author: ORFINGER, J.

text:
    Donte Terell MORGAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1829.
    District Court of Appeal of Florida, Fifth District.
    Nov. 22, 2013.
    Rehearing Denied Dec. 13, 2013.

      James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Donte T. Morgan appeals his convictions of second-degree murder with a firearm. Morgan argues that the trial court’s self-defense jury instructions were fundamentally flawed and that the court should have granted his motions for judgment of acquittal. We affirm in part and reverse in part.

BACKGROUND

Benjamin Hamilton shared a three-bedroom apartment with Michael Wittig and his girlfriend, Amanda Hines. In the early morning of August 17, 2011, Hamilton was at a local bar with Wittig, Hines, Joel Abbott, and Cassandra Word. While at the bar, Hamilton met Morgan. When the bar closed, the group, including Morgan, went back to the shared apartment. There, Hamilton and Morgan went into Hamilton’s bedroom. As they did, Abbott left the apartment and went to his car for cigarettes, while Word, Wittig, and Hines remained in the living room. Word and Wittig did not know why Morgan went into Hamilton’s bedroom, but knew that Hamilton sold cocaine.

No one saw Morgan or Hamilton carrying any firearms as they entered the bedroom, and, according to Wittig, Hamilton did not own a gun. A short time later, there were two loud pop. Hines went to investigate the noise. She knocked on Hamilton’s bedroom door, called his name, and opened the door. Almost immediately, Wittig heard Hines squeal and, a second or two later, he heard a third loud pop. Word described the time between the initial gunshot and the second gunshot as less than ten seconds, with the third gunshot following within a few seconds after Hines entered into Hamilton’s bedroom.

Morgan then calmly entered the living room. He said nothing to indicate that Hamilton or Hines attacked or threatened him and had no visible injuries or indication that he had been in a struggle. Instead, he pointed a gun at Word and Wit-tig, and demanded their driver’s licenses. He put the gun in his pocket, “moseying on out” of the apartment, nonchalantly passing Abbott in the stairwell. Wittig and Abbott entered Hamilton’s bedroom, saw Hines on the bedroom floor and Hamilton leaning against the dresser. Abbott attempted CPR on Hamilton, while Word contacted police. Hamilton was pronounced dead at the scene and Hines died at the hospital.

Morgan was subsequently arrested after Wittig, Word, and Abbott positively identified him from a photo lineup. Wittig’s and Word’s driver’s licenses were found in Morgan’s apartment. In Hamilton’s bedroom, the crime scene investigator found two baggies on the dresser containing a white, powdery substance, and three spent projectiles, all fired from the same .40 caliber firearm, though no firearm was recovered. The medical examiner determined that Hamilton was shot twice, once in the abdomen and once through the upper back. However, she could not determine the distance between Morgan and Hamilton during the shooting or which wound was inflicted first. The medical examiner determined that Hines was shot once in the lower back from a distance of two feet. Neither Hamilton, Hines nor Morgan had any injuries consistent with a struggle.

Morgan claimed that he acted in self defense. According to him, while at the bar, Hamilton agreed to sell him an ounce of cocaine. They went to Hamilton’s apartment and entered his bedroom. Only then did Hamilton disclose that he only had a half ounce of cocaine and offered to call another person to bring more cocaine. Morgan declined and agreed to purchase just the half ounce. He had $1,000 with him, and when he started to retrieve the money from his pocket, Hamilton pulled a gun and attempted to rob him. They struggled, and as the gun turned toward Hamilton, it fired, hitting him. As Hamilton fell, Morgan said he “reflexively” fired the gun again, this time striking Hamilton in the back. As he moved away from Hamilton with his back to the bedroom door, he was struck from behind. He spun around, firing the gun without looking at his target. He then ran back out into the living room with the gun and robbed Wit-tig and Word. He denied bringing a gun to the apartment.

Morgan was indicted on two counts of first-degree murder with a firearm in the shooting deaths of Hamilton and Hines, and two counts of robbery with a firearm for taking Word’s and Wittig’s driver’s licenses. At trial, the primary issue for the jury’s consideration was whether Morgan acted in self defense. Morgan moved for a judgment of acquittal on the murder charges, which the court denied. The trial court also denied Morgan’s requested special jury instruction on the duty to retreat for an individual engaged in an unlawful activity. Instead, without objection, the trial court instructed the jury on the forcible-felony exception to self defense and the standard jury instruction on the “Stand Your Ground” law, section 776.013(3), Florida Statutes (2011). The jury found Morgan guilty of two counts of the lesser-included offense of second-degree murder and two counts of robbery with a firearm, with the additional findings that Morgan discharged a firearm in the commission of the murders and possessed a firearm when robbing Wittig and Word. He received two consecutive life sentences for the murders and concurrent ten-year minimum mandatory sentences for each robbery conviction.

ANALYSIS

Jury Instructions

The first issue we address is whether the trial court erred by instructing the jury on the forcible-felony exception to the justifiable use of deadly force. Self defense is “an affirmative defense that has the effect of legally excusing the defendant from an act that would otherwise be a criminal offense.” Mosansky v. State, 33 So.3d 756, 758 (Fla. 1st DCA 2010). In asserting self defense, the defendant acknowledges doing the act charged, but seeks to justify it as necessary to protect himself from harm. See Hopson v. State, 127 Fla. 243, 168 So. 810, 811 (1936). The forcible-felony instruction on self defense explains that a claim of self defense is not available to a defendant who is attempting to commit, committing, or escaping after the commission of a forcible felony. § 776.041, Fla. Stat. (2011); Fla. Std. Jury Instr. (Crim.) 3.6(f) (2011). Its plain language makes clear this instruction should be given only when the person is engaged in another, independent “forcible felony” at the time that person allegedly acted in self defense. Although section 776.041(1) disallows self defense to a person “attempting to commit, committing, or escaping after the commission of a forcible felony,” the decisional law holds the statute applies only when the defendant is charged with a separate independent felony. See Martinez v. State, 981 So.2d 449, 457 (Fla. 2008) (holding that it is error for trial court to read forcible-felony instruction to jury where defendant is not charged with independent forcible felony); In re Standard Jury Instructions in Criminal Cases—Report No. 2007-3, 976 So.2d 1081, 1087 (Fla.2008) (expressly stating that “forcible-felony” instruction is to be given only if defendant is charged with independent forcible felony); see also Stewart v. State, 113 So.3d 914, 916 (Fla. 2d DCA 2013); Sloss v. State, 45 So.3d 66, 68 (Fla. 5th DCA 2010).

In this case, since Morgan was not charged with robbing (or attempting to rob) Hamilton, the trial court erred by instructing the jury that, if they found that Morgan was “attempting to commit, committing, or escaping after the commission of robbery,” he could not use deadly force in self defense. The robberies of Word and Wittig occurred after the time Morgan claims to have acted in self defense. As a result, those robberies could not serve as the independent crime needed to allow the forcible-felony jury instructions. See, e.g., Crimins v. State, 113 So.3d 945, 948 (Fla. 5th DCA 2013) (finding fundamental error in instructing jury on forcible-felony exception where aggravated battery and attempted battery charges arose from same underlying facts and defendant raised self defense against both charges, based on theory that alleged victim initiated physical violence by attacking defendant with baseball bat); Santiago v. State, 88 So.3d 1020 (Fla. 2d DCA 2012) (holding that where defendant shot at three individuals, killing one and injuring another, and was charged with one count of murder and two counts of attempted murder, it was error to give forcible-felony instruction as defendant who claimed self defense regarding all three counts was not engaged in separate and independent forcible felony at time he allegedly acted in self defense).

Because Morgan did not object to the forcible-felony exception instruction, we must determine whether its use constituted fundamental error. Jury instructions are subject to the contemporaneous objection rule. Absent an objection at trial, erroneous instructions can be considered on appeal only if fundamental error occurred. See State v. Weaver, 957 So.2d 586, 588 (Fla.2007). However, not all instructional errors are fundamental. E.g., Garzon v. State, 980 So.2d 1038, 1042 (Fla. 2008). When a challenged jury instruction involves an affirmative defense, as opposed to an element of the crime, fundamental error only occurs when a jury instruction is so flawed as to deprive the defendant of a fair trial. Martinez, 981 So.2d at 455. We review a claim of fundamental error de novo. See Elliot v. State, 49 So.3d 269, 270 (Fla. 1st DCA 2010).

We consider the circumstances of each death separately to determine if, considering the totality of the circumstances, the instructional error was fundamental. We first consider Hamilton’s death. The witnesses did not observe Hamilton or Morgan with a gun or the events that occurred in Hamilton’s bedroom. The State did not admit any evidence that precisely established what occurred in the bedroom. The only direct testimony regarding the events that occurred in the bedroom came from Morgan, whose sole defense was self defense, which the improper instruction negated. Thus, we are compelled to conclude that the erroneous instruction calls into question the fairness of Morgan’s trial as to Hamilton’s death and rises to the level of fundamental error. See, e.g., Furney v. State, 115 So.3d 1095 (Fla. 4th DCA 2013) (holding fundamental error to give forcible-felony instruction where eyewitnesses had different version of events, creating classic “he said/she said,” defendant’s sole defense was effectively negated by improper instruction, and state argued forcible-felony exception during closing argument); Richards v. State, 39 So.3d 431, 434 (Fla. 2d DCA 2010) (holding outdated jury instruction on justifiable use of deadly force effectively negated defendant’s claim of self defense, and amounted to fundamental error); Carter v. State, 469 So.2d 194, 196 (Fla. 2d DCA 1985) (“[Wjhere, as here, a trial judge gives an instruction that is an incorrect statement of the law and necessarily misleading to the jury, and the effect of that instruction is to negate the defendant’s only defense, it is fundamental error and highly prejudicial to the defendant.”).

We reach a different conclusion regarding Morgan’s conviction for Hines’s death. A thorough review of the record leads us to conclude that the erroneous forcible-felony instruction was not fundamental as it did not deprive Morgan of a fair trial since his claim of self defense concerning Hines was extremely weak. See Martinez, 981 So.2d at 456. While Morgan claimed that he was hit from behind, he had no visible injuries and there was no evidence of a struggle. Hines was shot in the back at very close range within a few seconds of entering Hamilton’s bedroom. After the shooting, Morgan was not excited, and did not indicate that he had been threatened or attacked. Instead, he calmly robbed Wittig and Word of their driver’s licenses at gunpoint and left the apartment. See Cancel v. State, 985 So.2d 1127 (Fla. 5th DCA 2008) (holding error to give forcible-felony instruction as defendant was not charged with more than one forcible felony but not fundamental error as defendant’s self-defense claim was extremely weak; after victim threw plastic bottle at defendant’s car, causing no damage, defendant armed himself with bat and confronted intoxicated victim, striking him with enough force to kill him).

Morgan next argues that the trial court erred by denying his requested special jury instruction on self defense and the duty to retreat for an individual engaged in unlawful activity. A defendant is entitled to a special jury instruction if: (1) the special instruction is supported by the evidence; (2) the standard instruction does not cover the theory of defense; and (3) the special instruction is a correct statement of the law and is neither misleading nor confusing. Stephens v. State, 787 So.2d 747, 756 (Fla.2001).

Before jury selection, and again during the charge conference, relying on Dorsey v. State, 74 So.3d 521 (Fla. 4th DCA 2011), Morgan requested a special jury instruction concerning self defense and the duty to retreat for an individual engaged in unlawful activity (i.e., a drug deal), and submitted the following proposed instruction:

If you find the defendant was engaging in an unlawful activity or was attacked in a place where he did not have the right to be then you must consider if the defendant had a duty to retreat. If the defendant was in a position of imminent death or great bodily harm and it would have increased his own danger to retreat then his use of force likely to cause death or great bodily harm was justifiable.

The State objected, arguing that the standard instructions were adequate. The trial court denied Morgan’s request, and instead, gave the standard jury instructions on the justifiable use of self defense. The court also gave the “Stand Your Ground” instruction consistent with section 776.013(3), Florida Statutes (2011), advising the jury:

If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent [ ] death or great bodily harm to himself or to prevent the commission of a forcible felony.

See Fla. Std. Jury Instr. (Crim.) 3.6(f) (2011). There were no objections to the instructions as given.

The plain language of section 776.013(3) provides that the “no duty to retreat” rule applies only when a person “is not engaged in an unlawful activity.” When, as in this case, it is undisputed that the defendant was engaged in unlawful activity at the time he claims that he was attacked, the standard instruction is inadequate because the common law duty to retreat still applies. Dorsey, 74 So.3d at 527; Ady v. Am. Honda Fin. Corp., 675 So.2d 577, 581 (Fla.1996) (“A court will presume that [a statute in derogation of the common law] was not intended to alter the common law other than by what was clearly and plainly specified in the statute.”). But even the common law duty to retreat is not absolute — the common law before section 776.013 recognized that there was no duty to retreat when a defendant had retreated to the wall or retreat would be futile. Dorsey, 74 So.3d at 527. Accordingly, the court should have given both the standard jury instruction on “Stand Your Ground” and the pre-2005 standard self-defense jury instructions. Alternatively, in light of the uncontradict-ed evidence that Morgan was engaged in unlawful activity at the time he was attacked, the court could have simply omitted the “Stand Your Ground” instruction and given only the pre-2005 standard instructions on justifiable use of deadly force. Under either approach, the jury would have been properly instructed regarding the parameters of the duty to retreat in a case where the defendant was engaged in unlawful activity at the time he was attacked. Morgan was entitled to a proper instruction on the law. See Wright v. State, 705 So.2d 102, 104 (Fla. 4th DCA 1998) (stating that criminal defendant is entitled to have jury instruction on his theory of defense if there is any evidence supporting his theory). This error was harmless with respect to Hines’s death for the reasons previously discussed.

Motion for Judgment of Acquittal

Morgan next argues that the trial court erred in denying his motion for judgment of acquittal on both second-degree murder convictions. We review the denial of a motion for judgment of acquittal de novo. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). The question of whether a defendant acted in justifiable self defense is generally a question for the jury. See Reimel v. State, 532 So.2d 16 (Fla. 5th DCA 1988). Once the defense presents a prima facie case of self defense, the state must disprove the defense beyond a reasonable doubt. Montijo v. State, 61 So.3d 424, 426-427 (Fla. 5th DCA 2011); Falwell v. State, 88 So.3d 970, 972 (Fla. 5th DCA 2012). The state may meet its burden through rebuttal or by inference in its case-in-chief. Stieh v. State, 67 So.3d 275, 278 (Fla. 2d DCA 2011). If the state fails to sustain its burden, the trial court must grant a judgment of acquittal in favor of the defendant. State v. Rivera, 719 So.2d 335, 337 (Fla. 5th DCA 1998). However, a motion for judgment of acquittal based upon self defense should not be granted unless “the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.” Lynch v. State, 293 So.2d 44, 45 (Fla.1974).

Morgan argues that the State failed to prove beyond a reasonable doubt that he was not acting in self defense. We disagree. While Morgan’s version of events could suggest self defense (very tenuously with respect to Hines), and the jury could have believed his story at least as to Hamilton, the State presented sufficient evidence to create a jury question regarding Morgan’s self-defense claim. Morgan testified on his own behalf, claiming that Hamilton attempted to rob him at gunpoint, and that he shot Hamilton twice after a struggle. He claimed that as he backed away from Hamilton’s body, Hines hit him and he shot her without looking. However, his version of the events was not entirely corroborated by the evidence as the witnesses’ testimony and the physical evidence does not demonstrate that any type of struggle occurred. Hamilton was shot in the abdomen and the back, and Hines was shot in the back at very close range. After shooting Hamilton and Hines, Morgan calmly left the bedroom, robbed Wittig and Word of their driver’s licenses at gunpoint. He then left the apartment without telling anyone that he had been attacked or threatened, and did not call the police. He took the gun with him, and it was never recovered. This evidence runs contrary to Morgan’s self-defense argument, and created a jury issue. See Bogart v. State, 114 So.3d 316, 318 (Fla. 4th DCA 2013) (holding that defendant’s actions after killing were contrary to self defense and suggested that defendant had guilty conscience).

Finally, Morgan argues that the State failed to prove the necessary elements of the second-degree murder of Hines because his “impulsive overreaction to a perceived attack from behind” did not evince a depraved mind regardless of human life. Thus, he concludes that the court should have granted his motion for judgment of acquittal on this crime because at most, the evidence supported a manslaughter conviction.

“Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence.” Pagan v. State, 830 So.2d at 803. “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Id. Courts should not grant a motion for judgment of acquittal unless there is no view of the evidence which the jury might take favorable to the opposite party that can be sustained under the law. See DeAngelo v. State, 616 So.2d 440, 442 (Fla.1993).

Second-degree murder is the “[t]he unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” § 782.04(2), Fla. Stat. (2011). To prove that an act demonstrates a depraved mind, the State must prove that it done from “ill will, hatred, spite or an evil intent.” Fla. Std. Jury Instr. (Crim.) 7.4; Rayl v. State, 765 So.2d 917, 919 (Fla. 2d DCA 2000). Florida courts have held that an impulsive overreaction to an attack or injury is, at times, insufficient to prove ill will, hatred, spite, or evil intent. See, e.g., Dorsey, 74 So.3d at 524; Light v. State, 841 So.2d 623, 626 (Fla. 2d DCA 2003); McDaniel v. State, 620 So.2d 1308, 1308 (Fla. 4th DCA 1993). “Although exceptions exist, the crime of second-degree murder is normally committed by a person who knows the victim and has had time to develop a level of enmity toward the victim.” Light, 841 So.2d at 626. But, given the extremely deferential standard applicable to the review of denials of motions for judgment of acquittal, we are unable to say that the evidence is such that there is no view which the jury could take of it favorable to the State that can be lawfully sustained. In other words, viewing the evidence in the light most favorable to the State, we conclude that a rational trier of fact could lawfully find that the evidence proved the existence of all the elements of the crime of second-degree murder beyond a reasonable doubt. See Rasley v. State, 878 So.2d 473, 478 (Fla. 1st DCA 2004).

For these reasons, we reverse Morgan’s conviction for Hamilton’s murder and remand for a new trial. We affirm Morgan’s conviction for Hines’s murder and for the robberies of Word and Witting.

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIFFIN and PALMER, JJ., concur.

      . Morgan does not challenge his two convictions of robbery with a firearm.

      . Had Morgan been charged with attempting to commit, committing or escaping after the commission of a forcible felony at the time of the shooting, his right to self-defense would have been circumscribed. See § 776.041, Fla. Stat. (2011); Santiago, 88 So.3d at 1022.

      . That instruction provides in pertinent part:
      The defendant cannot justify the use of force likely to cause death or great bodily harm unless he used every reasonable means within his power and consistent with his own safety to avoid the danger before resorting to that force.
      The fact that the defendant was wrongfully attacked cannot justify his use of force likely to cause death or great bodily harm if, by retreating, he could have avoided the need to use that force. However, if the defendant was placed in a position of imminent danger of death or great bodily harm, and it would have increased his own danger to retreat, then his use of force likely to cause death or great bodily harm was justifiable.
      Fla. Std. Jury Instr. (Crim.) 3.6(f) (2004).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Lillian T. OKPALEKE-ORTIZ, Appellant, v. Carlos C. ORTIZ, Appellee.
    No. 5D12-4221.
    District Court of Appeal of Florida, Fifth District.
    Nov. 22, 2013.

      Joseph J. Regístrate, Tampa, for Appellant.
    Christopher H. Morrison, of Pratt and Morrison, P.A., Winter Park, for Appellee.
   PER CURIAM.

The magistrate’s detailed findings of fact, which were adopted in their entirety by the trial court, were supported by competent substantial evidence. Trial courts are vested with discretion in determining an appropriate time-sharing arrangement between competing parents. Once a trial court makes this determination, an appellate court should not overturn that decision absent a clear abuse of discretion. Lowrey v. Lee, 873 So.2d 604, 605 (Fla. 5th DCA 2004). Here, we find no abuse of discretion.

AFFIRMED.

GRIFFIN, EVANDER, and COHEN, JJ., concur.


text:
    Lillian GOMEZ, Appellant, v. OSCEOLA COUNTY SCHOOL BOARD, Appellee.
    No. 5D12-4669.
    District Court of Appeal of Florida, Fifth District.
    Nov. 22, 2013.
    Thomas F. Egan of Thomas F. Egan, P.A., Orlando, for Appellant.
    Usher L. Brown and Erin J. O’Leary of Brown, Garganese, Weiss & DAgresta, P.A., Orlando, for Appellee.
   PER CURIAM.

Appellant challenges final agency action of the Osceola County School Board (“School Board”) terminating her employment after determining that her effectiveness as a teacher in the Osceola County School District was seriously impaired. We conclude that the School Board improperly rejected the administrative law judge’s finding regarding loss of effectiveness and that Appellant’s conduct was not so egregious such that loss of effectiveness could be decided as a matter of law. Accordingly, we reverse the final order of the School Board and remand this cause for entry of an order consistent with the administrative law judge’s recommended order. See Abrams v. Seminole Cnty. Sch. Bd., 73 So.3d 285, 294 (Fla. 5th DCA 2011).

REVERSED AND REMANDED.

TORPY, C.J., SAWAYA and COHEN, JJ., concur.


text:
    Raymond BIG MOUNTAIN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-2224.
    District Court of Appeal of Florida, Fifth District.
    Nov. 22, 2013.

      Raymond Big Mountain, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. 10-CF-1571, in the Circuit Court in and for Osceola County, Florida. See Fla. RApp. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, LAWSON and BERGER, JJ., concur.


text:
    Joseph MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-848.
    District Court of Appeal of Florida, Fifth District.
    Nov. 22, 2013.
    James S. Purdy, Public Defender, and Eliza Puchalski, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

After a review of the presentence investigation report, we conclude that the trial court did not abuse its discretion in imposing drug and alcohol treatment related requirements as special conditions of probation. See Biller v. State, 618 So.2d 734 (Fla.1993); Austin v. State, 67 So.3d 403, 406-07 (Fla. 1st DCA 2011).

AFFIRMED.

EVANDER, COHEN and WALLIS, JJ., concur.


author: ALTENBERND, Judge.

text:
    L.J.G.-C., Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3481.
    District Court of Appeal of Florida, Second District.
    Nov. 22, 2013.

      Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

L.J.G.-C. appeals his disposition order in this juvenile delinquency proceeding. L.J.G.-C. received a withheld adjudication of delinquency and a term of juvenile probation. The State concedes an error in the disposition. In addition, the disposition order is not consistent with Florida Rule of Juvenile Procedure Form 8.947.

L.J.G.-C. damaged a statue at a church in December 2011. The State filed a petition for delinquency alleging that the juvenile had committed third-degree felony criminal mischief under section 806.13(2), Florida Statutes (2011). At the adjudicatory hearing in this case, the State established that L.J.G.-C. had damaged the statue but it failed to prove that the damage to the property was “greater than $200,” as required to establish this third-degree felony delinquent act. See § 806.13(2). The court found that L.J.G.C. had committed this delinquent act. It withheld adjudication, placing L.J.G.-C. on probation. The State concedes that the felony amount of damages was not established. As acknowledged by the State, this case must be remanded for a disposition that is based on a finding that the juvenile committed a delinquent act by violating section 806.13(l)(b)(l) as a result of his damage to property in the amount of “$200 or less,” which is a second-degree misdemeanor. Thus, the error in this case affects both the description of the delinquent act in the disposition order and the term of probation.

We note that the disposition order on appeal in this ease is unusual. It is not consistent with Form 8.947. In fact, it bears little resemblance to Form 8.947 and it contains numerous handwritten entries that are difficult to decipher. It is at least possible that this order was intended to be a courtroom draft document that would be replaced with a standard order. On remand, when the court corrects this disposition order it shall do so on a form consistent with Form 8.947.

The determination that L.J.G.-C. committed a delinquent act is affirmed. The disposition order is reversed for proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

KHOUZAM and SLEET, JJ., Concur.

      . We note that the form in effect when L.J.G.C. committed this delinquent act differs from the form currently in effect. Compare In re Amendments to Fla. Rules of Juvenile Procedure, 75 So.3d 216 (Fla.2011) (amending Form 8.947 effective October 20, 2011), with In re Amendments to Fla. Rules of Juvenile Procedure, 115 So.3d 286 (Fla.2013) (amending Form 8.947 effective July 1, 2013).


text:
    Michael GOODING, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3754.
    District Court of Appeal of Florida, Second District.
    Nov. 22, 2013.
    Michael Gooding, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Michael Gooding appeals from a final order denying his two-claim motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm as to the denial of the two claims but reverse for the postconviction court to readdress a cost issue.

Michael Gooding pleaded guilty to multiple charges in twelve circuit court cases. He was sentenced to concurrent terms of three years in prison followed by probation. His rule 3.800(a) motion challenges only the costs imposed in conjunction with his sentences. In effecting certain corrections requested by Gooding in his motion, the postconviction court additionally directed the clerk to add to ten of the twelve judgments and sentences the $100 attorney’s fee required for felony convictions by section 938.29(l)(a), Florida Statutes (2009, 2010). Although “[t]he court shall include these fees and costs in every judgment rendered against the convicted person,” id., the original trial court had included the fee in only two of the judgments and sentences.

Notwithstanding this statutory provision, we conclude that a defendant’s filing of a motion to correct illegal sentence should not provide the postconviction court with an opportunity to impose additional trial-level costs on the defendant. We therefore reverse and direct the postcon-viction court on remand to remove the $100 attorney’s fee from the judgments and sentences in case numbers 10-CF-2082, 10-CF-2084, 10-CF-3245, 10-CF-3246, 10-CF-3247, 10-CF-3741, 10-CF-3742, 10-CF^1470, 10-CF-4602, and 10-CF-11286.

Reversed and remanded with instructions.

ALTENBERND, CASANUEVA, and CRENSHAW, JJ., Concur.


author: MORRIS, Judge.

text:
    Richard CATRON, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3767.
    District Court of Appeal of Florida, Second District.
    Nov. 22, 2013.
    Richard Catron, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   MORRIS, Judge.

Richard Catron appeals the denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of claims one, two, and four without comment. We also affirm the dismissal of claim three without prejudice to Catron filing a petition for belated appeal of his judgment and sentence. See Bowers v. State, 939 So.2d 337, 338 (Fla. 2d DCA 2006) (“Claims alleging ineffective assistance of trial counsel in failing to file a notice of appeal of the conviction are to be raised by petition for belated appeal, filed in the appellate court to which the appeal should have been taken.”).

Affirmed.

ALTENBERND and CASANUEVA, JJ., Concur.


text:
    Lawrence KILBOURN, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5708.
    District Court of Appeal of Florida, Second District.
    Nov. 22, 2013.
    Mark Lipinski and Scarlett Guy, Bra-denton, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Lawrence Kilbourn appeals the order reinstating his probation. The State concedes error.

In 2000, Kilbourn entered a plea to attempted sexual battery in exchange for a sentence of ten years’ imprisonment followed by five years’ sex-offender probation. The trial court ordered that Kilb-ourn’s sentence run consecutive to his five-year sentence in a federal case. However, Kilbourn served his Florida state prison term first and was then transferred to federal prison, from which he was released on August 15, 2012.

In March 2011, the Florida Department of Corrections filed an affidavit of violation of probation alleging that Kilbourn failed to submit to a sex-offender evaluation and failed to pay court costs. When Kilbourn was released from federal prison, he turned himself in to the Manatee County jail on the violation of probation warrant.

At the probation violation hearing, the State conceded both that Kilbourn was never released on sex-offender probation and that his violation of probation was not willful because it was alleged to have occurred while he was in federal prison and not able to comply with the conditions of his probation. The State announced that it had no objection to a dismissal of the affidavit of violation of probation, and the trial court announced that it would dismiss the affidavit. An order of dismissal was entered in open court stating that Kilb-ourris probation was terminated.

Subsequently, the State filed a rule 3.800(b) motion to correct sentencing error arguing that Kilbourn’s probationary term was tolled while he was in federal prison. See Weeks v. State, 496 So.2d 942, 944 (Fla. 2d DCA 1986) (holding that a probationary period is tolled while the probationer is in prison in another jurisdiction and is not under probationary supervision in Florida). After a hearing on the motion, the trial court reinstated Kilbourn’s probation to comply with the intent of the original sentencing court.

In this appeal, Kilbourn argues, and the State concedes, that the State’s rule 3.800(b) motion was not authorized because it did not benefit Kilbourn or correct a scrivener’s error. See Fla. R.Crim. P. 3.800(b) (“Motions may be filed by the state under this subdivision only if the correction of the sentencing error would benefit the defendant or to correct a scrivener’s error.”); Linnon v. State, 988 So.2d 70, 73 (Fla. 2d DCA 2008).

The State also concedes that the trial court lacked jurisdiction to reinstate Kilb-ourn’s probation because the order of dismissal terminating Kilbourn’s probation was not affected with extrinsic fraud and the order therefore divested the trial court of jurisdiction over him. See Driscoll v. State, 538 So.2d 1283, 1285-86 (Fla. 1st DCA 1989) (holding that an order discharging a defendant from community control is a final order terminating the state’s jurisdiction unless it is affected with extrinsic fraud). And the State notes that the reimposition of probation violated Kilb-ourn’s double jeopardy rights. See Lippman v. State, 633 So.2d 1061, 1064 (Fla. 1994).

Accordingly, we reverse with directions for the trial court to vacate the order reinstating Kilbourn’s probation.

KHOUZAM, CRENSHAW, and SLEET, JJ., Concur.


text:
    Henry A. BARBER, Appellant, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Appellee.
    No. 1D13-0196.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2013.
    Henry A. Barber, pro se, Appellant.
    Pamela Jo Bondi, Attorney General and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Delancy v. Tucker, 88 So.3d 1036 (Fla. 1st DCA 2012); Zuluaga v. State, Dep’t of Corr., 32 So.3d 674 (Fla. 1st DCA 2010).

CLARK, ROWE, and SWANSON, JJ., concur.


text:
    Danny O. DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2375.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2013.
    Danny O. Davis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Munn v. Florida Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

PADOVANO, ROWE, and OSTERHAUS, JJ., concur.


text:
    VIBOL HANG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2917.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2013.
    Vibol Hang, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General; Anne C. Conley and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

PADOVANO, ROWE, and OSTERHAUS, JJ., concur.


text:
    Rashard A. EVANS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3897.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2013.

      Rashard A. Evans, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

PADOVANO, ROWE, and OSTERHAUS, JJ., concur.


text:
    Bhaktivinode T. FRANKLIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4817.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2013.
    Petition Alleging Ineffective Assistance of Appellate Counsel-Original Jurisdiction. Bhaktivinode T. Franklin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

PADOVANO, ROWE, and OSTERHAUS, JJ., concur.


text:
    Eddie Lee BANKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5284.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2013.
    Eddie Lee Banks, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied. See Baker v. State, 878 So.2d 1236 (Fla.2004).

PADOVANO, ROWE, and OSTERHAUS, JJ., concur.


author: MAKAR, J.

text:
    Alicia Faye BAXTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5703.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2013.

      Clifford L. Davis, Michael Ufferman, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Meredith Clark Hinshelwood, Assistant Attorney General, Tallahassee, for Appel-lee.
   MAKAR, J.

Alicia F. Baxter claims that the imposition of a twenty-year state prison sentence, which followed her rejection of the trial court’s offer of eleven months and twenty-nine days in county jail, meets the standard for what is known as “judicial vindictiveness.” In addition, she claims the trial court erred by refusing to allow her to accept the initial offer after she rejected it. For the reasons that follow, we vacate her sentence and remand for resentencing.

I.

On Halloween Day 2009, Ms. Baxter and codefendant, Damian Johnson, had two goals: make methamphetamine and have sex. They first embarked on the dangerous and toxic process of attempting to manufacture meth, neither being skilled in the task. Johnson bought various ingredients and supplies; Ms. Baxter bought Su-dafed, a necessary component, at a local drug store. The venue for their portable “meth lab” was a motel in Marianna, Florida, at which they requested a smoking room. Shortly after they checked in, the manufacturing process was begun — but it soon ended dramatically. Johnson — still under the effects of meth taken the night before — shook various ingredients in a Gatorade® bottle, which exploded into the bathroom area and then ignited, causing significant injury to him. Johnson and Ms. Baxter fled the room, leaving behind substantial damage to the motel and inconvenience to the many people who had to flee the premises when police and firefighters arrived.

Ms. Baxter was charged with attempted manufacture of a controlled substance, unlawful possession of a listed chemical, and arson to an occupied structure, the latter punishable by up to thirty years of imprisonment. Johnson, who also faced similar charges, agreed to testify against Ms. Baxter.

Almost three years passed between the motel incident and Ms. Baxter’s trial. During that time, at some point the trial judge became involved in plea discussions, though it is somewhat unclear who initiated them due in part to at least three off-the-record conversations. The first, for which no transcript exists, occurred in conjunction with the initiation of the plea bargaining process. Ms. Baxter avers that the trial judge discussed with Ms. Baxter’s counsel, Assistant Public Defender Guy-Green, what sentence he would impose if Ms. Baxter entered a “straight up” plea at that time. The trial judge allegedly offered to sentence Ms. Baxter to two years of drug offender community control if the first eleven months and twenty-nine days were spent in county jail, followed by three years of drug offender probation, followed by ten years of administrative probation, which would expire when restitution was paid.

On March 15, 2011, the trial court held a plea hearing at which Mr. Green accepted the deal on her behalf. The trial judge sentenced her to the agreed upon sentence. The prosecutor was present, but did not speak. Before the hearing concluded, however, Ms. Baxter told the trial judge that she wanted to withdraw her plea. This exchange ensued:

COURT: All right. You sure you know what you’re doing, ma’am?
DEFENDANT: I hope so.
MR. GREEN: Can I—
COURT: You’re looking at 50 years; do you understand that?
DEFENDANT: Yes, sir.
COURT: It’s withdrawn. Set it for trial. There ain’t no more talking, Mr. Green, that’s all I can do. Is she set for trial next week?

Later that day, after the plea hearing had concluded, the trial judge along with Mr. John Y. Roberts, (who was later appointed as Ms. Baxter’s conflict counsel), the Clerk, and three unidentified males held a second off-the-record conversation. Mr. Roberts told the trial judge that Ms. Baxter “was outside throwing up and she said it’s about the adjudication.... She wants to take the deal, she just kind of was ... she wants to take it.” The conversation continued, in relevant part, as follows:

COURT: Okay, We don’t need to take it today. There’s too much on the record.
MR. ROBERTS: Want me to tell her to come (indiscernible)?
COURT: I don’t know. I don’t need to take a plea and her throwing up and stuff today. See, this is going to come back. She’s going, she’s going to change her mind when she gets to the jail, so I don’t know. We might complete her after drug court. What have we got after drug court tomorrow? Talk to Guy, but I mean, like, now, you know, and I’m not sure I’m going to take it tomorrow, but I mean, like, you know, I understand, but I’m just saying—
MR. ROBERTS: Yes, sir.
COURT: —it’s better if we let some time pass.
MR. ROBERTS: Yes, sir.

The next day, March 16, 2011, a hearing was held to set the trial date. Ms. Baxter apologized for her actions the previous day, saying that she was nervous. At some point that same day, the trial judge, along with Mr. Roberts and the prosecutor, held a third off-the-record conversation — without Ms. Baxter present — in which Mr. Roberts stated that he did not know whether Ms. Baxter wanted to take the plea offer, but assumed she would do so. The relevant parts of this conversation are as follows:

COURT: I don’t think I’m going to take it.
MR. GREEN: Okay.
COURT: I’d just sent that guy to prison for five and a half years for the same thing, I guess.
But this, this one just, it’s, it’s got me to the point I’m real uncomfortable about everything. I mean, I don’t want to have to beg somebody to take it and I understand it’s not your fault. The cops don’t like it. We’re all just better off doing our jobs and just try her and whatever happens, I won’t necessarily nail her but you know, if they convict her she’s probably looking at prison. I don’t know, but I’m just saying it’s just easier on all of us—
MR. GREEN: Okay.
COURT: —to do our job. We’re going, we’re going to bend over backwards to help this girl and it’s going to come back to hurt us. One way or the other, something’s going to happen. I mean, she’s going to get in the jail and raise hell about something and, you know, fall and hurt her back or some b* * * * * *t. I mean I just see this coming, I’ve seen it happen too many times and I just don’t need to take a chance. I was doing it for you and—
MR. GREEN: Okay, we’ll I’m—
COURT: —bless your heart. You know what I’m saying.

The trial was conducted on August 28, 2011, the jury finding Ms. Baxter guilty of all three charges (she was now represented by Clifford Davis). On October 5, 2011, the trial court sentenced her to five years for Count I; fifteen years for Count II; and twenty years for Count III, all sentences to run concurrently (with credit for time served).

Ms. Baxter’s codefendant, Mr. Johnson, was sentenced by a different judge to eleven months and twenty-nine days in county jail, a sentence that had been offered by the trial judge in Ms. Baxter’s case. Specifically, Mr. Johnson’s trial counsel asked his trial judge to adhere to Ms. Baxter’s judge’s recommendations, which he did. On October 19, 2011, Ms. Baxter filed this appeal. During the appeal’s pendency, Ms. Baxter filed a Motion to Correct Sentencing Error pursuant to 3.800(b)(2), Florida Rules of Criminal Procedure, on July 5, 2012, which was denied by the trial court in a detailed order dated September 4, 2012.

II.

We address two issues: (1) whether the totality of the circumstances surrounding the trial court’s involvement in the plea offer and Ms. Baxter’s ultimate sentence demonstrate “judicial vindictiveness” in sentencing as that concept has developed over time; and (2) whether the trial court erred under the circumstances by refusing to allow Ms. Baxter to accept the trial court’s plea offer after she initially rejected the offer.

A. Judicial Vindictiveness-Preservation

Before reaching the merits, we address the issue of preservation of judicial vindictiveness claims. Ms. Baxter contends her Rule 3.800(b) motion is an appropriate mechanism for asserting her judicial vindictiveness claim, which was preserved by the filing and subsequent denial of the motion. The State argues her claim was not preserved because Ms. Baxter failed to object on this basis during the sentencing hearing on October 5, 2011; it further argues that a Rule 3.800(b) motion is not an appropriate vehicle for appellate review of a judicial vindictiveness claim. We agree with the State on these points. We align ourselves, however, with the Second District, which likewise rejects the use of a Rule 3.800(b) motion as a means for raising a judicial vindictiveness claim, but which allows for review under fundamental error analysis. Mendez v. State, 28 So.3d 948, 950 (Fla. 2d DCA 2010) (“imposition of a vindictive sentence is fundamental error that may be raised for the first time on appeal.”).

In rejecting the use of Rule 3.800(b) in this context, we note that the Florida Supreme Court has explained that the rule is intended to provide defendants with a mechanism for correcting technical sentencing errors promptly and thereby preserve them for appellate review. Jackson v. State, 983 So.2d 562, 572 (Fla.2008) (“Rule 3.800(b) is intended to permit defendants to bring to the trial court’s attention errors in sentence-related orders, not any error in the sentencing process.”). Here, no technical error is at issue, only the question of whether the process by which the trial judge arrived at the sentence imposed met due process standards under judicial vindictiveness principles.

We acknowledge that using a Rule 3.800(b) motion may be a more convenient way of presenting a judicial vindictiveness claim, particularly if a defendant is unaware of evidence supportive of such a claim at the time of sentencing (such as the off-the-record conversations discovered by appellate counsel in this case). Such a motion may also avoid the awkwardness of defense counsel objecting and claiming— immediately upon sentencing by a trial judge — that the sentence just announced is the product of judicial vindictiveness. .We believe, however, that Rule 3.800’s parameters simply cannot be remolded to accommodate such claims. Instead, the better approach is to allow for de novo review on appeal under the fundamental error doctrine, as the Second District has done. See also Philip J. Padovano, Florida Appellate Practice § 27:3, & n. 1 (2011 ed.) (“A fundamental error in a criminal case can be corrected on appeal even if the issue had not been preserved for review by a timely motion or objection in the trial court.”).

B. Judicial Vindictiveness-The Merits

Under principles of due process, the United States Supreme Court developed the concept of judicial vindictiveness, which initially arose in the context of re-sentencings where defendants who prevailed on appeal were subject to greater sentences on remand than those from which they had appealed. See e.g., North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982); Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). The concept was later extended to initial sentences where the sentencing judge had been involved in plea offers or deals that the defendant had rejected, which is the context of this case.

Judicial vindictiveness has two strains: actual vindictiveness and constructive vindictiveness. The former involves situations where evidence exists that a trial judge has acted with vindictive intent to impose a harsher sentence because the defendant exercised his right to a jury trial. See Wilson v. State, 845 So.2d 142 (Fla.2003); Zeigler, 60 So.3d 578. The latter — which is more common and is at issue in this appeal — involves situations where the circumstances of the sentencing support a presumption that the sentence imposed is improper and the State has not articulated sufficient reasons to overcome the presumption.

Our supreme court does not prohibit judicial participation in the plea bargaining process; but a judge’s involvement must be limited “to minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter, and to preserve the public perception of the judge as an impartial dispenser of justice.” State v. Warner, 762 So.2d 507, 513 (Fla.2000) (citing People v. Cobbs, 443 Mich. 276, 505 N.W.2d 208, 212 (1993)) (stating that unlike the federal system and at least six states, Florida does not prohibit judicial participation in the plea bargain process but certain delineated minimum safeguards apply, including the prohibition that the trial court initiate the plea dialogue).

In a follow-up case to Warner, the supreme court in 2003 held that a presumption of vindictiveness is not warranted in every case in which a trial court participates in the plea bargaining process simply because a defendant ultimately receives a harsher sentence after a hearing or trial. Wilson, 845 So.2d at 150. Instead, the court concluded that the totality of the circumstances must be considered to determine whether a presumption of judicial vindictiveness arises. 845 So.2d at 152; see also Mendez, 28 So.3d at 950 (“Appellate courts should look at the totality of the circumstances when determining whether a defendant’s constitutional right to due process was violated by the imposition of an increased sentence after unsuccessful plea negotiations in which the trial court participated.”).

In doing so, the court set out a non-exhaustive list of four factors for determining whether a reasonable likelihood exists that the harsher sentence was “imposed in retaliation for the defendant not pleading guilty and instead exercising his or her right to proceed to trial.” Wilson, 845 So.2d at 156.

(1) whether the trial judge initiated the plea discussions with the defendant in violation of Warner;
(2) whether the trial judge, through his or her comments on the record, appears to have departed from his or 'her role as an impartial arbiter by either urging the defendant to accept a plea, or by implying or stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial;
(3) the disparity between the plea offer and the ultimate sentence imposed; and
(4) the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing.

Id. (internal citations omitted). An appellate court is to consider these four factors, along with any others of relevance, in determining whether a presumption exists. While no one factor predominates, the court emphasized that satisfaction of factors (1) or (2) alone may give rise to a presumption of judicial vindictiveness. More specifically, the Court stated:

As regards factors (1) and (2), if the judge participates in the plea negotiations beyond what is contemplated by Warner, or by his or her comments appears to have departed from the role of a neutral arbiter, then these actions alone may give rise to a presumption of judicial vindictiveness that would shift the burden to the State to produce affirmative evidence on the record to dispel the presumption.

Id. (emphasis added). Of course, the “presumption of judicial vindictiveness may arise from judicial participation in plea discussions regardless of which party initiated those discussions.” Wilson v. State, 951 So.2d 1039, 1043 (Fla. 3d DCA 2007). The reason is that because judicial vindictiveness is based on the totality of the circumstances, no one factor is required or predominates over the others.

Our analysis of whether a defendant’s sentence is the product of judicial vindictiveness involves a question of law subject to de novo review. Trotter v. State, 825 So.2d 362, 365 (Fla.2002). We begin with the first factor: whether the trial judge initiated the plea discussions. A “trial court must not initiate a plea dialogue; rather, at its discretion, it may (but is not required to) participate in such discussions upon request of the party.” Warner, 762 So.2d at 513. To facilitate our review, “[a] record must be made of all plea discussions involving the court.” Id. at 514.

We immediately face a conundrum because the trial court’s detailed and thorough order says it was Ms. Baxter’s trial counsel who initiated plea discussions, but the requisite record of “all plea discussions involving the court” provides no definitive support for this finding. The trial court’s order appears to be based solely on the “on-the-record” plea discussions with the court, but at least three off-the-record discussions occurred that create some uncertainty on the matter. On this point, the State concedes that the existence of these off-the-record plea discussions may alone be enough to establish a presumption of judicial vindictiveness, stating:

Since some of the plea discussions occurred off-the-record against the mandate in Warner, it appears that this “alone may give rise to a presumption of judicial vindictiveness”, Wilson, 845 So.2d at 156, though it should be noted that “may” denotes a permissive direction.

We elect not to place decisive weight on the existence of off-the-record plea discussions, even though — as conceded — they violate the directive in Warner. Instead, we consider their existence and content as part of the overall analysis of whether a presumption is shown.

Turning back to the first factor, the State acknowledges that Ms. Baxter “correctly points out that the record on appeal does not contain the discussion in which the trial judge extended the plea offer in the first place.” While we presume as correct the trial judge’s finding that defense counsel initiated plea discussions, we also have a duty to verify it, which — as the State notes — is not clear from the record on appeal. In harmonizing the directive from the Florida Supreme Court that a “record of all plea discussions involving the court” must be made with the respected trial judge’s finding that he did not initiate plea discussions, we hold this first factor in equipoise; our inquiry continues because the totality of all factors is considered.

As to the second factor, the record, particularly the content and context of the transcribed off-the-record conversations, makes it appear the trial court became sidetracked from its role as narrowly-defined in Warner and Wilson, but not because of “vindictiveness” in the ordinary sense of that word. The Third District has noted aptly that constructive judicial vindictiveness has been stripped of the requirement that the trial judge actually acted with malice:

As used in the sentencing process the word “vindictive” has lost its dictionary definitions. See American Heritage Dictionary 1430 (1969 ed.)(“disposed to seek revenge”; “unforgiving; bitter; spiteful”). The sentencing term “vindictive” has become a “term of art,” describing the legal effect of a given objective course of action, generally not implying any personal or subjective animosity on the part of the trial judge. That being the case a defendant challenging a sentence as being vindictive may not need to demonstrate that the sentencing judge was acting out of any degree of malice.

Nairn v. State, 837 So.2d 519, 520 (Fla. 3d DCA 2003). Instead, the doctrine is grounded in due process concerns as a prophylactic measure to allow trial judges to be invited to become involved in plea discussions, but doing so at (perhaps more than) an arm’s length. Accurately and dispassionately conveying information to an accused in plea discussions is permissible; actively encouraging or discouraging a particular plea or making comments beyond what Warner and Wilson allow are not. Here, the record shows a mixed bag. The trial court engaged in wholly proper discussions with Ms. Baxter about the terms and nature of the plea deal she had been offered, correctly advising — for example — that she was facing up to fifty years in prison if convicted at trial. Likewise, the trial court’s decision to postpone the plea hearing when Ms. Baxter became ill was a wise move to assure that the sentence imposed was not the product of fleeting circumstances.

In addition, however, the trial court made off-the-record comments that — as read off the transcript or listened to on the audio-recordings — appear to reflect something other than a dispassionate stake in the proceeding. Comments such as “I don’t want to have to beg someone to take it [i.e., the plea]” and that “we’re going to bend over backwards to help this girl and it’s going to come back and hurt us” reflect frustration with Ms. Baxter and the court’s decision to become involved in plea discussions. Comments that the plea deal was for the benefit of Ms. Baxter’s trial counsel, likewise, appear to reflect that the trial judge may have had mixed motivations for being involved in plea discussions. The trial court also said that “I won’t necessarily nail her but you know, if they convict her she’s probably looking at prison.” While a true statement, i.e., that a conviction would require a minimum amount of time in state prison, the trial court’s emphasis on this fact can be viewed as leveraging Ms. Baxter’s counsel to convince his client to take the plea deal, even if that was not the intent.

The passing comment that the “cops don’t like it” makes it appear the proposed plea had been deemed unacceptable by police officials thereby adversely affecting the trial judge’s determination of whether to keep the offer open. Finally, the trial judge made commentary on Ms. Baxter personally, that she was “going to get in the jail and raise hell about something and, you know, fall and hurt her back or some b* * ⅜ ⅞ ⅜ *t. I mean I just see this coming, I’ve seen it happen too many times and I just don’t need to take a chance.” These off-the-record comments, all made while plea negotiations were ongoing and without Ms. Baxter present, depart from the strict requirements of Warner and Wilson that give trial judges little flexibility in the exercise of their neutral role in the plea negotiation process. As the supreme court in Wilson said, the “same flexibility that prosecutors have to actively engage in plea negotiations does not extend to judges. That is why the requirements of Warner must always be strictly followed.” 845 So.2d at 156. We conclude that the trial judge’s comments, at least in the context of ongoing plea discussions, create an aura inconsistent with neutral and dispassionate decision-making, weighing in favor of the second factor, which requires that such comments need only “appear” to depart from the impartiality expected of an arbiter.

Next, the State essentially concedes the third factor, noting that Ms. Baxter “correctly points out the disparity,” that the “ultimate sentence speaks for itself,” and that this disparity “is not a factor that in and of itself gives rise to a presumption of vindictiveness” (unlike factors (1) and (2), which can). We agree that this factor alone does not establish the presumption. But Ms. Baxter’s twenty-year prison sentence is twenty times greater than the plea offer of eleven months and twenty nine days; it is almost six times greater than the lowest permissible minimum of 39.9 months. See Wilson v. State, 951 So.2d at 1044 (“disparity of behemothic proportion” existed where ninety-year sentence imposed after rejection of a state-offered sixty-seven month sentence; “difference between the State-offered plea, which the trial court was prepared to accept, and the sentence imposed is almost eighty-four and a half years. The sentence ultimately imposed is over sixteen times that contemplated in the plea offer.”). On this record, the disparity between the offer and the sentence imposed is sufficient to meet the third factor.

Finally, the trial court relied on two facts to justify the dramatic increase in the sentence: (1) Ms. Baxter was almost thirty years old, as opposed to twenty; and (2) the hotel was completely booked on the evening of the fire. It is true that the trial court has sentencing discretion and is not bound to its preliminary evaluation of the case, see Warner, 762 So.2d at 514, but here Ms. Baxter’s age was of record from the filing of the State’s information. See Cambridge v. State, 884 So.2d 535, 538 (Fla. 2d DCA 2004) (nature of the crime, generally known prior to trial, is insufficient basis for significantly increased sentence); see also Mendez, 28 So.3d at 951 (information that is part of the record existing before trial not supportive of significantly increased sentence). Indeed, the State’s answer brief does not even mention Ms. Baxter’s age as a justification for the increased sentence. Rather, the State focuses entirely on the occupancy of the hotel on the night of the crime, which could play a relevant role, as it affected the trial judge’s view at sentencing because he first learned during the trial that the hotel had been sold out (versus partially booked). That a dangerous meth lab fire had occurred at the hotel, a co-defendant had been injured, and firefighters had been called to the scene, however, were all known during plea negotiations; no hotel guest (other than co-defendant Johnson) was injured, the hotel sprinkler system extinguished the flames in the bathroom before the fire fighters arrived, and the damage to the other rooms was a result of the sprinkler system. Thus, the only new information relied upon for the increase in sentence was the extent of the hotel’s occupancy. This additional fact— though providing a basis for an increased sentence — does not justify the twenty-fold sentence imposed compared to the negotiated plea, particularly given what was known prior to trial during plea negotiations. We in no way minimize the situation that Ms. Baxter and her co-defendant caused; the legislature justifiably has deemed fires and explosion caused by felonious acts to be subject to potentially severe sanction. But the jump from the original plea deal extended to Ms. Baxter (and accepted by Johnson) to the one imposed is not fully explained by the hotel’s occupancy alone.

Based on our review of the four factors and the conceded violation of Warner, we disagree with the State that the “case at hand amounts to only a weak showing of vindictiveness in sentencing.” While no one factor or aspect of the record is conclusive, we find that the totality of the circumstances is sufficient to establish a presumption that Ms. Baxter’s sentence meets the standard for constructive judicial vindictiveness. The State’s sole proffered justification for overcoming the presumption, the hotel’s occupancy, is identical to one of the two reasons the trial court gave to justify the sentence imposed (the other being Ms. Baxter’s apparent age). Neither justification is sufficient to overcome the presumption that due process was not accorded. We recognize that the trial judge sat through the trial and heard testimony about the effect of Ms. Baxter’s criminal conduct on the booked hotel, and that he became more fully cognizant that Ms. Baxter was nearing thirty versus twenty-something. But, as we have explained, neither factor individually, nor both collectively, is enough on this record to inflate by twenty-fold the sentence ultimately imposed.

C.

Ms. Baxter also claims that the trial court erred by refusing to allow her to accept the plea offer after she rejected it. Pursuant to Florida Rule of Criminal Procedure3.172(g), a plea offer or negotiation is not binding until the trial court makes the requisite inquiries required by the rules. The rule states that “[u]ntil that time, it may be withdrawn by either party without any necessary justification.” Id. The trial court is not a party. Thus, this rule does not apply when the trial court extends a plea offer. This is so because a trial court must remain neutral, while the parties are not neutral and can accept or reject offers that are advantageous to their respective positions. Here, the trial court held a plea colloquy to determine whether Ms. Baxter was making a knowing and voluntary decision. She changed her mind. At that point or any point prior, if the offer originated from the State, then the State could have withdrawn the offer, but the trial court could not since it was not a party. The inapplicability of rule 3.172(g), however, does not dispose of this issue.

In Ingram v. State, the Fourth District applied the tenets of contract law to the plea process and opined that “when appellant refused to admit his guilt and insisted on making a best interests plea, there was no acceptance of the plea offer made by the trial judge, no meeting of the minds, and, hence, no binding plea agreement.” 763 So.2d 352, 353 (Fla. 4th DCA 1998) (holding that the trial court may include a condition in the plea offer that requires defendant to admit his guilt) (internal quotations omitted). If we apply the full gamut of contract law to the plea negotiation process, then once Ms. Baxter rejected the plea, it no longer existed. After the offer was rejected, either Ms. Baxter, the State or the trial court would have to initiate another plea negotiation to create a new offer, even if it was identical. Accordingly, it was impossible for the trial court to abuse its discretion in this situation by failing to allow Ms. Baxter to accept the offer because once she rejected the offer, it no longer existed.

III.

This case is difficult because it is clothed in the emotionally-charged language of “judicial vindictiveness,” a doctrine so altered from its roots that — as here — relief may be warranted even if the trial judge was not “vindictive” as that word is ordinarily used and defined in the dictionary. The trial judge became very involved in the plea negotiations, voicing thoughts and concerns that might naturally arise in similar circumstances, but which must be made part of the full record of plea negotiations. Commendably, the trial court ultimately voiced that the best course was for everyone to simply do their jobs, which is far easier said than done, but reflecting profound wisdom. For the reasons discussed above, we REVERSE and REMAND for resentencing by a judge who has had no involvement with this case or related cases.

PADOVANO and MARSTILLER, JJ„ concur.

      . For example, the Second District applied the concept of judicial vindictiveness to the initial sentencing of a defendant. See Zeigler v. State, 60 So.3d 578 (Fla. 2d DCA 2011). In Zeigler, the trial judge made several remarks to the defendant about the strength to the prosecution’s case and that defendant would "rue the day that [he] didn’t dispose of the case.” Id. at 580. After the jury found him guilty, the trial court sentenced the defendant to forty-five years in prison. Id. The Second District reversed, noting that the trial court’s comments created a presumption of judicial vindictiveness because the trial court advocated for a certain outcome. Id. at 581.

      . Section 806.01(l)(c), Florida Statutes, provides: "(1) Any person who willfully and unlawfully, or while in the commission of any felony, by fire or explosion, damages or causes to be damaged: ... (c) Any other structure that he or she knew or had reasonable grounds to believe was occupied by a human being, is guilty of arson in the first degree, which constitutes a felony of the first degree, punishable as provided in s.775.082, s.775.083, or s.775.084.”

      . Transcripts of "on-the-record” conversations reflect that plea discussions occurred in open court on March 15 and 16, 2011, which are discussed below. "Off-the-record” discussions also occurred, two of which were electronically recorded, but apparently not transcribed. Ms. Baxter’s appellate counsel made inquiry and obtained recordings of the two "off-the-record” discussions, which were not part of the trial court record and were first filed in this Court as transcribed by the official court reporter. Upon this Court's order, disks containing audio of the two conversations were also filed. The two conversations are in low voices (as sidebar discussions typically are), but are clear enough to be deciphered.

      . The record does not indicate whether this conversation took place before, during, or after the hearing.

      . During the sentencing hearing, Johnson’s counsel told the trial judge that:
      [A]t one point, Judge Wright, prior to him testifying, Judge Wright’s position on this particular case was if he plead [sic], he'd be sentenced to house arrest, followed by probation. He does work out of state when he has an opportunity and we would ask the Court to consider that. We would request some probation. I’ve advised him that that’s not very likely, that the Court may be more inclined to ,go with what Judge Wright had originally offered to both individuals.
      He emphasized to the trial judge that "at the time that [Johnson] was going to plead straight up, Judge Wright, at that point, was willing to give him two years house arrest with a year in jail, give him credit for time he did in jail, as well as the inpatient treatment.” Johnson testified that "Judge Wright would let me out if I would go into a one-year rehab program, so I did that and completed that.”

      . The State urges that the "trial judge here actually desired the case to proceed to trial” and that "the trial judge decided it was best for the case to proceed to trial instead of resolving it with a plea deal.” It does so apparently to show that the trial judge supported Ms. Baxter's decision to go to trial. In the context of ongoing plea negotiations, however, what a trial judge "desires” or may decide is "best” in terms of whether to proceed to trial is not on the judicial side of the ledger to express; it would be inconsistent with the role of a neutral arbiter as envisioned in Wilson and Warner. Because we do not find the trial judge desired or thought it best for the case to go to trial, our analysis places no weight on this point.


author: RAY, J.

text:
    Jyrki Tuono Juhani PULKKINEN, Petitioner, v. Karen Elaine PULKKINEN, n/k/a Karen Elaine Brautcheck, Respondent.
    No. 1D12-4688.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2013.

      J. Reuben Hamlin, Gainesville, for Petitioner.
    Jonathan P. Culver of Jonathan P. Cul-ver, P.A. Ocala, for Respondent.
   RAY, J.

We have before us a petition for writ of prohibition to restrain a circuit court’s exercise of jurisdiction on a petition to modify a Michigan child support order, where Michigan no longer has continuing, exclusive jurisdiction over the order; the party seeking modification is a Florida resident; and the opposing party is a nonresident who objects to Florida’s assumption of jurisdiction. The father, Jyrki Tuono Juhani Pulkkinen, was the respondent below. He contends that the Uniform Interstate Family Support Act (“UIFSA”), chapter 88, Florida Statutes, excludes the instant case from the jurisdiction of Florida’s courts and binds the circuit court to dismiss the case. The mother, Karen Elaine Pulkkinen, was the petitioner below. She argues that Florida has jurisdiction under the federal Full Faith and Credit for Child Support Orders Act (“FFCCSOA”), 28 U.S.C. § 1738B, and therefore must entertain the modification action. We agree with the father. Section 88.6111(1), Florida Statutes (2010), which was enacted pursuant to a federal mandate, precludes jurisdiction over the modification proceeding in this case, and federal law does not conflict with this state law. Accordingly, we grant the petition.

FACTS AND PROCEDURAL HISTORY

The material facts are undisputed. In 2007, a Michigan court dissolved the parties’ marriage and ordered the father to pay the mother child support. In March 2010, after having moved to Florida with the parties’ two minor children, the mother petitioned the Florida circuit court to domesticate and modify the Michigan child support order. The father, who now lives in California, requested that the order be registered in Florida under the UIFSA, but only for enforcement purposes. Concerned that the order could not be modified if it were registered under the UIF-SA, the mother argued that the order should instead be domesticated under the United States Constitution’s Full Faith and Credit Clause and not with respect to any particular statute or constitutional provision. Ultimately, the court registered the order under the UIFSA, which is the applicable law.

Thereafter, the mother filed an Amended Supplemental Petition to Modify Final Judgment, and the father moved to dismiss the modification proceeding for lack of subject matter jurisdiction, while conceding that the court had personal jurisdiction over him. The father relied on the UIFSA, which grants jurisdiction to modify a foreign child support order only when the moving party is not a Florida resident, with certain exceptions not at issue in this case. § 88.6111(1). The mother argued that modification in Florida is proper because the FFCCSOA removes the continuing, exclusive jurisdiction of a state that has issued a child support order when neither the child nor any of the parties continue to reside in the issuing state, as is the case here. The circuit court agreed with the mother, concluding that the FFCCSOA provides jurisdiction and preempts the UIFSA on this subject. The father requests a writ of prohibition to prevent the exercise of jurisdiction over this modification action.

LAW AND ANALYSIS

A. Standard of Review

A writ of prohibition is the proper vehicle for preventing a court from exercising jurisdiction it lacks or from exceeding its jurisdiction. Roberts v. Brown, 43 So.3d 673, 677-78 (Fla.2010) (quoting English v. McCrary, 348 So.2d 293, 296-97 (Fla.1977)). This Court has previously issued such a writ to preclude modification of another state’s child support order where a circuit court lacked jurisdiction to make the modification. State, Dep’t of Revenue v. Fleet, 679 So.2d 326, 329 (Fla. 1st DCA 1996).

To decide the question presented in this case, we must determine whether the UIFSA conflicts with the FFCCSOA concerning a state’s jurisdiction to modify a foreign child support order when the issuing state has lost continuing, exclusive jurisdiction; the petitioner is a resident of the state in which the action is brought; and the respondent is a nonresident who has not consented to the state’s exercise of jurisdiction over the proceeding. This issue implicates federal preemption doctrine and is a matter of first impression in Florida. However, because all fifty states have enacted the UIFSA at Congress’ behest, Trissler v. Trissler, 987 So.2d 209, 210 n. 1 (Fla. 5th DCA 2008), state courts across the nation have encountered this issue. Those courts have reached divergent conclusions. We review this issue of statutory construction, federal preemption, and subject matter jurisdiction de novo. State v. Rubio, 967 So.2d 768, 771 (Fla.2007) (statutory construction and constitutionality); State v. Harden, 938 So.2d 480, 485 (Fla.2006) (preemption); Dep’t of Revenue ex rel. Smith v. Selles, 47 So.3d 916, 918 (Fla. 1st DCA 2010) (subject matter jurisdiction).

B. Preemption Doctrine

Under federal preemption doctrine, which derives from the Supremacy Clause of the United States Constitution, a state law is void to the extent it conflicts with a valid federal law. See Maryland v. Louisiana, 451 U.S. 725, 746-47, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981); U.S. Const, art. VI, cl. 2. The United States Supreme Court has instructed that “the purpose of Congress is the ultimate touchstone in every preemption case.” Wyeth v. Levine, 555 U.S. 555, 565, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996)).

Congress can manifest intent to preempt state law in three ways. First, Congress can overtly displace state authority with explicit preemption guidelines. English v. Gen. Elec. Co., 496 U.S. 72, 78, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990) (citing Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95-98, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)). Second, when no explicit guidelines exist, Congress can engage in implied field preemption. Id. Such preemption occurs where the federal regulatory scheme is “so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,” or because the federal interest in regulating the field is so dominant as to preclude the enforcement of state laws in the same field. See id. at 79, 110 S.Ct. 2270 (citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). Third, even in circumstances where a federal scheme does not occupy an entire regulatory field, Congress has the power to supersede state law that actually conflicts with federal law. Id.

The federal statute at issue in the instant case, the FFCCSOA, does not contain explicit preemption guidance, nor does it exhibit the preclusive effect of field preemption. Therefore, we must consider the third category of preemption: implied conflict preemption. Conflict preemption occurs when it is impossible to comply with both state and federal requirements or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” English, 496 U.S. at 79, 110 S.Ct. 2270 (citing Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)); Maryland, 451 U.S. at 747, 101 S.Ct. 2114.

C. Application of Preemption Doctrine to the FFCCSOA and the UIFSA

To apply these concepts, we begin with the plain language of the two acts, which is the best evidence of legislative intent. Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 835, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990); Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 367 (Fla.2013). To understand the meaning of any particular provision of either statute, we consider the provisions of the whole law and do not interpret words or sentences in isolation. United States v. Morton, 467 U.S. 822, 828, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984); Fla. Dep’t of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So.2d 1260, 1265 (Fla. 2008). If the language of a statute reveals an unambiguous meaning, we need not resort to any other sources to understand it. See Sebelius v. Cloer, — U.S. -, -, 133 S.Ct. 1886, 1896, 185 L.Ed.2d 1003 (2013); ContractPoint, 986 So.2d at 1265.

The FFCCSOA provides a framework for each state to give full faith and credit to child support orders issued by other states. Its first provision announces that each state “shall enforce according to its terms a child support order made consistently with this section by a court of another State.” § 1738B(a)(l). The FFCCSOA then provides plainly that states “shall not” modify other states’ child support orders “except in accordance with subsections (e), (f), and (i).” § 1738B(a)(2). These two provisions establish the general rule of the FFCCSOA as requiring enforcement without modification of the child support orders of other states. Id.

The mother claims that the exception identified in subsection (e) applies to this case. The FFCCSOA’s subsection (e) permits a court of another state to modify a child support order only if:

(1) the court has jurisdiction to make such a child support order pursuant to subsection (i); and
(2) (A) the court of the other State no longer has continuing, exclusive jurisdiction of the child support order because that State no longer is the child’s State or the residence of any individual contestant; or
(B) each individual contestant has filed written consent with the State of continuing, exclusive jurisdiction for a court of another State to modify the order and assume continuing, exclusive jurisdiction over the order.

Under these provisions, in order for State B to modify a child support order issued by State A, State A must have lost continuing, exclusive jurisdiction of the child support order, either because the child and the parents are no longer residents of State A or the parents consent in writing to State B’s assumption of continuing, exclusive jurisdiction over the order. Additionally, State B must have jurisdiction to make such a child support order under subsection (i), which provides:

If there is no individual contestant or child residing in the issuing State, the party or support enforcement agency seeking to modify, or to modify and enforce, a child support order issued in another State shall register that order in a State with jurisdiction over the non-movant for the purpose of modification.

§ 1738B(i) (emphasis added).

The UIFSA, as codified in Florida, contains similar provisions. Under the UIF-SA, even when a support order of another state is properly registered in Florida for enforcement, a Florida court cannot modify a foreign support order issued under a law substantially similar to the UIFSA and involving a nonresident parent unless it finds after notice and a hearing that:

(a) The following requirements are met:
1. The child, the individual obligee, and the obligor do not reside in the issuing state;
2. A petitioner who is a nonresident of this state seeks modification; and
3. The respondent is subject to the personal jurisdiction of the tribunal of this state; or
(b) The child, or a party who is an individual, is subject to the personal jurisdiction of the tribunal of this state and all of the parties who are individuals have filed written consents in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing exclusive jurisdiction over the order....

§ 88.6111(1) (emphasis added). Here, neither the parents nor the children still live in Michigan, the trial court found that the father consented to personal jurisdiction, and the father has not filed a written consent to the circuit court’s jurisdiction to modify. Therefore, for the purposes of this case, the relevant distinction between the federal FFCCSOA and Florida’s UIF-SA is the nonresident requirement of section 88.6111(l)(a)2.

The mother contends that Florida must exercise jurisdiction despite the UIF-SA’s nonresident requirement because Michigan has lost continuing, exclusive jurisdiction under the terms of the FFCCSOA. Michigan’s loss of continuing, exclusive jurisdiction, however, does not automatically confer jurisdiction on a Florida court to modify Michigan’s child support order. Bowman v. Bowman, 82 A.D.3d 144, 147, 917 N.Y.S.2d 379 (N.Y.App.Div.2011). Under the plain language of the FFCCSOA, modification may occur only “in a State with jurisdiction over the nonmovant for the purpose of modification.” § 1738B(i) (emphasis added).

Some courts have declined to apply the UIFSA’s nonresident requirement because they view it as a hurdle to modification not contemplated by the FFCCSOA. Those courts interpret section 1738B(i)’s jurisdictional language as requiring only that the modification court have personal jurisdiction over the nonmovant. See, e.g., Draper v. Burke, 450 Mass. 676, 881 N.E.2d 122, 128 (2008); Bowman, 82 A.D.3d at 148, 917 N.Y.S.2d 379. Other courts, which have found no conflict between the federal and state law, have interpreted this same language as conditioning modification upon finding both personal and subject matter jurisdiction. See, e.g., LeTellier v. LeTellier, 40 S.W.3d 490, 498-99 (Tenn.2001); Gentzel v. Williams, 25 Kan.App.2d 552, 965 P.2d 855, 860-61 (1998). We are persuaded by the latter interpretation.

To the extent there is any ambiguity in the language, we have resolved it by reference to the rule that a statute should not be construed so as to render any of its words meaningless. United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 99 L.Ed. 615 (1955) (noting that it is the court’s duty to give effect, if possible, to every clause and word of a statute); see also Gonzalez v. McNary, 980 F.2d 1418, 1420 (11th Cir.1993); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174 (2012) (“If possible, every word and every provision is to be given effect.... None should be ignored.”). In Draper v. Burke, the court reasoned that the language “over the non-movant” indicates personal jurisdiction to the exclusion of subject matter jurisdiction. 450 Mass. 676, 881 N.E.2d 122 at 128. If we were to construe the jurisdiction referenced in section 1738B(i) as solely pertaining to personal jurisdiction, we would render the phrase “for the purpose of modification” superfluous. Furthermore, we must acknowledge that if Congress had intended the language to characterize only personal jurisdiction, it could have used the words “personal jurisdiction,” just as it did in section 1738B(e), when listing the requirements an order must fulfill to be “made consistently with this section.” Thus, to give full effect to the plain meaning of subsection (i), we hold that the text “jurisdiction over the non-movant for the purpose of modification” properly refers to both personal jurisdiction and subject matter jurisdiction.

The federal FFCCSOA does not attempt to define the subject matter jurisdiction of state courts. Instead, that task is left to the states, which have embraced the UIFSA’s requirements governing when any court in a state may modify another state’s child support order. The UIFSA establishes those requirements as defining a jurisdictional concept by references to a state’s “jurisdiction to modify.” See, e.g., §§ 88.6111(l)(b), 88.6131(1), 88.2051(2). Those requirements include the petitioner’s nonresidency as a distinct component from personal jurisdiction, and they are not procedural. § 88.611(l)(a). Therefore, they are best understood as limiting the subject matter jurisdiction of all the courts in a particular state over proceedings to modify a foreign child support order. See Roberts v. Bedard, 357 S.W.3d 554, 559 (Ky.Ct.App.2011) (“Under Kentucky’s UIFSA statutes, the family court would only have had subject-matter jurisdiction if Roberts had been a nonresident of Kentucky when she filed her motion to modify.”). Because the federal law allows modification only when a state has both personal and subject matter jurisdiction, the latter of which is defined in the uniform state law, compliance with both federal and state law is not only possible, but required.

We also find nothing in a state’s limitations on its own modification jurisdiction through the UIFSA that stands as “an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” See English, 496 U.S. at 79, 110 S.Ct. 2270. In fact, a contrary holding would be difficult to justify because Congress essentially implemented both acts.

Congress enacted the FFCCSOA in 1994, Pub. L. No. 103-383, 108 Stat. 4063 (1994), and two years later passed the Personal Responsibility and Work Opportunity Reconciliation Act, which required all states to adopt the UIFSA in order to receive federal funding for aid to families with dependent children. Pub. L. No. 104-193, § 321,110 Stat. 2105 (1996) (codified at 42 U.S.C. § 666(f)). In conjunction with this mandate, Congress made “improvements” to section 1738B, including the addition of the language requiring that modification of a child support order occur “in a State with jurisdiction over the non-movant for the purpose of modification.” Pub. L. No. 104-193, § 322(13). Congressional reports contemporaneous with the 1996 revisions of the FFCCSOA explain that their purpose was to promote consistency with the UIFSA. See H.R. Conf. Rep. No. 104-725, at 351 (1996) (revisions to FFCCSOA proposed “to ensure that full faith and credit laws can be applied consistently with UIFSA”); H.R. Rep. 104-651, at 1413 (1996) (same); see also Basileh v. Alghusain, 912 N.E.2d 814, 819-20 (Ind. 2009); LeTellier, 40 S.W.3d at 497-98. Because Congress induced the states to adopt the UIFSA in an effort to create interstate consistency and simultaneously modified the FFCCSOA to comport with the UIFSA’s substance, the two acts are generally considered “complementary or duplicative and not contradictory.” State ex. rel. George v. Bray, 130 N.C.App. 552, 503 S.E.2d 686, 689 (1998); see also LeTellier, 40 S.W.3d at 496-98.

Indeed, our sister court has noted that the two acts are “virtually identical ... both in terms of structure and intent.” Trissler, 987 So.2d at 210. The express policy of the FFCCSOA is “to establish national standards under which the courts of the various States shall determine their jurisdiction to issue a child support order and the effect to be given by each State to child support orders issued by the courts of other States.” Pub. L. No. 103-383, § 2(b). The FFCCSOA identifies three specific purposes: to facilitate enforcement of support orders among the states, to discourage continuing interstate controversies over child support, and to avoid jurisdictional competition and conflict in the establishment of child support orders. Id. at § 2(c). The UIFSA accomplishes these same goals by providing uniform and consistent jurisdictional rules relating to the establishment, enforcement, and modification of child support orders by virtue of its adoption in all fifty states. See Nat’l Conference of Comm’rs on Uniform State Laws, Unif. Interstate Family Support Act (“UIFSA”), Prefatory Note (amended 1996). Both the UIFSA and the FFCCSOA “create a national regime in which only a single support order is effective at any given time.” Hamilton v. Hamilton, 914 N.E.2d 747, 751 (Ind.2009); see UIFSA Prefatory Note (amended 1996); Pnb.L. No. 103-383, § 2(b).

The UIFSA’s nonresident provision does not run afoul of the FFCCSOA’s goals. It minimizes jurisdictional competition and interstate controversies by restricting the circumstances under which a state can modify another state’s order. Further, it promotes certainty concerning the proper venue for a modification action by limiting the moving party’s venue choices. Finally, by restraining the exercise of jurisdiction, it promotes the goal embodied in the FFCCSOA’s title, to preserve the full faith and credit to which each state order is entitled.

Before concluding, we pause to note that binding precedent recognizes a presumption against preemption, particularly in areas that have traditionally been regulated by the states. E.g., Wyeth v. Levine, 555 U.S. 555, 565, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009) (quoting Lohr, 518 U.S. at 485, 116 S.Ct. 2240); W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So.3d 1, 16 (Fla.2012). Family law is such an area. See Rose v. Rose, 481 U.S. 619, 628, 107 S.Ct. 2029, 95 L.Ed.2d 599 (1987) (recognizing the state courts’ “traditional authority ... over the issue of child support”); Ex Parte Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 34 L.Ed. 500 (1890) (“The whole subject of domestic relations of husband and wife, parent and child, belongs to the laws of the states, and not the laws of the United States.”). Recent Supreme Court case law, however, suggests a shift away from the presumption. See, e.g., Mut. Pharm. Co., Inc. v. Bartlett, — U.S. -, 133 S.Ct. 2466, 186 L.Ed.2d 607 (2013) (omitting discussion of the presumption in the majority opinion and stating that, without an explicit expression of congressional intent to preempt or not preempt, courts are “left to divine Congress’ will from the duties the statute imposes”); PLIVA, Inc. v. Mensing, — U.S. -, -, 131 S.Ct. 2567, 2580, 180 L.Ed.2d 580 (2011) (plurality opinion) (suggesting “that courts should not strain to find ways to reconcile federal law with seemingly conflicting state law”). Whatever the continuing vitality of the presumption doctrine may be, it does not affect our decision today, because we readily conclude from the language used in the two statutes that there is no conflict, express or implied. Consequently, we need not invoke the presumption to tip the scales.

CONCLUSION

In conclusion, having thoroughly considered the text of the two acts, we hold that the FFCCSOA does not preempt section 88.6111(1) of the Florida UIFSA. Neither the language nor the purposes of either statute create any conflict that requires displacing state provisions. Therefore, the circuit court is required to give full effect to section 88.6111(1) and refrain from exercising modification jurisdiction in this matter.

PETITION GRANTED.

LEWIS, C.J., and CLARK, J„ concur.

      . Although Florida courts have recognized the general proposition that the FFCCSOA supersedes any conflicting provision of the UIFSA, none have addressed whether the jurisdictional provisions of the two laws conflict, and none have found preemption on the matters they considered. See Trissler v. Trissler, 987 So.2d 209, 212 (Fla. 5th DCA 2008) (applying section 88.6111(1) to require a circuit court to exercise jurisdiction where the petitioner was not a Florida resident); Bouquety v. Bouquety, 933 So.2d 610, 611 n. 2 (Fla. 3d DCA 2006) (citing cases addressing a predecessor uniform act for the proposition that the UIFSA has been preempted "with respect to modifications of child support orders rendered by another state,” while acknowledging that the FFCCSOA was not at issue because the case concerned an order issued in another country); Kramer v. Kramer, 698 So.2d 894, 894 (Fla. 4th DCA 1997) (applying the FFCCSOA to a different issue under the theory that it preempts state law, without describing the nature of any conflict).

      . See, e.g., Draper v. Burke, 450 Mass. 676, 881 N.E.2d 122, 127-29 (2008) (concluding that the FFCCSOA preempts the UIFSA’s provision precluding jurisdiction to modify another state’s order where the movant is a resident of the state in which modification is sought); Bowman v. Bowman, 82 A.D.3d 144, 148-49, 917 N.Y.S.2d 379 (N.Y.App.Div.2011) (same); contra, e.g., LeTellier v. LeTellier, 40 S.W.3d 490, 498-99 (Tenn.2001) (holding that the FFCCSOA does not preempt the UIFSA’s provisions concerning lack of jurisdiction to modify where the nonmovant is a nonresident of the state where modification is sought); Gentzel v. Williams, 25 Kan.App.2d 552, 965 P.2d 855, 859-61 (1998) (same); Jackson v. Holiness, 961 N.E.2d 48, 51-52 (Ind.Ct.App. 2012) (same).

      . See §§ 88.6011-.6071, Fla. Stat. (2010).

      . In the prefatory note and comments to the UIFSA, the National Conference of Commissioners on Uniform State Laws refers to these requirements as defining a state's "modification jurisdiction.”