author: CLARK, J. RAY, J.,

text:
    CITRUS MEMORIAL HEALTH FOUNDATION, INC., a Florida not-for-profit corporation, Appellant, v. CITRUS COUNTY HOSPITAL BOARD, an independent Special District of the State of Florida, and the State of Florida, Appellees.
    No. 1D12-0858.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2013.

      Peter D. Webster, Sylvia H. Walbolt, Gary L. Sasso and Christine Davis Graves of Carlton Fields, P.A., Tallahassee and Tampa, and Clark A. Stillwell of Clark A. Stillwell, P.A., Inverness, for Appellant.
    Arthur J. England, Jr. of Arthur J. England, Jr., P.A., Coral Gables, Barry Richard of Greenberg Traurig, P.A., Tallahassee, and William J. Grant of Grant & Dozier, Inverness, for Appellee Citrus County Hospital Board.
    Pamela Jo Bondi, Attorney General, and Enoch J. Whitney, Assistant Attorney General, Tallahassee, for Appellee State of Florida.
   CLARK, J.

The Citrus Memorial Health Foundation appeals from a final summary judgment entered in favor of the Citrus County Hospital Board, appellee, which determined that chapter 2011-256, Laws of Florida, does not impair vested contract rights or violate Article I, Section 10, of the Florida Constitution. The special law which the legislature enacted at chapter 2011-256 significantly alters the parties’ contractual rights and is an unconstitutional impairment of their contracts so as to be prohibited by Article I, Section 10. Accordingly, the order granting summary judgment for Citrus County Hospital Board is reversed.

In 1990, Citrus County Hospital Board, a special taxing district, contracted with Citrus Memorial Health Foundation by entering into a Lease Agreement and an Agreement for Hospital Care which transferred the control and operation of Citrus Memorial Hospital from the Board to the Foundation. Amendments to those contractual agreements provide for the continuation of that arrangement until 2033. In 2011 the Florida Legislature enacted chapter 2011-256, which addressed the Foundation’s obligations and altered aspects of the parties’ contractual agreements.

Among other provisions, this special law requires that the Foundation’s budget be approved by the Board, limits the Foundation’s ability to borrow money without Board approval, and restricts the Foundation’s ability to undertake capital improvements without Board approval. In addition to those changes to the agreements, the special law alters the Foundation’s Articles of Incorporation by requiring Board approval of amendments to the Articles and the Foundation’s bylaws in some instances, and specifying that the Board’s trustees be appointed as a majority of the Foundation’s directors while giving the Board a right of approval as to all of the Foundation’s directors.

The Foundation filed an action for declaratory judgment in circuit court, seeking a ruling on the constitutionality of chapter 2011-256 in light of its impact on the contractual agreements between the Board and the Foundation, and in connection with the Foundation’s Articles of Incorporation. The Foundation asserted that chapter 2011-256 impaired vested contractual rights. The court entered summary judgment for the Board, accepting the Board’s assertion that the state can exercise regulatory power over the functions the Board had transferred to the Foundation. Consequently, the circuit court ruled that chapter 2011-256 does not violate the Florida Constitution’s due process protections or the Article I, Section 10, prohibition against laws impairing the obligation of contracts.

The circuit court’s ruling treats the Foundation as a public entity, referring to O’Malley v. Florida Insurance Guaranty Association, 257 So.2d 9 (Fla.1971), where a legislatively-created entity was accorded status as a public corporation used to implement legislative objectives within the state’s police power. However, unlike the public corporation in O’Malley, the Foundation was not created by the legislature and was used by the Board for the express purpose of avoiding statutory and constitutional limitations which would pertain to the Board as a public entity. Thus, O’Mal-ley does not apply here and the circuit court’s ruling disregards the true nature of the relationship between the Board and the Foundation.

It is undisputed that Citrus County Hospital Board was created for the purpose of operating hospitals and medical facilities in Citrus County. The Board provided that service until it contracted with the Foundation in 1990. That transfer of control and operation of Citrus Memorial Hospital resulted from a decision by the Board’s trustees to contract out that function to reduce expenditures by removing employees from the state retirement plan, and to create joint venture opportunities for the hospital. The Board’s trustees determined that while those actions would financially benefit the hospital, as a public entity the Board was precluded by section 122.061, Florida Statutes, and Article VII, section 10, of the Florida Constitution, from undertaking such actions. Upon that determination the Board then contracted with the Foundation. The circuit court’s characterization of the Foundation as a public entity disregards the purpose of the contractual agreements, which was to transfer the operational control of the hospital from the Board’s status as a public entity with such restrictions, to the private Foundation where such restrictions would not apply-

In considering the Foundation a public entity, the court proceeded to find that the changes made by chapter 2011-256 did not diminish the value of any constitutionally protected interest. The court applied the “impairment of contract” test from Pomponio v. The Claridge of Pompano Condominium, Inc., 378 So.2d 774 (Fla.1979), without giving any effect to the accompanying test from Dewberry v. Auto-Owners Insurance Co., 363 So.2d 1077 (Fla.1978). In both Dewberry and Pomponio, the supreme court addressed the prohibition in Article I, Section 10 of the Florida Constitution with regard to laws impairing the obligation of contracts. In Dewberry the court cautioned that any legislation that detracts from the value of a contract is subject to the constitutional proscription, referring to Yamaha Parts Distributors Inc. v. Ehrman, 316 So.2d 557 (Fla.1975), which likewise indicates that virtually no degree of impairment is tolerated under Article I, Section 10. In Pomponio the court again referred to Yamaha Parts Distributors and explained that, although virtually no impairment may be tolerable, some minimal impact in furtherance of the state’s police power might be allowed upon a balancing of interests as between the contract rights and the state’s interest in a permissible exercise of its police power. The Pomponio court then set out various criteria to be considered in connection with such balancing, emphasizing that in this context the state’s police power may only be exercised in the least restrictive means possible. Most significantly, the Pompo-nio court did not disavow or recede from Dewberry, which the supreme court has continued to apply in subsequent decisions. See In re Advisory Opinion to the Governor, 509 So.2d 292 (Fla.1987); see also Cohn v. Grand Condominium Ass’n, Inc., 62 So.3d 1120 (Fla.2011); State Farm Mutual Automobile Ins. Co. v. Gant, 478 So.2d 25 (Fla.1985).

The continuing vitality of Dewberry is also recognized in other decisions, such as Lee County v. Brown, 929 So.2d 1202 (Fla. 2d DCA 2006), where it was suggested that a per se test under Dewberry applies, rather than a balancing test under Pompo-nio, when there is an immediate diminishment in the value of a contract. Accord, Coral Lakes Community Ass’n, Inc. v. Busey Bank, N.A., 30 So.3d 579 (Fla. 2d DCA 2010); see also, e.g., State v. Leavins, 599 So.2d 1326 (Fla. 1st DCA 1992).

In the present case, the circuit court reasoned that there was no impairment to the contracts between the Board and the Foundation because it was not shown that the taxpayers and residents of Citrus County were harmed by the enactment of chapter 2011-256. That reasoning does not recognize the impact on the Foundation’s contractual rights under its agreements with the Board or under its Articles of Incorporation. Cases such as Aztec Motel, Inc. v. State ex rel. Faircloth, 251 So.2d 849 (Fla.1971), indicate that the corporate charter is a contract with the state, and other decisions such as Cohn v. Grand Condominium Ass’n, Inc., supra, indicate that statutory changes to an entity’s contractual rights of internal governance may run afoul of the Article I, Section 10, prohibition against the impairment of contracts. Even apart from the effect of chapter 2011-256 upon the Foundation’s Articles of Incorporation, the alteration of the Foundation’s contractual agreements with the Board whereby additional obligations were legislatively imposed in connection with those agreements, violates Article I, Section 10.

Ultimately, the legislative action in chapter 2011-256, as deemed valid by the circuit court, is a rewrite of the parties’ contractual agreements and the imposition of further obligations on the Foundation, while permitting the Board’s privatization of hospital management functions as described in Indian River County Hospital District v. Indian River Memorial Hospital, Inc., 766 So.2d 233 (Fla. 4th DCA 2000). Even if some public benefit might ensue from that privatization, by which the Board sought to avoid the restrictions on its undertakings as a public entity, the legislative changes in chapter 2011-256 cannot be countenanced under Article I, Section 10, of the Florida Constitution.

REVERSED.

VAN NORTWICK, J., concurs; RAY, J., dissents with opinion.

RAY, J.,

dissenting.

I would affirm the trial court’s decision to uphold the constitutionality of chapter 2011-256 (the “Special Law”). “[W]e are obligated to accord legislative acts a presumption of constitutionality and to construe challenged legislation to effect a constitutional outcome whenever possible.” Fla. Dep’t. of Revenue v. City of Gainesville, 918 So.2d 250, 256 (Fla.2005). After thoroughly analyzing the arguments and law presented by the parties on cross-motions for summary judgment, the trial court ruled that the Foundation cannot be heard to complain about the impairment of its contracts in violation of article I, section 10 of the Florida Constitution (the “Contracts Clause”), because it is a public or quasi-public corporation. The trial court ruled that the same analysis applies to the claim that the Special Law violates the Foundation’s right to due process by depriving it of vested contractual rights. Guided by the Florida Supreme Court’s decision in O’Malley v. Florida Insurance Guaranty Association, 257 So.2d 9 (Fla.1971), and informed by the Foundation’s history and its own representations about its nature, I agree.

The Hospital Board formed the Foundation as a not-for-profit corporation to carry out the purposes of the special act creating the Hospital Board. At the Foundation’s inception, and when the Hospital Board and Foundation executed the Lease Agreement and Agreement for Hospital Care in 1990, the Hospital Board trustees occupied a majority of the positions on the Foundation’s Board. Since the beginning of the leasing and hospital-care arrangements, the Foundation has carried out its agreement to operate and manage Citrus Memorial Hospital using public funds provided through ad valorem taxing by the Hospital Board. In 2006, the parties amended the Agreement for Hospital Care to make clear that the Foundation’s obligations “are to be considered a transfer of a governmental function from the [Hospital] Board.”

The Foundation has made several declarations to the courts and officials of this state indicating that this transfer defines its very nature and purpose. In 2007, in the context of obtaining sovereign immunity, the Foundation represented to a circuit court that “the Foundation serves no purpose other than to fulfill the Hospital Board’s public function of operating hospitals in Citrus County.” The Foundation advised the same court that it is “an ‘instrumentality’ or ‘agency' of the Hospital Board in the truest sense.” Further, seeking to rebase its Medicaid rates in 2008, the Foundation urged the Florida Agency for Health Care Administration to deem it a public entity. The Foundation cited its entitlement to sovereign immunity, which the Foundation noted “is reserved only for the state and its agencies,” as one factor among many militating in favor of such a finding. Other factors included the Foundation’s fulfillment of the Hospital Board’s public function, the Hospital Board’s ownership of the Foundation, the Foundation’s compliance with Florida’s public records law, and the fact that the Foundation “answers to the Hospital Board regarding key operational, capital[,] and financial decisions.”

Despite the control the Foundation had previously conceded the Hospital Board exercises over its operations, the Legislature determined, in 2011, that greater control was necessary to ensure meaningful oversight and appropriate accountability by the Hospital Board over the Hospital Board’s public responsibilities. This determination is reflected in the Special Law’s “whereas clauses,” which also indicate that the Legislature instituted the accountability measures at issue as a mechanism to protect the public interest.

The trial court ruled that the Special Law does not violate the Contracts Clause because the Foundation is a public or quasi-public corporation. The parties to this appeal have not presented any cases defining the terms “public corporation” or “quasi-public corporation” with respect to the Contracts Clause, and it appears that Florida courts have not previously been called upon to analyze the nature of a corporation for the purpose of applying this provision. The best precedent available on this topic is O’Malley, in which the Florida Supreme Court distinguished between private and public or quasi-public corporations for the purpose of deciding whether a law violated article III, section 11, of the Florida Constitution. Although O’Malley concerned a different constitutional provision, its definitions of private and public corporations are relevant to our determination of the nature of the corporation at issue here.

The O’Malley court explained that “[pjrivate corporations are those which have no official duties or concern with the affairs of government, are voluntarily organized[,j and are not bound to perform any act solely for government benefit, but the primary object of which is the personal emolument of its stockholders.” 257 So.2d at 11. The O’Malley court then defined public corporations by reference to the following considerations:

Their business ordinarily is stipulated by the Legislature to fill a public need without private profit to any organizers or stockholders. Their function is to promote the public welfare and often they implement governmental regulations within the state’s police power. In a word, they are organized for the benefit of the public.

Id.

The Foundation attempts to distinguish O’Malley on the ground that the Legislature directly created the corporation whose status was at issue in that case, through enabling legislation. But whether a corporation is created directly by the State, or by an arm of the State, seems to be a distinction without a difference when, as here, the sole and exclusive purpose of the corporation is to carry out a public function for the benefit of the public. Furthermore, if the manner of a corporation’s creation were dispositive of the public/private inquiry, there would have been no need for the O’Malley court to describe the attributes of public and private corporations for the purpose of determining in which category the corporation in question was to be placed. The court, instead, could have started and ended its analysis by reference to the manner of the corporation’s creation. Because the supreme court did not adopt this approach, the trial court properly resolved this case by reference to the O’Malley factors.

Under the O’Malley definition, the Foundation is a public or quasi-public corporation. It was not voluntarily created by private citizens for their own benefit or for the benefit of any private interests whatsoever. As the Foundation has admitted, the Hospital Board created the Foundation for the purpose of fulfilling the Hospital Board’s public function of providing hospital services in Citrus County, and it still exists for that sole purpose. The Foundation has no shareholders, and the Hospital Board is its only member. As the Hospital Board has aptly described the relationship, the Hospital Board essentially restructured itself when it executed the Lease Agreement and Agreement for Hospital Care. This situation was not one where a special taxing district competitively bid the outsourcing of a public function and entered into “arm’s length” bilateral contract with a private company. Cf. Mem’l Hosp.-W. Volusia, Inc. v. News- Journal Corp., 729 So.2d 373, 377-78 (Fla.1999).

The representations the Foundation has made to the courts and officials of this state are perhaps the best indication of its identity as a public or quasi-public corporation. These statements reveal that the Foundation has no greater interest in self-governance than any other state agency, as it exists only to fulfill the delegated duty to meet Citrus County’s public health needs in accordance with the Legislature’s mandate for the Hospital Board. Like other state agencies and officials, the Foundation should be required to presume the legislation affecting its duties is constitutional and focus on carrying out those duties. See Crossings At Fleming Island Comty. Dev. Dist. v. Echeverri, 991 So.2d 793, 799 (Fla.2008) (quoting Barr v. Watts, 70 So.2d 347, 351 (Fla.1953) (“The state’s business cannot come to a stand-still while the validity of any particular statute is contested by the very board or agency charged with the responsibility of administering it and to whom the people must look for such administration.”); Dep’t of Educ. v. Lewis, 416 So.2d 455, 458 (Fla.1982) (“State officers and agencies must presume legislation affecting their duties to be valid, and do not have standing to initiate litigation for the purpose of determining otherwise.”)). Regardless of the status of other corporations involved in leases under section 155.40, the specific relationship the Foundation has acknowledged it has with the Hospital Board requires a holding that the Foundation is a public entity that cannot be removed from legislative oversight.

The Foundation contends that its prior representations, made for other purposes, should not determine its status as public or private. Citing Prison Rehabilitative Industries and Diversified Enterprises, Inc. v. Betterson, 648 So.2d 778 (Fla. 1st DCA 1994), the Foundation notes that an entity may be a state agency for the purpose of claiming sovereign immunity and not for other purposes. See also Keck v. Eminisor, 104 So.3d 359, 369 (Fla.2012). While the Foundation’s entitlement to sovereign immunity might not be dispositive, the Foundation should nevertheless be held to the factual representations it has made in other contexts. See Blumberg v. USAA Cas. Ins. Co., 790 So.2d 1061, 1066 (Fla.2001) (quoting Smith v. Avatar Properties, Inc., 714 So.2d 1103, 1107 (Fla. 5th DCA 1998) (recognizing that, under the doctrine of judicial estoppel, litigants are prohibited from “taking totally inconsistent positions in separate judicial, including quasi-judicial, proceedings”)). Those factual representations establish that it has all of the essential elements of a public or quasi-public entity and that the Special Law does not affect any private interest.

In my view, the definition in O’Malley and the Foundation’s prior representations resolve this case. Because the Foundation’s true nature is that of a public or quasi-public corporation, I find no cognizable claim under the Contracts Clause. The Foundation’s “due process” claim hinges on a deprivation of the same contract rights at issue in its claim under the Contracts Clause. Therefore, this related claim should fail for the same reasons.

      . The trial court ruled, in the alternative, that the Special Law would not unconstitutionally impair the Foundation’s contracts even if the Foundation were a private corporation. Because I agree with the trial court on the threshold issue concerning the Foundation’s nature as a public entity, I express no opinion on the impairment question.


source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    Beloni PETIT-FRERE, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-1948.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 2013.
   WALLACE, Judge.

Beloni Petit-Frere challenges an order denying his motion for postconviction relief filed in accordance with Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

Petit-Frere was convicted on multiple drug charges and sentenced to prison. This court affirmed his direct appeal without opinion. Petit-Frere v. State, 972 So.2d 184 (Fla. 2d DCA 2008) (table decision). The postconviction court summarily denied some of the claims in Petit-Frere’s first postconviction motion and denied the remainder after conducting an evidentiary hearing. During the appeal of that order, Petit-Frere filed a second post-conviction motion, which the court dismissed for lack of jurisdiction because his postconviction appeal was pending. This court affirmed the dismissal of the second postconviction motion without opinion. Petit-Frere v. State, 43 So.3d 702 (Fla. 2d DCA 2010) (table decision). In dismissing Petit-Frere’s second postconviction motion, the postconviction court did so without prejudice to Petit-Frere to refile it “upon the Second District Court of Appeal rendering a [mjandate” in the first post-conviction appeal. Petit-Frere filed an updated and revised version of the motion about two years beyond the two-year deadline set in rule 3.850(b) and three months after this court issued the mandate. The denial of the updated motion forms the basis for this appeal.

Petit-Frere’s sole issue in the updated motion, as in his second postconviction motion, was that court-appointed postconviction counsel was ineffective. Specifically, Petit-Frere alleged that once counsel was appointed by the court for the evidentiary hearing to be held on his first postconviction motion, he asked counsel about bringing to the court’s attention supplemental ineffectiveness-of-trial-counsel claims that Petit-Frere wanted to add to the first motion. Petit-Frere alleged that counsel initially seemed interested but ultimately told him he could just file another postcon-viction motion; counsel went forward with the evidentiary hearing, and no supplemental motion was filed. Petit-Frere argued that postconviction counsel was ineffective for not moving the court to allow the additional claims to be filed or otherwise failing to inform the court of their existence, resulting in a situation in which he would then have been forced to file his additional claims “in a[n] untimely and successive way.” He asked the court to allow him sixty days to file the supplemental ineffectiveness claims. The postconviction court denied the updated motion on the ground that a claim of ineffectiveness of postconviction counsel was not cognizable under rule 3.850. This appeal followed.

The postconviction court correctly ruled that claims of ineffective assistance of postconviction counsel are not cognizable under rule 3.850. See, e.g., Kokal v. State, 901 So.2d 766, 777 (Fla.2005); Zito v. State, 990 So.2d 1257, 1257 (Fla. 2d DCA 2008). This principle appears not to have changed even in the wake of a recent United States Supreme Court opinion that appears to have opened up the possibility of ineffectiveness-of-postconviction-counsel claims in limited circumstances. Martinez v. Ryan, — U.S. -, 132 S.Ct. 1309, 1315-19, 182 L.Ed.2d 272 (2012); see also Gore v. State, 91 So.3d 769, 778 (Fla.2012) (“It appears that Martinez is directed toward federal habeas proceedings and is designed and intended to address issues that arise in that context.”).

Nevertheless, because Petit-Frere’s motion also requested an extension of time to file his additional claims of ineffective assistance of trial counsel, we conclude, particularly under the unusual posture in this case, that the postconviction court should have also treated the motion under Florida Rule of Criminal Procedure 3.050, concerning enlargement of time. A postconviction court may, under rule 3.050, extend the two-year rule 3.050 deadline “for good cause shown.” State v. Boyd, 846 So.2d 458, 460 (Fla.2003) (quoting Fla. R.Crim. P. 3.050) (concerning motions for extension of time filed before a deadline under rule 3.050); see also Parker v. State, 907 So.2d 694, 695 (Fla. 4th DCA 2005) (allowing motions for enlargement of time to be filed after the rule 3.850 deadline in accordance with rule 3.050, which requires the movant to demonstrate excusable neglect); Suarez v. State, 8 So.3d 1226, 1226 (Fla. 3d DCA 2009) (same).

We therefore reverse and remand for the postconviction court to consider Petit-Frere’s motion filed February 20, 2012, under rule 3.050. If the court grants the motion, Petih-Frere must file his supplemental claims within the deadline set by the postconviction court. If the court denies the motion, Petit-Frere may proceed in accordance with Manning v. State, 28 So.3d 971, 973 (Fla. 2d DCA 2010) (requiring the movant to file his postconviction motion “as soon as possible” after the denial of his motion for extension of time and to include an allegation explaining why the motion is untimely).

Affirmed in part, reversed in part, and remanded with instructions.

NORTHCUTT and VILLANTI, JJ., Concur.

      . The appellant has used different spellings of his last name in his several appeals.

      . Although perhaps Petit-Frere should simply have filed his supplemental claims at some point, the existence of appointed counsel during the pendency of his first postconviction motion, cf. Logan v. State, 846 So.2d 472 (Fla.2003), and the postconviction court's ear-Her statement allowing him to refile the ineffectiveness-of-postconviction-counsel claim may have prevented him from doing so.


author: RAY, J.

text:
    CITY OF FREEPORT, Florida, Petitioner, v. BEACH COMMUNITY BANK, Respondent.
    No. 1D12-3415.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2013.

      Scott J. Seagle and Gwendolyn P. Adkins, of Coppins, Monroe, Adkins & Dinc-man, P.A., Tallahassee, for Petitioner.
    Steven B. Bauman and Jeffrey L. Burns, of Anchors, Smith, Grimsley, Ft. Walton Beach, for Respondent.
   RAY, J.

City of Freeport, Florida (the “City”) petitions for a writ of certiorari to review a non-final order denying the City’s motion to dismiss a negligence action brought against it in circuit court by Beach Community Bank (the “Bank”). Because we conclude that the City has sovereign immunity from suit, we grant the petition.

I. Factual Allegations

In March 2006, the City issued a development order to Riverwalk Freeport, LLC, a developer of real estate within the city limits. The name of the proposed residential development at issue is River-walk Phase I. Article 2, section 2.01.05(I)(2)(d) of the City’s Land Development Code (LDC) expressly provides that a final development order may require a developer to post bond equal to 110% of the costs of the services or facilities that a developer is required to construct for the benefit of the project, as security to ensure completion of the infrastructure. Article 2, section 2.01.05(N)(3)(a) of the LDC states: “The amount of the security listed in the improvement agreement shall be approved as adequate by the Code Enforcement Officer.” In the instant case, security could be fully satisfied-in several ways, including the developer’s posting an irrevocable letter of credit with the City. In compliance with the LDC, the developer provided the City with an irrevocable standby letter of credit loan in the amount of approximately $4.87 million from DC Capital DC Banking Group (DC Capital) in July 2007. The City Planner wrote the developer that the “surety [was] acceptable to the City.”

In June 2008, nearly a year after the City approved the Riverwalk project for development, the Bank made a $2.4 million loan to the developer. The Bank secured this loan with a mortgage against twenty of the platted lots in the Riverwalk subdivision. The developer failed to complete the infrastructure and, in 2009, Petitioner attempted to collect on the security. The DC Capital letter of credit ultimately proved to be fraudulent and/or uncollecta-ble.

Thereafter, the Bank sued the City, alleging that the City had breached its duty to 1) ensure that the developer posted adequate security for completion of the infrastructure, 2) conduct a reasonable investigation to ascertain the authenticity and adequacy of the letter of credit, and 3) determine whether DC Capital was a legitimate business enterprise and, if so, was financially able to pay the letter of credit if it was called.

The City moved to dismiss the complaint for failure to state a cause of action on the grounds that the City owed the Bank no common-law, statutory, or special duty of care, but even if a duty existed, the decisions at issue were policy-making, planning-level functions for which the City is immune from suit. The circuit court denied the motion to dismiss and directed the City to file a responsive pleading. The City seeks review of this non-final order.

II. Jurisdictional Analysis

Article V, section 4(b)(3) of the Florida Constitution, provides that district courts of appeal have original jurisdiction to issue writs of certiorari. See also Fla. R.App.P. 9.030(b)(2)(A). “Certiorari is the proper remedy, in limited circumstances, to review a non-final order that is not subject to appeal under Florida Rule of Appellate Procedure 9.130.” AVCO Corp. v. Neff, 30 So.3d 597, 601 (Fla. 1st DCA 2010). The authority of the district courts to issue writs “functions as a safety net and gives the upper court the prerogative to reach down and halt a miscarriage of justice where no other remedy exists.” Broward Cnty. v. G.B.V. Int’l, Ltd., 787 So.2d 838, 842 (Fla.2001). Certiorari review is not a mechanism for piecemeal appellate review as a matter of right; instead, it is triggered on a case-by-case basis, upon a showing by petitioner that the order under review (1) constitutes a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case, (3) that cannot be remedied on post judgment appeal. Williams v. Oken, 62 So.3d 1129, 1132 (Fla.2011). Because the last two elements are jurisdictional, we must analyze them first. Id.

Sovereign immunity, which is the basis for the City’s motion to dismiss, derives exclusively from the separation of powers provision found in article II, section 3 of the Florida Constitution. Wallace v. Dean, 3 So.3d 1035, 1045 (Fla.2009). Other policy considerations underpinning the doctrine of sovereign immunity include the “protection of the public treasury” and the “maintenance of the orderly administration of government.” Am. Home Assur. Co. v. Nat’l R.R. Passenger Corp., 908 So.2d 459, 471 (Fla.2005). Sovereign immunity prohibits the judiciary from “second guess[ing] the political and police power” decisions of coordinate branches of government “absent a violation of constitutional or statutory rights.” Trianon Park Condo. Ass’n v. City of Hialeah, 468 So.2d 912, 918 (Fla.1985). While the Florida Legislature has codified a limited waiver of sovereign tort immunity in section 768.28, Florida Statutes, the doctrine of separation of powers mandates that “certain [quasi-legislative] policy-making, planning or judgmental governmental functions cannot be the subject of traditional tort liability.” Wallace v. Dean, 3 So.3d at 1053 (citing Commercial Carrier Corp. v. Indian River Cnty., 371 So.2d 1010, 1020 (Fla.1979)). Accordingly, where governmental actions are deemed discretionary, as opposed to operational, the government has absolute immunity from suit. See Commercial Carrier Corp., 371 So.2d at 1020-22.

The erroneous denial of sovereign immunity has been held to be a material, irreparable injury to justify certiorari review. See Miami-Dade Cnty. v. Rodriguez, 67 So.3d 1213, 1219 (Fla. 3d DCA 2011), rev. granted, 76 So.3d 938 (Fla. Dec. 1, 2011). This holding in Rodriguez is consistent with the host of cases where certiorari jurisdiction was properly invoked to review trial court orders denying other types of immunities from suit. The reasoning underlying these decisions is that if the defendant is entitled to immunity from suit, it is the trial itself that constitutes the material harm. See Tucker v. Resha, 648 So.2d 1187, 1189 (Fla.1994); Rodriguez, 67 So.3d at 1219-20 & nn. 3-4. This harm cannot be cured by plenary appeal because it is impossible to “reimmunize” the defendant from suit after the fact. Bd. of Regents v. Snyder, 826 So.2d at 387.

The Bank argues that the Florida Supreme Court’s decision in Department of Education v. Roe, 679 So.2d 756 (Fla.1996), precludes all avenues of interlocutory review of a non-final order denying sovereign immunity. On this point, we agree with the Third District Court of Appeal that Roe is inapplicable to discretionary review by certiorari where immunity is based on the separation of powers doctrine:

[Respondent] misreads Roe. Roe did not determine the availability of discretionary jurisdiction. Instead, Roe simply declined the State’s invitation to extend the same right of interlocutory appeal from orders denying immunity from suit to the state and its political subdivision as the court had extended to its employees acting in the scope of their employment.
* * *
[T]he immunity issue in this case is predicated on the doctrine of separation of powers. That principle is distinct from immunity resting on the sovereign character of the state or municipality in the performance of its governmental functions. The focus of a separation of powers analysis is on the nature of government conduct and the government category into which the particular activity falls. It is animated by the continuing need at all levels of government to preserve the pattern of distribution of governmental functions prescribed by the constitution and statute.... Recognizing the importance of this fundamentally prescribed structure at every level of government, our high court wisely concluded in the seminal case construing the scope of the waiver of immunity from suit in section 768.28 that certain functions of the legislative and executive branches of our local governments may not be made subject to scrutiny by a judge or jury as to the wisdom of performance. See Commercial Carrier Corp. v. Indian River Cnty., 371 So.2d 1010 (Fla.1979).

Rodriguez, 67 So.3d at 1220-21 (some internal citations omitted). The instant case is also distinguishable from this Court’s decisions denying certiorari review in Citizens Property Insurance Corp. v. San Perdido Association, Inc., 46 So.3d 1051, 1053 (Fla. 1st DCA 2010) (involving a claim of immunity pursuant to section 627.351(6)(s)l., Florida Statutes), approved by Citizens Property Insurance Corp. v. San Perdido Association, Inc., 104 So.3d 344 (Fla.2012), and Keck v. Eminisor, 46 So.3d 1065 (Fla. 1st DCA 2010) (involving a claim of immunity from personal liability pursuant to section 768.28(9)(a), Florida Statutes), quashed in part by Keck v. Em-inisor, 104 So.3d 359 (Fla.2012) (concluding that a claim of immunity under section 768.28(9)(a), Florida Statutes, should be reviewable by a non-final appeal and declining to address the issue of whether a writ of certiorari would be an alternative avenue). Both of those cases involved the interpretation of limited, statutory grants of immunity; neither of them involved the application of traditional sovereign immunity like that claimed by the City in this case. The governmental immunity at issue here “derives entirely from the doctrine of separation of powers, not from [the absence of] a duty of care or from any statutory basis.” Wallace, 3 So.3d at 1045 (emphasis and brackets in original).

Because the City claims immunity from suit, and the effect of the challenged order requires the City to submit to litigation beyond such time as its immunity can be properly determined, we conclude that the City has established the requisite material, irreparable harm necessary to invoke our certiorari jurisdiction.

III. Merits Analysis of Sovereign Immunity Claim

Having satisfied the jurisdiction threshold, the City next must establish that the challenged order departed from the essential requirements of law. When the record conclusively demonstrates an entitlement to sovereign immunity, a trial court departs from the essential requirements of law when it denies a motion to dismiss on that basis. In reviewing an order on a motion to dismiss, we assume the truth of all well-pled factual allegations in the complaint and draw all reasonable inferences in favor of the pleader. Weaver v. Leon Cnty. Classroom Teachers Ass’n, 680 So.2d 478, 481 (Fla. 1st DCA 1996).

The Bank’s complaint alleged that, having adopted a provision in its LDC giving the City the authority to require the developer to post security to ensure completion of the Riverwalk development, and in fact having required such security in this case, the City negligently enforced its LDC by failing to conduct a reasonable investigation into the adequacy of the security posted by the developer. Specifically, the complaint alleged that the City was negligent by failing to conduct any investigation of DC Capital to determine the authenticity of the letter of credit and by further failing to investigate DC Capital’s financial ability to pay if the letter of credit was called.

To answer the question of whether sovereign immunity bars this action, it is necessary to determine whether the negligence alleged by the Bank relates to a discretionary or operational function of government. In this context, a “discretionary,” planning-level function involves “an exercise of executive or legislative power such that a court’s intervention by way of tort law would inappropriately entangle the court in fundamental questions of policy and planning.” Mosby v. Harrell, 909 So.2d 328, 328 (Fla. 1st DCA 2005). An “operational” function, on the other hand, “is one not necessary to or inherent in policy or planning, that merely reflects a secondary decision as to how those policies or plans will be implemented.” Dep’t of Health & Rehabilitative Servs. v. B.J.M., 656 So.2d 906, 911 n. 4 (Fla.1995); Mosby, 909 So.2d at 328. Operational decisions are not immune. Trianon Park Condo. Ass’n v. City of Hialeah, 468 So.2d at 924. “Functionally, the discretionary-versus-operational test is intended to determine where, in the area of governmental processes, orthodox tort liability stops and the act of governing begins.” Wallace, 3 So.3d at 1044 (internal quotations omitted).

The City asserts it is immune from suit because its decisions concerning how it allocates its resources, enforces its laws, and protects the public are matters usually protected from judicial interference. See Trianon Park Condo. Ass’n, 468 So.2d at 918-20 (“[C]ertain discretionary functions of government are inherent in the act of governing and are immune from suit.”). In Carter v. City of Stuart, 468 So.2d 955, 957 (Fla.1985), the Florida Supreme Court held that a city’s discretionary choice to enforce laws, including the priority and manner of enforcement, is a planning-level, judgmental decision for which the government is immune from liability. Applying this principle to the facts of the case, the Carter court determined that the amount of resources and number of employees to be allocated to the enforcement of an “animal control” ordinance were municipal “policy decisions” over which the city had the right to set priorities regarding whether or not to enforce its ordinance. Id.

By analogy to Carter, the City, as the sovereign, asserts its right to enforce its own LDC, to enforce it partly, or not to enforce it at all. The City had the right to decide what level of compliance was sufficient and how much, if any, of its limited resources should be allocated to enforcing compliance by a developer putting up security for an approved development. See City of Delray Beach v. St. Juste, 989 So.2d 655, 655-57 (Fla. 4th DCA 2008) (concluding that, given the government’s limited funds and space to impound animals, the decisions of the city’s animal-control officer and the police not to impound certain unfenced dogs that were the subject of complaints were discretionary functions for which the city enjoyed immunity); Dep’t of Corr. v. Grubbs, 884 So.2d 1147-48 (Fla. 2d DCA 2004) (granting petition for writ of certiorari and quashing order directing DOC to pay for a sex offender’s treatment); Elliott v. City of Hollywood, 899 So.2d 507, 508-09 (Fla. 4th DCA 1981) (concluding that the city’s alleged negligent failure to enforce its ordinance, which was intended to prevent homeowners from landscaping their property in any way that interfered with motorists’ vision, was a planning-level decision, not an operational one, and affirming the dismissal with prejudice of a complaint against the city).

As a matter of policy, the City had the right to decide it would require developers to post security. In so doing, the LDC obliged the City to approve as adequate the amount of the security, which is calculated based on the criterion expressed in the LDC. The Bank does not challenge the amount of the security posted. The City’s decision that receipt of a written guarantee of security was sufficient compliance with the LDC falls within a municipality’s inherent, fundamental policy-making authority. Regardless of its wisdom, the City’s decision not to dedicate resources towards fraud prevention by investigating the authenticity of the security or the financial solvency of its backer, was a policy decision that we are not permitted to second-guess.

Conclusion

If sovereign immunity is to be meaningful — and if we are to respect the fundamental tenets of the separation of powers — the City is entitled to certiorari review to determine whether it is immune from suit. Because the Bank’s allegations of negligence concerned a discretionary, planning-level policy decision of the sovereign, we conclude that such immunity exists and the circuit court departed from the essential requirements of law in denying the motion to dismiss. For these reasons, we exercise our jurisdiction to preclude further trial proceedings against the City.

Petition granted; order quashed.

PADOVANO and ROWE, JJ., concur.

      . Article II, section 3 of the Florida Constitution provides that: "The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.”

      . In so holding, the Third District certified conflict with Florida A & M University Board

        of Trustees v. Thomas, 19 So.3d 445 (Fla. 5th DCA 2009) (denying certiorari review), and Pinellas Suncoast Transit Authority v. Wrye, 750 So.2d 30 (Fla. 2d DCA 1996) (denying certiorari review). Rodriguez, 67 So.3d at 1223.

      . See Fla. State Univ. Bd. of Tr. v. Monk, 68 So.3d 316, 318 (Fla. 1st DCA 2011) (granting certiorari and quashing trial court order erroneously denying university immunity from defamation complaint "because absolute immunity protects a party from having to defend a lawsuit at all, and waiting until final appeal to review an order denying dismissal on immunity grounds renders such immunity meaningless if the lower court denied dismissal in error.”); Fuller v. Truncale, 50 So.3d 25, 28 (Fla. 1st DCA 2010) (granting certiorari and quashing trial court order erroneously denying judicial immunity "[bjecause judicial immunity is intended to prevent a judicial party from becoming involved in a lawsuit, it would be compromised, and irreparable harm sustained, simply by forcing a judicial party to become involved in litigation, irrespective of its outcome.”) (footnote omitted); Cedars Healthcare Grp., Ltd. v. Mehta, 16 So.3d 914, 917 (Fla. 3d DCA 2009) (granting certiorari in part and quashing trial court order erroneously denying immunity from suit pursuant to section 395.0193(5), Florida Statutes); Seminole Tribe of Fla. v. McCor, 903 So.2d 353, 357-58 (Fla. 2d DCA 2005) (granting certiora-ri and quashing trial court order erroneously denying tribal sovereign immunity "because the inappropriate exercise of jurisdiction by a trial court over a sovereignly-immune tribe is an injury for which there is no adequate remedy on appeal. Tribal sovereign immunity ... involves immunity from suit rather than a mere defense to liability, which is an entitlement that is effectively lost if a case is erroneously permitted to go to trial.”) (citations and quotation marks omitted); Bd. of Regents of State v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002) (granting certiorari and quashing trial court’s order erroneously denying claims of sovereign and qualified immunity, recognizing that if "[pjetitioners are required to go to trial, they cannot later be reimmunized from suit”).

      . Immunity from suit, inherent in sovereign immunity, is a distinct concept from a lack of liability under established tort law. As explained by the Florida Supreme Court:
      When addressing the issue of governmental liability under Florida law, we have repeatedly recognized that a duty analysis is conceptually distinct from any later inquiry regarding whether the governmental entity remains sovereignly immune from suit notwithstanding the legislative waiver present in section 768.28, Florida Statutes. Under traditional principles of tort law, the absence of a duty of care between the defendant and the plaintiff results in a lack of liability, not application of immunity from suit. Conversely, sovereign immunity may shield the government from an action in its courts (i.e., a lack of subject-matter jurisdiction) even when the State may otherwise be liable to an injured party for its tortious conduct.

        Wallace, 3 So.3d at 1044 (internal citations and footnotes omitted).

      . The City concedes that if it had adopted a policy to investigate, had undertaken the duty to do so, and had negligently performed the investigation, then such an undertaking may have been an operational function. No such policy is alleged in this case.


author: PER CURIAM.

text:
    Domingo CABRERA, Appellant, v. OUTDOOR EMPIRE and FCCI Insurance, Appellees.
    No. 1D12-4048.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2013.

      Roland P. Tan, Jr., Orlando, for Appellant.
    Kimberly J. Fernandes of Kelley, Kro-nenberg, Gilmartin, Fichtel, Wander, Bam-das, Eskalyo & Dunbrack, P.A., Tallahassee, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant challenges the Judge of Compensation Claims’ (JCC’s) conclusion that the terms of a mediation agreement, whereby the parties agreed to settle Claimant’s entitlement to workers’ compensation benefits in their entirety, were binding and enforceable, and require Claimant to execute settlement documents. Because Claimant was unrepresented at the time of the mediation, we agree with Claimant’s arguments and reverse the appealed order.

Background

At all times relevant to the issues raised in this appeal, Claimant was not represented by counsel. Claimant alleged he sustained two workplace injuries while employed by the Employer. The first, alleged to have occurred on January 30, 2007, was denied in its entirety by the Employer/Carrier (E/C). The second, occurring on February 12, 2010, was accepted as compensable and the E/C provided Claimant both medical treatment and indemnity benefits.

Because Claimant had filed petitions for benefits, the parties were ordered to attend a state mediation. The mediation took place on May 28, 2012. By the time the mediation concluded, the parties had agreed to settle both dates of accident for a total of $100,000. Both parties signed the mediation settlement agreement.

Subsequently, when Claimant refused to sign the joint petition for settlement, the E/C filed a “Motion to Enforce Settlement.” Claimant testified at the evidentia-ry hearing on the motion that he wished to withdraw from the settlement agreement. Following the hearing on the E/C’s motion, the JCC entered the appealed order enforcing the settlement agreement.

Analysis

Because resolution of this issue involves the JCC’s application of undisputed facts to the law, our review is de novo. See Gilbreth v. Genesis Eldercare, 821 So.2d 1226, 1228 (Fla. 1st DCA 2002). Our analysis begins with a review of the relevant statutory provisions relating to the settlement of future workers’ compensation benefits whereby differing requirements for settlement approval were established for represented claimants as opposed to unrepresented claimants. The statutory amendment relevant to this appeal took place in 2001, and that amended language remains, in relevant part, unchanged through the present. See Ch. 01-91, § 17, at 777, Laws of Fla. Section 440.20(11), Florida Statutes, was amended to distinguish the process for approval of settlements reached with unrepresented claimants from the agreements reached with represented claimants. Section 440.20(ll)(a) now permits unrepresented claimants to settle their rights to future benefits “at any time in any case in which the employer or carrier has filed a written notice of denial within 120 days after the employer receives notice of the injury.” The JCC is required to consider the settlement at a hearing and, thereafter, “may enter a compensation order approving and authorizing the discharge of the liability of the employer for compensation and remedial treatment ... by the payment of a lump sum.” § 440.20(ll)(a), Fla. Stat. Likewise, section 440.20(ll)(b)’s application is also limited to unrepresented claimants, and allows settlement of compensable claims, utilizing the same procedure, after the claimant reaches maximum medical improvement. Section 440.20(ll)(e) was added in 2001 and applies only to represented claimants. For represented claimants, “[t]he settlement agreement requires approval by the [JCC] only as to the attorney’s fees paid to the claimant’s attorney by the claimant.” § 440.20(ll)(c), Fla. Stat.

This court’s precedent prior to 2001 established that a workers’ compensation settlement was not binding or enforceable until approved by a JCC, and either party could legally withdraw from a settlement prior to such approval. See Smith v. Rose Auto Stores, 596 So.2d 809, 810 (Fla. 1st DCA 1992) (“The law is well settled that a settlement agreement is not final and enforceable until it is approved by the [JCC]”); Bingham v. Fla. Chip Steak Co., 496 So.2d 950 (Fla. 1st DCA 1986) (stating “lump-sum settlement agreement between the E/C and the claimant is not final and enforceable until or unless it has been approved by the deputy commissioner,” under circumstances where injured employee died after reaching oral agreement to settle case, but before settlement was reduced to writing or submitted to deputy commissioner (now JCC) for approval); Rogers v. Concrete Sciences, Inc., 894 So.2d 212, 213 (Fla. 1st DCA 1981) (“Either party may legally withdraw from a settlement agreement prior to the Deputy Commissioner’s approval.”).

Notably, when the 2001 Legislature eliminated the requirement that a JCC approve the substantive aspects of a settlement involving a represented claimant, and retained the requirement that settlements with unrepresented claimants be approved by the JCC, this court continued to rule that, in the instance of an unrepresented claimant, “[ajbsent compliance with 440.20(11), any agreement by the claimant to waive his right to workers’ compensation benefits [is] invalid.” See Vallecillo v. Bachiller Ironworks, 982 So.2d 734, 735 (Fla. 1st DCA 2008).

In contrast, in the instance of represented claimants, this court, in response to the legislative change removing the requirement that the JCC approve the substantive aspect of settlements with represented claimants, held that a valid and enforceable agreement can be reached before, and without the necessity of, JCC approval, notwithstanding the fact that section 440.20(ll)(c) and (d) still require a JCC to approve attorney’s fees. See, e.g. Risco USA Corp. v. Alexander, 91 So.3d 870, 872 (Fla. 1st DCA 2012) (holding represented claimant’s general release in separation agreement applied to employment relationship with employer and it was unnecessary for agreement to be submitted to JCC to be binding on entitlement to further workers’ compensation benefits); Brewer v. Laborfinders of Tampa, 944 So.2d 1102, 1103 (Fla. 1st DCA 2006) (holding represented employee’s general release of employer in unrelated claim sufficient to affect settlement of workers’ compensation claim, notwithstanding fact that employee’s workers’ compensation counsel was not informed of settlement); Patco Transp., Inc. v. Estupinan, 917 So.2d 922, 925 (Fla. 1st DCA 2005) (holding represented employee’s execution of general release in civil suit against employer was sufficient to settle workers’ compensation claim, notwithstanding, as pointed out in dissent, there was “no indication that the parties complied with” section 440.20(ll)(c)).

Accordingly, with respect to unrepresented claimants, the case law of this court has concluded that unapproved agreements are, as a matter of law, contingent upon JCC approval for the formation of a binding agreement, and thus, not a legal agreement or contract, until the occurrence of the condition precedent — approval by the JCC. This court’s interpretation is long-standing, binding, and consistent with the general proscriptive treatment of settlements contained in section 440.21(2), Florida Statutes (“[a]n agreement by an employee to waive her or his right to compensation under this chapter is invalid.”), for which exceptions are created in section 440.20(1l)(a)-(e), Florida Statutes. Here, the JCC erred in not applying the appropi'iate standard for unrepresented claimants.

The. E/C’s suggestion that somehow the mediation process altered or supplanted the statutory requirement that the JCC approve the settlement agreement before it is enforceable simply has no basis and appears crafted from whole cloth. As we made clear most recently in 2008, “[a]b-sent compliance with section 440.20(11), any agreement by the [unrepresented] claimant to waive his right to workers’ compensation benefits [is] invalid. See §§ 440.20(ll)(c) & 440.21(2), Fla. Stat. (2003).” Vallecillo, 982 So.2d at 735.

Accordingly, the appealed order is REVERSED, and the matter REMANDED for further proceedings.

VAN NORTWICK, LEWIS, and SWANSON, JJ., concur.


author: ALTENBERND, Judge.

text:
    Jose RUIZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2223.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 2013.
   ALTENBERND, Judge.

Jose Ruiz appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse because the fact that Mr. Ruiz raised an issue as unpre-served error on direct appeal does not prevent him from claiming in a postconviction proceeding that his trial counsel had been ineffective for failure to preserve the issue.

In 2010, a jury convicted Mr. Ruiz of multiple offenses involving sexual misconduct with a young child. His convictions include three counts of sexual battery on a child under the age of twelve, for which he is serving sentences of life without possibility of parole.

It is undisputed that during their deliberations, the trial court allowed the jury to possess and view a lengthy videotaped interview of the child victim conducted by a member of a child protection team. The jury received the tape and the machinery to view the tape without objection from Mr. Ruiz’s counsel. This occurred despite the fact that many years earlier, the supreme court expressly held that such tapes should not be allowed into the jury room during deliberations. See Young v. State, 645 So.2d 965 (Fla.1994).

In his motion for postconviction relief, Mr. Ruiz cited Young and argued that his lawyer was ineffective because he failed to object to the use of the videotape by the jury during deliberations. The postconviction court prudently ordered a response from the State.

The State responded, claiming that the issue had been raised on direct appeal. The response asserted that Mr. Ruiz was not entitled to raise this issue in postcon-viction proceedings given that it had been resolved against him on appeal. The response recited that the briefs were attached. It discussed the issue raised by Mr. Ruiz on direct appeal, but it did not discuss the State’s answer. We do not know whether the briefs were actually attached to the State’s response, but in the record on appeal they are not attached to that response or to the postconviction court’s order. The postconviction court summarily denied Mr. Ruiz’s motion, relying on the State’s response. Mr. Ruiz appealed.

On appeal, Mr. Ruiz primarily argues that the order should be reversed because the postconviction court did not attach the referenced briefs. Given that the briefs are in the records of this court, we took judicial notice of them.

The State’s response in the trial court is accurate in representing that Mr. Ruiz raised this issue on appeal and that this court affirmed the direct appeal without an opinion. See Ruiz v. State, 88 So.3d 164 (Fla. 2d DCA 2011) (table decision). But the State did not reveal to the post-conviction court the content of the State’s short answer brief. The State’s brief did not even attempt to argue that the trial court properly submitted the videotape to the jury for use during its deliberations. Rather, the State’s argument was: “While the State agrees that the Florida Supreme Court has held that a recording of a child victim’s CPT interview should not be allowed into the deliberation room, it is the State’s position, nevertheless, that the claim on review was not properly preserved.” Relying on Steinhorst v. State, 412 So.2d 332 (Fla.1982), the State argued that this court had no authority to reverse the judgments despite the error. This position had merit, in part, because the supreme court in Young had held that this error is not fundamental. 645 So.2d at 968.

It is well established that an affir-mance of a direct appeal on an unpre-served issue does not bar a defendant from seeking postconviction review under a claim of ineffective assistance of counsel. See, e.g., Harris v. State, 826 So.2d 340, 341 (Fla. 2d DCA 2002); Scholtes v. State, 27 So.3d 175, 176 (Fla. 4th DCA 2010). Accordingly, the postconviction court erred in denying this motion summarily.

We note that the issue on remand is not whether Mr. Ruiz would have received a new trial in his direct appeal if counsel had preserved the issue of the trial court allowing the child victim’s taped statement to go to the jury room. The issue on remand is whether counsel’s failure to object and preserve the issue prejudiced Mr. Ruiz. In order to establish prejudice, Mr. Ruiz must establish that the result of the trial proceedings would have been different. See, e.g., State v. Bouchard, 922 So.2d 424, 430 (Fla. 2d DCA 2006) (“[I]n evaluating prejudice, the Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] standard focuses on the effect of the deficient performance on the reliability of the outcome in the proceeding in which the deficient performance occurred rather than on whether counsel’s deficient performance in the trial court affected the defendant’s appellate rights.”). Given this complexity, it may be helpful if the post-conviction court appoints counsel to assist Mr. Ruiz on remand.

Accordingly, we reverse the order summarily denying Mr. Ruiz’s motion for post-conviction relief and remand for further proceedings.

Reversed and remanded.

DAVIS and CRENSHAW, JJ., Concur.


text:
    Andre EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-820.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2013.

      James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Andre Edwards appeals his conviction and sentence for aggravated battery with discharge of a firearm. He asserts variously that he was convicted of a crime not charged or that the jury’s failure to convict him of “aggravated battery reclassified while inflicting great bodily harm or death” precluded his conviction of aggravated battery with discharge of a firearm. We find no merit to either iteration of this claim. The offense of which he was convicted was charged, and the failure of the jury to convict of the “aggravated battery reclassified” would not preclude conviction of aggravated battery.

We agree, however, with appellant’s claim that his conviction for aggravated battery with a firearm should not have been reclassified as a first degree felony and that he, therefore, should have been sentenced to twenty years, not a twenty-five year term of imprisonment. The State implicitly concedes the error:

It is equally clear that “[ajggravated battery with a firearm is not subject to reclassification pursuant to section 775.087(1) because the use of a firearm is an essential element of the crime.” Jacobs; Lareau v. State, 578 So.2d 818 (Fla.1991); Dozier v. State, 677 So.2d 1352 (Fla. 2d DCA 1996).
However, under Section 775.087(2)(a)(2), the Defendant is subject to a 20 year minimum mandatory sentence, even though the aggravated battery is a second degree felony. Under the statute, known as the 10-20-life statute, the minimum mandatory sentence is required regardless of whether the use of a firearm is an element of the crime, if the Defendant actually discharged the firearm during the commission of the felony-
In the instant case, the evidence showed — and the jury found — that the Defendant committed an aggravated battery when he shot the victim. The jury clearly found that the Defendant discharged the firearm during the commission of the felony. Therefore, the Defendant is subject to the 20 year minimum mandatory sentence, even if his felony is a second degree felony.

We accordingly affirm the conviction, but vacate the sentence and remand for resen-tencing.

AFFIRMED in part; sentence VACATED; and REMANDED.

GRIFFIN, PALMER and JACOBUS, JJ., concur.


text:
    Richard R. TAYLOR, Appellant, v. TGI FRIDAY’S, INC. and Gallagher Bassett Services, Inc., Appellees.
    No. 1D11-6356.
    District Court of Appeal of Florida, First District.
    Feb. 22, 2013.
    Kenneth B. Schwartz, West Palm Beach, for Appellant.
    Rosemary Wilder of Marlow, Connell, Abrams, Adler, Newman & Lewis, Coral Gables, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Richard Taylor, Claimant, argues that the Judge of Compensation Claims (JCC) erred by denying Claimant’s claim for payment of medical bills related to the symptoms Claimant demonstrated when he presented to the hospital for treatment. Because the expert medical advisor (EMA) testified that the compensable injury was the major contributing cause (MCC) of the collection of symptoms that led to the treatment provided to Claimant, and because the JCC failed to cite clear and convincing evidence sufficient to reject the presumed correctness of the EMA’s opinion, we REVERSE.

An EMA’s opinion has nearly conclusive effect, Pierre v. Handi Van. Inc., 717 So.2d 1115 (Fla. 1st DCA 1998), and is presumed to be correct unless the JCC finds and articulates clear and convincing evidence to the contrary. See § 440.13(3)(c), Fla. Stat. (2006); see also Amos v. Gartner, Inc., 17 So.3d 829 (Fla. 1st DCA 2009). Although the JCC states that she relied upon the EMA’s medical opinions regarding the nature of Claimant’s condition and need for treatment, the JCC miseharacterized the EMA’s deposition testimony relative to the MCC of the collection of symptoms that led to the treatment provided at Memorial Hospital West. Even though the EMA opined that Claimant’s compensable injury was not the MCC requiring the installation of a permanent pacemaker in Claimant, the EMA testified that Claimant’s compensable injury was the MCC of the collection of symptoms that led to treatment provided at Memorial Hospital West. Absent clear and convincing evidence to reject same, the JCC erred in finding that Claimant’s com-pensable accident was not the MCC of the collection of symptoms that led to the treatment provided at the hospital. Accordingly, Claimant is entitled to payment for all reasonable and medically necessary services related to the collection of symptoms Claimant presented with on March 11th, based on the testimony from the EMA. Accordingly, the order on review is reversed and remanded for entry of an order consistent with this opinion.

REVERSED and REMANDED.

VAN NORTWICK, LEWIS, and SWANSON, JJ., concur.


text:
    C.C., Father of J.C., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D12-3417.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 2013.
    Mark A. Skipper, Office of Criminal Conflict and Civil Regional Counsel, Orlando and Jeffrey Deen, Office of Criminal Conflict and Civil Regional Counsel, Cas-selberry, for Appellant.
    Rosemarie Farrell, of Children’s Legal Services, Orlando, for Appellee.
   PER CURIAM.

C.C., father of J.C., timely appeals a final order which terminated the Department of Children and Families’ protective supervision over his son and placed J.C. in the permanent guardianship of his paternal aunt. Although the trial court’s decision is supported by competent, substantial evidence, the final order itself does not contain or reference the detailed findings required by section 39.6221(2)(a), Florida Statutes (2012). See, e.g., R.T., Sr. v. Dep’t. of Children and Families, 27 So.3d 195 (Fla. 5th DCA 2010). The order also fails to comply with section 39.6221(2)(c), Florida Statutes (2012), which requires the trial court to “[s]pecify the frequency and nature of visitation or contact between the child and his or her parents.” See, e.g., In re J.L.R., Jr., 64 So.3d 1283 (Fla. 2d DCA 2011). Accordingly, we reverse and remand for entry of an amended order that meets the requirements of section 39.6221(2)(a) and (c), Florida Statutes.

REVERSED AND REMANDED.

GRIFFIN, PALMER and LAWSON, JJ., concur.

      . Although the Department highlights that the trial court ordered four hours per week of visitation at the hearing on the matter, the same is not reflected in the permanent guardianship order. Rather, the final order simply states that visitation shall be solely at the discretion of the guardian, which is insufficient under section 39.6221(2)(c), as explained in In re J.L.R., Jr.


text:
    Alvin Bernard BARNES, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1462.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2013.

      Nancy A. Daniels, Public Defender; and Richelle M. Marsico, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Alvin Barnes appeals his conviction and sentence for failure to register as a sexual offender. Barnes argues that section 943.0435, Florida Statutes (2011), violated his right to procedural due process and the trial court erred in denying his as-applied constitutional challenge. Barnes also asserts error based on the court’s failure to give a requested special instruction on Barnes’ sole defense and the court’s admitting a certain documentary letter into evidence. We affirm without further discussion the rulings relating to the constitutional challenge and the evi-dentiary issue. We reverse and remand for a new trial, however, based on the failure to give the special instruction.

Facts

Barnes is a sexual offender. The State charged him with knowingly failing to report a change of his temporary or permanent address, within forty-eight hours, to an office of the Florida Department of Law Enforcement (FDLE), the Alachua County Sheriffs Office, or the Department of Highway Safety & Motor Vehicles (DHSMV), a violation of section 943.0435(4), Florida Statutes. Barnes testified as follows.' After successfully registering with the sheriffs office and FDLE on September 9, 2011, he received a sexual offender registration packet and went in person to the DHSMV on that same day to attempt to register his change of address and obtain an I.D. card. Because Barnes had only his sexual offender registration packet and a handwritten note from his mother, and could not provide documentation acceptable to the DHSMV to verify his new address, the examiner at the DHSMV turned him away. The examiner did not provide Barnes with written verification that he had appeared and tried to comply with the statutory registration requirements.

The State presented evidence that the DHSMV had a standard procedure for processing sexual offenders who cannot afford to pay the registration fee or who fail to produce adequate documentation. Under this procedure, the offender would receive verification of his appearance and attempt to register. Some months after the DHSMV turned Barnes away, a policeman stopped Barnes, who gave his current address. When the officer ran this address through the law enforcement database, he discovered a discrepancy with Barnes’ last reported address. This led to his arrest and the charge.

During the charge conference at trial, defense counsel requested a special jury instruction based on the theory of defense that Barnes timely appeared at the DHSMV with his FDLE registration packet and a hand-written letter stating his address, but was turned away twice. Counsel asked the trial court to inform the jury that, if it believed the State had misinformed Barnes or otherwise prevented him from timely registering at the DHSMV, then Barnes would have an affirmative defense to the charge. The prosecutor objected to the proposed special instruction, and the court refused to give the instruction. During the general discussion of the request for a special instruction, the court appeared to weigh certain evidence that Barnes knew from prior experience how to obtain verification of the attempt itself, even if he was unsuccessful in registering a change of information at the DHSMV.

The court gave the standard instruction which, in pertinent part, allowed the jury to find Barnes, a sexual offender, guilty if he “knowingly failed to report” in person to the DHSMV within forty-eight hours after registering with the sheriffs office and the FDLE and “knowingly failed to secure” an I.D. card. See Fla. Standard Jury Instructions in Crim. Cases 11.14(d); In re Standard Jury Instructions in Crim. Cases — Report No. 2007-4, 983 So.2d 531, 536-37 (Fla.2008). Defense counsel renewed the objection to the failure to give the special instruction.

At the beginning of closing argument, the State asserted that Appellant had knowledge of the reporting requirements but did not update his address with the DHSMV. The prosecutor argued: “Because of that, he is guilty as charged.” The State emphasized the result — Appellant’s failure to get an updated I.D. card from the DHSMV — and asserted that his noncompliance resulted because “he just didn’t care.” The jury found Barnes guilty as charged.

Analysis

The general rule is that a criminal defendant is entitled, upon request and by law, to a jury instruction on the law pertaining to the theory of defense if any evidence supports the theory, irrespective of how weak this evidence is. See Quick v. State, 46 So.3d 1159, 1160 (Fla. 4th DCA 2010); Chavers v. State, 901 So.2d 409, 410-11 (Fla. 1st DCA 2005). In deciding whether to give a requested instruction, the trial court cannot weigh the evidence; it is enough if any evidence supports the defense. Terwilliger v. State, 535 So.2d 346, 347 (Fla. 1st DCA 1988). Contending that the standard instruction was inadequate under the evidence, defense counsel requested a special instruction. The Florida Supreme Court has articulated a corollary rule on this subject:

In order to be entitled to a special jury instruction, [a criminal defendant] must prove: (1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing.

Stephens v. State, 787 So.2d 747, 756 (Fla.2001) (internal footnote citations omitted); Billie v. State, 963 So.2d 837, 840 (Fla. 3d DCA 2007).

The requested special instruction satisfied all three elements of the test enunciated in Stephens v. State. First, Barnes’ testimony provided some evidence that when he timely reported in person to the DHSMV, after successfully registering with the sheriffs office and FDLE on September 9, 2011, an agency employee turned him away without providing him with any proof that he had appeared and attempted in good faith to comply with the statutory reporting requirements. The alleged failure to document Barnes’ visit is contrary to the State’s testimony that the DHSMV had a standard procedure to deal with, and provide verification to, sexual offenders who appeared in person but could not pay the fee or could not produce adequate documentation to verify a change of address.

As to the second element, the standard instruction allowed the jury to find Barnes guilty of the charged offense if he “knowingly” failed to report to the DHSMV within forty-eight hours after registering to present proof with the sheriffs office and “knowingly’ failed to secure an I.D. Barnes acknowledged being told by the DHSMV that his documentation of the change of address was insufficient to complete the reporting transaction. Thus, he admitted knowing that the handwritten letter from his mother was not acceptable to the DHSMV. The analysis of whether he was guilty of the charged offense should not have ended there, for the jury was entitled to consider whether the State thwarted Barnes’ good-faith efforts. The standard instruction was inadequate to cover Barnes’ theory of defense. See Funchess v. State, - So.3d -(Fla. 4th DCA 2012).

As to the third element in Stephens v. State, the requested special instruction correctly stated the law. For these reasons, we conclude that the trial court erred in failing to give the requested special instruction on Barnes’ sole theory of defense.

Where a trial court erroneously fails to give a requested special instruction that it should have given, and the requesting party makes a contemporaneous objection, the State, has the burden, as the beneficiary of the error, to prove beyond a reasonable doubt that it was harmless error not to give the instruction. See State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986). “The test for harmless error focuses on the effect of the error on the trier of fact.” Johnson v. State, 53 So.3d 1003, 1007 (Fla.2010).

The evidence sharply conflicted concerning whether Barnes attempted to register at the DHSMV. Under the State’s theory, a sexual offender could be convicted and sentenced for knowingly failing to register, irrespective of whether the State thwarted the offender’s good-faith attempt to comply with the statute. The State does not contend that it was harmless error not to give the instruction, nor can we say beyond a reasonable doubt that the error did not affect the verdict. State v. DiGuilio, 491 So.2d at 1139. Accordingly, we reverse Barnes’ conviction and sentence and remand for a new trial.

DAVIS, RAY, and SWANSON, JJ., concur.


author: PALMER, J.

text:
    Marc MEDIATE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4424.
    District Court of Appeal of Florida, Fifth District.
    March 1, 2013.

      Robert A. Norgard and Andrea M. Nor-gard, of Norgard and Norgard, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Marc Mediate (defendant) appeals his departure sentence which was entered by the trial court upon review of his rule 3.800(a) post-conviction motion. We affirm.

The defendant, while still a minor, committed the crimes of kidnapping and four counts of sexual battery. He was sentenced to a term of life in prison on the kidnapping conviction and four concurrent 30-year terms of imprisonment on the sexual battery convictions. The defendant’s convictions and sentences were affirmed on direct appeal as well as on numerous collateral appeals.

In November 2010, the defendant filed a rule 3.800(a) motion to correct sentence, arguing that his life sentence on the kidnapping conviction violated Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), which held that, under the cruel and unusual punishment clause of the Eighth Amendment to the U.S. Constitution, a juvenile offender cannot be sentenced to life imprisonment without the possibility of parole for committing a non-homicide crime. The trial court granted the motion, vacated the defendant’s life sentence, and held a re-sentencing hearing. The trial court then re-sentenced the defendant, imposing a departure sentence of 130 years’ imprisonment, concurrent with the sentences previously imposed on the four sexual battery convictions.

The defendant argues that the trial court’s departure sentence must be reversed because (1) the trial court’s written departure order is legally deficient, and (2) each of the four reasons stated by the court to justify imposing a departure sentence are invalid. We disagree.

The defendant first maintains that the trial court’s written sentencing order is legally deficient because it fails to set forth any facts to support the court’s departure reasons. The State properly responds by arguing that this claim of error has been waived for purposes of appellate review because the defendant failed to raise the claim in the trial court.

In King v. State, 904 So.2d 505 (Fla. 5th DCA 2005), our court recognized that valid reasons supporting a sentencing departure are statutorily required to be set forth in writing, but held that a party must preserve the right to challenge this sentencing error on appeal by raising the issue first in the trial court. Accord State v. Resh, 992 So.2d 294 (Fla. 5th DCA 2008). Here, the defendant is raising the issue of the trial court’s failure to set forth written reasons for departure for the first time on appeal; therefore, we reject this claim of error as waived.

The defendant next contends that the trial court’s reasons for entering its upward departure sentence are invalid. However, the State is correct that appellate consideration of this claim of error is barred by the law of the case doctrine.

The law of the case doctrine prevents the litigation of issues which were actually decided in a prior appeal. State v. McBride, 848 So.2d 287, 289-90 (Fla.2003). On re-sentencing in the instant case, the trial court orally stated four reasons for imposing a departure sentence. All four reasons echoed the reasons used by the trial court when imposing the defendant’s original departure sentence, and those reasons were challenged by the defendant, but affirmed by this court, in his direct appeal. Thus, the law of the case doctrine precludes the defendant from seeking a second review of the trial court’s departure reasons. See Isom v. State, 800 So.2d 292 (Fla. 3d DCA 2001) (holding that, under the doctrine of law of the ease, defendant was precluded from obtaining collateral relief on his claim that the trial court improperly departed from sentencing guidelines where his sentence was previously affirmed by the appellate court); Raley v. State, 675 So.2d 170 (Fla. 5th DCA 1996) (holding that law of the case doctrine precluded appellate court from reviewing the defendant’s post-conviction claim that his sentence was illegal where that court had previously reviewed and rejected the same claim).

The defendant next argues that his sentence of 130 years’ imprisonment violates Graham because, although the sentence is for a term of years, the sentence is the functional equivalent of a life sentence. In so arguing, the defendant properly recognizes this court’s decision in Henry v. State, 82 So.3d 1084 (Fla. 5th DCA 2012), which held that Graham does not apply to lengthy aggregate term-of-years sentences. However, he cites cases from the First District that conflict with the ruling in Henry, and invites this court to reconsider Henry. See Adams v. State, — So.3d -(Fla. 1st DCA 2012); Floyd v. State, 87 So.3d 45 (Fla. 1st DCA 2012).

In Henry, the juvenile defendant appealed his collective sentences of 90 years’ imprisonment, contending that they violated the constitutional prohibition against cruel and unusual punishment under Graham. Our court rejected this argument, reasoning:

In this appeal, Henry contends that his current sentence constitutes a de facto sentence of life without the possibility of parole and that such a sentence meets the test of cruel and unusual punishment under Graham. Although the time that Henry is to serve can be shortened through incentive and meritorious gain-time, under Florida law, he must serve eighty-five percent; therefore, Henry should serve at least 76.5 years. Henry has filed a National Vital Statistics Report as supplemental authority, suggesting that his life expectancy at birth by race and sex is 64.3 years. Henry argues that because he is going to have to serve more years in prison than, statistically, he is expected to live, his sentence is an unconstitutional de facto life sentence.
If we conclude that Graham does not apply to aggregate term-of-years sentences, our path is clear. If, on the other hand, under the notion that a term-of-years sentence can be a de facto life sentence that violates the limitations of the Eighth Amendment, Graham offers no direction whatsoever. At what number of years would the Eighth Amendment become implicated in the sentencing of a juvenile: twenty, thirty, forty, fifty, some lesser or greater number? Would gain time be taken into account? Could the number vary from offender to offender based on race, gender, socioeconomic class or other criteria? Does the number of crimes matter? There is language in the Graham majority opinion that suggests that no matter the number of offenses or victims or type of crime, a juvenile may not receive a sentence that will cause him to spend his entire life incarcerated without a chance for rehabilitation, in which case it would make no logical difference whether the sentence is “life” or 107 years. Without any tools to work with, however, we can only apply Graham as it is written. If the Supreme Court has more in mind, it will have to say what that is. We conclude that Henry’s aggregate term-of-years sentence is not invalid under the Eighth Amendment and affirm the decision below.

82 So.3d at 1086-89 (footnotes omitted). Accord Walle v. State, 99 So.3d 967 (Fla. 2d DCA 2012). We reject the defendant’s invitation to revisit Henry and, therefore, we affirm his departure sentence. We agree, however, with the sentiment expressed by Judge Wolf in his dissent in Gridine v. State, 89 So.3d 909, 911 (Fla. 1st DCA 2011), that Florida courts are not in a position to address the concerns raised by Graham since no parole system is in place for juveniles, and that only the legislature has the authority to create a provision for parole. Hopefully, the legislature will do so in light of Graham.

AFFIRMED.

LAWSON and COHEN, JJ„ concur.

      . See Fla. R. Crim. P. 3.800(a).

      . The defendant acknowledges that the gain time provisions in effect at the time he committed his crimes may enable him to complete his sentence within 45 years. As such, the 130-year sentence does not appear to be the functional equivalent of a life sentence.


author: TORPY, J.

text:
    Alfonso Levertes JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1221.
    District Court of Appeal of Florida, Fifth District.
    March 1, 2013.
    Mark Miller of App. Law Office of Mark Miller, P.A., Stuart, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON MOTION FOR WRITTEN OPINION

TORPY, J.

We grant the motion for written opinion, withdraw our prior disposition without opinion, and substitute this opinion in its stead. The sole issue on appeal is whether the trial court abused its discretion in excluding the testimony of a witness who would have testified concerning the victim’s character for truthfulness. We conclude that the trial court did not abuse its discretion when it excluded the testimony based on an inadequate foundation. Alternatively, we conclude that any error was harmless.

Appellant challenges his conviction for aggravated battery with a deadly weapon or bodily harm of his then girlfriend, Ms. Finnie, who sustained a stab wound to her hand during an altercation between the two. The defense theory was that Ms. Finnie had been the aggressor in the confrontation. Several witnesses testified on behalf of the State: the victim, her son, and police who investigated the incident.

The defense offered the testimony of the victim’s cousin, Mr. Bass. He testified that the victim told him after the incident that “she had a knife waiting for [Appellant] sitting in the windowsill.” Mr. Bass also testified that Ms. Finnie advised him that she could not remember how she was injured because it happened so fast. The defense attempted to introduce testimony from Mr. Bass related to his knowledge of Ms. Finnie’s character for truthfulness. In a proffer made outside the presence of the jury, Mr. Bass testified to the following, upon questioning by defense counsel:

So do you — have you ever spoken with other family members concerning Miss Finnie? &
A. Spoken with them in terms of regards to what?
Her truth, veracity, anything along those lines. <y
Yes. <!
Okay. And outside of the family, like other members of you-all’s community grouping, have you ever talked to any of those people and her name comes up? 0
Yes. >
And have — as far as her reputation within the community, in speaking with these people, what is that? £>
A. She’s simply like a day-and-night person. On the one hand, she’s one way, people would think that she was, you know, a good person, but on the other hand, you know, she’s got a real deep, dark side.
Well, I guess you were looking for her — you know, things along the lines of her truth, veracity. <©
A. Right. She’s a — she’s a very good liar.
Okay. &
And— <4
So that would be, no, she doesn’t have good truth or veracity? &
No, she doesn’t. <j
And this opinion — I mean, it’s not based on just gossip or rumors that these people and that you have about her general reputation; is that true? &
Is it just S>
No. Is it just — I mean, it’s not based on gossip <©
No. No, it’s— !>
—and rumors? <©
—based on firsthand knowledge. i>
Q. Okay.

When cross-examined during the proffer about his knowledge of Ms. Finnie’s reputation, the following occurred:

Q. Now, you said you’ve had thi— you’ve talked about [Ms. Finnie] with other people. Who?
A. What do you mean?
Q. Give me names of people you’ve talked to about [Ms. Finnie] and her reputation in the community. I need names, who you’ve talked to.
A. Well, I’ve spoken with my aunt about her.
Q. What’s her name?
A. Her name’s Lily Finnie.
Q. That’s your aunt?
A. Yes.
Q. Okay. Who else?
A. I spoke with my cousin about her, Carleetha Lamons.
Q. Okay.
A. I spoke with Shauna’s ex.
Q. Who’s that?
A. Marcus. Marcus Phillips.
Q. All those people you’re describing, they’re relatives or people in the same group of people that run together, right?
A. Well, my — my mother also. My mother, my aunt, my grandmother, my cousin — all of these are family members.
Q. And these conversations you’ve had, what are — tell me the conversations.
A. Well, how nasty [Ms. Finnie] could be.
Q. Nasty?
A. Yes.
Q. Okay.
Q. Have you talked to these people about her reputation for truthfulness or that she’s nasty?
A. Both.
Q. You sit there around the kitchen and say you know what [Ms. Fin-nie’s] reputation amongst the community is for dishonesty. That’s not true, is it?
A. Sir, this is a family member and we deal with her on a daily basis.
Q. A family member?
A. Right. And we deal with her on a daily basis.

The trial court excluded the proffered testimony, concluding that Appellant failed to establish a sufficient predicate because the witness did not have sufficient broad-based knowledge from the community concerning the victim’s reputation. The trial judge said:

I do not believe a sufficient predicate has been laid for the reputation evidence. There’s not been any evidence in a broad section of the community, and simply talking amongst family members is not sufficient; and, therefore, I’m not going to allow the reputation testimony.

Appellant argues that the trial court should have permitted the testimony of Mr. Bass. Specifically, Appellant argues that any perceived deficiency in the predicate goes to the weight of the testimony, rather than its admissibility. We disagree and affirm.

Character evidence of the sort here may only be introduced in one form— reputation. § 90.609, Fla. Stat. (2012). This form of evidence is thought to be reliable because it is the “product of what is generally discussed in the community.” Charles W. Ehrhardt, Florida Evidence § 405.1 (2012). Reputation evidence is just that — evidence of one’s reputation in the community for a particular character trait. It is not the personal opinion of the testifying witness or evidence of specific acts of untruthfulness. Because this form of evidence is hearsay by its very nature, its admission is controlled by section 90.803(21), Florida Statutes, which is the hearsay exception for reputation testimony. Ehrhardt, supra, § 609.1. Section 90.803(21) only permits evidence of reputation “among associates or in the community.” The “community” must be “sufficiently broad-based” so that the reputation evidence is not merely based on “ ‘fleeting encounters, or rumor.’ ” Lott v. State, 695 So.2d 1239, 1242 (Fla.1997) (quoting Rogers v. State, 511 So.2d 526, 530 (Fla.1987)).

The proponent of reputation evidence must “lay the foundation that the witness is aware of the person’s reputation in the community.” Ehrhardt, supra, § 609.1. The party opposing the introduction of the evidence has the right to test the sufficiency of the foundation through cross-examination. Id. The factual determination of whether the impeachment witness is sufficiently familiar with the reputation of the witness is a preliminary question of fact to be determined by the trial judge based on a preponderance of the evidence, pursuant to section 90.105. Ehrhardt, supra, § 105.1. In this regard, the trial judge’s function is the same for this form of evidence as other forms of evidence that require a factual foundation for admission. See, e.g., Coney v. State, 653 So.2d 1009, 1012 (Fla.1995) (whether hearsay qualifies as dying declaration is preliminary question for judge); see also Ehrhardt, supra, § 609.1 (“[T]o be admissible, the trial judge must find that the witness is in fact aware of the person’s reputation and not the impression of one or two individuals or the personal opinion of the witness.”); Feller v. State, 637 So.2d 911, 916 (Fla.1994) (reliability of hearsay evidence function of court prior to admission, not jury); Mariano v. State, 933 So.2d 111, 113 (Fla. 4th DCA 2006) (whether statement was excited utterance is question for court); Eh-rhardt, supra, § 702.1 (whether witness is qualified as expert is preliminary question of fact for trial judge prior to admission of expert’s opinion). We review these preliminary determinations under an abuse of discretion standard. Lott, 695 So.2d at 1242.

Accordingly, appellate courts have upheld the exclusion of character-for-truthfulness evidence when the source of the hearsay is too narrow or where the testifying witness does not actually know the person’s reputation in the community. See, e.g., Ibar v. State, 938 So.2d 451, 469 (Fla.2006) (evidence inadmissible when based on conversation with family members and employee of state attorney’s office); Lott, 695 So.2d at 1242 (exclusion of character evidence was within trial court’s discretion where it was based on witness’s and his family’s experiences, rather than broad-based community knowledge); Larzelere v. State, 676 So.2d 394, 400 (Fla.1996) (no abuse of discretion in denying testimony derived from limited period of time, limited number of people, and narrow section of community); Gonzalez v. State, 871 So.2d 1010, 1011 (Fla. 4th DCA 2004) (reputation within family too narrow segment of community; source of evidence must be sufficiently broad to enhance its reliability); Wisinski v. State, 508 So.2d 504, 505 (Fla. 4th DCA 1987) (reputation must be based on more than three or four persons); Fike v. State, 455 So.2d 628, 629 (Fla. 5th DCA 1984) (reputation of witness among criminal defense lawyers too narrow).

Here, the trial court was well within its discretion in excluding the proffered testimony. The questions used to develop the foundation for this testimony were inartful at best. What was meant by “community grouping” is unclear, but a fair reading of the entire testimony supports the trial court’s conclusion that the source of the purported reputation was limited to the victim’s family. Although one’s reputation within one’s family might be logically probative, it is simply not admissible under section 90.803(21) because family members are neither “associates” nor the “community.” See Ibar, 938 So.2d at 469 (evidence inadmissible when based on conversation with family members and employee of state attorney’s office); Gonzalez, 871 So.2d at 1011 (reputation within family too narrow segment of community; source of evidence must be sufficiently broad to enhance its reliability). Even assuming Mr. Bass’s proffered testimony was sufficiently based on the relevant community, his answers were confusing, inconsistent at times, and unresponsive. It is unclear from the testimony whether Mr. Bass was offering reputation evidence based on rumor or his personal opinion about Ms. Finnie’s veracity from his “firsthand knowledge.” The trial judge was in the best position to evaluate this testimony and make a preliminary finding of fact whether the witness was truly familiar with the reputation of the victim in the “community” or among her “associates,” as the statute requires. We cannot disturb this finding under our standard of review.

Appellant places primary reliance on two decisions from our sister court, with which he urges we are in conflict: Muir v. State, 987 So.2d 230 (Fla. 4th DCA 2008); Palmer v. State, 978 So.2d 282 (Fla. 4th DCA 2008). These decisions are at the center of Appellant’s request for a written opinion and asserted belief that further review might be available. We initially dismissed the specter of conflict because the relatively brief opinions do not set forth the substance of the cross examinations wherein the state attempted to “undermine the predicate.” Without those facts, the opinions are not particularly instructive. Appellant interprets these decisions to stand for the proposition that any challenges to the foundation for this form of evidence fall within the exclusive province of the jury, rather than the trial judge, because the challenges go to the weight and not the admissibility of the evidence. In other words, once the impeachment witness makes the conclusory assertion that he is familiar with the witness’s reputation for veracity in the community, the evidence must be admitted, despite the effectiveness of challenges to “undermine the predicate.” Appellant’s interpretation finds some support in the language of the opinions. If this is what was intended in these decisions, the opinions offer no analysis or authority to support such a proposition, which is clearly contrary to section 90.105 and controlling precedent. We thus acknowledge that our decision today might be in conflict with Palmer and Muir, although it is in harmony with an earlier decision from the same court, Gonzalez, 871 So.2d 1010.

Lastly, we address the State’s alternative contention that any error here was harmless. Mr. Bass was permitted to testify regarding the statements made to him by Ms. Finnie. These statements, if believed, would have clearly contradicted Ms. Finnie’s testimony. Obviously, the jury rejected this testimony, perhaps because Mr. Bass was not the model of good character himself. He admitted that he had been convicted of eight crimes, four of which were felonies and four of which were crimes involving dishonesty. Under the facts of this case, the addition of Mr. Bass’s view on the character of the victim would have added nothing to enhance his credibility and not changed the outcome.

AFFIRMED.

ORFINGER, C.J., and EVANDER, J., concur.

      . Gamble v. State, 492 So.2d 1132 (Fla. 5th DCA 1986), also cited by Appellant is distinguishable. Gamble simply stands for the proposition that an impeachment witness’s testimony is not inadmissible because he cannot remember who he talked to in the community. In this case, the basis for excluding the witness was that the witness only talked to family members. The function of the trial judge in evaluating the foundation is to determine factually whether the impeachment witness really knows the witness’s reputation and whether that reputation is among associates or from the community of the witness who is the subject of the impeachment.

      . The persuasive effect of reputation evidence on juries is unclear. When presented properly, the evidentiary presentation is very brief and seemingly lacking in substance. Although theoretically reliable, the notion that unsubstantiated gossip may be considered as evidence is counterintuitive.