author: KHOUZAM, Judge.

text:
    GENERAL ELECTRIC CAPITAL CORPORATION, Appellant, v. Brenda S. SHATTUCK, as Personal Representative of the Estate of Arlene Anne Townsend, Deceased; Trans Healthcare, Inc.; and THI Holdings, LLC, Appellees. Ventas, Inc., and Ventas Realty, Limited Partnership, Appellants, v. Brenda S. Shattuck, as Personal Representative of the Estate of Arlene Anne Townsend, Deceased, and Trans Healthcare, Inc., Appellees. Rubin Schron, Appellant, v. Brenda S. Shattuck, as Personal Representative of the Estate of Arlene Anne Townsend, Deceased; Trans Healthcare, Inc.; and THI Holdings, LLC, Appellees. THI Holdings, LLC., Appellant, v. Brenda S. Shattuck, as Personal Representative of the Estate of Arlene Anne Townsend, Deceased, and Trans Healthcare, Inc., Appellees. GTCR Golder Rauner, LLC.; GTCR Fund VI, L.P.; GTCR Partners VI, L.P.; GTCR Executive Fund, L.P.; GTCR Associates VI; and Edgar D. Jannotta, Jr., Appellants, v. Brenda S. Shattuck, as Personal Representative of the Estate of Arlene Anne Townsend, Deceased, and Trans Healthcare, Inc., Appellees. Fundamental Administrative Services, LLC, and THI of Baltimore, Inc., Appellants, v. Brenda S. Shattuck, as Personal Representative of the Estate of Arlene Anne Townsend, Deceased; Trans Healthcare, Inc.; and THI Holdings, LLC, Appellees. Fundamental Long Term Care Holdings, LLC; Murray Forman; and Leonard Grunstein, Appellants, v. Brenda S. Shattuck, as Personal Representative of the Estate of Arlene Anne Townsend, Deceased; Trans Healthcare, Inc.; and THI Holdings, LLC, Appellees.
    Nos. 2D13-3702, 2D13-4279, 2D13-3712, 2D13-4294, 2D13-3741, 2D13-3742, 2D13-3743, 2D13-4276, 2D13-3744, 2D13-4274, 2D13-3757, 2D13-4234, 2D13-3779, 2D13-4236.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 2014.

      James C. Valenti of Valenti Campbell Trohn Tamayo & Aranda, Lakeland; Neal Kumar Katyal of Hogan Lovells US LLP, Washington, D.C.; and Carol A. Licko of Hogan Lovells US LLP, Miami, for Appellant General Electric Capital Corporation.

      Sylvia H. Walbolt and Matthew J. Con-igliaro of Carlton Fields, P.A., Tampa; A. Lamar Matthews, Jr., and Hunter W. Carroll of Matthews Eastmore, Sarasota; and David J. Bradford of Jenner & Block LLP, Chicago, Illinois, for Appellants Ventas, Inc., and Ventas Realty, Limited Partnership.
    Stephen H. Grimes, Stacy D. Blank, and Joseph H. Varner, III, of Holland & Knight LLP, Tampa; and Barry Richard of Greenberg Traurig, P.A., Tallahassee, for Appellant Rubin Schron.
    Mark N. Miller of GrayRobinson, P.A., Lakeland; and Gabor Balassa and Matthew Nirider of Kirkland & Ellis LLP, Chicago, Illinois, for Appellants THI Holdings, LLC; GTCR Golder Rauner, LLC.; GTCR Fund VI, L.P.; GTCR Partners VI, L.P.; GTCR Executive Fund, L.P.; GTCR Associates VI; and Edgar D. Jannotta, Jr.
    Gerald B. Cope, Jr., and Nancy A. Cop-perthwaite of Akerman Senterfitt, Miami, for Appellants Fundamental Administrative Services, LLC, and THI of Baltimore, Inc.
    Matthew Triggs and Lisa Markofsky of Proskauer Rose LLP, Boca Raton, for Appellants Fundamental Long Term Care Holdings, LLC; Murray Forman; and Leonard Grunstein.
    Isaac Ruiz-Carus, Bennie Lazzara, Jr., and Joseph H. Ficarrotta of Wilkes & McHugh, P.A., Tampa, for Appellee Brenda S. Shattuck, as Personal Representative of the Estate of Arlene Anne Townsend.
    No appearance for Appellee Trans Healthcare, Inc.
   KHOUZAM, Judge.

In January 2009, the Estate of Arlene Townsend — the Appellee in these consolidated proceedings — brought an action for negligence and wrongful death against the nursing home in which Ms. Townsend spent the last years of her life, also naming as defendants various management entities and others. Eventually an entity known as Trans Healthcare, Inc. (THI), remained as the only defendant. THI was represented at trial by an attorney for the receiver appointed for THI by a court in Maryland.

After a default was entered against THI, a trial for damages ensued during which the estate presented evidence of the various financial relationships between THI and the sixteen business entities and individuals who are the Appellants in these proceedings. The jury found for the Estate, awarding $1.11 billion in damages, including $1 billion in punitive damages. The court entered a final judgment reflecting this award as against THI on July 29, 2013. Two days later, the estate filed a “motion to alter and amend the judgment to conform with evidence at trial.” The motion asked the court to add the sixteen Appellants to the final judgment pursuant to Florida Rule of Civil Procedure 1.530(g). The motion was served only on the attorney for the THI receiver, not on any of the sixteen Appellants. Later that same day the trial court, without soliciting responses or holding a hearing, granted the motion and entered the amended final judgment at issue in these proceedings. The amended judgment added the sixteen Appellants as judgment debtors, jointly and severally liable for the damages award “based on the evidence adduced at trial” demonstrating that they were “the real parties in interest.” The sixteen new judgment debtors responded by filing, between them, seven petitions for writ of prohibition along with seven notices of direct appeal. This court consolidated each petition with the corresponding direct appeal and treated each pair as a direct appeal. Because we conclude that the trial court failed to acquire personal jurisdiction over the Appellants, we reverse.

The Appellants request various forms of relief, including quashal of the amended final judgment as to them. The Appellants’ arguments boil down to a cluster of related issues: that the trial court failed to obtain personal jurisdiction over them because they were not afforded the most fundamental elements of procedural due process — notice of and an opportunity to be heard on the Estate’s motion to alter and amend the judgment.

The requirements of notice and an opportunity to be heard before being bound by a judgment are of constitutional dimension. See, e.g., Richards v. Jefferson Cnty., 517 U.S. 793, 797 n. 4, 116 S.Ct. 1761, 135 L.Ed.2d 76 (1996) (“[A] State may not, consistently with the Fourteenth Amendment, enforce a judgment against a party named in the proceedings without a hearing or an opportunity to be heard .... ” (citations omitted)). As the Florida Supreme Court has summarized,

[procedural due process serves as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights are at issue. Procedural due process under the Florida Constitution
guarantees to every citizen the right to have that course of legal procedure which has been established in our judicial system for the protection and enforcement of private rights. It contemplates that the defendant shall be given fair notice[ ] and afforded a real opportunity to be heard and defend [ ] in an orderly procedure, before judgment is rendered against him.
State ex rel. Gore v. Chillingworth, 126 Fla. 645, 657-58, 171 So. 649, 654 (1936) (citations omitted); accord, e.g., Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556 (1972) (procedural due process under the fourteenth amendment of the United States Constitution guarantees notice and an opportunity to be heard at a meaningful time and in a meaningful manner).

Dep’t of Law Enforcement v. Real Prop., 588 So.2d 957, 960 (Fla.1991).

Notice serves as more than a notification to defendants, however; when the proper procedures are followed, it also brings a defendant under the personal jurisdiction of the court. Generally, at the beginning of a lawsuit, notice to defendants is effected and personal jurisdiction over them achieved by service of process of the complaint. See Borden v. East- European Ins. Co., 921 So.2d 587, 591 (Fla.2006) (“Service of process is the means of notifying a party of a legal claim and, when accomplished, enables the court to exercise jurisdiction over the defendant and proceed to judgment.”); Abbate v. Provident Nat’l Bank, 631 So.2d 312, 313 (Fla. 5th DCA 1994) (“Jurisdiction is perfected by the proper service of sufficient process.”). If, however, the litigant is conducting proceedings supplementary pursuant to section 56.29, Florida Statutes (2013), it is not necessary to file and serve a complaint. See Fundamental Long Term Care Holdings, LLC v. Estate of Jackson ex rel. Jackson-Platts, 110 So.3d 6, 11 (Fla. 2d DCA 2012). But the motion contemplated by the statute is still required to bring late-stage defendants under the personal jurisdiction of the court. See § 56.29(2); Fundamental Long Term Care Holdings, LLC, 110 So.3d at 11. The statute also provides defendants an opportunity to be heard in the form of a hearing before a court or magistrate. § 56.29(2). Here, with service of the Estate’s motion to alter and amend effected only on THI’s receiver, the Appellants were not provided with either means of notice, and because the amended final judgment issued on the same day the motion was filed, the Appellants certainly were not provided “a real opportunity to be heard and defend [ ] in an orderly procedure.” State ex rel. Gore v. Chillingworth, 126 Fla. 645, 171 So. 649, 654 (1936) (citations omitted).

The Estate raises several arguments for the proposition that, in the posture in which the parties found themselves, an exception to the requirements of separate notice and opportunity to be heard exists. We reject each of these arguments. The Estate’s contentions are based primarily on the relationship between the Appellants and THI and its receiver, as reflected in the evidence adduced at trial. At some point after the lawsuit was filed, the Appellants entered into an agreement with the THI receiver under which a subset of the Appellants paid consideration to settle claims that THI had against third parties, including the Appellants themselves. The agreement also provided that another subset of the Appellants would finance the defense of the THI receiver in court, a provision that encompassed the defense of the present lawsuit. The THI receiver assigned to the Appellants the receiver’s work-product and attorney-client privileges. However, there is nothing in the agreement that requires the Appellants to assume any liabilities associated with the present lawsuit. From this and other facets of the relationships among the parties, the Estate asserts that the Appellants were the “real parties in interest” and the THI receiver’s “nominee.” As such, the Estate argues, the Appellants were on notice of their potential liability before the Estate served its motion to alter and amend the judgment and were, in any event, placed on notice by service of the motion on the THI receiver.

The Estate relies heavily on section 41 of Restatement (Second) of Judgments (1982), which states that “[a] person who is not a party to an action but who is represented by a party is bound by and entitled to the benefits of a judgment as though he were a party” and that “[a] person represented by a party to an action is bound by the judgment even though the person himself does not have notice of the action, is not served with process, or is not subject to service of process.” This argument fails, however, because the Restatement “deals with the preclusive effects of judgments in civil actions” — res judicata, collateral estoppel, and so on. Restatement (Second) of Judgments, Introduction (emphasis added). As a federal appeals court has explained:

The [appellant’s] reliance on the Restatement is misplaced. What the drafters of the Restatement meant when they suggested that an unnamed, unserved partner who participates in a defense of the partnership may be “bound” by a judgment against the partnership is that such a partner may be collaterally es-topped from relitigating decided issues in a subsequent litigation, not that the partner’s participation in the defense of the partnership somehow converts a judgment against the partnership into a judgment against the partner.

Valley Nat’l Bank of Ariz. v. A.E. Rouse & Co., 121 F.3d 1332, 1337 (9th Cir.1997) (emphasis added) (construing § 60 of Restatement (Second) of Judgments). Clearly, the present lawsuit does not concern the preclusive effect on anyone of a prior judgment.

Additionally, the relationships between THI and the Appellants do not obviate the need for separate notice and opportunity to be heard. In Pacesetter Builders-Joint Venture, Inc. v. Coral Springs Property Services, Inc., 531 So.2d 1061 (Fla. 4th DCA 1988), for example, despite the fact that a final judgment had been entered against “Pacesetter Builders, Inc.” the Fourth District held that a motion to amend final judgment to include “Pacesetter Builders — Joint Venture, Inc.” was improperly granted when the motion was not served on the latter entity, even though the same individuals owned and were officers of both companies. In reversing the order that granted the motion, the court noted that

[t]he appellant correctly contends that it was deprived of its due process protections. The appellant was not served with process, not given an opportunity to file defenses, and not given an eviden-tiary hearing, although a hearing was held on the motion_ Notwithstanding the obvious ties between the entities, appellant could not be added as a post-judgment defendant without having an opportunity to defend itself.

Id. at 1062 (emphasis added). The fact that some of the Appellants may have been aware of the litigation and even “controlling” or financing it likewise does not mean that the basic requirements of due process could be avoided. See Nelson v. Adams USA, Inc., 529 U.S. 460, 470-72, 120 S.Ct. 1579, 146 L.Ed.2d 530 (2000) (holding that an individual sought to be held liable for attorney’s fees after the original plaintiff had been ordered to pay the fees has “the right to contest on the merits his personal liability for” such an award, even when the individual was the president and sole shareholder of the plaintiff, was the “effective controller” of the litigation, and personally appeared as a witness at a hearing).

Indeed, even a named plaintiffs stipulation that it should be considered one and the same as another entity is not sufficient to give a court jurisdiction over that entity. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 108-12, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969) (holding that a named plaintiffs stipulation that it and its parent corporation should be considered one and the same for purposes of the litigation did not give the court jurisdiction over the parent corporation where the parent corporation was not a named party, was never served, did not formally appear at trial, and had not executed the stipulation — the plaintiffs attorney, who was also an officer of the parent corporation, had signed the stipulation but did not specify that he was signing on the parent corporation’s behalf). Consequently, at least the basic elements of due process were required to bring these Appellants — who did not so stipulate — under the jurisdiction of the court.

As a separate argument, the Estate asserts that Florida Rule of Civil Procedure 1.530(g), under which the motion to alter and amend the judgment was brought, permitted the Estate to add other parties to the final judgment. In full, this paragraph provides as follows:

Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment, except that this rule does not affect the remedies in rule 1.540(b).

Fla. R. Civ. P. 1.530(g). This rule cannot bear as much weight as the Estate would like it to. The Estate cites no case law, and we could locate none, that would permit a plaintiff to use this rule to amend a judgment to add defendants without providing the new parties with separate notice and opportunity to be heard. Cf. Acquisition Corp. of Am. v. Am. Cast Iron Pipe Co., 543 So.2d 878, 881 (Fla. 4th DCA 1989) (“While Florida Rule of Civil Procedure 1.190(b) permits amendments to pleadings to conform to the evidence at trial, there is no authority to add a new party defendant to a claim to conform to the evidence.”).

Because there would appear to be no exception allowing a plaintiff to bring persons under the purview of a final judgment without providing at least the basic, minimal due process requirements of notice and an opportunity to be heard, the trial court never gained jurisdiction over the Appellants. We therefore reverse the amended final judgment to the extent that it holds the Appellants hable under the judgment, and we remand for further proceedings consistent with this opinion.

Reversed and remanded, with instructions.

NORTHCUTT and CASANUEVA, JJ, Concur.

      . With one exception, the Appellants were not named as defendants in the trial court. Appellant THI Holdings, LLC, in appeals 2D 13-3743 and 2D 13-4276, was originally a defendant but, by stipulation of the parties and subsequent court order, was severed from the trial and stricken from the docket. For purposes of this opinion, THI Holdings, LLC, is not treated any differently from the other Appellants.

      . THI was apparently one company in a series of layers of nursing home management entities. See Gen. Elec. Capital Corp. v. Nunziata, 124 So.3d 940 (Fla. 2d DCA 2013) (addressing related entities).

      . Additionally, two inquiries must be made regarding personal jurisdiction over a nonresident: whether "the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the [long-arm] statute; and if it does, ... whether sufficient 'minimum contacts' are demonstrated to satisfy due process requirements." Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989) (quoting Unger v. Publisher Entry Serv., Inc., 513 So.2d 674, 675 (Fla. 5th DCA 1987)). Although the Appellants appear to be nonresidents of Florida, none of the parties discuss these elements of personal jurisdiction and due process, so they do not enter into our analysis.

      . We do not intend to suggest what remedies, if any, may be available to the Estate after remand. Additionally, our opinion should not be taken to imply any comment on the merits of the underlying dispute between the Estate and the Appellants.

      . This brief summary does not reflect the complexity of the relationships that the need for such an agreement might imply.

      . The case law cited by the Estate to support this argument also concerns preclusive effect, not direct postjudgment "binding” of additional defendants.

      . There is no dispute that service of the motion was timely.


source: Caselaw Access Project

author: CASANUEVA, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Silvestre LOREDO, Jr., Appellee.
    No. 2D12-3649.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    Kelley W. Collier, Bartow, for Appellee.
   CASANUEVA, Judge.

The State of Florida appeals an order granting Silvestre Loredo, Jr.’s motion to suppress evidence found in his residence pursuant to a search warrant, evidence found in his vehicle in which he was riding when law enforcement initially detained him, and any statements he made after this detention.

Both Mr. Loredo and his wife, Candi Loredo, were arrested following the execution of the search warrant and the stop of their vehicle. The trial court conducted a joint suppression hearing with the Loredos and granted the motion to suppress based on its finding that the search warrant for the house was improperly issued because the affidavit filed in support of the warrant lacked probable cause. The facts surrounding the issuance of the warrant are detailed in the wife’s ease, State v. Loredo, 129 So.3d 1188 (Fla. 2d DCA 2014). As we did in that case, we conclude that probable cause existed to issue the search warrant and that the trial court erred in granting the motion to suppress. See id. at D173. Additionally, as this court noted in Loredo, on remand, Mr. Loredo may argue the other issue raised at the suppression hearing regarding the stop of his vehicle in light of the Supreme Court’s recent decision in Bailey v. United States, _ U.S. _, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013). See 39 Fla. L. Weekly at D173 n. 2.

Reversed and remanded.

SILBERMAN and MORRIS, JJ., Concur.

      . Mr. Loredo was charged with possession of methamphetamine with intent to sell within 1000 feet of a church, possession of drug paraphernalia, and actual or constructive possession of a structure used for trafficking, sale, or manufacture of controlled substances.


author: SILBERMAN, Judge.

text:
    Robert Tracy SHADWICK, Appellant, v. Colleen Anne SHADWICK, Appellee.
    No. 2D12-6325.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 2014.
    John P. Flanagan, Jr., Brandon, for Appellant.
    Shazia N. Sparkman and Kevin M. Sparkman of Sparkman & Sparkman, P.A., Tampa, for Appellee,
   SILBERMAN, Judge.

Robert Tracy Shadwick (the Husband) appeals an amended final judgment of dissolution of marriage and challenges the awards of alimony and attorney’s fees in this case involving a long-term marriage of twenty-six years. We affirm without discussion the alimony award of $350 per month in favor of Colleen Anne Shadwick (the Wife). We dismiss the appeal as premature with respect to the determination on entitlement to attorney’s fees.

The Husband contends that the trial court committed reversible error by ordering him to pay fifty percent of the Wife’s “reasonable attorney’s fees, costs and suit monies as a sanction” under section 57.105, Florida Statutes (2012). The court directed payments be made to the Wife’s law firm “once a reasonable fee has been determined by the parties or by Court Order.” The trial court reserved jurisdiction “on the issue of reasonableness in the event the parties cannot agree on the amount of fees, costs and suit monies.” It does not appear from our limited record that the Wife sought fees under section 57.105, but we do not have a transcript of the final hearing to know if the court, sua sponte, raised the issue.

We do note our concern about the trial court’s findings relating to sanctions under section 57.105. The trial court found the Husband’s position in the litigation to be without merit and unjustified but did not specify what constituted the unmerited position. The trial court did make findings regarding the Husband’s conduct during the marriage, as opposed to in the litigation, in abandoning the home. The court found the Husband’s behavior “offensive.” Nothing in section 57.105 allows for a sanction based on offensive behavior during a marriage.

However, because the amended judgment does not determine the actual amount of fees that the Husband is obligated to pay, that portion of the amended judgment is a nonfínal, nonreviewable order that is not ripe for appeal. See Zuberer v. Zuberer, 28 So.3d 993, 993-94 (Fla. 2d DCA 2010); Romerhaus v. Romerhaus, 7 So.3d 1143, 1143 (Fla. 2d DCA 2009). Accordingly, we dismiss the appeal as premature in part as to the attorney’s fees portion of the amended judgment. See Zuberer, 28 So.3d at 993; Romerhaus, 7 So.3d at 1143.

Affirmed in part and dismissed in part.

NORTHCUTT and CASANUEVA, JJ, Concur.


author: BENTON, J.

text:
    Jacob Thomas GAULDEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3653.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2014.

      Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Assistant Attorney General, and Giselle Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Jacob Thomas Gaulden appeals his conviction and sentence for leaving the scene of a “crash ... that resulted] in ... death,” in violation of section 316.027(l)(b), Florida Statutes (2010). We affirm.

A passenger in a pickup truck Mr. Gaul-den was driving “separated” from the vehicle, landed on the pavement, and suffered fatal injuries. Although aware of his passenger’s exit from the moving truck, Mr. Gaulden did not stop at the scene, or as close to the scene as possible, much less remain at the scene until he had fulfilled the requirements of section 316.062, Florida Statutes (2010) (requiring the driver of a vehicle involved in a crash resulting in injury or death to provide information such as the driver’s name, address, vehicle registration number, and license, and to render reasonable assistance, including arranging for medical treatment if necessary).

Charged with violating section 316.027(l)(b), Florida Statutes (2010), Mr. Gaulden moved to dismiss, and the trial court granted the motion. Section 316.027(1) provides in pertinent part:

(a) The driver of any vehicle involved in a crash ... that results in injury of any person must immediately stop the vehicle at the scene of the crash, or as close thereto as possible, and must remain at the scene of the crash until he or she has fulfilled the requirements of s. 316.062. Any person who willfully violates this paragraph commits a felony of the third degree....
(b) The driver of any vehicle involved in a crash ... that results in the death of any person must immediately stop the vehicle at the scene of the crash, or as close thereto as possible, and must remain at the scene of the crash until he or she has fulfilled the requirements of s. 316.062. Any person who willfully violates this paragraph commits a felony of the first degree....

In the absence of any evidence that the truck hit the decedent, the trial court ruled that the decedent’s hitting the pavement did not constitute a “crash” within the meaning of section 316.027(l)(b). Disagreeing with this interpretation of the statute, the state appealed the order dismissing the charge.

A different panel of this court ruled that the “statute does not require that the driver’s vehicle be one of the colliding objects; it requires only that the vehicle be ‘involved’ in the collision,” and reversed, holding that “a driver must stop when his vehicle is a participant in, or has an effect on, a collision that results in injury or death.” State v. Gaulden, 134 So.3d 981, 983, 2012 WL 1216263 (Fla. 1st DCA Apr. 12, 2012) [Gaulden I]. We held:

Because the statute exists mainly to protect people, not vehicles, we have no hesitation about interpreting the term “crash” as including any collision resulting in death or injury to a person.
Here, a passenger of [Mr. Gaulden’s] moving vehicle collided with the road as he became separated from the vehicle and suffered fatal injuries. This collision constituted a crash. Because the movement of [Mr. Gaulden’s] vehicle significantly contributed to causing this collision, [Mr. Gaulden’s] vehicle was involved in it. Under these circumstances, [Mr. Gaulden] is properly subject to criminal prosecution for failing to stop his vehicle and fulfill the requirements of section 316.062(1), which included rendering reasonable assistance to his passenger.

Id. On remand, the trial court proceeded from this premise. See Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1266 (Fla.2006); Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc., 88 So.3d 269, 275 (Fla. 1st DCA 2012) (stating when “an appellate court decides a point of law, that point is no longer open for debate on remand to the trial court”). After a jury trial on remand, Mr. Gaulden was found guilty of leaving the scene of a crash involving death.

He now appeals the conviction and sentence predicated on that verdict. For the first time on appeal, he argues the trial court committed fundamental error in instructing the jury (consistently with the standard jury instruction) that he could be found guilty if he knew or should have known that injury or death had occurred. Because leaving the scene of a crash involving death is a first-degree felony, while leaving the scene of a crash involving injury, but not death, is a third-degree felony, he argues, the state was required to prove that he should have known (from the nature of the “crash”) that a fatal injury had occurred, not merely that an injury of some kind had resulted. In State v. Dumas, 700 So.2d 1223, 1225-26 (Fla.1997), however, our supreme court rejected this argument, explaining its decision, as follows:

Florida law imposes an affirmative duty on a driver to stop, render aid, and provide certain information necessary for an insurance claim and an accident report whenever there is an injury. Florida law further makes it a felony to fail to complete these duties. One of the main purposes of the statute is to ensure that accident victims receive medical assistance as soon as possible. The fact that a death rather than an injury has occurred does not trigger a different set of duties. Thus, the knowledge element that triggers the affirmative duty is the same in each circumstance, but the sanction imposed is determined by the results of the accident. This result-driven sanction implicitly recognizes the possibility that a fleeing driver’s failure to stop and render aid may be the reason that an injured person dies. Moreover, requiring proof that a driver had knowledge of death would lead to an absurd result: a driver who callously leaves the scene of a serious accident can avoid a [more serious] felony conviction by disavowing knowledge of death.

(citations omitted). The Dumas court had no difficulty reading the statute as requiring the same duty whether the driver had reason to believe death or mere injury had occurred. It could, indeed, be argued that it is more important to stop to help an injured survivor than to assist with a corpse. In any event, we are bound to reject appellant’s first claim of fundamental error as foreclosed by the decision in Dumas.

We also reject the argument that the trial court committed fundamental error in failing to instruct the jury that the state had to prove the defendant had actual knowledge of the accident. For this point, appellant relies principally on Dorsett v. State, _ So.3d _, 2013 WL 331602, 38 Fla. Law Weekly D233 (Fla. 4th DCA Jan. 30, 2013), review granted, 122 So.3d 869 (Fla.2013), a case in which fundamental error was not even argued. The defendant in Dorsett insisted that he did not stop the car he was driving when he ran over somebody lying in the street because he did not know he had hit anyone. Id. at D233, at _. In contrast, Mr. Gaulden conceded he knew his passenger suddenly left the moving vehicle, and could not have been unaware that, whether the passenger jumped or was pushed, he was destined to hit the paved shoulder, if not the roadway itself.

For purposes of decision, we assume that the state must establish that the driver knew that a “crash” had occurred, in order to prove that the driver had reason to know of a death or injury caused by the crash, an accident which the driver was legally obligated not to leave without, inter alia, offering assistance. As then Chief Judge May explained, “While our supreme court addressed the knowledge issue as it related to ‘injury,’ it has not been asked to address knowledge of the ‘accident’ as an element of the crime. Even so, the supreme court explained that ‘knowledge of the accident is an essential element of section 316.027, for one cannot “willfully” leave an accident without awareness that an accident has occurred.’” Dorsett, 38 Fla. L. Weekly at D234, _ So.3d at _ (quoting State v. Mancuso, 652 So.2d 370, 371 (Fla.1995)).

Mr. Gaulden argues that the present case is factually similar to Dorsett and asserts fundamental error on the ground that the jury instruction that was given below — requiring the jury to find, not that he had actual knowledge of a crash, but only that he “knew or should have known” that he had been involved in a crash— pertained to an element the jury had to decide on in order to convict. But the present case is unlike Dorsett, because the trial judge was never alerted to Mr. Garden’s desire for any jury instruction other than the standard instruction that was actually given. In Dorsett, the defendant requested that the jury be instructed that “actual knowledge” of the collision was “an essential element” of the offense. Id. Mr. Gaulden neither objected to the standard jury instruction nor requested a special instruction.

Nor, again unlike Dorsett, was the fact of a “crash” really in dispute in the present case. “ ‘Failing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error.’ Thus, a defective instruction in a criminal case can only constitute fundamental error if the error pertains to a material element that is disputed at trial.” Daniels v. State, 121 So.3d 409, 417-18 (Fla.2013) (citation omitted). “To justify not imposing the contemporaneous objection rule, ‘the 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.’ In other words, ‘fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.’ ” State v. Delva, 575 So.2d 643, 644-45 (Fla.1991) (citations omitted). The dispute over whether a crash occurred was legal, not factual. If, as the court held the last time this case was before it, a passenger’s hitting the pavement is a crash within the meaning of the statute, giving the standard jury instruction did not constitute fundamental error.

Finding no merit in Mr. Gaulden’s remaining arguments, we affirm his conviction and sentence. Now that proceedings have concluded in the trial court, however, we do certify as a question of great public importance the following for possible review and decision by our supreme court:

WHEN A PASSENGER SEPARATES FROM A MOVING VEHICLE AND COLLIDES WITH THE ROADWAY OR ADJACENT PAVEMENT, BUT THE VEHICLE HAS NO PHYSICAL CONTACT EITHER WITH THE PASSENGER, AFTER THE PASSENGER’S EXIT, OR WITH ANY OTHER VEHICLE, PERSON, OR OBJECT, IS THE VEHICLE “INVOLVED IN A CRASH” SO THAT THE DRIVER MAY BE HELD CRIMINALLY RESPONSIBLE FOR LEAVING THE SCENE?

We specifically decline to reexamine the decision in Gaulden I ourselves at this juncture. The rule it laid down has become the law of the case. See Engle, 945 So.2d at 1266; Fitchner, 88 So.3d at 275 (“When an appellate court decides a point of law, ... with limited exceptions, it is no longer open for debate in a subsequent appeal [to the same court].” (citation omitted)).

Affirmed. Question certified.

LEWIS, C.J. and SWANSON, J„ concur.

      . In a recorded interview with law enforcement officers, Mr. Gaulden stated that the decedent jumped out of the vehicle after they scuffled, but that he did not think the truck was traveling so fast that the decedent would be hurt. One witness described seeing the decedent open the passenger door and the interior light come on, before seeing Mr. Gaulden and the decedent fighting in the cab. The same witness testified that the truck then accelerated so rapidly that the passenger door closed on its own. A second witness described observing Mr. Gaulden’s truck "flying by," and stated the driver "had it to the floor and the truck swerved.” These two witnesses, friends of the decedent, said they followed the truck, but that, when they reached it a few minutes later, the decedent was not in the truck with Mr. Gaulden. The decedent’s body was eventually found near where the truck swerved and accelerated.

      .The standard jury instruction for section 316.027(1), Florida Statutes, reads as follows:
      To prove the crime of Leaving the Scene of a Crash, the State must prove the following four elements beyond a reasonable doubt:
      1. (Defendant) was the driver of a vehicle involved in a crash resulting in [injury to] [death of] any person.
      2. (Defendant) knew or should have known that [he] [she] was involved in a crash.

        Give 3a if death is charged or 3b if injury is charged.

      3.a. (Defendant) knew or should have known of the injury to-or death of the person.
      b. (Defendant) knew or should have known of the injury to the person.

        Give 4a, 4b, or both as applicable.

      4.a. (Defendant) willfully failed to stop at the scene of the crash or as close to the crash as possible and remain there until [he] [she] had given “identifying information” to the [injured person] [driver] [occupant] [person attending the vehicle] and to any police officer investigating the crash.
      [or]
      b. (Defendant) willfully failed to render "reasonable assistance” to the injured person if such treatment appeared to be necessary or was requested by the injured person.
      If the State proves that the defendant willfully failed to give any part of the "identifying information” or willfully failed to give reasonable assistance, the State satisfies this element of the offense.

        Definitions.

      “Identifying information” means the name, address, vehicle registration number, and, if available and requested, the exhibition of the defendant’s license or permit to drive.
      "Reasonable assistance” includes carrying or making arrangements to carry the injured person to a physician or hospital for medical treatment.
      "Willfully” means intentionally and purposely.
      Fla. Std. Jury Instr. (Crim.) 28.4.

      . The trial court rejected Dorsett’s requested special instruction that the state had to prove the defendant “knew that he was involved in an accident.” Dorsett v. State, _ So.3d _, _, 2013 WL 331602, 38 Fla. L. Weekly D233, D233 (Fla. 4th DCA Jan. 30, 2013), review granted, 122 So.3d 869 (Fla.2013). Instead, the jury was given the standard instruction that the state must prove the defendant "knew or should have known that" he was involved in an accident. Id. at D234, at _. The trial court also rejected the following special jury instruction requested by the defendant:
      The Defendant’s knowledge that his car caused the personal injuries to [the victim] is a necessary element of the offense of failing to remain at the scene of an accident under Florida Statute Section 316.027. Actual knowledge of the accident is an essential element of this crime, for one cannot "willfully” leave an accident without awareness that an accident has occurred. Further, the State must prove that [the defendant] had actual or constructive knowledge of the resulting injury to [the victim]— that is, [the defendant] either knew of [the victim’s] resulting injury, or reasonably should have known of such injury from the nature of the accident.

        Id. at D233, at _ (emphasis omitted). On appeal, Dorsett argued the standard jury instructions included an incorrect statement of law because section 316.027 requires actual knowledge of the accident. The Dorsett court reversed, remanded for a new trial, and certified the following question to the supreme court: "In a prosecution for violation of section 316.027, Florida Statutes (2006), should the standard jury instruction require actual knowledge of the accident?” Id. at D235, at

      . We need not decide the question because there was no objection to the standard jury instruction and any error would not be fundamental in this case but, as the Dorsett court acknowledged, "a quick review of [State v. Mancuso, 652 So.2d 370 (Fla.1995),] might suggest that the standard jury instruction accurately reflects the law.” 38 Fla. L. Weekly at D234-35, _ So.3d at _. Subsequent to the decision in Mancuso, the Florida Supreme Court approved the standard jury instruction providing that the element that must be proven is that the defendant "knew or should have known that [he] [she] was involved in an accident.” Standard Jury Instructions in Criminal Cases (95-2), 665 So.2d 212, 215 (Fla.1995).
      The Dorsett court noted that ”[o]ther jurisdictions, such as Virginia, require that the defendant possess actual knowledge of the accident to be found guilty under the 'hit-and-run' statute.” 38 Fla. L. Weekly at D235 n. 2, _ So.3d at _. But still other jurisdictions hold otherwise. See, e.g., Clancy v. State, Nev. _, _ - _, 313 P.3d 226, 229-30 (2013) (concluding the trial court did not err in instructing the jury it had to find the defendant “knew or should have known that he had been involved in accident” instead of the requested instruction that the jury had to find the defendant "had actual knowledge of the accident,” and noting that, although “knowledge of involvement in an accident is required for criminal liability, ... ‘[djirect evidence of absolute, positive, subjective knowledge may not always be obtainable[, and w]e think it sufficient if the circumstances are such as to induce in a reasonable person a belief that collision has occurred; otherwise a callous person might nullity the humanitarian purpose of the statute by the simple act of immediate flight from an accident scene without ascertaining exactly what had occurred’" (quoting State v. Wall, 206 Kan. 760, 482 P.2d 41, 45 (1971) (emphasis omitted)); Comstock v. State, 82 Md.App. 744, 573 A.2d 117, 123 (Md.Ct.Spec.App.1990) (”[B]efore a defendant can be convicted under a 'hit and run’ statute, the State must first show knowledge by the accused of the ‘hit,’ and that the ‘run’ or leaving was also knowing. As with any case in which scienter is an element, it may be proved circumstantially. The trier of fact may infer from an examination of the circumstances of the event that a defendant knew that an accident occurred or that people were injured. Where conditions were such that the driver should have known that an accident occurred, or should have reasonably anticipated that the accident resulted in injury to a person, the requisite proof of knowledge is present.”); contrast State v. Miller, 308 N.W.2d 4, 7 (Iowa 1981) (holding actual knowledge of accident is required, but noting that knowledge is seldom capable of direct proof and usually is established from the circumstances).


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Cecil Gordon COUNTRYMAN, Appellee.
    No. 1D13-2032.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2014.

      Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.
   PER CURIAM.

The state appeals the trial court’s order revoking appellee’s probation on four counts of false verification of ownership on a pawnbroker transaction form, but withholding adjudication of guilt and placing appellee on probation for four months with the special condition that he serve those four months in the county jail. Consistent with this court’s recent decision in State v. Currilly, 126 So.3d 1244 (Fla. 1st DCA 2013), we agree with the state that the trial court erred in withholding adjudication of guilt based on the clear and unambiguous language of section 948.06(2)(b) & (e), Florida Statutes (2012). Unlike in Currilly, we find the prosecutor adequately preserved this error for appellate review. Accordingly, we reverse and remand for resentencing. If the court wants to withhold adjudication of guilt on the four counts of false verification of ownership on a pawnbroker transaction form, it could modify rather than revoke appellee’s probation as to those counts.

REVERSED and REMANDED for re-sentencing.

BENTON, SWANSON, and OSTERHAUS, JJ„ concur.


author: PER CURIAM. WETHERELL, J.,

text:
    Lester RUSHING, former Husband, Appellant, v. Rebecca RUSHING, former Wife, Appellee.
    No. 1D10-6522.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2014.
    Sharon Delene Regan of Regan & Roark, Pensacola, for Appellant.
    Daniel W. Uhlfelder of Daniel W. Uhl-felder, P.A., Grayton Beach, for Appellee.
   PER CURIAM.

This appeal is from a post-judgment order finding the former husband in contempt in a dissolution of marriage case. We dismiss the appeal because the order contemplates further judicial action to resolve the contempt claim fully. See Caribbean Fire & Assocs., Inc. v. Coastal Constr. Gr. of S. Fla., 985 So.2d 1197, 1199 (Fla. 3d DCA 2008); Grafman v. Grafman, 488 So.2d 115 (Fla. 3d DCA 1986). This dismissal is without prejudice to the filing of a timely appeal once the judicial labor on the former wife’s motion for contempt and enforcement is complete. As a result of the dismissal, all pending motions are denied.

DISMISSED.

THOMAS and RAY, JJ., concur; WETHERELL, J., concurs with Opinion.

WETHERELL, J.,

concurring.

I agree that the challenged order is not “final” and, thus, we lack jurisdiction to review the order at this time. That said, because of the additional delays and expense that resulted from this court’s denial of Appellee’s February 2012 motion to dismiss this appeal for lack of jurisdiction, I would have been inclined to exercise our discretion under Florida Rule of Appellate Procedure 9.110(i) to permit the trial court to render a final order if review of the challenged order were governed by rule 9.110. However, review of the challenged order is governed by rule 9.130(a)(4), not rule 9.110, and there is no corollary to rule 9.110(l) in rule 9.130. Accordingly, notwithstanding the prior ruling on jurisdiction, I agree that we are compelled to dismiss this appeal as premature.

      . I recognize that we typically will not exercise our discretion under rule 9.110(Z) unless the defect in the order is technical in nature or merely requires clarification that all issues raised by the parties were finally resolved. See Demont v. Demont, 24 So.3d 699 (Fla. 1st DCA 2009) (refusing to relinquish jurisdiction under rule 9.110(Z) because "an indeterminate amount of judicial labor ... remains to be done before a final order can be entered”). Here, the record in this case and the related case number 1D13-998 reflect that all of the issues raised by the parties have effectively been resolved and that minimal judicial labor will be required to render a final order. Indeed, the only judicial labor remaining to be done concerns the amount of "damages” flowing from Appellant’s alleged contemptuous failure to assume liability for, and hold Appellee harmless on, the mortgages for several of the properties awarded to Appellant in the final judgment of dissolution of marriage. The damages awarded by the trial court for ' this violation are comprised of the attorney's fees and costs incurred by Appellee in defending mortgage foreclosure actions that she would not have been a party to had Appellant complied with his obligations under the final judgment. The challenged order did not establish the amount of the fees and costs, but the record in case number 1D13-998 includes a transcript of a January 2013 hearing at which the parties’ attorneys represented that they have "reached an agreement for the most part” regarding the reasonableness of the fees and Appellant's attorney represented that "there's not going to be a dispute regarding the amounts other than a few minor things, but that won’t take up much judicial labor.”

      . See Remington v. Remington, 705 So.2d 920 (Fla. 4th DCA 1997) (explaining that post-dissolution contempt orders are in the nature of final orders, but that appellate review such orders is governed by Florida Rule of Appellate Procedure 9.130(a)(4)).

      . We are free to revisit this prior ruling, see Bill Holt Sales & Leasing, Inc. v. Cousins, 904 So.2d 502, 503 n. 1 (Fla. 1st DCA 2005) (explaining that a ruling by a motion panel is interlocutory and may be reexamined by the merits panel), and we have an obligation to do so because the ruling concerns our jurisdiction.


text:
    Rebecca RUSHING, former Wife, Appellant, v. Lester RUSHING, former Husband, Appellee.
    No. 1D13-998.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2014.
    Daniel W. Uhlfelder of Daniel W. Uhl-felder, P.A., Grayton Beach, for Appellant.
    Sharon Delene Regan of Regan & Roark, Pensacola, for Appellee.
   PER CURIAM.

This appeal is from an Order Denying Petitioner/Former Wife’s Motion for Attorney’s Fees for Defense of Foreclosure Actions and an Order Denying Petitioner/Former Wife’s Motion to Require Respondent/Former Husband to Pay Contempt Fine. We dismiss the portion of the appeal pertaining to the first order, as it contemplates further judicial review and is therefore outside our jurisdiction. See Scott v. Women’s Med. Gr. PA, 837 So.2d 577 (Fla. 1st DCA 2003). We affirm the second order without discussion.

DISMISSED in part and AFFIRMED in part.

THOMAS and RAY, JJ., concur. WETHERELL, J., concurs in result.


author: PER CURIAM. BENTON, J.,

text:
    Alfred WOODS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4352.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2014.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Gonzalez v. State, 101 So.3d 886, 888 (Fla. 1st DCA 2012).

PADOVANO and ROBERTS, JJ., concur.

BENTON, J., concurs with Opinion.

BENTON, J.,

concurring.

I concur on the ground that Alfred Woods is not serving a life sentence without possibility of parole.


author: CLARK, J.

text:
    Richard Scott HILL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4724.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2014.

      Nancy A. Daniels, Public Defender, Elizabeth H. Webb and Steven L. Seliger, Assistant Public Defenders, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General and Justin D. Chapman, Assistant Attorney General, Tallahassee, for Respondent.
   CLARK, J.

By petition for writ of prohibition, Richard Scott Hill alleges that his speedy trial rights have been violated, and seeks discharge from the charges for which he is currently facing prosecution in Duval County. We agree that the petitioner is entitled to a discharge based upon the speedy trial rule, and grant the petition.

On charges unrelated to the instant proceeding, the petitioner was arrested and taken into custody in St. Johns County on May 8, 2011. Subsequently, on May 11, 2011, several warrants issued in Duval County for the petitioner’s arrest on five new counts, including armed burglary, dealing in stolen property, and possession of a firearm by a convicted felon. The warrants included appearance bonds on each of the five counts, and were signed by a Duval County judge. Overnight on May 11, 2011, the Jacksonville Sheriffs Office (JSO) sent a series of electronic communications to the St. Johns County Sheriffs Office (SJCSO), first apprising the SJCSO of the Duval County warrants, then stating “if subject bonds out please forward all bonds to the Jacksonville Pre-Trial Detention Facility,” and concluding, “please advise when subject is arrested on our charge and a detainer has been placed.” In the early morning hours of May 12, 2011, a SJCSO Deputy Sheriff stamped these communications as follows: “Arrest date: 5/12/11, Time: 0156, Place of Arrest: SJSO,” and went on to list the Deputy Sheriffs name and ID number. As a result of these events, the following morning, May 12, 2011, the petitioner was taken before St. Johns County Judge Charles Tinlin for a first appearance hearing on the Duval County charges only. At this hearing, the trial court began:

Richard Scott Hill. All right. Mr. Hill, you have been charged with burglary of a conveyance out of Duval County, possession of firearm out of Duval County by a convicted felon, dealing in stolen property, another charge of burglary, another attempted burglary and another charge of burglary. These are all out of Duval County, and I know you have got some local charges here.

The trial court went on to read out the bond amounts for each of the Duval County charges. Judge Tinlin asked petitioner, “I appointed the public defender to represent you before, didn’t I, sir?” to which petitioner responded, “Yes, sir.” Judge Tinlin concluded,

All right. Public Defender will be appointed and we will notify Duval County you have been picked up on these charges. You will be given credit for any time you spend in our jail awaiting pick up so starting today or yesterday when you were arrested you will get that credit when you appear before the Duval County Judge.

Following this first appearance hearing, no action was taken on the Duval County charges for over a year. On June 27, 2012, the petitioner filed a pro se notice of expiration of speedy trial time for those charges. No further action was taken on the Duval County charges until July 27, 2012, when the petitioner was finally formally charged via information with those offenses. Counsel for the petitioner later filed a motion for discharge on speedy trial grounds, and the lower tribunal denied that motion.

In the instant petition, the petitioner asserts that he was arrested on the Duval County charges on May 12, 2011, when he was brought before Judge Tinlin for a first appearance hearing on those charges. He was required to be brought to trial within 175 days of that date absent a waiver, as required by Florida Rule of Criminal Procedure 3.191(a). The petitioner was placed “in custody” on May 12, 2011, because he was “arrested as a result of the conduct or criminal episode that gave rise to the crime charged.” Fla. R. Crim. P. 3.191(d)(1). Accordingly, he was required to be brought to trial on or before November 3, 2011. Petitioner argues that because he was not brought to trial within 10 days following the notice of expiration of speedy trial time, he must be “forever discharged from the crime.” Fla. R. Crim. P. 3.191(p)(3).

In opposition to the petition, the state argues that the petitioner was not actually “in custody” on the Duval County charges on May 12, 2011, and that the proceedings held in St. Johns County on that date constituted a mere “detainer” or “hold.” Such a “detainer” or “hold” does not constitute “custody” for purposes of starting the speedy trial clock. See generally State v. Bassham, 352 So.2d 55 (Fla.1977); State v. Davis, 458 So.2d 868 (Fla. 4th DCA 1984); O’Bryan v. State, 326 So.2d 83 (Fla. 1st DCA 1976). The state further argues that the events of May 11 and 12, 2011, do not amount to an “arrest” because the petitioner was not booked on those charges and the Duval County warrants were not served on the petitioner. The state is correct that a mere “detainer” or “hold” does not amount to an arrest. Here, however, what occurred rose beyond a “detainer” or “hold” to an actual arrest for purposes of the speedy trial rule.

Formal service of a warrant is not required to effectuate an arrest. See, e.g., Trainer v. Broome, 666 So.2d 1019 (Fla. 4th DCA 1996) (finding an arrest where a defendant was booked and received a first appearance hearing and the authorities had knowledge of his whereabouts, although formal warrants were not served on the defendant until much later in time); Little v. State, 459 So.2d 1165, 1166 (Fla. 3d DCA 1984) (noting that “[t]here is no requirement under [Rule 3.191] that an arrest is not effective until a formal warrant ... is subsequently served upon the defendant”). Furthermore, “[fjormalities such as booking and fingerprinting are not necessary to begin the speedy trial clock.... In fact, only four elements are necessary for an arrest to trigger the speedy trial rule.” Brown v. State, 843 So.2d 328, 330 (Fla. 1st DCA 2003) (citing Williams v. State, 757 So.2d 597, 598 (Fla. 5th DCA 2000) and Brown v. State, 515 So.2d 211, 212 (Fla.1987)). These four elements are: (1) that the “arresting agent must have intended to effect an arrest under a real or pretended authority,” (2) that the agent “actually or constructively seized or detained the person to be arrested,” (3) that the arresting agent “communicated to the person being arrested an intent to arrest the person,” and (4) that “the person being arrested ... understood that it was the intention of the arresting agent to arrest and detain him then and there.” Brown, 843 So.2d at 330 (citing Brown, 515 So.2d at 212).

All four factors are met in this case. Here, via its overnight communication to the SJCSO on May 11, 2011, the JSO indicated, “please advise when subject is arrested on our charge and a detainer has been placed.” Shortly thereafter, a St. Johns Sheriffs Deputy stamped these communications with the date and time of arrest, the place of the arrest (the SJCSO), and the deputy’s own name. Thus, even though the JSO’s electronic communication referenced both an arrest and a detainer, the SJCSO Deputy Sheriff’s remarks indicated an intent to effectuate an arrest based upon the Duval County charges. The state argues that the Deputy Sheriff entered this data mistakenly and did not actually intend to express an intent to place the petitioner under arrest on the Duval County charges. The record, however, is totally devoid of any evidence that the St. Johns County Deputy Sheriff lacked an intent to arrest the petitioner. Indeed, the only evidence in the record— specifically, the sheriffs having affirmatively stamped and filled out the forms with the date, time, and location “of arrest” — is that the Deputy Sheriff intended to place the petitioner under arrest on the Duval County charges.

Furthermore, the hearing held before Judge Tinlin also met this factor. Judicial officers of this state are conservators of the peace with actual authority to effectuate arrests. See Fla. Const, art. V, § 19; Fla. Stat. § 901.01 (“[e]ach state judicial officer is a conservator of the peace and has committing authority to issue warrants of arrest, commit offenders to jail, and recognize them to appear to answer the charge”). At the first appearance hearing, Judge Tinlin apprised the petitioner of the Duval County counts, stated “you have been picked up on these charges,” and announced bond amounts on each count, thus communicating an intent to detain the petitioner specifically with regard to the Duval County charges. The first appearance hearing, at which a bond was set on the Duval County charges, amounted to an actual or constructive seizure or detention. The intent to arrest the petitioner was communicated very clearly to the petitioner via Judge Tinlin’s statements during that proceeding when he advised the petitioner that he had been “picked up on” the Duval County charges, the public defender would be appointed to represent him on those charges, and he would receive jail credit “starting today or yesterday when you were arrested.” The petitioner understood these statements to mean that it was the intent of that agent “to arrest and detain him then and there.” Brown, 843 So.2d at 330.

The state asserts that the first appearance hearing was held erroneously and that it was therefore a nullity. Thus, the first appearance hearing cannot be considered in satisfaction of the Brown factors. Even assuming arguendo that the hearing was held in error, we cannot agree that it constituted a nullity for that reason. Whether the hearing was held mistakenly or not does not negate the fact that the hearing met the four Brown factors. What is more, the simple fact that a first appearance hearing was held here lends additional support to the petitioner’s argument that this was an arrest, not a mere detainer or hold. “Except when previously released in a lawful manner, every arrested •person shall be taken before a judicial officer ... within 24 hours of arrest.” Fla. R. Crim. P. 3.130(a) (governing first appearance hearings). The totality of the factors shown here, taken together, indicate that the petitioner was “in custody” on the Duval County charges for purposes of the speedy trial rule as of May 12, 2011, and he was thus required to be brought to trial within 175 days of that date. This indisputably did not happen.

“Prohibition is the appropriate remedy to prevent a trial court from proceeding against an accused after the erroneous denial of a motion for discharge based on a violation of the speedy trial rule.” Cespedes v. State, 17 So.3d 302, 303 (Fla. 4th DCA 2009) (citing Walden v. State, 979 So.2d 1206 (Fla. 4th DCA 2008)). For felony charges, “every person charged with a crime shall be brought to trial ... within 175 days” of arrest. Fla. R. Crim. P. 3.191(a). As discussed swpra, the petitioner was arrested for purposes of this rule on May 12, 2011, and was accordingly required to be brought to trial on or before November 3, 2011. He was not brought to trial on or before that date. He filed a Notice of Expiration of Speedy Trial Time on June 27, 2012. The court failed to hold a hearing thereupon within 5 days as required by Florida Rule of Criminal Procedure 3.191(p)(3). Petitioner was also not brought to trial within 10 days of that date as required by the same provision. “A defendant not brought to trial within the 10-day period through no fault of the defendant, on motion of the defendant or the court, shall be forever discharged from the crime.” Fla. R. Crim. P. 3.191(p)(3) (emphasis added). The mandatory language of this rule requires the petitioner’s discharge from the Duval County crimes.

PETITION GRANTED.

THOMAS and ROBERTS, JJ., concur.


text:
    Kevin MORGAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2983.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2014.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The supreme court having quashed this court’s decision in Morgan v. State, 42 So.3d 862 (Fla. 4th DCA 2010), we reverse appellant’s conviction on the ground that the jury instruction for attempted voluntary manslaughter was fundamentally erroneous under Williams v. State, 123 So.3d 23 (Fla.2013).

Reversed and remanded for a new trial.

WARNER, TAYLOR and MAY, JJ, concur.


text:
    Kevin CANTRELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4952.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2014.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The Appellant, Kevin Cantrell, asks this court to reverse his conviction for (I) traveling to meet a person believed to be minor for the purpose of engaging in unlawful sexual activity, a violation of section 847.0135(4)(b), Florida Statutes (2011) and (II) unlawful use of a computer service to solicit a person believed to be a minor to engage in unlawful sexual activity, a violation of section 847.0135(S)(b), Florida Statutes (2011). He contends that the trial court erred by denying his motion to dismiss on the basis of subjective entrapment, and that his conviction under Count II constitutes a violation of the prohibition against double jeopardy. We affirm.

As part of a sting operation, an officer with the Tallahassee Police Department posed as a minor and posted an ad in the “casual encounters” section of Craig-slist in October 2011. The title read: “Hot Fresh Latina Lookn 4 1 Nighter — w4m [woman looking for man] (NE Tally).” The body of the ad read: “Want exactly what it says ... thats all NSA [no strings attached] & after we forget we met. ONLY serious responses!” The Appellant replied that he was interested, and this exchange followed between 10:03 and 10:25 p.m.:

OFFICER: u down wit a yunger Latina, hit me bk bb, lets tlk.
DEFENDANT: for sure.. .pics?
OFFICER: u ain’t gettin a pic unless we decide we wanna meet up, I’m almost 15 and if u cool with that hit me bk and we can move to text.

The Appellant went out with some friends and when he returned, he responded at 2:41 a.m., “its cool bb,” and they commenced an exchange of text messages. Between 3:01 and 3:30 a.m., the appellant told the purported minor what sexual activity he wanted to engage in with her, and she told him her parents were out of town and she had the house to herself, etc. They switched to telephones and the appellant ascertained that the minor was in the ninth grade in high school, and that she had never engaged in sex before, and he agreed to bring condoms. The Appellant was arrested when he arrived at the house where he was to meet her at around 4:06 a.m. The Appellant contends that the officer’s fraudulent misrepresentation about her age constituted subjective entrapment as a matter of law, because participation in the Craigslist site requires a person to acknowledge, by checking a box, that he or she is 18 or over, and thus the exchange was lawful when he entered into it and law enforcement improperly induced him into interacting with a purported minor. We disagree. Inducement to engage in unlawful conduct is not shown by evidence that law enforcement made a fraudulent representation; there must be evidence that the fraudulent representation created “a substantial risk that an otherwise law-abiding citizen would commit an offense.” Farley v. State, 848 So.2d 393, 395 (Fla. 4th DCA 2003) (quoting, United States v. Davis, 36 F.3d 1424, 1430 (9th Cir.1994)). A mere invitation under false pretenses is not synonymous with inducement. As the First Circuit Court of Appeal stated in United States v. Gifford, 17 F.3d 462, 468 (1st Cir.1994), “inducement can be found only when the government has ventured beyond a simple offer, say, by pleading with a defendant.” In our case, after the officer stated the purported minor’s age, the appellant participated enthusiastically in their exchange, suggested that they meet as soon as possible, and did not show any hesitation.

We turn next to the appellant’s claim that his conviction for unlawful use of a computer service violated the prohibition against double jeopardy because that offense is subsumed by the greater offense of traveling to meet a minor. He conceded in his reply brief and at oral argument that this court recently decided in State v. Murphy, 124 So.3d 323 (Fla. 1st DCA 2013), that a defendant’s comparable conduct provides the basis for a conviction for each of the two offenses under section 847.0135, without violating the prohibition against double jeopardy, “[i]n light of clear legislative intent to punish solicitation and traveling after solicitation separately.” Id. at 330-31. In contrast, the Fourth District has found a double-jeopardy violation when the defendant’s conduct all occurred on the same day during the course of one criminal episode, because the solicitation offense under section 847.0135(3) was subsumed within the traveling offense under section 847.0135(4). Hartley v. State, 129 So.3d 486, 2014 WL 51703 (Fla. 4th DCA 2014) (on motion for rehearing).

As we did in Elsberry v. State, 130 So.3d 798, 2014 WL 464058 (Fla. 1st DCA 2014), we certify conflict with Hartley.

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


author: LEWIS, C.J. WOLF, J.,

text:
    Gary HUGHES, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1174.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2014.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Jennifer J. Moore, Assistant Attorney General, and Lauren L. Brudnicki, Assistant Attorney General, Tallahassee, for Appellee.
   LEWIS, C.J.

Appellant, Gary Hughes, appeals his convictions and sentences for possession of a controlled substance with intent to sell and possession of drug paraphernalia, arguing that the trial court erred in denying his dispositive motion to suppress. We agree with Appellant that because his arrest was not supported by probable cause, the items seized during the search incident to the arrest should have been suppressed. We, therefore, reverse Appellant’s convictions and remand.

Appellant, who was charged with possession of marijuana with intent to sell and possession of drug paraphernalia, moved to suppress the evidence found on his person following his arrest. As found by the trial court, the officer at issue testified during the suppression hearing that he encountered a juvenile in a park smoking marijuana one day before Appellant’s arrest. The officer told the juvenile that he could avoid arrest by identifying his supplier. The juvenile told the officer that his supplier’s name was Gary and provided him with Gary’s phone number. He described Gary as being a “black male.” The officer at issue and another officer conducted approximately five calls with Gary, who agreed to sell marijuana at a specific street corner. The officer at issue testified that he disguised himself by putting a large shirt over his police uniform; his police uniform pants were visible.

At some point during one of the telephone conversations, Gary suggested that the officer go to his residence to complete the transaction. The officer testified that Gary instructed him to walk up Key Street and that Gary would alert him when he was at his residence. After the officer told Gary that he did not feel safe going to his residence, Gary agreed to go to the original intersection and informed the officer that he would be there in a few minutes with his cousin. The officer testified that within ten minutes of the last call, he observed two African-American men walking up Key Street. It was approximately 1:00 a.m., and no other people were visible in the area. One of the men saw the officer and “raised a hand in greeting.” According to the officer, he “guessed that that was him [Gary].” The officer approached and stated, “I’ve got your money.” One of the men stated, “f— your money,” and both men turned and walked away. After the officer identified himself, the two men ran in different directions. The officer eventually apprehended Appellant and, upon conducting a search incident to arrest, found on Appellant’s person a sandwich bag containing marijuana, thirty-nine empty baggies, and the cell phone on which the parties had been conversing. The officer testified that he arrested Appellant for “[a] charge of possession with intent to sell.” There was no evidence that the other man was ever identified.

During the suppression hearing, the trial court described the case as involving the “ragged edge” of probable cause. The court also stated, “I think we’re on thin ice to be candid about it.” In its subsequent order denying Appellant’s motion, the court found that the totality of the circumstances supported the officer’s conclusion that probable cause existed for Appellant’s arrest. Appellant subsequently pled nolo contendere to both counts while reserving his right to appeal. This appeal followed.

A trial court’s ruling on a motion to suppress comes to an appellate court clothed with a presumption of correctness. Connor v. State, 803 So.2d 598, 605 (Fla.2001). The reviewing court must interpret the evidence and reasonable inferences and deductions derived from the evidence in a manner most favorable to sustaining the trial court’s ruling. Id. A trial court’s ruling is a mixed question of law and fact. Id. The reviewing court must defer to the trial court’s factual findings as long as they are supported by competent, substantial evidence. Id. A trial court’s application of the law to the facts, however, is reviewed de novo. Id.

There are three levels of police-citizen encounters: (1) a consensual encounter during which a citizen may voluntarily comply with an officer’s request or choose to ignore him or her; (2) an investigatory stop during which an officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime; and (3) an arrest which must be supported by probable cause. Popple v. State, 626 So.2d 185, 186 (Fla.1993). To establish probable cause, the State must demonstrate that an officer had reasonable grounds to believe that the arrestee committed a crime. State v. Cuomo, 43 So.3d 838, 841 (Fla. 1st DCA 2010). The existence of probable cause is not based on a formulaic determination, but rather on the probability of criminal activity. Id.; see also Hatcher v. State, 15 So.3d 929, 931 (Fla. 1st DCA 2009) (noting that probable cause exists when the totality of the facts and circumstances within an officer’s knowledge would cause a reasonable person to believe that an offense has been committed by the person being arrested).

We find merit in Appellant’s argument that the officer lacked probable cause to arrest him. As Appellant contends, the only physical description of Gary given by the juvenile was that he was a “black male.” Although the phone number given by the juvenile led the officer to Gary, the juvenile, who had not previously served as an informant for authorities, was not present to identify one of the two men as Gary. Nor was there any evidence that the authorities had previously suspected Appellant of possessing or selling drugs. Cf. Bravo v. State, 963 So.2d 370, 371-72 (Fla. 2d DCA 2007) (holding that the officers had probable cause to arrest the appellant where the officers verified the details provided by the informant, the officers had identified the appellant from their prior surveillance operations as a suspected methamphetamine supplier, and the officers heard on the telephone the person whom the informant identified as the appellant stating that he would bring as much methamphetamine as he could); State v. Thomas, 960 So.2d 869, 872 (Fla. 2d DCA 2007) (concluding that probable cause to arrest existed where the confidential informant’s information was corroborated by the ap-pellee’s response to her telephone call, the informant described the appellee and provided his gang affiliation, an officer confirmed that he knew of an individual whose nickname was A.D. and that A.D. was a member of a gang and matched the informant’s description, the informant identified the appellee as A.D. in a parking lot, and the officers were able to observe the appellee’s actions in response to the controlled calls). Contrary to the dissent’s characterization of what occurred, the officer did not know that Appellant would come from a particular direction in order to consummate the drug deal. As we explained, the officer had no knowledge at the time that Appellant was Gary, the man with whom the sale had been arranged.

Moreover, although one of the two men raised his hand, the officer was unable to say that that man was the man he arrested. The officer testified that he “guessed” that that was Gary. On cross-examination, the officer acknowledged that he did not know which man raised his hand, and when asked if it could have been the other man, he replied “[i]t could have been.” There was no evidence that Gary’s cousin had any involvement in the planned transaction other than simply accompanying Gary. Given such, even if it could be said that the hand raising served as an ac-knowledgement of the phone calls and would have reasonably led the officer to suspect that the man was Gary, the fact that the officer did not know whether he was arresting the man who raised his hand further supports our conclusion that the officer did not have reasonable grounds to believe that the man he arrested committed the offense of possession of a controlled substance with intent to sell. See McCloud v. State, 787 So.2d 218, 218-20 (Fla. 2d DCA 2001) (reversing the appellant’s conviction for possession of cocaine with intent to sell because although the officer knew that a drug sale had occurred, he was unable to identify which of the two men present during the sale received money in exchange for drugs and noting that while the “circumstances in this case established a possibility that [the appellant] was the one who sold the drugs ... they were at least equally consistent with his simply being a bystander”).

While the dissent relies upon Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), in support of affir-mance, the United States Supreme Court held in that case that the respondent’s presence in a high-crime area along with his unprovoked flight gave rise to a reasonable suspicion sufficient to justify an investigatory stop. 528 U.S. at 125, 120 S.Ct. 673. Although there was no evidence presented in this case that the area at issue was a high-crime area, even if, as the dissent contends, the surrounding circumstances coupled with the men’s flight gave the officer reasonable suspicion to stop the men in order to investigate, we find the dissent’s reliance upon C.E.L. v. State, 24 So.3d 1181 (Fla.2009), misplaced.

In C.E.L., the Florida Supreme Court cited Wardlow and held that the defendant’s flight in a high-crime area created the reasonable suspicion sufficient to warrant a lawful investigatory stop and that the defendant’s “continued flight in knowing defiance of the officer’s lawful order to stop constituted the offense of obstructing without violence -” 24 So.3d at 1189. While the officer in this case identified himself when the men turned around, there was no evidence that he ordered the men to stop after identifying himself or after they fled. This situation is similar to one where an individual flees after seeing a person approach wearing a vest emblazoned with the word “sheriff’ or after seeing a police car arrive at the individual’s location. We do not believe, as the dissent does, that the facts before us constitute obstruction of justice. See O.B. v. State, 36 So.3d 784, 788 (Fla. 3d DCA 2010) (noting that the appellant ran in response to a police car pulling up to his location and one of the officers approaching with his gun drawn and distinguishing C.E.L. on the basis that there was no evidence that the appellant heard any order to stop when he “ ‘took off running”); S.B. v. State, 31 So.3d 968, 970 (Fla. 4th DCA 2010) (holding that the State failed to prove every element of the offense of resisting an officer where, although the appellant fled upon seeing the officers, there was no command to stop by the officers at the time the appellant fled). Cf. State v. Garcia, 126 So.3d 419, 419-20 (Fla. 2d DCA 2013) (citing C.E.L. and holding that the police, who exited a van wearing “Sheriff’ vests and yelling “Sheriffs Office,” had probable cause to arrest the appellee for resisting or obstructing an officer without violence based on his failure to cease his headlong flight in response to the officers’ directions for him to do so, which were made while the officers were chasing him).

Based upon the foregoing, the trial court erred in denying Appellant’s motion to suppress. Because the marijuana and drug paraphernalia should have been suppressed, Appellant is entitled to discharge. See Smith v. State, 95 So.3d 966, 970 (Fla. 1st DCA 2012) (holding that the trial court erred in denying the appellant’s motion to suppress and reversing and remanding with instructions to discharge the appellant for the offense); Majors v. State, 70 So.3d 655, 662 (Fla. 1st DCA 2011) (holding that the trial court erred in denying the appellant’s motion to suppress, reversing his convictions, and remanding with directions to discharge him for the offenses). We, therefore, reverse Appellant’s convictions and sentences and remand with instructions that he be discharged as to both offenses.

REVERSED and REMANDED with instructions.

ROBERTS, J., concurs; WOLF, J., dissents with opinion.

WOLF, J.,

dissenting.

In reviewing a motion to suppress, the trial court’s determination is presumed to be correct, and the reviewing court must interpret the evidence, reasonable inferences, and deductions derived from the evidence in a manner most favorable to sustaining the trial court’s ruling. See Connor v. State, 803 So.2d 598, 605 (Fla.2001). A court must also look at the totality of the circumstances and make common sense judgments and inferences about human behavior in determining the police’s authority to initiate a temporary detention. See Mackey v. State, 124 So.3d 176 (Fla.2013). Applying those concepts leads me to the conclusion that the officers acted reasonably in detaining appellant in this case. We, therefore, should affirm.

The officers had specific, particularized information that a drug deal was to occur at a specific time and place. The information supporting their knowledge came from a confidential informant, and it was verified by at least five telephone conversations between officers and appellant setting up the drug deal, one call just several minutes before the incident. Based on the phone calls, the officers knew that appellant, who was black, would come from a particular direction, to a prearranged location, at a specific time, in order to consummate the drug deal. In fact, appellant told the police that he was bringing his cousin along to the meeting, the sole purpose of which was for the sale of drugs. It was a reasonable conclusion that both men were part of a common criminal scheme. At the very least, it was reasonable for the police to investigate both parties’ potential involvement in this transaction.

At the time of the incident, it was 1:00 a.m. Two black men came from the expected direction at the expected time. They were approaching the prearranged location. No one else was on the street. One of the men made a hand gesture. When the officer said, “I got your money,” they yelled, “f— your money.” It was reasonable to infer this reaction was highly unusual behavior for an innocent person but consistent with a dealer who may have been spooked.

When the officer identified himself, the men fled. It would have been unreasonable for the officers not to follow up with their investigation at this point. The action of fleeing when coupled with the artic-ulable suspicion of criminal activity justified the actions of the officers in detaining the men. See Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (finding flight coupled with other circumstances such as a high crime area justified Terry stop). Wardlow stands for the proposition that fleeing is one circumstance which may be considered along with other factors that may lead the police to believe that reasonable suspicion exists. The other circumstances leading to a reasonable suspicion do not necessarily have to include that the incident occurred in a high crime area. Limiting Wardlow in this fashion, as suggested by the majority, ignores the dictates of the Supreme Court to consider the totality of the circumstances. In fact, the specific knowledge of an imminent drug deal coupled with fleeing is far more compelling than just a general knowledge that an area is a high crime area.

Once the police had reasonable suspicion, the act of fleeing constituted obstruction of justice. C.E.L. v. State, 24 So.3d 1181 (Fla.2009) (finding continued flight after legally justified verbal order to stop constitutes obstruction of justice). It is not necessary, as suggested by the majority, that the police use the magic word “stop” to let the suspect know that the police wish to interrogate him. In this case, the officer announced specifically that he was a police officer and directed his comments to the suspects. When the men fled, the officer immediately chased after the individuals. These circumstances were sufficient to put appellant and his companion on notice that the police wished them to stop.

This is unlike the situation in O.B. v. State, 36 So.3d 784 (Fla. 3d DCA 2010), and S.B. v. State, 31 So.3d 968 (Fla. 4th DCA 2010), relied on by the majority, where there was no assertion of authority directed to any particular individual prior to the individual fleeing.

I would affirm.


author: VAN NORTWICK, J.

text:
    Debrah GADOL, Appellant, v. MASORET YEHUDIT, INC./ U.S. ADMINISTRATOR CLAIMS, Appellees.
    No. 1D13-2567.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2014.
    Kimberly A. Hill of Kimberly A. Hill, P.A., Fort Lauderdale, for Appellant.
    Cindy R. Galen of Eraclides, Gelman, Hall, Indek, Goodman & Waters, LLC, Sarasota, and Michael D. Kiner of Era-clides, Gelman, Hall, Indek, Goodman & Waters, LLC, West Palm Beach, for Ap-pellees.
   VAN NORTWICK, J.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) denying Claimant his choice of doctor to serve as the “one-time change” of physician to which he is entitled under section 440.13(2)(f), Florida Statutes (2012). Claimant argues the JCC erred in interpreting that statute to permit the Employer/Carrier (E/C) to select the replacement physician despite the E/C’s failure to authorize a specific physician within five days of Claimant’s request for authorization of a one-time change. We agree, reverse the order, and remand for entry of an order consistent with this opinion.

The parties agree to the following facts. On October 22, 2012, Claimant requested a one-time change of physician pursuant to section 440.13, Florida Statutes (2012). On October 29, 2012, the E/C attempted to make arrangements with Dr. Berkowitz, but his office declined; Claimant was not notified of this effort. On November 12, 2012, the E/C informed Claimant that an appointment with Dr. Sheikh had been scheduled for November 20, 2012. Later on the morning of November 12, Claimant “notified Defense Counsel (via staff members) that the Claimant would not be attending the appointment with Dr. Sheikh on 11/20/12 due to untimely notice.” On the afternoon of November 12, Claimant faxed to the E/C a petition for benefits (PFB) seeking to select her own one-time change doctor. She specifically named Dr. Ellowitz as her selection. Meanwhile, the E/C rescheduled the appointment with Dr. Sheikh to December 4, 2012, and notified Claimant of this new appointment on the morning of November 14, 2012. On the afternoon of November 14, 2012, Claimant filed her November 12 PFB with the Office of the Judges of Compensation Claims.

Section 440.1S(2)(f), Florida Statutes (2012), provides as follows:

Upon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident. Upon the granting of a change of physician, the originally authorized physician in the same specialty as the changed physician shall become deauthorized upon written notification by the employer or carrier. The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days after receipt of the request. If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is compensable and medically necessary.

The substantive benefit provided in section 440.13(2)(f) is a claimant-initiated, one-time change of physician, without regard to medical necessity. See Sunbelt Health Care v. Galva, 7 So.3d 556, 561 (Fla. 1st DCA 2009). A PFB can constitute the “written request of the employee.” See HMSHOST Corp./Gallagher Bassett Servs. Inc. v. Frederic, 102 So.3d 668 (Fla. 1st DCA 2012). An E/C timely responds by informing the claimant of the new doctor’s name; a timely response does not require the E/C to actually contact or schedule an appointment with the new doctor. See id. The five-day response period in this statute refers to calendar days, not business days. See Hinzman v. Winter Haven Facility Operations LLC, 109 So.3d 256, 257 (Fla. 1st DCA 2013).

The JCC here ruled,
I interpret the statute (‘the employee may select the physician’) and the Pruitt [v. Southeast Personnel Leasing, Inc., 33 So.3d 112 (Fla. 1st DCA 2010),] decision to give the claimant the right to select his or her change of physician immediately upon expiration of the 5 days and claimant maintains that right up until the moment the E/C authorizes an alternative physician at which time that right is lost.

Our review is de novo. See Lombardi v. S. Wine & Spirits, 890 So.2d 1128, 1129 (Fla. 1st DCA 2004) (holding statutory interpretation is subject to de novo review).

We hold that the JCC’s interpretation goes beyond the plain language of the statute, which permits a claimant to select a doctor, if the claimant so elects, should the E/C fail to provide a change of physician (of the E/C’s choosing) within five days of receiving the claimant’s request for a one-time change. See Perez v. Rooms To Go, 997 So.2d 511, 512 (Fla. 1st DCA 2008) (holding that, in construing statute, courts must first look to its plain language). As demonstrated in Pruitt (where the claimant never named his selection of doctor, and treated with the employer/carrier’s selection of alternative physician), a claimant can waive the right to select the doctor. This court has also held, however, that a claimant’s naming a doctor forty-one days after requesting a one-time change and twenty-two days after an employer/carrier authorized an alternative physician, where the claimant did not attend an appointment scheduled with the employer/carrier’s choice, does not constitute such a waiver. See Harrell v. Citrus Cnty. Sch. Bd., 25 So.3d 675 (Fla. 1st DCA 2010) (holding “Claimant was entitled to select her own physician” where E/C named onetime change 19 days after claimant’s request, and claimant named her selection of doctor). It follows that Claimant’s naming her selection here twenty-one days after her request and the same day as the E/C authorized an alternative physician, and Claimant’s declining to attend an appointment with the E/C’s choice, does not constitute such a waiver.

REVERSED and REMANDED for entry of an order in accord with this opinion.

PADOVANO and ROWE, JJ., concur.

      . The quoted text is a quote from the joint stipulation of facts.