author: MAKAR, J.

text:
    Alex DIAZ DE LA PORTILLA, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5126.
    District Court of Appeal of Florida, First District.
    July 14, 2014.

      Miguel Diaz De La Portilla of Becker & Poliakoff, P.A., Coral Gables, and Arthur J. Berger, Miami, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   MAKAR, J.

In this marital dissolution case, what initially was a spat over the family dogs spiraled into a direct criminal contempt order that is now the subject of this appeal. During the course of the proceeding, which the couple has now settled, the former husband, Alex Diaz de la Portilla, was ordered (by the first of two trial judges in this case) to turn over one of the couple’s two dogs by February 16, 2011. He failed to do so, resulting in his now-former wife filing a motion for contempt, which was set for hearing by the trial judge who issued a show cause order compelling Diaz de la Portilla to appear. Due to the first trial judge’s recusal, the scheduled hearing was cancelled, but the former wife renewed her motion after a successor judge was assigned. At the July 20, 2011 hearing on the renewed motion before the successor judge, Diaz de la Portilla did not appear, causing the trial judge to pronounce he was holding Diaz de la Portilla in civil contempt for failing to comply with the prior judge’s order compelling transfer of the dog. Diaz de la Portilla was given until Friday, July 22nd, to comply with the dog-transfer order or be committed to the Leon County jail for thirty days. The trial court’s findings and rulings were later memorialized in a written order, which Diaz de la Portilla appealed, reiterating his argument that a trial court cannot seek to enforce an interim equitable distribution of personal property (here, the dogs) by contempt order.

Despite the trial court’s order, the dog was not transferred, causing another contempt motion to be filed with notice served on Diaz de la Portilla’s counsel. At the August 23, 2011 hearing on the motion, only Diaz de la Portilla’s counsel was present, offering no explanation for his client’s absence. As it did the first time, the trial court again verbally pronounced Diaz de la Portilla in civil contempt, not only for not appearing pursuant to court order but also for failing to comply with the dog-transfer order. The trial court sentenced Diaz de la Portilla to five months and twenty-nine days in jail, and further found him in direct criminal contempt, ordering the same sentence to run consecutively with the civil contempt sentence. The trial court explained:

At this juncture in this case it is my opinion that it is no longer practical, no longer possible for me to coerce compliance because your client is not going to do it. He is going to absent himself; he is going to continue to vilify his wife; he is going to continue to thumb his nose at this Court and to challenge my authority to enforce not only my Orders but the Orders of [the predecessor judge.] ... Based upon the sworn Motion and the sworn testimony today I find him to be in civil contempt for not appearing today and not giving the dog to her as per [the predecessor judge’s] Order. He is hereby sentenced to serve five months and 29 days for that contempt. In addition, based upon the fact that I have ordered him to appear and he has not appeared here today I find him in direct criminal contempt. He is also ordered to spend five months and 29 days for direct criminal contempt. And those two contempts are to run consecutive to one another. So I will prepare a written Order and written findings as to my findings today. And he has absolutely one hundred percent right to purge himself of this contempt by following the act that he has been ordered to follow since February 18th and that is give her one of the dogs during the pendency of these proceedings.

Two days later, the trial court entered a written order, finding that: the court had ordered Diaz de la Portilla to appear by serving notice to Diaz de la Portilla’s counsel (because the trial judge did not know the location of Diaz de la Portilla); Diaz de la Portilla’s counsel did not offer a reason for why his client did not appear; the court could not question Diaz de la Portilla due to his failure to appear; and Diaz de la Portilla’s actions “were wilful [sic] contempt that occurred beyond a reasonable doubt directly in the presence of the Court and warranted appropriate sanctions.”

Appeals were filed in which Diaz de la Portilla challenged the trial court’s orders of civil and criminal contempt, which this Court stayed and consolidated for review and disposition. Resolution of the appeals has been delayed due to various procedural matters and two intervening developments. First, the former spouses entered a settlement agreement in December 2011, which included Diaz de la Portilla obtaining both dogs. As a part of the settlement, the parties agreed to recommend to the trial judge that all civil and criminal contempt orders be vacated, which the trial judge agreed to do except for the criminal contempt order because it was pending on appeal in this Court. As a result, Diaz de la Portilla dismissed the consolidated appeals relating to the civil contempt orders, asking this Court to relinquish jurisdiction to the trial judge to consider the parties’ recommendation to dismiss the criminal contempt order, which this Court granted.

In its May 12, 2012 order, the trial court, recounting the lengthy history that led to the criminal contempt order, refused to vacate the order, which — according to the trial court — was based on Diaz de la Portilla’s “concerted efforts” to- interfere with the court’s resolution of the case, his willful failures to comply with court orders and appear in court, his “conscious attempts” to prevent judicial resolution of the case, and “his utter disdain for the Courts (and all three Judges assigned to this case), coupled ■with his public pronouncements that he would not comply with any Orders and had no respect for the Court’s decisions.” Because the trial court denied the parties’ request to vacate the criminal contempt order, the appeal currently before us, therefore, relates only to the order holding Diaz de la Portilla in direct criminal contempt.

Next, the matter returned to this Court but was delayed due to requested briefing extensions, an amended initial brief being filed in December 2012. In light of the case being “in the nature of a contempt proceeding solely for the purpose of vindicating the authority and dignity” of the trial court, it was determined that the State of Florida was an indispensable party. See In re Local Lodge No. 1218 of Int’l Ass’n of Machinists, 131 So.2d 29, 35 (Fla. 1st DCA 1961). The case was restyled to include the State as the appellee, and the Office of the Attorney General was asked to file an answer brief, which it did in October 2013. A reply brief followed in November 2013, rendering this appeal ready for disposition.

I.

On appeal, Diaz de la Portilla asserts the trial court erred in holding him in direct criminal contempt because he was not served with the order to show cause nor was he personally subpoenaed to appear, thereby denying him due process. He claims it was fundamental error to hold him in direct criminal contempt without his presence or a finding that his non-appearance was intentional. He also argues that the record evidence is insufficient to establish a basis for direct criminal contempt arising from his non-appearance, and that he did nothing to obstruct the trial court’s ability to hold the hearing because, in fact, the hearing was held.

The State responds by distinguishing between direct and indirect criminal contempt, noting that the former requires that the contemptuous act must occur in the immediate presence of the court, while the latter proceeding involves an act committed out of the presence of the court. It notes that the trial court’s order is based on caselaw that is binding in this District, holding that a failure to appear can be considered direct criminal contempt, even though physical presence before the trial judge is lacking. See Speer v. State, 742 So.2d 373, 373 (Fla. 1st DCA 1999) (holding that the “failure to appear in court pursuant to a court order can constitute direct criminal contempt.”). Most districts hold similarly. See, e.g., Bouie v. State, 784 So.2d 521, 522 (Fla. 4th DCA 2001) (failure to appear in court is punishable by direct criminal contempt); Woods v. State, 600 So.2d 27, 29 (Fla. 4th DCA 1992) (failure to appear at a sentencing hearing can be direct criminal contempt); Porter v. Williams, 392 So.2d 59, 60 (Fla. 5th DCA 1981) (“Non-appearance pursuant to an order of the court is normally considered a direct criminal contempt since it is committed in the immediate view and presence of the court.”); but cf. Hayes v. State, 592 So.2d 327, 329 (Fla. 4th DCA 1992) (“It is difficult, however, for us to understand how Hayes’s conduct can be considered to have been committed in the ‘actual presence of the court’, when it was Hayes’s absence from the presence of the court that caused the judge to complain.”).

As the State points out, this line of cases originates from the Florida Supreme Court’s two paragraph per curiam decision in Aron v. Huttoe, 265 So.2d 699 (Fla. 1972), which affirmed the Third District’s holding that a trial court may hold a non-appearing witness in direct criminal contempt due to the witness’s failure to appear, without justification, pursuant to a properly issued subpoena. The witness at issue, Dr. Aron, failed to appear at trial, causing the trial judge to immediately have him arrested and brought to court for questioning. Aron v. Huttoe, 258 So.2d 272, 272 (Fla. 3d DCA 1972). Dr. Aron admitted he had been subpoenaed, but “got mixed up” and returned to his medical office after appearing in another case that morning in the same courthouse. Id. at 274. The trial court found this explanation inadequate, summarily holding the doctor in direct criminal contempt and fining him $300. Id. at 273. On appeal, Dr. Aron claimed due process violations, namely a lack of written notice of his challenged conduct and a fair opportunity to defend himself (he did not have a lawyer). Id. On these facts, the Third District upheld the contempt order, finding it to be “rule contempt” for which the summary procedures used were adequate. Id. (citing Rule 1.410(e), Florida Rules of Civil Procedure, which allows for contempt for non-compliance with a subpoena). The court also held that the failure to appear pursuant to a subpoena for trial is best characterized as a direct criminal contempt, citing Rule 1.830, now renumbered, which stated (and still states) that “[a] criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court.” Fla. R. Crim. P. 3.830.

The Third District, noting that Dr. Aron had presented a “logical argument” that his contemptuous conduct “was not ‘committed in the actual presence of the court,’ ” certified its “opinion and decision to the Supreme Court of Florida as one passing upon a question of great public importance.” 258 So.2d at 274 (internal citations omitted). As recited by the Florida Supreme Court, the question certified was:

Whether a person who fails to appear at trial after having been properly subpoenaed may be brought into court during the trial and summarily held in contempt after failing to prove an adequate excuse.

265 So.2d at 700. Explaining it had heard oral argument and reviewed the briefs and record, the Florida Supreme Court’s abbreviated decision simply noted the certified question and held that “the District Court of Appeal has correctly decided the cause and its decision is adopted as the ruling of this Court.” Id.

This wholesale adoption of the Third District’s opinion, without elaboration and without directly answering the certified question, has created forty years of uncertainty. Although some courts, including this Court in Speer, have cited Aron for the broad proposition that a failure to appear is a basis for direct criminal contempt, others have distinguished it or deemed it in tension with, or disavowed by, subsequent supreme court cases. See, e.g., Kelley v. Rice, 800 So.2d 247, 253 (Fla. 2d DCA 2001) (interpreting decision in Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977) as a partial repudiation of Aron by concluding that “to the extent the supreme court had adopted that dicta [in Aron ], the court has since disavowed it.”); Martinez v. State, 799 So.2d 813, 315 (Fla. 2d DCA 2001) (noting the district court conflict and the tension of Aron with the supreme court’s decision in Gidden v. State, 613 So.2d 457 (Fla.1993)).

Lacking a clear indication that the Florida Supreme Court has implicitly repudiated Aron or its scope of application, we must remain steadfast to our precedent in Speer. In doing so, we appreciate the State’s request that we undertake clarifying this area of the law; it has done an admirable job of providing a well-reasoned path to follow, that being to establish as a “better practice” that trial courts prospectively be guided by two guideposts: (a) that “the failure to appear in court be treated as an indirect criminal contempt rather than a direct criminal contempt” and (b) that a criminal contempt proceeding be used that is “totally separate from the civil proceeding to ensure that the criminal contempt proceeding is handled as a criminal matter as required by Rule 3.840.” The merit of recasting a party’s non-appearance as an indirect criminal contempt, however, is for our supreme court to address, and we certify a question below to enable them to do so. We pass upon the question by continuing to read Aron as holding that a failure to appear in court is punishable by direct criminal contempt under Florida Rule of Criminal Procedure 3.830, which may be adjudged concurrently in a civil proceeding. We find merit in, but reject due to Speer, the view that a failure to appear in court ought to be dealt with as and punishable by indirect criminal contempt under Rule 3.840.

Turning back to Speer and its application in this case, we first hold that the trial judge was entitled to apply principles of direct criminal contempt. The trial judge was exceptionally thorough in his detailed orders explaining the basis for why direct criminal contempt was appropriate given the many ways he perceived that Diaz de la Portilla had burdened and delayed the orderly administration of justice in what ought to have been a relatively simple dissolution matter. That said, a key missing element is whether Diaz de la Portilla was notified that he was required to attend but failed to do so without excuse. In Speer, this Court reversed the order of contempt “because nothing in the record indicates that Speer had been ordered to appear in court.” 742 So.2d at 373. Here, no question exists that Diaz de la Portilla had been ordered to appear in the trial court; but nothing shows that he was notified personally of the trial court’s order and, if so, his reasons for not appearing, which creates a due process problem. See O’Neal v. State, 501 So.2d 98, 100 (Fla. 1st DCA 1987) (“[Bjefore a party is adjudged in contempt of court, he must be put on notice of what the consequences of his words or actions are about to entail so that he may avert those consequences by explaining his conduct.”).

The State concedes this failure was error, but recommends that we remand the case for a hearing “after giving [Diaz de la Portilla] proper notice and allowing] the parties to present evidence to establish whether or not [Diaz de la Portilla] knew he was required to attend the hearing and whether or not he intentionally failed to appear at the hearing.” Indeed, some of our cases suggest that this type of recommendation — a reversal “without prejudice to the institution of proper contempt proceedings” — can be an appropriate remedy where an error in a contempt proceeding is shown. See, e.g., Garrett v. State, 876 So.2d 24, 26 (Fla. 1st DCA 2004) (reversing contempt order because “appellant was neither informed that under the rule he could present mitigating circumstances, nor given a separate and distinct opportunity to present mitigating circumstances.”); Marshall v. State, 764 So.2d 908, 908 (Fla. 1st DCA 2000) (reversing contempt order because trial court “failed to inquire as to whether appellant had any cause to show why he should not be adjudicated guilty of contempt and failed to give appellant an opportunity to present excusing or mitigating evidence”). Cases that Diaz de la Portilla cites also suggest that remand without prejudice to further proceedings can be appropriate. See, e.g., Maniatakos v. Hirsch, 106 So.3d 953, 954 (Fla. 4th DCA 2013) (remanding “for further proceedings during which appellant may be given the opportunity to show cause why he should not be adjudged guilty of contempt and to present evidence of excusing or mitigating circumstances in compliance with Rule 3.830.”); Anton v. Anton, 106 So.3d 34, 35 (Fla. 3d DCA 2013) (reversing an indirect contempt order “without prejudice” to further proceedings).

But these cases differ from the situation here, which involves a claim of evi-dentiary insufficiency. In response to the State’s recommendation, Diaz de la Portil-la — consistent with his argument that fundamental error occurred because insufficient evidence exists to support holding him in criminal contempt — says it would violate the federal and state Double Jeopardy Clauses to subject him to renewed contempt proceedings. Those clauses’ prohibition against successive prosecutions doesn’t rule out a retrial of a defendant who successfully gets his conviction overturned on appeal because of an error in the initial proceedings. See, e.g., Gore v. State, 784 So.2d 418 (Fla.2001). But Diaz de la Portilla’s primary point is not one based on mere error at trial; instead, it is founded upon the lack of any evidence that he was notified of the order requiring him to appear. His point is one of evi-dentiary insufficiency, which makes his criminal contempt conviction fall more closely in line with those situations for which a successive prosecution is prohibited. See United States v. Scott, 437 U.S. 82, 90-91, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) (“The successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict ... poses no bar to further prosecution on the same charge.”) (emphasis added). Little doubt exists that the Double Jeopardy Clauses apply to criminal contempt proceedings, see United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), and that they should prevent reinstitution of direct criminal contempt proceedings in the present case in light of the State’s forthright concession.

This conclusion is borne out in the case-law analyzing the interplay of criminal contempt convictions and the Double Jeopardy Clauses. The United States Supreme Court has held that the clauses apply when a criminal contempt conviction “based on violation of a criminal law incorporated into a court order” is followed by “a subsequent prosecution for the criminal offense” as in Dixon. 509 U.S. at 695, 113 S.Ct. 2849. Similarly, the clauses also apply when a conviction for a violation of a criminal law is followed by a “prosecution for contempt of court arising out of’ the same violation of law. See N.T. v. State, 682 So.2d 688, 690 (Fla. 5th DCA 1996); Hernandez v. State, 624 So.2d 782, 783 (Fla. 2d DCA 1993) (“[Sjuccessive prosecution for indirect criminal contempt in this case violates the Double Jeopardy Clause” if based on substantive offense underlying prior conviction); see also Fierro v. State, 653 So.2d 447, 448 (Fla. 1st DCA 1995) (noting that under Hernandez the Double Jeopardy Clause “prohibits the subsequent prosecution for a substantive offense that underlies a criminal contempt charge for which one has been convicted. It also holds the converse, i.e., subsequent prosecution for criminal contempt, the basis of which is a substantive offense for which a conviction has been obtained, violates the Double Jeopardy Clause.”).

Given this doctrinal symmetry in related contexts, it seems evident that a bar on successive prosecution must also apply to prevent a second attempt at securing a criminal contempt conviction where, as here, the original conviction was based on insufficient evidence; to hold otherwise would fall squarely in the crosshairs of what the Double Jeopardy Clauses disallow post-Dixon. See, e.g., Lascaibar v. Lascaibar, 773 So.2d 1236 (Fla. 3d DCA 2000) (acquittal of husband on indirect criminal contempt charge barred retrial under Dixon). As such, Diaz de la Portil-la, as a defendant in a criminal contempt proceeding, is thereby protected from successive prosecution for direct criminal contempt under the Double Jeopardy Clauses based on the evidentiary insufficiency in this case. In so holding, we in no way condone a failure to appear as required by a court order; such conduct is worthy of punishment via contempt, provided the requisite due process is shown.

Finally, in light of the foregoing discussion about the uncertainty that exists regarding Aron’s application in cases such as this one, we certify the following question of great public importance:

Whether a party who is ordered by a trial court to appear at a scheduled hearing, but fails to do so, may be found in direct criminal contempt under Florida Rules of Criminal Procedure 3.830; or whether such conduct should be addressed as indirect criminal contempt under Florida Rules of Criminal Procedure 3.840?

Should the supreme court choose to accept jurisdiction, we recommend that it also consider the State’s suggestion that criminal contempt hearings be held separately from the civil proceedings. In addition, our ruling that the Double Jeopardy Clauses shield Diaz de la Portilla from retrial, is one upon which Florida’s courts could use clearer guidance in light of the uncertainty that Dixon injected into contempt proceedings under pre-existing Florida legal principles. See Scott K. Lippman, The Ramifications of U.S. v. Dixon in Florida, Fla. B.J., Feb. 1994, at 51, 53 (“[T]hat part of the Dixon decision holding that former jeopardy attaches to criminal contempt proceedings will require a drastic overhaul in existing jurisprudential thought on this matter by the courts of this state” because “Florida courts have long clung” to the view that “criminal contempt proceedings are simply exempt from double jeopardy analysis under the now-irrelevant notion that contempt proceedings serve to vindicate different ‘interests’ than criminal laws.”).

REVERSED and REMANDED; QUESTION CERTIFIED.

THOMAS and RAY, JJ., concur.

      . The original transcript of this hearing, which was filed in the trial court by Diaz de la Portilla's counsel on July 11, 2012, was transmitted to this Court in a supplemental record on August 16, 2012. At some point, either prior to the filing of the original transcript in the trial court or between that filing and transmittal of the supplemental record to this Court, profanity was handwritten on the original transcript. By an April 22, 2014 show cause order, and a response thereto, we have been unable to resolve who is responsible for the inflammatory marginalia, but direct the trial court — which is in a better position to make further inquiry — to pursue the matter on remand.

      . The cited rule is unchanged, but has been renumbered. See Fla. R. Civ. P. 1.410(f) (2014) ("(0 Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued.”)

      . "Needless to say, adopting lower court opinions is a Iess-than-ideal method to establish law in a clear and straightforward way, which may explain why it is rarely used.” Scott D. Makar, Browning v. Florida Hometown Democracy, Inc.: A Case Study in Judicial Opinion Writing, 41 Stetson L. Rev. 477, 491 (2012).

      . U.S. Const, amend. V. (“[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb ....”); Art. I, § 9, Fla. Const. ("No person shall ... be twice put in jeopardy for the same offense[.]”).


source: Caselaw Access Project

author: BLACK, Judge.

license: Public Domain

text:
    5F, LLC, Appellant, v. Robert DRESING, Sarah F. Dresing husband and wife; and Northern Trust Company, as Trustee for the Michael W. O’Shaughnessy Trust, Appellees.
    No. 2D13-2793.
    District Court of Appeal of Florida, Second District.
    July 16, 2014.

      Jason A. Lessinger and David M. Levin of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., Sarasota, for Appellant.
    J. Matthew Belcastro and Harold N. Hume of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for Appellees.
   BLACK, Judge.

5F, LLC, challenges the order granting final summary judgment in favor of Robert Dresing, Sarah F. Dresing, and the Northern Trust Company, trustee for the Michael W. O’Shaughnessy Trust (collectively referred to as the Dresings). The lower court found that the Dresings, as riparian land owners, have a common law right to construct a pier on submerged land owned by 5F which abuts the Dresings’ property and that 5F is collaterally estopped from obtaining relief due to the resolution of prior litigation. Because we conclude that the Dresings’ riparian rights include the right to construct a pier upon privately owned submerged lands, we affirm the final summary judgment; however, we conclude that collateral estoppel did not bar 5F’s lawsuit.

1. Background

Mr. and Mrs. Dresing and the Northern Trust Company own adjacent lots extending to the mean high water line in the Boca Grande Isles subdivision in Lee County. The State of Florida originally owned all of the land which became Boca Grande Isles, as well as the submerged lands surrounding Boca Grande Isles. By 1958, 5F’s predecessor in title, Sunset Realty Corporation (Sunset), had acquired all of this land from the State.

On December 16, 2010, the submerged land involved in this case was conveyed to FFF, LLC, and subsequently, on June 9, 2011, to 5F.

On March 15, 2010, the Dresings obtained the necessary permits from Lee County to construct a pier extending from their property onto the submerged land owned by 5F. Permit revisions were made in October 2010, and construction began thereafter. The completed structure was inspected and approved by Lee County on December 3, 2010. At that time, the submerged lands were owned by FFF; the Dresings made no attempt to obtain consent from FFF to construct the pier, and FFF made no objection to the pier during its construction or thereafter.

Some seven months after construction had been completed, 5F advised the Dresings of its objection to the pier by letter dated July 11, 2011. This notice was followed by a complaint filed on August 6, 2012, wherein 5F sued the Dresings for declaratory relief, ejectment, trespass, and trespass damages. The Dresings filed an answer and affirmative defenses claiming a riparian right to construct the pier, as well as arguing the applicability of the doctrines of collateral estoppel, equitable es-toppel, and balancing of the conveniences. Both sides moved for summary judgment. The lower court ruled in favor of the Dres-ings, finding that as riparian owners they had a common law right to build the pier and also finding that 5F was collaterally estopped from raising its claims due to earlier litigation. This appeal followed.

II. Discussion

A. Riparian rights
a. The lower court ruling

There is no dispute in our case that the Dresings own to the high water mark and there is no contention by 5F that the pier in question extends beyond the low water line or interferes with navigation or the public’s superior rights to use the water. In ruling for the Dresings, the lower court cited three Florida Supreme Court cases, Hayes v. Bowman, 91 So.2d 795 (Fla.1957), Williams v. Guthrie, 102 Fla. 1047, 137 So. 682 (1931), and Freed v. Miami Beach Pier Corp., 93 Fla. 888, 112 So. 841 (1927), for the principle that as a matter of law, the Dresings, as riparian owners, had a common law right to construct the pier at issue.

b. The common law

The central issue here is whether the Dresings have a common law right to “wharf out,” in this case, to construct a dock or a pier on land that is privately owned by 5F. We begin by looking to the origin of Florida’s riparian rights, the English common law.

Under the common law of England the crown in its sovereign capacity held the title to the beds of navigable or tide waters, including the shore or the space between high and low water marks, in trust for the people of the realm who had rights of navigation, commerce, fishing, bathing, and other easements allowed by law in the waters. This rule of the common law was applicable in the English colonies of America.
After the Revolution resulting in the independence of the American states, title to the beds of all waters, navigable in fact, whether tide or fresh, was held by the states in which they were located, in trust for all the people of the states respectively.

Brickell v. Trammell, 77 Fla. 544, 82 So. 221, 226 (1919). When Florida became a state, it was admitted “on equal footing with the original states.” Id. That is, title to all submerged land in Florida rested with the State of Florida, and “[t]he shore or space between high and low water mark is a part of the bed of navigable waters, the title to which is in the state in trust for the public.” Ferry Pass Inspectors’ & Shippers’ Ass’n v. White’s River Inspectors’ & Shippers’Ass’n, 57 Fla. 899, 48 So. 643, 644 (1909). Riparian holders were defined, at common law, as “those who own land extending to [the] ordinary high-water mark of navigable waters.” Brickell, 82 So. at 227. And “[r]iparian rights are incident to the ownership of lands contiguous to and bordering on navigable waters.” Ferry Pass, 48 So. at 644.

Among the common-law rights of those who own land bordering on navigable waters apart from rights of alluvion and dereliction are the right of access to the water from the land for navigation and other purposes expressed or implied by law, the right to a reasonable use of the water for domestic purposes, the right to the flow of the water without serious interruption by upper [or] lower riparian owners or others, the right to have the water kept free from pollution, the right to protect the abutting property from trespass and from injury by the improper use of the water for navigation or other purposes, the right to prevent obstruction to navigation or an unlawful use of the water or of the shore or bed that specially injures the riparian owner in the use of his property, the right to use the water in common with the public for navigation, fishing, and other purposes in which the public has an interest.

Id. at 644-45.

As to a riparian owner’s right to build piers or wharves specifically, the supreme court stated:

Subject to the superior rights of the public as to navigation and commerce, and to the concurrent rights of the public as to fishing and bathing and the like, a riparian owner may erect upon the bed and shores adjacent to his riparian holdings bath houses, wharves, or other structures to facilitate his business or pleasure; but these privileges are subject to the rights of the public to be enforced by proper public authority or by individuals who are specially and unlawfully injured.

Id. at 645.

Further, “[t]he exclusive rights of a riparian owner are such as are necessary for the use and enjoyment of his abutting property and the business lawfully conducted thereon; and these rights may not be so exercised as to injure others in their lawful rights.” Id.

c. Florida Supreme Court decisions

In the 1909 decision in Ferry Pass, the Florida Supreme Court set forth in detail the common law rights of riparian owners. It specifically included, as a privilege or qualified right, inferior to the rights of the public as to navigation and commerce but concurrent in other aspects, the benefit of building “wharves, or other structures to facilitate his business or pleasure.” 48 So. at 645. The supreme court has consistently affirmed the language of Ferry Pass, with some clarification and limitation usually relevant to the applicable law at the time of the case or to a particular set of facts. For example, subsequent to its decision in Ferry Pass, the court in Thiesen v. Gulf, Florida & Alabama Railway Co., 75 Fla. 28, 78 So. 491, 501 (1917), reh’g granted, (1918), considered both whether riparian owners whose lots did not extend to the low water mark had the right to “wharf out” — “to construct wharves, docks, and piers” — beyond the low water mark “out into the bay to the channel” pursuant to the Riparian Act of 1856, as well as whether those riparian owners had a common law right to “wharf out” beyond the low water mark, “out into the bay to the channel.”

In Thiesen, a riparian owner whose lot extended only to the high water mark sued a railroad company claiming that the railroad company had deprived him of his riparian rights by filling in the submerged land in front of his property and constructing tracks thereon. Mr. Thiesen asserted that the railroad company’s actions interfered with his rights of access, ingress and egress, and his right to construct wharves from his property to the low water mark and into the channel of the Pensacola Bay. The narrow question before the court involved construction of wharves “beyond the low-water mark to the channel,” id. at 502, under both the Riparian Act of 1856 and common law where the riparian owner’s title extended only to the high water mark.

After determining that the Riparian Act of 1856 was inapplicable to Mr. Thiesen because his title did not include the land between the high water mark and the low water mark, the court determined that the common law did not afford Mr. Thiesen the right to construct wharves “out into the bay to the channel” beyond the low water mark. Id. In so holding, the supreme court quoted with approval the language of Ferry Pass that a “ ‘riparian owner may erect upon the bed and shores adjacent to his riparian holdings bathhouses, wharves, or other structures to facilitate his business or pleasure,’ ” subject to the superior or concurrent rights of the public. Id. at 502-03 (quoting Ferry Pass, 48 So. at 645). It also quoted with approval the language of a United States Supreme Court decision discussing the construction of wharves by riparian owners whose land bordered navigable streams. In Yates v. City of Milwaukee, 77 U.S. 497, 504, 10 Wall. 497, 19 L.Ed. 984 (1870), Justice Miller, writing for the Court, stated that a riparian owner has “the right to make a landing, wharf or pier for his own use or for the use of the public, subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights of the public, whatever those may be.”

Ten years after the Thiesen decision, the supreme court considered a dispute between adjacent riparian owners in Freed, 112 So. 841. There the appellee pier corporation constructed a pier that encroached upon the submerged land in front of Mr. and Mrs. Freed’s property. The submerged land was owned by the State. Since the pier was constructed pursuant to the proper authority and the Freeds were on notice of the construction but only took legal action after construction had begun and large sums of money had been expended, the supreme court • denied the Freeds’ request for an injunction. Id. at 844-45. In ruling for the corporation, the supreme court, citing both Ferry Pass and Thiesen, recognized a “qualified right” to “erect wharves or piers or docks in front of the riparian holdings to facilitate access to and the use of the navigable waters, subject to lawful state regulation and to the dominant powers of Congress.” Id. (citations omitted).

In Williams, a 1931 decision, the supreme court yet again confirmed the riparian right to erect piers and wharves, stating, “in this state riparian owners have the riparian right to construct wharves from the upland to reach the navigable water, when not objected to by the sovereign or specially forbidden by statute.” 137 So. at 685; see also Game & Fresh Water Fish Comm’n v. Lake Islands, Ltd., 407 So.2d 189, 191 (Fla.1981) (reaffirming the riparian rights set forth in Ferry Pass); Adams v. Elliott, 128 Fla. 79, 174 So. 731, 733 (1937) (“Riparian or littoral upland owners may construct appropriate piers or whar[ves] over and across the beach to reach the water for authorized purposes ....), overruled on other grounds by Brown v. State, 237 So.2d 129 (Fla.1970). The riparian privilege or right is qualified not only by the necessity of obtaining a license from the State but by the predominant rights of the public in navigable waters such that “even when the title [to submerged lands] is in private parties a recovery of possession is subject to the rights of the public in the waters.” Williams, 137 So. at 684-85 (citing Bass v. Ramos, 58 Fla. 161, 50 So. 945, 948 (1909) (recognizing that submerged lands are held in trust for the public)).

Although it did not involve the building of wharves or piers, the 1957 Hayes decision is of particular importance given the facts of our case because Hayes involved the interplay of riparian rights and the rights of the owners of privately held submerged lands.

The Hayeses and the Abbotts (submerged landowners) acquired submerged land from the State, dredged and filled it, and built a peninsular subdivision with “fingers” or smaller peninsulas extending from the main peninsula. Thus, a number of the lots were surrounded by navigable water, Boca Ciega Cay. The submerged landowners subsequently acquired additional submerged lands surrounding the lots and proposed to dredge and fill that land. Three riparian owners filed suit to enjoin the filling, claiming that filling would interfere with their common law riparian right to an unobstructed view of the bay and the right of ingress and egress to the channel. Hayes, 91 So.2d at 798. The supreme court ruled in favor of the submerged landowners. Id. at 801. However, the court recognized that “any person acquiring any such [submerged] lands from the State must so use the land as not to interfere with the recognized common law riparian rights of upland owners (an unobstructed view, ingress and egress over the foreshore from and to the water).” Id. at 799 (citations omitted). Although it did not expressly include wharfing out or constructing piers, it is clear that the court considered riparian rights superior to those of the submerged landowner — “riparian rights ... must be preserved over an area ‘as near as practicable’ in the direction of the Channel ....” Id. at 802. Moreover, the court ruminated upon the more complex problems that the sale of submerged lands to private entities would cause in the future, concluding that submerged lands “must be administered with due regard to the limitations of the trust with which they are impressed.” Id. at 800 (citations omitted).

In Belvedere Development Corp. v. Department of Transportation, 476 So.2d 649 (Fla.1985) (Belvedere II), although it quashed the Fourth District’s opinion in Belvedere Development Corp. v. Department of Transportation, 413 So.2d 847 (Fla. 4th DCA 1982) {Belvedere I), the supreme court quoted with approval the special concurrence of Judge Hersey that riparian owners have the right, among others, “ ‘to wharf out to navigability.’ ” Belvedere II, 476 So.2d at 651 (quoting Belvedere I, 413 So.2d at 851 (Hersey, J., concurring)). This language has subsequently been relied upon by the Fourth District in multiple opinions. See Bd. of Comm’rs of Jupiter Inlet Dist. v. Thibadeau, 956 So.2d 529, 534 (Fla. 4th DCA 2007); Shore Vill. Prop. Owners’ Ass’n, Inc. v. Fla. Dep’t of Envtl. Prot., 824 So.2d 208, 211 (Fla. 4th DCA 2002); Tewksbury v. City of Deerfield Beach, 763 So.2d 1071, 1071 (Fla. 4th DCA 1999).

As recently as 2008, the Florida Supreme Court had occasion to list the common law riparian rights and identified them as “(1) the right to have access to the water; (2) the right to reasonably use the water; (3) the right to accretion and reliction; and (4) the right to unobstructed view of the water.” Walton Cnty. v. Stop the Beach Renourishment, Inc., 998 So.2d 1102, 1111 (Fla.2008), affd, Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. 702, 130 S.Ct. 2592, 177 L.Ed.2d 184 (2010). Importantly, the supreme court cited those portions of Belve-dere II and Ferry Pass identifying the right to erect wharves or piers for those enumerated rights. In short, there is extensive supreme court authority establishing the riparian right to “wharf out,” at least to the low water line, subject only to the public trust.

d. District court opinions

We find further support for the conclusion that common law riparian rights include the qualified right to build a pier or wharf in decisions from our district as well as the Fourth District.

In Brannon v. Boldt, 958 So.2d 867 (Fla. 2d DCA 2007) (en banc), this court addressed a dispute between a ser-vient estate, the riparian owner, and the dominant estate, upland owners, over implied easement rights. Although not specific to the construction of a pier, building upon Cartish v. Soper, 157 So.2d 150 (Fla. 2d DCA 1968), this court found that the implied easement would have included the right to build a dock from the riparian owner’s land over which the easement existed “if otherwise permitted by law.” Brannon, 958 So.2d at 374. Quite clearly, a dominant estate holder cannot obtain rights that the servient estate holder does not possess. Thus, in order for the implied easement to have included the right “to apply for a permit to place a dock on the” easement, the riparian owner must also have possessed that right. See id. at 373.

This court’s statement is in accord with the Freed decision wherein the supreme court recognized a “qualified right” to “erect wharves or piers or docks in front of the riparian holdings to facilitate access to and the use of the navigable waters, subject to lawful state regulation and to the dominant powers of Congress.” 112 So. at 844-45. And, as we did in Brannon, we reiterate that the privilege or qualified right to construct a pier “is apparently illusory” until such time as the riparian owner complies with the applicable regulations, including zoning and environmental controls put in place as part of the public trust doctrine. 958 So.2d at 373. See also Op. Att'y Gen. Fla. 96-49 (1996) (“Subject to applicable regulations and permitting procedures, the owner of riparian property may construct and maintain a wharf, dock, or pier from his or her land to the navigable portion of adjoining waters.”).

In Board of Trustees of the Internal Improvement Trust Fund v. Medeira Beach Nominee, Inc., 272 So.2d 209 (Fla. 2d DCA 1973), a case addressing title to accreted lands as between the Board of Trustees and the riparian owner, this court expressly recognized a “qualified common law right to wharf out to navigable waters in the absence of a statute.” Id. at 214 (citing Freed, 93 Fla. 888, 112 So. 841; Williams, 102 Fla. 1047, 137 So. 682). The Medeira Beach decision also recognizes the public trust doctrine and the impact of governmental regulation on the rights of the public and riparian owners.

The Fourth District has three times expressly stated that riparian rights in Florida include the right “to wharf out to navigability.” In Shore Village the court addressed “whether riparian rights necessarily include the building of a dock.” 824 So.2d at 211. Citing its previous decision in Tewksbury, 768 So.2d at 1071, and the supreme court’s Belvedere II decision, 476 So.2d at 651, the Fourth District concluded that “riparian rights include the building of a dock to have access to navigable waters.” Shore Village, 824 So.2d at 211; see also Thibadeau, 956 So.2d at 534.

e. Sovereign submerged lands v. Privately held submerged lands

It is important to reaffirm the issue presented in this appeal, which is whether the Dresings have an affirmative right to construct the pier and not what rights 5F may have. 5F argues that no right to wharf out at common law exists, or at best, that it can prevent the Dresings from exercising their right. In this regard it is important to consider on what basis the State could prevent the Dresings from erecting a pier if the submerged lands were still held in trust by the State, or perhaps more accurately, by the Board of Trustees of the Internal Improvement Trust Fund (Trustees).

The public trust doctrine was codified in article X, section 11, of the Florida Constitution, which recites that “[t]he title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people.” Thus, the State did not hold title to submerged lands “for purposes of sale or conversion into money.” Hayes, 91 So.2d at 799. Rather, such lands are “trust property and should be devoted to the fulfillment of the purposes of the trust, towit [sic]: the service of the people.” Id. As noted previously, pursuant to the Bulkhead Act of 1957, title to all sovereign submerged land was vested in the Trustees. The Trustees were thus “vested with the power and duty to manage and control sovereignty lands.” Mariner Props. Dev., Inc. v. Bd. of Trs. of the Internal Improvement Trust Fund, 748 So.2d 1121, 1122 (Fla. 1st DCA 1999) (citing § 253.03, Fla. Stat.). However, “[consistent with article X, section 11, of the Florida Constitution, [submerged lands] are held by the Board [of Trustees] as a public trust and the Board [of Trustees’] authority is rigidly circumscribed by this common law doctrine.” Id. (emphasis added).

In Krieter v. Chiles, 595 So.2d 111 (Fla. 3d DCA 1992), a riparian owner was denied permission by the Trustees to construct a dock on submerged land in a park held in trust by the Trustees. The court recognized that the riparian owner’s right of ingress and egress by wharfing out was a qualified right, citing Ferry Pass, and as such, the Trustees had the authority to prohibit its construction because it was in the public interest to do so. Id. at 112-13 (citing Graham v. Edwards, 472 So.2d 803, 807 (Fla. 3d DCA 1985)); see also Hayes, 91 So.2d at 799 (“[T]he State may dispose of submerged lands under tidal waters to the extent that such disposition will not interfere with the public’s right of navigation, swimming and like uses. Moreover, any person acquiring any such lands from the State must so use the land as not to interfere with the recognized common law riparian rights of upland owners (an unobstructed view, ingress and egress over the foreshore from and to the water).”). Certainly any authority obtained by 5F’s predecessors in interest and thereafter 5F would also be so restricted by the public trust doctrine. And even if the pier in question was constructed in contravention of the public trust, 5F has not asserted such argument. Further, the permits obtained by the Dresings suggest otherwise. Cf. Burns v. Wiseheart, 205 So.2d 708, 710 (Fla. 1st DCA1968).

However, it has not escaped this court’s attention that only a few of the foregoing cases concerned riparian rights and privately owned submerged land — Thiesen, Hayes, and Tewksbury. Along with the fact that Thiesen addressed the narrow legal issue of wharfíng out beyond the low water mark, an issue not before this court, both Thiesen and Hayes presented a set of facts which are increasingly rare — the applicability of riparian rights where submerged land under navigable water has been or will be dredged and filled to create upland. As noted previously, Sunset did in fact record a subdivision plat of the submerged land in 1989. However, the dredging and filling of land is no longer a commonly accepted practice. See F. Maloney, S. Plager, R. Ausness, B. Canter, Florida Water Law 460-62 (1980) (noting that pursuant to the Bulkhead Act, dredging and filling activities became heavily regulated and the sale of submerged lands was permitted only in the public interest with ecological considerations in mind; the public’s awareness of environmental issues also increased in the late 1960s and early 1970s).

The Tewksbury decision addressed privately owned submerged lands and the scope of a riparian owner’s right to erect a dock, specifically whether that right included the operation of an outdoor dining area on the dock. 763 So.2d at 1071. And although the court noted that “[t]he fact that this case concerns privately-owned submerged land as opposed to sovereign lands owned by the State of Florida makes it somewhat unique,” 763 So.2d at 1071 n. 1, the court did not consider that a factor in determining the scope of the riparian owner’s right “to wharf out to navigability,” id. at 1071-72. Neither do we.

Moreover, all of the aforementioned cases illustrate a common thread: that the rights of the public are superior to those of private landowners — whether riparian owners or submerged land owners. This is one indicium of the uniqueness of riparian rights. As the supreme court has stated,

[although riparian rights are property, they are unique in character. The source of those rights is not found within the interest itself, but rather they are found in, and are defined in terms of the riparian upland. In most cases, therefore, it is not difficult to find that riparian rights are an inherent aspect of upland ownership and are not severable from it.

Belvedere II, 476 So.2d at 652. With regard to submerged lands like other property, “the law recognizes various degrees of legal rights and interests in the same property and does not demand that one person hold the entire ‘bundle of sticks.’ ” Coastal Petroleum Co. v. Am. Cyanamid Co., 492 So.2d 339, 348 (Fla.1986).

Finally, though it is apparent the authority to control and manage submerged lands is restricted by the public trust doctrine, we do not believe that such authority can be stripped from the State even if the submerged land becomes privately owned. See State ex rel. Ellis v. Gerbing, 56 Fla. 603, 47 So. 353, 355 (1908) (“A state may make limited disposition of portions of such lands, or of the use thereof, in the interest of the public welfare, where the rights of the whole people of the state as to navigation and other uses of the waters are not materially impaired. The states cannot abdicate general control over such lands and the waters thereon, since such abdication would be inconsistent with the implied legal duty of the states to preserve and control such lands and the waters thereon and the use of them for the public good.”).

f. Conclusion

We conclude there is a common law qualified riparian right or privilege to construct piers or wharves from the riparian owner’s land onto submerged land to the point of navigability but not beyond the low water line, subject to the superior and concurrent rights of the public and to applicable regulations. This is true regardless of whether the submerged lands are held in trust by the State or privately held.

B. Collateral Estoppel

In addition to finding a common law right to erect a pier or wharf, the lower court also found that 5F’s claims were barred by application of the collateral estoppel doctrine based upon two circuit court cases involving 5F’s predecessor in title, Sunset. The outcomes of both cases were adverse to Sunset. Though it is undisputed that these prior lawsuits involved the same subdivision and effectively the same owner of the submerged lands since Sunset was the predecessor in title to the submerged lands, it is also undisputed that the Dresings were not parties to either of the prior actions and were not in privity with any party that was.

As the Florida Supreme Court has made clear, there must “be mutuality of parties in order for collateral estoppel to apply defensively.” E.C. v. Katz, 781 So.2d 1268, 1270 (Fla.1999); accord Stogniew v. McQueen, 656 So.2d 917, 919 (Fla. 1995). Further, this court recently determined that collateral estoppel was inapplicable in a case that did not involve the “relitigation of the same issues by the same parties in a different cause of action.” Zakhary v. Raymond Thompson PSM, Inc., 98 So.3d 1148, 1151 (Fla. 2d DCA 2012); see also Cook v. State, 921 So.2d 631, 634-35 (Fla. 2d DCA 2005) (explaining the general principles of collateral estoppel including the mutuality of parties requirement). Though exceptions to the mutuality of parties requirement have been recognized in a few limited circumstances, such as “where special fairness or policy considerations appear to compel it,” see West v. Kawasaki Motors Mfg. Corp., U.S.A., 595 So.2d 92, 94-96 (Fla. 3d DCA 1992), this is not such a case. In fact,

the sole exception “in which [the Florida Supreme Court] has not strictly adhered to the requirement of mutuality of parties is Zeidwig [v. Ward, 548 So.2d 209 (Fla.1989) ].” In that case, a criminal defendant who had unsuccessfully brought an ineffective assistance of counsel claim in a postconviction proceeding was held to be collaterally es-topped from raising the same claim in a legal malpractice action against his former lawyer.... Zeidwig constitutes a “narrow exception” in which collateral estoppel is permitted in a defensive context “and then only under the compelling facts of that case.”

E.C., 731 So.2d at 1269-70 (alteration in original) (quoting Stogniew, 656 So.2d at 919).

The Second District cases that recognize an exception to the general rule regarding mutuality of parties either involve a significant legal relationship between the party in the prior action and the party asserting collateral estoppel or a mutual interest in the same matter. In City of New Port Richey v. State ex rel. O’Malley, 145 So.2d 903, 905 (Fla. 2d DCA 1962), for example, this court applied the doctrine of collateral estoppel determining that there was a “mutuality of interest in the same subject matter.” This court noted that in addition to the fact that the parties in both suits were property owners in an area annexed by the city, the issue in both cases involved the same real property, namely, the annex. An exception to the mutuality of parties requirement was also applied in the three-line opinion in Dixie Auto Transport Co., Inc. v. Louttit, 588 So.2d 68 (Fla. 2d DCA 1991). However, in recognizing the exception, this court cited Zeidwig and a Third District case, Verhagen v. Arroyo, 552 So.2d 1162 (Fla. 3d DCA 1989). The Dres-ings concede that the very narrow exception recognized in Zeidwig is not applicable here. Further, the court in Verhagen expressly found that the defendants in that action were in privity, “for collateral estop-pel purposes,” with the defendants in the prior action. 552 So.2d at 1164.

Because we do not have mutuality of parties in this case and there is otherwise no relationship between the Dresings and the prior litigants, collateral estoppel is inapplicable.

III. Conclusion

Though collateral estoppel does not bar 5F’s claims, we affirm the lower court’s final summary judgment order to the extent that the court determined that the Dresings, as riparian owners, have a qualified common law right to construct the pier at issue.

Affirmed.

ALTENBERND and KHOUZAM, JJ., Concur.

      . "The boundary between public lands and private uplands is the [mean high water line], which represents an average over a nineteen-year period.” Walton Cnty. v. Stop the Beach Renourishment, Inc., 998 So.2d 1102, 1113 (Fla.2008) (citing Kruse v. Grokap, Inc., 349 So.2d 788, 789-90 (Fla. 2d DCA 1977)). As noted by the Walton County court, the nineteen-year period is codified in section 177..27, Florida Statutes (1975). 998 So.2d at 1113. The mean high water line or ordinary high water mark "is described as ‘the point up to which the presence and action of the water is so continuous as to destroy the value of the land for agricultural purposes by preventing the growth of vegetation.' " Bd. of Trs. of the Internal Improvement Trust Fund v. Walker Ranch Gen. P’ship, 496 So.2d 153, 155 (Fla. 5th DCA 1986) (quoting Tilden v. Smith, 94 Fla. 502, 113 So. 708, 712 (1927)).

      . In 1973, Sunset recorded a subdivision plat of Boca Grande Isles in the public records of Lee County and subsequently began selling homesites within the subdivision. In 1989, Sunset recorded a subdivision plat, the Sunset Flats subdivision, of the submerged lands surrounding Boca Grande Isles. However, the land was never filled and remains submerged.

      . Technically, " '[tjhe term riparian owner applies to waterfront owners along a river or stream, and the term littoral owner applies to waterfront owners abutting an ocean, sea, or lake.’ ” Walton Cnty., 998 So.2d at 1105 n. 3 (alteration in original) (quoting Bd. of Trs. of the Internal Improvement Trust Fund v. Sand Key Assocs., Ltd., 512 So.2d 934, 936 (Fla. 1987)). However, to be consistent with the lower court proceedings and common practice in Florida, we will use the term riparian. See Brannon v. Boldt, 958 So.2d 367, 372 n. 3 (Fla. 2d DCA 2007) (“Although the use of ‘riparian’ in this case is technically incorrect, it is consistent with the accepted usage in Florida cases.’’).

      . It is of no consequence that the pier wharfs out into shallow water. See Martin v. Busch, 93 Fla. 535, 112 So. 274, 283 (1927) (“The navigable waters include lakes, rivers, bays, or harbors, and all waters capable of practical navigation for useful purposes, whether affected by tides or not, and whether the water is navigable or not in all its parts towards the outside lines or elsewhere, or whether the waters are navigable during the entire year or not.”); Broward v. Mabry, 58 Fla. 398, 50 So. 826, 831 (1909) (noting that the shallow body of water in question is navigable even though it goes dry at times and can only be navigated by small boats).

      . Shortly after Florida became a state, the Florida Legislature enacted the Riparian Act of 1856. See ch. 791, Laws of Fla. (1856). This act “granted to such riparian owners whose lots extended to [the] low-water mark the right to build wharves into streams or waters of the bay or harbor as far as may be necessary for facilitating the landing of goods." Thiesen, 78 So. at 501. In 1921, the Riparian Act of 1856 was replaced by the Butler Act, see ch. 8537, Laws of Fla. (1921) (repealed 1957), which, just like its predecessor, “divested the State of Florida of fee simple title to submerged lands upon which upland owners constructed certain improvements in the interest of encouraging commerce by developing waterfront property.” City of West Palm Beach v. Bel. of Trs. of the Internal Improvement Trust Fund, 746 So.2d 1085, 1086 (Fla.1999). "The Butler Act was expressly repealed by the Bulkhead Act of 1957, which vested title to all submerged lands in the trustees of the Internal Improvement Fund.” City of West Palm Beach v. Bd. of Trs. of the Internal Improvement Trust Fund, 714 So.2d 1060, 1061 (Fla. 4th DCA 1998) (citing ch. 57-362 § 1, Laws of Fla. (codified at § 253.12, Fla. Stat. (1997)), affd, 746 So.2d 1085 (Fla.1999).

      . Just as the supreme court in Freed admonished the adjacent riparian owners for failing to take legal action until construction had begun and money expended, 5F and its predecessors in title are deserving of reproach for failing to object to the pier prior to its completion. ‘‘[A]ny substantial encroachment upon the rights of others may be remedied by timely and appropriate procedure in due course of law at the instance of proper parties, but the rights of individuals to remedy may be waived by undue delay or laches in seeking a remedy.” Freed, 112 So. at 845.

      . The Cartish decision, relied upon in Bran-non, involved a dispute between upland owners concerning the scope of an easement and whether the easement included a right to rebuild a previously existing dock. This court determined that riparian rights were implied as part of the easement allowing for ingress and egress from the bay. 157 So.2d at 153. See also Shore Village, 824 So.2d at 210-11 (citing Cartish in concluding that easement included riparian rights, particularly the right to "wharf out to navigability”). As such, this court concluded that the right to rebuild the dock to facilitate access to the bay was implied in the easement. Cartish, 157 So.2d at 153-54.

      . See also Op. Att'y Gen. Fla. 96-49 (1996) (citing Freed and Ferry Pass as authority for the conclusion that "riparian property owners in Florida have a qualified right to build docks or 'wharf out’ to navigable water and have exclusive rights to use their private property”); Op. Att'y Gen. Fla. 90-37 (1990) (citing Freed and Medeira Beach for the conclusion that "riparian property owners in Florida have a qualified right to build docks or 'wharf out’ to navigable water in the absence of a statute”).

      . See Summary Judgment, LeClair v. Stewart, No. 91-8953 CA-WCM (Fla. 20th Cir.Ct. Dec. 22, 1992) (order granting plaintiff's motion for summary judgment against defendants, Robert Stewart and Sunset); Order Granting Defendants’ Motion for Summary Judgment, Sunset Realty Corp. v. Boynton, No. 91-3623 CA (Fla. 20th Cir.Ct. May 18, 1992).


author: PER CURIAM.

text:
    Javarous DAWSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D11-2428, 4D13-871.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2014.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals his sentence for first-degree murder. He argues that, pursuant to Miller v. Alabama, — U.S.—, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the trial court erred in sentencing him, as a minor, to life in prison without the possibility of parole, and that a new sentencing hearing contemplated by Miller must occur on remand. We agree.

In Miller, the United States Supreme Court held:

[T]he Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. ... Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.

Id. at 2469 (footnote omitted).

The state concedes that the defendant’s sentence violates Miller. However, the state argues that the new sentencing hearing contemplated by Miller is unnecessary. According to the state, the proper remedy is to revert to the earlier constitutional sentence for a capital felony of life with the possibility of parole after twenty-five years. See § 775.082(1), Fla. Stat. (1993).

Our sister courts are divided on whether the new sentencing hearing contemplated by Miller must occur on remand or whether a defendant’s sentence must revert to life with the possibility of parole after twenty-five years. Compare Hernandez v. State, 117 So.3d 778, 783 (Fla. 3d DCA 2013) (“Under Miller, while a sentence of life without parole remains constitutional in homicide cases, the sentencing court must be free to impose a lesser sentence when the defendant’s youth or the circumstances of the crime so indicate.”), and Washington v. State, 103 So.3d 917, 920 (Fla. 1st DCA 2012) (“The better course calls for this Court to exercise restraint and for the parties to make their case before the trial court, where testimony may be taken, evidence presented, and argument made on all material issues to include the potential range of sentencing options.”), with Horsley v. State, 121 So.3d 1130, 1131 (Fla. 5th DCA 2013) (“[T]he only sentence now available in Florida for a charge of capital murder committed by a juvenile is life with the possibility of parole after twenty-five years.”), rev. granted, Nos. SC13-1938 & SC13-2000, 2013 WL 6224657 (Fla. Nov. 14, 2013).

This court, however, already has followed Miller to direct a trial court, on remand, “to conduct further sentencing proceedings and expressly consider whether any of the numerous ‘distinctive attributes of youth’ referenced in Miller apply.” Daugherty v. State, 96 So.3d 1076, 1080 (Fla. 4th DCA 2012). See also Juarez v. State, 138 So.3d 1094 (Fla. 4th DCA 2014); Brighton v. State, No. 4D11-3740, 141 So.3d 579, 39 Fla. L. Weekly D810, 2014 WL 1464695 (Fla. 4th DCA Apr. 16, 2014).

We maintain the same position here. Thus, we vacate the defendant’s sentence and remand for a new sentencing hearing contemplated by Miller. We certify conflict with Horsley.

Sentence vacated; remanded for resen-tencing.

TAYLOR, CIKLIN, and GERBER, JJ., concur.


author: MAY, J.

text:
    Andrew J. ANDRIST and Douglas S. Stanhope, Appellants, v. Stephen P. SPLEEN, Appellee.
    No. 4D13-2818.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2014.

      Jonathan Jay Kirschner of Jonathan Jay Kirschner & Associates, LLC, Fort Pierce, for appellants.
    D. John Rhodeback of Rooney & Rooney, P.A., Vero Beach, for appellee.
   MAY, J.

This case illustrates the exception to a rule. The defendants appeal an order awarding them attorney’s fees, but limiting the amount to the $100 bond posted by the plaintiff for an ex parte temporary injunction. They argue the trial court erred in limiting the award because they did not have notice of the hearing at which the trial court determined the amount, and they diligently sought relief from the injunction. We agree and reverse.

The case arose from the plaintiffs concern that he would be defamed by the defendants as part of their comedy act. The plaintiff filed an emergency ex parte motion for temporary injunction without notice, as well as a verified six-count complaint against the defendants. The complaint alleged that the defendants were stand-up comedians who had developed a scheme to falsely accuse the plaintiff of molesting one of them when he was a minor.

On their Twitter and Facebook accounts, the defendants posted that they planned to confront the plaintiff at a hotel with a camera crew, and show the taped interview during a stand-up comedy show in West Palm Beach. The plaintiff alleged the plan was designed to extort him and gain notoriety for the defendants’ comedy career. The plaintiff denied the molestation accusations.

In the emergency motion, plaintiffs counsel certified he sent an e-mail to one defendant inquiring about his intentions prior to the hearing, but had not received a response. No other efforts were made to contact the defendants. Counsel argued that no further notice should be required because the defendants threatened to spread untrue allegations about the plaintiff, and notice would not prevent them from disseminating that information.

Plaintiffs counsel informed the court that he found information, including a podcast, on the internet. There were jokes throughout the podcast. He argued the defendants were engaging in a shameless promotion of their comedy tour. Because the plaintiff could not defend himself on the internet, he had no adequate remedy at law.

Counsel suggested that a nominal bond would suffice because the defendants would not suffer any harm or monetary loss by the injunction. He insisted the defendants would not be able to prove any lost income. He also argued that because the plaintiff was not a public figure, either no bond or a nominal one should be required.

The court granted the ex parte temporary injunction without notice, and enjoined the defendants from disclosing, disseminating, or publishing any information regarding the plaintiff and the pending lawsuit. It also enjoined them from threatening to disclose, disseminate, or publish the information until the resolution of the case. The court required a $100 bond.

Nine days after its entry, the defendants filed a verified emergency motion to dissolve the temporary injunction. The motion'detailed the plaintiffs alleged molestation of one of the defendants, the negative long-term effects of the molestation, and the plaintiffs alleged admission and apology to the defendant during the taped confrontation.

The court heard the defendants’ motion and dissolved the temporary injunction. The defendants then filed an amended motion for an award of damages, including attorney’s fees and costs. They argued that they were entitled to damages exceeding the amount of the injunction bond because: (1) the plaintiff did not seek the temporary injunction in good faith; and (2) the bond was set ex parte and the defendants proceeded expeditiously to exhaust available remedies.

A successor judge heard the amended motion for damages. The court strictly construed section 60.07, Florida Statutes (2012), and awarded only the amount of the bond. The court declined the defendants’ request to make a factual finding that they expeditiously brought the issue to resolution, explaining that such a finding would not change the outcome. The court denied the defendant’s motion for clarification and for rehearing. From the award and denial of their motions for rehearing and clarification, the defendants now appeal.

The defendants argue that the court erred in strictly construing Rule 1.610 of the Florida Rules of Civil Procedure and section 60.07, Florida Statutes, to limit their damages to the posted $100 bond. They argue that this case falls within two exceptions to the general rule because the injunction was obtained ex parte and in bad faith, and they promptly sought to dissolve the wrongfully issued injunction. We agree and reverse.

We have de novo review of legal issues, but the amount of the attorney’s fees award is reviewed for an abuse of discretion. Gibbs Constr. Co. v. S.L. Page Corp., 755 So.2d 787, 790 (Fla. 2d DCA 2000).

A temporary injunction may not be entered unless a movant posts a bond in an appropriate amount for “costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined.” Fla. R. Civ. P. 1.610(b). The amount of the bond constitutes the court’s determination of the foreseeable damages. Parker Tampa Two, Inc. v. Somerset Dev. Corp., 544 So.2d 1018,1021 (Fla.1989).

Upon the dissolution of a temporary injunction, the court “may hear evidence and assess damages to which a defendant may be entitled under any injunction bond.” § 60.07, Fla. Stat. (2012). “It is well-established that reasonable attorney’s fees may be recovered ... if the injunction was wrongfully issued, and if the attorney’s fees relate to the defeat or dissolution of the court’s injunction.” Merrett v. Nagel, 564 So.2d 229, 231 (Fla. 5th DCA 1990) (citing Roger Dean Chevrolet, Inc. v. Painters, Decorators & Paperhangers of Am., Local No. 152, 155 So.2d 422 (Fla. 2d DCA 1963)).

As a general rule, a wrongfully-enjoined party’s damages are limited to the amount of the posted bond. Parker Tampa Two, Inc., 544 So.2d at 1019. Courts have however allowed recovery exceeding the bond when the injunction is sought in bad faith or when the injunction bond is set without an evidentiary hearing on foreseeable damages. Lotenfoe v. Pahk, 747 So.2d 422, 425 (Fla. 2d DCA 1999).

In SeaEscape, Ltd., Inc. v. Maximum Marketing Exposure, Inc., 568 So.2d 952, 956 (Fla. 3d DCA 1990), the Third District found the defendant entitled to damages beyond the bond amount because it acted promptly to dissolve the wrongfully entered injunction and increase the bond. The court reversed and remanded the case. “[Wjhere there has been no opportunity for a hearing and where the enjoined party has proceeded expeditiously to exhaust available remedies, the damages for wrongful injunction are not limited to the bond amount.” Id. at 956.

Here, the temporary injunction and bond were obtained ex parte. Like the defendant in SeaEscape, who promptly moved to dissolve the injunction, the defendants expeditiously moved to dissolve the temporary injunction within nine days of its issuance. The same result is warranted. The defendants were not given notice of the request for a temporary injunction, and were deprived of the opportunity to prove a higher bond was warranted. They acted diligently in moving to dissolve the injunction and in requesting damages, including attorney’s fees. The court erred in limiting their damages to the bond amount.

We therefore reverse and remand the case. Because the injunction has been dissolved, the court need only conduct an evidentiary hearing to allow the defendants the opportunity to prove damages greater than the $100 awarded. See Lo-tenfoe, 747 So.2d at 425-26 (where the injunction is already dissolved, “there is no functional need to set a new injunction bond.”); see also Leibowitz v. City of Miami Beach, 683 So.2d 204 (Fla. 3d DCA 1996) (remanding for recalculation of attor-nejfs fees sought after dissolution of the injunction).

Reversed and Remanded.

DAMOORGIAN, C.J., and WARNER, J., concur.

      . The Honorable Dan Vaughn entered the ex parte temporary injunction and set the bond at $100. Due to new division assignments, the Honorable Robert E. Belanger took over Judge Vaughn’s division and heard the amended motion for damages.


author: DAMOORGIAN, C.J.

text:
    Rocco James NAPOLI, Appellant, v. Susan Campbell NAPOLI, Appellee.
    No. 4D14-234.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2014.

      John J. O’Hara of the O’Hara Law Group, P.A., Boca Raton, and Carla T. Reece of Canaveral Legal Group, P.L., Cocoa, for appellant.
    John A. Kovarik of John A. Kovarik, Esq. P.A., Tequesta, for appellee.
   DAMOORGIAN, C.J.

Rocco James Napoli (“Husband”) appeals the trial court’s order holding him in contempt for failure to pay temporary spousal support to Susan Campbell Napoli (“Wife”). We reverse and remand for further proceedings because the trial court’s contempt order does not contain the written findings required by rule 12.615 of the Florida Family Law Rules of Procedure. The Husband raises several other challenges to the contempt order, which we reject without further comment.

During the pendency of the parties’ divorce case, the trial court entered a temporary relief order requiring the Husband to pay spousal support to the Wife. The Husband did not comply with the payment schedule set forth in the order and the Wife moved to hold him in contempt. After a hearing on the Wife’s motion, the trial court entered an order finding the Husband in “direct civil contempt of court for his failure to comply with a valid Court order despite his ability to do so.” The contempt order states that the Husband failed to pay “a single dollar of alimony to the Wife.” It also provides for the Husband’s incarceration unless he pays the purge amount of $2,500 within fifteen days of the order. This appeal follows.

“A judgment of contempt comes to the appellate court clothed with a presumption of correctness and will not be overturned unless ... the trial court either abused its discretion or departed so substantially from the essential requirements of law as to have committed fundamental error.” DeMello v. Buckman, 914 So.2d 1090, 1093 (Fla. 4th DCA 2005). On appeal, the Husband argues that the trial court’s written contempt order is legally deficient. We agree and reverse.

When a trial court finds that a civil contempt has occurred, it must enter a written order containing:

a finding that a prior order of support was entered, that the alleged contemnor has failed to pay part or all of the support ordered, that the alleged contemnor had the present ability to pay support, and that the alleged contemnor willfully failed to comply with the prior court order. The order shall contain a recital of the facts on which these findings are based.

Fla. Fam. L. R. P. 12.615(d)(1) (emphasis added); see also Ramirez v. Ramirez, 84 So.3d 434, 434 (Fla. 4th DCA 2012) (reversing contempt order because it did not “include the required findings that appellant had the present ability to pay the support and that he willfully refused to comply with the prior court order, and fail[ed] to contain a recital of the facts on which those findings were based”). If the court imposes incarceration as a sanction, the order must also contain “‘a separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding.’ ” Ramirez, 84 So.3d at 434-35 (quoting Fla. Fam. L. R. P. 12.615(e)).

We hold that the written contempt order in this case does not comport with these requirements. First, the contempt order does not contain an express finding that the Husband willfully failed to comply with the court’s temporary relief order. Second, the contempt order does not articulate the facts supporting the court’s conclusion that the Husband had the ability to comply with the court’s prior order. Finally, the contempt order sanctions the Husband with incarceration but does not contain a separate, affirmative finding that he had the present ability to comply with the purge.

For these reasons, we reverse the contempt order and remand the case to the trial court for further proceedings. See Connolly, 543 So.2d at 357.

Reversed and Remanded.

WARNER and MAY, JJ., concur.

      . Because there is no transcript of the contempt proceeding, we are unable to review the evidence presented or any of the findings made by the trial court during the hearing. However, even without a transcript, we can still review the trial court’s written contempt order to make sure that it contains the required findings. See Connolly v. Connolly, 543 So.2d 356, 357 (Fla. 2d DCA 1989) (remanding for further proceedings because the trial court failed to make a finding in its written order that appellant had the ability to pay the purge amount and there was no transcript of the proceedings reflecting appellant's ability to pay).


text:
    Jose Martinez FLORES, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3866.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2014.
    Thomas A. Kennedy of Thomas A. Kennedy, P.A., Vero Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
    Sonya Rudenstine, Gainesville, and Michael Ufferman, Tallahassee, for Amicus Curiae Florida Association of Criminal Defense Lawyers.

      Rebecca Sharpless, Coral Gables, Tania Galloni, Miami, and Michael Vastine, Miami Gardens, for Amicus Curiae American Immigration Lawyers Association South Florida Chapter.
   On Remand

PER CURIAM.

Pursuant to Flores v. State, 134 So.3d 447 (Fla.2014), this case is remanded to the trial court for further proceedings consistent with the Florida Supreme Court’s decisions in Hernandez v. State, 124 So.3d 757 (Fla.2012) and Castaño v. State, 119 So.3d 1208 (Fla.2012). The trial court shall determine whether appellant has established a legally sufficient basis to withdraw his plea under the circumstances of this case. See Cano v. State, 112 So.3d 646, 647-48 (Fla. 4th DCA 2013).

Reversed and Remanded.

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


text:
    PALM BEACH PARK CENTRE 4, LLC, Appellant, v. TOWN OF PALM BEACH, Appellee.
    No. 4D13-1993.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2014.
    Certification to S.Ct. Denied Aug. 1, 2014.
    Raymond M. Masciarella II, North Palm Beach, for appellant.
    Kelly A. Gardner, John C. Randolph and Stephanie Eassa Rapp of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the circuit court’s final order dismissing with prejudice appellant’s amended complaint for declaratory relief against the appellee. See Frix v. Beck, 104 So.2d 81, 83 (Fla. 3d DCA 1958) (where the law provides for a quasi-judicial tribunal’s decision to be reviewed on appeal, “and the procedure thus afforded is not availed of, a party adversely affected by such an order may not seek to have it altered or reversed by a suit for declaratory decree”). Our affirmance is without prejudice for appellant to petition appellee for relief. See Johnson v. Terry Hunt Constr. Co., 878 So.2d 1282, 1284-85 (Fla. 1st DCA 2004) (reversing administrative order denying relief where administrative final order had not been mailed to the correct address); Durando v. Palm Beach Cnty., 719 So.2d 1258, 1258-59 (Fla. 1st DCA 1998) (dismissing untimely appeal without prejudice to appellant’s right to petition agency for relief).

Affirmed without prejudice.

GROSS, GERBER and CONNER, JJ., concur.


text:
    Calvin E. SUGGS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D14-373.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2014.
    Rehearing Denied Aug. 15, 2014.
    Calvin E. Suggs, Jr., Daytona, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the order that dismissed with prejudice Appellant’s December 13, 2013 rule 3.850 motion. The court erred in finding the motion successive to a motion that Appellant filed under rule 3.800(a). The rule 3.800(a) motion did not seek relief under rule 3.850 and nothing in that motion indicates Appellant was attempting to amend the original rule 3.850 motion. See Oquendo v. State, 2 So.3d 1001, 1006 (Fla. 4th DCA 2008) (“As long as a postconviction movant has been afforded at least one opportunity to amend an insufficient claim, the trial court has discretion as to whether to permit any further amendment.”).

The trial court shall address the claims raised in this motion and, if appropriate, should consider appointing counsel to represent appellant in the postconviction proceedings. See Russo v. Akers, 724 So.2d 1151,1152-53 (Fla.1998); Graham v. State, 372 So.2d 1363,1365-66 (Fla.1979).

Reversed and Remanded.

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


text:
    C.C-R., the mother, Appellant, v. DEPARTMENT OF CHILDREN & FAMILIES, Appellee.
    No. 4D14-403.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2014.
    Ana Gomez-Mallada, Fort Lauderdale, for appellant.
    Karla Perkins, Appellate Counsel, Department of Children & Families, Miami, for appellee.
    Laura E. Lawson, Sanford, for Guardian Ad Litem Program.
   PER CURIAM.

Affirmed. See In re: S.V.B., 93 So.3d 340 (Fla. 2d DCA 2012).

GROSS, GERBER and CONNER, JJ., concur.


author: CRENSHAW, Judge.

text:
    STATE of Florida, Appellant, v. Timothy KELLEHER, Appellee.
    No. 2D13-3819.
    District Court of Appeal of Florida, Second District.
    July 18, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellee.
   CRENSHAW, Judge.

The State of Florida appeals the downward departure sentence imposed for Timothy Kelleher’s convictions of four counts of sale of illegal drugs, three of which were third-degree felonies and one of which was a second-degree felony. Pursuant to section 921.0026(2)©, Florida Statutes (2011), a court can impose a sentence below the Criminal Punishment Code guidelines if “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” Id. Because the court erred in concluding the offense was committed in an unsophisticated manner and was an isolated incident, we reverse the downward departure sentence and remand for resentencing.

Facts

An undercover officer bought drugs from Kelleher in three transactions over the course of one week; Kelleher approached the officer at the third buy. Although Kelleher has had no felonies on his record for over ten years, he had a lengthy prior record including over twenty misdemeanors and over ten felonies some of which were violent felonies. The older felonies were scored because some of his misdemeanors occurred since his last felony. Thus, his scoresheet reflects a score of 84.6 points for which the lowest unmitigated sentence would be 42.45 months’ prison. At sentencing, Kelleher requested a downward departure sentence for an unsophisticated, isolated offense for which the defendant has shown remorse under section 921.0026(2)(j); the State requested a bottom-of-the-guidelines sentence. The court imposed a downward departure sentence of three months’ jail with eight months’ jail suspended and a probationary period of twelve months thereafter to run concurrently on each count; the State appealed.

Discussion

“In order to support the trial court’s reasoning for the downward departure, it was necessary for there to have been competent, substantial evidence that (1) the offense was committed in an unsophisticated manner, (2) it was an isolated incident, and (3) the defendant had shown remorse.” State v. Butler, 787 So.2d 47, 48 (Fla. 2d DCA 2001) (citing § 921.0026(2)(j), Fla. Stat. (2000); State v. Santomaso, 764 So.2d 735, 737 (Fla. 2d DCA 2000)). “ ‘The trial court must first determine whether it can depart—whether the defendant has met the burden of establishing sufficient factual support for a valid legal ground.’ ” Kezal v. State, 42 So.3d 252, 254 (Fla. 2d DCA 2010) (quoting State v. Green, 890 So.2d 1283, 1286 (Fla. 2d DCA 2005)). In this case, Kelleher failed to establish that the manner of his offense was unsophisticated and the incident isolated.

Turning first to whether the manner was unsophisticated, in at least one instance it was Kelleher who approached the detective to sell drugs. Although Kelleher did not use any mechanism or calculus to determine to whom he should sell drugs, and usually was approached by detectives, that conduct was not consistent. Rather, after establishing a relationship with the detective, Kelleher sought him out upon spotting him nearby. At first glance this case is similar to State v. Fleming, 751 So.2d 620 (Fla. 4th DCA 1999), which concluded that the simple purchase of cannabis from a police officer who was currently executing a search warrant was unsophisticated. However, this case is distinguishable from Fleming because Kelle-her approached the detective at least once. Further, this is a case of sale to a police officer, which is more involved—Kelleher had to obtain a supply in order to sell the drugs—than is purchase, as in Fleming. Because Kelleher failed to establish that the manner of his offense was unsophisticated, we must reverse on this ground.

We are also compelled to reverse because Kelleher failed to establish that his offense was an isolated incident. “[T]he issue for this [cjourt is whether [Kelleher’s] criminal history is so extensive that it precludes a downward departure sentence under section 921.0026(2)(j) ....” State v. Waterman, 12 So.3d 1265, 1268 (Fla. 4th DCA 2009). As in Waterman, Kelleher’s prior history falls somewhere “in the middle of the spectrum of criminal records, where on one end lies the defendant with a clearly excessive record, and on the other end lies a defendant with no prior criminal record.” Id. Though Kelle-her is correct that his prior history would not have been scored at all but for some misdemeanors because of the lapse between his prior offenses and the charged offense, that does not change that he has a lengthy history. His history is aggravated by the fact that this case itself consists of several occurrences over the course of a week. See id. Compare State v. Fontaine, 955 So.2d 1248, 1251 (Fla. 4th DCA 2007) (Warner, J., concurring specially) (“Having only two misdemeanor convictions ten years [prior] does not prevent a finding that this offense is an isolated incident.”), and State v. Randall, 746 So.2d 550, 552 (Fla. 5th DCA 1999) (holding an incident was isolated where there was only one prior conviction), with State v. Gaines, 971 So.2d 219, 220-21 (Fla. 4th DCA 2008) (holding that where defendant had eighteen prior convictions including several forcible felonies, a downward departure under section 921.0026(2)(j) cannot be sustained), and State v. Stephenson, 973 So.2d 1259, 1263-64 (Fla. 5th DCA 2008) (same for seventeen prior convictions). In those cases on the higher end of the spectrum, defendants have been held not to have committed offenses that are isolated incidents. Kelleher’s criminal history is so extensive that it precludes a downward departure sentence under section 921.0026(2) (j) -

Because the circuit court erred in imposing a downward departure sentence, we reverse the sentence and remand for re-sentencing.

Sentence reversed.

MORRIS and SLEET, JJ., Concur.