author: SILBERMAN, Chief Judge. NORTHCUTT, Judge,

text:
    Aaron A. LITTLE, Petitioner, v. STATE of Florida, Respondent.
    No. 2D11-5098.
    District Court of Appeal of Florida, Second District.
    April 10, 2013.

      Kathleen A. Smith, Public Defender, and Philadelphia Beard, Special Assistant Public Defender, Fort Myers, for Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Respondent.
   SILBERMAN, Chief Judge.

Aaron A. Little seeks certiorari review of the circuit court’s order denying his motion to dismiss the criminal charge of second-degree murder with a firearm. Little argued that he shot the victim in self-defense and was entitled to immunity from criminal prosecution under section 776.032(1), Florida Statutes (2009), which is part of what is commonly known as the “Stand Your Ground” law. Because this issue involves a determination of whether the circuit court has continuing jurisdiction over Little, see Tsavaris v. Scruggs, 360 So.2d 745, 747 (Fla.1977), we treat the petition for writ of certiorari as a petition for writ of prohibition. We agree with Little that his use of deadly force was justified under the circumstances. We also reject the State’s alternative argument that Little was not entitled to immunity under the Stand Your Ground law because he was engaged in an unlawful activity at the time he used the deadly force. We therefore grant Little’s petition for writ of prohibition.

I. Facts

The incident in question occurred when Little was walking to his girlfriend’s house with his friend, Rashad Matthews. The two men happened upon Matthews’ friend, Terry Lester, who was standing in the driveway of his mother’s home. Lester was leaning into the driver’s door of a vehicle parked in the driveway when Matthews approached and engaged Lester in conversation. Little, who was a stranger to Lester, initially waited for Matthews by the street.

After a few minutes, Little started walking toward the two men. When Little reached the driver’s side of the car, De-mond Brooks jumped out of the back seat. Little knew Brooks, but the two were not friends. Without warning, Brooks pulled two handguns from his waistband, pointed them at Little, and yelled that he was “going to make it rain.” Little believed Brooks was threatening to shoot him, so he ran behind Lester and asked Lester to intervene, or to “get” Brooks. Lester tried to calm Brooks down to no avail.

Lester’s mother, Janet Speed, heard the commotion from inside the house and came to the open front door for a moment. Little used the distraction as an opportunity to obtain shelter and ran into the house. Brooks followed Little but stopped on the second of the three front porch steps. From there, Brooks held his guns down by his sides and yelled through the open door for Little to come outside. Little pressed his back up against the wall, pulled a handgun out of his pants pocket, and held it down by his side. He called to Ms. Speed to “get” Brooks.

Ms. Speed had not seen Little arm himself. Ms. Speed was alerted to the gun by her daughter-in-law, Kimberly, who was also in the room. Little, who was visibly afraid, tried to explain that he was holding the gun because Brooks was threatening to shoot him from outside. Ms. Speed did not want a gun in her house and responded by telling Little to leave. But Brooks was still on the porch step yelling for Little to come outside. Little told Ms. Speed, “I ain’t going out there,” and said something about both men having their “fire.” Ms. Speed called for her son Lester.

Lester then came into the house and ordered Little out. Little begged for Lester to stop Brooks, but Lester offered no help. In fact, Lester appeared to think the situation was funny, because he had been laughing with Brooks as he passed him on his way inside the house.

Seeing no backdoor exit, Little reluctantly exited the house through the front door. Brooks backed up to let Little pass, but Brooks still had his guns down by his sides. Little proceeded cautiously, turning sideways to stay facing Brooks and keeping his gun hidden behind his back. When Little reached the yard, Brooks walked toward him and said something like, “[D]o you know what he did to me?” Little told Brooks to calm down and backed away. Brooks did not take action until Little backed into the car parked in the driveway. Then Brooks raised his guns and pointed them at Little. Little brought his gun around, closed his eyes, and pulled the trigger several times. Brooks dropped to the ground and eventually succumbed to his gunshot wounds. Little fled to his girlfriend’s house.

II. Circuit Court Proceedings

In support of his motion to dismiss, Little argued that he shot Brooks in self-defense and was therefore entitled to immunity under the Stand Your Ground law. The State raised two arguments against the motion: (1) Little was not acting in self-defense because he reengaged Brooks after removing himself from the initial threat, and (2) Little was not entitled to immunity under the Stand Your Ground law because he was engaged in an unlawful activity as a felon in possession of a firearm. The circuit court denied the motion to dismiss, ruling as follows:

The Defendant removed himself from the zone of uncertainty when he entered the home of Janet Speed. The Defendant then chose to arm himself and reengage the decedent, Demond Brooks. The Court at this time has not considered, the issue of whether Defendant’s activity of arming himself was lawful or unlawful and need not address that issue for purposes of making a legal ruling on the matter before the Court.

III. Analysis

A. Standard of Review

In reviewing a petition for writ of prohibition, this court must consider the merits of Little’s motion to dismiss in the same manner as if it were on direct appeal. See Sutton v. State, 975 So.2d 1073, 1077-78 (Fla.2008); Hair v. State, 17 So.3d 804, 805 (Fla. 1st DCA 2009), review denied, 60 So.3d 1055 (Fla.2011). Thus, we review the court’s legal findings de novo and we review the court’s factual findings for competent, substantial evidence. Hair, 17 So.3d at 805.

B. Propriety of the Denial of the Motion to Dismiss on the Merits

The Stand Your Ground law is codified in chapter 776, Florida Statutes (2009). Section 776.032(1) grants criminal immunity to persons using force as permitted in sections 776.012, 776.013, or 776.031. In this case, Little argued he was entitled to immunity under section 776.032(1) because his use of force was permitted in section 776.012(1). Section 776.012(1) authorizes the use of deadly force when a defendant “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.” A defendant must establish entitlement to immunity under the Stand Your Ground law by a preponderance of the evidence. Horn v. State, 17 So.3d 836, 839 (Fla. 2d DCA 2009).

In determining that Little was not entitled to immunity under the Stand Your Ground law, the circuit court concluded that Little removed himself from the imminent threat of death or great bodily harm by going into Ms. Speed’s house but “chose to arm himself and re-engage” Brooks. Thus, the court determined that Little was not “in the zone of uncertainty.” See Montanez v. State, 24 So.3d 799, 801-03 (Fla. 2d DCA 2010) (holding that circuit court properly denied criminal immunity to a defendant who shot the victim after the victim had driven his car at the defendant and his employee because “the zone of uncertainty” had already passed when the defendant and the employee had gotten out of the vehicle’s path and there was therefore no threat of imminent death or great bodily harm).

Little argues that the circuit court’s ruling is erroneous because it is not supported by competent, substantial evidence. Little acknowledges that he had removed himself from Brooks’ line of fire by entering Ms. Speed’s home. He argues that he did not choose to leave Ms. Speed’s home but was forced to do so. He also claims that he did not reengage Brooks but made every attempt to avoid an encounter.

We agree that the circuit court’s ruling is not supported by the evidence. Specifically, there is no evidence whatsoever that Little reengaged Brooks. The evidence establishes that Little was afraid of Brooks and repeatedly asked for help in calming Brooks down. While Little was able to remove himself from the imminent threat of death or great bodily harm by running inside Ms. Speed’s house, Little was ordered outside by Ms. Speed herself and then her son Lester. Little did not see a backdoor exit, so he went out the way he came in. Little walked past Brooks with extreme caution and with his gun out of sight. When Brooks started ranting at him, Little implored Brooks to calm down. There is no evidence that Little made any threatening moves toward Brooks or said any threatening words to him. But Brooks raised his guns and pointed them at Little anyway, and Little responded to the threat.

Thus, the circuit court erred in concluding that Little’s use of deadly force was not justified under the circumstances. However, that does not end our analysis because the State has asserted another basis on which to uphold the circuit court’s ruling, or a “tipsy coachman” argument.

C. State’s Tipsy Coachman Argument

The State argues that regardless of whether Little established that his use of deadly force was permitted in section 776.012(1), he was not entitled to immunity under section 776.032(1) because his use of force would not have been permitted in section 776.013(3). The State notes that in order for a person’s use of deadly force to be permitted in section 776.013(3), the person must not be engaged in an unlawful activity. Because Little was a felon in illegal possession of a firearm, the State submits that he was engaged in an unlawful activity and cannot obtain immunity under any of these statutory provisions.

Section 776.032(1) provides, in pertinent part, “A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force.... ” Because section 776.032(1) grants criminal immunity to persons using force as permitted in section 776.012, section 776.013, or section 776.031, it should be construed to allow a defendant to claim immunity based on the use of force permitted in any of these provisions. See Pompano Horse Club v. State, 93 Fla. 415, 111 So. 801, 805 (1927) (“[T]he word ‘or’ is usually, if not always, construed judicially as a disjunctive unless it becomes necessary in order to conform to the clear intention of the Legislature to construe it conjunctively as meaning ‘and.’ ”).

Despite the disjunctive language in section 776.032(1), the State asserts that the legislature did not intend to provide immunity based on the use of force as permitted in section 776.012(1) because section 776.012(1) conflicts with section 776.013(3). According to the State, both sections 776.012(1) and 776.013(3) permit the use of deadly force based on a reasonable belief such force is necessary to prevent imminent death or great bodily harm or the commission of a felony. The State argues that section 776.013(3) limits the justifiable use of deadly force to persons who are not engaged in illegal activity and who are in a place they have a legal right to be. The State asserts that section 776.012(1) cannot provide a separate basis for immunity because it would provide immunity for a person engaged in an unlawful activity and thus render section . 776.013(3) meaningless. We cannot agree.

“A court’s purpose in construing a statute is to give effect to legislative intent, which is the polestar that guides the court in statutory construction.” Larimore v. State, 2 So.3d 101, 106 (Fla.2008). We first look to the plain language of the statute to discern legislative intent. And we must interpret the statute to give meaning to each of its provisions. Id. “ ‘The doctrine of in pari materia is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature’s intent.’ ” Id. (quoting Fla. Dep’t of State v. Martin, 916 So.2d 763, 768 (Fla.2005)).

We conclude that the plain language of sections 776.012, 776.013, and 776.032 can be understood as granting immunity to a person who qualifies under either section 776.012(1) or 776.013(3). To arrive at this conclusion, we will examine the provisions in sections 776.012 and 776.013 in pari materia to determine whether the legislature intended for each section to provide a separate basis for immunity under section 776.032(1). Our analysis will begin with a review of the law governing the justifiable use of deadly force prior to the enactment of the Stand Your Ground law. We will then examine the effect of the enactment of the Stand Your Ground law on that body of law to discern the extent to which the legislature intended to change that law.

Prior to the enactment of the Stand Your Ground law, the justifiable use of deadly force by and against a civilian was governed by section 776.012. Section 776.012, Florida Statutes (2004), permitted the use of deadly force if a person “reasonably believes that such, force is necessary' to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.” Section 776.031 governed the use of force in defense of others, and it permitted the use of deadly force if a person “reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony.” In addition, the Florida Supreme Court recognized a common law duty to retreat that required a person to “retreat to the wall” or use “every reasonable means within his or her power to avoid the danger.” Weiand, v. State, 732 So.2d 1044, 1049, 1050 (Fla.1999). There was an exception to the duty to retreat for a person claiming self-defense in his or her own residence; that exception was part of the “castle doctrine.” Id.

In 2005, the legislature enacted the Stand Your Ground law which amended sections 776.012 and .031 and created sections 776.013 and .032. Ch. 2005-27, §§ 1-4, at 200-02, Laws of Fla. Section 776.012 still permits the justifiable use of deadly force if a person “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.” § 776.012(1). But the Stand Your Ground law added language permitting the justifiable use of deadly force “[u]nder those circumstances permitted pursuant to s. 776.013.” § 776.012(2). It also eliminated the common law duty to retreat for persons justifiably using deadly force under either section 776.012(1) or 776.013.

Section 776.012, which is entitled “Use of force in defense of person,” now provides as follows:

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s. 776.013.

As for section 776.013, it is entitled “Home protection; use of deadly force; presumption of fear of death or great bodily harm.” Subsections (1), (2), (4), and (5) of section 776.013 expand the “castle” to include a dwelling, residence, or occupied vehicle. These subsections all work together to provide for presumptions that make it easier for a person in the “castle” to establish the justifiable use of deadly force. Subsection (1) sets forth a presumption of “a reasonable fear of imminent peril of death or great bodily harm.” § 776.013(1). Subsection (2) sets forth four circumstances in which the presumption in subsection (1) does not apply, including when “[t]he person who uses defensive force is engaged in an unlawful activity.” § 776.013(2)(c). Subsection (4) sets forth a presumption that “[a] person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.” § 776.018(4). And subsection (5) defines “dwelling,” “residence,” and “vehicle.” § 776.013(5).

Subsection (3), which is the subsection on which the State focuses, applies to “[a] person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be.” § 776.013(3). It eliminates the duty to retreat for this law-abiding person. It also provides for the use of deadly force by this law-abiding person based upon the reasonable belief “it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.” Id.

We do not agree that there is a conflict between the provisions in sections 776.012(1) and 776.013(3). Section 776.013(3) provides for the justifiable use of deadly force by a law-abiding person outside of the “castle,” but it does not preclude persons who are engaged in an unlawful activity from using deadly force in self-defense when otherwise permitted. In fact, the Stand Your Ground law expressly amended section 776.012 to provide that the use of deadly force is justified under the circumstances set forth in both sections 776.012(1) and 776.013.

Nor do we agree that construing section 776.012(1) as a distinct statute permitting the justifiable use of deadly force would render section 776.013(3) meaningless. Instead, the burden of proof and the entitlement to the various presumptions to assist in meeting that burden varies depending upon which statute applies.

Section 776.013(3) applies when a person is (1) not engaged in an unlawful activity and (2) attacked in any place outside the “castle” as long as (3) he or she has a right to be there. A person who does not meet these three requirements would look to section 776.012(1) to determine whether the use of deadly force was justified. The presumptions in sections 776.013(1) and (4) apply only when a person is attacked in the “castle.” And the presumption in section 776.013(1) does not apply if the person was engaged in an unlawful activity. See § 776.013(2)(c).

The requirements under sections 776.012(1) and 776.013(3) are not identical. A person proceeding under section 776.013(3) would have to prove that he or she reasonably believed the use of deadly force was “necessary ... to prevent death or great bodily harm ... or to prevent the commission of a forcible felony.” Under section 776.012(1), a person would have to prove that he or she reasonably believed the use of deadly force was “necessary to prevent imminent death or great bodily harm ... or to prevent the imminent commission of a forcible felony.” (Emphasis added.)

As for criminal immunity, a person engaged in an unlawful activity would not be entitled to claim immunity under section 776.032(1) based on the use of force as permitted in section 776.013(3). But section 776.013(3) provides only one means of obtaining immunity under section 776.032(1). Section 776.012(1) provides another means of obtaining immunity for individuals who would not qualify for immunity under section 776.013(3). And section 776.032(1) expressly provides for immunity based on the use of force as permitted in section 776.012.

In summary, section 776.032(1) provides for immunity from criminal prosecution for persons using force as permitted in section 776.012, section 776.013, or section 776.031. Because Little was a felon in illegal possession of a firearm, his use of force did not fall within the protections of section 776.013, and therefore, he could not obtain immunity under that statute. See Darling v. State, 81 So.3d 574, 578 (Fla. 3d DCA 2012), review denied, 107 So.3d 403 (Fla.2012); Dorsey v. State, 74 So.3d 521, 527 (Fla. 4th DCA 2011). However, Little sought immunity based on the use of force as permitted in section 776.012(1). His status as a felon in illegal possession of a firearm did not preclude that claim of immunity. And, as set forth above, Little established by a preponderance of the evidence that his use of force was justified to prevent his imminent death or great bodily harm as provided for in section 776.012(1). Accordingly, Little was entitled to immunity under section 776.032(1).

The parties have not cited and we have not located any cases addressing the specific issue presented here. However, we have considered, among other cases, the Fourth District’s decision in State v. Hill, 95 So.3d 434 (Fla. 4th DCA 2012). In Hill, the defendant was charged with aggravated battery with a firearm, possession of a firearm by a convicted felon, and other crimes after he shot a man in the stomach during an altercation over a woman. Id. at 434-35. The defendant filed a motion to dismiss the aggravated battery charge in which he argued that he was entitled to immunity under the Stand Your Ground law based on the justifiable use of force. Id. at 434. He claimed that he was attacked by two men, one of whom had a gun, while sitting on his own porch and that he could not retreat because he was cornered. Id. at 434-35.

The circuit court granted the defendant’s motion to dismiss and rejected the argument that the defendant was precluded from seeking immunity under the Stand Your Ground law because he was engaged in an unlawful activity as a felon in illegal possession of a firearm. Id. at 435. The Fourth District reversed. Id. at 435. The court concluded that the crime of possession of a firearm by a convicted felon qualified as unlawful activity under section 776.013(3). And the court explained that under section 776.013(3) the defendant was not entitled to immunity because he was engaged in an unlawful activity. Id.

The Fourth District has not addressed whether a defendant would be entitled to immunity based on the use of force as permitted in section 776.012(1). As we have already explained, section 776.032(1) provides for immunity based on the use of force as permitted in three separate statutory provisions: section 776.012, section 776.013, or section 776.031. As pertains to the circumstances here, even though Little’s use of force was not permitted in section 776.013(3), it was permitted in section 776.012(1).

D. Certification of Conflict and Question for Resolution by Supreme Court

To the extent that the Fourth District’s decision in Hill can be read as holding that a defendant who is engaged in an unlawful activity is not entitled to immunity under section 776.032(1), we certify conflict. Additionally, we recognize the significance of a determination of whether a defendant is entitled to criminal immunity as well as the ever-increasing attempts to invoke that immunity by persons charged with serious crimes. We therefore certify the following question as one of great public importance:

IS A DEFENDANT WHO ESTABLISHES BY A PREPONDERANCE OF THE EVIDENCE THAT HIS USE OF DEADLY FORCE IS PERMITTED IN SECTION 776.012(1), FLORIDA STATUTES (2009), ENTITLED TO IMMUNITY UNDER SECTION 776.032(1) EVEN THOUGH HE IS ENGAGED IN AN UNLAWFUL ACTIVITY AT THE TIME HE USES THE DEADLY FORCE?

Petition granted.

VILLANTI, J., Concurs.

NORTHCUTT, J. Concurs with opinion.

NORTHCUTT, Judge,

Concurring.

Although I appreciate my colleagues’ efforts to assign discrete ambits to these two statutes, I am not convinced that it is possible to do so. I have difficulty imagining that one could reasonably think it necessary to use deadly force to prevent death or great bodily harm without believing that the threatened harm is imminent. For purposes of this case, however, I don’t think it is necessary to parse the language of the two statutes in an effort to harmonize them. The State’s assertion that the conditions contained in section 776.013(3) should be engrafted onto the right of self-defense set forth in section 776.012 must fail for other important reasons.

The first is the language of section 776.012. As amended by the Stand Your Ground legislation, it plainly and simply provides that “a person is justified in the use of deadly force and does not have a duty to retreat” if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s. 776.013.

(Emphasis added.) The legislature’s use of the disjunctive “or” clearly means that either of the listed circumstances justify the use of deadly force. Thus, whatever we may or may not think about the existence of meaningful distinctions between the statutes, we cannot doubt that the legislature intended them to be independent justifications for the use of deadly force. This is also apparent in section 776.032, which immunizes from prosecution “[a] person who uses force as permitted in s. 776.012, s. 776.013, or 776.031[.]” (emphasis added). To conflate the requirements of sections 776.012 and 776.013(3), as the State urges us to do, would require us to disregard the plain language of the statutes.

Further, accepting the State’s position would violate our legal duty to construe the statutory language strictly. That obligation is expressly set forth in section 775.021(1), which commands that the provisions of the Criminal Code “shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.” The statute requires a strict construction in favor of the accused even when a reasonable contrary meaning can be found by application of traditional statutory construction principles. See, e.g., Kasischke v. State, 991 So.2d 803 (Fla.2008); Polite v. State, 973 So.2d 1107 (Fla.2007); State v. Huggins, 802 So.2d 276 (Fla.2001); Perkins v. State, 576 So.2d 1310 (Fla.1991).

Section 775.021 is a codification of the common law rule of lenity, the foundation of which is the due process requirement that “criminal statutes must say with some precision exactly what is prohibited.” Perkins, 576 So.2d at 1312.

Indeed, our system of jurisprudence is founded on a belief that everyone must be given sufficient notice of those matters that may result in a deprivation of life, liberty, or property. For this reason,
[a] penal statute must be written in language sufficiently definite, when measured by common understanding and practice, to apprise ordinary persons of common intelligence of what conduct will render them liable to be prosecuted for its violation.
Gluesenkamp v. State, 391 So.2d 192, 198 (Fla.1980), cert. denied, 454 U.S. 818, 102 S.Ct. 98, 70 L.Ed.2d 88 (1981) (citations omitted).

Id. (citations omitted). If we were to hold that the provisions of section 776.013(3) were always necessary elements of a self-defense under section 776.012, then the latter statute would be worse than confusing; insofar as it presents itself as a separate, independent basis for the defense, it would be affirmatively misleading.

Finally, it seems to me that the State could not prevail in this case even if we were to read the provisions of section 776.013 into section 776.012. The reason is that section 776.013 does not, by its terms, preclude persons engaged in unlawful activities — or anyone else, for that matter— from using deadly force in self-defense. Rather, the statute merely states that one who is not engaged in unlawful activity may use deadly force to defend himself or herself if he or she reasonably believes it necessary to prevent death, great bodily harm, or the commission of a forcible felony. The State would have us interpret this language as impliedly restricting the right to use deadly force to those who are not engaged in unlawful activity.

But such an alteration to the common law could only be made in a statute that explicitly sets forth that intention. Nell v. State, 277 So.2d 1 (Fla.1973). “Unless a statute unequivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist, the statute will not be held to have changed the common law.” State v. Ashley, 701 So.2d 338, 341 (Fla.1997) (quoting Thornber v. City of Fort Walton Beach, 568 So.2d 914, 918 (Fla.1990)).

Section 776.013 does not expressly alter the common law, and its provisions are not repugnant to the common law; to the contrary, they are fully consistent with it. And, as mentioned, the legislature has elsewhere provided for the use of deadly force without these limitations; it has specified that the other statute is a separate and independent basis therefor; and it has directed us to construe these statutes strictly and to resolve ambiguities in favor the accused. Given all of this, we cannot infer the departure from the common law that the State advocates.

APPENDIX A

776.013. Home protection; use of deadly force; presumption of fear of death or great bodily harm.—

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

(b)The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

(4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

(5)As used in this section, the term:

(a) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

(b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

(c) “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

      . We acknowledge that this court has entertained petitions for writ of certiorari addressing the propriety of orders denying motions to dismiss asserting immunity under the Stand Your Ground law. See, e.g., Montanez v. State, 24 So.3d 799 (Fla. 2d DCA 2010); Horn v. State, 17 So.3d 836 (Fla. 2d DCA 2009). However, this court has also expressed uncertainty over whether certiorari is the proper method of review of such orders based on the availability of review on direct appeal of any subsequent conviction. See Montanez, 24 So.3d at 801. We believe that the better avenue for review is a petition for writ of prohibition, which the supreme court has consistently held is an appropriate vehicle to review orders denying motions to dismiss criminal prosecutions based on immunity. See Tsavaris, 360 So.2d at 747; State ex rel. Reynolds v. Newell, 102 So.2d 613, 615 (Fla.1958); State ex rel. Marshall v. Petteway, 121 Fla. 822, 164 So. 872, 874 (1935).

      . See generally Johnson v. Allstate Ins. Co., 961 So.2d 1113, 1115 (Fla. 2d DCA 2007) (applying the "tipsy coachman” doctrine).

      . The "castle doctrine” has been explained as follows:
      [A] person's dwelling house is a castle of defense for himself and his family, and an assault on it with intent to injure him or any lawful inmate of it may justify the use of force as protection, and even deadly force if there exist reasonable and factual grounds to believe that unless so used, a felony would be committed.

        Weiand, 732 So.2d at 1049 n. 5 (quoting Falco v. State, 407 So.2d 203, 208 (Fla.1981)).

      . The full text of section 776.013 is attached to this opinion as Appendix A.


source: Caselaw Access Project

author: MORRIS, Judge.

license: Public Domain

text:
    Michael WARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-848.
    District Court of Appeal of Florida, Second District.
    April 10, 2013.

      Michael Ward, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy R.M. Thomas, Assistant Attorney General, Miami, for Ap-pellee.
   MORRIS, Judge.

Michael Ward appeals the denial of his petition for writ of habeas corpus, which he filed in DeSoto County seeking his release from civil commitment under the Jimmy Ryce Act. We write to explain the reasons we affirm the denial of Ward’s petition.

I. Background

The early procedural history of this case is set out in Ward v. State, 986 So.2d 479, 480 (Fla.2008):

Michael Ward pled guilty to two separate acts of rape in 1969 and two more in 1976. In 1983, the Third District reversed the 1969 convictions because counsel had misadvised Ward about the consequences of his guilty plea. Ward was released from prison on the 1976 offenses in 1998. In January 2004, Ward was sentenced to thirty-six months in state prison for burglary of an occupied conveyance and possession of burglary tools. No sexual offense was involved in the burglary charge.

Id. (citations omitted). While Ward was serving his thirty-six-month sentence for burglary, the State filed its petition for civil commitment in Miami-Dade County in 2005. Ward filed a petition for writ of prohibition, claiming he did not qualify for such commitment because “he was not in custody for a sexually violent offense.” The supreme court rejected his argument and held that he “was subject to the [Jimmy Ryce] Act based on his prior convictions for sexually violent offenses and his current confinement in state custody.” Id. at 483-84.

After the supreme court issued its opinion, the State’s commitment proceeding recommenced in Miami-Dade County. In January 2011, a jury found Ward to be a sexually violent predator and the circuit court in Miami-Dade County entered an order civilly committing Ward pursuant to section 394.917, Florida Statutes (2004). He appealed to the Third District in case 3D11-208. While his appeal was pending, Ward filed the petition for writ of habeas corpus in DeSoto County, where he is housed. See generally Fla. R. Civ. P.— S.V.P. 4.460 (providing that all habeas petitions not raising ineffective assistance of counsel should be filed in the county where the detainee is housed). The circuit court in DeSoto County denied his petition in January 2012. Then, in July 2012, the Third District per curiam affirmed the order finding him to be a sexually violent predator and civilly committing him under the Jimmy Ryce Act. Ward v. State, No. 3D11-208, 2012 WL 2826802 (Fla. 3d DCA July 11, 2012) (table decision).

II. Analysis

Ward argues on appeal — as he did in his petition below — that the doctrines of collateral estoppel and res judicata barred the State from seeking his commitment under the Jimmy Ryce Act in 2011. He contends that the State was unsuccessful in having him committed in two earlier proceedings — one in 1976 and one in 2001 — and that the issue cannot be litigated again.

The doctrine of res judicata applies when there is “identity of the prior and current causes of action,” which “ ‘means an identity of the facts essential to the maintenance of the action.’ ” Larimore v. State, 76 So.3d 1121, 1123 (Fla. 1st DCA 2012) (quoting M.C.G. v. Hillsborough Cnty. Sch. Bd., 927 So.2d 224, 227 (Fla. 2d DCA 2006)). In order for the doctrine of collateral estoppel to apply, “an identical issue must have been presented in the prior proceeding, the issue must have been a critical and necessary part of the prior determination, there must have been a full and fair opportunity to litigate that issue, and the issue must have been actually litigated.” Id.

We first turn to the 2001 proceeding. The State was not barred by the principles of res judicata or collateral es-toppel from seeking Ward’s commitment in 2011 because Ward’s current mental state was not an issue in the 2001 proceeding. According to Ward, the circuit court did not commit him in 2001 because the circuit court found that he was not in lawful custody for purposes of the Jimmy Ryce Act. In Larimore, a petition for commitment had been previously dismissed because Larimore had not been in lawful custody for purposes of the Jimmy Ryce Act. Id. at 1122. Later, when Larimore was in lawful custody, the State filed a second petition seeking commitment under the Jimmy Ryce Act, and the First District held that the principle of res judicata did not bar the State’s second petition because the question of Larimore’s mental condition was never reached in that earlier proceeding. Id. at 1123. In addition, the principle of collateral estoppel did not bar the second petition because “[t]he only issue fully and actually litigated with respect to the earlier petition concerned the lawful custody requirement,” which was not an issue in the second proceeding. Id. Here, the only issue that was decided in Ward’s 2001 proceeding, i.e., Ward’s lawful custody, was not an issue in the 2011 proceeding.

We now turn to the 1976 proceeding, in which the State was unsuccessful in having Ward committed as a “mentally disordered sex offender” under sections 917.13 through 917.28, Florida Statutes (1975). As the State argues on appeal, a person qualifies for Jimmy Ryce commitment based on his or her current mental condition. See § 894.912(10)(b), Fla. Stat. (2004) (providing that a sexually violent predator “[s]uffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment”); Westerheide v. State, 831 So.2d 93, 100 (Fla.2002) (holding that “involuntary commitment under the Ryce Act is based upon an individual’s current mental state that makes it likely the person will engage in acts of sexual violence”). The issue for determination in the 2011 proceeding was whether Ward currently qualified as a sexually violent predator in 2011. Ward’s current mental condition in 2011 was not and could not have been decided in the earlier 1976 proceeding. See Larimore, 76 So.3d at 1123 (recognizing that “commitment under the Ryce Act requires a showing that the respondent presently ‘suffers from a mental abnormality or personality disorder’ ” and concluding that defendant’s “current mental condition obviously could not have been at issue during the earlier proceedings” (quoting § 394.912(10), Fla. Stat. (2010))); cf. Mass v. State, 927 So.2d 157, 160 (Fla. 3d DCA 2006) (holding that second Baker Act petition was barred by principles of collateral estoppel and res judicata because it was filed only seven days after first Baker Act petition was denied and because “the testimony presented at the hearing on the second petition [was] essentially the same as that which the State presented or could have presented at the hearing on the first petition” and the “record indeed [did] not reflect any new developments that occurred subsequent to the proceedings on the first petition”). In fact, there was evidence introduced at the 2011 proceeding of incidents that had occurred since 1976. Ward had been arrested in two cases involving sexual offenses or undertones, and although neither case was ultimately prosecuted, the victim in one of the cases testified in the 2011 proceeding. This evidence of events that occurred after 1976 is further indication that Ward’s mental state in 2011 was a different issue than his mental state in 1976, over thirty years earlier.

Last, Ward is barred from raising the issues of collateral estoppel and res judicata in his DeSoto habeas petition. Ward raised these arguments at his Jimmy Ryce trial in 2011 and again on direct appeal in the Third District. He cannot raise them again. See Denson v. State, 775 So.2d 288, 290 (Fla.2000) (holding that where defendant’s issue had “already been decided against him on the merits” and where he had “exhausted all appropriate and timely appellate review,” defendant could “not seek additional consideration of this claim simply by labeling it as fundamental error since his claim is barred under the concept of res judicata ”); Breedlove v. Singletary, 595 So.2d 8, 10 (Fla.1992) (holding that “[h]abeas corpus is not a second appeal and cannot be used to litigate or relitigate issues which could have been, should have been, or were raised on direct appeal”).

III. Conclusion

In sum, the principles of res judicata and collateral estoppel did not bar the State from seeking civil commitment of Ward in 2011, and Ward was barred from raising these challenges in his petition for writ of habeas corpus filed in DeSoto County. The circuit court properly denied Ward’s petition for writ of habeas corpus.

Affirmed.

VILLANTI and WALLACE, JJ„ Concur.

      . This court granted the State's motion to take judicial notice of record items in Ward v. State, 3D 11-208, Ward’s direct appeal in the Third District. See § 90.202(6), Fla. Stat. (2012).


author: CASANUEVA, Judge.

text:
    Marisol S. FERNANDEZ, Appellant, v. Lewis C. WRIGHT, Appellee.
    No. 2D12-849.
    District Court of Appeal of Florida, Second District.
    April 10, 2013.
    Marisol S. Fernandez, pro se.
    Norman A. Palumbo, Jr., Tampa, for Appellee.
   CASANUEVA, Judge.

Marisol Fernandez, the Mother, appeals an order entered in the circuit court’s family law division involving Lewis Wright, the Father of the parties’ minor child. The order was entered after a hearing on the Mother’s supplemental petition for the modification of child support and the Father’s motion seeking additional time-sharing, attorney’s fees, and enforcement of a previous court order. We reverse that part of the order which permanently modifies one aspect of the parenting plan and remand for the trial court to note that this change is temporary. We also reverse that part of the order awarding the Father $4811.94 for attorney’s fees incurred in litigating domestic violence injunction cases. The remaining aspects of the order are affirmed.

On August 19, 2011, the parties filed a parenting plan and settlement agreement which provided that during the Father’s time-sharing week, the Mother was allowed to select three school-day afternoons to pick up the child from school and return the child to the Father by 6:30 p.m. In the order on appeal, the circuit court found that the Mother had refused to comply with the parties’ time-sharing agreement and had wrongfully kept the child from the Father from December 16, 2011, through the date of the order, January 26, 2012. To allow the Father to recover this time that he had missed with the child, the trial court announced at the hearing that during the Father’s week with the child, the Mother’s right to pick up the child from school and keep the child with her until 6:30 p.m. would be suspended until the Father’s missed time with the child was recovered. However, the order reflects that this change is permanent. It states that “the Parenting Plan is hereby modified to dispense with the Mother’s selection of three (3) afternoons on the Father’s week. The Mother shall no longer pick the child up from school on three (3) days during the Father’s week, and will not otherwise be entitled to time-sharing during the Father’s week.” Because this portion of the written order is materially different from the trial court’s oral pronouncement, this part of the order must be reversed. See Leonard v. Leonard, 613 So.2d 1339, 1340 (Fla. 3d DCA 1993); Meyer v. Meyer, 525 So.2d 462, 464 (Fla. 4th DCA 1988). On remand, the trial court should clarify in the order that this change in the custody arrangement is temporary.

The trial court also ordered that the Mother reimburse the Father for attorney’s fees in the amount of $6610.50, even though this amount included $4811.94 for fees incurred in three domestic violence cases that were not a part of this family law case. This was improper. The statute creating a cause of action for an injunction for protection against domestic violence, § 741.30, Fla. Stat. (2011), does not provide for an award of attorney’s fees. See Baumgartner v. Baumgartner, 693 So.2d 84, 85 (Fla. 2d DCA 1997) (noting that section 741.30(2)(c) “clearly contemplates a streamlined pro se proceeding”). In an appeal of a final judgment of dissolution of marriage, this court has specifically held that “[ajttorney’s fees cannot be awarded for services rendered by counsel in a separately filed domestic violence injunction case.” Belmont v. Belmont, 761 So.2d 406, 407 (Fla. 2d DCA 2000). Therefore, the trial court abused its discretion in awarding fees to the Father for work related to the petitions for domestic violence injunctions filed by the Mother.

Although we reverse the award of fees for the injunction cases, we recognize that the power to amend section 741.30 to allow an award of attorney’s fees rests with the legislature. As the First District stated in Lewis v. Lewis, 689 So.2d 1271, 1274 (Fla. 1st DCA 1997), “many of the public policy reasons for granting attorney’s fees in a chapter 61 proceeding exist in a domestic violence proceeding. This is a matter, however, that should be dealt with by the Legislature rather than the courts.” See Baumgartner, 693 So.2d at 86 (holding that the power to amend the statutory cause of action for an injunction for protection against domestic violence belongs to the legislature).

Accordingly, that part of the order modifying the parenting plan to dispense with the Mother’s opportunity to see the child after school three afternoons during the Father’s week is reversed and remanded for the trial court to note that this change is temporary. Further, that part of the order awarding the Father $1798.56 for attorney’s fees incurred in this family law case is affirmed, but the award of $4811.94 for attorney’s fees incurred in the domestic violence injunction cases is reversed. The order is otherwise affirmed.

Affirmed in part, reversed in part, and remanded with directions.

KELLY and MORRIS, JJ„ Concur.

      . There were restrictions and limitations placed on this arrangement that are not pertinent to this appeal.

      . In the present case, the trial court made a finding in a previous order that the Mother showed a pattern of circumventing the parenting plan by filing petitions for domestic violence and then dismissing them at her convenience.


author: BLACK, Judge.

text:
    Ralph William McNULTY on behalf of G.M., Appellant, v. Tim R. DOUGLAS on behalf of K.D., Appellee.
    No. 2D11-4191.
    District Court of Appeal of Florida, Second District.
    April 10, 2013.

      Mark D. Ringsmuth of Law Office of Peter D. Ringsmuth, Fort Myers, for Appellant.
    No appearance for Appellee.
   BLACK, Judge.

Ralph McNulty, on behalf of his minor son, G.M., appeals a final judgment of injunction for protection against dating violence. Mr. McNulty argues that the trial court failed to afford his son sufficient due process when it did not permit G.M. to call witnesses or cross-examine the petitioner before imposing the permanent injunction. We agree and reverse.

Timothy Douglas sought the injunction against G.M. on behalf of his minor daughter, K.D., after an alleged act of dating violence occurred on July 4, 2011. Both parties appeared pro se at the injunction hearing. At the outset of the hearing, the court asked the parties if they had any witnesses. Mr. McNulty responded affirmatively. The court then ordered the witnesses to wait outside the courtroom and indicated that the court would call the witnesses into the courtroom when they were needed to testify. The court also instructed the parties that they were not to speak unless the court was addressing them.

The court swore in the parties and proceeded to question K.D. about the alleged act of dating violence. The court asked very specific questions and questioned K.D. at length about the incident. The court next questioned Mr. Douglas as to whether he witnessed any of the alleged dating violence. Mr. Douglas proceeded to give his account of the injuries that his daughter had sustained. The court then asked G.M. to provide his account of the incident. After a brief response, the court asked Mr. Douglas if he had a reply. Mr. Douglas provided additional testimony in which he asked that G.M. be prevented from going near his daughter’s school. The court then granted the injunction.

G.M.’s witnesses were not called, and other than his initial opportunity to recount the event, he was not provided the opportunity to testify. Further, neither party was permitted to cross-examine witnesses.

We review whether the trial court afforded a party the opportunity to be heard before imposing an injunction for an abuse of discretion. Smith v. Smith, 964 So.2d 217, 218-19 (Fla. 2d DCA 2007). Section 784.046(6)(c), Florida Statutes (2011), requires a “full hearing” before entry of a permanent injunction against dating violence. See Tejeda-Soto v. Raimondi, 968 So.2d 635, 636 (Fla. 2d DCA 2007). A full evidentiary hearing “includes direct examination of witnesses, cross-examination of witnesses, and the presentation of any other evidence.” Niederkorn v. Trivino, 68 So.3d 991, 992 (Fla. 5th DCA 2011).

To satisfy due process at an injunction hearing ‘“the parties must have an opportunity to prove or disprove the allegations made in the complaint. All witnesses should be sworn, each party should be permitted to call witnesses with relevant information, and cross-examination should be permitted.’ ” Tejeda-Soto, 968 So.2d at 636-37 (quoting Ohrn v. Wright, 963 So.2d 298, 298 (Fla. 5th DCA 2007)). “The trial court has a duty to control the proceedings, ensuring that both sides have a fair share of the court’s time.” Smith, 964 So.2d at 219. It is an abuse of discretion for the court to deny a party the opportunity to call witnesses or testify on his or her own behalf. Id.

Here, the court ordered G.M.’s witnesses out of the courtroom and never permitted them to testify. Further, G.M. was not provided the opportunity to cross-examine the petitioner. As a result, he was not afforded the due process to which he was entitled. Accordingly, we reverse the permanent injunction and remand for a full evidentiary hearing.

Reversed and remanded.

DAVIS and KHOUZAM, JJ., Concur.


author: PER CURIAM.

text:
    Carlos RIVERO, Appellant, v. Rosie RIVERO, Appellee.
    No. 4D12-3535.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.

      Jose Medina of the Law Office of Jose Medina, Pinecrest, for appellant.
    Robert Garven, Margate, and Donald Goldrich, Coconut Creek, for appellee.
   PER CURIAM.

The former husband appeals a non-final order authorizing his former wife to relocate to North Carolina with the parties’ minor child on a temporary basis. We reverse because the trial court failed to hold an evidentiary hearing before allowing the temporary relocation, contrary to the requirements of section 61.13001(6)(b), Florida Statutes. See Mata v. Mata, 75 So.3d 341, 343 (Fla. 3d DCA 2011) (holding that the trial court abused its discretion in granting the mother’s motion for temporary relocation with the minor child where the court’s decision “was limited to a review of the pleadings and argument of counsel” and the court did not receive any evidence or testimony which would have provided a factual basis to support relocation).

Furthermore, contrary to the trial court’s ruling, we conclude that the father’s verified answer to the mother’s petition for relocation related back to his original unverified answer, which was timely filed. The failure to verify a pleading which, by statute, is required to be verified does not constitute a jurisdictional defect; verification may be supplied by an amendment and relate back to the time the original unverified pleading was filed. See Green v. Burger King Corp., 728 So.2d 369, 370-72 (Fla. 3d DCA 1999); Drury Displays, Inc. v. Bd. of Adjustment, 760 S.W.2d 112, 114 (Mo.1988); In re Shaffer’s Estate, 203 Kan. 264, 454 P.2d 1, 3 (1969); Bd. of Educ. of San Francisco Unified Sch. Dist. v. Mulcahy, 50 Cal.App.2d 418, 123 P.2d 114, 118 (1942); see also Fla. R. Civ. P. 1.190(c).

We therefore “reverse and remand the cause for an evidentiary hearing from which the court can determine the necessary findings required by section 61.13001.” Mata, 75 So.3d at 343.

Reversed and Remanded.

MAY, C.J., TAYLOR and CONNER, JJ., concur.

      . While it does not appear that the lack of verification of the father's original answer was the basis for the trial court’s decision to permit the mother to temporarily relocate, we nonetheless address this issue so that it does not arise again on remand.


author: CIKLIN, J.

text:
    STATE of Florida, Appellant, v. D.V., a Child, Appellee.
    Nos. 4D12-1706, 4D12-1709.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Amy Lora Rabinowitz, Assistant Public Defender, West Palm Beach, for appellee.
   CIKLIN, J.

In this case, the trial court adjudicated D.V. incompetent to proceed based on the evaluation of one expert appointed by the court and one expert appointed by the Department of Children and Families (“DCF”). We determine that the court erred because section 985.19(1)(b), Florida Statutes (2011), requires that the court base its competency determination on the evaluations of at least two experts appointed by the court. Accordingly, we reverse and remand the case for a new competency hearing with instructions to the trial court to appoint a second expert.

In January 2012, D.V. allegedly threatened school personnel after returning from an unauthorized absence. About seven weeks later, D.V. allegedly slapped another student. The state charged D.V. by two petitions for delinquency for knowingly interfering with the administration or functions of an educational facility, a second-degree misdemeanor, and battery, a first-degree misdemeanor.

D.V. had previously been adjudicated incompetent to proceed following D.V.’s alleged commissions of prior crimes, including at least one felony. As part of its own requirements, DCF (through a subcontractor) hired an expert to evaluate D.V. and make a determination as to whether he was still incompetent to proceed relating to the older charges. The expert evaluated D.V. in early 2012, before D.V. allegedly committed the battery. The expert determined that D.V. was incompetent to proceed in relation to the older charges and the expert produced a written report with his findings.

D.V.’s counsel filed two motions to determine competency in relation to the two misdemeanor charges. The motions noted that D.V. had already been adjudicated incompetent in the past. The motions also stated that D.V. had recently been evaluated and “it is the finding of that evaluation that [D.V.] remains Incompetent to Proceed.” The motions to determine competency were consolidated for both delinquency petitions.

The trial court appointed an expert to evaluate the mental condition of D.V. and determine whether he was competent to proceed in relation to the two misdemeanors. The court-appointed expert deter-minp.fi that D.V. was not competent to proceed, although the expert’s findings differed somewhat from the expert retained by DCF.

The court then held a competency hearing. The court asked the state whether it would agree to a determination of incompetency, and the state refused to stipulate. The state requested that another expert be appointed by the court to evaluate D.V., which the state argued was required under section 985.19(l)(b). The state provided no reason for distrusting the conclusions of the expert appointed by DCF, apart from the argument that the expert was not appointed by the court.

The court announced that it was finding D.V. incompetent to proceed based upon the evaluations of the expert appointed by the court and the expert appointed by DCF. The court stated, “I don’t see why we would need to spend another thousand dollars of the taxpayers’ money just to do it to say that we paid for it as opposed to the Department of Children and Families paying for it.”

The court entered written orders for each of the charged misdemeanors, which apart from the two different case numbers, were identical. The orders stated, “There is a stipulation of counsels that [D.V.] remains incompetent to proceed to trial....” The orders relied on the evaluations of the expert appointed by the court and the expert appointed by DCF, but the orders stated that both experts were appointed by the court. The orders also both stated that “[t]he child ... is charged with a felony.”

“A trial court’s decision regarding competency will stand absent a showing of abuse of discretion.” Alston v. State, 894 So.2d 46, 54 (Fla.2004) (citation omitted). “[A] matter of statutory interpretation ... is a question of law subject to de novo review.” Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005) (citation omitted).

Chapter 985 of the Florida Statutes provides a straightforward procedure for the determination of competency in a juvenile delinquency case:

All determinations of competency shall be made at a hearing, with findings of fact based on an evaluation of the child’s mental condition made by not less than two nor more than three experts appointed by the court. The basis for the determination of incompetency must be specifically stated in the evaluation. In addition, a recommendation as to whether residential or nonresidential treatment or training is required must be included in the evaluation. Experts appointed by the court to determine the mental condition of a child shall be allowed reasonable fees for services rendered. State employees may be paid expenses pursuant to s. 112.061. The fees shall be taxed as costs in the case.

§ 985.19(1)(b), Fla. Stat. (2011) (emphasis added).

The Florida Rules of Juvenile Procedure further describe the appointment of experts in juvenile delinquency cases:

When a question has been raised concerning the sanity or competency of the child named in the petition and the court has set the matter for an adjudicatory hearing, hearing on violation of juvenile probation, or a hearing to determine the mental condition of the child, the court may on its own motion, and shall on motion of the state or the child, appoint no more than 3, nor fewer than 2, disinterested qualified experts to examine the child as to competency or sanity of the child at the time of the commission of the alleged delinquent act or violation of juvenile probation. Attorneys for the state and the child may be present at the examination. An examination regarding sanity should take place at the same time as the examination into the competence of the child to proceed, if the issue of competency has been raised. Other competent evidence may be introduced at the hearing. The appointment of experts by the court shall not preclude the state or the child from calling other expert witnesses to testify at the adjudicatory hearing, hearing on violation of juvenile probation, or at the hearing to determine the mental condition of the child.

Fla. R. Juv. P. 8.095(c)(1) (emphasis added).

We determine, based on the plain language of the statute and rule, that the court must base its decision determining the competency of a juvenile on the evaluations of at least two experts whom the court appoints. In this case, the court only appointed one of the experts; thus the orders adjudging D.V. incompetent to proceed were erroneous. We appreciate and fully understand the trial court’s laudatory goal of avoiding an unnecessary expenditure of taxpayer money by being required to “officially” appoint a second expert, but the court must follow the plain language of the statute. To do otherwise would be an abrogation of legislative power.

We also note that both orders erroneously included language indicating the state stipulated to the findings of incompetency. The orders also mistakenly indicated that both experts were appointed by the court. Finally, the orders incorrectly indicated that D.V. was charged with a felony, but both of the charges at issue in this case were misdemeanors.

In light of our holding, we find it unnecessary to address the state’s argument that the trial court impermissibly relied on reports that were not in evidence.

Reversed and remanded with instructions.

STEVENSON and GERBER, JJ., concur.

      . While we fully understand the hectic nature of managing congested and unwieldy trial dockets, we suggest that the use of "boilerplate” forms without properly ensuring accuracy can ultimately lead to unnecessary litigation.


author: CONNER, J.

text:
    Michelle REED, as Guardian of the Person and Property of Frances Reed, Appellant, v. Robert LONG, Appellee.
    No. 4D11-1785.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.

      David L. Gorman, North Palm Beach, and Rebecca G. Doane, Palm Beach Gardens, for appellant.
    Jane Kreusler-Walsh and Stephanie L. Serafín of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach; Robert C. Sorgini of Sorgini & Sorgini, P.A., Lake Worth; and Christopher M. Larmoyeux of Larmoyeux & Bone P.L., West Palm Beach, for appellee.
   CONNER, J.

A surcharge is an adversarial proceeding in guardianship court which allows property to be recovered from a guardian who had breached his fiduciary duty to a ward. Michelle Reed instituted a surcharge proceeding to recover a loss of consortium award obtained by Robert Long while Long pursued a medical malpractice claim on Frances Reed’s (the ward) behalf. Reed pursued surcharge on a theory that, since Long’s marriage to the ward was void, all monies obtained by Long for loss of consortium belong to the ward. Finding Reed may be able to state a cause of action, we reverse the trial court’s dismissal of Reed’s petition for surcharge with prejudice and remand for Reed to be provided the opportunity to amend her petition.

Michelle Reed is Frances Reed’s daughter and has been the guardian of her person and property. Frances has been in a coma since 2008 as a result of medical malpractice. When the guardianship proceeding began, Robert Long claimed to be the ward’s husband. As the ward’s husband, Long was initially appointed as limited guardian of the property “for the sole purpose of pursuing any and all workers compensation claims and any other legal claims.” Long, as limited guardian, sought and was granted permission to prosecute a medical malpractice case on the ward’s behalf. He then pursued both a medical malpractice claim on the ward’s behalf and a loss of consortium claim on his own behalf. He obtained a settlement on both claims. The settlement was approved by the judge handling the malpractice case, but was never presented to the guardianship judge for approval. Long received ten percent of the settlement proceeds for his loss of consortium claim.

Reed and Long began engaging in legal skirmishes with each other. Eventually, Reed filed a petition for declaratory relief, seeking to determine the validity of the marriage between the ward and Long. Reed contended the ward never divorced her father before marrying Long. The trial court granted the petition, declaring the ward’s marriage to Long to be null and void. Reed then filed a motion for leave to seek supplemental relief. Attached to the motion was a proposed petition with two counts. The first count sought to remove Long as limited guardian. The second count sought to surcharge Long for wrongfully seeking and obtaining a consortium settlement.

The trial court granted the motion allowing a supplemental petition for the removal of Long as limited guardian, but denied a supplemental petition for surcharge, holding the court “failed to find a viable cause of action.” The order states the denial was with prejudice. Reed moved for rehearing, which was denied.

Reed’s position in the trial court and on appeal is that the loss of consortium award belongs to the ward because the ward’s marriage to Long was void ab initio, and Long knew or should have known the marriage was invalid. Reed seems to assume that the ward’s estate would be entitled to the money arising from a defective loss of consortium award without considering that the overall settlement may have been less if Long had never sued for loss of consortium. Reed contends she is entitled to pursue a surcharge against Long to recover that award on behalf of the ward. In response, Long argues that Reed’s status does not confer standing to challenge the loss of consortium award.

Whether a particular form of relief is obtainable as supplemental relief is an issue of law, reviewed de novo. Brown v. City of Vero Beach, 64 So.3d 172, 174 (Fla. 4th DCA 2011) (the standard of review on a trial court’s ruling regarding whether a complaint states a cause of action is de novo). Section 86.061, Florida Statutes (1967), permits a court to grant supplemental relief following entry of a declaratory judgment when such relief is “necessary or proper.” Port Everglades Auth. v. Int’l. Longshoremen’s Ass’n, Local 1922-1, 652 So.2d 1169, 1174 (Fla. 4th DCA 1995).

“A ‘surcharge’ is the amount that a court may charge a fiduciary that has breached its duty.” Merkle v. Guardianship of Jacoby, 862 So.2d 906, 907 (Fla. 2d DCA 2003). The purpose of such an award is to make the ward’s estate whole when the guardian’s actions cause loss or damage to the ward. Id.; Lawyers Sur. Corp. v. Saltz, 658 So.2d 1152, 1153 (Fla. 2d DCA 1995). As a surcharge would be a recovery for a breach of fiduciary duty by Long, Reed would need to show both (1) the existence of a fiduciary duty and (2) the breach of that duty such that it is the proximate cause of damages to the ward. See Patten v. Winderman, 965 So.2d 1222, 1224 (Fla. 4th DCA 2007) (quoting Gracey v. Eaker, 837 So.2d 348, 353 (Fla.2002)). We assume that Long, as limited guardian, owed a fiduciary duty to the ward, but it does not necessarily follow that a breach of that duty occurred simply because Long’s marriage to the ward is void.

We agree that the point of Reed’s motion seeking surcharge was to obtain funds Reed contends were diverted from the ward to Long. We also agree the return of an improper diversion of funds can be a matter which is “proper” as supplemental relief if a putative husband is proven not to be a legal husband, particularly when the limited guardian and the putative husband are one and the same person. However, we also agree with Long that the consortium claim is the claim of the spouse who does not suffer physical injury. See generally Lithgow v. Hamilton, 69 So.2d 776 (Fla.1954) (defining consortium). In seeking a consortium claim, there may have been conflict of interest issues between the ward and Long if the fund for settlement proceeds was inadequate to meet the needs of both. We cannot determine from the record on appeal whether there is an arguable claim for breach of fiduciary duty by Long.

Surcharge of a guardian is considered an adversary proceeding under the Florida Probate Rules, which is conducted “similar to suits of a civil nature” and “[t]he Florida Rules of Civil Procedure govern.” Fla. Prob. R. 5.025(a), (d)(2). Under Florida Rule of Civil Procedure 1.190(a), “a plaintiff has the absolute right to amend a complaint once as a matter of course before a responsive pleading is served, and a trial court has no discretion to deny such an amendment.” Boca Burger, Inc. v. Forum, 912 So.2d 561, 563 (Fla.2005). “A judge’s discretion to deny amendment of a complaint arises only after the defendant files an answer or if the plaintiff already has exercised the right to amend once.” Id. at 567. The trial court summarily dismissed the count, expressing that there is no viable claim, before allowing Reed the opportunity to amend her pleading to support the claim. This was error. See id.; Hawkins v. Crosby, 910 So.2d 424, 425 (Fla. 4th DCA 2005) (because no responsive pleading had been filed, the trial court had no discretion to deny a request to amend the complaint); Williams v. Gaffin Indus. Servs., Inc., 88 So.3d 1027, 1030 (Fla. 2d DCA 2012) (where a responsive pleading is permitted, a trial court does not have discretion to deny leave to amend on the basis that the complaint is not amendable until (1) the defendant has filed an answer or (2) the plaintiff has already exercised the right to amend once).

Reversed and remanded.

GERBER, J., concurs.

WARNER, J., dissents without opinion.

      . The judgment declaring the marriage void was affirmed on appeal. Long v. Reed, 78 So.3d 549 (Fla. 4th DCA 2012).


author: POLEN, J. GROSS, J.,

text:
    GEICO GENERAL INSURANCE COMPANY, Appellant, v. Carolyn WILLIAMS, as the Personal Representative of the Estate of Ashley Renee Mills, et al., Appellees.
    No. 4D11-3144.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.

      June G. Hoffman, Rory Eric Jurman and Yelena Shneyderman of Fowler White Burnett, P.A., Fort Lauderdale, for appellant.
    Curry Gary Pajcic, Benjamin E. Richard and Thomas F. Slater of Pajcic & Pajcic, P.A., Jacksonville, for appellee Carolyn Williams.
   POLEN, J.

This appeal was brought by the defendants’ liability insurer, which retained counsel to represent the defendants in the negligence action below. Following a verdict in favor of the plaintiff, the plaintiff moved to add the insurer as a party to the final judgment for the purposes of attorneys’ fees and taxable costs. The plaintiffs motions were granted, and the insurer now appeals. We affirm and hold that the plaintiff timely moved the trial court to add the insurer as a party to the final judgment. Further, we hold that the insurer abandoned its other arguments on appeal because these arguments were raised below only within a motion for rehearing, and the insurer filed a notice of appeal prior to the motion for rehearing being disposed of by a signed, written order.

I. Factual and Procedural Background.

This case arises out of a fatal car accident in 2007. The plaintiff is the mother and personal representative of the estate of one of those killed. The plaintiff filed suit against the defendants — the driver of the vehicle and the driver’s father, who owned the vehicle — alleging negligence. The defendants were insured by the appellant, GEICO General Insurance Company (“GEICO”). GEICO retained counsel to defend the defendants in the lawsuit filed by the plaintiff. The defendants’ policy with GEICO provided liability coverage with limits of $25,000 per person and $50,000 per accident.

While the lawsuit was in litigation, the plaintiff filed a proposal for settlement against the father/owner, pursuant to section 768.79, Florida Statutes, for $150,000. Although the defendants wrote to GEICO requesting that. GEICO accept this proposal for settlement, the proposal for settlement was not accepted and the case proceeded to trial.

Following the trial, the jury returned a verdict against the father (hereinafter “the defendant”) for compensatory damages in the amount of $2,500,000. After a reduction for the negligence of a Fabre defendant, final judgment in the amount of $250,000 was entered against the defendant in November 2009. The judgment entered by the trial court expressly reserved jurisdiction to amend the judgment to include attorneys’ fees and costs.

Nearly four months later, GEICO tendered $25,000 to the plaintiff in partial satisfaction of the judgment, but did not include any interest owed. The plaintiff then moved to tax attorneys’ fees, costs, and investigative expenses pursuant to the unaccepted proposal for settlement and as the prevailing party. The trial court entered its order in April 2010, finding entitlement to attorneys’ fees and costs, but did not specify any amounts. In January 2011, the trial court entered a detailed order that delineated the specific amount of attorneys’ fees and costs which the plaintiff was owed. Thereafter, the plaintiff filed a motion for entry of judgment pursuant to the order taxing attorneys’ fees and costs and to include GEICO on this forthcoming fees and costs judgment, as well as a motion to amend the prior judgment to include GEICO for the outstanding interest owed.

The trial court held a hearing on the plaintiffs motions in May 2011. At this hearing, the plaintiff (and individual counsel for the defendant car-owner) argued: (1) that GEICO was hable for attorneys’ fees under section 768.79, Florida Statutes (the “offer of judgment statute”) because GEICO was in control of the defense and rejected the plaintiffs offer of settlement, which resulted in a $2.5 million verdict following a jury trial (reduced to $250,000 against the defendant after consideration of a Fabre defendant); (2) the language of the policy should be interpreted to include coverage for attorneys’ fees; and (3) that GEICO should be added as a party to the final judgment under section 627.4136, Florida Statutes (the “nonjoinder statute”). GEICO appeared at this hearing through counsel; however, the only argument raised by GEICO at the hearing was that the plaintiff failed to timely move the court to join GEICO as a party to the final judgment under both the nonjoinder statute (arguing that joinder must be done “at the time judgment is entered or a settlement is reached”), and Florida Rule of Civil Procedure 1.530 (arguing that a motion to amend a judgment must be “served not later than 10 days after the return of the verdict in a jury action”). See § 627.4136(4), Fla. Stat. (1991); see also Fla. R. Civ. P. 1.530(b).

The trial court entered an order granting the plaintiffs motions on July 20, 2011. This order held GEICO liable for “not only the $25,000 policy limits, but also interest on that $25,000 amount from the date of the Judgment through the date of payment.” The order also held GEICO liable for attorneys’ fees pursuant to the offer of judgment statute because “a reasonable interpretation of the ... policy provisions would include the attorneys’ fees which [the defendant] has now become legally obligated to pay because of GEICO’s decisions not to settle the suit and to try the case.” Finally, the order expressly addressed and rejected “GEICO’s only argument ... that [the] motions to add GEICO to the judgments [were] untimely.” (emphasis added).

Then, on August 2, 2011, GEICO filed a motion for rehearing/reconsideration, within which it argued (for the first time) that (1) the language of the policy did not provide for payment of attorneys’ fees, and (2) GEICO cannot be considered a “party” for the purposes of the offer of judgment statute. This motion for rehearing was never noticed for hearing, and the trial court never ruled upon this motion. On August 19, 2011, before GEICO’s motion was heard, or ruled upon by the lower court, GEICO filed a notice of appeal addressing the same order.

On August 25, 2011, the trial court entered an amended final judgment. This amended final judgment did not address any of the arguments raised in the motion for rehearing, but only added GEICO as a party to the final judgment for the purposes of attorneys’ fees, taxable costs, and interest owed. Thereafter, GEICO filed an amended notice of appeal on September 6, 2011, aimed at this amended final judgment. The amended final judgment, therefore, became the subject of the instant appeal.

On appeal, GEICO argues the following: (1) the terms of the policy do not cover payment for attorneys’ fees because the meanings of “costs” and “damages” do not include “attorneys’ fees”; (2) that an insurer cannot be considered a “party” under the offer of judgment statute; and (3) that the trial court lacked jurisdiction to join GEICO as a party because the plaintiff did not timely move to add GEICO as a party to the final judgment. We hold that the first two arguments were abandoned when GEICO filed its notice of appeal; therefore, and while these arguments are compelling on their merits, the first two arguments were not properly preserved for review on appeal. Regarding the only issue that was preserved for appeal, we hold that the trial court did have jurisdiction to join GEICO as a party because the plaintiff timely moved to add GEICO as a party to the judgment. Accordingly, we affirm the amended final judgment.

II. Analysis

We first address the issue of abandonment. We hold that GEICO abandoned the arguments raised only within its motion for rehearing when it filed its notice of appeal prior to the motion for rehearing being disposed of by a signed, written order.

The Florida Rules of Appellate Procedure address the issue of abandonment within rule 9.020. Rule 9.020 provides:

(h) ... [I]f a final order has been entered and there has been filed in the lower tribunal an authorized and timely motion for ... rehearing, ...
(1) ... the final order shall not be deemed rendered with respect to any claim between the movant and any party against whom relief is sought by the motion or motions until the filing of a signed, written order disposing of all such motions between such parties.
(3) If such a motion or motions have been filed and a notice of appeal is filed before the filing of a signed, written order disposing of all such motions, all motions filed by the appealing paHy that are pending at the time shall be deemed abandoned, and the final order shall be deemed rendered by the filing of the notice of appeal as to all claims between parties who then have no such motions pending between them.

Fla. R. App. P. 9.020(h)(1) & (3) (emphasis added).

Reading these subsections together illustrates the following dichotomy: when a motion for rehearing is filed, either the order/judgment being challenged is not “deemed rendered with respect to any claim ... until the filing of a signed, written order disposing of all such motions between the parties[,]” or the moving party may file a notice of appeal “before the filing of a signed, written order disposing of all such motions, ... [at which time] all motions filed by the appealing party that are pending at the time shall be deemed abandoned, and the final order shall be deemed rendered” for the purposes of appeal. See Id. In other words, when a party files a motion for rehearing in the trial court, the subject order/judgment is not “deemed rendered” unless and until (1) the trial court disposes of the motion for rehearing by way of a “signed, written order”; or (2) the moving party abandons the motion for rehearing by filing a notice of appeal. See id.; see also Barner v. Barner, 673 So.2d 886, 887 (Fla. 4th DCA 1996) (“[WJhether the judgment is rendered for purposes of appeal ... depends on whether the ... motion for rehearing has been disposed of in the lower court.... [The] motion may also be abandoned by filing a notice of appeal before the trial court disposes of the motion ....”); see also Bianco v. Bianco, 383 So.2d 1120, 1122 (Fla. 4th DCA 1980) (“[Disposition of a timely and proper motion for rehearing occurs upon [either] the trial court’s ruling thereon or upon abandonment of the motion by the moving party’s filing of a notice of appeal.”) (emphasis added).

Once a motion for rehearing has been filed, the movant may do one of two things before the order being challenged may be appealed: the movant can either (1) obtain a ruling on its motion for rehearing; or (2) file a notice of appeal. A party that chooses the latter does so at the expense of abandoning its pending motion for rehearing. See Yost v. Fiallos, ex rel. Tarazona, 64 So.3d 699, 701 (Fla. 3d DCA 2011) (holding that when a motion for rehearing is abandoned by the filing of a notice of appeal, the trial court then lacks jurisdiction to enter an order on the motion for rehearing) (citing Farr v. Farr, 840 So.2d 1166 (Fla. 2d DCA 2003)).

At the hearing on the plaintiffs motions, the plaintiff (as well as counsel for the defendant) argued: (1) GEICO was liable for the plaintiffs attorneys’ fees under the offer of judgment statute because GEICO was “in control of the defense” and rejected the plaintiffs offer of settlement; (2) the language of the insurance policy should be interpreted to include coverage for attorneys’ fees; and (3) GEICO should be added as a party to the final judgment under the nonjoinder statute. Counsel for GEICO, however, argued only that the defendants failed to timely move the court to join GEICO as a party under both the nonjoinder statute and Florida Rule of Civil Procedure 1.530. Other than the timeliness of the plaintiffs motions, GEI-CO’s arguments now on appeal were never presented to the trial court at this hearing.

Following this hearing, on July 20, 2011, the trial court entered an order granting the plaintiffs motions. This order held GEICO liable for the $25,000 policy limits, as well as any interest on that amount from the date of the judgment through the date of payment. The order also held GEICO liable for attorneys’ fees pursuant to the offer of judgment statute because “a reasonable interpretation of the ... policy provisions would include the attorneys’ fees which [the defendant] has now become legally obligated to pay because of GEICO’s decision not to settle the suit and to try the case.” And perhaps most significantly, the order expressly addressed and rejected “GEICO’s only argument ... that [the] motions to add GEICO to the judgments [were] untimely.” (emphasis added).

The first instance GEICO’s other arguments were arguably “presented” to the trial court was within GEICO’s Motion for Rehearing/Reconsideration addressing the trial court’s July 20 order. This motion for rehearing was filed on August 2, 2011. Once this motion was filed, GEICO had the option of either (1) obtaining a signed, written order disposing of this motion; or (2) abandoning this motion in lieu of filing a notice of appeal. See Fla. R. App. P. 9.020(h)(1) & (3). GEICO chose the latter. On August 19, 2011, GEICO filed its notice of appeal addressing the very same order that was the subject of its motion for rehearing. The record contains no evidence that the motion for rehearing was disposed of by a signed, written order, or that it was even seen or considered by the trial court prior to the notice of appeal being filed. Accordingly, and at the moment this notice of appeal was filed, the motion for rehearing was abandoned. See id.-, see also Barner, 673 So.2d at 887 (noting that “[a]ll of the cases we could find addressing the abandonment doctrine are ones where the notice of appeal was filed after the motion for rehearing was filed but before hearing on the motion”); see also Yost, 64 So.3d at 701 (holding that when a motion for rehearing is abandoned by the filing of a notice of appeal, the trial court then lacks jurisdiction to enter an order on the motion for rehearing).

Subsequent to GEICO filing its initial notice of appeal, however, the trial court entered an amended final judgment on August 25, 2011. This judgment did not address any of the arguments raised by GEICO in the motion for rehearing, but only added GEICO as a party to the final judgment for the purposes of attorneys’ fees, taxable costs, and interest owed. Without filing any other motions below, GEICO, on September 6, 2011, filed an amended notice of appeal addressing the amended final judgment.

At oral argument, GEICO argued that the issues within its motion for rehearing were preserved for appeal because the trial court implicitly denied its motion for rehearing by entering the amended final judgment prior to ruling on the motion for rehearing. This argument is without merit. First, GEICO filed its initial notice of appeal prior to the entry of the amended final judgment. At this point, prior to the entry of the amended final judgment, GEI-CO’s motion for rehearing was abandoned, and the trial court lacked jurisdiction to enter any order thereon. See Yost, 64 So.3d at 701.

Next, there is no authority allowing preservation of issues raised solely within an abandoned motion for rehearing. On the contrary, when a party makes an argument in a motion for rehearing, and that motion is later abandoned by filing a notice of appeal prior to obtaining a ruling on said motion, the arguments therein are not preserved for appeal. Jonsson v. Dickinson, 46 So.3d 1016, 1016-17 (Fla. 1st DCA 2010); Krock v. Rozinsky, 78 So.3d 38, 41 (Fla. 4th DCA 2012).

In Jonsson, the former husband complained on appeal that the trial court failed to make findings of fact as required by statute. Jonsson, 46 So.3d at 1016. The First District held that “he has not preserved the point because, although he filed a motion for rehearing, he abandoned it when he filed his notice of appeal before the trial court had ruled on the motion.” Id. (citing Owens v. Owens, 973 So.2d 1169, 1170 (Fla. 1st DCA 2007)). Further, the court held that “[t]he other two issues raised by the former husband are, likewise, not preserved because [they were] either not presented in a motion for rehearing or, if presented, abandoned when he filed his notice of appeal before the trial court ruled on the motion.” Id. at 1017.

Likewise, in Krock, “Krock filed a motion for rehearing, raising a litany of allegations. However, before any ruling from the trial court on her motion for rehearing, Krock filed a notice of appeal as to the final fee judgment and as to the order denying her extension of time.” Krock, 78 So.3d at 41. This court held that, “[t]here-fore, any matters in her motion for rehearing were abandoned.” Id. (citing Fla. R. App. P. 9.020(h)(3)).

By choosing to abandon its pending motion for rehearing, GEICO also chose to abandon the arguments therein. Although we note that the arguments contained within GEICO’s motion for rehearing (and raised again on appeal) are very compelling on their merits, we hold that these arguments were abandoned by GEICO’s own volition when it filed its initial notice of appeal and abandoned its motion for rehearing. Accordingly, we do not address the merits of those arguments that were presented to the lower court solely within GEICO’s abandoned motion for rehearing.

We now address GEICO’s only argument that was presented to the trial court and hold that the plaintiff did timely move to add GEICO as a party to the final judgment.

First, by operation of Florida law, GEI-CO is considered a party for the purpose of recovering taxable costs or attorneys’ fees which would be recoverable by the insured. § 627.4136(2), Fla. Stat. (1991). The plaintiffs motions sought to add GEICO as a party in order to recover such fees and costs.

Further, issues regarding attorneys’ fees are considered collateral to the main dispute. Ulrich v. Eaton Vance Distribs., Inc., 764 So.2d 731, 733 (Fla. 2d DCA 2000). Therefore, a judgment on the merits of a suit is final and appealable even if it reserves jurisdiction to later determine either party’s entitlement to an attorneys’ fee award or the amount to be awarded. Id. “Conversely, notwithstanding the finality of the judgment as it relates to the underlying dispute, the attorney’s fee issue is not finally resolved or ripe for appellate review until both entitlement and amount have been determined.” Id.

The cases cited by GEICO do not alter the aforementioned principles regarding the finality of judgments on attorneys’ fees. For example, C.A. Seguros Catatumbo v. Herrera, 812 So.2d 576, 577 (Fla. 3d DCA 2002), stands for the proposition that section 627.4136(4) “by its terms does not authorize the reopening of a judgment which has already become final.” Herrera, 812 So.2d at 577-78. The non-joinder statute provides, in pertinent part:

At the time a judgment is entered or a settlement is reached during the pen-dency of litigation, a liability insurer may be joined as a party defendant for the purposes of entering final judgment or enforcing the settlement by the motion of any party....

§ 627.4136(4), Fla. Stat. (1991). GEICO relies on this statute and the reasoning of Herrera to argue that the final judgment in the underlying action was entered in November 2009, and the plaintiffs motions to add GEICO as a party were not filed until months later. In its November final judgment, however, the trial court expressly “reserve[d] jurisdiction to consider any motions regarding ... attorney’s fees[ ]” and crossed out the following words: “in favor of Plaintiff against [any or both defendant(s) ].” The plaintiffs motions to add GEICO as a party do not seek to reopen a judgment which has already become final. Contra Herrera, 812 So.2d at 578.

The plaintiffs motions to add GEICO as a party were filed in February 2011. The hearing on these motions was held in May 2011. The final judgment' on the issue of attorneys’ fees, which is the subject of this appeal, was not entered until July 2011. Because issues regarding attorneys’ fees are considered collateral to the main dispute, and “the attorney’s fee issue is not finally resolved or ripe for appellate review until both entitlement and amount have been determined[,]” GEICO’s argument that the date of the final judgment in the main dispute should be used to calculate time is without merit. See Ulrich, 764 So.2d at 733. Accordingly, to the extent GEICO was not already considered a party under the nonjoinder statute, GEICO was timely added as a party to the final judgment regarding attorneys’ fees and taxable costs because it was added “at the time ... judgment [on attorneys’ fees and taxable costs was] entered!.]” § 627.4136(4), Fla. Stat. (1991). Similarly, and applying the same logic, the defendant’s motion to add GEICO as a party to the final judgment was also timely under Florida Rule of Civil Procedure 1.530.

Based on the foregoing, and because this was the only issue properly preserved for appeal, the amended final judgment is affirmed.

Affirmed.

STONE, BARRY J., Senior Judge, concurs.

GROSS, J., concurs specially with opinion.

GROSS, J.,

concurring specially.

I agree that the appellant failed to preserve its best arguments. The July 20, 2011 order granting plaintiffs motions was not an appealable final order subject to a motion for rehearing. On August 19, 2011, the trial judge signed and dated the final judgment incorporating the rulings of the July 20 order. Also on August 19, appellant filed a notice of appeal referencing the July 20 order. On September 6, appellant filed an amended notice of appeal referencing the August 19 judgment. Although the August 19 judgment was subject to a motion for rehearing, appellant never sought a ruling on the motion for rehearing in the circuit court and never asked this court to relinquish jurisdiction to allow it to do so. However one shakes this procedural morass, the conclusion that emerges is that appellant failed to preserve its best arguments for appeal.

It is necessary to discuss the merits of the waived issues because they impact ap-pellee’s motion for appellate fees. On the merits of the waived issues, I would hold that attorney’s fees are not “damages” or “costs” within the meaning of the policy. See, e.g., Scottsdale Ins. Co. v. Haynes, 793 So.2d 1006, 1009 (Fla. 5th DCA 2001). I disagree with the holding of Assurance Co. of America v. Lucas Waterproofing Co., Inc., 581 F.Supp.2d 1201 (S.D.Fla.2008), upon which appellee relies, since it does not accurately reflect the state of Florida law. Another ground for reversal, also waived, is that at the time the offer of judgment was made, appellant was not a “party” under the offer of judgment statute. See Meyer v. Alexandre, 772 So.2d 627 (Fla. 4th DCA 2000); Steele v. Kinsey, 801 So.2d 297, 300 (Fla. 2d DCA 2001).

For these reasons, I would therefore deny appellee’s motion for appellate attorney’s fees under the offer of judgment statute because appellant’s brief adequately preserves the arguments that were waived in the circuit court.

      . The trial court entered its order granting the plaintiff’s motions on July 20. GEICO filed its motion for rehearing addressing the July 20 order on August 2. Without any further action by the trial court, GEICO then filed its notice of appeal addressing the same order on August 19. The trial court then entered the Amended Final Judgment on August 25, at which point GEICO filed an amended notice of appeal on September 6, without filing any other motions below.


text:
    Terry GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5838.
    District Court of Appeal of Florida, First District.
    April 11, 2013.
    Terry Green, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant filed the instant rule 3.800(a) motion arguing that the trial court erred by sentencing him as a Sexual Predator. He claims that the attempted sexual battery occurred prior to the effective date of the Sexual Predators Act, section 775.21(4)(a), Florida Statutes, which states that the Sexual Predators Act applies to offenses committed on or after October 1, 1993. He asserts that the attempted sexual battery was committed against his stepdaughter during his marriage, and that the dates asserted by the State in its information relate to the dates of his marriage and his subsequent divorce, and that he was not living in the home after the date that the Sexual Predators Act took effect. Thus, he claims, he is not subject to the Sexual Predators Act. He seeks to have this designation rescinded. See Lowery v. State, 98 So.3d 163 (Fla. 1st DCA 2012).

In Lowery, the defendant complained that his Sexual Predator designation was improper because he was convicted of offenses that occurred prior to the effective date of the Sexual Predators Act. The information actually charged the defendant with committing offenses both before the effective date of the Act as well as after, as is the situation in the instant ease. This court reversed and remanded for the trial court to attach portions of the record conclusively demonstrating that the defendant’s crimes were committed after the Act’s effective date, or to strike the defendant’s Sexual Predator designation.

The State has conceded that the trial court failed to attach the portion of the record that conclusively refutes the appellant’s claim, and that the case should be reversed and remanded for record attachments refuting the claim.

Therefore, as in Lowery, we reverse and remand for the trial court to either attach the portion of the record that conclusively refutes the appellant’s claim, or, if no such documents exist, for the trial court to strike the appellant’s Sexual Predator designation.

REVERSED AND REMANDED.

WOLF, PADOVANO, and LEWIS, JJ., concur.