author: KLINGENSMITH, J.

text:
    Paola A. ALVARADO-FERNANDEZ, Appellant, v. Matthew MAZOFF, Appellee.
    No. 4D14-503.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2014.

      Doreen E. Lasch and Daniel J. Santan-iello of Luks, Santaniello, Petrillo & Jones, P.A., Fort Lauderdale, for appellant.
    Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, LLP, West Palm Beach, and Andrew J. Weinstein of Weinstein Law Firm, Coral Springs, for appellee.
   KLINGENSMITH, J.

Appellee Matthew Mazoff (“Plaintiff’) filed suit against appellant Paola Alvarado-Fernandez (“Defendant”), a Colombian citizen, for personal injuries sustained when Plaintiffs car was struck by a vehicle driven by Defendant and rented from Alamo. Defendant moved to dismiss the case, alleging that (1) Plaintiff failed to strictly comply with two treaties in effect between Colombia and the United States when attempting to serve process on Defendant; (2) in the alternative, Plaintiff failed to comply with the substituted service statutes; (3) Plaintiff late-filed his affidavit of compliance; and (4) Florida Rule of Civil Procedure 1.070(j) bars the continuance of this case. For the reasons set forth herein, we affirm the trial court’s denial of Defendant’s motion to dismiss.

Facts

Plaintiff initially filed an affidavit of compliance shortly after commencing suit in which he stated that the Secretary of State accepted service of process on behalf of Defendant, and that he attempted to serve a copy of the summons and complaint upon Defendant via “USPS First Class Mail International” to her last known address. That mailing never reached Defendant. After this original attempt at service, Plaintiff amended his complaint and tried again to serve Defendant, but was also unsuccessful. After filing a second amended complaint, another unsuccessful attempt at service was made. Plaintiff filed his latest pleading, a Third Amended Complaint, in July 2012. Since that time, Plaintiff secured eight extensions of time from the court to attempt successful service of process.

Plaintiff ultimately effected substitute service of the Third Amended Complaint on Defendant by serving the Secretary of State in accordance with the provisions of section 48.161, Florida Statutes (2013). Plaintiff also mailed a copy of the summons and complaint to Defendant via registered mail to her last known address, which went unclaimed.

Defendant moved for dismissal of the case pursuant to Florida Rule of Civil Procedure 1.070®, alleging insufficient service of process and lack of personal jurisdiction on various grounds. In the motion, Defendant asserted that Plaintiff failed to comply with two treaties to which both the United States and Colombia are signatories, the Inter-American Service Convention on Letters Rogatory and Additional Protocol (the “IASC”) and the Hague Service Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Convention”) both of which mandate strict procedures for obtaining service of process over individuals in Colombia.

After allowing Plaintiffs counsel the opportunity to submit case law for the court’s review following the hearing, the trial court ultimately denied Defendant’s motion to dismiss but made no findings of fact in its order.

Treaties generally

The effect that international legal agreements entered into by the United States have upon domestic law are dependent upon the nature of the agreement; namely, whether the agreement is self-executing or non-self-executing.

International treaties are considered “self-executing” if they have the force of law without the need for subsequent legislative action. See, e.g., Medellin v. Texas, 552 U.S. 491, 575 n. 2, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008) (“What we mean by ‘self-executing is that the treaty has automatic domestic effect as federal law upon ratification.”); Cook v. United States, 288 U.S. 102, 119, 53 S.Ct. 305, 77 L.Ed. 641 (1933) (“For in a strict sense the [tjreaty was self-executing, in that no legislation was necessary to authorize executive action pursuant to its provisions.”).

Treaties that are not considered self-executing are understood to require implementing legislation to provide legal authority to carry out the functions and obligations contemplated by the agreement, or to make them enforceable in court by private parties. See, e.g., Medellin, 552 U.S. at 505, 128 S.Ct. 1346 (“In sum, while treaties may comprise international commitments ... they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.”) (internal citations and quotations omitted). In fact, some courts have held that as a general rule non-self-executing treaties do not confer any judicially enforceable rights whatsoever.

The Hague Convention

The Hague Convention became effective in the United States on February 10,1969. The intention of the signatory nations to the Hague Convention was to provide a simpler way for parties to serve process abroad.

As a ratified treaty, the Hague Convention is of equal dignity with acts of Congress and enjoys the constitutional status of “supreme Law of the Land.” U.S. Const. art. VI, cl. 2; Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 373 (7th Cir.1985). The Convention states that it “shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” Hague Convention, art. 1 (emphasis added). Therefore, the United States Supreme Court has held the Hague Convention is a self-executing treaty, and thus preempts inconsistent methods of service prescribed by state law in all eases to which it applies; namely, all civil or commercial matters “where there is occasion to transmit a judicial or extrajudicial document for service abroad.” See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698-99, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988).

To help simplify the process, the Hague Convention provides several methods to accomplish service, and the principal method for service under the Hague Convention is through the designated Central Authority. Hague Convention arts. 2-6, 8-11, 19. However, the Hague Convention is expressly inapplicable in cases where the location of the person to be served is unknown.

Colombia was not a party to the Hague Convention during the time in question. Although Colombia acceded to the Hague Convention and became a signatory to it on April 10, 2013, it did not enter into force until November 1, 2013, following the events of this case.

The IASC

The IASC was signed on January 30, 1975, and amended by the Additional Protocol thereto on May 8, 1979. Both the United States and Colombia are signatories to the Convention.

The IASC sets forth procedures for obtaining service of process over individuals in the signatory nations, stating that:

This Convention shall apply to letters rogatory, issued in conjunction with proceedings in civil and commercial matters held before the appropriate judicial or other adjudicatory authority of one of the States Parties to this Convention, that have as their purpose:
a. The performance of procedural acts of a merely formal nature, such as service of process, summonses or subpoenas abroad;

Section II, article 2, at 1. The IASC provides that each party state designate a Central Authority to perform the functions assigned to it in the treaty, similar to the provision contained in the Hague Convention. Id. at 16. The IASC further provides that “[ljetters rogatory shall be executed in accordance with the laws and procedural rules of the State of destination.”

Application of the IASC to Florida courts

Florida courts may accept any particular method of service, so long as it does not contradict any self-executing international agreement or implementing statutes, or as long as such method is not expressly prohibited by the law of the foreign state. See TracFone Wireless, Inc. v. Distelec Distribuciones Electrónicas, S.A. de DV, 268 F.R.D. 687, 690-91 (S.D.Fla.2010) (holding that alternative methods for service in Honduras were available because such methods were not expressly prohibited by the foreign state’s law, even if not expressly authorized under it); Prewitt Enters., Inc. v. Org. of Petroleum Exporting Countries, 353 F.3d 916, 923-24 (11th Cir.2003) (service of process on defendant improper if served in a manner expressly prohibited by foreign state’s law).

While compliance with the provisions of the Hague Convention may be mandatory, parties are not required to use all of the alternatives set forth in the IASC to the exclusion of any others. Several U.S. courts have held that the IASC is neither the exclusive nor mandatory channel for transmission of service of process between signatories. See Paiz v. Castellanos, No. 06-Civ-22046, 2006 WL 2578807, at *1 (S.D.Fla. Aug. 28, 2006) (collecting cases applying the IASC). As such, the IASC does not foreclose service by means outside the scope of its terms. Thus it is permissible to serve a defendant utilizing methods other than strict compliance with the IASC. Kreimerman v. Casa Veerkamp, S.A., 22 F.3d 634, 647 (5th Cir.1994) (noting that nothing in the language of the IASC expressly reflects an intention to supplant all alternative methods of service; “We simply hold that the Inter-American Convention on Letters Rogatory does not foreclose other methods of service among parties residing in different signatory nations, if otherwise proper and efficacious.”), cert. denied, 513 U.S. 1016, 115 S.Ct. 577, 130 L.Ed.2d 492 (1994); Jon D. Derrevere, P.A. v. Mirabella Found., No. 6:10-ev-925-Orl-28DAB, 2011 WL 1983352, at *2 (M.D.Fla. Apr. 26, 2011) (“Other courts have found that the Inter-American Convention’s provisions regarding service of process are neither mandatory nor exclusive.”); Paiz, 2006 WL 2578807, at *1 (“As have other courts which have considered the issue, this Court finds that the Inter-American Convention’s provisions regarding service of process are neither mandatory nor exclusive.” (citing cases)); Hein v. Cuprum, S.A. de CV, 136 F.Supp.2d 63, 70 (N.D.N.Y.2001) (“The Inter-American Convention on Letters Rogatory is not the exclusive means to serve process on defendant....”); Pizzabiocche v. Vinelli, 772 F.Supp. 1245, 1249 (M.D.Fla.1991) (noting that the Inter-American Convention “states that it shall apply to letters rogato-ry ... [but] it does not state that letters rogatory are the only means of serving process in the signatory countries”); Mayatextil, S.A. v. Liztex U.S.A., Inc., No. 92 CIV. 4528(SS), 1994 WL 198696, at *5 (S.D.N.Y. May 19, 1994) (Sotomayor, D.J.) (“The [IASC] Convention merely provides one possible method of service, however. It is neither mandatory nor exclusive.”; service of process that did not comply with Inter-American Convention was not a basis for repudiating alternative method of service authorized by court order); In re Romero v. Ramirez, 100 A.D.3d 909, 910, 955 N.Y.S.2d 353, 354 (N.Y.App.Div.2012) (“ ‘[T]he Inter-American Convention permits alternate methods of service and ... its procedures are not the exclusive means of service of process on defendants residing in a signatory nation.’ ”); Laino v. Cuprum S.A. de C.V., 235 A.D.2d 25, 31, 663 N.Y.S.2d 275, 279 (N.Y.App.Div.1997) (“[T]he methods described in the Inter-American Convention are not the exclusive means of effecting service, the rule permits alternative means of service.”); 1 V. Nanda & D. Pansius, Litigation of International Disputes in U.S. Courts §§ 2:10, 2:15 (2013).

Therefore, it is clear that the IASC (unlike the Hague Convention) is not a self-executing treaty, and without the aid of any enacting legislative provisions, is not the equivalent to an act of the legislature, does not have the status of supreme Law of the Land, and is without controlling force. As a result, strict compliance with the provisions of the IASC, to the exclusion of utilizing any other methods, is not required.

In contrast, when the Hague Convention entered force between Colombia and the United States on November 1, 2013, it became the mandatory channel for effecting service of process between the two countries in all cases where the Hague Convention applies. In those cases where no binding international treaty governs service of process, a party must look instead to Florida’s service of process rules.

For proper service on Defendant in Colombia prior to November 1, 2013, the trial court was permitted to accept compliance with either: (1) the IASC, since Colombia was not a signatory to the Hague Convention during the relevant time period; (2) the law of Colombia providing for appropriate methods of serving process upon its citizens; or (3) any method provided for by either the Florida Statutes or Florida Rules of Procedure. See Ackermann v. Levine, 788 F.2d 830, 840 (2d Cir.1986) (courts may look to the forum’s law for guidance on service issues that are not addressed by either the Hague Convention or the IASC).

Florida law generally requires personal service to confer in personam jurisdiction in actions for personal money judgments. See Bedford Computer Corp. v. Graphic Press, Inc., 484 So.2d 1225, 1227 (Fla.1986); see also Zieman v. Cosio, 578 So.2d 332, 333 (Fla. 3d DCA 1991). Section 48.193(3), Florida Statutes (2013), states that persons outside of Florida who are subject to the jurisdiction of Florida’s courts may be served “as provided in s. 48.194.” The relevant provision of section 48.194, Florida Statutes (2013), is subsection (1), which reads, in pertinent part, as follows: “Service of process on persons outside the United States may be required to conform to the provisions of the Hague Convention .... ” Therefore, even if the Hague Convention were not a self-executing treaty, section 48.194(1) serves as the legislative pronouncement sufficient for its implementation as the law in Florida.

Plaintiffs service of process upon Defendant was valid if it was perfected prior to November 1, 2013, in accordance with one of the three options indicated. This would include service according to sections 48.161 and 48.181, Florida Statutes, because the Hague Convention did not yet apply between the U.S. and Colombia, and strict compliance with the IASC was not required.

Substitute service under sections ¡4.8.161, i.8.171 and ¡4.8.181

In certain circumstances, substitute service of process may be effected upon either a nonresident or a party who conceals his or her whereabouts. The method for effecting substitute process on parties is outlined in sections 48.161, 48.171 and 48.181.

Section 48.161 requires substituted service be evidenced by: (1) registered or certified mailing to the nonresident of (a) a notice of such substituted service and (b) a copy of the process, which must be evidenced by (c) the filing of the nonresident’s return receipt and (d) an affidavit of compliance by plaintiff or his or her attorney; or (2) an appropriate officer’s return showing service on the nonresident within or without the state of Florida. § 48.161, Fla. Stat. (2013); Conde v. Prof'l Mediquip of Fla., Inc., 436 So.2d 322, 323 (Fla. 4th DCA 1983) (citing P.S.R. Assocs. v. Artcraft-Heath, 364 So.2d 855, 857-58 (Fla. 2d DCA 1978)).

Section 48.181 sets forth the jurisdictional requirements for substituted service of process. These requirements are that “the defendant conducts business in Florida and is either a(l) non-resident, (2) resident of Florida who subsequently became a non-resident, or (3) resident of Florida concealing his or her whereabouts.” Pinero v. Yam Margate, L.L.C., 825 F.Supp.2d 1264, 1265 (S.D.Fla.2011) (citing § 48.181, Fla. Stat. (2011)).

Under Section 48.171, the Secretary of State is the designated agent for a nonresident defendant who has caused injury by the operation of a motor vehicle within the state. See Chapman v. Sheffield, 750 So.2d 140, 142 (Fla. 1st DCA 2000).

Non-resident motorists have a ■duty to make their whereabouts known in the event of an accident, and a defendant’s attempt to conceal their whereabouts will not preclude the courts from obtaining jurisdiction over them. As the Second District Court of Appeal has held:

With a society as mobile as ours, when a non-resident motor vehicle owner or operator, or a resident owner or operator who subsequently becomes a non-resident or conceals his whereabouts, accepts the privilege of the public highways of the sta,te and is involved in an accident, he has a duty not to conceal his whereabouts and to let his whereabouts be known so that any one involved in such accident and sustaining injury or damage may come into court and seek redress. If such an owner or operator conceals his whereabouts and makes it impossible for an aggrieved party to serve him with notice by registered mail as provided by the statute and such aggrieved party shows that he has used due diligence in endeavoring to make service, this will not prevent the Court from obtaining jurisdiction over such owner or operator.

Fernandez v. Chamberlain, 201 So.2d 781, 785 (Fla. 2d DCA 1967).

Before using the substitute service statutes, a plaintiff must “demonstrate the exercise of due diligence in attempting to locate the defendant.” Wiggam v. Bamford, 562 So.2d 389, 391 (Fla. 4th DCA 1990). In Wiggam, this court indicated how this due diligence requirement could be satisfied:

The test [for determining the sufficiency of constructive or substitute service] is not whether it was in fact possible to effect personal service in a given case, but whether the [plaintiff] reasonably employed knowledge at [her] command, made diligent inquiry, and exerted an honest and conscientious effort appropriate to the circumstances, to acquire the information necessary to enable [her] to effect personal service on the defendant.

Id. (internal citations omitted).

Defendant contends that Plaintiff failed to comply with these statutes by not filing a postal receipt with the court. While sections 48.161 and 48.171 create an exception to the general rule that the defendant must be personally served, see Wyatt v. Haese, 649 So.2d 905 (Fla. 4th DCA 1995), and each statute must be strictly construed, see id.; Linn v. Kidd, 714 So.2d 1185 (Fla. 1st DCA 1998); Gloucester Eng’g, Inc. v. Mendoza, 489 So.2d 141 (Fla. 3d DCA 1986), the court may dispense with the filing of a postal receipt if the substituted service statute is invoked on the ground that the defendant is evading service. See Robb v. Picarelli, 319 So.2d 645, 646 (Fla. 3d DCA 1975); Fernandez, 201 So.2d at 785.

Due diligence

Plaintiff contends that he diligently complied with the statutes on substituted service and was still unable to locate and confirm proper service on Defendant. As a result, Defendant never received the process mailed to her, depriving Plaintiff of the ability to file a return receipt.

Unfortunately, the trial court failed to make findings of fact on the issue of whether Plaintiffs efforts at compliance were diligent. Although in most cases we would consider remanding these matters back to the trial court to make such findings, the standard of review of a trial court’s denial of both a motion to dismiss for lack of personal jurisdiction and ineffective service of process is de novo. Robles-Martinez v. Diaz, Reus & Targ, LLP, 88 So.3d 177, 179 (Fla. 3d DCA 2011); Am. Express Ins. Servs. Europe Ltd. v. Duvall, 972 So.2d 1035, 1038 (Fla. 3d DCA 2008).

Here, there are sufficient facts that appear from a consideration of the entire record to justify the applicability of sections 48.161 and 48.171. Robb, 319 So.2d at 646. The record reflects that Plaintiff persistently searched for Defendant in Colombia, and first attempted to serve her when he filed his complaint in 2009. However, the address and driver’s license number Defendant supplied to the rental car company and to the police for the accident report were incorrect, and there was no other information to establish where she was located. Plaintiff sought information from Alamo, scheduled five separate hearings and prevailed upon the trial judge at each hearing to compel discovery from them regarding this information. Although Plaintiff discontinued his search efforts for a little over two years while the case was in federal court and on appeal, Plaintiffs search resumed when the case returned to the trial court.

The record also reflects that Plaintiff hired two separate attorneys to try and find Defendant in Colombia. Plaintiff provided these attorneys with Defendant’s driver’s license number from the police report, her date of birth and her supposed address, yet neither attorney was able to locate her. When one of the retained attorneys found someone through social media who he believed was Defendant, Plaintiff sent a copy of the summons and complaint to this person’s work address by registered mail, but did not receive a return receipt and was not able to track the mailing outside the United States.

We believe that Plaintiffs efforts were duly diligent where efforts were made to hire two.separate attorneys to investigate Defendant’s whereabouts, multiple requests for further information from the rental car company were made, and the use of social media was employed when all else failed. Other attempts to contact Defendant at the address she provided both to Alamo and to the police at the scene of the accident were unsuccessful. Further, Defendant’s location outside the United States, in Colombia, South America, also greatly impeded the logistics of the search efforts as well as attempts at personal service. Under the facts of this case, it is clear that Plaintiff made conscientious efforts appropriate to the circumstances to obtain service on a defendant who could be deemed to be actively avoiding personal service. Wiggam, 562 So.2d at 391. As such, the requirement that Plaintiff file a return receipt is excusable. See Robb, 319 So.2d at 646; Fernandez, 201 So.2d at 785.

Late filed affidavit of compliance

Defendant asserts that the affidavit of compliance was filed after the court-imposed deadline and should have been stricken. Here, Plaintiffs counsel explained to the court that his legal assistant accidentally misplaced the affidavit and failed to serve it, or have it timely filed. Upon realizing the error, the affidavit was served and filed six days after it was due. Plaintiff later moved for the court to accept the late filing, or in the alternative for an extension of time. The motion also requested that the trial court consider Plaintiffs affidavit of compliance to be timely filed, based on affidavits filed by Plaintiffs counsel and his legal assistant that explained the mistake.

Pursuant to section 48.161, “the affidavit of the plaintiff or his or her attorney of compliance shall be filed on or before the return day of the process or within such time as the couH allows ....” § 48.161 (emphasis added). Also, under Florida Rule of Civil Procedure 1.090, a trial court may accept a late filing if good cause is shown. In denying Defendant’s motion to dismiss, the trial court in this case acted properly in exercising its discretion by accepting Plaintiffs untimely affidavit.

Rule 1.070(j)

Defendant contends that the trial court erred by denying her motion to dismiss this case pursuant to Florida Rule of Civil Procedure 1.070Q). “The purpose of. Rule 1.070(j) is to prevent a plaintiff from filing a lawsuit but taking no action to move forward on the claim.” Gardina v. Aronowitz, 899 So.2d 1248, 1250 (Fla. 4th DCA 2005) (citing Nationsbank, N.A. v. Ziner, 726 So.2d 364, 366 (Fla. 4th DCA 1999)). We reiterate, as we have stated in the past, that rule 1.070(j) “ ‘is not intended to be a trap for the unwary, nor a rule to impose a secondary statute of limitations based on time of service.... We instead understand the rule to be an administrative tool to efficiently move cases through the courts.’ ” Gary J. Rotella & Assoc., P.A. v. Andrews, 821 So.2d 468, 469 (Fla. 4th DCA 2002) (quoting Sneed v. H.B. Daniel Constr. Co., 674 So.2d 158, 159 (Fla. 5th DCA 1996)).

We have also held that the extraordinary effort of a defendant’s evasiveness can provide good cause to extend the time for service under rule 1.070(j). Moore v. McCluskey, 875 So.2d 760, 762 (Fla. 4th DCA 2004). Although Defendant correctly points out that six years have passed since the subject accident, the time has been filled with continuous efforts by Plaintiff and his attorney to comply with Florida law and to serve Defendant. Also, this case has been removed to federal court and remanded, and has come to this court once before on appeal. The information needed to litigate the claim never got “stale,” because Alamo fully deposed Plaintiff, and conducted discovery to which Plaintiff responded.

Based on the extraordinary circumstances in this case, the trial court acted within its discretion when it granted Plaintiff several extensions of time to search for Defendant, and did not err by denying Defendant’s motion to dismiss.

Affirmed.

Warner and Conner, JJ., concur.

      . Appellee initially filed suit against Alvarado as well as Alamo Financing, LP, and Alamo Rental U.S., Inc. ("Alamo”). Alamo ultimately obtained a final summary judgment in this case, which was later affirmed on appeal. Mazoff v. Alamo Fin., LP, 98 So.3d 581 (Fla. 4th DCA 2012).

      . Since Defendant was not located, Alamo’s counsel filed these motions on her behalf in this proceeding.

      . On the day of the hearing on Defendant’s motion, Plaintiff filed an affidavit stating he had obtained substitute service on Defendant pursuant section 48.161, and asked the court to accept this late-filed affidavit for consideration at the hearing, or in the alternative, for another extension of time.

      . S. TREATY DOC. No. 27, 98th Cong., 2d Sess. (1984).

      . Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 20 U.S.T. 361.

      . Curtis A. Bradley, International Law in the U.S. Legal System 44 (Oxford Univ. Press 2013); United States v. Jimenez-Nava, 243 F.3d 192, 195 (5th Cir.2001) (treaties "do not generally create rights that are enforceable in the courts”).

      . The Hague Convention is considered a self-executing treaty. See, e.g., Vorhees v. Fischer & Krecke, 697 F.2d 574, 575 (4th Cir.1983) (finding the Hague Convention to be self-executing because it imposes affirmative and judicially enforceable obligations without requiring implementing legislation); Ex parte Volkswagenwerk Aktiengesellschaft, 443 So.2d 880, 882 (Ala.1983) (recognizing that the Hague Service Convention is "the supreme law of the land” (quoting Am. Trust Co. v. Smyth, 247 F.2d 149, 153 (9th Cir.1957)). See also Dr. Ing. H.C.F. Porsche A.G. v. Superior Court, 123 Cal.App.3d 755, 177 Cal.Rptr. 155, 156 n. 1 (1981) (noting that a convention has the status of a treaty).

      . Assuming, for the sake of argument, that a defendant is located within a country that is a party to the Hague Convention, the Convention "shall not apply where the address of the person to be served with the document is not known.” Hague Convention, art. 1, 20 U.S.T. 361 (1969); see also BP Prods. N. Am., Inc. v. Dagra, 236 F.R.D. 270, 271 (E.D.Va.2006) ("The Hague Convention does not apply in cases where the address of the foreign party to be served is unknown.”).

      . Hague Convention on Private International Law, http://www.hcch.net/index_en.php?act= conventions.status & cid=17

      . S. TREATY DOC. No. 27, 98th Cong., 2d Sess. (1984).

      . A Convention has the status of a treaty. See, e.g., Dr. Ing. H.C.F. Porsche A.G. v. Superior Court, 123 Cal.App.3d 755, 177 Cal.Rptr. 155, 156 n. 1 (1981).

      . A letter rogatory or letter of request is a formal request from a court to a foreign court for some type of judicial assistance. See, e.g., Florida Rule of Civil Procedure 1.300(b) relating to foreign country depositions.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Prentice Leon BELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-1522.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 2014.
    Prentice Leon Bell, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD, C.J., and SUAREZ and SALTER, JJ.
   PER CURIAM.

Affirmed. See Walker v. State, 137 So.3d 594 (Fla. 2d DCA 2014).


text:
    Carlton O. DALEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-2066.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 2014.
    Carlton 0. Daley, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Barron v. State, 990 So.2d 1098 (Fla. 3d DCA 2008).


author: BENTON, J.

text:
    Javarris LANE, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1006.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2014.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

On direct appeal, Javarris Lane challenges sentences imposed for offenses committed when he was sixteen. After granting a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), the trial court re-sentenced Mr. Lane to life in prison without the possibility of parole for second-degree murder, to a concurrent term of thirty years’ imprisonment for aggravated child abuse, and to a term of fifty years’ imprisonment for sexual battery consecutive both to the thirty-year and the life terms. Although we affirm the life sentence, we reverse the sentences for the non-homicide offenses aggregating eighty years, and remand for resentencing on the aggravated child abuse and sexual battery charges.

On the authority of Copeland v. State, 129 So.3d 508 (Fla. 1st DCA 2014), we affirm the sentence of life with no possibility of parole imposed for second-degree murder. “[Although Miller [v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012),] prohibits the imposition of a mandatory life without parole sentence on a juvenile offender, the Supreme Court recognized that a sentencing court may still impose a life without parole sentence, after conducting an individualized mitigation inquiry.” Id. at 510. See also Washington v. State, 108 So.3d 917, 919-20 (Fla. 1st DCA 2012) (“[T]he Supreme Court in Miller ruled its decision ‘mandates only that a sentencer follow a certain process — considering an offender’s youth and attendant characteristics — before imposing a particular penalty.’ ” (citation omitted)). In the present case, as in Copeland, the “sentencing court conducted an individualized mitigation inquiry, considering several potential mitigating factors before finding that life without the possibility of parole was, nevertheless, appropriate.” Copeland, 129 So.3d at 511.

We reverse the consecutive sentences aggregating eighty years’ imprisonment, imposed for aggravated child abuse and sexual battery. We have said that “a de facto life sentence is one that exceeds the defendant’s life expectancy,” Adams v. State, — So.3d -, 2012 WL 3193932, 37 Fla. L. Weekly D1865, D1866 (Fla. 1st DCA Aug. 8, 2012), and that such a sentence should be deemed a life sentence for purposes of Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). In Floyd v. State, 87 So.3d 45 (Fla. 1st DCA 2012), the defendant was sentenced to consecutive forty-year terms of imprisonment for two armed robbery convictions. We reversed the sentences for two non-homicide offenses aggregating eighty years, holding:

Appellant, if he serves the entirety of his sentence, will be ninety-seven when he is released. Even if Appellant received the maximum amount of gain time, the earliest he would be released is at age eighty-five. See § 921.002(1)(e), Fla. Stat. (1998) (providing that parole is not applied to defendants sentenced under the Criminal Punishment Code, that sentences in Florida reflect the length of actual time to be served, shortened only by the application of incentive and meritorious gain time, and that defendants must serve no less than eighty-five percent of their term of imprisonment). This situation does not in any way provide Appellant with a meaningful or realistic opportunity to obtain release, as required by Graham. While the trial court was correct that the Eighth Amendment does not foreclose the possibility that juveniles who commit non-homicide crimes will remain in prison for life, Graham also cautioned that states are foreclosed from making the judgment at the outset that those offenders will never be fit to reenter society....
In this case, common sense dictates[] that Appellant’s eighty-year sentence, which, according to the statistics cited by Appellant, is longer than his life expectancy, is the functional equivalent of a life without parole sentence and will not provide him with a meaningful or realistic opportunity to obtain release.

Id. at 46-47. Here, as in Floyd, Mr. Lane’s sentences were imposed under the Criminal Punishment Code, which requires convicts to serve at least eighty-five percent of their . sentences. See § 944.275(4)(b)3., Fla. Stat. (2011). On the authority of Floyd, where the challenged sentences also aggregated eighty years, we reverse and remand for resen-tencing as to the two non-homicide convictions. But see Gridine v. State, 89 So.3d 909, 910-11 (Fla. 1st DCA 2011), review granted, 103 So.3d 139 (Fla.2012) (affirming a seventy-year sentence with a twenty-five-year minimum mandatory for a fourteen-year-old defendant).

The state acknowledges that, under our precedent, life imprisonment without the possibility of parole for murder does not render Graham inapplicable to the sentences imposed for these two non-homicide offenses. See Johnson v. State, — So.3d -, -, 2013 WL 1809685, 38 Fla. L. Weekly D953, D953-54 (Fla. 1st DCA Apr. 30, 2013) (certifying conflict with Lawton v. State, 109 So.3d 825, 829 (Fla. 3d DCA 2013), review granted, 143 So.3d 919 (Fla.2014), in which the Third District Court of Appeal affirmed a sentence of life in prison for attempted first-degree murder with a firearm, ordered to run consecutively with a sentence of life in prison (without parole eligibility for twenty-five years) for first-degree murder); Akins v. State, 104 So.3d 1173, 1175-76 (Fla. 1st DCA 2012) (holding Graham precluded a life sentence without the possibility of parole for attempted murder because nothing in Graham “would permit imposing life sentences without parole for nonhomicide offenses, even if the juvenile has committed a homicide in some earlier episode or, as here, was earlier sentenced to a term of years for a homicide”). See also Jackson v. State, — So.3d -, -, 2013 WL 3013582, 38 Fla. L. Weekly 1334, 1334-35 (Fla. 1st DCA June 18, 2013) (rejecting argument that Gmham “recognized a limited exception when the offender has also been convicted and sentenced for a homicide in the same proceeding, as did in fact occur in the present case” and reversing multiple life sentences imposed for non-homicide crimes pursuant to Graham); Weiand v. State, 129 So.3d 434, 435 (Fla. 5th DCA 2013) (reversing concurrent terms of life in prison for kidnapping and robbery convictions, to begin after a sentence of life in prison for a homicide conviction). But see Orange v. State, 149 So.3d 74, 84, at *10 (Fla. 4th DCA Sept. 3, 2014) (holding Graham allows the imposition of a life sentence without parole on a juvenile for a non-homicide offense when a homicide offense also occurred in the same criminal episode); Starks v. State, 128 So.3d 91, 92 (Fla. 2d DCA 2013) (same); Lawton, 109 So.3d at 828-29 (same). Here, as in Johnson, we reverse for resen-tencing on the non-homicide offenses even though “he will serve the remainder of his life in prison for the homicide offense he committed” against the same victim. Johnson, — So.3d at -, 38 Fla. L. Weekly at D954 (reversing for Johnson to be resentenced on a conviction of burglary with an assault).

Affirmed in part, reversed in part, and remanded for resentencing.

LEWIS, C.J. and MARSTILLER, J., concur.

      . As recognized in Floyd v. State, 87 So.3d 45, 47 (Fla. 1st DCA 2012), other courts have rejected the argument that Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), applies to "de facto” life sentences caused by lengthy term-of-years sentences. See Peters v. State, 128 So.3d 832, 855-56 (Fla. 4th DCA 2013); Walle v. State, 99 So.3d 967, 971 (Fla. 2d DCA 2012); Henry v. State, 82 So.3d 1084, 1089 (Fla. 5th DCA 2012).

      . Compare Adams v. State, - So.3d -, -, 2012 WL 3193932, 37 Fla. L. Weekly D1865, D1866 (Fla. 1st DCA Aug. 8, 2012), where this court reversed a sentence totaling sixty years in prison with an aggregate minimum mandatory term of fifty years for three non-homicide offenses because the sentence exceeded Adams’ life expectancy "as reflected in the National Vital Statistics Reports from the federal Centers for Disease Control and Prevention cited by Appellant in his rule 3.800(b)(2) motion,” but noted that the state did not dispute any of the facts asserted in the motion, including the projected life expectancy. In the present case, the state objected to the argument in Mr. Lane's second motion to correct sentencing error that the sentence exceeded his life expectancy because the referenced 2008 life-expectancy publication was not placed into evidence during the sentencing hearing.

      . The Florida Legislature amended the procedures regarding imposing and reviewing sentences for juvenile offenders, effective July 1, 2014. See §§ 775.082; 921.1401; 921.1402, Fla. Stat. (2014).

      . As in Floyd, the terms of years appellant received are consecutive, not concurrent. No party suggests that the present case is distinguishable from prior decisions because the thirty-year sentence for aggravated child abuse is concurrent with the life sentence,' while the fifty-year sentence for sexual battery is consecutive to the life sentence.

      .The fact that the sentence of life in prison with the possibility of parole after twenty-five years imposed for the homicide conviction in Weiand v. State, 129 So.3d 434 (Fla. 5th DCA 2013), was less severe than the sentences of life in prison for kidnapping and robbery convictions does not alter the analysis.


author: WARNER, J.

text:
    Donesha HAWTHORNE, Appellant, v. Otis BUTLER, Appellee.
    Nos. 4D14-3268, 4D14-3329.
    District Court of Appeal of Florida, Fourth District.
    Oct. 16, 2014.
    Margaret M. Bichler of Lytal, Reiter, Smith, Ivey & Fronrath, LLP and Kathryn A. Oleksy, West Palm Beach, for appellant.
    No appearance for appellee.
   WARNER, J.

Appellant appeals two orders denying her petitions seeking injunctions for protection against sexual violence due to the imminent release from prison of the perpetrator of sexual violence against her. The court denied both without holding a hearing. We reverse the denial of the first petition and thus moot consideration of the second petition.

In her first petition, appellant alleged that appellee had forced her to have sex with him multiple times while she was a minor. She further alleged that appellee had been imprisoned for these crimes and attached paperwork showing he had been sentenced to fifteen years in prison, to be followed by ten years of probation. She alleged appellee was scheduled to be released from prison in the next ninety days.

These allegations were sufficient to give appellant standing to file a petition for injunction for protection against sexual violence under section 784.046(2)(c)2., Florida Statutes (2014), which provides:

A person who is the victim of sexual violence or the parent or legal guardian of a minor child who is living at home who is the victim of sexual violence has standing in the circuit court to file a sworn petition for an injunction for protection against sexual violence on his or her own behalf or on behalf of the minor child if:
2. The respondent who committed the sexual violence against the victim or minor child was sentenced to a term of imprisonment in state prison for the sexual violence and the respondent’s term of imprisonment has expired or is due to expire within 90 days following the date the petition is filed.

Subsection (4)(a) requires the sworn petition to allege the “incidents of ... sexual violence,” including “the specific facts and circumstances that form the basis upon which relief is sought.” Appellant made these allegations by showing the appellee’s conviction, imprisonment, and impending release.

Section 784.046(5), 'Florida Statutes (2014), provides, “Upon the filing of the petition, the court shall set a hearing to be held at the earliest possible time.” (Emphasis added). See also Fla. Fam. L.R.P. 12.610(b)(3)(B) (same). The trial court’s failure to hold a hearing on the petition is reversible error, and we remand for such a hearing.

The trial court’s justification for denying the petition was, in part, that appellee “will be on probation for a 10 year period per DOC and a condition of that probation should be no contact with the victim which would result in a violation of probation and probable return to prison if the [appellee] were to have any contact with the victim.” Because this issue may arise at the subsequent hearing, we note that this is not a legally sufficient justification for denying such a petition. Although it considered a different statute, we find the reasoning of Smith v. Manno, 138 So.3d 1143 (Fla. 5th DCA 2014) equally applicable here, in that a probation condition of no contact would not abrogate appellant’s right to obtain a sexual violence injunction under section 784.046, Florida Statutes (2014). Such a condition is standard for sexual offenders such as appellee. See generally § 948.30(1)(d), Fla. Stat. (2014). Yet, the Legislature clearly contemplated that appellant could nevertheless seek a sexual violence injunction upon appellee’s release from prison.

Because we reverse the denial of the appellant’s first petition, this moots the denial of her second petition, which sought the same relief and contained very similar factual allegations. We reverse and remand for the trial court to hold an eviden-tiary hearing on the petition filed August 7, 2014.

Reversed and remanded for further proceedings.

TAYLOR and KLINGENSMITH, JJ., concur.


author: WELLS, Judge.

text:
    Borris MORALEZ, Petitioner, v. Marydell GUEVARA, Director, Miami-Dade County Corrections and Rehabilitation Department and the State of Florida, Respondents.
    No. 3D14-2560.
    District Court of Appeal of Florida, Third District.
    Oct. 24, 2014.
    Opinion after Remand Nov. 4, 2014.
    Carlos J. Martinez, Public Defender, and James Moody, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for respondents.
    Before SHEPHERD C.J., and WELLS, and, EMAS, JJ.
   WELLS, Judge.

Petitioner Borris Moralez asks this court to issue a writ of habeas corpus and order the circuit court to grant his immediate release in case F13-27204B. We grant Moralez’s petition for writ of habeas corpus only insofar as we remand to the trial court for an expedited bond hearing pursuant to section 907.041(4)(c), Florida Statutes (2014), and the applicable provisions of Florida Rules of Criminal Procedure 3.131 and 3.132. Moralez shall remain in detention pending the outcome of the hearing.

Petition is granted; remanded for an expedited bond hearing.

WELLS, Judge.

We treat Petitioner, Borris Moralez’s motion to enforce this court’s October 24, 2014 order granting his petition for writ of habeas corpus as a renewed petition for writ of habeas corpus, which we grant.

In our prior order we remanded this cause to the court below for an expedited bond hearing pursuant to section 907.041(4)(c), Florida Statutes (2014), and the applicable provisions of Florida Rules of Criminal Procedure 3.131 and 3.132. Rather than complying with this court’s order, the trial court judge below summarily reiterated her earlier conclusion that Moralez would be held without bond (and without further hearing) following revocation of his pretrial release for a noncriminal violation of a condition originally imposed.

Based upon our review of the truncated proceeding conducted by Judge Stacy D. Glick on remand, which confirmed our earlier determination that revocation of Mora-lez’s pretrial release was not predicated on a finding of probable cause to believe that Moralez committed a new crime while on pretrial release, and given the trial court’s failure to conduct a proper hearing in accordance with the express terms of our mandate, we order that Moralez be immediately released without a monetary bond but with the same non-monetary conditions as those imposed in his original pretrial release.

This opinion shall take effect immediately; no motions for rehearing will be entertained.

       This opinion shall take effect immediately notwithstanding the filing or disposition of any motion for rehearing.


text:
    Edilma TAYLOR, Appellant, v. CVS AND GALLAGHER BASSETT SERVICES, INC., Appellees.
    No. 1D14-2631.
    District Court of Appeal of Florida, First District.
    Oct. 27, 2014.
    William H. McKnight of William H. McKnight, P.A., Tampa, for Appellant.
    Cindy R. Galen of Eraclides, Gelman, Hall, Indek, Goodman & Waters, LLC, Sarasota, and Morgan A. Indek of Era-clides, Gelman, Hall, Indek, Goodman & Waters, LLC, Maitland, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant challenges an order entered by the Judge of Compensation Claims (JCC) granting the Employer/Carrier’s (E/C) motion to “enforce” a settlement agreement reached at mediation. Because Claimant failed to'preserve any error concerning the competency of the evidence, we affirm the JCC’s finding that Claimant knowingly and voluntarily settled all indemnity and medical benefits under chapter 440 for a lump-sum payment, which agreement was final and binding and requires the E/C to pay Claimant and her former attorney sums certain and requires Claimant, for her part, to execute an additional “general release/separation of employment.” The JCC did not err by giving effect to this agreement and concluding that the case had settled with finality and that under this agreement Claimant was required to sign an additional release and a separation of employment. The JCC, however, erred when she re-wrote the settlement terms to require Claimant to return additional signed settlement documentation as a condition precedent to receiving the settlement proceeds and by compelling Claimant to sign such additional documents — as the JCC was without authority to rewrite the parties’ agreement or compel specific performance of the agreement. Instead, the JCC’s authority was limited to determining whether the parties had entered into a settlement and entering an order, giving effect to that settlement. Accordingly, we modify the order on appeal by striking the fourth paragraph of the decretal portion of the order. The order, as modified, is AFFIRMED.

PADOVANO, MARSTILLER, and OSTERHAUS, JJ., concur.


text:
    Brian Keith SCHMIDT, Appellant, v. Terri Nathiel SCHMIDT, Appellee.
    No. 1D14-1554.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2014.
    Brian P. North of Kenny Leigh & Associates, Mary Esther, for Appellant.
    Corrine A.'Bylund and Elliot Zisser of . Zisser, Brown, Nowlis & Cabrey, P.A., Jacksonville, for Appellee.
   PER CURIAM.

Appellant, Former Husband, appeals a final judgment of dissolution of marriage and order denying his motion for rehearing. Former Husband raises four issues: 1) whether he is entitled to a new final hearing because of the delay between the trial court’s oral pronouncements and the final judgment; 2) whether the amount of permanent periodic alimony is supported by the evidence; 3) whether the amount of attorney’s fees the court ordered Former Husband to pay on Former Wife’s behalf is supported by the evidence; and 4) whether the court abused its discretion in ordering Former Husband to procure $500,000 in life insurance to secure his alimony and child support obligations. For the reasons explained below, we reverse and remand as to the first and second issues. We affirm the attorney’s fee award without further comment. Finally, because of our holding as to the first and second issues, and based on Former Wife’s concession that the amount of insurance the court ordered Former Husband to pay exceeds what is available to him, we remand for the trial court to adjust the amount of insurance Former Husband must procure to secure his alimony obligation.

Factual and Procedural Background

The trial court conducted a final eviden-tiary hearing to address dissolution of the parties’ 21-year marriage as well as the issues of equitable distribution of the parties’ assets and liabilities, property, alimony, child support, and attorney’s fees. At the conclusion of the hearing, the trial court made various oral pronouncements on some of these issues, and instructed the parties’ attorneys to submit proposals regarding the type and amount of alimony Former Husband was to pay Former Wife. For reasons unclear from the record, ten months elapsed before the trial court entered its final judgment. That judgment included a number of findings and orders that conflicted with the court’s oral pronouncements, prompting Former Husband to file a motion for rehearing seeking a new hearing or reconciling the court’s judgment with its oral pronouncements.

After the parties failed to resolve any issues concerning the discrepancies between the court’s oral pronouncements and the final judgment, the parties stipulated to having a successor judge review the transcript of the final hearing and issue a ruling based on the transcript and the arguments of counsel. The court issued an order denying Former Husband’s motion for rehearing, finding that the final judgment was not inconsistent with the predecessor judge’s oral pronouncements, and that, “based upon the entirety of the record the rulings of the judge do not fall outside the bounds of his judicial discretion from the evidence submitted at trial.” As discussed below, the court’s finding that there were no discrepancies between the oral pronouncements at the final hearing and the final judgment is contrary to the face of the record.

At the outset, because the parties stipulated to having the successor court resolve the discrepancies between the predecessor court’s oral pronouncements and its final judgment and address the other issues Former Husband raised in his motion for rehearing, he is not entitled to a new evidentiary hearing based on the delay between those pronouncements and the final judgment and the discrepancies between the two. See Miami Dolphins Ltd. v. Genden & Bach, P.A., 545 So.2d 294, 296 (Fla. 3d DCA 1989) (recognizing that, “ [generally, one can waive any contractual, statutory or constitutional right.”) This holding, however, does not preclude the court from doing so on remand should the parties stipulate to a new hearing or if the court should determine that one is necessary to resolve any of the issues we are instructing to resolve on remand. In that regard, contrary to the court’s finding, it is clear from the record that there were several significant discrepancies between the oral pronouncements at the conclusion of the final hearing and the final judgment: disposition of the marital home, distribution of the parties’ debts, and distribution of certain personal property.

At the hearing, and with Former Wife’s agreement, the court decided that Former Husband would pay the mortgage, taxes, and insurance for the marital home as satisfaction of his child support obligation until the parties’ youngest child reaches majority (an event that has since occurred) and that, within six months of that event, the home would be sold. In the final judgment, however, the court awarded Former Wife full possession of the home and ordered Former Husband to transfer his ownership share to her. With respect to distribution of the parties’ debts and personal property, despite having had the opportunity to do so at mediation, Former Wife now concedes that the debt obligations and personal property distribution should be in accordance with the trial court’s oral pronouncements. Thus, on remand, in addition to modifying the judgment to comport with the predecessor court’s oral pronouncements with respect to disposition of the marital home, the court should also modify the judgment to reflect these stipulations.

With respect to the trial court’s alimony judgment, although Former Husband no longer contests the court’s finding that Former Wife is entitled to permanent periodic alimony, he does contest the amount of that alimony, arguing, essentially, that the amount was based on an erroneous calculation of need which, in turn, was based on an erroneous calculation of Former Wife’s expenses. We agree.

The court gave no basis for the specific amount of $3,750.00 per month awarded beyond a finding that the parties had each acquired various debts. This alone warrants reversal and remand. See Kemmet v. Kemmet, 885 So.2d 408, 409 (Fla. 1st DCA 2004) (“Because the trial court did not make the findings of fact mandated by section 61.08(1), Florida Statutes (2003), regarding the amount of alimony it awarded and we are unable to divine from the record how it arrived at the amount ... we reverse the alimony award and remand for the required findings.”). Also, presumably the amount of need the court calculated included the mortgage, taxes, and insurance payments on the marital home. As discussed earlier, however, in the court’s oral pronouncements, it found Former Husband was responsible for those expenses and, even then, only until the house was sold within six months of the youngest child reaching majority. Furthermore, as we have already addressed, the court’s oral pronouncement with respect to the parties’ other respective debt obligations differed from what the court included in the final judgment. And, as Former Husband argues, Former Wife admitted at trial that Former Husband was actually paying a number of the debts she included on her financial affidavit as her own debts. Finally, it is unclear whether the trial court considered that it also awarded Former Wife 33% of Former Husband’s monthly military pension when it determined the alimony award. Because of these deficiencies in the final judgment, none of which were addressed by the successor court, we reverse the alimony judgment and remand for the court to assess this amount in light of the aforementioned discrepancies between the oral pronouncements and written judgment, including debt allocation, mortgage responsibility, and disposition of the marital home.

The trial court also ordered Former Husband to purchase $500,000 in life insurance coverage to insure payment of his obligations. Former Wife agrees this amount was in error because it exceeded the amount of insurance available to Former Husband. Thus, on remand, the trial court is instructed to modify the final judgment to reflect a correct amount of life insurance for which Former Husband is obligated to purchase and maintain, giving due consideration to current circumstances.

REVERSED in part, AFFIRMED in part, and REMANDED with instructions.

THOMAS, ROBERTS, and ROWE, JJ., concur.

      . By the time this case reached this court, the child support issue became moot because the parties’ children had reached the age of majority.


text:
    Shirley ANDERSON, Appellant, v. NORTH PORT SERVICES OF FLORIDA, LLC dba Daytona Beach Health and Rehabilitation Center and the PMA Insurance Group, Appellee.
    No. 1D14-2255.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2014.

      Shirley Anderson, pro se.
    David R. Drill of Kelley Kronenberg, Jacksonville, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant challenges an order of the Judge of Compensation Claims (JCC) that concludes Claimant has fully and finally settled her workers’ compensation claim emanating from an alleged June 30, 2012, date of accident. The appealed order also concludes that Claimant failed to raise or establish a legally cognizable basis for avoiding the terms of this settlement. Upon receipt of Claimant’s amended initial brief, this court entered an order advising the parties that this appeal is being considered for summary affirmance under Florida Rule of Appellate Procedure 9.315(a). Accordingly, the parties were directed to refrain from further briefing.

Rather than raising a specific legal or factual argument and explaining why the case should be decided in her favor, Claimant argues, in essence, that the settlement is not sufficient to meet her financial needs. Claimant’s argument, which is unaccompanied by record support or legal authority that would permit relief on such a basis, misapprehends the role of this court and her role as a litigant seeking relief therefrom. See Lynn v. City of Fort Lauderdale, 81 So.2d 511, 513 (Fla.1955) (explaining that party bringing appeal has duty to “make error clearly appear,” and court has no duty to answer questions raised in “perfunctory” manner). Claimant has failed to demonstrate error on this record as is her burden, and this court is under no obligation to construct or answer a legal question not properly argued by Claimant herself. Cabrera v. Outdoor Empire Inc., 134 So.3d 573, 577 (Fla. 1st DCA 2014). Based on the foregoing, Claimant has failed to raise a preliminary basis for reversal. Accordingly, we affirm the JCC’s order that finds that Claimant’s case is fully and finally settled and that there is no basis to disturb this settlement.

AFFIRMED.

PADOVANO, WETHERELL, and SWANSON, JJ„ concur.


author: LOGUE, J.

text:
    Robin FORBES, etc., Appellant, v. Lisa Berlow LEHNER and Law Offices of Lisa Lehner, P.A., Appellees.
    No. 3D13-2142.
    District Court of Appeal of Florida, Third District.
    Oct. 29, 2014.
    Schlesinger & Associates, P.A., and Michael J. Schlesinger, Miami, and Andrew W. Abel, for appellant.
    Broad and Cassel, and Rhett Traband, Miami; Joel S. Perwin, P.A., and Joel S. Perwin, Miami, for appellees.
    Before ROTHENBERG, LOGUE, and SCALES, JJ.
   LOGUE, J.

Robin Forbes, as the successor trustee of two trusts, appeals the dismissal of his complaint in a “clawback” action against an attorney who represented the former trustees. The complaint alleges the former trustees used trust assets to pay the attorney contrary to a court order. The complaint was filed more than four years after the alleged payments were made. The trial court dismissed the complaint as barred by the statute of limitations.

Generally, the statute of limitations is an affirmative defense that should be raised in an answer to a complaint. See Fla. R. Civ. P. 1.110(d)). There is an exception, however, if an affirmative defense appears on the face of the complaint. Swafford v. Schweitzer, 906 So.2d 1194, 1195 (Fla. 4th DCA 2005).

In this case, the allegations in the complaint do not support the statute of limitations defense. To the contrary, the complaint contains allegations that suggest the statute of limitations did not bar the two causes of action that were pled. The trial court therefore erred in resolving the defense at the motion to dismiss stage. See Xavier v. Leviev Boymelgreen Marquis Developers, LLC, 117 So.3d 773, 775 (Fla. 3d DCA 2012) (reversing the dismissal of a complaint due to the statute of limitations because the face of the complaint did not establish the defense). Whether the successor trustee’s claims will survive the defense when the record is more fully developed, either at summary judgment or trial, is a question left for another day.

Reversed and remanded for further proceedings consistent with this opinion.


author: ROTHENBERG, J.

text:
    M.H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2371.
    District Court of Appeal of Florida, Third District.
    Oct. 29, 2014.

      Carlos J. Martinez, Public Defender, and James Moody, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellee.
    Before ROTHENBERG, LAGOA, and SCALES, JJ.
   ROTHENBERG, J.

M.H., a juvenile, appeals from an order withholding adjudication of delinquency and imposing probation for burglary of an unoccupied dwelling and petit theft. He contends the State committed a discovery violation by listing the victim of the charged crimes as a Category B witness in its discovery exhibit rather than as a Category A witness, and therefore, the trial-court erred by failing to conduct a full Richardson inquiry to address the discovery violation. We agree. The victim in this case should have been listed as a Category A witness, and thus, the Richardson hearing conducted by the trial court was inadequate. Because we cannot say that the procedural prejudice due to this error was harmless beyond a reasonable doubt, we reverse and remand for a new adjudicatory hearing.

M.H. was charged with burglary of an unoccupied dwelling and grand theft. Officer Jabiles of the Miami Gardens Police Department submitted an investigation/incident report wherein he reported that the victim told him only that he left his residence at approximately 8:00 p.m. on October 31, 2012, and upon returning at 11:30 p.m., he discovered that a screen from a window at the rear of his apartment had been removed, the unsecured window was ajar, and a necklace was missing from his bedroom. In his deposition testimony, Officer Jabiles confirmed that the victim stated at the scene of the crime that he left his apartment at 8:00 p.m. and discovered the theft upon his return at 11:30 p.m.- Believing that’the victim had merely discovered the theft and had no other relevant testimony, M.H. did not attempt to depose the victim.

During the adjudicatory hearing, however, the State called the victim as a witness, and he testified as follows. The victim lives in a first-floor apartment located in a three-building apartment complex. On October 31, 2012, before dark, he left his apartment and went down to the pool area to wait for his friend to bring him some food. Before leaving his apartment, he locked the front door but left his bedroom window ajar. While waiting for his food to be delivered, the victim saw M.H., M.H.’s brother H.H., and two or three other individuals enter the area outside of the apartment complex. Although M.H. and the others continued on and entered the victim’s apartment building through the main door, H.H. stopped and stayed in the pool area of the apartment complex where the victim was waiting for his food. The victim did not see M.H. enter his apartment unit, steal any of his belongings, or in possession of any of the items stolen.

The victim returned to his apartment when his food was delivered. After eating, the victim went into his bedroom and discovered that the window screen, which can only be removed from the outside, had been removed from the open window and several items were now missing from his bedroom, including a 14-carat gold necklace. The victim summoned the police; the police responded to his apartment that evening to investigate; and the following day, a crime scene investigator lifted several prints from the inside of his bedroom. A fingerprint analyst later testified that a palm print lifted from the victim’s bedroom windowsill matched M.H.’s palm print.

Immediately after the victim testified that he saw M.H. enter his apartment building, defense counsel objected to the State’s characterization of the victim as a Category B witness and requested a Richardson hearing. Defense counsel argued that the victim was an “eye witness” because the victim’s testimony placed M.H. in the vicinity of the apartment building at the time of the burglary and theft, and therefore, the State should have listed the victim as a Category A witness in its discovery exhibit. Based on defense counsel’s objection, the following exchange took place:

[Trial Court]: We are going to have a Richardson Hearing. So first of all is there a discovery violation? Your argument is that there is a discovery violation because [the victim] was not listed as an (Á) witness when you believe that he is an eyewitness, correct?
[Defense Counsel]: Yes, Your Honor.
[Trial Court]: And State your argument is that [the victim] is not [an] eyewitness between [sic] within the meaning of the rule defining an eyewitness for purposes of being listed as an (A) witness; correct?
[State]: That’s exactly right.
[Trial Court]: Okay well I find that there is no discovery violation and we will move on.... There is no need to address the other factors in a Richardson Inquiry.

After the victim testified, the defense moved for an emergency continuance in order to call Officer Jabiles to impeach the victim’s testimony. Defense counsel proffered that Officer Jabiles would testify that the victim told him only that he had left his apartment at 8:00 p.m. on the night of the burglary, and that he discovered the burglary and theft upon returning at 11:30 p.m. Because defense counsel had not subpoenaed Officer Jabiles for trial, the trial court denied the motion.

At the conclusion of the hearing, the trial court found that M.H. committed the offenses of burglary and petit theft, withheld adjudication, and placed M.H. on probation.

We conclude that the State improperly listed the victim as a Category B witness and that the State’s improper characterization of the witness as a Category B witness constitutes a discovery violation. Because the trial court incorrectly found that there was no discovery violation, it did not conduct a full Richardson inquiry. Because we cannot say that the procedural prejudice due to this error was harmless beyond a reasonable doubt, we reverse and remand for a new adjudicatory hearing.

In December 1995, a special subcommittee selected to review the deposition process recommended that the Florida Rules of Criminal Procedure be amended and that “witnesses be placed in three categories for discovery purposes” — Category A, B, or C. In re Amendment to Fla. Rule of Criminal Procedure 3.220(h), 668 So.2d 951, 952 (Fla.1995). The Florida Supreme Court referred the matter back to the Criminal Procedure Rules Committee and the Juvenile Procedure Rules Committee to consider the subcommittee’s recommendations.

In September 1996, “in the hope of further curtailing abuse of the deposition process,” the Florida Supreme Court adopted the proposed amendments to rules 3.220 and 8.060 filed by the Criminal Procedure Rules Committee and the Juvenile Procedure Rules Committee respectively. In re Amendment to Fla. R. Crim. P. 3.220(h) & Fla. R. Juv. P. 8.060(d), 681 So.2d 666, 667 (Fla.1996). As explained by the Florida Supreme Court:

The most significant change to the discovery rules is the requirement that the prosecutor in a felony case and the petitioner in a juvenile case designate witnesses into three categories. Category A witnesses are subject to deposition as under the former rules. Category B witnesses are subject to deposition only upon leave of court upon a showing of good cause. Absent a showing that a Category C witness has been improperly designated, such witnesses cannot be deposed.

Id. (citations omitted).

Rule 8.060 “classifies witnesses based on their level of knowledge concerning the charged offense[s]. Such classification is based on the .witness’s ability to contribute towards determining the guilt or innocence of the defendant.” Davis v. State, 73 So.3d 304, 307 (Fla. 1st DCA 2011) (footnote omitted). Category A witnesses possess the highest level of knowledge concerning the charged offenses and include, for example, eye witnesses, alibi witnesses, and investigating officers. Fla. R. Juv. P. 8.060(a)(2)(A)(i). In contrast, Category C witnesses possess the lowest level of knowledge concerning the charged offenses. Category C specifically encompasses “[a]ll witnesses who performed only ministerial functions or whom the petitioner does not intend to call at the hearing and whose involvement with and knowledge of the case is fully set out in a police report or other statement furnished to the defense.” Fla. R. Jur. P. 8.060(a)(2)(A)(iii). Category B witnesses are “[a]ll witnesses not listed in either Category A or Category C.” Fla. R. Jur. P. 8060(a)(2)(A)(iii). An important procedural difference between a Category A witness and a Category B witness is that a Category A witness may be deposed without leave of court, Fla. R. Juv. P. 8.060(d)(2)(F), whereas a Category B witness may only be deposed “upon leave of court with good cause shown.” Fla. R. Juv. P. 8.060(d)(2)(G).

Although the categorization of witnesses under this scheme was implemented to curtail abuse of the deposition process, In re Amendment to Fla. R. Crim. P. 3.220(h) & Fla. R. Juv. P. 8.060(d), 681 So.2d at 667, the State must keep in mind that the “chief purpose of our discovery rules is to assist the truth-finding function of our justice system and to avoid trial by surprise or ambush.” Scipio v. State, 928 So.2d 1138, 1144 (Fla.2006).

The main dispute ⅛ this appeal is whether the victim was an eye witness for purposes of rule 8.060. The term “eye witness! ]” is not defined in rule 8.060 or rule 3.220, and we have not discovered any case law defining the term as it pertains to these procedural rules. The State and M.H. have taken contrasting views as to the meaning of the term “eye witness.” The State contends that to be an “eye witness,” the witness must actually witness the perpetrator commit the charged offense(s) or an element of the charged offense(s). Thus, the State argues that because the victim did not see M.H. enter his apartment or remove any of the items taken, the victim does not qualify as an eye witness, and therefore, the State properly listed the victim as a Category B witness in its discovery response.

In contrast, M.H. contends that an eye witness is merely “[o]ne who personally observes an event,” Black’s Law Dictionary 626 (8th ed. 2004), and that the victim in this case qualifies as an “eye witness” because he testified about an event he personally witnessed: M.H. entering the apartment building where the charged crimes occurred at the time when the crimes allegedly occurred. Thus, the State committed a discovery violation by listing the victim as a Category B witness, rather than as a Category A witness.

Although we do not agree that a witness who merely “observes an event” is necessarily an “eye witness” for purposes of rule 8.060, we also do not interpret the rule as narrowly as the State has requested. Instead, we conclude that a practical, common-sense application must be used when classifying witnesses under rule 8.060, taking into consideration the purpose of the discovery rules, the content of the witness’s testimony, and the effect of the classification.

To reiterate, the “chief purpose of our discovery rules is to assist the truth-finding function of our justice system and to avoid trial by surprise or ambush.” Scipio, 928 So.2d at 1138. Regarding the content of the victim’s testimony, we note that his testimony was highly material in establishing M.H.’s guilt because the victim was able to place M.H. in the vicinity of the crime at or near the time the crimes were committed. The effect of the State’s classification of the victim as a Category B witness was to mislead the defense as to materiality of the victim’s testimony and to preclude the defense from discovering this highly material evidence against M.H. Based on the State’s characterization of the victim as a Category B witness, the police report, and Officer Jabiles’ deposition testimony, the defense reasonably believed that the victim would merely testify that he did not give anyone permission to enter his apartment and take his property. Because M.H. and his counsel were not put on notice that the victim would actually place M.H. at the scene of the crime at or around the time the crimes were committed, M.H. and his counsel were caught by surprise, and in effect, they were ambushed by the victim’s testimony at trial.

Because the victim’s testimony placed M.H. in the vicinity of the charged offenses at the time they were committed, the victim was transformed from someone who had little to offer as to M.H.’s guilt or innocence to someone whose testimony was highly material in establishing M.H.’s guilt. Also, by classifying the victim as a Category B witness, the defense was precluded from deposing the victim absent leave of court and unless he could show good cause. Fla. R. Juv. P. 8.060(d)(2)(G). Based on the information known to the defense, it would have been unreasonable to seek leave of court to depose the victim because the defense could not have shown good cause. Thus, under the circumstances of this case, we conclude that the trial court erred in finding that the State did not commit a discovery violation by listing the victim as a Category B witness.

As a discovery violation did occur, the trial court was required to conduct a full Richardson inquiry as to whether the violation: (1) was willful or inadvertent, (2) was substantial or trivial, and (3) had a prejudicial effect on the aggrieved parties’ trial preparation. See Delhall v. State, 95 So.3d 134, 160 (Fla.2012); Richardson, 246 So.2d at 775; Williams v. State, 143 So.3d 1120, 1125 (Fla. 4th DCA 2014). However, because the trial court found that there was no discovery violation, it did not conduct a full Richardson inquiry.

When a trial court fails to conduct an adequate Richardson inquiry, the error is not per se reversible, but “harmful error is presumed.” Acosta v. State, 856 So.2d 1143, 1144-45 (Fla. 4th DCA 2003). “Only if the appellate court can say, beyond a reasonable doubt, that the defense was not procedurally prejudiced by the discovery violation can the error be considered harmless.” Id. at 1145. “[T]he defense is procedurally prejudiced if there is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred.” State v. Schopp, 653 So.2d 1016, 1020 (Fla.1995); see also Acosta, 856 So.2d at 1145.

Based on the circumstances of this case, we cannot say beyond a reasonable doubt that M.H. was not procedurally prejudiced by the State’s discovery violation. Specifically, the defense most likely would have subpoenaed Officer Jabiles to impeach the victim’s trial testimony that he saw M.H. walk into the apartment building, thereby placing M.H. in the vicinity of the charged offenses at the time when the offenses were committed. Given this knowledge, M.H. may have employed a completely different strategy at trial. Accordingly, we reverse the order under review and remand for a new adjudicatory hearing.

Reversed and remanded.

      . As will be explained later in this opinion, witnesses are categorized as either Category A, B, or C witnesses pursuant to Florida Rule of Juvenile Procedure 8.060(2)(A).

        . Richardson v. State, 246 So.2d 771 (Fla.1971).

      . Davis discusses Florida Rule of Criminal Procedure 3.220(b)(1)(A). However, as rule 3.220(b)(1)(A) and rule 8.060(2)(A), which both categorize witnesses as either A, B, or C witnesses, are materially identical, the same construction of rule 3.220 should be given to rule 8.060. See State v. D.R., 701 So.2d 120, 121 (Fla. 3d DCA 1997).

      . As we have concluded that reversal is warranted, we need not address the remaining issues raised by M.H.


text:
    Gwendolyn BAKER, Appellant, v. AIRGUIDE MANUFACTURING, LLC, Appellee.
    No. 3D13-2878.
    District Court of Appeal of Florida, Third District.
    Oct. 29, 2014.

      Russo Appellate Firm, P.A., and Christopher J. Bailey, Coral Gables, for appellant.
    Law Offices of Richard A. Sherman, P.A., and Richard A. Sherman and James W. Sherman; Law Offices of Esther B. Nickas, and Edelberto Farres, for appel-lee.
    Before ROTHENBERG, LAGOA, and SCALES, JJ.
   ROTHENBERG, J.

The plaintiff below, Gwendolyn Baker, appeals a final summary judgment entered in favor of the defendant, Airguide Manufacturing, LLC (“Airguide”), based on the trial court’s ruling that Airguide was entitled to workers’ compensation immunity. Because we find the trial court correctly found that Airguide was entitled to immunity under section 440.11(2) of the Florida Statutes (2010), we affirm.

Baker began working for a company called Pacesetter in January 2008. The record establishes that Pacesetter is an employment agency that supplies employees to shorthanded companies. For the first six months of her employment with Pacesetter, Baker was placed with various Carmax locations. Then, in July 2008, Pacesetter placed Baker (along with several other Pacesetter employees) with Air-guide, an air conditioning duct manufacturer.

Baker worked at Airguide without incident for two years, but on July 28, 2010, a machine designed to punch holes in the aluminum air duct parts unexpectedly activated and injured Baker’s right index finger. Baker’s immediate supervisor at Air-guide, Corine Graham (“Graham”), helped Baker wash the wound and then called Pacesetter to deal with the issue. Pacesetter sent a driver to pick up Baker, and Baker was taken back to the Pacesetter facilities, where she filed a report. Baker was subsequently taken to a doctor’s office and then later to a hospital. Baker experienced significant pain and immobility in her finger and had to undergo physical therapy and rehabilitation. Baker claims she still experiences pain in the finger to this day.

Baker successfully filed a workers’ compensation claim with Pacesetter after her accident, and she was reimbursed for her injury based on the statutorily prescribed reimbursement amount. Unsatisfied with her recovery amount, Baker subsequently filed the underlying negligence suit against Airguide on July 24, 2012. After some discovery, Airguide filed a motion for summary judgment, arguing that it was immune from liability because Baker was either a “borrowed servant” under common law doctrine or was an employee of a help supply services company as provided in section 440.11(2) of the Florida Statutes, and therefore, Baker’s exclusive remedy was through workers’ compensation, which she had already received.

The motion for summary judgment cited and relied heavily upon Baker’s deposition testimony. In that deposition, which was taken on May 21, 2013, Baker stated that she reported directly to Airguide in the mornings, was trained to use the machines by Airguide employees, was monitored and reprimanded by Airguide employees, and was assigned weekly hours and tasks by Airguide management, but that Pacesetter issued Baker’s paychecks and sent supervisors to the Airguide premises once or twice per week to check on the Pacesetter employees.

Two days before the summary judgment hearing, and four months after Baker’s deposition, on September 11, 2013, Baker filed an affidavit and an errata sheet to her deposition that materially conflicted with some of the statements she had made during her deposition. Based on the changes to her testimony, Baker argued that there was a genuine dispute over material facts whether Airguide possessed the requisite degree of control over Baker ,to establish Airguide’s immunity under the common law “borrowed servant” doctrine. After some legal argument on the issue, the trial court granted Airguide’s motion for summary judgment. Baker filed a motion for rehearing, which the trial court denied, and this appeal followed.

Baker contends on appeal that the trial court erred by failing to consider her affidavit and errata sheet and that it improperly granted Airguide’s motion for summary judgment because Airguide did not meet its burden of establishing that it was entitled to workers’ compensation immunity. We disagree.

As to the first issue, it is well-established Florida law that a party may not rely on an affidavit that contradicts or repudiates prior deposition testimony simply to defeat a motion for summary judgment. Ellison v. Anderson, 74 So.2d 680, 681 (Fla.1954); United Auto. Ins. Co. v. Seffar, 37 So.3d 379, 380-81 (Fla. 3d DCA 2010). In this case, Baker testified in a sworn deposition that Airguide had nearly complete control over her everyday work activities and that Pacesetter merely provided her paycheck. Then, curiously, nearly four months after her deposition and only two days before the summary judgment hearing, Baker filed her affidavit and errata sheet to state that she checked in with Pacesetter every morning, that Pacesetter supervisors often checked on her at Airguide, and that Airguide had limited authority to direct her work, determine her hours, or terminate her. These statements clearly contradict Baker’s deposition testimony, and they evidence an attempt on Baker’s part to contravene her prior testimony and create a factual dispute regarding Airguide’s ability to control her workplace conduct — one of the main factors considered under the “borrowed servant” doctrine. We accordingly find that the trial court did not err by refusing to consider the affidavit and errata sheet testimony when granting Airguide’s motion for summary judgment.

Although we find that the trial court did not err by rejecting Baker’s contradictory affidavit and errata sheet, the inadmissibility of the affidavit and errata sheet is not dispositive. While these two documents may have potentially created a dispute as to whether Airguide sufficiently established that it was entitled to immunity under the common law “borrowed servant” doctrine, they create no dispute as to whether Airguide is entitled to immunity as a “help supply services company” under section 440.11(2) of the Florida Statutes. Because Airguide is clearly a help supply services company under section 440.11(2), we affirm the trial court’s ruling on that issue as well.

As explained by this Court in Cabrera v. T.J. Pavement Carp.:

Florida’s workers’ compensation act sets forth a comprehensive scheme that provides benefits to workers injured during employment. This system, which is based on mutual renunciation of common law rights and defenses by employers and employees, ensures that injured employees who fall within its scope receive swift compensation and medical benefits from the employer irrespective of fault or cause of injury. In exchange, employers who comply with the workers’ compensation act receive immunity from suit except in limited circumstances.

2 So.3d 996, 998 (Fla. 3d DCA 2008) (citations omitted).

As an extension of the immunity conferred on employers by workers’ compensation, the common law “borrowed servant” doctrine was developed to cover employers that utilize other companies’ employees to complete their work under circumstances indicating that the borrowing employer is the de facto employer of the borrowed employee at the time of the injury. See Hazealeferiou v. Labor Ready, 947 So.2d 599, 603 (Fla. 1st DCA 2007) (“The doctrine of lent employment reflects the dual purpose of ensuring that a lent employee is covered by workers’ compensation and immunizing employers attaining ‘special employer’ status from liability in tort.”). The company “borrowing” employees from another company is deemed the borrowed employees’ “special employer,” and the special employer is entitled to the same workers’ compensation immunity as the employees’ actual employer where:

“(1) there was a contract for hire, either express or implied, between the special employer and the employee; (2) the work being done at the time of the injury was essentially that of the special employer; and (3) the power to control the details of the work resided with the special employer.”

Fossett v. Se. Toyota Distribs., LLC, 60 So.3d 1155, 1158 (Fla. 1st DCA 2011) (quoting St. Lucie Falls Prop. Owners Ass’n v. Morelli, 956 So.2d 1283, 1286 (Fla. 4th DCA 2007)).

In addition to the common law “borrowed servant” doctrine, section 440.11(2) of the Florida Statutes also extends statutory workers’ compensation immunity to employers utilizing the employees of a “help supply services company.” Specifically, subsection 440.11(2) states:

The [workers’ compensation] immunity from liability described in subsection (1) shall extend to an employer and to each employee of the employer which uses the services of the employees of a help supply services company, as set forth in North American Industrial Classification System Codes 561320 and 561330, when such employees, whether management or staff, are acting in furtherance of the employer’s business. An employee so engaged by the employer shall be considered a borrowed employee of the employer and, for the purposes of this section, shall be treated as any other employee of the employer. The employer shall be liable for and shall secure the payment of compensation to all such borrowed employees as required in s. 440.10, except when such payment has been secured by the help supply services company.

(emphasis added). North American Industrial Classification System (“NAICS”) Code 561320, which is expressly incorporated into subsection 440.11(2), further defines “help supply services company” by providing:

561320 Temporary Help Services

This industry comprises establishments primarily engaged- in supplying workers to clients’ businesses for limited periods of time to supplement the working force of the client. The individuals provided are employees of the temporary help service establishment. However, these establishments do not provide direct supervision of their employees at the clients’ work sites.

Thus, an employer can establish its right to workers’ compensation immunity by either meeting the three-prong test for common law “borrowed servant” immunity or by establishing that the injured employee came from a “help supply services company” under the terms of the statute at the time the employee suffered a work-related injury. Hazealeferiou, 947 So.2d at 603.

The three-prong common law test requires a substantial factual inquiry, including proof of either an express or implied contract between the special employer arid the claimant and details regarding the relative control the general employer and special employer exercised over the employee. Suarez v. Transmontaigne Servs., Inc., 127 So.3d 845, 847-48 (Fla. 4th DCA 2013). Conversely, the statutory immunity for employers that utilize help supply services companies requires only that the special employer demonstrate that the employee was acquired from a help supply service company. § 440.11(2); Hazealeferiou, 947 So.2d at 603.

We need not engage in the factual determination of whether the three-prong common law test was met in this case because Pacesetter is clearly a help supply services company. Pacesetter is a national corporation that leases professional workers and manual laborers to various companies throughout the United States for a fee— the very definition of a help supply service company. See Tu-Lane Invs., Inc. v. Orr, 889 So.2d 961, 963 (Fla. 1st DCA 2004) (“The definition of ‘help supply services company’ includes ‘employee leasing company.’ ” quoting Caramico v. Artcraft Indus., Inc., 727 So.2d 348, 349 (Fla. 5th DCA 1999)). Baker herself testified at her initial deposition and in the subsequently filed errata sheet and affidavit that Pacesetter was her actual employer, but that she was leased to various other employers. Indeed, Baker was only one of several Pacesetter employees that had been sent to work at Airguide to meet Airguide’s labor demands. Thus, Pacesetter is a help supply service company that is entitled to workers’ compensation immunity under the terms of the statute.

Affirmed.

      . Subsection 440.11(2) also incorporates NAICS Code 561330. Code 561330 defines Professional Employer Organizations, and its terms do not apply to this case.


text:
    SWEETAPPLE, BROEKER & VARKAS, P.L., Petitioner, v. Jacqueline M. SIMMONS, Respondent.
    No. 3D14-1543.
    District Court of Appeal of Florida, Third District.
    Oct. 29, 2014.

      Sweetapple, Broeker & Varkas, P.L., and Douglas C. Broeker, Miami, for petitioner.
    Richman Greer, P.A., and Eric M. Sodhi, Miami, for respondent.
    Before SHEPHERD, C.J., and EMAS and LOGUE, JJ.
   LOGUE, J.

Sweetapple, Broeker & Varkas, P.L. (“the Firm”) petitions for a writ of certio-rari, seeking to quash a discovery order that permits Jacqueline M. Simmons (“the Judgment Creditor”) to view trust account wire receipts. After obtaining two judgments against one of the Firm’s clients, the Judgment Creditor discovered that the client transferred money to the Firm. The Judgment Creditor subpoenaed the Firm requesting documents reflecting any payment of sums into and out of the Firm’s trust account for the benefit of its client. Following a hearing and in camera review of the subject wire receipts, the trial court granted the discovery request but redacted some banking information from the documents, such as the trust account number.

The issue presented is whether the trust account wire receipts are protected by the attorney-client privilege. Because this financial information is not privileged in the hands of the client, it is not privileged in the hands of the attorney. Greenberg Traurig v. Bolton, 706 So.2d 97, 98-99 (Fla. 3d DCA 1998) (holding the attorney-client privilege does not extend to information reflecting a judgment debtor’s assets which is held by a law firm); Goldberg v. Ross, 421 So.2d 669 (Fla. 3d DCA 1982) (holding that a judgment debtor’s trust fund records are not protected by the attorney-client privilege because “[djocu-ments which are not privileged in the hands of the client cannot be shielded by transferring them to the attorney”).

Because the records are not privileged, the Firm has failed to demonstrate that production of the documents would constitute irreparable harm. We therefore dismiss the petition for lack of jurisdiction. Bd. of Trs. of Internal Improvement Trust Fund v. Am. Educ. Enters., LLC, 99 So.3d 450, 454-55 (Fla.2012) (“A finding that the petitioning party has suffered an irreparable harm that cannot be remedied on direct appeal is a condition precedent to invoking a district court’s certiorari jurisdiction.”) (citation and internal quotations omitted).

Petition dismissed.


text:
    Gabriel MARCKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-2362.
    District Court of Appeal of Florida, Third District.
    Oct. 29, 2014.
    Gabriel Marckson, in proper persori.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, EMAS and LOGUE, JJ.
   PER CURIAM.

Gabriel Marckson appeals from the trial court’s summary denial of his timely motion for post-conviction relief. Although we agree with the trial court’s determination that the motion was legally insufficient, we reverse and remand because, rather than entering a final order denying the motion on its merits, the trial court should have entered a non-final, non-ap-pealable order dismissing the motion with leave to amend within sixty days. See Fla. R. Crim. P. 3.850(f)(2); Spera v. State, 971 So.2d 754 (Fla.2007).

Reversed and remanded with directions to enter a non-final order dismissing the motion with leave to file an amended motion within sixty days.


text:
    Adrian P. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-0433.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2014.
    Adrian P. Smith, pro se, Appellant.

      Pamela Jo Bondi, Attorney General, Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We deny Appellant’s motion for rehearing, but withdraw our prior opinion and substitute this opinion in its place.

Adrian Smith appeals the summary denial of his rule 3.800(a) motion in which he claimed that his prison releasee reoffender (PRR) designation is illegal because the February 2006 offense for which he was designated a PRR was committed more than three years after he was released from prison on conditional release in May 2002. We issued a Toler order, and in response, the State conceded that that the case should be remanded for the trial court to attach records refuting Smith’s claim. We decline to accept the State’s concession because, upon review of the supplement to the record filed after the State filed its response to the Toler order, we conclude that the record refutes Smith’s claim that his PRR designation is illegal.

The record shows that, although Smith was originally released ft’om prison on conditional release in May 2002, he was returned to prison in January 2003 after he violated the terms of his conditional release and the Parole Commission issued an order revoking his conditional release. Smith was again released on conditional release in December 2003, and because he committed his current offense within three years of that date, his PRR designation is legal. See Williams v. State, 994 So.2d 337, 340 (Fla. 3d DCA 2008); Smith v. Moore, 782 So.2d 955, 956-57 (Fla. 1st DCA 2001).

Smith’s reliance on Brinson v. State, 851 So.2d 815 (Fla. 2nd DCA 2003), is misplaced. The defendant in that case filed a postconviction motion challenging his PRR designation for an October 1997 offense. Id. at 816. He claimed that the designation was illegal because the offense was committed more than three years after his August 1994 release from prison on conditional release. Id. The trial court summarily denied the motion because the record reflected that, after his initial release, the defendant was taken back into custody for a violation of the terms of his conditional release and then released in March 1995 while awaiting action of the Parole Commission. Id. On appeal, the court held that the trial court erred in using the March 1995 release date in determining the legality of the defendant’s PRR designation because “the word ‘release’ [in the PRR statute] means actual release from a state prison sentence, not release from a temporary confinement that happens to be in state prison.” Id.; accord Colson v. State, 114 So.3d 415, 416-17 (Fla. 1st DCA 2013) (reversing PRR sentence based upon Brinson because “the date relied on by the State in seeking the PRR designation was not the date the appellant was released from prison, but rather from temporary confinement”). The distinction between this case and Brinson is that Smith’s release in December 2003 was not from a “temporary detention ... while awaiting action of the Parole Commission”; it was from a detention that had ripened into reimprisonment by virtue of the revocation of Smith’s conditional release by the Parole Commission. See Cassista v. State, 57 So.3d 265, 267 (Fla. 5th DCA 2011) (“Unless those [temporary] detentions ‘ripen’ into reimprisonment, they are excluded from consideration for PRR purposes.”).

Accordingly, for the reasons stated above, the trial court correctly denied Smith’s rule 3.800(a) motion.

AFFIRMED.

VAN NORTWICK, WETHERELL, and MAEAR, JJ., concur.

      . Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986).