author: VAN NORTWICK, J.

text:
    Corry Jerod PRESTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5085.
    District Court of Appeal of Florida, First District.
    May 18, 2012.

      Nancy A. Daniels, Public Defender, and Maria Ines Súber, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Corry Jerod Preston appeals his convictions and sentences for battery and two counts of aggravated stalking. We affirm his convictions without further comment. We agree with Preston, however, that it was error to impose consecutive sentences for the two counts of aggravated stalking. Preston was sentenced as a prison releasee reoffender (PRR) and PRR sentences may not be ordered to run consecutively when the crimes were committed during a single criminal episode. Robinson v. State, 829 So.2d 984, 985 (Fla. 1st DCA 2002).

The state’s amended information against Preston charged burglary with battery, and two counts of aggravated stalking, one based upon a violation of court order contrary to section 784.048(4), Florida Statutes (2009), and one based upon making a credible threat contrary to section 784.048(3), Florida Statutes (2009). Krystal L. Foxworth and her mother Willa Dean Foxworth, were alleged as the alternative victims in both stalking counts. With respect to Count II, charging aggravated stalking by a violation of a court order, the jury determined only Krystal was a victim. With respect to Count III, charging aggravated stalking by credible threat, the jury determined Krystal and her mother were victims. Appellant was convicted of simple battery which was enhanced to a felony because of a prior misdemeanor battery. He qualified as a prison releasee reoffender and was sentenced to five years each on the three convictions to run consecutively.

Section 784.048(1) of the stalking statute contains the definitions of “harass,” “course of conduct,” and “credible threat.” “Harass” means engaging “in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.” § 784.048(l)(a). “Course of conduct” is “a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.” § 784.048(l)(b). A “credible threat” is “a threat made with the intent to cause the person who is a target of the threat to reasonably fear for his or her safety. The threat must be against the life of, or a threat to cause bodily injury to, a person.” § 784.048(l)(c).

Section 784.048(3) provides in pertinent part:

(3) Any person who willfully, maliciously, and repeatedly follows, harasses or cyberstalks another person and makes a credible threat with the intent to place that person in reasonable fear of death or bodily injury of the person or the person’s child, sibling, spouse, parent, or dependent commits the offense of aggravated stalking, a felony of the third degree ...

Section 784.048(4) provides in pertinent part:

(4) Any person who, after an injunction for protection against repeat violence, sexual violence, or dating -violence pursuant to s. 784.046, or an injunction for protection against domestic violence pursuant to s. 741.30, or after any other court-imposed prohibition of conduct toward the subject person or that person’s property, knowingly, willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of aggravated stalking, a felony of the third degree ...

In both counts of the amended information, the State charged that the offending conduct occurred “from on or about April 16, 2010 and continuing through on or about.”

Imposition of consecutive enhancement sentences for offenses arising out of the same criminal episode is prohibited. Hale v. State, 630 So.2d 521 (Fla.1993), cert. denied, 513 U.S. 909, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994). This court has extended Hale to PRR sentences. Robinson, 829 So.2d at 985.

As the State recognizes, there is no bright-line test for distinguishing a single criminal episode from separate criminal episodes. Torbert v. State, 832 So.2d 203, 204 (Fla. 4th DCA 2002). Courts look at the nature of the crimes, time, place and number of victims involved. Id. Specifically, the courts must consider “whether separate victims are involved, whether the crimes occur in separate locations, and whether there has been a temporal break between the incidents.” Woods v. State, 615 So.2d 197, 199 (Fla. 1st DCA 1993) (addressing permissibility of consecutive minimum mandatory sentences). “The fact that the crimes have separate elements of proof is not controlling.” Williams v. State, 804 So.2d 572, 573 (Fla. 5th DCA 2002).

Here, there were two victims. However, the harassing occurred during the same time period, on or about April 16 and the two days preceding. The State charged a course of conduct that occurred during the same time period. There was no significant temporal break as the credible threat (threatening phone calls) occurred in one continuous episode of harassing behavior. Although double jeopardy does not apply because the crimes contain different elements, that is not the test. Compare Eichelberger v. State, 949 So.2d 358 (Fla. 2d DCA 2007) (holding double jeopardy precluded three separate convictions of aggravated stalking where the State charged the defendant for an ongoing course of conduct that occurred during a single time period even though defendant used different means to harass — telephone messages, letters, and approaching within 500 feet of the victim’s residence).

Because the crimes in this case did not occur in separate locations and there was no temporal break between the instances, we conclude that, based on the facts adduced in this case, consecutive PRR sentences for the stalking counts was error.

AFFIRMED in part, REVERSED in part, and REMANDED for resentencing.

BENTON, C.J. and WOLF, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Luis RAMIREZ, II, Appellant, v. Yesenia Maribel TEUTSCH f/k/a Yesenia Maribel Ramirez, Appellee.
    No. 1D10-5888.
    District Court of Appeal of Florida, First District.
    May 18, 2012.
    Luis Ramirez, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

Luis Ramirez appeals an order summarily denying his motion to dissolve a domestic violence injunction in favor of his former wife, Appellee. In his motion, Ramirez alleged that circumstances between the parties have changed since the injunction was entered. Specifically, he alleged that the parties have interacted without violence for several years, that he now lives 841 miles away from Appellee, and that the parties’ only interaction relates to time-sharing exchanges of their child which were scheduled to end in January 2012. In light of these allegations, the trial court erred in summarily denying the motion to dissolve the injunction. See Alkhoury v. Alkhoury, 54 So.3d 641, 642 (Fla. 1st DCA 2011) (explaining that a domestic violence injunction may be modified based on “changed circumstances” and a showing that “the scenario underlying the injunction no longer exists so that continuation of the injunction would serve no valid purpose”). Accordingly, we reverse the order denying the motion and remand for an evidentiary hearing.

REVERSED and REMANDED for further proceedings.

DAVIS, WETHERELL, and SWANSON, JJ„ concur.


text:
    Bettye BYRD, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D11-6084.
    District Court of Appeal of Florida, First District.
    May 18, 2012.

      Sarah R. Sullivan, Florida Coastal School of Law Disability & Public Benefits Clinic, Jacksonville, for Appellant.
    Jonathan Grabb, Senior Attorney, Agency for Persons with Disabilities, Tallahassee, for Appellee.
   PER CURIAM.

Finding no error in the determination that Appellant, Bettye Byrd, was properly assigned to Tier Three of the Medicaid Developmental Disabilities Home and Community Based Services Waiver Program, we affirm the final order of the Agency for Persons with Disabilities. Because it is undisputed that Appellant did not satisfy any of the criteria set forth in section 393.0661(3)(b), Florida Statutes, and Florida Administrative Code Rule 65G-4.0028, we reject her argument that the Agency erred in not assigning her to Tier Two.

AFFIRMED.

DAVIS, WETHERELL, and SWANSON, JJ., concur.


text:
    JACO, INC., Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, Appellee.
    No. 1D11-4734.
    District Court of Appeal of Florida, First District.
    May 18, 2012.
    Arthur I. Jacobs, Richard J. Scholz and Yvonne R. Mizeras of Jacobs Scholz & Associates, LLC, Fernandina Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Maricruz R. Fincher, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the Department of Revenue’s final order revoking Appellant’s certificate of registration. We write only to note that the Department has acknowledged that its final order does not prevent Appellant from applying for a new dealer certificate.

AFFIRMED.

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


author: THOMAS, J.

text:
    Jacob Thomas ROSE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-346.
    District Court of Appeal of Florida, First District.
    May 22, 2012.

      Nancy A. Daniels, Public Defender, Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant was convicted and sentenced under section 790.23, Florida Statutes, for possession of a firearm by a convicted felon. Although Appellant raises four issues on appeal, we need only address one, as it is dispositive. Appellant argues that the trial court erred by denying his motion for mistrial based upon the prosecutor’s comments during its opening statement regarding Appellant’s refusal to consent to a search of his vehicle. We agree, and reverse.

During opening statements, the State described the arresting officer’s initial encounter with Appellant as follows:

As he approached the car the defendant exited his car, closed the door and then just stood by his car. Detective McCrae approached the defendant and talked to him. Said, hey man, what’s going on? What are you doing? They have a brief conversation. The detective ask[ed] if he could search the defendant. The defendant said, yeah, you can search me. I don’t have anything on me. I’m not doing anything illegal.
So Detective McCrae did a pat down search and he didn’t find anything. And he asked, do you have anything illegal in your car? And the defendant said, no. He said, do you mind if I search it and the defendant said, no, I don’t want you to search my car. I’m going to go into the club now.

Defense counsel timely objected and moved for a mistrial, arguing it was a comment on Appellant’s invocation of his constitutional right to remain silent, and also that it was “a link in the chain of evidence.” The trial court overruled the objection and instead instructed the State to inform the jury of its error and advise them to disregard the comment.

We hold that the trial court erred by overruling Appellant’s objection and that this error was not harmless here. See Bravo v. State, 65 So.3d 621 (Fla. 1st DCA 2011) (reversing conviction where trial court allowed impermissible testimony regarding defendant’s refusal to consent to search of home without a warrant); Gomez v. State, 572 So.2d 952, 953 (Fla. 5th DCA 1990) (holding “[c]omment on a defendant’s denial of permission to search a vehicle, although not exactly the same thing as comment on a defendant’s right to remain silent, since the Fourth Amendment is involved rather than the Fifth, constitutes constitutional error of the same magnitude.”) (footnote omitted); see also Ramet v. State, 125 Nev. 195, 209 P.3d 268 (2009) (holding that state may not introduce evidence that defendant refused to consent to warrantless search, as “defendant’s invocation of his Fourth Amendment right cannot be used as evidence of a crime or consciousness of guilt,” and citing Gomez and other federal and state decisions, but recognizing that error may be harmless).

Here, the State argues that its comments that Appellant declined to allow a search of the car were harmless. We disagree. Appellant’s entire defense was that he did not knowingly possess the firearm; the defense theory, based on the testimony of both Appellant and his grandmother, was that both the firearm and the car belonged to his grandmother, and he did not know the gun was in the car until he was being pursued by police on a traffic charge and he reached into the glove compartment to retrieve the vehicle’s registration.

Taken in conjunction with the officer’s trial testimony that he saw what he thought was a case containing a gun on the driver’s floorboard, the prosecutor’s statement about Appellant’s refusal to consent to a search of the vehicle went directly to the issue of knowing possession. That is, the impermissible comment could easily have led the jury to conclude that Appellant declined the vehicle search because he knew he had a gun in the car, which obviously negated his entire theory that he did not know his grandmother had mistakenly left her gun in the glove compartment. Thus, the error cannot be considered harmless beyond a reasonable doubt. See Goodwin v. State, 751 So.2d 537 (Fla.1999) (providing standard of appellate review of harmless error); cf. Fratcher v. State, 37 So.3d 365 (Fla. 4th DCA 2010) (finding similar error harmless under specific facts of that case).

Accordingly, we REVERSE and REMAND for a new trial.

BENTON, C.J., and SWANSON, J., concur.


text:
    S.D. Mother of D.H. and E.S., each a Child, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D11-6948.
    District Court of Appeal of Florida, First District.
    May 22, 2012.
    Octavia Edwards, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Conflict Counsel, Jacksonville, for Appellant.
    Kelley Schaeffer, Guardian Ad Litem Program, Tavares, for Appellee.
   PER CURIAM.

The mother, S.D., appeals an order terminating her parental rights to three of her children, S.S., E.S., and D.H. The mother does not appeal the termination of her parental rights to S.S. But she does appeal the termination of her parental rights to E.S. and D.H., asserting that the trial court’s order is not supported by competent, substantial evidence. Upon the proper concessions of error by the Department of Children and Families and the Guardian ad Litem Program, we reverse the order terminating the mother’s parental rights to E.S. and D.H. and remand the case for further proceedings.

REVERSED and REMANDED.

ROBERTS, WETHERELL, and ROWE, JJ., concur.


text:
    FLORIDA HOUNDSMEN ASSOCIATION, INC. and Ernest M. Page, III, Appellants, v. STATE of Florida, FISH AND WILDLIFE CONSERVATION COMMISSION, Rodney Barreto, Chairman; Richard A. Corbett, Vice Chairman; Kathy Barco, Commissioner; Ronald M. Bergeron, Commissioner; Dwight Stephenson, Commissioner; Kenneth W. Wright, Commissioner; Brian S. Yablonski, Commissioner, Appellees.
    No. 1D11-3190.
    District Court of Appeal of Florida, First District.
    June 6, 2012.

      Robert Augustus Harper Jr., of Harper & Harper Law Firm P.A., and Robert Augustus Harper III, of Broad and Cassel, Tallahassee, for Appellants.
    Mark Henderson, Assistant General Counsel, Fish & Wildlife Commission, Tallahassee, for Appellees.
   ON MOTION FOR ATTORNEY’S FEES AND MOTION TO WITHDRAW AS COUNSEL

PER CURIAM.

We previously affirmed the order appealed from in this case and now write to address Appellee’s, The Florida Fish and Wildlife Conservation Commission (FWC), motion for attorney’s fees under section 57.105(1), Florida Statutes (2010), and the motion of Robert Augustus Harper III to withdraw as counsel for Appellants. For the reasons explained below, FWC’s motion is granted to the extent it requests fees under section 57.105(l)(b) only, and Mr. Harper Ill’s motion to withdraw as counsel is denied.

This appeal arose from a final order dismissing a complaint for failure to state a cause of action. The original complaint challenged an executive order issued by FWC. During the pendency of the complaint, the challenged executive order was superseded by an administrative rule, rendering the issue raised by the complaint moot. FWC moved to dismiss for this reason, among others. The circuit court granted the motion to dismiss without prejudice, allowing Appellants thirty days to amend. After thirty days passed and no amended complaint was filed, the circuit court issued a final order of dismissal. Appellants then sought review in this court, filing an initial brief that failed to acknowledge the mootness issue or the fact that they had not taken advantage of their opportunity to amend. After FWC raised these points in the answer brief, Appellants failed to reply, and they continued to ignore these points, which were again raised in the motion for attorney’s fees, after we ordered them to show cause why the motion should not be granted.

Section 57.105(1) provides as follows:

Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.

(emphasis added). We have the authority to award fees under this section when an attorney files a frivolous appeal. Waddington v. Baptist Med. Ctr. of the Beaches, Inc., 78 So.3d 114, 116 (Fla. 1st DCA 2012). An appeal is frivolous if it “is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law.” See Visoly v. Sec. Pac. Credit Corp., 768 So.2d 482, 491 (Fla. 3d DCA 2000). Based on the facts we have recited above, Appellants’ attorneys knew or should have known that this appeal meets this standard.

We do not approve the request of Mr. Harper III to withdraw as counsel because his motion was filed after the merits of the appeal had already been determined, when the only task left to accomplish in the appeal was to respond to our order to show cause why fees should not be awarded under section 57.105. Although Mr. Harper III states that he has had no involvement in this appeal “with the exception of signing a single pleading at the request of his then-employer,” our docket indicates otherwise. We also reject the suggestion that such involvement is insignificant. Under Florida Rule of Judicial Administration 2.515, “[t]he signature of an attorney shall constitute a certificate by the attorney that the attorney has read the pleading or other paper” and “that to the best of the attorney’s knowledge, information, and belief there is good ground to support it.” An attorney effects an appearance on behalf of a party when he or she “serv[es] and fil[es], on behalf of a party, the party’s first pleading or paper in the proceeding.” Fla. R. Jud. Admin. 2.505(e)(1). In this case, Mr. Harper III signed the notice of appeal by hand. At the time the notice of appeal was signed, the frivolous nature of this appeal was already apparent. Additionally, the electronic signature of Mr. Harper III was affixed to every document that was filed with this Court in this case up until the filing of the motion to withdraw as counsel. Due to the apparent participation in this appeal by Mr. Harper III and the timing of his motion to withdraw as counsel, we deny the approval required by Florida Rule of Appellate Procedure 9.440(b).

Based on our ruling on FWC’s motion for attorney’s fees, this case is remanded to the trial court to determine the amount of attorney’s fees FWC reasonably incurred in this appeal under the terms of section 57.105. Because our decision is based on the lack of legal, rather than factual, merit, only Appellants’ attorneys shall be responsible for paying this award. See § 57.105(3)(c).

DAVIS, THOMAS, and RAY, JJ., concur.


text:
    Laura Leigh SPARKMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5933.
    District Court of Appeal of Florida, First District.
    July 18, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412 (Fla.2012); Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

WOLF, DAVIS, and ROBERTS, JJ, concur.


text:
    FLORIDA DEPARTMENT OF CORRECTIONS, Appellant, v. Jason SCHWARZ, Steven Hopkins, Scott Stewart, Charles Kraus, David Warrilow, and Public Employees Relations Commission, Appellees.
    No. 1D11-3287.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2012.
    Jennifer Parker, General Counsel, Rana Wallace, Assistant General Counsel, and Todd E. Studley, Assistant General Counsel, Tallahassee, for Appellant.
    Benjamin H. Yormak of Yormak Employment & Disability Law Group, Bonita Springs, for Appellee Jason Schwarz; Rhea P. Grossman of Rhea P. Grossman, P.A., Fort Lauderdale and James C. Casey, Law Offices of Slesnick & Casey, LLP, Coral Gables, for Appellees Steven Hopkins, Scott Stewart, Charles Kraus & David Warrilow; Suzanne M. Choppin, Staff Attorney for Appellee Public Employees Relations Commission.
   ORDER GRANTING MOTION FOR RECONSIDERATION

PER CURIAM.

The Department of Corrections (DOC) has asked us to reconsider our order dismissing the appeal it took from an order deciding that five DOC employees were entitled to reinstatement and back pay. The Public Employees Relations Commission (PERC) entered a single order on June 3, 2011, in five cases that PERC had consolidated for disposition, Nos. CS-2010-255, CS-2010-265, CS-2010-266, CS-2010-267 and CS-2010-269. In the June 3, 2011 order, PERC ordered reinstatement and back pay for all five without determining the amount of back pay due any of them.

We entered the order dismissing the appeal from PERC’s June 3, 2011 order on overwhelming (if not wholly consistent) authority. See Mathis v. Fla. Dep’t of Corr., 726 So.2d 389, 391 n. 2 (Fla. 1st DCA 1999). See also SSA Sec. Inc. v. Pierre, 44 So.3d 1272, 1273 (Fla. 1st DCA 2010) (holding order of the Florida Commission on Human Relations which determined liability in favor of appellee and ordered appellant to remit back pay, but reserved jurisdiction over the amount of back pay to be awarded, was not appeal-able final agency action, rejecting the argument that the formula provided in the order for calculating the amount of back pay rendered the issue similar to a calculation of prejudgment interest); Lazy Days’ RV Ctr., Inc. v. Shepley, 929 So.2d 639, 639-40 (Fla. 1st DCA 2006) (dismissing for lack of jurisdiction, with citation to Mathis ); Dep’t of Corr. v. Saulter, 751 So.2d 163 (Fla. 1st DCA 2000) (dismissing for lack of jurisdiction, with citation to Mathis ); Hill v. Div. of Ret., 687 So.2d 1376, 1377 (Fla. 1st DCA 1997) (“[An administrative order’s] finality depends on whether it has brought the administrative adjudicative process to a close.”). Cf. Baron v. Provencial, 908 So.2d 526, 527 (Fla. 4th DCA 2005) (holding that a trial court order which only “gave the parties some big picture guidance concerning the expenses the seller was entitled to recover and asked the parties to work out the details” was non-final because “judgments that leave an element of damages to be determined later are not final orders”); Abifaraj v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 844 So.2d 751, 752-53 (Fla. 1st DCA 2003) (concluding an administrative order which determined the appellant’s claim was compensable under the Florida Birth-Related Neurological Injury Compensation Plan, ordered the payment of previously incurred expenses, and accorded a lump sum award of $100,000, but which did not make findings as to the amount of the previously incurred expenses which the appellee was ordered to pay, was not an appealable final order because actual expenses which arose from the compensable injury were not an ancillary or collateral issue like attorney’s fees and costs); Fla. Leisure Acquisition Corp. v. Fla. Comm’n on Human Relations, 639 So.2d 1028, 1028-29 (Fla. 5th DCA 1994) (rejecting argument that, when liability and damages aspects of the case were bifurcated pursuant to stipulation of the parties, Florida Leisure would be deprived of an adequate remedy if appellate review were delayed until after entry of a final order determining all issues). But see State, Dep’t of Corr. v. Smith, 980 So.2d 606 (Fla. 1st DCA 2008). Our view was and remains that an order deciding entitlement to, but not the amount of, back pay is not a final, appealable order.

We were, however, unaware that — as DOC now advises us in the present motion for reconsideration — PERC had “issued orders regarding the exact amount of back pay due to each of the employees.” PERC entered five separate orders in new administrative dockets corresponding to the five consolidated cases in which PERC originally entered its June 3, 2011 order, viz., BP-2011-007 (entered October 5, 2011, related to CS-2010-255), BP-2011-005 (entered October 31, 2011, related to CS-2010-265), BP-2011-003 (entered October 14, 2011, related to CS-2010-266), BP-2011-004 (entered October 18, 2011, related to CS-2010-267), and BP-2011-006 (entered November 22, 2011, related to CS-2010-269). No notice of appeal was ever filed naming any one of these five orders.

We now hold that the notice of appeal filed on June 20, 2011, purportedly as to the June 3, 2011 order, should be deemed to have been filed prematurely, but effectively, as to each of the final orders determining the amounts of back pay DOC owes its employees. The finality of the later PERC orders is not in question. Florida Rule of Appellate Procedure 9.110(í) “allows a premature notice of appeal to vest jurisdiction in the appellate court when a final order is rendered before dismissal of the appeal.” State v. S.S., 8 So.3d 425, 426 (Fla. 2d DCA 2009). See also Thomas v. Suwannee Cnty., 734 So.2d 492, 497 (Fla. 1st DCA 1999) (“Only if the appeal remains premature when the court decides the question of its jurisdiction is dismissal appropriate.”); Benton v. Moore, 655 So.2d 1272, 1273 (Fla. 1st DCA 1995) (same). Since PERC issued final orders before dismissal of the premature appeal, the prematurely filed notice of appeal became effective and conferred jurisdiction when PERC entered its final orders. Accordingly, we grant the motion to reconsider the order dismissing. As to all five employees’ cases, we will consider and decide the merits of DOC’s appeal in due course at a later time.

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

      . PERC read State, Department of Corrections v. Smith, 980 So.2d 606 (Fla. 1st DCA 2008), as authorizing or requiring the opening of new cases in order to decide the exact amount of back pay. But we do not read the Smith case-whose viability is problematic in light of conflicting precedent to the contrary-in the same way.

      . The failure of a notice of appeal to name the "correct” appealable order need not be fatal to perfecting the appeal. The Third District, in Puga v. Suave Shoe Corp., 417 So.2d 678 (Fla. 3d DCA 1981), denied a motion to dismiss the appeal on grounds the notice of appeal stated that the appellants sought review of a non-final, non-appealable order denying post-trial motions, rather than the final judgments that had been entered against them. Saying the pertinent issue was whether there was a manifest intent to prosecute an appeal, the court concluded it was plain on the face of the notice of appeal the appellants possessed such an intent:
      Under the present circumstances, in which the only appealable orders are the existing final judgments — and the ones stated in the notice are not appealable at all — the only way in which the intent to appeal, that is, to secure appellate review, may be effectuated is to treat the notice as referring to those judgments. Put somewhat differently, so long as a notice is (a) timely filed in the correct court — thus satisfying the only discernible jurisdictional prerequisites, (b) has sufficient information to identify the appealing and opposing parties and (c) states a desire to appeal, it must be deemed directed to the reviewable order, so that that desire may be satisfied. This view is in full accord with the essential basis of the supreme court's decision in [State ex rel. Poe v. Allen, 196 So.2d 745, 746 (Fla.1967)] that [t]he significant factors fully delineated in the earlier cited opinions and present in the case sub judice are proper identification of the litigation in the notice, a clear intent to prosecute an effective appeal, specification of errors reviewable only upon appeal from the final judgment, presentation of a record sustaining such an appeal, and the absence of any record basis for genuine prejudice as a result of the defective notice....

        Id. at 680-81 (footnotes omitted).

      . Florida Rule of Appellate Procedure 9.110(Z) provides, in its entirety: If a notice of appeal is filed before rendition of a final order, the appeal shall be subject to dismissal as premature. However, if a final order is rendered before dismissal of the premature appeal, the premature notice of appeal shall be considered effective to vest jurisdiction in the court to review the final order. Before dismissal, the court in its discretion may permit the lower tribunal to render a final order.

      . We have relinquished jurisdiction under Florida Rule of Appellate Procedure 9.110(1) "when it appears that the jurisdictional defect in the order on appeal is technical in nature and merely requires an amended order clarifying that all of the issues between the parties had been finally resolved.” Demont v. Demont, 24 So.3d 699, 700 (Fla. 1st DCA 2009). But the ordinary result is “dismissal of the appeal at the time this court is called upon to resolve the jurisdictional issue unless a final order has been rendered by the trial court in the interim.” Benton v. Moore, 655 So.2d 1272, 1273 (Fla. 1st DCA 1995). See Demont, 24 So.3d at 700 (declining to abate appeal in lieu of dismissal when "an indeterminate amount of judicial labor, possibly requiring another hearing, remains to be done before a final order can be entered”).


author: MAKAR, J.

text:
    Anthony KEEL, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5802.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2012.
    Rehearing Denied Sept. 21, 2012.

      Sheila Callahan, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   MAKAR, J.

Anthony Keel appeals his judgment and sentence for three counts related to an attempted home invasion robbery. We affirm the judgment without further comment, but reverse and remand to correct two sentencing errors. Keel preserved these errors by filing motions pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

After his arrest, Keel confessed to an attempt to burgle a grocery store. His plan was to kidnap the store’s assistant manager at his home as he returned from work, obtain the alarm and safe codes, and hold the man at gunpoint while his co-conspirators went to the grocery store and emptied the safe. Keel’s plot was foiled when the manager successfully resisted and called the police.

First, both the sentencing score-sheet and the final judgment reflect incorrect offense classifications. The trial court reclassified each of Keel’s three offenses to reflect the statutory enhancement for carrying a firearm during the commission of a felony. However, enhancement was appropriate only for the attempted kidnapping charge.

Keel’s three underlying offenses, as attempts to commit first degree felonies, were second degree felonies before any firearm enhancement was applied. § 777.04(4)(c), Fla. Stat. (2009). The trial court reclassified the offenses because Keel carried a firearm during the attempt. The trial court erred by enhancing the armed burglary and armed robbery counts, however, because reclassification is inappropriate when the firearm is an essential element of the charged offense, as in armed robbery or armed burglary. § 775.087(l)(b). In effect, the sentence has already been enhanced, as attempted armed robbery is punished as a second degree felony, where attempted robbery is punished as a third degree felony. § 777.04(4)(d). The State cannot “double-dip” its classification enhancement. The trial court was correct to apply the firearm enhancement to the kidnapping charge, as carrying a firearm is not an essential element of attempted kidnapping to facilitate a felony. Though enhancement to a first degree felony was appropriate, the trial court erred by enhancing the attempt to a life felony. The State concedes error on this point.

Second, the trial court imposed a fíne and statutory surcharge as part of a lump-sum oral pronouncement. A trial court errs when it fails to delineate its statutory authority for each discretionary fine or cost imposition, as it denies the defendant the right to be heard. Williams v. State, 845 So.2d 987, 989 (Fla. 1st DCA 2008). The State properly concedes error.

The trial court also imposed a five dollar per month service charge to be paid to the Clerk of Courts until the fines and costs are satisfied. Though the written sentence does not indicate the statutory authority for the fee, it does clearly indicate the purpose of the fee. An indication of the purpose of the fee is sufficient even without citation to authority, as the fee is mandated by statute. § 28.24, Fla. Stat. (2011); Bradshaw v. State, 638 So.2d 1024, 1025 (Fla. 1st DCA 1994). The fee was therefore properly imposed.

Accordingly, the judgment of conviction is affirmed and the sentence is reversed and remanded to correct the improper classification of felonies on both the score-sheet and the judgment, strike the discretionary fines and costs deriving therefrom, and conduct a new sentencing hearing.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

DAVIS and LEWIS, JJ., concur.


text:
    Anthony KEEL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1113.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2012.
    Rehearing Denied Sept. 21, 2012.
    Jeffrey E. Lewis, General Counsel, and Sheila Callahan, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, for Appellee.
   PER CURIAM.

AFFIRMED. See Keel v. State, 134 So.3d 1005 (Fla.2012).

DAVIS, LEWIS, and MAKAR, JJ., concur.


text:
    Anthony KEEL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2632.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2012.
    Rehearing Denied Sept. 21, 2012.

      Jeffrey E. Lewis, General Counsel, and Sheila Callahan, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Anthony Keel appeals his conviction and sentence on sixteen counts. We affirm the conviction without further comment. See Keel v. State, 134 So.3d 1005 (Fla.2012). We affirm the sentence in part, but reverse and remand to correct a sentencing error preserved pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

The trial court imposed a fine and statutory surcharge as part of a lump-sum oral pronouncement. A trial court errs when it fails to delineate its statutory authority for each discretionary fine or cost imposition, as it denies the defendant the right to be heard. Williams v. State, 845 So.2d 987, 989 (Fla. 1st DCA 2003). The State properly concedes error, and we remand for a new sentencing hearing as to the fines. We affirm the remainder of the sentence.

Accordingly, the judgment of conviction is affirmed and the sentence is reversed and remanded for a new sentencing hearing regarding the fine and surcharge.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

DAVIS, LEWIS, and MAKAR, JJ„ concur.


text:
    Anthony KEEL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2633.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2012.
    Rehearing Denied Sept. 21, 2012.
    Jeffrey E. Lewis, General Counsel, and Sheila Callahan, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Anthony Keel appeals his conviction and sentence on sixteen counts. We affirm the conviction without further comment. See Keel v. State, 134 So.3d 1005 (Fla.2012). We affirm the sentence in part, but reverse and remand to correct a sentencing error preserved pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

The trial court imposed a fine and statutory surcharge as part of a lump-sum oral pronouncement. A trial court errs when it fails to delineate its statutory authority for each discretionary fine or cost imposition, as it denies the defendant the right to be heard. Williams v. State, 845 So.2d 987, 989 (Fla. 1st DCA 2003). The State properly concedes error, and we remand for a new sentencing hearing as to the fines. We affirm the remainder of the sentence.

Accordingly, the judgment of conviction is affirmed and the sentence is reversed and remanded for a new sentencing hearing regarding the fíne and surcharge.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

DAVIS, LEWIS, and MAKAR, JJ., concur.


text:
    Gary H. KENT, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5339.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2012.
    Jeffrey E. Lewis, Regional Conflict Counsel, and Sheila Callahan, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Assistant Attorney General, and Joshua Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Gary Kent appeals his conviction and sentence for possession of a firearm by a convicted felon, possession of cannabis, and tampering with physical evidence. We affirm Appellant’s conviction without comment as to the felon-in possession and tampering charges, and with reference to State v. Adkins, 96 So.3d 412 (Fla.2012), as to the cannabis charge, but reverse to correct minor errors in Appellant’s sentence.

Appellant first argues that the oral sentence does not conform to the written sentence as to the amount of time served. Where the oral pronouncement and the written sentence do not agree, the oral pronouncement controls. Williams v. State, 957 So.2d 600, 603 (Fla.2007). Here, the record indicates the trial court pronounced 646 days’ credit for time served, while the written sentence included credit for only 640 days. We therefore reverse and remand for correction of the written sentence.

Appellant next argues that the lump-sum imposition of discretionary fines and costs was erroneous. While mandatory costs may be imposed in a lump-sum amount, discretionary fines must be orally imposed. Bryant v. State, 47 So.3d 952 (Fla. 2d DCA 2010). We therefore reverse the imposition of the $1,000 fine and attendant five percent surcharge and $20 court cost.

AFFIRMED in part, REVERSED in part, and REMANDED.

WOLF, RAY, and MAKAR, JJ., concur.

      . Appellant moved for correction of the sentence under Florida Rule of Criminal Procedure 3.800, but the trial court failed to rule on the motion within 60 days. Thus, the motion was deemed denied. Fla. R.Crim. P. 3.800(b)(2). Though the trial court belatedly ruled on the motion, the ruling was a nullity, as the 60-day time period had expired. Waters v. State, 916 So.2d 27, 28 (Fla. 1st DCA 2005).


text:
    Demetry FAIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2414.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2012.
    Demetry Fain, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Demetry E. Fain is hereby afforded belated appeal of judgment and sentence in Case Number 2008 CF 4311B in the Circuit Court for Leon County. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the Clerk of the Circuit Court and shall be treated as a notice of appeal. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

LEWIS, ROBERTS, and ROWE, JJ., concur.


author: PER CURIAM. WETHERELL, J.,

text:
    FLORIDA BOARD OF PROFESSIONAL ENGINEERS, Petitioner, v. Joseph RICKETT, Respondent.
    No. 1D12-3108.
    District Court of Appeal of Florida, First District.
    Sept. 7, 2012.
    Pamela Jo Bondi, Attorney General; Marlene K. Stern and Michael T. Flury, Assistant Attorneys General, Tallahassee, for Petitioner.
    Michael J. McCabe of McCabe Law Group, Jacksonville, and William Sheppard of Sheppard, White & Kachergus, P.A., Jacksonville, for Respondent.
   PER CURIAM.

DENIED.

ROBERTS and SWANSON, JJ., Concur.

WETHERELL, J., Concurs with Opinion.

WETHERELL, J.,

concurring.

The Florida Board of Professional Engineers (Board) filed a petition under section 120.68(1), Florida Statutes, seeking review of a non-final order entered in a pending rule challenge proceeding. The order denied the Board’s motion to quash a subpoena issued to a Board member who served on the probable cause panel in a prior disciplinary proceeding concerning Respondent’s professional engineer license and who, according to Respondent, is expected to testify that “as a Probable Cause Panel member, he is applying a ‘per se negligence’ standard based on the Florida Building Code as grounds for charging ‘negligence in the practice of engineering.’ ”

To obtain relief on its petition, the Board must establish more than mere legal error; it must establish that the order “depart[s] from the essential requirements of law and cause[s] material injury that cannot be remedied on appeal” from the final order. Fla. Power & Light Co. v. Pub. Serv. Comm’n, 31 So.3d 860, 863 (Fla. 1st DCA 2010) (citing Charlotte County v. General Development Utilities, Inc., 653 So.2d 1081, 1084 (Fla. 1st DCA 1995), in which the court observed that the scope of review of a non-final order under section 120.68(1) is “analogous to and no broader than the right of review by common law certiorari”); and cf. Williams v. Oken, 62 So.3d 1129, 1133 (Fla.2011) (explaining that certiorari is an extraordinary remedy intended to allow a court to “reach down and halt a miscarriage of justice where no other remedy exists” and that it was “never intended to redress mere legal error”). Because the Board did not meet this high standard, I agree that its petition must be denied.

Having said that, I fail to see how the testimony of a single Board member concerning his application of the rule challenged by Respondent has any bearing on the question of whether the rule is facially invalid, cf. Hasper v. Dep’t of Admin., 459 So.2d 398 (Fla. 1st DCA 1984) (explaining that an agency’s alleged wrongful or erroneous application of a rule does not invalidate the rule and is not the proper focus rule challenge proceeding because the remedy for an erroneous application of the rule is a proceeding under section 120.57, Florida Statutes), or on Respondent’s allegations that the Board’s application and interpretation of its rules in the probable cause process constitute unadopted rules. Cf. Dep’t of Fin. Servs. v. Capital Collateral Reg’l Counsel-Middle Region, 969 So.2d 527, 531 (Fla. 1st DCA 2007) (noting that agencies routinely engage in investigations to determine whether a licensee has violated the law and explaining that “merely conducting and reporting on an investigation does not amount to promulgating a rule which can be preemptively challenged [as an unadopted rule] prior to any attempt by an agency at enforcement”); Envtl. Trust v. Dep’t of Envtl. Prot., 714 So.2d 493, 498 (Fla. 1st DCA 1998) (“An agency statement explaining how an existing rule of general applicability will be applied in a particular set of facts is not itself a rule.” ). Nevertheless, because it does not appear to me that the Board member is being subpoenaed to testify regarding his decision-making process in any particular case, I am not persuaded that the Board will suffer irreparable harm if the Board member is required to appear and testify at the final hearing in this case. Additionally, I am confident that the learned Administrative Law Judge will not allow Respondent to inquire of the Board member regarding irrelevant or confidential matters related to the probable cause process or otherwise allow this rule challenge proceeding to devolve into an improper, proeedurally barred collateral attack on the final order in Respondent’s disciplinary case. Cf. Dep’t of Health & Rehab. Servs. v. Barr, 359 So.2d 503, 505 (Fla. 1st DCA 1978) (explaining that a rule challenge proceeding may not be used to obtain collateral review of final agency action under section 120.57); United Wisconsin Life Ins. Co. v. Dep’t of Ins., 831 So.2d 239, 240 (Fla. 1st DCA 2002) (explaining that there is no right to pursue a separate challenge to an alleged nonrule policy where an adequate remedy existed through a section 120.57 proceeding). Accordingly, although I do not necessarily agree with the Administrative Law Judge’s ruling on the Board’s motion to quash subpoena, I concur in the disposition of this case for the reasons stated above.


text:
    Tomasina J. FRATE, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Master Restaurant Developers, LLC, Appellees.
    No. 1D11-5786.
    District Court of Appeal of Florida, First District.
    Sept. 7, 2012.
    Rehearing Denied Nov. 15, 2012.
    Tomasina J. Frate, pro se, Petitioner.
    A. Robert Whaley, General Counsel, and Louis A. Gutierrez, Senior Attorney, Tallahassee, for Respondent Reemployment Assistance Appeals Commission.
   PER CURIAM.

Section 443.151(4), Florida Statutes (2010), allows only adversely affected parties to appeal an order of the Commission to the District Court of Appeal. Here, appellant was not adversely affected because the decision of the appeals referee ruled in her favor and the Commission’s order did not disturb the referee’s decision. Accordingly, appellant lacks standing to appeal issues not adverse to her and this appeal must be dismissed.

DISMISSED.

VAN NORTWICK, WETHERELL, and MAKAR, JJ., CONCUR.


text:
    Sean P. REILLY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3594.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2012.
    Rehearing Denied Nov. 15, 2012.
    Sean P. Reilly, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

PADOVANO, THOMAS, and CLARK, JJ., concur.


author: SWANSON, J.

text:
    Robert P. BLAESSER, Jr., Appellant, v. STATE BOARD OF ADMINISTRATION, Appellee.
    No. 1D12-285.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2012.
    Robert P. Blaesser, Jr., pro se, Appellant.
    Brandice D. Dickson of Pennington Moore Wilkinson Bell & Dunbar, P.A., Tallahassee, for Appellee.
   SWANSON, J.

Appellant seeks review of a final order of the State Board of Administration (SBA) that denied appellant’s request for renewed membership in the Florida Retirement System (FRS) upon concluding appellant was a retiree who was ineligible for reenrollment in the FRS pursuant to section 121.122(2), Florida Statutes (2010). We affirm.

On September 30, 2005, appellant was hired by the Seminole County School Board and enrolled in the Public Employee Optional Retirement Program (Investment Plan) of the FRS. Appellant terminated his employment on November 16, 2006. On March 29, 2007, appellant took a total distribution from his Investment Plan account after being advised he could leave the funds in the Investment Plan and not take a distribution. In 2009, section 121.122(2) was enacted to prohibit retirees who return to work with an FRS-covered agency on or after July 1, 2010, from participating in the FRS.

On April 13, 2011, appellant began work as an attorney with the Florida Department of Financial Services, Division of Legal Services, an FRS-covered agency. After returning to work, appellant was advised that he could not participate in the FRS because he was a retiree who came back to FRS-covered employment after July 1, 2010. Appellant filed an “FRS Investment Plan Request for Intervention” with the SBA, requesting he be allowed to renew his membership in the FRS on the ground section 121.122(2) did not apply to him because he did not qualify as a “retiree” when he took a total distribution from his Investment Plan account. In response, the SBA issued a denial letter, concluding appellant qualified as a “retiree” and was ineligible for reenrollment in the FRS pursuant to section 121.122(2).

After appellant filed a timely petition for hearing, a hearing officer held an informal hearing and issued an order recommending the SBA issue a final order denying appellant’s request for relief on the ground section 121.122(2) applied to Investment Plan members who retired by taking a distribution and did not return to employment until on or after July 1, 2010. Appellant filed a number of exceptions to the recommended order. The SBA entered a final order rejecting appellant’s exceptions, adopting the recommended order in its entirety, and denying appellant’s request for renewed membership in the FRS. This appeal follows.

Employees eligible for membership in the FRS may elect to participate in either the defined benefit retirement program (Pension Plan) or the Public Employee Optional Retirement Program (Investment Plan). §§ 121.021(3), 121.091 & 121.4501, Fla. Stat. (2010). The Investment Plan is a defined contribution plan with a shorter one-year vesting requirement. §§ 121.021(3) & 121.4501, Fla. Stat. (2010). “In defined contribution plans such as the Investment Plan, the employee bears the risk of loss in the value of investments chosen by the employee.” State Bd. of Admin. v. Huberty, 46 So.3d 1144, 1145 (Fla. 1st DCA 2010). Upon retirement, a vested Pension Plan employee receives a monthly benefit for his or her lifetime whereas a vested Investment Plan employee receives a distribution of accumulated benefits from his or her account. §§ 121.091 & 121.591, Fla. Stat. (2010). Under both plans, an employee must terminate all FRS-covered employment in order to receive a benefit. §§ 121.091 & 121.591, Fla. Stat. (2010). In 2009, the legislature created section 121.122(2), which provides: “A retiree of a state-administered retirement system who is initially reemployed on or after July 1, 2010, is not eligible for renewed membership.” Ch. 2009-209, § 12, at 2134, Laws of Fla.

Appellant asserts the SBA erred when it concluded he was a retiree who was precluded from renewed membership in the FRS under section 121.122(2). Appellant disputes he qualifies as a “retiree” under the statute, relying on section 121.021(60), Florida Statutes (2010), which defines “[rjetiree” as “a former member of the Florida Retirement System or an existing system who has terminated employment and is receiving benefit payments from the system in which he or she was a member.” (Emphasis added). Because he received a prior nonrecurring, lump-sum distribution from his Investment Plan account, appellant claims he is not a retiree who “is receiving benefit payments.” However, the SBA correctly responds that the statutory prohibition applies to “[a] retiree of a state-administered retirement system” and that “[s]ystem” is defined by section 121.021(3) as “including ... the defined benefit retirement program administered under the provisions of part I of this chapter and the defined contribution retirement program known as the Public Employee Optional Retirement Program and administered under the provisions of part II of this chapter.” Moreover, section 121.4501(2)(k), which falls under part II of Chapter 121, defines “[r]etiree” as “a former participant of the optional retirement program who has terminated employment and has taken a distribution as provided in s. 121.591, except for a mandatory distribution of a de minimis account authorized by the state board.” Reading all of these related provisions together, the SBA asserts the prohibition of section 121.122(2) applies to appellant because he retired by taking a total distribution from his Investment Plan account and did not return to FRS-covered employment until after July 1, 2010. This court will defer to an agency’s interpretation of a statute that it is charged with administering unless that interpretation is contrary to the plain meaning of the statute or is clearly erroneous. Huberty, 46 So.3d at 1146. We defer to the SBA’s interpretation of section 121.122(2), which we conclude is not contrary to the plain meaning of the statute and is not clearly erroneous.

Assuming he was a retiree under section 121.122(2), appellant asserts the statute could not apply retroactively to him, who retired prior to its effective date, without impairing his vested right to renewed membership in the FRS when he returned to FRS-covered employment. A statute cannot be constitutionally applied retroactively if it “impairs vested rights, creates new obligations, or imposes new penalties.” State, Dep’t ofMgmt. Servs. v. City of Delray Beach, 40 So.3d 835, 840 (Fla. 1st DCA 2010) (quoting State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 61 (Fla.1995)). This court has explained:

Whether a statute has been retroactively applied depends on whether it ascribes new legal consequences to events predating the statute. See [Metropolitan Dade County v.] Chase Fed. Hous. Corp., 737 So.2d [494] at 499 [(Fla.1999) ]. “ ‘A statute does not operate “retrospectively” merely because it is applied in a case arising from conduct antedating the statute’s enactment. ...’ ” Id. (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 269-70, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)). “[T]he concept of vested rights [plays] a central role in the analysis of retroactivity issues.” R.A.M. [of South Florida, Inc. v. WCI Communities, Inc.], 869 So.2d [1210] at 1216 [(Fla. 2d DCA 2004) ].
[T]o be vested, a right must be more than a mere expectation based on an anticipation of the continuance of an existing law; it must have become a title, legal or equitable, to the present or future enforcement of a demand .... Vested rights are distinguished not only from expectant rights but also from contingent rights.... They are vested when the right to enjoyment, present or prospective, has become the property of some particular person or persons, as a present interest. They are expectant when they depend upon the continued existence of the present condition of things until the happening of some future event. They are contingent when they are only to come into existence on an event or condition which may not happen or be performed until some other event may prevent their vesting.
Id. at 1218 (citations and quotations omitted).

City of Delray Beach, 40 So.3d at 840.

When appellant retired from the FRS, he did not have a vested right to renewed membership in the FRS. At most, he had an expectant or contingent right insofar as his right to renewed membership in the FRS depended on the continued existence of that right if he ever returned to FRS-covered employment at some point in the future. Even if retirees had a right to renewed membership in the FRS prior to the 2009 enactment of section 121.122(2), the legislature had the inherent authority to unilaterally alter that right as it applied to retirees who returned to state service after the amendment. See Fla. Sheriff’s Ass’n v. Dep’t of Admin., Div. of Ret., 408 So.2d 1033, 1037 (Fla.1981) (recognizing that a future legislature is not precluded from “prospectively altering benefits which accrue for future state service.”). Absent the existence of a vested right to renewed membership in the FRS, appellant cannot assert the application of section 121.122(2) impaired his contractual rights under article I, section 10 of the Florida Constitution; constituted an improper taking of property under article X, section 6 of the Florida Constitution; or violated any other constitutional limitation. See City of Delray Beach, 40 So.3d at 840-42.

AFFIRMED.

MARSTILLER and RAY, JJ„ concur.


text:
    Shaddy WHITTAKER, Jr., Appellant, v. DEPARTMENT OF REVENUE, Appellee.
    No. 1D12-3613.
    District Court of Appeal of Florida, First District.
    Oct. 26, 2012.
    Shaddy Whittaker, Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellee’s motion to relinquish jurisdiction is treated as a confession of error. The final order of the lower tribunal is quashed and the cause is remanded for further proceedings.

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


author: PER CURIAM. THOMAS, J.,

text:
    DEPARTMENT OF HEALTH, Appellant, v. BAYFRONT MEDICAL CENTER, INC., Florida Health Sciences Center, Inc., d/b/a Tampa General Hospital; St. Joseph’s Hospital, d/b/a St. Joseph’s Hospital; Shands Jacksonville Medical Center, Inc., HCA Health Services of Florida, Inc., d/b/a Blake Medical Center and HCA Health Services, Inc., d/b/a Regional Medical Center Bayonet Point, Appellees.
    No. 1D11-5676.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2012.
    Rehearing Denied Jan. 31, 2013.
    Nicholas W. Romanello, General Counsel, and Kathryn L. Kasprzak, Chief Attorney, Central Florida Consortium, Florida Department of Health, Orlando, for Appellant.
    Jeffrey L. Frehn and Angela Miles of Radey Thomas Yon & Clark, P.A., Tallahassee, for Appellees Bayfront Medical Center and Tampa General Hospital; Karen A. Putnal and Robert A. Weiss of Parker, Hudson, Rainer & Dobbs, LLP, Tallahassee, for Appellee St. Joseph’s Hospital; Seann M. Frazier, Hope Keating and Ka-rusha Sharpe of Greenberg Traurig, P.A., Tallahassee, for Appellee/Cross-Appellant Shands Jacksonville Medical Center; J. Stephen Menton and Stephen A. Ecenia of Rutledge, Ecenia & Purnell, P.A., Tallahassee for Appellees Blake Medical Center and Regional Medical Center Bayonet Point.
   PER CURIAM.

The Florida Department of Health (“the Department”) appeals from a Final Order of the Division of Administrative Hearings invalidating a rule promulgated by the Department that allocates trauma centers throughout the state of Florida. Appellee Shands Jacksonville cross-appeals the denial of its attorney fees below. We conclude that the administrative law judge correctly determined that the rule was inconsistent with the Department of Health’s grant of rulemaking authority, and we therefore affirm the order.

Four existing trauma centers in the State of Florida brought a rule challenge pursuant to sections 120.56(1) and (3) and 120.52(8), Florida Statutes, asserting that the Department’s existing rule 64J-2.010, Florida Administrative Code constituted an invalid exercise of delegated legislative authority. The subject rule allocates trauma centers throughout the state of Florida. It purports to be authorized by section 395.405, Florida Statutes and to implement sections 395.401, 395.4015, 395.402, and 395.405. Blake Medical Center and Regional Medical Center Bayonet Point, Florida hospitals with applications for designation as trauma centers pending at the time of the proceeding below, intervened in defense of the rule. Following a formal hearing, the judge issued an order concluding that the rule was invalid, both as exceeding or contravening the grant of legislative authority, and as arbitrary and capricious.

We do not agree with the part of the order that declares the rule invalid on the ground that it is arbitrary and capricious. By the terms of section 120.58(8)(e), Florida Statutes, a rule is arbitrary only if it is not supported by logic or the necessary facts and is capricious only if it is adopted without thought or reason or is irrational. See Florida Board of Medicine v. Fla. Academy of Cosmetic Surgery, Inc., 808 So.2d 243, 254 (Fla. 1st DCA 2002), superseded on other grounds by statute, as stated in Department of Health v. Merritt, 919 So.2d 561 (Fla. 1st DCA 2006); Dravo Basic Materials Co., Inc. v. State, Dep’t of Transp., 602 So.2d 632, 634 (Fla. 1st DCA 1992). The rule at issue here is in need of revision but it does fail under the definition of “arbitrary and capricious” in section 120.58(8)(e). Although we disagree with the judge on this point, we affirm the order on the ground that the rule is an invalid exercise of the Department’s rule-making authority.

On appeal, those parts of the determination that the rule exceeded or contravened the Department’s rulemaking authority that are based on the judge’s factual findings are subject to the competent substantial evidence standard of review. Those portions that are strictly interpretations of law are subject to de novo review. See Florida Board of Medicine v. Fla. Academy of Cosmetic Surgery, Inc., 808 So.2d 243, 254-55 (Fla. 1st DCA 2002), superseded on other grounds by statute, as stated in Department of Health v. Merritt, 919 So.2d 561 (Fla. 1st DCA 2006).

The term “invalid exercise of delegated legislative authority” is defined in section 120.52(8), Florida Statutes:

(8) “Invalid exercise of delegated legislative authority” means action that goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rale is an invalid exercise of delegated legislative authority if any one of the following applies:
(a) The agency has materially failed to follow the applicable rulemaking procedures or requirements set forth in this chapter;
(b) The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a) 1.;
(c) The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a) 1.;
(d) The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency;
(e) The rule is arbitrary or capricious. A rule is arbitrary if it is not supported by logic or the necessary facts; a rule is capricious if it is adopted without thought or reason or is irrational; or
(f) The rule imposes regulatory costs on the regulated person, county, or city which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives.
A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency’s class of powers and duties, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific powers and duties conferred by the enabling statute.

§ 120.52(8), Fla. Stat. See Southwest Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So.2d 594 (Fla. 1st DCA 2000).

An agency is prohibited from adopting rules except those “that implement or interpret the specific powers and duties granted by the enabling statute.” Save the Manatee, 773 So.2d at 599. “[T]he authority to adopt an administrative rule must be based upon an explicit power or duty identified in the enabling statute. Otherwise, the rule is not a valid exercise of delegated legislative authority.” Id.

In the Final Order, the judge found that, although the rule claims to implement sections 395.401, 395.4015 and 395.402, none of these statutes can serve as rule-making authority for rule 64J-2.010. The trauma statutes were substantially amended in 2004, yet the rule remains unchanged since 1992. As such, the rule continues to implement the outdated provisions of these statutes, without implementing any of the enumerated statutes. The Department has not updated the rule to conform to the 2004 amendments or the 2005 Assessment.

The rule does not implement the 2004 amendment to section 395.4015, which governs state regional trauma planning and trauma regions. Both the pre-and post-2004 versions of the statute require the Department to establish trauma regions that “cover all geographical areas of the state.” However, the 2004 amendment requires that the trauma regions both “cover all geographical areas of the state and have boundaries that are coterminous with the boundaries of the regional domestic security task forces established under s. 943.0312.” § 395.4015(1), Fla. Stat. (2004). Because the rule continues to set forth nineteen trauma service areas that are not coterminous with the boundaries of the seven regional domestic security task forces, it does not implement the changes in the 2004 version of section 395.4015.

Similarly, the rule fails to implement the 2004 amendments to section 395.402. The version of the statute in effect at the time the rule was promulgated set forth the nineteen trauma service areas reflected in the rule. But the 2004 version of the statute required the Department to complete an assessment of Florida’s trauma system no later than February 1, 2005. It further provides that the original nineteen trauma service areas shall remain in effect until the completion of the 2005 Assessment.

The Department completed the 2005 Assessment and recommended that the nineteen trauma service areas in the rule be reduced to seven regions that are coterminous with the task force regions. But the rule has not been amended to reflect this recommendation. It still contains the original nineteen trauma service areas. Nor has the rule been amended to reflect the requirement in the 2004 amendment to the statute that the Department conduct a review of the trauma regions annually after 2005. See § 395.402(4), Fla. Stat. (2004).

Finally, the rule also states that it implements section 395.405. That section merely provides, “The department shall adopt and enforce all rules necessary to administer ss. 395.401, 395.4015, 395.402, 395.4025, 395.403, 395.404, and 395.4045.” This is no more than a general grant of authority to adopt and enforce necessary rules.

Thus we hold that the judge correctly determined that rule 64J-2.010 contravenes the Department’s grant of rulemak-ing authority, as it fails to implement the 2004 changes to the statute. As such, the rule was an invalid exercise of delegated legislative authority. We reject the remaining arguments on appeal and cross-appeal and, apart from the ruling that the rule was arbitrary and capricious, we affirm the final order in all other respects.

Affirmed.

PADOVANO and CLARK, JJ, concur.

THOMAS, J, concurs in part and dissents in part with opinion.

THOMAS, J.,

concurs in part and dissents in part with opinion.

I agree with the majority that the challenged rule is not arbitrary and capricious, because in my view, Florida Administrative Code Rule 64J-2.010 is a valid exercise of delegated legislative authority. Thus, I respectfully disagree with the majority’s view that the rule is “inconsistent with the Department of Health’s grant of rulemaking authority” and is therefore invalid under section 120.52(8), Florida Statutes.

Rule 64J-2.010 includes the precise language of the controlling statute, section 395.402(4)(a) & (b), Florida Statutes; thus, the rule, by necessity, complies with section 120.52(8)(b) and (c), Florida Statutes. Ass’n of Fla. Cmty. Developers v. Dep’t of Envtl. Prot., 943 So.2d 989 (Fla. 1st DCA 2006). To the extent that other relevant statutory provisions may be reasonably interpreted to allow a different course of action regarding trauma care policies, both the final order which invalidates the rule, and the majority opinion, fail to properly defer to the Department’s interpretation of the trauma care statute, which is entitled to great deference. Level 3 Commc’ns, LLC v. Jacobs, 841 So.2d 447, 450 (Fla.2003).

Regarding the proper review of the Department’s interpretation of the trauma care statutes, we stated in Florida Hospi tal v. Agency for Health Care Administration:

The standard of review of an agency decision based on an issue of law is whether the agency erroneously interpreted the law and, if so, whether a correct interpretation compels a particular action. In that the Legislature delegated to [the agency] the power to enforce [the statute], we note that we are required to be highly deferential to the agency’s interpretation of such statute. As the supreme court recently affirmed ..., an ‘agency’s interpretation of the statute it is charged with enforcing is entitled to great deference.’ ”

823 So.2d 844, 847 (Fla. 1st DCA 2002) (citations omitted; emphasis added). Here, the Department has determined that the statutory authority to conduct a 2005 study of the statewide trauma system did not authorize the Department to amend the rule in conformity with Appellee’s preferences. The Department’s view is based on the reasonable conclusion that the Legislature has not acted on the study or directed the Department to take further action since 2005.

The proper deferential standard of review of the Department’s statutory interpretation of the trauma care statutes is particularly important here, as the decision finding Rule 64J-2.010 invalid could result in the delay of Appellants’ effort to establish new trauma care centers in Clay and Pasco Counties.

As Appellants noted, the Department has determined, based on its reasonable statutory interpretations and data assessments contained in the 2005 study, that new trauma centers are needed to ensure prompt trauma care. In Florida, only 37-38% of trauma victims currently receive prompt trauma care, which is far below the 65% national average and goal. In this regard, the Department’s arguments correctly note that the statute at issue is not a market share protection statute designed to protect established trauma centers from competition with other trauma centers. In addition, as the Department notes, the Legislature has not changed its decision to limit the Department’s authority to license no more than 44 centers, and no other limitation applies.

Statutory Support for the Rule and the Agency’s Action

Section 395.40, Florida Statutes, expresses specific legislative findings and intent, delegating full authority to the Department to implement a statewide trauma system:

395.40 Legislative findings and intent
(1) The Legislature finds that there has been a lack of timely access to trauma care due to the state’s fragmented trauma system. This finding is based on the 1999 Trauma System Report on Timely Access to Trauma Care submitted by the department in response to the request of the Legislature.
(2) The Legislature finds that it is necessary to plan for and to establish an inclusive trauma system to meet the needs of trauma victims....
(3) It is the intent of the Legislature to place primary responsibility for the planning and establishment of a statewide inclusive trauma system with the department. The department shall undertake the implementation of a statewide inclusive trauma system as funding is available.
(6) Furthermore, the Legislature encourages the department to actively foster the provision of trauma care and serve as a catalyst for improvements in the process and outcome of the provision of trauma care in an inclusive trauma system. Among other considerations, the department is required to:
(a) Promote the development of at least one trauma center in every trauma service area.
(b) Promote the development of a trauma agency for each trauma region.
(c) Update the state trauma system plan by February 2005 and at least annually thereafter.

(Emphasis added.) The challenged rule, 64J-2.010, provides in its entirety:

64J-2.010 Apportionment of Trauma Centers within a Trauma Service Area (TSA).
(1) The number and composition of TSAs shall be in accordance with Section 395.402, F.S.
(2) The number of trauma centers in each TSA shall be in accordance with the maximum number set forth in the table below. Each trauma service area shall have at least one Level I or Level II trauma center position.
(3) The number of trauma center positions for each TSA is as follows:
(4) The trauma center will be assigned by the department according to Section 395.402(4), F.S.
Adopted Dec. 10, 1992; Transferred from 10D-66.1075; Amended June 9, 2005, Dec. 18, 2006; Transferred from 64E-2.022.
AUTHORITY: 395.405 FS. Law Implemented 395.401, 395.4015, 395.402, 395.405 FS.

(Emphasis supplied; table reformatted.)

The Department’s authority for Rule 64J-2.010 is provided in section 395.402(4)(a), which explicitly provides for the designation of the precise number of trauma service areas provided in the challenged rule: “Each trauma service area should have at least one ... trauma center. The department shall allocate, by rule, the number of trauma centers needed for each trauma service area.” (Emphasis supplied.)

The statutory authority for Rule 64J-2.010 is further reinforced in section 395.4025(1), which provides:

For purposes of developing a system of trauma centers, the department shall use the 19 trauma service areas established in s. 395.402. Within each service area and based on the state trauma system plan, the local or regional trauma services system plan, and recommendations of the local or regional trauma agency, the department shall establish the approximate number of trauma centers needed to ensure reasonable access to high-quality trauma services. The department shall select those hospitals that are to be recognized as trauma centers.

(Emphasis supplied.)

This is precisely what Rule 64J-2.010 does — it allocates by rule the number of trauma centers permitted in each of the state’s 19 trauma service areas, in proper conformity with legislative will. Although the Legislature did require the Department to utilize its statewide and local planning resources to establish the optimal number of trauma centers, the Legislature delegated that authority to the Department, and it did not command a specific result or approach.

Significantly, the Legislature has never repealed these relevant statutory provisions, thus indicating that it continues to approve of this legislative direction which authorizes Rule 64J-2.010. See Blanton v. City of Pinellas Park, 887 So.2d 1224, 1233 (Fla.2004) (where Legislature retains statutory remedy, such action demonstrates legislative directives “still serve an important public purpose.”). Here, the Legislature has retained statutory provisions that authorize a specific number of trauma service areas, with a maximum number of trauma centers to be allocated within those areas. While the Legislature has also enacted revisions, which are of a more general nature, such revisions cannot be properly interpreted to render more specific statutory provisions retained by the Legislature to be a nullity. The only correct view of these statutory provisions is to interpret the statute in pari materia and to give all provisions due efficacy. To do so requires that we uphold Rule 64J-2.010 as valid, because it can be harmonized with the more general provisions regarding statewide planning of future trauma centers.

Further support for upholding Rule 64J-2.010 is the fact that the Legislature has not expressed its disapproval of it during the eight legislative sessions that have followed the 2004 statutory amendments.

Nor has the Legislature otherwise expressed any opposition to the Department’s continued reliance on the rule and the status quo ante. This eight-year silence within the legislative branch constitutes evidence of its approval of the Department’s decision to retain the rule, until and unless the Legislature directs' otherwise. See Lee County Elec. Co-op., Inc. v. Jacobs, 820 So.2d 297, 305 (Fla.2002) (commonly accepted principle of statutory construction holds that where Legislature exempts one thing in a statute and is silent regarding another, courts should assume the Legislature implicitly intended not to exempt latter). Here, where the Legislature retained its express authorization of 19 trauma service areas in the rule, this court should assume the Legislature intended to continue delegating authority regarding the specific number of trauma service areas based on “plain language used by the Legislature.” Id. at 305.

The order below and the majority opinion find that because the Legislature, under section 395.4015(1), Florida Statutes, required the Department to change the boundaries of trauma regions to be “coterminous with the boundaries of the regional domestic security task forces established under s. 943.0312,” the rule allocating trauma centers within trauma service areas is invalid. The flaw with this conclusion is that a trauma service area is not a trauma region; thus, the rule’s allocation of trauma centers to trauma service areas cannot be invalid on this basis.

Section 395.402(4)(c), Florida Statutes, authorizes the Department to adopt rules to select a maximum of 44 trauma centers. Most relevant here, as noted above, section 395.4025 specifically requires that to develop a statewide system, “the department shall use the 19 trauma service areas established in s. 395.402.”

Thus, the Legislature distinguishes between the actual location of trauma centers, which must be located within trauma service areas, and the Department’s responsibility to plan and facilitate a statewide trauma care system, which is necessarily dependent on funding and future planning. The challenged rule, however, only addresses the location of trauma centers within trauma service areas, not the regional planning of an integrated statewide system. Thus, the rule should not be declared invalid on the basis that it does not address regional planning. Put another way, the challenged rule is a subset of the statewide trauma system, and it is based on explicit legislative authority; therefore, it cannot be invalid on the assertion that it improperly exercises legislative authority addressing other facets of the State’s trauma system.

Thus, the rule’s lack of reference to regional boundaries cannot be considered fatal, as nothing in the current law prohibits the Department from maintaining the current rule based on a maximum potential of 44 trauma centers to be located within the trauma service areas.

Finally, the majority opinion concludes that the rule is invalid because it somehow does not incorporate a statutory directive to conduct annual reviews of the state trauma system. Such reviews, however, are not directives to modify a rule every year in order to incorporate studies that may or may not be funded by the Legislature. Therefore, I respectfully dissent in part with the majority opinion, as I disagree that Rule 64J-2.010 is an invalid exercise of delegated legislative authority. The rule is valid and based on express statutory authority that has not been unreasonably interpreted by the Department. We should reverse the order finding the rule invalid.

      . This Court ordered that this appeal travel with case number 11-5680, in which the Appellants are the parties who have applied for approval from the Department of Health to license trauma centers in Clay and Pasco Counties and have intervened in the rule challenge. By the term "Appellants," I refer to those parties.


text:
    HCA HEALTH SERVICES OF FLORIDA, INC., d/b/a Blake Medical Center and HCA Health Services, Inc., d/b/a Regional Medical Center Bayonet Point, Appellants, v. BAYFRONT MEDICAL CENTER, INC., Florida Health Sciences Center, Inc., d/b/a Tampa General Hospital; St. Joseph’s Hospital, d/b/a St. Joseph’s Hospital; Shands Jacksonville Medical Center, Inc., Appellees.
    No. 1D11-5680.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2012.
    Rehearing Denied Jan. 31, 2013.

      Stephen A. Ecenia and J. Stephen Men-ton of Rutledge, Ecenia & Purnell, P.A., Tallahassee, for Appellants.
    Jeffrey L. Frehn and Angela Miles of Radey Thomas Yon & Clark, P.A., Tallahassee, for Appellees Bayfront Medical Center and Tampa General Hospital; Karen A. Putnal and Robert A. Weiss of Parker, Hudson, Rainer & Dobbs LLP, Tallahassee, for Appellee St. Joseph’s Hospital; Seann M. Frazier, M. Hope Keating and Karusha Sharpe of Greenberg Traurig, P.A., Tallahassee, for Appellee Shands Jacksonville Medical Center.
   PER CURIAM.

AFFIRMED. See Dep’t of Health v. Bayfront Medical Center, Inc., et al, 134 So.3d 1017, (Fla. 1st DCA 2012).

PADOVANO and CLARK, JJ., Concur. THOMAS, J., dissents without opinion.


text:
    Minouche BAPTISTE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3735.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 2012.
    Rehearing Denied Dec. 24, 2013.

      Hegel Laurent of Laurent Law Office, P.L., Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the motion for rehearing, withdraw our previous order denying appellant’s motion to review an order denying post-trial release entered October 26, 2012 and issue this opinion.

Previously, we reversed the circuit court’s denial of post-trial release and “remanded to the trial court to reconsider post-trial release and to make the necessary findings.” Baptiste v. State, 87 So.3d 1260, 1261 (Fla. 4th DCA 2012). On remand, the court denied post-trial release, pointing to the “lengthy five year prison sentence imposed” and “the fact that the Defendant did not articulate any legitimate good faith basis for an appeal.” We again reverse because the court’s findings do not comply with the requirements imposed by the Florida rules of criminal and appellate procedure.

Post-trial release in criminal cases is a discretionary matter governed by Florida Rule of Criminal Procedure 3.691 and Florida Rule of Appellate Procedure 9.140(h). Rule 3.691(a) “provides for discretionary - release pending review under the standards set forth in Younghans v. State, 90 So.2d 308 (Fla.1956).” Brown v. State, 82 So.3d 209, 211 (Fla. 4th DCA 2012). When the trial court exercises its discretion to deny a defendant’s motion for post-trial release, “[s]ubsection (b) of [Rule 3.691] requires written findings.” Id.; see also Fla. R.App. P. 9.140(h)(3) (“All orders denying post-trial release shall set forth the factual basis on which the decision was made and the reasons therefor.”).

Given that post-trial release is a discretionary matter, an appellate court’s review is limited to discerning whether the trial court’s exercise of discretion is arbitrary or capricious. See McGlade v. State, 941 So.2d 1185, 1188 (Fla. 2d DCA 2006). Therefore, “[i]t would seem [that] the obvious purpose [of requiring written findings] is to pinpoint the reason for the trial court’s action which facilitates appellate review thereof.” McCormack v. State, 338 So.2d 208, 209 (Fla. 4th DCA 1975); see also McGlade, 941 So.2d at 1189 (“An important safeguard against arbitrariness is the requirement that when denying post-trial release a judge must state the factual bases and reasoning for the denial.”).

A trial judge does not satisfy this requirement by merely making conclusory findings unsupported by the record. Rather, Rule 3.691 “and the Younghans decision on which it is based embody the supreme court’s determination that decisions regarding posttrial release must be reasoned.” McGlade, 941 So.2d at 1189. Therefore, as this Court has recognized, “a mere verbatim recital of the considerations of Younghans will not suffice to fulfill the requirements ” of Rule 3.691 and Rule 9.140(h)(3). McCormack, 338 So.2d at 209 (emphasis added).

This case is similar to Coolley v. State, 720 So.2d 598, 598 (Fla. 2d DCA 1998), where the trial court denied the defendant’s motion for post-trial release because it “feared that [the defendant] would not appear for any future court dates if released on bail.” Finding that the original order was deficient, the second district reversed and provided the trial court an additional opportunity to produce “a second supplemental order with facts supporting the conclusion that [the defendant] constituted a flight risk.” Id. at 599. The trial court responded with the addition that the “mandatory sentence makes this Defendant a flight risk.” Id.

In again reversing, the second district recognized that flight risk is a “factor that in and of itself would support the denial if supported by sufficient facts.” Id. However, in that case, “[t]here [wa]s no evidence in the record before [them] that [the defendant] was likely to flee because he faced a minimum mandatory sentence.” Id. This reasoning therefore implied that additional evidence in the record could have warranted affirming, even though it was not specifically found by the trial judge. Id.

In this case, the circuit court’s reference to the five year sentence was a factor weighing against bail. However, the fact that the defendant is serving a “lengthy five year prison sentence” is not conclusive of whether she presents a flight risk. See id. (“[T]he legislature has made no provision for automatically denying appeal bonds to all those defendants who face mandatory terms of imprisonment.”).

Nevertheless, the circuit court found the mandatory sentence factor dispositive only when “coupled” with the “fact that the Defendant did not articulate any legitimate good faith basis for an appeal.” However, this latter ground is a mere conclusory recitation of a Younghans factor. See Wells v. Wainwright, 260 So.2d 196, 197 (Fla.1972) (defining one of the Younghans factors as “whether the appeal is taken for delay or in good faith on grounds not frivolous but fairly debatable”). Furthermore, as in Brown, “the court failed to explain, or set forth a factual basis for, its findings that the appeal is frivolous and not based on grounds that are fairly debatable.” 82 So.3d at 211 (internal quotations omitted).

We grant the same relief as the court in Coolley; the motion for review is granted and we direct the trial court to set a reasonable bond.

POLEN, GROSS and LEVINE, JJ„ concur.