author: PALMER, J.

text:
    TOWN OF PONCE INLET, Appellant, v. PACETTA, LLC, etc., et al., Appellee.
    No. 5D12-1982.
    District Court of Appeal of Florida, Fifth District.
    July 5, 2013.
    Rehearing and Rehearing En Banc Denied Aug. 15, 2013.
    Elliot H. Scherker, Brigid F. Cech Sam-óle and Rachel A. Canfield, of Greenberg, Traurig, P.A., Miami, Kimberly S. Mello, of Greenberg Traurig, P.A., Tampa, Noah C. McKinnon and Abraham C. McKinnon, of McKinnon & McKinnon Attorneys at Law, P.A., Ormond Beach, for Appellant.
    Nancy E. Stroud, of Lewis, Stroud & Deutsch, P.L., Boca Raton, for American Planning Association, Florida Chapter and Florida league of Cities, Inc., Amicus Curiae.
    Peter B. Heebner and John Upchurch, of Heebner, Baggett, Upchurch & Garthe, P.L., Daytona Beach and David A. Monaco, The Carlyle Appellate Law Firm, The Villages, for Appellee.
    Alan E. Deserio and Christina M. Martin, Stuart, for Pacific Legal Foundation, Amicus Curiae.
   PALMER, J.

The Town of Ponce Inlet appeals the portion of the non-final order entered by the trial court finding in favor of Pacetta, LLC., Down The Hatch, Inc., and Mar-Tim, Inc., (hereinafter collectively referred to as “Pacetta”) on their claim for damages under the Bert J. Harris, Jr. Private Property Rights Protection Act (Harris Act), section 70.001, Florida Statutes (2009). Determining that the trial court erred in finding Ponce Inlet liable to Pacetta under the Harris Act, we reverse.

In its order, the trial court set forth the following summary of the facts underlying this lawsuit:

[Pacetta has] assembled a piece of riverfront real property on the shores of the Halifax River in Ponce Inlet, Florida, consisting of approximately 16 acres. The congruent waterfront property and two small adjoining residential parcels were acquired by Pacetta LLC, Down the Hatch Inc., and Mar-Tim, Inc., between June 14, 2004 and May 10, 2006.
[Pacetta’s] claims assert that between June, 2004 and November 18, 2008, there had developed a beneficial relationship with the Town, its council, its planning department and, for the most part, with its citizens. In short summary, as a result of the communications and representations by and between the parties, a casual observer might conclude that a delightful mixed use planned waterfront development was to be approved by the Town sometimes referred to as the Villages of Ponce Park.
Nonetheless, approval for the project did require appropriate changes in the Comprehensive Land-Use Plan and land use development code regulations consistent with the discussions that the parties had over that long period of time.
[T]he Comprehensive Land-Use Plan was in its renewal cycle and submitted to the State for approval in early 2008. All of the extensive planning was done, approved, submitted and agreed to by the State subject to its objections, recommendations and comments. The approval of the Comprehensive Land-Use Plan would be the first step in any land development changes to allow for the mixed use that the parties had come to desire. The new comprehensive plan was amended to address the objections by the State so it was in a form that, upon final reading and approval, would have essentially been approved by the State and become final which was until 2008, the apparent intention of all concerned. In 2008, there was a referendum passed motivated by opposition to the project and the three commissioners were elected who had announced opposition to the project. In November of 2008, when the [Comprehensive Land-Use Plan] was up for its final approval, the plan as originally expected by [Pa-cetta] was defeated based on a vote of the outgoing council.

After the proposed 2008 amendment to Ponce Inlet’s Comprehensive Land-Use Plan was defeated, Pacetta filed suit against Ponce Inlet asserting several claims for relief, including a claim for damages under the Harris Act.

The Harris Act enables property owners to seek relief, which may include compensation for the actual loss to the fair market value of its real property caused by government action, when a “specific action of a governmental entity has inordinately burdened ... a vested right to a specific use of real property”. § 70.001(2). The Act defines the term “action of a governmental entity” as meaning “a specific action of a governmental entity which affects real property”. § 70.001(3)(d). The Act further defines the term “inordinate burden” as meaning, inter alia, government action that restricts or limits a vested right to a specific use of the property. § 70.001(3)(e). A vested right can be established through the application of the principle of equitable estoppel. § 70.001(3)(a).

The matter proceeded to a non-jury trial. Upon review of the evidence presented, the trial court entered judgment in favor of Pacetta, holding:

[Pacetta has] established by equitable estoppel a vested right to have the Town include in its Comprehensive Land-Use Plan dealing with the 16 acre Pacetta Group property the terms originally approved upon first reading [of the 2008 amendment to the Comprehensive Land-Use Plan].

This appeal timely followed.

Ponce Inlet argues that the trial court erred, as a matter of law, in granting Pacetta relief under the Harris Act on the basis of equitable estoppel. We agree.

A trial court’s legal conclusions, reached following a non-jury trial, are reviewed de novo. Acoustic Innovations, Inc. v. Schafer, 976 So.2d 1139, 1143 (Fla. 4th DCA 2008).

In order to prevail on its Harris Act claim, Pacetta was required to prove that an action by Ponce Inlet constituted an inordinate burden to a vested right regarding the use of its properties. The trial court concluded that Pacetta sustained its burden of proof because Pacetta’s vested right to develop its properties, as negotiated by the parties, was created by the application of the principle of equitable estoppel.

In Citrus County v. Halls River Development, Inc., 8 So.3d 413 (Fla. 5th DCA 2009), our court explained the principle of equitable estoppel as follows:

The doctrine of equitable estoppel may be invoked against a governmental body when a property owner (1) relying in good faith (2) upon some act or omission of the government (3) has made such a substantial change in position or incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the rights that the owner has acquired. Verizon Wireless Pers. Commc’ns, L.P. v. Sanctuary at Wulfert Point Cmty. Ass’n, 916 So.2d 850, 856 (Fla. 2d DCA 2005). However, estoppel should be invoked against the government only in exceptional circumstances. Watson Clinic, LLP v. Verzosa, 816 So.2d 832, 834 (Fla. 2d DCA 2002). And, most importantly, the doctrine of estoppel does not generally apply to transactions that are forbidden by law or contrary to public policy. Montsdoca v. Highlands Bank & Trust Co., 85 Fla. 158, 95 So. 666, 668 (1923); Dade County v. Gayer, 388 So.2d 1292, 1294 (Fla. 3d DCA 1980).

Id. at 421-22. We then analyzed the principle as applied to a Harris Act claim.

In that case, Citrus County appealed the trial court’s order determining that the County was liable under the Harris Act because it had inordinately burdened real property owned by Halls River Development, Inc. Of relevance to the instant appeal, Citrus County’s Comprehensive Plan originally designated the property at issue as being mixed use (MXU), which permitted construction of multifamily condominiums. However, the County later amended its Comprehensive Plan, changing the property’s classification from MXU to Low Intensity Coastal and Lakes (CL), which restricted development to one unit per twenty acres of real property. Four years after the County amended its Comprehensive Plan, Halls River purchased the property at issue, and received government assurances that development of a condominium complex was a proper use for the property. Opponents of Halls River’s condominium development plan filed a petition for a writ of prohibition seeking to prohibit the County from approving any project on the Halls River property that was not authorized under its CL designation. The trial court granted the petition, ruling that Halls River’s plan to develop a condominium complex on the property was in violation of the law because the project was inconsistent with the County’s Comprehensive Plan. Halls River thereafter filed suit against the County, asserting a claim under the Harris Act. Halls River essentially claimed that the County’s refusal to approve its condominium development plan constituted an inordinate burden on its vested right to develop its property. Upon review, the trial court found the County liable. The County appealed, arguing that, since the MXU designation had been eliminated four years prior to the time Halls River acquired the property, equitable estoppel could not be applied to establish that Halls River had a vested right to develop its property as a condominium complex. Upon review, our court agreed with the County:

Halls River ... failed to establish a vested right to its intended use of the property based on a theory of equitable estoppel despite the County’s erroneous advice about the property’s permitted uses. The doctrine of equitable estoppel ... does not generally apply to transactions that are forbidden by law or contrary to public policy. Montsdoca v. Highlands Bank & Trust Co., 85 Fla. 158, 95 So. 666, 668 (1923); Dade County v. Gayer, 388 So.2d 1292, 1294 (Fla. 3d DCA 1980). That is the case here as the Plan, which enjoys legal primacy regarding allowable land uses, prohibited the property’s use as a multifamily condominium.
This case is based entirely on the fact that Halls River’s project does not comply with the Plan.... Inasmuch as the property maintained the CL designation since 1997, well before Halls River bought the property, Halls River never had a lawful right to the proposed use for a multifamily dwelling, the County staffs misadvice notwithstanding.

Id. at 421-22.

Here, Pacetta based its Harris Act claim on the similar theory that it had a vested right, through the application of the principle of equitable estoppel, to develop its properties as negotiated by the parties, notwithstanding the fact that such development would violate Ponce Inlet’s Comprehensive Land-Use Plan. However, as explained in Halls River, equitable estoppel can be invoked only when a property owner relies in good faith upon some government action. No such good faith reliance was established in this case. At the time Pacetta purchased its properties, Ponce Inlet’s Comprehensive Land-Use Plan expressly prohibited the type of development which Pacetta proposed for its properties. Any assurances by town officials that the Comprehensive Plan would be amended so as to authorize Pacetta’s development plans could not be relied upon in good faith by Pacetta, since town officials lacked the authority to unilaterally amend the Comprehensive Land-Use Plan. See § 163.3184(4),(15), Fla. Stat. (2009) (requiring any proposed change to Comprehensive Plans to be subject to approval by various government agencies). Recognition of a vested right based on assurances from town officials to amend the Comprehensive Land-Use Plan would also be in violation of public policy, in light of the public hearings and other government approvals required for Comprehensive Plan amendments. Id. Accordingly, the trial court’s order finding Ponce Inlet liable to Pacetta under the Harris Act is reversed.

REVERSED.

SAWAYA and EVANDER, JJ., concur.

      . Appellate jurisdiction is proper pursuant to rule 9.130(a)(3)(C)(viii) of the Florida Rules of Appellate Procedure, which authorizes review of non-final orders determining "that a gov-emmental entity has taken action that has inordinately burdened real property within the meaning of [the Bert J. Harris, Jr. Private Property Rights Protection Act]”.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Randall GRIMES, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 2D12-1627.
    District Court of Appeal of Florida, Second District.
    July 10, 2013.
    Eilam Isaak, Tampa, for Petitioner.
    Stephen D. Hurm, General Counsel, and Kimberly A. Gibbs and Richard M. Coin, Assistant General Counsels, Orlando, for Respondent.
   PER CURIAM.

Denied. See Dep’t of Highway Safety & Motor Vehicles v. Robinson, 93 So.3d 1090 (Fla. 2d DCA 2012), review denied, 112 So.3d 83 (Fla.2013); see also Robinson, 112 So.3d at 84 (Pariente, J., concurring).

NORTHCUTT, SILBERMAN, and CRENSHAW, JJ., Concur.


author: STEVENSON, J.

text:
    Brian SCHMIDT, Appellant, v. Deborah SCHMIDT, Appellee.
    No. 4D11-3379.
    District Court of Appeal of Florida, Fourth District.
    July 10, 2013.
    Rehearing Denied Aug. 30, 2013.

      Thomas E. Warner and Dean A. Mo-rande of Carlton Fields, P.A., West Palm Beach, for appellant.
    Martin L. Haines, III, of Martin L. Haines, III, Chartered, Lake Park, for appellee.
   STEVENSON, J.

The instant appeal arises out of a final judgment of dissolution ending the nearly thirty-year marriage of Brian and Deborah Schmidt. The final judgment distributed nearly $6 million in assets to the husband, nearly $850,000 in assets to the wife, and requires the husband to pay the wife an equalizing payment of approximately $2.5 million. The assets awarded to the husband include the husband’s retail optical business, which the trial court valued at $2,520,562 for purposes of equitable distribution. The judgment requires the payment of $25,000 per month in alimony and $3,192 per month in child support for the parties’ adult, disabled daughter, $2,000 of which is to be paid into a trust to be established for the benefit of the daughter. In this appeal and cross-appeal, both parties claim there are errors in the judgment. We agree. The most significant of the errors concern the valuation of the husband’s business and the alimony award. Remand is required to address these issues and several others.

Valuation of the Husband’s Business

Enterprise goodwill, defined as the value of a business “which exceeds its tangible assets” and represents “the tendency of clients/patients to return to and recommend the practice irrespective of the reputation of the individual practitioner,” is a marital asset subject to equitable distribution. Thompson v. Thompson, 576 So.2d 267, 269 (Fla.1991). Personal or professional goodwill attributable to the skill, reputation, and continued participation of an individual is not a marital asset. See id. at 270 (explaining “ ‘[a]ny value which attaches to the entity solely as a result of personal goodwill represents nothing more than probable future earning capacity, which ... is not a proper consideration in dividing marital property3 ”) (quoting Taylor v. Taylor, 222 Neb. 721, 386 N.W.2d 851, 858 (1986)). Thus, the value of personal or professional goodwill must be excluded when assigning a value to a business for purposes of equitable distribution.

When valuing the enterprise goodwill of a business, the necessity of a covenant not to compete is significant as it signals the existence of personal goodwill, which cannot be included in determining the value assigned to the business for purposes of equitable distribution. Walton v. Walton, 657 So.2d 1214 (Fla. 4th DCA 1995), and Held v. Held, 912 So.2d 637 (Fla. 4th DCA 2005), illustrate the point. In Walton, the trial court was faced with the task of valuing the husband’s accounting practice. 657 So.2d at 1214-15. The evidence established that it was the husband’s name on the door, the husband who conducted the majority of client conferences, and the husband who was responsible for bringing clients to the practice. Despite such testimony, the wife’s expert opined the practice had enterprise goodwill valued at $47,250. The wife’s expert admitted, though, that the business could not be sold without an accompanying covenant not to compete. The trial court accepted the wife’s expert’s valuation for purposes of equitable distribution. This court reversed, finding that “[t]he most telling evidence of a lack of any institutional goodwill was the wife’s expert’s testimony that no one would buy the practice without a non-compete clause.” Id. at 1216. “If the business only has value over and above its assets if the husband refrains from competing within the area that he has traditionally worked, then it is clear that the value is attributable to the personal reputation of the husband.” Id.

Held involved the valuation of the husband’s insurance agency. 912 So.2d at 638. The husband specialized in high-risk policies and, at the time of the hearing, the agency had about sixty accounts that generated large commissions. The parties stipulated to the adjusted book value of the agency, but disagreed as to the existence of enterprise goodwill. The wife’s expert calculated enterprise goodwill by resort to sales data, but admitted he did not know whether these sales required the seller’s continued involvement in the business and/or execution of non-compete or non-piracy agreements. In valuing the agency’s enterprise goodwill, the trial court relied upon the testimony of the wife’s expert and predicated the value on the assumption that the husband would execute a non-solicitation/non-piracy agreement precluding him from doing business with the agency’s existing customers. This court reversed that valuation, finding that, for purposes of separating enterprise goodwill from professional goodwill, there was no distinction between a non-compete agreement and a non-piracy agreement and that the trial court’s valuation inserted into the enterprise goodwill an aspect of the husband’s personal goodwill, i.e., the value of the husband’s personal relationship with the sixty clients. Id. at 640-41.

Here, the trial court accepted the testimony of the wife’s expert in valuing the business. According to the wife’s expert, the business had a total fair market value of $3,519,519. The expert testified that $974,199 of this figure represented personal goodwill attributable to the husband and that, after deducting personal goodwill and the husband’s premarital interests, the business had a value of $2,520,562 for purposes of equitable distribution. The expert expressly testified, however, that this $2,520,562 value assumed and required that the husband execute both a non-compete and some type of transitional consulting agreement. And, when pressed, the expert testified he had not performed an analysis as to the value of the business were the husband not to sign a non-compete. Because the $2,520,562 value requires execution of a non-compete agreement, it is clear that such valuation still includes a personal goodwill component. This personal goodwill must be excised from the value assigned to the business for purposes of equitable distribution. We thus reverse the judgment’s valuation of the business and remand for further proceedings.

Alimony

The trial court awarded $25,000 per month in alimony, finding this was a 29-year marriage; the wife had raised the couple’s children and, by agreement of the parties, had not worked outside the home; and, the parties had lived a lavish lifestyle, with the husband earning $100,000 per month. The court rejected “portions” of the wife’s expert’s analysis and “portions” of the husband’s expert’s analysis. There were no specific factual findings supporting the $25,000 figure.

The wife’s expert testified the wife’s monthly needs were $18,934, requiring an award of $29,129 after accounting for taxes. The $18,934 assumed continuation of expenses associated with the wife’s continued residence in the former marital home; included $3,115 per month for home owners’ insurance, although the parties owned the home and had not carried such insurance for years; and included $786 allocated to the wife as her half of the annual cash surplus estimated by the wife’s expert. According to the husband’s expert, the wife’s “needs” amounted to approximately $9,000 per month. This amount excluded the housing costs associated with the marital residence.

The $25,000 award is clearly more in line with the wife’s expert’s analysis but, given the findings in the judgment, the award is not supported by the record. The wife’s expert’s analysis included in excess of $3,000 per month for homeowners’ insurance the parties had not carried for years. It also included the significant expenses associated with the upkeep of the marital home. The final judgment, though, required that the husband pay these expenses pending the sale of the home. Additionally, the wife’s expert’s “needs” analysis included $786 in annual cash surplus. Such amount may not be deemed a “need” of the wife as alimony may not include a savings component. See Rosecan v. Springer, 985 So.2d 607, 610 (Fla. 4th DCA 2008). When these amounts are excluded, as they should have been, the $25,000 alimony award is not supported by the evidence. See Farley v. Farley, 858 So.2d 1170, 1172 (Fla. 2d DCA 2003) (recognizing that trial court has discretion in award of alimony, but that award must be reversed “where the record does not contain substantial, competent evidence to support the trial court’s findings regarding the amount of alimony awarded”).

The Tax Liability

It was agreed that the husband underre-ported the income earned by his business for the 2004-2009 tax years and, thus, underreported the parties’ personal income. Whether the wife was aware of the underreporting was disputed at trial. During the pendency of the divorce, the husband hired a tax attorney and sent the IRS a check for $586,795.58, representing the estimated tax due on the underreport-ed income. The IRS returned $379,000 of the funds and, at the time of the hearing, the wife was in possession of the un-nego-tiated checks.

Paragraphs I and 12 of the final judgment include findings to the effect that it was the husband who was responsible for the underreported income and that the court has the power to make an unequal, but equitable, distribution of the debt. Paragraphs I and 12 do not, however, actually distribute the debt to the husband and, in fact, paragraph I provides that the $379,000 refunded by the IRS shall be split equally between the parties. Paragraph 11 of the judgment states “[t]he Husband and Wife shall pay and be responsible for all debts including interest and penalties due and owing the Internal Revenue Service due to their failure to properly report their income,” suggesting the court intended to allocate the debt equally between the parties. (Emphasis added). The spreadsheet appended to the judgment states that the accrued interest and penalties are non-marital and distributes all of the “to be determined” liability to the husband.

The husband contends the judgment treated the tax liability as a marital debt and the trial court erred in failing to credit him for any non-marital funds used to make the $586,795.58 payment to the IRS. The wife contends the language in paragraph 11 making the parties jointly liable for the debt is a “clerical” error. We decline the wife’s invitation to deem the language in paragraph 11, making the parties jointly responsible for the tax liability, as a mere clerical error. Nevertheless, since the judgment has conflicting language regarding the treatment to be afforded the tax liability, leaving the trial court’s intent in question, we remand for the trial court to clarify its intent and findings on this issue.

The Remaining Issues

Apart from the alimony, the business valuation, and the tax liability, the husband claims error in the trial court’s failure to address $204,000 the wife removed from marital accounts prior to the filing of the petition and the $110,000 the husband was ordered to pay toward the wife’s fees (issue IIIB); the valuation of the Scotland Cay property (issue IIIC); and the improper inclusion of several vehicles in the equitable distribution (issue HID). We affirm as to point IIIC without further comment and the wife has conceded error with regard to point IIID.

This, then, leaves the claim that the trial court erred in failing to address the $204,000 the wife removed from marital accounts prior to the filing of the petition and the $110,000 the husband was ordered to pay toward the wife’s fees. The temporary support order indicates that $103,872 of this amount was used to pay living expenses the wife incurred prior to entry of the temporary support order. It was not error for the judgment to fail to include the $103,872. See Bush v. Bush, 65 So.3d 1101, 1102 (Fla. 2d DCA 2011) (holding it was error to equitably distribute $143,000 account expended for support during pendency of proceedings).

The husband’s argument has merit, however, to the extent that the judgment failed to address that portion of the $204,000 that went toward the wife’s fees and the additional $110,000 the husband was subsequently ordered to pay towards the wife’s attorney’s fees. In both orders, the trial court made it clear that the awards were without prejudice to the parties making further argument as to which party should bear ultimate responsibility for such fees. And, both parties made argument on this issue at the final hearing. The judgment, however, made no findings regarding the temporary fees and, instead, simply ordered each party to be responsible for his or her own costs and fees. The judgment’s language makes it unclear whether the court intended each party to bear the cost of his or her fees outstanding at the time of the judgment or whether the court intended that the husband be credited with the temporary fees paid for the benefit of the wife. We thus remand for further findings on this issue.

Finally, in her cross appeal, the wife claims the trial court erred in failing to make a finding as to the husband’s net monthly income for purposes of child support and erred in ordering a portion of the child support paid into a trust. The husband has conceded error. See Finley v. Scott, 707 So.2d 1112, 1118 (Fla.1998) (holding that amount of child support that exceeds child’s needs can be ordered paid into trust only when necessity for guardianship of property has been established in chapter 744 proceeding); Aguirre v. Aguirre, 985 So.2d 1203, 1207 (Fla. 4th DCA 2008) (“A final judgment is facially erroneous, requiring remand, where it does not make any findings as to the net income of each party as a starting point for calculating child support or explain how the calculation was performed.”).

Accordingly, having considered all issues raised, we reverse the final judgment’s valuation of the husband’s business, the alimony award, the provision in the judgment requiring that a portion of the child support be paid into a trust; and the inclusion of the 2000 Dodge Dakota, the 1982 Datsun 280ZX, and the 1981 Datsun 280Z in the equitable distribution. The matter is remanded and the trial court is directed (1) to reconsider the value of the husband’s business, taking additional evidence if necessary, and ascribe a value for the business which does not include personal goodwill; (2) to reconsider the alimony award, eliminating from the wife’s “needs” those expenses associated with the marital residence that the husband has been required to pay, the homeowners’ insurance the parties did not carry and any savings component; (8) to clarify its intent concerning the tax liability; (4) to address the temporary fees the husband paid on behalf of the wife and clarify whether the court intended to hold the husband or the wife ultimately responsible for the same; and (5) to make a finding as the husband’s net income for purposes of child support.

Affirmed in Part; Reversed in Part; and Remanded.

DAMOORGIAN, C.J., and CONNER, J., concur.

      . The equitable distribution plan included a 2000 Dodge Dakota; a 1982 Datsun 280 ZX; and a 1981 Datsun 280 Z. Each of these vehicles were treated as a marital asset and distributed to the husband. The husband asserts this is error as the 2000 Dodge was sold prior to the filing of the petition; the 1982 Datsun was a pre-marital asset; and there was no 1981 Datsun.


author: WARNER, J.

text:
    Courtney Dean JACKSON, as The Personal Representative of the Estate of Kim Jackson Douglas, Appellant, v. Robert Lindsay ALBRIGHT, Jeanne Albright and Progressive Express Insurance Company, Appellees.
    No. 4D10-5142.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2013.
    Julie A. Hager of Law Offices of Julie A. Hager, LLC, Fort Lauderdale, for appellant.

      Warren B. Kwavnick of Cooney Trybus Kwavnick Peets, PLC, Fort Lauderdale, for appellees Robert Lindsay Albright and Jeanne G. Albright.
    Robert I. Buchsbaum of Kramer, Green, Zuckerman, Greene and Buchsbaum, P.A., Hollywood, for appellee Progressive Express Insurance Company.
   WARNER, J.

The Estate of Kim Douglas appeals a final judgment in a personal injury action in favor of the defendant, Robert Al-bright. It claims that the court erred in allowing the defendant to question Douglas on a prior unrelated litigation settlement. The trial court allowed inquiry into the settlement because Douglas had opened the door to such questioning by claiming that she did not have the resources to continue medical treatment for her injuries in the accident on which this suit is based. We agree with the trial court that the defense could question Douglas on the settlement as it was not being offered to prove litigiousness but to counter her own testimony regarding her lack of funds to seek medical treatment. We affirm as to this issue, as well as to the remaining issues in the case, but do so without prejudice to the estate raising a motion for relief from judgment based on a claim of fraud on the court with respect to the alteration of a surveillance video.

This case arises out of a car collision which occurred in March of 2001. At the trial, defendant Robert Albright testified that his car was bumped from the side by another vehicle, and his vehicle was pushed into the rear end of Kim Douglas’s vehicle in stop-and-go traffic. Albright testified that he never left his lane prior to any impact. The defense offered photographs of the slight damage done in the accident to all three vehicles, including Douglas’s. Albright testified that Douglas said she was okay after the accident, left almost immediately, and did not appear to be in pain. Douglas was not taken to the emergency room after the accident, and she drove herself home.

Douglas alleged that she had a strain/ sprain injury to her neck and back and that she suffered herniated discs as a result of the accident. She testified that she saw a chiropractor, Dr. Grassi, the day after the accident and went back to him in a couple of months. She complained of neck pain, arm pain, blurred vision, headaches, and numbness. Dr. Grassi recommended physical therapy, but Douglas only sporadically made appointments to get therapy and then quit because the therapy made her feel worse. An MRI taken several months after the accident showed bulging discs in her cervical spine but no herniation. She saw an orthopedic surgeon ten months after the accident and complained of radiating pain. She also saw a neurologist who performed various tests, all of which had results within normal limits. He, too, recommended physical therapy, which Douglas did not have.

Two and a half years after the accident, in November 2003, she saw a neurosurgeon who ordered another MRI which now showed herniated cervical discs. He recommended a cervical discetomy. She did not have the surgery until 2008. In the meantime, she was seen and treated by two pain management doctors and prescribed multiple drugs to alleviate pain. This went on for several years, and she testified that at the time of trial she was spending up to $1,700 per month on pain medications. She testified that she could not afford to go to more than one doctor, and she was not ready for surgery. At other times in her testimony, she said she didn’t have enough money to obtain treatment or drugs.

At the beginning of trial, the defense counsel advised the court that Douglas may try to explain her sporadic medical care by claiming financial inability to afford treatment. The defense requested that if she injected financial status into the case, then the defense should be permitted to bring out the fact that she had recovered a large monetary settlement in an unrelated case less than a year before the accident. The trial court agreed and explained that “if money gets raised then once it’s thrown down on the floor then you get to bring up any [rebuttal] information you have about money, lack of money.”

When Douglas raised her lack of funds to seek medical treatment or surgery, defense counsel then sought to question her about the settlement she obtained shortly before the accident in this ease. Plaintiff objected on the grounds that it would show litigiousness of the plaintiff and that it would be overly prejudicial. The trial court overruled the objection, and defense counsel asked Douglas whether she had received a settlement of a lawsuit in the amount of $420,000. She admitted she had; however, after paying her attorney, purchasing a house, and trying to reestablish herself and her children after a divorce, she had used up all of the money.

The defense took the position that Douglas had not sustained a permanent injury from the accident and had only sporadic treatment for her injuries. The defense medical expert testified that Douglas suffered a strain, but not a herniation, in the accident. The doctor was of the opinion that a degenerative condition unrelated to the accident necessitated the neck surgery. The defense also offered into evidence a surveillance video of Douglas which showed her bending, squatting down to look at the tire of her car, pulling an air hose to put air in her tires, and carrying packages. The doctor viewed the surveillance film and testified that it showed Douglas performing motions that she would not do in his office. He testified that the video was inconsistent with someone in pain. He did not believe she sustained a permanent injury.

The jury returned a verdict in which it answered “no” to the question, “Did the defendant, Robert Albright, negligently operate the motor vehicle he was driving and, if so, was such negligence a legal cause of loss, injury or damage sustained by the plaintiff, Kim Douglas?” The court entered final judgment on the verdict.

After the verdict, Douglas filed a motion for sanctions and new trial in which she contended that she had the surveillance video examined by a forensic expert who was of the opinion that the video had been edited. She also raised other claims in the motion for new trial. The trial court denied the motion for new trial without a hearing. Douglas now appeals.

Douglas claims that the trial court erred in allowing the defense to question her about her prior settlement, claiming that it showed prior litigiousness, which is prejudicial and inadmissible, citing Zabner v. Howard Johnson’s Inc. of Florida, 227 So.2d 543, 546 (Fla. 4th DCA 1969). Zabner, however, is inapposite to the facts of this case. In Zabner, a plaintiff sued for personal injuries sustained when her gum was pierced by a walnut shell concealed in ice cream. The defense sought to impeach her by interrogating her on the fifteen prior lawsuits she had brought, some for personal injuries unrelated to the present claim and some for commercial matters. Our court determined that bringing out prior litigation history simply to prove a plaintiffs litigiousness was a character attack and had no other purpose than to prejudice the jury. We recognized, nevertheless, that under some circumstances prior litigation was the proper subject of cross-examination, such as when the plaintiffs physical condition may be affected by prior injuries, which were the subject of prior lawsuits. Thus, where the issue was relevant for a purpose other than impeachment as to litigiousness, the trial court did not necessarily abuse its discretion in admitting such evidence.

“[Ajdmission or rejection of impeaching testimony is within the sound discretion of the trial court.” Winner v. Sharp, 43 So.2d 634, 635 (Fla.1950). Here, the trial court had considered the issue prior to the commencement of trial. The trial court notified both counsel that if Douglas put her financial resources at issue, then the defense could raise the settlement. As expected, Douglas did raise her resources as a reason she could not get treatment, and the trial court allowed the defense counsel to question her on the amount of the settlement and how it was spent. Counsel did not introduce it to prove litigiousness, and Zabner does not control this case.

The defendants contend that Douglas opened the door to the testimony of her financial status by repeatedly testifying that her sporadic medical treatment was due to her inability to pay. The concept of opening the door allows admission of otherwise inadmissible testimony to explain or limit evidence previously admitted. Siegel v. State, 68 So.3d 281, 288 (Fla. 4th DCA 2011) (citing Rodriguez v. State, 753 So.2d 29, 42 (Fla.2000)). Sossa v. Newman, 647 So.2d 1018 (Fla. 4th DCA 1994), is instructive and presents the flip-side of the facts in this case. There, the defendants stressed throughout trial that the plaintiff never returned to any of her doctors, which suggested that she hadn’t been hurt in the accident, otherwise, she would have continued medical treatment. In ruling that the court erred in denying plaintiffs evidence of inability to pay for treatment, we held that the defendants opened the door to issues of the plaintiffs financial ability to continue treatment. Under those circumstances, the trial court should have allowed the plaintiff to elicit testimony that she didn’t return to doctors because of the family’s financial inability to pay for treatment. Similarly, in this case, where Douglas claimed that she did not have the resources to pay for treatment, we do not find that it was an abuse of discretion for the trial court to allow the defense to question Douglas as to funds that she may have had available from her earlier substantial recovery.

Commendably, and consistent with his ethical responsibilities, in appellee Al-bright’s answer brief, counsel points out Leslie v. Higgason, 779 So.2d 470 (Fla. 2d DCA 2000), which at first blush seems to suggest that the evidence of the amount of a prior settlement is inadmissible as impeachment where the plaintiff claims inability to pay for surgery from the current accident. There, Mrs. Leslie brought a personal injury action against Higgason, alleging that Leslie had sustained permanent injuries in an auto accident in 1996 which aggravated injuries she had sustained in an earlier accident in 1988. Leslie’s husband testified he couldn’t afford surgery for her. On cross-examination, the defense asked Mr. Leslie about his settlement from an auto accident eight years earlier and he admitted his wife was paid $65,000. In reversing the final judgment for the defendant, the Second District ruled that Leslie’s previous injury was relevant, but the settlement amount from the previous injury was irrelevant and was improperly emphasized in closing argument. The court relied on out-of-state cases which held that settlement amounts from prior personal injury suits which involve aggravation of the prior injuries were inadmissible as it could lead the jury to think that the plaintiff was seeking a double recovery. In this case, however, it was made clear that the earlier case was not a personal injury case but was a recovery of an entirely different type of lawsuit. The jury was not given the impression that Douglas was obtaining a double recovery for her injury.

The trial court did not abuse its discretion in allowing admission of the prior settlement amount in this case. The defendants did not raise it to show prior litigiousness but to impeach the plaintiff on a material issue in the case.

We reject Douglas’s claim that she was entitled to a new trial based upon a defense attorney’s question to Douglas as to whether a person she visited was a disbarred attorney, seemingly asked to discredit Douglas’s character. Douglas never objected to the question. Instead, the trial court immediately called a sidebar and in no uncertain terms castigated counsel for even asking the question. Not only did Douglas not object, she asked for no curative instruction, nor did she ask for a mistrial. Thus, the issue was not preserved. See Companioni v. City of Tampa, 51 So.3d 452, 456 (Fla.2010).

Finally, in her motion for new trial and on appeal Douglas claims that the surveillance tape of her was surreptitiously edited, perpetrating a fraud on the court. The trial court denied the motion without a hearing. In the trial court, Douglas filed an affidavit in which an expert swore that the surveillance tape had been edited, contrary to the representation of the surveillance investigator. While we affirm the final judgment, we do so without prejudice to Douglas’s estate filing an appropriate Rule 1.540 motion for relief from judgment, as it appears that the affidavit raises an issue requiring an evidentiary hearing.

Affirmed.

GROSS, J., and STONE, BARRY J., Senior Judge, concur.

      . During the pendency of this appeal, Kim Douglas, the plaintiff in the action, died of causes unrelated to this action. Her estate was substituted as a party. The appeal is not moot because of the survival statute. See § 46.021, Fla. Stat. (2005).


author: CIKLIN, J.

text:
    Francesca CENATIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-305.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2013.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Francesca Cenatis appeals the judgment and sentence following her conviction for use of an antishoplifting device countermeasure. Cenatis argues that the statute does not encompass a shopping bag lined with layers of aluminum foil. We find that such an implement falls within the meaning of the statute, and accordingly affirm.

Facts

The state charged Cenatis by information with one count of use of an antisho-plifting device countermeasure and one count of petit theft. The case proceeded to a jury trial.

Cenatis and another woman (“the code-fendant”) were walking inside a shopping mall. A loss prevention manager (“the manager”) saw that the codefendant was carrying a “really old” Victoria’s Secret bag that was thicker than normal and had very worn handles. The manager suspected that the bag was a “booster bag,” which the manager described at trial as a “bag that is lined with either aluminum foil or duct tape” designed to prevent antisho-plifting sensors from detecting store merchandise placed inside the bag. The manager contacted the mail’s security officers and followed Cenatis and the codefendant.

Cenatis and the codefendant walked into a clothing store. A store employee testified that the store placed electronic security tags on its merchandise which caused sensors near the store’s doors to produce an audible alarm if the tags passed by the sensors. The store employee approached Cenatis and the codefendant and saw that they were passing the booster bag back and forth. The manager saw Cenatis and the codefendant grab several pairs of jean shorts and place them inside the bag. Cenatis and the codefendant did not pay for the merchandise and exited the store with the merchandise inside the bag. The store’s door alarms did not sound.

After Cenatis and the codefendant exited the store, the manager and mall security officers stopped the women, detained them, and contacted the police. The store employee viewed the merchandise and verified that it was from the clothing store.

At trial, a police officer described the booster bag as several identical Victoria’s Secret bags stacked within each other, with several sheets of aluminum foil layered within the bag. The bag was held together with adhesive. On first inspection, the bag appeared to be an ordinary shopping bag and the aluminum foil was not 'visible from the outside. The bag was much heavier than an ordinary shopping bag. The state introduced the bag into evidence at trial.

At the conclusion of the state’s case and again at the conclusion of the defense case, Cenatis moved for judgment of acquittal on the grounds that a shopping bag layered with aluminum foil was not an antish-oplifting device countermeasure within the meaning of the statute. The trial court denied Cenatis’s motions.

At the conclusion of trial, the jury returned a verdict finding Cenatis guilty of using an antishoplifting device countermeasure and petit theft. The court adjudicated Cenatis guilty on both counts and sentenced her accordingly. Cenatis timely appeals her judgment and sentence.

Analysis

“The standard of review for the denial of a motion for judgment of acquittal is de novo.” Ortiz v. State, 36 So.3d 901, 902 (Fla. 4th DCA 2010) (citation omitted). Similarly, “[questions of statutory interpretation are subject to de novo review.” Allen v. State, 82 So.3d 118, 120 (Fla. 4th DCA 2012) (citation and quotation marks omitted).

Possession or use of an antishoplifting device countermeasure is prohibited by section 812.015(7), Florida Statutes (2010):

It is unlawful to possess, or use or attempt to use, any antishoplifting or inventory control device countermeasure within any premises used for the retail purchase or sale of any merchandise. Any person who possesses any antisho-plifting or inventory control device countermeasure within any premises used for the retail purchase or sale of any merchandise commits a felony of the third degree.... Any person who uses or attempts to use any antishoplifting or inventory control device countermeasure within any premises used for the retail purchase or sale of any merchandise commits a felony of the third degree ....

The same statute defines antishoplifting device and antishoplifting device countermeasure:

(h) “Antishoplifting or inventory control device” means a mechanism or other device designed and operated for the purpose of detecting the removal from a mercantile establishment or similar enclosure, or from a protected area within such an enclosure, of specially marked or tagged merchandise. The term includes any electronic or digital imaging or any video recording or other film used for security purposes and the cash register tape or other record made of the register receipt.
(i) “Antishoplifting or inventory control device countermeasure” means any item or device which is designed, manufactured, modified, or altered to defeat any antishoplifting or inventory control device.

§ 812.015(l)(h), (i), Fla. Stat. (2010).

Cenatis relies on the only reported decision discussing the antishoplifting device countermeasure statute, State v. Blunt, 744 So.2d 1258 (Fla. 3d DCA 1999). In Blunt, two women “covered the store security sensors with tinfoil to evade detection when they attempted to walk past the sensors with the stolen merchandise hidden in a bag.” Id. at 1258. The state charged Blunt with violating section 812.015(7). Id. Blunt moved to dismiss the charge, and the trial court granted the motion to dismiss because:

Tinfoil, by itself, does not fall under the definition of an ‘antishoplifting or inventory control device countermeasure’ found in s. 812.015(l)(i) because tinfoil is not an item or device which is designed, manufactured, modified, or altered. The tinfoil may have been used in such fashion. However, use is not part of the definition.

Id. at 1259.

The state appealed, and the Third District affirmed, opining that it “entirely agree[d]” with the trial court’s reasoning. Id. The Third District noted that the trial court properly applied the plain language of the statute. Id. The court also noted that “[i]f there were any doubt (and we think there is none), ‘when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.’ ” Id. (quoting § 775.021(1), Fla. Stat. (1997)).

In the instant case, the booster bag used by Cenatis fits the plain language of section 812.015(l)(i). An ordinary shopping bag fits the broad language of “any item” used in the statute. The plain language of the statute only requires one of the following: Design, manufacture, modification, or alteration to defeat an antishoplifting device. Here, an ordinary shopping bag was altered and modified by stacking several bags together, lining them with aluminum foil, and adding sufficient adhesive to keep the bags together. Trial testimony established that layering aluminum foil within the bag was capable of defeating an antish-oplifting device, specifically the antisho-plifting sensors at the doors of the store where Cenatis shoplifted. Further, the trial testimony established that Cenatis defeated the door sensors while removing merchandise from the store by using the bag.

The instant case is distinguishable from Blunt. In Blunt, the defendant simply used an ordinary item in an unusual way; the defendant did not manufacture, design, modify, or alter the tinfoil in any manner. In this case, however, ordinary items were combined in an unusual way to create a device capable of avoiding detection by the door sensors. The plain language of the statute encompasses the modified shopping bag used in this case.

Affirmed.

STEVENSON and TAYLOR, JJ., concur.


text:
    Robert ADDIE, Appellant, v. Onyx COALE, Appellee.
    No. 4D12-1748.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2013.
    Rehearing Denied Sept. 13, 2013.

      Charles C. Papy, III and Michelle M. Gervais of Duane Morris LLP, Miami, and Laura Davis Smith and Cynthia Greene of Greene, Smith & Associates, P.A., Miami, for appellant.
    Brandon A. Rotbart of the Law Office of Brandon A. Rotbart, P.A., Miami, for ap-pellee.
   PER CURIAM.

The husband, Robert Addie, appeals a final judgment of dissolution of marriage. We reject all of the husband’s challenges to the adequacy of the trial court’s findings. However, on the merits, we reverse for recalculation of the child support award and also reverse the denial of the husband’s request for alimony. We decline to disturb the trial court’s denial of the husband’s request for fees and costs.

Child Support

Child support awards must be supported by competent substantial evidence. Hindle v. Fuith, 33 So.3d 782, 786 (Fla. 5th DCA 2010). In making an award of child support under section 61.30, Florida Statutes (2011), the trial court is required to determine the net income of each parent and to include adequate findings in the final judgment. Id.

Here, the trial court’s determination of the wife’s net income was not supported by competent substantial evidence. The trial court relied upon the wife’s Fifth Financial Affidavit in determining that her net income was $24,407 per month. However, the wife admitted at trial that this affidavit understated her true income. Further, the wife’s expert testified that the wife’s net income was actually about $67,000 per month. Even if the trial court believed the wife’s testimony that she was facing an imminent decline in income of about $20,000 a month due to increased expenses for her business, her net income would still be substantially higher than the figure the trial court used to calculate child support.

We therefore reverse and remand for the trial court to make a determination of the wife’s income that is supported by the record and then to recalculate the child support award accordingly.

Alimony

A trial court’s alimony determination is reviewed using an abuse of discretion standard. Costa v. Costa, 951 So.2d 924, 925 (Fla. 4th DCA 2007). If reasonable minds “could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). An award of alimony must be predicated on evidence that the requesting spouse has a need for the alimony and that the other spouse has the ability to pay. E.g., Zeballos v. Zeballos, 951 So.2d 972, 974 (Fla. 4th DCA 2007).

Permanent alimony is designed to provide for the needs and necessities of life for a former spouse as they were established during the marriage of the parties. Mallard v. Mallard, 771 So.2d 1138, 1140 (Fla.2000).

To award permanent alimony, the trial court must determine that no other form of alimony is fair and reasonable under the circumstances of the parties. § 61.08(8), Fla. Stat. (2011). The purpose of permanent periodic alimony “is not to divide future income to establish financial equality.” Rosecan v. Springer, 845 So.2d 927, 929 (Fla. 4th DCA 2003). Accordingly, disparity in income alone does not justify an award of permanent periodic alimony. Id. However, requiring a spouse to deplete capital assets in order to maintain his or her standard of living is improper. Hanks v. Hanks, 553 So.2d 340, 343 (Fla. 4th DCA 1989).

An intermediate form of alimony called “durational alimony” may be awarded when permanent alimony is inappropriate. § 61.08(7), Fla. Stat. (2011). “The purpose of durational alimony is to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration or following a marriage of long duration if there is no ongoing need for support on a permanent basis.” Id.

This was a “moderate-term” marriage within the meaning of section 61.08(4), Florida Statutes (2011). In a gray area or moderate term marriage, the disparate earning power of the parties is a significant factor in determining whether permanent or temporary support is appropriate. Wofford v. Wofford, 20 So.3d 470, 474 (Fla. 4th DCA 2009). As a “gray area” or “moderate-term marriage” under section 61.08(4), there is no presumption for or against permanent alimony. Nousari v. Nousari, 94 So.3d 704, 706 (2012).

Above all, while a trial court need not equalize the financial position of the parties, “a trial judge must ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances, one spouse should not be ‘shortchanged.’ ” Canakaris, 382 So.2d at 1204.

We conclude that the trial court’s decision to deny any alimony to the husband was an abuse of discretion. Here, it cannot be disputed that the wife had the ability to pay alimony from her current income. Furthermore, while the husband’s income was a hotly disputed issue at trial, the trial court specifically found the husband’s net monthly income to be $5,115 for child support purposes. Moreover, assuming that the husband’s claimed expenses (over $20,000 per month) were somewhat excessive, it is notable that even the wife’s expert acknowledged that the husband’s reasonable expenses totaled $12,626 per month. Thus, even based solely upon the wife’s expert’s figures regarding the husband’s reasonable expenses, the husband would be running a significant monthly deficit and consequently would be shortchanged by a failure to award him alimony.

Although the trial court need not award the amount of alimony that the husband requested, we reverse the complete denial of alimony and remand for reconsideration. We leave it to the trial court’s discretion to determine the appropriate form of alimony.

Attorney’s Fees

The standard of review of a fee award in a dissolution proceeding is abuse of discretion. Phillips v. Ford, 68 So.3d 257, 258 (Fla. 4th DCA 2010)..

The party seeking fees has the burden of proving the reasonableness and the necessity of the fee sought. Baker v. Baker, 35 So.3d 76, 77 (Fla. 2d DCA 2010); Safford v. Safford, 656 So.2d 485, 486 (Fla. 2d DCA 1994). In cases where the divorce leaves the “poorer” spouse “with a substantial equitable distribution, courts have either reversed a total or partial award of attorney’s fees or affirmed a denial of attorney’s fees.” Von Baillou v. Von Baillou, 959 So.2d 821, 824 (Fla. 4th DCA 2007).

Here, notwithstanding the disparity in income (a disparity that will be reduced once the trial court awards alimony on remand), we find no abuse of discretion in the denial of the husband’s request for fees and costs. The husband received a substantial distribution of assets based on the parties’ Partial Agreement and the final judgment. It cannot be said that no reasonable judge would have denied the husband’s request for fees, particularly in light of the husband’s failure to be forthcoming on his financial affidavits about the value of his assets. In short, we conclude that the husband failed to meet his burden of proving that he had a need for the wife to contribute to his fees.

Unresolved Motions

Finally, the husband argues that the trial court abused its discretion in failing to reserve jurisdiction in the final judgment to determine two unresolved motions that were properly before the trial court: 1) Husband’s Notice of Wife’s Noncompliance with Order to Attend Therapy and Motion to Compel Wife’s Compliance with Order and for Sanctions; and 2) Husband’s Motion to Compel Compliance with Parties’ Partial Agreement.

Here, it is unnecessary to address the issue of whether the trial court needed to make a specific reservation of jurisdiction as to these two motions. Because we are reversing the final judgment for reconsideration of child support and alimony, we direct the trial court to consider the husband’s unresolved motions on remand.

Conclusion

We reverse the final judgment for reconsideration of child support and alimony, and we direct the trial court to consider the husband’s unresolved motions on remand. We find no reversible error or abuse of discretion as to any other issue or argument raised by the husband.

Affirmed in part, Reversed in part, and Remanded.

TAYLOR and CIKLIN, JJ„ and ROBINSON, MICHAEL A., Associate Judge, concur.

      . For example, the husband complains about the lack of specific findings as to the value of certain assets, but the husband's own financial affidavits listed the value of these assets as ‘‘undetermined.” Further, the husband's own proposed final judgment generally did not attempt to place a value on the marital assets. While there may have been some evidence presented that was relevant to the valuation issue, on this record we fail to see how the trial court could be expected to value these assets properly.

      . The final judgment provided that all assets not distributed in the parties’ Partial Agreement would be distributed equally to the parties.

      . It is possible, although we need not decide the issue, that the trial court's general reservation of jurisdiction would have been sufficient to allow the court to consider these motions even after the entry of the final judgment.


author: FORST, J. STEVENSON, J.,

text:
    Wilber PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1770.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2013.

      Ricardo Corona and Sahar Razzaghi-Awal of The Corona Law Firm, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   FORST, J.

We affirm the summary denial of appellant’s timely Florida Rule of Criminal Procedure 8.850 motion. We conclude that the claim of ineffective assistance of trial counsel filed in reliance on Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), was appropriately denied, because the “new rule” set forth in Padilla does not apply retroactively, as the appellant’s conviction had become final and he had filed neither a direct appeal nor a Rule 3.850 motion prior to the Padilla decision.

On October 7, 2009, Wilber Perez entered a negotiated plea to manufacturing cannabis and felony possession of cannabis. The court withheld adjudication and placed him on probation. He did not appeal. On October 5, 2011, Perez filed a timely motion for postconviction relief under Rule 3.850. Among other things, citing Padilla, he argued that his attorney was ineffective in failing to advise him of the inevitable deportation consequences of his plea. The motion alleged that counsel led Perez to believe that “because he was Cuban, he would not have deportation issues.” The trial court denied this claim based on the State’s response which pointed out that Perez acknowledged during the plea colloquy that “this plea could affect your immigration status and could indeed result in your deportation.”

The Florida Supreme Court, however, subsequently held that an equivocal “may” or “could” warning is not alone sufficient to refute such a claim where the deportation consequence is truly clear and automatic from the face of the statute. Hernandez v. State, - So.3d -, 2012 WL 5869660, 37 Fla. L. Weekly S730, S731-32 (Fla. Nov. 21, 2012) (disagreeing in part with Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010)). Where the deportation consequence is clear, as it is for the felony drug manufacturing and possession offenses at issue in this case, Padilla requires an attorney to provide accurate advice. An admonition from the court that the plea “may” result in deportation is not alone enough to conclusively refute such a claim.

In Hernandez, the Florida Supreme Court also held that Padilla, which was decided on March 31, 2010, does not apply retroactively. Id. at ---, S730. However, in a decision issued the same day as Hernandez, the Florida Supreme Court applied Padilla retroactively in a case wherein the defendant’s timely Rule 3.850 motion, raising the same issue that had been introduced by Padilla in his appeal, was pending in the trial court at the time Padilla was decided. The petitioner in Castano v. State, 119 So.3d 1208, 2012 WL 5869668 (Fla. Nov. 21, 2012), had timely filed her postconviction motion just months after her plea and prior to the U.S. Supreme Court’s ruling in Padilla.

As noted above, Perez’s conviction had become final prior to Padilla and, as distinguished from the situation in Castaño, Perez had not filed his postconviction motion until after the Court had announced its new Padilla rule. In Castano, the court’s opinion noted that the basis for its decision to rule in favor of the posteonviction movant was because “Castano’s post-conviction proceeding was pending when the United States Supreme Court issued Padilla.” Castano, 119 So.3d at 1208. The narrowness of the Florida Supreme Court’s Castaño exception with respect to retroactivity is reflected in Justice Par-iente’s concurring opinion in Hernandez, wherein she states (with reference to her concurring opinion in Castaño) “Padilla applies to those cases in which, at the time Padilla was decided, the initial postconviction proceeding was not yet final and the defendant had raised a claim of ineffective assistance of counsel for failing to advise of the deportation consequences of a plea.” Hernandez, - So.3d at -, 37 Fla. L. Weekly at S733 (Pariente, J., concurring) (emphasis added).

Justice Pariente also authored a concurring opinion in Castaño which further provides some context for her decision to treat Ms. Castaño differently than Mr. Hernandez with respect to the retroactive application of Padilla. The opinion notes that Castaño entered her plea in March 2009 and subsequently filed her postcon-viction motion in November 2009, asserting (among other grounds) that her counsel had failed to advise her about the deportation consequences associated with her guilty plea. Castano, 119 So.3d at 1209 (Pariente, J., concurring). Padilla was issued in March 2010, some four months after Castaño had filed her post-conviction motion. “Given the procedural posture of this case — where the defendant timely raised the same postconviction claim as the defendant in Padilla and the resolution of her claim was still pending at the time Padilla was decided — it is in effect a “pipeline” case for purposes of whether Padilla applies.” Castano, 119 So.3d at 1210 (Pariente, J., concurring).

Shortly after the Florida Supreme Court’s Hernandez and Castaño decisions, the United States Supreme Court concluded that a defendant may not obtain federal relief under Padilla where the defendant’s conviction became final on direct review before Padilla was decided. Chaidez v. United States, - U.S. -, -, 133 S.Ct. 1103, 1113, 185 L.Ed.2d 149 (2013). The Court held that Padilla announced a “new rule” and, therefore, under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), which controls federal retroactivity analysis, “defendants whose convictions became final prior to Padilla ... cannot benefit from its holding.” 133 S.Ct. at 1113. We note that the conviction of Perez, the appellant in the instant case, had become final prior to Padilla and he did not file a postconviction motion until after Padilla had been issued. Thus, under federal retroactivity analysis, Padilla could not be applied retroactively to the benefit of Perez.

Florida courts “rarely [find] a change in decisional law to require retroactive application.” Hughes v. State, 901 So.2d 837, 846 (Fla.2005) (quoting Mitchell v. Moore, 786 So.2d 521, 529 (Fla.2001)). “[T]o determine whether a new rule applies retroactively to final cases in postcon-viction proceedings ... courts in Florida conduct a retroactivity analysis under Witt v. State, 387 So.2d 922 (Fla.1980).” Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011) (quoting State v. Fleming, 61 So.3d 399, 403 (Fla.2011)). The Second District Court of Appeal in Barrios-Cruz applied Witt to a case dealing with the issue of the retroactivity of Padilla, stating:

Under Witt, a change of law will not be applied retroactively “unless the change: (a) emanates from [the Supreme Court of Florida] or the United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance.” 387 So.2d at 931. Because Padilla is a United States Supreme Court decision that is constitutional in nature, the first two elements of this analysis have been satisfied. Accordingly, the question becomes whether Padilla represents a development of fundamental significance. Witt divides such developments into two categories: “those changes of law which place beyond the authority of the state the power to regulate certain conduct or impose certain penalties,” and “those changes of law which are of sufficient magnitude to necessitate retroactive application as ascertained by the three-fold test of Stovall [v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) ] and Linkletter [v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) ].” Id. at 929, 85 S.Ct. 1731 [Id. at 929], Because the holding in Padilla does not fall within the first category, the analysis turns upon the three factors presented in Stovall and Linkletter. These factors include: “(a) the purpose to be served by the new rule; (b) the extent of reliance on the old rule; and (c) the effect on the administration of justice of the retroactive application of the new rule.” Id. at 926, 85 S.Ct. 1731 [Id. at 926].

Barrios-Cruz, 63 So.3d at 871. In Hernandez, the Florida Supreme Court determined that the first two above-referenced “factors,” (“(a) the purpose to be served by the new rule” and “(b) the extent of reliance on the old rule”) “weigh[ ] against a finding that Padilla is retroactively applicable.” Hernandez, - So.3d at -, 37 Fla. L. Weekly at S732. The court also found that:

Witt’s third factor weighs against retroactive application because retroactive application of Padilla would have an adverse impact on the administrative of justice. As the Third District in Hernandez observed,
[ t]he insufficiency of the previously-sufficient deportation warning during thousands of past plea colloquies for noncitizens would pave the way for motions to vacate those pleas and convictions. Evidentiary hearings would follow. The concern expressed in another immigration warning case, that for any such case in which a plea is set aside, “the passage of time between the guilty plea and the postcon-viction motion puts the State at a great disadvantage in seeking to try the case to conviction,” State v. Green, 944 So.2d 208, 216 (Fla.2006), applies with equal force here.
Hernandez [v. State], 61 So.3d [1144] at 1151 [(Fla. 3d DCA 2011)]. Indeed, many of the cases could involve overturned convictions, stale records, lost evidence, and unavailable witnesses. Chandler [v. Crosby], 916 So.2d [728] at 730-31 [(Fla.2005)].

Hernandez, - So.3d at -, 37 Fla. L. Weekly at S732. In Hernandez, the ineffective assistance of counsel motion was filed nine years after Hernandez’s plea. Id. at ---, S731. By contrast, after Padilla was decided on March 31, 2010, the petitioner in the instant case filed his motion on October 5, 2011, within the two-year time limit for raising a postconviction challenge under Rule 3.850(b).

Thus, arguably, retroactive application of Padilla in the instant case wherein the ineffective assistance of counsel motion was filed within the two-year limit would not have a significant “adverse impact on the administration of justice.” However, we note that in Hughes, cited above, the issue of the retroactivity of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), arose when Hughes filed a motion under Rule 3.800(a) to correct an illegal sentence within two years of Hughes’ conviction becoming final. See Hughes v. State, 826 So.2d 1070, 1071-72 (Fla. 1st DCA 2002) (Hughes’ conviction and sentence were affirmed on direct appeal and mandate issued on December 29, 1999; Apprendi was issued on June 26, 2000; Hughes filed his postcon-viction motion under Rule 3.800(a) on March 7, 2001). Nonetheless, the Florida Supreme Court ruled that, “[b]ased on our consideration of the Stovall/Linkletter factors, we conclude that the new criminal procedure rule announced in Apprendi does not warrant retroactive application.” Hughes, 901 So.2d at 846. In the instant case, at least two of the three Witt factors weigh against retroactive application and, in contrast to Castano, Perez filed his postconviction motion after the Supreme Court had issued its Padilla opinion. “[T]he interest in finality for criminal convictions, and the potential effects on the administration of justice, strongly weigh against applying Padilla retroactively.” Mortimer v. State, 96 So.3d 1060, 1063 (Fla. 4th DCA 2012). Absent the unique circumstances of Castaño, we find that Padilla does not retroactively apply.

Affirmed.

TAYLOR, J., concurs.

STEVENSON, J., dissents with opinion.

STEVENSON, J.,

dissenting.

I respectfully dissent. Although Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), is not retroactive, see Hernandez v. State, - So.3d -, 2012 WL 5869660, 37 Fla. L. Weekly S730, S731-32 (Fla. Nov. 21, 2012), and Chaidez v. United States, - U.S. -, -, 133 S.Ct. 1103, 1113, 185 L.Ed.2d 149 (2013), I would nevertheless find it applicable here because, like the postconviction claim in Castano v. State, 119 So.3d 1208, 2012 WL 5869668 (Fla. Nov. 21, 2012), Perez’s case was effectively “in the pipeline” when Padilla was decided.

In Florida, the longstanding “pipeline” rule requires that “disposition of a case on appeal should be made in accord with the law in effect at the time of the appellate court’s decision rather than the law in effect at the time the judgment appealed was rendered.” Hendeles v. Sanford Auto Auction, Inc., 364 So.2d 467, 468 (Fla.1978). The pipeline rule applies even where a new decision is deemed to have only prospective application. See Nolte v. State, 726 So.2d 307, 308-09 (Fla. 2d DCA 1998) (citing Hendeles). Justice Par-iente’s concurring opinion in Castaño made it clear that the Florida Supreme Court’s decision to apply Padilla there was not based on principles controlling the retroactive application of new law but rather on a “pipeline” analysis. The retroactivity test of Witt v. State, 387 So.2d 922 (Fla.1980), was not implicated. Justice Pariente explained:

Moreover, this case is distinguishable from those cases in which we have restricted the benefit of new law to “pipeline” cases — that is, cases in which an appellate court mandate has not yet issued on direct appeal. Those cases typically involved new law on issues that would be raised during direct appeal— not postconviction. See Hughes v. State, 901 So.2d 837, 838 (Fla.2005) (sentencing issue — application of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt”); Johnson v. State, 904 So.2d 400, 405, 407 (Fla.2005) (sentencing issue—application of “Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which held that a jury, not a judge, must find every fact upon which eligibility for the death penalty depends”); Smith v. State, 598 So.2d 1063, 1064 (Fla.1992) (sentencing issue — “when an appellate court reverses a departure sentence because there were no written reasons, the court must remand for resentencing with no possibility of departure from the guidelines”).
In contrast to the above “pipeline” cases, Padilla created new law that would apply to a claim raised in postcon-viction, not on direct appeal. Given the procedural posture of this case — where the defendant timely raised the same postconviction claim as the defendant in Padilla and the resolution of her claim was still pending at the time Padilla was decided — it is in effect a “pipeline” case for purposes of whether Padilla applies. Cf. Barthel v. State, 882 So.2d 1054, 1055 (Fla. 2d DCA 2004) (applying this Court’s decision in Nelson v. State, 875 So.2d 579 (Fla.2004)—which established new law regarding the requirements for an ineffective assistance of counsel claim for failing to call a witness—to the appeal from the denial of a postconviction motion, because the “appeal was in the ‘pipeline’ at the time Nelson became final,” and therefore the defendant “is entitled to the benefit of the controlling law in Nelson in effect at the time of appeal”).

119 So.3d at 1211 (Pariente, J., concurring).

Like Castaño, this case stands in stark contrast to Hernandez v. State, - So.3d -, 2012 WL 5869660, 37 Fla. L. Weekly S730, S731-32 (Fla. Nov. 21, 2012), in which the Florida Supreme Court refused to apply Padilla where the defendant waited nine years after his 2001 plea to move for postconviction relief. Hernandez’s initial postconviction proceedings were final before Padilla was decided. Here, Perez timely filed his motion for postconviction relief within the two-year time limit for raising a challenge under rule 3.850(b). I recognize that Castaño had already filed her postconviction motion and raised the issue when Padilla was decided while Perez had not. However, the right materialized (essentially creating a new postconviction claim for ineffective assistance of counsel — and a new basis to challenge a plea) before Perez’s time for bringing a postconviction challenge to the plea in his case had expired. At the time Perez filed his initial and timely motion for postconviction relief, Padilla was the controlling law in effect for the claims raised. Indeed, the most compelling similarity in the procedural posture of Castano’s and Perez’s cases is that Padilla was the controlling law in effect before the appellate court resolved either of their initial postconviction claims. A further similarity is that both Castano’s and Perez’s convictions were “final” for the purposes of direct appeal at the time Padilla was decided.

Justice Pariente’s observation in Casta-ño that “it would be inequitable and illogical to hold that only one of two similarly situated defendants ... should receive the benefit of the United States Supreme Court’s decision” applies with equal force to the case at hand. 119 So.3d at 1211. Accordingly, I would reverse the summary denial of Perez’s timely rule 3.850 motion and remand the case for further proceedings. Because I do not believe that the recent case of Chaidez v. United States resolves the Florida appellate “pipeline” issue presented here, I would certify the following question as one of great public importance:

May a defendant raise a claim of ineffective assistance of trial counsel under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), where the claim is raised within the two-year time limitation of rule 3.850 but where the conviction at issue became final on direct appeal before Padilla was decided?

      . The motion raised two other claims which have not been argued on appeal and are, therefore, abandoned. Hammond v. State, 34 So.3d 58, 59 (Fla. 4th DCA 2010).


text:
    L.S., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1988.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2013.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

L.S. appeals adjudications for carrying a concealed firearm, grand theft of a firearm, improper exhibition of a firearm, resisting arrest without violence, and possession of a firearm by a minor. He claims that the trial court erred in denying his motion for judgment of dismissal on the grand theft charge, because the state failed to prove appellant stole the firearm in question. As we conclude that the state relied solely on the presumption of possession of recently stolen property to establish the crime, and the property was not recently stolen, we reverse his adjudication for grand theft. We affirm his adjudication for carrying a concealed firearm, rejecting his claim that section 790.22(3), Florida Statutes (2011), restricting the right of minors to carry firearms, is unconstitutional.

Someone burglarized the home of a Miami-Dade police officer on September 3, 2010, and his off-duty firearm was stolen. Almost six months later, on February 26, 2011, another officer saw a crowd of juveniles leaving a music festival in Fort Laud-erdale. As the officer followed the crowd, the group disbursed leaving only one person standing with a gun raised in the air. The officer identified sixteen-year-old L.S. as the person with the gun. Ultimately, L.S. was stopped by the police. The detective seized a loaded gun from L.S.’s pocket. At the adjudicatory hearing, the Miami-Dade officer identified the gun taken from L.S. as the gun that was stolen from his residence.

The state offered no evidence to support the charge that L.S. stole the firearm other than the provision of section 812.022(2), Florida Statutes (2011), which provides that possession of recently stolen property gives rise to the presumption that the possessor stole the property. The court adjudicated L.S. on all the charges against him, including the two which are the subject of this appeal, namely the grand theft of the firearm and carrying a concealed weapon. L.S. appeals, challenging his adjudications for grand theft and carrying a concealed firearm.

I. Adjudication of Theft Based on Possession of Recently Stolen Property

L.S. contends that there was insufficient proof to support the grand theft conviction, because the state failed to prove that he was in possession of recently stolen property. We review de novo the denial of a dismissal of charges in a juvenile proceeding based upon legal insufficiency. Dumais v. State, 40 So.3d 850, 852 (Fla. 4th DCA 2010).

Section 812.014(l)(a), Florida Statutes (2011), provides, “A person commits theft if he or she knowingly obtains or uses ... the property of another with intent to, either temporarily or permanently ... [djeprive the other person of a right to the property....” Section 812.022(2), Florida Statutes (2011), provides:

Except as provided in subsection (5), proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.

What constitutes “recently stolen” property for the purposes of applying the presumption is the issue presented in this case, where L.S. was found with the stolen gun in Fort Lauderdale nearly six months after its theft.

In Robinson v. State, 257 So.2d 300, 302 (Fla. 3d DCA 1972), the defendant was charged with knowingly buying a stolen firearm which the owner testified had been stolen “last year.” The state did not present evidence regarding how the defendant acquired the gun. The state argued that guilt should be presumed because the gun was found in her possession, and it was recently stolen. The Third District reversed the conviction because there was no evidence that the defendant received the gun with knowledge that it was stolen, and the gun did not qualify as being recently stolen property. The court stated:

Whether or not stolen property found in the possession of a person will be regarded as ‘recently stolen property’ in the context under discussion when it is shown to have been stolen a considerable period earlier, such as several months, or from six months to a year earlier, may depend on the nature of the property, the facility of its handling and transfer and other factors. See Burroughs v. State, 221 So.2d 159, 161 (Fla.App.1969).

Id. The court further stated that when property can be easily passed from hand to hand as easily as a pack of cigarettes it is less likely that the defendant knew that the property was stolen.

Few Florida cases have addressed this question as it applies to guns. Several out of state cases have addressed the issue. In Hardage v. State, 552 S.W.2d 837, 839-40 (Tex.Crim.App.1977), the court held that a defendant’s possession of stolen property, including a couple of guns, seven months after a burglary was sufficiently recent to support conviction. The court noted, however, that the circumstances played heavily on its determination, concluding how unlikely it was that six of the eight items stolen would end up in appellant’s possession randomly. Thus, the court did not rely solely on the presumption. In Williams v. State, 93 Ark. App. 353, 219 S.W.3d 676, 679 (2005), the court held that defendant’s possession of a gun four months from the date it was stolen was not too remote to consider it recently stolen. On the other hand, in People v. Taylor, 25 Ill.2d 79, 182 N.E.2d 654, 656 (1962), the Illinois Supreme Court ruled that the defendant’s possession of a gun more than four months after a robbery in which the gun was stolen was not such recent possession to raise an inference of guilt of robbery, noting that a gun is easily transported and highly saleable.

We conclude that the state failed to prove that L.S. was guilty of grand theft based solely on the possession of the gun five months after its theft. We agree with the Illinois Supreme Court that guns are highly saleable and are in fact transferred with relative ease. What constitutes “recently stolen” sufficient to apply the legislative presumption must be construed with that transferability in mind. We reverse the adjudication for grand theft and direct the court to dismiss that charge.

II. Constitutionality of Section 790.22(3), Florida Statutes

L.S. argues that he was improperly convicted of a violation of section 790.22(3), for possession of a firearm by a minor, because that statutory provision is unconstitutional as a violation of the Second Amendment. He argues that in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the U.S. Supreme Court determined that the right to bear arms is not limited to militia service and fully applies to the states. The Supreme Court held that D.C.’s complete ban on handgun possession in the home, by law-abiding citizens, was an unconstitutional infringement of the Second Amendment that would not survive any level of scrutiny. Id. at 2817-18. L.S. argues that the Second Amendment right is now a fundamental right that cannot be violated by state legislatures, including those statutes restricting possession of firearms by a juvenile. Florida has such a statute. Section 790.22(3) provides that “A minor under 18 years of age may not possess a firearm, other than an unloaded firearm at his or her home, unless: ... (a) [he] is engaged in a lawful hunting activity; ... (b) [he] is engaged in a lawful marksmanship competition or practice ...; or ... (c) [t]he firearm is unloaded and is being transported by the minor directly to or from an event authorized in paragraph (a) or paragraph (b).”

L.S. argues that there is no juvenile “exception” to the Second Amendment. But he overlooks the fact that the constitutional rights of children cannot be equated with those of adults because of the child’s inability to make decisions in an informed and mature manner. See Bellotti v. Baird, 443 U.S. 622, 634, 99 S.Ct. 3035, 3043, 61 L.Ed.2d 797 (1979). The Supreme Court has frequently approved limits on the constitutional rights of children. See, e.g., Ginsberg v. New York, 390 U.S. 629, 636-637, 88 S.Ct. 1274, 1278, 20 L.Ed.2d 195 (1968) (approving limitation of access to sexually explicit materials by minors over First Amendment claims); Bellotti, 443 U.S. at 634, 99 S.Ct. at 3043 (recognizing that the state may place some restrictions on a minor’s right to seek an abortion); McKeiver v. Pennsylvania, 403 U.S. 528, 541, 91 S.Ct. 1976, 1984, 29 L.Ed.2d 647 (1971) (refusing to extend right to trial by jury in juvenile proceedings). While not mentioning juveniles, even the Supreme Court recognized in Heller that some limitations on the right to bear arms could be appropriate. 554 U.S. at 626, 128 S.Ct. 2783 (specifically upholding the “longstanding prohibitions on the possession of firearms by felons and the mentally ill”).

Likewise, in Florida the constitutional rights of children are not the same as those of adults and have not been treated the same under Florida law. Juveniles are not entitled to all of the constitutional rights possessed by adults. Juveniles in Florida cannot legally vote, Article VI, Section 2 of the Florida Constitution, or serve on a jury, section 40.01, Florida Statutes. Their right to marry is restricted. § 741.04, Fla. Stat. (2011). They cannot purchase sexually explicit materials, section 847.0138, Florida Statutes (2011), Simmons v. State, 944 So.2d 317 (Fla.2006), thus restricting their First Amendment rights. “The central rationale for finding diminished constitutional rights of minors, in limited circumstances, appears to be for the personal protection of the child or the personal protection of others from the acts of minors.” D.P. v. State, 705 So.2d 593, 604 (Fla. 3d DCA 1997). Restrictions on a minor’s possession of a firearm fit into that limited purpose.

The few cases to have addressed this issue across the country all have agreed that a state may restrict a juvenile’s right to possess a firearm. In State v. Sieyes, 168 Wash.2d 276, 225 P.3d 995, 1005 (2010), the court considered a Washington statute which limited a juvenile’s possession of a firearm comparable to the Florida statute. The court held that the statute did not violate the Second Amendment by providing restrictions on the right of minors to possess guns.

Similarly, in U.S. v. Rene E., 583 F.3d 8 (1st Cir.2009), the court upheld a federal law restricting a juvenile’s possession of a hand gun over the juvenile’s argument that the statute violated his Second Amendment rights, citing Heller. The court held that Heller did not render the statute unconstitutional as applied to juveniles, pointing out that it was narrowly drawn and had several exceptions which allowed juveniles to possess firearms under certain circumstances, such as for self-defense and defense of others while in the home, while hunting, during recreational shooting, and for National Guard duty. The court pointed out that state regulations reflected concerns that juveniles lack the judgment necessary to safely possess deadly weapons. It concluded that the statute, with its narrow scope and exceptions, did not offend the Second Amendment. 583 F.3d at 16.

We agree with those cases which uphold statutes limiting a minor’s possession of a firearm. There is a strong presumption in favor of the constitutionality of statutes. State v. Kinner, 398 So.2d 1360, 1363 (Fla.1981). Section 790.22(3) places appropriate restrictions on a juvenile’s possession of firearms. We conclude that such restrictions are permissible under the Second Amendment.

For the foregoing reasons we reverse the adjudication for grand theft and direct L.S.’s discharge. We affirm the remaining adjudications.

GROSS and CIKLIN, JJ., concur.

      . Our research has shown that in cases applying the section 812.022(2) presumption, the time between the theft and the defendant’s possession of the stolen item is typically very short. See e.g. Morales v. State, 35 So.3d 122, 125 (Fla. 3d DCA 2010) (three weeks); Wilkins v. State, 18 So.3d 8 (Fla. 4th DCA 2009) (fewer than twenty-four hours); Kerr v. State, 954 So.2d 692, 693 (Fla. 4th DCA 2007) (one day); Bronson v. State, 926 So.2d 480, 482 (Fla. 2d DCA 2006) (a few hours); Kittles v. State, 897 So.2d 517, 518 (Fla. 4th DCA 2005) (fewer than twenty-four hours); Bertone v. State, 870 So.2d 923, 924 (Fla. 4th DCA 2004) (one to two days); Wilson v. State, 884 So.2d 74, 75 (Fla. 2d DCA 2004) (a few hours); Jackson v. State, 736 So.2d 77, 79 (Fla. 4th DCA 1999) (four days); Youngs v. State, 736 So.2d 85, 86 (Fla. 4th DCA 1999) (fewer than twenty-four hours). The longest period of time between a theft and property found in possession of a defendant in which the state relied successfully on the presumption was three months. See Smith v. State, 742 So.2d 352, 354 (Fla. 5th DCA 1999).