author: LABARGA, C.J. CANADY, J.,

text:
    Bernard J. DOUGHERTY, Petitioner, v. STATE of Florida, Respondent.
    No. SC12-2365.
    Supreme Court of Florida.
    Oct. 16, 2014.

      Carlos Fernando Gonzalez and Paola M. Sanchez Torres of Diaz, Reus & Targ, LLP, Miami, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Wesley Harold Heidt, Bureau Chief, and Rebecca Rock McGui-gan, Assistant Attorney General, Daytona Beach, FL, for Respondent.
   LABARGA, C.J.

Bernard Joseph Dougherty seeks review of the decision of the Fifth District Court of Appeal in Dougherty v. State, 96 So.3d 984 (Fla. 5th DCA 2012), on the ground that it expressly and directly conflicts with a decision of the Fourth District Court of Appeal in Macaluso v. State, 12 So.3d 914 (Fla. 4th DCA 2009), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the following reasons, we quash in part the Fifth District’s decision in Dougherty and approve Macaluso to the extent it is consistent with this opinion because a defendant’s stipulation to his own competency does not absolve the trial court from its duty to independently make a determination of a defendant’s competency to proceed. As discussed in more detail below, however, Dougherty’s claim is procedurally barred.

FACTS

Dougherty was charged with resisting an officer with violence; acquiring a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge; and criminal use of personal identification information in March 2000. Shortly thereafter, the trial court entered an order appointing three experts for a competency determination. In August 2002, the court entered an order declaring Dougherty incompetent to proceed to trial, and Dough-erty was committed to the Florida Department of Children and Families (DCF). In the order, the trial court noted that Dougherty was diagnosed with psychotic disorder and could not presently understand the charges or allegations.

On January 24, 2003, the trial court entered an order to transfer Dougherty to the Florida Department of Corrections because DCF determined that Dougherty no longer met the criteria for commitment. On February 28, 2003, Dougherty appeared before the court for a status hearing regarding competency. The following is the entire transcript of the status hearing;

THE COURT: State of Florida versus Bernard Dougherty.
MR. [JACK] GILMORE: Your Hon-, or, this is Mr. Dougherty who just returned from the State Hospital. This would be a comp review.
Apparently, the hospital feels Mr. Dougherty is capable of going forward and we would request that since they feel he’s capable of going forward, I talked to Mr. Dougherty briefly this morning, and he feels he’s ready to go forward. We would like to have this set for the next docket sounding.
THE COURT: State?
THE STATE: April 21st.
THE COURT: Set for docket sounding then on April 21st as requested.

Subsequently, on July 10, 2003, defense counsel filed a motion to determine Dough-erty’s competency to stand trial pursuant to Florida Rulé of Criminal Procedure 3.210(a). The trial court granted the motion and appointed three experts for a competency determination. The experts were directed to submit written reports to the court, with copies to the attorneys, on September 3, 2003. On September 10, 2003, the parties appeared before the Court for a competency hearing. The following is the entire transcript of this proceeding:

THE COURT: This is the matter of the State of Florida versus Bernard Dougherty. Who’s got that case?
MR. [JAMES] MCMASTER [STATE ATTORNEY]: Judge, Ms. Cobrand and I. It should not be that complicated.
MS. [SHEENA] COBRAND [DEFENSE ATTORNEY]: We did get the evaluations back from the three doctors, so we will stipulate he is competent to proceed.
THE COURT: Very good. We’ll put it on just the regular docket sounding then.
MR. MCMASTER: It’s already scheduled for October 8 docket sounding.
MS. COBRAND: Judge, if we can do the 10/8 one, that way we can get everything together and we’ll be ready to go.
THE COURT: What are his pending charges?
MR. MCMASTER: Resisting an officer with violence, acquiring controlled substance from misrepresentation and fraudulent use of personal ID.
THE COURT: So that might not be able to be resolved; does it?
MR. MCMASTER: We’ll bring in the officer. He is a [prison releasee reoffen-der] criminal.
THE COURT: Okay. All right.

The court did not refer to Dougherty’s competency again and did not enter a written order determining that Dougherty was competent to proceed to trial. Nevertheless, the matter proceeded to a two-day jury trial on the charges of resisting arrest with violence, and acquiring a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge. The jury found Dougherty guilty of both charges. Dougherty was sentenced to prison for consecutive ten-year sentences as a habitual felony offender.

On April 19, 2009, Dougherty filed an amended motion to correct an illegal sentence. The trial court summarily denied the amended motion and Dougherty appealed. The Fifth District reversed in part, finding that the trial court erred in sentencing Dougherty as a habitual felony offender for the charge of acquiring a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge. On July 2, 2010, nearly seven years after the September 10, 2003, competency hearing, Dougherty appeared for resentencing. At this resentencing hearing, defense counsel raised the issue of Dougherty’s competency, alleging that Dougherty had never been evaluated and did not have a hearing regarding competency. On August 11, 2010, Dougherty again appeared at a hearing for resentencing, and again defense counsel raised the issue of Dougherty’s competency. The trial court, however, did not consider the competency issue. Instead, the court resentenced Dougherty, finding that Dougherty was a habitual felony offender as to count one— resisting an officer with violence. The trial court reduced the sentence for count two — acquiring a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge — to five years, to run consecutively with the sentence of count one.

Dougherty raised the issue of his competency on appeal to the Fifth District. Dougherty, 96 So.3d at 984. Dougherty argued that the lack of a written order adjudicating him competent required reversal of his conviction and a new trial. Id. at 985. He also argued that he did not receive a proper and sufficient hearing. Id. The Fifth District held that the lack of a written order could be cured without a new trial because it was apparent from the record that the trial court found Dougherty competent based on the representation and stipulation of defense counsel. Further, the Fifth District held that the hearing was sufficient because the trial court was authorized to base its competency finding on written evaluations stipulated to by Dougherty at a properly scheduled competency hearing. Id.

Dougherty filed a timely notice to invoke the discretionary jurisdiction of this Court alleging conflict with Macaluso, in which the defendant was found incompetent and sent to a facility. 12 So.3d at 915. Five months later, the court held a hearing at which defense counsel informed the court that Macaluso had been found competent based on evaluations obtained by the Public Defender’s Office. Id. Without additional evidence or a hearing, the court declared Macaluso competent to proceed to trial. Macaluso’s attorney later informed the court before jury selection that facility doctors had also found him competent to be tried. After he was found guilty of multiple offenses, he appealed the conviction on the grounds that the competency issue was improperly decided. The Fourth District held that the conviction had to be set aside and Macaluso was entitled to a new trial if determined to be competent because Florida Rule of Criminal Procedure 3.212(c)(7) did not contemplate lawyers stipulating to restored competency without an evidentiary hearing.

Id. The Fourth District reasoned that it had previously determined that a court must hold a hearing and enter an order finding the defendant competent before proceeding to trial. Id. Accordingly, Dougherty and Macaluso conflict because the district courts reached different conclusions on whether a court can determine a defendant to be competent based on the stipulation of counsel, and whether a new trial is necessary under such circumstances. We now turn to the merits.

ANALYSIS

Before discussing the proper procedures to be followed in competency determinations, we note that Dougherty raised this issue for the first time at a resentenc-ing hearing on remand after the Fifth District reversed the trial court’s summary denial of his amended motion to correct an illegal sentence, which occurred nearly seven years after his original competency hearing before trial. Thus, Dougherty’s claim is procedurally barred because he did not raise this issue on direct appeal. See Thompson v. State, 88 So.3d 312, 316 (Fla. 4th DCA 2012) (“In Florida state courts, neither a procedural nor a substantive competency claim of trial court error may be raised in a postconviction motion.” (citing Nelson v. State, 43 So.3d 20, 33 (Fla.2010))); see also Wickham v. State, 124 So.3d 841, 861-62 (Fla.2013); Bundy v. State, 538 So.2d 445, 447 (Fla.1989). As a result, we do not address application of our holding to the specific circumstances of his case. We resolve the conflict, however, to stress the importance of competency determinations to criminal proceedings and to ensure that courts follow the specific procedures outlined in Florida Rules of Criminal Procedure 3.210-3.212. Indeed, it is necessary for courts to observe the specific hearing requirements set forth in the rules in order to safeguard a defendant’s due process right to a fair trial and to provide the reviewing court with an adequate record on appeal.

Competency Determination Requirements

In Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), the United States Supreme Court recognized that “the failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial.” Procedural due process requires adequate notice and an opportunity to be heard “at a meaningful time and in a meaningful manner.” Jones v. State, 740 So.2d 520, 523 (Fla.1999) (quoting Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971)). Further, ‘[i]t is well-settled that a criminal prosecution may not move forward at any material stage of a criminal proceeding against a defendant who is incompetent to proceed.’ ” McCray v. State, 71 So.3d 848, 862 (Fla.2011) (quoting Caraballo v. State, 39 So.3d 1234, 1252 (Fla.2010)); see Fla. R.Crim. P. 3.210(a). “An individual who has been adjudicated incompetent is presumed to remain incompetent until adjudicated competent to proceed by a court.” Jackson v. State, 880 So.2d 1241, 1242 (Fla. 1st DCA 2004) (citing Holland v. State, 634 So.2d 813, 815 (Fla. 1st DCA 1994)); see also Corbin v. State, 129 Fla. 421, 176 So. 435 (1937); Erickson v. State, 965 So.2d 294 (Fla. 5th DCA 2007); and Molina v. State, 946 So.2d 1103 (Fla. 5th DCA 2006).

Florida Rules of Criminal Procedure 3.210-3.212 were enacted to set forth the required competency hearing procedures for determining whether a defendant is competent to proceed or has been restored to competency. See Mora v. State, 814 So.2d 322, 333 (Fla.2002). Pertinent to this case are rules 3.210(b) and 3.212(a)-(b), (c)(3), (c)(5)-(7).

Rule 3.210(b) provides:

If, at any material stage[] of a criminal proceeding, the court of its own motion, or on motion of counsel for the defendant or for the state, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine the defendant’s mental condition, which shall be held no later than 20 days after the date of the filing of the motion, and may order the defendant to be examined by no more than 3 experts, as needed, prior to the date of the hearing....

(Footnote added). As we stated in Fowler when addressing the proper procedures to rule on the question of competency, albeit interpreting an earlier version of the rule referring to insanity, “[t]he framers of the rule ... obviously did not regard lightly the necessity for a hearing” by their use of the terms “shall” and “immediately.” Fowler v. State, 255 So.2d 513, 515 (Fla.1971). Pursuant to rule 3.212(a), the experts preparing the reports may be called by the court or either party and “shall be deemed court witnesses.” Rule 3.212(b) then provides that the “court shall first consider the issue of the defendant’s competency to proceed. If the court finds the defendant competent to proceed, the court shall enter its order so finding and shall proceed.” The State concedes that entry of an order under the rule refers to entry of a written order as opposed to an oral pronouncement. See also Molina, 946 So.2d at 1105 n. 1.

If a defendant is found incompetent, the defendant may be committed for treatment to restore his competency to proceed. Fla. R.Crim. P. 3.212(c)(3). If the facility’s administrator determines that the defendant no longer meets the criteria for commitment or has become competent to proceed, rule 3.212(c)(5) provides that the treatment facility’s administrator must notify the court in a written report with copies furnished to all parties. The trial court shall then hold a hearing within thirty days of the receipt of any such report from the administrator of the facility. Fla. R.Crim. P. 3.212(c)(6). “If, at any time after such commitment, the court decides, after hearing, that the defendant is competent to proceed, it shall enter its order so finding and shall proceed.” Fla. R.Crim. P. 3.212(c)(7).

Generally, a proper hearing to determine whether competency has been restored after a period of incompetence requires “the calling of court-appointed expert witnesses designated under Florida Rule of Criminal Procedure 3.211, a determination of competence to proceed, and the entry of an order finding competence.” Jones v. State, 125 So.3d 982, 983-84 (Fla. 4th DCA 2013) (quoting Samson v. State, 853 So.2d 1116, 1117 (Fla. 4th DCA 2003)). The plain language of rule 3.212(a), however, does not require the calling of expert witnesses or any additional witnesses because the word “may” is used. Further, “where the parties and the judge agree, the trial Court may decide the issue of competency on the basis of the written reports alone.” Fowler, 255 So.2d at 515; see Jones, 125 So.3d at 984. Nevertheless, these written reports are advisory to the trial court, “which itself retains the responsibility of the decision.” McCray, 71 So.3d at 862 (quoting Hunter v. State, 660 So.2d 244, 247 (Fla.1995) (citing Brown v. State, 245 So.2d 68, 70 (Fla.1971), vacated in part on other grounds, 408 U.S. 938, 92 S.Ct. 2870, 33 L.Ed.2d 759, (1972) (noting that the purpose' of the provisions of rule 1.210(a) — an. older provision with very similar language — was “to aid and assist the Court, so as to enable the Court wisely to determine whether ... proceedings ... must be ... stayed during a period of necessary treatment.”))); see also Alexander v. State, 380 So.2d 1188, 1190 (Fla. 5th DCA 1980) (citing Butler v. State, 261 So.2d 508 (Fla. 1st DCA 1972) (noting that competence to stand trial is a legal question and not a medical question)). Accepting a stipulation improperly absolves the trial court from making an independent determination regarding a defendant’s competency to stand trial.

We note that our prior cases, in which we held that the trial court retains the responsibility to determine if the defendant is competent, generally involved conflicting testimony or evidence regarding a defendant’s competency. However, nothing in our precedent or the State’s argument persuades us that a defendant can stipulate to the ultimate issue of competency, even where the written reports reach the same conclusion. Even in a situation where all the experts opine that a defendant is competent, the trial court could presumably disagree based on other evidence such as the defendant’s courtroom behavior or attorney representations. Further, the language of rule 3.212(c)(7) and rule 3.212(b) discussed above does not allow parties to stipulate to the issue of competency. See Jones, 125 So.3d at 984 (citing Macaluso, 12 So.3d at 915). In particular, the rules do not contemplate such stipulations where the trial court has previously concluded that a particular defendant is incompetent and his competency has yet to be restored. Thus, based on our precedent and the procedural rules for competency determinations, a defendant cannot stipulate that he is competent, particularly where he has been previously adjudicated incompetent during the same criminal proceedings. Further, if a trial court finds- that a defendant is competent to proceed, it must enter a written order so finding. Having concluded that a defendant cannot stipulate to his own competency, and that a trial court must enter a written order if the defendant is found competent, we now turn to the remedy for a violation of these, procedures.

Remedy

Generally, the remedy for a trial court’s failure to conduct a proper competency hearing is for the defendant to receive a new trial, if deemed competent to proceed on remand. Pate v. Robinson, 383 U.S. 375, 386-87, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Tingle v. State, 536 So.2d 202, 204 (Fla.1988) (noting that a due process violation regarding a defendant’s competency generally results in a new trial because “a hearing to determine whether a defendant was competent at the time he was tried generally cannot be held retroactively.”). A new trial is not always necessary where the issue of competency was inadequately determined prior to trial; a retroactive determination of competency is possible. See Fowler, 255 So.2d at 515 (“[0]ur finding in this regard does not require vacation of the judgment and sentence entered against defendant at this time.”). However, as we have previously noted, the United States- Supreme Court has cautioned that determining competency to stand trial retrospectively is inherently difficult, even under the most favorable circumstances. Jones, 740 So.2d at 523 (citing Drope, 420 U.S. at 183, 95 S.Ct. 896). “The chances of conducting a meaningful retrospective competency hearing decrease when experts must rely on a cold record.” Jones, 740 So.2d at 523 (citing Mason v. State, 489 So.2d 734, 737 (Fla.1986)). Nevertheless, in Mason, this Court held that a nunc pro tunc competency evaluation could be done where “ ‘there are a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent evidence at a retrospective hearing.’” 489 So.2d at 737 (quoting Martin v. Estelle, 583 F.2d 1373, 1375 (5th Cir.1978)). In Mason, this Court noted that “[sjhould the trial court find, for whatever reason, that an evaluation of Mason’s competency at the time of the original trial cannot be conducted in such a manner as to assure Mason due process of law, the court must so rule and grant a new trial.” Id. at 737; see also Monte v. State, 51 So.3d 1196, 1203 (Fla. 4th DCA 2011). Thus, the remedy for a trial court’s failure to follow the procedures discussed above depends on the circumstances of each case.

CONCLUSION

For the foregoing reasons, we conclude that a trial court’s failure to observe the procedures outlined in Florida Rules of Criminal Procedure 3.210-3.212— procedures determined to be adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial — deprives a defendant of his due process right to a fair trial. Although the trial court, when the parties agree, may decide the issue of competency on the basis of written reports alone, it cannot dispense with its duty to make an independent determination about a defendant’s competency, and must enter a written order if the defendant is found competent to proceed. Further, we conclude that the remedy for such a violation, a new trial or a nunc pro tunc hearing to determine competency, depends on the circumstances of each case. Accordingly, we quash in part the Fifth District’s decision in Dougherty v. State, 96 So.3d 984 (Fla. 5th DCA 2012), and approve the decision of the Fourth District in Macaluso v. State, 12 So.3d 914 (Fla. 4th DCA 2009), to the extent it is consistent with this opinion.

It is so ordered.

PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur.

CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

CANADY, J.,

dissenting.

Although I agree that the Court has express and direct conflict jurisdiction, I would nonetheless discharge this case.

The majority correctly recognizes that Dougherty’s incompetency claim is a claim of trial court error that is not cognizable in a postconviction proceeding. The majority’s discussion of the incompetency issue— which is the basis for our conflict jurisdiction — thus constitutes an abstract legal discussion that has no application to the case on review. The majority effectively acknowledges this when it observes that it does “not address application of our holding to the specific circumstances of his case.” Majority op. at 676. “Judicial declaration, unaccompanied by judicial application, is of no authority.-” John W. Sal-mond, The Theoi*y of Judicial Precedents, 16 L.Q. Rev. 376, 389 (1900). Because what the Court says here on the conflict issue has no application in this case, the Court should refrain from saying it. The subject of the conflict should be resolved in a future case when it is properly at issue.

Accordingly, I dissent.

POLSTON, J., concurs.

      . He failed to appear for the first scheduled trial on September 9, 2000, because he fled to Pennsylvania. The State became aware of his whereabouts because he was arrested in Pennsylvania.

      . The trial court appointed the following three experts: William Riebsame, Ph.D., Howard Bernstein, Ph.D., and Burton Pod-nos, M.D.

      . The three experts were: Dr. Riebsame, Dr. Bernstein, and David Greenblum, Ph.D.

      . The State dismissed the criminal use of personal identification charge.

      . In Jones v. State, 125 So.3d 982, 984 (Fla. 4th DCA 2013), the Fourth District explained that Macaluso "recognized that [r]ule 3.212 does not sanction stipulations to the ultimate issue of competency.” However, the district court acknowledged that parties may stipulate to expert reports in lieu of testimony at a competency hearing to form the evidence upon which the trial court may rely to decide the ultimate issue of competency.

      . Florida Rule of Criminal Procedure 3.210(a) defines a "material stage” as "the trial of the case, pretrial hearings involving questions of fact on which the defendant might be expected to testify, entry of a plea, violation of probation or violation of community control proceedings, sentencing, hearings on issues regarding a defendant’s failure to comply with court orders or conditions, or other matters where the mental competence of the defendant is necessary for a just resolution of the issues being considered_”

      . Although the State argues that the three experts concluded that Dougherty was feigning incompetence, this Court cannot independently verify the accuracy of that representation because the record is devoid of information on the content of the expert • reports, the experts did not testify, and the trial court did not enter a written order determining Dougherty was competent to proceed.

      . Under those circumstances, a defendant previously adjudicated incompetent would be stipulating to the issue of his own competency, which is an issue essential to the integrity of the criminal proceedings. See People v. Lesly T„ 33 Misc.3d 881, 930 N.Y.S.2d 845, 846 (N.Y.Sup.Ct.2011) (citing Pouncey v. United States, 349 F.2d 699 (D.C.Cir.1965), and People v. Harris, 14 Cal.App.4th 984, 18 Cal.Rptr.2d 92 (Cal.Ct.App.1993)). Thus, we do not find it appropriate to endorse such a procedure.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Michael PEREZ, Respondent.
    No. SC13-1958.
    Supreme Court of Florida.
    Oct. 16, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Richard L. Polin, Bureau Chief, Joanne Diez, Assistant Attorney General, and Linda S. Katz, Assistant Attorney General, Miami, FL, for Petitioner.
    Gary L. Sasso of Carlton Fields Jorden Burt, P.A., Tampa, FL, and Steven Michael Blickensderfer of Carlton Fields Jor-den Burt, P.A., Miami, FL, and Peter D. Webster of Carlton Fields Jorden Burt, P.A., Tallahassee, FL, for Respondent.
   PER CURIAM.

Following the issuance of the Third District Court of Appeal’s opinion in Perez v. State, 118 So.3d 298 (Fla. 3d DCA 2013), and upon the State’s motion, the district court certified the following question as one of great public importance:

HOW SHOULD MANIFEST INJUSTICE BE DEFINED FOR PURPOSES OF A CLAIM OF NEWLY DISCOVERED EVIDENCE AFTER A GUILTY PLEA?

Perez v. State, 122 So.3d 429, 429 (Fla. 3d DCA 2013). Initially, the Court accepted review under article V, section 3(b)(4) of the Florida Constitution. After further consideration, we conclude that jurisdiction was improvidently granted. Accordingly, this case is hereby dismissed.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.


text:
    Inquiry Concerning a Judge, No. 13-17 re Sandy K. KAUTZ.
    No. SC13-2262.
    Supreme Court of Florida.
    Oct. 16, 2014.
    Ricardo Morales, III, Chair, Michael Louis Schneider, General Counsel, and Brooke S. Kennerly, Executive Director, Tallahassee, FL, for Judicial Qualifications Commission, Petitioner.
    James Michael Sawyer, Gainesville, FL, for Judge Sandy K. Kautz, Respondent.
   PER CURIAM.

We approve of the below stipulation and the Judicial Qualifications Commission’s findings and recommendation that Judge Sandy K. Kautz receive a public reprimand.

It is so ordered.

STIPULATION

In this disciplinary proceeding, the Investigative Panel of the Florida Judicial Qualifications Commission and Judge Sandy K. Kautz, Circuit Judge, 5th Judicial Circuit, present the following stipulation to this Court pursuant to [ajrticle V, [sjection 12 of the Florida Constitution and [rjule 6(j) of the Florida Judicial Qualifications Commission’s Rules.

1. Under [rjule 6(j), the Investigative Panel “may reach agreement with a judge on discipline or disability, and such stipulation shall be transmitted directly to the Supreme Court, to accept, reject or modify in whole or in part.”

2. A Notice of Investigation dated March 11, 2013 was served on Judge Kautz. A hearing before the Investigative Panel was held in Tampa, Florida on April 12, 2013 at which Judge Kautz appeared and testified. The Investigative Panel concluded that probable cause existed for the filing of Formal Charges.

3. In light of Judge Kautz’s responses to the Panel’s inquiries, the Investigative Panel respectfully submits that the interest of justice and sound judicial administration is best served by entering into this Stipulation regarding the matters at issue and by the Findings and Recommendations which accompany this Stipulation.

4. The allegations of violations of the [¡Judicial [cjanons arise in three distinct areas. The first involves Judge Kautz’s conduct and demeanor in presiding over injunction, juvenile and dependency cases. From a review of the audio recordings of those cases, it is apparent that Judge Kautz was frustrated by the use of the court system by some as a solution to the many problems inherent in those cases. It is clear that Judge Kautz was intending to engender a more self-reliant spirit in those appearing in court. However in doing so, she at times demeaned those who appeared seeking injunctions or family members seeking assistance from the Court.

5. As a new judge, Judge Kautz also failed to appreciate the input from the other stakeholders in the court system to the extent that she on occasion would rule in a way that made it appear she either did not know the law or refused to apply it. Although done without any improper purpose, it did have the consequence of undermining the public’s confidence in the judiciary.

6. On December 26, 2012 Judge Kautz appeared at a First Appearance hearing before Judge Ritterhoff Williams, on behalf of her sister, Rhonda Kautz. At that hearing Judge Kautz first vouched for her as a character witness. She also argued on her sister’s behalf about the circumstances surrounding the allegations contained in the probable cause affidavit. Finally she requested that the Judge order law enforcement to assist her sister by accompanying her to the house to retrieve personal items.

7. Judge Kautz admits that her actions in appearing on behalf of her sister were improper due to her position as a judge. She did not, however, identify herself as a judge, nor did she make any argument other than that envisioned by the Rules of Criminal Procedure. She does now admit that her actions did violate the Code of Judicial Conduct.

8. Judge Kautz accepts full responsibility for the conduct set forth above, admits that it should not have occurred and regrets and apologizes for such conduct. Judge Kautz denies that she intended to violate the applicable [cjanons, and contends that she acted in the good faith belief that such conduct was appropriate. Judge Kautz now acknowledges that her understanding of the effect of the foregoing actions in light of the judicial [cjanons was erroneous.

9. Guided by the circumstances set forth above and the decisions in In re Maloney, 916 So.2d 786 (Fla.2005)[,J and In re Maxwell, 994 So.2d 974 (Fla.2008), the Investigative Panel and Judge Kautz have reached an agreement on what both believe is appropriate discipline under the circumstances. Consequently, the Investigative Panel has [ ] concurrently filed Findings and Recommendations of Discipline with the Court. Judge Kautz does not contest the Findings and Recommendations and waives a plenary hearing before the Hearing Panel of the Florida Judicial Qualifications Commission, if the Recommendations are accepted by the Court.

The parties acknowledge and understand that this Stipulation and attached Findings and Recommendations of Discipline are subject to the review and approval of this Court. The parties acknowledge and understand that this Stipulation and Findings and Recommendations of Discipline may be rejected by the Court, and in that event this matter may be returned to the Hearing Panel for a final plenary hearing. In such event, the parties agree that none of the statements in the Stipulation (or the attached Findings and Recommendations of Discipline) are admissible in that hearing for any purpose. The parties further agree that none of the negotiations related to this Stipulation are admissible for any purpose.

10. The parties agree that oral argument before this Court is not necessary in light of the record, the nature of the charges, the contents of this Stipulation, and the attached Findings and Recommendation of Discipline. As previously noted, Judge Kautz waives her right to further hearings if they are accepted.

FINDINGS AND RECOMMENDATION OF DISCIPLINE

The Florida Judicial Qualifications Commission (the “JQC”) served a Notice of Investigation on Circuit Judge Sandy K. Kautz, Fifth Circuit, pursuant to [rjule 6(b) of the Florida Judicial Qualification^] Commission Rules.

The Investigative Panel of the Commission has now entered into a Stipulation with Judge Kautz in which Judge Kautz admits that her conduct, in appearing on behalf of her sister at her sister’s first appearance after an arrest was inappropriate. This conduct violated [cjanons 1, 2A, 2B, and 5G of the Code of Judicial Conduct, as set forth in the Stipulation submitted herewith.

Judge Kautz also admits that in presiding over certain types of cases involving juveniles and those seeking injunctions, she has, on occasion, not comported herself in accordance with the requisite patience, dignity and courtesy that is expected] of her judicial office. She further admits that she did not avail herself of the support and assistance offered by her colleagues. This conduct violated [c]anon 3B(4).

Judge Kautz has admitted the foregoing, accepts full responsibility, and acknowledges that such conduct should not have occurred. Judge Kautz now recognizes that this understanding was incorrect and has undertaken steps to prevent their reoccurrence.

The Judicial Qualifications Commission has concluded that while the judge’s conduct was misguided, it was not ill intentioned. Accordingly, the Commission therefore finds and recommends that in the interests of justice, the public welfare and sound [judicial] administration will be well served by a public reprimand of Judge Kautz.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.


author: CANADY, J.

text:
    STATE of Florida, Petitioner, v. Frank A. MOSLEY, Respondent.
    No. SC13-704.
    Supreme Court of Florida.
    Oct. 16, 2014.
    Pamela Jo Bondi, Attorney General, and Trisha .Meggs Pate, Assistant Attorney General, and Donna Antoinette Gerace, Assistant Attorney General, Tallahassee, FL, for Petitioner.
    Nancy Ann Daniels, Public. Defender, and Glen Phillip Gifford, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Respondent.
   CANADY, J.

In this case we consider whether consecutive sentences may be imposed for prison releasee reoffender (PRR) offenses that were committed during a single criminal episode. We have for review the decision of the First District Court of Appeal in Mosley v. State, 112 So.3d 538, 539 (Fla. 1st DCA 2013), which held that “PRR sentences may not be ordered to run consecutively when the crimes were committed during a single criminal episode.” The First District’s decision expressly and directly conflicts with Young v. State, 37 So.3d 389, 391 (Fla. 5th. DCA 2010), which reached the opposite conclusion. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

Based on the statutory text and our caselaw, we conclude that a trial court may order PRR sentences to run consecutively for crimes committed during a single criminal episode. Accordingly, we quash the decision of the First District.

I.

Following a jury trial, Frank Andre Mosley was convicted of: (1) lewd and lascivious molestation of a person older than twelve but younger than sixteen by an offender over the age of eighteen under section 800.04(5)(c)2., Florida Statutes (2006); and (2) aggravated stalking of a minor under sixteen years of age under section 784.048(5), Florida Statutes (2006).

The evidence produced at trial showed that on April 1, 2007, Mosley, then forty-seven years old, squeezed the victim’s buttocks while they were swimming. At that time, the victim was thirteen years old. Mosley first met the victim a few days before he molested her, and starting on April 1, he repeatedly approached her at her home and around the community. The victim reported Mosley to law enforcement on April 4, after he arrived at her home at approximately 6 a.m. that day and dropped off a letter for her. Mosley was arrested later that day while he was parked near the victim’s home.

Mosley was sentenced as a PRR to fifteen years of imprisonment on the lewd and lascivious molestation count and five years of imprisonment on the aggravated stalking count, with the sentences to run consecutively. Subsequently, Mosley filed a motion to correct a sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2). Mosley argued that his consecutive PRR sentences were illegal because his convictions for lewd and lascivious molestation and aggravated stalking arose from a single criminal episode.

On March 19, 2012, the trial court denied Mosley’s motion. State v. Mosley, No. 07-448-CF (Fla. 1st Cir. Ct. Order filed Mar. 19, 2012) (Circuit Court Order). The trial court concluded that Mosley’s convictions were the result of separate criminal episodes because “[a]lthough the molestation offense was alleged to have occurred on the same day and place as the stalking incident of April 1, subsequent incidents comprising the stalking offense occurred on different days at different locations and involved different conduct than the molestation offense.” Id. at 2. The trial court went on to conclude that even if Mosley’s convictions arose from a single criminal episode, he could still receive consecutive PRR sentences under Reeves v. State, 957 So.2d 625 (Fla.2007), and Young.

Circuit Court Order at 3. Mosley appealed his convictions and sentences to the First District Court of Appeal.

The First District agreed with Mosley’s argument that he could not receive consecutive PRR sentences. Mosley, 112 So.3d at 539. Without explanation, the First District concluded that Mosley’s convictions arose from a single criminal episode. Id. The court then held that “PRR sentences may not be ordered to run consecutively when the crimes were committed during a single criminal episode.” Id. As a result, the First District affirmed in part, reversed in part, and remanded Mosley’s case for resentencing. Id.

The State petitioned this Court for review, alleging express and direct conflict with Young. In Young, the Fifth District rejected Young’s claim on appeal “that the trial court erred in imposing consecutive [PRR] sentences on his five aggravated assault convictions because all of the crimes occurred during the course of a single criminal episode.” Young, 37 So.3d at 389. The Fifth District adopted the trial court’s reasoning that:

Based upon the Supreme Court’s decision in Reeves, the cases cited by defendant, all of which rely upon Hale[ v. State, 630 So.2d 521 (Fla.1993),] as their foundational authority, are called into question. Given the holding in Reeves and the stated intent of the PRR statute to punish eligible offenders to the fullest extent of the law, the court can find no reasonable interpretation of the PRR statute that would prohibit consecutive PRR sentences but permit the imposition of consecutive PRR and criminal punishment code sentences as approved in Reeves.

Id. at 391.

II.

On review, the State argues that based on Reeves, a trial court may sentence a defendant to consecutive PRR sentences for crimes committed during a single criminal episode. Conversely, Mosley contends that this Court should approve the First District’s decision because a trial court cannot sentence a defendant to consecutive PRR sentences for crimes committed during a single criminal episode. Mosley’s argument relies on the United States Supreme Court’s decision in Alleyne v. United States, — U.S.—, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013), which held that any fact that increases the mandatory minimum sentence for a crime is an “element” that must be submitted to the jury. Based on Alleyne, Mosley contends that Reeves rests on a questionable finding of a legislative preference for consecutive PRR sentences and an insupportable distinction between sentencing provisions that require minimum sentences and those that increase maximum sentences. According to Mosley, PRR sentences increase the maximum sentence because a defendant will serve a longer sentence than he would if he were eligible for gain time under section 944.275, Florida Statutes (2006).

In the analysis that follows, we explain why we reject Mosley’s argument and adopt the reasoning articulated in Young.

III.

Whether a trial court may impose consecutive PRR sentences for crimes committed during a single criminal episode presents a question of statutory interpretation, which is subject to de novo review. See Reeves, 957 So.2d at 629. When interpreting the PRR statute in Reeves, this Court stated:

“The cardinal rule of statutory construction is ‘that a statute should be construed so as to ascertain and give effect to the intention of the Legislature as expressed in the statute.’ ” City of Tampa v. Thatcher Glass Corp., 445 So.2d 578, 579 (Fla.1984) (quoting Deltona Corp. v. Fla. Pub. Serv. Comm’n, 220 So.2d 905, 907 (Fla.1969)). “It is a fundamental rule of construction that statutory language cannot be construed so as to render it potentially meaningless.” Ellis v. State, 622 So.2d 991, 1001 (Fla.1993) (citing Snively Groves, Inc. v. Mayo, 135 Fla. 300, 184 So. 839 (1938)). “[Statutory enactments are to be interpreted so as to accomplish rather than defeat their purpose.” Lewis v. Mosley, 204 So.2d 197, 201 (Fla.1967) (citing 6 Fla. Jur., Constitutional Law § 14 (1956); Owens v. Fosdick, 153 Fla. 17, 13 So.2d 700 (1943)).

957 So.2d at 629.

Section 775.082(9), Florida Statutes (2006), states in pertinent part:

(9)(a)l. “Prison releasee reoffender” means any defendant who commits, or attempts to commit:
1. Aggravated stalking;
r. Any felony violation of s. 790.07, s. 800.04, s. 827.03, or s. 827.071; within 3 years after being released from a state correctional facility operated by the Department of Corrections or a private vendor or within 3 years after being released from a correctional institution of another state, the District of Columbia, the United States, any possession or territory of the United States, or any foreign jurisdiction, following incarceration for an offense for which the sentence is punishable by more than 1 year in this state.
3. If the state attorney determines that a defendant is a prison releasee reoffender as defined in subparagraph 1., the state attorney may seek to have the court sentence the defendant as a prison releasee reoffender. Upon proof from the state attorney that establishes by a preponderance of the evidence that a defendant is a prison releasee reoffen-der as defined in this section, such defendant is not eligible for sentencing under the sentencing guidelines and must be sentenced as follows:
e. For a felony of the second degree, by a term of imprisonment of 15 years; and
d. For a felony of the third degree, by a term of imprisonment of 5 years.
(b) A person sentenced under paragraph (a) shall be released only by expiration of sentence and shall not be eligible for parole, control release, or any form of early release. Any person sentenced under paragraph (a) must serve 100 percent of the court-imposed sentence.
(c) Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to s. 775.084 or any other provision of law.
(d)l. It is the intent of the Legislature that offenders previously released from prison who meet the criteria in paragraph (a) be punished to the fullest extent of the law and as provided in this subsection, unless the state attorney determines that extenuating circumstances exist which preclude the just prosecution of the offender, including whether the victim recommends that the offender not be sentenced as provided in this subsection.

In Reeves, this Court concluded that “[t]he text of the PRR statute expresses the intent or purpose that a PRR sentence not serve as the maximum sentence for all crimes arising out of the same criminal episode.” 957 So.2d at 629. The Court explained:

Paragraph (b) indicates that section 775.082(9) dictates a minimum sentence or sentencing floor, not a statutory maximum .... Moreover, nothing in the PRR statute can be construed as restricting a trial judge’s general discretion to impose sentences consecutively or concurrently. See § 775.021(4), Fla. Stat. (2006) (“Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively.”).

Reeves, 957 So.2d at 630. As a result, this Court held that “the plain meaning of the PRR statute is that it provides a minimum sentence and that, given its allowance for imposition of the greatest sentence allowed by law, trial judges have the discretion to impose a [Criminal Punishment Code] sentence consecutively to a PRR sentence.” Id.

While addressing the conflict in Reeves, this Court disapproved the Second District’s decision in Rodriguez v. State, 883 So.2d 908 (Fla. 2d DCA 2004), which concluded that a trial court could not impose a Criminal Punishment Code sentence consecutive to a PRR sentence for crimes committed as part of the same criminal episode. Reeves, 957 So.2d at 632. This Court disagreed with the Second District’s reliance on Daniels v. State, 595 So.2d 952 (Fla.1992), and Hale v. State, 630 So.2d 521 (Fla.1993), which both precluded consecutive sentencing for habitual violent felony offender offenses committed in a single criminal episode. Reeves, 957 So.2d at 633. This Court explained:

Daniels and Hale were decided under the sentencing guidelines, not the Criminal Punishment Code. More significantly, in both Daniels and Hale, the habitual violent felony offender portion of the violent career criminal statute was at issue, not the PRR statute. Therefore, those two cases have little bearing on the interpretation of the PRR statute.

Id.

More recently, in Cotto v. State, 139 So.3d 283 (Fla.2014), this Court addressed whether a habitual offender sentence may be imposed consecutively to a PRR sentence. We held “that Hale does not prohibit a trial court from imposing a PRR sentence consecutive to a habitual offender sentence.” Id. at 290. We concluded that

this Court has never applied Hale to the PRR statute. The PRR statute specifically states that the legislative intent is to punish those eligible for PRR sentencing to the fullest extent of the law. See § 775.082(9)(d)l., Fla. Stat. (2002). This express statement of intent demonstrates that the discretion of trial courts to impose consecutive sentences is not in any way limited by the PRR statute.

Id. at 289.

Here, Mosley held that trial courts cannot impose consecutive PRR sentences on defendants when the sentences arise from crimes committed during a single criminal episode. 112 So.3d at 539. Mosley relied on First District caselaw based on Hale. See id. (citing Preston v. State, 134 So.3d 992 (Fla. 1st DCA 2012); Robinson v. State, 829 So.2d 984 (Fla. 1st DCA 2002)).

However, in Reeves and Cotto, this Court concluded that Hale is inapplicable to cases involving section 775.082(9) because Hale addressed a different statute.

Conversely, Young held that a trial court may impose consecutive PRR sentences on a defendant for crimes committed during a single criminal episode. 37 So.3d at 389. Young relied on this Court’s decision in Reeves. See id. at 390-91. Young pointed out that earlier district court cases holding that defendants could not receive consecutive PRR sentences when the crimes arose out of a single criminal episode were called into question by Reeves. See id. (discussing Boyd v. State, 988 So.2d 1242 (Fla. 2d DCA 2008); Gonzalez v. State, 876 So.2d 658 (Fla. 3d DCA 2004); Williams v. State, 804 So.2d 572 (Fla. 5th DCA 2002); and Philmore v. State, 760 So.2d 239 (Fla. 4th DCA 2000)). Young explained that the prior district court decisions holding that defendants could not receive consecutive PRR sentences for crimes committed during the same criminal episode were all “based upon Hale ... and its progeny.” 37 So.3d at 390. Young pointed out the statement in Reeves “that Hale had little bearing on the interpretation of the PRR statute.” Id.

Young correctly concluded that a trial court may impose consecutive PRR sentences on a defendant for crimes committed during a single criminal episode. And Mosley erroneously relied on caselaw based on Hale and its progeny to reach the opposite conclusion. As this Court concluded in Reeves, “nothing in the PRR statute can be construed as restricting a trial judge’s general discretion to impose sentences consecutively or concurrently.” 957 So.2d at 630. Further, Cotto recently pointed out that “this Court has never applied Hale to the PRR statute.” Cotto, 139 So.3d at 289. Therefore, the trial court correctly denied Mosley’s motion filed under rule 3.800(b)(2) because the trial court’s imposition of consecutive PRR sentences for Mosley’s lewd and lascivious molestation and aggravated stalking convictions was within its discretion.

Mosley’s argument that “the distinction between sentence enhancements and mandatory minimums is ephemeral” based on his reliance on Alleyne is misplaced. Answer Brief of Respondent at 8-9, State v. Mosley, No. SC13-704 (Mar. 28, 2014). Alleyne and the instant case address different issues. Alleyne addressed the issue of whether “judicial factfinding that increases the mandatory minimum sentence for a crime is permissible under the Sixth Amendment.” 133 S.Ct. at 2155. The trial judge in Alleyne found an essential element of the defendant’s crime — brandishing a firearm — to be proven by a preponderance of the evidence instead of the jury finding the element proven beyond a reasonable doubt. Id. at 2156. However, the instant case does not present a challenge to judicial fact-finding; instead, Mosley challenges the trial court’s ability to impose consecutive PRR sentences for crimes committed during a single criminal episode. This Court has concluded that the PRR statute does not increase the maximum allowable sentence, but instead provides “for •maximum sentencing within the sentencing statute.” Cotto, 139 So.3d at 290.

IV.

Based on the foregoing, we quash the First District’s decision in Mosley and remand for proceedings consistent with this opinion. We approve the decision of the Fifth District in Young.

It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE, POLSTON, and PERRY, JJ., concur.

LEWIS, J., concurs in result.

      . The State does not challenge the First District’s reversal of the trial court’s finding that Mosley’s crimes consisted of separate criminal episodes. As a result, we do not address whether the First District correctly concluded that Mosley’s crimes occurred during a single criminal episode.


text:
    Joao Teixeira NASCIMIENTO, et al., Appellants, v. MARTIN C. BOIRE, P.A., et al., Appellees.
    No. 3D13-1641.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2014.
    Rehearing Denied Oct. 23, 2014.
    Dominguez & Associates, P.A., and Cesar J. Dominguez; Edwards & Clarkson, P.A., and Theresa B. Edwards and June M. Clarkson, Fort Lauderdale, for appellants.
    Stabinski & Funt, P.A., and Mark D. Press; GrayRobinson, P.A., and Richard E. Mitchell and Sara N. Huff, Orlando; Marlene Quintana; Jeffrey T. Kuntz, Fort Lauderdale, for appellees.
    Before LAGOA, SALTER and LOGUE, JJ.
   PER CURIAM.

Affirmed. See § 47.122, Fla. Stat. (2018) (“For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.”); see also Siegel v. Siegel, 575 So.2d 1267, 1272 (Fla.1991) (quoting Bedingfield v. Bedingfield, 417 So.2d 1047, 1050 (Fla. 4th DCA 1982)) (“In general, where courts within one sovereignty have concurrent jurisdiction, the court which first exercises its jurisdiction acquires exclusive jurisdiction to proceed with that case. This is called the ‘principle of priority.’ ”); Hirsch v. DiGaetano, 732 So.2d 1177, 1178 (Fla. 5th DCA 1999) (“The principle of priority rests not only upon comity between courts of concurrent jurisdiction, but also acts to prevent unnecessary litigation and a multiplicity of suits.”).


author: ROTHENBERG, J.

text:
    AVENTURA MANAGEMENT, LLC, Appellant, v. SPIAGGIA OCEAN CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D13-1437.
    District Court of Appeal of Florida, Third District.
    March 5, 2014.

      Brett Feinstein, Miami Beach, for appellant.
    Cole, Scott & Kissane, P.A., and Scott A. Cole; Association Law Group, and Ramon C. Palacio, Miami Beach, and Benjamin Solomon, North Bay Village; Seipp, Flick & Hosley, LLP, and Douglas H. Stein, Miami, for appellee.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   ROTHENBERG, J.

This case returns to us on precisely the same issue decided one year ago in Aventura Management, LLC v. Spiaggia Ocean Condominium Ass’n, 105 So.3d 637 (Fla.3d DCA 2013) (hereinafter referred to as “Spiaggia I ”). Despite the excellent oral argument by Benjamin Solomon before this Court, the trial court misinterpreted the majority opinion in Spiaggia I, so we again reverse and instruct the trial court to enter judgment in favor of Aventura Management. We write specifically to provide clarity to our holding in Spiaggia I.

The facts of this case are becoming all too familiar, as the housing market’s dip and subsequent rebound have spurred a bevy of factually similar litigation. Spiag-gia Ocean Condominium Association, Inc. (“Spiaggia” or “the Association”) is the condominium association that manages the condominium unit (“the Unit”) that is the subject of this litigation. The Unit was purchased by an individual (“the original owner”) who obtained a loan from the Bank of New York (“the Bank”) with a promissory note secured by a mortgage on the Unit. Additionally, the original owner was responsible for all assessments charged by the Association for the upkeep and maintenance of the condominium.

Shortly after purchasing the Unit, the original owner became delinquent on both his condominium association assessments and mortgage payments. This delinquency gave both the Association and the Bank the right to foreclose on the property— with the Bank’s superior rights stemming from the note and mortgage, and the Association’s secondary rights statutorily provided in section 718.116, Florida Statutes (2009). Spiaggia initiated a foreclosure action against the original owner for unpaid assessments, received a default final judgment of foreclosure in July 2009, and scheduled a foreclosure sale for December 2009. In September 2009, • prior to the scheduled foreclosure sale, the Bank initiated foreclosure proceedings against the original owner and named Spiaggia as a defendant.

Spiaggia placed the sole bid at its foreclosure sale and took title to the Unit subject to the first mortgage held by the Bank. Following the foreclosure sale, Spiaggia, as the Unit’s new owner, rented the Unit to a third party and collected rent from that tenant for the full period in which it held title to the Unit. The proceeds from the rent payments were used to pay off the assessment fees as they became due. Subsequently, the Bank obtained a final judgment of foreclosure and held its own foreclosure sale of the Unit. Aventura Management, LLC (“Aventura Management” or “the Appellant”) purchased the Unit at the Bank’s foreclosure sale in September 2010.

After Aventura Management acquired the Unit, Spiaggia attempted to recover from Aventura Management the past-due assessments, late fees, and interest that had accrued dating back to the original owner’s default. Spiaggia argued that Aventura Management was liable under section 718.116(l)(a), which provides in pertinent part:

A unit owner, regardless of how his or her title has been acquired, including by purchase at a foreclosure sale or by deed in lieu of foreclosure, is liable for all assessments which come due while he or she is the unit owner. Additionally, a unit owner is jointly and severally liable with the previous owner for all unpaid assessments that came due up to the time of transfer of title,

(emphasis added). The trial court interpreted section 718.116- as providing that Aventura Management, as the current owner, was jointly and severally liable with the original owner, but not with Spiaggia, for the past-due assessments and ordered Aventura Management to pay the full amount of the unpaid assessments.

On appeal, this Court reversed the trial court’s order in a split decision that included a vigorous dissent from Judge Shepherd. The majority opinion found that Spiaggia’s lien against the original owner survived its foreclosure action and that Spiaggia was not exempted from the statutory definition of “unit owner” by mere virtue of its duality as the creditor-association and debtor-owner. The majority opinion in Spiaggia I, however, is somewhat ambiguous as to whether Aventura Management, the current owner, is jointly and severally liable for the full amount of past-due assessments along with both the original owner and Spiaggia, or whether Aventura Management could only be held liable for any unpaid assessments of the immediate-prior owner (Spiaggia), meaning that it could not be held liable for the unpaid assessments of the original owner.

After this Court’s reversal, the trial court entered an order ruling that all three parties were jointly and severally liable for the unpaid assessments, but that Spiaggia as the creditor could collect in full from any of the three parties it chose. The trial court ruled that Aventura Management was required to pay the full amount of unpaid assessments and that its only remedy was to seek contribution from the prior owners: Spiaggia and the original owner.

A full reading of the majority opinion and the dissent in Spiaggia I, along with subsequent cases from this Court interpreting the opinion, reflects that Spiaggia I held Aventura Management could only be held liable for the unpaid assessments of the immediate-prior owner, Spiaggia. While the majority could have been clearer that Aventura Management bore no liability, it specifically emphasized the singular definite article “the” in the statute, Spiag-gia I, 105 So.3d at 638, and noted that Spiaggia would have available to it the remedy of pursuing its lien against the original owner. Id. at 639 n. 4.

Additionally, a recent decision from this Court has provided clarity to this issue. In Park West Professional Center Condominium, Ass’n v. Londono, 130 So.3d 711, 712 (Fla. 3d DCA 2013), on similar facts and with the parties disputing the interpretation of Spiaggia I ’s majority opinion, this Court stated:

Both [parties] are incorrect in their interpretation of Spiaggia. The Spiaggia court held that “the prior owner is jointly and severally liable with the current owner for all past due assessments up to the time of transfer of title.” On the facts of this case, this means that [the condominium association] is jointly and severally responsible with [the original owner] back to the time when title to the subject property was transferred to [the original owner], and [the final purchaser] is responsible for unpaid assessments back to the time when [the condominium association] took title to the subject property.

Applying the same reasoning of Park West to the facts of this case, Aventura Management could only be responsible for unpaid assessments dating back to when Spiaggia took title at its own foreclosure sale; it cannot be held liable for the unpaid assessments of the original owner. The trial court therefore erred in holding Aventura Management jointly and severally liable with the prior two owners. We note, just as in Spiaggia /, that Spiaggia is free to pursue a direct action against the original owner for the unpaid fees.

Reversed.


author: ROBERTS, J. WOLF, J., MAKAR, J.,

text:
    Lennart S. KOO, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4866.
    District Court of Appeal of Florida, First District.
    Sept. 2, 2014.
    Rehearing Denied Nov. 7, 2014.

      D. Gray Thomas of the Law Office of D. Gray Thomas, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General; Wesley Cross Paxson and Jay Kubica, Assistant Attorneys General, Tallahassee, for Appellee.
   ROBERTS, J.

The Appellant appeals his conviction for burglary with a firearm, arguing that the judgment below should be reversed because the trial court denied a motion for new trial without allowing an evidentiary hearing to determine the credibility and materiality of an unsworn post-trial letter authored by the alleged victim. We affirm.

The facts as gleaned from the testimony ■ of the Appellant and the victim are as follows. The Appellant and the victim had a close relationship, which extended to celebrating holidays together and living together. The victim testified that the Appellant was not allowed to enter the storage unit without him, and the Appellant took the guns without permission. The Appellant told him he had sold the guns so the victim gave him $300 to buy the guns back. The Appellant eventually returned the AK-47 and the .44 Magnum revolver.

The Appellant testified that during November 2011, the victim became increasingly violent, and he became afraid of the victim. He further testified that on November 15, 2011, the Appellant broke into the victim’s storage unit with the intention of taking the victim’s guns to ensure that the victim would not use them on himself or others. The Appellant took a BB gun, an AK-47, a .22 caliber rifle, and a .44 Magnum revolver from the storage unit. The following day, the Appellant told the victim what he had done, and they agreed to meet so the Appellant could return the guns. The Appellant returned the .22 caliber rifle, the AK-47, and the .44 Magnum revolver.

The Appellant was found guilty. A month later, the victim wrote a letter to the trial court stating that, he “suddenly remembered that [the Appellant’s] intent may have been motivated by- something more benign than what has transpired during the trial,” and “in this instance, his intentions may have been much more benign than it appears.” He also wrote, “The only explanation for [the Appellant] to remove the guns from the storage room may have been his desire to protect me from my own self.”

The Appellant then filed a motion for new trial and argued that the letter qualified as newly discovered evidence, which required an evidentiary hearing. After hearing arguments from both parties at a hearing on the motion for new trial, the trial court denied the motion for new trial, holding that the letter did not qualify as newly discovered evidence because nothing in the letter was a recantation of the victim’s trial testimony and there was nothing in the letter that was unknown to the Appellant at the time of the trial.

The denial of a motion for new trial is reviewed for abuse of discretion. Hubbard v. State, 912 So.2d 629, 632 (Fla. 1st DCA 2005).

The Florida Supreme Court has established a two-prong standard to use when a newly discovered evidence claim is raised. Aguirre-Jarquin v. State, 9 So.3d 593, 603 (Fla.2009) (citing to Jones v. State, 709 So.2d 512, 521 (Fla.1998)). First, the evidence must be newly discovered. Aguirre-Jarquin, 9 So.3d at 603. Second, the evidence must be material. Id. To be material, the evidence must “be of such a nature that it would probably produce an acquittal on retrial.” Id. (quoting Jones, 709 So.2d at 521).

Post-trial recantations by state witnesses are a type of newly discovered evidence. Murrah v. State, 773 So.2d 622, 624 (Fla. 1st DCA 2000). To qualify as newly discovered evidence, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Jones, 709 So.2d at 521. Here, any evidence in the victim’s letter was known to the parties, and as such, it did not qualify as newly discovered evidence.

Additionally, the evidence in the letter was not material. When determining whether the evidence would likely result in an acquittal, the court looks at whether the evidence goes to the merit of the case or whether it constitutes impeachment evidence. Murrah, 773 So.2d at 622. Here, the letter constitutes impeachment evidence because it could have been used to call into question the credibility of the victim’s testimony. See § 90.608(1), Fla. Stat. (2012) (a witness may be impeached by introducing statements of the witness that are inconsistent with his or her present testimony). To probably produce an acquittal, the letter would have to contain evidence that disproved one of the elements of burglary with a firearm. To prove the crime of burglary, the State had to show (1) the Appellant entered a structure owned by the victim; (2) at the time of entering the structure, the Appellant had intent to commit an offense; and (3) the Appellant was not permitted to enter the structure. § 812.02(l)(b), Fla. Stat. (2012). The letter did not recant any of the victim’s testimony that established the elements of the crime. Because this letter is not a recantation, it cannot qualify as newly discovered evidence and, as such, the trial court did not abuse its discretion.

WOLF, J., concurs with opinion.

MAKAR, J., dissents with opinion.

WOLF, J.,

concurring.

As stated by Judge Roberts, the un-sworn letter by the victim did not involve a recantation. In addition, the letter does not serve to nullify any element of the crime. There is no indication in the letter that the victim ever gave appellant permission to go into the storage unit and remove firearms. At the most, the unsworn letter constituted mere speculation as to appellant’s motives, evidence which might be admissible at a sentencing hearing, but not at trial.

While appellant may argue the letter was evidence supporting his necessity defense, this defense fails as a matter of law. There is no evidence at trial or in the letter that the danger was imminent or that appellant did not have other reasonable options other than to break into the victim’s storage unit. See Butler v. State, 14 So.3d 269, 270-71 (Fla. 1st DCA 2009) (quoting Williams v. State, 937 So.2d 771, 772 (Fla. 1st DCA 2006) (explaining that to be entitled to a necessity instruction, appellant must show “(1) the defendant reasonably believed that his action was necessary to avoid an imminent threat of death or serious bodily injury to himself or others; (2) the defendant did not intentionally or recklessly place himself in a situation in which it would be probable that he would be forced to choose the criminal conduct; (3) there existed no other adequate means to avoid the threatened harm except the criminal conduct; (4) the harm sought to be avoided was more egregious than the criminal conduct perpetrated to avoid it; and (5) the defendant ceased the criminal conduct as soon as the necessity or apparent necessity for it ended.”) (emphasis added)).

The trial court did not err in denying the motion for new trial without an eviden-tiary hearing.

MAKAR, J.,

dissenting.

Lennart S. Koo appeals from his burglary conviction arguing, in part, that the trial judge erred by not holding an evidentiary hearing despite having received a letter from the alleged victim, Dr. Mohamed Sa-leh, who had testified as the key witness for the State. Because Dr. Saleh’s letter raised sufficient grounds to warrant an evidentiary hearing under the circumstances, it was error to deny Koo’s motion seeking one.

Koo was convicted of one count of removing firearms from a storage unit owned by Dr. Saleh, resulting in a ten-year minimum mandatory sentence. Dr. Saleh and Koo had a close personal relationship, one akin to family members (Dr. Saleh said he loved Koo “like my own brother.”). Likewise, Koo characterized Dr. Saleh as a “boss and friend” for whom he’d worked almost full-time for the past four years. Koo, who was born in Amsterdam, Netherlands, and whose primary language is Dutch, was introduced to Dr. Saleh by Koo’s father (whom Dr. Saleh treated as a family member and wished “was my brother.”).

Koo lived in Dr. Saleh’s home while doing a wide range of jobs such as working in the physician’s office; ehauffeuring the physician around town in either “his limousine or one of his trucks” as needed; constructing a home theater, swing set, and other similar tasks, resulting in workdays of between 10 and 15 hours. Koo also regularly babysat Dr. Saleh’s three daughters. He was essentially the physician’s personal assistant (“What he said I did.”). Koo testified that he worked at and had keys to Dr. Saleh’s office, his houses, his beach house, the storage unit, and his cars (“He loses everything so that’s why I had all the keys.”).

At trial, Dr. Saleh testified that on November 14, 2011, he took Koo with him to put guns in the storage unit, where he also stored clothing. He testified that Koo did not have keys to the physician’s properties, and that Koo took firearms from the storage unit soon thereafter. He received a call the next day from Koo’s mother about the firearms, which Koo and his mother returned the following day.

Koo’s defense was twofold. First, Dr. Saleh had effectively given him consent to access the storage unit. Because of their close relationship, Koo testified he was Dr. Saleh’s “right hand man” to whom the physician had entrusted the keys to his house and other properties (including the storage unit) as well as his personal vehicles. Koo said he was never told that Dr. Saleh had to be present when Koo went to these properties. Koo believed he had the authority to enter the storage unit.

Second, Koo asserted a necessity defense, claiming it was necessary to keep the firearms out of Dr. Saleh’s hands because he had threatened to kill Koo; Dr. Saleh had also threatened to harm his own wife. Koo testified that in November 2011, Dr. Saleh — who was going through a divorce and custody case — “became increasingly violent and threatening” going so far as to threaten Koo at knifepoint and another employee at gunpoint. Around this same time, on November 14, 2011, Koo went to the storage unit with Dr. Saleh, who had forgotten his key. They opened the lock with wire cutters, and — after Dr. Saleh told Koo to take some dresses for his girlfriend — Koo put a new lock on the unit. According to Koo, Dr. Saleh’s behavior soon became very erratic and threatening; the physician kicked him out of the house. Dr. Saleh told Koo, “If I ever see you around here, I will kill you, and I will kill your family.” Koo was terrified that Dr. Saleh was going to shoot him, so he went to the storage unit to get and safeguard the guns. Koo’s intention was to keep himself safe until Dr. Saleh calmed down. Because Koo did not have the key with him, he broke the lock off. He took the guns to a friend’s business, but after talking with his mom, decided to return them to Dr. Saleh. Koo says that Dr. Saleh threatened to report him to the police unless Koo moved back in with him and completed work on a website (besides a handyman, Koo is also a computer programmer). A week or so later, Dr. Saleh spent Thanksgiving with Koo and Koo’s parents at their home (Dr. Saleh says the gun issue was not discussed, the Koos saying he “changed his mind” and that the matter had been resolved at the Thanksgiving dinner).

On July 25, 2012, the jury found Koo guilty of burglary with the additional sentencing factor that Koo was in actual possession of a firearm during the commission of the burglary, triggering a mandatory ten-year sentence. The jury sent a note to the trial judge requesting leniency in Koo’s sentencing. The note said: “Judge Daniel, we followed the letter of the law and that’s what we did, but we would like to ask for leniency. We are not trying to do your job, but you said we can ask you anything. This is what we are asking.”

Koo moved for a new trial, but soon filed an amended motion for new trial or hearing based on a post-verdict letter sent by Dr. Saleh to the trial judge. In his letter, Dr. Saleh contradicted his trial testimony, saying that he had allowed Koo to have “keys to every dwelling.” He said he had “suddenly remembered” that Koo’s intent in removing the firearms “may have been motivated by something more benign than what has transpired at trial.” He said Koo’s removal of the firearms — when Koo could have taken far more valuable items from the storage unit or the physician’s home — was done to protect Dr. Saleh from doing “something that I might regret.” The physician said that the “only explanation” for Koo’s actions was “to protect me from my own self.” He noted that Koo and Koo’s parents were like family, and that he had needed Koo to keep the physician’s wife from “sending me over the edge.”

Following a conviction, a new trial may be granted if “[n]ew and material evidence, which, if introduced at the trial would probably have changed the verdict or finding of the court, and which the defendant could not with reasonable diligence have discovered and produced at the trial, has been discovered.” Boyd v. State, 910 So.2d 167, 178 (Fla.2005); Fla. R. Crim. P. 3.600(a)(3). “Recantation evidence is considered to be a type of newly discovered evidence, and therefore, the same test applies to recantation evidence as to other types of newly discovered evidence.” Stephens v. State, 829 So.2d 945, 945-46 (Fla. 1st DCA 2002). In Stephens, one of the •state’s witnesses recanted her testimony, but the trial court denied a postconviction motion seeking a new trial without an evi-dentiary hearing. Id. at 945. This Court reversed, explaining that an evidentiary hearing is necessary unless the recantation (which was in the form of an affidavit) is “inherently incredible or obviously immaterial to the verdict.” Id. at 946. The determinations to be made after such a hearing are whether the witness is now testifying truthfully, and if so, whether the new testimony would probably produce an acquittal if used in a retrial. Id.) see also Glendening v. State, 604 So.2d 839, 840-41 (Fla. 2d DCA 1992).

Applying Stephens, a hearing was required unless Dr. Saleh’s letter was “inherently incredible or obviously immaterial to the verdict.” It was neither. On the record presented, one could glibly conclude — as the trial judge (perhaps justifiably) seems to have done — that anything Dr. Saleh says is “inherently incredible” due to his volatile and vacillating prevarications (“I don’t place a lot of credibility in Dr. Saleh, quite candidly.”). This was reason enough to have held a hearing; if a key witness has serious credibility issues, that’s strong evidence that he probably lied at trial, making it far better to err on the side of caution by holding a hearing to ferret out which version of reality is to be credited. Because serious doubt exists about Dr. Saleh’s credibility, the integrity of Koo’s conviction is seriously compromised, making a hearing that much more important.

The jury could not have convicted Koo without Dr. Saleh’s testimony, which it apparently found credible, at least as to some material respects now shrouded in doubt. Likewise, Dr. Saleh’s recantation letter may be credible, at least as to the portions related to Koo’s consent and necessity defenses, which are material to the verdict. Under these circumstances, when the State’s star witness recants a material portion of his testimony that goes to two key defenses in an exceptionally close case in which the jury expressed reservations (if not remorse) about its verdict — beseeching the trial judge to be lenient on the defendant — it was an abuse of discretion not to at least hold a hearing on the matter. See Hubbard v. State, 912 So.2d 629, 632 (Fla. 1st DCA 2005) (denial of a motion for new trial reviewed for abuse of discretion). Koo’s request for a hearing is an exceptionally modest one given his liberty interest is at stake; his freedom for the next ten years has been taken away based on the disavowed testimony of Dr. Saleh, a person that even the trial judge had difficulty believing. A remand for an evidentiary hearing under Stephens is necessitated; whether a new trial is warranted would depend upon the results of that hearing. Koo is entitled to this minimal degree of due process before the State can take away a decade of his life.

      . Dr. Saleh testified that Koo said he had sold the weapons, and that he gave Koo $300 to buy them back.


author: EMAS, J.

text:
    Sean Alex MORALES, Appellant, v. HIALEAH HOUSING AUTHORITY etc., Appellee.
    No. 3D13-1786.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 2014.
    Lowy & Cook and Leah R. Shochat, for appellant.
    Citrin & Walker; Ogletree, Eakins, Nash, Smoak & Stewart and William R. Radford, Miami, for appellee.
    Before SHEPHERD, C.J., and EMAS and FERNANDEZ, JJ.
   EMAS, J.

Upon our de novo review of the trial court’s entry of summary judgment in favor of appellee, and considering the facts and inferences in a light most favorable to the non-moving party, we conclude that genuine issues of material fact remain, precluding summary judgment. Rocamonde v. Marshalls of Ma, Inc., 56 So.3d 863, 864 (Fla. 3d DCA 2011). Because we hold that summary judgment was inappropriate given the existence of genuine issues of material fact, we need not, and do not, reach the merits of the other issues raised in this appeal. See Albelo v. Southern Bell, 682 So.2d 1126 (Fla. 4th DCA 1996).

Reversed and remanded for further proceedings consistent with this opinion.

      . Markowitz v. Helen Homes of Kendall Corp., 826 So.2d 256, 259 (Fla.2002).


author: OSTERHAUS, J. BENTON, J.,

text:
    Haines O’NEIL, individually and O’Neil Transportation Services, Inc., Appellant, v. WALTON COUNTY, a Political Subdivision of The State of Florida, Ebsco Gulf Coast Development, Inc., a Florida For-Profit Corporation, and A.E. Foster, Jr., Individually, Appellee.
    No. 1D13-4545.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2014.
    Rehearing Denied Nov. 7, 2014.

      Stephen A. Ecenia and Marsha E. Rule of Rutledge, Ecenia & Purnell, and Thomas G. Tomasello, Tallahassee for Appellant.
    W. Douglas Hall and Christine Davis Graves of Carlton Fields, P.A., Tallahassee, and Mark D. Davis of Andrews & Davis, Defuniak Springs, and Gary A. Vor-beck of Theriaque Vorbeck & Spain, Des-tín for Appellee.
   OSTERHAUS, J.

Appellants have challenged an order approving a 20-unit planned unit development (PUD) immediately seaward of their beach-view property at Inlet Beach in Walton County. Citing § 168.3215, Florida Statutes (2013), they assert that the order conflicts with Walton County’s comprehensive plan (Comp Plan) by approving new lots seaward of the coastal construction control line (CCCL); approving other construction (dwellings, roads, grading, drainage, etc.) on the primary dune within the Coastal Protection Zone (CPZ); and mis-locating the CPZ. Appellees moved for summary judgment, which the circuit court granted.

We now affirm because the 2013 order being challenged here did not materially alter the development, CCCL, or CPZ. Rather, an earlier development order from 2010, had already approved the developer’s first-step PUD application, including its site plan and the location of development relative to the CCCL and CPZ. The Board of County Commissioners (“County”) further found this earlier application “in compliance and consistent with” the Comp Plan. And nobody challenged it. See § 163.3215(3), Fla. Stat. (requiring consistency challenges to be filed “no later than 30 days following rendition”). Instead, Appellants filed this action after the County approved the follow-up, detailed plan in 2013. But because § 163.3215 is predicated upon showing a material alteration of property inconsistent with a Comp Plan, and here the County’s 2010 order had already approved the placement and relative location of the things that Appellants challenge, this challenge to the 2013 order fails to meet the requirements of § 163.3215.

I.

A. The Two Development Orders

In 2009, Appellees EBSCO Gulf Coast Development, Inc., and A.E. Foster, Jr., (collectively, “Developer”) set out to develop a 20-unit coastal residential community on Inlet Beach in Walton County. Walton County’s Land Development Code sets forth a two-step approval process for PUD projects: a concept plan phase and a detailed plan phase. Walton Cnty. Land Dev.Code § 2.06.02 (hereinafter “LDC”).

At the first step, the County specifically reviews a concept plan “for compliance with the goals, objectives and policies of the comprehensive plan and compatibility with the character of the surrounding area.” Id. A report is then made publically available at least one week in advance of a public hearing held by the Planning Commission. After the hearing, the Board of County Commissioners holds another public hearing in order to approve or deny the concept plan, or to approve it with conditions. Id. At the second step, “an applicant has the option to submit a Detailed PUD Plan for all or part of the development approved in the conceptual plan approval.” LDC § 2.06.02(B). If technical requirements are met, the Board issues another final order memorializing its approval of the detailed plan. LDC §§ 2.06.02(B), 10.02.01,10.02.03.

In this case, Developer submitted a “Concept Plan” with maps showing all twenty new parcels on the site plan, proposed dwellings, roads, driveways, landscape buffers, the CCCL, and the CPZ. After the requisite notice and a hearing, the Board of County Commissioners approved the Concept Plan, finding it to be “in compliance and consistent with both the [Comp Plan] and the LDC.” The County’s approval came with certain conditions, including requiring Developer to construct a turnaround and parking spaces, pay for construction of a public boardwalk, and re-pave a road after completing the. dune enhancement project called for by the Concept Plan. The County recorded the final order approving the Concept Plan on March 16, 2010.

In 2012, Developer followed-up by submitting a “Detailed Plan” that was also approved by the County. The 2013 Order approving the Detailed Plan noted that it had “previously approved ... and rendered a Final Order for the Lupin Beach Conceptual PUD Plan on March 16, 2010, which is hereby incorporated by reference.” Nothing in the Detailed Plan or 2013 Order indicated that the location of development relative to the CCCL, CPZ, or primary dune had been materially altered. Rather, each remained in the same place in relation to the other, as had been approved by the 2010 Order — lots remained seaward of the CCCL and the CPZ’s upland boundary line (as marked by the primary dune) remained seaward of the proposed construction of dwellings, roads, driveways, and other infrastructure.

B. The Litigation

After the Detailed Plan was approved in 2013, Appellants challenged the PUD under § 163.3215. The Complaint alleged that the 2013 Order conflicted with three of the Comp Plan’s environmental protection provisions:

Defendants propose to destroy significant primary dunes through grading, the construction of 20 dwelling units, the construction of access roads and utility corridors in the primary dunes, and the construction of a 610 foot long retaining wall and extensive associated excavation, grading, and associated infrastructure within the Lupin Beach PUD. The existing dune contours will be extensively altered and will be reduced by as much as 16 feet. * * *

The Project violates the [Comp] Plan and LDC because a portion of the proposed development is located within the coastal protection zone, whereas specific provisions of the Comp Plan and LDC] prohibit construction of dwellings within the [CPZ]_The CPZ, if properly located, would allow only very limited development on the lots proposed to be created ... and [preclude] the proposed development in that area contrary to what is permitted by the Development Order. * * *

According to the approved site plan, ... new parcels [will] be created entirely seaward of the CCCL on which dwellings are proposed.... The [lots] are being created in violation of the [Comp Plan’s] prohibition against creating new parcels entirely seaward of the CCCL.

(Emphasis added).

Developer moved for summary judgment. It argued that Appellants could not attack matters addressed by the 2010 Order by challenging the 2013 Order. In Developer’s view, the 2013 Order approving the Detailed Plan merely implemented development rights that had already been granted. After a hearing, the trial court entered summary judgment for Appellees, concluding that the 2013 Order did not materially alter the property as required to bring a § 163.3215-based challenge. Appellant then filed a timely appeal.

II.

A trial court may grant a motion for summary judgment only if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. See Fla. R. Civ. P. 1.510(c). “Once the moving party establishes that there are no genuine issues of material fact, the burden shifts to the nonmoving party to show the existence of a disputed issue of fact.” Master Tech Satellite, Inc. v. Mastec N. Am., Inc., 49 So.3d 789, 790 (Fla. 3d DCA 2010). The trial court must view the evidence and draw all inferences in favor of the opposing party. Castle Key Ins. Co. v. Raymond H. Duke Enterprises, Inc., 135 So.3d 578, 579 (Fla. 1st DCA 2014). But a party cannot create disputed issues of fact “by merely stating factual conclusions.” Master Tech Satellite, Inc., 49 So.3d at 790.

A.

Appellants claim that the 2013 Order materially altered the Lupin Beach property inconsistent with Comp Plan in three ways: (1) locating lots seaward of the CCCL; (2) allowing development on the primary dune; and (3) incorrectly locating the CPZ and allowing development therein. See Compl. ¶ 24. But the 2013 Order didn’t materially alter the property in these ways; and, if any order did, it was the 2010 Order.

1. The 2013 Order didn’t “alter” the property by locating parcels seaward of the CCCL.

Appellants argue first that the 2013 Order altered the property by approving new lots seaward of the CCCL contrary to the Comp Plan. See Comp Plan Policy C-1.6.2. But maps submitted with Developer’s Concept Plan approved in 2010 designated all twenty parcels upon which new dwellings were planned, including those alleged by Appellants to be located entirely seaward of the CCCL. Because these parcels were sited in the same location relative to the CCCL as addressed in Developer’s County-approved and recorded 2010 application, the 2013 Order cannot be considered to have “altered” the property per § 163.3215(3). Walton County’s Land Development Code provides that consistency challenges may be asserted as to matters “not specifically addressed” by a concept plan. See LDC § 2.06.02(A). And here the Concept Plan specifically addressed the location of development relative to the CCCL.

Moreover, at this point, it is well beyond the 30-day statutory deadline for challenging the 2010 Order, a jurisdictional impediment for the court to consider changes wrought by the 2010 Order. § 163.8215(3), Fla. Stat,; see also Presidents’ Council of SD, Inc. v. Walton County, 36 So.3d 764, 765 (Fla. 1st DCA 2010). We therefore affirm the summary judgment order entered by the circuit court on the CCCL-related issue.

2. The 2013 Order didn’t “alter" the property by authorizing residential construction on the primary dune in the CPZ.

For the same basic reason, the court appropriately entered summary judgment on Appellants’ claims related to the destruction of the primary dune and the location of the CPZ.

As a preliminary matter, Appellants are correct that Walton County’s Comp Plan severely limits almost all development on the primary dune within a CPZ. It permits only “boardwalks, shoreline access structures, and erosion control measures that will enhance and protect the dune system” to be built in this area. Comp Plan Policy C-1.6.1(2). But, as with the issue above, the 2010 Order — not the 2013 Order — specifically addressed the location of the primary dune and CPZ relative to the residential development. If the PUD materially altered the primary dune and CPZ on the property for purposes of § 163.3215, then the alteration occurred with the 2010 Order.

The Complaint’s assumption about where the primary dune and CPZ were located circa 2013 is wrong. Appellants asserted that the primary dune (and hence the CPZ) was located “immediately to the south of Plaintiffs residence,” at a place where construction was to occur on two lots identified by the PUD application. But the CPZ was mapped in a different place in Developer’s Concept Plan application that the County approved and recorded in 2010. In fact, Developer’s Concept Plan included maps showing all twenty proposed residential units with corresponding roadways and driveways, the beach, the dune, a proposed landscape buffer, the properties of upland owners (including Appellants’ property), the site’s topography, the CCCL, the CPZ, and the contours of a plan-proposed dune enhancement project vis-a-vis the existing grade. The “CPZ Map” included in the Concept Plan application specifically marked the “Coastal Protection Zoneline” as being seaward of where Appellants allege and seaward of the construction that Appellants allege to be on the primary dune. And in the Detailed Plan, the CPZ and primary dune remained seaward of the upland construction.

In sum, Appellants cannot prevail with arguments that the 2013 Order materially altered the property by allowing development within the CPZ, or on the primary dune, because the Concept Plan in 2010 had already established the relative location of the CPZ (and primary dune) elsewhere, in a place separate from the upland development. As discussed earlier, to the extent that Appellants dispute the 2010 placement of these things, they are too late. See § 163.3215(3), Fla. Stat.; LDC § 2.06.02(A) (only matters “not specifically addressed” in a concept plan are subject to Comp Plan consistency challenges).

3. No genuine issue of material fact remains.

Appellants submitted two affidavits from individuals familiar with coastal projects in response to the motion for summary judgment. But neither creates genuine fact issues as to Appellants’ three claims. The affidavits identify many details of the project not contained in the Concept Plan approved in 2010, such as the materials and building processes to be used in completing the construction of the dwellings, roads, driveways, and other adjacent infrastructure, and where precise boundaries within the development would fall. But these details don’t bear on the particular issues framed by Appellants’ Complaint that more narrowly involve the location of development relative to the CCCL and CPZ/primary dune. Again, Appellants’ Complaint “Specifically ... contended] that the Project violates [Comp Plan] provisions related to protection of the primary dune ..., the location of individual lots in relation of the CCCL, and the method by which the location of the CPZ was determined.” Compl. ¶ 24. These three allegations relate to the location of the CCCL and CPZ vis-a-vis the residential construction, but not to the many details of upland construction that may (or may not) have altered the property’s use or intensity of use in other ways. In sum, the affidavits don’t raise questions of material fact related to the discrete issues raised by Appellants’ Complaint, even if they might support a different set of consistency claims.

B.

Finally, we reject Appellants’ contention that the 2013 Order presented the first opportunity to challenge the County’s approvals because the 2010 Order wasn’t a “development order.” Section 163.3215(3) only authorizes challenges to local decisions involving applications for “a development order, as defined in § 163.3164.” Under § 163.3164(15), “development order” refers to “any order granting, denying, or granting -with conditions an application for a development permit.” (Emphasis added). The term has been broadly construed. See Graves v. City of Pompano Beach ex rel. City Com’n, 74 So.3d 595 (Fla. 4th DCA 2011); Arbor Properties, Inc. v. Lake Jackson Prot. Alliance, Inc., 51 So.3d 502 (Fla. 1st DCA 2010). The definition of “development permit” includes “any other official action of local government having the effect of permitting the development of land.” § 163.3164(16), Fla. Stat. (emphasis added). As recognized by the Fourth District in Graves, 74 So.3d at 598, “development” is broadly construed and includes “any building activity” (§§ 163.3164(14), 380.04(1)), or “change in the intensity of use of land, such as an increase in the number of dwelling units in a structure or on land or a material increase in the number of businesses, manufacturing establishments, offices, or dwelling units in a structure or on land.” § 380.04(2)(b).

It follows here that the 2010 Order was a challengeable “development order,” because it approved and recorded the Developer’s plan to subdivide the property into many new parcels and build new dwellings, roads, driveways, and other infrastructure. That the 2010 Order included conditions, or that Developer submitted follow-up detailed construction plans, did not alter the 2010 Order’s quality as a “development order.” See, e.g., Arbor Properties, Inc., 51 So.3d at 503 (treating an order approving a concept plan with conditions as a development order). Rather, both the 2010 and 2013 Orders were susceptible to de novo challenge under § 163.3215. But Appellants’ challenge to the 2013 Order could only be successful insofar as it identified material alterations to the property not already addressed by the Concept Plan approved in 2010. See LDC § 2.06.02(A) (only matters “not specifically addressed” in a concept plan remain subject to Comp Plan consistency challenges).

III.

For the foregoing reasons, we AFFIRM.

VAN NORTWICK, J., concurs.

BENTON, J., dissents with opinion.

BENTON, J.,

dissenting.

In its natural state, the parcel in question could not have been developed as now proposed, in keeping with Walton County’s comprehensive plan (Comp Plan). This is because, as the scholarly majority opinion explains, the Comp Plan allows no beach houses — only “boardwalks, shoreline access structures, and erosion control measures that will enhance and protect the dune system” — in the “coastal protection zone.” Comp Plan Policy C-1.6.1(2). The 2013 development order at issue here authorizes construction of at least two houses in what all parties seem to agree was the coastal protection zone before the 2010 PUD order was entered.

Insofar as pertinent here, the Comp Plan defines the coastal protection zone as the area between the Gulf of Mexico and “the landward toe of the primary dune ridge....” Comp Plan Policy C-l.6.1. At the time the 2010 PUD order was entered, the primary dune ridge lay landward of sites on which the 2013 order allows construction of at least two houses. With the intention of removing the legal impediment the primary dune ridge — and therefore the coastal protection zone it defined — posed, the developer proposed in 2010 to bring in bulldozers to move the primary dune closer to the Gulf, seaward of the construction it plans.

The 2010 order which approved this approach was not appealed, and it may be, as the majority opinion assumes, that it would be inequitable not to allow the relocation of the coastal protection zone at this point. I express no view on the issue except to suggest that the answer might very well turn on factual questions which should not be resolved on summary judgment. The developer did not show otherwise. I reject any suggestion that the Developer’s Concept Plan submitted in connection with the 2010 application automatically establishes the status quo today. For these reasons, I would reverse the summary judgment entered below, and remand for further proceedings.

      . The affidavit of Appellee Mr. Foster, Vice President of Appellee EBSCO Gulf Coast Development, Inc., stated that after the 2010 Order was entered EBSCO spent about $200,000 to fund construction of the boardwalk and about $500,000 to construct the dune enhancement project, as contemplated by the order.

      . Section 163.3215(3) specifically provides:
      Any aggrieved or adversely affected party may maintain a de novo action ... against any local government to challenge any decision [granting] an application for ... a development order, as defined in s.163.3164, which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan.

      . A fourth allegation stated in the Complaint that is not at issue in this appeal involved the PUD's alleged non-compliance with FEMA floodplain limits.

      . Appellee Walton County adopted Developer’s motion.

      .Policy C-l.6.2 provides: "The County shall issue no development order or permit for construction on a new parcel ... if such new parcel lies entirely seaward of the Coastal Construction Control Line.”

      . The CPZ is defined by reference to the primary dune. See Comp Plan Policy C-l.6.1 (defining the CPZ as "extend[ing] seaward of the landward toe of the primary dune ridge or, where the toe cannot be determined, 50 feet landward of the crest of the primary dune or 25 feet landward of the top of the higher bluff regions where no primary dune exists.” Here, the parties do not argue that no primary dune exists.

      . Appellants argue that the CPZ Map only shows an upland "Coastal Protection Zone-line," but not a "Zone” and thus actually failed to identify the CPZ. But this argument is silly. Once the upland CPZ boundary is established on a map, the zone's location is obvious; by definition, it extends seaward to the water.

      . Appellants' other CPZ-related allegations related to the destruction of the primary dune — ■ regarding removal of vegetation, stormwater management, grading, drainage, and the construction of a retaining wall — also fail because they hinge on Appellants’ incorrect assumption that the CPZ lies farther inland of where it was approved in 2010.

      . For example, Appellants cite the construction of a retaining wall upland of the proposed dwellings, which was not addressed in the Concept Plan, as having raised a legitimate use, density, or intensity of use claim under the statute. But this is a different issue than alleged in the Complaint, which framed this litigation in terms of the impact of residential construction on the CCCL, CPZ, and . primary dune.

      . The LDC provides that, when approving the concept plan, "[t]he Board shall have the discretion to place conditions that insure compatibility of the project with surrounding areas, insure compliance with the comprehensive plan or enhance the public health, safety and welfare.” LDC § 2.06.02(A).