author: BERGER, J.

text:
    Jay William SPURGEON, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-796.
    District Court of Appeal of Florida, Fifth District.
    May 31, 2013.

      James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   BERGER, J.

Jay William Spurgeon appeals his conviction for battery on an emergency medical care provider. He raises five issues on appeal, two of which merit discussion. First, Spurgeon challenges the denial of his motion for judgment of acquittal. He next argues the trial court erred when it failed to provide the jury with an instruction on self-defense. Because we agree with Spurgeon that the State failed to prove the victim was an “emergency medical care provider” pursuant to section 784.07(l)(a), Florida Statutes, it was error for the trial court to deny the motion for judgment of acquittal. Additionally, while we find the State offered proof sufficient to sustain a conviction for battery, because the record reflects there was some evidence presented to warrant an instruction on self-defense and the trial court failed to give it, we are compelled to reverse and remand for new trial.

Spurgeon was charged with battery on an emergency medical care provider for spitting in the face of hospital security officer, Carlena DenDekker (DenDekker). At the time of the offense, Spurgeon was a patient in the emergency department at South Seminole Hospital, unable to leave because of a medical hold. Due to his intoxication and aggressive behavior, Spur-geon was restrained by security personnel on two separate occasions. Initially, he was cooperative and offered no resistance. He calmed down after receiving an injection and the restraints were removed.

Sometime after the initial restraints were removed, Spurgeon attempted to leave the hospital. When the nursing staff tried to stop him, Spurgeon became verbally abusive and physically aggressive. As a result, DenDekker and four other security officers were again called to assist. This time, Spurgeon did not consent to being restrained. It was during this second attempt to restrain him that Spurgeon spat on DenDekker after she grabbed him, carried him to the bed, and held his shoulders down. He was subsequently arrested.

Spurgeon was tried before a jury. At the close of the State’s case, defense counsel moved for judgment of acquittal, arguing that the State failed to prove DenDekker satisfied the definition of “emergency medical care provider” as provided in section 784.07(l)(a), Florida Statutes. Section 784.07(l)(a) defines an “emergency medical care provider” as:

[A]n ambulance driver, emergency medical technician, paramedic, registered nurse, physician as defined in s. 401.23, medical director as defined in s. 401.23, or any person authorized by an emergency medical service licensed under chapter 401 who is engaged in the performance of his or her duties.” The term ‘emergency medical care provider’ also includes physicians, employees, agents, or volunteers of hospitals as defined in chapter 395, who are employed, under contract, or otherwise authorized by a hospital to perform duties directly associated with the care and treatment rendered by the hospital’s emergency department or the security thereof.

§ 784.07(l)(a), Fla. Stat.

Spurgeon contends the statute requires the State to prove that South Seminole Hospital met the definition of hospital under chapter 395, and that it failed to do so. The State argued that it was not required to prove South Seminole Hospital was a hospital stating, “[T]he definition is — in that section is designed to inform the participants as to what type of people that we’re talking about. It’s not something that is an element of the offense.” The trial court agreed and denied the motion for judgment of acquittal.

Thereafter, Spurgeon moved to dismiss the charges under the “Stand Your Ground” statute. Spurgeon asserted the State presented no evidence that would permit private security officers to restrain him against his will and maintained that because the security officers were unlawfully restraining him, his actions in resisting them were lawful self-defense and he was immune from prosecution. The court denied the Defendant’s motion after the State countered that the security officers were lawfully restraining Spurgeon because of the medical hold. In denying the motion, the trial court determined that Spurgeon’s claim presented a jury question, but nevertheless failed to instruct the jury on his theory of self defense. Spur-geon was ultimately convicted, adjudicated guilty of battery on an emergency medical care provider, and placed on two years probation. This appeal followed.

We begin our discussion with the trial court’s denial of the motion for judgment of acquittal based on Spurgeon’s argument that the State failed to prove Den-Dekker satisfied the definition of an “emergency medical care provider” because no evidence was presented that South Seminole Hospital satisfied the definition of “hospital” as that term is defined in chapter 395. Spurgeon argues the trial court incorrectly interpreted section 784.07(l)(a), Florida Statutes, and thereby erred when it denied his motion for judgment of acquittal.

The trial court denied Spurgeon’s motion for judgment of acquittal based on its interpretation of section 784.07(l)(a), Florida Statutes. We review the court’s interpretation of a statute de novo. Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006) (“The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review.”). In denying Spurgeon’s motion, the court reasoned:

This Court’s reading of section 784.07(l)(a) is that when it says the term emergency medical care provider it also includes physicians, employees, agents or volunteers of hospitals as defined in Chapter 395. Doesn’t mean hospital as defined in 395, it means—
... those type of individuals who may be employed as defined in 395.

The court went on to say:

[M]y interpretation is ... that the statute 784.07(l)(a) does not require the hospital be defined as in 395, but that the physicians, employees, agents or volunteers of hospitals are as defined in 395 and it goes on to say who are employed under contract or otherwise authorized by a hospital to perform duties directly associated which include security.

Words in a penal statute must be strictly construed. See McLaughlin v. State, 721 So.2d 1170, 1172 (Fla.1998). Furthermore, “[i]t is a settled rule of statutory construction that unambiguous language is not subject to judicial construction.” State v. Jett, 626 So.2d 691, 693 (Fla.1993). Here, the court’s construction of section 784.07(1)(a), that the statute “does not require the hospital be defined as in 395, but that the physicians, employees, agents or volunteers of hospitals are as defined in 395,” is problematic. Since “hospital” is the only term defined in chapter 395, the appropriate construction of section 784.07(l)(a) is that the term “emergency medical care provider” only covers physicians, employees, agents, or volunteers of a hospital as a hospital is defined in chapter 395.

Just as “physician” and “medical director” are specifically defined under section 784.07(l)(a), “hospital” is defined by chapter 395. Section 784.07(l)(a) states:

The term “emergency medical care provider” also includes physicians, employees, agents, or volunteers of hospitals as defined in chapter 395, who are employed, under contract, or otherwise authorized by a hospital to perform duties directly associated with the care and treatment rendered by the hospital’s emergency department or the security thereof.

§ 784.07(l)(a) (emphasis added). Because the plain language of the statute adopts the definition of hospital under chapter 395, the term “emergency medical care provider” only includes physicians, employees, agents, or volunteers of hospitals as hospitals are defined in chapter 395. It does not include physicians, employees, agents, or volunteers of facilities that do not satisfy the definition of hospital under chapter 395. Accordingly, the State was required to prove that DenDekker was an employee or agent of a hospital as defined in section 395.002(12), who was employed, under contract, or otherwise authorized by such hospital to perform duties directly associated with the security of the hospital’s emergency department.

Under chapter 395, “hospital” means an establishment that:

(a) Offers services more intensive than those required for room, board, personal services, and general nursing care, and offers facilities and beds for use beyond 24 hours by individuals requiring diagnosis, treatment, or care for illness, injury, deformity, infirmity, abnormality, disease, or pregnancy; and (b) Regularly makes available at least clinical laboratory services, diagnostic X-ray services, and treatment facilities for surgery or obstetrical care, or other definitive medical treatment of similar extent ....

§ 395.002(12), Fla. Stat. While the State established that DenDekker was an employee or agent of South Seminole Hospital, that DenDekker was wearing a security uniform that had a badge and shield on it, that DenDekker was authorized by South Seminole Hospital to provide security to its facility, and that DenDekker was performing her duties when she was attempting to place the restraints on Spur-geon in the emergency department, the State failed to introduce legally sufficient evidence to show that DenDekker was an employee or agent of a hospital, as a hospital is defined in chapter 395. By asking a few simple questions about the nature and scope of services offered by South Seminole Hospital, it is probable that the State could have established this burden. However, having failed to do so, the court erred in denying Spurgeon’s motion for judgment of acquittal on the charge of battery on an emergency medical care provider.

We now turn to Spurgeon’s argument that the trial court erred when it denied his request for a jury instruction on the justifiable use of non-deadly force. In his motion to dismiss, Spurgeon argued that since the State failed to introduce evidence that would permit a security officer for a private company to hold a person at a hospital against his will, he was exercising lawful self-defense when the security officers tied him down with four point restraints and placed a hood on him. The court denied the motion stating succinctly: “And that’s a jury question so your motion is overruled or denied.” We find no error in the denial of Spurgeon’s motion to dismiss. However, the same cannot be said for the court’s denial of the requested jury instruction.

A trial court’s decision to give or withhold a proposed jury instruction is generally reviewed for an abuse of discretion. Vila v. State, 74 So.3d 1110, 1112 (Fla. 5th DCA 2011). However, the trial court’s discretion is more restricted in criminal proceedings “because a criminal defendant is entitled to have the jury instructed on his or her theory of defense if there is any evidence to support the theory and the theory is recognized as valid under Florida law.” Id. The trial court should not weigh the evidence when determining whether to give the requested instruction. Id.; see also Pope v. State, 458 So.2d 327, 329 (Fla. 1st DCA 1984) (stating that “[i]t is axiomatic that a defendant is entitled to have the jury instructed on the rules of law applicable to his theory of defense if there is any evidence to support such an instruction, and the trial court may not weigh the evidence in determining whether the instruction is appropriate”) (citing Smith v. State, 424 So.2d 726, 732 (Fla.1982)). The jury — not the trial judge— decides the weight of the evidence. Vila, 74 So.3d at 1112. “The question of self-defense is one of fact, and is one for the jury to decide where the facts are disputed.” Id. Additionally, a defendant is not required to testify at trial to receive a jury instruction on self-defense. Sipple, 972 So.2d at 915. A defendant’s statements admitted into evidence at trial may be sufficient evidence for a self-defense instruction. Id. The cross-examination of State witnesses can also support a claim of self-defense. Id. at 916. Finally, if a jury can reasonably infer from circumstantial evidence presented at trial that the defendant had the state of mind necessary for self-defense, then the defendant is entitled to a jury instruction on self-defense. Johnson v. State, 634 So.2d 1144, 1145 (Fla. 4th DCA 1994).

Here, the trial court’s determination that Spurgeon presented a jury question on the issue of self-defense belies its conclusion that no evidence was presented to support his request for a self-defense instruction. The record reflects Spurgeon was not under arrest at the time he was restrained and that he had repeatedly expressed a desire to leave the hospital. Indeed, testimony revealed much of Spur-geon’s agitation was due to him wanting to leave the hospital and being prevented from doing so. He spat on DenDekker only after she placed her hands on him without his consent and physically restrained him. This evidence was sufficient to warrant an instruction on self-defense and failing to give it was reversible error. E.g., Parker v. State, 908 So.2d 1099, 1099 (Fla. 1st DCA 2005) (reversing conviction for resisting an officer with violence to his person and holding that the court erred in denying the request for a jury instruction on self-defense that would have informed the jury that it is lawful to resist deadly force with non-deadly force); Langston v. State, 789 So.2d 1024, 1025 (Fla. 1st DCA 2001)(reversing conviction for resisting arrest with violence where the trial court refused to give requested instruction on the lawful use of force to defend against an officer’s use of unlawful or excessive force while making an arrest when some evidence supported the instruction); Holley v. State, 423 So.2d 562, 564 (Fla. 1st DCA 1982) (reversing conviction for battery on a law enforcement officer and holding that the court erred in denying the defendant’s request for a self-defense instruction when evidence in the record supported the self-defense theory).

Accordingly, we reverse the judgment and sentence for battery on an emergency medical care provider and remand for new trial on the charge of battery.

REVERSED AND REMANDED FOR NEW TRIAL.

ORFINGER, C.J. and PALMER, J., concur.

      . See §§ 784.03, 784.07(l)(a), and 784.07(2)(b), Fla. Stat. (2011).

      . DenDekker is employed by Orlando Health Systems, which owns South Seminole Hospital.

      .The record reflects Spurgeon voluntarily sought treatment at South Seminole Hospital. However, no evidence was introduced to establish the nature of the medical hold.

      . § 776.032, Fla. Stat.

      . We find there was sufficient evidence presented at trial to survive a motion for judgment of acquittal on the lesser included offense of battery pursuant to section 784.03(1), Florida Statutes.

      . See § 776.012, Fla. Stat. (stating that "[a] person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against such other's imminent use of unlawful force”).

      . After taking away Spurgeon’s most viable affirmative defense-self-defense-the trial court compounded the error by giving the State’s requested special jury instruction titled "Involuntary Medical Examination,” pursuant to section 401.445, Florida Statutes. We decline to address the validity of giving this instruction because Spurgeon did not argue it was error on appeal. However, we note that if DenDekker was not acting in the lawful performance of her duties either because section 401.445 was inapplicable or because she used unreasonable force against Spurgeon while restraining him, the court should have granted Spurgeon’s requested instruction on the justifiable use of non-deadly force. Failing to do so effectively negated Spurgeon’s theory of self-defense.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James SMART, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0380.
    District Court of Appeal of Florida, First District.
    June 3, 2013.

      Marcella Ann Beeching, Ponte Vedra Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

James Smart (“Appellant”) appeals his convictions and sentences for two counts of attempted second-degree murder (Counts 3 and 4) and two counts of attempted armed robbery (Counts 5 and 6). We affirm the convictions without discussion. As to the sentences, Appellant asserts that the trial court imposed illegal sentences of life imprisonment for the two attempted second-degree murder counts, and that the court impermissibly imposed the consecutive mandatory mínimums under section 775.087(2)(d), Florida Statutes. For the following reasons, we agree with Appellant that the life sentences are illegal, but we approve the consecutive sentencing scheme.

Section 782.04(2) proscribes second-degree murder, and classifies this offense as a first-degree felony. See § 782.04(2), Fla. Stat. (2008). Section 777.04(1) proscribes a “criminal attempt” to commit any offense prohibited by law, and provides that an attempted first-degree felony is classified as a second-degree felony. See §§ 777.04(1), (4)(c), Fla. Stat. (2008). However, under the 10-20-Life statute, when the defendant possesses a firearm while committing a second-degree felony, the crime shall be reclassified to a first-degree felony. See § 775.087(l)(b), Fla. Stat. (2008). Because attempted second-degree murder is a second-degree felony, and the jury expressly found that Appellant possessed and discharged a firearm while committing the attempted murders, the trial court should have reclassified the crimes to first-degree felonies, for which the statutory maximum prison term is 30 years. See § 775.082(3)(b), Fla. Stat. (2008).

The State contends that the life sentences are permissible, nevertheless, under section 782.065, which creates the crime of attempted murder of a police officer and mandates a life sentence. See § 782.065(1), Fla. Stat. (2008). Indeed, both the charging document and the final judgment of conviction in this case label the pertinent crime “attempted murder of a police officer.” However, Appellant committed the attempted murders on September 10, 2008, and section 782.065 did not become effective until October 1, 2008. See Ch. 2008-74, § 1, at 1, Laws of Fla.; Lebron v. State, 799 So.2d 997, 1019 (Fla.2001) (“[I]t is firmly established law that the statutes in effect at the time of commission of a crime control as to the offenses for which the perpetrator can be convicted, as well as the punishments which may be imposed”).

As to the consecutive mandatory minimum sentences, we held in Walton v. State, 106 So.3d 522, 528 (Fla. 1st DCA 2013) (en banc), that any minimum sentence required by section 775.087(2)(d), the “10-20-Life” statute, shall be imposed consecutively to any other term imposed for any other felony offense, whether the defendant fires a gun or only carries/displays a firearm, and whether or not the crimes occurred during a single episode. The sentencing scheme employed in Appellant’s case is therefore correct.

We reverse Appellant’s life sentences on Counts 3 and 4, and remand for resentenc-ing, for which Appellant must be present. See Walton, 106 So.3d at 528-29. Appellant’s convictions and sentences are otherwise affirmed.

AFFIRMED, in part; REVERSED, in part; and REMANDED.

BENTON, C.J., ROWE, and MARSTILLER, JJ., CONCUR.

      . The appellant in the instant case and the appellant in Walton were co-defendants.


text:
    Peter HERNANDEZ, Petitioner, v. Mr. Chris LANDRUM and Florida Department of Corrections, Respondents.
    No. 1D13-0043.
    District Court of Appeal of Florida, First District.
    June 3, 2013.
    Peter Hernandez, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

Because petitioner has failed to show that he has brought the pending pleading to the attention of the circuit court or made an express and distinct demand for performance, the petition for writ of mandamus is denied. See Thomas v. State, Dep’t of Revenue, 74 So.3d 145 (Fla. 1st DCA 2011); Al-Hakim v. State, 783 So.2d 293 (Fla. 5th DCA 2001).

BENTON, C.J., RAY and MAKAR, JJ., concur.


text:
    Jeffrey POTTER, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D13-0904.
    District Court of Appeal of Florida, First District.
    June 3, 2013.
    Jeffrey Potter, pro se, Petitioner.
    Sarah J. Rumph, General Counsel, and Mark J. Hiers, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

We grant the petition for writ of certio-rari, quash the order of the circuit court and remand with instructions to the circuit court to allow petitioner to file a reply. See Bard v. Wolson, 687 So.2d 254 (Fla. 1st DCA 1996) (reversing and remanding for further proceedings to provide appellant an opportunity to reply to the response filed below).

BENTON, C.J., RAY and MAKAR, JJ., concur.


text:
    Francis Wayne PAYNE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1349.
    District Court of Appeal of Florida, First District.
    June 3, 2013.
    Francis Wayne Payne, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is dismissed as untimely. See Fla. R.App. P. 9.141(c)(5).

BENTON, C.J., WETHERELL and ROWE, JJ., concur.


text:
    Alfonza ALBERTA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0732.
    District Court of Appeal of Florida, First District.
    June 4, 2013.
    Alfonza Alberta, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of prohibition is denied. See Toby v. State, 89 So.3d 1090 (Fla. 1st DCA 2012).

BENTON, C.J., THOMAS and CLARK, JJ., concur.


text:
    Carlos GREEN, Frank James, Appellants, v. Warden Barry REDDISH, et al., Appellee.
    No. 1D13-0943.
    District Court of Appeal of Florida, First District.
    June 4, 2013.

      Carlos Green, Frank James, pro se, Appellants.
    Pamela Jo Bondi, Attorney General, Tallahassee; Jennifer Parker, General Counsel, Florida Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.110(0.

BENTON, C. J„ THOMAS and CLARK, JJ., concur.


text:
    Travis McKINNEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2117.
    District Court of Appeal of Florida, First District.
    June 4, 2013.
    Travis McKinney, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED.

BENTON, C. J., THOMAS and CLARK, JJ., concur.


text:
    Myron McCRAY, Petitioner, v. STATE of FLORIDA, Respondent.
    No. 1D13-2431.
    District Court of Appeal of Florida, First District.
    June 4, 2013.
    Myron McCray, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

BENTON, C.J., THOMAS and CLARK, JJ., concur.


author: MAY, C.J.

text:
    Jessy KURIAN and Anil Thomas, Appellants, v. WELLS FARGO BANK, NATIONAL ASSOCIATION, Appellee.
    No. 4D11-3098.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.
    Rehearing Denied June 5, 2013.

      Scott Levine, Weston, for appellants.
    Michael K. Winston and Dean A. Mo-rande of Carlton Fields, P.A., West Palm Beach, for appellee.
   On Motion for Rehearing

MAY, C.J.

The bank has filed a motion for rehearing. We deny the motion for rehearing, but withdraw our previously issued opinion and replace it with the following.

Homeowners appeal a Final Summary Judgment of Foreclosure. They argue the trial court erred in entering summary judgment because the bank failed to refute their affirmative defenses. We agree and reverse.

The homeowners executed a note and mortgage with the bank. Section 22 of the mortgage — titled “Acceleration; Remedies” — stated, in pertinent part:

Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument.... The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property....

The bank filed a Complaint on March 31, 2009, to foreclose the mortgage, alleging the homeowners defaulted on December 1, 2008. Attached to the Complaint was a letter, dated March 25, 2009, notifying the homeowners that the mortgage was in default and the bank had already accelerated all sums due. The homeowners answered and asserted affirmative defenses. Affirmative Defense 14 alleged that “all conditions precedent to filing this foreclosure action were not in accordance with the ‘acceleration’ terms and conditions set forth in the promissory note and mortgage.” It is this affirmative defense which we address.

The bank moved for summary judgment and attorneys’ fees, and filed an Amended Affidavit as to Amounts Due and Owing. The affidavits in support of summary judgment did not address the allegations of Affirmative Defense 14. The homeowners filed affidavits in opposition, which attested that they never received notification of the acceleration of the mortgage or note, were never contacted by the bank about the acceleration, and never waived their right to receive notice. The trial court entered Final Summary Judgment in favor of the bank. The homeowners now appeal.

The homeowners argue the trial court erred in entering summary judgment because the bank failed to refute then-affirmative defenses, which were legally sufficient. More specifically, they argue that the bank did not meet the requirements of section 22 of the mortgage by failing to provide sufficient notice of default and opportunity to cure. The bank responds that the affirmative defenses were legally insufficient because they were not pled with the particularity and specificity required by Florida Rule of Civil Procedure 1.120(c). We have de novo review. Frost v. Regions Bank, 15 So.3d 905, 906 (Fla. 4th DCA 2009).

“When a party raises affirmative defenses, ‘a- summary judgment should not be granted where there are issues of fact raised by the affirmative defenses which have not been effectively factually challenged and refuted.’ ” Alejandre v. Deutsche Bank Tmst Co. Ams., 44 So.3d 1288, 1289 (Fla. 4th DCA 2010) (quoting Cufferi v. Royal Palm Dev. Co., 516 So.2d 983, 984 (Fla. 4th DCA 1987)). The mov-ant must disprove the affirmative defenses or show they are legally insufficient. Id.

The bank relies on Godshalk v. Countrywide Home Loans Servicing, L.P., 81 So.3d 626 (Fla. 5th DCA 2012), to challenge the sufficiency of the homeowners’ affirmative defense. In Godshalk, the court found the affirmative defenses insufficient where the homeowner “merely denied that ‘any of the notices required by the document’ had been sent.” Id. at 626. Here, the homeowners’ affirmative defense denied compliance with the conditions precedent required by “the ‘acceleration’ terms and conditions set forth in the promissory note and mortgage.” The “acceleration” terms are located in section 22 of the mortgage, and require notice of any default and opportunity to cure thirty days prior to acceleration. The homeowners sufficiently pled the bank’s failure to satisfy conditions precedent regarding the pre-acceleration notice requirements of the mortgage. Frost, 15 So.3d at 906 (“Although the bank argues that the defense did not refer to any language from the mortgage, the bank cites no authority which requires the defense to contain such a reference.”).

At the hearing on the Motion for Summary Judgment, the bank never argued that the homeowners’ affirmative defenses were insufficiently pled. Rather, the bank argued that the letter attached to the Complaint, indicating that acceleration had already occurred, satisfied the notice requirements set forth in section 22 of the mortgage. The bank never refuted the homeowners’ affirmative defense of lack of thirty days’ notice of the default and opportunity to cure prior to acceleration as required by section 22 of the mortgage.

The letter attached to the Complaint was a notice that acceleration had already occurred and was dated only six days prior to the filing of the Complaint. It did not advise of the default, provide an opportunity to cure, or provide thirty days in which to do so. The letter attached to the Complaint did not satisfy section 22’s requirements.

The bank argues for the first time on appeal that section 15 of the mortgage provides that notice is deemed to have been given when sent by first class mail. However, the bank never established that any notice was sent by first class mail thirty days prior to accelerating the mortgage. For these reasons, we reverse and remand for further proceedings.

Reversed and Remanded.

TAYLOR and CONNER, JJ., concur.


author: ROTHENBERG, J.

text:
    Pedro CASTRO and Maria Robles de Castro, Appellants, v. The CHARTER CLUB, INC., a Florida not for profit corporation, Appellee.
    No. 3D12-1367.
    District Court of Appeal of Florida, Third District.
    June 5, 2013.

      The Stabenow Law Firm, PLLC, and Tony Stabenow, Miami Beach, for appellants.
    David Haber, P.A., Miami, and, Lindsey F. Thurswell, Coral Gables, and Rebecca C. Newman, Miami, for appellee.
    Before ROTHENBERG and EMAS, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

Pedro Castro and Maria Robles de Castro (“the Castros”) appeal the trial court’s order denying their motion to vacate a final judgment of foreclosure. For the following reasons, we reverse.

The Castros own a condominium, unit 928, at the Charter Club Condominiums. The Charter Club, Inc.’s (“the Association”) records list the Castros’ daughter’s home address as their alternate address and billing address. When the Castros fell behind on their maintenance and assessment fee payments, the Association sent the Castros a notice of intent to file a lien (“NOL”) against their unit for the outstanding maintenance fees. The NOL, which was sent to the Castros at their daughter’s residence via certified mail, was received and signed for on November 29, 2008, and the Association recorded its claim of lien against the property on April 2, 2009.

The Association filed this action to foreclose on the Castros’ condominium on August 4, 2009. The first return of service states that, on December 7, 2009, the process server “discontinued attempting service” on the Castros at their condominium address “[f|or the reasons detailed in the comments below,” but failed to include the “comments” as indicated. No attempt was made to serve the Castros at their daughter’s address, where the NOL had been successfully served.

The second attempt was made in May of 2010. A verified return of non-service, signed by the process server on May 17, 2010, states that the process server went to the daughter’s residence on March 29, 2010, and spoke to a woman (the Castros’ daughter) who informed him that the Cast-ros lived at 6701 Collins Avenue, unit 8704, on Miami Beach, but that when the process server attempted to serve the Castros at the 6701 Collins Avenue address, no such unit number existed. The daughter’s sworn affidavit, however, states that when the process server came to her home looking for her parents, he did not tell her that her parents’ condominium was in foreclosure and that he was trying to obtain service on her parents. When asked where her parents could be located, the daughter avers that she told the process server that her parents lived at 6365 Collins Avenue, not 6701 Collins Avenue, but the process server did not write down the address. It is undisputed that the process server never returned to the daughter’s residence to verify the address or to seek the daughter’s assistance in serving her parents.

On June 29, 2010, the Association sought to obtain jurisdiction over the Castros through notice by publication. In support thereof, the Association’s counsel filed an affidavit of constructive service, stating that “after making a diligent search and inquiry, the residence of said Defendant(s), PEDRO CASTRO and NORMA ROBLES DE CASTRO, is unknown to Affiant, and Affiant is unable to determine if said Defendant is living or dead.” This affidavit was signed by the Association’s counsel despite the fact that he knew the Castros were alive and he had been in contact with the Castros’ daughter, attempting to negotiate terms for the Castros to pay down their debt to the Association.

As a result of the Association’s negotiations with the Castros’ daughter, the Association agreed to allow the Castros to lease the unit and have the tenant pay the rent directly to the Association’s attorney in order to offset the amount owed to the Association by the Castros. The lease was signed by the Castros, and the tenant was approved by the Association in September of 2010 and again in September of 2011 upon renewal of the lease. The tenant’s unrebutted affidavit provided that she paid the rent directly to the Association’s counsel, lived in the condominium with the Association’s knowledge and approval, and was never advised of the existence of the subject lawsuit, nor was she asked to provide any contact information for the Cast-ros.

A year-and-a-half after filing the affidavit of constructive notice, while the tenant continued to reside at the condominium and pay rent directly to the Association’s counsel, and despite the Association having direct contact with the Castros’ daughter, the Association filed an ex parte motion for default based on service by publication. The motion for default was accompanied by an affidavit of diligent search and inquiry for service of process by publication. The affidavit states that the Association’s counsel had conducted an “extensive diligent search” for the Castros using the “PeopleMap database,” the Property Appraiser’s Office, and military records. On January 4, 2012, after a hearing on the Association’s ex parte motion, default was entered against the Castros.

On January 23, 2012, the Association filed a motion for summary judgment (“MSJ”). The MSJ was set for hearing at motion calendar on February 29, 2012. Although the Association knew the Castros no longer resided in the condominium, and the Association’s records listed the Cast-ros’ daughter’s home address as their alternate address and billing address, the Association sent its notice of the hearing for the Association’s MSJ to the Castros at the condominium. When the tenant occupying the condominium received the notice, she delivered it to the Castros’ daughter. The Castros’ daughter attended the MSJ hearing accompanied by an attorney. The attorney accompanying the Castros’ daughter did not file a notice of appearance in the case and Pedro Castro’s supplemental affidavit states that neither he nor his wife were aware of the hearing and neither had retained nor authorized any attorney to represent them in the case or at the hearing. At the conclusion of the hearing, the trial court granted the Association’s motion for final judgment of foreclosure.

When the Castros learned what happened, they obtained counsel and timely filed a motion to vacate the default and the default judgment, and an emergency motion to cancel the foreclosure sale, arguing that the service by publication was defective, and included affidavits in support of their motions. After an emergency hearing on the motion to cancel sale, the trial court denied the motion and noted that the issue of service could be “raised after the sale with the presiding judge at any time.” Thereupon, the Castros filed their objections to the sale and the certificate of sale.

At the hearing conducted by the trial court, the Castros argued that the Association’s constructive service affidavit and notice of action were legally insufficient on their face, and that the Association could not rely on the constructive service statute after entering into an agreement with the Castros to allow a tenant to occupy the unit. The trial court denied the Castros’ motion to vacate. This appeal followed.

DISCUSSION

We review a trial court’s denial of a motion to vacate a final judgment for abuse of discretion. Rodriguez-Faro v. M. Escarda Contractor, Inc., 69 So.3d 1097, 1098 (Fla. 3d DCA 2011); Shields v. Flinn, 528 So.2d 967, 968 (Fla. 3d DCA 1988). In reviewing a trial court’s order denying a motion to vacate, the court’s sole concern is whether the trial court abused its discretion in refusing to vacate the final judgment. Bland v. Mitchell, 245 So.2d 47, 48 (Fla.1970); Rushing v. Chappell, 247 So.2d 749, 751 (Fla. 1st DCA 1971); Graham v. Eisele, 245 So.2d 682, 683 (Fla. 3d DCA 1971).

It is axiomatic, that a judgment entered without due service of process is void. N.L. v. Dep’t of Children & Family Servs., 960 So.2d 810, 813 (Fla. 3d DCA 2007); Dor Cha, Inc. v. Hollingsworth, 876 So.2d 678, 679 (Fla. 4th DCA 2004); Falkner v. Amerifirst Fed. Sav. & Loan Ass’n, 489 So.2d 758, 759 (Fla. 3d DCA 1986). Moreover, where a judgment is void due to defective service, the party seeking to vacate such a judgment need not show any other basis for vacating the judgment. Willoughby v. Seese Realty Inc., 421 So.2d 691 (Fla. 4th DCA 1982).

Validity of Service

Although the Florida statutes allow for constructive service of process, Chapter 49 sets forth specific procedures that must be strictly followed in order to establish personal jurisdiction through constructive service. Fed. Nat’l Mortg. Ass’n v. Fandino, 751 So.2d 752, 753 (Fla. 3d DCA 2000). The party seeking to establish jurisdiction through constructive service has the burden to establish the validity of service of process. Shepheard v. Deutsche Bank Trust Co. Ams., 922 So.2d 340, 343 (Fla. 5th DCA 2006) (citing Torres v. Arnco Constr., Inc., 867 So.2d 583, 587 (Fla. 5th DCA 2004)). Moreover, because lack of personal service raises due process issues, the plaintiff seeking constructive service must strictly comply with the requirements of Chapter 49 of the Florida Statutes. Redfield Invs., A.V.V. v. Vill. of Pinecrest, 990 So.2d 1135, 1138 (Fla. 3d DCA 2008). Therefore, the statute is strictly construed against the plaintiff seeking service under Chapter 49, and absent strict compliance with the statute, service is improper and any resulting proceeding or judgment is void. Corneal v. O’Brien, 707 So.2d 908, 909 (Fla. 3d DCA 1998).

In ruling on the validity of constructive service, the trial court must determine the sufficiency of the affidavit and of the search to locate the defendant. Redfield Invs., A.V.V., 990 So.2d at 1138 (citing Giron v. Ugly Mortg., Inc., 935 So.2d 580, 582 (Fla. 3d DCA 2006)). In the instant case, the Association’s attempted service on the Castros failed to satisfy the statutory requirements for constructive service, thus the judgment entered against the Castros was void and should have been vacated. Therefore, the trial court abused its discretion in denying the Castros’ motion to vacate the judgment entered against them.

A. The Affidavit of Diligent Search

Notably, as a condition precedent to service by publication, the plaintiff or plaintiffs attorney must execute and file a sworn statement showing that a “diligent search and inquiry have been made to discover the name and residence of such person, and that the same is set forth in said sworn statement as particularly as is known to the affiant....” § 49.041(1), Fla. Stat. (2009). Therefore, in order to obtain constructive service on the Castros, the Association had to provide a sworn statement, stating with particularity that it conducted a diligent search and inquiry to discover the address of the Castros and that such address was unknown to the Association. Averments in conclusory terms are insufficient to satisfy the particularity required pursuant to section 49.041. Redfield Invs., A.V.V., 990 So.2d at 1140 (holding that the affidavit filed in support of constructive service was legally insufficient because it contained qualifying language that the inquiry had “not yet” revealed an accurate address for the defendant and did not comply with the statute).

The affidavit of diligent search filed by the Association merely states that the Castros’ “Residence [is] Unknown.” This is insufficient to satisfy the “particularity” requirement of section 49.041. See Wiggins v. Portmay Corp., 432 So.2d 802, 803 (Fla. 1st DCA 1983) (holding that the statement that the “[affiant] has made a diligent search and inquiry to determine the whereabouts of the Defendant and/or his residence herein, and that the same are unknown to the Plaintiff’ was insufficient). More specifically, the affidavit fails to provide with any particularity the information actually known by the Association—the address of the condominium, which was the Castros’ last known address, and their daughter’s address, listed as the Castros’ billing or alternate address in the Association’s records. Gans v. Heathgate-Sunflower Homeowners Ass’n, 593 So.2d 549, 552 (Fla. 4th DCA 1992) (holding that the affidavit which did not list defendant’s mailing address, and was known to the plaintiff, was legally defective). The undisputed facts reveal that the Association’s records clearly listed the Castros’ daughter’s address as their alternate address and billing address, and that the Association’s counsel communicated with the Cast-ros’ daughter about the Castros’ condominium via email and telephone on multiple occasions, and counsel could, and should, have at least listed the daughter’s address on the affidavit. The Association’s failure to include this information on its affidavit supporting constructive service deprived the Clerk and the court of the ability to mail a copy of the notice by publication to the Castros. Gans, 593 So.2d at 552. As a result, the Clerk did not send the notice of suit to the Castros’ last known address, the condominium at the Charter Club, which the tenant would have received and forwarded either to the Castros or to their daughter; or to the daughter’s address, listed in the Association records as the Castros’ alternate and billing address.

We also note that the process server’s return of service is similarly defective. The December 8, 2009, return of service affidavit is incomplete and facially defective. Although the return of service states that the process server has discontinued trying to serve the Castros with the complaint and summons “[f]or the reasons detailed in the comments below,” there are no comments, and the affidavit of diligent search does not provide any information as to what steps were taken by the process server to attempt personal service of the complaint and summons on the Castros.

Based on the Association’s failure to strictly comply with the requirements of Chapter 49, which requires filing of a sworn statement specifying, with particularity, what efforts and steps were taken to conduct a diligent search, we conclude that the constructive service on the Cast-ros was defective as a matter of law. The merely conelusory claims that a diligent search was conducted, without specificity as to what steps were taken to attempt to locate the Castros, does not support constructive service.

B. Diligent Search

Having determined that the Association’s affidavit of diligent search was defective, we now turn to the sufficiency of the Association’s search. Redfield Invs., A.V.V., 990 So.2d at 1138. To test the sufficiency of the Association’s search under Chapter 49, we consider whether the Association “reasonably employed the knowledge at [its] command, made diligent inquiry, and exerted an honest and conscientious effort appropriate to the circumstance to acquire the information necessary to enable [the Association] to effect personal service on the defendant.” Lewis v. Fifth Third Mortg. Co., 38 So.3d 157, 164 (Fla. 3d DCA 2010) (quoting Canzoniero v. Canzoniero, 305 So.2d 801, 803 (Fla. 4th DCA 1975)); Gmaz v. King, 238 So.2d 511, 514 (Fla. 2d DCA 1970) (noting that the test is whether the party seeking constructive service employed all of the knowledge at its command in conducting the search) (quoting McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 831 (1926)). The affidavit of diligent search filed by the Association provides that the Association conducted a search using “(a) ... the Peo-pleMap database; (b) search of the Property Appraisers Office website; (c) listings within the Plaintiffs records left by the defendant; (d) search to determine whether the Defendant is in the military.” A review of the record evidences that the Association did not meet its burden of showing that it conducted a diligent search as required by the statute.

In the instant case, the Association failed to use the knowledge readily available to it, and well within its command, to locate and serve the Castros. Notably, the Castros had listed their daughter’s address as their alternate address and billing address in the Association’s records, the Association’s attorney had specifically dealt with the Castros’ daughter in negotiating an agreement for the Castros to pay the overdue association fees, and the Association knew of, and had approved, the tenant’s lease of the condominium. Yet, the Association did not serve the Castros at their daughter’s address or even inform her of their attempt to locate the Castros in order to serve them with notice of suit. Instead, the process server merely asked the daughter if her parents were at the house and did not tell her the purpose of his visit. And, according to the daughter, the process server did not write down the address she provided to him, and as a result, the process server went to a nonexistent address to serve her parents. The process server never revisited the daughter or attempted to verify that he had gone to the correct address.

Additionally, the Association knew that there was a tenant in the condominium — it had approved the lease twice and received rent checks from the tenant for two years. Yet, the Association never attempted to contact the tenant to see if the tenant knew where the Castros could be found. See Redfield Invs., A.V.V., 990 So.2d at 1139 (“[TJhe effort should usually extend to inquiry of persons likely or presumed to know the facts sought.”) (emphasis in original) (quoting Levenson v. McCarty, 877 So.2d 818, 820 (Fla. 4th DCA 2004)); Dor Cha, Inc., 876 So.2d at 680 (holding that diligent search requires inquiry of anyone likely or presumed to be likely to know the defendant’s whereabouts); Gans, 593 So.2d at 551 (holding process server’s failure to question the defendant’s neighbors evidenced a lack of diligence in conducting the search and service by publication was improper).

We conclude that the Association did not perform a diligent search sufficient to satisfy Chapter 49. The Association’s counsel knew how to locate, and was in contact with, the Castros’ daughter; the Association had the daughter’s address on record as an alternate address and billing address for the Castros; and the Association knew that there was a tenant living at the Cast-ros’ last known address, who was making the rent payments directly to the Association’s attorney. The Association did not use all of the knowledge in its command or extend its inquiry to those “persons likely or presumed to know the facts sought.” Redfield Invs., A.V.V., 990 So.2d at 1139. The search and inquiry performed by the Association does not satisfy the constructive notice statute. Therefore, notice by publication was improper; the judgment is void; and the judgment must be vacated. Waiver of Notice

We briefly address the Association’s waiver argument. The Association contends that even if constructive service was defective, the Castros waived its objections to service because they attended, and participated at, the hearing on the Association’s motion for summary judgment. We disagree.

There is no transcript of the summary judgment hearing. Although the Association had provided record cites in support of its claim that the Castros were represented by counsel at the hearing, these citations do not support the Association’s position, and the record supports the opposite conclusion. The Castros stated under oath that they did not retain the services of the attorney who accompanied their daughter to the hearing; there was no notice of appearance filed by the attorney who accompanied the daughter; and the Association’s counsel, who claimed the Castros were represented by counsel at the hearing, could not provide a name for the attorney who appeared. Because there is no hearing transcript, we are confined to the record and the record evidence does not demonstrate that the Castros were represented by counsel at the summary judgment hearing. Accordingly, we conclude the Castros did not waive their right to challenge service of process.

Reversed.


author: WETHERELL, J. CLARK, J.,

text:
    WELLS FARGO BANK, N.A., as Trustee for Carrington Mortgage Loan Trust, Series 2006 Fre 1, Asset-Backed Pass-Through Certificates, Appellant, v. April CHATHAM, a/k/a April Carlton Chatham, a/k/a April Carlton Johnson; Bryan Chatham, a/k/a Bryan Alan Chatham, et al., Appellees.
    No. 1D12-2774.
    District Court of Appeal of Florida, First District.
    June 5, 2013.

      Shaib Y. Rios of Brock & Scott, PLLC, Ft. Lauderdale, for Appellant.
    Clayton B. Studstill of Studstill Law Firm, PLLC, Port St. Joe, for Appellees.
   WETHERELL, J.

Wells Fargo Bank, N.A., appeals the dismissal of this foreclosure case because of its failure to cure a deficiency in the complaint by the deadline set by the trial court. We agree with Wells Fargo that, under the circumstances, the trial court abused its discretion in dismissing this case. Accordingly, we reverse the dismissal order and remand for further proceedings.

I

On February 25, 2010, Wells Fargo filed a complaint to foreclose the mortgage on Appellee’s property. The complaint alleged that Wells Fargo held the note secured by the mortgage and that the note was in default because Appellee had not made any of the payments due on or after June 1, 2009. Appellee did not respond to the complaint, and after 17 months with virtually no record activity, a default was entered against Appellee on September 26, 2011.

Approximately two weeks after the default was entered, Appellee filed a motion to set aside the default. The motion alleged that Appellee’s failure to respond to the complaint was the result of excusable neglect and that she had a meritorious defense to the complaint “in that the Plaintiff in this case is not the holder in due course of the promissory note, and is therefore not a proper plaintiff, and has failed to state a cause of action for which relief can be granted.” The motion also pointed out that the complaint was not verified as required by Florida Rule of Civil Procedure 1.110(b). The trial court denied the motion after a hearing in an order dated February 8, 2012, and filed with the clerk of the lower tribunal on February 13, 2012.

On January 26, 2012, the same day as the hearing on the motion to set aside the default, the trial court issued what appears to be a form order advising Wells Fargo that the complaint did not comply with rule 1.110(b) because it was not verified. The order stated that this case would be dismissed if this deficiency was not “cured within fifteen (15) days of the date of this Order.” Based on the date of the order, this 15-day period expired on February 10, 2012.

On February 14, 2012, four days after the deadline set by the trial court, Wells Fargo served an amended complaint containing the verification required by rule 1.110(b). The amended complaint was not received by the clerk of the lower tribunal until February 20, 2012.

On February 16, 2012 — after the amended complaint was served, but before it was received by the clerk — the trial court signed an order dismissing this case based on Wells Fargo’s failure to “timely cure[ ]” the deficiency in the original complaint. The order stated that the dismissal was “without prejudice,” but also stated that “[i]f the plaintiff elects to file a new action to foreclose on the same property, it must be filed under a new case number and a new filing fee will be required.” The order was not filed with the clerk of the lower tribunal until February 22, 2012, two days after the amended complaint was filed.

On February 27, 2012, Wells Fargo timely filed a motion for rehearing. The motion explained that Wells Fargo did not receive the order requiring an amended complaint until five days after it was issued. The motion also detailed the diligent efforts made by Wells Fargo to comply with the order in the remaining 10 days, including expediting delivery of the amended complaint to and from its corporate office in California where it had to be sent to be verified. The motion included documents supporting the assertions in the motion, and Appellee did not file a response in opposition to the motion or otherwise dispute the assertions in the motion. The trial court denied the motion after a hearing in an order filed with the clerk of the lower tribunal on May 2, 2012.

Wells Fargo timely appealed the dismissal order to this Court.

II

The dismissal order is a final order for purposes of appellate review because, even though it dismissed this case “without prejudice,” the order precluded Wells Fargo from refiling a complaint under the same case number. See Wells Fargo Bank, N.A. v. Taboada, 93 So.3d 1073, 1074 n. 1 (Fla. 2d DCA 2012).

“[T]he trial court has the discretionary power to dismiss a complaint if the plaintiff fails to timely file an amendment.” Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1994). Accordingly, we review the dismissal order in this case under the abuse of discretion standard of review. See Bank One, N.A. v. Harrod, 873 So.2d 519, 520 (Fla. 4th DCA 2004) (“Dismissal of a complaint for non-compliance with a court order is subject to an abuse of discretion standard of review.”).

Even under this deferential standard, we agree with Wells Fargo .that reversal is warranted here. The amended complaint was only four days late; Wells Fargo showed good cause for its tardy filing in its motion for rehearing; and, most importantly, Appellee did not establish below — nor has she argued on appeal — that she was prejudiced in any way by the tardiness of the amended complaint. The Third District has held that it was an abuse of discretion for the trial court to dismiss an amended complaint under nearly identical circumstances, see D’Best Laundromat, Inc. v. Janis, 508 So.2d 1325 (Fla. 3d DCA 1987) (four days late); see also Kerry’s Bromeliad Nursery, Inc. v. Reiling, 561 So.2d 1305 (Fla. 3d DCA 1990) (five days late); Araujo-Sanchez v. Amoon, 513 So.2d 1307 (Fla. 3d DCA 1987) (14 days late), and we are unaware of any case in which a dismissal was upheld under a fact pattern remotely similar to this case.

Dismissal is a particularly draconian sanction in this case because Appellee did not respond to the original complaint and a default was entered against her in September 2011. Appellee filed a motion to set aside the default, but the trial court denied the motion after a hearing. Despite this ruling, the dismissal order requires Wells Fargo to start the foreclosure process over by filing an entirely new action more than three years after the original complaint was filed (and four years after Appellee last made a mortgage payment) simply because the amended complaint was four days late. This makes no sense and serves no purpose except to increase the cost of this foreclosure action and further delay the disposition of this case on the merits.

Having said that, we recognize the importance of parties complying with deadlines set by the trial court, and we also note that it would have been better practice for Wells Fargo to file a motion for extension of time when it became apparent that it would not be able to meet the deadline set by the trial court to cure the deficiency in the original complaint. However, under the circumstances, Wells Fargo’s failure to do so does not justify the dismissal of this case since Appellee was not prejudiced by the tardy amended complaint. Nor is Appellee prejudiced by our disposition of this appeal because on remand she will have an opportunity to respond to the amended complaint and litigate this case on the merits despite her failure to respond to the original complaint and the trial court’s denial of her motion to set aside the default.

III

In sum, for the reasons stated above, we reverse the dismissal order and remand for further proceedings on the amended complaint.

REVERSED and REMANDED for further proceedings.

' MAKAR, J., concurs; CLARK, J., dissents with opinion.

CLARK, J.,

dissenting.

Because I cannot agree that the trial court abused its discretion by dismissing the action without prejudice to Wells Fargo’s ability to file its claims in a new action, I respectfully dissent.

There was no question that the original complaint for foreclosure was not verified, in violation of rule 1.110, Florida Rules of Civil Procedure. While the borrower failed to respond to the complaint, Wells Fargo did not actively pursue its claim after filing, and there was no activity by either party or the court for well over a year after the complaint was filed. See Fla. R. Civ. P.R. 1.420. Before any action was taken to dismiss for failure to prosecute, Wells Fargo moved for and obtained a clerk’s default in September, 2011. Fla. R. Civ. P. 1.500(a).

The borrowers were unsuccessful with their motion to set aside the clerk’s default. However, the trial court on its own motion issued the order requiring Wells Fargo to cure the defect in the complaint within 15 days of the date of the order to avoid dismissal of the action. There was no dispute that the amended and verified complaint was both mailed and filed after the deadline expired. The trial court’s dismissal of the action without prejudice was in accordance with the terms of its earlier notice and order.

Along with the other circumstances described by the majority, it is clear that Wells Fargo did not seek an extension of time to meet the court’s deadline. As a sophisticated business enterprise ably represented by experienced counsel, Wells Fargo was undoubtedly aware of various options for delivery of documents from its California corporate offices when time became an issue. Unlike the dismissal in D’Best Laundromat, Inc. v. Janis, 508 So.2d 1325 (Fla. 3d DCA 1987), the dismissal in this case was without prejudice to the plaintiffs filing a new action, after paying a new filing fee, for failure to comply with the court’s order without good cause for such failure. This relatively mild sanction promotes both the public policy favoring resolution of disputes on their merits, Wells Fargo Bank, N.A. v. Reeves, 92 So.3d 249 (Fla. 1st DCA 2012), and the public policy that attorneys adhere to filing deadlines and court orders in the interest of an efficient judicial system and the swift administration of justice. Kozel v. Ostendorf, 629 So.2d 817 (Fla.1994).

While the trial court had the option of excusing Wells Fargo’s failure to meet its deadline and accepting the amended complaint as timely, the trial court also had the option of enforcing its order as previously noticed. As stated in Eagle’s Crest, LLC v. Republic Bank, 42 So.3d 848, 852 (Fla. 2nd DCA 2010), “in order to find that the trial court abused its discretion, we must find that the judicial action was arbitrary, fanciful, or unreasonable. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.”

Because I find no abuse of the trial court’s discretion under the circumstances of this case, I would affirm.

      . This requirement took effect on February 11, 2010, two weeks before the complaint was filed in this case, even though the Florida Supreme Court opinion adopting the requirement was not final until June 2010. See JP Morgan Chase Bank v. Jurney, 86 So.3d 1182, 1184 (Fla. 2d DCA 2012).

      . We use the date of service (4 days after the deadline set by the trial court) rather than the date of filing (10 days after the deadline) when referring to the tardiness of the amended complaint because the January 26, 2012, order did not state that an amended complaint had to be filed within 15 days of the date of the order, but rather stated only that the case would be dismissed if the deficiency in the original complaint was not "cured” within that period.

      . If any prejudice exists, it is Wells Fargo— not Appellee — who has suffered it. Wells Fargo filed its original complaint in February 2010, which Appellee admits to ignoring. Wells Fargo then incurred the expense of obtaining a default as well as further expense in opposing Appellee’s motion to set aside the default. While the parties are awaiting judicial action on the pending motion to set aside default, the court sua sponte issued an order requiring Wells Fargo to file an amended complaint because the original was not properly verified, giving it fifteen days to do so. Wells Fargo received the notice in the mail five days later, did its best to comply with only ten calendar days left, and served the amended complaint a mere four days late (and two days before the trial court’s dismissal order).

        .See Kozel, 629 So.2d at 818 ("In the interest of an efficient judicial system and in the interest of clients, it is essential that attorneys adhere to filing deadlines and other procedural requirements.”)


text:
    Arness RITTMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5501.
    District Court of Appeal of Florida, First District.
    June 5, 2013.
    Nancy A. Daniels, Public Defender, and Edward Harvey and Joel Arnold, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm the appellant’s judgment and sentence, but remand for the trial court to enter a written order specifying the condition of probation the appellant was found to have violated. See Leggs v. State, 27 So.3d 155 (Fla. 1st DCA 2010).

AFFIRMED in part and REMANDED in part for entry of a conformed order.

VAN NORTWICK, MARSTILLER, and RAY, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Ashley KNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0836.
    District Court of Appeal of Florida, First District.
    June 5, 2013.
    James C. Banks, Special Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm the appellant’s convictions and sentences. However, in what is clearly a scrivener’s error, the written judgment in case 09-00148 reflects a sentence of 15 years in prison followed by 15 years on probation for the offense of the burglary of a dwelling in count I. At sentencing, the trial court orally pronounced a sentence of 15 years in prison for this offense. Therefore, the written judgment must be corrected to conform to the oral pronouncement. See Turner v. State, 770 So.2d 1288, 1288 (Fla. 1st DCA 2000) (affirming and remanding in an Anders appeal with instructions to conform the judgment to the oral pronouncement awarding credit for time served). Appellant need not be present for the correction of this clerical error.

AFFIRMED but REMANDED to correct the written sentence in case number 09-00148 to reflect a 15-year prison sentence as to count I.

PADOVANO, WETHERELL, and SWANSON, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Carlo WOODSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1535.
    District Court of Appeal of Florida, First District.
    June 5, 2013.
    Rehearing Denied July 1, 2013.
    Carlo Woodson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Because this petition seeks belated appeal of an order which dismissed a petition for writ of habeas corpus, the petition for belated appeal is dismissed for lack of jurisdiction. See Powell v. Florida Dep’t of Corr., 727 So.2d 1103 (Fla. 1st DCA 1999) (stating that because the proceedings below were civil in nature, the provisions of Florida Rule of Appellate Procedure 9.141(c) are not applicable). This disposition is without prejudice to petitioner’s right to seek relief in the circuit court by a motion for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b). See, Hollingsworth v. Szczecina, 731 So.2d 790 (Fla. 1st DCA 1999); Brown v. State, 708 So.2d 1041 (Fla. 1st DCA 1998); Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983).

VAN NORTWICK, ROBERTS, and ROWE, JJ., concur.


author: GRIFFIN, J.

text:
    Scott SPOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-3209.
    District Court of Appeal of Florida, Fifth District.
    June 7, 2013.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

In his sole point on appeal, Appellant, Scott Spor, asserts that the trial court erred in delegating its authority to set or adjust the restitution payment schedule to the assigned probation officer. Here, the probation order states:

Payment shall be made in the amount of at least $1,000.00 per month for the nine month period commencing with the date of this Order. After the ninth month upcoming, the Defendant’s probation officer may, based upon any change in the Defendant’s financial or other circumstances, increase the Defendant’s minimum monthly payment to an amount deemed appropriate by the probation officer, but not to exceed $6,000.00.

The State properly concedes error. “Florida courts have long held that the determination of a restitution payment schedule is a judicial responsibility that cannot be delegated.” Pearce v. State, 968 So.2d 92, 93 (Fla. 2d DCA 2007). See also Edwards v. State, 892 So.2d 1192, 1194 (Fla. 5th DCA 2005); Gandy v. State, 695 So.2d 792, 793 (Fla. 1st DCA 1997); White v. State, 606 So.2d 1265, 1266 (Fla. 1st DCA 1992); Bowen v. State, 590 So.2d 1067 (Fla. 5th DCA 1991).

REVERSED and REMANDED.

PALMER and TORPY, JJ., concur.


text:
    David A. HARDY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-401.
    District Court of Appeal of Florida, Fifth District.
    June 7, 2013.
    David A. Hardy, Bristol, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal of the September 12, 2012, sentencing order in Case No. 09-CF-500, in the Circuit Court in and for Lake County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

LAWSON, COHEN and BERGER, JJ., concur.


author: COHEN, J.

text:
    David HARRICHARAN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-4390.
    District Court of Appeal of Florida, Fifth District.
    June 7, 2013.

      Robyn M. Blake of Robyn M. Blake, P.A., Miami, for Petitioner.
    David Harrieharan, Blountstown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Respondent.
   COHEN, J.

In 2002, David Harrieharan was convicted for the kidnapping and second-degree murder of Jose Vasquez and sentenced to two concurrent thirty-year terms of imprisonment. Harrieharan appealed his convictions, and this Court per curiam affirmed. Harricharan v. State, 871 So.2d 896 (Fla. 5th DCA 2004).

Since then, Harrieharan has filed four pro se collateral challenges, including four motions for rehearing or rehearing en banc, all of which have been without merit. In his current habeas petition, Harrichar-an made the same arguments raised in prior appeals, prompting this Court to deny the petition and issue a Spencer show-cause order. Instead of a response from Harrieharan, this Court received a response from an attorney. Counsel for Harrieharan argued that a Spencer order cannot be entered against a litigant who is currently represented by counsel. Counsel then proceeded to rehash the same issues already decided in the many years since the 2002 conviction.

We conclude that Harrieharan is abusing the judicial process and should be barred from further pro se filings. The fact that an attorney has responded to our show-cause order does not impact our decision to prohibit Harrieharan from further pro se filings. Therefore, we now prohibit Harrieharan from filing with this Court any more pro se petitions or appeals concerning Seminole County case number 99-711-CFA. The Clerk of this Court is directed not to accept any further pro se filings from Harrieharan that violate this prohibition. Any further pleadings will be rejected unless signed by a member in good standing of The Florida Bar. See Floyd v. State, 62 So.3d 1228 (Fla. 5th DCA 2011).

Future pro se filings PROHIBITED; Certified opinion FORWARDED to Harri-charan and the Department of Corrections.

ORFINGER, C.J., and BERGER, J., concur.

      . State v. Spencer, 751 So.2d 47 (Fla.1999).

      . The attorney filed a notice of appearance after Harrieharan filed the petition and reply, but before this Court issued its order denying the petition.


text:
    Thomas HILL, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0773.
    District Court of Appeal of Florida, First District.
    June 10, 2013.
    Robert Augustus Harper, Jr., of Harper & Harper Law Firm, P.A., Tallahassee, and Robert Augustus Harper, III, of Broad and Cassel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant argues that his convictions for sexual battery.by person in a position of familial or custodial authority (count I) and lewd or lascivious battery (count II) based on a single sexual act violate the constitutional prohibition against double jeopardy. In light of the State’s concession of error, we reverse Appellant’s conviction for count II and remand for the trial court to vacate that conviction.

The double jeopardy violation resulting from Appellant’s dual convictions in this case was not cured by the trial court adjudicating Appellant guilty of both offenses but holding sentencing on count II “in abeyance.” See Bolding v. State, 28 So.3d 956, 957 (Fla. 1st DCA 2010) (“When a jury finds a defendant guilty of two offenses, and the defendant cannot be adjudicated guilty of both due to the constitutional prohibition against double jeopardy, the proper remedy is to vacate the verdict of guilt as to one of the offenses, [citation omitted]. A double jeopardy violation is not rendered harmless simply because the defendant is not sentenced for both of the convictions or because they were not both scored on the guidelines scoresheet.”). We recognize that Appellant’s trial counsel acquiesced to this disposition, but consistent with the State’s concession of error, we conclude that this is one of those rare circumstances in which reversal is warranted based on ineffective assistance of counsel that is apparent on the face of the record. See generally Dailey v. State, 46 So.3d 647 (Fla. 1st DCA 2010) (explaining that appellate court will only consider claims of ineffective assistance of counsel on direct appeal “when the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable”) (quoting Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002)); cf. Rios v. State, 730 So.2d 831 (Fla. 3d DCA 1999) (concluding on direct appeal that defense counsel’s erroneous stipulation that defendant was violent career criminal constituted ineffective assistance because without stipulation defendant could not have been convicted of possession of concealed weapon by violent career criminal).

In sum, we affirm Appellant’s conviction and sentence for sexual battery by person in a position of familial or custodial authority, but reverse Appellant’s conviction for lewd or lascivious battery and remand with instructions that the trial court vacate the latter conviction.

AFFIRMED in part; REVERSED in part; REMANDED with instructions.

CLARK, WETHERELL, and MAKAR, JJ., concur.

      . After Appellant's trial counsel raised the double jeopardy issue at the sentencing hearing, the prosecutor replied:
      I can address that real quick. I believe the law would be here that ... he was found guilty of both, but he should not be sentenced on both. As to Count 2, Count 2 exists if anything ever happens to Count 1, but he would not — should not be sentenced on it, and my thought is I would not include that on the score sheet, because I do believe that that count, in this factual situation, is subsumed in what was found by the jury in Count 1. So my suggestion is that ... goes in abeyance, and only would arise if anything ever happened to Count 1.
      When asked by the trial court whether "that" was consistent with his understanding, Appellant’s trial counsel replied, "It is, Your Hon- or.”


text:
    Bruce Edward McCRAY, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1904.
    District Court of Appeal of Florida, First District.
    June 10, 2013.
    Bruce Edward McCray, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied as premature.

WOLF, PADOVANO, and LEWIS, JJ, concur.


author: VILLANTI, Judge.

text:
    SEMINOLE TRIBE OF FLORIDA, Appellant, v. HENDRY COUNTY, Florida, a political subdivision of the State of Florida; Florida Power & Light Co.; and McDaniel Reserve Realty Holdings, LLC, a Florida limited liability company, Appellees.
    No. 2D12-2307.
    District Court of Appeal of Florida, Second District.
    June 12, 2013.
    Kenneth G. Spillias, Andrew J. Bau-mann, and Tara W. Duhy of Lewis, Long-man & Walker, P.A., West Palm Beach, for Appellant.
    Mark F. Lapp, LaBelle, for Appellee Hendry County.
    Douglas S. Roberts, Vinette D. Godelia, and Brooke E. Lewis of Hopping Green & Sams, P.A., Tallahassee, for Appellee Florida Power & Light Co.
    Charles B. Upton, II, of Upton Law Firm, P.A., Tallahassee, for Appellee McDaniel Reserve Realty Holdings, LLC.
    Ralf Brooks, Cape Coral, for Amici Curiae Sierra Club, Inc., and Conservancy of Southwest Florida, Inc.
   VILLANTI, Judge.

The Seminole Tribe of Florida appeals an order dismissing the Tribe’s third amended complaint after the trial court concluded that the action was preempted by the Florida Electrical Power Plant Siting Act (the PPSA), sections 403.501-518, Florida Statutes (2011). Because we find no preemption on the facts of this case, we reverse.

This case involves the interplay of section 163.3215, Florida Statutes (2011), and sections 403.501-.518. Hendry County has adopted a comprehensive development plan. Section 163.3194(l)(a) provides that once a comprehensive plan has been adopted, all development undertaken and all actions taken in regard to development must be consistent with that comprehensive plan.

McDaniel Reserve Realty Holdings owned land abutting the Tribe’s reservation on one side. In May 2011, at McDaniel’s request, the County passed Ordinance 2011-07, which rezoned eleven parcels of land (3123 acres) from general agricultural use to a Planned Unit Development (PUD). The sole purpose of the rezoning ordinance was to allow construction of an electric power plant on the land. McDaniel subsequently sold the land to Florida Power & Light Company, which could then build a power plant.

The Tribe filed a complaint for declaratory relief pursuant to section 163.3215(3) to challenge the County’s enactment of the ordinance. This statute provides a cause of action to challenge actions perceived as inconsistent with the comprehensive plan. Accordingly, the Tribe’s complaint alleged that the rezoning decision was inconsistent with the County’s comprehensive plan. Thereafter, Florida Power intervened in the case.

In addition to filing the declaratory action, the Tribe filed a petition for writ of certiorari seeking to quash the county ordinance. The circuit court denied certiora-ri. Relevant to this appeal, in the order denying the certiorari petition, the circuit court noted that ultimate approval or denial of a power plant fell under the PPSA and that the PPSA was intended to be a centrally coordinated, one-stop licensing process for power plant projects. The court then opined that in cases such as this one, involving power plants, the procedures set forth in section 163.3215 were thereby preempted or superseded by the PPSA.

Armed with the trial court’s order in the certiorari petition, the County and Florida Power filed a motion to dismiss the Tribe’s third amended complaint in the declaratory action, arguing that the PPSA completely preempted section 163.3215 as a method for challenging the County’s decision to rezone the site to allow the construction of a power plant. The trial court accepted the argument, concluding that “[t]he PPSA provides [the Tribe] with the opportunity to raise the issue of consistency with the Hendry County Comprehensive Plan during the certification process under the PPSA.” The court granted the County’s motion to dismiss with prejudice on the basis of preemption.

In this appeal, the Tribe contends that the PPSA does not preempt or even yet apply here because there has never been a power plant application made under the PPSA. We find the Tribe’s argument legally compelling, requiring us to reverse the order on appeal. To explain why there can be no preemption in this case, we begin with a discussion of several sections of the PPSA. Section 403.502 reads:

The Legislature finds that the present and predicted growth in electric power demands in this state requires the development of a procedure for the selection and utilization of sites for electrical generating facilities and the identification of a state position with respect to each proposed site and its associated facilities .... The Legislature finds that the efficiency of the permit application and review process at both the state and local level would be improved with the implementation of a process whereby a permit application would be centrally coordinated and all permit decisions could be reviewed on the basis of standards and recommendations of the deciding agencies.

Section 403.506(1) then provides:

The provisions of this act shall apply to any electrical power plant as defined herein, except that the provisions of this act shall not apply to any electrical power plant of less than 75 megawatts in gross capacity....

And section 403.510 provides:

(1) If any provision of this act is in conflict with any other provision, limitation, or restriction under any law, rule, regulation, or ordinance of this state or any political subdivision, municipality, or agency, this act shall govern and control, and such law, rule, regulation, or ordinance shall be deemed superseded for the purposes of this act.
(2) The state hereby preempts the regulation and certification of electrical power plant sites and electrical power plants as defined in this act.

(Emphasis added.) Section 403.511 also provides:

(1) Subject to the conditions set forth therein, any certification shall constitute the sole license of the state and any agency as to the approval of the location of the site and any associated facility and the construction and operation of the proposed electrical power plant, except for the issuance of department licenses required under any federally delegated or approved permit program and except as otherwise provided in subsection (4).
(3)The certification and any order on land use and zoning issued under this act shall be in lieu of any license, permit, certificate, or similar document required by any state, regional, or local agency pursuant to, but not limited to, chapter 125, chapter 161, chapter 163, chapter 166, chapter 186, chapter 253, chapter 298, chapter 373, chapter 376, chapter 379, chapter 380, chapter 381, chapter 387, chapter 403, except for permits issued pursuant to any federally delegated or approved permit program and except as provided in chapter 404 or the Florida Transportation Code, or 33 U.S.C. s. 1341.

(Emphasis added.) It is clear from this statutory language that the PPSA is a “ ‘centrally coordinated, one-stop licensing process.’” See Seminole Elec. Coop., Inc. v. Dep’t of Envtl. Prot., 985 So.2d 615, 616 (Fla. 5th DCA 2008) (quoting § 403.510(3)).

Section 403.50665 then sets forth the process to determine if a power plant at a particular site is consistent with the local government’s comprehensive plan. The power plant “applicant shall include in the application a statement on the consistency of the site ... with existing land use plans and zoning ordinances that were in effect on the date the application was filed and a full description of such consistency.” § 403.50665(1). Within forty-five days after the filing of the application, each local government shall file a determination with the department, the applicant, the administrative law judge, and all parties on the consistency of the site with existing land use plans and zoning ordinances that were in effect on the date the application was filed, based on the information provided in the application. § 40S.50665(2)(a). If the local government issues a determination that the proposed site is not consistent with local land use plans and zoning ordinances, the applicant may apply to the local government for the necessary local approval to address the inconsistencies identified in the local government’s determination. § 403.50665(3)(a). If the applicant makes an application to the local government to rezone, the time schedules under the PPSA are tolled until the local government issues its revised determination on land use and zoning or until the applicant otherwise withdraws its application to the local government. § 403.50665(3)(b). Finally, “[i]f any substantially affected person wishes to dispute the local government’s determination, he or she shall file a petition with the designated administrative law judge within 21 days after the publication of notice of the local government’s determination.” § 403.50665(4).

In determining whether a power plant certification application should be approved, the power plant siting board must consider, among several factors, whether the location, construction, and operation of the power plant will “[b]e consistent with applicable local government comprehensive plans and land development regulations.” § 403.509(3)(c). Based on all of the above-quoted statutory language, the County and Florida Power argued below, as they do here, that the PPSA preempted section 163.3215(3) and that the Tribe was asking the trial court to undergo the same analysis that would have to be done by a different state agency under the PPSA. There is, however, one major flaw in the County and Florida Power’s argument and in the trial court’s ruling: they incorrectly assume that the Tribe can challenge the rezoning in the PPSA application process even though the rezoning has already taken place in this case before any PPSA application has been filed. That is not the case.

The language of section 403.50665 provides:

(1) The applicant shall include in the application a statement on the consistency of the site and any associated facilities that constitute a “development,” as defined in s. 380.04, with existing land use plans and zoning ordinances that were in effect on the date the application was filed and a full description of such consistency....
(2)(a) Within 45 days after the filing of the application, each local government shall file a determination with the department, the applicant, the administrative law judge, and all parties on the consistency of the site, and any associated facilities that are not exempt from the requirements of land use plans and zoning ordinances under chapter 163 and s. 380.04(3), with existing land use plans and zoning ordinances that were in effect on the date the application was filed, based on the information provided in the application.

(Emphasis added.) It is clear from the emphasized language that the PPSA process does not afford the Tribe as comprehensive a remedy as allowed by chapter 163. During the PPSA process, the board will have to determine only if the proposed use is consistent with the land use plan and zoning ordinances that are in effect on the date the power plant application was filed. See § 403.508(l)(c) (“The sole issue for determination at the land use hearing shall be whether or not the proposed site or nonexempt associated facility is consistent and in compliance with existing land use plans and zoning ordinances.” (emphasis added)). If the proposed site conforms with existing land use plans and zoning ordinances in effect as of the date of the application, the inquiry ends. § 403.508(l)(e). The power plant siting board will only be concerned with the zoning in effect at the time when the PPSA application is made, not the original zoning that was changed by the May 2011 ordinance. Thus, the County’s rezoning before the filing of a PPSA application directly changed the “baseline” that will be evaluated in the PPSA process.

The provisions of chapters 163 and 403 are distinct. The PPSA process provides a separate and independent path to challenge rezoning decisions that take place within the power plant certification process, but it is not inconsistent with the provisions to challenge rezoning contained in chapter 163.. In re South Broward County Resource Recovery Project Power Plant Siting Certification Application PA 85-21, Case No. 85-1106EPP, 1985 WL 306501 (Fla. DOAH Sept. 18, 1985), illustrates the problem. In that case, Broward County approved rezoning of land to a “Special Use Planned Unit Development District” one year before the PPSA application. Id. at *3. When a concerned group challenged the proposed facility at the subsequent PPSA land use hearing, arguing that it was inconsistent with the existing land use plans and zoning ordinances, the Division of Administrative Hearings rejected its objection because “Broward County’s decision is final, and these proceedings do not provide a forum to collaterally attack it.” Id. at *4. The administrative law judge stated that the sole issue for determination at the land use hearing was whether the proposal was consistent with existing land use plans and zoning ordinances. Id. Notably, footnote al in that case reads:

Section 403.508(2), Florida Statutes, does not provide a forum to review rezoning decisions. Such decisions are peculiarly of local concern, and subject to their own review process. Consequently, while all elements of a comprehensive plan may be germane to the County’s decision to rezone a site or to issue a development order, and made the subject of an appeal from that decision, only the land use element of the plan is pertinent to a land use hearing under section 403.508(2).

(Emphasis added.) The administrative law judge did not rely on preemption to reject the challenge to the rezoning obtained prior to the PPSA application. Rather, he clearly stated that rezoning decisions are “subject to their own review process.” Id. Unless we reverse, the Tribe -will find itself in the same position as the challengers in In re South Broward County Resource Recovery.

In conclusion, based on the statutory language discussed above, there is no question that the PPSA procedures would have applied in this case if Florida Power had requested rezoning of the land after filing a PPSA application — in that case, the PPSA would have preempted a challenge under section 163.3215. But that is not what happened here. McDaniel strategically applied for rezoning before any application had ever been filed under the PPSA. In fact, no such application has yet been filed. Hence, even though the trial court correctly noted that the PPSA is a “centrally coordinated, one-stop licensing process,” in the factual context of this case, the trial court was incorrect in its assessment that preemption could therefore bar a section 163.3215 challenge. Moreover, in the trial court, Florida Power acknowledged that the application for rezoning had been made pre-PPSA application to save time. Florida Power “wanted to have that zoning approval in place so that when the application came forward [it] would not have ... to stop the power plant siting process to go get that approval.” On these facts, therefore, there can be no preemption at this stage of the proceedings. The appellees elected to obtain rezoning outside of the PPSA context, thereby subjecting the County’s decision to challenge under the provisions of section 163.3215(3).

Reversed and remanded for further proceedings consistent with this opinion.

DAVIS and SLEET, JJ., Concur.

      . The power plant will ultimately be subject to approval or disapproval under the PPSA, but no application or notice of intent to file a PPSA application has yet been filed.

      . The Tribe sought second-tier certiorari review with this court. This court denied the petition in January 2013. See Seminole Tribe of Fla. v. Hendry Cnty., 106 So.3d 19 (Fla. 2d DCA 2013).