke’s actions as the intervening and superseding cause of appellant’s loss, injury, and damages.

REVERSED AND REMANDED.

CLARK, J., concurs and DAVIS, J., Dissents with Opinion.

DAVIS, J.,

dissenting.

I respectfully disagree with the majority’s conclusion that the outcome of this case is controlled by the decision in Gibson. The facts of this case are more similar to Anglin than to Gibson. Here, the second accident was not a reasonably foreseeable consequence of the first accident. It is undisputed that the second accident occurred over an hour after the first accident and that the second accident occurred over a mile away from the location of the original accident. Additionally, the evidence established that a sheriffs deputy had engaged his emergency lights on the side of the road to warn drivers about the first accident. While it is foreseeable that a second accident may occur immediately after and in the vicinity of the first accident on an interstate, it is not foreseeable that a second accident would occur over an hour later and over a mile away when traffic was not at a standstill. The second accident was not the result of Kindler suddenly braking as shown by his uncontro-verted testimony that he had been driving at a reduced speed of approximately 25 m.p.h. for about five minutes prior to the second accident.

Moreover, decedent’s actions constitute highly unusual, extraordinary, or bizarre conduct so as to relieve appellees of any liability from the second accident. The undisputed evidence established that decedent was traveling at 70 m.p.h. at the time of impact, that he was using his cruise control, that he did not apply his brakes, that he did not employ any evasive maneuvers, and that he was not wearing his safety belt. None of these actions are reasonable in light of the fact that decedent should have been warned about the accident by the presence of the deputy on the side of the road. Thus, decedent’s gross negligence in operating his vehicle relieved appellees of any liability for their alleged negligent conduct.

Additionally, the first accident did not set off a chain of events that resulted in the damage to appellant. This is not a case involving multiple accidents occurring within minutes of each other as was the case in Gibson. Here, the first accident merely provided the occasion for decedent’s gross negligence to cause the second accident.

Accordingly, I would affirm the trial court’s order granting final summary judgment and dismissing the action.


author: PER CURIAM.

text:
    Eugene V. ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-4880.
    District Court of Appeal of Florida, First District.
    June 24, 2009.

      Appellant Eugene V. Ross, pro se.
    Bill McCollum, Attorney General, and Christine A. Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant filed a motion under Florida Rule of Criminal Procedure 3.800(a), claiming that the trial court sentenced him illegally when it sentenced him under the 1983 sentencing guidelines, adopted by the Florida Supreme Court, before the Florida legislature adopted them on July 1, 1984. See Smith v. State, 537 So.2d 982 (Fla.1989); Wright v. State, 941 So.2d 538 (Fla. 1st DCA 2006).

Because the appellant’s motion raises a facially sufficient claim that is not refuted by the record, we reverse and remand for attachment of record portions showing that the appellant’s claim has been addressed on the merits, attachment of record portions showing that the appellant affirmatively elected to be sentenced under the sentencing guidelines, or resentencing.

REVERSED.

KAHN, BENTON, and VAN NORTWICK, JJ„ concur.


author: RAMIREZ, J.

text:
    Leopole JULMICE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2491.
    District Court of Appeal of Florida, Third District.
    June 24, 2009.
    Rehearing Denied July 31, 2009.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before COPE, RAMIREZ, and SUAREZ, JJ.
   RAMIREZ, J.

Leopole Julmice appeals his conviction and sentences for four counts of attempted second-degree murder as lesser included offenses of the charged offenses. The sole issue on appeal is whether the trial judge erred in preventing defense counsel from striking a white male juror based on the court’s finding that the juror clearly indicated that he could be fair. Because the court engaged in the wrong analysis when confronted with the prosecution’s objection, we reverse.

I.

During the voir dire the trial judge had the following conversation with Juror Grant:

THE COURT: Mr. Grant, how are you, sir?
PROSPECTIVE JUROR GRANT: Good, your Honor.
THE COURT: You are actively duty in the military?
PROSPECTIVE JUROR GRANT: Yes.
THE COURT: U.S. Navy?
PROSPECTIVE JUROR GRANT: Yes.
THE COURT: You are on leave I imagine?
PROSPECTIVE JUROR GRANT: I am at United States southern command.
THE COURT: So, you are at Southern Command?
PROSPECTIVE JUROR GRANT: Yes.
THE COURT: That’s your post.
Let’s see, you are married?
PROSPECTIVE JUROR GRANT: Yes.
THE COURT: Your wife is a housewife?
PROSPECTIVE JUROR GRANT: Yes.
THE COURT: You never served as a juror before?
PROSPECTIVE JUROR GRANT: No.
THE COURT: And have you, or close friend, family member ever been victim of a crime?
PROSPECTIVE JUROR GRANT: Yes, your Honor.
THE COURT: What was that?
PROSPECTIVE JUROR GRANT: Vehicle broken into a couple of occasions.
THE COURT: That was here in Miami-Dade County?
PROSPECTIVE JUROR GRANT: Yes.
THE COURT: Did they ever catch the people responsible?
PROSPECTIVE JUROR GRANT: No, they did not.
THE COURT: You have been a witness in trial proceedings?
PROSPECTIVE JUROR GRANT: In the Navy, some Navy proceedings administrative discharge court-martial.
THE COURT: When was the last time you were a witness in the trial proceeding?
PROSPECTIVE JUROR GRANT: It’s been probably twelve, thirteen years.
THE COURT: Okay. You have friends or relatives who are attorneys?
PROSPECTIVE JUROR GRANT: Yes, your Honor.
THE COURT: What kind of attorneys?
PROSPECTIVE JUROR GRANT: Mostly civil.
THE COURT: And have you, or close friend, family member ever been arrested or accused of a crime?
PROSPECTIVE JUROR GRANT: No, your Honor.
THE COURT: Could you be fair and impartial in this case?
PROSPECTIVE JUROR GRANT: Yes, your Honor.
THE COURT: Thank you.

During the selection process defense counsel attempted to exercise a peremptory challenge on Juror Grant. The prosecution objected to the strike stating: “there is one white person on the panel, defense counsel struck every other white person thus far.” Defense counsel proffered the following race-neutral reasons for striking Juror Grant.

DEFENSE COUNSEL: Grant is a member of the arm forces. He’s a commander in Florida, upon questioning his response was he had been involved in the court-martial process. These individuals are removed from the military, and they are disciplinarians. His involvement in the military, his involvement with court-martial, his position in the commander in the military, we could exercise a peremptory challenge.
PROSECUTOR: I believe counsel specifically asked him about all those things, he said he would be fair.
DEFENSE COUNSEL: I have no question whether he can be fair. I need to have a reason which is valid for, in other words it’s improper, it’s not a white person on trial.
THE COURT: The Court would note Mr. Grant was extensively asked by the Court and by attorney for the State, and may be even defense, he said he could be fair. The fact he was involved in court-martial is not clear whether he could have been for the defense or for the prosecution that wasn’t brought out, but one thing the Court was very impressed with, he would be fair in that he could be impartial, In fact, the Court essentially rejects the fact his active duty would be a disqualification, and would find that it’s pretestrial [sic] under the circumstances, the Court finds he is a white male and will not accept the peremptory challenge as to Brian Grant.
DEFENSE COUNSEL: Is the Court making the finding it’s prestestrial [sic] reason, the fact the individual also been a victim of a crime, according to his own report in the jury questionnaire as to the ear broken into.
THE COURT: It’s given the fact pattern of attempting to strike every white potential juror that’s been set forth.
DEFENSE COUNSEL: All the victims in this case are black police officers.
PROSECUTOR: That is not correct.
DEFENSE COUNSEL: Four of the five.
THE COURT: I already made my ruling.
DEFENSE COUNSEL: I am trying to make the record, four of the police officers that were black were victims in this case.
THE COURT: That is fine, anything further?
DEFENSE COUNSEL: No, Judge. It’s a peremptory challenge.
THE COURT: I understand. Okay. That brings us to James Collier.

At the conclusion of the voir dire defense counsel renewed his objection to the trial judge’s ruling denying him the right to use a peremptory challenge as to Juror Grant.

At the conclusion of the evidence and after defense counsel’s motion for judgment of acquittal was denied, defense counsel renewed his objection to the trial judge’s decision to deny him the right to exercise a peremptory challenge on Juror Grant. At that point, the state once again argued that the reason given was not a race-neutral reason and that defense counsel’s previous strikes had exhibited a pattern of striking white jurors. After hearing argument of counsel the court once again placed on the record that the reason why he was denying the strike was because there was no race-neutral reason given. This is evidenced by the following statement made by the trial judge:

The court will note in that matter, on one hand a pattern up to that point of seeking to strike a white male from the juror, that changed that course, but the Court found that was the case, and that there was no race-neutral reason given. In addition, the defense’s assertion given this juror’s service in the military was a commander in the United States Navy, posted at the southern command, he’s been involved in a court martial, the court finds that has no bearing, no relationship to this trial, and it’s not a valid basis. The court will renew that finding, that it was not a proper attempt and proper peremptory challenge.

After deliberations the jury found defendant guilty of four counts of attempted second degree murder, which were lesser included offenses of the charged offenses, and false imprisonment which was a lesser included offense of the kidnapping count. The jury found defendant not guilty of the burglary count. The court sentenced defendant to life imprisonment as to the attempted second degree murder counts and five years as to the false imprisonment count. All of the sentences were ordered to run consecutive with each other.

II.

In Melbourne v. State, 679 So.2d 759, 764 (Fla.1996), the Supreme Court of Florida established the following analysis for determining the racial, ethnic, and/or gender neutrality and genuineness of a peremptory challenge:

[Step 1.] A party objecting to the other side’s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike.
[Step 2.] At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation.
[Step 3.] If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained.

When defense counsel moved to exercise a peremptory challenge on Juror Grant, the state requested a race-neutral reason for the strike arguing that defense counsel had used his two previous peremptory challenges against white male jurors. These had involved a juror who was an attorney and had been a victim of a crime. The other juror was stricken because his daughter’s flaneé was a police officer. The trial court properly requested a valid race-neutral reason for the peremptory strike. It is undisputed that defense counsel proffered race-neutral reasons for the strike of Juror Grant. The court was then required to reach Step 3 and make a determination whether the explanation was pretextual.

The proper starting point in any analysis of Melbourne issues is the principle that on appeal, peremptory challenges are presumed to be exercised in a nondis-eriminatory manner. See Porter v. State, 708 So.2d 338 (Fla. 3d DCA 1998); Dean v. State, 703 So.2d 1180 (Fla. 3d DCA 1997). Furthermore, throughout this process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination. Melbourne, 679 So.2d at 764; Davis v. State, 691 So.2d 1180 (Fla. 3d DCA 1997).

In Melbourne, the Florida Supreme Court stated that the trial court’s decision on the ultimate issue of pretext “turns primarily on an assessment of credibility and will be affirmed on appeal unless clearly erroneous.” Melbourne, 679 So.2d at 764-65. However, the trial court in our case denied defense counsel the right to excuse Juror Grant because it concluded that he could be a fair juror, and therefore defense counsel’s reason for striking the juror was not race-neutral. The reasons given for exercising a peremptory challenge need not be equivalent to a challenge for cause. See Symonette v. State, 778 So.2d 500, 503 (Fla. 3d DCA 2001)(“The fact that such a juror [peremptorily challenged] asserts that he or she can, nevertheless, be fair and impartial, does not mean that the state must be satisfied with the response.”); White v. State, 754 So.2d 78, 80 (Fla. 3d DCA 2000).

The facts in this case are similar to the facts in Greene v. State, 718 So.2d 334 (Fla. 3d DCA 1998), where, pursuant to the state’s objection, defense counsel gave a race-neutral reason for striking the juror. The trial judge made the following ruling: “All right. The Court determines that the reasons given are not ethic [sic] neutral recognizable by the law as I understand it, and the Court is going to disallow the peremptory challenge and the juror will be seated.” Id. at 335. In reversing defendant’s conviction, this Court held that at no time did the trial judge address the genuineness of the reasons offered by defense counsel and, therefore, the court improperly discontinued the Melbourne analysis after the second step because she did not find the proffered reason to be ethnic-neutral. The court went on to explain:

A conclusion that the proffered reasons ai-e not ethnic-neutral is not synonymous with a finding of pretext. The former requires only a superficial analysis to determine facial, ethnic neutrality, whereas the latter requires a judicial assessment of credibility of both the proffered reasons and the attorney or party proffering them. Likewise, the standard of review is different as to each. When reviewing a trial court’s determination that a proffered reason is not ethnic-neutral, this Court will simply review the facial neutrality of the reason. On the other hand, the trial court’s decision on the ultimate issue of pretext “turns primarily on an assessment of credibility and will be affirmed on appeal unless clearly erroneous.” Melbourne, 679 So.2d at 764.

Greene, 718 So.2d at 335.

Similarly, in our case, counsel gave a race-neutral reason when he stated that the juror was a uniformed Navy officer and the alleged crime victims were uniformed police officers. Based on the incorrect premise that there was no race-neutral reason, the trial court also found pretext. However, the reason was race-neutral and the denial of the peremptory strike cannot be justified simply because the trial judge felt the juror could be fair.

In step (3) of the Melbourne procedure, the relevant circumstances that the court is to consider in determining whether the explanation is pretextual include such factors as the racial make-up of the venire; prior strikes exercised against the same racial group; a strike based on a i"eason equally applicable to an unchallenged venireperson; or singling out the venireperson for special treatment. Melbourne, 679 So.2d at 764 n. 8; Young v. State, 744 So.2d 1077 (Fla. 4th DCA 1999); Overstreet v. State, 712 So.2d 1174 (Fla. 3d DCA 1998). We have not hesitated to reverse a trial court’s finding on the ultimate issue of pretext where the record does not support that finding. Fernandez v. State, 746 So.2d 516 (Fla. 3d DCA 1999); Randall v. State, 718 So.2d 230 (Fla. 3d DCA 1998); Overstreet, 712 So.2d at 1174.

In the case of Hamdeh v. State, 762 So.2d 1030 (Fla. 3d DCA 2000), defense counsel was denied the right to exercise a peremptory challenge of a juror who had indicated that he had talked to people in the community about the case. After hearing the proffered reason given by defense counsel, the trial judge concluded that he did not feel the reason given by defense counsel was genuine. Similar to the court in this case, the trial judge pointed to nothing in the record which would have supported the conclusion that defense counsel’s reason for striking the juror was not genuine. In reversing defendant’s conviction, this Court held that since there was no record support for the trial court’s finding of pretext, it was error to deny defense counsel the right to strike the juror.

In this ease there is nothing in this record to suggest that defense counsel’s reason for striking a uniformed Navy officer in a case with uniformed police officers as the alleged victims was not genuine. Because the court wrongfully concluded that defense counsel’s reason was not race-neutral, it never conducted a sufficient inquiry to determine the genuineness of the reason. We therefore reverse and remand for a new trial.


author: FARMER, J.

text:
    Marlon MONROE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4595.
    District Court of Appeal of Florida, Fourth District.
    June 24, 2009.

      David F. Pleasanton, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

Two issues have been raised in this appeal from a first-degree murder conviction. The first involves evidence of a confession by testimony from a minister. The second concerns whether the murder was committed in Broward County rather than Palm Beach County where the case was tried.

As to the clergy testimony, the minister testified that he warned defendant several times that he would not treat anything incriminating as confidential. Having been asked by defendant to accompany him to the police station for questioning, he testified that he warned defendant against disclosing anything that “was bad” and that if defendant reported anything that “was bad” the minister would have to tell the police about it. Specifically, the minister said:

“be careful what you are about to say to me, because any information that could be damaging, I will be privileged [sic] to the information, and I cannot promise you that I could keep it, because I will become an accessory to whatever.”

He added that if defendant told him something that could get him in trouble with the law, he would have to divulge the information to police.

At that point defendant told the minister that he had killed the victim. Defendant thereupon asked the minister if he could keep the substance of the conversation a secret, but the minister said no. Defendant then told the minister not to bother coming into the police station with him. Defendant entered the police station alone.

The trial court denied his motion to suppress his statements to the minister, holding that he had waived any privilege of confidentiality about the conversation. The court found that after the minister had warned defendant against speaking, he “no longer had a reasonable expectation that the communication was going to remain private under those circumstances.” The court noted that defendant’s history as a police officer in Jamaica affected her determination that defendant had waived any privilege because it indicated his “knowledge and understanding, his intellect, and his capacity to understand.”

In reviewing a trial court’s denial of a motion to suppress, we “aceord[] a presumption of correctness to the trial court’s findings of historical fact, reversing only if the findings are not supported by competent, substantial evidence, but review[ ] de novo whether the application of the law to the historical facts establishes an adequate basis for the trial court’s ruling.” Parker v. State, 873 So.2d 270, 279 (Fla.2004). Section 90.505(1)(b) explicitly requires that the communication to a member of the clergy be “not intended for further disclosure.” Moreover, § 90.507 provides that:

“A person who has a privilege against the disclosure of a confidential matter or communication waives the privilege if the person ... voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy, or consents to disclosure of, any significant part of the matter or communication.”

§ 90.507, Fla. Stat. (2008). The record supports the trial court’s factual finding that defendant knew when he voluntarily made the disclosure to the minister that it would not be held confidential and would be subject to disclosure to the police. We find no error in the admission of the confession.

As to venue, the issue is less clear. The Constitution, provides:

“In all criminal prosecutions the accused shall ... have a speedy and public trial by impartial jury in the county where the crime was committed. If the county is not known, the indictment or information may charge venue in two or more counties conjunctively and proof that the crime was committed in that area shall be sufficient....”

Art. I, § 16(a), Fla. Const. (1998). The State is required by rule to allege the venue of the crime charged. Fla. R.Crim. P. 3.140(d)(3) (“Each count of an indictment ... shall contain allegations stating as definitely as possible the time and place [e.s.] of the commission of the offense”). The indictment here charged the murder was committed in Palm Beach County but did not mention Broward County as another possible locus of the killing.

The evidence appears indeterminate. The victim was last seen alive in Broward County around 4:00 pm on the day before her body was found. Someone last spoke to her by phone around 5-6:00 pm on that same day. Her body was found in an abandoned auto in Palm Beach County around 8:00 the next morning. That auto had been first seen in the area around 9:00 on the evening before discovery of the body. Another person saw it in the same place around 3:00 on the morning before discovery. Nothing about these circumstances points definitively to either place for the murder.

The medical examiner placed the time of death at sometime after 2:00 pm on the day before her body was found. The first responding officer found her body cold to the touch with rigor mortis. An investigator from the medical examiner’s office found her body cool to the touch.

The lead detective testified there was no evidence indicating she was killed in Palm Beach County. He added that there was simply no evidence indicating where she had been killed. The minister testified that defendant’s confession was that he killed the victim at their apartment in Broward County. There is no other direct evidence as to the place of the murder.

At the end of the evidence, defendant moved for a judgment of acquittal, arguing the lack of evidence as to premeditation. He did not raise any question about the sufficiency of the evidence as to venue. Later in the conference to settle jury instructions, defendant requested a special charge on venue but did not furnish the trial judge with any special text, so the judge gave the standard instruction on venue. After the jury found him guilty, defendant did not seek a new trial on the basis of the failure to prove venue as charged.

Defendant did not raise venue either during or after the trial. He did not raise the issue in his motion for judgment of acquittal. He filed no motion for a new trial based on the failure to prove venue as charged. He did nothing in the trial court to alert the Judge or the State that he had any issue regarding venue.

On appeal now, however, he argues that the failure to prove venue is a substantive error of fundamental proportions not waived by his failure to raise it in the trial court. In State v. Black, 385 So.2d 1372 (Fla.1980), the,supreme court confronted an indictment that faded to allege venue. The issue was whether the conviction could be sustained in spite of the failure to allege venue even though defendant had not been adversely affected by the omission in preparing for trial. The State had furnished defendant with a bill of particulars stating venue. The court ruled that an indictment without an allegation of venue “was fundamentally defective and void” as a matter of substance “and not of form.” Black, 385 So.2d at 1375.

Little more than four years after Black, the supreme court confronted the following certified question:

Is the error in the failure of an indictment to specify the place tuhere the crime allegedly occurred so fundamental that it may be urged on appeal, though not properly presented at the trial court, where the defendant is not hindered in the preparation or presentation of his defense and the situs of the crime is proved at trial? [e.s.]

Tucker v. State, 459 So.2d 306, 307 (Fla.1984). The court first observed:

“Rather than attempt to draw any distinctions among degrees of fundamental error, we revisit Black to determine whether it is in the best interests of justice to continue to define the allegation of venue to be a ‘fundamental defect which renders the indictment void.’ ”

Tucker, 459 So.2d at 307. In answering the certified question the court held that the pleading failure was not reversible error where defendant was not adversely affected by it and venue was sufficiently proved at trial. The court receded from Black, stating that the failure to allege venue is now to be considered a defect of form, not of substance. Tucker, 459 So.2d at 309. In short, a failure to plead venue in an indictment may not amount to fundamental error in a given case.

Here, the body was found in Palm Beach County — suggesting, we suppose, a possible inference she was killed where she was found. Hence the indictment charged venue as being in Palm Beach County. The only evidence at trial specifically about the place of the murder was the confession to the minister that he killed her in Broward County. Defendant did not take the stand, and so there was no opportunity to cross examine him about the venue matter.

We believe this venue issue may be seen in two different formulations: (1) a failure to allege venue jointly in both Broward and Palm Beach Counties, or (2) a failure to prove what was alleged. We know from Tucker that formulation (1) is not necessarily fundamental error and can therefore be waived. We must decide whether formulation (2), a variance between the charge and proof of venue, can also be waived.

The State’s argument, that the issue was waived by his failure to raise it, brings us to the modern status of the venue requirement in criminal cases. Defendant may waive his privilege of venue because it does not involve the power of the court to hear the case. Lane v. State, 388 So.2d 1022, 1026 (Fla.1980). While it is an important right of the accused in criminal procedure, it is no longer deemed an element of the offense itself and, indeed, may be proved simply by a preponderance of the evidence. McClellion v. State, 858 So.2d 379, 382 (Fla. 4th DCA 2003). In fact, if the failure of the State to prove venue had been raised at trial, the judge had discretion to allow the State to reopen its ease to present evidence of venue. McClellion, 858 So.2d at 381. McClellion held that venue is a personal privilege of defendant which he may waive, citing both Tucker and Lane.

A rule of criminal procedure provides:

“No indictment ... shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment ... or for any cause whatsoever, unless the court shall be of the opinion that the indictment ... is so vague, indistinct, and indefinite as to mislead the accused and embarrass him or her in the preparation of a defense or expose the accused after conviction ... to substantial danger of a new prosecution for the same offense.”

Fla. R.Crim. P. 3.140(o). Tucker explained this policy thus:

“Any requirement that venue be alleged in an indictment is a procedural rule stemming from common-law applications of due process considerations. In Florida, this requirement arose as a judicial interpretation of a statute which merely required adequate notice.... [Ujnder earlier pleading standards, lack of a venue allegation raised the danger of inadequate protection from double jeopardy. This common law requirement is made a part of the modern procedural rules in Florida Rule of Criminal Procedure 3.140(d)(3), but it is also to be read in pari materia with subsection (o) of that same rule, quoted above.”
“Nor does any policy argument support absolute adherence to that archaic rule of pleading. Modern discovery procedures have vitiated the danger of prejudice in the preparation of a defense and have led to a relaxation of strict pleading requirements.” [c.o.]

459 So.2d at 308-09. The very heart of this analysis is that a defect arising in the form of prosecution — as opposed to defects of substance or matters of procedure that are structural to all criminal prosecutions — may not be grounds as fundamental error to reverse a conviction unless such defect misleads the accused in preparing a defense or exposes him to another prosecution for the same offense.

We see no indication that the venue defect in this case misled him in preparing his defense, so that leads us to inquire whether it exposes him to another prosecution for the same offense. Tucker explicitly considered whether the failure to allege venue exposed defendant to another prosecution for the same offense. The court said:

“Those facts alleged in the indictment indicate a specific date and a specific victim; other details were provided in a bill of particulars. Finally, the evidence adduced at trial was more than adequate to sustain a Blockburger defense to any possible future prosecution. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).”

459 So.2d at 308.

We are unable to discern any possibility that defendant is in any danger of being convicted again for this offense in Broward County. The present Indictment identifies a named victim and a specific time of the killing, and the evidence supporting guilt at trial is more than sufficient to sustain a double jeopardy defense in any future prosecution. See Tucker, 459 So.2d at 308. We do not think any failure either to plead dual venue or any divergence of proof so significantly affected the trial that a verdict of guilt could not have been obtained otherwise. Because he waived the issue by failing to raise it in the trial court, we reject his argument that any failure to prove venue in Palm Beach County was reversible error.

Affirmed.

GROSS, C.J., and MAASS, ELIZABETH T., Associate Judge, concur.

      . Even if he had moved for a judgment of acquittal on account of the failure to prove venue, his remedy may not have been acquittal but merely a new trial. See Powell v. State, 132 Fla. 659, 181 So. 901 (1938); McKinnie v. State, 44 Fla. 143, 32 So. 786 (1902); Warrace v. State, 27 Fla. 362, 8 So. 748 (1891); McClellion v. State, 858 So.2d 379, 382 (Fla. 4th DCA 2003).

      . To be deemed fundamental, an error must "reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Walls v. State, 926 So.2d 1156, 1180 (Fla.2006). We are cautioned to use fundamental error very guardedly. Farina v. State, 937 So.2d 612, 629 (Fla.2006) ("We have cautioned appellate courts to 'exercise their discretion concerning fundamental error 'very guardedly.' [FJundamental error should be applied only in the rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.’ ”).

      . Because defendant was charged by Indictment rather than Information, the trial court could not have simply allowed the State to amend the charging document at trial to conform to the proof. See Fla. R.Crim. P. 3.140(j) (allowing only an Information to be amended).


author: SHEPHERD, J.

text:
    CITY OF SWEETWATER, Appellant, v. George I. ALVAREZ and Allen St. Germain, Appellees.
    No. 3D07-1486.
    District Court of Appeal of Florida, Third District.
    June 24, 2009.
    Ralph Ventura, for appellant.
    Hartman and Comely and Douglas Cole Hartman; Jorden Burt, Janice Burton Sharpstein and Ari H. Gerstin, for appel-lees.
    Before GERSTEN, C.J., and SHEPHERD and LAGOA, JJ.
   SHEPHERD, J.

I.Introduction

The City of Sweetwater appeals a statutory award of attorney fees to counsel for two of its police officers for services rendered in obtaining the officers’ acquittal on charges of felony battery and official misconduct in connection with an arrest made in the line of duty. The City challenges the award by arguing that the officers failed to first request representation from the City before hiring their own counsel. We agree with the City and, therefore, reverse the fee award.

II.Facts and Procedural Background

On July 7, 2004, Sweetwater police officers Allen B. St. Germain and George Ignacio Alvarez were criminally charged with felony battery and official misconduct based upon allegations of the wrongful use of force during the course of an arrest of a suspect named Peter Michael Daniels on June 19, 2003. Although the officers apparently negotiated some agreement with their union, the Police Benevolent Association, with respect to the payment of fees, they did not request that the City provide them with a defense to the charges. Instead, they chose private counsel, successfully defended the case, and then sent their legal bills to the City. The City rejected the bills, which caused the officers to file an application for fees with the court having jurisdiction over the criminal action, in accordance with the statutorily prescribed procedure. The trial court found that the officers’ counsel were enti-tied to reimbursement of their attorney fees.

III.The Statute

The statute we are required to interpret reads as if it were constructed by the proverbial designers of the camel. That said, there is no ambiguity within or between the various provisions. Therefore, our task is to apply the plain language of the statute, and where necessary prefer constructions of the statute that will give effect to all provisions of the statute over those that would not. See Hechtman v. Nations Title Ins. of N.Y., 840 So.2d 993, 996 (Fla.2003) (“In ascertaining the legislative intent, a court must consider the plain language of the statute, give effect to all statutory provisions, and construe related provisions in harmony with one another.”).

Insofar as pertinent here, the statute we are called upon to construe reads as follows:

111.065. Law enforcement or correctional officers, legal action against; employer payment of costs and attorneys fees or provision of attorney
(3) The employing agency shall provide an attorney and pay the reasonable attorney’s fees and costs for any officer in a criminal action commenced against the officer in any court if the employing agency determines that the officer’s actions that gave rise to the charges:
(a)l. Occurred in response to what the officer reasonably believed was an emergency;
2. Occurred when the officer reasonably believed that his or her action was necessary to protect the officer or others from imminent death or bodily harm; or
3. Occurred in the course of the officer’s fresh pursuit, apprehension, or attempted apprehension of a suspect whom the officer reasonably believed had perpetrated, or attempted to perpetrate, a forcible felony as defined in s. 776.08, or the offense of escape;
(b) Arose within the course and scope of the officer’s duties; and
(c) Were not acts of omission or commission which constituted a material departure from the employing agency’s written policies and procedures, or generally recognized criminal justice standards if no written policies or procedures exist.
(4)(a) If legal representation is requested under subsection (3) and the employing agency determines that the conditions set forth in subsection (3) have not been satisfied or the officer does not choose to use the employing agency’s designated attorney, the officer may:
1. Select from a list of attorneys provided by the employing agency; or
2. Choose his or her own attorney. The officer may request the employing agency to reimburse reasonable attorney’s fees and costs if the officer’s actions giving rise to the charge did not result in the entry of a plea of guilty or nolo contendere or in a finding of guilt by a court or jury to any offense charged or any lesser or included offense that is substantially related to the offense charged.

§ 111.065, Fla. Stat. (2004) (emphasis added).

IV. Analysis

At the time of the incident involving Mr. Daniels, section 111.065 of the Florida Statutes gave a law enforcement agency or municipality “the option to pay reasonable attorney’s fees and costs for any law enforcement officer in any civil or criminal action commenced against such officer in any court when the action arose out of the performance of the officer’s duties” and such matter resulted in a voluntary dismissal, judgment of no liability, or verdict of acquittal. § 111.065(2)(a), (b), Fla. Stat. (2003) (emphasis added). Effective May 14, 2004, subsequent to the incident but prior to the charging of appellees by information, section 111.065 was amended to state that an employing agency “shall provide an attorney and pay the reasonable attorney’s fees and costs for any officer in a criminal action commenced against the officer in any court if the employing agency determines that the officer’s actions that gave rise to the charges” met one of the conditions described in subsections 3(a), (b) or (c) of the revised statute. § 111.065(3), Fla. Stat. (2004) (emphasis added). There is no dispute that at least one of those conditions was met. Essentially, what had hitherto been permissive was now mandatory.

On the other hand, the statute does not provide unfettered access to the public fisc. Interpreting the statute holistically, as we must, it is clear a fee applicant must first request the employing agency to “designate[ ]” an attorney to represent the officer. § 111.065(4)(a), Fla. Stat. (2004). If the law enforcement officer is unsatisfied with the employer’s choice, then he may either “1. Select from a list of attorneys provided by the employing agency; or 2. Choose his or her own attorney.” § 111.065(4)(a)l, 2, Fla. Stat. (2004). This reading of the statute is consistent with section 111.065(3)’s admonition that “[t]he employing agency shall provide an attorney and pay the reasonable attorney’s fees and costs for any officer in a criminal action commenced against the officer in any court.” § 111.065(3). The first clause of this sentence would be superfluous if the only obligation of the employing agency is to “pay.” See Am. Home Assurance Co. v. Plaza Materials Corp., 908 So.2d 360, 366 (Fla.2005) (quoting Hechtman, 840 So.2d at 996) (“ ‘[Significance and effect must be given to every word, phrase, sentence, and part of the statutef,] if possible, and words in a statute should not be construed as mere surplusage.’ ”). The statute is thus a legislative compromise between protecting law enforcement officers from being impoverished and the employer’s need to protect the public fisc. Balancing these interests, the Florida legislature has determined that police and correction officers in this state must afford the governmental entity the opportunity to provide legal representation before seeking reimbursement of attorney fees and costs under the statute.

Although ours is not the only state that provides some means by which police officers and correctional officials may obtain reimbursement for legal expenses and costs, see, e.g., Cal. Gov’t Code § 995 (2008); Conn. Gen.Stat. Ann. § 53-39a (West 2008); Haw.Rev.Stat. § 52D-8 (2008); Mass. Gen. Laws Ann. ch. 258, § 9A (West 2008); Mich. Comp. Laws Ann. § 691.1408 (West 2008); Okla. Stat. tit. 11, § 23-101 (2008); Wis. Stat. § 895.35 (2008), our independent research reveals but one other jurisdiction in which a court has grappled with the same issue as presented to us in the context of a similarly worded statute. See Twp. of Edison v. Mezzacca, 147 N.J.Super. 9, 370 A.2d 511 (1977). As in the case before us, the New Jersey police officers in Mezzacca retained counsel to defend them without first affording the township the opportunity to provide counsel. Id. at 512. Whether the officers were entitled to reimbursement for their legal fees and expenses hinged upon the interpretation of section 40A:14-155, New Jersey Statutes Annotated, which, provided in pertinent part:

Whenever a member or officer of a municipal police department or force is a defendant in any action or legal proceeding arising out of or incidental to the performance of his duties, the governing body of the municipality shall provide said member or officer with necessary means for the defense of such action or proceeding....

§ 40A:14-155 (emphasis added).

Interpreting the statute, the Mezzacca court concluded the emphasized language “means that the municipality must provide competent counsel ... requested by the officer,” but “the employee does not have the absolute right to counsel of his own choosing at municipal expense.” Mezzacca, 370 A.2d at 513; see also Critchley & Roche v. City of Newark, 206 N.J.Super. 32, 501 A.2d 1002, 1005 (1985) (stating that pursuant to section 40A:14-155, New Jersey Statutes Annotated, “an officer has no absolute right to counsel of his own choosing at municipal expense,” and that “[a] municipality must ... be given the opportunity to determine whether it will provide legal representation itself or whether it will approve the retention of private counsel”). The Mezzacca court further drew a distinction between the statute under review and section 18A:16-6, New Jersey Statutes Annotated, which, at the time, mandated the State Board of Education “shall reimburse” a teacher “[w]ith respect to a favorably terminated criminal action against a teacher.” Unlike that statute, the court found that the statute under review, which applies when an officer “is a defendant in any action or legal proceecl-ing,” Mezzacca, 370 A.2d at 513 (emphasis added), was not a retroactive-looking statute. Similarly, the statute which we are required to review here is not a retroactive-looking statute.

Based upon the foregoing analysis, we reverse the fee award made in this case with the direction that judgment be rendered for the City on the claim made in this case.

      . Recently, we approved the officers’ use of this procedure in their effort to collect their fees and costs. See City of Sweetwater v. St. Germain, 943 So.2d 259 (Fla. 3d DCA 2006).

      . Although section 40A:14-155 has been amended since the time Mezzacca was issued, see ch. 457, § 1, eff. Jan. 15, 1986, the emphasized language in the statute relevant to this appeal has not changed.