author: MORRIS, Judge.

text:
    Peter BARNHILL, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5108.
    District Court of Appeal of Florida, Second District.
    June 6, 2014.

      Michael P. Maddux, Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker and Christina Zuccaro, Assistant Attorneys General, Tampa, for Appellee.
   MORRIS, Judge.

Peter Barnhill appeals his sentences for twenty counts of possessing child pornography after he entered an open guilty plea to the trial court. Barnhill sought a downward departure sentence based on a need for specialized treatment for a mental disorder that is unrelated to substance abuse or addiction, pursuant to section 921.0026(2)(d), Florida Statutes (2010), as well as on his cooperation with law enforcement, pursuant to section 921.0026(2)®. We conclude that the trial court abused its discretion by failing to weigh the totality of the circumstances in this case and by, instead, denying Barn-hill’s request based on the trial court’s perceived general concern about cases involving these types of crimes and the trial court’s application of an incorrect standard during sentencing. We therefore reverse Barnhill’s sentences and remand for resen-tencing.

I. Background

In his motion for a downward departure, Barnhill sought a five-year prison sentence followed by a lengthy term of probation. As the motion related to section 921.0026(2)(d), Barnhill depended heavily on a forensic psychological evaluation conducted by Dr. Peter M. Bursten. Dr. Bursten determined that Barnhill was a low risk sexual offender who was “clearly amenable to engaging [in] therapeutic interventions.” Dr. Bursten also opined that Barnhill was not in denial of his “problem,” understood the wrongfulness of his actions, and was not “an antisocial or criminally predisposed individual.” Accordingly, Dr. Bursten believed there was a “negligible potential” that Barnhill would “engage in future acts of sexually related impropriety.” In making these findings, Dr. Bur-sten relied on a polygraph examination which revealed that Barnhill was truthful when denying any sexual contact with minors.

As Barnhill’s motion related to section 921.0026(2)®, Barnhill pointed out that he truthfully answered law enforcement’s questions, showed investigators his computer, and even pointed out a specific folder on the computer containing child pornography. Barnhill also noted that shortly after his arrest, he voluntarily sought treatment from a psychologist and that Dr. Bursten found that Barnhill was not attempting to minimalize his behavior.

At the sentencing hearing, Dr. Bursten testified consistently with his findings from the forensic psychological evaluation. During questioning, the trial court inquired of Dr. Bursten as to whether Barn-hill had “the desire to touch” and Dr. Bursten admitted he could not answer that question. The trial court subsequently expressed concern that Barnhill had been viewing pornographic images of young children since he himself was young; the court commented that Barnhill categorized the pictures, which was “scary,” and the court asked Dr. Bursten whether that fact made the risk factor go up. In response, Dr. Bursten noted that Barnhill was, at that time, forty-one years of age and that there was no evidence he had engaged in any “hands-on” sexual impropriety nor was there any “indication of going beyond that boundary.” Dr. Bursten also noted that Barnhill had cooperated with law enforcement, was intellectually astute, and had maintained steady employment in a high-tech occupation.

Barnhill then presented testimony from his employer that he had been a dedicated, hardworking employee since 1986 and testimony from a Hillsborough County sheriffs deputy that Barnhill had cooperated during the investigation.

During closing, Barnhill primarily emphasized Dr. Bursten’s findings in arguing that a downward departure was warranted, though Barnhill also reminded the court that he had community support. The State acknowledged that it was not contesting Dr. Bursten’s testimony but reiterated the issue that the court was concerned with: whether Barnhill had an interest in touching a child. The State then requested that Barnhill be sentenced to thirty years in prison on count I and to fifteen years in prison on counts II through XX to run consecutive to the sentence on count I.

Ultimately, the trial court denied Barn-hill’s request for a downward departure, sentencing him to fifteen years in prison on count I. As to counts II through XX, the trial court sentenced Barnhill to seven years in prison on each count, followed by eight years of sex offender probation, with those sentences running consecutive to the term on count I, but concurrent to each other. Thus, Barnhill received a total lawful prison sentence of twenty-two years.

In imposing the sentence, the trial court stated:

I want to assure Mr. Barnhill, and I want to make it clear on the record there is not one thing that the [S]tate of Florida can say, have they ever said, nor will they ever be able to say in the future that is going to scare me or cause me the concern that would make me give out some lengthy sentence.
I give out sentences that I believe are appropriate, and I’m telling you this, and don’t — please don’t take anything personal. I just want you to know that I struggle on these cases, not just Mr. Barnhill’s, but these types of cases every single day of my life since I’ve been put into this division, and there’s not one day that goes by, not one, that I don’t think about these cases.
Mr. Barnhill is one of many individuals that come in front of me that have absolutely no criminal record whatsoever, none, that live a dark side, if you will, that no one knows about. Family members don’t know about, teachers don’t know about, business associates don’t know about[J [T]he only people that know about it is Mr. Barnhill and other persons that have like interests that he would choose to know about his interests as well.
But the vast majority of the people that come in front of me in this courtroom ... don’t have prior criminal histories ....
This child pornography phenomenon, if you will, is becoming an epidemic. It’s bigger, I think, than what any of us in this room or in law enforcement circles absolutely realize .... It’s an epidemic. I didn’t know until today, and Dr. Bursten has testified in front of me on numerous occasions, so has Dr. Carpenter, as well as other psychologists, that the new study has come out [and] the percentage is 50/50 of child pornographers having hands-on [contact]. That is scary. That is — that is scary. We’re not talking about a fantasy.
And the psychologists in their book ... list it as a fantasy[.][P]edophiles are real. They’re real. They may have some twisted fantasy about observing prepubescent children in bondage situations and being raped and having sexual intercourse and oral intercourse, being sodomized, but even though that might be a fantasy of watching those things on a computer while they stimulate themselves, it’s real when they touch. And when they touch, that child is damaged forever, forever.
And maybe it’s what some people don’t even — don’t even think about. It’s just a picture. It’s not just a picture. This is a child who has actually been manipulated either by fear or because a person is so much older and can control them and grooms them to go into these sexual scenarios, and even though you get some of these pictures where you get a six year old [sic] or seven year old [sic] and it appears to be, and I’ve seen them, I’ve seen them in this courtroom, where they appear in the video or on the pictures to be enjoying the act, they’ve been groomed.
That first time they are — they were raped and they are being raped each time as it happens. That’s what scares me. That is what scares me in these types of cases.
But I guess first and foremost, I want you to know that there is not one thing that the [S]tate of Florida can, has or ever will be able to say that is going to cause me to sentence someone that I don’t believe the sentence is appropriate, for whatever that is worth.
... I honestly believe that this is an epidemic of greater proportions than any of us in this room ... ever realized.
And there is no magic answer as to whether you’re going to reoffend, or you’re not going to reoffend in this particular case, whether you’re going to touch or you’re not going to touch....
And some people say, well, you’ve taken my life away or you’ve taken my husband’s life away or you’ve taken my father’s life away, but in these types of cases, if you touch, you take the life away of a child[.] [A]nd I cannot tell you how many times I have seen in this courtroom where we have attempted to pick a jury[,] the numbers of men and women, adult men and women, some of which are older than I am [who] have stood at the bench in front of me with tears rolling down their faces because they were sexually abused as a child.
The question is whether or not — first of all, the court is going to downward depart. After listening to all of the witnesses and the presentation not only by your attorney and your family and friends ... as well as listening to the presentation ... by the [S]tate of Florida, I’m going to find that there is no legal reason at this point in time to downward depart.

On appeal, Barnhill argues the trial court erred by denying his motion for a downward departure pursuant to sections 921.0026(2)(d) and (2)(i).

II. Scope of review

We first address the State’s argument that we lack authority to review the trial court’s decision to deny a downward departure sentence in this case based on our opinion in Patterson v. State, 796 So.2d 572 (Fla. 2d DCA 2001), review denied, 817 So.2d 849 (Fla.2002). There, we held that section 924.06(1), Florida Statutes (Supp. 1998), did not give us power to review a trial court’s discretionary decision to deny a downward departure sentence. We determined that the appellant’s sentences were not illegal and did not contain any other error we were empowered to correct under section 924.06(1). Id. at 574.

Although the supreme court denied review in Patterson and has never expressly considered this court’s scope of review discussed in Patterson, it is obvious that the subsequent decisions of both the supreme court and this court, relying on Banks v. State, 732 So.2d 1065 (Fla.1999), have effectively overruled or disapproved that discussion in Patterson.

The Criminal Appeal Reform Act of 1996 caused many discussions about the extent of appellate jurisdiction and scope of review in criminal cases. Following the Criminal Appeal Reform Act, the State sometimes argued that a defendant could not challenge a sentence except “on the ground that it is illegal” or if the sentence was “imposed outside the range permitted by the guidelines authorized by chapter 921.” Ch. 96-248, § 5, at 955; § 924.06(d), (e), Fla. Stat. As reflected in the 1996 court commentary to the amendments to Florida Rule of Appellate Procedure 9.140, the rules of procedure expanded the scope of review on appeal to include “unlawful” sentences. At the time Patterson was written, there was doubt about whether the rule of procedure could expand upon the statute. However, since that time there have been innumerable reported cases correcting sentencing errors that rendered a sentence unlawful but not completely illegal. The scope-of-review discussion in Patterson simply is not in line with current precedent. Accordingly, we hereby recede from that portion of our decision in Patterson.

III. The trial court erred by failing to consider the totality of the circumstances of Barnhill’s case and by instead imposing a general standard based on the type of case involved.

A trial court’s decision whether to depart from the guidelines is a two-part process. First, the court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it (step 1). Legal grounds are set forth in case law and statute, and facts supporting the ground must be proved at trial by “a preponderance of the evidence.” This aspect of the court’s decision to depart is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its ruling.

Second, where the step 1 requirements are met, the trial court further must determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case. In making this determination (step 2), the court must weigh the totality of the circumstances in the case, including aggravating and mitigating factors. This second aspect of the decision to depart is a judgment call within the sound discretion of the court and will be sustained on review absent an abuse of discretion.

Banks, 732 So.2d at 1067 (footnotes omitted).

Ordinarily, we would review the trial court’s discretionary decision regarding whether to impose a downward departure for abuse of discretion. Id. But because the issue here revolves around the trial court’s applying an incorrect standard in determining whether to exercise its discretion, we apply a de novo standard of review. See Cromartie v. State, 70 So.3d 559, 563 (Fla.2011) (holding that issue of whether trial court violated due process by applying an “arbitrary policy of rounding up sentences” is a question of law subject to de novo review); Pressley v. State, 73 So.3d 834, 836 (Fla. 1st DCA 2011) (applying de novo review to trial court’s policy of refusing to consider youthful offender sentencing).

We first note that Barnhill primarily framed his argument as one involving the trial court’s rejection of uncontrovert-ed evidence. But while it is true that the State did not put on rebuttal evidence and the trial court did not explicitly address Barnhill’s evidence, the ultimate issue in this case is whether the trial court properly applied the two-part test as set forth in Banks. We conclude that the trial court did not, instead electing to apply a general standard based on the nature of the crimes involved.

We recognize that these types of cases are disturbing by their very nature and that trial judges must deal with them on a regular basis. As a result, we are not unsympathetic to the difficulty that each trial judge must face when presiding over such cases. However, trial judges are required to rise above the disturbing nature of these and other crimes and to provide every defendant a fair opportunity to be heard by an impartial judge who will consider only the evidence presented to the court within that case. See Williams v. State, 143 So.2d 484, 488 (Fla.1962) (noting that litigants have the right to have their cases heard in a “[calm] and dispassionate environment before an impartial judge and have their rights adjudicated in a fair and just manner”).

While the trial judge in this case did attempt to circumscribe himself by asserting that the State’s arguments would not cause him to impose an inappropriate sentence, it is clear from the rest of the trial judge’s comments that evidence from other hearings factored into his decision not to downwardly depart. It is also apparent that in considering Barnhill’s sentence, the trial judge lumped Barnhill with all other similarly charged defendants irrespective of the testimony that Barnhill presented at sentencing.

“The very foundation of our system of justice mandates that judges be completely neutral and impartial.” M.B. v. S.P., 124 So.3d 358, 365 (Fla. 2d DCA 2013). Where a trial judge permits his emotions to guide him away from this principle, we must reverse. See Williams, 143 So.2d at 488. The decision not to downwardly depart and the sentence ultimately imposed in this case may, in fact, be appropriate. But even to the most casual observer, it could not be believed that Barn-hill received a hearing in a dispassionate environment before a fair and impartial judge. Rather, the transcript reflects the trial judge here was deeply concerned not by the facts specific to Barnhill’s case but by the general nature of the crimes involved and the potential for defendants charged with these types of crimes to progress into crimes involving “hands-on” contact with children. Thus the trial judge at least implied that he would not consider a downward departure in child pornography cases as a general policy.

We conclude that the application of such a general policy constitutes a due process violation resulting in fundamental error. See Cromartie, 70 So.3d at 563; Pressley, 73 So.3d at 836. Therefore, while we affirm Barnhill’s convictions, we reverse the sentences imposed and remand for resen-tencing before a different judge. In doing so, we do not suggest that Barnhill is entitled to a downward departure sentence pursuant to either section 921.0026(2)(d) or (2)(i), but he is entitled to be sentenced at a proceeding wherein the trial judge considers the totality of the circumstances based on the evidence presented in this case.

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

DAVIS, C.J., and ALTENBERND, NORTHCUTT, CASANUEVA, SILBERMAN, KELLY, VILLANTI, WALLACE, LaROSE, KHOUZAM, CRENSHAW, BLACK, and SLEET, JJ„ concur.

      . Ch. 96-248, § 5, at 955, Laws of Fla.

      . We note that the State appears to argue that the requirements of step 1, as it relates to grounds for departing downward under section 921.0026(2)(i), cannot be met in this case due to a waiver by Barnhill. The State asserts that Barnhill failed to request a downward departure on that basis below. However, the issue was clearly raised in Barnhill's motion though the wrong subsection was cited. It is trae that Barnhill did not clearly argue this point at the sentencing hearing, but he did briefly elicit testimony regarding his cooperation with law enforcement. Thus we find no merit to the State’s waiver argument. Furthermore, the issue of whether Barnhill presented sufficient evidence to establish a legal ground for departure need not be addressed given our disposition on the due process issue as explained herein.

      . Barnhill also raised the issue of whether, under section 921.0026(2)(d), a defendant must still establish that his mental disorder requires treatment that is not available in the Department of Corrections. We acknowledge that this court, as well as the First and Third District Courts of Appeal, has required such proof. See, e.g., State v. Hall, 981 So.2d 511, 514 (Fla. 2d DCA 2008); State v. Scherber, 918 So.2d 423, 424-25 (Fla. 2d DCA 2006); State v. Wheeler, 891 So.2d 614, 616 (Fla. 2d DCA 2005); State v. Ford, 48 So.3d 948, 950 (Fla. 3d DCA 2010); State v. Holmes, 909 So.2d 526, 528 (Fla. 1st DCA 2005). We also acknowledge that both the Fifth and Fourth District Courts of Appeal have receded from their prior case law and certified conflict with the opinions from this court and the First and Third District Courts of Appeal. See, e.g., State v. Owens, 95 So.3d 1018, 1019-21 (Fla. 5th DCA 2012) (en banc); State v. Chubbuck, 83 So.3d 918, 921-23 (Fla. 4th DCA 2012) (en banc), review granted, No. SC12-657 (Fla. Dec. 17, 2012). Oral argument was conducted in the Chubbuck case before the Florida Supreme Court on September 17, 2013. Barnhill asks this court to recede from our prior case law and adopt the position taken in Owens and Chubbuck. However, we need not address that issue as it was not addressed by the trial court and is not dispositive of our decision.


source: Caselaw Access Project

author: PER CURIAM. THOMAS, J.,

license: Public Domain

text:
    Joseph P. HOLL, III, Appellant, v. UNITED PARCEL SERVICE and Liberty Mutual Insurance, Appellees.
    No. 1D13-2745.
    District Court of Appeal of Florida, First District.
    June 9, 2014.
    Bill McCabe, Longwood, and Michael Keough, New Port Richie, for Appellant.

      Edward C. Duncan III of the Law Office of J. Christopher Norris, Fort Myers, for Appellees.
   PER CURIAM.

Joseph P. Holl, a UPS tractor-trailer operator, appeals an order denying him temporary total disability (TTD) benefits beyond the 401-week limitation in section 440.15(3)(c), Florida Statutes (2002). The applicable portion of the 2002 version of section 440.15 at issue reads, in relevant part:

(3) PERMANENT IMPAIRMENT AND WAGE-LOSS BENEFITS—
(c) Duration of temporary impairment and supplemental income benefits.— The employee’s eligibility for temporary benefits, impairment income benefits, and supplemental benefits terminates on the expiration of 401 weeks after the date of injury.

Holl argued that this provision does not apply to the temporary disability benefits at issue. The JCC ruled to the contrary, construing subsection (3)(c) — in conjunction with the remainder of section 440.15— as providing “that an injured worker is subject to a period of 401 weeks from the date of injury within which temporary benefits, impairment benefits and supplemental income benefits may be sought. Once such benefits are determined to be due, the worker is entitled to be paid up to a maximum of 104 weeks of these benefits, so long as the 401-week period has not expired.” Holl appeals this interpretation, one we review de novo. See Lombardi v. S. Wine & Spirits, 890 So.2d 1128, 1129 (Fla. 1st DCA 2004).

The interpretive question is whether TTD benefits are within the class of “temporary benefits” to which the 401-week limitation in the 2002 version of the statute applies. Although subsection (3)(c) is contained within a subsection entitled “PERMANENT IMPAIRMENT AND WAGE-LOSS BENEFITS,” it imposes the 401-week limitation on three categories of benefits: “temporary benefits, impairment income benefits, and supplemental benefits.” The latter two categories are mentioned explicitly in the titles to subsection (3)(a) (entitled “Impairment benefits”) and subsection (3)(b) (entitled “Supplemental benefits”).

The former is included in subsection (3)(c), whose title is “Duration of temporary [sic] impairment and supplemental income benefits ” (we note that a comma between “temporary” and “impairment” apparently is missing). While the placement of a limitation on “temporary benefits” in this subsection may be somewhat out of place, we cannot simply ignore the Legislature’s intent (as of 2002) that such benefits be limited to 401 weeks; that is what subsection (3)(c) directs, and TTD benefits are within the classification of “temporary benefits” to which the statute applies.

This plain reading of subsection (3)(e) is supported by the fact that because impairment and supplemental benefits are based on permanent medical impairments, though paid only temporarily, they are distinct categories within the three listed in the statute; they are, in that sense, not “temporary benefits.” Specifically, impairment benefits are payable after an injured worker reaches maximum medical improvement (MMI), and continue until the earlier of the worker’s death or, for dates of accident prior to October 1, 2003, three weeks for each percentage point of impairment (or the expiration of 401 weeks after the accident). See § 440.15(3)(a)3., Fla. Stat. (2002); Ch. 03-412, § 18,- at 3924, Laws of Fla. (changing basis for impairment benefits to two weeks per percentage point of impairment for each of the first ten percentage points, three weeks for each of the next five percentage points, four weeks for each of the next five percentage points, and six weeks for each of the remaining percentage points). Supplemental benefits are payable “as of the expiration of the impairment period” if certain other requirements are met; thus, they are also payable only after the injured worker has reached MMI. See § 440.15(3)(b), Fla. Stat. (2002). Although the language in subsection (3)(c) regarding 401 weeks was removed from chapter 440 on the same day supplemental income benefits were likewise removed from the Florida Workers’ Compensation Law (October 1, 2003), see chapter 03-412, section 18, at 3922-24, Laws of Florida, its removal does not necessarily establish a legislative intent to tie this limitation solely to supplemental benefits as opposed to temporary disability benefits; this is so, particularly given that the 401-week limit undoubtedly applied to impairment benefits, yet impairment benefits were not removed from the statute.

Additionally, the 401-week cap appears to include temporary disability benefits in the following way. An injured worker is at first entitled to temporary disability benefits as he recuperates, up to a combined total of 104 weeks of payment. See § 440.15(2)(a) & (4)(b), Fla. Stat. (2002). Upon attaining MMI, the injured worker becomes entitled to three weeks of benefits for each percentage point of impairment. See § 440.15(3)(a)3., Fla. Stat. (2002). An injured worker can, in theory, obtain up to a 99 percent impairment rating. See 1996 Florida Uniform Permanent Impairment Rating Schedule, § 15, at 116— 17 (available at http://genexservices.webl2. hubspot.eom/Portals/171716/docs/1996% 20FL% 20Impairment% 20Rating% 20Schedule.pdf). Thus, an injured worker can get 99 times three weeks, or 297 weeks of impairment benefits. The total weeks of available benefits, then — 104 plus 297— is 401 weeks of benefits.

We reject the argument that the 401-week limit does not apply to temporary disability benefits due to the 104-week limit on temporary disability benefits, defined by case law as a “bank” to draw from rather than a cap or time limit by which benefits must be taken, see Auman v. Leverock’s Seafood House, 997 So.2d 476, 478-79 (Fla. 1st DCA 2008). There is nothing inherent in the nature of a “bank” of benefits that would preclude a further limit on the same group of benefits.

All of the foregoing reasons convince us that the JCC did not err here.

AFFIRMED.

MARSTILLER and MAKAR, JJ., concur.

THOMAS, J., dissents with opinion.

THOMAS, J.,

dissenting.

I respectfully dissent. By interpreting the statute as a whole and properly applying the appropriate canons of statutory construction, we should hold that the statute of repose does not apply to limit eligibility to temporary disability benefits. See State v. Webb, 398 So.2d 820, 824 (Fla.1981) (“To determine legislative intent, we must consider the act as a whole[.]”); see generally Scalia & Garner, Reading Law: The Interpretation of Legal Texts 156, 221 (1st Ed. 2012) (discussing canons of statutory construction known as the “Scope-of-Subparts Canon” and “Title-and-Headings Canon”).

Applying the “Scope-of-Subparts Canon,” sub-subsection 440.15(3)(c), Florida Statutes (2002), would apply only to subsection (3), not to the rest of section 440.15. See Scalia & Garner, 156 (“In the following passage [illustrated], ... the if-clause in subpart (C) relates only to (C).”). Further, in applying the “Title-and-Headings Canon,” the headings of both subsection 440.15(3) (“Permanent impairment and wage-loss benefits”) and sub-subsection 440.15(3)(c) (“Duration of temporary impairment, and supplemental income benefits”) would limit the application of the sentence in sub-subsection 440.15(3)(c) to impairment and supplemental benefits. Statutory headings are evidence of legislative intent. Webb, 398 So.2d at 824-25 (“In determining legislative intent, we must give due weight and effect to the title of section 901.151, Florida Statutes (1977), which was placed at the beginning of the section by the legislature itself. The title is more than an index to what the section is about or has reference to; it is a direct statement by the legislature of its intent.”); Scalia & Garner, 221 (“In modem practice, however, ‘the title is adopted by the legislature.’ ”).

Because the 401-week limit is found only in a sub-subsection of subsection 440.15(3), which sub-subsection pertains to impairment benefits and supplemental benefits (which are benefits paid for a temporary period only), the 401-week limitation in sub-subsection 440.15(3)(c) applies only to impairment and supplemental income benefits, and does not limit temporary total disability or temporary partial disability benefits. Cf. Cook v. Blazer Fin. Servs., Inc., 332 So.2d 677, 679 (Fla. 1st DCA 1976) (“A court may look to the title of an act to aid in the interpretation of the act but the meaning may not be enlarged by the title.”).

In addition to the above analysis, administrative code rules indicate the Division of Workers’ Compensation seemingly applies the 401-week limitation to supplemental benefits, but not temporary disability benefits. Compare Fla. Admin. Code R. 69L-3.0191 (titled “Temporary Disability Benefits (Dates of Accident January 1, 1994 through September 30, 2003)”) with Fla. Admin. Code R. 69L-3.0193(5) (titled “Supplemental Income Benefits (Dates of Accident January 1, 1994 through September 30, 2003)”). We should give deference to the agency’s interpretation which is relevant here. See Okeechobee Health Care v. Collins, 726 So.2d 775, 778 (Fla. 1st DCA 1998) (“A reviewing court properly defers on questions of statutory interpretation to the agency to which the Legislature has given the responsibility and authority to administer the statute, unless the interpretation is clearly erroneous.”).

Finally, both subsections 440.15(2) and (4) contain express limitations on the duration of temporary benefits (a combined total of 104 weeks) with no cross-reference to the 401-week limitation found in sub-subsection 440.15(3)(c). This further indicates the Legislature’s intent that the 401-week statute of repose does not apply to temporary total or temporary partial disability benefits, but only to impairment income and supplemental benefits, which are not at issue here.

We should reverse the JCC’s ruling and remand with directions to order Appellees to provide Appellant with the temporary disability benefits to which he is entitled under law.


author: PER CURIAM.

text:
    F.T.M.I. OPERATOR, LLC, and United States Fire Insurance Co., Petitioners, v. Anne Marie LIMITH, Respondent.
    No. 1D13-5357.
    District Court of Appeal of Florida, First District.
    June 9, 2014.

      William H. Rogner and Andrew R. Bo-rah of Hurley, Rogner, Miller, Cox, War-anch & Westcott, P.A., Winter Park, for Petitioners.
    Bill McCabe, Longwood, for Respondent.
   PER CURIAM.

The Employer/Carrier (E/C) in this workers’ compensation case filed a petition for writ of certiorari to review a non-final order of the Judge of Compensation Claims (JCC) denying its motion to dismiss for lack of prosecution under section 44025(4)©, Florida Statutes (2011). The motion followed the E/C’s unsuccessful motion to compel Claimant to file a verified motion for attorney’s fees under Florida Administrative Code Rule 60Q-6.124(4) and was filed one day after the statute of limitations would have run in this matter but for the JCC’s reservation of jurisdiction over a claim for attorney’s fees asserted in a petition for benefits (PFB) that was otherwise resolved in January 2012.

The E/C argues that it is irreparably harmed because the denial of its motion to dismiss the pending claim for attorney’s fees and costs has “forever stripped” its right to assert the statute of limitations. See Black v. Tomoka State Park, 106 So.3d 973 (Fla. 1st DCA 2013) (reaffirming rule set forth in Longley v. Miami-Dade Cnty. Sch. Bd., 82 So.3d 1098 (Fla. 1st DCA 2012), that pending claims asserted via PFB for attorney’s fees and costs toll statute of limitations). The E/C, however, failed to present any compelling authority indicating it cannot raise and maintain a statute of limitations defense for all benefits that Claimant might later claim (including the at-issue claim for attorney’s fees) based on its position that the JCC erred in denying the motion to dismiss. In fact, precedent from this court would indicate otherwise. See Orange Cnty. Sch. Bd. v. Perkins, 619 So.2d 1, 2 n. 1 (Fla. 1st DCA 1993) (explaining appellate court denied e/c’s petition for writ of cer-tiorari challenging JCC’s order denying motion to dismiss claim for lack of prosecution, and that e/c “again raised the issue of failure to prosecute at the merits hearing” after which, appellate court addressed merits of order denying motion to dismiss).

Because the order denying the E/C’s motion to dismiss for lack of prosecution can be reviewed on subsequent plenary appeal, the E/C failed to demonstrate the requisite “irreparable harm” and, thus, its certiorari petition must be dismissed for lack of jurisdiction. See Citizens Property Ins. Co. v. San Perdido Ass’n, Inc., 104 So.3d 344, 351 (Fla.2012) (“[BJefore certio-rari may be used to review non-final orders, the appellate court must focus on the threshold jurisdictional question: whether there is a material injury that cannot be corrected on appeal, otherwise termed as irreparable harm.”); Elms v. Castle Constructors Co., 109 So.3d 1274, 1276 n. * (citing Bared & Co. v. McGuire, 670 So.2d 153, 157 (Fla. 4th DCA 1996) (en banc), for the' proposition that dismissal, rather than denial, is the proper disposition of petition for writ of certiorari when the appellate court determines that there has been an insufficient showing of irreparable harm).

DISMISSED.

WETHERELL, MARSTILLER, and SWANSON, JJ., concur.

       We recognize the conundrum faced by the E/C where, as here, the JCC retains jurisdiction over a pending claim for attorney's fees but declines to compel the filing of a fee motion and then declines to dismiss the underlying PFB for lack of prosecution when Claimant takes no action to adjudicate the fee claim; however, the solution to this problem (assuming one is needed) lies not with an expansion of this court’s certiorari jurisdiction but rather with an amendment to chapter 440 or the 60Q rules to establish deadlines for the adjudication of fee claims, see Villazano v. Horace Bell Honey Co., 928 So.2d 515, 516 (Fla. 1st DCA 2006) (holding that "the JCC did not have the authority, pursuant to either statute or rule, to set a time limitation for filing the verified petition for fees”); Shackleford v. CTL Distribution, 25 So.3d 667, 668 (Fla. 1st DCA 2010) (holding that JCC lacked authority to impose time limitation on filing of motion for costs, but suggesting that "those entities possessing the power to impose such a time limit might wish to consider the advisability of doing so”); or, perhaps, an amendment to the rules of appellate procedure to authorize interlocutory appeals of orders denying motions under rule 60Q-6.124(4) or orders denying motions to dismiss for lack of prosecution. Cf. Keck v. Eminisor, 104 So.3d 359, 364-65 (Fla.2012) (refusing to expand certiorari jurisdiction to review order denying motion to dismiss based upon immunity from suit in section 768.28(9)(a), Florida Statutes, but directing rules committee to propose amendment to Florida Rule of Appellate Procedure 9.130 to authorize interlocutory appeals of such orders in light of the policy considerations at issue). Alternatively, the issue framed by the petition in this case could likely be avoided altogether if JCCs, in addressing motions to compel the filing of a verified motion for attorney’s fees and costs filed under rule 60Q-6.124(4), exercised the discretion permitted by this rule in such a way to further the obvious purpose of this administrative edict — to facilitate the expeditious and final disposition of claims for attorney’s fees and costs that remain pending for no reasonable purpose. That is, it would seem appropriate for a JCC to grant an employer or carrier's motion seeking to compel a verified motion on a pending claim for attorney’s fees and costs, unless the Claimant establishes, and the JCC finds, that there is a reasonable or justifiable purpose for permitting the claims to remain pending and unacted upon.


author: WETHERELL, J.

text:
    Johnnie J. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2542.
    District Court of Appeal of Florida, First District.
    June 10, 2014.

      Nancy A. Daniels, Public Defender, Tallahassee; Terry P. Roberts of Law Office of Terry P. Roberts, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Samuel B. Steinberg and Jay Kubiea, Assistant Attorneys General, Tallahassee, for Appellee.
   WETHERELL, J.

Johnnie J. Jackson appeals the judgment and sentence imposed after he was found guilty of burglary of a dwelling and battery. Jackson argues that the trial court erred in admitting evidence of two previous incidents involving the victim in this case. We agree. Accordingly, we reverse Jackson’s judgment and sentence and remand for a new trial.

Factual and Procedural Background

Doris Woodard, Jackson’s ex-girlfriend, claimed that, on March 29, 2011, Jackson broke into her apartment and attacked her with a knife. Jackson was arrested and charged with burglary of a dwelling with assault or battery (Count I) and aggravated battery with a deadly weapon (Count II). He was also charged with aggravated stalking (Count III) for acts occurring between October 1, 2009, and March 29, 2011. All three counts were tried together.

Prior to trial, the State filed notice of its intent to introduce collateral-crime, or ‘Williams rule,” evidence to prove Jackson’s intent to commit the charged crimes. Jackson filed a motion in opposition to the notice and renewed his objection to the evidence at the outset of the trial. The trial court overruled the objection and allowed the State to introduce the evidence, after giving the following limiting instruction:

Ladies and gentlemen, the evidence you’re about to receive concerns evidence of other crimes, wrongs or acts allegedly committed by the defendant and that can be considered by you for the limited purpose of' proving intent on the part of the defendant and you shall consider it only as it relates to that issue. The defendant is not on trial for a crime, wrong or act that is not included in the Information.
And to explain that a little bit more is the three charges in the Information relate to a particular date and time. You’re going to hear some testimony about an incident or two from another date or time. Mr. Jackson is not charged with a crime having occurred on that date. That information is coming to you only for the limited purpose of proving the intent on the part of the defendant as it relates to the case he’s on trial for. If you understand that, hopefully[]

Additionally, the final instructions to the jury stated:

The evidence which has been admitted to show other crimes, wrongs or acts allegedly committed by the defendant we talked about before, that would be the earlier incidents, should be considered by you only as evidence as it relates to proof of intent on the part of the defendant. Those are not separate crimes to have him be found either guilty or not guilty of.
Keep in mind that a separate crime is charged in each count of the Information and while they’ve been tried together, each crime and the evidence applicable to it must be considered separately by you ....

The Williams rule evidence presented by the State consisted of testimony about two prior incidents in which Jackson allegedly attacked Woodard. The first incident occurred on June 1, 2010, when according to Woodard and another witness, Jackson drug Woodard from a car, choked her, and threatened to kill her. The second incident occurred on November 16, 2010, when according to Woodard, she invited Jackson into her apartment where he pushed her, punched her, and hit her over the head with a stereo speaker. In addition to the testimony of Woodard and the witness to the June event, the Williams rule evidence included testimony from the police detective who investigated the prior incidents as well as photographs of Woodard’s injuries from those incidents taken by the detective.

The jury found Jackson guilty as charged on Count I, guilty of the lesser-included offense of battery on Count II, and not guilty on Count III. The trial court sentenced Jackson to 20 years on Count I and 365 days for battery, to be served concurrently. Jackson was granted a belated appeal. Jackson v. State, 112 So.3d 146 (Fla. 1st DCA 2013).

Analysis

We review the trial court’s admission of the Williams rule evidence for an abuse of discretion. See LaMarca v. State, 785 So.2d 1209, 1212 (Fla.2001).

“[C]ollateral-crime evidence ... is admissible to prove a material fact in issue, but is inadmissible when the evidence is relevant solely to prove bad character or propensity.” Wright v. State, 19 So.3d 277, 291-92 (Fla.2009) (emphasis in original) (citing section 90.404(2)(a), Florida Statutes). A material fact is not at issue simply because it relates to an element of the charged crimes and the defendant has pled not guilty. See Thomas v. State, 599 So.2d 158, 163 (Fla. 1st DCA 1992) (“Whether a relevant material fact is in issue is not necessarily established by the defendant’s plea of not guilty (which denies each essential element of the charged offense), but must be determined from the particular facts and circumstances involved in each case, i.e., has the defendant put such fact in issue.”). If there is not a genuine dispute over a material fact that the Williams rule evidence is offered to prove, “then the probative value of such evidence necessarily has significantly less importance than its prejudicial effect, and the evidence should be excluded under section 90.403.” Id. at 162; see also Charles W. Ehrhardt, Florida Evidence § 404.9, at 245 (2011 edition) (noting that “[t]he defense’s failure to vigorously dispute the fact the Williams rule evidence is offered to prove may well be determinative in the trial court’s balancing decision”).

Here, although intent is an element of the crimes for which Jackson was found guilty, intent was not a material issue in dispute in this case. Jackson pled not guilty and, at trial, his defense was that he was not involved in the March 2011 incident. He did not, for example, claim self-defense, accident, or mistake with respect to the alleged battery, nor did he claim that he was invited into Woodard’s apartment or that, at the time of entry, he did not intend to commit an offense therein; rather, he simply claimed that he was not at Woodard’s apartment on the night of the incident and his counsel argued that Woodard’s allegations about the incident were not credible. Cf. Miller v. State, 667 So.2d 325, 328 (Fla. 1st DCA 1995) (“[Williams rule] evidence may be admissible to disprove a defendant’s theory of defense or to disprove a defendant’s attempt to explain [his or her] intent.”). Accordingly, because intent was not a material issue in dispute, the trial court erred in allowing the State to introduce the Williams rule evidence to prove Jackson’s intent to commit the charged crimes. See Pratt v. State, 1 So.3d 1169, 1170-71 (Fla. 4th DCA 2009) (reversing admission of collateral-crime evidence that defendant beat his wife three times in the 18 months preceding the charged crime to show motive or intent because the defendant denied committing the charged crime and “[n]either party did anything to make motive or intent significant to any contested fact”); Roberts v. State, 662 So.2d 1308, 1310 (Fla. 4th DCA 1995) (reversing admission of collateral-crime evidence offered to show intent and absence of mistake because those issues “[were] not actually in dispute”); Jordan v. State, 171 So.2d 418, 422 (Fla. 1st DCA 1965) (reversing admission of testimony concerning defendants’ prior criminal offenses as evidence of their intent to commit the present offense because the prior offenses “had no relevant bearing upon the issue being tried”).

Even if intent was a material issue in dispute simply by virtue of Jackson’s not guilty plea, the probative value of the Williams rule evidence to prove that fact in this case is substantially outweighed by its prejudicial effect, particularly as to the burglary charge because the prior incidents are simply not probative of the intent required for burglary. Cf. United States v. San Martin, 505 F.2d 918, 923 (5th Cir.1974) (explaining that “evidence of prior crimes involving intent of the moment are hardly ever probative of later acts involving similarly split-second intent” and that “such prior crimes have less to do with the specific intent that may arise later ... than they do with the defendant’s overall disposition or character”). Indeed, it is noteworthy that the prosecutor did not argue at trial that Jackson’s intent to commit the burglary was shown by his prior violent interactions with Woodard; rather, she argued consistent with section 810.07(1), Florida Statutes, that the requisite intent — “the intent to commit an act therein” — was shown by the time and manner in which Jackson allegedly entered the apartment: at night by prying open the back door with a crowbar.

Moreover, as to the battery charge, the probative value of the prior incidents seems to be premised on the logic that because Jackson attacked Woodard in the past, he had the requisite intent to commit the March 2011 battery alleged in the information. This, however, is precisely the type of reasoning against which the Williams rule is intended to protect. See § 90.404(2)(a), Fla. Stat. (“Similar fact evidence of other crimes, wrongs, or acts ... is inadmissible when the evidence is relevant solely to prove ... propensity.”); San Martin, 505 F.2d at 923 (explaining that “if there is one clear category that is not an exception to the general rule against allowing evidence of prior acts, it is that which includes character, disposition, and reputation”) (internal quotations omitted); Harden v. State, 87 So.3d 1243, 1246-47 (Fla. 4th DCA 2012) (holding that evidence of prior incident of domestic violence against victim offered to show motive and intent was inadmissible because motive and intent were not at issue and “the earlier incident of domestic violence did nothing more than demonstrate appellant’s propensity for violence against his girlfriend”); Bolden v. State, 543 So.2d 423, 423 (Fla. 5th DCA 1989) (reversing admission of collateral-crime evidence offered to show a “pattern of conduct” by the defendant because its purpose was to show propensity).

The State contends that even if we conclude that the trial court erred in admitting the Williams rule evidence to prove intent, we should affirm Jackson’s judgment and sentence because the evidence was also admissible (1) to prove the disputed issue of identity and (2) as substantive evidence of the stalking charge. We reject these “tipsy coachman” arguments.

With respect to the first argument, the Florida Supreme Court explained that “in cases where the purported relevance of the collateral crime evidence is the identity of the defendant, we have required ‘identifiable points of similarity’ between the collateral act and charged crime that ‘have some special character or be so unusual as to point to the defendant.’ ” McLean v. State, 934 So.2d 1248, 1255 (Fla.2006) (quoting Drake v. State, 400 So.2d 1217, 1219 (Fla.1981)); see also Washington v. State, 737 So.2d 1208, 1224 (Fla. 1st DCA 1999) (explaining that for collateral crimes to be admissible to show identity, there must be “ ‘startling similarities,’ such as a unique ‘signature,’ ‘hallmark,’ or ‘fingerprint’ modus operandi, or a common plan or scheme” between the prior bad acts and the charged crimes) (quoting Chandler v. State, 702 So.2d 186, 192 (Fla.1997)). Here, the collateral crimes allegedly committed by Jackson are not substantially similar to the charged crimes because, unlike the charged crimes, neither of the prior incidents involved a perpetrator breaking into an apartment or using a knife. Accordingly, the trial court could not have admitted the Williams rule evidence for purposes of establishing identity.

With respect to the second argument, although the State is correct that the Williams rule evidence was admissible as substantive evidence of the stalking charge (for which Jackson was acquitted), that has no bearing on the issue on appeal: whether the evidence was admissible to establish Jackson’s intent to commit the offenses of burglary of a dwelling and battery (for which he was convicted). Jackson is not challenging the fact that the Williams rule evidence was admitted; he is only challenging the fact that the jury was allowed to consider that evidence in connection with the offenses for which he was convicted. Thus, even though the Williams rule evidence was admissible to prove the stalking charge, the trial court erred when, it instructed the jury that it could consider the evidence for purposes of determining Jackson’s intent to commit the other offenses charged in the information.

The State also argues that any error in the admission of the Williams rule evidence was harmless. We disagree.

It is well-settled that the erroneous admission of collateral crimes evidence is presumptively harmful and may be found harmless only if the State establishes that there is no reasonable possibility that the error contributed to the verdict. See McDuffie v. State, 970 So.2d 312, 328 (Fla.2007); Robertson v. State, 829 So.2d 901, 913-14 (Fla.2002); Pratt, 1 So.3d at 1171 (citing cases). Here, there were no fingerprints or DNA found on the knife allegedly used in the attack on Woodard or on the crowbar allegedly used to gain entry into her apartment; the only direct evidence to support the burglary and battery charges was Woodard’s testimony that Jackson was the perpetrator; and a significant portion of the trial was devoted to testimony and evidence concerning the prior incidents. Under these circumstances, we are unable to conclude beyond a reasonable doubt that the erroneous admission of the Williams rule evidence did not contribute to the verdict. See Jones v. State, 754 So.2d 792, 793 (Fla. 1st DCA 2000).

Conclusion

For the reasons stated above, we reverse Jackson’s judgment and sentence and remand for a new trial.

REVERSED and REMANDED for a new trial.

BENTON and MARSTILLER, JJ., concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . The first paragraph of this instruction tracks Standard Criminal Jury Instruction 2.4, but the second paragraph appears to have been crafted by the trial court on its own. Neither party objected to this instruction even though the second paragraph contains several factual inaccuracies. For example, the first sentence states that “the three charges in the Information relate to a particular date and time,” but that is correct only for Counts I and II because the stalking charge (Count III) was alleged to have occurred over a period of approximately 18 months. Also, the second and third sentences state that the jury is going to hear testimony about incidents occurring on other dates and times and that Jackson "is not charged with a crime having occurred on [those] date[s],” but Jackson had indeed been charged with a crime — stalking—based on the two incidents about which the jury was going to hear testimony.

      . Burglary of a dwelling requires proof that the defendant entered or remained in a dwelling "with the intent to commit an offense therein.” § 810.02(l)(b)l., Fla. Stat. (2010). Battery requires proof that the defendant “intentionally” touched the victim. § 784.03(l)(a), Fla. Stat. (2010).

      . The statute provides: “In a trial on the charge of burglary, proof of the entering of such structure or conveyance at any time stealthily and without consent of the owner or occupant thereof is prima facie evidence of entering with the intent to commit an offense.” § 810.07(1), Fla. Stat. (2010).

      . We express no view as to whether it would have been practicable to give such an instruction or whether severance of the charges would have been required under these circumstances. See Fla. R. Crim. P. 3.152(a)(2) (authorizing the trial court, upon motion of either party, to sever charges in an information when necessary “to promote a fair determination of the defendant’s guilt or innocence of each offense”). No motion to sever was filed in the trial court, and this issue will not arise upon remand because Jackson was acquitted of the stalking charge.


author: WARNER, J.

text:
    CVE MASTER MANAGEMENT COMPANY, INC., Appellant, v. VENTNOR “B” CONDOMINIUM ASSOCIATION, INC., a Florida nonprofit corporation; Tele-Media Investment Partnership, L.P., a Delaware Limited Partnership, as Debtor in Possession d/b/a Adelphia Cable Communications; Olympus Communications, L.P., a Delaware limited partnership; Comcast corporation, a Pennsylvania corporation; Comcast Cable Communications Holdings, Inc., a Delaware corporation; Comcast Cable Holdings, LLC, a Delaware limited liability company; and Comcast of Florida/Washington, LLC, a Florida limited liability company, Appellee.
    No. 4D13-3709.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2014.

      Robert J. Hauser of Beasley Hauser Kramer & Galardi, P.A., West Palm Beach, for appellant.
    Joseph Garrity and Marlon Weiss of Garrity-Weiss, P.A., Coral Springs, for ap-pellees.
   WARNER, J.

Appellant challenges an order granting class certification to a group of condominium associations. It contends that the trial court abused its discretion in certifying a class, because the appellee failed to prove that its claims were typical of the class as a whole or that appellee was an adequate class representative. We conclude that the trial court did not abuse its discretion in ruling that appellee’s claims are typical of the class as a whole. We do, however, conclude that the court erroneously found that the parties had agreed to the adequacy of class counsel and reverse and remand for further proceedings on this issue.

Appellee, Ventnor B, is a condominium association within the Century Village East community. It filed a class action lawsuit against Adelphia Cable Company and related entities, as well as against appellant, CVE Master Management Company, Ine. (“CVEMMC”), the overall management association of all Century Village East Condominium Associations. The lawsuit arose from the installation of cable in two-story garden style condominium buildings in Century Village East. During the installation, large holes were cut in the firewalls in the attics of various buildings and not repaired after installation. In 2005, a fee occurred in Ventnor B, causing significant damage to the building and several condominium units. The holes in Ventnor B’s firewalls were discovered after the fee, and Ventnor B claimed that the holes made the fee spread faster, exacerbating the damage to the building and the owners.

In its complaint, Ventnor B sought to represent 192 condominium associations, all of which it alleged had suffered firewall breaches during the cable installation. It alleged that cable installers, acting under an installation contract CVEMMC signed with Adelphia, failed to perform their task in accordance with industry standards by leaving large holes in the firewalls. It asserted the cable company should have resealed these holes so as to restore the walls’ resistivity to fire. Without such repair, Ventnor B alleged, the holes would allow a fire to spread faster, causing greater danger to residents and lessening time that firefighters have to contain a fire. As a result, Ventnor B alleged that it suffered damages in a fee, and nine unit owners suffered damage to their units, including damage to surrounding common areas, loss of personal property, and loss of use. The damages incurred were exacerbated by firewalls breached by defendants.

To support its claim for class representation, Ventnor B alleged that without class representation the various condominium associations would risk inconsistent verdicts. It also claimed that the cost to repair the holes correctly was a common issue of fact. It alleged that all claims of the class were similar, because they dealt with the failure to repair the firewalls in the buildings. Any recovery, it alleged, could be put into a trust for the benefit of all of the associations and used to repair the firewalls. While the complaint mentioned the losses of the individual unit owners in Ventnor B, it did not allege that it was suing on their behalf. In claiming that any recovery could be put in a trust for the associations, it also did not mention any other type of recovery for any individual.

As to CVEMMC, Ventnor B alleged causes of action for breach of contract, negligence, fraud, and breach of fiduciary duty. Ventnor B claimed that CVEMMC failed to properly supervise the installation and correct the deficiencies, as well as made statements that the installation was done in a workmanlike manner. In each cause of action, Ventnor B alleged damages for the breached firewalls and for the danger which continues as a result of the holes. In the “Wherefore” clause of the complaint, Ventnor B requested damages, including incidental and consequential damages caused by the breached firewalls such as loss of use, relocation expenses, and alternative housing expenses.

The parties apparently litigated for several years without any determination regarding class certification. The cable companies agreed to settle their part of the case. In an agreed motion for settlement between the cable companies and the various affected condominium associations, the parties agreed to a class settlement and moved the court to certify a class for the purposes of the settlement. CVEMMC was not a party to the settlement and did not join in the class certification request.

After the settlement was complete, the case continued against CVEMMC. The court set the case for trial, but shortly before the trial, Ventnor B moved to certify the class, to which CVEMMC objected. The court held a hearing at which a representative from Ventnor B testified. Based upon the evidence presented, the court entered an order certifying a class, described as:

All GARDEN STYLE or the 192 GARDEN STYLE association buildings at Century Village East in Deerfield Beach, Florida, who suffered breached to its [sic] draft barriers or draft stops during the cable installation, which was to be carried [out] by the CABLE DEFENDANTS and overseen by CVE MASTER visa-vie [sic] the contract entered on May 4, 2004, between the parties providing for the installation and the date of the resulting fire July 7, 2005.

It found that the class satisfied all four criteria for class action status: 1) 192 associations as members of the class satisfied the numerosity requirement; 2) the holes in the firewall in the condominium units created a common issue of fact for all members of the class; 3) the claims of Ventnor B that its firewall was breached were typical of the class, even though its damages may have been different, because it suffered a fire; and 4) Ventnor B was an adequate representative because its representatives had already been engaged in the litigation. The court rejected the claim that its interests were antagonistic to the other members of the class, finding no proof was offered of that. The court found that CVEMMC did not contest the adequacy of counsel. It also found that prosecution of separate lawsuits by each class member could result in inconsistent results. From this order, CVEMMC appeals.

An order certifying a class is reviewed for an abuse of discretion. Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 102-03 (Fla.2011); see also Chase Manhattan Mortg. Corp. v. Porcher, 898 So.2d 153, 156 (Fla. 4th DCA 2005) (“The question of whether to grant or deny certification is committed to the broad discretion of the circuit court.”). An appellate court “examines a trial court’s factual findings for competent, substantial evidence, and reviews conclusions of law de novo.” Sosa, 73 So.3d at 105.

To certify a class, the trial court must find that the class representative and proposed class meet the requirements of Florida Rule of Civil Procedure 1.220. The rule’s four requirements are referred to as numerosity, commonality, typicality, and adequacy. Sosa, 73 So.3d at 106. The rule requires:

(1) the members of the class are so numerous that separate joinder of each member is impracticable [numerosity ], (2) the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class [commonality ], (3) the claim or defense of the representative party is typical of the claim or defense of each member of the class [typicality], and (4) the representative party can fairly and adequately protect and represent the interests of each member of the class [adequacy ].

Id. (quoting Fla. R. Civ. P. 1.220(a)) (emphasis in original).

In this appeal, CVEMMC challenges the trial court’s findings and conclusions on the typicality of Ventnor B’s claims as well as the adequacy of Ventnor B as a representative of the class. As to typicality, CVEMMC relies on the fact that Ventnor B was the only condominium to suffer fire damage, which CVEMCC argues resulted in substantial differences between its claims and the claims of other members of the class. In addition, some of the condominium buildings did not have firewalls and were not damaged by the installation of the cable. Therefore, CVEMCC argues, some of the condominium associations should not be members of the class.

Typicality means “the claim or defense of the representative party is typical of the claim or defense of each member of the class.” Fla. R. Civ. P. 1.220(a). This “requirement focuses on the relationship of the class representative’s claims to the claims of the class members.” Wyeth, Inc. v. Gottlieb, 930 So.2d 635, 642 (Fla. 3d DCA 2006). “The key inquiry ... is whether the class representative possesses the same legal interest and has endured the same legal injury as the class members.” Rosa, 73 So.3d at 114. “[T]he primary concern in considering the typicality and commonality of claims should be whether the representative’s claim arises from the same course of conduct that gave rise to the other claims and whether the claims are based on the same legal theory.” McFadden v. Staley, 687 So.2d 357, 359 (Fla. 4th DCA 1997). “[T]he fact that the class representative’s damages might vary in amount from those of other class members does not necessarily defeat typicality.” Baptist Hosp., Inc. v. Baker, 84 So.3d 1200, 1205 (Fla. 1st DCA 2012); see also Sosa, 73 So.3d at 115 (factual differences “as to the extent of [the class representative’s] injury and damage recovery ... does not preclude a finding of typicality”); Morgan v. Coats, 33 So.3d 59, 65 (Fla. 2d DCA 2010) (finding typicality was satisfied where class representative “had suffered the same type of injury” even though “the extent of his injury (i.e., damages) might vary from that of the other class members”).

The trial court found that the breach of the firewall by the cable installation was common to all condominiums, and Ventnor B’s claim was similar. Ventnor B alleged in its complaint that the hole in the firewall increased the risk and danger of fire to the condominium buildings. Although CVEMMC claims that the proof of Vent-nor B’s claim will be decidedly more complex, because Ventnor B needs to show that the holes in the firewalls exacerbated the damages from the fire, the complaint alleges increased risk of fire damage as part of its claim of damage to all the buildings. CVEMMC has not shown that proof of the exacerbation of the damage in Ventnor B’s fire would be markedly different than showing the increased risk of fire damage for the other buildings with holes in the firewalls.

As to CVEMMC’s argument that Vent-nor B’s claim is not typical because many of the associations did not have holes in their firewall or were able to repair them with minor expense, the court certified as the class all buildings which suffered a breach of their firewall as a result of the installation of the cable. Therefore, those associations who do not have breaches of a firewall are not members of the class. At some point the members of the class will have to be identified specifically, but this does not defeat typicality of the claim.

Ventnor B’s damages are obviously different and more extensive than those of the other class members, because it actually suffered fire damage. A difference in the extent of damages, however, does not preclude a finding of typicality. See Sosa, 73 So.3d at 115; Baptist Hosp., Inc., 84 So.3d at 1205; Morgan, 33 So.3d at 65; see also Smith v. Glen Cove Apartments Condos. Master Ass’n, 847 So.2d 1107, 1111 (Fla. 4th DCA 2003), approved by Sosa, 73 So.3d at 98 (appellants’ claims met typicality because “they all claim that appellee was negligent and violated the [condominium] statute causing damages to them,” regardless of the fact that each class plaintiff may have different extent of damage). We thus find no abuse of discretion in the trial court’s findings with respect to typicality.

CVEMCC also claims that Ventnor B is not an adequate class representative. To obtain class certification, the class representative must show it “can fairly and adequately protect and represent the interests of each member of the class.” Fla. R. Civ. P. 1.220(a)(4). The adequacy “inquiry serves to uncover conflicts of interest between the presumptive class representative and the class he or she seeks to represent.” Sosa, 73 So.3d at 115. The inquiry is two-pronged: “The first prong concerns the qualifications, experience, and ability of class counsel to conduct the litigation. The second prong pertains to whether the class representative’s interests are antagonistic to the interests of the class members.” Id. (internal citations omitted). As to the first prong, the trial court found that the parties did not dispute the adequacy of counsel to conduct the litigation. As to the second prong, the trial court found that CVEMMC did not show an antagonistic interest of Ventnor B.

Contrary to the statement of the trial court, CVEMMC did not concede the adequacy of counsel to class litigation, and no evidence was offered as to counsel’s adequacy. In Miami Automotive Retail, Inc. v. Baldwin, 97 So.3d 846 (Fla. 3d DCA 2012), the Third District found that the class representative had not sufficiently proved this element, finding she had

fail[ed] to offer any evidence on her ability, or the ability of appointed class counsel, to assume the costs to litigate the case on behalf of the class....
Although ... current class counsel has experience handling class action cases, and he has worked with [the former, disqualified class counsel] in other litigation, he was not materially involved in the early stages of this litigation and did not offer any evidence as to his willingness and ability to absorb the costs in prosecuting this case as a class action. Because neither [the class representative] nor class counsel has offered any evidence on this issue, we conclude that adequacy has not been established, and thus the trial court abused its discretion in certifying the class.

Id. at 854; cf. Marco Island Civic Ass’n, v. Mazzini, 805 So.2d 928, 930-31 (Fla. 2d DCA 2001) (finding adequacy was not satisfied for a defendant class where the class representative was pro se and there was “simply no evidence in the record to support the court’s order, other than [plaintiffs] counsel’s unsworn argument”).

Ventnor B introduced no evidence of class counsel’s prior class action litigation experience or financial means to absorb the costs of such litigation. The fact that class counsel had successfully reached a settlement in this case, by itself, is insufficient to establish adequacy where the litigation appears not to have been conducted as class litigation until settlement.

We do not suggest that class counsel is in adequate in this case. There is simply no proof of adequacy nor any stipulation of this element. We thus reverse and remand for the trial court to conduct the necessary inquiry on this issue.

As to the second prong of the inquiry, the court found that Ventnor B representatives were fully engaged in the litigation and were capable of continuing to meet the obligations as class representative. The court found no evidence of antagonistic interests. The Ventnor B- representative admitted that Ventnor B was pursuing two other suits involving the same issues, but the evidence does not show how these other suits involved interests antagonistic to this class claim. On appeal, CVEMMC also argues that a substantial judgment for Ventnor B may be contrary to the interests of the other associations and unit owners. These arguments were not made to the trial court, and no evidence on these issues was presented. Therefore, they are not preserved.

Except with respect to the trial court’s finding of adequacy of class counsel, the trial court’s findings with respect to adequacy were supported by competent substantial evidence.

For the foregoing reasons, we reverse the order certifying a class with instructions to hold an additional hearing on the adequacy of counsel to conduct class litigation. In all other respects, the trial court did not abuse its discretion in concluding that the criteria for class action status and class representation were met.

Reversed and remanded for farther proceedings in accordance with this opinion.

MAY and LEVINE, JJ., concur.

      . We note this because, in the order certifying a class, the court stated that Ventnor B was suing on behalf of the unit owners. Nowhere in the complaint is it alleged that the plaintiff is suing on behalf of any owners, although the plaintiff requests loss of use and alternative housing as elements of damage. At other places in the complaint it appears as though the only damages sought are for the repair of the holes. It is not clear to us what damages are actually being sought or whether the plaintiff can sue for the individual damages suffered by unit owners. This issue, however, has not been raised on appeal, and we need not decide it.


text:
    Joel Edward CHANDLER, Appellant, v. The CITY OF GREENACRES, Appellee.
    No. 4D13-377.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2014.

      Edward M. Mullins, Annette C. Escobar & Regan N. Kruse of Astigarraga Davis Mullins & Grossman, P.A., Miami, and John W. McKnight of The Law Offices of John W. McKnight, Tampa, for appellant.
    Pamela S. Terranova, Greenacres, for appellee.
   WARNER, J.

The trial court dismissed appellant’s petition for writ of mandamus to compel production of public records, finding that the petition failed to show appellant’s standing to bring the action. Accepting the well-pled allegations as true, as we must, the petition showed that appellant had sent appellee an e-mail request for documents. No more is required to show standing. We therefore reverse.

As alleged in the petition for writ of mandamus, “On November 22, 2011, [appellant] made a public records request by e-mail to the City .... ” The petition quoted from this e-mail, which was attached to the petition and on its face showed that it was sent from leo.namesxxx@xxxxx. Although the attached e-mail did not include a person’s name, the body of the e-mail used the pronouns “I” and “me.” The petition also alleged that appellant had sent three other e-mails to city employees requesting documents. These e-mails, also attached as exhibits to the petition, showed they were sent from the same e-mail address.

The city clerk responded to the e-mails by notifying the sender that the sender must fill out a form on the city’s web page for obtaining public documents. No form was filled out, and five months later, a sender from the same e-mail address again e-mailed the city and asked when the sender would receive the documents. Again, the clerk informed the sender that the city’s form needed to be filled out in order for the city to determine the cost of production of the documents.

A month later, appellant filed a petition for writ of mandamus demanding production of certain public records, and also seeking attorney’s fees and costs under the Public Records Act. The petition alleged that appellant had sent the e-mails and that he was a “person” as used in the Act, section 119.07(1), Florida Statutes (2012). The trial court issued an order to show cause directing the city to provide access to the requested public records or serve a written response showing why the petition should not be granted. The city moved to dismiss the petition, arguing that appellant lacked standing to bring the petition because it did not allege that appellant was a “stakeholder in interest” in the controversy nor demonstrate that appellant had a connection with the e-mail address from which the requests were sent. It also argued that appellant needed to fill out the city’s form in order to secure an estimate of the cost of production. However, after appellant filed the petition, the city provided him an estimate of $0.90 to obtain the public records requested in the e-mail. The trial court granted the city’s motion and dismissed the petition, prompting this appeal.

This court reviews an order dismissing a petition for writ of mandamus de novo. Barnett v. Antonacci, 122 So.3d 400, 404 (Fla. 4th DCA 2013).

Florida’s Public Records Act requires public records custodians to allow inspection and copying of public records “by any person desiring to do so.” § 119.07(l)(a), Fla. Stat. (2013); see also Art. I, § 24, Fla. Const. (providing right to access public records and meetings). Mandamus is “an appropriate remedy to compel the timely production of public records requested] under Chapter 119.” Town of Manalapan v. Rechler, 674 So.2d 789, 790 (Fla. 4th DCA 1996).

“A party petitioning for a writ of mandamus must establish a clear legal right to performance of the act requested, an indisputable legal duty, and no adequate remedy at law.” Smith v. State, 696 So.2d 814, 815 (Fla. 2d DCA 1997). Under Florida Rule of Civil Procedure 1.630(b), a petition for writ of mandamus must “contain the facts on which the plaintiff relies for relief, a request for the relief sought, and, if desired, argument in support of the petition with citations of authority.” Id. at 816. “If the complaint shows a prima facie case for relief, a trial court must issue an alternative writ of mandamus,” and “[o]nce an alternative writ has issued, the burden is on the respondent to come forth with facts upon which it refused to perform its legal duty.” Id.

To establish a clear legal right to the performance of an act, a petitioner must establish standing. “Standing is a legal concept that requires a would-be litigant to demonstrate that he or she reasonably expects to be affected by the outcome of the proceedings, either directly or indirectly.” Hayes v. Guardianship of Thompson, 952 So.2d 498, 505 (Fla.2006). “In determining whether to dismiss a complaint for lack of standing, we must confine our review to the four corners of the complaint, draw all inferences in favor of the pleader, and accept all well-pled allegations in the complaint as true.” Gordon v. Kleinman, 120 So.3d 120, 121 (Fla. 4th DCA 2013) (quoting Wheeler v. Powers, 972 So.2d 285, 288 (Fla. 5th DCA 2008)). The exhibits attached to a complaint “are encompassed within the four corners of the complaint and must be considered therewith” on a motion to dismiss. Abele v. Sawyer, 750 So.2d 70, 74 (Fla. 4th DCA 1999); see also Fla. R. Civ. P. 1.130(b) (“Any exhibit attached to a pleading shall be considered a part thereof for all purposes.”).

In the present case, the city argues that appellant’s petition was properly dismissed because it failed to establish standing, since the petition failed to establish an “identifiable connection” between appellant and the e-mail address at issue. However, the petition alleged that appellant had made a public records request via e-mail, and attached the e-mails sent from the email address at issue. The clear implication is that this e-mail address belongs to appellant, or at least that appellant utilized the address to make the public records request. See Gordon, 120 So.3d at 121 (on motion to dismiss, court must “draw all inferences in favor of the pleader”). This is all that is required to establish standing to file a petition for mandamus seeking the production of public records. While the appellant will still be required to prove the allegations of the complaint, i.e., that he sent the e-mail requests for public records, his petition sufficiently alleged standing to preclude dismissal.

The city also maintains that the petition failed to state a claim for relief, and thus the trial court correctly dismissed the case. Specifically, the city argues, based on the uncontested facts alleged in the petition, that it did not improperly deny access to the requested records, but rather wanted to obtain payment prior to furnishing the records. The city contends that the requirement for the requester to fill out the city’s form was merely an attempt to obtain an “address or other identifiable source of payment of the associated costs.”

Although section 119.07(1), Florida Statutes, allows a custodian to impose “reasonable conditions” on the disclosure of public records, the Florida Supreme Court has narrowly interpreted this phrase as:

refer[ring] not to conditions which must be fulfilled before review is permitted but to reasonable regulations that would permit the custodian of the records to protect them from alteration, damage, or destruction and also to ensure that the person reviewing the records is not subjected to physical constraints designed to preclude review.

Wait v. Fla. Power & Light Co., 372 So.2d 420, 425 (Fla.1979).

The Public Records Act authorizes a custodian to collect a fee, prior to disclosing the records, for the cost of copying the records. § 119.07(4), Fla. Stat. (2013) (providing the custodian “shall furnish a copy ... of the record upon payment of the fee prescribed by law”). The custodian may also collect a special service charge for requests that “require extensive use of information technology resources or extensive clerical or supervisory assistance ....” § 119.07(4)(d), Fla. Stat. (2013). However, when a custodian receives a written request by mail for public records and for information regarding copying costs, the custodian has a duty to respond with the amount of the fee and, once the requester has forwarded the fee, to produce the records. Woodard v. State, 885 So.2d 444, 445-46 (Fla. 4th DCA 2004); see also Wootton v. Cook, 590 So.2d 1039, 1040 (Fla. 1st DCA 1991).

“[T]he Public Records Act does not condition the inspection of public records on any requirement that the person seeking to inspect records reveal that person’s background information.” Bevan v. Wanicka, 505 So.2d 1116, 1118 (Fla. 2d DCA 1987). Furthermore, “[a] requester’s motive for seeking a copy of documents is irrelevant” to the requester’s right to access the records. Microdecisions, Inc. v. Skinner, 889 So.2d 871, 875 (Fla. 2d DCA 2004) (finding “the fact that a person seeking access to public records wishes to use them in a commercial enterprise does not alter his or her rights under Florida’s public records law”); see also Warden v. Bennett, 340 So.2d 977, 978 (Fla. 2d DCA 1976) (finding the fact that the requester “intended to use [the public records] to help her in her labor organizing was irrelevant”).

We agree with the Attorney General that “[a] person requesting access to or copies of public records, therefore, may not be required to disclose his [or her] name, address, telephone number or the like to the custodian, unless the custodian is required by law to obtain this information prior to releasing the records.” Op. Att’y Gen. Fla. 92-38 (1992) (in footnote 14, giving example of section 320.05, Florida Statutes, which requires DHSMV to record the name and address of any person who requests or receives information from a motor vehicle registration record); see also Op. Att’y Gen. Fla. (May 27, 2011) (informal opinion) (reiterating that an anonymous requestor may not be forced to disclose his or her name, address, telephone number, or similar identifying information).

If a public agency believes it is necessary to provide written documentation of a public records request, it may require the custodian to complete an appropriate form or document. However, the person requesting the information cannot be required to provide such documentation in order to inspect or receive copies of public records. As the court in Sullivan v. City of New Port Richey, [No. 86-1129CA (Fla. 6th Cir.Ct. May 22, 1987), affirmed without opinion, 529 So.2d 1124 (Fla. 2d DCA 1988) ] recognized, a requestor’s failure to complete a city form required for access to documents does not authorize the custodian to refuse to honor a request to inspect or copy public records.... The duty of a custodian to safeguard records is not sufficient to justify the imposition of an additional condition, which might for some have a chilling effect on access to public records.

Op. Att’y Gen. Fla. 91-76 (1991) (emphasis added) (footnotes omitted).

In sum, the city could not properly condition disclosure of the public records, to the then-anonymous requester on filling out the city’s form and giving an “address or other identifiable source for payment of the associated costs.” The city could have sent an estimate of costs through e-mail to the requester just as it could through regular mail, had the request been made via paper by an anonymous requester. Requiring appellant to provide further identifying information pri- or to disclosure could have a chilling effect on access to public records and is not required by the Public Records Act. Therefore, we reject the city’s contention that the petition failed to state a cause of action.

For the foregoing reasons, we reverse and remand for further proceedings.

MAY and LEVINE, JJ., concur.

      . The full e-mail address has been truncated pursuant to Florida Rule of Judicial Administration 2.425(a)(5)(A).

      . Attorney General opinions are available at: http://www.myfloridalegal.coin/opimons.


text:
    Tracey REDD, Petitioner, v. JUSTICE ADMINISTRATIVE, COMMISSION, Respondent.
    No. 2D14-687.
    District Court of Appeal of Florida, Second District.
    June 11, 2014.

      Terry P. Roberts, Law Office of Terry P. Roberts, Tallahassee, for Petitioner.
    Ana Cristina Martinez, General Counsel, Tallahassee, for Respondent.
   ORDER DISCHARGING ORDER TO SHOW CAUSE

PER CURIAM.

After Tracey Redd filed this petition for writ of certiorari seeking to quash the circuit court’s order awarding her attorney’s fees in an amount less than requested for her services as court-appointed co-counsel for a defendant in a capital murder case, see § 27.5304, Fla. Stat. (2013), this court issued an order to show cause why her petition should not be dismissed as untimely filed. We now discharge our order to show cause for the following reasons.

In Lee County case number 08-CF-14594, the circuit court entered an order appointing Ms. Redd as co-counsel for Robert Harold Dunn, an indigent criminal defendant charged with first-degree capital murder. The jury found Mr. Dunn guilty as charged, but his attorneys were successful in limiting the penalty to life imprisonment.

After entry of Mr. Dunn’s judgment and sentence, Ms. Redd submitted a bill for $162,820 to the Justice Administrative Commission (JAC). See § 27.5304(4)(a), (b)(1). The JAC filed a letter of objection to Ms. Redd’s bill, noting that an order from a circuit court judge was necessary to exceed the $15,000 statutory maximum on compensation for services by co-counsel in death penalty cases. See § 27.5304(5)(a)(4), (12)(d). Ms. Redd then filed a motion with the chief judge of the circuit court seeking an order approving payment of attorney’s fees in excess of the statutory maximum. See § 27.5304(12)(a).

After an evidentiary hearing, the circuit court filed an order on December 13, 2013, awarding Ms. Redd $118,000 in attorney’s fees. Section 27.5304(12)(b)(2) requires the court, after holding an evidentiary hearing, to “enter a written order detailing his or her findings and identifying the extraordinary nature of the time and efforts of the attorney in the case which warrant exceeding the flat fee established by [section 27.530.]” On December 23, 2013, Ms. Redd served a motion for reconsideration and clarification asking the court to rehear the matter and requesting another evidentiary hearing. On January 14, 2014, the circuit court denied the motion, noting that section 27.5304 “does not authorize a motion for reconsideration or rehearing of an order granting excess attorney fees.” On February 12, 2014, Ms. Redd filed this petition for writ of certiora-ri.

A petition for writ of certiorari must be filed within thirty days of rendition of the order to be reviewed. See Fla. R. App. P. 9.100(c)(1). “An order is rendered when a signed, written order is filed with the clerk of the lower tribunal.” Fla. R. App. P. 9.020(i). The filing of “an authorized and timely motion for new trial, for rehearing, for certification, [or] to alter or amend” tolls rendition of a final order “until the filing of a signed, written order disposing of all such motions between such parties.” Fla. R. App. P. 9.020(i)(l). In this ease, Ms. Redd filed her petition for writ of certiorari more than thirty days after the circuit court filed its order awarding attorney’s fees. Therefore, Ms. Redd’s petition for writ of certiorari is timely only if her motion for rehearing was authorized and timely so as to toll final rendition of the order awarding her attorney’s fees until the circuit court filed its order denying her motion for rehearing. We hold that Ms. Redd’s petition is timely because section 27.5304 constitutes a special statutory proceeding governed by the civil rather than criminal rules of procedure.

A motion filed pursuant to section 27.5304(12) is not an act of the State initiating prosecution against a criminal defendant. See Saucer v. State, 779 So.2d 261, 262 (Fla.2001) (“[P]erhaps the only true criminal proceeding is the one the State initiates against a defendant charging her with committing a criminal act.” (footnote omitted)). Rather, the court-appointed attorney must wait until final disposition of the defendant’s judgment and sentence to initiate the process to recover attorney’s fees, see § 27.5304(4)(a), and may only seek an award in excess of the statutory maximum by filing a motion with the chief judge of the circuit court. See § 27.5304(12)(a).

Thus, although such a motion arises from counsel’s representation of an indigent criminal defendant, it initiates a special statutory proceeding governed by the Florida Rules of Civil Procedure. See Fla. R. Civ. P. 1.010 (“These rules apply to all actions of a civil nature and all special statutory proceedings in the circuit courts and county courts except those to which the Florida Probate Rules, the Florida Family Law Rules of Procedure, or the Small Claims Rules apply.”); see also Fla. R. Civ. P. 1.010 cmt. (“Criminal proceedings are the only ones clearly excluded from the coverage of the [Florida Rules of Civil Procedure].”).

As part of a special statutory proceeding governed by the Florida Rules of Civil Procedure, a motion for rehearing of an order entered pursuant to section 27.5304(12)(b)(2) awarding attorney fees is authorized if timely served. Although the circuit court noted that section 27.5304 does not explicitly authorize motions for rehearing of final orders awarding attorney fees, it is of equal significance that section 27.5304 does not specifically prohibit motions for rehearing. Florida Rule of Civil Procedure 1.010 provides that “[t]he form, content, procedure, and time for pleading in all special statutory proceedings shall be as prescribed by the statutes governing the proceeding unless these rules specifically provide to the contrary.” Therefore, a motion for rehearing of the order awarding attorney fees is authorized if served not later than ten days after the fifing of that order. See Fla. R. Civ. P. 1.530(a), (b).

In this case, the circuit court filed its order awarding fees on December 13, 2013. Ms. Redd timely served her motion for rehearing on December 23, 2013. Final rendition of the order awarding attorney’s fees occurred when the circuit court filed its order denying her motion for rehearing on January 14, 2014. Accordingly, Ms. Redd timely filed her petition for writ of certiorari on February 12, 2014.

We note that Ms. Redd’s decision to file a petition for writ of certiorari instead of a notice of appeal is fully supported by the case law. See Sheppard & White, P.A. v. City of Jacksonville, 827 So.2d 925, 928 n. 3 (Fla.2002). The case law, however, evolved prior to the enactment of section 27.5304. See § 27.5304, Fla. Stat. (2004), added by ch. 2003-402, § 20, at 3670-71, Laws of Fla. (effective July 1, 2004); see also ch. 2003-402, § 153, at 3762, Laws of Fla. (effective July 1, 2004) (repealing sections 925.035-.037). The predecessors to section 27.5304 also permitted compensation in excess of the statutory máximums provided by section 925.036, Florida Statutes (2003), but merely required “a finding by a circuit court that the criminal case involved extraordinary circumstances such that the fee limits were inapplicable as a matter of law,” § 925.037(1), Fla. Stat. (2003), without establishing any extensive procedure for obtaining such a finding from the circuit court. Additionally, the counties were responsible for paying compensation to the court-appointed attorney, see § 925.035(6), Fla. Stat. (2003), while the JAC merely distributed funds for this purpose to the counties each fiscal year. See § 925.037(2). Under subsection (12) of the current statute, the motion filed with the chief judge effectively creates a separate statutory proceeding between the attorney and JAC, as the style of this case reflects, which ultimately results in the JAC directly compensating the attorney rather than the county. See § 27.5304(1), (12)(f)(l)-(2), Fla. Stat. (2013).

In this case, the clerk of the circuit court docketed Ms. Redd’s section 27.5304(12) motion on the docket in Lee County Case number 08-CF-14594, which is the underlying criminal case in which she represented Mr. Robert Dunn. In the absence of alternative rules of procedure, that docketing makes sense, but the legal claim to be resolved exists between Ms. Redd and JAC. Mr. Dunn would seem to have no interest in this proceeding. Thus, although we do not hold at this time that the proceeding should be treated as a direct appeal of the final order between these parties, we recognize that logically that may now be the correct procedure.

Based on the foregoing, this court’s order to show cause is discharged. The respondent shall serve a response to the petition for writ of certiorari within twenty days of the date of this order. The petitioner may serve a reply within twenty days thereafter.

ALTENBERND, CASANUEVA, and SILBERMAN, JJ., Concur.

      . When the circuit court filed its order awarding fees on December 13, 2013, Ms. Redd had 10 days to timely serve her motion for rehearing under the then-current version of Florida Rule of Civil Procedure 1.530(b). We note that the current version of rule 1.530(b) now provides 15 days for service of a motion for rehearing. See In re Amend. Fla. Rules Civ. Pro., 131 So.3d 643, 651 (Fla.2013).


text:
    MONIQUE A. LEVI & ASSOCIATES, INC. and J.F.G. Levi, Appellants, v. SPCP GROUP V, LLC, a Delaware limited liability company, Appellee.
    No. 4D13-2135.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2014.
    Kent Huffman of Hutchinson & Huffman, P.A., West Palm Beach, for appellant Monique A. Levi & Associates, Inc.
    W. Wyndham Geyer, Jr. and Jeremy Tyler of Geyer, Fuxa & Tyler, Sunrise, for appellee.
   WARNER, J.

We affirm the trial court’s denial of a motion to enforce a settlement agreement in a mortgage foreclosure action. The trial court found that the parties had not agreed on a material term of the contract; therefore, the terms announced were not specific enough to constitute an enforceable contract. “Preliminary negotiations or tentative and incomplete agreements will not establish a sufficient meeting of the minds to create an enforceable settlement agreement.” Williams v. Ingram, 605 So.2d 890, 893 (Fla. 1st DCA 1992). To be judicially enforceable, a settlement “must be sufficiently specific and mutually agreeable as to every essential element.” Grimsley v. Inverrary Resort Hotel, Ltd., 748 So.2d 299, 301 (Fla. 4th DCA 1999) (quoting Williams, 605 So.2d at 893); see also Cheverie v. Geisser, 783 So.2d 1115, 1118 (Fla. 4th DCA 2001).

In this case, the parties had not agreed on the payment of a broker’s commission on the sale to a third party which underlay the settlement agreement. While the amount and to whom a commission is due may not be a material term of all contracts, in this case we agree with the trial court that the term was material and precluded a meeting of the minds on the settlement. This view is solidified by the very language that the appellee’s attorney used in announcing a settlement, namely that the parties would either reach a settlement or, if they didn’t resolve their disputes, then they would reset the hearings on other pending issues. This also suggests that no full meeting of the minds had occurred.

At the time that the parties announced the proposed settlement, appellants had pending motions to rehear an order denying the cancellation of the foreclosure sale and also raising objections to the sale. Although appellee’s attorney noted at the hearing that if the settlement fell through the motions could be reset, there appears in the record an order denying both the motion for rehearing and the objections to sale, which order was entered prior to the motion to enforce the settlement. According to appellee’s attorney’s statements at the hearing on the motion to enforce the settlement, the order denying the motion for rehearing and objections to sale was entered without objection from appellants. Appellants did not request the trial court to reinstate the motions, should the motion to enforce the settlement be denied. Appellants have not appealed the order denying the motions, which would be a separate appealable post-judgment order. See Notre Dame D’Haiti LLC v. Bayview Loan Servicing, LLC, 16 So.3d 987 (Fla. 3d DCA 2009). Under these circumstances, we conclude that the requested relief is not available to appellants.

Affirmed.

LEVINE, J., and TUTER, JACK, Associate Judge, concur.