author: DAMOORGIAN, C.J.

text:
    Jimmy SMITH, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D12-3812, 4D12-3813, 4D12-3814 and 4D12-4174.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2014.
    Rehearing and Rehearing En Banc Denied Aug. 27, 2014.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, C.J.

In this consolidated appeal, Jimmy Smith challenges the denial of his motion to correct illegal sentence filed pursuant to Rule 3.800(b)(2) of the Florida Rules of Criminal Procedure. We reverse because the trial court failed to continue Smith’s youthful offender designation. See Yegge v. State, 88 So.3d 1058, 1059-60 (Fla. 2d DCA 2012); see also § 958.14 Fla. Stat. (2009).

In 2008, Smith was charged with two counts of burglary of a dwelling and two counts of grand theft in two different cases. Smith pled no contest to all of the charges and the trial court withheld adjudication and sentenced him to concurrent youthful offender probation terms.

Thereafter, Smith twice violated his probation. It is the second violation that is relevant to this appeal. On that occasion, Smith was charged with violating the terms of his probation by, among other things, committing new law violations. Smith pled guilty to the new charges and admitted to violating the terms of his probation. With regard to the underlying charges that were subject to the youthful offender sentence, the trial court adjudicated Smith guilty, revoked his probation and youthful offender status, and imposed concurrent state prison sentences — fifteen years for each burglary and five years for each grand theft. The trial court also imposed state prison sentences for the new law violations.

Smith filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). In his motion, Smith argued that he was entitled to retain his youthful offender status as to his original charges even though the court revoked his probation. Smith also argued that the written sentencing order failed to reflect the correct credit for time served on one of his charges. The trial court granted Smith’s motion to correct the credit for time served but denied Smith’s request to reinstate his youthful offender status. This appeal follows.

“ ‘Because a motion to correct a sentencing error involves a pure issue of law, our standard of review is de novo.’ ” Salter v. State, 77 So.3d 760, 764 (Fla. 4th DCA 2011) (quoting Kittles v. State, 31 So.3d 283, 284 (Fla. 4th DCA 2010)). Smith argues that the trial court erred by revoking his youthful offender status as to his original charges because once a defendant is designated a youthful offender, that status cannot be revoked. Relying on Rogers v. State, 972 So.2d 1017 (Fla. 4th DCA 2008), the State counters that Smith’s youthful offender status could be revoked once Smith was charged with and convicted of three new substantive offenses. We reject the State’s reading of Rogers and point to our subsequent decision in St. Cyr v. State, 106 So.3d 487, 489 (Fla. 4th DCA 2013).

When a defendant violates his youthful offender probation by committing a substantive violation, the court is not bound to “‘the usual youthful offender sentence of six years or less’ ” and “can impose up to the statutory maximum for the underlying offenses.” Smith v. State, 109 So.3d 1180, 1181 (Fla. 1st DCA 2013) (quoting Lee v. State, 67 So.3d 1199, 1202 (Fla. 2d DCA 2011)). However, once a trial court imposes a youthful offender sentence, “ ‘it must continue that status upon resentencing after a violation of probation or community control.’ ” St. Cyr, 106 So.3d at 489 (quoting Blacker v. State, 49 So.3d 785, 788 (Fla. 4th DCA 2010)).

We find further support for our conclusion in the Second District’s factually analogous decision in Yegge, 88 So.3d 1058. In Yegge, the defendant was placed on youthful offender probation for armed burglary and manufacture of marijuana. Id. at 1059. The defendant committed a substantive violation of his youthful offender probation when he was subsequently arrested and charged with cocaine possession. Id. The defendant pled guilty to the new charge and the trial court revoked his probation, revoked his youthful offender status, and sentenced him to ten years in prison for the original armed burglary charge. Id. The Second District reversed, holding that although the ten-year prison sentence was legal, the trial court was required to maintain the defendant’s youthful offender status upon resentenc-ing. Id. at 1059-60.

Although the trial court in this case was not required to sentence Smith to a youthful offender sentence of six years or less on his original offenses, under St. Cyr and Yegge, it was error to revoke his youthful offender status. A youthful offender designation carries certain benefits within the criminal justice system that are not available to non-youthful offender prisoners. Yegge, 88 So.3d at 1060 (citing Christian v. State, 84 So.3d 437, 443 (Fla. 5th DCA 2012); Lee, 67 So.3d at 1202 n. 1; Blacker, 49 So.3d at 787 n. 2). Accordingly, we reverse and remand for the trial court to reinstate Smith’s youthful offender status as to his original charges.

Reversed and Remanded.

WARNER and MAY, JJ., concur.

      . Smith's appeals stem from convictions in four separate cases: two counts of burglary of a dwelling and two counts of grand theft (4D12-3813, 4D12-3814); robbery with a firearm (4D12-4174); and burglary of an unoccupied dwelling and grand theft (4D12-3812).

      . A substantive violation "refers exclusively to a violation premised on the commission of a separate criminal act.” State v. Meeks, 789 So.2d 982, 989 (Fla.2001).


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    CITY OF MIAMI, Appellant, v. Cheryl K. HAIGLEY, individually and on behalf of all others similarly situated, Appellees.
    No. 3D13-1382.
    District Court of Appeal of Florida, Third District.
    July 23, 2014.

      Victoria Méndez, City Attorney, and John A. Greco, Deputy City Attorney,
    Warren Bittner, Deputy Emeritus, and Forrest L. Andrews, Assistant City Attorney, for appellant.
    Eaton & Wolk, and William G. Wolk, Miami; Freidin Dobrinsky Brown & Rosenblum, P.A., and Eric Bluestein, for appellees.
    Before ROTHENBERG, SALTER, and LOGUE, JJ.
   ROTHENBERG, J.

The City of Miami (“City”) appeals the trial court’s final summary judgment, which struck down a provision in section 2-234 of the City of Miami Code that requires non-residents of the City to pay $100 more than residents of the City who use the City’s emergency medical transportation services (“non-resident surcharge.”). The trial court struck the nonresident surcharge, finding in part that it is an unauthorized tax, not a user fee, and that even if the higher fee charged nonresidents for the use of the City’s emergency medical transportation services constitutes a user fee, it must be stricken because it violates the plaintiffs’ rights to equal protection under Florida’s Constitution and unconstitutionally impairs intrastate travel. Because we conclude that the fee charged non-City residents who use the City’s emergency medical transportation services is a user fee, not a tax, and it does not violate the constitutional guarantee of equal protection or unconstitutionally burden intrastate travel, we reverse the trial court’s order entering final summary judgment in favor of Cheryl K. Haigley, individually and on behalf of all others similarly situated (“the plaintiffs”), and remand with directions to enter final summary judgment in favor of the City.

HISTORICAL BACKGROUND OF THE CITY’S EMERGENCY MEDICAL TRANSPORTATION SERVICES FEE

In 1992, because “the cost of providing the highest possible fire safety and prevention services [was] steadily rising,” the City passed Ordinance 11007, which amended section 2-88.1 of the City of Miami Code. The ordinance increased the fees charged those who use the emergency medical transportation services provided by the City’s Fire-Rescue Department. The ordinance, which is now codified in section 2-234 of the City of Miami Code, provides:

Sec. 2-234. Emergency medical transportation service fee.
(a) There is hereby established a schedule of fees for use of the emergency medical transportation services of the department of fire-rescue. Such fees shall be charged to each person receiving basic and advance life support transportation service ... ; such schedule of fees being as follows:
(1) Basic life support — Base rate ... .$135.00
(2) Advance life support — Base rate... .235.21
(3) Oxygen ... .22.00
(4) Mileage, per mile-6.60
(5) IV solution .... 22.00
(6) Cardiac monitoring .... 22.00
(7) Cervical collar-22.00
(8) Special handling (extrication, an-tishock trousers, nonbreathing patients and hare-traction splints) ....22.00
(9)Nonresidents of the City of Miami will be assessed a surcharge of ....100.00.
(b) The city manager shall increase the charges for services as set forth in this section when necessary to reasonably cover the cost of providing such services. Whenever such charges are to be increased, the city manager shall file a list of new charges which shall become effective no earlier than 30 days after such filing with the city clerk.

The City currently charges residents and non-residents who use the City’s emergency medical transportation services in accordance with the fee schedule set forth in section 2 — 234(a) (1) — (9). The collected emergency medical transportation services fees are deposited into the City’s General Fund.

FACTS AND PROCEDURAL HISTORY OF THE PRESENT CASE

In March 2010, Cheryl K. Haigley (“Haigley”), a resident of St. Petersburg Beach, Florida, fell and injured herself while in the City of Miami. The City’s • Fire-Rescue Department responded, and Haigley was transported to a local hospital. The City billed Haigley a total of $445 — a $330 “base rate” for “basic life support” services, $15 for mileage, and a $100 non-resident surcharge. Haigley paid the bill in full.

In January 2011, the plaintiffs filed an action against the City, seeking a declaration that the City’s non-resident surcharge is unconstitutional because it violates the right to intrastate travel and the guarantee of equal protection secured by the Florida Constitution (Count I) and because the surcharge is an unauthorized tax, not a user fee (Count II). The plaintiffs sought the return of all non-resident surcharges collected by the City during the four years preceding the filing of the action.

The plaintiffs and the City filed cross-motions for summary judgment. The trial court denied the City’s motion, entered final summary judgment in favor of the plaintiffs, and struck down the provision in section 2-234(a)(9) that establishes the additional non-resident surcharge. The trial court also enjoined the City from further collection of the non-resident surcharge and ordered the City to reimburse the plaintiffs for all non-resident surcharges collected during the four years preceding the filing of the action. The City’s appeal followed.

STANDARD OF REVIEW

Our standard of review of an order granting summary judgment is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000). Additionally, constitutional challenges to statutes or ordinances involve pure questions of law, and therefore, the plaintiffs’ constitutional challenges are also reviewed de novo. See Caribbean Conservation Corp. v. Fla. Fish & Wildlife Conservation Comm’n, 838 So.2d 492, 500 (Fla.2003); Kuvin v. City of Coral Gables, 62 So.3d 625, 629 (Fla. 3d DCA 2010).

ANALYSIS

I. Are the Fees Charged to Non-City Residents Who Use the City’s Emergency Medical Transportation Services a Tax or a User Fee?

A. The Three-Prong Test to Determine whether the Charge is a Tax or a User Fee

In State v. City of Port Orange, 650 So.2d 1 (Fla.1994), the Florida Supreme Court established a three-prong test to determine whether a particular charge is a user fee or a tax. Specifically, the Court held:

[A] tax is an enforced burden imposed by sovereign right for the support of the government, the administration of law, and the exercise of various functions the sovereign is called on to perform....
User fees are charges based upon the proprietary right of the governing body permitting the use of the instrumentality involved. Such fees share common traits that distinguish them from taxes: [1] they are charged in exchange for a particular governmental service [2] which benefits the party paying the fee in a manner not shared by other members of society, and [3] they are paid by choice, in that the party paying the fee has the option of not utilizing the governmental service and thereby avoiding the charge.

Id. at 3 (internal citations omitted); see also Collier Cnty. v. State, 733 So.2d 1012, 1018 (Fla.1999) (“[U]ser fees are similar to special assessments, in that the fee must result in a benefit not shared by persons not required to pay the fee.”); State ex rel. Gulfstream Park Racing Ass’n v. Fla. State Racing Comm’n, 70 So.2d 375, 379 (Fla.1953) (“In common parlance a tax is a forced charge or imposition, it operates whether we like it or not and in no sense depends on the will or contract of the one on whom it is imposed.”); City of Miami v. Quik Cash Jewelry & Pawn, Inc., 811 So.2d 756, 758-59 (Fla. 3d DCA 2002). Therefore, in the instant case, if the emergency medical transportation services fee, which includes the non-resident surcharge, satisfies the three-prong test, it is a user fee, not a tax.

(1) The fee the City charged Haigley was in exchange for a particular governmental service provided to her by the City

Haigley argues, and the trial court found, that the City did not provide her with a particular governmental service in exchange for the $100 non-resident surcharge. Haigley’s argument is fatally flawed.

It is undisputed that the City provided Haigley with a particular governmental service. The City’s Fire-Rescue Department transported Haigley to a medical facility for emergency treatment. The charge assessed for this service was assessed solely to Haigley, not to a non-user of the emergency medical transportation services. Thus, the $445 the City charged Haigley was in exchange for a particular governmental service.

The City provides the same emergency medical transportation services to City residents and non-residents. Section 2-234 merely charges residents and non-residents different rates for utilizing the emergency medical transportation services provided by the City’s Fire-Rescue Department. Although the City charges residents and non-residents different rates for utilizing the same governmental service — emergency medical transportation services — non-residents are nonetheless receiving a particular governmental service in exchange for the fee charged by the City. In other words, Haigley was not charged a fee for the mere availability of the service, but rather for the service that was actually provided to her. Accordingly, we conclude that the City established the first prong set forth in City of Port Orange.

(2) The emergency medical transportation services benefited Haigley in a manner not shared by other members of society

In addressing the second prong set forth in City of Port Orange, the trial court concluded:

The City of Miami non-resident surcharge does not provide a benefit to non-residents in a manner not shared by other users of the City of Miami emergency medical services. Even if the City uses most of the non-resident surcharge money collected to pay for a portion of the overall cost of providing Fire Rescue transportation services to everyone, the surcharge does not benefit the non-residents paying the charge in a manner not shared by others, which is the essence of the second prong of the Supreme Court’s City of Port Orange user fee test.

The trial court unfortunately focused on whether the non-resident surcharge bene-fitted Haigley in a manner not shared by other members of society, rather than focusing on whether the emergency medical transportation services provided by the City benefitted Haigley in a manner not shared by other members of society. As to the emergency medical transportation services provided to Haigley by the City, the answer is obvious — the services Haig-ley received from the City’s Fire-Rescue Department solely benefitted her. No other member of society received or was billed for the services provided to Haigley.

In Quik Cash Jewelry, 811 So.2d at 759, this Court reversed the trial court’s order finding that the fees imposed by the City on pawnshop operators were unconstitutional. This Court, however, found that the fees were user fees, not taxes, because the fees benefitted pawnshop owners in a manner not shared by others. In reaching this conclusion, this Court specifically noted a decision rendered by the Arizona Supreme Court, which held in part as follows:

We think it is clear that the payment which plaintiff is seeking to recover is in no sense a tax, but is rather a fee. In the first place, the necessity of its payment does not arise unless and until the individual requests the public authority to perform some particular service. So long as the service is not asked, the money will never be demanded. In the second place, the service which is requested of the defendant is one which obviously and admittedly will confer a particular benefit on plaintiff alone, and upon no other person, natural or artificial. We hold, therefore, that the amount in controversy was collected from plaintiff as a fee and not as a tax, and as such is not subject, to the constitutional inhibitions imposed upon taxes, but rather to such as may exist as against fees.

Quik Cash Jewelry, 811 So.2d at 759 (footnote omitted) (quoting Stewart v. Verde River Irrigation & Power Dist., 49 Ariz. 531, 68 P.2d 329, 334 (1937)). Similarly, Haigley paid directly for the emergency medical transportation services provided to her and her alone. Thus, the second City of Port Orange prong is also satisfied.

(3) Haigley paid the emergency medical transportation services fee by choice

In addressing whether Haigley paid the emergency medical transportation services fee “by choice,” we must determine whether Haigley, as the party paying the fee, had “the option of not utilizing the governmental service and thereby avoiding the charge.” City of Port Orange, 650 So.2d at 3; see also Quik Cash Jewelry, 811 So.2d at 758 (“[0]ne can avoid a user fee by not seeking the governmental service for which it is charged.”). Of the three prongs set forth in City of Port Orange, this prong is considered the least significant. See I-4 Commerce Ctr., Phase II, Unit I v. Orange Cnty., 46 So.3d 134, 136 (Fla. 5th DCA 2010) (noting that of the three requisite traits for a valid user fee set forth in City of Port Orange, the “most significant of these traits” are the first two).

In Gargano v. Lee County Board of County Commissioners, 921 So.2d 661, 667-68 (Fla. 2d DCA 2006), the Second District Court of Appeal specifically addressed this third prong — whether the fee is paid “by choice.” In Gargano, the issue was whether the toll charged to cross the bridge to or from Sanibel or Captiva Island in Lee County, Florida, was a user fee or a tax. Ms. Gargano argued that because she did not own a boat or a helicopter, and the only way she could reach her home on Sanibel Island was by using the bridge, she had no choice but to pay the toll, and thus, the toll constituted a tax. In rejecting this argument, the Second District stated the following:

It is true that anyone who lives on Sani-bel Island or Captiva Island and does not own a boat or helicopter must pay this toll to reach their home from the mainland. This is not a situation in which the traveler has other, longer roadways to reach the same location. However, the concept of “choice” for defining user fees is designed to distinguish a tax whose payment can be compelled from charges for services that one can avoid. Ms. Gargano can live elsewhere in Lee County. She can choose to stay on the island and not visit the mainland. The County cannot compel her to use the bridge or pay the fee. As a practical matter, she may not see many available options, but as a legal matter this charge is not a tax.

Id. at 668 (emphasis added). As the Second District aptly recognized: “Many user fees are similar in that a true choice does not exist. One cannot realistically choose to forego water or sewer service to a home or avoid user fees for garbage pickup.... These realities do not transform the charges for these services into taxes.” Id. at 668 n. 4.

Haigley clearly had a choice. The record reflects that she was conscious and not otherwise incapacitated when she was transported to the local hospital by the City’s Fire-Rescue Department. Haigley, therefore, was able to elect whether to use the emergency medical transportation services offered by the City’s Fire-Rescue Department.

Nonetheless, the incapacitation of an individual who may not be able to communicate with the City’s Fire-Rescue personnel would not require a finding that the nonresident user of the City’s emergency medical transportation services had no choice. As explained in Gargano, an individual can choose whether or not to enter a particular city. The choice is hers to make, not the City’s. The City does not bar non-residents from entering or require that they use the City’s emergency medical transportation services in the event they suffer an unfortunate accident, illness, or injury, and the City will provide the same emergency medical transportation services to residents and non-residents alike.

As the Second District noted in Garga-no, while the option may not appear to be a realistic one, it is nonetheless an available option. Haigley’s choice whether or not to enter the City does not differ from that of Ms. Gargano, who had to choose whether to move from Sanibel Island, never leave Sanibel Island to enter the mainland, or pay the toll to travel to and from Sanibel Island. Haigley’s choice is certainly an easier and more realistic one to make than Ms. Gargano’s choice or the choice to forego water and sewer services to avoid a service fee. The City has, therefore, established the third prong set forth in City of Port Orange.

Because the non-resident surcharge satisfies the three-prong test set forth in City of Port Orange, it is a user fee, not a tax. We now address the plaintiffs’ remaining arguments.

B. The Transfer of the Collected Fees into the City’s General Fund

Haigley contends that because the emergency medical transportation services fees collected by the City are placed into the City’s General Fund, they are converted into a tax. However, the Florida Supreme Court in Crist v. Ervin, 56 So.3d 745 (Fla.2010), has already rejected this argument. In Crist, the Florida Supreme Court addressed whether several statutes that require that a portion of civil action filing fees be transferred into the State of Florida’s general revenue fund imposed an unconstitutional tax and denied access to courts. The Florida Supreme Court, relying in part on City of Port Orange, held that the statutes in question did not constitute an unconstitutional tax on their face. Id. at 748. Further, the Court found:

[A] statutory filing fee is not considered an unconstitutional tax repugnant to court access if the fee is used to fund the costs of the administration of justice. There is no requirement in the Florida Constitution that the very money paid for filing fees be used to fund the administration of justice. Money is fungible. Once the filing fees are commingled with other state money in the general revenue fund, the filing fees lose their separate character and become interchangeable with the other state money. Therefore, the Legislature would be using the filing fees to fund the administration of justice if it funds the justice system at a level at least equal to the amount of filing fees that is commingled with other state money in the general revenue fund.

Crist, 56 So.3d at 749 (emphasis added) (citations omitted). The Court also concluded that the statutes were constitutional as applied “[b]ecause the Legislature funded the cost of the administration of justice with far more than the amount of filing fees deposited into the general revenue fund.” Id. at 750.

In the instant case, it is undisputed that the City’s Fire-Rescue Department budget comes from the City’s General Fund. The collected emergency medical transportation services fees, including the non-resident surcharge, are transferred into the City’s General Fund, and the collected fees are used to help offset the cost of providing Fire-Rescue transportation services and to help defray the costs of purchasing, maintaining, and repairing the equipment necessary to provide the emergency medical transportation services set forth in section 2-234(a).

The City’s costs to fund the Fire-Rescue Department substantially outweigh the amount collected under the surcharge. In 2010, the City spent nearly $8.2 million on Fire-Rescue services. Of that amount, only $42,000 came from non-resident surcharges — less than one percent of the total expenditure. Although the record is somewhat sparse, based on the City’s responses and the limited financial information in the record, it is undisputed that the City funds its Fire-Rescue Department at a level far in excess of the amounts collected by the City through the fees it charges users of its emergency medical transportation services. Based on the analysis set forth in Crist, we conclude that the collected user fees, including the non-resident surcharges, are not transformed from a user fee into a tax simply because the collected fees are deposited into the City’s General Fund.

II. Does the Higher Rate Charged to Non-Residents Who Use the City’s Emergency Medical Transportation Services Violate Florida’s Constitutional Guarantee of Equal Protection or Burden the Fundamental Right to Intrastate Travel?

The trial court also found that the non-resident surcharge, even if considered a user fee, violates Florida’s equal protection clause and unconstitutionally burdens the fundamental right to intrastate travel. In performing our constitutional analysis, we begin, as we must, with our recognition that properly enacted acts of legislation, including ordinances, are presumptively constitutional. Kuvin, 62 So.3d at 632 (holding that ordinances “enjoy a presumption in favor of constitutionality”); City of Pompano Beach v. Capalbo, 455 So.2d 468, 469 (Fla. 4th DCA 1984) (“Because a municipal council, like the legislature, would not knowingly enact an unconstitutional measure, appellate courts will indulge every reasonable presumption in favor of an ordinance’s constitutionality.”); see also State v. Sawyer, 346 So.2d 1071, 1072 (Fla. 3d DCA 1977). Accordingly, the party “challenging the constitutionality of an ordinance has the burden of proving its invalidity.” Gates v. City of Sanford, 566 So.2d 47, 49 (Fla. 5th DCA 1990); see also City of Miami Beach v. Texas Co., 141 Fla. 616, 194 So. 368, 377 (1940) (“One attacking the validity of an ordinance has the burden of establishing its invalidity when such ordinance appears on its face to have been regularly enacted.”). Haigley has not satisfied her burden for either of her constitutional challenges.

A. Equal Protection

Haigley argued below, and the trial court found, that the application of section 2-234(a)(9), which provides for an additional fee to be paid by non-residents who use the City’s emergency medical transportation services, violates Florida’s constitutional guarantee of equal protection. Art. I, § 2, Fla. Const. We disagree.

The Florida Constitution’s Equal Protection Clause provides, in relevant part: “All natural persons, female and male alike, are equal before the law .... No person shall be deprived of any right because of race, religion, national origin, or physical disability.” Art. I, § 2, Fla. Const. “‘Equal protection [however] is not violated merely because some persons are treated differently than other persons. It only requires that persons similarly situated be treated similarly.’ ” Troy v. State, 948 So.2d 635, 645 (Fla.2006) (quoting Duncan v. Moore, 754 So.2d 708, 712 (Fla.2000)); see also Jackson v. State, 137 So.3d 470, 474 (Fla. 4th DCA 2014) (“Equal protection does not require identity of treatment. It only requires that the distinction have some relevance to the purpose for which the classification is made, and that the different treatments be not so disparate as to be wholly arbitrary.” (quoting State v. Andersen, 208 So.2d 814, 820 (Fla.1968))). Indeed, all legislation classifies and discriminates against a distinct group of individuals: Florida’s criminal laws discriminate quite harshly against murderers and thieves, while zoning ordinances may negatively impact large business owners. However, because the judiciary defers to the legislature to determine which groups and conduct to regulate, we uphold legislation that has “some rational relationship to a legitimate state purpose,” id. (quoting Westerheide v. State, 831 So.2d 93, 110 (Fla.2002)), unless the legislation’s classification is based on a suspect classification or a fundamental right. Estate of McCall v. United States, 134 So.3d 894, 901 (Fla.2014) (“Unless a suspect class or fundamental right protected by the Florida Constitution is implicated by the challenged provision, the rational basis test will apply to evaluate an equal protection challenge.”)

The basis of Haigley’s equal protection challenge is the disparate treatment between residents and non-residents of the City. However, residency (or non-residency) is not a suspect classification. See Art. I, § 2, Fla. Const, (defining the protected classes as “race, religion, national origin, or physical disability”). Accordingly, the rational basis test applies, and the ordinance will be upheld unless it has no rational and reasonable relationship to a legitimate state objective or it is found to be arbitrary or capricious.

When determining whether the legislation survives the highly deferential rational basis test, the first step is to “identify!] a legitimate government purpose which the governing body could have been pursuing.” WCI Cmtys., Inc. v. City of Coral Springs, 885 So.2d 912, 914 (Fla. 4th DCA 2004). “The second step of the rational basis test asks whether a rational basis exists for the enacting government body to believe that the legislation would further the hypothesized purpose.” Id.

In passing Ordinance 11007, which increased fees related to emergency medical transportation services and added the non-resident surcharge, the Commission of the City of Miami recognized that the “City must increase specific fees in order to continue to provide said services.” The distinction that the City’s Commission has drawn between residents and non-residents by charging non-residents an additional $100 for their use of the City’s emergency medical transportation services certainly “bear[s] some rational relationship to a legitimate state purpose.” Estate of McCall, 134 So.3d at 927 (quoting Duncan v. Moore, 754 So.2d 708, 712 (Fla.2000)). Namely, through the payment of ad valorem taxes, the City’s residents have already contributed to the funding of the City’s Fire-Rescue Department. Residents pay for the services provided by the City’s Fire-Rescue Department regardless of whether or not they ever use these services. Residents who use the City’s emergency medical transportation services are charged a user fee in addition to the ad valorem taxes they have already been assessed to ensure the availability of such services. Requiring non-residents, who use and personally benefit from the service provided to them by the City, to pay an additional $100 for the service furthers the City’s interest of being able to continue providing emergency transportation services to everyone in need of the services, regardless of whether the person is a resident or a non-resident.

The City’s residents, users and nonusers of emergency medical transportation services alike, more than make up for the additional $100 surcharge charged non-resident users by contributing a far greater amount to the City’s overall emergency services budget. The base rate paid by individuals using the City’s emergency medical transportation services is insufficient to cover the total cost, and the City could have properly determined that an extra $100 was necessary to offset that additional cost since non-residents do not contribute through the payment of ad valo-rem taxes. Thus, the ordinance satisfies the rational basis test, and therefore, there is no equal protection violation.

The trial court below relied heavily on Hamilton v. Collins, 114 Fla. 276, 154 So. 201 (1934), and Harper v. Galloway, 58 Fla. 255, 51 So. 226 (1910), to support its conclusion that the ordinance violated the principles of equal protection. In Hamilton, the Florida Supreme Court found that the ordinance in question violated equal protection by allowing bread and pastry merchants with an established place of business within the city to pay a lower fee for their business license than bread and pastry merchants who did not have an established place of business within the city. Hamilton, 154 So. at 283-84. Similarly, in Harper, the Florida Supreme Court struck down a local Marion County game law requiring non-residents of Marion County to provide notice and pay a license fee to hunt game in Marion County. Harper, 51 So. at 228-29.

These cases, however, are distinguishable because they involve the payment of fees for a license to engage in independent activities (carrying on business and hunting) rather than the payment of a user fee for a service provided directly by the government (emergency medical transportation services). Additionally, although, Harper and Hamilton have not been explicitly overruled, their holdings and rationale predate the 1937 shift away from the courts’ laissez-faire attitude towards legislation, which heavily scrutinized economic regulations. See Nat’l Fed’n of Indep. Bus. v. Sebelius, — U.S.-, 132 S.Ct. 2566, 2609, 183 L.Ed.2d 450 (2012) (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part) (“Since 1937, our precedent has recognized Congress’ large authority to set the Nation’s course in the economic and social welfare realm.”); see also Honeywell, Inc. v. Minnesota Life & Health Ins. Guar. Ass’n, 110 F.3d 547, 554-55 (8th Cir.1997) (explaining that prior Supreme Court holdings, although never explicitly overruled, were no longer instructive based on the Court’s shift in economic jurisprudence following the Lochner era in 1937); Sasso v. Ram Prop. Mgmt., 431 So.2d 204, 211-216 (Fla. 1st DCA 1983) (discussing the history and evolution of both the federal and Florida equal protection clauses).

The City had legitimate objectives and a rational basis for passing the ordinance. Thus, the plaintiffs have been provided equal protection under the law.

B. Intrastate Travel

In State v. J.P., 907 So.2d 1101, 1113 (Fla.2004), the Florida Supreme Court concluded that the “right to intrastate travel in Florida is clear.” The Court poetically recognized that:

Hailing a cab or a friend, chatting on a public street, and simply strolling aimlessly are time-honored pastimes in our society and are clearly protected under Florida as well as federal law. All Florida citizens enjoy the inherent right to window shop, saunter down a sidewalk, and wave to friends and passersby with no fear of arrest.

Id. (emphasis in original) (quoting Wyche v. State, 619 So.2d 231, 235 (Fla.1993)). Thus, the Florida Supreme Court in J.P. examined the burden placed on a juvenile’s right to privacy, freedom to associate with persons of his or her own choosing, and freedom of movement when determining the constitutionality of an ordinance establishing a curfew for juveniles. Id.

We conclude that the fee charged non-residents who use the City’s emergency medical transportation services does not implicate the right to intrastate travel. The City’s ordinance does not burden a non-resident’s right to enter or freely move throughout the City. Rather, the challenged ordinance merely charges nonresidents an additional $100 for emergency medical transportation services if they utilize such services when visiting the City. Unlike the curfew ordinance in J.P. that prohibited juveniles from being in or remaining in a public place between the hours of 11:00 p.m. and 6:00 a.m. and provided criminal sanctions for violations of the ordinance, the City’s surcharge in the instant case does not legally or practically restrict a non-resident’s right to move about the state of Florida or the City.

Historically, the cases in which the right to travel has been implicated generally involve residency requirements that burdened the right to migrate. The United States Supreme Court has consistently distinguished between requirements applied differently between residents and non-residents, and requirements such as durational requirements or determinations made based on the time the individual migrated into the state.

We have always carefully distinguished between bona fide residence requirements, which seek to differentiate between residents and nonresidents, and residence requirements, such as dura-tional, fixed date, and fixed point residence requirements, which treat established residents differently based on the time they migrated into the State.

Attorney Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 904 n. 3, 106 S.Ct. 2317, 90 L.Ed.2d 899 (1986).

Whereas durational residency requirements that deprive new residents of important benefits or penalize new residents for exercising their rights to migrate have been struck down, bona fide residence requirements have been found not to burden or penalize interstate (or intrastate) travel, because any person is free to move to a state (or city) to establish residence there. For example, the United States Supreme Court has found that even a temporary deprivation of life’s necessities or important rights by a durational residency requirement may unconstitutionally penalize migration. See Dunn v. Blumstein, 405 U.S. 330, 333, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (concluding that a durational residency requirement to establish the eligibility to vote was an unconstitutional burden on the right to migrate).

Conversely, residency requirements that are uniformly applied and which protect the services provided to state or city residents have generally been found not to burden or penalize interstate (or intrastate) travel.

A bona fide residence requirement, appropriately defined and uniformly applied, furthers the substantial state interest in assuring that services provided for its residents are enjoyed only by residents.... [Such a requirement] does not burden or penalize the constitutional right of interstate travel, for any person is free to move to a State and to establish residence there.

Martinez v. Bynum, 461 U.S. 321, 328-29, 103 S.Ct. 1838, 75 L.Ed.2d 879 (1983) (footnotes omitted). For example, in Baldwin v. Fish & Game Commission of Montana, 436 U.S. 371, 391-92, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978), the United States Supreme Court found constitutional Montana’s recreational hunting licensing laws that limited the number of hunting licenses made available to non-residents and required non-residents to pay a higher fee for such license than Montana residents.

The City’s ordinance in the instant case does not in any way restrict a non-resident’s right to enter or move throughout the City or the state of Florida. The City’s emergency medical transportation services are readily available to residents and non-residents alike. Thus, the City’s ordinance does not unconstitutionally burden intrastate travel.

CONCLUSION

The City’s emergency medical transportation services fee, including the $100 nonresident surcharge, is a user fee — not a tax — because it satisfies the three-prong test set forth in City of Port Orange. The City’s ordinance is a valid user fee as it does not violate the constitutional guarantee of equal protection or unconstitutionally burden intrastate travel. Accordingly, we reverse the trial court’s order entering final summary judgment in favor of the plaintiffs and remand with directions to enter final summary judgment in favor of the City.

Reversed and remanded with directions.

      . The City also appealed an order granting class certification and an order granting the plaintiffs’ motion to amend the summary judgment order. As the City has not raised any issues relating to these orders, we conclude that the City has abandoned any issues concerning these orders. See City of Miami v. Steckloff, 111 So.2d 446, 447 (Fla.1959) ("An assigned error will be deemed to have been abandoned when it is completely omitted from the briefs.”); N.W. v. Dep’t of Children & Families, 865 So.2d 625, 626 (Fla. 4th DCA 2004) (holding that issues not raised in the initial brief are deemed abandoned).

      . See § 401.23(7), Fla. Stat. (2013) (defining "basic life support”); § 401.23(1), Fla. Stat. (2013) (defining "advanced life support”).

      . The fees listed in section 2-234(a) have since been increased pursuant to section 2-234(b).


text:
    Elizabeth PADRON, Appellant, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL PROTECTION, and Carl J. Ekblom, Appellees.
    No. 3D13-2446.
    District Court of Appeal of Florida, Third District.
    July 23, 2014.
    Rehearing Denied Aug. 13, 2014.

      The Silver Law Group, P.A., and Patricia M. Silver and John W. Annesser, Isla-morada, for appellant.
    Matthew Z. Leopold, Tallahassee, General Counsel, and David K. Thulman, Tallahassee, Senior Assistant General Counsel, for appellee State of Florida, Department of Environmental Protection; Hershoff, Lupino & Yagel, LLP, and James S. Lupino, and Brittany N. Miller, Tavernier, for appellee Carl J. Ekblom.
    Before SUAREZ, ROTHENBERG and LOGUE, JJ.
   ROTHENBERG, J.

Elizabeth Padrón (“Padrón”) appeals from a Final Order of the Department of Environmental Protection (“the DEP”) adopting the recommended order entered by an administrative law judge (“ALJ”) with the Division of Administrative Hearing (“DOAH”). The ALJ recommended that the DEP approve its earlier determination that Carl J. Ekblom (“Ekblom”) does not need to obtain an Environmental Resource Permit (“ERP”) to install a proposed cradle boat lift adjacent to an existing finger pier because Ekblom established the four criteria set forth in Rule 40E-4.051(3)(b) of the Florida Administrative Code, including that the proposed cradle boat lift will not “create a navigational hazard.” We affirm.

I. Facts and Procedural History

Ekblom and Padrón own adjacent lots that sit at the western end of Plantation Lake, a man-made canal in Islamorada. Both properties have marginal docks running along their shorelines that meet at an acute angle, and Padrón has a 38-foot finger pier that juts out from the vertex of the angle. The north side of the finger pier faces Ekblom’s property, whereas the south side faces Padron’s property. Pa-dron’s immediate predecessor in interest (Buchanan) granted Ekblom an easement relating to the finger pier, which provides in part: “The parties agree that BUCHANAN, their heirs, successors and assigns, shall dock their boats on the south side of the dock and EKBLOM, their heirs, successors and assigns shall dock their boats on the north side of the dock.” (emphasis in original). In 2000, with the previous owner’s permission, Ekblom installed a jet-ski lift on the finger pier, and since then, Ekblom has moored a 35 to 36-foot boat on the north side of the finger pier for over a decade without a navigational incident.

In August 2012, Ekblom filed an Environmental Resource Permit Application with the DEP to install the proposed cradle lift on the north side of the finger pier approximately two feet within Ekblom’s property line in a location that will allow straight-in ingress and egress. The proposed cradle lift, which will basically consist of four pilings embedded into the man-made canal in the form of a rectangle with an aluminum mechanism that will lift Ek-blom’s boat in and out of the water, will not be attached to the finger pier.

Later that month, Celia Hitchins (“Ms. Hitchins”), an Environmental Specialist II with the DEP, notified Ekblom that an ERP is not needed for the proposed project because the four criteria set forth in Rule 40E-4.051(3)(b) were established.

Padrón then petitioned for an administrative hearing challenging the DEP’s determination and asserted that there are numerous disputed issues of fact, including whether the proposed cradle lift will “create a navigational hazard.” At a hearing before the ALJ, the parties’ experts testified as to their understanding of the term “navigational hazard” because it is not defined in Rule 40E-4.051. Ekblom’s expert, Robert Camuccio, testified that a “navigational hazard” is “[sjomething ... that the prudent mariner would have a difficult time navigating by safely.” The DEP’s expert, Ms. Hitchins, defined “navigational hazard” as “something that would cause a safety issue. It would cause some sort of precluding of other vessels’ access.” Similarly, Padron’s expert, Edward Danti (“Mr. Danti”), defined “navigational hazard” as “something that either impedes or will cause hazard to vessels or other traffic in a particular location.”

Ms. Hitchins testified that the proposed cradle boat lift would not be any more intrusive than a boat moored in the same area. Similarly, Mr. Camuccio agreed that a portion of navigable water would be occupied regardless of how Ekblom’s boat is secured — moored to the finger pier or placed on a cradle boat lift — and that occupying a portion of navigable water does not necessarily mean that a navigational hazard is created. Mr. Camuccio and Ms. Hitchins opined that the proposed cradle boat lift would not create a “navigational hazard,” whereas Padron’s expert, Mr. Danti, opined that it would.

In June 2013, the ALJ issued his recommended order. The ALJ recognized that the parties presented conflicting expert testimony as to whether the cradle boat lift will create a “navigational hazard,” but he relied on the testimony presented by Ekblom’s expert (Mr. Camuccio) and the DEP’s expert (Ms. Hitchins) in finding that the cradle boat lift will not “create a navigational hazard.” The ALJ recommended that the DEP approve its earlier determination that Ekblom’s proposed cradle boat lift is exempt from ERP requirements because the four criteria set forth in Rule 40E^L051(3)(b) were met. In addressing whether the proposed cradle lift will “create a navigational hazard,” the ALJ made numerous factual findings, including that Ekblom has moored a 35 to 36-foot boat on the north side of the finger pier for the past twelve years without a navigational incident, but has since purchased a smaller boat; there are no channel markers in the middle of the basin; the basin’s entrance is on the eastern end, not on the western end where the finger pier is located; the inlet into the basin is small, and therefore, the size of boats that can enter the basin is limited; the water in the basin is calm; when Ekblom’s boat is on the cradle boat lift, the boat will be in the same position where Ekblom has moored his boat to the finger pier; the finger pier is located in an area where only a few boats would navigate; Ekblom’s neighbor to the northeast, Mr. Wright, docks a 30-foot boat on the seawall of his house, and he has not objected to the proposed cradle boat lift although he has to back his boat away from the seawall to maneuver into the basin; Ekblom will never have to navigate his boat on the south side of the finger pier; and Ekblom will not use his marginal dock to moor a boat once the proposed cradle boat lift is installed. Based on these findings and the expert testimony of Ms. Hitchins and Mr. Camuc-cio, the ALJ determined that “the more persuasive evidence supports a conclusion that the boat lift will not cause a navigation hazard. Even if it arguably causes a slight inconvenience, this does not rise to the level of a navigational hazard.”

The ALJ also addressed a previous case before the DEP, Rosenblum v. Zimmet, 2007 WL 3087150, Case No. 06-2859 (Fla. DOAH Oct. 23, 2007), adopted, 2007 WL 4984551, Case No. DEP07-1347 (Fla. DEP Dec. 2007). The ALJ determined that, although there are similarities between Rosenblum and the instant case, Rosen-blum is distinguishable.

Padrón filed numerous exceptions to the ALJ’s recommended order. In the Final Order, the Secretary of the DEP denied all of Padron’s exceptions, adopted the ALJ’s recommended order in its entirety, and incorporated it into the Final Order. Padron’s appeal followed.

“In an appeal from final administrative action, [an appellate] court reviews findings of fact made by the ALJ and adopted by the administrative agency to determine whether they áre supported by competent, substantial evidence.” Peace River/Manasota Reg’l Water Supply Auth. v. IMC Phosphates Co., 18 So.3d 1079, 1082 (Fla. 2d DCA 2009); see also § 120.68(7)(b), Fla. Stat. (2013); Agency for Persons with Disabilities v. C.B., 130 So.3d 713, 717 (Fla. 1st DCA 2013); U.S. Blood Bank, Inc. v. Agency for Workforce Innovation, 85 So.3d 1139, 1142 (Fla. 3d DCA 2012); Payne v. City of Miami, 52 So.3d 707, 711-12 (Fla. 3d DCA 2010). However, an appellate court reviews the agency’s conclusions of law de novo. § 120.68(7)(d); C.D. v. Agency for Persons with Disabilities, 95 So.3d 383, 384 (Fla. 3d DCA 2012); U.S. Blood Bank, 85 So.3d at 1142; Peace River/Manasota Reg’l Water Supply Auth., 18 So.3d at 1082. Importantly, an “appellate court affords great weight to an agency’s construction of a rule that the agency is charged with enforcing and interpreting, but the court may depart from that construction if it is clearly erroneous.” Collier Cnty. Bd. of Cnty. Comm’rs v. Fish & Wildlife Conservation Comm’n, 993 So.2d 69, 72 (Fla. 2d DCA 2008); see also Summer Jai Alai Partners v. Dep’t of Bus. & Prof’l Regulation, Div. Pari-Mutuel Wagering, 125 So.3d 304, 307 (Fla. 3d DCA 2013).

The primary issue raised in this appeal is whether the ALJ’s finding — that the proposed cradle boat lift will not “create a navigational hazard” — which was adopted by the DEP, is supported by competent, substantial evidence. See § 120.57(1X0, Fla. Stat. (2013) (“The [administrative] agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.”).

Without rehashing the facts sets forth above, it is clear that the ALJ’s finding that the proposed boat lift will not create a “navigational hazard” is supported by competent, substantial evidence. Despite the conflicting evidence, it was within the ALJ’s province to reject Padron’s expert’s opinion and to accept the DEP’s and Ek-blom’s experts’ opinions. See Stinson v. Winn, 938 So.2d 554, 555 (Fla. 1st DCA 2006) (“Credibility of the witnesses is a matter that is within the province of the administrative law judge, as is the weight to be given the evidence. The judge is entitled to rely on the testimony of a single witness even if that testimony contradicts the testimony of a number of other witnesses.”).

Lastly, we address Padron’s argument that the ALJ erroneously interpreted Rosenblum. In Rosenblum, Zimmet filed an application requesting an ERP exemption to build a marginal dock and an elevator boat lift on his property. Rosenblum, 2007 WL 4984551 (Fla. Dep’t Envtl. Prot. 2007). The DEP notified Mr. Zimmet that the proposed project was exempt from the need to obtain an ERP under Rule 40E-4.051(3)(c), which provides that an ERP is not needed to construct a private dock in “artificially created waterways where construction will not violate water quality standards, impede navigation, or adversely affect flood control.” (emphasis added). As requested by Mr. Rosenblum, an administrative hearing was conducted before an ALJ. In its recommended order, the ALJ determined that Zimmet failed to establish that the proposed marginal dock and elevator boat lift would not “impede navigation” to and from the south side of the existing finger pier, and therefore, Zimmet was not entitled to an ERP exemption under Rule 40E-4.051(3)(c). Thereafter, the DEP adopted the ALJ order in its entirety and ruled that Zimmet was not entitled to the exemption.

In the instant case, Padrón asserts that Rosenblum stands for the proposition that when access to one side of a pier is impeded, a “navigational hazard” is created as a matter of law. Rosenblum, however, does not stand for this proposition.

First, Rosenblum was decided utilizing the “impede navigation” standard set forth in Rule 40E-4.051(3)(c), not the “navigational hazard” standard in Rule 40E-4.051 (3)(b) that was applied in the instant case. Further, although the ALJ in Rosenblum found that Zimmet’s proposed marginal dock and elevator boat lift would “impede navigation,” the ALJ did not find that a navigational impediment necessarily creates a “navigational hazard.” In fact, Rosenblum does not address whether there was a “navigational hazard” at all. Second, regardless of the applicable standard — “impede navigation” or “navigational hazard” — as the ALJ recognized, the Rosenblum case is “clearly distinguishable.” The distinctions can be easily seen in the aerial photographs of the Rosen-blum/Zimmet and the Padron/Ekblom properties as the configurations of the docks and lifts in the properties differ greatly. In Rosenblum, the ALJ’s finding that the proposed marginal dock and elevator boat lift would “impede navigation” was based on the specific facts and configurations of the proposed marginal dock, the elevator boat lift, and the existing finger pier, which are clearly not present in the instant case. Thus, Rosenblum is not applicable and does not require a contrary finding.

The remaining arguments raised by Pa-drón do not merit discussion. Accordingly, we affirm the DEP’s Final Order.

Affirmed.

      . Rule 40E-4.051 provides in part as follows:
      Exemptions From Permitting.
      The District will exempt from regulation under Section 373, Part IV, F.S., those activities that the District determines will have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the district. Exemptions from permitting ... are set forth below....
      (3) Docking Facilities and Boat Ramps.

      (b) The installation or repair of private docks, piers and recreational docking facilities .... To qualify for this exemption, any such structure:
      1. Shall be used for recreational, noncommercial activities;
      2. Shall be constructed or held in place by pilings, including floating docks, so as not to involve filling or dredging other that [sic] necessary to install the pilings;

        3. Shall not substantially impede the flow of water or create a navigational hazard; and
      4. ... Activities associated with a dock shall include the construction of structures attached to the dock which are only suitable for the mooring or storage of boats (i.e., boatlifts).


author: EMAS, J.

text:
    Pierson VILLALOBOS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-614.
    District Court of Appeal of Florida, Third District.
    July 23, 2014.

      Carlos J. Martinez, Public Defender, and James Moody, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before SUAREZ, EMAS and SCALES, JJ.
   EMAS, J.

Appellant, Pierson Villalobos (“Villalo-bos”) appeals from a judgment of conviction and sentence, challenging the trial court’s failure to dismiss a juror after that juror revealed, during the trial, his knowledge of and relationship with a testifying state witness.

Villalobos was charged with two counts of DUI manslaughter following a car accident in Monroe County. During voir dire, the court read a list of potential witnesses to the jury venire and specifically inquired whether any of the venire members knew of, or had a prior business or social relationship with, anyone on the witness list. The list included blood analyst “Jody Gyokeres of Marathon.” Venire members James Stelzer and John Arvidson remained silent in response to the court’s question and did not acknowledge that they knew Ms. Gyokeres. Stelzer and Ar-vidson were both eventually selected as jurors.

Trial ensued and the State presented evidence that while intoxicated and driving in Monroe County, Villalobos crossed the median line and struck another car, killing both the driver and passenger. On the third day of trial, Trooper Elmo Williams was called to the stand and testified that after responding to the accident scene, he accompanied Villalobos to the hospital to conduct a blood draw, at which time he observed Gyokeres draw Villalobos’ blood. During a break in the trooper’s testimony, and outside the presence of the other jurors, juror Stelzer revealed to the court and counsel that he knew witness Gyok-eres. During the questioning that followed, Stelzer explained that he believed he used to live in the same building as Gyokeres’ boyfriend, that Stelzer and Stel-zer’s wife had known the couple for a few years, they had dinner together a couple of times, and that a few days before the trial, Stelzer’s wife attempted to make plans with Gyokeres. In response to further questioning, Stelzer said he did not believe his relationship with Gyokeres would affect his ability to render a fair and impartial decision. Nonetheless, and at the defense’s request, the trial court dismissed Stelzer due to his relationship with the witness.

Thereafter, trial resumed with the remainder of Trooper Williams’ testimony. During a break at the conclusion of the trooper’s testimony, juror Arvidson asked to speak to the court. Outside the presence of the other jurors, Arvidson revealed the following information to the court and counsel:

—Arvidson had been employed by Gyokeres as a carpenter/handyman to perform work on her house at various times over the past four years;
—Arvidson saw Gyokeres around town every three to four months;
—Arvidson performed repair work for Gyokeres approximately two months before the trial;
—Gyokeres paid Arvidson directly, writing him checks for the work performed;
—Arvidson would occasionally run into Gyokeres at the grocery store; and
—The last time Arvidson saw Gyok-eres was at the grocery store about two weeks before the trial. At that time Arvidson gave Gyokeres a hug because he knew she was undergoing cancer treatment.

The court, the State and the defense inquired as to Arvidson’s ability to be fair and impartial in deciding this case despite Arvidson’s relationship with Gyokeres. Arvidson consistently answered that he could be fair and impartial, and that “she’s just another person testifying to me.”

The defense moved to dismiss Arvidson, contending that despite his claim that he could be impartial, Arvidson was employed by Gyokeres, had social interaction with her, and was sympathetic to Gyokeres’ medical condition. The State, on the other hand, believed this situation was different from the prior juror (Stelzer), since Arvidson did not have an ongoing social relationship with Gyokeres, the relationship was limited to some random repair work, and Arvidson would weigh her credibility in the same manner as any other witness. The trial court reasoned as follows:

THE COURT: I agree. Mr. Stelzer indicated that he had a social relationship with that witness, that his wife spoke with her, that they were in more frequent contact on a social basis, that he did offer an opinion about her veracity-
[Arvidson] had indicated no social interaction other than what might occur in a small community, which we are. He did work for her during which their exchange had to do with receiving payment, perhaps talking about a trip she was taking. He ventured no opinion about her trustworthiness or lack of trustworthiness and expressed absolutely no doubt about his ability to weigh her testimony. He did not have any specific knowledge of what her job is or was at the hospital, and what he did venture as what her job may have been is certainly nothing that she was involved with in this incident. And I’m going to allow him to keep his seat.

In announcing its ruling, the court did not determine whether the defense would likely have used a peremptory challenge to strike juror Arvidson had his relationship with Gyokeres been disclosed during voir dire.

Gyokeres was subsequently called to the stand. She testified that although she did not actually remember performing the blood draw, she was the person who drew the blood, that the blood drawn was from Villalobos, and that she followed the correct procedures because she signed off on the paperwork. Her testimony served to establish a chain of custody for the blood sample, and she further testified that Villa-lobos had a blood alcohol content of .391 on the night of the accident. On cross-examination, the defense sought to impeach Gyokeres, given that she had no independent recollection of the events in question and could not identify Villalobos as the person from whom she drew the blood. The defense also questioned her at length regarding the maintenance of the testing equipment and the handling and chain of custody of the blood test kit.

At the conclusion of the evidence, the defense renewed its objection to juror Ar-vidson remaining on the jury and moved for a mistrial. The trial court denied the motion, finding that Arvidson’s relationship with Gyokeres would not affect the weight or credibility Arvidson gave to Gyokeres’ testimony. The jury convicted Villalobos as charged and the court sentenced him to 30 years in state prison. This appeal followed.

We review the trial court’s action (in denying the motion to dismiss the juror and for mistrial) for an abuse of discretion. Conde v. State, 860 So.2d 930, 939 n. 6 (Fla.2003). However, to the extent the claim involves the application of the correct law by the trial court in exercising its discretion, our standard of review is de novo. Collett v. State, 28 So.3d 224 (Fla. 2d DCA 2010).

In determining whether juror Arvidson should have continued to serve as a juror in light of his newly-disclosed information, the trial court applied the incorrect standard. The trial court focused its inquiry, and ultimately the exercise of its discretion, on whether there was any reasonable doubt that juror Arvidson could be fair and impartial. Such a standard is to be utilized in determining whether a juror should be stricken “for cause.” See Singleton v. State, 783 So.2d 970 (Fla.2001); Whitby v. State, 933 So.2d 557 (Fla. 3d DCA 2006). The trial court instead should have applied the standard for juror nondisclosure, as established in De La Rosa v. Zequeira, 659 So.2d 239 (Fla.1995). In De La Rosa, the Supreme Court of Florida outlined the three-prong test to be utilized in determining whether a juror’s nondisclosure of information during voir dire warrants a new trial:

First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party’s lack of diligence.

Id. at 241.

There is little doubt that the second and third prongs of De La Rosa were satisfied in this case. We therefore turn to the first prong and analyze whether the information was relevant and material.

First, “the complaining party must establish not only that the nondis-closed matter was ‘relevant’ ... but also that it is ‘material to jury service in the case.’ ” Estate of Roberts v. Tejada, 814 So.2d 334, 339 (quoting De La Rosa, 659 So.2d at 241). Materiality in this context is shown where the “omission of the information prevented counsel from making an informed judgment-which would in all likelihood have resulted in a peremptory challenge.” Id. (quoting De La Rosa, 659 So.2d at 242). A trial court errs when it focuses on whether the juror may be biased or partial when considering or deliberating the case as opposed to “what Appellant’s counsel would have done during voir dire had the ... history been disclosed.” Fine v. Shands Teaching Hosp. and Clinics, Inc., 994 So.2d 426 (Fla. 1st DCA 2008). See also Tripp v. State, 874 So.2d 732 (Fla. 4th DCA 2004).

Here, Arvidson acknowledged that he had a business relationship with Gyokeres. He performed carpentry/handyman work at Gyokeres’ home for which Gyokeres personally wrote him checks, and he performed such work as recently as two months before the trial. According to Ar-vidson, he and Gyokeres ran into each other every three to four months.

Further, Arvidson described a connection with Gyokeres that was, at least to some degree, not simply a business relationship but a personal one as well: Arvid-son had seen Gyokeres at a local grocery store just two weeks before trial. When he saw her at the store, Arvidson was aware that Gyokeres was undergoing cancer treatment and gave her a hug.

We agree with Villalobos that this nondisclosure “prevented counsel from making an informed judgment-which would in all likelihood have resulted in a peremptory challenge.” De La Rosa, 659 So.2d at 242. Had Arvidson disclosed this information during voir dire, we conclude the defense in all likelihood would have exercised a peremptory challenge on juror Arvidson.

Courts have held similarly critical — or even less critical — information to be “material.” See De La Rosa, 659 So.2d at 241 (involvement in prior, completely unrelated lawsuits was material); Dery v. State, 68 So.3d 252 (Fla. 2d DCA 2010) (holding that juror took an internet course in forensic science several years before trial was material); Mitchell v. State, 458 So.2d 819 (Fla. 1st DCA 1984) (holding that juror’s nephew was a corrections officer at facility where incident occurred was material); Smiley v. McCallister, 451 So.2d 977 (Fla. 4th DCA 1984) (holding that juror had a son-in-law who was in a car accident was material in a case involving a car accident).

Our determination of materiality is buttressed by the fact that Gyokeres was a significant witness for the State. Aside from being the person who provided evidence that Villalobos had a blood alcohol level of .391 (and thus satisfying an essential element of the State’s case), Gyokeres drew Villalobos’ blood, testified that the blood was correctly drawn, that the chain of custody was uninterrupted, and that the hospital’s equipment was functioning properly. Defense counsel assertively questioned, and sought to impeach, Gyokeres on these issues and on her apparent lack of ability to recall important aspects of her involvement in this case. Under these circumstances, had the defense been made aware during voir dire of the information regarding the relationship between juror Arvidson and witness Gyokeres, the defense in all likelihood would have peremptorily challenged Arvidson.

Because the trial court erred in denying the motion to dismiss juror Arvidson, and in denying the subsequent motion for mistrial, we reverse and remand for a new trial.

      . In response to the reading of the witness list, four other venire members disclosed that they knew one of the potential witnesses listed by the court, and all four jurors were stricken.

      . Gyokeres’ medical condition and treatment were not relevant to the trial, and no testimony regarding same was elicited during the trial.

      . Testimony at trial indicated that following the blood draw, Trooper Williams turned over the blood samples to a deputy from the Monroe County Sheriff's Office. The deputy testified that, within thirty minutes of receiving the samples, he delivered them to the Monroe County Sheriff’s Office evidence room, where they were impounded and refrigerated to preserve the samples for subsequent analysis. However, the defense argued that a property receipt introduced at trial indicated that the blood samples were unaccounted for for nearly thirty hours between the time Trooper Williams turned over the samples to the deputy and the time the deputy delivered them for impounding at the sheriff's office.

      .It appears from our review of the record that trial began with six jurors and one alternate. After juror Stelzer was dismissed, only six jurors remained on the panel. Had the trial court dismissed juror Arvidson, only five jurors would have remained. Absent an on-the-record waiver and a stipulation to a trial by less than six jurors, see Blair v. State, 698 So.2d 1210 (Fla.1997), dismissing juror Ar-vidson would have necessitated a mistrial.

      . In the more common scenario, the juror's nondisclosure of information is not discovered until after the trial, resulting in a motion for new trial. Here, the nondisclosure was discovered during the trial itself, and the issue is whether the court erred in not dismissing the juror upon discovery of the undisclosed information. Under either scenario, however, the analysis remains the same.

      . With regard to the concealment prong, the State argues that Arvidson’s failure to disclose was not intentional. However, there is no requirement that the failure to disclose be accompanied by an intent to mislead; even an unintentional failure to disclose satisfies this prong. Bernal v. Lipp, 580 So.2d 315, 316-17 (Fla. 3d DCA 1991) (finding concealment even though the juror did not intend to mislead counsel). See also, Estate of Roberts v. Tejada, 814 So.2d 334 (Fla.2002) (noting "a juror's non-disclosure need not be intentional to constitute concealment”); Tripp v. State, 874 So.2d 732 (Fla. 4th DCA 2004). The State also contends that there was no concealment because Arvidson disclosed the information as soon as he became aware that he knew Gyokeres. The case relied upon by the State for this proposition, Murray v. State, 3 So.3d 1108 (Fla.2009), is inapposite. In Murray (unlike the instant case), the juror was never asked during voir dire whether he knew any. of the witnesses who would be testifying at trial. Given that the information was never "squarely asked for,” Bernal, 580 So.2d at 316, it could not be said that the juror in Murray "concealed” any information when, upon realizing he knew one of the witnesses, the juror came forward and notified the court. We also reject the State's argument that the defense did not act with diligence because it did not inquire further regarding whether any of the jurors knew any of the witnesses who might testify at trial. During voir dire, the trial court read aloud to the venire the names of each of the witnesses and inquired whether any prospective juror knew the witness. Neither juror Arvidson nor juror Stelzer indicated at that time that they knew witness Gyok-eres. Where a juror has been asked a clear question and provided an unequivocal response, due diligence does not require further inquiry. See Dery v. State, 68 So.3d 252 (Fla. 2d DCA 2010). Here, the jury venire was clearly asked whether any of them knew “Jody Gyokeres from Marathon.” The absence of an affirmative response by Arvidson, indicating that he knew Gyokeres, was in effect an unequivocal “no,” and defense counsel’s failure to make further inquiry under these circumstances does not constitute a lack of diligence.

      . Although the State contends that the trial court correctly determined that Arvidson could still be fair and impartial notwithstanding his knowledge of and relationship with Gyokeres, such a determination could not serve to satisfy the requisite assessment of materiality under De La Rosa. The relevant question is not whether there was a reasonable doubt about Arvidson’s ability to be fair and impartial (an analysis that focuses largely on the trial court's assessment of the candor, demeanor and certainty of the juror's answers), but whether the defense in all likelihood would have exercised a peremptory challenge had this information been disclosed during voir dire (an analysis that focuses largely on the trial court’s assessment of the reasonable and probable actions counsel would have taken in the collective light of a complete and informed jury selection process). One cannot reasonably ignore the defense’s legitimate concerns, for example, that Arvidson might accord greater weight or credibility to Gyokeres’ testimony than would a typical juror; that Arvidson might be disproportionately affected by the aggressive manner of the cross-examination of Gyokeres; and that Arvidson might share with fellow jurors his knowledge of Gyokeres' medical condition and treatment.


author: NORTHCUTT, Judge.

text:
    William LAWRENSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1937.
    District Court of Appeal of Florida, Second District.
    July 23, 2014.
    William Lawrenson, pro se.
   NORTHCUTT, Judge.

William Lawrenson appeals the summary denial of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the denial of ground four but affirm the denial of Lawrenson’s other claims without comment.

Lawrenson was charged with sexual battery on a person less than twelve years old and with lewd and lascivious molestation. A jury convicted him of sexual battery as charged and of battery as a lesser-included offense of lewd and lascivious molestation. He was sentenced to life in prison for sexual battery and to time served for battery.

In his rule 3.850 motion, Lawrenson alleged that the State had extended a ten-year plea offer, but his trial counsel advised him to reject the offer, assuring Lawrenson that he would “destroy” the victim on cross-examination. The postcon-viction court ordered the State to respond to this claim and then adopted the response with little explanation. In its response, the State correctly contended that Lawrenson’s claim was facially insufficient for its failure to allege a specific deficiency on the part of counsel. See Morgan v. State, 991 So.2d 835, 841 (Fla.2008) (“Some specific deficiency on the part of counsel must be alleged. There is no allegation that counsel’s assessment of the chances of success at trial was unreasonable under the facts and circumstances of this case or that counsel had not investigated or otherwise was not familiar with the case.”), receded from on other grounds by Alcorn v. State, 121 So.3d 419, 433 (Fla.2013); Boyers v. State, 104 So.3d 1230, 1231 (Fla. 2d DCA 2012). However, the State also argued that Lawrenson was not entitled to an opportunity to amend.

We disagree. A claim that counsel was ineffective for advising a defendant to reject a plea offer is cognizable in a motion for postconviction relief. See Boyers, 104 So.3d at 1231. The law is settled that a defendant who files a facially insufficient rule 3.850 motion must be afforded at least one opportunity to cure the pleading deficiencies. See Fla. R. Crim. P. 3.850(f)(3); see also Spera v. State, 971 So.2d 754, 761-62 (Fla.2007).

Accordingly, we reverse the denial of ground four and remand to the postconviction court with direction to grant Lawren-son sixty days’ leave to amend. See Fla. R. Crim. P. 3.850(f)(3). In so doing, we caution that Lawrenson may amend this claim only to the extent that he can do so in good faith.

Affirmed in part, reversed in part, and remanded.

ALTE NBERND and MORRIS, JJ., Concur.

      . While adopting and incorporating the State's response is permissible, "we reiterate that the better practice is for the court to either attach those specific parts of the record that refute each claim or to discuss its rationale in its order." Barnes v. State, 38 So.3d 218, 220 (Fla. 2d DCA 2010).


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Gary SALTER, Appellee.
    No. 2D13-2421.
    District Court of Appeal of Florida, Second District.
    July 23, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellant.
    Benjamin G. DeBerg, St. Petersburg, for Appellee.
   PER CURIAM.

The State appeals the order dismissing the information charging Gary Salter with felony driving under the influence in violation of section 316.193(2)(b)(3), Florida Statutes (2012). At the hearing on the motion to dismiss, the State conceded that it could not prove that Salter’s prior misdemeanor DUI convictions were the result of counseled pleas. See State v. Kelly, 999 So.2d 1029, 1052 (Fla.2008) (“[T]he State may not, consistent with our state Constitution, impose deprivation of liberty as a penalty upon a defendant based on prior misdemeanor convictions, unless the defendant was either provided with counsel or validly waived that right.”). Because it was within the circuit court’s discretion to divest itself of jurisdiction over the surviving misdemeanor DUI, we affirm. See Woodbury v. State, 110 So.3d 17, 18-19 (Fla. 2d DCA 2013) (explaining that once the felony DUI charge was dismissed and the information refiled in county court, the circuit and county courts had concurrent jurisdiction over the misdemeanor DUI).

Affirmed.

ALTENBERND, WALLACE, and SLEET, JJ., Concur.


author: BLACK, Judge.

text:
    Margaret GRASSO, individually and as a purported Cotrustee of the Olga Grasso Revocable Living Trust; and Michelle Grasso, individually and as a purported Cotrustee of the Olga Grasso Revocable Living Trust, Appellants, v. Olga GRASSO, Appellee.
    No. 2D13-5186.
    District Court of Appeal of Florida, Second District.
    July 23, 2014.
    Roxanne Fixsen, Marie Tomassi, Bruce Marger, and Heidi L. Hobbs of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., St. Petersburg, for Appellants.
    Joseph W. Fleece, III and Jeffrey A. Eisel of Baskin Fleece, Clearwater, for Appellee.
   BLACK, Judge.

Margaret and Michelle Grasso, individually and as purported cotrustees of the Olga Grasso Revocable Living Trust (Trust), challenge various orders entered by the trial court regarding the Trust. We reverse the cost/fee order entered on October 18, 2013, to the extent that it taxed costs against Margaret and Michelle individually in the amount of $7907.10 and remand with instructions to vacate that portion of the order. We affirm the trial court in all other respects without comment.

Olga Grasso asserted no claims against Margaret or Michelle in their individual capacities but only as purported cotrus-tees. As such, Margaret and Michelle were not parties to the action in their individual capacities and the trial court erred in taxing costs against them individually. See Beseau v. Bhalani, 904 So.2d 641, 642 (Fla. 5th DCA 2005) (“Although Appellant, ‘individually’ was named in the complaint’s caption, the body of the complaint makes clear that her claims were made solely as personal representative of the estate. Thus, Appellant was never a party to the action in her individual capacity.”).

Affirmed in part; reversed in part; remanded.

ALTENBERND and MORRIS, JJ., Concur.


text:
    STATE of Florida, Appellant, v. J.J., a child, Appellee.
    No. 4D13-4220.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Sr. Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Amy Lora Rabinowitz, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

We reverse an order suppressing evidence because the arresting officer’s detection of the odor of marijuana on appellant’s person generated probable cause to arrest and search.

The arresting officer observed a juvenile roll “either a cannabis filled cigar or a tobacco filled cigar.” The cigar was then passed around a small group, including appellant who “handle[d]” it. The officer confronted the group and smelled the “very pungent” smell of cannabis emanating from the group, but especially from appellant. After appellant responded in a “disrespectful” and “confrontational manner,” the officer performed a pat down search on appellant for her “safety and [that of] the other officers on the scene.” During this search, the officer felt a “large bulge,” which she believed to be a quantity of cannabis.

The trial court granted appellant’s motion to suppress, rejecting the State’s theory of a search incident to arrest because the search preceded the arrest.

The smell of marijuana on appellant’s person, combined with his handling of the cigar, provided the officer sufficient probable cause to effectuate a search incident to arrest. A search incident to a lawful arrest is authorized “contemporaneous with or prior to the actual arrest so long as probable cause for the arrest existed at the time of the search.” D.H. v. State, 121 So.3d 76, 80 (Fla. 3d DCA 2013) (citing Jenkins v. State, 978 So.2d 116, 126 (Fla.2008)) (emphasis added). Even if an officer articulates “a subjective intent to search for officer safety,” that will “not change the fact that the smell of marijuana [may] provide[ ] an objectively reasonable basis for the search.” State v. Jennings, 968 So.2d 694, 696 (Fla. 4th DCA 2007).

“The question of probable cause is viewed from the perspective of a police officer with specialized training and takes into account the ‘factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technicians, act.’” Chavez v. State, 832 So.2d 730, 747 (Fla.2002) (quoting Walker v. State, 707 So.2d 300, 312 (Fla.1997)). The inquiry focuses on whether “ ‘the totality of the facts and circumstances within [the] officer’s knowledge sufficiently warrant a reasonable person to believe that, more likely than not, a crime has been committed.’ ” Santiago v. State, 84 So.3d 455, 459 (Fla. 4th DCA 2012) (quoting League v. State, 778 So.2d 1086, 1087 (Fla. 4th DCA 2001)).

The Marijuana Odor

A police officer “who is trained to recognize the odor of marijuana and who is familiar with it and can recognize it has probable cause, based on the smell alone, to search a person or a vehicle for contraband.” State v. T.T., 594 So.2d 839, 840 (Fla. 5th DCA 1992) (citations omitted); see also State v. Reeves, 488 So.2d 670, 670 (Fla. 4th DCA 1986) (“[T]he remaining fact that the officer smelled the odor of burning marijuana coming from the vehicle was sufficient to constitute probable cause.” (citations omitted)); State v. Wells, 516 So.2d 74, 75 (Fla. 5th DCA 1987). However, where the person to be searched is part of a group, the odor must be individualized. See Robinson v. State, 976 So.2d 1229, 1233 (Fla. 2d DCA 2008). “The mere scent of marijuana coming from a group of individuals does not by itself give an officer probable cause to arrest and search any particular individual in the group.” D.H., 121 So.3d at 82; see also Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (“[A] person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.”).

An instructive example of this rule was presented in Green v. State, 831 So.2d 1243 (Fla. 2d DCA 2002). There, officers noted “a cloud of [marijuana] smoke” lingering around four individuals — one being the defendant — while they were standing outside of an apartment building. Id. at 1244. Although officers observed other group members smoke a marijuana cigarette and discard a plastic baggie containing marijuana, they did not see the defendant “smoke or discard anything; he simply stood by the wall.” Id. Absent evidence tying the marijuana smell to the defendant, the Second District reversed the denial of the defendant’s motion to suppress, finding the defendant “did and said nothing that gave the officers probable cause to believe that [he himself] possessed illegal drugs.” Id. at 1245; see also Robinson, 976 So.2d at 1233 (“The fact that [the defendant] was standing with a group of men surrounded by the odor of burned marijuana was insufficient to supply more than a ‘mere suspicion’ that [the defendant] was in possession of marijuana.”); D.H., 121 So.3d at 83 (“Because the only facts justifying the search in this instance were the general smell of marijuana in the area and the sight of a puff of smoke lingering in the air around the group, there was insufficient justification for the search .... ”).

In deciding Green, the Second District distinguished State v. Hernandez, 706 So.2d 66 (Fla. 2d DCA 1998), a case factually similar to this one. In Hernandez, officers detected a “strong odor of marijuana emanating from [a] cluster of people,” which included the defendant. Id. at 66. After the defendant walked away and separated himself from the group, officers caught up to him and “again noticed the odor of marijuana.” Id. In finding the defendant’s suppression motion should have been denied, the Second District held that “[t]he odor of marijuana gave the officers probable cause to believe the members of the group had marijuana in their possession and, therefore, to search each person who was present.” Id. at 67. In Green, however, the Second District narrowed this generalized holding, noting that the crucial distinction in Hernandez was that the defendant continued to smell of marijuana even after he separated himself from the group. 831 So.2d at 1245; see also A.T. v. State, 93 So.3d 1159, 1161 n. 1 (Fla. 4th DCA 2012) (recognizing that, through Green, the Second District “seems to have narrowed its Hernandez holding”).

Here, the arresting officer testified that she could “smell[] marijuana coming directly from [appellant].” This nasal observation gave rise to probable cause to arrest appellant and search him for contraband.

Reversed.

GROSS, GERBER and CONNER, JJ„ concur.


text:
    S.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1924.
    District Court of Appeal of Florida, Third District.
    July 23, 2014.
    Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
    Before EMAS, FERNANDEZ and SCALES, JJ.
   PER CURIAM.

S.C. appeals from trial court orders that revoked her probation and imposed a new probation. We affirm the revocation of probation, concluding there was sufficient evidence to satisfy the trial court’s finding that S.C. violated her probation.

However, the order of revocation includes a statement that S.C. tested positive for THC on February 8, 2013. The State concedes the February 8, 2018 drug test should not have been a basis for revocation because it was not addressed at the hearing. Accordingly, we remand to the trial court solely for entry of a corrected order of revocation that deletes the reference to S.C. testing positive for THC on February 8, 2013. See Johnson v. State, 667 So.2d 475 (Fla. 3d DCA 1996).

Affirmed and remanded with instructions.


text:
    DOCASSIST, LLC, et al., Appellants, v. Rolando BARBERIS, etc., et al. Appellees.
    No. 3D13-2516.
    District Court of Appeal of Florida, Third District.
    July 23, 2014.
    Tripp Scott and Paul O. Lopez and Jeffrey M. Fauer, Fort Lauderdale; Bruce S. Rogow, Miami, and Tara A. Campion, Fort Lauderdale, for appellants.
    Ricardo A. Arce, for appellees.
    Before LAGOA, SALTER and EMAS, JJ.
   EMAS, J.

Appellant Docassist, LLC, (“Docassist”), appeals from the trial court’s denial of its motion for summary judgment and entry of summary judgment in favor of Appel-lees, based upon a determination that Do-cassist failed to properly admit a number of new members to the company. We affirm, and reject Docassist’s argument that an August 29, 2011 Letter Agreement serves as evidence of the Board of Managers’ consent to admit new members to Docassist. All parties agree that the Letter Agreement is unambiguous. The express language of the Letter Agreement neither names the new members nor specifies adjustments to the company’s equity resulting from new member capital investment. The Letter Agreement, by its terms, evinces an intent only to raise new capital for the company. Given the unambiguous nature of the Letter Agreement, Docassist may not rely on extrinsic evidence to support its contentions. See Real Estate Value Co., Inc. v. Carnival Corp., 92 So.3d 255, 260 (Fla. 3d DCA 2012).

We also affirm the trial court’s determination that the subsequent actions taken by Docassist, through its October 25, 2011 and December 7, 2011 amendments to its Operating Agreement, were invalid. The October 25th Amendment is invalid because the Board of Managers did not properly consent to it pursuant to the terms of the company’s Operating Agreement. As a consequence, the subsequent December 7th Amendment (which necessarily was premised upon the validity of the October 25th Amendment) is likewise invalid.

Affirmed.


author: SCALES, J.

text:
    Carlos Javier MONTESINOS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-3184.
    District Court of Appeal of Florida, Third District.
    July 23, 2014.
    Carlos Javier Montesinos, in proper person.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, for appellee.

      Before SUAREZ, ROTHENBERG and SCALES, JJ.
   SCALES, J.

On December 17, 2013, Carlos Javier Montesinos filed a Notice of Appeal from an order denying his motion to correct illegal sentence. On May 14, 2014, we affirmed the trial court’s order and ordered Montesinos to show cause why he should not be prohibited from filing further pro se pleadings with this court concerning his May 2006 conviction and sentence arising from lower tribunal case number 03-28869B. See Montesinos v. State, - So.3d-, 2014 WL 1921617, 39 Fla. L. Weekly D999 (Fla. 3d DCA May 14, 2014). Having carefully reviewed Mon-tesinos’ response to this court’s show cause order, and having reviewed the record, we now prohibit Montesinos from filing any additional pro se appeals, pleadings, motions, or petitions relating to this conviction and sentence.

I. Facts

In May 2006, a judgment was entered against Montesinos for attempted felony murder, robbery with a deadly weapon, and burglary with an assault or battery. Montesinos was adjudicated a prison release reoffender and was sentenced to a term of natural life. This court affirmed the convictions and sentence on direct appeal. Montesinos v. State, 972 So.2d 193 (Fla. 3d DCA 2007) (table).

Sinee 2006, Montesinos has filed numerous petitions or motions for postconviction relief stemming from lower tribunal case number 03-28869B. In this latest appeal, Montensinos contends the trial court erred in denying his motion to correct illegal sentence and subsequent motion for rehearing. In response to our show cause order, Montesinos argues it “would be fundamentally unfair to procedurally bar a defendant because of his inability to articulate his unlawful treatment.”

II. Analysis

We recognize pro se pleadings should be construed liberally. See Tillman v. State, 287 So.2d 693, 694 (Fla. 2d DCA 1973). And, while we agree Montesi-nos is entitled to a “genuine and adequate opportunity” to exercise his constitutional right of access to the courts, Woodson v. State, 100 So.3d 222, 223 (Fla. 3d DCA 2012), we disagree with Montesinos that there remain disputed facts that must be determined via evidentiary hearing. Rather, after careful review of the exhaustive filings by Montesinos and his response to our show cause order, we conclude good cause has not been shown.

“[Ijncarcerated persons should and do have a full panoply of procedural vehicles with which to challenge the lawfulness of their incarcerations.” Williams v. State, 121 So.3d 1114, 1115 (Fla. 3d DCA 2013) (quoting Edwards v. State, 96 So.3d 1154, 1155 (Fla. 3d DCA 2012). Prisoners do not, however, enjoy a constitutional right to file frivolous lawsuits. Williams, 121 So.3d at 1115; Hepburn v. State, 934 So.2d 515, 517-18 (Fla. 3d DCA 2005). Montesinos has reached the point where “enough is enough.” Edwards v. State, 96 So.3d at 1155 (citations omitted).

III. Conclusion

We direct the Clerk of the Third District Court of Appeal to refuse to accept for filing in this court any further appeals, pleadings, motions, petitions, or other papers related to Montesinos’ convictions and sentences in lower tribunal case number 03-28869B, unless they are filed by a Florida Bar member in good standing.

Finally, we direct the Clerk to forward a certified copy of this opinion to the Department of Corrections for consideration by that institution of disciplinary measures against Montesinos, pursuant to sections 944.279(1) and 944.28(2)(a), Florida Statutes (2013), in the event Montesinos attempts to file, pro se, any such appeal, pleading, motion, petition, or other paper in violation of this order. See Pettway v. McNeil 987 So.2d 20 (Fla.2008).

      . See Montesinos v. State, No. 3D12-2873, 2013 WL 1846893 (Fla. 3d DCA May 1, 2013) (table) (affirming denial of motion for post-conviction relief); Montesinos v. State, 77 So.3d 726 (Fla. 3d DCA 2011) (reversing summary denial of motion for postconviction relief for determination on merits); Montesinos v. State, 53 So.3d 1099 (Fla. 3d DCA 2011) (affirming denial of motions for postconviction relief in Case Numbers 3D10-655, 3D10-656, and 3D10-657); Montesinos v. State, 38 So.3d 149 (Fla. 3d DCA 2010) (table) (denying, on the merits, petition for writ of prohibition); Montesinos v. State, 38 So.3d 149 (Fla. 3d DCA 2010) (table) (affirming denial of motion for postconviction relief); Montesinos v. State, 17 So.3d 299 (Fla. 3d DCA 2009) (table) (affirming denial of motion for production of State's file); Montesinos v. State, 998 So.2d 617 (Fla. 3d DCA 2008) (table) (denying petition for writ of habeas corpus); Montesinos v. State, 972 So.2d 193 (Fla. 3d DCA 2007) (table) (affirming judgment and sentence).


text:
    John FERRETTI, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4275.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2014.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Sylvester v. State 766 So.2d 1223 (Fla. 5th DCA 2000).

GROSS, GERBER and CONNER, JJ., concur.


text:
    Garry Augustus SHEPPARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4574.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2014.
    Carey Haughwout, Public Defender, and Amy Lora Rabinowitz, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack, Assistant Attorney General, West Palm Beach, for appel-lee.
   PER CURIAM.

Appellant raises two issues in his appeal of his conviction for burglary and petit theft. Because we find that neither claim has merit, we affirm.

First, appellant claims the prosecutor improperly commented during her closing statement on his right to remain silent, when she directed jurors to use their common sense and rhetorically asked, “How else is his palm print and his thumbprint going to end up in [the victims’] house?” We find no merit in this claim, as identical comments were held not to be a comment on silence in Smith v. State, 378 So.2d 313, 313-14 (Fla. 5th DCA 1980). We find the prosecutors’ comments in Flaherty v. State, 183 So.2d 607, 608-09 (Fla. 4th DCA 1966), and Cunningham v. State, 404 So.2d 759, 759 (Fla. 3d DCA 1981), distinguishable because in those eases the prosecutors more specifically highlighted the defendants’ failures to provide explanations for the fingerprints and more directly referenced the defendants’ failures to testify.

Second, appellant claims the trial court improperly limited his voir dire of prospective jurors. We conclude the court did not abuse its discretion by preventing appellant’s counsel from posing questions that the court concluded were misstatements of the law or improper attempts to obtain pre-commitments from the jurors. See Figueroa v. State, 952 So.2d 1238, 1239 (Fla. 3d DCA 2007) (“[T]he trial court certainly has the discretion to ... prohibit counsel from asking improper questions ... and to preclude attorneys from pre-trying their cases or in obtaining a commitment on ultimate issues....”). This did not affect appellant’s right to impanel an impartial jury or constitute an abuse of discretion. See generally Salazar v. State, 991 So.2d 364, 372 (Fla.2008) (discretion is abused only where no reasonable person would take the view adopted by the trial court or the decision was arbitrary, fanciful, or unreasonable).

DAMOORGIAN, C.J., WARNER and MAY, JJ., concur.


text:
    Jose ADRANO a/k/a Jose Adriano, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-1492.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2014.
    William M. Pavlov, North Miami Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of appellant’s untimely motion for post-conviction relief, as Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively to this September 2001 plea. Chaidez v. United States, — U.S. -, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); Hernandez v. State, 124 So.3d 757 (Fla.2012). In addition, appellant was not subject to removal strictly based on his plea in this case, a prerequisite to post-conviction relief based on Padilla, since at the time of removal proceedings he was an illegal alien who overstayed his temporary protected status, rendering him subject to deportation on that basis alone. See Ioselli v. State, 122 So.3d 388, 390 (Fla. 4th DCA 2013); Donegal v. State, 107 So.3d 490 (Fla. 4th DCA 2013); Joseph v. State, 107 So.3d 494 (Fla. 4th DCA 2013); Rosas v. State, 911 So.2d 1003 (Fla. 4th DCA 2008).

Affirmed.

WARNER, LEVINE and KLINGENSMITH, JJ., concur.


text:
    Jarius A. McTAGGART, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D14-898, 3D14-944.
    District Court of Appeal of Florida, Third District.
    July 23, 2014.
    Jarius A. McTaggart, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD, C.J., and LAGOA and FERNANDEZ, JJ.
   PER CURIAM.

On Motion for Rehearing and/or Clarification

We grant Jarius McTaggart’s motion for rehearing and/or clarification in Case No. 14-898, withdraw the opinion issued May 28, 2014, sua sponte consolidate this matter with Case No. 14-944 and issue the following opinion instead of our prior opinion:

Affirmed.