author: SAWAYA, J.

text:
    Steven J. WOLK, Petitioner, v. BOARD OF COUNTY COMMISSIONERS, etc., et al., Respondent.
    No. 5D13-447.
    District Court of Appeal of Florida, Fifth District.
    July 5, 2013.
    Rehearing Denied Aug. 5, 2013.

      Steven J. Wolk, Maitland, pro se.
    Melissa C. Clarke, Assistant County Attorney, Sanford, for Respondent.
   SAWAYA, J.

This is a very unusual case involving an otherwise innocuous application for a zoning variance to the Seminole County Land Development Code (Code). It merits that description because of the unusual decisions that were made as the case progressed through the various review proceedings after the application was denied by the Seminole County Board of Adjustments (BOA). When the Seminole County Board of County Commissioners (Board) heard the appeal of the denial of the variance application, the Board concluded that the variance should be granted and, at the same time, concluded that the variance was not necessary. Despite the latter conclusion, and in accord with the former conclusion, the Board rendered a written variance that is contained in the record. What is even more unusual, in the certio-rari proceedings in the circuit court, the court upheld the decision to grant the variance, reasoning that the variance was not necessary. That decision led to the filing of a Petition for Writ of Certiorari in this court. In the current certiorari proceedings, the Board attempts to explain its obvious contradictory conclusions by proclaiming that the variance it issued is a “variance in name only.” In the context of these proceedings and the applicable Code provisions, we do not know what that means or, for that matter, what a “variance in name only” is.

Analysis of the procedural path this case has traveled and the decisions we review will perhaps lead the reader to conclude that our description of this case as unusual is understated and restrained. But the description is an aside: the record reveals the facts and the decisions that will direct our review of this case, and so we must consider and analyze them as best we can.

The applicants for the variance are Calvin and Regine Mills. They are the owners of a residence located adjacent to the residence of the Petitioner, Steven Wolk, who is an objector to the application. Their properties fall within the zoning area designated R-1AA by the Code. The significance of that designation is found in pertinent parts of the Code that require closed fences composed of opaque, non-see-through material in excess of three feet tall to be set back a minimum of twenty-five feet from the road in front of the property. Seminole County, Fla., Land Development Code § 30.1349(a) (2011) (“[A] closed fence or wall in excess of three (3) feet in height shall maintain the same district front yard setback requirement as the main or principal dwelling structure.... ”); Seminole County, Fla., Land Development Code § 30.206(b)(1) (“The following minimum front ... yards shall be observed: On properties assigned the R-1AA ... zoning classification! ], the following minimum yards shall be observed: Front. Twenty-five (25) feet.”).

The Millses’ home is situated on a cul-de-sac that is part of a road running along the western boundary of their property. The southern boundary is adjacent to the northern boundary of Wolk’s residence. According to Wolk, the Millses purchased their property -with an existing “stockade” fence made of wood that stood six feet tall along the southern boundary. It did not extend to within twenty-five feet of the road. The Millses applied for a permit to repair or replace the existing fence, but they attached a drawing on a survey that showed they were also applying for a permit to erect an extension of the existing fence to within one foot of the road. The drawing further showed that the extension connected to an entirely new fence of the same height and made of the same material to be erected along the western boundary where the road abuts the Millses’ property. When the Millses presented their application, they were informed by a Seminole County permit technician that the extension and the new fence were in violation of the pertinent Code provisions. They were further informed that in order to proceed with their plans, they would have to obtain a variance. The Millses then repaired the existing fence and filed an application for a variance to erect the extension and the new portion of the fence. Before their application was considered by the BOA, the Millses erected the extension and the new fence consistent with the drawing appended to their permit application.

The BOA has the authority to grant a variance of the type requested by the Millses provided six criteria contained in the Code are met:

1. That special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same zoning classification; and
2. That the special conditions and circumstances do not result from the actions of the applicant; and
3. That granting the variance requested will not confer on the applicant any special privilege that is denied by Chapter 30 to other lands, buildings, or structures in the same zoning classification; and
4. That literal interpretation of the provisions of Chapter 30 would deprive the applicant of rights commonly enjoyed by other properties in the same zoning classification and would work unnecessary and undue hardship on the applicant; and
5. That the variance granted is the minimum variance that will make possible the reasonable use of the land, building, or structure; and
6. That the grant of the variance will be in harmony with the general intent and purpose of Chapter 30, will not be injurious to the neighborhood, or otherwise detrimental to the public welfare.

Seminole County, Fla., Land Development Code § 30.43(b)(3) (2011). The BOA denied the variance application, concluding that “[o]ne or more of the six criteria under the [Code] for granting a variance ha[d] not been satisfied,” and that “[t]he applicant still retained] reasonable use of the property without the granting of the requested variance.”

The Millses appealed the denial of their variance application to the Board. Wolk filed his written objections, arguing in pertinent part that the extension and new fence (1) completely cut off the view from Wolk’s property to the northwest, (2) had been built so close to the property line between the properties that it was uncertain if it, in fact, encroached on Wolk’s property, and (3) met none of the factors that the Board was supposed to consider in ruling on an application for a variance pursuant to section 30.43(b)(3) of the Code. The Seminole County Planning Division submitted a Staff Report recommending the Board sustain the denial of the variance application.

The Board convened a hearing to address the appeal. Sometime prior to the hearing, the Millses apparently changed the part of fence in the front of their house to a metal fence with sufficient spaces between the vertical bars to make that part of the fence compliant with the Code. Wolk and several residents of the neighborhood appeared at the hearing to voice their objection to the variance. Numerous photographs of the fence and the Millses’ property were submitted. The hearing ended with analysis of one picture of the property and the fence. That picture has an arrow pointing to the corner where the southern portion of what clearly appears to be a wooden opaque fence connects to the see-through metal portion of the fence. What is remarkable about this picture is that the arrow designates the wooden portion of the fence to be three feet from the front yard, set back a short distance from the road. We find the following discussion about this picture equally remarkable:

MR. SIKONIA: I think this is how it exists today.
COMMISSIONER CAREY: Okay. So if that’s the current picture, that’s allowable; is that correct? Can staff, somebody from staff answer the question?
MR. SIKONIA: If it goes—
MS. GUILLET: This is Nicole Guillet, Building Management Director, for the record. If the rod (sic) iron fence that runs along that side lot line is set back twenty-five feet, then, yes.
COMMISSIONER CAREY: From the corner of the property.
MS. GUILLET: From the front of the lot.
COMMISSIONER CAREY: Uh-huh.
MS. GUILLET: We don’t know how far back it goes. If you remove two panels of stockade fence, I would suspect that that’s less than twenty-five feet.

Despite the fact that there are no measurements on this picture other than the arrow designating a three foot setback of the wooden opaque fence, despite the obvious skepticism of the Building Management Director whether that portion of the wooden fence was set back far enough to comply with the Code, and despite the clear depiction of the wooden fence on the southern boundary, the Board granted the variance and then declared a variance was not necessary. The Board went so far as to order a refund of the Millses’ application fees, indicating that they had expended the money “on some sort of a mix-up.” We see nothing in this record to show that the Board considered the six criteria in section 30.43(b)(3) of the Code in reaching its conclusion to grant the variance.

A Petition for Writ of Certiorari was filed by Wolk in the circuit court, and an order denying the Petition was rendered. If the Board’s decision was not puzzling enough, the circuit court’s order reveals another puzzle. That order specifically states that “[t]he sole issue is whether [the Board’s] decision to grant the variance was lawful.” But the order then launches into analysis and reasoning that ends with the conclusion that a variance was not actually granted because the Board had concluded that a variance was not necessary. In that analysis, we see no explanation for the discrepancy that clearly exists between the Board’s conclusion that no variance was necessary and the fact that the Board actually issued an order granting the variance. That a variance was granted by the Board is clearly revealed by the order entered by the Board and reviewed by the circuit court that provides in pertinent part:

NOW, THEREFORE, IT IS ORDERED AND AGREED THAT:
(1) The Board hereby agrees to overturn a decision by the Board of Adjustment to deny a variance at 853 Dover Road for a front yard setback variance from 25 feet to 1-foot for an existing privacy fence in the R-1AA (Single-Family Dwelling) district; located at 853 Dover Road and hereby grants a variance as follows:
a. The west property line front setback shall be 1-foot, consistent with the placement of the existing fence.
b. The south property line front setback shall be 8 feet, consistent with the placement of the existing fence.
(2) All development shall fully comply with all the codes and ordinances in effect in Seminole County at the time of issuance of permits including all impact fee ordinances.
(3) The conditions upon this development permit and the commitments made as to this development permit, all of which have been accepted by and agreed to by the owner of the property are as follows:
a. The variance granted will apply only to a fence as depicted on the attached site plan and photograph.
(4) This Development Order touches and concerns the aforedescribed property and the conditions, commitments and provisions of this Development Order shall perpetually burden, run with and follow the said property and be a servitude upon and binding upon said property unless released in whole or part by action of Seminole County by virtue of a document of equal dignity herewith. The owner of the said property has expressly covenanted and agreed to this provision and all other terms and provisions of this Development Order.

In its response filed in the current certiorari proceedings, the Board labels that document a “variance in name only.” This is yet another puzzle we must attempt to solve because “variance in name only” appears nowhere in the lexicon of the Code or the case law we have reviewed. This order is much more than just a label attached to words on a page: it has clear and precise provisions that constitute a servitude on the Millses’ property that can only be released by “a document of equal dignity.” Given the label placed on the order by the Board, we are hesitant to consider what labels may be placed on any “document of equal dignity” should a release be sought in the future. We solve this puzzle by concluding that this is indeed a variance in name and effect, as the order contains requirements of considerable consequence, and it will be treated as such by this court.

Having discussed the procedural and factual background of this case, the limited scope of our certiorari review requires attention. The proceeding before us falls into the subcategory of certiorari cases involving a circuit court decision that reviewed a decision rendered by a governmental agency. Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So.3d 712 (Fla.2012). In those instances (and in instances where the decision reviewed is rendered by an administrative agency), the circuit court is required to determine whether 1) procedural due process was accorded the parties; 2) the essential requirements of the law were complied with; and 3) the findings and judgment rendered by the governmental agency are supported by competent substantial evidence. Id. at 723 (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995)). When that review is completed and the case departs the circuit court, subsequent review by a district court of appeal is limited to whether the circuit court afforded procedural due process to the parties and whether the court applied the correct law (or, stated differently, whether the circuit court decision departs from the essential requirements of the law). Id. If the circuit court failed to apply the correct law resulting in a miscarriage of justice, a district court may correct the error. Id. Procedural due process is not an issue here, so we must determine whether the circuit court applied the correct law. The correct law may derive from a variety of sources including local governmental ordinances. See City of Coral Gables Code Enforcement Bd. v. Tien, 967 So.2d 963 (Fla. 3d DCA 2007).

As we previously discussed, the BOA has the authority to grant a variance of the type sought by the Millses provided the six criteria listed in section 30.43(b)(3) are met. The Code also provides that appeals of the decisions of the BOA regarding variance applications are to the Board and that the Board’s standard of review is de novo. Seminole County, Fla., Land Development Code § 30.43(e) (2011) (“The appeal before the Board of County Commissioners shall be de novo.”). Therefore, when reviewing a decision of the BOA regarding a variance application, the Board should determine whether the six criteria are met before deciding to grant a variance. See Walgreen Co. v. Polk Cnty., 524 So.2d 1119, 1120 (Fla. 2d DCA 1988) (“Since a de novo hearing is conducted by the county commission when an appeal is taken from a decision of the board of adjustment, it follows that the county commission’s determination of whether to grant a variance should be based on the same criteria the ordinance directs the board of adjustment to apply.”).

The BOA clearly applied the six criteria in concluding that the variance application should be denied. The Board, on the other hand, did not, and there is nothing in this record or the order rendered by the Board to indicate otherwise. Rather, the Board concluded that a variance should be granted and then concluded that it was not necessary. When the circuit court began its analysis, it understood the correct issue when it stated that the question was whether the Board’s decision to grant the variance was lawful. The court should have proceeded to answer that question by determining whether the Board applied the six criteria listed in the Code. Instead, the court veered away from that issue by upholding the Board’s contradictory conclusions and proceeding as if a variance had never been entered.

We believe that the methodology utilized by the Board and approved by the circuit court of granting a variance in violation of the Code provisions yet concurrently concluding that the variance is not necessary is wrong, and its use needs to stop. Otherwise, others will be encouraged to employ the same or similar methods to work their will without regard to applicable laws and ordinances. Such methods not only disregard valid laws, they deprive others living in the neighborhood and surrounding areas of the valid application of ordinances that ensure the landscape of the neighboi’hood is kept in conformity with orderly growth and development.

We conclude that the circuit court applied the wrong law, resulting in a miscarriage of justice. We grant the Petition and quash the order under review.

Petition Granted.

BERGER and WALLIS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ken C. LOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1230.
    District Court of Appeal of Florida, Fifth District.
    July 5, 2013.
    Rehearing Denied Aug. 1, 2013.

      Ken C. Loung, White City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Russell v. State, 656 So.2d 203, 204 (Fla. 5th DCA 1995) (holding scoresheet error harmless when based on plea bargain).

ORFINGER, LAWSON and COHEN, JJ., concur.


text:
    K. E., Appellant, v. STATE of Florida, Appellee.
    No. 1D13-921.
    District Court of Appeal of Florida, First District.
    July 9, 2013.
    Rehearing Denied Aug. 8, 2013.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED as moot.

LEWIS, C.J., and WETHERELL, J., concur.

BENTON, J., Dissents.


text:
    T.D.S., Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D13-923.
    District Court of Appeal of Florida, First District.
    July 9, 2013.
    Rehearing Denied Aug. 7, 2013.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED as moot.

LEWIS, C.J., and WETHERELL, J., concur.

BENTON, J., dissents.


author: SHEPHERD, C.J.

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, etc., Appellant, v. MANGO HILL # 6 CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D10-2630.
    District Court of Appeal of Florida, Third District.
    July 10, 2013.
    Butler Pappas Weihmuller Katz Craig, and J. Pablo Caceres and Lori A. Vella, Tampa, for appellant.

      Alvarez, Carbonell, Feltraan, Jimenez & Gomez and Paul B. Feltman, Coral Gables, for appellee.
    Before SHEPHERD, C.J., and WELLS and EMAS, JJ.
   SHEPHERD, C.J.

This is an appeal from an Amended Final Judgment after appraisal. Because the trial court erred in applying the Florida Arbitration Code to “confirm” the appraisal award in this case, we reverse and remand the case for further proceedings. See Citizens Prop. Ins. Corp. v. Cuban-Hebrew Congregation of Miami, 5 So.3d 709, 712 (Fla. 3d DCA 2009) (“The Florida Supreme Court has held that the Florida Arbitration Code is not applicable to appraisal cases.”) (citing Allstate Ins. Co. v. Suarez, 833 So.2d 762, 763-66 (Fla.2002); Cotton States Mut. Ins. v. D’Alto, 879 So.2d 67, 70 (Fla. 1st DCA 2004); Nationwide Mut. Fire Ins. Co. v. Schweitzer, 872 So.2d 278, 279 (Fla. 4th DCA 2004)).

I.

Like so many others, this case has its genesis in Hurricane Wilma, which called upon South Florida on October 24, 2005. At the time of the storm, Citizens Property Insurance Corporation had issued a commercial policy of windstorm damage insurance, naming Mango Hill # 6 Condominium Association, Inc., as the named insured on each of the seven buildings comprising the condominium property. On January 12, 2006, Mango Hill provided Citizens with a contractually required notice of hurricane loss under the policy. Citizens adjusted the loss and before the end of 2006, paid $39,900.10 to the Association on the loss after accounting for deductibles under the policy.

On February 2, 2007, Mango Hill presented a supplemental claim in the sum of $846,049.46 through a public adjuster, Willie Gonzalez of Elite Claims Consultants, Inc. Citizens requested the Association to submit a sworn proof of loss to support the supplemental claim. The sworn proof of loss finally arrived at Citizens’ offices on October 25, 2007. In the meanwhile, on April 12, 2007, after another inspection of the property by Citizens produced no further recourse under the policy, Mango Hill demanded appraisal of its supplemental claim. Although protesting it “owe[d] no further funding” to Mango Hill, Citizens nevertheless agreed to appoint an appraiser, “reserving all rights or defenses of Citizens Property Insurance Corporation under its policy of insurance.” Citizens also forwarded to Mango Hill a proposed joint Memorandum of Appraisal, seeking to “identify!] the issues and procedures” under which the appraisal would occur. Mango Hill did not respond to Citizens’ request. Citizens assumed the appraisal would be limited to the items identified in the supplemental claim.

The appraisal process did not effectively commence until after Citizens received the Association’s sworn proof of loss on October 25, 2007. The Association appointed Frank Inguanzo as its appraiser; Citizens appointed Ken Daidone. Accompanied by Mango Hill’s public adjuster, the appraisers for the Association and Citizens inspected the property three times between February 20 and July 31, 2008. The Association’s demand during these inspections focused almost exclusively on its desire that Citizens pay to replace the roofs on each of the seven buildings in the condominium complex. Although disputed by Inguanzo, Ken Daidone and his assistant, David Charles, averred in affidavits filed of record that they were told “interior damages were not an issue.”

On September 19, 2008, in the midst of the appraisal process, Willie Gonzalez delivered a revised supplemental claim to Ken Daidone. Prepared by Gonzalez at the direction of Inguanzo, the revised supplemental claim nearly doubled the Association estimate of loss to $1,664,850.23. The new estimate included exterior damages never before presented to Citizens, as well as items of damage located in the interior units. Daidone contacted George Torrente, whom he and Inguanzo recently had selected as the umpire, and asked for a stay of the proceedings to allow further investigation. Citizens, now through counsel, made the same demand and requested a supplemental sworn proof of loss and examinations under oath as well. All of these demands were rebuffed by Inguanzo and Torrente. On November 9, 2008, Tor-rente submitted a proposed award in the amount of $1,058,122.52. Two days later, Inguanzo signed the proposed award. Daidone learned about the award upon his return from a scheduled three-week vacation.

Citizens asserts numerous defenses to enforcement of the award against it, including that Mango Hill failed to comply with its post-loss obligations under the insurance policy, failed to allow Citizens’ appraiser a full inspection of the claimed loss, and failed to cooperate, as required by the insurance contract, by refusing to tender an amended sworn proof of loss, additional documentation, and appear for an examination under oath after nearly doubling its claim during the course of the appraisal process.

Citizens also claims the appraisal panel itself engaged in irregularities, unfairness or fraud in the submission of the award. It alleges Mango Hill’s appointed appraiser was effectively a front for its public adjuster, the appraisers failed to meet at the conclusion of their respective investigations to discuss and attempt to agree on the amount of the loss, the appraisal panel exceeded its authority when it determined an amount of loss greater than the amount originally claimed by Mango Hill, and, finally, that the court failed to consider its coverage defenses to payment of the award. The court accepted Mango Hill’s argument that these defenses were subsumed in the appraisal process or waived by Citizens’ agreement to appraisal. Mango Hill is incorrect in each of these assertions.

II.

The differences between arbitration and appraisal are well defined in this state. First and foremost, while an agreement to arbitrate ordinarily encompasses the disposition of the entire controversy between the parties, an agreement for appraisal extends merely to the resolution of the specific issues of actual cash value and “amount of loss.” Preferred Ins. Co. v. Richard Parks Trucking Co., 158 So.2d 817, 820 (Fla. 2d DCA 1963) (quoting 5 Am Jr.2d Arbitration and, Award,, now found at 4 Am.Jur.2d Alternate Dispute Resolution, § 3 (2013)); FTI Int’l, Inc. v. Cincinnati Ins. Co. 339 Ill.App.3d 258, 274 Ill. Dec. 135, 790 N.E.2d 908, 910 (2003) (citing 15 Couch on Insurance 3d § 209:4 (1999)). Second, the appraisal process is an informal one. Suarez, 833 So.2d at 765; FTI Int'l, 274 Ill.Dec. 135, 790 N.E.2d at 911 (citing 15 Couch on Insurance 3d § 209:8). There is no requirement that appraisers be sworn. Hanover v. Lewis, 28 Fla. 209, 10 So. 297, 302 (1891); Pearson v. Sanderson, 28 Ill.App. 571, 573 (Ill.App.Ct.1888); Wodjak v. Greater Phila. Cablevision, Inc., 550 Pa. 474, 707 A.2d 214, 219 (1998). Appraisers generally are chosen for and expected to act on their own skill and knowledge relating to the matters being appraised. Allstate Ins. Co. v. Martinez, 790 So.2d 1151, 1152 (Fla. 3d DCA 2001); Fla. Farm Bureau Cas. Ins. Co. v. Sheaffer, 687 So.2d 1331, 1333 (Fla. 1st DCA 1997), disapproved, on other grounds, Suarez, 833 So.2d at 762. There is no obligation for appraisers to give formal notice of their activities to the parties or counsel, or to hear evidence. Cas. Indem. Exch. v. Yother, 439 So.2d 77, 80 (Ala.1983); Collison v. Deisein, 265 A.2d 57, 59 (Del.Ch. 1970); Sheaffer, 687 So.2d at 1333; Olympia & York 2 Broadway Co. v. Produce Exch. Realty Trust, 93 A.D.2d 465, 468, 462 N.Y.S.2d 456 (N.Y.A.D.1983) (citing In re Delmar Box Co., 309 N.Y. 60, 63, 127 N.E.2d 808 (N.Y.1955)). They even may engage in ex parte investigation, so long as they ultimately meet in good faith for the purpose of ironing out individual differences. Martinez, 790 So.2d at 1152; Sheaffer 687 So.2d at 1333; Richard Parks Trucking Co., 158 So.2d at 820; see also Aetna Cas. & Sur. Co. v. Ins. Com’r, 293 Md. 409, 445 A.2d 14, 16 (1982); Silverman v. Fireman’s Fund Am. Ins. Cos., 96 Nev. 30, 604 P.2d 805, 806 (1980); Wodjak, 707 A.2d at 219; 15 Couch on Insurance §§ 209.9, 213.65. Finally, all issues other than those contractually assigned to the appraisal panel are reserved for determination in a plenary action. Paradise Plaza Condo. Ass’n Inc. v. Reinsurance Corp. of N.Y., 685 So.2d 937, 940 (Fla. 3d DCA 1996) (stating the phrase “right to deny the claim” in an appraisal clause identical to the one before us is the functional equivalent of the Hanover clause that the [appraisers] “shall not decide the [carrier’s] liability”); see also Johnson v. Nationwide Mut. Ins. Co., 828 So.2d 1021 (Fla.2002); Citizens Prop. Ins. Corp. v. River Manor Condo. Ass’n, — So.3d -, 38 Fla. L. Weekly D820, 2013 WL 1441294 (Fla. 4th DCA 2013); Citizens Prop. Ins. Corp. v. Mango Hill Condo. Ass’n 12, 54 So.3d 578 (Fla. 3d DCA 2011); Sunshine State Ins. Co. v. Rawlins, 34 So.3d 753 (Fla. 3d DCA 2010); Kendall Lakes Toumhomes Developers, Inc. v. Agricultural Excess & Surplus Lines Ins. Co., 916 So.2d 12 (Fla. 3d DCA 2005); 4 Am.Jur.2d Alternate Dispute Resolution § 3.

Arbitrations, on the other hand, are quasi-judicial proceedings. Cassara v. Wofford, 55 So.2d 102, 106 (Fla.1951); Martinez, 790 So.2d at 1152; Tassinari v. Layer, 189 So.2d 651, 653 (Fla. 2d DCA 1966). Although not conducted with the same degree of formality as a judicial proceeding, arbitration proceedings are impressed with the same procedural safeguards. Tassinari, 189 So.2d at 653. These safeguards are codified in substantial part in the Florida Arbitration Code. §§ 682.01-22, Fla. Stat. (2012). Under the Florida Arbitration Code, each party is entitled to a full hearing in the presence of every other party, unless such right is waived by agreement or conduct. § 682.06, Fla. Stat. (2012); Cassara, 55 So.2d at 106. The arbitrators must meet together in each session, and may not engage in independent investigation of the thing in issue. Tassinari, 189 So.2d at 652. The Arbitration Code guarantees to each party not only the right to notice of each hearing session, but also the right to counsel, the opportunity to present evidence, and the right to cross-examine witnesses. § 682.06; Cassara, 55 So.2d at 106. Finally, unlike appraisal, the arbitration panel may adjudge the case only on what is presented to them in the course of the proceeding. § 682.06; Cassara, 55 So.2d at 106; see also 4 Am.Jur.2d Alternate Dispute Resolution § 3.

III.

Applying these principles, it becomes at once clear the trial court improperly pretermitted Citizens’ ability to present its defenses to Mango Hill’s property insurance claim. Appraisal exists for a limited purpose — the determination of “the amount of the loss.” By “confirming” the appraisal award, the trial judge effectively overruled Citizens’ well-preserved objections to entry of judgment. The trial judge acknowledged this fact in his oral announcement granting Mango Hill’s ill-fated motion for confirmation of the appraisal award, when he stated he was “not saying that anyone breached.” Proper procedure required that Citizens’ defenses be addressed, not by a motion to confirm appraisal award under the Florida Arbitration Code, but rather by motion for summary judgment or trial. As the factual and procedural history of this case demonstrates, this is not a mere formality. The Florida Arbitration Code is not applicable to appraisal awards.

We reverse and remand this case for further proceedings in compliance with this opinion.

      . "Appraisal award” is really a misnomer because the appraisal panel only determines the amount of loss, not an insured’s entitlement to any damages, prominently including coverage issues such as whether the loss falls within the insuring clause of the policy, and whether the loss was caused by a covered peril.

      . Had the parties brought this binding precedent to the attention of the trial judge at the time it announced its ruling from the bench in August 2010, we feel confident considerable time and judicial labor would have been saved.

      . Citizens evaluated the loss at $131,469.57. The condominium consists of seven buildings. Each building has a separate coverage limit. The hurricane deductible is three percent of the coverage limit for each building. Thus, the calculated deductible under the policy was $91,569.47.

      .The appraisal clause in the policy is commonly appearing the standard clause used in the industry at the time. It reads:
      If we and you disagree on the amount of loss, either may make written demand for an appraisal of the loss. In this event, each party will select a competent and impartial appraiser. The two appraisers will select an umpire. If they cannot agree, either may request that selection be made by a judge of a court having jurisdiction. The appraisers will state separately the amount of loss. If they fail to agree, they will submit their differences to an umpire. A decision agreed to by any two will be binding. Each party will:
      a. Pay its chosen appraiser; and

        b. Bear the other expenses of the appraisal and umpire equally.
      If there is an appraisal, we will still retain our right to deny the claim.


author: SUAREZ, J.

text:
    Paul D. PUGLIESE and Regional Hospitalists, Inc., Appellant, v. Charles TEREK, Appellee.
    No. 3D11-2209.
    District Court of Appeal of Florida, Third District.
    July 10, 2013.

      Shutts & Bowen and Stephen T. Maher and Frank A. Zacherl, Miami, and Edward J. O’Sheehan, Fort Lauderdale, for appellant.
    Greenspoon Marder and Neal Hirschfeld and Mark Siedle, Fort Lauderdale; Steven M. Goldsmith, Boca Raton, for appellee.
    Before SUAREZ, ROTHENBERG and SALTER, JJ.
   SUAREZ, J.

Paul D. Pugliese and Regional Hospital-ists, Inc. (“Defendants”) appeal from an unsupported order granting a new trial on damages. We reverse the order granting a new trial and remand with directions to reinstate the jury’s verdict. A review of the record shows the evidence presented at trial is conflicting and the jury could have reached its verdict consistent with the evidence. We, therefore, conclude the trial court erred in taking the verdict away from the jury by granting a motion for additur or new trial.

Prior to addressing the merits of the appeal, we note the trial court did not include in the order on appeal its rationale for granting Plaintiffs motion for new trial. The order granting a new trial was unsupported by any fact or law as required by section 768.043(2)(a)-(e), Florida Statutes (2013), or even the bare finding that the verdict was contrary to the manifest weight of the evidence. Indeed, such a minimum finding must also provide a basis in the record to sustain the grant of a new trial. See Tuttle v. Miami Dolphins, Ltd., 551 So.2d 477, 479 (Fla. 3d DCA 1989) (finding that, in order to facilitate review of orders granting a new trial, the trial court must set forth its reasons so that the appellate court may then ascertain whether the trial court has abused its discretion); Wackenhut v. Canty, 359 So.2d 430, 435 (Fla.1978) (holding a new trial order must give reasons supporting a determination that the verdict is against the manifest weight of evidence or influenced by considerations outside the record to make it susceptible to appellate review); Dailey v. Hendricks, 213 So.2d 600, 602 (Fla. 1st DCA 1968) (“An observation by a trial judge that the verdict is contrary to the manifest weight of the evidence does not make such a finding an absolute fact; it must be found from a basis in the record ... If the record does not support the finding, it necessai'ily follows that an abuse of discretion is indicated on the part of the trial judge.”). This Court would ordinarily relinquish jurisdiction and remand to the trial court judge who issued the orders to explain the rationale underlying the ruling. In this case, remand for further information is not possible because the trial judge who made the rulings at issue is unavailable; she is no longer on the bench and belongs to a firm adverse to the Defendants’ counsel. See Airstar v. Gubbins, 668 So.2d 311, 312 (Fla. 4th DCA 1996). As remand in this case is not possible, we must base our opinion solely on our review of the record on appeal.

This appeal arises out of a jury trial for personal injuries in which the jury awarded damages to Charles Terek (“Plaintiff’), for past and future medicals and past and future pain and suffering. At trial, Defendants did not contest liability for the 2004 auto accident and did not contest that Plaintiffs 2006 surgery was the result of injuries received in that accident. The issues at trial were whether the medical costs for the 2006 surgery were reasonable, and further, whether the surgery in 2009 was also the result of the 2004 accident and, if so, whether the medical expenses for that surgery were reasonable. The issue of causation as to the 2009 injuries and subsequent surgery was hotly contested at trial. Evidence was presented that between 2004 and 2006, Plaintiff was treated for right leg and back pain as a result of the 2004 accident. An MRI taken after the accident in 2004 showed one herniated disc admittedly caused by the accident and no fractures. In 2006, Plaintiff underwent a percutaneous discec-tomy and thereafter was found to have reached maximum medical improvement (“MMI”). A 2006 independent medical exam confirmed the MRI results and the IME physician, Dr. Wender, agreed that Plaintiff was at MMI after that surgery.

In 2008, Plaintiff complained for the first time of pain radiating down the left leg. An MRI taken in 2009 showed three new herniated discs and three compression fractures. The doctors for both sides testified that these herniated discs and compression factures were not present in the initial, 2004, MRI. In 2009, Plaintiff underwent an anterior lumbar discectomy. Plaintiff claimed the 2009 surgery was the result of injuries sustained in the 2004 accident and put into evidence medical expenses for both the 2006 and 2009 surgeries, totaling $341,980.86. Defendants, on the other hand, argued that the three new herniated discs and compression fractures seen in the 2009 MRI were not the result of the 2004 accident but must have been caused by some intervening trauma. As such, Defendants argued, they could not be held responsible for the more than $200,000 in medical bills resulting from the 2009 surgei'y. Defendants presented testimony through the IME doctor, Dr. Wen-der, that the surgeon’s fees for the 2006 operation were not reasonable, and presented a lower amount that was considered reasonable for that procedure. The jury returned a verdict and awarded Plaintiff $70,041 for past medical expenses, $24,000 for future medical expenses, $25,000 for past pain and suffering and $50,000 for future pain and suffering, for a total award of $169,041.00. On Plaintiffs post-trial motion for additur, the trial court granted the motion and awarded him the $341,980.86 he requested at the outset of trial. Plaintiff rejected the additur and requested a new trial solely on the issue of damages, which the trial court granted.

It is error for a trial court to take away a jury verdict by granting a motion for additur where the evidence at trial was conflicting and where the jury could have reached its verdict in a manner consistent with the evidence. Ortlieb v. Butts, 849 So.2d 1165, 1167, 1168 (Fla. 4th DCA 2003). We have carefully reviewed the record. Conflicting evidence was presented at trial as to both the reasonableness of the medical fees and as to causation of the injuries that resulted in the 2009 surgery. We conclude there was sufficient evidence at trial from which the jury could have reasonably concluded that the 2009 surgery and related charges were not occasioned by Defendants’ 2004 negligence but were related to an intervening trauma suffered by Plaintiff. The damages awarded covered Plaintiffs 2006 costs (not the disputed 2009 costs), and were not clearly insufficient or unsupported by the evidence at trial. A jury verdict which finds such support in the record will not be disturbed on review. Helman v. Seaboard Coast Line R.R., 349 So.2d 1187 (Fla.1977); Undenoriters Nat’l Assurance Co. v. Harrison, 338 So.2d 58 (Fla. 3d DCA 1976).

We reverse the order below granting a new trial, and remand with directions to reinstate the jury’s verdict.

      . The order granting a new trial solely on damages followed from the plaintiff’s motion for, then rejection of, the trial court’s unsupported $271,000 additur order for past medical expenses.

      . For example, we note the startling differences between the 2004 and 2009 MRI reports confirmed by both Plaintiff’s and Defendants’ doctors, as well as Dr. Wender's trial testimony that implied an intervening trauma occurred between 2006 and 2009.

      . From the record it appears the trial court believed it erred by allowing the testimony of Defendants' IME doctor as to the cause of the 2009 injuries evidenced by the second MRI. As such, the trial judge appears to have determined there was no other evidence from which the jury could have concluded that the 2009 injuries and subsequent surgery were not caused by the accident in question. For the reasons stated in the opinion, we need not address the issue of whether it was error to allow Dr. Wender to testify as to causation. There was sufficient evidence at trial, however, from which the jury could have reached its verdict without Dr. Wender’s testimony regarding causation.


author: LAGOA, J.

text:
    Diane N. WELLS and Thomas O. Wells, Petitioners, v. Hector CASTRO, et al., Respondents.
    No. 3D12-3039.
    District Court of Appeal of Florida, Third District.
    July 10, 2013.

      Devine Goodman Rasco & Wells and Lawrence D. Goodman and Diane Wells, Miami, for petitioners.
    Siegried, Rivera, Lerner, De la Torre & Sobel and Michael J. Kurzman, Plantation, for respondent Hector Castro.
    Before WELLS, SUAREZ and LAGOA, JJ.
   LAGOA, J.

Petitioners, Diane N. Wells and Thomas 0. Wells (collectively, “Wells”), petition this Court for a writ of mandamus to compel the trial court to confirm an arbitration award. We grant the petition.

I. FACTUAL AND PROCEDURAL HISTORY

On May 30, 2008, Wells and Halmac Development, Inc. (“Halmac”), entered into a construction contract, which contained an arbitration clause. Due to several issues in the construction project, Wells terminated the contract with Hal-mac. Then, on November 2, 2009, Halmac recorded a claim of lien on Wells’ property in the amount of $72,088.80 plus interest. A few weeks later, Halmac recorded a notice of lis pendens seeking to foreclose on Wells’ property. Subsequently, Wells filed a motion to compel arbitration, and, after the agreement of the parties, the trial court issued an order compelling arbitration.

In arbitration, Wells sought money damages against Halmac on a contract claim and misappropriation of funds. Wells also sought money damages against Halmac and the Respondent, Hector Castro (“Castro”), for filing of a fraudulent lien. In a counterclaim against Wells, Halmac sought the amount owed to it under the contract. The parties specifically agreed to have the arbitrator determine the issue of “prevailing party.”

On August 17, 2011, the arbitrator entered an award (“Initial Award”) finding in favor of Wells on the contract claim, and in favor of Halmac on the counterclaim, which offset the amount owed to Wells. Additionally, the arbitrator found in favor of Halmac on the claim for misappropriated funds. Further, the arbitrator denied Wells’ claims against Halmac and Castro for the filing of a fraudulent lien, noting that during the hearing, he granted Castro’s motion to dismiss the claim brought against him. Lastly, after a thorough discussion of the claims and awards in the matter, the arbitrator concluded, “[weighing the factors delineated by the Supreme Court in Trytek [v. Gale Indus. Inc., 3 So.3d 1194 (Fla.2009),] and the equities on both sides of this case, I find that there is no prevailing party for the purposes of an award of attorneys’ fees.” (emphasis added).

After the Initial Award, both Halmac and Wells filed motions in arbitration seeking to modify the Initial Award for a correction of computational errors. Castro also filed a motion in arbitration, requesting that the Initial Award be modified to address the question of “who is the prevailing party as between Castro and the Wells, and ... that Castro be deemed the prevailing party.” Wells responded to Castro’s motion arguing that Castro was attempting to have the merits re-determined, and that “[a] modification is limited to the scope of AAA R-48 or Fla. Stat. § 682.14(l)(a), and the Arbitrator has determined, in accordance with Florida law, that there is no prevailing party for the purposes of attorneys’ fees and costs in this action.”

As a result, on September 23, 2011, the arbitrator entered a Modification of Award (“Modified Award”), which increased the amount due to Wells, and stated “[t]he Motion for Modification filed by Respondent Castro is hereby denied.”

Wells sought to confirm the award, and filed a Motion to Confirm and Enforce the Arbitration Award Against Plaintiff Hal-mac in the trial court. The trial court denied the motion without prejudice, and gave the parties until November 16, 2011, to file motions to vacate, modify or correct.

One day prior to the deadline, Castro filed a motion to intervene in the trial court case, which was subsequently granted. Additionally, Halmac and Castro jointly filed a Motion to Modify and Correct Award pursuant to section 682.14, Florida Statutes (“Motion to Modify”). The Motion to Modify sought what it characterized as a “technical correction in the form of the award,” claiming that the Modified Award “failed to clarify, correct or modify the award to include Castro as the prevailing party” between Castro and Wells. Halmac also moved to correct mathematical errors and miscalculations in the Initial Award and the Modified Award. Wells then filed a Renewed Motion to Confirm and Enforce the Arbitration Award Against Plaintiff Halmac Development, Inc. and Cross Response to Halmac/Inter-venor’s Motion for Modification under Fla. Stat. 682.14, arguing that the Modified Award must be confirmed, because Hal-mac and Castro had no good faith basis to vacate under sections 682.13 and 682.14, Florida Statutes (2012).

On January 31, after a hearing, the trial court entered an order granting the Renewed Motion to Confirm as between Wells and Halmac. On that same date, the trial court also entered an order directing “the arbitrator to determine [the] prevailing party between Wells and Castro.” Subsequently, on February 14, 2012, the arbitrator issued an Order of the Arbitrator on Remand (“Remand Order”) stating:

The AWARD previously in this case tracks current Florida case law on this question so that will not be revisited here. Weighing that case law, as well as that cited for the first time in this case in the briefs of the parties, I find that neither Mr. Castro nor the Wells is a prevailing party for the purpose of an award of attorneys’ fees.

(emphasis added).

On March 20, 2012, the trial court again heard the parties regarding the Motion to Modify. The trial court “deferred” ruling on the motion, instead giving Castro “90 days from Feb. 14, 2012 to move to modify, correct and/or vacate [the] arbitrator award.”

Subsequently, on May 11, 2012, Castro filed a Motion to be Determined the Prevailing Party (“Prevailing Party Motion”), seeking an order from the trial court finding him to be the prevailing party with an entitlement to fees. Specifically, Castro argued that the trial court was required to enter an order finding him to be the prevailing party because the arbitrator “failed to determine a prevailing party” in the Remand Order. Wells filed a response, again seeking confirmation of the award.

On October 22, 2012, the trial court entered an order granting Castro’s Prevailing Party Motion, stating that “Hector Castro is the prevailing party as between Defendants, Diane N. Wells and Thomas O. Wells and Hector Castro” (“October 22 order”). The effect of the October 22 order was to overturn the arbitrator’s determination in the Remand Order that neither Wells nor Castro was the prevailing party. Wells then filed the instant petition for writ of mandamus.

II. ANALYSIS

To be entitled to mandamus relief, the petitioner must demonstrate a clear legal right to the performance of a ministerial duty. See Morse Diesel Int'l, Inc. v. 2000 Island Blvd., Inc., 698 So.2d 309 (Fla. 3d DCA 1997). A ministerial duty “is one ‘where there is no room for the exercise of discretion, and the performance being required is directed by law.’ ” Polley v. Gardner, 98 So.3d 648, 649 (Fla. 1st DCA 2012) (quoting Town of Manalapan v. Rechler, 674 So.2d 789, 790 (Fla. 4th DCA 1996)), review denied, No. SC12-2448, 115 So.3d 999, 2013 WL 1165254 (Fla. Mar. 21, 2013). A writ of mandamus may issue to require a timely ruling on a matter pending before a lower tribunal. Moody v. Moody, 705 So.2d 708 (Fla. 1st DCA 1998).

After the arbitrator entered the Remand Order, the trial court gave Castro ninety days to file a motion to correct, modify or vacate the award. Motions to vacate an arbitration award are made pursuant to section 682.13, Florida Statutes (2012), and motions to modify or correct an award are made pursuant to section 682.14, Florida Statutes (2012). See also Moser v. Barron Chase Secs., Inc., 783 So.2d 231 (Fla.2001). With regard to the instant ease, it is important to note that the Florida Supreme Court made clear in Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327 (Fla.1989), that application of an incorrect standard or an error of law is an insufficient basis upon which to vacate an award under the relevant statutes:

As we have stated, under section 682.13(1) and our case law the standard of judicial review of statutory arbitration awards is extremely limited. An award of arbitration may not be reversed on the ground that the arbitrator made an error of law. Cassava, 55 So.2d at 105. “[I]f ... the arbitrators are not guilty of the acts of misconduct set forth in the statute, the award operates as a final and conclusive judgment, and-however disappointing it may be-the parties must abide by it.” Id.

Id. at 1329-30; accord Felger v. Mock, 65 So.3d 625 (Fla. 1st DCA 2011); Verzura Constr., Inc. v. Surfside Ocean, Inc., 708 So.2d 994 (Fla. 3d DCA 1998).

In the absence of a motion legally sufficient under either section 682.13 or 682.14, the trial court must confirm the award:

Upon application of a party to the arbitration, the court shall confirm an award, unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in ss. 682.13 and 682.14.

§ 682.12, Fla. Stat. (2012) (emphasis added). See also Polley, 98 So.3d at 648 (stating that the language in section 682.12 is mandatory; granting writ of mandamus to confirm arbitration award where motion to set aside award failed to meet the statutory criteria set forth in section 682.13); accord SEIU Fla. Pub. Servs. Union, CTW, CLC v. City of Boynton Beach, 89 So.3d 960, 961 (Fla. 4th DCA 2012) (“The language of section 682.12 is mandatory-the court must confirm the arbitration award unless a motion to vacate or modify has been filed within ninety days of delivery of the award.”); Am. Reliance Ins. Co. v. Devecht, 820 So.2d 378 (Fla. 3d DCA 2002) (in the absence of a statutory challenge, an arbitration award must be confirmed); Moya v. Bd. of Regents, 629 So.2d 282 (Fla. 5th DCA 1993) (stating that where party failed to assert one of the statutory grounds to vacate an award, trial court cannot refuse to confirm an arbítrator’s award, even where award could not be granted in law or equity).

Here, Castro did not file a motion to vacate or to modify or correct pursuant to sections 682.13 or 682.14. Instead, he filed his Prevailing Party Motion, arguing that the arbitrator “erroneously concluded” that there was no prevailing party as between Wells and Castro, and that he was entitled to an order finding him to be the prevailing party. In essence, Castro argued that the trial court’s order of January 31, remanding the case to the arbitrator, required a particular result-that he be determined the prevailing party. However, as stated above, an award may not be reversed on the ground that the arbitrator made an error of law.

The parties specifically agreed to have the arbitrator determine the issue of “prevailing party.” Upon remand by the trial court, the arbitrator found that neither Castro nor Wells was the prevailing party. In the absence of Castro filing a motion pursuant to section 682.13 or 682.14, the trial court was required to confirm the award, and therefore had no legal basis upon which to enter the October 22 order overturning the Remand Order.

III. CONCLUSION

Because Castro’s Prevailing Party Motion did not set forth any of the statutorily enumerated grounds to vacate an arbitration award, the trial court was required to confirm the Initial Award as modified by the Remand Order. Instead, the trial court entered its own unauthorized order finding Castro to be the prevailing party. The trial court’s action was in direct contravention of section 682.12.

Accordingly, we grant the petition for writ of mandamus, quash the October 22 order finding Castro to be the prevailing party, and direct the trial court to confirm the Initial Award as modified by the February 14, 2012 Remand Order.

Petition for Writ of Mandamus Granted; Order Quashed; and Cause Remanded.

      . The relevant portion of section 682.13 states as follows:
      682.13. Vacating an award
      (1) Upon application of a party, the court shall vacate an award when:
      (a) The award was procured by corruption, fraud or other undue means.
      (b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or umpire or misconduct prejudicing the rights of any party.
      (c) The arbitrators or the umpire in the course of her or his jurisdiction exceeded their powers.
      (d) The arbitrators or the umpire in the course of her or his jurisdiction refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of s. 682.06, as to prejudice substantially the rights of a party.
      (e)There was no agreement or provision for arbitration subject to this law, unless the matter was determined in proceedings under s. 682.03 and unless the party participated in the arbitration hearing without raising the objection.
      But the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.

      . That statute states in relevant part as follows:
      682.14. Modification or correction of award
      (1) Upon application made within 90 days after delivery of a copy of the award to the applicant, the court shall modify or correct the award when:
      (a) There is an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award.
      (b) The arbitrators or umpire have awarded upon a matter not submitted to them or him or her and the award may be corrected without affecting the merits of the decision upon the issues submitted.
      le) The award is imperfect as a matter of form, not affecting the merits of the controversy.
      (2) If the application is granted, the court shall modify and correct the award so as to effect its intent and shall confirm the award as so modified and corrected. Otherwise, the court shall confirm the award as made.

      . Section 682.10, Florida Statutes (2012), also provides that upon the modification or correction of an award by an arbitrator or umpire, the award is subject to the same provisions. § 682.10, Fla. Stat. (2012) ("The award so modified or corrected is subject to the provisions of ss. 682.12-682.14.”).


author: ROTHENBERG, J.

text:
    Reginald JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3109.
    District Court of Appeal of Florida, Third District.
    July 10, 2013.

      Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Linda S. Katz, Miami, Assistant Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG and SALTER, JJ.
   ROTHENBERG, J.

The defendant, Reginald Johnson, appeals his convictions and sentences for two counts of sexual battery with a deadly weapon, one count of kidnapping without a firearm, and one count of lewd and lascivious molestation of a child between the ages of twelve and sixteen, raising two issues. The defendant challenges the State’s introduction at trial of the rape treatment kit containing his DNA and of the report documenting the collection of the evidence containing the defendant’s DNA from the victim. The defendant also alleges that because the physician who collected and prepared the report describing the collection of the evidence from the victim was not present for cross-examination at trial, introduction of the report violated the defendant’s Sixth Amendment right to confront his accuser. For the reasons detailed below, we find that the report and the rape treatment kit were properly authenticated, admission of the report did not violate the defendant’s Sixth Amendment rights, and the trial court did not err in allowing the State to introduce either the rape treatment kit or Dr. Silla’s report into evidence at trial. However, as to the defendant’s second issue, we find that, because this record does not evidence a separate act to support the conviction for lewd and lascivious molestation in addition to those for aggravated sexual battery, the defendant’s conviction for lewd and lascivious molestation violates double jeopardy. Accordingly, we reverse his conviction for lewd and lascivious molestation, and remand with instructions to the trial court to vacate the conviction and sentence for lewd and lascivious molestation and to correct the judgment accordingly.

BACKGROUND

On December 19, 2000, fourteen-year-old C.A. was abducted by a male, who then drove her to a vacant lot, forced her to engage in oral and vaginal sex, and stole her money. Detective Steven Signori, who conducted the ensuing investigation, met C.A. and her mother at the rape treatment center where Dr. Silla performed a forensic gynecological examination and collected biologic specimens from C.A. as part of the routine post-rape examination. Dr. Silla wrote a report documenting his examination and provided Detective Signori with a sealed brown bag containing the biologic specimens that he had collected during the examination.

The case remained unsolved until eight years later when Detective Signori received a lead identifying the defendant as C.A.’s assailant. At first, when interviewed by Detective Signori, the defendant denied knowing C.A., but when he was told that DNA evidence linked him to C.A., the defendant said that he may have dated her at one time. After the interview, a saliva sample was collected from the defendant and it was sent to the police laboratory to be analyzed. Sharon Hinz, who performed the analysis on the specimens contained in the rape treatment kit, analyzed the defendant’s saliva sample and determined that the DNA from the defendant’s saliva matched the biologic specimens submitted in C.A.’s 2000 rape treatment kit. The defendant was arrested and charged with two counts of armed sexual battery, one count of armed robbery, one count of armed kidnapping, two counts of armed lewd and lascivious molestation of a child between the ages of twelve and sixteen, and one count of possession of a firearm by a convicted felon. The counts for armed robbery and possession of a firearm were dismissed on statute of limitations grounds, and the case proceeded to trial on the remaining charges.

At trial, the State provided testimony by Detective Signori, who had received the rape treatment kit from Dr. Silla in 2000 and who had interviewed the defendant and obtained the defendant’s saliva sample in 2008; Nurse Valerie Carter, who had assisted Dr. Silla in his examination of C.A. and who had initialed Dr. Silla’s report; Sharon Hinz, who had conducted the DNA analysis on the items contained in C.A.’s rape treatment kit and on the defendant’s saliva in 2008; and Dr. Karen Simmons, the medical director at the rape treatment center where C.A. was examined, and who reviewed all of the reports created at the center and trained the physicians and nurses regarding how to obtain and package samples collected during the examinations performed at the rape treatment center.

Detective Signori testified about his investigation of the case. He explained that he met C.A. and her mother at the rape treatment center, he received the sealed biologic samples from Dr. Silla, and he delivered them to the police laboratory for testing. The detective also provided testimony regarding his interview with the defendant and the collection of the saliva sample from the defendant in 2008.

Sharon Hinz testified that she tested the vaginal swabs contained in C.A.’s rape treatment kit shortly after they had been collected, and that she found evidence of semen on those swabs. Ms. Hinz further testified that when she tested the defendant’s saliva, which was collected in 2008, the DNA analysis revealed that the defendant’s DNA matched the DNA found on the vaginal swabs contained in C.A.’s rape treatment kit.

Dr. Karen Simmons, who was the medical director of the rape treatment center at the time that Dr. Silla examined C.A., testified that she had trained all of the physicians and nurses at the center to insure that all procedures, including collection and packaging of biologic samples, were performed in the same way. Dr. Simmons also testified that the reports were similarly produced in a standardized manner whereby each report was witnessed by a nurse attending the examination and signed by the detective receiving the specimen. Dr. Simmons verified that Dr. Silla’s report complied with the standard procedures and did not evidence any signs of tampering.

Nurse Carter testified that she had assisted in approximately two to three hundred examinations at the rape treatment center. She also described the standard protocol for obtaining, labeling, and packaging the biologic samples collected during the examinations. Nurse Carter both verified Dr. Silla’s and her own signature on the two-page report of C.A.’s examination and testified that while she could not remember the specific case, her signature on the report evidenced that she had been present during C.A.’s examination. Nurse Carter identified the rape treatment kit and confirmed that the initials on the packet containing the vaginal swabs were Dr. Silla’s.

The defense counsel argued that because Dr. Silla, who collected the biologic samples from the victim and wrote the report documenting the examination, would not be available at trial to testify, the DNA analysis and report were inadmissible since the State could not establish that the biologic specimens analyzed by the forensic analyst, Sharon Hinz, were indeed those collected from C.A. Defense counsel also objected to Nurse Carter’s testimony based on Dr. Silla’s report as inadmissible hearsay. Lastly, defense counsel objected to the introduction of Dr. Silla’s report as a business record on the grounds that Nurse Carter was not a record custodian, the report constituted testimonial hearsay, and its introduction violated the defendant’s confrontation rights under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The trial court overruled defense counsel’s objections, Nurse Carter was allowed to proceed with her testimony, and the report was entered into evidence as a business record.

The jury found the defendant guilty of two counts of sexual battery with a deadly weapon and one count each of kidnapping without a firearm and of lewd and lascivious molestation of a child between the ages of twelve and sixteen. The trial court sentenced the defendant to two consecutive life sentences on the sexual battery and kidnapping charges, and to thirty years on the lewd and lascivious molestation charge. This appeal followed.

ANALYSIS

I. Admissibility of the DNA evidence and of Dr. Silla’s Report

A trial court’s ruling on the admissibility of evidence is subject to review for an abuse of discretion. Johnston v. State, 863 So.2d 271, 278 (Fla.2003). Therefore, absent a finding that the trial court abused its discretion, the appellate court will not disturb the trial court’s admission of evidence. Id.

The defendant claims that the trial court erred in admitting the DNA analysis and Dr. Silla’s report into evidence because: (1) the evidence was not properly authenticated by the physician who collected the biologic evidence from the victim during her gynecological examination at the rape treatment center; (2) Dr. Silla’s report documenting his examination of the victim and collection of the DNA evidence constituted testimonial hearsay and was not admissible as a business record; and (3) introduction of the report without providing the defendant with an opportunity to cross-examine Dr. Silla at trial, violated the defendant’s Sixth Amendment confrontation rights under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We disagree, and hold that: (1) the evidence was sufficiently authenticated; (2) Dr. Silla’s report was properly admitted as a business record; and (3) introduction of the DNA evidence and Dr. Silla’s report did not deprive the defendant of his confrontation rights.

A. Authentication and Admissibility as a Business Record

With regard to the defendant’s argument on the authentication of Dr. Silla’s report and its admissibility as a business record, we find that the report was sufficiently authenticated by the testimony of Nurse Carter and Dr. Simmons and it was properly admitted as a business record exception to the hearsay rule. Because the authentication and business record issues are intertwined and involve overlapping discussion we address them jointly below.

Authentication is a condition precedent to the admission of evidence. § 90.901, Fla. Stat. (2010). The party seeking to satisfy the authentication requirement must provide “evidence sufficient to support a finding that the matter in question is what its proponent claims.” Id. Moreover, while hearsay evidence is generally inadmissible, there are certain exceptions to this rule. Section 90.803, Florida Statutes (2010), specifies the type of hearsay evidence that may be admitted regardless of the availability of its declarant. One such exception, the business record exception, provides as follows:

(6) RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY.

(a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the customary custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. The term “business” as used in this paragraph includes a business, institution, association, profession, occupation, and calling of very kind, whether or not conducted for profit.

§ 90.803(6), Fla. Stat. (2010).

Courts have further limited the admissibility of certain business records, however, and have determined that while a testimonial report may possess indicia of a business record, it may not be admissible under the business record exception. State v. Johnson, 982 So.2d 672, 676-81 (Fla.2008) (listing and discussing cases providing indicia of testimonial reports). In doing so, the Florida Supreme Court has drawn a distinction between those records prepared and kept in the regular course of business and those records “prepared and kept at the request of law enforcement agencies and for the purpose of criminal prosecution.” Johnson, 982 So.2d at 677-78. Accordingly, the Court, in Johnson, determined that a laboratory report prepared at the Florida Department of Law Enforcement (“FDLE”) laboratory for the sole purpose of criminal prosecution was not admissible as a business record because it implicated the Sixth Amendment right to confrontation. Id. at 677-78. In addition to the fact that the report was not prepared at a hospital, other considerations which factored into the Court’s determination included the fact that the witness who was made available for cross-examination about the report was unable to answer questions “concerning chain of custody, methods of scientific testing, and analytical procedures.” Johnson, 982 So.2d at 677 (citing Rivera v. State, 917 So.2d 210, 212 (Fla. 5th DCA 2005)). The Florida Supreme Court held that admission of the report would impinge on the defendant’s confrontation rights because the witness could not testify about those areas of inquiry. Johnson, 982 So.2d at 681.

The defendant’s reliance on Johnson, however, is misplaced because Johnson is distinguishable. For example, unlike in Johnson, Dr. Silla’s report was prepared at a hospital, not at a law enforcement lab. Moreover, while arguably made for the principal purpose of assisting law enforcement and for a criminal trial, and the report is testimonial in nature, any testimonial aspect of Dr. Silla’s report only relates to the collection of the specimen from the victim. The report makes no statement, conclusion, or accusation about or against the defendant. Most importantly, however, while the person who wrote the report did not testify, Nurse Carter, who was present during the gynecological examination of and the collection of evidence from C.A., also witnessed the information documented in the report, signed off on the report, and was available for cross-examination. Furthermore, unlike in Johnson, the chain of custody was clearly established by Detective Signori, who received the rape treatment kit containing the report and the specimen from Dr. Sil-la, and by Sharon Hinz, the technician who actually performed the DNA testing of the items contained in the rape treatment kit and the saliva taken from the defendant and concluded that the DNA collected from the defendant and contained in the rape treatment kit matched. Both Detective Signori and Ms. Hinz testified that when they received the evidence envelope containing the vaginal swabs taken during C.A.’s examination, the envelope was sealed and showed no signs of tampering.

Unlike Johnson, Feneher v. State, 931 So.2d 184 (Fla. 5th DCA 2006), is directly on point and supports the trial court’s ruling in this case. In Feneher, as in this case, the defendant challenged the admission of a rape treatment kit into evidence because the nurse who had collected the samples contained in the kit did not testify at trial. Fencher, 981 So.2d at 185. There, as here, the sexual assault victim was accompanied by the police detective to a medical center for examination where biologic samples were collected, packaged in a sealed and signed kit, and given to the detective, who took the kit for testing to the police laboratory. Fencher, 931 So.2d at 185-86. Although Nurse Dickman, who had actually collected the samples did not testify at Fencher’s trial, another nurse at the center, Nurse Hanson, detailed the protocol at the center for the collection and preservation of biologic samples, explained that she had personally participated in the collection of these types of samples, and testified that she had seen hundreds of rape treatment kits generated by Nurse Dickman. Nurse Hanson verified Nurse Dickman’s handwriting on the rape treatment kit and confirmed that the kit did not show any signs of tampering. Fencher, 931 So.2d at 186. Additionally, the detective who had accompanied the victim to the center and received and delivered the rape treatment kit to the police laboratory, and the laboratory technician who had performed the DNA analysis, both testified that the package containing the sample had been sealed on delivery and showed no evidence of tampering. Id. The laboratory technician also described the tests that he had performed and the process by which he had determined that the DNA in the rape treatment kit matched that collected from Fencher. Fencher, 931 So.2d at 186-87. In admitting the report under the business record exception to the hearsay rule, the Fifth District found that Nurse Hanson’s testimony satisfied the requirements for admission set forth in Florida Rule of Evidence 90.803(6)(a). Fencher, 931 So.2d at 186.

We agree with the Fencher court’s analysis and holding on the authentication and admissibility issue and we similarly find that the testimony by Nurse Carter, who assisted Dr. Silla in his examination and collection of evidence from C.A., sufficiently authenticated the evidence and supported the introduction of Dr. Silla’s report as a business record exception to the hearsay rule. Nurse Carter, like Nurse Hanson in Fencher, identified and verified the signature of the person collecting the evidence and creating the report. Moreover, Nurse Carter explained that her initials on the report evidenced that she had actually been present at C.A.’s examination by Dr. Silla. Nurse Carter described the standard procedures followed for each examination conducted at the rape treatment center, including how the biologic evidence was obtained, labeled, packaged, and provided to the detectives. Her testimony was supplemented by that of the director of the rape treatment facility, Dr. Karen Simmons, who also described the standardized procedures used to obtain, label, package, and deliver the biologic evidence from rape victims at the rape treatment center. Any chain of custody issues were further eliminated by Detective Signori’s testimony that, like the detective in Fencher, he had accompanied the victim to the rape treatment center, waited while she was examined, received the sealed evidence directly from the person who had collected it, and submitted it to the police department for testing.

This cumulative testimony presented by the State was more than sufficient to authenticate the DNA evidence from the rape treatment kit, which was found to match the DNA collected from the defendant eight years later, and to establish that it was collected by Dr. Silla from C.A. during his examination of C.A. at the rape treatment center. We, therefore, agree with the trial court and find that Dr. Silla’s report, like the blood test report in Fencher, was properly admitted as a business record exception to the hearsay rule.

B. Sixth Amendment Implication

We turn now to the defendant’s Sixth Amendment argument challenging the admission of Dr. Silla’s report into evidence. Here, we also agree with the trial court and find that the admission of the report did not violate the defendant’s confrontation rights.

First and foremost, we note that the cases cited by the defendant to support his Sixth Amendment argument are inapposite and do not apply to the instant case. Those cases, tellingly, evidence the fatal flaw in the defendant’s Sixth Amendment argument. See, e.g., Belvin v. State, 922 So.2d 1046, 1054 (Fla. 4th DCA 2006) (holding that admission of a breath test affidavit without providing the defendant with the opportunity to cross-examine the technician who performed the test violated the defendant’s confrontation rights); Johnson v. State, 929 So.2d 4, 8 (Fla. 2d DCA 2005) (holding that admission of a lab test identifying a substance found on the defendant as cocaine without providing the defendant with the opportunity to question the law enforcement officer who actually performed the lab tests violated the defendant’s confrontation rights).

Notably, in those cases the confrontation right was placed at issue because the per: son actually performing the test was absent and unavailable for cross-examination at trial. In sharp contrast, in our case, unlike in Johnson and Belvin, the person who actually performed the DNA test, Sharon Hinz, testified and was cross-examined by defense counsel at trial. Moreover, Nurse Carter, who was present and assisted Dr. Silla in his examination and his collection of the evidence, also signed the report documenting the events, and she also testified and was cross-examined by defense counsel at trial. We therefore find that, because the defendant had an ample opportunity to confront and question Nurse Carter and Ms. Hinz at trial, his Sixth Amendment rights were not violated by the admission of Dr. Silla’s report.

II. Double Jeopardy

On the double jeopardy issue, however, we agree with the defendant and find that this record does not support a lewd and lascivious molestation conviction in addition to and separate from the sexual battery convictions. Because the record does not evidence, nor does the State identify, any act by the defendant that could serve as a basis for a separate conviction for lewd and lascivious molestation, the defendant’s conviction for lewd and lascivious molestation violates double jeopardy. We, therefore, reverse the conviction for lewd and lascivious molestation and remand with instructions to the trial court to vacate the conviction and sentence for lewd and lascivious molestation and to correct the judgment accordingly.

Affirmed in part, reversed in part, and remanded.


text:
    In re Robert B. PURSER.
    No. 2013-B-0875.
    Supreme Court of Louisiana.
    April 24, 2013.
   In re Disciplinary Counsel; — Other; Applying For Petition for Interim Suspension for Threat of Harm.

ORDER

| j Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that respondent, Robert B. Purser, Louisiana Bar Roll number 19981, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that the Office of Disciplinary Counsel may seek the appointment of a trustee(s) to protect the interests of respondent’s clients pursuant to the provisions of Supreme Court Rule XIX, § 27, if appropriate.

FOR THE COURT:

/s/ Jeannette T. Knoll Justice, Supreme Court of Louisiana


text:
    STATE of Louisiana v. Joe Bob CLARK.
    No. 12-K-1296.
    Supreme Court of Louisiana.
    May 7, 2013.

      Louisiana Department of Justice, James D. Caldwell, Attorney General, Emma Devillier, Collin Andrew Clark, Assistant Attorneys General, Jefferson Parish District Attorney’s Office, Paul D. Connick, Jr., District Attorney, Terry Michael Bou-dreaux, Assistant District Attorney, for Applicant.
    Louisiana Appellate Project, Gwendolyn Kay Brown, Baton Rouge, LA, for Respondent.
   PER CURIAM.

_JjWe granted the state’s application to consider the rulings below that defendant/respondent is not subject to Louisiana’s sex offender registration and notification provisions and therefore may not be prosecuted for failing to abide by those requirements. For reasons that follow, we reverse and remand this case for further proceedings.

On October 25, 2010, the state charged defendant by bill of information with failing to maintain his registration as a convicted sex offender by failing to appear for his quarterly registration with the Jefferson Parish Sheriffs Office, in violation of La. R.S. 15:542. Defendant filed a motion to quash the bill of information on grounds that he had fully satisfied any registration duty he may have had before establishing residence in Louisiana and that he was therefore under no legal obligation to register as a sex offender in this state. At the hearing on the motion to quash, the state and defénse stipulated to the following:

— Defendant was convicted of sexual assault of a child under the age of 17 in Texas on January 26, 1994, by way of a nolo contendere plea;
— Defendant completed his three-year sentence on December 27,1995. At the time of his conviction, Texas law did not require him to register as a |2sex offender, but Louisiana law required convicted sex offenders to register for 10 years from the date of their release from custody;
— On January 1, 2008, Louisiana extended the duration of sex offender registration from 10 to 25 years by 2007 La. Acts 460; La.R.S. 15:544(B)(2) (eff. January 1, 2008); — Defendant was convicted in Texas of grand theft auto on August 20, 2005, and sentenced to 26 months imprisonment;
— Before March 2009, defendant had never resided in Louisiana and had never registered as a sex offender here.

At the hearing, defendant argued, and the trial court agreed, that he had satisfied his duty to register in Louisiana by operation of law under the existing 10-year period by December 2005, and that he therefore had no duty to register when he came to Louisiana in March 2009. The ti’ial court thereby rejected the state’s argument that the registration period, whether measured by 10 years or 25 years, had not lapsed because it had not begun until defendant moved to this state in 2009. The trial court thus granted the motion to quash.

On the state’s appeal of that ruling, the court of appeal also agreed with defendant in a split panel decision that his “duty to register expired by operation of law in December 2005, 10 years after his release from custody and a little over two years prior to the effective date of the [2007] amendment.” State v. Clark, 11-0700, p. 6 (La.App. 5 Cir. 5/8/12); 95 So.3d 1108, 1111. On that premise, the majority concluded that the enlarged period of 25 years adopted in 2007 did not apply to defendant and did not revive his duty to register when he moved to Louisiana in 2009 because Section 6 of 2007 La. Acts 460 specifically provided |3that “[t]he provisions of this Act shall apply to all persons convicted of a sex offense or a criminal offense against a victim who is a minor ... regardless of the date of conviction, with the exception of those persons required to register under previous provisions of law whose obligations to register have been fulfilled and extinguished by operation of law.” (emphasis added). The majority also reasoned that defendant’s August 2005 conviction for auto theft in Texas did not change the analysis because the 10-year registration period had already lapsed by the time 2007 La. Acts. 460 went into effect on January 1, 2008, to add R.S. 15:544(C) (“If an offender begins the period of registration and notification and is subsequently incarcerated for the commission of a subsequent felony ... the period of registration and notification shall begin anew on the day the offender is released from incarceration, with no credit for the period of time in which the offender complied with registration and notification requirements prior to his incarceration.”).

Dissenting, Judge Rothschild expressed no disagreement with the majority’s statutory analysis but observed that “[b]y ruling on the evidence submitted at the hearing of the matter,” the trial court had “improperly considered the merits of the charges against defendant,” and thereby gone “beyond the scope of a finding that could be made at a motion to quash,” an error he considered repeated by the majority in making “a determination regarding the application of the statutory amendments and defendant’s innocence.” Clark, 11-0700, p. 2; 95 So.3d at 1111-12 (Rothschild, J., dissenting).

As a general matter, on the point underscored by Judge Rothschild’s dissent, a motion to quash does not serve as a vehicle for asserting defenses on the merits. State v. Perez, 464 So.2d 737, 739-40 (La.1985). However, an exception to this rule exists where the state has alleged or admitted facts under which a lawful C conviction for the charged offense is not possible. State v. Legendre, 362 So.2d 570, 571 (La.1978) (pre-trial motion to quash appropriate remedy if charges are based “upon an allegation of fact which cannot conceivably satisfy an essential element of the crime”). In the present case, the state’s stipulation of fact that defendant did not reside in this state until 2009, well over 10 years after his release from the penitentiary in Texas on his conviction for a sex offense, raised a purely legal question, far better suited for a court to resolve than a jury, of whether the state can sustain a conviction of defendant under any conceivable set of circumstances within the scope of its stipulations. The trial court and court of appeal majority therefore did not err by considering the merits of defendant’s argument and resolving the issue in advance of trial.

As amended by 2010 La. Acts 400, La. R.S. 15:544(A) currently provides that the required periods of registration run “from the date of the initial registration in Louisiana,” (emphasis added), and R.S. 15:544(D)(2), also added by the 2010 act, states that “[a]n offender required to register pursuant to the provisions of this Chapter shall receive credit only for the period of time in which he resides in this state and is in compliance with all registration and notification requirements of this state.” Residence is defined in the statute as “a dwelling where an offender regularly resides, regardless of the number of days or nights spent there.” La.R.S. 15:541(22). Further, registration must be “in person” with the sheriff of the parish in which the sex offender resides. La.R.S. 15:542(B)(1). Thus, under current law, a person in defendant’s position would not receive any credit for his time spent in Texas after his release from custody, or in Louisiana after he moved to this state in 2009 and before he complied with the registration requirements, and he would remain subject to prosecution under La.R.S. 15:542 for failing to comply with the registration requirements, even as extended from 10 to 25 years after his 15conviction, because this court has taken the position that the sex offender registration and notification provisions are remedial in nature, not punitive, and may apply retroactively without offending the Ex Post Facto Clauses of the United States and Louisiana Constitutions. Smith v. State, 10-1140 (La.1/24/12); 84 So.3d 487; State ex rel. Olivieri v. State, 00-0172 (La.2/21/01); 779 So.2d 735.

The legislature has, however, provided its own limit on the retroactive application of the 2007 La. Acts 460 in Section 6 of the act. Sex offenders who successfully complied with this state’s registration provisions before the effective date of the 2007 La. Acts 400 are exempt from the more onerous registration periods provided by the enlarged time period from 10 to 25 years when the sex offense involves a minor child under the age of 17 years. La. R.S. 15:544(B)(1). In effect, the legislature rendered it unnecessary to resolve a question left open by this court’s decision in Smith, which observed that “the period of time a sex offender is obligated to register may be extended during the time of his original registration 'period without violating the ex post facto clause.” Smith, 10-1140, p. 15; 84 So.Sd at 497 (emphasis added).

On the critical question of whether defendant’s duty to register had lapsed by December 2005, the original version of La. R.S. 15:544(A), as enacted by 1992 La. Acts 388, read as follows:

A person required to register under R.S. 15:542 shall comply with the requirement for a period of ten years after the conviction, if not imprisoned during that period in a penal institution.... If the person required to register is imprisoned or confined to a penal institution ... he shall comply with the registration provision for a period of ten years after release from his confinement or imprisonment. A convicted sex offender’s duty to register terminates at the expiration often years from, the date of initial registration, provided that during the ten year period the convicted sex offender does not again become subject to this Chapter, (emphasis added).

|fiThe court of appeal majority clearly had the phrase “release from his confinement or imprisonment” in mind when it observed that “[a]s agreed upon by the parties, Louisiana law at the time of defendant’s 1994 conviction provided that a sex offender register for a period of 10 years from the date upon which the offender is released from custody.” Clark, 11-0700 at 5; 95 So.3d at 1110. But important in the present case is the interpretation of the phrase “expiration of ten years from the date of initial registration,” which marked the terminating point of the duty to register. The court of appeal concluded that the phrase meant “the date [defendant’s] duty to register was first imposed,” id., which meant, in its view, the date defendant was released from custody in Texas. Id., 11-0700 at 5; 95 So.3d at 1110. The court of appeal majority thus viewed the 10-year registration period as the functional equivalent of a statute of limitations on the prosecution of a criminal offense for which the time period had run in defendant’s favor before it was enlarged by the legislature. On the. other hand, the state gives a literal reading to the phrase “date of initial registration” in support of its argument that the 10-year period did not begin to run until defendant moved to Louisiana and initially registered in this state as a sex offender in January 2009.

We subscribe to the view of the state because it offers a far more consistent reading of the legislation in its entirety according to its paramount governmental interest of protecting the citizens of this state, and it avoids presuming the legislature intended to impose on a Texas resident (even assuming that it could do so extraterritorially) the duty to register as a sex offender in Louisiana immediately upon his release from prison in Texas before he or she had ever set foot in this state and without regard to whether the offender subsequently established residence in this state. Statutory interpretation begins with “the language of the statute itself.” Cat’s Meow v. City of New Orleans, 98-0601, p. 15 (La.10/20/98); 720 So.2d 1186, 1198 (citations omitted); see also Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) (“[C]anons of construction are no more than rules of thumb that help courts determine the meaning of legislation, and in interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.... When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.”) (citations and internal quotation marks omitted). Further, “[t]he meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter, and placing a construction on the provision in question that is consistent with the express terms of the law and with the obvious intent of the Legislature in enacting it.” State v. Gutweiler, 06-2596, pp. 9-10 (La.4/8/08); 979 So.2d 469, 476 (citations omitted).

From their inception, 1992 La. Acts 388, Louisiana’s sex offender registration and notification provisions have applied to adults “residing in this state” convicted of a sex offense as defined in the statute. La.R.S. 15:542(A). They have addressed not only current Louisiana residents who served prison sentences for sex crimes committed in Louisiana, but also offenders convicted in other jurisdictions of sex crimes equivalent to Louisiana’s sex offenses who then move to this state. As to the former, under the original 1992 enactment, still in effect when defendant was released from confinement in Texas in 1995, the convicted sex offender was required to register with the sheriff in the parish of his residence within 30 days “after conviction or release from custody.” La.R.S. 15:542(B) (1992 La. Acts 388). As to the latter, the sex offender was required to register with the sheriff of the parish of his residence “within 45 days of [^establishing residence in Louisiana.” Id. Thus, the duty imposed by former La.R.S. 15:544(B) to register for a period of 10 years following release from “confinement or imprisonment” clearly applied only to Louisiana residents convicted of sex crimes in this state because La.R.S. 15:542(A) imposed the duty to register only on residents of this state. As to all offenders, however, La.R.S. 15:544(B) stated that the terminating point of the duty to register was 10 years from the date of “initial registration,” which must have meant, according to the plain meaning of the words, the date on which the sex offender actually registered with the sheriff in the parish of his residence in compliance with the law, including those offenders convicted of sex offenses in other jurisdictions who then established residence in this state.

Louisiana’s sex offender registration and notification law has a remedial purpose. From its inception in 1992, the law explicitly recognized that sex offenders “often pose a high risk of engaging in sex offenses, and crimes against victims who are minors even after being released from incarceration or commitment,” and that lack of information with respect to these offenders may result in a “failure to meet this paramount concern of public safety,” former La.R.S. 15:540.

Accordingly, under the original 1992 enactment, as under current law, defendant was not “a person required to register” in Louisiana until he established residence in this state. Thus, under former law, as under current law, defendant’s duty to register and maintain his registration for a period of 10 years did not terminate in 2005 because, as the state argues, it did not begin until 2009, when he | flestablished residency in this state, and he had not extinguished his obligation under the former law, much less under the current expanded registration periods, before his arrest in 2010. The proviso in Section 6 of 2007 La. Acts 400 is not the functional equivalent of a statute of limitation abating the prosecution of a remote criminal offense, but a self-imposed restraint on the state’s plenary power and authority to enact remedial legislation for the protection of the general public, and it applies only to those sex offenders who complied with existing law and fully discharged their obligation to register and give notice under the law before the enlarged time periods went into effect on January 1, 2008.

The judgments below are therefore reversed, and this case is remanded for further proceedings consistent with the views expressed herein.

REVERSED AND REMANDED.

      . The record indicates that defendant subsequently registered in Texas for life as a sex offender in June 2007. His registration in Texas has no bearing on the question whether he is subject to prosecution for failing to maintain his registration as a sex offender in Louisiana.

      . According to the state's brief, this stipulation is incorrect. The state indicates that defendant in fact registered as a sex offender in January 2009 when he moved to this state. Thereafter, as alleged in the bill of information, he failed to maintain his registration between March 6, 2009 and October 7, 2010. The state argues, and we agree, that the discrepancy has no bearing on the outcome here.

      . In 2007, the legislature reduced the time period for persons convicted of sex offenses in other jurisdictions to register in this state to three business days from establishing residence in Louisiana.

      . Current law carries forward that explicit declaration of legislative purpose as applied not only to sex offenders but also to sexually violent predators and child predators. See R.S. 15:540(A).