author: WARNER, J.

text:
    FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES and The Florida Commissioner of Agriculture, Appellants, v. David MENDEZ and Lillian Mendez, on behalf of themselves and all others similarly situated, Appellees.
    No. 4D11-3271.
    District Court of Appeal of Florida, Fourth District.
    Oct. 16, 2013.
    Rehearing Denied Dec. 11, 2013.

      Wesley R. Pax-sons and Karen H. Curtis of Clarke Silverglate, P.A., Miami, for appellants.
    William S. Williams and Margaret M. Bichler of Lytal Reiter, LLP, West Palm Beach, Robert C. Gilbert of Grossman Roth, P.A., Coral Gables, Jamie Alan Cole of Weiss Serota Helfinan Pastoriza Cole & Boniske, P.A., Fort Lauderdale, and Michael J. Pucillo of Berman DeValei-io, for appellees.
   WARNER, J.

The Department of Agriculture appeals a multimillion dollar judgment in a class action for inverse condemnation. The class action sought compensation as a result of the Depai-tment’s destruction of thousands of citrus tx-ees in Palm Beach County during the Department’s Citrus Canker Eradication Program (CCEP). The Department raises multiple issues dealing both with the court’s order establishing a taking, as well as with the jury trial on compensation. We address the Department’s contention that the trial court failed to apply the correct statutory presumption of harm and burden of proof in the takings portion of the trial as well as the exclusion of scientific evidence in the compensation portion of the trial. As to the application of the statutory presumption in the takings trial, not only was the evidence establishing a taking overwhelming, thus meeting the burden of proof to overcome the presumption, the issue of a compensable taking had already been resolved in Haire v. Florida Department of Agriculture and Consumer Services, 870 So.2d 774 (Fla.2004), and Patchen v. Florida Department of Agriculture and Consumer Services, 906 So.2d 1005 (Fla.2005). We reverse, however, the compensation trial, because the trial court excluded significant scientific evidence relevant to the appraisers’ valuation of the citrus trees.

Background

Florida has fought the plant disease of citrus canker for decades. It affects citrus trees by attacking their fruit, leaves and stems, causing leaf drop and unsightly fruit blemishes, even though the fruit remains edible. The bacteria which causes it is spread by wind, rain, and contamination of equipment used on trees. The history of citrus canker in Florida and the efforts to eradicate it have already been well documented in legal opinions. See Haire v. Fla. Dep’t of Agric. & Consumer Servs., 870 So.2d at 778-79; Fla. Dep’t of Agric. & Consumer Servs. v. Haire, 836 So.2d 1040, 1043-46 (Fla. 4th DCA 2003); Fla. Dep’t of Agric. & Consumer Servs. v. City of Pompano Beach, 792 So.2d 539, 541-42 (Fla. 4th DCA 2001).

The state’s main strategy to fight the disease, which has no cure, has been to eradicate it by identifying and destroying diseased trees, as well as surrounding exposed trees. At first, the Department destroyed trees within 125 feet of an infected tree. See Dep’t of Agric. & Consumer Servs. v. Mid-Florida Growers, Inc., 521 So.2d 101, 102-03 (Fla.1988). In Mid-Florida Growers, our supreme court held that, although the State acted under its police power in destroying the trees, it was still required to compensate owners for the destruction of healthy trees which were not diseased. The court rejected the Department’s contention that all exposed trees were unhealthy and thus required no compensation. The court concluded that whether a taking has occurred must be determined from the facts and circumstances of each case. Id. at 103-04.

Finding that the 125-foot barrier was ineffective to stem the spread of the disease, the Department obtained another study which established a 1,900-foot radius from an infected tree, within which exposed trees should be destroyed to prevent spread and eradicate the disease. The Department first adopted a rule, followed by the enactment of section 581.184, Florida Statutes (2003), requiring the destruction of infected trees and all trees within a 1,900-foot radius of an infected tree. Section 581.184, Florida Statutes, provided methods of implementing the plan, and section 581.1845, Florida Statutes (2003), authorized compensation to homeowners for trees removed pursuant to the program at a set amount of $100 per tree. In apparent recognition of the constitutional implications of the taking of private property, the statute specifically provided that the compensation provided in the statute did not limit the amount which may be provided by court order for trees destroyed through the program. § 581.1845(4), Fla. Stat. (2003).

In Haire, our supreme court upheld the constitutionality of section 581.1845 as a valid exercise of the state’s police power requiring compensation for destroyed trees which were uninfected, albeit exposed:

[W]e conclude that under the statutory scheme the State is obligated to provide more than token compensation if the State has destroyed a healthy, albeit exposed tree.10 Section 581.1845 expressly states that the specified per-tree amount “does not limit the amount of any other compensation that may be paid ... pursuant to court order for the removal of citrus trees as part of a citrus canker eradication program.” § 581.1845(4) (emphasis supplied). Thus, the Citrus Canker Law sets a compensation floor that is consistent with the established principle that “the determination of what is just compensation ... is a judicial function that cannot be performed by the Legislature.” [State Plant Bd. v.] Smith, 110 So.2d [401] at 407 [ (Fla.1959) ] (quoting Spafford v. Brevard County, 92 Fla. 617, 110 So. 451, 454 (1926)).
In accord with our precedent, we conclude that the schedule established by the Legislature sets a floor but does not determine the amount of compensation. When the State destroys private property, the State is obligated to pay just and fair compensation as determined in a court of law. We emphasize that the fact that the Legislature has determined that all citrus trees within 1900 feet of an infected tree must be destroyed does not necessarily support a finding that healthy, but exposed, residential citrus trees have no value.
10 The petitioners agree that if a citrus tree shows visible signs of the disease and is therefore "infected,” there is no compensable taking.

Haire, 870 So.2d at 785.

Because the court had determined in Department of Agriculture and Consumer Services v. Polk, 568 So.2d 35 (Fla.1990), that citrus trees in a commercial nursery within 125 feet of an infected tree had no marketable value, the question remained as to whether exposed residential trees within 1,900 feet of an infected tree also were of no value, and thus required that no compensation be paid for their destruction. In Patchen, the court answered that question by stating that homeowners whose trees were within the ambit of section 581.1845 were not governed by Polk because the Legislature itself had established that they were due compensation for their trees:

The 2002 statute clearly intends that the petitioners be included within the homeowners covered by section 581.1845(2) in that their citrus trees were removed as part of a citrus canker eradication program after January 1, 1995. Polk does not apply to these homeowners. Rather, these homeowners and others similarly situated who meet the requirements of section 581.1845(2)(a), (b), and (c), may receive compensation pursuant to that statute as construed and upheld in our decision in Haire ....

906 So.2d at 1008. This included the statutorily authorized per tree compensation, as well as any court-ordered compensation contemplated by the statute. In a concurring opinion, Justice Pariente noted, “Molding that the statute applies under the circumstances of this case relieves the homeowners of the burden of proving that a taking occurred, thereby eliminating the need to litigate issues such as whether the trees were a nuisance or presented an imminent danger.” Id. at 1009 (emphasis added, footnote omitted).

The Non-Jury Trial on Liability

The present case, which began in 2000, eventually evolved into an inverse condemnation and declaratory judgment class action. The class consists of all homeowners in Palm Beach County whose trees were destroyed pursuant to the CCEP. This court affirmed certification of the class in Castin v. Department of Agriculture and Consumer Services, 901 So.2d 1020, 1021 (Fla. 4th DCA 2005).

In their request for declaratory judgment, the plaintiffs alleged a dispute between the Department and the plaintiffs as to the extent of the rulings of Haire and Patchen. Specifically, the Department claimed that these cases abrogated the homeowners’ right to a remedy by inverse condemnation and did not eliminate the plaintiffs’ obligation to establish a taking. The trial court denied the Department’s motion for summary judgment on this issue and proceeded to a non-jury trial on the remaining issues. Two of these issues are relevant to the issues raised in this appeal: (1) whether the destruction of exposed but non-infected citrus trees within a 1,900-foot radius of an infected tree constituted a taking of private property; and (2) whether trees within the 1,900-foot radius which were exposed but not infected were an imminent threat to public health, safety, and welfare and constituted a public nuisance.

After a lengthy trial on these issues, where the court heard voluminous scientific evidence regarding citrus canker, its spread, and the development of the 1,900-foot buffer, the court entered a comprehensive order analyzing the takings issue and the public nuisance issue. It found that the Department had not proved that all non-infected trees within the 1,900-foot radius would become infected with the canker virus. Therefore, the destruction of the trees constituted a taking, and exposed trees did not constitute a public nuisance.

The Jury Trial on Compensation

The case proceeded to a jury trial on compensation. The Department sought to present to the jury much of the scientific evidence that it had presented during the non-jury trial. The court excluded all scientific evidence, both on citrus canker and citrus greening, another citrus disease which actually kills the tree. It determined that this evidence was duplicative of the evidence presented in the liability trial, would undermine the trial court’s findings that the trees were healthy, and was not testimony concerning the value of the destroyed trees.

The plaintiffs offered experts on tree appraisal. One expert, John Harris, testified that factors to consider when appraising a tree are species, size, condition, pest problems, and any prior maintenance. These are put into a calculation to create a single value for a “perfect” tree. Adjustments to that value are then made. Species value constitutes one important adjustment. The Florida Chapter of the American Society of Arboriculture publishes a species guide with percentages by which an appraiser can depreciate the value of a given species based upon maintenance requirements, susceptibility to disease, and other factors. This guide had not been updated since the late 1990’s. The appraiser has discretion in selecting which depreciation percentage to use. Based upon his experience with appraising citrus trees with no outward signs of exposure, Harris appraised the citrus trees involved in this litigation at 75% of full value.

Eric Hoyer, the plaintiffs second appraiser, testified that an appraisal is a “snapshot” in time and does not account for future events. Appraising a tree is both “art and science,” the science being in the knowledge of the tree, soils, maintenance, etc.; the art being in selecting the appropriate methodology to appraise the tree. He relies on species, size, condition and location. In this case, he did not rely on species ratings, because he could obtain actual cost of replacement during the period the plaintiffs’ trees were destroyed. As to condition, he relied on the Department’s ratings of each destroyed tree as “good-fair-poor” and assigned a condition rating of 85%-60%-30% based upon the Department’s field findings. He assigned an across-the-board location rating of 75%. He then researched the cost of replacing citrus trees during the relevant time period of 2000-2005 in Palm Beach County, allowing for different prices for different sized trees and adding in installation costs. He determined the final value of a tree of a particular size by multiplying (reducing) the replacement cost by the condition percentage rating and location percentage rating of the trees.

The plaintiffs also offered testimony from Palm Beach County citrus nursery owners to establish the replacement cost of citrus trees of various sizes during the period of the tree destruction. Over the objection of the Department, a former assistant director of the Department testified as to calculations she made regarding the cost of replacing citrus trees. A professional economist then calculated the average price of a tree destroyed during the program. Based upon the agreed total of 66,468 non-infected trees destroyed, he opined that the aggregate amount due to the class was $29,135,713.00, prior to reductions for the compensation paid pursuant to section 581.1845 and other grants given by Palm Beach County.

The Department also presented a tree appraiser as part of its case. Chuck Lippi was permitted to testify, but the court refused to allow him to present any information regarding canker or any other citrus disease which would suggest that the trees were anything other than healthy. Specifically, the court directed:

[Tjhere is not to be any testimony about these trees and scientific knowledge and documentation to support the imminency of these trees at issue in this case contracting citrus canker, but if you have an opinion based on your expertise and skill and knowledge and work in the field that citrus trees, based on the type and species they are, are prone to certain factors, one of them being the contraction of certain diseases such as greening or citrus canker, and that would impact wholesale the rating from an 80 percent rating down to a 25 percent rating, then that may be something that would be permissible for you to testify about, if you have expertise to testify about that. But it’s not going to be testimony about these trees becoming unhealthy because they were within a 1,900-foot radius. We’ve already dealt with that issue.

Lippi then testified that in his opinion, in light of the prevalence of citrus canker in South Florida at the time of the takings, the species ratings of the trees should be 25% based on his opinion that the trees were “starting to be worthless.” This would result in a substantially lower per tree value than testified to by the plaintiffs’ experts. A juror asked Lippi why his value was so low compared to the published species ratings. Given the court’s limitations on his testimony, he replied that he thought the published ratings were inaccurate due to the spread of citrus canker.

The head of the CCEP, Richard Gaskal-la, explained in brief detail, without scientific findings, the establishment of the program for destruction of the trees. He testified that citrus trees were susceptible to many plant diseases. Given the prevalence of canker in South Florida, he viewed the destroyed trees as having a zero value.

A certified public accountant then presented his calculation of value based upon the Department’s evidence of value. Using Lippi’s rating factors to reduce the value, he arrived at a range of cost between $887,000.00 and $1.3 million.

The court instructed the jury that the sole issue for their determination was the value of the destroyed trees:

The Court previously determined that the defendant’s destruction of the 66,493 trees owned by the plaintiffs, and the class of Palm Beach County homeowners, constituted a taking, entitling the plaintiffs, as members of the class, and the class, to full compensation under the Florida Constitution. Your sole responsibility in this trial is to determine the amount of compensation due to plaintiffs, as members of the class, and the class, for their trees which were destroyed by the Defendants.
The issue of whether defendants were legally authorized to destroy these trees, and whether these trees should or should not have been destroyed, is not a matter to be decided by you. I have already determined that, one, defendants destroyed 66,493 residential citrus trees owned by plaintiffs and members of the class. Two, the citrus trees owned by plaintiffs and members of the class were not determined to be infected with citrus canker at the time they were destroyed. Three, the citrus trees owned by the plaintiffs and members of the class had compensable value at the time they were destroyed. And, four, the proper way to determine the full amount of compensation due to plaintiffs and members of the class who owned these 66,493 trees, is based on the replacement cost of the trees.

The jury ultimately awarded the plaintiffs compensation based upon an average per-tree value of $210.00, resulting in a net judgment of $12,211,704.00, after reductions for the statutory and county compensation. Addition of interest increased the final judgment to $19,222,490.52. The Department appeals the final judgment.

After the final judgment, this court decided Department of Agriculture and Consumer Services v. Bogorff, 35 So.3d 84 (Fla. 4th DCA), rev. denied, 48 So.3d 835 (Fla.2010), an identical class action involving homeowners of destroyed citrus trees in Broward County. In Bogorff, we held that the compensation remedy provided in section 581.1845, did not supplant inverse condemnation as a remedy for a constitutional taking:

If it is not yet clear, the point is that the common law and statutory provisions for inverse condemnation do not displace the constitutional requirement for just compensation when the State destroys privately owned property to aid some industry. The only effect of § 581.1845 is to set an opening bid for the price the State will pay without litigation. As the court said in Patchen v. Fla. Dep’t of Agric. & Consumer Servs., 906 So.2d 1005, 1008 (Fla.2005):
“Citrus Canker Law sets a compensation floor that is consistent with the established principle that ‘the determination of what is just compensation ... is a judicial function that cannot be performed by the Legislature’ ” [quoting Haire, 870 So.2d at 785 (quoting State Plant Board, 110 So.2d at 407 (quoting Spafford v. Brevard County, 92 Fla. 617, 110 So. 451, 454 (1926)))].

Id. at 90-91. If the compensation required by the Constitution exceeds the statutory amount, the State will have to pay that amount. Since then, the Third District has agreed that the statutory compensation does not eliminate the remedy of inverse condemnation. See Lopez-Brignoni, 114 So.3d at 1141-42. We adhere to these cases.

Applicability of Section 11.066(2)

The Department claims that the trial court erred in the takings trial by failing to apply the presumption contained in section 11.066(2), Florida Statutes, as well as the burden of proof to overcome that presumption. That statute provides:

(2) The state and each state agency, when exercising its inherent police power to protect the public health, safety, or welfare, is presumed to be acting to prevent a public harm. A person may rebut this presumption in a suit seeking monetary damages from the state or a state agency only by clear and convincing evidence to the contrary.

When the Department first raised the applicability of this statute after seven years of litigation, the plaintiffs responded that the statute did not apply because they did not contest the fact that the State was exercising its inherent authority pursuant to the police power in destroying the citrus trees. Indeed, Haire clearly established the State’s power to enact section 581.1845 and to destroy the trees. 870 So.2d at 782-83 (“There is no question that the protection of the citrus industry is a legitimate objective for the use of the State’s police power.”).

The Department seeks to use the presumption to preclude compensation for the destroyed trees, because the statute presumes that the State acted to prevent a public harm. Even if the presumption applies, however, it does not make the destroyed trees valueless for purposes of a constitutional takings claim. Only where the property is imminently dangerous may the state take the property without compensation. In Haire, the court relied on its prior opinion in Corneal v. State Plant Board, 95 So.2d 1 (Fla.1957), to explain that only in the narrowest of circumstances is compensation not required when the state destroys private property:

[W]e have also recognized that the “absolute destruction of property is an extreme exercise of the police power and is justified only within the narrowest limits of actual necessity, unless the state chooses to pay compensation.” Corneal, 95 So.2d at 4 (emphasis supplied). We have explained that
“[w]here property is destroyed in order to save property of greater value, a provision for indemnity is a plain dictate of justice and of the principle of equality,” and ... that statutory regulation of the power to destroy property in this situation “is always accompanied by statutory duty of compensation.”
Id. (quoting Ernst Freund, The Police Power: Public Policy and Constitutional Rights, §§ 534-35, at 564-65 (1904)) (alteration in original).
In Corneal, this Court specifically addressed the State’s destruction of healthy citrus trees as a means of controlling the spread of a citrus disease known as “spreading decline.” See id. at 2-3. The rule adopted by the State Plant Board to control the disease required the removal and burning of both infected and uninfected trees within a certain distance from infected trees. See id. at 3. The Court cited domestic animals infected with a contagious disease and a burning building as examples of circumstances that justify the destruction of property without compensation. See id. at 4. Distinguishing those situations, the Court held that because the burrowing nematode, which causes spreading decline, offers “no immediate menace to the trees in a neighboring grove” and the healthy citrus trees were not “imminently dangerous,” the regulation requiring the destruction of healthy trees without compensation exceeded the scope of the State’s police powers. Id. at 6.
Under Comeal, in order for the Legislature to enact a valid statute pursuant to its police power that results in a total destruction of property without compensation, the statute must be justified by “the narrowest limits of actual necessity” and the threat must be “imminently dangerous.”

Haire, 870 So.2d at 783-84.

The supreme court pointed out in Haire, relying on our prior decision in Florida Department of Agriculture and Consumer Services v. Haire, 836 So.2d 1040, 1060 (Fla. 4th DCA 2003), that in the case of the CCEP, the Legislature recognized the need for compensation for the uninfected trees destroyed as a result of the program, thus conceding that this was a compensa-ble taking which did not involve property imminently dangerous to the public welfare. Haire, 870 So.2d at 784-86; see also Patchen, 906 So.2d at 1008. Thus, the presumption of mere “harm,” as opposed to imminent dangerousness, does not render the taking non-compensable. The Department’s position has been soundly rejected both by the Legislature and by all courts considering the issue.

Even if section 11.066(2) applied, however, there was undisputed evidence before the trial court that the State acted within its police power to destroy the uninfected trees, which were not imminently dangerous to the public as that concept has been interpreted since Corneal. As the trial court noted, the evidence was overwhelming on this issue. Thus, if the presumption of section 11.066(2) had been applied, the plaintiffs’ evidence overwhelmingly rebutted any claim that the harm was the type of dangerous harm which would preclude compensation for the taking of the trees.

Because section 11.066(2) applies only to the presumption of public harm, it is not applicable to the question of damages. The question of whether a compen-sable taking has occurred is a question for the court in an inverse condemnation case. See Mid-Florida Growers, 521 So.2d at 104 (“[T]he trial judge in an inverse condemnation suit is the trier of all issues, legal and factual, except for the question of what amount constitutes just compensation.”); see, e.g., Rubano v. Dep’t of Transp., 656 So.2d 1264, 1265-66 (Fla.1995) (reviewing trial court’s finding that a taking had occurred). The jury determines the amount of compensation but does not readdress whether a taking has occurred. See § 73.071(3), Fla. Stat. (2011) (“The jury shall determine solely the amount of compensation to be paid”) (emphasis added). Thus, even if the statutory presumption applied to the liability finding, it does not apply to the valuation of the trees.

Exclusion of Scientific Evidence

During the compensation trial, the court erred, however, in excluding the scientific evidence regarding citrus canker, as well as other citrus pests and their effects. The court also excluded evidence that the destroyed trees were within the 1,900-foot radius of an infected tree. The court ex-eluded the evidence because the court viewed it as contradictory to the determination in the liability trial that the trees were healthy and had value. Moreover, the court found that the scientists could not testify to the value of the trees.

While the scientists could not testify to value, the scientific evidence regarding the diseases faced by citrus trees was relevant to the evaluation of the various appraisers’ determinations of value. All of the appraisers used species ratings and conditions ratings in their appraisals. Those ratings were based, in part, on factors such as susceptibility to disease. What and why deductions from those ratings were taken by each appraiser was a matter of expert opinion. The plaintiffs’ appraisers’ deductions differed substantially from those used by the Department’s appraiser. A juror even questioned Lippi, the Department’s appraiser, on his reasons for this discrepancy. The scientific evidence was relevant to explain his expert analysis and was part of the facts and data he relied on for his opinion.

As the trial court properly noted, determination of the value of property in a condemnation proceeding is the province of the jury. See § 73.071(3), Fla. Stat. (2011). “A jury in an eminent domain proceeding should receive all evidence relevant to the value of the property being taken.” C.E. Huffman Trucking, Inc. v. Red Cedar Corp., 723 So.2d 296, 298 (Fla. 2d DCA 1998). “[A]ny factor, including public fear, which impacts on the market value of land taken for a public purpose may be considered to explain the basis for an expert’s valuation opinion.” Fla. Power & Light Co. v. Jennings, 518 So.2d 895, 899 (Fla.1987). The supreme court reinforced the admissibility of all relevant evidence on the issue of the value in Department of Agriculture and Consumer Services v. Polk, 568 So.2d 35, 41 (Fla.1990):

Fair market value is generally defined as what a willing buyer would pay to a willing seller, neither party being obligated to act. Inherent in the concept of a willing buyer and a willing seller is that both buyer and seller are aware of all relevant facts regarding the property at issue.

(citation omitted). Thus, in Polk, the court held that the trial court erred in excluding evidence of citrus tree nursery owners that they would not have purchased trees from a dealer where citrus canker had been discovered, regardless of the condition of the trees. Id. at 41-42.

The supreme court considered an analogous situation in Finkelstein v. Department of Transportation, 656 So.2d 921 (Fla.1995). In a condemnation proceeding, the trial court excluded the department’s evidence of contamination of the property taken, which the department had sought to introduce to show the basis of their appraiser’s opinion of value. The supreme court held that the evidence of contamination of the property was relevant to explain the reason for the decrease in value as testified to by the appraiser. Id. at 922-24. Just as evidence of public fear of power lines was relevant to an expert’s value determination in Jennings, evidence of contamination would be relevant to explain the expert appraiser’s decrease in value. Id. at 924; see also Jennings, 518 So.2d at 899; Polk, 568 So.2d at 41.

Here, an understanding of the diseases to which citrus trees were subject and their increasing susceptibility to those diseases was relevant to Lippi’s testimony regarding his calculation of a species rating, an essential element of the determination of value of the trees. Even a juror asked to understand the difference between Lippi’s rating and the plaintiffs’ experts’ ratings, a difference that could not be adequately explained without reference to the science of the diseases and how they spread. Moreover, the fact that the trees in question were within the radius of an infected tree was relevant to the reduction in species rating for these trees. Without the science, the expert’s species rating, which impacted value, is not explained. The court thus excluded evidence relevant to the factors impacting the value of the trees, which were the property taken.

In Finkelstein, the supreme court noted that evidence of contamination which resulted in decreased value should not be a feature of the trial because of its prejudicial nature. 656 So.2d at 925-26. Similarly, in this case, the science of citrus canker should not be a feature of the trial “beyond what is necessary to explain facts showing a reduction in value.” Id. at 925. Thus, while the court erred in entering a blanket exclusion of all six scientists and all of their testimony, on retrial the trial court should limit the testimony of the scientific experts to evidence which is necessary to explain the disease and its effect on citrus trees. In other words, our ruling does not compel the admission of all of the scientific evidence introduced in the liability trial. The evidence admitted should be sufficient to explain the appraiser’s reason for using the lower species rating, thus decreasing value of the destroyed trees.

For the foregoing reasons, we affirm the trial court’s order on liability but reverse the final judgment on compensation because of the exclusion of relevant testimony. We affirm as to all of the remaining issues presented.

Reversed and remanded for a neiv trial on compensation in accordance with this opinion.

DAMOORGIAN, C.J., and CONNER, J., concur.

      . For trees destroyed during the 2003-04 fiscal year, the Legislature authorized only $55 per tree. § 581.1845(6), Fla. Stat. (2003).

      . The location value has not been challenged in this appeal, as it was in Florida Department of Agriculture and Consumer Services v. Lopez-Brignoni, 114 So.3d 1138 (Fla. 3d DCA 2012); therefore, we do not express an opinion on its validity.


source: Caselaw Access Project

author: GERBER, J.

license: Public Domain

text:
    Michael P. DEFANTI, as Personal Representative of the Estate of Raymond George Russell, Appellant, v. Carol Catherine RUSSELL and Russelectric, Inc., et al., Appellees.
    No. 4D12-2583.
    District Court of Appeal of Florida, Fourth District.
    Oct. 23, 2013.
    Rehearing Denied Dec. 16, 2013.
    John G. Crabtree and George R. Baise, Jr. of Crabtree & Associates, P.A., Key Biscayne, and Thomas J. Sasser and Jorge M. Cestero of Sasser Cestero & Sasser, P.A., West Palm Beach, for appellant.
    Jane Kreusler-Walsh and Stephanie L. Serafín of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, and Joel M. Weissman of Joel M. Weissman, P.A., West Palm Beach, for appellee Carol Catherine Russell.
    No appearance for appellee Russelectric, Inc.
   GERBER, J.

This is an appeal from the circuit court’s order granting the former wife’s amended sworn motion for summary judgment, which sought an interim partial distribution of marital assets in a dissolution of marriage case. The former husband’s estate argues that the former wife was not entitled to the interim partial distribution because she did not show the statutorily-required good cause. We agree with the estate and reverse.

The good cause requirement for an interim partial distribution arises from section 61.075(5), Florida Statutes (2012). Section 61.075(5), in pertinent part, states:

If the court finds good cause that there should be an interim partial distribution during the pendency of a dissolution action, the court may enter an interim order that shall identify and value the marital and nonmarital assets and liabilities made the subject of the sworn motion, set apart those nonmarital assets and liabilities, and provide for a partial distribution of those marital assets and liabilities.
(a) Such an interim order shall be entered only upon good cause shown and upon sworn motion establishing specific factual basis for the motion. The motion may be filed by either party and shall demonstrate good cause why the matter should not be deferred until the final hearing.
(d) As used in this subsection, the term “good cause” means extraordinary circumstances that require an interim partial distribution.

§ 61.075(5), Fla. Stat. (2012) (emphasis added).

Here, the former wife’s sworn motion did not expressly address section 61.075’s good cause requirement. Instead, the former wife alleged that, pursuant to a pretrial stipulation, the parties agreed to divide certain of their liquid assets equally, but after the pretrial stipulation, the former husband continued to retain the former wife’s one-half share. The former wife further alleged that the former husband, at his deposition, acknowledged that she was entitled to her one-half share:

Former Wife’s counsel: Is there any doubt in your mind that you owe your wife the [one-half share] as of today? Any doubt?
Former Husband: No.

After citing other similar deposition excerpts, the former wife’s motion argued: “In light of the Husband’s [repeated] testimony acknowledging that the Wife is ... entitled to the [one-half share], it is enigmatic to the Wife that he could contest this Motion and continue to withhold the dollars; nevertheless, the Husband continues to do so.”

The former husband’s memorandum in opposition argued that the former wife’s motion offered no showing of good cause, that is, extraordinary circumstances which required an interim partial distribution of her one-half share. The former husband pointed out that the stipulation upon which the former wife relied created no entitlement for the former wife to receive her one-half share before trial or a final settlement. The former husband also reminded the court that the former wife requested the same interim partial distribution in two prior motions in the prior two years, and the court denied both motions because the former wife had not shown good cause. The former husband further argued that the former wife could not show good cause for the interim partial distribution because she already had received a stipulated eight-figure interim partial distribution during the dissolution proceedings.

After a non-evidentiary hearing, the circuit court granted the motion. This appeal followed.

Normally, we would review an order granting an interim partial distribution for an abuse of discretion. Cf. Zvida v. Zvida, 103 So.3d 1052, 1055 (Fla. 4th DCA 2013) (“The standard of review of a trial court’s determination of equitable distribution is abuse of discretion.”) (citation and quotations omitted). However, because the former wife sought the interim partial distribution through a motion for summary judgment, our review is de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000) (standard of review of an order granting a motion for summary judgment is de novo).

We conclude that the former wife did not show without genuine issue of material fact that extraordinary circumstances required an interim partial distribution of her one-half share of the liquid assets. See id. (“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.”). As the husband’s memorandum in opposition argued, the former wife’s motion offered no showing of good cause, that is, extraordinary circumstances which required the interim partial distribution. Thus, the circuit court should have denied the former wife’s motion pending trial, at which time the court could have included the former wife’s one-half share as part of its determination of whether to impose an equal or unequal distribution of the parties’ marital assets and liabilities pursuant to section 61.075(1), Florida Statutes (2012).

Reversed.

WARNER and CIKLIN, JJ„ concur.

      . After the former husband filed the initial brief, the former husband passed away. The former husband’s personal representative has substituted for the former husband.


author: PER CURIAM.

text:
    Angela Lorraine STRACAR, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-278.
    District Court of Appeal of Florida, Fourth District.
    Oct. 23, 2013.
    Rehearing Denied Dec. 11, 2013.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Angela Stracar, was convicted following a jury trial of two counts of vehicular homicide. She challenges those convictions, arguing that the trial court erred in denying her motions for judgment of acquittal on the basis that the State’s evidence failed to show that she was driving in a reckless manner sufficient to prove the charges. We agree, and reverse.

The trial court recounted the facts of the case in its written order denying the motions for judgment of acquittal. That order states, in pertinent part:

The evidence at trial was that the Defendant [Stracar] was driving a vehicle which left the roadway, traveled along a sidewalk and a grassy area, crossed a divided roadway and hit a sign which launched the car over a median of the intersecting street and land[ed] on the victims car crushing the two occupants. Ms. Stracar traveled ... for over 500 feet at approximately 40 miles per hour. She suffered no serious injuries and was found conscious in her vehicle at the scene. She had to be removed through the roof due to crash damage.

There was no evidence of any braking or other attempt by appellant to avoid the crash, nor were there any curves in the roadway which would have contributed to appellant losing control of her vehicle. The evidence showed that, at the time of the incident, the weather conditions were optimal and the pavement was dry.

Appellant was transported to the local hospital, and her blood was drawn approximately three hours after the crash. Test results showed her blood alcohol concentration was less than .02%, THC from marijuana use at some undetermined time, oxycodone at a potentially therapeutic level, and Xanax within therapeutic levels. Although there was expert testimony that the central nervous system depressants found in appellant’s blood could have had an additive effect to impair her driving, there was no evidence of any unsafe or erratic driving at any point up to the time of the accident.

In reciting the facts regarding the accident, the trial court concluded that it was difficult to conceive how such driving could be considered anything but reckless, which is an essential element of the vehicular homicide charges. The court sentenced appellant to consecutive ten-year prison terms for each vehicular homicide count. This appeal followed.

A trial court’s denial of a motion for judgment of acquittal is reviewed de novo for the sole purpose of determining whether the evidence is legally sufficient. Durousseau v. State, 55 So.3d 543, 556 (Fla.2010).

“ ‘Vehicular homicide’ is the killing of a human being ... caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.” § 782.071, Fla. Stat. (2010); see also Rubinger v. State, 98 So.3d 659, 662 (Fla. 4th DCA 2012). The degree of culpability required for vehicular homicide is less than that necessary to prove manslaughter, but it is more than a mere failure to use ordinary care. McCreary v. State, 371 So.2d 1024, 1026 (Fla.1979). To prove the offense, the State necessarily must also prove the elements of reckless driving, which itself “requires proof of a ‘willful or wanton disregard for the safety of persons or property.’ ” Santisteban v. State, 72 So.3d 187, 195 (Fla. 4th DCA 2011); Berube v. State, 6 So.3d 624, 625 (Fla. 5th DCA 2008); see also § 316.192(1), Fla. Stat. (2010). “ ‘Willful’ means ‘intentional, knowing, and purposeful,’ and ‘wanton’ means with a ‘conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property.’ ” Lewek v. State, 702 So.2d 527, 530-31 (Fla. 4th DCA 1997) (quoting Fla. Std. Jury. Instr. (Misd.) (reckless driving)) (citation omitted). “In determining whether a defendant was driving recklessly, the essential inquiry is whether the defendant knowingly drove the vehicle in such a manner and under such conditions as was likely to cause death or great bodily harm.” Santisteban, 72 So.3d at 195 (citing D.E. v. State, 904 So.2d 558, 562 (Fla. 5th DCA 2005)).

The evidence presented at trial showed that appellant’s actions, while certainly negligent, did not rise to the level of recklessness sufficient to sustain the convictions for vehicular homicide. See, e.g., State v. Esposito, 642 So.2d 25, 26-27 (Fla. 4th DCA 1994) (reversing conviction for vehicular homicide where evidence at trial merely demonstrated negligence with no evidence of intoxication, speeding, erratic driving, or failure to observe traffic regulations); Berube, 6 So.3d at 624 (reversing vehicular homicide conviction where driver executed improper left turn across oncoming traffic and there was no evidence that driver was intoxicated, distracted from the road, or speeding). The presence of central nervous system depressants in appellant’s blood stream after the crash, in and of itself, is insufficient to support a finding of reckless driving. See, e.g., W.E.B. v. State, 553 So.2d 323, 326-27 (Fla. 1st DCA 1989) (reversing conviction for vehicular homicide where, although driver had consumed several beers hours prior to the accident, there was no evidence of impairment).

As in Berube, what was missing from the State’s proof in this case is evidence that the appellant, in an intentional, knowing and purposeful manner, was driving at the time of the incident in a manner demonstrating a conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property. See also McCreary v. State, 371 So.2d 1024 (Fla.1979); W.E.B., 553 So.2d at 326-27; State v. Del Rio, 854 So.2d 692 (Fla. 2d DCA 2003). Therefore, appellant’s convictions for vehicular homicide rested on legally insufficient evidence. Accordingly, these convictions and sentences are reversed and the cause remanded for entry of a judgment of acquittal on these charges.

Reversed and Remanded with Instructions.

DAMOORGIAN, C.J., TAYLOR and KLINGENSMITH, JJ., concur.

      . Appellant was also charged with two counts of DUI manslaughter, although the jury was unable to reach a verdict on those charges. Ultimately, the State nolle prossed these counts.

      . Appellant was unable to provide an explanation as to what caused the accident, and stated that she must have "blacked out" prior to its occurrence.


author: PER CURIAM. WARNER, J.,

text:
    Brenda FIELDS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D13-2276.
    District Court of Appeal of Florida, Fourth District.
    Oct. 30, 2013.

      Brenda Fields, Ocala, pro se.
    No appearance for respondent.
   PER CURIAM.

Brenda Fields filed a petition for writ of habeas corpus in this court seeking a new appeal of her conviction of trafficking in oxycodone, arguing ineffective assistance of her appellate lawyer in her earlier, direct appeal. This court per curiam affirmed without opinion in Fields v. State, 86 So.3d 1135 (Fla. 4th DCA 2012). In the petition filed here, she identified three arguments that appellate counsel failed to raise in her direct appeal, and then concluded that if those points had been raised on appeal, the outcome “would probably have been different.” As the dissent points out, petitioner did not allege any supporting facts or references to the record at all. She did not file an appendix. We find this petition legally insufficient and dismiss it.

Florida Rule of Appellate Procedure 9.141(d)(4)(F) expressly requires a petitioner alleging ineffective assistance of appellate counsel to recite in a statement of facts “the specific acts sworn to by the petitioner or petitioner’s counsel that constitute the alleged ineffective assistance of counsel.” We interpret this rule as requiring more than a listing of legal arguments counsel should have raised on appeal followed by some case citations, as was presented in this petition.

This court has rejected a legally insufficient petition alleging ineffective assistance of appellate counsel without leave to amend in Lightsey v. State, 964 So.2d 255 (Fla. 4th DCA 2007). The petitioner there failed to show that any deficiency of his appellate counsel undermined confidence in the outcome of the appeal. The petitioner had stated in conclusory language that if appellate counsel had raised an issue he identified, it would have affected the outcome and “the case possibly would’ve been dismissed.” Id. at 256. We found that language legally insufficient, citing case law including Brown v. State, 894 So.2d 137 (Fla.2004) (holding that a petition alleging ineffective assistance of appellate counsel was facially insufficient for failure to show how the outcome of the case would have been different). See also Johnson v. State, 3 So.3d 426 (Fla. 4th DCA 2009) (denying petition alleging ineffective assistance of appellate counsel as legally insufficient).

The dissent suggests that this court should extend the supreme court’s decision in Spera v. State, 971 So.2d 754 (Fla.2007), requiring the trial court to allow a defendant at least one opportunity to cure a facially insufficient motion for post-conviction relief filed under Florida Rule of Criminal Procedure 3.850, to petitions for ineffective assistance of appellate counsel filed under Florida Rule of Appellate Procedure 9.141(d). We resist the suggestion, pointing out first that this would require an amendment to the existing appellate rule, a matter for the supreme court to ultimately undertake. Indeed, Spera was codified by rule 3.850(f), allowing mov-ants sixty days to amend a timely but deficient motion, as the dissent acknowledges.

Further, even in Spera, the supreme court quoted from its earlier decision in Bryant v. State, 901 So.2d 810 (Fla.2005), that “we do not intend to authorize ‘shell motions’- — -those that contain sparse facts and argument and are filed merely to comply with the deadlines, with the intent of filing an amended, more substantive, motion at a later date.” Id. at 819. Here, petitioner may not necessarily have filed this petition merely to avoid the passage of a deadline, but her petition lacks even the “sparse facts” referred to in Bryant.

In Oquendo v. State, 2 So.3d 1001 (Fla. 4th DCA 2008), this court said that Spera did not give postconviction movants an opportunity to amend conclusory claims. See also Mancino v. State, 10 So.3d 1203, 1204 (Fla. 4th DCA 2009). We can see no rationale for allowing petitioners alleging ineffective assistance of appellate counsel a greater opportunity to amend shell or con-clusory claims, particularly where the supreme court has not suggested that Spera should be extended to these petitions.

Even if this court could extend Spera to petitions alleging ineffective assistance of appellate counsel, this could open the door to demands for leave to amend by petitioners seeking mandamus, prohibition, certio-rari, and other remedies after their initial petitions filed in appellate courts were deemed legally insufficient. Such procedure is not contemplated by the rules of appellate procedure or any other authorities.

Dismissed.

LEVINE and CONNER, JJ., concur.

WARNER, J., dissents with opinion.

WARNER, J.,

dissenting.

Petitioner filed a petition for habeas corpus alleging ineffective assistance of counsel. She argues ineffective assistance in her appellate counsel’s failure to argue trial court error in: (1) allowing prior bad acts to be heard by the jury; (2) denying her motion for mistrial after the detective and confidential informant testified, in violation of an order in limine and possibly other trial court orders barring evidence of prior bad acts; and (3) not finding entrapment as a matter of law. She alleges that, had counsel argued these issues, the outcome of the appeal would probably have been different, citing case law applicable to the three issues she raises.

The petition offers no supporting facts or references to the record. No appendix has been filed. We have held that conclu-sory allegations are insufficient to support a petition for ineffective assistance of counsel. See Lightsey v. State, 964 So.2d 255, 256 (Fla. 4th DCA 2007). Lightsey simply followed supreme court precedent. See Patton v. State, 878 So.2d 368, 380 (Fla.2004) (a summary or conclusory allegation is insufficient to allow the appellate court to examine the specific allegations against the record); see also Brown v. State, 894 So.2d 137, 160-61 (Fla.2004) (petition for ineffective assistance of counsel facially insufficient for failure to show how outcome of case would have been different).

Our supreme court has determined that where motions for postconviction relief pursuant to rule 3.850 are legally insufficient, a trial court must allow a defendant at least one opportunity to cure a facially deficient motion. Spera v. State, 971 So.2d 754 (Fla.2007). Spera holds:

[W]hen a defendant’s initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule’s or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion. As we did in Bryant v. State, 901 So.2d 810 (Fla.2005) ], we hold that the proper procedure is to strike the motion with leave to amend within a reasonable period. We do not envision that window of opportunity would exceed thirty days and may be less. The striking of further amendments is subject to an abuse of discretion standard that depends on the circumstances of each case. As we did in Bryant, we stress here, too, that “we do not intend to authorize ‘shell motions’— those that contain sparse facts and argument and are filed merely to comply with the deadlines, with the intent of filing an amended, more substantive, motion at a later date.” Bryant, 901 So.2d at 819.
We also stress that our decision is limited to motions deemed facially insufficient to support relief — that is, claims that fail to contain required allegations. When trial courts deny relief because the record conclusively refutes the allegations, they need not permit the amendment of pleadings.

Id. at 761-62; see also Fla. R. Crim. P. 3.850(f) (codifying Spera by allowing defendants 60 days to amend a timely but facially insufficient motion).

The supreme court has not applied the rule of Spera to petitions for ineffective assistance, although it would appear to me that the same reasoning which authorized the amendment in Spera would compel appellate courts to provide unrepresented defendants at least one chance to correct facial deficiencies in a petition alleging ineffective assistance of appellate counsel. If one looks at Florida Rule of Appellate Procedure 9.141(d)(4) regarding the contents required in such a petition, an unschooled person would hardly know of the level of detail that appellate courts require to make a petition sufficient. The rule does not require the petitioner to include the record facts which support the specific acts of ineffective assistance alleged, see, e.g., Patton, 878 So.2d at 380, nor does it require the petitioner to state how the results of the appeal would be different had the ineffective assistance not occurred, see, e.g., Brown, 894 So.2d at 160-61, both of which are essential to the legal sufficiency of the petition.

The petition in this case contained all of the information required in the rule. Yet it was deficient for failure to contain sufficient information to examine the summary ¿negations against the record or to show how the outcome would have been different in this case.

Although the supreme court has not as yet required it, I would apply Spera and dismiss this petition but grant petitioner leave to amend her petition within thirty days.


author: SINGHAL, RAAG, Associate Judge.

text:
    NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellant, v. ADVANCED COOLING AND HEATING, INC., Appellee.
    No. 4D12-257.
    District Court of Appeal of Florida, Fourth District.
    Oct. 30, 2013.
    Rehearing Denied Dec. 5, 2013.

      Diane H. Tutt and Hinda Klein of Con-roy, Simberg, Ganon, Krevans, Abel, Lur-vey, Morrow, <& Schefer, P.A., Hollywood, for appellant.
    Gerald R. Pumphrey of Gerald R. Pum-phrey, PA, Jupiter and John P. Wieder-hold of Wiederhold, Moses, Kummerlen & Waroncki, PA, West Palm Beach, for ap-pellee.
   SINGHAL, RAAG, Associate Judge.

Nationwide Mutual Fire Insurance Company (Nationwide) appeals from a final summary judgment and award of attorney’s fees entered in favor of Advanced Cooling and Heating, Inc. (Advanced). The trial court found that Nationwide had a duty to defend Advanced in an action brought by one of Advanced’s customers. Because the allegations in the customer’s pleadings did not set forth claims within policy coverage, we find Nationwide had no duty to defend and that the trial court erred in granting Advanced’s motion for summary judgment and in denying Nationwide’s motion for summary judgment. We reverse and remand for the entry of summary judgment in favor of Nationwide.

Factual Background

In 2009, the customer hired Advanced because of a problem with a home air conditioning unit. They agreed orally to the installation of a compressor under warranty for $438. Upon completion of the work, the customer paid the agreed-upon amount, but by the next day the customer realized the air conditioning problem had not been cured. The customer stopped payment on the check to Advanced, causing Advanced to sue the customer in small claims court. The customer filed a counterclaim and an amended counterclaim alleging breach of contract for failure to properly inspect the air conditioning system which resulted in an unnecessary repair, and failure to complete the repair in a workmanlike manner. At the time of the repair, Advanced was insured by Nationwide under a post-1986 standard form commercial general liability insurance policy.

Upon receipt of the amended counterclaim, Advanced placed Nationwide on notice that Nationwide had a duty to defend Advanced against the claim by the customer. Nationwide denied Advanced a defense after reviewing the customer’s pleadings, contending there was no coverage under the policy and that several policy exclusions precluding coverage applied. Advanced retained counsel, defended the counterclaim against the customer and prevailed. Separately, Advanced sought a declaratory judgment as to whether Nationwide had a duty to defend Advanced in its litigation against the customer. The trial court first denied Nationwide’s motion for summary judgment, thereby determining that Nationwide owed Advanced a duty to defend. The trial court then granted Advanced’s motion for summary judgment and eventually awarded attorney’s fees and costs in the amount of $114,268.01 pursuant to section 627.428, Florida Statutes. This appeal followed.

Analysis

A trial court’s order granting summary judgment as to the duty to defend under an insurance policy is reviewed de novo. U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So.2d 871, 877 (Fla.2007). The question of duty to defend is answered based upon a review of the underlying pleadings filed against the insured as well as the insurance policy itself. Keen v. Fla. Sheriffs’ Self-Ins. Fund, 962 So.2d 1021, 1024 (Fla. 4th DCA 2007). In cases where pleadings are amended such that they supersede earlier filings, the amended allegations control the duty to defend issue. State Farm Fire & Cas. Co. v. Higgins, 788 So.2d 992, 995 (Fla. 4th DCA 2001). Based upon the allegations contained in the customer’s amended counterclaim, Nationwide owed Advanced no duty to defend. Both the customer’s breach of contract claim and the faulty workmanship claim fell outside policy coverage.

An insurer’s duty to defend arises when a pleading alleges facts which fairly and potentially raise a claim against its insured within policy coverage. Id. While any doubt as to whether an insurer has a duty to defend must be resolved in favor of the insured, it is well-settled that insurance policies are contracts construed according to their plain meaning. 979 So.2d at 877. The insurance policy issued to Advanced covers “bodily injury” or “property damage” resulting from an “occurrence” pursuant to policy definitions. The breach of contract claim alleges only that an improper or unneeded repair resulted in an unnecessary $438 expense to the customer. There are no allegations of bodily injury or property damage at all. In fact, the wherefore clause of the customer’s amended counterclaim seeks only “damages and the return of check number 1533 in the amount of $438.00, together with costs of suit, interest and for such further relief as this Honorable Court deems proper.”

Property damage as contemplated by the plain meaning of the insurance policy refers to damage to property other than the property being repaired. A complaint seeking recovery for costs of repair and removal of defective work does not involve a property damage claim. See J.S.U.B., 979 So.2d at 889. In Auto-Owners Insurance Co. v. Pozzi Window Co., 984 So.2d 1241 (Fla.2008), the Florida Supreme Court provides an example analogous to the facts of this case and states:

[I]n West Orange Lumber Co. v. Indiana Lumbermens Mutual Insurance Co., 898 So.2d 1147, 1148 (Fla. 5th DCA 2005) a lumber company sought coverage under a [commercial general liability] policy when it failed to provide the proper grade of cedar siding. There was no damage to the construction itself. The Fifth District Court of Appeal concluded that there was no allegation of “property damage” when the only damage alleged was the cost of removing and replacing the wrong grade cedar siding that had been installed. See id. In essence, the mere inclusion of a defective component, such as a defective window or the defective installation of a window, does not constitute property damage unless that defective component results in physical injury to some other tangible property.

Auto-Owners Ins. Co., 984 So.2d at 1248.

Similarly, the newly installed compressor in this case, essentially a defective or unnecessary component, did not result in physical injury to some other tangible property. The injury is purely economic, which does not constitute property damage under a commercial general liability insurance policy. J.S.U.B., 979 So.2d at 892 (Lewis, C.J., concurring). The customer’s amended counterclaim contains no allegation that Advanced caused property damage to any of the customer’s other tangible property. Thus, Nationwide had no duty to defend in this case.

The customer’s alternative faulty workmanship claim also did not fall within the coverage parameters of the policy. The customer’s faulty workmanship claim alleged that Advanced installed the compressor in an unworkmanlike manner, resulting in a leak in the air conditioning system causing a physical injury to tangible property — the compressor. This claim also did not allege property damage to some tangible property other than the air conditioning unit itself. Because we find that Nationwide owed Advanced no duty to defend, we need not address the applicable policy exclusions.

Conclusion

The allegations in the pleadings below did not set forth claims within policy coverage as they did not allege property damage. Accordingly, we find Nationwide had no duty to defend and the trial court erred in granting Advanced’s motion for summary judgment and in denying Nationwide’s motion for summary judgment. We therefore reverse and remand for entry of summary judgment in favor of Nationwide.

Reversed and Remanded.

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

      . Nationwide does not challenge the amount of the award.


text:
    L.N., a Child, Appellant v. STATE of Florida, Appellee.
    No. 4D12-2537.
    District Court of Appeal of Florida, Fourth District.
    Oct. 30, 2013.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

CIKLIN, GERBER and CONNER, JJ„ concur.


text:
    Trevares T. WESLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2088.
    District Court of Appeal of Florida, Fourth District.
    Oct. 30, 2013.
    Rehearing Denied Dec. 11, 2013.
    Trevares T. Wesley, Jasper, pro se.
    No appearance required for appellee-
   PER CURIAM.

We affirm the trial court’s order summarily denying appellant’s untimely and successive postconviction challenge. A petition for writ of habeas corpus cannot be used to circumvent the procedural bars. Baker v. State, 878 So.2d 1236, 1241 (Fla.2004). Further, appellant’s claim of error under State v. Montgomery, 39 So.3d 252, 257-58 (Fla.2010), is without merit. Montgomery is not retroactive. Ross v. State, 82 So.3d 975, 976 (Fla. 4th DCA 2011). Montgomery also does not authorize untimely postconviction relief.

Affirmed.

WARNER, TAYLOR and LEVINE, JJ., concur.


author: TAYLOR, J.

text:
    Edward I. GOLDEN as Curator of the Estate of Katherine Jones, Appellant, v. Carol Ann JONES, as Personal Representative of the Estate of Harry Bruce Jones, Appellee.
    No. 4D12-2094.
    District Court of Appeal of Florida, Fourth District.
    Oct. 30, 2013.
    Rehearing Denied Dec. 11, 2013.
    William H. Glasko, of Golden & Cowan, P.A., Miami, for appellant.
    Michael E. Jones of Michael Edward Jones, P.A., Fort Lauderdale, and Robin F. Hazel of the Hazel Law, P.A., Pembroke Pines, for appellee.
   TAYLOR, J.

Appellant Edward Golden, the curator of the Estate of Katherine Jones, appeals a final order striking a claim filed against the Estate of Harry Bruce Jones. We reverse, because the trial court erred in determining that the claim was untimely without first determining whether the claimant was a known or reasonably ascertainable creditor. We hold that if a known or reasonably ascertainable creditor is never served with a copy of the notice to creditors, the statute of limitations set forth in section 733.702(1), Florida Statutes, never begins to run and the creditor’s claim is timely if it is filed within two years of the decedent’s death.

By way of background, Harry Jones died in February 2007 and his estate was opened in April 2007. In June 2007, a notice to creditors was first published.

In 2008, a court appointed a guardian for Harry’s former wife, Katherine Jones, because she had been adjudicated to lack capacity. It is undisputed that neither Katherine, nor her guardian, was ever served with a copy of the notice to creditors.

In January 2009, less than two years after Harry’s death, Katherine’s guardian filed a Statement of Claim in the probate court. The basis for the claim was that Harry’s estate owed Katherine money pursuant to a Marital Settlement Agreement that Harry and Katherine executed in 2002.

Katherine died in 2010. Following Katherine’s death, appellant Edward Golden was appointed as the curator of Katherine’s estate.

In March 2012, more than five years after Harry’s death, appellant filed a Petition for Order Declaring Statement of Claim Timely Filed and/or for Enlargement of Time to File Statement of Claim, Nunc Pro Tunc. Appellant alleged that the guardianship was a known or reasonably ascertainable creditor of Harry’s estate and sought a determination to that effect.

The personal representative of Harry’s estate filed a response to appellant’s petition, asserting in relevant part that the claim was time-barred under sections 733.702 and 733.710, Florida Statutes. The personal representative of Harry’s estate also asserted as an affirmative defense that Katherine was not a reasonably ascertainable creditor.

The personal representative later filed an amended motion to strike the statement of claim. After a hearing on the motion, the trial court entered its Order Striking Untimely Filed Claim, ruling that the statement of claim was untimely under sections 733.702 and 733.710, Florida Statutes, and established case law. In support of its decision, the trial court cited, among other cases, Lubee v. Adams, 77 So.3d 882 (Fla. 2d DCA 2012), and Morgenthau v. Estate of Andzel, 26 So.3d 628 (Fla. 1st DCA 2009). This appeal followed.

On appeal, appellant argues that if the notice to creditors is not served on a known or reasonably ascertainable creditor, then the applicable limitations period of section 733.702(1) never begins to run and the known or reasonably ascertainable creditor is bound only by section 733.710’s two-year statute of repose. We agree.

Generally, a probate court’s decision on whether to strike a claim is reviewed for an abuse of discretion. Strulowitz v. The Cadle Co., II, Inc., 839 So.2d 876, 879 (Fla. 4th DCA 2003). However, to the extent this issue turns on a question of statutory interpretation, the standard of review is de novo. W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So.3d 1, 8 (Fla.2012).

Under section 733.2121(3)(a), Florida Statutes (2006), the personal representative of an estate “shall promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable ... and shall promptly serve a copy of the notice on those creditors.”

To preserve a claim against a decedent’s estate in Florida, a creditor must file a written statement of the claim within the statutorily prescribed time periods. See §§ 733.702, 733.710, Fla. Stat. (2006). Section 733.702 is a statute of limitations that cannot be waived in a probate proceeding by failure to object to a claim on timeliness grounds, while section 733.710 is a jurisdictional statute of nonclaim that is not subject to waiver or extension in a probate proceeding. See May v. Illinois Nat’l Ins. Co., 771 So.2d 1143, 1145 (Fla.2000).

Section 733.702, Florida Statutes (2006), provides in relevant part:

(1) If not barred by s. 733.710, no claim or demand against the decedent’s estate that arose before the death of the decedent ... is binding on the estate, on the personal representative, or on any beneficiary unless filed in the probate pro ceeding on or before the later of the date that is 3 months after the time of the first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor, even though the personal representative has recognized the claim or demand by paying a part of it or interest on it or otherwise....
(3) Any claim not timely filed as provided in this section is barred even though no objection to the claim is filed unless the court extends the time in which the claim may be filed. An extension may be granted only upon grounds of fraud, estoppel, or insufficient notice of the claims period....
(6) Nothing in this section shall extend the limitations period set forth in s. 733.710.

(emphasis added).

Section 733.710, Florida Statutes (2006), provides in relevant part:

(1) Notwithstanding any other provision of the code, 2 years after the death of a person, neither the decedent’s estate, the personal representative, if any, nor the beneficiaries shall be liable for any claim or cause of action against the decedent, whether or not letters of administration have been issued, except as provided in this section.
(2) This section shall not apply to a creditor who has filed a claim pursuant to s. 733.702 within 2 years after the person’s death, and whose claim has not been paid or otherwise disposed of pursuant to s. 733.705.

This court has held that under sections 733.702 and 733.710, any claims of known or reasonably ascertainable creditors, though filed after the three-month period following publication of notice of administration, should not be stricken as untimely if filed prior to the earlier of 30 days after service of notice of administration or two years after the decedent’s death. See In re Estate of Puzzo, 637 So.2d 26, 27 (Fla. 4th DCA 1994).

In Puzzo, the creditors appealed an order denying a petition to extend the time for filing a claim against the estate and granting the estate’s motion to strike the creditors’ claims as untimely. Explaining that the personal representative was on notice of at least one of the claims and that there was no proof that the creditors had been served with notice of administration, we reversed the order on appeal. We stated:

Due process considerations require that Appellants be furnished notice so that they can determine that the time for filing claims has commenced. However, regardless of whether or not the claimants had actual notice, section 733.702(1), Florida Statutes, does not bar the claim of a creditor required to be served with a copy of the notice of administration, unless barred by section 733.710, until the later of the 3-month period following publication or 30 days after seiuice of notice on the creditor. The latter period had not begun to run at the time Appellants’ claims were filed.
We remand for the trial court to determine as to which of Appellant[s’] claims they were known or ascertainable creditors. Any such claims, though filed after the 3-month period, should not have been stricken as untimely if filed prior to the earlier of 30 days after service of notice of administration or 2 years after the decedent’s death.

Id. at 27 (citation omitted).

Our decision in Puzzo is consistent with the plain language of sections 733.702 and 733.710. Under Puzzo, if Katherine or the guardian was a known or reasonably ascertainable creditor, appellant’s claim was timely if it was filed prior to the earlier of 30 days after service of notice to creditors or two years after the decedent’s death. This is true regardless of whether the claim was filed after the three-month period following publication of the notice to creditors. Although the creditors in Puzzo did file a motion for extension of time, that is a distinction without a difference. The holding of Puzzo makes clear that a claim of a reasonably ascertainable creditor, who was never served with notice to creditors, is timely if it is filed within two years of the decedent’s death. Because such a claim is timely under section 733.702(1), it would be unnecessary for a reasonably ascertainable creditor to file a motion for extension of time under section 733.702(3).

Here, it is undisputed that the personal representative never served Katherine or Katherine’s guardian with a notice to creditors. Furthermore, less than two years after the decedent’s death, Katherine’s guardian filed a statement of claim in the probate court. Finally, appellant alleged that the guardianship was a known or reasonably ascertainable creditor of Harry’s estate. Under these circumstances, the trial court erred in determining that the claim was untimely without first determining whether Katherine was a known or reasonably ascertainable creditor. If the trial court determines that the claimant was a known or reasonably ascertainable creditor, then appellant’s claim was timely, as it was filed prior to the earlier of 30 days after service of notice to creditors (which never occurred) or two years after the decedent’s death.

The First and Second Districts have reached a contrary conclusion, ruling that even a reasonably ascertainable creditor who was not served with a notice to creditors is required to file a claim within the publication period of three months unless the creditor files a motion for an extension of time under section 733.702(3) within the two-year repose period of section 733.710. See Lubee, 77 So.3d at 884; Morgenthau, 26 So.3d at 632-33. For example, in Lubee, the creditor, Mr. Lubee, filed a claim outside the three-month publication period, but prior to the expiration of the two-year statute of repose provided in section 733.710. The Second District held that his claim was untimely and that the issue of whether Mr. Lubee was a reasonably ascertainable creditor was immaterial:

Because he was not served with a copy of the notice to creditors, Mr. Lubee was required to file his claim in the probate proceeding within the three-month window following publication. Alternatively, Mr. Lubee could seek an extension from the probate court pursuant to section 733.702(3) within the two-year window of section 733.710. It is undisputed that he did neither.... Mr. Lubee’s claim in the probate proceeding was untimely and therefore barred. As a result, the issue of whether or not Mr. Lubee was a readily ascertainable creditor was immaterial.

77 So.3d at 884 (citations omitted) (emphasis added).

Unlike Puzzo, Lubee and Morgenthau are inconsistent with the plain language of section 733.702(1). As one commentator has noted, the Second District’s analysis in Lubee “misses the point of the statute, because it is not the fact of service that makes the publication date inapplicable to the beginning of the period to bar claims, it is the entitlement to service that is relevant.” See Rohan Kelley, Probate Litigation, Practice Under Florida Probate Code § 21.40 (Fla. Bar CLE 7th ed. 2012). Similarly, the flaw in the court’s reasoning in Morgenthau “is that the court begins with the conclusion that the claim, filed after three months from the first publication by a known creditor who was not noticed, was untimely.” Id.

We reverse and remand for the trial court to determine whether Katherine or the guardianship was a known or reasonably ascertainable creditor. If so, then appellant’s claim “though filed after the 3-month period, should not have been stricken as untimely if filed prior to the earlier of 30 days after service of notice of administration or 2 years after the decedent’s death.” Puzzo, 637 So.2d at 27. We certify conflict with Lubee and Morgenthau.

Reversed and Remanded; conflict certified.

DAMOORGIAN, C.J., and KLINGENSMITH, J., concur.

      . The 2006 versions of sections 733.702 and 733.710 are applicable in this case because they were in effect at the time of Harry’s death on February 16, 2007. See May, 771 So.2d at 1150 n. 7 (using decedent's date of death to determine applicable version of the statute).


author: ORFINGER, J.

text:
    David S. HIGGINS, Appellant, v. TIMBER SPRINGS HOMEOWNERS, etc., Appellee.
    No. 5D12-4806.
    District Court of Appeal of Florida, Fifth District.
    Nov. 1, 2013.
    Rehearing Denied Dec. 2, 2013.

      Barbara Billiot Stage, of Law Office Stage & Associates, P.A., Orlando, for Appellant.
    Cynthia David and Michael A. Unger-buehler, of The Association Law Firm, PLLC, Orlando, for Appellee.
   ORFINGER, J.

David S. Higgins appeals from a final judgment of foreclosure entered in favor of Timber Springs Homeowners Association, Inc. Mr. Higgins contends that the trial court erred by denying his request to stay the proceedings and to vacate the final summary judgment of foreclosure in Timber Springs’s favor. We agree and reverse.

Timber Springs, claiming that it was owed $363.33 in unpaid homeowner’s fees, filed a foreclosure action against Mr. Higgins and his property. Mr. Higgins was personally served with the suit papers. The affidavit proving service stated that Mr. Higgins “is in the military service of the United States of America.” Mr. Higgins, representing himself, filed an answer, stating, in relevant part:

I am currently serving on active duty, with the U.S. Army.... I respectfully ask that those [late] fees be waved [sic] in accordance with the SCRA. Service-members Civil Relief Act (SCRA) 50 U.S.C. App. §§ 501-597b. The Soldiers and Sailor’s Civil Relief Act precludes active Duty [sic] service members from civil cases such as this.

Undeterred, Timber Springs filed a motion for summary judgment and noticed it for hearing. In response, Mr. Higgins filed another letter, again indicating that he was an active member of the military and asserting that the SCRA afforded protection for the members of the military from civil matters when they are unable to appear before the court due to their military obligations. He included a copy of his military orders that showed that his permanent duty station had been, changed from Orlando, Florida, to Coraopolis, Pennsylvania, and that he was required to report to Pennsylvania on August 27, 2012, two weeks prior to the scheduled summary judgment hearing. Notwithstanding Mr. Higgins’s military status, the summary judgment hearing proceeded in his absence and a summary foreclosure judgment was entered in favor of Timber Springs. Prior to the foreclosure sale, Mr. Higgins filed yet another letter, asking the court to postpone the proceedings due to his active military status. The court treated the letter as a motion for extension of time and denied it. This appeal follows.

The SCRA was enacted “to protect those [servicemembers] who have been obliged to drop their own affairs to take up the burdens of the nation” from exposure to personal liability without first having an opportunity to appear and defend themselves in person or through counsel. Boone v. Lightner, 319 U.S. 561, 575, 63 S.Ct. 1223, 87 L.Ed. 1587 (1943). One of the purposes of the SCRA is “to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service.” 50 U.S.C. app. § 502(2). As such, the SCRA allows a servicemem-ber on military duty to move to stay any judicial or administrative proceeding initiated against him or to move to stay the execution of any judgment entered against him. See 50 U.S.C. app. §§ 522, 524 (2011).

At any stage before final judgment in a civil action or proceeding, a court may, on its own motion, and shall, on the application by the servicemember, stay the proceeding not less than 90 days if the ser-vicemember satisfies two requirements. The servicemember must submit a “letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the servicemember’s ability to appear and stating a date when the servicemember will be available to appear.” 50 U.S.C. app. § 522(b)(2)(A) (2011). The service-member must also submit a “letter or other communication from the servicemem-ber’s commanding officer stating that the servicemember’s current military duty prevents appearance and that military leave is not authorized for the servicemem-ber at the time of the letter.” 50 U.S.C. app. § 522(b)(2)(B) (2011).

While Mr. Higgins did not file an explicit request to invoke the provisions of § 522, he did submit multiple letters, which, among other things, informed the trial court of his active duty military status, advised the court regarding the SCRA protections, and attached a copy of his military orders, requiring him to be in Pennsylvania two weeks before the scheduled summary judgment hearing. However, the court never considered a stay. Instead, the court held the hearing and granted final summary judgment in Timber Springs’s favor without Mr. Higgins present. Indeed, the court struck Mr. Higgins’s motion to vacate the final judgment, without ruling on his request to stay the execution of the final judgment under 50 U.S.C. app. § 524.

Timber Springs argues that Mr. Higgins was not entitled to a stay because he failed to satisfy the statutory requirements of § 522. While Mr. Higgins established that he was on active military duty, and was ordered to permanently relocate and report to Pennsylvania just prior to the summary judgment hearing, Timber Springs correctly observes that he did not provide a letter or other evidence from his commanding officer stating that his military duty prevented his appearance. 50 U.S.C. app. § 522(b)(2)(B). Still, the courts have frequently granted stays despite the ser-vicemember’s failure to comply strictly with the requirements of the SCRA. See, e.g., In re Amber M., 184 Cal.App.4th 1223, 110 Cal.Rptr.3d 25 (2010) (holding servicemember entitled to stay even if letter did not strictly comply with SCRA technical requirements).

The SCRA is to be liberally construed in favor of those “who dropped their affairs to answer their country’s call.” Boone, 319 U.S. at 575, 63 S.Ct. 1223. Given the equitable nature of foreclosure proceedings, and because the SCRA is liberally construed in favor of servicemembers, the trial court should have given Mr. Higgins an opportunity to supplement his request for a stay under the SCRA before proceeding. Accordingly, we conclude the trial court erred in holding the summary judgment hearing and later striking Mr. Higgins’s motion to vacate the final judgment of foreclosure. This conclusion renders the remaining issue moot.

REVERSED and REMANDED.

COHEN, J., concurs in result only.

TORPY, C.J., dissents, without opinion.

      . Excluding attorneys’ fees and court costs, the past due homeowner’s fees were determined to be $308.24.

      . Since Mr. Higgins did not invoke below the Florida Uniformed Servicemembers Protection Act, sections 250.80-.84, Florida Statutes, we do not consider it.

      . Because Mr. Higgins had notice of the foreclosure proceedings against him, this case involves a stay under 50 U.S.C. app. § 522, not 50 U.S.C. app. § 521. The provisions of 50 U.S.C. app. § 521 apply to situations when a servicemember does not have notice of the proceedings commenced against him (thereby providing protection against default judgments). Section 522 specifically applies when a servicemember does have notice of proceedings commenced against him.


text:
    Lerandros L. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1216.
    District Court of Appeal of Florida, Fourth District.
    Nov. 6, 2013.
    Rehearing Denied Dec. 18, 2013.

      Lerandros L. Smith, Avon Park, pro se.
    No appearance required for appellee.
   PER CURIAM.

The defendant appeals from the circuit court’s summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We conclude all four of the defendant’s claims lack merit. We affirm.

The state charged the defendant with sale of cocaine and possession of cocaine. On the day of trial, the defendant decided to enter an open no contest plea. After the defendant signed the plea paperwork, the state handed defense counsel a notice of its intent to prove that the defendant was a habitual felony offender subject to an enhanced maximum penalty.

The circuit court conducted a plea colloquy. During the colloquy, the court advised the defendant that if he qualified as a habitual felony offender, then he was facing an enhanced maximum penalty. The court asked the defendant if anyone, including his attorney, made any promise to him concerning his eligibility for early release or the actual amount of time he would serve under the sentence. The defendant answered no. The court also asked the defendant if he understood the maximum penalty he faced as a habitual felony offender. The defendant answered yes. At the end of the colloquy, the court accepted the defendant’s plea.

Before sentencing, the defendant moved to withdraw his plea on the ground that, after he signed the plea paperwork, the state served its notice of intent. The court denied the motion. The court later sentenced the defendant as a habitual felony offender to twenty-five years in prison on the sale count and a concurrent five-year term on the possession count.

On direct appeal, the defendant claimed that: (1) his plea was involuntary because, after he signed the plea paperwork, the state served its notice of intent; and (2) the state’s notice of intent was untimely because, after he signed the plea paperwork, the state served its notice of intent. This court affirmed. Smith v. State, 77 So.3d 840 (Fla. 4th DCA 2012), rev. denied, 104 So.3d 1087 (Fla.2012).

The defendant then filed the present rule 3.850 motion. The defendant’s motion raised four claims: (1) his plea was involuntary because, after he signed the plea paperwork, the state served its notice of intent; (2) the state’s notice of intent was untimely because, after he signed the plea paperwork, the state served its notice of intent; (3) his counsel was ineffective in failing to object to the state’s untimely notice of intent; and (4) his counsel was ineffective in failing to advise him that, as a habitual felony offender, he allegedly would not be eligible for “any gain time awards” in prison.

The circuit court summarily denied the rule 3.850 motion. This appeal followed. In considering this appeal, we must determine if the defendant’s claims were facially invalid or conclusively refuted by the record. See Kimbrough v. State, 886 So.2d 965, 981 (Fla.2004) (“To uphold the trial court’s summary denial of claims raised in a [rule] 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record.”) (citation and quotations omitted).

We conclude that the defendant’s claims were facially invalid. We will address the claims in turn.

The defendant’s first two claims repeat the two claims which he raised on direct appeal. We affirmed on those claims in that appeal. Thus, the defendant’s claims are procedurally barred in this postconviction proceeding. See Freeman v. State, 761 So.2d 1055, 1067 (Fla.2000) (“This claim was raised on direct appeal; therefore, it is procedurally barred and was properly summarily denied.”). On the merits, the state’s notice of intent was not untimely. The defendant’s signing of the plea paperwork did not bind him, the state, or the court to the entry and acceptance of a plea. See Harden v. State, 453 So.2d 550, 551 (Fla. 4th DCA 1984) (“[Fjormal acceptance of a plea occurs when the trial court affirmatively states to the parties, in open court and for the record, that the court accepts the plea.”). Moreover, the conditions required to sentence the defendant as a habitual felony offender occurred before the court accepted his plea. See Ashley v. State, 614 So.2d 486, 490 (Fla.1993) (“[I]n order for a defendant to be habitualized following a guilty or nolo plea, the following must take place prior to acceptance of the plea: 1) The defendant must be given written notice of intent to habitualize, and 2) the court must confirm that the defendant is personally aware of the possibility and reasonable consequences of habitualization.”) (footnote omitted).

The defendant’s third claim, that his counsel was ineffective in failing to object to the alleged untimely notice, also is barred. The defendant cannot circumvent the procedural bar to relitigating his first two claims under the guise of an ineffective assistance of counsel claim. See Freeman, 761 So.2d at 1067 (“This issue was raised on direct appeal and cannot be relitigated under the guise of ineffective assistance of counsel.”). In any event, on the merits, the state’s notice of intent was not untimely, as stated above.

The defendant’s fourth claim, that his counsel was ineffective in failing to advise him that, as a habitual felony offender, he allegedly would not be eligible for “any gain time awards” in prison, lacks merit. Before 1993, our supreme court held that a defendant eligible for habitualization “should be told of ... the fact that habitu-alization may affect the possibility of early release through certain programs.” Ashley, 614 So.2d at 490 n. 8. In 1993, however, the legislature eliminated basic gain time for all offenders. See § 944.275(6)(a), Fla. Stat. (1994) (eliminating basic gain time for offenses committed on or after January 1,1994). Nevertheless, offenders, including habitual felony offenders, remained eligible for incentive gain time. See § 775.084(4)(e), Fla. Stat. (1994) (“A defendant sentenced under this section is not eligible for gain-time granted by the Department of Corrections, except that the department may grant up to 25 days incentive gain-time each month as provided in s. 944.275(4).”) (emphasis added).

Following this important change, the first and third districts held that the failure to advise about ineligibility for basic gain time did not entitle a defendant to relief, and that adjudicating a defendant as a habitual felony offender made no difference. Barrs v. State, 883 So.2d 846, 846 (Fla. 1st DCA 2004), rev. denied, 892 So.2d 1011 (Fla.2004); Ferguson v. State, 677 So.2d 968, 969 (Fla. 3d DCA 1996). This court later followed Ferguson in a citation opinion. Reed v. State, 687 So.2d 77 (Fla. 4th DCA 1997).

We continue to agree with Ferguson and Bam that the elimination of basic gain time for all offenders nullified Ashley’s requirement to advise offenders that habitualization may affect the possibility of early release. When the defendant committed his offenses in 2007, section 775.084(4)(k)l., Florida Statutes (2007), still provided that “a habitual felony offender ... is eligible for gain-time granted by the Department of Corrections as provided in s. 944.275(4)(b) [incentive gain time].” Thus, the defendant’s claim that, as a habitual felony offender, he was not eligible for “any gain time awards” is mistaken. As a result, the defendant’s counsel was not ineffective in failing to advise him that he would not be eligible for “any gain time awards” in prison. In the alternative, we hold that ineligibility for gain time is a collateral consequence of a plea for which defense counsel has no duty to advise a defendant. See State v. Rodriguez, 990 So.2d 600, 606 (Fla. 3d DCA 2008) (“Gain time, good time, provisional credit time, and additional mitigating credits are all collateral consequences of a guilty plea.”).

We certify that this decision conflicts with second and fifth district cases involving offenses committed after January 1, 1994, but which continue to hold that a plea is involuntary unless the defendant was advised about the potential for lost gain time or early release as a result of the defendant being sentenced as a habitual felony offender. Williams v. State, 2 So.3d 1089, 1089-90 (Fla. 5th DCA 2009); Murphy v. State, 952 So.2d 1214, 1215-16 (Fla. 5th DCA 2007); Parker v. State, 808 So.2d 264, 264 (Fla. 2d DCA 2002); Butler v. State, 764 So.2d 794, 795 (Fla. 2d DCA 2000); Black v. State, 698 So.2d 1370, 1371 (Fla. 2d DCA 1997); Watson v. State, 661 So.2d 72, 72 (Fla. 2d DCA 1995).

Affirmed. Conflict certified.

DAMOORGIAN, C.J., GERBER and LEVINE, JJ., concur.