author: NORTHCUTT, Judge.

text:
    In re FORFEITURE OF: $221,898 IN U.S. CURRENCY. Michelle Gonzalez; Jorge Gonzalez-Betancourt; and 1st Medical Group, LLC, Appellants, v. City of Tampa, Appellee.
    No. 2D11-4493.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2013.

      Michael V. Laurato and Laura Datz of Austin & Laurato, P.A., Tampa, for Appellants Michelle Gonzalez and 1st Medical Group, LLC.
    No appearance for Appellant Jorge Gonzalez-Betancourt.
    James H. Shimberg, Jr., City Attorney, and Laurie B. Woodham, Assistant City Attorney, Tampa, for Appellee.
   NORTHCUTT, Judge.

Michelle Gonzalez and 1st Medical Group, LLC, appeal a final order determining that they were not entitled to seek compensation for loss of income and loss of value after the City of Tampa Police Department seized their currency without probable cause. We reverse.

The issue on appeal is narrow, and our record is limited. The underlying facts have been provided by the parties and are not generally disputed. In 2010, the police seized $221,898 in U.S. currency from Gonzalez, Jorge Gonzalez-Betancourt, and 1st Medical. On motion pursuant to the Florida Contraband Forfeiture Act, sections 932.701-.706, Florida Statutes (2010), the circuit court held an adversarial preliminary hearing to determine whether there was probable cause to believe that the currency had been or was being used in violation of the Act. See § 9S2.703(2)(a). The court found that that there was no probable cause to support the seizure, and its ruling was affirmed on appeal. City of Tampa v. Gonzalez (In re Forfeiture of $221,898), 64 So.3d 683 (Fla. 2d DCA 2011) (table decision).

Thereafter, Gonzalez and 1st Medical filed motions to obtain the release of the seized property and to be compensated for the reasonable loss of value and loss of income from the seized property. At a subsequent hearing, the City reported that it had been served with an Internal Revenue Service tax hen and levy and that it had released the currency to the U.S. Treasury. The court ruled that this rendered moot the motion for release of the currency. The court also accepted the City’s argument that claims for loss of value and income are not cognizable until after a forfeiture trial, a stage that was never reached here because the case was resolved at the probable cause hearing. For that reason, the court held the claimants were not entitled to compensation for losses suffered as a result of the seizure.

The latter ruling was based on the court’s interpretation of a statute, a matter which we review de novo. See Velez v. Miami-Dade Cnty. Police Dep’t, 934 So.2d 1162, 1164 (Fla.2006). When construing a statute, the court’s purpose is to give effect to the legislature’s intent, which is discerned in the first instance from the statute’s language. Gomez v. Vill. of Pinecrest, 41 So.3d 180, 185 (Fla.2010). Because forfeitures are “harsh ex-actions” and generally are not favored in the law, forfeiture statutes must be strictly construed. Id. (quoting Dep’t of Law Enforcement v. Real Prop., 588 So.2d 957, 961 (Fla.1991)).

The Florida Supreme Court has held that under the scheme prescribed by the Forfeiture Act, “forfeiture proceedings” have two stages: a seizure stage and a forfeiture stage. Gomez, 41 So.3d at 184-85 (citing Velez, 934 So.2d at 1164). At the seizure stage, the circuit court determines whether there is probable cause to believe that the property has been used in violation of the Act. Velez, 934 So.2d at 1164 (citing § 932.701(2)®). Upon the timely request of a person entitled to notice, this determination is made at an adversarial preliminary hearing. § 732.703(2). Otherwise, the court independently reviews the seizing agency’s forfeiture petition and supporting affidavit to make a probable cause determination for the seizure. § 932.704(4)(b). If the court finds probable cause, it authorizes the seizure or continued seizure of the property. § 932.703(2)(c), (d). If the seizure is found to be supported by probable cause, the case proceeds to the. forfeiture stage, in which the seizing agency must prove to the court or jury that the owner of the seized property had actual or constructive knowledge that it was being used in violation of the Forfeiture Act. Gomez, 41 So.3d at 186. If so, the property is forfeited. § 932.704(8).

The specific statute at issue here, section 932.704(9), provides in subsection (a) that “[w]hen the claimant prevails at the conclusion of the forfeiture proceeding, if the seizing agency decides not to appeal, the seized property shall be released immediately to the person entitled to possession of the property as determined by the court.” The next subsection provides as follows:

When the claimant prevails at the conclusion of the forfeiture proceeding, any decision to appeal must be made by the chief administrative official of the seizing agency, or his or her designee. The trial court shall require the seizing agency to pay to the claimant the reasonable loss of value of the seized property when the claimant prevails at trial or on appeal and the seizing agency retained the seized property during the trial or appellate process. The trial court shall also require the seizing agency to pay to the claimant any loss afincóme directly attributed to the continued seizure of income-producing property during the trial or appellate process. If the claimant prevails on appeal, the seizing agency shall immediately release the seized property to the person entitled to possession of the property as determined by the court, pay any cost as assessed by the court, and may not assess any towing charges, storage fees, administrative costs, or maintenance costs against the claimant with respect to the seized property or the forfeiture proceeding.

§ 982.704(9)(b) (emphasis added).

Gonzalez and 1st Medical, having prevailed at the probable cause hearing and then successfully defended that result on appeal, argue that their claims for loss of value and loss of income are authorized under this subsection because the City retained their property throughout the proceedings. The City counters that the subsection applies only after the second stage of the forfeiture scheme, the forfeiture stage, which was never reached in this case. It bases this argument on the reference in the subsection’s first sentence to the “conclusion of the forfeiture proceeding.” The City points to the statute’s definition of “forfeiture proceeding” as “a hearing or trial in which the court or jury determines whether the subject property shall be forfeited.” § 932.701(2)(g).

The City’s argument overlooks that the circuit court’s ruling — that there was no probable cause for the seizure — necessarily determined the issue of “whether the subject property shall be forfeited.” As such, it constituted the conclusion of the forfeiture proceeding as contemplated in the statute. This rather sensible reading of the statute is consistent both with its strict language and with its application by the courts. Thus, in Cox v. Department of Highway Safety & Motor Vehicles, 881 So.2d 641 (Fla. 5th DCA 2004), the Fifth District held that when the seizing agency voluntarily dismissed its forfeiture action after a finding of probable cause, the property owner could be deemed to have prevailed in the forfeiture proceeding and could claim the reasonable loss of value under section 9S2.704(9)(b). Here, the forfeiture action concluded with a finding of no probable cause, a circumstance even more deserving of recompense. Cf. Wheeler v. Corbin, 546 So.2d 723 (Fla.1989) (stating, under previous version of forfeiture act, that claimant must prove absence of probable cause in order to recover damages; analogizing forfeiture to arrest and comparing damages claim to action for malicious prosecution).

In Gervais v. City of Melbourne, 890 So.2d 412 (Fla. 5th DCA 2004), the same court considered the automatic stay provision in Florida Rule of Appellate Procedure 9.310(b)(2) in the context of a seizing agency’s appeal from an order finding no probable cause — the same procedural circumstance that gave rise to the claim in the instant case. The Fifth District explored the policy behind the automatic stay — that a bond from the state is not necessary because a litigant should have no concern about the state’s ability to pay the judgment if it loses — and noted that the Florida Contraband Forfeiture Act authorizes monetary relief if the property owner is ultimately successful. Id. at 414 (citing § 932.704(9)(b)). “Since the only losses that [the property owner] could incur are monetary, and since the statute specifically authorizes monetary relief if she is ultimately successful, it seems to us that the automatic stay rule must apply to civil forfeitures.” Id.-, cf. Tampa Sports Auth. v. Johnston, 914 So.2d 1076, 1082 (Fla. 2d DCA 2005) (“As the Gervais court observed, if the city lost the appeal Florida’s forfeiture law would require it to pay Gervais for the lost value of her property and the lost income she suffered as a result of being deprived of her property during the appeal.”).

We hold that claims for loss of value and loss of income were authorized by the plain language of the forfeiture statute when the claimants prevailed on appeal after a finding of no probable cause. We reverse the order denying the motion to determine damages under section 932.704(9)(b), and we remand for further proceedings.

Reversed and remanded.

ALTENBERND and DAVIS, JJ„ Concur.

      . Jorge Gonzalez-Betancourt did not join in the motions and has not participated in this appeal.

      . No evidence was taken at the hearing below, and we express no opinion on the factual support for the parties' claims, including assertions about the length of time the City retained the funds before releasing them pursuant to the tax lien.


source: Caselaw Access Project

author: KHOUZAM, Judge.

license: Public Domain

text:
    BARRNUNN, LLC, a Florida limited liability company, Appellant, v. TALMER BANK AND TRUST; The Foundation of Pelican March, Inc., a Florida corporation not-for-profit; Vanderbilt Galleria Condominium Association, Inc., a Florida corporation not-for-profit; and John Scot Mueller, an individual, Appellees.
    No. 2D12-446.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2013.

      Sonia M. Diaz and William J. Hazzard of Coleman, Hazzard, & Taylor, P.A., for Appellant.
    John C. Clough of Akerman Senterfitt, Naples; and Joseph E. Foster and E. Ginnette Childs of Akerman Senterfitt, Orlando, for Appellee Talmer Bank & Trust.
    No appearance for remaining Appellees.
   KHOUZAM, Judge.

BarrNunn, LLC, appeals a final judgment of foreclosure entered in favor of Talmer Bank and Trust. Because the trial court entered final judgment without complying with section 702.10(1), Florida Statutes (2011), we reverse and remand for further proceedings.

The facts are undisputed. On August 15, 2011, Talmer filed a complaint against BarrNunn and others seeking to foreclose on a mortgage. On the same day, Talmer filed a motion pursuant to section 702.10(1) requesting that the trial court enter an order to show cause why a final judgment of foreclosure should not be entered. Three days later, the court entered the show cause order and scheduled a hearing for October 5, 2011. On September 30, 2011, BarrNunn and another defendant filed a lengthy motion to dismiss the complaint. The motion raised a number of issues, including that allegations in the complaint were contradicted by the exhibits attached to the complaint.

Following the October 5 hearing, the trial court entered a final judgment of foreclosure on January 11, 2012. Although no transcript of the hearing exists, the judgment includes the following finding of fact:

During the hearing time reserved for the Order to Show Cause, the Court reviewed the Defendants’ timely-filed Motion to Dismiss, [and] found that it did not present any meritorious defenses to the count for foreclosure of real property and that the Defendants were not entitled to file an Answer and Affirmative Defenses to that count[.]

BarrNunn timely appealed, arguing that the trial court erred by entering final judgment after the show cause hearing where the defendants had timely filed a motion to dismiss.

There are no Florida cases that interpret the current version of section 702.10(1) as applied to the issue presented here. Because the material facts are undisputed, the issue before this court is one of statutory interpretation and is subject to de novo review. Borden v. East-European Ins. Co., 921 So.2d 587, 591 (Fla.2006). Although in many cases the lack of a transcript of the lower court proceedings prevents the appellant from demonstrating reversible error, see Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979), “the absence of a transcript does not preclude reversal where an error of law is apparent on the face of the judgment,” Chirino v. Chirino, 710 So.2d 696, 697 (Fla. 2d DCA 1998).

Section 702.10(1) provides that a mortgagee in a foreclosure proceeding may move the court for an order to show cause for the entry of final judgment. Upon such a request, “the court shall immediately review the complaint” and must issue the order if the complaint is verified and alleges a cause of action to foreclose on real property. Id. The order to show cause must set a date and time for a hearing on the matter, which shall be held no later than 60 days after the date of service of the order. § 702.10(l)(a)(l). The order must also “[s]tate that, if the defendant files defenses by a motion, the hearing time may be used to hear the defendant’s motion.” § 702.10(l)(a)(5).

Section 702.10(1) continues:

(b) The right to be heard at the hearing to show cause is waived if the defendant, after being served as provided by law with an order to show cause,' engages in conduct that clearly shows that the defendant has relinquished the right to be heard on that order. The defendant’s failure to file defenses by a motion or by a sworn or verified answer or to appear at the hearing duly scheduled on the order to show cause presumptively constitutes conduct that clearly shows that the defendant has relinquished the right to be heard. If a defendant files defenses by a motion or by a verified or sworn answer at or before the hearing, such action constitutes cause and 'precludes the entry of a final judgment at the hearing to show cause.
(d) If the court finds that the defendant has waived the right to be heard as provided in paragraph (b), the court shall promptly enter a final judgment of foreclosure. If the court finds that the defendant has not waived the right to be heard on the order to show cause, the court shall then determine whether there is cause not to enter a final judgment of foreclosure. If the court finds that the defendant has not shown cause, the court shall promptly enter a judgment of foreclosure.

(Emphases added.)

Section 702.10(1) thus contemplates a procedure to expedite the portion of mortgage foreclosure cases that are not materially defended. Through this statute, a mortgagee can accelerate a foreclosure case by moving the court to conduct a hearing to show cause and, if no cause is shown, obtaining a final judgment as a result of the hearing. But where cause is shown, the court is without authority to enter final judgment.

The plain language of the statute indicates that a trial court conducting a show cause hearing pursuant to section 702.10(1) is required to engage in a two-part analysis. First, the court must determine if the right to be heard has been waived as described in subsection (b). If the court determines that the defendant has waived that right, the court is obligated to enter final judgment for the plaintiff pursuant to subsection (d). If the right to be heard has not been waived, however, subsection (d) provides that the court must then determine whether the defendant has shown cause not to enter the judgment. And where the defendant has filed defenses by motion at or before the hearing, subsection (b) makes it clear that cause is statutorily established and the court is precluded from entering final judgment. Because the trial court erroneously entered final judgment contrary to subsection (b), we must reverse and remand the case for further proceedings.

Talmer argues that the trial court properly used the time at the show cause hearing to hear the defendants’ motion, deny it as meritless, and enter final judgment. In support, Talmer cites the portion of the statute requiring the order to show cause to state that the time at the show cause hearing may be used to hear the defendant’s defenses by motion. We cannot agree.

Talmer’s interpretation conflicts directly with the clear and unambiguous language in subsection (b), which declares that the filing of defenses “constitutes cause and precludes the entry of a final judgment.” This court’s “duty to read the provisions of a statute as consistent with one another ... and to give effect and meaning to the entirety of the legislative enactment at issue” does not permit an interpretation that would ignore clear and unambiguous language to the contrary contained within the same statute. Am. Home Assurance Co. v. Plaza Materials Corp., 908 So.2d 360, 366 (Fla.2005). Consequently, we must reverse the final judgment and remand the case for further proceedings consistent with this opinion.

Reversed and remanded.

NORTHCUTT and VILLANTI, JJ., Concur.

      . We also note that even without reference to section 702.10, it was error to enter final judgment upon the denial of the defendants’ motion to dismiss. See Lehew v. Larsen, 124 So.2d 872, 873 (Fla. 1st DCA 1960) ("While a motion to dismiss admits, for the purposes of the consideration thereof, the truth of all facts well pleaded in the complaint, such admission does not preclude the movant, in the event the motion is denied, from filing an answer denying every material allegation of the complaint.”).


author: DAVIS, Judge.

text:
    Francis Paul SICOLA, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2734.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2013.
    Howard L. Dimmig, II, Public Defender, and J.L. “Ray” LeGrande, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   DAVIS, Judge.

Francis Paul Sicola challenges his conviction and sentence for first-degree murder. He was convicted following a jury trial, and the trial court sentenced him to life imprisonment. We affirm and write only to address Sicola’s argument that the trial court committed fundamental reversible error by giving a certain jury instruction on manslaughter as a lesser included offense of first-degree murder.

Relying on State v. Montgomery, 39 So.3d 252 (Fla.2010), Sicola maintains that the instruction given amounts to fundamental error because it included the phrase “intentionally caused the death of’ the victim. However, the manslaughter instruction given at Sicola’s trial is distinguishable from the instruction given in Montgomery in that it included the following sentence: “In order to convict of manslaughter by intentional act, it is not necessary for the state to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death.” Such instruction reflects an amendment to the standard instruction that was enacted after Montgomery’s trial but prior to the Montgomery opinion issuing.

This court already has held that this “amended instruction cured the defect present in Montgomery.” See Daniels v. State, 72 So.3d 227, 231 (Fla. 2d DCA 2011), review granted, 79 So.3d 744 (Fla. 2012). As such, we find no error in the jury instruction used in the instant case. However, as we did in Daniels, we certify conflict with the First District’s opinion in Riesel v. State, 48 So.3d 885 (Fla. 1st DCA 2010), and its progeny within the First District, which came to the conclusion that the last line of the amended instruction does not cure the Montgomery defect.

Finding no merit in the remainder of the issues raised by Sicola on appeal, we affirm without further comment.

Affirmed; conflict certified.

CASANUEVA and BLACK, JJ„ Concur.


author: PER CURIAM.

text:
    Todd BOESE, Appellant, v. Andrea BOESE, Appellee.
    No. 2D12-2438.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2013.
    Paul F. Grondahl of Barnes Walker, Goethe & Hoonhout, Chartered, Braden-ton, for Appellant.
    Susan J. Silverman, Sarasota; and Melton H. Little of Kallins, Little & Delgado, Palmetto, for Appellee.
   PER CURIAM.

Todd Boese appeals the final judgment that dissolves his marriage to Andrea Boese. We affirm the final judgment and write only to clarify that the language of the final judgment requiring the parties to share the cost of uncovered medical expenses in their proportional shares shall control over the language in the parenting plan that inadvertently required Mr. Boese to pay all of those expenses. To avoid any confusion, on remand, the trial court may amend the language of the parenting plan in this regard if the parties believe an amendment would be helpful.

Affirmed.

ALTENBERND, VILLANTI, and KHOUZAM, JJ., Concur.


text:
    Lloyd CURTIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-1584.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2013.
    Lloyd Curtis, pro se.
   DAVIS, Judge.

Lloyd Curtis appeals the summary denial of his motion to withdraw plea filed under Florida Rule of Criminal Procedure 3.170(0- We reverse the postconviction court’s denial and remand for further proceedings.

A motion to withdraw plea under rule 3.170(0 must be filed within thirty days after rendition of the sentence. According to Curtis, he provided his motion to officials at Manatee County Jail on June 2, 2011, fewer than thirty days after his May 19, 2011, sentencing. However, the trial court did not receive the motion until November 1, 2011, when Curtis attached it to a letter directed to the clerk of the circuit court. Curtis sent this letter only after a notice of inquiry, filed on August 18, 2011, failed to elicit a ruling on his motion. Curtis has maintained that no tracking mechanism was in place at Manatee County Jail at the time he first submitted his rule 3.170(i) motion, and therefore, the only means of dating the motion is the certificate of service, which reflects a June 2, 2011, filing. See Thompson v. State, 761 So.2d 324, 325 (Fla.2000). Based on the date on the certificate of service, and pursuant to the mailbox rule, Curtis claimed that the circuit court should have deemed his motion timely and considered it on the merits.

The postconviction court denied Curtis’s motion to withdraw plea, finding that it was without jurisdiction to consider the motion and that the motion, as filed, could not be construed as one pursuant to Florida Rule of Criminal Procedure 3.850. See Gafford v. State, 783 So.2d 1191, 1192 (Fla. 1st DCA 2001) (“Failure to file a motion to withdraw the plea within BO days waives the issue for appellate review, and the defendant is limited to filing a motion pursuant to [rule 3.850].”). The postcon-viction court concluded by offering Curtis an opportunity to amend his claim and refile it pursuant to the requirements of rule 3.850. In so doing, the postconviction court failed to provide any support or explanation for its apparent finding that Curtis’s argument for timeliness was merit-less. However, absent a clear indication otherwise, “the date reflected on the certificate of service is presumed to be the date on which the document is filed.” See Bulley v. State, 857 So.2d 237, 239 (Fla. 2d DCA 2003) (citing Thompson, 761 So.2d at 326); see also Fla. R.App. P. 9.420(a)(2).

Therefore, we reverse the denial of Curtis’s motion and remand for the postconviction court to reconsider the issue of timeliness and, if appropriate, rule upon the merits of the motion.

Reversed and remanded.

KHOUZAM and MORRIS, JJ., Concur.


author: WALLACE, Judge.

text:
    FISH TALE SALES & SERVICE, INC., Petitioner, v. William NICE and Maria Condeiro-Nice, Respondents.
    No. 2D12-2694.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2013.

      John D. Kallen of John D. Rallen, P.A., North Miami Beach, for Petitioner.
    Ben Murphey of Lawlor Winston White & Murphey, Fort Lauderdale, for Respondents.
   WALLACE, Judge.

Fish Tale Sales and Service, Inc., petitions for certiorari review of an order denying its motion to file a third-party complaint in the underlying action. Because we conclude that the circuit court departed from the essential requirements of the law in denying Fish Tale’s motion, resulting in material harm that cannot be remedied on plenary appeal, we grant the petition and quash the order on review.

I. THE FACTS

In March 2011, William Nice and Maria Condeiro-Niee (the Nices) filed suit against Fish Tale; Chaparral Boats, Inc.; Federal-Mogul Corporation; and Volvo Penta of Americas, Inc., for personal injuries they sustained on December 19, 2008, in a flash explosion aboard their twenty-four-foot Chaparral boat. Fish Tale, the retailer, sold the boat to the Nices and later performed repairs to the boat on May 27, 2008. Chaparral manufactured the boat. The boat came equipped with an engine manufactured by Volvo and a fuel pump manufactured by Federal-Mogul. According to the amended complaint, the explosion resulted from a leak in the fuel pump. The Nices alleged that “[a]t all material times, the boat was unfit for its intended and foreseeable use, defective, and unreasonably dangerous.”

The amended complaint alleges claims against Fish Tale by each of the Nices for negligence and strict liability. The negligence claims assert active negligence by Fish Tale in “failing to properly service and inspect the boat,” “failing to properly repair the boat,” “failing to warn [the Nices] of the dangers associated with the defective fuel pump],” and “allowing] the defect to pass through its shop undetected.” The strict liability claims assert that “[w]hen [Fish Tale] placed the boat into the stream of commerce, it was unreasonably dangerous because of the defect” and that therefore Fish Tale was strictly liable for the Nices’ injuries caused “as a direct and proximate result of the defect.” William Nice also alleged a breach of contract claim against Fish Tale, alleging that he contracted with Fish Tale for inspection and repair of the boat and that Fish Tale breached its contract by failing to detect and repair the defective fuel pump.

In addition, the Nices each asserted claims for negligence and strict liability against Chaparral, Federal-Mogul, and Volvo in the amended complaint. The negligence claims against Chaparral asserted that it was actively negligent in “failing to properly design and manufacture the boat,” “failing to properly inspect and test the boat,” “failing to warn [the Nices] of the dangers associated with the defective fuel pump],” and “allowing] the defect to pass through its shop undetected.” With respect to the strict liability claim, the Nices asserted that “[w]hen [Chaparral] placed the boat into the stream of commerce, it was unreasonably dangerous because of the defect” and that thus Chaparral was strictly liable for the Nices’ injuries caused “as a direct and proximate result of the defect.”

The Nices’ negligence claims against Volvo similarly asserted that Volvo was actively negligent in “failing to properly design and manufacture the engine,” “failing to properly inspect and test the engine,” “failing to warn [the Nices] of the dangers associated with the defective fuel pump],” and “allow[ing] the defect to pass through its shop undetected.” The Nices’ strict liability claims against Volvo asserted that “[w]hen [Volvo] placed the engine into the stream of commerce, it was unreasonably dangerous because of the defect” and that thus Volvo was strictly liable for the Nices’ injuries “as a direct and proximate result of the defect.”

With respect to Federal-Mogul, the Nices’ negligence claims asserted that Federal-Mogul was actively negligent in “failing to properly design and manufacture the fuel pump,” “failing to properly inspect and test the fuel pump,” “failing to warn [the Nices] of the dangers associated with the defective fuel pump],” and “allow[ing] the defect to pass through its shop undetected.” Under the strict liability claims against Federal-Mogul, the Nices asserted that “[w]hen [Federal-Mogul] placed the fuel pump into the stream of commerce, it was unreasonably dangerous because of the defect” and that thus Federal-Mogul was strictly liable for the Nices’ injuries “as a direct and proximate result of the defect.”

Fish Tale served an answer and affirmative defense on April 4, 2011. Subsequently, the Nices’ depositions were taken and the parties exchanged written discovery materials. Thereafter, on December 6, 2011, the Nices served notice of dropping Chaparral, Federal-Mogul, and Volvo from the underlying action without prejudice. However, they did not file an amended complaint or withdraw their allegations that the flash explosion was caused by a defective fuel pump.

On January 18, 2012, Fish Tale moved for leave to file a third-party complaint against Chaparral, Federal-Mogul, and Volvo. It attached a copy of the proposed third-party complaint, asserting that the Nices had sued it under theories of negligence and strict liability because it had sold the Nices a boat with a defective fuel pump. Fish Tale asserted that it did not design or manufacture the fuel pump, the engine (of which the fuel pump was a component part), or the boat in which the fuel pump and engine were installed but that the third-party defendants had done so. In addition, Fish Tale asserted that it sold the boat to the Nices “without any material change or modification to the fuel pump, engine[,] or boat.” Fish Tale alleged that “to the extent that Fish Tale is hable by reason of a defective fuel pump and unreasonably dangerous condition of the boat, the liability would be vicarious, secondary, derivative and/or technical and not by reason of any active fault or negligence on its part” and that the third-party defendants would be hable to Fish Tale under common law or equitable indemnity. Fish Tale also asserted a claim for contribution against the third-party defendants “[t]o the extent that a defective fuel pump and unreasonably dangerous condition of the boat was a substantial contributing cause of [the Nices’] damages.”

The Nices filed a response to Fish Tale’s motion to file a third-party complaint and argued that the underlying matter was controlled by substantive general maritime law (GML) and Florida procedural law. The Nices asserted that they dropped the third parties to “streamline the litigation in this case” and that permitting Fish Tale to file its third-party complaint would “needlessly take more judicial effort and party resources.”

The Nices further asserted that under GML, Fish Tale could not seek indemnity against the third parties until it paid damages based upon vicarious liability for the third parties. Accordingly, the Nices asserted that Fish Tale lacked standing to file a third-party complaint because the Nices did not assert any claims against Fish Tale for vicarious liability, because Fish Tale had not paid any damages, and because a jury might find that Fish Tale was actively negligent as opposed to strictly liable.

Finally, the Nices argued that Fish Tale could only seek contribution based upon a common liability with the third-party defendants to the Nices. The Nices argued that because Fish Tale denied any wrongful conduct or liability to the Nices, it lacked standing to bring contribution claims that were not ripe and may never ripen. Similarly, the Nices argued that the contribution claims that Fish Tale sought to assert against the third-party defendants were not ripe because the jury may find against Fish Tale only on the active negligence and the breach of contract counts and not on the strict liability counts. The Nices made the same arguments in this proceeding in support of the circuit court’s denial of Fish Tale’s motion to file a third-party complaint.

Following a hearing, the circuit court denied Fish Tale’s motion to file a third-party complaint. The parties acknowledge that the hearing was not reported. The circuit court’s order does not contain any factual or legal findings.

II. DISCUSSION

Our standard of review in a cer-tiorari proceeding requires this court to determine whether the trial court’s order is: “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal.” See Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995).

Kelly v. Philip Morris USA Inc., 69 So.3d 1078, 1079 (Fla. 2d DCA 2011).

We conclude that the circuit court’s denial of Fish Tale’s motion results in material and irreparable harm. Unless Fish Tail is permitted to implead the third parties potentially responsible for the Nices’ injuries, it may be exposed to an inconsistent outcome in any independent action against those parties. Even if, as the Nices suggest, Fish Tale could seek contribution or indemnity against the third parties in an independent action at the conclusion of the underlying litigation, those parties would not be bound by the jury’s findings in this litigation and the outcome in the independent action may be inconsistent with the outcome in the present case. See Sterling Drug, Inc. v. Lugo, 614 So.2d 16, 16-17 (Fla. 3d DCA 1993); Steak Enters., Inc. v. Claus, 345 So.2d 1075, 1076 (Fla. 4th DCA 1976); see also Ohio Cas. Ins. Co. v. Fennell, 686 So.2d 1, l(Fla. 2d DCA 1995) (citing Sterling and Steak Enters.). The potential for an inconsistent outcome in a subsequent action against the third parties cannot be remedied on plenary appeal of the underlying matter. See Steak Enters., 345 So.2d at 1076. Thus Fish Tale has met the jurisdictional requirement for certiorari review. See Kelly, 69 So.3d at 1079.

In addition, we conclude that the circuit court departed from the essential requirements of the law in denying Fish Tale’s motion to file a third-party complaint. Florida Rule of Civil Procedure 1.180(a) permits a defendant to file a third-party complaint “on a person not a party to the action who is or may be liable to the defendant for all or part of the plaintiffs claim against the defendant.” Where appropriate, courts should liberally allow defendants to assert third-party claims for indemnity, particularly at the beginning of a lawsuit, so as to fulfill the purpose of rule 1.180 “to bring all interested parties into the same action.” Safecare Med. Ctr. v. Howard, 670 So.2d 1020, 1023 (Fla. 4th DCA 1996).

Although the availability of common law indemnity under GML is quite limited, a nonnegligent tortfeasor is entitled to seek indemnity against the manufacturer of a defective product that injures a plaintiff to whom the nonnegligent tort-feasor may be held liable. Hardy v. Gulf Oil Corp., 949 F.2d 826, 833 (5th Cir.1992); Fuesting v. Lafayette Parish Bayou Vermilion Dist., No. 02-2511, 2007 WL 1728655, at *2 n. 2 (W.D.La. June 13, 2007) (not reported in F.Supp.2d); see also Sol v. City of Miami, 776 F.Supp.2d 1375, 1378-79 (S.D.Fla.2011) (observing that GML recognizes claims for indemnity by a nonnegligent tortfeasor against the party actually at fault); Colmnbus-McKinnon Corp. v. Ocean Prods. Research, Inc., 792 F.Supp. 786, 788 (M.D.Fla.1992) (stating that one of the indemnity theories recognized under GML “allows a vicariously liable or non[ ]negligent tortfeasor to be entitled to indemnity from a co[]debtor guilty of actual fault” (internal quotation marks omitted)). Similarly, GML recognizes that a tortfeasor who shares a common legal liability to a plaintiff with another tortfeasor may seek contribution from the second tortfeasor. Sol, 776 F.Supp.2d at 1379-80; Columbus-McKinnon Corp., 792 F.Supp. at 789.

Fish Tale’s third-party complaint states a viable claim for indemnity against the third-party _ defendants. The third-party complaint alleges that Fish Tale is a nonnegligent tortfeasor who may be held strictly hable for a defective product manufactured by the third-party defendants. And the fact that a jury may find Fish Tale to be actively negligent rather than merely passively negligent is irrelevant to whether Fish Tale should be permitted to plead an indemnity claim against the third-party defendants. See Broward Marine, Inc. v. New England Marine Corp. of Del., 386 So.2d 70, 73 (Fla. 2d DCA 1980); Lin-pro Fla. Inc. v. Almandinger, 603 So.2d 666, 666-67 (Fla. 4th DCA 1992).

Similarly, Fish Tale asserted a viable claim for contribution against the third-party defendants based upon their potential common liability to the Nices. The third-party complaint seeks contribution from the third-party defendants in the event Fish Tale is found to be actively negligent “[t]o the extent that a defective fuel pump and unreasonably dangerous condition of the boat was a substantial contributing cause of [the Nices’] damages.” See Sol, 776 F.Supp.2d at 1380 (holding that allegation that the two tort-feasors “might share responsibility for the accident ... satisfie[d] the ‘common legal liability’ requirement”).

Moreover, contrary to the Nices’ assertion, Fish Tale need not wait until it has actually paid damages to the Nices to seek indemnity or contribution from the third-party defendants. As noted by Fish Tale in its petition, Federal Rule of Civil Procedure 14(c)(1), which governs third-party practice in admiralty and maritime claims, recognizes that a “defendant [in such action] may, as a third-party plaintiff, bring in a third-party defendant who may be wholly or partly liable — either to the plaintiff or to the third-party plaintiff — for remedy over, contribution, or otherwise on account of the same transaction[ or] occurrence.” See Ambraco, Inc. v. Bossclip B.V., 570 F.3d 233, 241-42 (5th Cir.2009) (holding that the district court erred in ruling that a defendant in an admiralty action could not bring claims for contribution or indemnity under rule 14(c) against a prior defendant in the action that was dismissed from the lawsuit).

In addition, the Nices do not argue, and nothing in Fish Tale’s appendix reflects, any abuse by Fish Tale in seeking to assert the third-party claims or any prejudice to the Nices in permitting Fish Tale to file the third-party complaint. Significantly, the Nices sued the third parties when they filed their amended complaint in March 2011. Thus the Nices were aware of the identities of the third parties and of their potential liability for the injuries alleged, and the Nices have been able to conduct discovery directed at the third parties. After the Nices’ claims against the third-party defendants were pending for about nine months, they dropped their claims against the third parties to “streamline the litigation” and to avoid expending “judicial effort and party resources.” Within six weeks of the service by the Nices of their notice of dropping parties, Fish Tale Sled its motion for leave to file a third-party complaint against the third parties to assert claims for contribution and indemnity. The claims that Fish Tale asserts against the third-party defendants in its third-party complaint arise from the same theories of liability that the Nices had previously asserted against the third parties. Thus the Nices would not be prejudiced by permitting the amendment.

Finally, we disagree with the Nices’ argument under Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979), that Fish Tale failed to preserve any legal error for review because it did not provide a transcript of the hearing on its motion for leave to file a third-party complaint. First, the lack of a transcript does not raise a preservation problem. Rather, it could potentially impact this court’s ability to determine whether the circuit court committed error. However, because there is no factual dispute in this case, Applegate is inapposite. See Martin v. Dep’t of Revenue ex rel. Martin, 827 So.2d 367, 368 (Fla. 2d DCA 2002). And although the circuit court’s order does not state its reason for denying Fish Tale’s motion for leave to file a third-party complaint, the Nices’ arguments asserted in opposition to the motion in the circuit court, which are the same arguments that the Nices assert in their petition, are without merit and do not support the circuit court’s decision. In addition, because Fish Tale asserted viable claims against the third-party defendants in its third-party complaint and because no prejudice to the Nices would result from permitting Fish Tale to file its third-party complaint, the circuit court departed from the essential requirements of the law in denying Fish Tale’s motion.

III. CONCLUSION

Based upon the foregoing discussion, we grant the petition and quash the order under review.

Petition granted, order quashed, and case remanded for further proceedings.

DAVIS and BLACK, JJ., Concur.

      . The Nices also asserted claims for vicarious liability against Chaparral and Volvo for the conduct of Fish Tale, but those claims are not relevant to our analysis of the issues on review.


author: MAKAR, J.

text:
    CRITICAL INTERVENTION SERVICES, Appellant, v. FLORIDA REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, and Winston A. Edwards, Appellee.
    No. 1D12-2069.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2013.

      Thomas A. Valdez and Peter J. Molinel-li, Quintarnos, Prieto, Wood & Boyer, P.A., Tampa, for Appellant.
    Norman A. Blessing, General Counsel, and Louis A. Gutierrez, Senior Attorney, Florida Reemployment Assistance Appeals Commission, Tallahassee, for Appellee.
   MAKAR, J.

Critical Intervention Services (CIS) appeals an order of the Reemployment Assistance Appeals Commission (RAAC), affirming an award of reemployment assistance benefits to former employee, Winston Edwards. The appeals referee found that Edwards’s conduct, pursuing and confronting a shoplifting suspect outside a store despite a company rule against doing so, did not “rise to the statutory definition of misconduct.” We disagree but remand for a determination of whether Edwards “could not reasonably know” of the rule.

I.

CIS employed Edwards as a protection officer from late December 2009 to November 2011. By all accounts, Edwards was a good officer who did his job well; he had no record of discipline and had been effective in his position. Edwards began working for a CIS client, Save-a-Lot stores, in August 2011. In early November 2011 CIS terminated Edwards for violating its rule against pursuing suspected shoplifters beyond a store’s entrance. A few months prior to Edwards’s assignment to Save-A-Lot, CIS issued an April 15th “post order” specific to all Save-a-Lot locations that directed protection officers not to pursue shoplifters past store entrances/exits. A “post order” has the same force as codified standard operating procedures under CIS’s uniformed services protocols. On September 28, 2011, CIS also issued an “area alert” to employees advising that 2011 updates existed for Save-a-Lot locations; employees were to contact CIS’s communications center if one was not posted at their location.

After an initial denial of benefits, Edwards requested a hearing, which the appeals referee held telephonically by conferencing in Edwards and CIS representatives. At the outset, CIS’s director of risk management testified and presented evidence of the update, the area alert, and its standard operating procedures, which required Edwards to cheek all updates and be aware of all updates and area alerts.

For his part, Edwards testified he had no actual knowledge of the updated policy. He had worked at eight different Save-a-Lot locations over the course of a couple months, and successfully intervened on five or six occasions at the same Save-A-Lot stores to effectuate the arrests of suspected shoplifters. He questioned how the area alerts would have given him cause to seek out post orders, particularly those issued prior to his assignment. He had acknowledged receipt of the 2011 area alert related to updates for Save-a-Lot locations, but testified that because he had to call in to the communications center for updates (versus logging in via a computer as he had done on other job sites) he did not become aware of the no-pursuit rule. He noted multiple errors in the CIS incident report and opined that the disciplinary action was based on a simple miseom-munication rather than anything to do with his otherwise spotless record.

As to the incident, he testified that the on-site store manager told him to speak with the suspected shoplifter who had left the store. After Edwards spoke to the suspect at her car, she voluntarily returned to the store, left a package of vanilla pudding, but exited when informed she would be arrested. Edwards followed her to her car, asking that she stay until police arrived; she ignored him and sped off-grazing Edwards on her way out.

Based on hearing testimony and evidence, the appeals referee made the following findings of fact:

The claimant worked full-time for Critical Intervention Services from December 29, 2009, through November 6, 2011, as an officer. As of April 15, 2011, the employer’s shoplifting policy prohibits employees from pursing, [sic] engaging, confronting, or hindering a suspected shoplifting [sic]. The employer’s previous shoplifting policy allowed employees to purse, [sic] engage, confront, or hindered [sic] a suspected shoplifter. The claimant was not aware of the employer’s new shoplifting policy. On October 23, 2011, the claimant engaged a suspected shoplifting [sic] at one of the employer’s job site location [sic] at the request of the store manager. The claimant believed he was acting in accordance to [sic] the employer’s policy. The claimant was discharged by employer on November 6, 2011, for violating the employer’s shoplifting policy.

On these findings, the appeals referee concluded Edwards had not committed misconduct, and was therefore entitled to benefits; the RAAC affirmed the decision in a standard order.

II.

The statutory definition of misconduct is central to this appeal. As of its amendment in 2011, the definition provided that misconduct is:

A violation of an employer’s rule, unless the claimant can demonstrate that:
1. He or she did not know, and could not reasonably know, of the rule’s requirements;
2. The rule is not lawful or not reasonably related to the job environment and performance; or
3. The rule is not fairly or consistently enforced.

§ 443.036(30)(e), Fla. Stat. (2011). The employer carries the initial burden of proving misconduct. See Arbor Tree Mgmt., Inc. v. Fla. Unemployment Appeals Comm’n, 69 So.3d 376, 382 (Fla. 1st DCA 2011). Here, there is no dispute that the no-pursuit rule was in place and that Edwards twice went into the Save-A-Lot parking lot to interface with the suspect; CIS therefore carried its burden by submitting evidence of Edwards’s rule violation.

Because CIS met its burden to show misconduct (as defined in the statute), it was then incumbent upon Edwards to show one of the exceptions under section 443.036(30)(e)(l)-(3). Neither subpar-agraph (2) nor (3) was addressed below. Instead, at issue in this appeal is only subparagraph (e)(1), which requires that an employee prove he did not know of the rule, and he “could not reasonably know” of the requirements of the rule. § 443.036(30)(e)(l). The appeals referee’s decision passed upon the first part of the exception, finding credible Edwards’ testimony that he did not know of the rule. The decision, however, failed to pass upon the second part — whether Edwards “could not reasonably” have known of the rule. Subparagraph (e)(1) is a two-part conjunctive test: both parts must be met. While the first part of the test is a subjective test of what the employee knew or did not know, the second part is an objective test of “reasonableness” in light of the record presented. See Turner v. PCR, Inc., 754 So.2d 683, 688 (Fla.2000) (distinguishing actual knowledge, a subjective standard, from “should have known,” an objective determination of reasonableness).

Here, the appeals referee cited the correct law, but failed to make findings that show objectively that Edwards “could not reasonably” have known about the no-pursuit rule. Throughout the hearing and in closing, CIS argued that the second factor was not met, but the appeals referee’s order neglected this point. While the record appears to contain little to support the notion that Edwards could not reasonably have known of the no-pursuit rule, we nonetheless remand for the limited purpose of allowing the appeals referee to make factual findings on this question in the first instance. See Intelligence Grp., Inc. v. Dep’t of State, Div. of Licensing, 610 So.2d 589, 591 (Fla. 2d DCA 1992); Gentile v. Dep’t of Prof'l Regulation, 448 So.2d 1087 (Fla. 1st DCA 1984). As noted, this inquiry entails an objective analysis of reasonableness, not Edwards’s subjective belief.

The decision of the appeals referee, affirmed by the RAAC, is REVERSED, and the matter is REMANDED for further proceedings consistent with this opinion.

WETHERELL and LEWIS, 33., concur.


author: LaROSE, Judge.

text:
    A.D., Appellant, v. STATE of Florida, Appellee.
    No. 2D11-222.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 2013.

      Ita M. Neymotin, Regional Counsel, Second District, Robert D. Rosen and Joseph T. Sexton, Assistant Regional Counsels, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   LaROSE, Judge.

A.D., a juvenile, appeals his adjudication and the disposition of probation for burglary of a conveyance, grand theft of a motor vehicle, petit theft, criminal mischief, and trespass. See §§ 810.02(4)(b), 812.014(2)(c)(6), 812.014(3)(a), 806.13, 810.09(2)(a), Fla. Stat. (2010). A.D. argues that the trial court erred in denying his motions for judgment of acquittal. We affirm the criminal mischief, petit theft, and trespass adjudications. We reverse the adjudications for burglary and grand theft because the State failed to rebut A.D.’s hypothesis of innocence. As a result, we also remand for a new disposition hearing.

A minivan was stolen late at night from the Delara family’s property. The Delaras prominently displayed “private property” and “no trespassing” signs. Ms. Delara noticed their minivan’s lights on. She and her father went outside and saw that the minivan had crashed through a closed gate and had driven off. They also found their four-wheel all-terrain vehicle (ATV) smashed against the gate near a broken mailbox.

A deputy saw the stolen minivan speeding and swerving on and off the road. It turned onto a dirt road, hit a culvert, rolled over, and landed on the passenger side. Three youths were inside singing and moving their arms to music and making lewd gestures towards the deputy. A.D. was one of the three.

According to M.P., A.D. and K.B. were spending the night at his house. They were walking by the Delara property when M.P. saw the ATV and wanted to ride it. Without the owners’ permission, the three boys jumped over the fence onto the property.

M.P. drove the ATV into the fence; the fence fell on his leg. A.D. helped to extricate M.P. For his part, K.B. got in and started the van, drove it through the fence, picked up M.P. and A.D., and drove away. Neither M.P. nor A.D. told K.B. to stop.

I. Analysis

We review the denial of a motion for judgment of acquittal de novo. See I.M. v. State, 917 So.2d 927, 929 (Fla. 1st DCA 2005). A.D. argues that the evidence was insufficient to establish that he entered the property with the intent to commit a crime. He also argues that the State failed to show that he did more than trespass onto the property and later get into the already stolen van. A.D. contends that the circumstantial evidence did not exclude his reasonable hypothesis of innocence that his two eodefendants acted independently when M.P. wrecked the ATV and K.B. stole the van. See State v. Law, 559 So.2d 187, 188 (Fla.1989).

II. Burglary and Grand Theft of a Motor Vehicle

A.D. argues that the State’s evidence of grand theft and burglary was insufficient because K.B. took the van without A.D.’s knowledge or encouragement while A.D. was trying to remove the broken gate from M.P.’s leg. The State was required to show that A.D. aided and abetted K.B. in stealing the van. See Jacobs v. State, 396 So.2d 713, 716 (Fla.1981). Nothing in our record indicates that A.D. knew that KB. planned to steal the van. In fact, M.P. and A.D. ran away after the ATV crash; they entered the van only after K.B. had already driven it from the property.

G.C. v. State is instructive. 560 So.2d 1186 (Fla. 3d DCA 1990), abrogation on other grounds recognized by S.W. v. State, 999 So.2d 701, 702 n. 1 (Fla. 3d DCA 2008). There, the (Fla. 3d DCA 2008). There, the Third District held that merely being a passenger in a vehicle known to be stolen is insufficient to support a theft charge. “Use alone ... is not enough”; theft requires the specific intent to deprive the owner of the property. Id. at 1187. “In the context of an automobile theft, [intent] would be shown, if not by aid or participation in the taking of the vehicle, then by some exercise of dominion and control over it afterwards.” Id. Because G.C. never took control of the vehicle, the court reversed his adjudication of delinquency for both theft and burglary. Id. at 1187-88.

Like G.C., A.D. entered the van after K.B. had driven it off the property. A.D. did not commit theft because he did not exercise dominion or control over the van at any point. See id. Additionally, A.D.’s after-the-crash behavior fails to establish participation in the theft. See Valdez v. State, 504 So.2d 9, 10 (Fla. 2d DCA 1986). Thus, the State failed to present evidence inconsistent with A.D.’s hypothesis of innocence that, after trespassing on the Delar-as’ property and helping M.P., he became frightened and fled, subsequently making the bad decision to enter the stolen van. The trial court should have granted A.D’s motion on the grand theft charge. See Law, 559 So.2d at 189 (“[I]f the state does not offer evidence which is inconsistent with the defendant’s hypothesis, ‘the evidence [would be] such that no view which the jury may lawfully take of it favorable to the [state] can be sustained under the law.’ ” (alteration in original) (quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974))).

The State also charged A.D. with burglary in connection with the van theft. Section 810.02(l)(b)(l), in relevant part, describes burglary as “[e]ntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter.” Indisputably, A.D. entered the van without the owner’s permission. But the State still had to prove that A.D. intended to commit a crime in the van. See Drew v. State, 773 So.2d 46, 52 (Fla.2000) (“The language of the burglary statute, as drafted by the Legislature, requires both an entry and the requisite intent to commit a crime within the conveyance.”). Because the theft charge fails, so too must the burglary charge to the extent it is based on an intent to steal the van. See G.C., 560 So.2d at 1188 (holding that because the theft charge against a juvenile passenger in a stolen vehicle failed, the burglary charge regarding the same vehicle must also fail).

To sustain the burglary charge, the State must have shown some other intent besides the theft. The State proposed that A.D. entered the van in furtherance of the ATV theft. Specifically, the State theorizes that once A.D. and M.P failed to make off with the ATV, the boys attempted to use the van to break through the gate so that they could then take the ATV. However, the evidence does not show that M.P. and A.D. knew what KB. was doing. Moreover, the fact that the boys did not retrieve the ATV contradicts the State’s theory. The trial court should have granted AD.’s motion in part, reducing the burglary charge to the lesser-included offense of trespass in a conveyance under section 810.08, Florida Statutes (2010). See D.L. v. State, 567 So.2d 5, 6 (Fla. 3d DCA 1990) (holding that a juvenile charged with burglary and theft of an automobile committed the lesser-included offense of trespass in conveyance when the State failed to show specific intent); G.C. v. State, 407 So.2d 639, 640 (Fla. 3d DCA 1981) (“Where two or more inferences must be drawn from the direct evidence, then pyramided to prove the offense, the evidence lacks the conclusive nature necessary to support a conviction.”).

Accordingly, we reverse A.D.’s adjudications of delinquency for burglary and grand theft, remanding for the trial court to reduce the burglary adjudication to trespass in a conveyance.

III. Theft of the ATY

To prove A.D. guilty of theft of the ATV, the State had to show that he knowingly obtained or used the ATV with the intent to deprive the owners of their use of it, right to it, or benefit from it. A.D. could be found guilty if he participated in a common scheme to steal the ATV. See Jacobs, 396 So.2d at 716. An aider and abettor “must have a conscious intent that the crime be done and must do some act or say some word which was intended to and does incite, cause, encourage, assist or advise another person to actually commit the crime.” R.J.K. v. State, 928 So.2d 499, 503 (Fla. 2d DCA 2006) (citing L.J.S. v. State, 909 So.2d 951 (Fla. 2d DCA 2005)).

Mere presence at the scene of the crime, knowledge of the crime, and even flight from the scene are insufficient to show that a defendant was an aider and abettor. See e.g., G.C., 407 So.2d at 640 (reversing an adjudication of delinquency of aiding and abetting in an attempted burglary when the defendant knew of the burglary plan, went to the scene with his codefendant, and stood fifteen feet back from the building as he watched his code-fendant remove a pane of the apartment’s glass window); C.P.P. v. State, 479 So.2d 858, 858-59 (Fla. 1st DCA 1985) (reversing an adjudication of delinquency for burglary and grand theft when the defendant, who knew of his codefendants’ plan to steal from a store, waited outside the store in a car with a lookout while two others committed the theft and then fled the scene in the car with the other boys). The State must demonstrate that the defendant “demonstrated a deliberate pattern of conduct” so that his actions go beyond mere presence at the scene. See T.S. v. State, 675 So.2d 196, 197-99 (Fla. 4th DCA 1996) (holding that the “appellant demonstrated a deliberate pattern of conduct” to affirm an adjudication of burglary when he and another boy were seen by a witness “zigzagging” from car to car in a parking lot at two o’clock in the morning and he stood by a car while the other boy broke into the vehicle).

To dodge A.D.’s motion for judgment of acquittal on this charge, the State had to provide evidence that (1) A.D. intended M.P. to knowingly use the ATV with the specific intent to either deprive the Delaras of or appropriate the ATV and (2) A.D. in some manner encouraged or assisted M.P. See T.J.T. v. State, 460 So.2d 508, 509 (Fla. 3d DCA 1984). The State relied on the evidence that M.P. testified that he announced to A.D. and K.B. that he wanted to ride the ATV, that all the boys then jumped over the fence onto the Delaras’ property, that A.D. helped remove the broken gate from M.P.’s leg after M.P. crashed the ATV, and A.D.’s statement to the police that “[w]e [the boys] didn’t get the four-wheeler all the way through [the fence].”

There is no evidence that A.D. said anything to encourage M.P., so, instead, we must examine A.D.’s actions. See id. at 509 (“An aider and abettor is one ... who, by acts or words, assists or encourages another in the actual commission of the crime.”). A.D.’s only action readily apparent from the record is his trespass onto the property. The State’s evidence of A.D.’s trespass, even if he had knowledge of M.P.’s plan, is insufficient to overcome the reasonable hypothesis of innocence that A.D. trespassed on the property following his friends, but refused to participate in the theft of the ATV and that M.P., on his own, took the ATV and smashed it into the fence. See C.P.P., 479 So.2d at 858-59 (holding that although the defendant sat in a car with a lookout and left the scene with the perpetrators, the reasonable hypothesis existed that the defendant stopped and refused to participate). Nor does AD.’s helping M.P. free himself from the fence call for a different result; after-the-fact behavior, even when suspicious, is insufficient to establish participation. See Gale v. State, 726 So.2d 328, 830 (Fla. 2d DCA 1999) (holding that the defendant’s “questionable after-the-fact behavior” of giving guns he found in a dumpster to a friend to hide rather than reporting the incident was insufficient to establish that the defendant was part of a group who committed robberies with said firearms); Valdez, 504 So.2d at 10 (“Mere presence at the scene, including driving the perpetrator to and from the scene or a display of questionable behavior after the fact, is not sufficient to establish participation.”).

But A.D.’s statement that “[w]e didn’t get the four-wheeler all the way through [the fence],” however, is inconsistent with A.D.’s theory of innocence. It is sufficient, competent evidence of both A.D.’s intent and participation in the theft. See T.S., 675 So.2d at 198 (“[I]t is [] clear that elements of assistance of the perpetrator and intent may be proved by a combination of surrounding circumstances.”); DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla.1957) (en banc) (holding that evidence is competent and substantial when “the evidence relied upon to sustain the ultimate finding [is] sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached”). Therefore, the trial court properly denied the motion for judgment of acquittal regarding the theft of the ATV. See K.O. v. State, 673 So.2d 47, 49 (Fla. 4th DCA 1995) (“While mere presence at the scene, knowledge of the crime, and flight are insufficient to justify a conviction, where the [S]tate presents additional evidence which contradicts the defendant’s theory of innocence, the trial court’s decision to deny a motion of acquittal must be affirmed.” (citing A.B.G. v. State, 586 So.2d 445, 445 (Fla. 1st DCA 1991); In the Interest of A.R., 460 So.2d 1024, 1025 (Fla. 4th DCA 1984)). Accordingly, we affirm AD.’s adjudications for theft of the ATV.

IV. Criminal Mischief

The State also charged A.D. with criminal mischief for the damage to the Delaras’ van, ATV, gate, and mailbox. A.D. claims that the court cannot adjudicate him delinquent for criminal mischief without specific intent because he did not commit the crimes that caused the damage. A person commits criminal mischief under section 806.13(l)(a), in relevant part, if he “willfully and maliciously injures or damages by any means any real or personal property belonging to another, including, but not limited to, the placement of graffiti thereon or other acts of vandalism thereto.” A.D. is correct that intent is an essential element of the charge. See R.R.W. v. State, 915 So.2d 633, 635 (Fla. 2d DCA 2005) (“An essential element of the crime of criminal mischief is the defendant’s willful and malicious causation of damage to the property of another.”).

A.D.’s statement that “[w]e didn’t get the four-wheeler all the way through [the fence]” is sufficient, competent evidence that A.D. intended M.P. to willfully damage the gate and the ATV. See K.O., 673 So.2d at 49. However, because we have already determined that A.D. never had control of the van, and there is no evidence that he encouraged KB. to hit the Delaras’ mailbox or encouraged K.B. to crash the van, A.D. is not responsible for the damage to the mailbox or the van. The State did not charge A.D. separately for each type of damage, and the trial court previously reduced the charge from first-degree to second-degree criminal mischief based on lack of proof of value. Thus, based on the State’s evidence for the damage to the gate and ATV alone, the trial court properly denied A.D.’s motion for judgment of acquittal. See id. Therefore, we affirm the adjudication for criminal mischief.

V. Conclusion

We reverse A.D.’s adjudication of delinquency for grand theft and remand for the trial court to reduce the burglary conviction to trespass in a conveyance. We affirm the remaining adjudications, but remand for a new disposition hearing.

Affirmed in part, reversed in part, and remanded.

CRENSHAW and MORRIS, JJ., Concur.


text:
    Christian Michael MATHES, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1577.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 2013.
    Howard L. Dimmig, II, Public Defender, and Mark J. O’Brien, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Gina M. Girardot, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Christian Michael Mathes challenges his judgment and sentences for conspiracy to commit racketeering and conspiracy to deliver heroin. On appeal, Mr. Mathes asserts for the first time that his convictions for both conspiracy to commit racketeering and conspiracy to deliver heroin violate double jeopardy. Because the conspiracy-to-deliver-heroin charge is an underlying objective of the conspiracy-to-commit-racketeering charge, we agree that the dual conspiracy convictions violate double jeopardy. We reverse Mr. Mathes’ conviction and sentence for conspiracy to deliver heroin, and we affirm Mr. Mathes’ conviction and sentence for conspiracy to commit racketeering.

The State charged Mr. Mathes, along with nineteen other coconspirators, with (1) racketeering, (2) conspiracy to commit racketeering, (8) trafficking in heroin, and (4) conspiracy to traffic in heroin. Mr. Mathes’ charges in this case arise from his participation in a criminal operation organized to import heroin from Puerto Rico for distribution and sale in Florida. Mr. Mathes’ involvement in the enterprise consisted primarily of his activity as a frequent purchaser of heroin, but the State also presented evidence at trial that Mr. Mathes occasionally resold the heroin he received from the criminal organization to various third parties. The State tried Mr. Mathes jointly with two other coconspira-tors similarly situated within the hierarchy of the criminal enterprise. Following the close of the State’s case, Mr. Mathes moved for a judgment of acquittal. The trial court granted Mr. Mathes’ motion on counts one and three and reduced count four to conspiracy to deliver heroin. The jury returned a verdict finding Mr. Mathes guilty of conspiracy to commit racketeering and conspiracy to deliver heroin. On appeal, Mr. Mathes argues that his convictions for both conspiracies violate double jeopardy.

“Because a double jeopardy violation constitutes fundamental error, it may be raised for the first time on appeal.” Eichelberger v. State, 949 So.2d 358, 859 (Fla. 2d DCA 2007); see also Haag v. State, 67 So.3d 351, 352 (Fla. 2d DCA 2011); Safrany v. State, 895 So.2d 1145, 1147 (Fla. 2d DCA 2005) (noting that a double jeopardy claim may be made for the first time on appeal “absent a knowing and voluntary waiver”).

In Negron Gil De Rubio v. State, 987 So.2d 217, 219 (Fla. 2d DCA 2008), this court recognized that multiple convictions for “a single conspiracy with multiple objectives, including racketeering and drug trafficking,” violate double jeopardy. Here, the State charged Mr. Mathes with two separate conspiracies in counts two and four of the supersedeas information. Count two charged twenty individuals, including Mr. Mathes, with conspiracy to commit racketeering, listing the underlying acts of the conspiracy as possession and/or delivery of heroin, trafficking in heroin, purchase of heroin, and multiple violations of the Federal Wiretap Act. Count four charged Mr. Mathes and the same coconspirators with conspiracy to traffic in heroin, although the trial court later reduced count four as applied to Mr. Mathes to conspiracy to deliver heroin. The information alleged that both the conspiracy to commit racketeering and the conspiracy to deliver heroin occurred within the period from April 15, 2009, to July 23, 2009.

In this case, the conspiracy to deliver heroin was subsumed into the conspiracy to commit racketeering because (1) the charge of conspiracy to commit racketeering named a conspiracy to deliver heroin as an objective of the racketeering conspiracy, (2) the same individuals were implicated in both offenses, and (3) the two conspiracies were alleged to have occurred during the same time frame. See James v. State, 61 So.3d 492, 498 (Fla. 2d DCA 2011) (finding that where a count of conspiracy to commit racketeering charged conspiracy to traffic cocaine as one of the goals of the racketeering conspiracy and the two conspiracies had the same duration and participants, “the conspiracy to traffic in cocaine was subsumed into the conspiracy to commit racketeering”); Rodriguez v. State, 36 So.3d 177, 179 (Fla. 2d DCA 2010) (finding a single conspiracy where a charge of conspiracy to commit racketeering alleged conspiracy to traffic in cocaine, and the two conspiracies had the same participants and occurred within the same period). Moreover, the evidence presented at trial established that only one comprehensive conspiracy existed, albeit a conspiracy with multiple objectives, which included racketeering and delivery of heroin. Negron Gil De Rubio, 987 So.2d at 219 (“If there is but a single agreement, then there is but a single conspiracy even though it involves the commission of multiple crimes.” (citing Durden v. State, 901 So.2d 967, 968 (Fla. 2d DCA 2005))); Rios v. State, 19 So.3d 1004, 1006 (Fla. 2d DCA 2009).

Because Mr. Mathes was convicted of conspiracy to commit racketeering with an underlying goal of conspiracy to deliver heroin and a separate offense of conspiracy to deliver heroin, we conclude that his convictions on both charges violate double jeopardy. Accordingly, we reverse Mr. Mathes’ conviction for conspiracy to deliver heroin and remand to the trial court to strike that conviction and sentence. See Rodriguez, 36 So.3d at 179-80 (holding that the proper remedy for this type of violation is to strike the conviction that drew the lesser sentence); Negron Gil De Rubio, 987 So.2d at 219.

Affirmed in part; reversed and remanded in part.

VILLANTI and KHOUZAM, JJ., Concur.

      . Mr. Mathes raised an additional argument on appeal; however, his remaining argument is without merit and does not warrant further discussion.

      . The State conceded in its brief that only one conspiracy existed and that the conspiracy to deliver heroin was part of the conspiracy to commit racketeering.

      . Mr. Mathes was sentenced to concurrent sentences of eight years' imprisonment on the conspiracy-to-commit-racketeering charge and five years’ imprisonment on the conspiracy-to-deliver-heroin charge.


author: CASANUEVA, Judge.

text:
    Danice DOGANIERO, Appellant/Cross-Appellee, v. Frank D. DOGANIERO, Appellee/Cross-Appellant.
    Nos. 2D11-6432, 2D11-6479.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 2013.

      Michael J. Park and Joseph R. Park of Park, Ossian, Barnaky & Park, P.A., Clearwater, for Appellant.
    Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellee.
   CASANUEVA, Judge.

In these consolidated appeals from a judgment dissolving the parties’ almost seventeen-year marriage, both parties seek review. Danice Doganiero (the Wife) contends, in appeal no. 2D11-6432, that the trial court erred in multiple respects; and Frank D. Doganiero (the Husband), in appeal no. 2D11-6479, contends that it erred in one. We affirm in part and reverse in part the Wife’s appeal, finding merit in one of her arguments, the amount of alimony, but find no reversible error in the other issues she raises which we affirm without further discussion. We also affirm the Husband’s consolidated appeal without further discussion.

In 1992 when the parties married, the Wife was thirty years old and the Husband was thirty-three. They had two sons, one born in 1993 and the other in 1996. At the time of the marriage, the . Husband was working for his brother in his software firm and also owned an interest in the firm. The brother sold the firm in 1998 and the Husband and Wife netted over three million dollars from the Husband’s share of the proceeds. The Husband invested a portion of this money in another company, PODS (Portable On Demand Storage); built a large home, estimated to be worth approximately $1.5 million at the time of trial in 2011; and commenced a marital lifestyle the trial court described as lavish. When the Husband sold his shares in PODS in 2007, he netted over five million dollars.

The Wife was primarily a homemaker and the Husband supported the family by investing in companies and real estate. He supported their luxurious marital lifestyle with the proceeds from each successive real estate deal or by tapping the equity in their home when the business deals did not provide sufficient income. Unfortunately, at the time of the real estate market collapse in 2008, the Husband was overexposed financially in real estate investments and was carrying a large debt-load which required servicing, a financial burden he had difficulty in meeting.

The Wife filed for dissolution in March 2009. Although the Husband filed various financial affidavits in the course of the proceedings, showing differing amounts of monthly income, he took the position at trial that he was unemployed and, therefore, was earning no income. During the dissolution proceedings, for a short time the Husband had a job at which he earned about $52,000 a year. But he lost this job before trial. Based on this evidence, the trial court imputed income to him of $52,000 a year. Based on the Wife’s age, health, and abilities, the Wife’s counsel stipulated to imputing income to her of $24,000 a year, and the trial court accepted this figure in its calculations. At the time of trial, there were no marital liabilities and only one marital asset of significance, the marital home owned free and clear; the only other marital assets were the couple’s personal belongings, two autos, and some cash accounts.

Both parties presented experts at trial in an attempt to value the marital estate. Based on the widely varying financial affidavits the Husband had submitted at different times to different people and the court, the Wife maintained that his investments could be the source of alimony and child support. The Husband claimed that he had no more capital to invest because he had divested himself of all his interests to pay off the marital debts. The lion’s share of these interests went to his longtime business partner to satisfy a promissory note that had been accelerated shortly after the Wife filed for dissolution. Both the Wife’s expert and the Husband’s expert agreed that all the liabilities were legitimate marital debts and the Husband’s action in paying off these debts was a reasonable financial decision and done in arm’s-length transactions.

In the equitable distribution scheme, the final judgment of dissolution noted that the Husband’s divestment of the marital assets was a reasonable decision and it left the parties upon dissolution without marital liabilities. But the Wife was thus put in a position of not being able to realize any income from these former positions or have any positive or potential credit or credit-worthiness that the Husband retained for the future. To compensate for this imbalance, the trial court ordered that the marital home be sold and that the Wife receive two-thirds of the net proceeds and the Husband one-third.

On appeal, the Wife claims that the trial court abused its discretion in awarding her only a nominal $100 a month in durational alimony, lasting sixteen years. The trial court found that she had a need for spousal support, that the marital standard of living was quite high during the marriage, and that $100 a month was not consistent with the marital standard of living during most of the marriage. However, the trial court also noted that their lifestyle must be reduced due to the intervening economic downturn and the Husband’s reduced ability to pay. In its final judgment, the trial court made no specific factual findings for its alimony award based upon an imputation of an annual income to the Husband of $52,000.

Section 61.08(7), Florida Statutes (2012), provides:

Durational alimony may be awarded when permanent periodic alimony is inappropriate. The purpose of durational alimony is to provide a party with the economic assistance for a set period of time following a marriage of short or moderate duration or following a marriage of long duration if there is no ongoing need for support on a permanent basis.

In determining whether to make an award of alimony, our legislature has demanded that “the court shall first make a specific factual determination as to whether either party has an actual need for alimony,” and, if so, the court “shall consider all relevant factors,” including those specified by statute. § 61.08(2). In addition to complying with this statutorily mandated directive, such findings immeasurably aid the reviewing court on appeal. See Orloff v. Orloff, 67 So.3d 271, 275 (Fla. 2d DCA 2011) (ordering that if, on remand, the court decides to award alimony, “it shall also make sufficient findings of fact as required by section 61.08(2) to support that award in order to facilitate further appellate review”). We are hampered in our review by the trial court’s lack of specific findings on the issue of alimony.

First, although the trial court’s determination is reviewed under an abuse of discretion standard, its discretion is not without borders. See Udell v. Udell, 998 So.2d 1168, 1170 (Fla. 2d DCA 2008) (holding that even in a situation where the trial court has “broad” discretion, such discretion is not unlimited); see also Coltea v. Coltea, 856 So.2d 1047, 1052 (Fla. 4th DCA 2003) (holding that in proceedings under chapter 61, a trial court’s discretion is not unlimited or to be applied mechanically). Here, assuming an annual income of $52,000 per year to the husband, an award of $100 per month in alimony to the wife, where that amount admittedly fails to meet the her needs, is woefully insufficient and beyond the pale. See Gilbert v. Gilbert, 447 So.2d 299, 305 (Fla. 2d DCA 1984) (Lehan, J., concurring in part and dissenting in part). We conclude that an award of $100 a month — where this payor is recognized to have imputed income and future prospects — is an award that no reasonable court would impose and is thus an abuse of discretion.

Furthermore, we question whether the trial court’s determination that the alimony be durational rather than permanent is appropriate. Durational alimony is to be awarded by statute, where “permanent periodic alimony is inappropriate.” See § 61.08(7). Here, the trial court found that the Wife has limited income potential, that the marriage’s duration was 16 years and 10 months, that the Wife was 49 years of age at the time of the final judgment and the Husband was 52 years of age, and that virtually all of the parties’ income came from the Husband’s investments. In light of these circumstances and the final judgment’s lack of factual findings that an award of permanent alimony is inappropriate, we reverse for further proceedings. On remand, the trial court is directed to determine pursuant to section 61.08(7) whether the Wife merits permanent periodic alimony; further, any type of alimony awarded must be of a legally sufficient amount. In doing so, to ensure meaningful appellate review — should one be necessary — the trial court must set forth its rationale for any award.

Appeal no. 2D11-6432 affirmed in part, reversed in part, and remanded for further proceedings; appeal no. 2D11-6479 affirmed.

CRENSHAW and BLACK, JJ„ Concur.

      . The parties do not dispute the equitable distribution of their personal belongings, autos, or cash accounts.


author: SALTER, J.

text:
    Alicia ROEMMELE-PUTNEY, et al., Appellants, v. Robert D. REYNOLDS, et al., Appellees.
    No. 3D12-333.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2013.

      Robert N. Hartsell, Fort Lauderdale; Robert Wright, Tallahassee; Richard Grosso, Ft.Lauderdale; Derek V. Howard, Assistant County Attorney, Monroe County Attorney’s Office, Key West; Andrew M. Tobin, Tavernier, for appellants.
    Barton W. Smith and Gregory S. Orope-za, Key West, for appellees.
    S. Curtis Kiser, General Counsel, and Martha C. Brown, Senior Attorney, and Pamela H. Page, Attorney, Tallahassee, as Amicus Curiae for the Florida Public Service Commission.
    Before SUAREZ, LAGOA and SALTER, JJ.
   SALTER, J.

The appellants are certain individual property owners on No Name Key in Monroe County, and the County itself. Other No Name Key property owners and the Utility Board of the City of Key West (doing business as “Keys Energy Services”) are the appellees. The legal issue presented to the circuit court and here is whether the County and private landowners may obtain judicial (declaratory and injunctive) relief establishing that the prospective electrification of No Name Key is regulated — or even precluded — by the Coastal Barrier Resources Act and the County’s policies and regulations adopted pursuant to that Act. Concluding that the Florida Public Service Commission has exclusive jurisdiction to decide the issues raised by the appellants, we affirm the circuit court judgment dismissing the complaint with prejudice for lack of jurisdiction.

The Complaint and Motion to Dismiss

In the complaint, Monroe County sued Keys Energy Services (KES) and the individual owners of forty-three developed properties on No Name Key. The County alleged that KES had the exclusive power and authority to extend electric service to the residences on .No Name Key owned by the individual defendants, and that a number of the property owners and KES were nearly ready to move from the design stage to actual installation. The County asked the circuit court to determine whether KES has the authority to extend the utility lines to the residences on No Name Key (Count I), and whether the property owners have the right to connect their homes to the KES lines despite an express prohibition in the Monroe County Code (Count II). In Count III of its complaint, the County sought temporary and permanent injunctive relief prohibiting KES and the property owners from “expending any funds or taking any steps toward the extension of electric service to No Name Key,” in furtherance of the declaratory judgments sought in Counts I and II.

The individual appellees, homeowners on No Name Key, were among the defendant property owners who applied to KES for electrical service. These appellees moved for the dismissal of Monroe County’s complaint on grounds that the Florida Public Service Commission (PSC) has exclusive jurisdiction to enforce, regulate, and resolve the issues raised by the County. The motion was briefed, argued, and ultimately granted (with prejudice) by the circuit court. This appeal followed. Analysis

Although KES is not a “public utility” within the definition of section 366.02(1), Florida Statutes (2011), it is an “electric utility” under the subsection which follows, section 366.02(2). Section 366.04, “Jurisdiction of commission,” in subsection (5), grants the PSC jurisdiction over “the planning, development, and maintenance of a coordinated electric power grid throughout Florida to assure an adequate and reliable source of energy for operational and emergency purposes in Florida and the avoid-anee of further uneconomic duplication of generation, transmission, and distribution facilities.” To that end, the homeowner appellees filed an administrative complaint with the PSC seeking the extension of electrical transmission lines to the No Name Key property owners.

As a threshold matter, and as the State entity charged by law with planning and regulating the generation and transmission of electrical power throughout Florida, the PSC is to determine its own jurisdiction. Fla. Pub. Serv. Comm’n v. Bryson, 569 So.2d 1253 (Fla.1990). Although Bryson involved a public utility, the case holds that “the PSC must be allowed to act when it has at least a colorable claim that the matter under its consideration falls within its exclusive jurisdiction as defined by statute.” Id. at 1255. Any claim by the County or by the appellant homeowners that the PSC does not have jurisdiction may be raised before the PSC and, if unsuccessful there, by direct appeal to the Florida Supreme Court. Art. V, § 3(b)(2), Fla. Const.

The appellees and the PSC also have argued, and we agree, that KES’s existing service and territorial agreement (approved by the PSC in 1991) relating to new customers and “end use facilities” is subject to the PSC’s statutory power over all “electric utilities” and any territorial disputes over service areas, pursuant to section 366.04(2)(e), Florida Statutes (2011). The PSC’s jurisdiction, when properly invoked (as here), is “exclusive and superior to that of all other boards, agencies, political subdivisions, municipalities, towns, villages, or counties.” § 366.04(1). Section 4.1 of the 1991 KES territorial agreement approved by the PSC expressly acknowledges the PSC’s continuing jurisdiction to review in advance for approval or disapproval any proposed modification to the agreement.

Conclusion

The Florida Legislature has recognized the need for central supervision and coordination of electrical utility transmission and distribution systems. The statutory authority granted to the PSC would be eviscerated if initially subject to local governmental regulation and circuit court injunctions of the kind sought by Monroe County in the case at hand. The appellants do retain, however, the right to seek relief before the PSC, and we express no opinion as to the merits of any such claims by the appellants in that forum.

The circuit court’s order dismissing the County’s complaint with prejudice is affirmed.

      . 16 U.S.C. §§ 3501-3510.

      . Monroe County Code § 130-122 (purporting to prohibit the extension of electric utilities to properties within the Coastal Barrier Resources System overlay).

      . The PSC was allowed to participate as ami-cus curiae in the circuit court and here.

        .In re: Complaint of Reynolds v. Utility Bd. of the City of Key West, Fla., etc., PSC Docket No. 1210054-EI.


author: LOGUE, J.

text:
    Yanelly MORALES, Appellant, v. FLORIDA REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, et al., Appellees.
    No. 3D12-50.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2013.
    Legal Services of Greater Miami, Inc., and Mandy L. Mills, for appellant.
    Louis A. Gutierrez, Senior Attorney, and Thomas R. Persely, Jr., Florida Reemployment Assistance Appeals Commission, Tallahassee, for appellees.
    Before, LAGOA and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   LOGUE, J.

Yanelly Morales appeals a decision of the Florida Reemployment Assistance Appeals Commission determining that Morales was disqualified to receive unemployment compensation benefits. We reverse.

The Commission adopted the decision of an appeals referee which found that “[t]he hearing testimony establishes that the claimant was discharged after refusing the instructions of a supervisor and for having continual outbursts at the job site.” A review of the transcript in the light most favorable to the referee’s decision, however, reveals that Morales was terminated for three incidents: (1) an event on an unidentified date prior to April 1, 2011, in which Morales broke into tears when she argued with a supervisor over the proper rotation of workers in a manufacturing production line; (2) an April 12, 2011, event in which Morales cried during a conversation with a supervisor after her shift was over; and (8) an event on or around April 17, 2011, in which Morales cried at work. The record contains no direct testimony that Morales refused to obey an order. The testimony regarding all three incidents is sparse, providing little detail, context, or background. We cannot ascertain from the testimony, for example, the duration, severity, or disrup-tiveness of the incidents. Nor can we determine what warnings, if any, Morales was given.

Under the unemployment compensation statutes, an individual is disqualified to receive unemployment benefits if he or she has been discharged by the employer for misconduct. § 448.101, Fla. Stat. (2011). Misconduct is defined, in pertinent part, as conduct “demonstrating conscious disregard of an employer’s interests and found to be a deliberate violation or disregard of the reasonable standards of behavior which the employer expects of his or her employee.” § 443.036(30)(a), Fla. Stat. (2011).

Even assuming some disobedience occurred, Morales’s dispute with her supervisor over the proper rotation, as reflected by the limited facts in this record, does not constitute misconduct that would disqualify her from unemployment benefits. “Although an employee’s actions may justify discharge, the same conduct does not necessarily preclude entitlement to unemployment benefits.” Betancourt v. Sun Bank Miami, N.A., 672 So.2d 37, 38 (Fla. 3d DCA 1996). A single instance of insubordination that reflects at most an isolated error in judgment, without more, does not amount to disqualifying misconduct under the statute. See Delvi, Inc. v. Fla. Unemployment Appeals Comm’n, 83 So.3d 976, 977 (Fla. 3d DCA 2012) (holding that an employee fired for a single refusal to obey an order accompanied by an informal act of disrespect was not disqualified under the statute); Montalbano v. Unemployment Appeals Comm’n, 873 So.2d 417, 417-18 (Fla. 4th DCA 2004) (holding that an employee fired for yelling during an argument with a supervisor over work order was not disqualified under the statute); Baptiste v. Waste Mgmt., Inc., 701 So.2d 386, 387 (Fla. 3d DCA 1997) (explaining that an isolated error in judgment does not rise to the level of “misconduct”). Instead, “Misconduct usually involves repeated violations of explicit policies after several warnings.” Fredda v. Unemployment Appeals Comm’n, 685 So.2d 874, 875 (Fla. 2d DCA 1996) (citation omitted). This result is not changed by the existence of the second crying incident, of which we know little more than that it took place after work hours, or the third incident, of which we know no details.

The spare record before us does not contain competent substantial evidence establishing that Morales’s actions constitute “[c]onduct demonstrating conscious disregard of an employer’s interests and found to be a deliberate violation or disregard of the reasonable standards of behavior which the employer expects of his or her employee.” § 443.036(30)(a), Fla. Stat. (2011) (emphasis added). Accordingly, Morales is entitled to receive unemployment compensation benefits.

Reversed.


author: FERNANDEZ, J.

text:
    G.W., a juvenile, et. al., Appellants, v. The STATE of Florida, Appellee.
    Nos. 3D11-3262, 3D11-1773, 3D11-2218.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2013.

      Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, for appellants.
    Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before CORTINAS, ROTHENBERG and FERNANDEZ, JJ.
   FERNANDEZ, J.

In these consolidated appeals, juveniles G.W., R.H., and T.L. challenge the constitutionality of section 784.081, Florida Statutes (2010), asserting that the sentencing enhancement contemplated in the statute violates the equal protection clauses of the United States Constitution and the Florida Constitution. For the following reasons, we affirm.

Appellants appeal the trial court’s orders withholding adjudications of delinquency and, in the cases of R.H. and T.L., placing them in a community control program. All three appellants request that the adjudicatory and disposition orders be reversed, and their eases be remanded with directions that their motions to dismiss the enhancement be granted and that a finding of guilt as to simple battery be entered.

The State charged each of the appellants in a petition for delinquency, alleging that each committed a simple battery against a school district employee. The State charged G.W. with battery against an indoor suspension teacher/supervisor, R.H. with battery against his homeroom teacher, and T.L. with battery against a school bus attendant/monitor.

Appellants moved to dismiss the petitions, alleging that the statute was not rationally related to its purpose because there was no requirement that the State prove that the school employees were engaged in the performance of their duties when the respective batteries occurred. The trial court denied the motions, and appellants proceeded to adjudicatory hearings, after which the court declared appellants delinquent.

Appellants contend that the statute creates “an elite class of untouchables” because it affords protection to school district employees based solely on their status as school district employees. We disagree with this contention and conclude that the trial court correctly determined that there is no valid constitutional challenge to the statute.

Our review of the constitutional challenge to the statute is de novo. See Troy v. State, 948 So.2d 635 (Fla.2006).

The subject statute provides, in relevant part, that:

(2) Whenever a person is charged with committing an assault or aggravated assault or a battery or aggravated battery upon any elected official or employee of: a school district ... when the person committing the offense knows or has reason to know the identity or position or employment of the victim, the offense for which the person is charged shall be reclassified as follows:
(c) In the case of battery, from a misdemeanor of the first degree to a felony of the third degree.

See § 784.081(2)(c), Fla. Stat. (2010). Equal protection rights are:

[N]ot violated merely because some persons are treated differently than other persons. It only requires that persons similarly situated be treated similarly. In the absence of a fundamental right or a protected class, equal protection demands only that a distinction which results in unequal treatment bear some rational relationship to a legitimate state purpose. This is known as the rational basis test.

Duncan v. Moore, 754 So.2d 708, 712 (Fla.2000) (emphasis added). Application of the rational basis test consists of two prongs: 1) whether the statute serves a legitimate government purpose, and 2) whether the legislature was reasonable in its belief that the classification would promote that purpose. Hechtman v. Nations Title Ins. of N.Y., 840 So.2d 993 (Fla.2003).

We first note that the Legislature has broad authority, under its police power, to enact laws which “promote the public health, safety, morals, and general welfare” of its citizens. Div. of Pari-Mutuel Wagering Dep’t of Bus. Regulation v. Fla. Horse Council, Inc., 464 So.2d 128, 130 (Fla.1985). It cannot be said that section 784.081 serves no legitimate government purpose. The Florida Legislature, in the exercise of its police power, determined that it was necessary and appropriate to provide educators with additional protection from crimes of violence. It declared its intent when it enacted section 784.081, as it pertains to school district employees. The Florida Legislature stated, in pertinent part:

[W]ith the rising incidence of crime, especially juvenile crime, teachers and other educators are increasingly at risk of becoming the victims of those who perpetrate crimes of violence and ... it is the purpose of the Legislature to protect the safety and welfare of educators whose professional duties in the classroom make them especially vulnerable to violent crimes committed by juvenile offenders and other offenders, and to deter classroom violence against teachers and other educators by enhancing the penalties for assaults and batteries committed against educators, ....

See 1996 Fla. Sess. Law Serv. Ch. 96-293.

It likewise cannot be said that the Legislature was unreasonable in its belief that section 784.081 would promote the Legislature’s stated purpose as it pertains to elected officials or school district employees. The intent of the Legislature is unequivocally clear in that it meant to provide additional protection to individuals charged with the duty to educate children in schools. The designation of school district employees as the subject group to benefit from such protection was in recognition that those employed by a school are particularly susceptible to crimes for which enhanced penalties for assaults and batteries would serve as a deterrent. Furthermore, it is common knowledge that the reach of educators extends far beyond school boundaries and transcends into the very lives of students and their families. It thus stands to reason that section 784.081 offers greater protection to educators and thereby rightfully promotes the “public health, safety, morals, and general welfare” of the citizens of this state.

We therefore conclude that there is no constitutional infirmity to section 784.081(2)(c), and affirm the adjudication of delinquency in each of the consolidated appeals, as well as the orders placing R.H and T.L. in community control programs.

Affirmed.

      . We note that all three school district employees were engaged in duties associated with their employment when the batteries occurred.

      . Here, the State need only meet this test as there is no fundamental right or suspect class at issue.