author: PER CURIAM.

text:
    Ex parte State of Alabama. (In re STATE of Alabama v. Stacey Lanette JACKSON).
    CR-11-1718.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 2014.
    Brandon K. Falls, dist. atty., and J. Patrick Lamb, deputy dist. atty., Birmingham, for petitioner.
    Frank G. Alfano and Susan Walker, Birmingham, for respondent.
   PER CURIAM.

The District Attorney for the Tenth Judicial Circuit filed this petition for a writ of mandamus requesting that this Court direct Judge David Lichtenstein to set aside his order of August 2, 2012, and to reinstate Stacey Lanette Jackson’s de novo appeal. In September 2010, Jackson was charged with speeding in a construction zone and with driving under the influence (“DUI”). Jackson was convicted in the Jefferson District Court and was fined $100 on the speeding conviction and was sentenced to 30 days’ incarceration on the DUI conviction. Jackson appealed to the Jefferson Circuit Court for a trial de novo and requested a jury trial. Twenty-one days after Jackson was convicted in the district court, the clerk of the district court transferred the case file to the Jefferson Circuit Court clerk’s office. Jackson’s trial was scheduled for May 2012. At trial, the jury informed the court that it was deadlocked, and the trial court declared a mistrial. Jackson’s case was scheduled for a retrial in August 2012. In June 2012, Jackson moved to dismiss her de novo appeal with prejudice because, she argued, the district court clerk failed to timely transmit the record to the circuit court in accordance with Rule 30.4, Ala. R.Crim. P. On August 2, 2012, Judge Lichtenstein dismissed Jackson’s de novo appeal with prejudice. The State then filed this petition for a writ of mandamus. All action in the circuit court was stayed pending the resolution of this mandamus petition.

This case is correctly before this Court by way of a mandamus petition. We hold that Judge Lichtenstein’s ruling dismissing Jackson’s de novo appeal was beyond the scope of his jurisdiction and was therefore void. A void judgment will not support an appeal. See Underwood v. State, 439 So.2d 125 (Ala.1983); Hamilton v. State, 828 So.2d 957 (Ala.Crim.App.2002); Carpenter v. State, 782 So.2d 848 (Ala.Crim.App.2000). See also Maddox v. State, 668 So.2d 162, 163 (Ala.Crim.App. 1995) (recognizing that circuit courts lack the “authority to dismiss a de novo appeal” when such dismissal is “unauthorized by either statute or rule.” (quoting Riddle v. State, 641 So.2d 1316, 1318 (Ala.Crim.App.1994))). Thus, the State’s only remedy was to file an extraordinary petition.

The State asserts that Judge Lichtenstein acted beyond the scope of his discretion in dismissing Jackson’s de novo appeal because, it argues, Rule 30.4, Ala. R.Crim. P., contains no provision for the dismissal of an appeal from the district court when the clerk has failed to timely transmit the record to the circuit court. Jackson asserts that based on the wording of Rule 30.4(a), Ala. R.Crim. P., and this Court’s decision in State v. Tapley, 636 So.2d 1282 (Ala.Crim.App.1994), Judge Lichtenstein acted within his discretion in dismissing Jackson’s de novo appeal.

Rule 30.4, Ala. R.Crim. P., states:

“(a) Record on Appeal to Circuit Court. Within fourteen (14) days after the appeal to the circuit court for trial de novo is perfected as provided by Rule 30.3(b), the clerk of the municipal or district court shall transmit to the clerk of the circuit court such records of the proceedings as are in the municipal or district court clerk’s possession, including the original charging instrument. If the appeal is from a municipal court and the clerk thereof shall fail to transmit such records to the clerk of the circuit court within the time prescribed, the municipality shall be deemed to have abandoned the prosecution; the defendant shall stand discharged, with prejudice; and any bond shall be automatically terminated.”

(Emphasis added.) This rule is patterned after § 12-22-70, Ala.Code 1975, and § 12-24-70, Ala.Code 1975.

The statutory right to appeal a judgment from a district court to a circuit court for a trial de novo is governed by § 12-12-70, Ala.Code 1975. That section provides, in pertinent part:

“(b) Criminal cases. A defendant may appeal from a final judgment of the district court in a criminal or quasi-criminal case by filing notice of appeal within 14 days from the date of judgment or from the date of denial of a post-trial motion, whichever is later, together with such bond as may be fixed by the court....
“(d) When an appeal is to the circuit court, the clerk of the district court, if separate from the clerk of the circuit court, shall forthwith file the notice of appeal, a cost bill and copies of the case file with the clerk of the circuit court.”

Section 12-i4-70(d), Ala.Code 1975, governs de novo appeals from a municipal court, and specifically provides, in part:

“When an appeal has been taken, the municipality shall file the notice and other documents in the court to which the appeal is taken within 15 days, failing which the municipality shall be deemed to have abandoned the prosecution, the defendant shall be discharged and the bond shall be automatically terminated.”

There is no statutory provision in § 12-12-70, Ala.Code 1975, that corresponds to the specific provision in § 12-24-70, Ala.Code 1975, and that provides for the dismissal of a de novo appeal from the district court for the clerk’s failure to timely transmit the record to the circuit court.

A circuit court’s authority to dismiss a de novo appeal is not unfettered. In 1928, the Alabama Supreme Court in Thompson v. City of Birmingham, 217 Ala. 491, 117 So. 406 (1928), addressed the precursor to § 12-14-70, Ala.Code 1975, and a court’s limited authority to dismiss a de novo appeal from a recorder’s court — now a municipal court. The Supreme Court stated:

“Manifestly, this authority to dismiss the [de novo] appeal is special and limited, and cannot be extended beyond the terms by which it is granted. Either the court may proceed as usual with the default and the prosecution, or, when the forfeiture has been made final, after notice to the defendant of the conditional forfeiture and his failure to then appear and excuse his default, as prescribed by law, the appeal may be dismissed, and the defendant remitted to the city authorities for a punishment under the judgment appealed from.”

217 Ala. at 494, 117 So. at 409 (emphasis added).

Later in Ex parte Hilbum, 591 So.2d 8 (Ala.1991), the Alabama Supreme Court addressed the evolution of § 12-24-70(f), and stated:

“In 1975, however, the legislature, in order to ‘implement the new Judicial Article of the Alabama Constitution (Amendment No. 328 approved December 18, 1973),’ materially altered both the form and the substance of the provisions for appeals from municipal court. Act No. 1205, 1975 Ala. Acts 2384, 2384. Section 8-105 of the 1975 Act deleted the clause in the former section providing for the discretionary retention of a case on appeal from municipal court. In its place, the 1975 Act substituted the clause now contained in § 12 — 14—70(f), which provides that ‘[u]pon failure of an appellant to appear in the circuit court when the case is called for trial ..., the court shall dismiss the appeal.’ (Emphasis added.) The series of enactments thus demonstrates a progression of legislative intent regarding the circuit court’s discretion to retain a case on appeal, from the mandatory retention under Ala.Code 1923, § 1938 — through the express grant of discretion in the wake of Thompson — to mandatory dismissal and reinstatement of the original judgment through the repeal in the 1975 Act of the clause conferring discretion.
“To be sure, the legislation under discussion has expressly addressed only the issue of dismissal upon failure to appear for trial. Nevertheless, if the circuit court has no discretion to retain the case upon the nonappearance of the defendant, then a fortiori, it lacks the discretion to retain the case if the defendant appears and affirmatively seeks the dismissal of the appeal and the remand of the case to the municipal court.”

591 So.2d at 11 (emphasis supplied).

This Court has repeatedly held that a circuit court’s authority to dismiss an appeal de novo from a district court is limited to the authority set out in the statutes governing those appeals. In Ex parte Fa-gan, 892 So.2d 443 (Ala.Crim.App.2004), we stated:

“According to § 12-12-70(e) and (g), Ala.Code 1975, the circuit court may dis^ miss a de novo appeal under two circumstances — when the defendant fails to appear for the date set for trial or when the defendant moves for a voluntary dismissal. Section 12-12-70(e), states, in part:
“ ‘The circuit court shall, upon failure of the appellant to appear in court when the case is called for trial, unless good cause for such default is shown, enter an order dismissing the appeal and enter judgment of default on any appearance bond given in connection therewith in accordance with the procedures set out in Title 15, Article 5, Chapter 13.’

“See also Rule 30.5(b), Ala. R.Crim. P. Section 12-12-70(g), states, in part:

“ ‘In addition to an involuntary dismissal as provided in subsection (e), the judge of the circuit court to which an appeal has been taken may, at the request of the defendant, enter an order dismissing the appeal, provided the defendant tenders payment of the costs and fíne imposed by the district court at the time the request for dismissal is made, and provided further, that the defendant submits himself to the sheriff or, in municipal ordinance cases, to the chief of police to begin serving any sentence of imprisonment ordered by the district court.’ ”

892 So.2d at 444-45. See Hulsey v. State, 866 So.2d 1180 (Ala.Crim.App.2003) (noting that there is no statutory right for the State to move to dismiss a de novo appeal unless defendant fails to appear at trial); Riddle v. State, 641 So.2d 1316, 1318 (Ala.Crim.App.1994) (stating that “the circuit court’s dismissal of the appeal when the appellant failed to appear at ‘plea day’ was premature,” because the statute provides for dismissal on the date of trial). See also Chaney v. City of Birmingham, 246 Ala. 147, 151, 21 So.2d 263, 268 (1944) (“No defect in the proceedings, other than want of jurisdiction apparent on the face of them, will subject the cause to dismissal on appeal.”).

In comparison, the Alabama Supreme Court has held that § 12-74-70, Ala.Code 1975, provides for mandatory dismissal of an appeal de novo from a municipal court when the record is not forwarded to the circuit court and that § 12-14-70 took precedence over any provision to the contrary in Rule 30.5, Ala. R.Crim. P.

“The dismissal of an appeal to the circuit court from either the municipal court or the district court based on the appellant’s failure to appeal is also governed by Rule 30.5(b), Ala. R.Crim. P., which tracks the language of § 12-12-70(e) and § 12 — 14—70(f). Rule 30.5(b), however, is permissive, while the provisions of the two statutes are mandatory. In Ex parte Hilbum, 591 So.2d 8 (Ala.1991), the Alabama Supreme Court addressed the distinction between § 12-14-70(f) and Rule 30.5(b) and ‘held that the mandatory provision of the statute rather than the permissive provisions of the rule “accurately represente ] the policy of this state.”’ Riddle v. State, 641 So.2d 1816, 1318 (Ala.Cr.App.1994) (quoting Hilbum at 12).”

Maddox v. State, 668 So.2d 162, 163 (Ala.Crim.App.1995).

“All statutes that authorize appeals are to be strictly construed.” Dixon v. City of Mobile, 859 So.2d 462, 463 (Ala. Crim.App.2003) (citing Wood v. Birmingham, 380 So.2d 394 (Ala.Crim.App.1980)). Section 12-Z2-70(d), Ala.Code 1975, contains no penalty for a failure by the district court to timely forward the record to the circuit court. Indeed, this section merely states: “When an appeal is to the circuit court, the clerk of the district court, if separate from the clerk of the circuit court, shall forthwith file the notice of appeal, a cost bill and copies of the case file with the clerk of the circuit court.” The legislature clearly declined to enact legislation authorizing the dismissal of a de novo appeal from a district court to a circuit court when the record was not forwarded within a prescribed period. Rule 30.4, Ala. R.Crim. P., does not conflict with § 12-A8-70(b), Ala.Code 1975.

This Court in State v. Luttrell, 707 So.2d 290 (Ala.Crim.App.1997), issued a writ of mandamus after the circuit court dismissed a de novo appeal from the district court when the clerk failed to transmit the record to the circuit court within 14 days. In granting relief, we stated:

“[The circuit court] filed a response to the petition in which [it] stated that [it] believed that the provision of Rule 30.4(a) emphasized above applied to both district courts and municipal courts. [The circuit court’s] interpretation is not one that this Court has adopted.”

707 So.2d at 291. Again, in Long v. State, 650 So.2d 621 (Ala.Crim.App.1994), this Court stated that “Rule 30.4(a), Ala. R.Crim. P., does not impose a penalty for the failure of the clerk of the district court to transmit the records to the circuit court within the 14-day period.” 650 So.2d at 623 (emphasis omitted). Yet again in Pen-der v. State, 740 So.2d 482 (Ala.Crim.App. 1999), we stated: “[E]ven if the district clerk failed to deliver the record in the 14-day time period, it was of no consequence.” 740 So.2d at 483-84. Later in Ex parte City of Tarrant, 850 So.2d 366 (Ala.Crim. App.2002), we stated:

“We have noted that Rule 30.4[, Ala. R.Crim. P.,] has no application to appeals from rulings by a district court. See State v. Luttrell, 707 So.2d 290 (Ala.Crim.App.1997). That rule contains a penalty only for the municipality’s failure to file the records with the circuit court.”

850 So.2d at 368 n. 2.

Nonetheless, in Tapley, this Court issued a writ of mandamus to the circuit court after the circuit court dismissed several de novo appeals from the district court when the records were not timely transmitted to the circuit clerk and “it appeared] that the circuit judge may have been under the mistaken impression that Rule 30.4 required the dismissal of district court cases as well as the municipal court cases, jurisdiction of this cause is remanded to the circuit court for further consideration.” We stated:

“[Rule] 30.4(a)[, Ala. R.Crim. P.,] does not require the dismissal of district court cases appealed to the circuit court if the clerk of the district court fails to transmit the records to the clerk of the circuit court either within 14 days of the filing of the notice of appeal or ‘forthwith’ after the filing of the notice of appeal. Here, the dismissal of the district court cases was therefore within the discretion of the trial court.”

636 So.2d at 1284 (some emphasis added). The sentence emphasized above is not cited in any other case and appears to conflict with prior Alabama Supreme Court eases addressing a circuit court’s authority to dismiss a de novo appeal and the clear wording of § 12-12-70, Ala.Code 1975. Accordingly, that portion of Tapley that states that a circuit court has discretion to dismiss a de novo appeal when the district court clerk fails to forward the record to the circuit court conflicts with statutory law and is expressly overruled.

For the reasons stated above, we hold that the circuit court acted beyond the scope of its jurisdiction in dismissing Jackson’s de novo appeal with prejudice. Accordingly, this petition for a writ of mandamus is due to be granted. Judge Lichtenstein is directed to set aside his order of August 2, 2012, and to reinstate Jackson’s de novo appeal.

PETITION GRANTED; WRIT ISSUED.

WINDOM, P.J., and WELCH, KELLUM, BURKE, and JOINER, JJ., concur.

      . This Court has previously considered two petitions for writs of mandamus filed by the State on the same issue. See State v. Luttrell, 707 So.2d 290 (Ala.Crim.App. 1997), and State v. Tapley, 636 So.2d 1282 (Ala.Crim.App. 1994). However, those cases were decided before Rule 15.7, Ala. R.Crim. P., was amended effective August 1, 1997, to provide the State and municipalities a right to appeal a pretrial ruling dismissing a misdemeanor case.

      . Pursuant to the rule-making authority granted to the Alabama Supreme Court by Art. VI, § 150, Ala. Const. 1901 (Off. Re-comp.) (added by Amendment No. 328, § 6.11, Ala. Const. 1901), the Supreme Court amended § 12 — 14—70(d) by adopting Rule 30.4(a), Ala. R.Crim. P., effective January 1, 1991, which changed the time for taking an appeal to 14 days.

      . The specific holding in Thompson was superseded by statutory amendment.


source: Caselaw Access Project

license: Public Domain

text:
    James Van WARREN, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-167.
    District Court of Appeal of Florida, First District.
    Jan. 17, 2014.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Wesley Paxson III, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

James Van Warren was charged with grand theft, pled nolo contendere to the lesser offense of petit theft, and was sentenced to twelve months’ probation. He appeals the probation order insofar as it contains a special condition requiring him to pay $8,750 in restitution for stolen items ($1,000 for a painting; $350 for a humidifier; $2,400 for eight boxes of Mardi Gras beads). He argues, and the State properly concedes, that the values the trial court found for the painting and beads are unsupported by legally sufficient proof. See D.E.M. v. State, 109 So.3d 1229, 1232 (Fla. 1st DCA 2013) (“To meet the requisite proof, however, the evidence must be ‘more than mere speculation; it must be based on competent evidence.’ ”) (quoting Glaubius v. State, 688 So.2d 913, 916 (Fla.1997)). Accordingly, we reverse the probation order, and remand for a new evidentiary hearing to determine the appropriate restitution amount. See id.

REVERSED and REMANDED with directions.

ROBERTS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Scott Phillip HENRETTY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0504.
    District Court of Appeal of Florida, First District.
    Jan. 17, 2014.
    Scott Phillip Henretty, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Scott Henretty presents a timely claim of ineffective assistance of appellate counsel. He correctly maintains that, in his appeal to this court in 2011, see Henretty v. State, 75 So.3d 722 (Table) (Fla. 1st DCA 2011), his appellate counsel was ineffective for failing to argue that the trial court erred by not renewing the offer of counsel at the entry of his guilty plea and again at sentencing. At the time the petitioner entered his guilty plea and was sentenced, he was proceeding pro se, having previously dismissed his attorney and been found competent to represent himself at trial. The trial court accepted his guilty plea and imposed sentence without renewing the offer of counsel as required by Florida Rule of Criminal Procedure 3.111(d)(5).

A trial court must renew the offer of counsel at every critical stage of the proceedings, including the entry of a plea and sentencing. The failure to do so ordinarily constitutes fundamental error. See Jackson v. State, 983 So.2d 562, 575 (Fla.2008); Smith v. State, 41 So.3d 1081 (Fla. 2d DCA 2010); Curtis v. State, 32 So.3d 759 (Fla. 2d DCA 2010); Monte v. State, 51 So.3d 1196, 1201 (Fla. 4th DCA 2011); Clary v. State, 818 So.2d 686, 688 (Fla. 5th DCA 2002); Beard v. State, 751 So.2d 61, 62 (Fla. 2d DCA 1999). Therefore, the petitioner’s appellate counsel rendered ineffective assistance of appellate counsel by failing to raise this issue. See Traylor v. State, 596 So.2d 957 (Fla.1992); Blane v. State, 987 So.2d 241 (Fla. 1st DCA 2008); see also Miller v. State, 887 So.2d 437 (Fla. 1st DCA 2004).

We grant the petitioner a new appeal. A copy of this opinion shall be filed with the trial court and treated as the notice of appeal. If the petitioner qualifies for appointed counsel, the trial court shall appoint new counsel to represent petitioner on appeal.

Reversed and remanded.

PADOVANO, ROWE, and OSTERHAUS, JJ„ concur.


text:
    Lisbeth PARRA, Appellant, v. COCONUT GROVE BANK, Appellee.
    No. 3D13-2283.
    District Court of Appeal of Florida, Third District.
    April 16, 2014.
    Lisbeth Parra, in proper person.
    Appellee precluded from Oral Argument.
    Before SHEPHERD, C.J., SALTER and LOGUE, JJ.
   PER CURIAM.

Lisbeth Parra appeals from a trial court order resetting a foreclosure sale. Because the issues raised in Parra’s brief relate only to the alleged illegality of the underlying foreclosure action and do not address any alleged errors in the order on appeal, we affirm. See Echeguren v. Citibank, N.A., 133 So.3d 1174 (Fla. 4th DCA 2014) (“[T]he issues raised in the appellants’ brief relate to the 2009 final judgment of foreclosure and appellants’ motion to vacate same. The issues do not relate to the order resetting foreclosure sale, which is the subject of appellants’ notice of appeal.”).

Affirmed.


text:
    Joycelyn GLOVER, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3874.
    District Court of Appeal of Florida, First District.
    June 25, 2014.
    Nancy A. Daniels, Public Defender, and Randall Richardson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Samuel B. Steinberg and Donna A. Gerace, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm appellant’s conviction and sentence, but remand for correction of the written probationary order, which incorrectly indicates that appellant entered a plea of guilty rather than that appellant was found guilty by jury verdict. Appellant does not need to be present for the correction of this clerical error. See Jones v. State, 390 So.2d 820 (Fla. 1st DCA 1980).

AFFIRMED but REMANDED to correct the written probationary order.

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


text:
    Brittany Michelle JERNIGAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0481.
    District Court of Appeal of Florida, First District.
    June 25, 2014.
    Bruce A. Miller, Public Defender, and David A. Dunkerley, Assistant Public Defender, Pensacola, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgments and sentences rendered October 22, 2013, in Escambia County Circuit Court case numbers 2013-CF-001054-A, 2013-CF-003962-A, 2013-004335-A, and 2013-CF-004336-A, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

ROWE, RAY, and SWANSON, JJ., concur.


text:
    Marzuq AL-HAKIM, Appellant, v. Rick SCOTT, Governor, Appellee.
    No. 1D14-2132.
    District Court of Appeal of Florida, First District.
    July 1, 2014.
    Rehearing Denied Aug. 14, 2014.
    Marzuq Al-Hakim, pro se, Appellant.
    Blaine H. Winship, Tallahassee, for Ap-pellee.
   PER CURIAM.

DISMISSED. See Sprint v. Parole Comm’n, 933. So.2d 1218 (Fla. 1st DCA 2006). Inasmuch as the lower tribunal entered a final order in this matter on July 11, 2013, appellant’s request that the Court direct the lower tribunal to render an ap-pealable final order is denied as moot.

VAN NORTWICK, PADOVANO, and MARSTILLER, JJ„ concur.


author: SALTER, J.

text:
    The REPUBLIC OF ECUADOR, Appellant, v. Roberto Isaías DASSUM and William Isaías Dassum, Appellees.
    No. 3D13-1753.
    District Court of Appeal of Florida, Third District.
    July 2, 2014.
    Rehearing Denied Sept. 16, 2014.

      Squire Sanders and Alvin B. Davis and Digna B. French and Rafael Langer-Osu-na, Miami, for appellant.
    Lewis Tein; Kula & Samson, and Elliot Kula, Miami, for appellees.
    Before WELLS, ROTHENBERG and SALTER, JJ.
   SALTER, J.

The Republic of Ecuador (Republic) appeals a final summary judgment in favor of two former bankers from Ecuador now living in Miami, brothers Roberto Isaias and William Isaias. The legal issue is whether the extraterritoriality exception to the act of state doctrine bars the Republic’s claims in Florida to recover some $200 million in alleged damages following the failure of Ecuador’s (formerly) largest bank, Filanbanco.

We reverse and remand, concluding that: (1) the record demonstrates genuine issues of fact regarding the allegedly-remaining indebtedness of the Isaíases to the Republic; and (2) the Republic’s complaint seeking remedies in Florida is not based, as argued by the Isaíases, on a “confiscatory decree of a foreign sovereign ... acting beyond its territorial dominion.”

The Proceedings in Ecuador

The Isaíases owned and controlled two Panamanian entities which were the shareholders of Filanbanco. In 1998, Filanban-co experienced a liquidity crisis as part of a widespread national financial crisis. Ecuador’s legislature established the Agencia de Garantía de Depósitos (“AGD”), an agency similar to the Federal Deposit Insurance Corporation in the United States. By mid-2001, the AGD had injected over $1.16 billion into Filanbanco in an effort to help the bank recover stability and to protect its depositors.

Filanbanco engaged the international accounting firm of Deloitte & Touche (De-loitte) to determine the extent and causes of the bank’s massive losses. In May 2001, Deloitte issued a written report to the Republic’s national superintendent of financial institutions concluding that depositors’ losses (as of December 1998) were at least $661.5 million. Filanbanco was forced to close, and Article 29 of the AGD law imposed liability on the Isaíases (jointly and severally) for the losses. The Republic concluded that the Isaíases had drained the bank’s funds through fraudulent misconduct. In 2008, Ecuador issued arrest warrants for the Isaíases, who were by then in Miami.

In February 2008, the Republic’s banking authority issued Resolution Number JB-2008-1084 (Resolution 1084), authorizing the approval and delivery of the De-loitte report to the AGD. The AGD then pursued the assets of the Isaíases in Ecuador to recover and sell them, thereby reducing the allegedly outstanding liability of the Isaíases to the Republic. As of April 2009, the AGD alleged that it had recovered and sold approximately $400 million of such assets in Ecuador to be applied in reduction of the claimed $661.5 million indebtedness of the Isaíases.

The Florida Lawsuit

In April 2009, the AGD sued the Isaí-ases in circuit court in Miami, alleging that the Isaíases reside in Miami and have at least $20 million in property here. The complaint seeks to collect the Isaíases’ allegedly-remaining liabilities of approximately $200 million. The prayer for relief in the complaint “demands judgment ... for damages, interest, and such further relief that the Court may deem just and proper.” The Republic’s complaint does not demand that the circuit court summarily seize any of the Isaíases’ property in Florida or transfer title to any such property to the Republic.

The Isaíases counterclaimed for a declaratory judgment that the AGD orders were illegal and improper under the law of Ecuador. The trial court determined that those orders represented governmental actions taken within Ecuador and granted the Republic’s motion for summary judgment based on the act of state doctrine. Similarly, sixteen entities which had an interest in some of the assets seized and sold in Ecuador by the AGD for application to the alleged indebtedness of the Isaíases sought to intervene in the Florida lawsuit for a declaratory judgment that the seizure orders were illegal. The trial court dismissed the intervenors’ complaint on grounds that the Florida claims of the intervenors related exclusively to sovereign actions of the Republic within its own borders, and were thus barred by the Foreign Sovereign Immunities Act and the act of state doctrine.

In March 2018, the Isaíases moved for final summary judgment against the Republic on the claims asserted by the Republic in its Florida complaint. The primary basis for the Isaíases’ motion was the extraterritoriality exception to the act of state doctrine. The trial court granted that motion, and this appeal followed. Analysis

The act of state doctrine is a judicially-created principle of international comity; the courts of Florida and the United States will presumptively defer to governmental acts (whether we might characterize them as executive, legislative, or judicial) taken within the territory of another sovereign nation. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 898, 401, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964); Nat’l Inst, of Agrarian Reform v. Kane, 153 So.2d 40, 42 (Fla. 3d DCA 1963). The doctrine gives effect to the primacy of the executive branch of our own federal government in the conduct of international relations with other countries.

The governmental acts to which we ordinarily defer include actions of the executive branch of a foreign government— such as the AGD in the present case— which determine an indebtedness and direct the seizure of assets within that country in partial or full satisfaction of that indebtedness. But the courts of this country have also been receptive to claims asserted by foreign governments to recover for acts in a foreign country by alleged wrongdoers (officials from a prior administration or regime) who subsequently took up residence here with ill-gotten gain. Republic of Philippines v. Marcos, 806 F.2d 344, 360 (2d Cir.1986) (“The complaint seeks recovery of property illegally taken by a former head of state, not confiscation of property legally owned by him.”).

The act of state doctrine and our deference do not extend to sovereign acts of a foreign government purporting to seize, summarily, property within the United States. This “extraterritoriality exception” to the doctrine requires us to exercise our own jurisdiction and to determine whether the foreign sovereign’s claim against the assets here amounts to a “taking” contrary to United States policy and the fifth and fourteenth amendments to our Constitution. Bandes v. Harlow & Jones, Inc., 852 F.2d 661, 667 (2d Cir. 1988); Republic of Iraq v. First Nat’l City Bank, 353 F.2d 47, 51 (2d Cir.1965).

In the present case, the Republic’s complaint does not identify any act of the government of Ecuador summarily seizing or confiscating any property of the Isaías-es in Miami-Dade County, the State of Florida, or the United States. Rather, the complaint alleges that Filanbanco is in liquidation and that Resolution 1084 has authorized the AGD to “initiate all legal actions” against any persons obligated by law to reimburse the AGD for the amounts advanced to depositors and other creditors of Filanbanco. The Republic’s Florida complaint alleges that: the Isaíases were found by Deloitte (in a report then approved by Ecuador’s banking authorities), to be liable to the AGD for $661.5 million; the AGD seized in Ecuador over $400 million in assets of the Isaíases in reduction of that liability; and the AGD has been authorized to pursue the balance of the liability through litigation against the Isaíases in Miami-Dade County. The prayer for relief in the complaint seeks a judgment for money damages for the unrecovered net amount allegedly remaining due from the Isaiases, jointly and severally, “and such other relief that the Court may deem just and proper.”

This complaint is in stark contrast to a hypothetical complaint demanding the enforcement in Florida of a foreign sovereign’s confiscation of property located in Florida, as a judicial fait accompli, all in purported reliance on the act of state doctrine. Such a demand plainly would be subject to the extraterritoriality exception to the doctrine, as in Republic of Iraq.

The order granting summary judgment in the present case was based on an erroneous predicate advanced by counsel for the Isaiases, who characterized the Florida complaint as an effort to “seize the [Isaías-es’] property in the U.S” through an “executive fiat” within Ecuador. In fact, however, the complaint seeks a judgment for money damages which, if further proceedings warrant, could only then be used to execute upon property in the United States. The Isaiases are not precluded from opposing the entry of such a judgment in Miami-Dade County by asserting their defenses and affirmative defenses at trial.

Nor does the Republic’s complaint in Florida allege that the computations of liability in Ecuador must be given preclusive effect by the circuit court here. The governmental resolutions establishing the Isaíases’ alleged liability (and reductions in that alleged liability following recoveries in Ecuador) are neither “out-of-country foreign money-judgments” eligible for recognition and enforcement under sections 55.601-607, Florida Statutes (2009), nor foreign decrees subject to the more expansive principle of international comity described in Nahar v. Nahar, 656 So.2d 225 (Fla. 3d DCA 1995).

The Isaiases did not make a conclusive showing in the circuit court that the actions by the banking authorities and Deloitte in Ecuador were confiscatory acts strictly based on politics, revolution, or regime change. The Isaiases have not provided, on this record, summary judgment evidence under Florida Rule of Civil Procedure 1.510(c) that the Republic’s claims of misapplication and misrepresentation, and the Deloitte report, for example, are pretextual or even factually incorrect. On the record presented, the Isaiases had the opportunity to present information to the banking authorities (and on at least some occasions, took advantage of that opportunity) in Ecuador both before and after the issuance of the Deloitte report and before and after they moved to Miami.

Simply stated, the Republic claims to be a creditor with a claim for money damages against the Isaiases based on their allegedly wrongful acts and omissions in Ecuador. The validity and extent of any such claim are subject to proof as in any claim by a foreign sovereign against one of its citizens residing in the United States. The Florida trial court is not obligated to give preclu-sive effect to the findings of Deloitte and the AGD, and it will not interfere with the Republic’s sovereignty or the foreign relations of the United States if the Florida court rules for or against the Republic’s claims here in Florida after considering the proof put forward by the Republic.

Conclusion

We reverse and remand the final summary judgment in favor of the Isaíases for further proceedings. The existing complaint is not barred as a matter of law as an attempt to obtain summary recognition of acts of state in Ecuador that “seize” or “confiscate” property of the Isaíases in Miami-Dade County. There are genuine issues of material fact that remain in dispute regarding (1) the Isaíases’ allegedly-remaining indebtedness to the Republic, and (2) the entitlement of the Republic to the entry of a judgment here against the Isaíases for money damages. The Isaíases have not demonstrated on this record that the Republic has no facts or legal basis upon which it may prove its claims.

Reversed and remanded for further proceedings.

      . Order Granting Defs.’ Mot. Summ. J. at 8.

      . All amounts in this opinion are expressed in United States dollars.

      . Ecuador requested extradition of the Isaías-es to Ecuador, but the request has not been granted so far as the record reflects.

      . In 2010, the Republic of Ecuador itself was substituted for AGD as the party plaintiff.

      . 28 U.S.C. §§ 1602-1611.

      . In cases such as Marcos, a successor foreign government alleges that a predecessor official's property or funds in the United States represent proceeds of an embezzlement or other wrongful acts in the foreign country. No specific “tracing” or "fruits of the crime” allegations are made in the complaint against the Isaíases, but the complaint alleges that the Isaíases are liable to the Republic for the Isaíases’ acts and omissions regarding Filan-banco.

      . The terms "judgment'' and "foreign court,” used repeatedly within Florida’s Uniform Out-of-country Foreign Money-Judgment Recognition Act, make it clear that the Republic’s banking authority's resolutions at issue in the present case would not be eligible for recognition under the Act.

      . Although the order granting the motion for summary judgment characterizes the Republic's complaint as "an attempt to enforce a non-judgment finding of liability,” the Isaias-es have not shown that the "non-judgment” findings by Deloitte and the Republic’s banking authorities are fabrications or even erroneous.


text:
    J.R., A Child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-1228.
    District Court of Appeal of Florida, Fifth District.
    July 3, 2014.
    Robert Wesley, Public Defender, Ninth Judicial Circuit, and Molina Arena-
    Randall, Assistant Public Defender, Orlando, for Petitioner.
    Pamela J. 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 Nos. 13-CJ-2138-A-OR and 13-CJ-4877-A-OR, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, LAWSON and WALLIS, JJ., concur.


author: LOGUE, J.

text:
    Frank A. FUTERNICK and Karen Beber, Appellants/Cross Appellees, v. Natalia M. TRUSHINA, Appellee/Cross Appellant.
    Nos. 3D13-2041, 3D13-2022.
    District Court of Appeal of Florida, Third District.
    July 9, 2014.
    Crabtree & Associates, P.A., and John G. Crabtree and George R. Baise, Jr.;

      Kutner, Rubinoff & Moss, P.A., and Andrew M. Moss, for appellants/cross appel-lees.
    Carlton Fields Jorden Burt, P.A., and Thomas E. Warner, Dean A. Morande, and Michael D. Sloan (West Palm Beach); The Alderman Firm, and Jason R. Alderman, for appellee/cross-appellant.
    Before WELLS, LOGUE, and SCALES, JJ.
   LOGUE, J.

Frank A. Futernick and Karen Beber appeal from a final judgment in favor of Natalia M. Trushina, which ordered Futer-nick and Beber to specifically perform on their obligations under a contract with Trushina for the sale of their former marital home. Futernick and Beber assert that the trial court erred in enforcing the contract because Futernick had a right of first refusal pursuant to Futernick and Beber’s marital settlement agreement. Because the contract for sale did not incorporate Futernick and Beber’s marital settlement agreement, and because, in any event, Futernick did not comply with the conditions for exercising his right of first refusal, we affirm. See Andersen Windows, Inc. v. Hochberg, 997 So.2d 1212, 1214 (Fla. 3d DCA 2008) (“Courts, without dispute, are not authorized to rewrite clear and unambiguous contracts.”). We also affirm, without discussion, the issue raised on cross-appeal.


text:
    Johnny W. TOLIVER, Appellant, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Appellee.
    No. 1D13-0334.
    District Court of Appeal of Florida, First District.
    July 30, 2014.
    Rehearing Denied Sept. 10, 2014.

      Johnny W. Toliver, pro se, Appellant.
    Pamela Jo Bondi, Attorney General; Tammy Sherrell Metcalf, Assistant Attorney General; and Jennifer Parker, General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

This petition for writ of habeas corpus seeks review of the Appellant’s conviction and sentence. We do not disturb the dismissal of the habeas petition, but we reverse the bar on pro se filings pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999), and remand for further proceedings consistent with this opinion.

Due to the Appellant’s apparent abuse of the legal system, which was evidenced by his repeated pro se filings attacking his conviction and sentence, the trial court barred further pro se filings and filed sanctions in accordance with section 944.279, Florida Statutes. Before a court can impose such a sanction, it must issue a show cause order to provide the litigant with notice of the intended sanction and afford the litigant an opportunity to respond. Id. at 48; Ward v. State., 133 So.3d 1210, 1210 (Fla. 1st DCA 2014). Following the Spencer decision, this Court has consistently reversed trial court orders that bar future pro se filings imposed without providing the required notice and opportunity to be heard. See Hall v. Knight, 986 So.2d 659, 660 (Fla. 1st DCA 2008); Petty v. State, 926 So.2d 445, 445 (Fla. 1st DCA 2006); Jackson v. Parkhouse, 826 So.2d 478, 480 (Fla. 1st DCA 2002); Long v. State, 793 So.2d 1141, 1141 (Fla. 1st DCA 2001). Here, there is no evidence in the record that the trial court issued the required show cause order.

As such, we deny relief as to that portion of the order dismissing the petition, but reverse the portion of the order barring all pro se filings respectively, and remand for further proceedings consistent with this opinion.

WOLF and ROWE, JJ„ PARKER, GREGORY S., Associate Judge, concur.


text:
    Jennifer PAPA, et al., Appellants, v. PUREBRED BREEDERS, LLC, etc., et al., Appellees.
    No. 3D13-610.
    District Court of Appeal of Florida, Third District.
    July 30, 2014.
    Cohen Milstein Sellers & Toll, PLLC, and Theodore J. Leopold and Diana L. Martin (Palm Beach Gardens), for appellants.
    Akerman, LLP, and Christopher S. Carver and Erika R. Shuminer, for appellees.
    Before WELLS, SALTER and SCALES, JJ.
   PER CURIAM.

Jennifer Papa, et al., Plaintiffs below, appeal from an “Amended Final Judgment of Dismissal” without prejudice. Appellants claim that no judgment should have been entered, and that the action should, instead, have been dismissed without prejudice.

Because we agree that the trial court intended to allow Plaintiffs to refile in the county court and that a final judgment “without prejudice” is, in effect, not a final judgment, we reverse and remand for entry of a dismissal of the action without prejudice.

Reversed and remanded with instructions consistent herein.


text:
    Joseph HARVEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-2685.
    District Court of Appeal of Florida, Fifth District.
    Aug. 1, 2014.
    Rehearing Denied Sept. 4, 2014.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm Appellant’s conviction, but remand to the circuit court to correct a scrivener’s error in the judgment and sentence, which indicates that Appellant entered a plea of nolo contendere, rather than showing that Appellant was found guilty after a jury trial.

AFFIRMED in part; and REMANDED to correct scrivener’s error.

LAWSON, WALLIS and LAMBERT, JJ., concur.


author: ROTHENBERG, J. LOGUE, J.,

text:
    Mark ROUSSO and The Alhadeff Law Group, P.L., Petitioners, v. William Scott HANNON, individually, and G & S Realty Advisors Corp., a Florida corporation, Respondents.
    No. 3D14-380.
    District Court of Appeal of Florida, Third District.
    Aug. 6, 2014.
    Rehearing Denied Sept. 19, 2014.

      The Alhadeff Law Group, P.L., and Mark C. Alhadeff, for petitioners.
    Arnaldo Velez, P.A., and Arnaldo Velez, Coral Gables, for respondents.
    Before ROTHENBERG, SALTER, and LOGUE, JJ.
   ROTHENBERG, J.

Mark Rousso (“Rousso”) and The Alha-deff Law Group (“Alhadeff’) (collectively, “the petitioners”) petition this Court for certiorari relief from the trial court’s order denying their motions for a protective order, which effectively allows irrelevant discovery of their financial information and potentially privileged attorney-client communications although they are not in any way involved in the case pending below. Because the order departs from the essential requirements of law and would cause damage not redressable on direct appeal, we grant the petition and quash the order below.

The underlying action is a contract dispute stemming from a transaction in which the plaintiff, Andrew Mirmelli (“Mirmelli”), contacted the defendant — respondent, William Scott Hannon (“Hannon”), regarding the potential sale of a commercial parking lot in Miami. Before Hannon, who was acting as a real estate agent for the owner and potential seller of the lot, agreed to provide any information to Mirmelli, he required that Mirmelli sign a document titled “The Gateway Confidentiality/Non-Circumvention Agreement” (“the Agreement”). This Agreement forbade Mirmelli from disclosing any of the information furnished by Hannon to third parties and from circumventing Hannon by contacting another realty service or agent to pursue Mirmelli’s purchase of the property. The Agreement specifically states that nothing therein constitutes an offer of sale and that the seller, Hannon, could solicit other offers or sell the property to a third party without notice to Mirmelli.

Shortly after Mirmelli signed the Agreement, Rousso, a non-party to the Mirmelli-Hannon Agreement, purchased a commercial parking lot in the area. Mirmelli brought suit against Hannon to rescind their Agreement and recover damages for the lost potential to purchase the parking lot. Mirmelli alleged that Hannon had not provided the evaluation materials as mandated in the Agreement and that Hannon had otherwise wrongfully induced Mirmelli into signing the Agreement. Hannon responded by denying the substance of Mir-melli’s allegations and raising the affirmative defense that he could not be held personally liable because he was working as an agent. Hannon has not raised any counterclaims against Mirmelli and has not interpleaded Rousso or Alhadeff. Thus, Rousso and Alhadeff currently stand as wholly unrelated nonparties to the underlying litigation.

During the course of the litigation, Han-non sought discovery of Rousso’s financial information and communications between Rousso and Alhadeff, Rousso’s legal counsel, purportedly to obtain details regarding the sale of the parking lot. Rousso and Alhadeff moved for a protective order, claiming that their purchase of the lot was irrelevant to Mirmelli’s pending claims against Hannon, particularly because Rousso and Alhadeff were not involved in the litigation, their financial information is presumed confidential, and the communications between Rousso and his counsel could be protected by the attorney-client privilege. In response, Hannon argued that the facts of the sale were relevant in the Mirmelli-Hannon litigation because the transaction appeared fishy to him given the odd procedural background. The trial court denied the motion for a protective order, and Rousso and Alhadeff were ordered to submit to the discovery requests. Rousso and Alhadeff have filed this petition to contest that ruling.

A writ of certiorari is an extraordinary type of relief that is granted in very limited circumstances. Citizens Prop. Ins. Corp. v. San Perdido Ass’n, 104 So.3d 344, 351-52 (Fla.2012). To invoke an appellate court’s certiorari jurisdiction, “[t]he petitioning party must demonstrate that the contested order constitutes ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3) that cannot be corrected on postjudgment appeal.’” Bd. ofTrs. of Internal Improvement Trust Fund v. Am. Educ. Enters., 99 So.3d 450, 454 (Fla.2012) (alteration in original) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004)). Certain types of discovery “ ‘may reasonably cause material injury of an irreparable nature.’ ... But not every erroneous discovery order creates certiorari jurisdiction because some orders are subject to adequate redress by plenary appeal from a final judgment.” Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995) (quoting Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1100 (Fla.1987)). We find that the petitioners have met their burden of proving the elements necessary for certiorari relief.

Discovery is limited to those matters relevant to the litigation as framed by the parties’ pleadings. Diaz-Verson v. Walbridge Aldinger Co., 54 So.Bd 1007, 1011 (Fla. 2d DCA 2010); Capeo Props., LLC v. Monterey Gardens of Pinecrest Condo., 982 So.2d 1211, 1213-14 (Fla. 3d DCA 2008); Richard Mulholland & Assocs. v. Polverari, 698 So.2d 1269, 1270 (Fla. 2d DCA 1997); Krypton Broad, of Jacksonville, Inc. v. MGM-Pathe Commc’ns Co., 629 So.2d 852, 854 (Fla. 1st DCA 1993), disapproved on other grounds by Allstate, 655 So.2d at 95. In the instant case, Mirmelli’s complaint and Hannon’s affirmative defenses do not implicate the financial records of Rousso or Alhadeff. See Diaz-Verson, 54 So.3d at 1011 (“Here, the pleadings, i.e., the second amended complaint, do not establish the relevance of any of Diaz-Verson’s personal financial information, and the unsworn representations of counsel at a hearing, even if somehow properly considered, cannot create relevance where it does not otherwise exist.”). As such, the order below clearly departs from the essential requirements of law.

Moreover, both types of information Hannon seeks — third party financial records and records kept by an attorney about his non-party client — are of the utmost sensitivity and are not discoverable unless the party seeking discovery establishes a need for the discovery sufficient to overcome the privacy rights of the third party. Westco, Inc. v. Scott Lewis’ Gardening & Trimming, Inc., 26 So.3d 620, 622 (Fla. 4th DCA 2009) (“When confidential information is sought from a non-party, the trial court must determine whether the requesting party establishes a need for the information that outweighs the privacy rights of the non-party.”). This heightened standard is necessary because “ ‘the disclosure of personal financial information may cause irreparable harm to a person forced to disclose it, in a case in which the information is not relevant,’ ” Rappaport v. Mercantile Bank, 17 So.3d 902, 906 (Fla. 2d DCA 2009) (quoting Straub v. Matte, 805 So.2d 99, 100 (Fla. 4th DCA 2002)), and because “personal finances are among those private matters kept secret by most people.” Woodward v. Berkery, 714 So.2d 1027, 1035 (Fla. 4th DCA 1998) (citing Winfield v. Div. of Pari-Mutuel Wagering, 477 So.2d 544 (Fla.1985)).

Likewise, “[confidential communications between lawyers and clients are privileged from compelled disclosure to third persons.... When communications appear on their face to be privileged, the party seeking disclosure bears the burden of proving that they are not.” Shell Oil Co. v. Par Four P’ship, 638 So.2d 1050, 1050 (Fla. 5th DCA 1994) (citations omitted); see also Ford Motor Co. v. Hall-Edwards, 997 So.2d 1148, 1153 (Fla. 3d DCA 2008) (holding that “the attorney-client privilege ... protects confidential communications between a lawyer and client, as well as third persons to whom disclosure is in furtherance of the rendition of legal services and those reasonably necessary for the transmission of the communication.”); Am. Tobacco Co. v. State, 697 So.2d 1249, 1252 (Fla. 4th DCA 1997) (“The attorney-client privilege is the oldest confidential communications privilege known in the common law.”).

The dissent would hold that the discovery order at issue merely allows discovery on a relevant issue that can be properly safeguarded by requiring the parties to sign a confidentiality agreement, and therefore, no irreparable harm has been demonstrated. Respectfully, tangential relevance is not enough when it comes to confidential records of a non-party, and a confidentiality agreement, while it can help reduce the impact of improper discovery, does not grant a party carte blanche to obtain documents to which it has no right. The petition is being granted because the requested discovery constitutes a trolling exercise through the confidential and potentially privileged records of a non-party.

The dissent argues that the requested discovery is relevant to the allegations in Mirmelli’s complaint because the financial and legal details of the petitioners’ transactions could potentially reveal that Mir-melli himself indirectly purchased the underlying property. While technically true, this reasoning overlooks the following. First, there is no factual basis in the record supporting the dissent’s speculation that the petitioners are in any way related to Mirmelli, and Mirmelli’s complaint directly avers that he did not purchase the subject property. Second, the examination of any person’s financial information could reveal that they acted under Mirmelli’s direction. Although discovery is meant to be broad, it is not without limits. Third, the only way the requested discovery could be relevant is if Mirmelli himself purchased the property through the petitioners, and there is a much simpler and less invasive way to unearth this precise information: direct discovery served on Mirmelli.

Moreover, confidential discovery sought from third parties is not subject to a mere relevance inquiry as the dissent implies; rather, the respondents must establish a need for the information that outweighs the privacy interests of the third party. Wesico, 26 So.3d at 622 (“When confidential information is sought from a non-party, the trial court must determine whether the requesting party establishes a need for the information that outweighs the privacy rights of the non-party.”); see also Berkeley v. Eisen, 699 So.2d 789, 791 (Fla. 4th DCA 1997); CAC-Ramsay Health Plans, Inc. v. Johnson, 641 So.2d 434, 435 (Fla. 3d DCA 1994); Aetna Life Ins. Co. v. Hausman, 598 So.2d 223, 224 (Fla. 5th DCA 1992); Higgs v. Kampgrounds of Am., 526 So.2d 980, 981 (Fla. 3d DCA 1988) (citing Rasmussen v. South Fla. Blood Serv., 500 So.2d 533, 535 (Fla.1987)).

While we recognize that mere overbreadth of a discovery order is insufficient reason to grant the extraordinary remedy of certiorari, see Bd. of Trs. of Internal Improvement Trust Fund, 99 So.3d at 456, the trial court’s order in this case is not just overly broad, it allows the discovery of confidential financial information and potentially privileged communications from third parties wholly unrelated to the litigation. Discovery orders that require the disclosure of claimed confidential information are reviewed with greater caution than those that are simply burdensome or costly due to overbreadth. Me-gaflight, Inc. v. Lamb, 749 So.2d 594, 595 (Fla. 5th DCA 2000) (“[W]e agree with those who suggest that erroneous orders that require overbroad discovery of non-privileged documents should be subjected to certiorari review more cautiously than erroneous orders requiring discovery of confidential or privileged matters.”), quoted, by, Bd. of Trs. of Internal Improvement Trust Fund, 99 So.3d at 456. Indeed, an order requiring the disclosure of confidential “cat-out-of-the-bag” information is precisely the type of order that can cause irreparable harm. Allstate, 655 So.2d at 94.

One need look no further than the facts underlying this case to see that the information sought is both valuable and confidential. Hannon himself required Mirmelli to sign a confidentiality and non-disclosure agreement before he would let Mirmelli see any information regarding the property and sale, and now, ironically, Hannon seeks to comb through the same type of information from a non-party competitor based on nothing more than a hunch and desire to do so. Han-non simply has not shown, based on the record, that his need for the information sought outweighs the privacy rights of Rousso and Alhadeff because the only information sought can be more easily obtained through Mirmelli.

Finally, the dissent would hold that Hannon’s purported willingness to sign a confidentiality agreement vitiates any concern about improper discovery in this case. Such a holding is overly broad and would effectively eliminate the privacy rights of any person even remotely involved in litigation. Confidentiality agreements can be useful tools to protect the privacy interests of those from whom discovery is sought when the information is necessary to the litigation but otherwise confidential or proprietary. See Cordis Corp. v. O’Shea, 988 So.2d 1163, 1166-67 (Fla. 4th DCA 2008); Wal-Mart Stores E., L.P. v. Endicott, 81 So.3d 486, 490-91 (Fla. 1st DCA 2011). However, such agreements are merely to limit the impact of private information to which the party seeking discovery is entitled, not to broaden the scope of discoverable material.

Even with a confidentiality agreement in place, non-parties Rousso and Alhadeff would have to disclose their private financial information to Hannon, a potential competitor who has no ascertainable right to that information based on this record. The point is not that Hannon has agreed not to disseminate the information recovered to others, the point is that Hannon has not shown that he is entitled to the information in the first place, and a confidentiality agreement does not change that conclusion.

The trial court’s order below requires the non-parties Rousso and Alhadeff to disclose confidential and personal financial information, as well as potentially privileged attorney-client communications, based solely on Hannon’s counsel’s suspicions, which currently have no basis in the pleadings. Any relevant information in those documents could be more easily procured by serving discovery directly on Mirmelli, and therefore, the respondents are unable to establish a need for the non-party discovery as required by the balancing test established in Higgs. 526 So.2d at 981. The order accordingly departs from the essential requirements of law and would cause material injury to Rousso and Alhadeff that cannot be remedied on appeal. Therefore, certiorari relief is appropriate. Indeed a writ of certiorari is often the only method of relief for non-parties subjected to improper discovery orders because non-parties necessarily have no adequate remedy on direct appeal. Rap-paport, 17 So.3d at 905 (citing Price v. Hannahs, 954 So.2d 97, 100 (Fla. 2d DCA 2007)).

We therefore grant the petition and quash the order below. This ruling shall be without prejudice to Hannon to seek discovery in the future should the financial information in question be properly put in issue in the litigation through the parties’ pleadings or if Hannon can demonstrate a need for the discovery that outweighs the privacy rights of Rousso and Alhadeff.

Petition granted; order quashed.

SALTER, J., concurs.

LOGUE, J.,

(dissenting).

The majority issues a writ of certiorari to protect third parties Mark Rousso and the Alhadeff Law Group, P.L. from certain discovery. The majority concludes that the discovery requested is irrelevant to the issues raised by the pleadings in this case. The discovery at issue is framed to establish the identity of the investors who, on May 14, 2013, purchased the parking lot located at 208 West Flagler. The identification of the investors will either negate or affirm one of the crucial facts expressly alleged in the complaint and denied in the answer. It seems to me, therefore, that the discovery is highly relevant to the issues raised in the pleadings.

In addition, given our limited scope of review on certiorari, I do not believe that we can hold that the trial judge departed from the essential requirements of law when he impliedly determined a confidentiality agreement could adequately protect the petitioner’s unquestioned privacy interests. I respectfully dissent.

FACTS AND PROCEDURAL HISTORY

Andrew Mirmelli wanted to purchase or lease parking lots on the 200 block of West Flagler. To this end, he entered into a confidentiality and non-circumvention agreement with William Scott Hannon and G & S Realty Advisors Corporation (collectively, “Hannon”). Summarizing the agreement in very general terms, Hannon promised to provide Mirmelli with information about Hannon’s progress in purchasing such lots with the idea that Mir-melli might purchase, lease, or invest in lots acquired by Hannon. As part of the arrangement, Mirmelli agreed not to try to directly purchase the lots and agreed to keep confidential both his interest in the lots and any information Hannon provided to him. This arrangement burst when unknown investors, on May 14, 2013, purchased a parking lot on the 200 block of West Flagler, namely the parking lot located at 208 West Flagler.

In the complaint, Mirmelli sued Hannon to be released from the agreement and for damages. His complaint alleged he was damaged because he was not one of the investors who purchased the parking lot. In this regard, the complaint alleged:

18. Subsequent to meeting with Defendant, HANNON, Plaintiff, MIRMELLI learned that a property was for sale located at 208 West Flagler Street. This property was later sold to a third party.
19. Due to the actions and/or inactions of Defendants, HANNON and G & S, Plaintiff, MIRMELLI did not purchase this property or any other property located on this block.
21.[A]s a direct and proximate result of the Defendants’ false or materially misleading statements regarding same, the Plaintiff has incurred substantial damages, including, without limitation, the ability to purchase, and/or lease a parking lot located at 208 West Flagler Street ....

(emphasis added). In the answer, Hannon expressly denied each of these allegations.

In the discovery at issue, Hannon sought to test these allegations by discovering the identity of the investors who were behind the purchase, on May 14, 2013, of the “parking lot located at 208 West Flagler.”

First, Hannon subpoenaed Mark Rous-so, the manager of Miami Flagler Parking Lots, LLC, the company that purchased the 208 West Flagler property. Hannon requested that Rousso provide the following documents:

1. All agreements between Miami Fla-gler Parking Lots, LLC and Andrew Mirmelli.
2. All communications between you and Andrew Mirmelli. This will include all emails and text messages. If these have not been printed out, you are requested to have these available in downloadable form.
3. Any and all documents showing the source of the funds used by Miami Fla-gler Parking Lots, LLC to acquire or purchase the real property identified in the attached deed. [The attached warranty deed identified the parking lot located at 208 West Flagler by its legal description].
4. The sales contract for the acquisition of the real property identified in the deed attached hereto.

Second, Hannon subpoenaed the records custodian of the Alhadeff law firm and requested the custodian to bring the following records:

1. All records pertaining to the deposit placed with respect to the attached contract [for sale of the parking lot located at 208 West Flagler on May 14, 2013] to include, but not be limited to:
a. Copies of any checks delivered to the firm that comprise the deposit;
b. If the deposit was placed by wire transfer, the advise [sic] issued by the bank into which the deposit was placed;
c. Any documentation that shows or reflects the source of the deposit;
d. The deposit slip pertaining to the deposit into the firm’s account;
e. The trust account records of the firm pertaining to the deposit, in particular, those required by Rule 5-1.2 of the Rules Regulating Trust Accounts.

Rousso and Alhadeff filed the petition at issue. Their main argument focused on the contention that the subpoenaed records were financial records from third parties that were not relevant.

ANALYSIS

In the first place, the narrowly-focused discovery at issue strikes me as highly relevant to the pleadings. The records that were subpoenaed will almost certainly reveal the identity of the investors who purchased the parking lot. The identity of the investors will either affirm or negate an allegation crucial to Mirmelli’s causes of action. Central to Mirmelli’s complaint is that he was not involved in the purchase of the parking lot that occurred on a particular date. Mirmelli expressly alleged this fact in the complaint; Hannon expressly denied Mirmelli’s allegation in the answer. If the discovery shows that Mirmelli was not one of those investors, Mirmelli’s disputed allegation on this point would be established. If, on the other hand, the discovery shows that Mirmelli was, in fact, one of those investors, his claim of being damaged because he was not one of the investors would collapse. This discovery is relevant to the pleadings because it addresses a crucial fact alleged in the complaint and denied in the answer.

The more difficult issue, to me, concerns the fact that some, but not all, of the requested information is either confidential or privileged. The parties spent very little time on this point. On this point, however, Hannon, the party seeking the discovery, announced in open court that he would sign a confidentially agreement. The Florida Supreme Court has held that such an agreement, when submitted to the court as an agreed protective order, can be an acceptable method to protect the confidentiality of records and thereby mitigate an irreparable harm that might result from disclosure. Bd. of Trs. of Internal Improvement Trust Fund v. Am. Educ. Enters., LLC, 99 So.3d 450, 459 (Fla.2012) (“The rules of discovery provide sufficient means to limit the use and dissemination of discoverable information via protective orders, and it is the responsibility of the trial court to decide whether to employ those means in this case.”).

Although Board of Trustees involved discovery between parties, its statement regarding confidentiality orders applies equally as well to discovery from third parties. Petitioners have not argued, much less demonstrated, that it is impractical to draft a confidentiality order sufficient to protect their admittedly legitimate privacy interests.

I respect the concern of the majority to protect persons who are not parties to the litigation from discovery requests that may burden or even harm them. But our rules of civil procedure envision discovery being taken from parties and non-parties alike. Few lawsuits could proceed without testimony or documents from third parties. I believe district courts should refrain from being drawn into attempts to supervise the timing, sequence, or contents of discovery from our remote vantage point on an appellate court. Our law places the responsibility to manage the unfolding of discovery in the sound discretion of our circuit and county judges.

For this very reason, the standard governing the issuance of a writ of certiorari requires the reviewing court to find that the lower court departed from the essential requirements of law. This means more than mere legal error: “[i]t means an inherent illegality or irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice.” Vill. of Palmetto Bay v. Palmer Trinity Private Sell., Inc., 128 So.3d 19, 20 (Fla. 3d DCA 2012) (citations and quotations omitted).

In this case, the trial judge essentially determined a confidentiality agreement was sufficient to protect the privacy interest of third parties regarding discovery that will either prove or disprove a factual issue expressly alleged in the complaint and denied in the answer. In the record of this case, the trial court’s decision does not constitute a departure from the essential requirements of the law justifying the issuance of the extraordinary writ of cer-tiorari. I would leave this discovery dispute in the good hands of the seasoned trial judge, which is where I believe our law intends it to be.

      . The causes of action alleged in Mirmelli’s complaint are: Fraudulent inducement (Count 1); Negligent inducement (Count 2); Intentional breach of fiduciary duty (Count 3); Negligent breach of fiduciary duty (Count 4); Rescission (Count 5); and Declaratory relief stating that the contract is invalid (Count 6).

      . Hannon’s counsel eloquently explained that the whole thing "reek[s].”

      . Rousso argues that the information sought may potentially implicate the attorney-client privilege, although it is unclear whether or not privilege would apply to the precise documents sought based on the scant record available. Even if attorney-client privilege does not attach to the information sought, the trial court still erred in allowing discovery of confidential financial information in these circumstances.

      . At the very least the trial court should have conducted an in-camera review of the documents to determine whether they are confidential or relevant before compelling disclosure of the non-party documents claimed to be confidential. Westco, 26 So.3d at 622 ("A trial court departs from the essential requirements of law in ordering production of confidential information without conducting an in camera review to determine whether the assertion of privilege is valid.”).

      . Neither side adequately briefed the issue of whether the records requested from the law firm were protected by the attorney client privilege. For purposes of this dissent I assume those records reflect confidential financial information but not matters protected by the attorney client privileged.

      . No one has suggested that the request for records of agreements and communications between Mirmelli and Miami Flagler Parking Lots, LLC implicates privileged materials.


text:
    Caroline Bell CHADBOURNE, Wife, Appellant, v. Edward Merriam CHADBOURNE, III, Husband, Appellee.
    No. 1D13-0039.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2014.
    Rehearing Denied Sept. 23, 2014.
    Shannon McLin Carlyle, Christopher V. Carlyle, John N. Bogdanoff and David A. Monaco of the Carlyle Appellate Law Firm, The Villages, for Appellant.
    Crystal C. Spencer of Spencer, Meador, Johnson, PLLC, Pensacola and David L. Manz of the Manz Law Firm, Marathon, for Appellee.
   PER CURIAM.

Caroline Bell Chadbourne appeals a final judgment granting dissolution of marriage raising issues relating to equitable distribution, alimony, and attorneys’ fees and costs. We affirm on all issues except the trial court’s denial of her attorneys’ fees and costs, which we reverse.

The husband left the 26-year marriage with a net worth of $17 million while the wife left with under $1 million. To require her to pay the remaining balance of her attorneys’ fees, about $200,000, would require an “inequitable diminution” of her equitable distribution award. Conlan v. Conlan, 43 So.3d 931, 934 (Fla. 4th DCA 2010). Given the significant disparity in wealth, her demonstrated need, and the husband’s clear ability to pay, the trial court abused its discretion in denying the wife’s request for attorneys’ fees and costs. See Duncan-Osiyemi v. Osiyemi, 117 So.3d 882, 885 (Fla. 4th DCA 2013) (reversing a denial of the wife’s request for attorneys’ fees where there existed a significant income disparity and she would have to deplete her equitable distribution in order to pay the fees); Kelly v. Kelly, 925 So.2d 364, 369 (Fla. 5th DCA 2006) (mandating a husband who had a net worth of $12.6 million to pay the wife’s attorneys’ fees where she left the marriage with $3 million, citing the husband’s “far superior financial posture”).

LEWIS, C.J., BENTON, and MARSTILLER, JJ., concur.


author: RAY, J.

text:
    Terone HARRISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5503.
    District Court of Appeal of Florida, First District.
    Aug. 20, 2014.

      Michael Jerome Titus, Assistant Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Joshua R. Heller, Office of the Attorney General, Tallahassee, for Appellee.
   ON APPELLEE’S MOTION FOR REHEARING, REHEARING EN BANC, AND CERTIFICATION OF A QUESTION OF GREAT PUBLIC IMPORTANCE

RAY, J.

The State has moved for rehearing, rehearing en banc, and certification of a question of great public importance. We grant the motion for rehearing in part, deny the motion for rehearing en banc, and grant the request to certify a question. Our previous opinion is withdrawn and the following is substituted in its place.

Terone Harrison appeals his judgment and sentence for burglary of a dwelling with person assaulted, aggravated battery with a deadly weapon, and criminal mischief. Appellate counsel filed an Anders brief representing that no good faith argument can be made that fundamental or reversible error occurred in the trial court, with the exception of sentencing errors that were raised in a motion to correct sentencing error and were not corrected by the trial court. Based on our full and independent review of the record, we affirm Appellant’s convictions and reverse the judgment and sentence only to the extent necessary to correct certain sentencing errors raised by Anders counsel.

I. Sentencing Errors

Appellant filed a timely motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), arguing that the trial court erred by incorrectly indicating that the fine imposed pursuant to section 938.05, Florida Statutes, is $230.00; incorrectly indicating that the fine imposed pursuant to section 775.083(2), Florida Statutes, is $415.00; imposing a $100.00 cost of prosecution, without citing statutory authority; and imposing a $100.00 cost of defense, without citing statutory authority or informing Appellant of his right to a hearing to dispute the amount of the lien. Because the trial court did not file an order ruling on the motion within sixty days, the motion is deemed to have been denied. See Fla. R. Crim. P. 3.800(b)(2)(B). Each of these challenges is discussed in turn.

Section 938.05(l)(a), Florida Statutes (2011), provides that anyone found guilty of any felony in Florida shall pay a $225.00 fine. The court imposed a $230.00 fine, citing this statute. We reverse and remand with instructions to reduce this assessment to $225.00 in the written judgment and sentence. See Turner v. State, 109 So.3d 276 (Fla. 1st DCA 2013).

Section 775.083(2), Florida Statutes (2011), provides that court costs shall be assessed in the amount of $50.00 for a felony. The court imposed court costs in the amount of $415.00, citing this statute. We reverse and remand for correction of the written judgment and sentence to reflect the correct statutory cost. See Z.C.B. v. State, 40 So.3d 36, 38-39 (Fla. 2d DCA 2010). If other authorized costs were consolidated in this $415.00 assessment, the trial court may re-impose the authorized sums following the appropriate procedure. See Smiley v. State, 704 So.2d 191, 195 (Fla. 1st DCA 1997).

The next series of errors asserted by Anders counsel relate to the assessment of mandatory costs without citation to statutory authority. In support of its position, Anders counsel references two decisions from our court: Fisher v. State, 697 So.2d 1291 (Fla. 1st DCA 1997), and Bradshaw v. State, 638 So.2d 1024 (Fla. 1st DCA 1994). In Fisher, we struck several costs imposed by the trial court “since no statutory authority was cited for their assessment.” 697 So.2d at 1292. In so doing, we relied upon our decision in Bradshaw, where we explained that “[i]t is improper to impose additional court costs without reference to statutory authority, or an explanation in the record, as to what the additional costs represent, which is sufficiently clear to permit a reviewing court to detemine the statutory authority for the costs.” 638 So.2d at 1025 (emphasis added). Since it is axiomatic that costs cannot be imposed in a criminal case unless authorized by statute, the record must adequately reflect the purpose of a cost to ensure meaningful appellate review.

In this case, Anders counsel acknowledges that the written judgment and sentence reflects the imposition of $100 for “cost of prosecution” and $100 for “cost of defense.” While the statutory authority for these costs is not designated, the purpose for these assessments is evident. Both costs represent the minimum costs mandated by the applicable statutes and Appellant has constructive notice of their existence. § 938.27(8), Fla. Stat. (2011) (cost of prosecution); § 938.29(l)(a), Fla. Stat. (2011) (cost of defense); State v. Beasley, 580 So.2d 139, 142 & n. 4 (Fla. 1991) (concluding that publication in Florida Statutes “gives all citizens constructive notice of the consequences of their actions,” thereby affording defendant adequate notice of the imposition of mandatory costs). Remanding for the trial court to insert a known statutory citation would be redundant and a waste of judicial time and labor. Accordingly, we find no error in the assessment of the mandatory, minimum costs of prosecution and defense, without citation to statutory authority, when it was clear from the record what those costs represent. See Keel v. State, 134 So.3d 1005 (Fla. 1st DCA 2012) (concluding that clerk of court service charge was properly imposed, in the absence of citation to authority, because written sentence clearly indicated the purpose of the mandatory fee).

The final sentencing error asserted by Anders counsel involves the trial court’s failure to inform Appellant of his right to a hearing to dispute the amount of the indigent legal assistance lien created by the imposition of the mandatory, minimum cost of defense. Section 938.29(5), Florida Statutes (2011), specifically provides that the defendant shall receive “notice and the opportunity to be heard and offer objection” to the trial court’s determination of the value of the public defender’s services. The statute’s companion rule also requires “[njotice of the accused’s right to a hearing to contest the amount of the lien,” which notice is to be “given at the time of sentence.” Fla. R. Crim. P. 3.720(d)(1).

In its motion for rehearing, the State contends that no such warning was necessary in this case because the court imposed the minimum cost for the services of a public defender mandated by statute in all felony cases. Similar to the mandatory, minimum cost of prosecution, the State submits that the defendant has constructive notice of the cost of defense mandate, so logically, there is nothing to “hear” or “object to” where the court imposes the minimum amount. See, e.g., Hills v. State, 90 So.3d 927, 928 (Fla. 1st DCA 2012) (“The 2008 amendments to [the cost of prosecution statute] created mandatory minimum costs for the state attorney and removed the trial court’s discretion to impose these costs.”). The State asserts that the trial court’s obligation under section 938.29(5) to provide “notice and an opportunity to object” is triggered only when the court exercises its discretion under section 938.29(1) to impose a “higher amount upon a showing of sufficient proof of higher fees or costs incurred.”

While the State’s argument has appeal based on logic and sound legal reasoning, we are not at liberty to recede from our case law directly on point, which requires that a defendant be given the “opportunity to object” to the cost of defense, even where the mandatory, minimum amount is imposed. See, e.g., Colson v. State, 114 So.3d 415, 417 (Fla. 1st DCA 2013); Sharpe v. State, 115 So.3d 1021, 1022 (Fla. 1st DCA 2013); Youman v. State, 112 So.3d 693, 694 (Fla. 1st DCA 2013). Accordingly, we are constrained to reverse this $100.00 cost and remand for the trial court to advise Appellant of his right to a hearing to contest the amount of the indigent legal assistance lien.

II. Certified Question

We have been asked by the State to certify a question of great public importance regarding whether the types of cost issues involved in this appeal are still properly the subject of Anders briefs, given the codification of rule 3.800(b)(2) of the Florida Rules of Criminal Procedure. The State asserts that when In re Anders Briefs was issued, in 1991, the decision allowing relatively minor sentencing issues to be addressed in an Anders brief was justified because there was no other avenue for appellate counsel to seek correction of these issues in the trial court. In that context, fundamental fairness dictated that “indigents in their first appeal as of right should not lose their Anders rights simply because counsel are able to identify some relatively minor sentencing issues in ‘no merit’ briefs.” 581 So.2d at 152.

Several years later, however, in response to concerns that “scarce resources were being unnecessarily expended in ... appeals relating to sentencing errors,” the Court promulgated the present version of rule 3.800(b), which provides a “vehicle to correct sentencing errors in the trial court.” Rule 3.800, 1996 Amendments Committee Notes. A rule 3.800(b) motion can be filed in the trial court during the time allowed for the filing of a notice of appeal, or by appellate counsel during the pendency of an appeal, any time before the party’s first brief is served. Fla. R. Crim. P. 3.800(b)(2). The filing of a timely 3.800(b) motion in the trial court is required in order to preserve a sentencing error for appellate review, when there was no contemporaneous objection at sentencing. Fla. R. App. P. 9.140(e).

The State argues that as a result of this paradigm change, when a defendant files a rule 3.800(b) motion and the trial court either denies it or refuses to timely rule on it, the issue is no longer “minor.” That is, the defendant is now challenging the trial court’s refusal to correct a sentencing error, which the State submits is an allegation of error that should be subject to merits-testing on appeal, and not shielded by an Anders brief to avoid the adversarial process. The State rightly points out that it has had to seek rehearing to correct decisions from this court in the past on cost issues erroneously advanced by An-ders counsel.

Part of the Court’s rationale for creating an outlet for appellate counsel to correct and preserve sentencing errors during the initial stages of an appeal is that sentencing, “which once was a straightforward function for trial courts, has become increasingly complex as a result of multiple sentencing statutes that often change on a yearly basis.” Amendments to Fla. R. Crim. P. 3.111(e) and 3.800 and Fla. R. App. P. 9.020(h), 9.HO, and 9.600, 761 So.2d 1015, 1017 (Fla.1999). Given the procedural vehicle for addressing sentencing errors in the trial court created by rule 3.800(b), and because we agree with the precept that an appellate court benefits from an adversarial presentation on all claims of error raised on direct appeal, we submit the certified question set forth below.

Additionally, unless and until the Florida Supreme Court revisits the current An-ders procedures, we encourage this Court to adopt a ToZer-approach to minor sentencing errors raised in Anders appeals, which will provide us with arguments on both sides of a claim for reversal, even when the issue would otherwise be considered minor or relatively insignificant in the context of the defendant’s conviction. Cf. Toler v. State, 493 So.2d 489, 491 (Fla. 1st DCA 1986) (on motion for rehearing) (providing a procedure for the State to file a response in a Florida Rule of Criminal Procedure 3.850 appeal of a summary denial order “where it initially appears to the panel that the trial court’s order should be reversed”).

Appellant’s judgment and sentence are affirmed, except to the extent necessary for the trial court on remand to correct the sentencing errors identified in this opinion. The following question is certified as one of great public importance:

CAN APPOINTED COUNSEL CHALLENGE A TRIAL COURT’S DENIAL OF A RULE 3.800(b) MOTION TO CORRECT MINOR SENTENCING ERROR IN AN ANDERS “NO MERIT” BRIEF? IF SO, WHAT STEPS SHOULD APPELLATE COURTS TAKE, CONSISTENT WITH IN RE ANDERS BRIEFS, 581 So.2d 149 (Fla.1991), TO ENSURE ADVERSARIAL TESTING OF MINOR SENTENCING ISSUES RAISED BY ANDERS COUNSEL PRIOR TO THE COURT’S DECISION ON THE MERITS OF THOSE ISSUES?

CLARK and WETHERELL, JJ., concur.

      . See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Appellate Court Response to Anders Briefs, 581 So.2d 149, 152 (Fla.1991) ("In re Anders Briefs ").

      . The same law that created the minimum cost of prosecution that courts must assess against a convicted person in every criminal case, also created a minimum, mandatory cost for the services of a public defender. Ch. 2008-111, §§ 44 and 45, at 1198-1200, Laws of Florida (2008).

      . Amendments to Fla. R. App. P., 685 So.2d 773, 773 (Fla.1996), republished at 696 So.2d 1103, 1103 (Fla.1996).

      . We are not aware of any authority prohibiting the State from filing an answer brief sua sponte to challenge a claim of sentencing error raised in an Anders brief. But at the same time, it is inherently contradictory to expect the State to answer an appeal that has been deemed so frivolous by appellant’s counsel that he believes it can be decided without adversarial testing. In re Anders Briefs, supra, has created a procedural quagmire by allowing Anders counsel to include a claim of arguable merit in a "no merit” brief: if the State does not file an answer brief challenging a claim of "minor sentencing error,” the potential exists for the appellate court to reverse the trial court in error. If the State files an answer brief, it can advance its legal position on the minor sentencing issue, but it may go no further. See Baldwin v. State, 857 So.2d 937, 940 (Fla. 1st DCA 2003). Once briefing is concluded, the limited resources of the State may be called upon yet again if the appellate court identifies a potentially meritorious issue based on its "full and independent review of the record.” See State v. Causey, 503 So.2d 321 (Fla.1987) (requiring appellate court to allow state to file a brief on arguable claims identified by the court).

      . Dissenting from the majority’s decision to extend the Anders procedure to Baker Act civil proceedings, Justice Pariente expressed "substantial doubts” about the wisdom and necessity of Florida’s Anders procedure in the criminal context and noted that she has "never understood the logic of requiring appellate courts to provide a heightened review for those appeals that are the least meritorious by placing on the appellate courts the responsibility of searching the record for potential errors.” Pullen v. State, 802 So.2d 1113, 1121 (Fla.2001) (Pariente, J., concurring in part and dissenting in part) (internal citations omitted) (Wells, C.J., and Quince, J., concur).


author: VAN NORTWICK, J.

text:
    Christopher Douglas WEEKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3333.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2014.

      Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Monique Rolla, Assistant Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee Criminal Appeals, Tallahassee, for Appellee.
   REVISED OPINION

VAN NORTWICK, J.

Christopher Douglas Weeks was convicted of possession of a firearm by a convicted felon, a violation of section 790.23, Florida Statutes (2012). He challenges his conviction arguing section 790.23 is unconstitutionally vague. Because we conclude that section 790.23 is unconstitutional with respect to the possession of a replica of an antique firearm by a convicted felon, we reverse the conviction, vacate the corresponding sentence, and certify conflict with Bostic v. State, 902 So.2d 225 (Fla. 5th DCA 2005).

Weeks was arrested on February 4, 2012, for several offenses, including possession of a firearm by a convicted felon, a violation of section 790.23. For purposes of chapter 790, Florida Statutes, a firearm is defined so as to exclude an antique. § 790.001(6). An “antique firearm” is in turn defined in section 790.001(1) as a firearm manufactured in or before 1918 or any replica thereof. Weeks filed a motion to dismiss that count of the information relating to possession of a firearm on two grounds, including the ground that section 790.23 is unconstitutionally vague. The trial court correctly denied Weeks’ motion to dismiss on the ground of vagueness because it was bound by the decision in Bostic in which the Fifth District rejected a similar constitutional challenge. See Pardo v. State, 596 So.2d 665, 666 (Fla.1992) (explaining that absent an inter-district conflict, the decision of any district court of appeal is binding on a county or circuit court). Following the trial court’s denial of Weeks’ motion to dismiss, he entered a no contest plea; the State and appellant stipulated that the denial of the motion to dismiss was dispositive.

Weeks argues on appeal that given the multiple meanings which may be assigned to the term replica, as found in section 790.001(1), a person of ordinary intelligence is not given fair notice of what conduct is forbidden by section 790.23. He asserts that the term replica may be understood in various ways, and the resulting confusion as to the meaning of this term makes it impossible for the statute to “provide a definite warning of what conduct is required or prohibited.” Warren v. State, 572 So.2d 1376,1377 (Fla.1991). As noted, we agree.

Section 790.23(1) provides that possession of a “firearm” by a convicted felon constitutes a second degree felony. The term “firearm” is elsewhere defined so as to exclude “an antique firearm unless the antique firearm is used in the commission of a crime.” § 790.001(6), Fla. Stat. The term “antique firearm” is in turn defined as follows:

(1) “Antique firearm” means any firearm manufactured in or before 1918 (including any matchlock, flintlock, percussion cap, or similar early type of ignition system) or replica thereof, whether actually manufactured before or after the year 1918, and also any firearm using fixed ammunition manufactured in or before 1918, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.

§ 790.001(1), Fla. Stat. (2012) (bold added). Thus, the term “antique firearm” not only includes a firearm manufactured in or before 1918 which may possess a matchlock, flintlock, percussion cap, or a firearm with a similar firing system, but also a replica of such. Given this definition, the firing or ignition mechanism of the firearm determines whether a firearm qualifies as an “antique firearm” or a replica thereof regardless of the date of manufacture. Significantly, section 790.23 does not define the term “replica.” Weeks possessed a black powder muzzle loader rifle with a percussion cap firing system. It is undisputed that this type of firing system is of ancient vintage. His firearm also had a scope. Given the type of firing system, his firearm was arguably a replica of an antique, regardless of the scope. See § 790.001(1), Fla. Stat.

Constitutional challenges are pure questions of law subject to de novo review. Russ v. State, 832 So.2d 901, 906 (Fla. 1st DCA 2002). Further, statutes should be construed “in such a manner as will be conducive to its constitutionality.” Dep’t of Legal Affairs v. Rogers, 329 So.2d 257, 265 (Fla.1976). When there is a doubt as to a statute’s vagueness, the doubt should be resolved “in favor of the citizen and against the state.” Brown v. State, 629 So.2d 841, 843 (Fla.1994) (quoting State v. Wershow, 343 So.2d 605, 608 (Fla.1977)).

The standard for testing vagueness under Florida law is whether the challenged statute gives a person of ordinary intelligence fair notice of what constitutes forbidden conduct. Brown v. State, 629 So.2d 841, 842 (Fla.1994) (citing Papa-christou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972)). Therefore, the language of the statute must “provide a definite warning of what conduct is required or prohibited, measured by common understanding and practice.” Warren v. State, 572 So.2d 1376,1377 (Fla.1991).

As already observed, the statute does not define the term “replica.” The Legislature’s failure to define a statutory term does not necessarily render a provision unconstitutionally vague. See Foster v. State, 937 So.2d 742, 744 (Fla. 4th DCA 2006). Case law and other statutes may provide a reasonable definition. See Brown v. State, 629 So.2d at 843. In the absence of a statutory definition, words of common usage are to be construed according to their plain and ordinary meaning which can be ascertained by reference to a dictionary. Jones v. Williams Pawn & Gun, Inc., 800 So.2d 267, 271 (Fla. 4th DCA 2001).

In Bostic, the majority held that the term “replica” should be defined in accordance with Florida case law “as meaning a reasonably exact reproduction of the object involved that, when viewed, causes the person to see substantially the same object as the original.” 902 So.2d at 228 (citing Harris v. State, 843 So.2d 856, 863 (Fla.2003)). Applying this definition, the Bostic court concluded that “it is clear that merely having an ignition system similar to that found on an antique firearm is not sufficient to render a firearm a ‘replica’ of a firearm manufactured in or before 1918.” Id. at 228-29. Thus, the statute gives reasonable notice of the conduct it prohibits. 902 So.2d at 229. The Bostic court emphasized that the defendant there had altered the firearm by adding a fiber optic sight, holding that “[t]he rifle possessed by the defendant, which included visible differences from an antique firearm such as a fiber optic sight, was not a ‘replica’ of a firearm manufactured in or before 1918.” Id.

Like the majority in Bostic, the State in this case argues that Weeks possessed a firearm that was visually distinct from a firearm manufactured in or before 1918, and thus it could not be deemed a replica. The difference between Weeks’ firearm and a 1918 firearm was a scope added by him, which apparently was not available in or before 1918. The State argues that because anyone could plainly see that Weeks’ firearm was not an exact copy of a weapon manufactured in or before 1918, his firearm was not a replica and his conviction should stand.

However, it is not apparent that “common understanding and practice” equates a replica with an exact copy. See Warren. Black’s Law Dictionary does not define the term “replica.” Webster’s New Universal Unabridged Dictionary (Deluxe Second Edition) defines replica as “any very close reproduction or copy.” For some, a firearm with a percussion cap firing system as well as a scope may still be a reasonably exact reproduction of an antique firearm so as to qualify as a replica. After all, the distinctive feature of an antique firearm as defined in section 790.001 is the firing system. As noted, when there is a doubt as to a statute’s vagueness, the doubt should be resolved “in favor of the citizen and against the state.” Brown v. State, 629 So.2d at 843.

The case on which the State and the Bostic court have relied, Harris v. State, is distinguishable from the case before us. While it defined the term “replica,” the Harris court was referring to an object which could be used at trial as demonstrative evidence. 843 So.2d at 863. A replica, as demonstrative evidence, must be a reasonably exact reproduction so that the jury is not misled as to the nature of the original. Id. Thus, in Harris, the court was eager to avoid misleading a jury. No such concern is presented in the case at bar.

We recognize that the Supreme Court of Florida in Williams v. State, 492 So.2d 1051, 1054 (Fla.1986), receded from on other grounds, Brown v. State, 719 So.2d 882 (Fla.1998), declined to

construe the antique “or replica” exceptions of section 790.23 in such a way as to condone the concealment, by a convicted felon, of a firearm which may possibly be a replica of an antique, but is obviously operable and loaded with live ammunition. We do not believe that the legislature, when enacting section 790.23 intended that a convicted felon could be acquitted when possessing a concealed, loaded weapon by using the excuse that the weapon is an antique or a replica thereof.

The Supreme Court in Williams did not consider specifically a challenge to the constitutionality of section 790.23. Instead, the issue before the court was whether the trial court erred in denying a motion for a judgment of acquittal made on the ground that the defendant has created reasonable doubt as to whether the gun in question in that case was an antique or a replica thereof. Given this distinct procedural posture, it does not control our review of the denial of Weeks’ motion to dismiss.

In sum, we hold section 790.23 is unconstitutionally vague as to antique replica firearms because the phrases “firearm” and “antique firearm” defined in chapter 790, do not give adequate notice of what constitutes a permissible replica of an antique firearm which may be lawfully carried by a convicted felon; therefore, arbitrary and discriminatory enforcement of section 790.23 may result. Accordingly, we reverse Weeks’ conviction for possession of a firearm by a convicted felon, vacate his sentence therefor, and remand for further proceedings; we certify conflict with Bostic.

WOLF, J„ concurs, and WETHERELL, J., concurs in result.


text:
    Robert SCOLARO p/o/a for Richard Scolaro and Scolaro, Shulman, Cohen, Fetter & Burnstein, P.C., Petitioners, v. M. Ashley BUTLER, PH.D., as Guardian of Claudine B. O’Connor, Commerce Trust Company, a Division of Commerce Bank, N.A., as Co-Trustee of the Claudine B. O’Connor Revocable Trust Agreement dated January 27, 1984, as amended on August 22, 2002, Lester B. Cox, as Co-Trustee of the Claudine B. O’Connor Revocable Trust Agreement dated January 27, 1984, as amended on August 22, 2002, Thomas F. O’Connor, Ernie C. Lisch, as Guardian of the Property of Thomas F. O’Connor, Brittany Warnock, and Barbara Collier, Respondents.
    No. 2D14-1142.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 2014.
    James E. Moon of Quintarnos, Prieto, Wood, & Boyer, P.A., Fort Myers, for Petitioners.
    Robert C. Widman of Morris & Widman, P.A., Venice, and Kimberly A. Bald of Harllee & Bald, P.A., Bradenton, for Respondents M. Ashley Butler, Ph.D., Commerce Trust Company, and Lester B. Cox.
    No appearance for remaining Respondents.
   PER CURIAM.

As to the order of February 5, 2014, we deny the petition for writ of certiorari. As to the order of March 14, 2014, we dismiss the petition as moot.

Denied in part and dismissed in part.

SILBERMAN, VILLANTI, and CRENSHAW, JJ., Concur.