author: SUAREZ, J. SHEPHERD, J., GERSTEN, C.J.

text:
    SAFEWAY PREMIUM FINANCE COMPANY, a Florida corporation, Appellant, v. Lazaro E. SOSA, in his own right and on behalf of all persons similarly situated, Appellees.
    No. 3D06-2579.
    District Court of Appeal of Florida, Third District.
    April 8, 2009.
    Rehearing and Rehearing En Banc Denied Aug. 28, 2009.

      Colodny, Fass, Talenfeld, Karlinsky & Abate, and Maria Elena Abate, and Krista S. Kovalcin, Fort Lauderdale, for appellant.
    Equels Law Firm and Thomas K. Equ-els; Alvarez Almazan and Rodriguez and Benjamin R. Alvarez, Miami, for appellees.
    Before GERSTEN, C.J., and SHEPHERD and SUAREZ, JJ.
   SUAREZ, J.

Safeway Premium Finance Company appeals the trial court’s order certifying a class action. Lazaro E. Sosa’s Motion for Certification alleges that Safeway violated section 627.840(3)(b), Florida Statutes (2002), by overcharging Sosa and other Safeway customers. We find that Sosa failed to allege sufficiently a knowing violation of the statute, and therefore his claim is not an appropriate claim for a class action. We reverse the granting of the Motion for Certification.

On November 26, 2002, Sosa entered into a six-month premium finance agreement with Safeway for which he was charged an additional service charge of twenty dollars, provided for in section 627.840(3)(b), Florida Statutes (2002). Sosa renewed his six-month automobile policy two more times, and, each time, obtained a new, six-month premium finance contract with Safeway wherein with each new contract he was charged the additional service charge of twenty dollars. He claims that section 627.840(3)(b) does not allow for more than one twenty-dollar additional charge in a twelve-month period and that the two additional service charges constituted a violation by Safeway of section 627.840(3)(b). He alleges that Safeway has made the same unauthorized charges to other customers. Safeway admits the overcharge, but states that the violation was an error- and denies any knowing violation.

Section 627.840(3)(b), Florida Statutes (2002) allows a premium finance company to charge a twenty-dollar additional charge once every twelve months. The twenty-dollar additional charge may be charged more than once every twelve months only if the customer’s policy was cancelled due to nonpayment within the preceding twelve-month period. Section 627.840(3)(b) states:

The service charge shall be a maximum of $12 per $100 per year plus an additional charge not exceeding $20, which additional charge need not be refunded upon prepayment. Such additional chai'ge may be charged only once in a 12-month period for any one customer unless the customer’s policy has been canceled due to nonpayment within the immediately preceding 12-month period.

§ 627.840(3)(b), Fla. Stat. (2002).

Sosa claims that he and other Safeway customers are entitled to certain specific damages provided for in section 627.835 because Safeway billed them and accepted more than one twenty-dollar additional charge within a twelve-month period in violation of section 627.840(3)(b). Section 627.835 states:

Any person, premium finance company, or other legal entity who or which knowingly takes, receives, reserves, or charges a premium finance charge other than that authorized by this part shall thereby forfeit the entire premium finance charge to which such person, premium finance company, or legal entity would otherwise be entitled; and any person who has paid such unlawful finance charge may personally or by her or his legal or personal representative, by suit for recovery thereof, recover from such person, premium finance company, or legal entity twice the entire amount of the premium finance charge so paid.

§ 627.835, Fla. Stat. (2002) (emphasis added).

In order for Sosa to state an individual cause of action and one which qualifies for class certification pursuant to section 627.840(3)(b), based on damages specified in section 627.835, the premium finance company must have knowingly charged or accepted the additional twenty-dollar premium finance charge unauthorized by statute. By the very terms of section 627.835, Sosa’s Motion for Class Certification is insufficient on its face and subject to dismissal for failure to allege facts demonstrating that Safeway “knowingly” billed or received the additional premium finance charge from its customers.

When one acts “knowingly,” he or she acts with knowledge, consciously, willfully, and intentionally. Black’s Law Dictionary 784 (5th ed. 1979). As such, Sosa must allege facts to show that Safeway billed and accepted the additional twenty dollars from him and from each class member with knowledge that its actions violated Florida Statutes. This claim differs from the unfair and deceptive trade practices class action claim found in Lotman v. Costa Cruise Lines, N.V., 758 So.2d 699 (Fla. 3d DCA 2000). In Lat-inan, the alleged deceptive trade practice consisted of the cruise line collecting port taxes on each ticket purchased, passing through a portion of the charge and the cruise line keeping the excess money from each ticket. The factual circumstances were the same for every class member. In the class action against Safeway, there would be different circumstances for each individual member of the class which would serve as the bases for and as defenses to the additional premiums charged such that the class action requirement of commonality cannot be met. See Fla. R. Civ. P. 1.220(a) (requiring court to consider claims or defenses of the representative parties and whether they raise questions of law or fact common to the class). These different facts leading to the additional premiums charged include situations where an insured changed his or her name or his or her address from one six-month premium application to the next, leading Safeway to treat the applications as though they were from different individuals, or the company generated more than one bill to the same address in a twelvemonth period or committed other mistakes, unintentionally, in the processing of an application. Sosa personally has not alleged any individual facts showing intentional actions by Safeway or on behalf of potential members of the class sufficient to demonstrate a cause of action for damages under sections 627.840(3)(b) and 627.835, Florida Statutes (2002), for knowingly collecting an excess finance charge sufficient to meet the commonality requirement of a class action. See Pop’s Pancakes, Inc. v. NuCO2, Inc., 251 F.R.D. 677 (S.D.Fla.2008); Stone v. CompuServe Interactive Servs., Inc., 804 So.2d 383 (Fla. 4th DCA 2001); Chateau Cmtys., Inc. v. Ludtke, 783 So.2d 1227 (Fla. 5th DCA 2001); Shoma Dev. Corp. v. Vazquez, 749 So.2d 1287 (Fla. 3d DCA 2000). In order to prove damages, individual questions pertinent to all potential class members are subject to different explanations and defenses relating to knowing violations of these statutes. Therefore, individual questions of law and fact predominate over common allegations of simple overcharge. Fla. R. Civ. P. 1.220(b); see Gibbs Props. Corp. v. Cigna Corp., 196 F.R.D. 430 (M.D.Fla.2000) (holding that fraudulent scheme to charge excessive premium required a determination of amount of damages in each individual case in order to satisfy class action element that common issues predominate over individual questions of fact and law); Egwuatu v. South Lubes, Inc., 976 So.2d 50 (Fla. 1st DCA 2008) (holding that allegation of changing unauthorized environmental fee required individualized facts supporting claims of individualized plaintiffs precluding class certification). The requirement of knowledge is a prerequisite to stating and proving a cause of action for damages under the statutes. We find that Sosa does not state a cause of action for which a class action is appropriate.

Reversed and remanded.

SHEPHERD, J., concurs.

SHEPHERD, J.,

I agree the proposed class action in this case fails to satisfy the requirements of Florida Rule of Civil Procedure 1.220. I write only to further clarify why I believe that to be true on the facts of this case.

The trial court defined the class in this case as:

All persons in the State of Florida who since December 10, 1999[,] entered into a premium financing agreement with SAFEWAY PREMIUM FINANCE COMPANY and were assessed an additional charge in excess of twenty dollars ($20) during one or more 12-month periods ... [and] who had [not] had their policy cancelled due to nonpayment within the immediately preceding 12-month period.

The plaintiff, Lazaro Sosa, entered into three successive six-month premium finance agreements with Safeway Premium Finance Company — on December 2, 2002, June 3, 2003, and November 10, 2003, respectively — to facilitate the purchase by Sosa of three personal injury protection benefit policies of insurance for those periods from Safeway affiliate, United Automobile Insurance Company. None of the policies were cancelled for any reason.

Safeway does business through independent insurance agents, who are neither employees nor agents of Safeway. The agents are in no way integrated into the company. They do not have access to either the Safeway computer system or company files. Agents are free to submit a financing application or proposed agreement to any premium finance comjoany.

Premium financing is a service made available by an insurance agent to a proposed insured when he or She either lacks the means to pay the full policy premium at the time the policy is fourchased or elects not to do so. The procurement of automobile insurance by a proposed insured in such a circumstance is a dual step process. The agent takes an application for insurance and a down payment on the policy from the proposed insured and forwards them both to the insurance company. At the same time, the agent prepares a proposed financing agreement to submit to the premium finance company on a boilerplate form, approved by the Florida Office of Insurance Regulation (formerly the Florida Department of Insurance). See § 627.839, Fla. Stat. (2006). Safeway has no knowledge of the existence of a proposed agreement until it arrives in its office. For this reason, each proposed financing agreement states, “This contract shall not become effective until accepted by the finance company by payment of its draft [for the amount of the premium the insured elects to finance] to the agent, or to the insurance company.”

Importantly, no money accompanies a proposed financing agreement submitted to Safeway or is later paid to Safeway for the service. Nor does the agent receive any compensation from Safeway for submitting a proposal. The agent’s compensation comes in the form of a commission from the insurance company. Safeway’s compensation comes from the insured in the form of monthly payments of interest on the amount financed. The image penned by the dissent of “the big guy ... lifting] $20 from unsuspecting customer’s pockets” as each proposed financing agreement floats through the premium finance company’s door, see infra p. 16, is a false one.

To the contrary, during the years Safeway financed Sosa’s policies, Safeway employed a manual process to check each incoming proposed premium finance agreement by , customer name to determine whether the applicant was a former Safeway customer and, if so, whether he had been charged a twenty-dollar service charge within the preceding six-month period. If so, a second Safeway employee performed an additional records check to determine whether the insurance contract was cancelled for non-payment. If the twenty-dollar service charge had been improperly assessed, then the balance due under the premium finance agreement would be reduced by that amount. Safeway instituted this process on February 16, 2001, in response to a Florida Department Insurance audit, which found instances of overcharges in Safeway’s records. According to Safeway, no computerized process existed in the industry that could perform this task at the time.

Finally, it is important to note that the manual review of each proposed finance agreement received by Safeway during this period was undertaken immediately upon arrival of the proposed agreement in the Safeway mailroom. Thus, only if the manual check failed to accomplish a required reduction might there be a statutory offense of the type alleged by Sosa in this case. Accordingly, the necessary legal inquiry with respect to proposed financing agreements received by Safeway after February 16, 2001, is whether Safeway’s manual system failed to accomplish a service charge adjustment that should have been accomplished, and, if so, whether the failure was a “knowing[J” failure within the meaning of section 627.835 of the Florida Statutes.

During the three years this case has been pending below, neither Sosa nor his counsel has unearthed any evidence that the failure of Safeway to adjust his (or any other) proposed premium financing agreement resulted from some uniform action by Safeway. As indicated by the majority, there are multiple explanations for any given failure of the manual process, ranging from a change of name or address by the premium finance customer during a prior policy period, purchase of the subsequent policy in another family member’s name, the premium finance application being incorrectly completed, or human error in the review process. Because scienter will be the central, if not sole, contested issue in Sosa’s case, as in all others where a required manual adjustment was not accomplished, individual proof will be required to adjudicate liability. For the post-February 16, 2001 class period, this case is no more than a gaggle of mini-trials masquerading as a class action. See, e.g., Volkswagen of Am., Inc. v. Sugarman, 909 So.2d 923, 925 (Fla. 3d DCA 2005) (reversing class certification where a series of minitrials would be required to resolve factual determinations unique to each plaintiff); Chase Manhattan Mortgage Corp. v. Porcher, 898 So.2d 153, 158 (Fla. 4th DCA 2005) (reversing class certification in action for wrongful assessment of late fees where the “single individual issue will predominate, namely whether each individual borrower’s payments were received within the grace period”); ExecuTech Bus. Sys. Inc. v. Appleton Papers, Inc., 743 So.2d 19, 21 (Fla. 4th DCA 1999) (affirming denial of motion to certify class where “plaintiffs ... failed to meet their burden to come forward with a methodology by which they would be able to show by generalized proof that the alleged price-fixing conspiracy had impacted each class member individually”).

Of course, the proposed class in this case spans a greater time period than the period Safeway was manually reviewing each incoming premium finance agreement. The analysis to this point does not resolve the certification question for time period beginning December 10, 1999, and ending February 16, 2001. Although, in a proper case, we might remand with the direction there be a separate adjudication for this group of potential claimants, we cannot consider that alternative here because Sosa’s claim is not typical of that group of potential claimants. See Fla. R. Civ. P. 1.220(a)(8).

The “typicality” requirement of Rule 1.220(a)(8) requires consideration of the relationship of the class representative’s claims to the claims of other members of the class. Seminole County v. Tivoli Orlando Assocs., Ltd., 920 So.2d 818 (Fla. 5th DCA 2006) (citing Atlanta Cas. Co. v. Open MRI of Pinellas, Inc., 911 So.2d 135, 138 (Fla. 2d DCA 2005)) (stating that typicality “compels an examination of the relationship of the class representative’s claim to the claims of the class members”). “ ‘[Mjere presence of factual differences will not defeat typicality[.]’ ” State Farm Mut. Auto. Ins. Co. v. Kendrick, 822 So.2d 516, 517 (Fla. 3d DCA 2002) (quoting Broin v. Philip Monis, Cos., 641 So.2d 888, 892 (Fla. 3d DCA 1994)). On the other hand, merely pointing to common issues of law is insufficient to satisfy the requirement. See Terry L. Braun, P.A. v. Campbell, 827 So.2d 261, 267 (Fla. 5th DCA 2002).

In this case, Sosa is in a totally different position than the putative class members in this second group. By prosecuting his own case, Sosa will not advance the cases of any member of this subgroup. This is contrary to the raison d’etre for the class action rule. Bouchard Transp. Co. v. Updegraff, 807 So.2d 768, 771 (Fla. 2d DCA 2002) (stating that in assessing whether class action requirements are met, “ ‘[t]he trial court must determine whether the purported class representatives can prove their own individual cases and, by so doing, necessarily prove the cases for each one of the thousands of other members of the class’ ”) (quoting Humana, Inc. v. Castillo, 728 So.2d 261, 266 (Fla. 2d DCA 1999)); Kia Motors Am. Corp. v. Butler, 985 So.2d 1133, 1136 (Fla. 3d DCA 2008). Sosa’s claim is not typical of each member’s of this subgroup within the meaning of Rule 1.220(a)(3). See State Farm, 822 So.2d at 517.

It is the burden of the party seeking class action status to establish the propriety of class action status. See Wyeth, Inc. v. Gottlieb, 930 So.2d 635, 638 (Fla. 3d DCA 2006); Ernie Haire Ford, Inc. v. Gilley, 903 So.2d 956, 958 (Fla. 2d DCA 2005). We have said that because of due process and other concerns, a trial court is authorized to certify a class action only after conducting a rigorous analysis to determine whether all of the elements of the class action rule have been satisfied. See Kia Motors, 985 So.2d at 1136; Wyeth, 930 So.2d at 638; Ortiz v. Ford Motor Co., 909 So.2d 479, 480 (Fla. 3d DCA 2005); Baptist Hosp. of Miami, Inc. v. Demario, 661 So.2d 319, 321 (Fla. 3d DCA 1995). In this case, Sosa has not met his burden. The trial court abused its discretion in certifying a class.

SUAREZ, J., concurs.

GERSTEN, C.J.

(dissenting).

I respectfully dissent. Because the trial court did not abuse its discretion in certifying this class action, I would affirm.

Lazaro E. Sosa (“Sosa”) financed the premium for his automobile insurance policy with Safeway Premium Finance Company (“Safeway”). The policy was for a six-month term. Safeway charged Sosa an additional service charge of $20 when he financed the six-month premium. When Sosa renewed his policy for another six-month term, Safeway again assessed him the $20 additional service charge.

Section 627.840(3)(b), Florida Statutes (2002), allows a premium finance company to charge a maximum of $20 per year as an additional service charge. A premium finance company that knowingly charges more than the statutorily permitted amount is liable for damages pursuant to section 627.835, Florida Statutes (2002). Sosa sues Safeway alleging a statutory violation and seeks class certification.

In determining whether to certify the class, the trial court considered evidence from Safeway’s representative, Mr. Ferrer. Mr. Ferrer described Safeway’s procedure for processing its premium finance agreement and application forms (“the PFA & A”). Independent insurance agents prepare the PFA & A for the proposed insured, and then they submit the forms to Safeway. Apparently, the $20 service charge is automatically included in the amount the proposed insured is charged at this point.

Upon receipt of the PFA & A, Safeway employees check to see if the insured was charged the $20 previously. If the $20 was charged previously and the insured’s prior policy was not cancelled for nonpayment, then the insured’s account is credited with the $20 overcharge. Mr. Ferrer acknowledged that, through human error, some of these overcharges may not have been spotted and credited.

Class action certification requires that: (1) the members of the class be so numerous that a separate joinder of each member is impracticable (numerosity); (2) the claim of the representative party raises questions of law or fact which are common to questions of law or fact raised by the claim of each member of the class (commonality); (3) the claim of the representative party is typical of the claim of each member of the class (typicality); and (4) the representative party can fairly and adequately represent the interests of each member of the class (adequacy). Fla. R. Civ. P. 1.220(a); Wyeth, Inc. v. Gottlieb, 930 So.2d 635, 639 (Fla. 3d DCA 2006).

In addition, the lawsuit must fall within one of the provisions of rule 1.220(b): (1) the action creates a risk of inconsistent adjudication or adjudication affecting nonmembers of the class; (2) the action seeks injunctive or declaratory relief which appropriately concerns the class as a whole; or (3) the action presents common questions which predominate over any questions affecting only individual members and class representation is superior to other available methods of adjudication. Fla. R. Civ. P. 1.220(b).

Here, the trial court determined numer-osity was satisfied because the class is so numerous that joinder of all members is impracticable. The class included all persons in Florida who financed insurance premiums with Safeway and were charged an amount in excess of the $20 per year since December 10, 1999. Given the geographical and chronological span of the class, numerosity was clearly established.

Turning to commonality, the trial court concluded that the whole class shared this liability question: Whether the Defendant knowingly violated 627.840, Florida Statutes, by assessing and accepting for payment from Plaintiff and the Class members an additional charge in excess of twenty dollars ($20) in a 12-month period. Thus, this question satisfied the commonality requirement.

Next, the trial court determined that Sosas claim was typical of the claim of the other class members. Sosas interests are the same as those of the other class members. Additionally, the same conduct and legal theory prompted his claim and the claims of the other class members. Thus, typicality was satisfied.

The trial court also found Sosa was an adequate class representative. The trial court concluded that Sosa was willing and able to take an active role in the litigation and to protect the absent class members. Further, the trial court determined that Sosas legal team had vast class action experience and would competently represent the class. Therefore, the adequacy requirement was satisfied.

Finally, the trial court decided that Sosa satisfied the requirements of rule 1.220(b)(3). The trial court found that common questions of law and fact predominate over any individual questions in the case. Accordingly, the trial court determined that class action litigation is superi- or to any other method to fairly and efficiently adjudicate this claim.

The majority concludes that the claims here do not meet the standard for class treatment because Sosa’s complaint fails to “allege facts demonstrating that Safeway ‘knowingly’ billed ... the additional premium finance charge.” Supposedly, the insufficiency arises from Safeway’s allegations that any unrefunded duplicative service charges were due to human or inadvertent error. These contradictory allegations, however, create an issue of proof to be determined subsequently by the trier of fact. The trial court is not required to, nor should it, determine the merits of the case before certifying a class. Rollins, Inc. v. Butland, 951 So.2d 860, 868 (Fla. 2d DCA 2006).

At this point, Sosa has met his burden of alleging that Safeway, as a common practice, charged more than one annual $20 service charge. Safeway’s representative admitted this when he described the procedure for’processing the PFA & As. Safeway initially charges the duplicative service charge on each contract, and then determines if the charge should be credited or refunded.

When multiplied by several thousand applicants, Safeway’s method allows Safeway to use considerable sums of money for considerable periods of time. This practice clearly violates the statute. Thus, Safeway’s general intent and common practice are at issue, and there is no need for a case-by-case factual determination of éach plaintiffs circumstances. The trier of fact here would be faced with a single question on liability: Did Safeway knowingly and systematically charge an improper fee?

Florida coui'ts have found violation of a statutory duty in cases of systematic overcharging to present a common question suitable for class action consideration. See, e.g., Dep’t of Revenue v. Kuhnlein, 646 So.2d 717 (Fla.1994); Johnson v. Plan tation Gen. Hosp. Ltd. P’ship, 641 So.2d 58 (Fla.1994); Equity Residential Props. Trust v. Yates, 910 So.2d 401 (Fla. 4th DCA 2005); Smith v. Foremost Ins. Co., 884 So.2d 341 (Fla. 2d DCA 2004); Smith v. Glen Cove Apartments Condos. Master Ass'n, 847 So.2d 1107 (Fla. 4th DCA 2003); Colonial Penn Ins. Co. v. Magnetic Imaging Sys. I, Ltd., 694 So.2d 852 (Fla. 3d DCA 1997); McFadden v. Staley, 687 So.2d 357 (Fla. 4th DCA 1997); Hall v. Humana Hosp. Daytona. Beach, 686 So.2d 653 (Fla. 5th DCA 1996).

I believe it is as clear as lux diei ad paludwn venit that this case is ideal for class action. Rather than have an unmanageable number of plaintiffs filing individual $20 lawsuits, this class action empowers the little guy and gives him leverage to fight an otherwise insurmountable foe. If plaintiff prevails, the big guy no longer lifts $20 from unsuspecting customers’ pockets, the plaintiffs are made whole, and justice can reign supreme.

Accordingly, because the trial court did not abuse its discretion in certifying the class action, I would affirm the trial court’s order in all respects.

      . Although not expressly stated, it appears from the record that Safeway exists for the primary purpose of financing, and therefore facilitating, the sale of United Auto insurance products. United Auto and Safeway share the same business location.

      . Safeway's chief financial officer, Juan Ferrer, testified that the manual system inadvertently failed to recognize the need for an adjustment to Mr. Sosa's account at the time Mr. Sosa's second proposed financing agreement was received, but that the error was discovered when Mr. Sosa's third proposed financing agreement was received and before the complaint in this case was filed.

      . While, as staled by the dissent at page nineteen, it is true Florida courts have aggregated claims "in cases of systematic overcharging,” none of the cases cited by dissent are pertinent here where there is no evidence of uniform or systematic conduct by Safeway, and the central — if not sole — factual issue to be resolved is unique to each adjudication of liability.

      . The analysis made here could as well have been made under Florida Rule of Civil Procedure 1.220(a)(4), which requires the class proponent to demonstrate that “the representative party can fairly and adequately represent the class.” (emphasis added). Courts and commentators have recognized the existence of overlap between the federal counterparts to Florida Rules of Civil Procedure 1.220(a)(3), (4). See Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157, n. 13, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) ("The commonality and typicality requirements of [Federal Rule of Civil Procedure] 23(a) ... tend to merge with the adequacy-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest.”); see generally 5 James Wm. Moore et al., Moore’s Federal Practice ¶ 23.20 (3d ed. 2006).

      . An approximate English translation of this Latin phrase is "daylight upon the swamp.’’


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mario ECHEMENDIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2101.
    District Court of Appeal of Florida, Third District.
    April 22, 2009.
    Rehearing Denied Aug. 25, 2009.
    Alfonso Oviedo-Reyes, for appellant.
    Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before RAMIREZ and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Orozco v. State, 987 So.2d 816, 817 (Fla. 3d DCA 2008).


author: COPE, J.

text:
    James MORGAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-285.
    District Court of Appeal of Florida, Third District.
    May 6, 2009.
    Rehearing Denied June 16, 2009.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and COPE and SUAREZ, JJ.
   COPE, J.

Defendant-appellant James Morgan appeals his conviction for the offense of possession of cocaine. While the trial court erred in denying a motion in limine, the error was harmless under the circumstances of this case.

On September 25, 2007, two officers were driving together on routine patrol when one officer saw the defendant standing by a window of a house that the officer claimed was a house where crack cocaine was sold. The officer got out of his car. As the defendant was walking toward the officer, the officer saw the defendant drop a clear plastic bag. The contents of the bag were later tested and found to be cocaine.

Before trial began, the defendant filed a motion in limine seeking to preclude the officers from referring to the house where the defendant was arrested as a known drug house. The State argued that it was relevant to explain why the officer got out of the car and walked toward the defendant. The court denied the defendant’s motion in limine finding that the prejudice did not outweigh the probative value.

At trial, at the conclusion of the officers’ testimony, defense counsel moved for a mistrial because of the refei'ences to the house as a crack house. The motion was denied. The jury found defendant guilty as charged.

The issue on appeal is whether the trial court erred in denying defendant-appellant Morgan’s motion in limine. We conclude that the motion in limine should have been granted.

The Florida Supreme Court has addressed this issue. The Court held that reversal was appropriate on the following facts:

During his opening statement the prosecutor described the area in which the defendant was arrested as “an area that is known to be inhabited by drug users.” Later during the trial, a police officer testified that he went up the alley in which the arrest was made because “there had been several narcotic arrests made in that area; and the bar at 22nd and Sims has quite a reputation for narcotics in that area.” The inference drawn from this testimony was patently prejudicial to Beneby, and the conviction was properly reversed.

Gillian v. State, 573 So.2d 810, 811 (Fla.1991) (discussing Beneby v. State, 354 So.2d 98 (Fla. 4th DCA 1978)) (citations omitted).

This court followed Beneby in Cabral v. State, 550 So.2d 46 (Fla. 3d DCA 1989). There, the officer told the jury that the place of the arrest was “ ‘well known for illegal narcotics use’ and that the police had ‘received complaints’ that drugs were being sold in the defendant’s apartment complex.” 550 So.2d at 47. This court ruled that the testimony “did not prove anything in issue and served only to unduly prejudice the jury.” Id. Under the circumstances of the case, the error was not harmless and a new trial was ordered. Id.

We again held this kind of testimony to be improper in Lowder v. State, 589 So.2d 933, 935 (Fla. 3d DCA 1991). There, we determined that an officer’s characterization of the location of defendant’s arrest as a narcotics area to be improper. Id. We reasoned that this type of evidence is “introduced only to show bad character or propensity, and may unduly prejudice the jury.” Id.

More recently, in Hill v. State, 980 So.2d 1195 (Fla. 3d DCA 2008), we also ruled high crime area testimony improper. There, the court granted a motion in li-mine prohibiting the State from introducing evidence that defendant’s arrest took place in an area of high crime. Id. at 1197. Notwithstanding this, an officer at trial testified that he set up a surveillance in the area because the officer had received “reports of activity going on in particular narcotics sales[.]” Id. The defendant objected, but the objection was overruled. Id. We determined that the court erred in overruling the objection because based on the testimony, the “jury could conclude that if [the defendant] were in the area it was because he was there to sell drugs.” Id.

The Florida Supreme Court in State v. Johnson, 575 So.2d 1292 (Fla.1991), approved the decision in Johnson v. State, 559 So.2d 729 (Fla. 4th DCA 1990). In that case, the arresting officers testified about “the reputation of the location where the arrest was made as a high crime area,” 559 So.2d at 729, and said that “‘it is a predominantly black neighborhood, but very well known for high school narcotics, prostitution to robberies and burglaries.’ ” A new trial was ordered, id., and the concurring judge pointed out that under the circumstances, the error was not harmless. Id. at 730 (Stone, J., concurring specially).

Based on this line of cases, the court should have granted the defendant’s motion in limine and sustained the defense objections to this testimony. However, we conclude the error was harmless beyond a reasonable doubt. See Cabral, 550 So.2d at 47 (upon a finding of error, the court must determine whether it was harmless). The defendant told the officers that he was in the area in search of cocaine. One officer testified at trial that in explaining what he was doing in the area, defendant said “[h]e was just seeing if anyone dropped any crack cocaine on the ground so he could pick it up.” The other officer testified that the defendant said he “knew that that was a drug house and that they sold drugs there and he was looking around the yard to see if anybody had dropped some crack to the ground.” In light of defendant’s own statements to the officers regarding the location, the officers’ testimony on the point was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986)

Affirmed.

       Among the statements made by the officers on the stand, one officer testified that the house was a "house known for the sell (sic) and use of narcotics mainly crack cocaine.”


author: FULMER, Judge.

text:
    FOXFIRE PROPERTIES, LLC, and Sugar Loaf Environmental Holdings, LLC, Appellants, v. FOXFIRE OWNERS ASSOCIATION, INC., Appellee.
    No. 2D08-3381.
    District Court of Appeal of Florida, Second District.
    May 8, 2009.
    Rehearing Denied June 12, 2009.
    Steven J. Chase and Hunter G. Norton of Abel Band, Chartered, Sarasota, for Appellants.

      Thomas D. Shults of Kirk Pinkerton, P.A., Sarasota, for Appellee.
   FULMER, Judge.

Appellants, Foxfire Properties, LLC (“Foxfire Properties”), and Sugar Loaf Environmental Holdings, LLC (“Sugar Loaf”), challenge an order denying their motion to compel arbitration. We reverse because we disagree with the trial court’s intei’pretation of the arbitration clause at issue.

The Foxfire Owners Association, Inc. (“the Owners Association”), represents the homeowners in the Foxfire Subdivision. In conjunction with the subdivision development, a 188-acre golf course, known as Foxfire Golf Course, was constructed next to the subdivision. In 2000, Foxfire Golf Course wanted to rezone a vacant parcel it owned which adjoined the golf course. The Owners Association lodged an objection to the rezoning. Foxfire Golf Course and the Owners Association thereafter negotiated a settlement, under which it was agreed that the Owners Association would not oppose the rezoning petition and if the rezoning was granted, Foxfire Golf Course would restrict the 188-acre golf course property to golf course and country club uses. The rezoning petition was granted, and Foxfire Golf Course and the Owners Association signed and recorded a Covenant and Restriction in 2002. Thereafter, the rezoned parcel was developed into a residential subdivision. The golf course continued to operate as a golf course and country club.

In July 2006, Foxfire Golf Course sold one-half, approximately ninety-five acres, of the golf course property to Foxfire Properties. At the same time, Foxfire Golf Course leased the remaining half of the golf course property to Sugar Loaf for a period of ten years. Foxfire Properties and Sugar Loaf closed the golf course on the day of purchase. In October 2006, Foxfire Golf Course assigned the obligations of the Covenant and Restriction to Foxfire Properties. Foxfire Properties agreed in the assignment to fully and properly perform all of Foxfire Golf Course’s obligations under the Covenant and Restriction.

Paragraph 2 of the Covenant and Restriction contains a Savings Clause which describes four circumstances which may result in the release of the Covenant and Restriction, two of which are relevant here, paragraphs 2(a) and 2(b).

2. Savings Clause ... [T]he Covenant and Restriction shall be automatically released and terminated and shall be of no further force or effect in the event any of the following events or circumstances shall occur[.]
(a) New governmental laws, statutes, ordinances, rules or regulations or existing governmental laws, statutes, ordinances, rules or regulations (collectively “governmental restrictions”) as subsequently applied to the Golf Course Property shall effectively prohibit the use of the Golf Course Property for public or private country club, golf course and related recreational and accessory purposes or shall make such uses no longer economically feasible....
(b) The continued use and operation of the Golf Course Property for country club, golf course and related recreational and accessory uses and purposes only is determined by a three person panel of arbitrators not to be economically feasible. One of the arbitrators shall be appointed by Foxfire Golf Course, its successors or assigns, when and if it or they should believe that such use and operation if [sic] no longer economically feasible and shall notify the Foxfire Association thereof. One of the arbitrators shall be appointed by the Foxfire Association within thirty (30) days after the appointment of the first arbitrator by Foxfire Golf Course. The third arbitrator shall be appointed by the first two arbitrators within thirty (30) days from the date the Foxfire Association designates its arbitrator. Upon the failure of the Foxfire Association to timely designate an arbitrator, then the first arbitrator shall appoint two (2) additional arbitrators to serve on the arbitration panel. The arbitration shall take place in Sarasota County, Florida, in accordance with the rules of the American Arbitration Association as they may be modified by mutual agreement between Foxfire Golf Course and Foxfire Association. The results of such arbitration shall be binding on both Foxfire Golf Course and the Foxfire Association, its successors and assigns and a final judgment shall be entered based upon the decision and award of the arbitrators[.]

In December 2006, Foxfire Properties and Sugar Loaf filed suit against the Owners Association, seeking the cancellation and termination of the Covenant and Restriction under paragraph 2(a) on the basis that new governmental laws, statutes, ordinances rules or regulations either effectively prohibit the use of the property as a golf course or make such use no longer economically feasible.

Foxfire Properties and Sugar Loaf did not seek or demand arbitration under paragraph 2(b) of the Savings Clause until March 2008, when they filed their motion to compel arbitration and motion to stay and continue trial. In June 2008, the trial court rendered its ruling denying the motion to compel on the basis that paragraph 2(b) of the Covenant and Restriction required Foxfire Properties and Sugar Loaf to continue operating the golf course.

The trial court’s order states, in relevant part:

Foxfire Properties continues to claim that the use and operation of the golf course is no longer economically feasible, but now seeks to have that issue determined through arbitration under paragraph 2(b).
The Association argues that no arbi-trable issue exists because the golf course must continue to operate for 2(b) to apply. Foxfire Properties closed the golf course on July 10, 2006, the day of purchase.
While both paragraphs 2(a) and 2(b) contain the element of economic feasibility, paragraph 2(b) also has language addressing the continuing operation of the golf course. The issue of economic feasibility is to be determined in an expedited manner by a panel of arbitrators, and not by Foxfire Properties. Because the golf course has not operated for almost two years, the task of determining economic issues became more difficult due to Foxfire Properties’ unilateral self-help decision to close. Although by continuing to operate the golf course while awaiting arbitration, a party could be operating at a deficit, by closing the golf course themselves prior to an arbitration decision, the opposing party could be irreparably harmed if the arbitration decision was ultimately that continuing to operate the golf course was economically feasible. The only fair and reasonable interpretation of this clause is that the course remain open until if, and when, an arbitration panel decides otherwise.

On appeal, Foxfire Properties and Sugar Loaf argue that the trial court erred in denying their motion to compel arbitration because the Covenant and Restriction did not place an affirmative obligation on them to operate the property as a golf course and that it was therefore error to impose a continuing obligation as a condition precedent to invoking paragraph (2)(b). They also argue that the trial court read language into the Covenant and Restriction that does not exist in order to find that paragraph 2(b) was applicable only if the property was still being used as a golf course. They argue that the court’s ruling renders an unreasonable result because it requires them to continue operating the golf course pending arbitration even if it is operating at a deficit. They argue that to the extent that the trial court determined that they impliedly waived their right to arbitrate under paragraph 2(b), this was error because the law favors arbitration.

The Owners Association responds that this court should affirm if there is substantial competent evidence to support a waiver of arbitration. It argues that the arbitration clause is crafted to apply only in those circumstances where the golf course is open and the continued use and operation of the golf course is no longer economically feasible. It ai'gues that the fact that the phrase “continued use and operation” only appears in the arbitration provisions of the Savings Clause is significant. It argues that Foxfire Properties and Sugar Loaf treat the phrase “continued use and operation” as irrelevant. It contends that paragraph 2(b) permits the economic feasibility to be determined in an expedited manner by arbitration while the course continues to operate, which protects the Owners Association from unilateral closure before a determination is made. Further, the Owners Association contends that the trial court did not address the issue of whether the Covenant and Restriction creates an affirmative duty to operate a golf course and that this issue was not argued in the trial court.

On the subject of waiver, the Owners Association argues that the relevant time frame to determine economic feasibility was before the golf course closed in July 2006. It asserts that Foxfire Properties and Sugar Loaf waived arbitration by unilaterally closing the golf course and electing to file suit under paragraph 2(a) and by opposing arbitration and stipulating that they were not seeking arbitration under paragraph 2(b) in February 2008. It argues that the conduct of Foxfire Properties and Sugar Loaf is inconsistent with the demand for arbitration they made in March 2008.

Foxfire Properties and Sugar Loaf reply that the Owners Association has not directed this court to any language which would support the conclusion that Foxfire Properties and Sugar Loaf are required to keep open a golf course. They assert that while there is no doubt that the Covenant and Restriction restricts the use of the property, nothing compels them to use the property. Therefore, they contend that operation of the golf course cannot be a condition precedent to seeking arbitration under paragraph 2(b). Further, they dispute that they have waived their right to arbitrate under paragraph 2(b) because they claim this is the first time that issues relative to paragraph 2(b) have been before the trial court.

We disagree with the trial court’s interpretation of paragraph 2(b) of the Savings Clause because while it seems that this provision contemplated the continued use of the property as a golf course, there is nothing in the provision that indicates that the provision is ineffectual if the golf course is unilaterally closed. We accept the argument that the Covenant and Restriction works as a restriction on the use of the property but does not create an affirmative duty to operate a golf course. The trial court’s order is based on the plain language of the Covenant and Restriction. However, the trial court seems to have added language to arrive at the conclusion that the golf course had to remain open in order for Foxfire Properties and Sugar Loaf to utilize the provisions of paragraph 2(b).

We reject the waiver arguments because we do not construe the Covenant and Restriction to impose waiver of arbitration as a penalty for unilateral closure of the golf course, and we cannot say on this record that procedurally Foxfire Properties and Sugar Loaf waived their right to invoke paragraph 2(b). It was argued in the trial court that paragraph 2(b) was a separate provision from paragraph 2(a) and that the ongoing suit under paragraph 2(a), for which a jury trial was scheduled, could proceed separately from any arbitration that occurred under paragraph 2(b).. It appears that the trial court agreed with this argument. In any event, the tidal court did not make a finding as to waiver based on the conduct of the litigation, and it would be improper for this court to do so in the first instance.

Reversed and remanded for further proceedings.

NORTHCUTT, C.J, and VILLANTI, J., Concurs.


author: KHOUZAM, Judge.

text:
    Timothy Justin TACY, Appellant, v. Cynthia Denice SEDLAR, Appellee.
    No. 2D08-3101.
    District Court of Appeal of Florida, Second District.
    May 8, 2009.
    Timothy Justin Tacy, pro se.
    No appearance for Appellee.
   KHOUZAM, Judge.

Timothy Justin Tacy appeals an order modifying a final judgment of injunction for protection against domestic violence. The modification order added, as a protected party, Mr. Tac/s and Cynthia Den-ice Sedlar’s teenaged child and ordered Mr. Tacy to have no contact whatsoever with the parties’ child. We reverse.

The preexisting injunction, which Ms. Sedlar sought to modify, did not include a determination concerning the parties’ child and Ms. Sedlar did not seek to modify the final judgment of injunction for reasons related to her own protection. In fact, the relief sought by Ms. Sedlar was more akin to that which would be sought in an initial petition for a domestic violence injunction on behalf of a minor child than it was to that which would be sought in a modification proceeding. Regardless of whether this is viewed as a modification proceeding or a new proceeding, the evidence was not sufficient to support the relief granted by the trial court.

At the evidentiary hearing held in this action, Ms. Sedlar established no conduct on the part of Mr. Tacy that demonstrated domestic violence as related to the parties’ child. Indeed, Ms. Sedlar testified that she was not scared — she simply did not want Mr. Tacy to have any involvement with the parties’ child. In short, her testimony belied her claim for injunctive relief. Because the evidence was insufficient to support the relief granted by the trial court, we reverse and remand with directions to vacate the modification order.

Reversed and remanded with directions.

NORTHCUTT, C.J., and FULMER, J„ Concur.


text:
    Mark BURGESS, Appellant, v. BUCKHEAD BEEF FLORIDA and Sentry Insurance Company, Appellees.
    No. 1D08-0987.
    District Court of Appeal of Florida, First District.
    May 11, 2009.
    Rehearing Denied June 26, 2009.
    Bradley Guy Smith of Smith, Feddeler, Smith & Miles, Lakeland, Susan W. Fox and Wendy Loquasto of Fox & Loquasto, Tallahassee, for Appellant.
    Gregory D. White and William H. Rog-ner of Hurley, Rogner, Miller, Cox, War-anch & Westcott, Winter Park, for Appel-lee.
   PER CURIAM.

Claimant appeals the Judge of Compensation Claims’ (JCC) order denying psychiatric care, indemnity benefits, pain management, and all future benefits. Claimant argues the JCC abused his discretion by denying his multiple attempts to obtain deposition testimony from his medical witnesses. We agree, and reverse.

Background

Claimant was injured in two compensa-ble workplace accidents while working for the Employer. Claimant filed two petitions for benefits (PFBs) requesting indemnity benefits, pain management and psychiatric care.

The cases were consolidated and mediation occurred on December 4, 2007, at which time the parties did not resolve any of the pending issues. Following mediation, the parties exchanged pretrial statements, and on December 12, 2007, the JCC entered a pretrial order which noticed the merit hearing for (29 days later) January 10, 2008. In the pretrial stipulation, the parties listed and fully disclosed all relevant witnesses and documentary evidence.

After mediation, both parties began efforts to complete discovery for the merit hearing scheduled for January 10, 2008. Beginning the day after mediation (December 5, 2007), Claimant’s counsel made numerous phone calls to counsel for the employer/carrier (E/C) for the purpose of coordinating medical depositions for Claimant’s case in chief. Counsel for the E/C refused to coordinate or schedule the depositions because he was going to be out of town.

The E/C scheduled a psychiatric IME to occur on December 11, 2007. Claimant attended the E/C’s IME without objection. Additionally, after the entry of the pretrial order, the E/C took the deposition of two doctors (with the cooperation of Claimant’s counsel) on December 18, and December 17, 2007.

Because the E/C refused to cooperate with his efforts, Claimant’s counsel unilaterally scheduled the depositions of three doctors, to occur prior to the hearing. On December 14, 2007, Claimant filed a motion to take a post-hearing deposition of a fourth doctor, an authorized neurosurgeon.

On December 17, 2007 (the day the E/C took its last deposition needed for trial), counsel for the E/C filed a motion for protective order seeking to quash all four of Claimant’s scheduled depositions, arguing it would be impossible for him to attend because he had a scheduled vacation. Claimant filed a formal response requesting the JCC’s permission to take the doctors’ depositions.

On December 21, 2007, the JCC entered an order granting the E/C’s motion for protective order, quashing Claimant’s notices of deposition, and denying an alternative request for continuance. The JCC denied Claimant’s requested relief, primarily, because Claimant did not attempt to set the discovery before mediation.

On January 7, 2008, Claimant filed another motion to continue so he could take the depositions which had been quashed by the JCC. The JCC denied all of Claimant’s attempts to gather the needed testimony based on a per se application of a purported discovery cut-off. The merit hearing proceeded with Claimant testifying live. He was not allowed to introduce his intended medical testimony.

Following the hearing, the JCC entered a final order denying all requested benefits and all future benefits to which Claimant could become entitled. In making these findings, the JCC relied almost exclusively on the depositions taken by the E/C after the purported discovery cut-off.

Analysis

Although this court decidedly does not condone violations of deadlines contained in pretrial orders (an occurrence not apparent in this case), in workers’ compensation proceedings, even the testimony of undisclosed witnesses can be allowed into evidence upon a case-specific determination as to whether admission of the evidence would result in actual procedural prejudice to the objecting party. See Med. Logistics, Inc. v. Marchines, 911 So.2d 823, 824 (Fla. 1st DCA 2005) (citing Binger v. King Pest Control, 401 So.2d 1310 (Fla.1981)).

Here, the JCC’s exclusion of testimony from properly disclosed witnesses, based on a per se application of his interpretation of the administrative rules, is not only antithetical to the analysis prescribed in Binger, but is also in direct conflict with the specific legislative intent of the Florida Workers’ Compensation Law. See § 440.015, Fla. Stat. (2006) (“It is the specific intent of the Legislature that workers’ compensation cases shall be decided on their merits.”).

The exclusion of evidence is a drastic remedy, which should occur only in the most compelling circumstances, and only after the JCC has made a case-specific determination as to whether the admission of the evidence would result in actual procedural prejudice to the objecting party. See Med. Logistics, Inc., 911 So.2d at 824. Here, the JCC quashed depositions set by Claimant, and denied all of Claimant’s attempts to present medical testimony without considering any discretionary factors such as prejudice. In doing so, the JCC abused his discretion.

The order of the JCC’s order is REVERSED and the case REMANDED with instructions that the claims be reheard after allowing the Claimant sufficient time to complete the depositions that were quashed.

VAN NORTWICK, PADOVANO, and CLARK, JJ., concur.


text:
    Lamont Clifford KING, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-0282.
    District Court of Appeal of Florida, First District.
    May 11, 2009.

      Lamont Clifford King, pro se, Petitioner.
    Bill McCollum, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Lamont Clifford King presents a timely claim of ineffective assistance of appellate counsel. We conclude based on the arguments of the parties and portions of the record before us at this point that petitioner’s counsel on direct appeal was ineffective for failing to raise two potentially meritorious issues identified by petitioner. The first concerns the trial court’s denial of petitioner’s motion for judgment of acquittal, in which defense counsel argued that the state had presented insufficient evidence to prove the element of burglary requiring that the defendant be shown to have “entered” a structure. The second relates to the trial court’s actions in precluding defense counsel from questioning a witness concerning discrepancies between her trial testimony and statements she made during 911 calls. We find no merit to petitioner’s other claims and deny the petition as to them without further discussion.

Accordingly, the petition is granted in part, and under the circumstances of this case, we conclude that the appropriate remedy is to order the commencement of a new appellate proceeding. See Marrero v. State, 967 So.2d 934 (Fla. 2d DCA 2007) (where a claim of ineffective assistance of appellate counsel is successful, the remedy is to award petitioner a new appeal in order that the appellate court may determine the merits of the issue(s) that should have been raised in the original appeal). Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal, who shall treat it as a timely notice of appeal of the judgment and sentence in Duval County Circuit Court case number 16-2006-CF-12374-AXXX. If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent him on appeal. The resulting new appellate proceeding shall be limited to the two issues described above.

BARFIELD, KAHN, and WEBSTER, JJ., concur.


author: WALLACE, Judge.

text:
    Lucas GOODWIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2422.
    District Court of Appeal of Florida, Second District.
    May 13, 2009.

      Lucas Goodwin, pro se.
   WALLACE, Judge.

Lucas Goodwin appeals the order that summarily denied his motion for postcon-vietion relief under Florida Rule of Criminal Procedure 3.850. We reverse the post-conviction court’s order as to the denial of claims two and seven of Mr. Goodwin’s motion. We affirm without comment the postconviction court’s denial of all other claims for relief.

On March 16, 2005, Mr. Goodwin was found guilty of burglary of a dwelling and grand theft. He was sentenced as a habitual felony offender to concurrent terms of twenty years in prison for the burglary and ten years for the grand theft.

In the first part of claim two, Mr. Goodwin alleged that his trial counsel rendered ineffective assistance at a hearing on a motion to suppress a pretrial confession and at the trial on the charges. In the portion of claim two addressing the motion to suppress, Mr. Goodwin alleged that his trial counsel was ineffective for failing to research the effects of heroin withdrawal on an addict. This allegation is concluso-ry, and we need not address it further.

As part of this portion of his second claim, Mr. Goodwin also asserted that his trial counsel failed to present the testimony of medical experts who had been subpoenaed and were waiting to testify. The postconviction court denied this part of claim two as facially insufficient, citing Leftwich v. State, 954 So.2d 714, 714 (Fla. 1st DCA 2007) (holding that in order to state a claim for ineffective assistance of counsel based on the failure to call a witness to testify, the claimant must allege (1) the identity of the potential witness, (2) that the witness was available to testify at trial, (3) the substance of the witness’s testimony, and (4) an explanation of how the omission of the testimony prejudiced the case).

Mr. Goodwin alleged that the potential witnesses were medical experts from the jail where he had been incarcerated. Although Mr. Goodwin asserted that the medical experts were waiting at court to testify at the hearing on the motion to suppress, he failed to explain the substance of their testimony or how its absence prejudiced his case. Thus the postconviction court correctly found that this portion of claim number two was facially insufficient. However, the postcon-viction court erred in denying the claim instead of dismissing it and allowing Mr. Goodwin a reasonable amount of time within which to amend his claim. See Spera v. State, 971 So.2d 754, 761 (Fla.2007).

In the second part of claim two, Mr. Goodwin alleged that his trial counsel was ineffective at trial for failing to interpose an appropriate objection to the introduction into evidence of firearms that the State claimed had been stolen during the burglary for which Mr, Goodwin was found guilty. According to Mr. Goodwin, the owner of the residence that had been burglarized never identified the firearms as his property. Mr. Goodwin also claimed that the serial numbers on the firearms introduced into evidence were not compared to the serial numbers on the weapons that the State alleged were stolen from the residence. Mr. Goodwin concluded that there was a reasonable likelihood that he would have been acquitted if his trial counsel had made the appropriate objections to the State’s evidence.

The postconviction court offered three reasons for denying the second part of Mr. Goodwin’s second claim. First, Mr. Goodwin was not prejudiced by trial counsel’s alleged omissions “because the judge determined that regardless of whether there had been a grand theft or petit theft (relating to the value of items stolen from [the victim]), the court would have sentenced [Mr. Goodwin] to the same sentence.” Second, “the jury determined that [Mr. Goodwin] did not actually possess a firearm during the burglary.” Third, Mr. Goodwin’s trial counsel actually did object to the introduction of the firearms into evidence.

The first two reasons offered by the postconviction court do not address the substance of Mr. Goodwin’s claim. Mr. Goodwin’s contentions do not relate to the degree of the crime or the sentences imposed after the verdict. Instead, Mr. Goodwin • claimed that but for trial counsel’s poor performance, he would have been acquitted. “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The fact that the trial court would have imposed the same sentence does not indicate that the jury would not have had a reasonable doubt respecting guilt.

Likewise, the postconviction court’s reliance on the jury’s finding that Mr. Goodwin did not actually possess a firearm is inapposite. Mr. Goodwin’s motion alleged that his conviction stems from a burglary where he acted as a lookout and his accomplice stole some jewelry and firearms. Although the jury found that Mr. Goodwin did not actually possess a firearm during the commission of the crime, this finding does not necessarily mean that the jury concluded that the accomplice did not steal the firearms. Thus the second reason offered by the postconviction court does not show that the jury would not have had a reasonable doubt respecting guilt.

On the other hand, the third reason — -that trial counsel had in fact made the appropriate objections — properly addressed the substance of the claim by finding that it was refuted by the record. Indeed, the postconviction court cited to portions of the trial transcript in support of its finding. Unfortunately, the postcon-viction court failed to attach to its order the portions of the trial transcript on which it relied. Therefore, we must reverse the postconviction court’s summary denial of the second part of Mr. Goodwin’s second claim. On remand, if the postcon-viction court once again denies this claim without an evidentiary hearing, it must attach the pertinent portions of the trial transcript to its order. See Fla. R.Crim. P. 3.850(d).

In claim seven of his motion, Mr. Goodwin claimed that his trial counsel failed to argue to the jury that Mr. Goodwin did not enter the home that was burglarized. He claimed further that trial counsel failed to argue to the jury that Mr. Goodwin’s fingerprints were not found on the weapons, that the stolen property was not found in his possession, and that he only acted as a lookout. Mr. Goodwin alleged that but for counsel’s asserted omissions, there was a reasonable likelihood that he would have been acquitted.

The postconviction court erroneously concluded that this claim should have been raised on direct appeal and was thus not cognizable in a rule 3.850 motion. Because claim seven is a claim of ineffective assistance of counsel, the postconviction court should have evaluated the claim on its merits. See Meeks v. State, 382 So.2d 673, 675 (Fla.1980) (noting that a claim of ineffective assistance of counsel is appropriately raised in a rule 3.850 motion). Therefore, we reverse the summary denial of claim seven and remand for the postcon-viction court to reconsider the claim.

In summary, we reverse the postconviction court’s order to the extent that it summarily denied claims two and seven of Mr. Goodwin’s motion, and we remand for further proceedings consistent with this opinion. In all other respects, we affirm the postconviction court’s order.

Affirmed in part, reversed in part, and remanded.

WHATLEY and KELLY, JJ„ Concur.

      . Mr. Goodwin erroneously labeled this claim as "Ground Six” in his motion. As the post-conviction court correctly noted in its order, this claim is the seventh claim asserted in the motion, not the sixth.


text:
    Jane McGILL, Appellant, v. A & D INSTALLATIONS OF WELLINGTON, INC. and FCCI, Appellees.
    No. 1D08-0814.
    District Court of Appeal of Florida, First District.
    May 13, 2009.
    Rehearing Denied May 13, 2009.

      Jane McGill, West Palm Beach, and Bill McCabe, Longwood, for Appellant.
    John Edward Lewis Evans, Sarasota, and Rafael Gonzalez, Sarasota, for Appel-lees.
   ON MOTION FOR CERTIFICATION

PER CURIAM.

Appellant’s motion for certification is DENIED. The Judge of Compensation Claims is AFFIRMED. See Demedrano v. Labor Finders of the Treasure Coast & Amisure Ins., 8 So.3d 498 (Fla. 1st DCA 2009).

KAHN, BENTON, and BROWNING, JJ., concur.


text:
    Dennis METZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-701.
    District Court of Appeal of Florida, Second District.
    May 15, 2009.
    James Marion Moorman, Public Defender, and Siobhan Helene Shea, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.
   DAKAN, STEPHEN L., Associate Senior Judge.

Dennis Metz challenges his judgment and sentence for aggravated battery. Because the trial court erred by reclassifying the offense from a second-degree felony to a first-degree felony, pursuant to section 775.087(l)(b), Florida Statutes (2006), we reverse and remand for the trial court to resentence Metz for a second-degree felony.

“Section 775.087(1) requires that a second-degree felony be reclassified to a first-degree felony when a weapon or firearm is used to commit the felony, except a felony in which the use of a weapon or firearm is an essential element.” Webb v. State, 997 So.2d 469, 471 (Fla. 2d DCA 2008). While aggravated battery based on the infliction of great bodily harm would be subject to reclassification under this section, the deadly-weapon type of aggravated battery is ■ not, because use of a weapon is an essential element. Id.

Here, the jury was instructed that it could find Metz guilty of aggravated battery either by finding great bodily harm or use of a deadly weapon. The verdict form provided, as a choice of a lesser included offense

_GUILTY OF AGGRAVATED BATTERY, a lesser included offense, and we further find that during the commission of said felony the defendant: (Check only one if found guilty of aggravated battery)
_Did use or threaten to use or attempt to use a weapon.
_Did not use or threaten to use or attempt to use a weapon.

Thus, the jury was left only with the option of finding that he committed aggravated battery either by using or threatening or attempting to use a deadly weapon or by not using or threatening .or attempting to use a deadly weapon. The jury was not provided with the express option of finding Metz guilty based solely on great bodily injury.

We recognize that because the jury was provided with the option of finding Metz guilty of aggravated battery even where Metz did not use or threaten to use or attempt to use a weapon, there is an implication that the jury in this case did have the option of selecting bodily-injury aggravated battery without the use of a weapon. Cf. Webb, 997 So.2d at 470-71 (noting that where verdict form reflected two forms of aggravated battery, but both involved the use of a firearm, the jury was not given the option of choosing the bodily-injury type of aggravated batteiy without the use of a firearm). And the jury’s finding that Metz did use or threaten to use or attempt to use a weapon could be construed as a separate enhancement decision by the jury. Yet, based on the verdict form itself,, which nowhere expressly specified that there were two types of aggravated battery, we cannot rule out the possibility that the jury was basing its verdict on the deadly-weapon type of aggravated battery for which reclassification is improper. See Webb, 997 So.2d at 471; see also Crawford v. State, 858 So.2d 1131, 1132 (Fla. 2d DCA 2003). Accordingly, we reverse and remand for resentencing.

Reversed and remanded.

WHATLEY and KHOUZAM, JJ„ Concur.

      . Metz was originally charged with attempted second-degree murder.


author: CLARK, J.

text:
    Patrick DAVISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-332.
    District Court of Appeal of Florida, First District.
    May 19, 2009.
    H.E. Ellis, Jr., of Staples, Ellis & Associates, Pensacola, for Appellant.
    Bill McCollum, Attorney General, Trisha Meggs Pate, Assistant Attorney General, and Philip W. Edwards, Office of the Attorney General, Tallahassee, for Appellee.
   CLARK, J.

Patrick Davison appeals the denial of his motion to suppress the evidence he admitted was in his car after a traffic stop. We affirm.

The appellant was stopped on the night of January 15, 2007, when police officers observed that his rear registration license plate tag light was not illuminating the license plate. Davison argues that the traffic stop was unconstitutional on several grounds, only one of which merits discussion. He contends that because the officer was mistaken in his belief that section 316.221(2), Florida Statutes (2007), required the tag to be legible from a distance of 100 feet, no traffic violation occurred, thus the officer did not have a valid basis for a traffic stop.

“An automobile stop is ... subject to the constitutional imperative that it not be ‘unreasonable’ under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); Langello v. State, 970 So.2d 491 (Fla. 2d DCA 2007). The appellant relies on Lan-gello in support of his contention that so long as the rear registration tag was clearly legible from 50 feet, as section 316.221, Florida Statutes (2007), requires, the officer did not have probable cause to initiate a traffic stop because the appellant was not violating the statute. Notably, the trial court found among conflicting testimony that Davison’s tag was not illuminated so as to be legible from 50 feet. The trial court’s factual findings were supported by competent, substantial evidence and thus must not be disturbed on appeal. Butler v. State, 706 So.2d 100 (Fla. 1st DCA 1998).

In any event, the present case is distinguishable from Langello. In that case, police officers stopped the defendant’s vehicle because only one of the two tag lights was operational and the officers erroneously believed that having one light out was a violation of section 316.221(2), Florida Statutes. The trial court found that “the officer’s belief that there was an equipment violation because only one tag light was working was a mistake of law which did not establish probable cause to stop Langello’s car.”

Here, Davison was stopped by police on that night because Davison’s tag light was not illuminated “at all.” Section 316.221(2), Florida Statutes, requires that “either a taillamp or separate lamp shall be ... placed as to illuminate with a white light the rear registration plate and render it clearly legible from a distance of 50 feet to the rear.” Failure to have any rear tag light visible at all constitutes a traffic violation. Contrary to the appellant’s assertion, the officers did not rely on the distance from which Davison’s license plate was legible, but upon the absence of any illumination of the tag as a basis for the traffic stop. A police officer may conduct a traffic stop for a violation of the tag light requirement. § 316.610, Fla. Stat. (2007). Even though the officer mistakenly believed that section 316.221(2), Florida Statutes (2007), required Davison’s tag to be clearly legible from 100 feet, the officer nonetheless had probable cause to initiate the traffic stop because the tag was not illuminated at all. Thus, although the officer was mistaken about one aspect of the statutory lighting requirement, the facts established that there was a violation of the traffic law.

Because the police did have probable cause to believe that Davison had committed a traffic violation, the stop was lawful and the trial court properly denied Davi-son’s motion to suppress.

AFFIRMED.

KAHN and DAVIS, JJ., concur.


text:
    James PADGETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5870.
    District Court of Appeal of Florida, First District.
    May 19, 2009.

      James Padgett, pro se, for Appellant.
    Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals the summary denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. For the reasons discussed below, we reverse and remand.

After being convicted of aggravated battery, Appellant filed the instant motion requesting DNA testing on a knife allegedly held by the victim. Appellant asserts that DNA testing will reveal his blood on the knife, supporting his claim that he acted in self-defense.

The trial court denied the motion because “there has not been any evidence presented to indicate that there is a sufficient biological sample.on the knife to conduct any forensic testing, specifically DNA testing.” However, whether a DNA sample can be recovered from the knife is a question of fact which can only be determined after an evidentiary hearing. Cf. Carter v. State, 913 So.2d 701, 702 (Fla. 3d DCA 2005) (“Where a defendant claims that DNA evidence exists, but the state denies the claim, a factual dispute results and an evidentiary hearing is required.”).

Additionally, the trial court held that that there is not a reasonable probability that Appellant would have been acquitted or would have received a lesser sentence if the DNA had been admitted at trial, noting that five witnesses testified that Appellant initiated the assault; however, the trial court failed to attach any portions of the record reflecting the testimony of the five witnesses. The record before this court provides no basis for a determination that DNA testing will not produce exculpatory evidence. See Jordan v. State, 950 So.2d 442, 443 (Fla. 3d DCA 2007) (“A trial court’s summary denial of a Rule 3.853 motion for DNA testing must be reversed, however, unless the post-conviction record conclusively demonstrates that the defendant is not entitled to relief.”); Schofield v. State, 861 So.2d 1244 (Fla. 2d DCA 2008) (holding that the trial court erred in denying a facially sufficient rule 3.853 motion without holding an evi-dentiai'y hearing or attaching portions of the trial transcript indicating that the defendant would not be exonerated). Accordingly, we reverse and remand for the trial court to attach those portions of the record conclusively demonstrating that a DNA test will not exonerate Appellant or to hold an evidentiary hearing.

REVERSED AND REMANDED.

DAVIS, BROWNING, and THOMAS, JJ., concur.


author: NORTHCUTT, Chief Judge.

text:
    Joel GONZALEZ, an incompetent person, Petitioner, v. STATE of Florida, Respondent.
    No. 2D08-5322.
    District Court of Appeal of Florida, Second District.
    May 20, 2009.

      James Marion Moorman, Public Defender, and Robert A. Young, General Counsel, Bartow, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Chief Judge.

Joel Gonzalez seeks review of an order declining to dismiss a pending criminal charge even though it is undisputed that Gonzalez is incompetent to stand trial due to his mental retardation and there is no reasonable likelihood he can be restored to competency. We grant Gonzalez’s petition for a writ of certiorari and quash the order.

In fall 2006, Gonzalez was arrested and charged with the felony offense of lewd molestation. On June 19, 2007, Gonzalez was adjudicated incompetent to stand trial due to his mental retardation, and he was involuntarily committed pursuant to section 916.302, Florida Statutes (2007). In February 2008, on defense counsel’s motion, the circuit court vacated the commitment order and placed Gonzalez on conditional release pursuant to section 916.304. In the conditional release order, the court found that there was no reasonable expectation that Gonzalez would be restored to competency. But the order also included an inconsistent “conclusion of law” that Gonzalez was “in need of outpatient treatment to restore competency to proceed.” In September 2008, defense counsel filed a motion to dismiss the criminal charge under section 916.303(1). After a hearing, the court denied the motion to dismiss. Gonzalez seeks review of this order, arguing that immediate dismissal is required under the statute.

Gonzalez’s petition in this court seeks either habeas corpus or certiorari relief. The supreme court has held that an order denying a motion to dismiss criminal charges against an incompetent defendant may be reviewed by common law certiora-ri. See Vasquez v. State, 496 So.2d 818 (Fla.1986) (providing that criminal defendant, adjudicated incompetent to stand trial, could seek certiorari review of order denying motion to dismiss filed under Fla. R.Crim. P. 3.213); see also Hines v. State, 931 So.2d 148 (Fla. 1st DCA 2006) (granting certiorari review of order denying incompetent defendant’s motion to dismiss filed under § 916.303, Fla. Stat.).

To obtain common law certiorari relief, a petitioner must show that there has been a departure from the essential requirements of law that causes material and irreparable harm. Reynolds v. State, 963 So.2d 908, 909 (Fla. 2d DCA 2007). The elements of material harm and the absence of a remedy on appeal are jurisdictional requirements for certiorari relief. Id. at 910. We conclude that Gonzalez has carried his burden as to these elements. See Vasquez, 496 So.2d at 820 (concluding that incompetent criminal defendant was entitled to common law certiorari review due to absence of appellate review and necessity to preserve constitutional due process rights).

Having determined that Gonzalez has met the jurisdictional requirements for certiorari review, we must address whether he has demonstrated his entitlement to relief. A departure from the essential requirements of law, alternatively referred to as a violation of clearly established law, can be shown by a misapplication of the plain language in a statute. See Allstate Ins. Co. v. Kalclamanos, 843 So.2d 885 (Fla.2003); Justice Admin. Comm’n v. Peterson, 989 So.2d 663 (Fla. 2d DCA 2008). Thus we turn to the requirements of chapter 916, Florida Statutes, and to Gonzalez’s claim that the circuit court’s failure to dismiss the charge is a violation of the plain language of section 916.303(1).

Chapter 916 applies to criminal defendants who are either mentally ill or mentally deficient. Part I contains general provisions, part II governs forensic services for persons who are mentally ill, and part III governs forensic services for persons who are mentally retarded or autistic. Gonzalez falls under the provisions in part III.

The legislature has provided a substantive right to dismissal of criminal charges for “any defendant found to be incompetent to proceed due to retardation or autism ... if the defendant remains incompetent to proceed within a reasonable time after such determination, not to exceed 2 years.” § 916.303(1); see also Hines, 931 So.2d 148. The only exception to dismissal under this statute requires the court to specify “its reasons for believing that the defendant will become competent to proceed” within a specified time in the foreseeable future. § 916.303(1). In this case, the experts and the parties agree that there is no reasonable probability Gonzalez will ever become competent to proceed.

Nevertheless, based on an opinion by one of the experts, the State contends that Gonzalez would benefit from counseling and training on sexual abuse issues. The circuit court agreed to maintain Gonzalez on conditional release and ordered him to complete this training. On appeal as it did below, the State argues that Gonzalez’s right to dismissal does not arise until the two-year period referenced in section 916.303(1) has expired. In accepting this argument, the circuit court misapplied the plain language of that statute.

The statute establishes a period of two years as the outer limit for jurisdiction over a mentally retarded defendant, but the preceding language cannot be ignored-a defendant is entitled to a dismissal of a criminal charge “within a reasonable time ..., not to exceed two years.” § 916.303(1) (emphasis supplied). “In addition to the statute’s plain language, a basic rule of statutory construction provides that the Legislature does not intend to enact useless provisions, and courts should avoid reading's that would render part of a statute meaningless.” State v. Goode, 830 So.2d 817, 824 (Fla.2002).

To determine whether “a reasonable time” has passed, when it has been less than two years, the criminal court must consider the single purpose warranting a pretrial exercise of jurisdiction over an incompetent defendant, to wit: restoring competency for trial. See Vasquez, 496 So.2d at 820 (stating that pretrial confinement and treatment of incompetent criminal defendant is directed solely to restoration of competency); cf. Jackson v. Indiana, 406 U.S. 715, 733, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972) (describing “rule of reasonableness” applied by federal courts to pretrial commitment of incompetent defendants, which allows commitment “only for a ‘reasonable period of time’ necessary to determine whether there is a substantial chance of his attaining the capacity to stand trial in the foreseeable future”). Thus, a reasonable time has passed, and the defendant’s substantive right to dismissal of the criminal charge arises, when it becomes evident that the defendant cannot be restored to competency.

By comparison, section 916.145, applicable to mentally ill defendants, provides a similar right to dismissal of criminal charges after a specific period, i.e., “if the defendant remains incompetent to proceed 5 years after such determination” unless the court can cite a reason to believe the defendant will regain competency. See Mosher v. State, 876 So.2d 1230 (Fla. 1st DCA 2004) (holding that, because the five-year period had not passed, circuit court did not err in refusing to dismiss criminal charges against mentally ill defendant). One court has explained the differences between the statutory treatment of mentally ill versus mentally retarded individuals by noting that “mental retardation and autism are typically lifelong conditions, whereas mental illness may be a condition more amenable to treatment.” State v. Smith, 982 So.2d 756, 758 (Fla. 4th DCA 2008) (citing similar distinction noted in supreme court’s amendment of criminal rules to be consistent with these statutes).

Numerous cases hold that an incompetent criminal defendant must be released from commitment when the undisputed evidence shows that the defendant’s competency cannot be restored. “It is a defendant’s Testorability’ that allows commitment for competency training. The inability to restore the defendant requires dismissal of the charges against him or civil commitment.” Roddenberry v. State, 898 So.2d 1070, 1073 (Fla. 5th DCA 2005) (reversing mentally retarded defendant’s pretrial commitment under § 916.302(1) when court failed to make critical finding that competency could be restored); Mosher, 876 So.2d 1230 (requiring State to institute civil commitment proceedings or release mentally ill defendant when evidence showed no substantial probability that mentally ill defendant will regain competency).

In this context, we see no appreciable distinction between commitment and conditional release, because the underlying purpose is the same. The statute governing dismissal of criminal charges is not limited to defendants who are committed under section 916.302, and it does not exclude defendants who are “only” on conditional release under section 916.304. See § 916.303.

When, as here, it is determined that the defendant can never be restored to competency, the criminal process must end and the State must pursue other options if necessary to secure the safety of the defendant or others. See, e.g., § 916.303(2) (providing for post-dismissal determinations of whether involuntary services are necessary); § 393.11, Fla. Stat. (2008) (providing for mentally retarded person’s involuntary admission to residential services); see also Hines, 931 So.2d at 151 (“When charges are dismissed against a mentally retarded defendant ..., the State or the defendant’s attorney may seek to involuntarily commit the defendant under certain conditions.”).

Quashed and remanded.

KELLY and CRENSHAW, JJ., Concur.


text:
    Robenson KERSAINT, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D09-543.
    District Court of Appeal of Florida, Third District.
    May 20, 2009.
    Rasco, Klock, Reininger, Perez, Esquen-azi, Vigil & Nieto and Joseph P. Klock, Jr., Coral Gables, for petitioner.
    Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for respondent.
    Before COPE, SHEPHERD, and SUAREZ, JJ.
   COPE, J.

Because the trial judge should have disqualified himself, we grant the petition for writ of prohibition.

Defendant-petitioner, Robenson Ker-saint, was charged with drug trafficking. The jury found the defendant guilty of the lesser included charge of possession of cocaine with intent to distribute.

For present purposes, we accept as true the facts stated in the sworn motion to disqualify. After the trial, the court ordered a presentence investigation (PSI) and then asked the State how the defendant scored for sentencing purposes. The State responded that defendant scored non-state prison sanction, meaning that defendant could be sentenced to less than 365 days in jail, or another non-state prison sanction. See § 921.0024(2), Fla. Stat. (2006).

The trial judge was told that defendant had been incarcerated for over two years, which exceeded the guidelines minimum. According to the motion, the judge stated that he would not consider a sentence to time served, wanted the defendant to have a prison number, was not inclined to go as high as 15 years, but was talking in the range of four years or more. Based on this exchange, the defendant moved to disqualify the trial judge. The motion was denied and the defendant has filed this petition for writ of prohibition.

We conclude that the motion for disqualification was legally sufficient and should have been granted. In this case, a PSI had been ordered and the sentencing hearing was not to occur until after the PSI had been obtained. The judge made statements indicating that he had predetermined the sentence, even though the sentencing hearing had yet to be held. The Florida Supreme Court has said:

The facts alleged in the motion need only show that “the party making it has a well grounded fear that he will not receive a fair trial at the hands of the judge. If the attested facts supporting the suggestion are reasonably sufficient to create such a fear, it is not for the trial judge to say that it is not there.” Further, “it is a question of what feeling resides in the affiant’s mind and the basis for such feeling.”

Livingston v. State, 441 So.2d 1083, 1087 (Fla.1983) (citations omitted).

The trial judge’s statement in this case would create a fear in the mind of a litigant that the trial judge had prejudged the sentence to be imposed. Florida’s courts have held that disqualification is required where a judge “has made statements indicating that he or she has predetermined the appropriate sentence....” Konior v. State, 884 So.2d 334, 335 (Fla. 2d DCA 2004); see also Thompson v. State, 990 So.2d 482 (Fla.2008); Dorch v. State, 952 So.2d 1244, 1245 (Fla. 3d DCA 2007); State v. Ballard, 956 So.2d 470 (Fla. 2d DCA 2007); Gonzalez v. Goldstein, 633 So.2d 1183, 1184 (Fla. 4th DCA 1994).

We conclude that, as argued by the petitioner, the trial judge is disqualified from presiding over the sentencing phase of this case. We are confident that in view of this opinion, the trial judge will withdraw and it will not be necessary to formally issue the writ.

Petition granted.


author: DAMOORGIAN, J.

text:
    SCHOOL DISTRICT OF MARTIN COUNTY, Florida, Appellant, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and Martin County Education Association, Appellees.
    No. 4D08-1964.
    District Court of Appeal of Florida, Fourth District.
    May 20, 2009.

      Douglas G. Griffin and Helene York Baxter, Stuart, for appellant.
    Anthony D. Demma of Meyer and Brooks, P.A., Tallahassee, for appellee Martin County Education Association.
   DAMOORGIAN, J.

The School District of Martin County (the School District) timely appeals an order rendered by the Public Employees Relations Commission (the Commission). We reverse, holding that the Commission’s decision that changes in the manner of distribution of the Florida Teacher Lead Program (FTLP) funds affects the teachers’ terns and conditions of employment was not a reasonable construction of section 447.501(a) and (c), Florida Statutes (2007). Because of our holding, we need not address the School District’s other arguments.

On October 3, 2007, the Martin County Education Association (the Teachers) filed an unfair labor practice charge alleging that the School District violated section 447.501(a) and (c), Florida Statutes (2007), by failing to bargain its decision to distribute FTLP funds to teachers through Visa debit cards, in lieu of distribution through traditional check. This case arises from that charge.

The purpose and manner of distribution for the FTLP funds is principally governed by section 1012.71, Florida Statutes. Pursuant to both the current statute, as well as the version in effect prior to recent amendments, each year the Legislature appropriates FTLP funds “for classroom teachers to purchase, on behalf of the school district or charter school, classroom materials and supplies for the public students assigned to them and may not be used to purchase equipment.” Each school district receives a proportionate share of the amount appropriated based on total unweighted full-time equivalent (“FTE”) student enrollment. The district school board must then calculate an identical amount for each of its classroom teachers which must be distributed to the teachers by no later than September 30th of the year. The teachers are required to keep receipts of the money they expended and return any unused money to their schools.

Beginning with the 2001-2002 school year, the School District distributed the FTLP funds to each teacher by issuing a check for the pertinent amount. The check identified the School District as the payor and each year the amount of the stipend could change. The teachers could cash the stipend check or deposit it in their personal bank account and then purchase supplies. It was a common practice for teachers to purchase some supplies prior to receiving the stipend check when the stores had good sales and so that they could be prepared for the start of the school year.

However, for the 2007-2008 school year, the School District changed the manner in which it distributed the funds and distributed them via pre-paid debit cards to the teachers in September, 2007. Because the debit cards could not be converted to cash, employees could not use them to reimburse themselves for purchases made prior to the start of the school year. To make online purchases, an employee must register with Bank of America, providing their name, address, telephone number, driver’s license number, and social security number.

The Teachers, thereafter, filed the underlying charge as a result of this change in the method of payment. On December 5, 2007, a telephonic public hearing was held. All parties were afforded the opportunity to appear, present evidence, cross-examine witnesses, and participate fully in the hearing. The hearing officer issued his recommended order on January 30, 2008, finding that the change in method of distributing FTLP funds affected the Teachers’ terms and conditions of employment.

Both parties filed exceptions with the Commission. After considering the exceptions, the Commission entered its final order dated April 29, 2008, in which it held, “we agree with the hearing officer’s conclusion, albeit for different reasons, that the School District’s conduct in unilaterally changing the method by which it distributed the stipend was unlawful.”

The School District timely filed its notice of appeal. Subsequent to the filing of the notice of appeal in this case, the controlling statute, section 1012.71, Florida Statutes, was amended by chapter 2008-235, section. 28, Laws of Florida. The Session Law amended section 1012.71(3), Florida Statutes (2008), to read, in part, as follows:

The district school board and each charter school board shall provide each classroom teacher with his or her total proportionate share [of FTLP funds] by September 30 of each year by any means determined appropriate by the district school board or charter school board, including, but not limited to, direct deposit, check, debit card, or purchasing card, notwithstanding any law to the contrary
[FTLP] Funds received by a classroom teacher do not affect loages, hours, or terms and conditions of employment and, therefore, are not subject to collective bargaining.

(emphasis added). The legislature made the amendment retroactive to July 1, 2007.

The applicable standard of review of orders issued by an administrative agency was set forth in Big Bend Hospice, Inc. v. Agency for Health Care Admin., 904 So.2d 610, 611 (Fla. 1st DCA 2005).

[A] review of an order of an administrative agency begins “with the usual recognition of deference to an agency’s interpretation of a statute it is charged to administer.” However, a reviewing court can overturn the agency’s interpretation of a statute if the interpretation is clearly erroneous. In addition to this rule of deference, our review is governed by section 120.68, Florida Statutes (2001), which provides that a reviewing court may set aside agency action when it finds that the action is dependent on any finding of fact that is not supported by substantial competent evidence in the record, on a material error in procedure, on an incorrect interpretation of law, or otherwise constitutes an abuse of discretion.

Thus, the central issue in this case is whether the Commission’s decision that the School District was required to collectively bargain the decision to switch the method of distributing FTLP funds from checks to debit cards was clearly erroneous. To answer this question, we must first determine whether the method of distributing debit cards is a mandatory subject of bargaining.

The Florida Constitution, article 1, section 6, provides that employees have the right, “by and through a labor organization, to bargain collectively ” and that such right “shall not be denied or abridged.” Although there is no precise definition of what must be submitted to collective bargaining, section 447.309(1), Florida Statutes (2007), provides that “the bargaining agent for the organization and the chief executive officer of the appropriate public employer or employers, jointly, shall bargain collectively in the determination of the tuages, hours, and, terms and conditions of employment of the public employees within the bargaining unit.” (emphasis added). Several cases have interpreted chapter 447 to require a public employer to bargain those cases “affecting, or impacting upon, employment or a condition of employment.” Fraternal Order of Police, Miami Lodge 20 v. City of Miami, 609 So.2d 31, 33 (Fla.1992) (citing Bd. of County Comm’rs v. Cent. Fla. Firefighters Ass’n, 467 So.2d 1023, 1026 (Fla. 5th DCA 1985)). If a case does not fall within that statutory definition or is a permissive subject because it is a managerial prerogative, then a public employer may act unilaterally. Id.

The School District argues that the change to the method of distributing the FTLP funds was a managerial prerogative that need not be submitted to collective bargaining. The Teachers respond that the Commission’s decision that the change affected the terms and conditions of their employment was a reasonable interpretation of the statute and thus, not clearly erroneous.

The Commission’s construction of the statute in this case was clearly erroneous because the 2008 statutory amendments unequivocally expressed that the method of distribution does not affect a term or condition of employment. While the Florida Constitution provides that an employer may not abridge an employee’s right to collectively bargain, it has left it up to the legislature to define what subjects are matters of collective bargaining. In exercising this right, the legislature defined mandatory subjects of collective bargaining as those that affect a term or condition of employment. § 1012.71, Fla. Stat. (2007). With the 2008 statutory amendments, the legislature further expressed that the method of distributing FTLP funds did not affect a term or condition of employment and thus, was not a mandatory subject of collective bargaining. § 1012.71(3), Fla. Stat. (2008). This clear expression of legislative intent demonstrates that the Commission’s decision to the contrary is clearly erroneous. See D & T Props., Inc. v. Marina Grande Assocs., Ltd., 985 So.2d 43, 47 (Fla. 4th DCA 2008) (citing Finley v. Scott, 707 So.2d 1112, 1116 (Fla.1998)) (“Where the legislature expressly characterizes the intent of legislation, it is especially appropriate to consider the amended statute to detennine the original legislative intent of the statute.”); see also Lowry v. Parole & Probation Comm’n, 473 So.2d 1248, 1250 (Fla.1985) (stating that where “an amendment to a statute is enacted soon after controversies as to the interpretation of the original act arise, a court may consider that amendment as a legislative interpretation of the original law”). After all, the legislature, as the body that created the statute, was in the best position to interpret what it meant by that statute. Accordingly, we reverse and vacate the Commission’s decision.

Reversed.

WARNER and STEVENSON, JJ., concur.