text:
    T.N.L., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D13-1577.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2014.

      Thomas L. Colter of Colter Law Group, Stuart, for appellant.
    Stephanie C. Zimmerman, Statewide Appeals Director, Children’s Legal Services, Tampa, for appellee.
    Laura E. Lawson, Sanford, for Guardian Ad Litem Program.
   CIKLIN, J.

The mother appeals the judicial review order pertaining to the child, A.L. The order, among other things, denied the mother’s motion for reunification with A.L. and placed the child in the custody of the father. The mother argues the court erred in denying her motion without a requisite finding that reunification would endanger the child. We agree with the Department of Children and Families (the “Department”) that under a permitted retroactive application of an amended version of the applicable statute, the court could base its decision on a best interest of the child standard and did not err by doing so. However, because the amended version of the statute became effective on July 1, 2013, a date after the reunification hearing in this case, and because the mother may have chosen to present different or additional evidence below under the new standard, we reverse and remand for a new hearing on the mother’s motion.

Factual Background

In January 2012, the Department filed a dependency petition as to the mother’s four children, K.D., J.D., N.L., and A.L., the child who is the subject of this appeal. The Department alleged, among other things, that the mother’s drug addiction negatively affected the children, and that the children witnessed physical confrontations between the mother and her paramour. In March 2012, the mother entered a consent plea and the children were adjudicated dependent and placed in the care of the maternal grandmother. The court approved a case plan with a goal of reunification by November 19, 2012.

In June 2012, the Department filed an amended petition which alleged that the children were also dependent as to their respective fathers. With respect to A.L., the amended petition alleged that her father never met her and failed to provide support for her. After the court held an adjudicatory hearing as to A.L.’s father, the court found insufficient evidence to adjudge A.L. dependent with respect to the father, and it dismissed the dependency petition against him. In that same order, the court confirmed the reunification goal as to the mother, found that placement of A.L. with the father would not endanger her, and ordered the child be reunified with the father, who resided in Kentucky. The child began residing with the father in late June or early July 2012.

By October 2012, the mother was in substantial compliance with her case plan tasks, according to a judicial review report. In December 2012, the mother filed a motion for reunification with all four children which resulted in reunification of all of the children except for A.L. Over a matter of months, hearings were held on the mother’s motion for reunification as to A.L., with the last hearing occurring in March 2018. The evidence presented at the hearing established that the mother complied with all of her case plan tasks, with the exception of an in-home parenting review, which would take place upon reunification. As to A.L.’s placement with the father in Kentucky, the evidence indicated that A.L. was doing well both emotionally and with regard to her progress at school. No evidence was presented suggesting that A.L. would be endangered if she were returned to the mother, and the attorney for the Department conceded as much during closing argument. Nonetheless, the Department argued it was in A.L.’s best interest to remain with the father.

The court entered an order denying in part and granting in part the mother’s motion for reunification as to A.L. The court found the following. The mother completed the tasks in the case plan designed to address the circumstances which resulted in the dependency proceedings. A.L. had “blossomed” since moving to Kentucky and, due to the mother’s arrest in January 2012, A.L. had not lived with the mother for more than a year. Based on the evidence and the guardian ad li-tem’s recommendation that the child remain with the father, the court found that reunification with the mother would be detrimental to A.L. and thus not in her best interest. The court, however, ordered a parenting plan which provided for timesharing. The judicial review order terminated supervision and jurisdiction as to A.L.

Analysis

On appeal, the mother argues the court could not deny reunification absent a specific finding that A.L.’s safety and well-being would be endangered. She relies on section 39.522(2), Florida Statutes (2012), which, at the time of the reunification hearing, provided that a child must be reunited with the offending parent if the parent has substantially complied with the case plan to the extent the child would not be endangered by reunification.

The Department points out that section 39.522 was amended after the hearing to add a third subsection specifically addressing reunification with the offending parent when the child is in the temporary custody of the non-offending parent. The Department argues that the amended version of the statute allows a court to deny a reunification motion based solely on the best interest of the child, even where there is no evidence that reunification would endanger the child.

We turn now to a discussion of each version of section 39.522, and to the issue of the retroactive application of the amended version of the statute.

Application of the (“Older”) 2012 Version of Section 39.522

The relevant statute in effect at the time of the reunification hearing provided the following:

In cases where the issue before the court is whether a child should be reunited with a parent, the court shall determine whether the parent has substantially complied with the terms of the case plan to the extent that the safety, well-being, and physical, mental, and emotional health of the child is not endangered by the return of the child to the home.

§ 39.522(2), Fla. Stat. (2012). Of important and historical note is this court’s recognition that even when applying section 39.522(2), however, the trial court must also make additional findings required under section 39.621(10), Florida Statutes (2012). See G.V. v. Dep’t of Children & Families, 985 So.2d 1243, 1246 (Fla. 4th DCA 2008). Section 39.621(10) provides the following:

The court shall base its decision concerning any motion by a parent for reunification ... on the effect of the decision on the safety, well-being, and physical and emotional health of the child. Factors that must be considered and addressed in the findings of fact of the order on the motion must include:
(a) The compliance or noncompliance of the parent with the ease plan;
(b) The circumstances which caused the child’s dependency and whether those circumstances have been resolved;
(c) The stability and longevity of the child’s placement;
(d) The preferences of the child, if the child is of sufficient age and understanding to express a preference;
(e) The recommendation of the current custodian; and
(f) The recommendation of the guardian ad litem ....

§ 39.621(10), Fla. Stat. (2012). These factors have been characterized as “best interest” factors. See S.V.-R. v. Dep’t of Children & Family Servs., 77 So.3d 687, 689 (Fla. 3d DCA 2011) (holding that trial court “incorrectly applied the ‘best interest’ factors set forth in section 39.621(10)”); C.S. v. Dep’t of Children & Families, 12 So.3d 309, 310 (Fla. 4th DCA 2009) (reversing denial of reunification where trial court failed to make “specific written, factual findings as to why reunification would not be in the best interests of [the] child,” as required under section 39.621(10)).

Under the case law interpreting the pre-July 1, 2013 version of section 39.522, a trial court was required to consider the “best interest” factors enumerated in section 39.621(10). Even so, section 39.522(2) still required the trial court to grant a motion for reunification absent a finding of endangerment to the child in cases where the parent substantially complied with the case plan. See G.V., 985 So.2d at 1246-47; see also T.L. v. Dep’t of Children & Families, 98 So.3d 785, 788 (Fla. 4th DCA 2012) (vacating order of permanent guardianship where mother’s substantial compliance with case plan raised a presumption that children should be returned and trial court did not find that children would be endangered by reunification, and remanding for court to make required findings); S.V.-R., 77 So.3d at 690-91 (reversing orders denying mother’s motion for reunification and directing that child remain with father, and remanding for trial court to make required “endangerment” finding under section 39.522(2)); In re G.M., 73 So.3d 320, 322 (Fla. 2d DCA 2011) (“Without finding that reunification would be detrimental to the child, it is reversible error to permanently award custody to a nonoffending parent when the offending parent has a case plan goal of reunification and has substantially complied with the plan.” (citation omitted)); C.A. v. Dep’t of Children & Families, 27 So.3d 241, 243 (Fla. 4th DCA 2010) (reversing order of permanent guardianship and remanding for reunification where court did not make required finding of endangerment, and there was no competent substantial evidence of endangerment); G.V., 985 So.2d at 1247 (reversing order denying reunification and granting termination of supervision in a case where one child was in custody of father, based on lack of competent substantial evidence of endangerment).

Although the trial court made a finding that reunification would be “detrimental to [the child’s] well-being,” this finding was not based on any evidence of endangerment. On the contrary, the guardian ad litem testified that reunification with the mother would not endanger A.L. but that A.L. should remain in Kentucky because she had been there for nine months and was doing well there. The guardian ad litem testified that A.L. had stability with the father, and that “to uproot her now and the school year is not even over, I think would be more detrimental to her.” This statement by the guardian ad litem is not only imprecise but does not constitute competent and substantial evidence on the issue of endangerment. Further, even in its broadest sense, the guardian ad litem’s testimony does not imply the child would be endangered by reunification with the mother.

Application of the (“Newer”) 2013 Version of Section 39.522

On July 1, 2013, the current version of section 89.522 became effective. This effective date was four months after the last hearing on the mother’s reunification motion, and during the pendency of the instant appeal. The amended statute contains an additional subsection specifically addressing the issue in this case:

In cases where the issue before the court is whether a child who is placed in the custody of a parent should be reunited with the other parent upon a finding of substantial compliance with the terms of the case plan, the standard shall be that the safety, well-being, and physical, mental, and emotional health of the child would not be endangered by reunification and that reunification would be in the best interest of the child.

§ 39.522(3), Fla. Stat. (2013) (emphasis added).

A plain reading of this amended version of the statute indicates that the best interest of the child is a factor which is now at least equal to the question of endangerment. That is, when considering motions for reunification where the child has been placed with the non-offending parent, a trial court may deny the motion based exclusively upon a finding that reunification would not be in the child’s best interest, without regard to a required finding of endangerment.

Conclusion

We find that the amended statute, which changes the legal standard for courts to apply in ruling on reunification motions involving a child placed with the non-offending parent, is a remedial statute and does not affect substantive rights. Thus, there is no bar on its retrospective application. See Smiley v. State, 966 So.2d 330, 334 (Fla.2007) (“Remedial statutes or statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of rights already existing, do not come within the legal conception of a retrospective law, or the general rule against retrospective operation of statutes.” (citation omitted)). However, because of due process considerations that arise under the particular facts of this case, and because this is a dependency case involving the best interest of the child, we vacate the challenged orders and remand for a new hearing. Given that the reunification hearing took place before the amended statute went into effect, the mother was presumably operating under the belief that her motion would be granted so long as there was no evidence that reunification would endanger A.L. Indeed, the mother may have elected to present additional evidence relevant to the best interest of the child had she known that the standard had changed.

On remand, all the parties will be on notice that the amended version of the statute applies, and all parties will have the opportunity to present additional evidence.

Reversed and remanded for new hearing.

STEVENSON and KLINGENSMITH, JJ., concur.

      . K.D. and J.D. have the same father; A.L. and N.L. do not have the same father as K.D. and J.D., and have different fathers from one another.

      . The Department recognizes that no evidence was presented to the court below which in any way suggested that reunification would endanger A.L.

      . The Department concedes that if the amended ("newer") version of section 39.522 does not apply and this court uses the law in effect at the time of the hearing, we would have to find that the trial court erred in denying the mother’s motion. However, the Department argues the amended version controls our disposition of this matter and thus, the trial court did not err by using a best interest of the child standard.

      . The legislative history indicates that confusion in the case law regarding the correct standard in determining reunification motions resulted in the amendment to section 39.522, Florida Statutes. A staff analysis provides:
      The bill amends s. 39.522, F.S., related to postdisposition change of custody, to clarify that, in cases in which a court is deciding whether to reunite a child, who is in the custody of one parent, with a non-custodial parent who has substantially completed a reunification plan, the standard to be applied is whether the child is endangered by placement with the non-custodial parent and whether reunification with the noncustodial parent is in the best interest of the child when compared to the existing custody arrangement. The change in legal standard should eliminate future confusion by the courts and ensure that the custody decision is in the best interest of the child. The change in legal standard is also consistent with the overall principle of chapter 39, F.S., which is the ultimate welfare of the child.
      Fla. Staff Analysis, CS/HB 215 (May 13, 2013).


source: Caselaw Access Project

author: MAY, J.

license: Public Domain

text:
    RC/PB, INC., Petitioner, v. The RITZ-CARLTON HOTEL COMPANY, L.L.C., Marriott International, Inc., and Avendra, L.L.C., Respondents.
    No. 4D13-2116.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2014.
    Matthew S. Sackel, Hank Jackson and Stephen T. Maher of Shutts <& Bowen, LLP, West Palm Beach, for petitioner.
    Jack Scarola of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach for respondents The Ritz-Carlton Hotel Company, L.L.C., and Marriott International, Inc.

      Christopher N. Bellows of Holland & Knight, LLP, Miami, Richard C. Hutchi-son and Matthew Z. Zimmerman, West Palm Beach, for respondent, Avendrá, LLC.
   MAY, J.

The petitioner seeks a writ of certiorari. At issue is a claim of attorney-client privilege to a request for production of documents. The petitioner argues the trial court departed from the essential requirements of the law resulting in irreparable injury by ordering production of documents, which it claims are attorney-client privileged, without conducting an in camera inspection. We agree and grant the petition.

The discovery dispute arose in complex commercial litigation over a franchise agreement. The petitioner asserted an attorney-client privilege to certain documents and prepared a privilege log. The respondents argued that any privilege had been waived because the documents were either copied or addressed to third parties.

The petitioner requested an in camera inspection before ordering production. Despite acknowledging that there could be some privileged materials, the trial court ordered production of the material listed in the privilege log without conducting an in camera inspection.

“The burden of establishing the attorney-client privilege rests on the party claiming it.” S. Bell Tel. & Tel. Co. v. Deason, 632 So.2d 1377, 1383 (Fla.1994). The party claiming the privilege also bears the burden of showing that disclosure to a third party did not waive the privilege. See Black v. State, 920 So.2d 668, 671 (Fla. 5th DCA 2006).

A communication between lawyer and client is “confidential” if it is not intended to be disclosed to third persons other than:

1. Those to whom disclosure is in furtherance of the rendition of legal services to the client.
2. Those reasonably necessary for the transmission of the communication.

§§ 90.502(l)(c)12, Fla. Stat. (2012).

The petitioner does not dispute the legal standard regarding attorney-client communication revealed to third parties. It simply argues that the trial court should conduct an in camera inspection before compelling production of documents to which the alleged privileged is asserted. The respondents argue that any privilege was waived by disclosure to third parties.

The court in Southern Bell adopted the subject-matter test to determine whether corporate communications are privileged:

We believe that the subject-matter test adds a condition to the corporate privilege that more completely addresses one of the perplexing problems presented in the instant case: the issue of whether the communications made to Southern Bell were made in the course of seeking legal services. Because the nature of the corporation differs significantly from the individual person, the attorney-client privilege will also differ in its application to the corporation and to the natural person. First, a corporation can only act through its agents, whereas a natural person can seek legal advice and then directly act (or not act) upon that advice. Second, a corporation relies on its attorney for business advice more than the natural person. Thus, it is likely that the “zone of silence” will be enlarged by virtue of the corporation’s continual contact with its legal counsel.

S. Bell, 632 So.2d at 1383 (emphasis added) (citing Radiant Burners, Inc. v. Am. Gas Ass’n, 207 F.Supp. 771, 774 (N.D.Ill.1962)).

Here, the petitioner submitted a privilege log and an explanation of why others were involved in the communications. The petitioner asserted the attorney-client privilege because the communications were in furtherance of seeking legal advice. That is sufficient to warrant an in camera inspection in this case. This is especially true where the trial court acknowledged that it may have missed some privileged materials.

We grant the petition and remand the case to the trial court to conduct an in camera inspection. Upon remand, the trial court should consider whether:

(1) the communication would not have been made but for the contemplation of legal services;
(2) the employee making the communication did so at the direction of his or her corporate superior;
(3) the superior made the request of the employee as part of the corporation’s effort to secure legal advice or services;
(4) the content of the communication relates to the legal services being rendered, and the subject matter of the communication is within the scope of the employee’s duties;
(5) the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.

Id.

CIKLIN and CONNER, JJ„ concur.

      . The petitioner originally asserted the privilege to most of the requested documents, but then produced many of them. The trial court gave the petitioner two opportunities to support its claim of attorney-client privilege before it entered the order that is now the subject of this petition. The court agreed, however, that communications strictly between the client and the attorney could be extracted from the production.


author: CONNER, J.

text:
    Joel M. WEISSMAN and Joel M. Weissman, P.A., Appellants, v. Eliane BRAMAN, William Braman, Asianusa Marketing Group, LLC, a Florida Limited Liability Company, and Ocean Distributors International, Inc., a Florida Corporation, Appellees.
    No. 4D13-381.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2014.

      Joel M. Weissman and Sarah A. Saull of Joel M. Weissman, P.A., West Palm Beach, for appellants.
    Martin L. Haines, III, of Martin L. Haines, III, Chartered, Lake Park, for appellee Eliane Braman.
   CONNER, J.

Joel M. Weissman and Joel M. Weiss-man, P.A., (collectively “the Firm”) represented the husband in a dissolution of marriage proceeding. The Firm appeals the trial court’s order which required the Firm to disgorge “one half of the liquid assets ... [the Firm] is holding for the [h]usband as temporary attorney fees and costs for the [w]ife.”

On appeal, the Firm raises (1) that it was not given notice and a true opportunity to be heard on the issue of disgorgement, (2) that the court did not possess the necessary jurisdiction and authority over the Firm to issue such an order of disgorgement, and (3) the factual findings contained within the order were not supported by sufficient, competent evidence. Because the trial court’s order exceeded the scope of what was noticed for the temporary relief hearing, the Firm was denied sufficient notice as to the court’s order of disgorgement contained within its temporary relief order. Accordingly, we reverse and remand for further proceedings.

Factual Background

The trial court held a hearing to resolve the wife’s temporary relief motion, in which she requested $190,000 in temporary attorney’s fees and costs. Notice of the motion and hearing was sent to the husband’s counsel. At the beginning of the hearing, the wife’s counsel raised, for the first time, the issue of forfeiture (or “disgorgement”) of fees paid to the husband’s counsel. The court initially responded that the issue of forfeiture would be reserved for the final hearing.

At the temporary relief hearing, evidence was presented which demonstrated that at the time the wife initiated the divorce action, the parties had a substantial amount of liquid marital assets. Immediately after the wife filed her motion for temporary fees and costs, the husband executed an investment agreement wherein he agreed to transfer and invest most of the liquid marital assets with a person with whom he had never done business with before. Pursuant to the investment agreement, the husband became a forty-five percent owner of an existing food brokerage and distribution company located overseas. The other owner was not required to contribute any additional money to capitalize the business and the business was not expected to generate income for several years. The investment agreement prohibited the husband from receiving any of his invested money until 2014. The husband’s transfer of a portion of his liquid marital assets to the overseas business occurred prior to the Firm’s representation of the husband. At the time the Firm became the husband’s counsel of record, $300,000 of marital funds remained liquid.

Weissman testified at the hearing that the husband was charged and paid $206,447.50 for legal services and costs between September 14, 2012 and November 29, 2012. Weissman testified that the source of payment was the husband’s father through the use of a credit card. Weissman also testified that the husband was periodically repaying the husband’s father from an unknown source of liquid funds. At a prior deposition of the husband, however, the husband identified a joint marital savings account as the source of his ongoing reimbursements to his father.

Following the temporary fee hearing, the trial court made the following written findings of fact:

The Husband used the remaining $400,000 or so of liquid marital assets to pay his own expenses, and exorbitantly high fees to his dissolution of marriage lawyers and experts, ($311,908 from September 14, 2012 to the date of hearing December 10, 2012). The Husband paid these professional fees via a scheme involving payments to his attorney using his father’s credit cards, and cash repayment from marital funds to his father. The Husband says he has only $6,240.00 of the marital assets left.
Wife Exhibit 1 from December 10, 2012 hearing, is a recap of the attorney’s fees and expenses regarding this dissolution of marriage action the Husband claims to have incurred for the seven weeks between September 14, 2012 and November 29, 2012. Incredibly, during that short period, it shows Husband was billed for 351 hours of attorney time at $400-$500 per hour, 195 hours of paralegal time at $175 per hour, plus $11,121 in costs, among other things. Husband’s evidence regarding his disposition of the marital funds set forth above is not credible and not reasonable. The evidence is clear that the Husband’s attorney is holding $311,908 of marital funds on the Husband’s behalf, ostensibly for past or future professional services.

In granting attorney’s fees and costs to the wife, the trial court explained:

[The Husband’s] attorney is holding $311,908 of liquid assets for payment of Husband’s attorney fees, expert fees, and related expenses of [the] dissolution of marriage litigation. The Wife needs access to competent counsel, which can only be accomplished with temporary attorney fees paid by the Husband who controls all of the liquid marital assets. It is necessary, just, and equitable that counsel for the Husband disgorge one half of the liquid assets ($155,954) he is holding for the Husband, as temporary attorney fees and costs for the Wife. Counsel for the Husband shall pay $155,954 directly to counsel for the Wife within three days of the date of this Temporary Order, as temporary attorney fees and costs for the Wife in this litigation. Thus each party has immediate access to sufficient resources to reasonably conduct this litigation to conclusion.[]

Legal Analysis

We begin our analysis by stating the obvious. Due process requires that each party be given fair notice and a reasonable opportunity to be heard. Hanson v. Hanson, 678 So.2d 522, 524 (Fla. 5th DCA 1996). Where a party’s motion fails to raise an issue or where the trial court’s order exceeds the scope of what was noticed for hearing, the affected party is denied sufficient notice if a determination is made on such basis, unless the parties try the issue by consent. Burkhart v. Burkhart, 620 So.2d 225, 226 (Fla. 1st DCA 1993); Margulies v. Margulies, 528 So.2d 957, 959 (Fla. 3d DCA 1988).

As to the forfeiture or disgorgement of funds, an attorney is entitled to the same reasonable notice and opportunity to be heard, even if he or she is merely holding those funds as a retainer for legal services not yet rendered. See Brand v. Old Republic Nat’l Title Ins. Co., 797 So.2d 643, 645 (Fla. 3d DCA 2001). In the instant matter, the wife’s motion for temporary fees and costs was legally insufficient to put the Firm on notice that the funds it was holding could be taken and distributed to the wife’s attorney. Further, the wife’s motion did not suggest a need or intent to examine the reasonableness of the fees charged to the husband by the Firm. Because of the insufficient notice provided to it, the Firm had no reason to believe that the trial court’s proceedings concerning temporary fees and costs could result in a disgorgement of funds that the Firm was holding, or that the trial court would inquire into the appropriateness of the fees charged to, and collected from, its client. Because the Firm was not granted sufficient notice, its right to be heard was substantially hindered in that it was not given the opportunity to gather or present supporting evidence.

During the course of the hearing, the trial court may have become concerned and even alarmed from the evidence presented. Indeed, the trial court may have quite reasonably suspected that the husband had engaged in tactics to minimize his ability to pay the wife’s attorney’s fees and costs. And although it is not clear from the record, the trial court may also have been concerned that the Firm either intentionally or unknowingly participated in the scheme.

A trial court has “inherent power to do all things that are reasonably necessary to administer justice within the scope of [its] jurisdiction, subject to existing laws and constitutional provisions.” Brand, 797 So.2d at 645. This power generally concerns “the incidents of litigation, control of the court’s process and procedure, control of the conduct of its officers, and the preservation of order and decorum with reference to its proceedings.” Id. (emphasis added). And, it includes the power to sanction attorneys. Id. Where misappropriation of escrowed funds by attorneys of record is proven, the trial court may exercise its inherent power to sanction the attorneys by disgorging the funds and regaining control of them. Id. Thus, contrary to the Firm’s argument, the trial court — with fair advance notice to all — did and does have jurisdiction to order disgorgement when there is competent and substantial evidence to support the court’s inherent authority.

Reversed and remanded for further proceeding consistent with this opinion.

WARNER and CIKLIN, JJ„ concur.

      . A letter from Weissman to the husband was admitted into evidence which indicated Weissman worked 145.50 hours at a rate of $500 per hour, earning $74,750; "Of Counsel" worked on the case for 206.60 hours for a fee of $82,740; and paralegals and other staff work earned a fee of $3,711.50. Costs totaled $11,121. The total amount earned between September 14, 2012 and November 29, 2012, was $206,447.50.

      .In her answer brief, the wife concedes that the court made a mathematical error: only $206,447.50, instead of $311,908, was turned over to the Firm. Further, the wife concedes that the issue of forfeiture should have been reserved for final hearing.

      . Here, the Firm did not try the issue of disgorgement by consent.

      . The amended motion sought an injunction against dissipation of marital assets, but makes no reference to how they may have been dissipated in the past.


author: STEVENSON, J.

text:
    STATE of Florida, Appellant, v. J.T., a child, Appellee.
    No. 4D13-507.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2014.
    Rehearing Denied Feb. 28, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellant.
    Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellee.
   STEVENSON, J.

J.T., the Defendant, was charged with burglary of a dwelling, grand theft, and possession of burglary tools. The State of Florida appeals an order granting Defendant’s Motion to Suppress the evidence seized as a result of his arrest. We reverse and remand for further proceedings.

At the suppression hearing below, two law enforcement officers provided the facts leading to Defendant’s arrest. On the morning of August 7, 2012, an anonymous person called the Fort Lauderdale Police Department and alerted law enforcement to a possible burglary of a residence. A dispatch went out at approximately 6:35 a.m. The dispatch advised that “two to three black males” were breaking into an electrical box. The dispatch further advised that the males were using a flashlight. No other identifiable details were provided.

In response to the phone call, multiple law enforcement units were sent to the area. Soon after arriving, a detective from the Fort Lauderdale Police Department observed three black males, including Defendant, riding nearby on two bicycles. The three boys were approximately 100 feet from the identified residence. The detective testified that the three boys, upon seeing law enforcement officers and the marked vehicles, “immediately ... took flight.” Shortly thereafter, an officer with the Fort Lauderdale Police Department who had responded to the dispatch spotted Defendant and the other two boys approximately 100 yards away from the identified residence. The officer testified that: “[A]s soon as they saw me, before making any contact, they — the one bike went west and the — the bike that [Defendant] and the other guy who was on the handlebars — The guy jumped off the handlebars, ran north. [Defendant] pedaled west real fast a little bit. Then he jumped off and — and started to run. And when I told him to stop, he — he got on the ground.”

Further, while observing the three boys, the officer noticed that the boy riding on the handlebars of Defendant’s bicycle was holding a black bag. The boy holding the bag dropped it upon seeing the officer. Also, while running away, Defendant dropped an orange screwdriver. Defendant was detained at approximately 6:47 a.m. (approximately twelve minutes passed between the dispatch and Defendant’s detention). The black bag was later determined to contain a computer and a bank envelope.

At the suppression hearing, the trial judge found that the police did not have reasonable suspicion to stop Defendant. When reviewing a motion to suppress, we are “bound by the trial court’s findings of historical fact if those findings are supported by competent, substantial evidence. However, an appellate court applies a de novo standard of review to the mixed questions of law and fact that ultimately determine constitutional issues.” R.J.C. v. State, 84 So.3d 1250, 1254 (Fla. 4th DCA 2012) (citations omitted). After reviewing the testimony presented to the lower court, we find the lower court erred in ruling that law enforcement had no reasonable suspicion to detain Defendant.

‘Whether an officer has the reasonable suspicion needed to justify an investigatory stop, based on the objective facts, depends on the totality of the circumstances observed in light of the officer’s experience.” Santiago v. State, 941 So.2d 1277, 1279 (Fla. 4th DCA 2006) (citing Belsky v. State, 831 So.2d 803, 804 (Fla. 4th DCA 2002)). A suspect’s nervous and evasive behavior “upon the approach of an officer, when considered in conjunction with a purely anonymous tip, may under the totality of the circumstances establish reasonable suspicion for an investigative stop.” Baptiste v. State, 995 So.2d 285, 297 (Fla.2008).

Here, given the combined experience of the detective and the officer, the totality of the circumstances provided ample reasonable suspicion to detain Defendant — the early morning hour, the short time frame between the anonymous call and Defendant’s detention, Defendant’s close proximity to the identified residence, the dispatch identifying two to three male suspects, the dropped bag, and the uncontroverted testimony that Defendant took flight upon seeing law enforcement officers, abandoning his bicycle and running away on foot. See Sinclair v. State, 816 So.2d 149, 150 (Fla. 1st DCA 2002) (holding there was reasonable suspicion to stop the defendant when law enforcement spotted the defendant an hour and a half after a crime was reported, the defendant was near the reported crime area, and the defendant changed direction and started walking faster upon seeing the officer); see also State v. D.D.D., 908 So.2d 1180, 1181-82 (Fla. 2d DCA 2005) (finding there was reasonable suspicion to detain the defendant when police dispatch advised the officer of the suspect’s clothing, the officer arrived on the scene within two minutes, the officer observed the defendant dropping a heavy object behind a tree, and the defendant started walking in another direction when the officer approached).

Accordingly, we reverse and remand for further proceedings.

CIKLIN and LEVINE, JJ., concur.

      . The lower court made no factual findings in its written order granting Defendant’s Motion to Suppress.

      . During closing arguments, defense counsel refused to concede the issue of whether Defendant's actions constituted unprovoked flight. However, Defendant failed to put forth any evidence or testimony to contradict the testimony by the State’s two witnesses.


author: PER CURIAM.

text:
    Thomas A. SUFFIELD, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2433.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2014.

      Thomas A. Suffield, Jr., Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Thomas A. Suffield, Jr. appeals the summary denial of his rule 3.800 motion. He alleges that his sentence is illegal because the trial court sentenced him to life imprisonment as a Prison Releasee Reoffender (PRR) on Count 1 (Burglary of an Occupied Conveyance with Assault or Battery) in a two-count conviction where he does not qualify as a PRR. See § 775.028(9)(a)(l), Fla. Stat. (2001). The State properly concedes that Suffield is entitled to resentencing.

Suffield argues that a conviction for burglary of a conveyance with an assault or battery does not qualify for PRR sentencing pursuant to Gorham v. State, 988 So.2d 152, 154 (Fla. 4th DCA 2008) (holding resentencing was required where defendant was sentenced as a PRR for burglary of a conveyance with an assault or battery where offense did not qualify for PRR sentencing), and Tumblin v. State, 965 So.2d 354, 356 (Fla. 4th DCA 2007) (remanding for full resentencing hearing where defendant did not qualify for PRR designation in sentencing of burglary of a conveyance with an assault or battery). The trial court, in its order of denial, surmised that State v. Hackley, 95 So.3d 92 (Fla.2012), overruled Gorham and Tum-blin where it held that burglary with an assault qualifies a defendant as a PRR under the catch-all provision of section 725.082(9)(a)(l)(o)(“Any felony that involves the use or threat of physical force or violence against an individual”). However, as the State points out in response to this Court’s order to show cause, while burglary of a conveyance with an assault is a qualifying PRR offense under Hackley, burglary with a battery is not. See Hackley, 95 So.3d at 95 (“The First District correctly concluded that ... burglary of a conveyance with a battery is not a qualifying offense under the PRR statute”). Hackley explains that:

An assault — by definition — always includes the threat to do violence. § 784.011(1), Fla. Stat. (2006). Battery, on the other hand, does not necessarily involve the threat or use of force or violence. § 784.03(1), Fla. Stat. (2006); Hearns, 961 So.2d at 218. The Legislature could rationally have intended — as the plain language of the PRR statute suggests — to subject a defendant to PRR sentencing for committing a felony that necessarily involves violence or the threat of violence, but not for a felony that can be committed without violence or the threat of violence.

Id. at 96. Where Suffield was convicted of burglary with an assault or battery and improperly sentenced as a PRR on Count 1, we conclude that he is entitled to resen-tencing and remand for further proceedings consistent with this opinion.

Reversed and Remanded for resentenc-ing.

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


text:
    Alex GUTIERREZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2561.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2014.
    Alex Gutierrez, Miami, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

In its response to this court’s order to show cause, the State concedes that appellant’s February 13, 2012 amended postcon-viction motion should have been treated as timely filed. Accordingly, we reverse and remand for further proceedings on the amended motion.

Reversed and remanded.

STEVENSON, CIKLIN and FORST, JJ., concur.


text:
    EFFECTIVE TELESERVICES, INC., and Dilip Barot, Appellants, v. Allerd Charles SMITH, Appellee.
    Nos. 4D11-2264, 4D11-4481.
    District Court of Appeal of Florida, Fourth District.
    Jan. 29, 2014.
    Rehearing Denied Feb. 26, 2014.

      Kevin F. Richardson of Clyatt & Richardson, P.A., West Palm Beach, for appellant Effective Teleservices, Inc.
    Larry A. Klein of Holland & Knight, LLP, West Palm Beach, and E. Cole Fitzgerald, III, and James Burnham of Fitzgerald, Mayans & Cook, P.A., West Palm Beach, for appellant Dilip Barot.
    John Beranek, Robert N. Clarke and Richard Doran of Ausley & McMullen, Tallahassee, and Peter M. Feaman of Peter M. Feaman, P.A., Boynton Beach, for appellee.
   MAY, J.

In this consolidated appeal, a company and board chair appeal attorneys’ fees and cost judgments resulting from an employment dispute. Discovery violations in the underlying litigation resulted in a default judgment on liability in favor of the employee. A subsequent motion for attorneys’ fees and costs resulted in a second and third judgment against the company and board chair. From these attorneys’ fees and cost judgments, the company and board chair appeal. They argue the judgments contain multiple errors. We agree in part and reverse.

The employee became the president and chief operating officer of the company. Two agreements contained the terms of his employment: an employment agreement and a business agreement. Two years later, the employee took sick leave to undergo necessary medical treatment, and the company fired him.

The employee filed a complaint against the company, the board chair, and others, who are not parties to this appeal. The relevant claims against the company included: (1) breach of the employment agreement; and (2) violation of the Family Medical Leave Act (FMLA). The relevant claims against the board chair included: (1) breach of the business agreement; (2) breach of fiduciary duty; and (3) fraud in the inducement.

The complaint alleged that the company breached the employment agreement by failing to: provide a sufficient basis for the employee’s termination, pay the employee an annual bonus, and compensate the employee for vacations. The FMLA claim alleged that the company wrongfully terminated him, and that the termination was retaliatory in nature. The breach of the business agreement claim against the board chair alleged that he withheld a loan, withheld stock shares, and failed to conduct and disclose the results of an audit. The breach of fiduciary duty claim included similar allegations. The fraud in the inducement claim focused on conduct that occurred before the employee entered into the business agreement.

The trial court struck the company’s and board chair’s pleadings as a sanction for multiple discovery violations and entered a default judgment on liability. The case proceeded to trial on damages only, which resulted in an award of $1,371,646 against the company for breach of the employment agreement and violation of the FMLA, and $8,700,286 against the board chair for breach of the business agreement, breach of fiduciary duty, and fraud in the inducement. We affirmed. Effective Teleser- vices, Inc. v. Smith, 79 So.3d 35 (Fla. 4th DCA 2012).

The employee moved to tax attorneys’ fees and costs against the company and board chair. The employee’s motion sought fees for only three claims: breach of the employment agreement, breach of the business agreement, and violation of the FMLA. The employee maintained that the FMLA and article 5.08 of the employment agreement allowed for recovery of fees against the company. The employee sought fees against the board chair based on article 14.7 of the business agreement. The employee later filed a memorandum arguing that, because the claims were inextricably intertwined, he was entitled to fees against both the company and the board chair for work done on all claims.

During the fee hearing, the employee’s counsel acknowledged that only the employment agreement, business agreement, and FMLA claims provided a basis to recover prevailing party attorneys’ fees. In spite of this, he admitted that he did not allocate his time among the claims that provided a basis for fees and those that did not. And yet, he admitted spending two- and-a-half hours allocating his time among the various claims after entry of the damages award and his filing of the attorneys’ fees motion.

He testified that it was not feasible to keep time records on a count-by-count basis. It was more reasonable to keep them on a “timeline” basis. Even so, he did not do that. He acknowledged that with respect to the claims against the company, the breach of employment agreement claim focused on conduct that occurred in 2005 while the FMLA claim focused on conduct that occurred between June 2004 and May 2005. Regarding the claims against the board chair, the breach of fiduciary duty claim focused on conduct after June 2003, the fraud in the inducement claim centered on conduct before June 2003, and the breach of business agreement claim focused on conduct between June 2003 and May 2005.

The employee’s counsel admitted that the business agreement against the board chair was irrelevant to the FMLA or breach of employment agreement claims against the company, that each count sought separate remedies, and that the breaches of the respective agreements were different in nature. He further admitted that the claims against the company were not alternative theories of liability against the board chair, and that a finding of liability on the claims against the company did not dispose of the claims against the board chair.

The employee’s fee expert testified that the claims were all inextricably intertwined:

We are dealing with one transaction. You have got the stuff leading up to the contracts, which was the fraud in the inducement, so you had to get into the facts relating to what led the parties to sign these two contracts. Then you have the actual contracts themselves, one being an employment contract, one being a business agreement. And then you have the breach of fiduciary duty, which is kind of the performance of the contract.

The employee’s counsel testified that one reason he sought fees against the board chair was because he treated the company as his alter ego.

Both attorneys who represented the employee testified regarding the work performed and the hours billed. Mr. Feaman testified that all of the attorneys worked under his supervision and entered their time contemporaneously. He had personal knowledge of the work performed and the time billed. He reviewed the bills monthly and deleted time he considered excessive.

Mr. Doran testified that the hours billed by another partner were reasonable and most of that work was performed in his presence. He testified that the hours billed and rates charged by an associate were reasonable. He outlined the associate’s level of experience and explained the type of work performed. He also testified to the reasonableness of hours billed by a law clerk and paralegal. He edited the bills as necessary, deleting redundant or inexplicable time.

The trial court issued a detailed, seven-page order finding the employee’s case arose “out of a common core of operative facts and that the facts are inextricably intertwined between all of the counts of [the] case.” The trial court concluded that the “common core of facts” was “premised on related legal theories arising out of the negotiation, execution and performance of both the employment and business agreements.” The court determined that it was impractical to apportion the time on a claim-by-claim basis. The trial court ordered the defendants jointly and severally liable for $1,446,737.29 in fees.

The trial court further found that the company was the alter ego of the board chair. The trial court issued an amended order and judgment in which it slightly reduced the fee award to $1,434,737.29. The trial court subsequently entered a cost judgment. From these judgments, the defendants appeal.

The company and board chair both argue the trial court erred in finding that the employee’s claims were inextricably intertwined. They maintain that the claims were separate and distinct as a matter of law. The employee responds that the trial-court properly determined the claims were “related and intertwined,” justifying a joint and several fee award against both the company and the board chair for all claims.

We have de novo review. Anglia Jacs & Co. v. Dubin, 830 So.2d 169, 171 (Fla. 4th DCA 2002).

“ ‘[T]he party seeking fees has the burden to allocate them to the issues for which fees are awardable or to show that the issues were so intertwined that allocation is not feasible.’ ” Chodorow v. Moore, 947 So.2d 577, 579 (Fla. 4th DCA 2007) (quoting Lubkey v. Compuvac Sys., Inc., 857 So.2d 966, 968 (Fla. 2d DCA 2003)).

“Claims are ‘inextricably intertwined’ when a ‘determination of the issues in one action would necessarily be disposi-tive of the issues raised in the other.’” Anglia Jacs & Co., 830 So.2d at 172 (quoting Cuervo v. W. Lake Village II Condo. Ass’n, 709 So.2d 598, 599-600 (Fla. 3d DCA 1998)). Conversely, “claims are separate and distinct when they could support an independent action and are not simply alternative theories of liability for the same wrong.” Avatar Dev. Corp. v. DePani Constr., Inc., 883 So.2d 344, 346 (Fla. 4th DCA 2004).

The trial court relied primarily on Centex-Rooney Construction Co. v. Martin County, 725 So.2d 1255 (Fla. 4th DCA 1999), in deciding that the claims were inextricably intertwined. We find the case distinguishable. In Centex-Rooney, a county sought damages against a construction company, its surety, and other subcontractors for defective construction of a government building. Id. at 1256, 1260. The trial court entered an attorney’s fee award against both the company and its surety. Id. at 1257. On appeal, the construction company argued that the fee award was excessive because it included fees for litigation of unsuccessful claims, and for claims against other parties. Id. at 1258. The county responded that the claims were inextricably intertwined. Id. at 1260.

The trial court concluded that the various claims involved a common set of facts “premised on related legal theories.” Id. We affirmed. Id. Because it would have been difficult for the attorneys to apportion the hours spent on each claim, we held that the trial court did not abuse its discretion in awarding compensation for “all hours reasonably expended on the litigation.” Id.

Subsequent to Centex-Rooney, however, we decided Current Builders of Florida, Inc. v. First Sealord Surety, Inc., 984 So.2d 526 (Fla. 4th DCA 2008). There, we held that where a party is entitled to fees for only some of the claims, the trial court “must evaluate the relationship between the claims and ‘where the claims involve a common core of facts and are based on related legal theories, a full fee may be awarded.’” Id. at 533 (quoting Anglia Jacs, 830 So.2d at 172) (emphasis added). But, where the claims are separate and distinct, fees should be apportioned accordingly. Avatar Dev. Corp., 883 So.2d at 346. The burden remains on the mov-ant to apportion time attributable to claims for which either contractual or statutory basis for fees exist. See Franzen v. Lacuna Golf Ltd. P’ship, 717 So.2d 1090, 1093 (Fla. 4th DCA 1998).

The multiple claims took this form in the end:

Party Claim Time Period Damages Fees Authorized

Company Breach of Employment Agreement May 2005 Wages; Benefits; Bonus Yes

Company Violation of FMLA June 2004 to May 2005 Wages; Benefits Yes

Board Chair Breach of Fiduciary Duty After June 2003 Stock Value; Loan; Interest; Bonus No

Board Chair Fraud in the Inducement Prior to June 2003 Stock Value No

Board Chair Breach of the Business Agreement June 2003 to May 2005 Loan; Interest Yes

We have previously held that claims arising out of the same contract can be considered separate and distinct. See, e.g., Fielder v.Weinstein Design Group, Inc., 842 So.2d 879, 880 (Fla. 4th DCA 2003) (allowing for competing prevailing party attorney’s fees awards because claims were separate and distinct). Fees authorized by contract apply only to claims based on the contract. Fees based on the FMLA apply only to the statutory claim. Neither of them provides for fees for the breach of fiduciary duty or fraud in the inducement claims.

The claims in this litigation arose along a timeline, but included claims that arose at different times, against different parties, sought different damages, were based on different legal theories, and provided for attorneys’ fees for only some of the claims. Pursuant to our de novo review, and applying Current Builders’ two-part rule, we find the claims to be separate and distinct.

As separate and distinct claims, the company and board chair argue the trial court erred in awarding attorneys’ fees for the claims that did not provide for such an award by either contract or statute. They further argue the employee failed to satisfy his burden of properly apportioning the time billed among the various claims. We agree.

The party seeking fees bears the burden to allocate time for which fees are awarda-ble or to show that the issues are so intertwined that allocation is unfeasible. Lubkey v. Compuvac Sys. Inc., 857 So.2d 966, 967 (Fla. 2d DCA 2003). And “[i]t is well settled that neither attorney’s fees nor costs may be awarded in the absence of an entitling provision in a contract, statute, or rule.” Frymer v. Brettschneider, 710 So.2d 10, 11-12 (Fla. 4th DCA 1998). Here, the employee’s attorneys did not allocate time to specific claims, which resulted in the trial court improperly awarding fees for claims that did not have a statutory or contractual basis. See Current Builders of Fla., Inc., 984 So.2d at 533.

We will uphold a trial court’s award of attorneys’ fees so long as it is supported by substantial, competent evidence. See Tutor Time Merger Corp. v. MeCabe, 763 So.2d 505, 506 (Fla. 4th DCA 2000). In Van Diepen v. Brown, 55 So.3d 612 (Fla. 5th DCA 2011), the Fifth District explained:

It is the party seeking attorney’s fees on multiple claims who has an affirmative burden to demonstrate what portion of the effort was expended on the claim that authorized attorney’s fees. If the moving party cannot meet his burden for any reason, including inadequate, confusing or imprecise timesheets or record keeping, he or she should not be awarded attorney’s fees for those vague or incomprehensible charges. That is to say, the party against whom fees are sought should not be punished because of the lack of adequate record keeping by the party seeking fees.

Van Diepen, 55 So.3d at 614 (internal citations omitted). The employee failed in his affirmative burden to apportion fees based upon claims for which fees were authorized. We therefore reverse the fee judgment and remand the case for further proceedings.

Next, both the company and the board chair argue the trial court erred in not requiring all of the attorneys who personally performed work on the case to testify at the fee hearing. With this issue, we agree with the employee.

An award of attorneys’ fees “must be supported by expert evidence, including the testimony of the attorney who performed the services.” Tutor Time Merger Corp., 763 So.2d at 506. This does not require, however, that every attorney who performed work on the case personally appear at the fee hearing. See Centex-Rooney, 725 So.2d at 1257.

Here, the supervising attorneys testified at the fee hearing. They had personal knowledge of the work performed by the non-testifying attorneys and staff and of their billing practices. We see no error in this regard.

The last issue we address is the cost judgment entered jointly and severally against the company and the board chair. The cost judgment did not differentiate between the costs associated with the claims against the company and those against the board chair even though some of the costs related to experts whose testimony was limited to specific claims for relief.

There were four different experts, who testified on different theories of liability and different damages. The cost of the employee’s expert concerning the punitive damages claim should have been assessed against the board chair alone, not the company. The same is true of the expert on corporate governance. This cost belonged to the board chair, not the company. Correspondingly, expert testimony concerning the statutory claim under the FMLA belonged to the company, not the board chair.

We therefore reverse and remand the case to the trial court to allow employee’s counsel to apportion their time according to those claims that have either a contractual or statutory basis for fees and to further apportion the time according to the party against whom those claims were directed. The expert witness costs.should be apportioned between the company and board chair according to the claims against each. See Rosen Bldg. Supplies, Inc. v. Krupa, 927 So.2d 899, 900 (Fla. 4th DCA 2005) (finding claims were not inextricably intertwined, remanding the fee award, and ordering the trial court to deduct the amount of fees and costs incurred in pursuing the unsuccessful claim).

Reversed and Remanded.

DAMOORGIAN, C.J., and GROSS, J., concur.

      . The record reveals that employee’s counsel developed his theory based on a portion of Judge Crow’s default judgment order which stated: "[The employee’s] initial claims arose out of a common core of operative facts .... ”

      . The board chair also argues that he never signed the business agreement in his individual capacity. However, the employee alleged that he had done so, and the default judgment entered on liability was an admission of the allegation. Mullne v. Sea-Tech Constr., Inc., 84 So.3d 1247, 1248-49 (Fla. 4th DCA 2012).

      . The alter-ego theory employed by the employee cannot transform separate claims into inextricably intertwined claims. The trial court’s conclusion that the board chair was, as a matter of law, an alter ego of the company simply fails to justify the joint and several attorneys’ fees award. See, e.g., Samuels v. King Motor Co. of Ft. Lauderdale, 782 So.2d 489, 499 (Fla. 4th DCA 2001) (failure to real-lege allegations in distinct counts caused a failure to state a claim for relief).


author: LEVINE, J.

text:
    Kendrick Duncan HERRING, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3354.
    District Court of Appeal of Florida, Fourth District.
    Jan. 29, 2014.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

Appellant appeals his convictions for first-degree murder and resisting arrest without violence. Appellant argues that the trial court erred in (1) disallowing lay opinion testimony about his sanity; (2) permitting the state to argue the absence of evidence, which had initially been excluded from the trial; and (3) denying his motion for judgment of acquittal based on insufficient evidence of murder by premeditation. We find that none of the issues merit reversal, and as such, we affirm appellant’s convictions and sentence.

Appellant lived with the victim, Kenneth Herring, who was appellant’s father. Appellant’s mother and the victim’s ex-wife, Nettie Herring, called the victim on the morning of August 5, 2007, and told him she would bring dinner to his house later. When she called to tell the victim that she was on the way, no one answered. Nettie arrived at the home at 4:00 p.m., and she saw the victim’s car in the yard. Eventually, Nettie called the police. The victim was found lying on the kitchen floor, covered with a blanket. Appellant, who was inside the house, attempted to leave but police apprehended him. While being detained by the police, appellant said his name was “God.”

At trial, the medical examiner determined that the victim was stabbed with scissors six times to the head and face. Two stab wounds near the victim’s eyes penetrated the brain stem and were lethal. The victim also sustained twelve stab wounds on the chest and neck area that were not lethal. A DNA analyst testified that the victim’s blood was on the scissors and on appellant’s clothing.

During cross-examination of Nettie, the state objected sidebar to appellant’s questioning her regarding appellant’s mental health issues and diagnosis. The trial court sustained the state’s objection, but permitted appellant’s counsel to question Nettie about appellant’s behavior and his “mental health issues generally.” The trial court stated to appellant that “[y]ou may bring her back later on in your case if it becomes relevant.... [A]t this juncture ... you are not permitted to ask her con-elusory opinions as a lay person that he has a mental illness.” Nettie testified to observing appellant talk to himself and that he would sometimes “bust out laughing.”

The state then moved in limine to prevent lay witnesses from testifying whether appellant was “crazy” or “mentally ill.” The trial court stated that witnesses could testify about unusual behavior, but whether appellant had a mental illness was an issue for the doctors. Appellant’s sister, brother, and the brother’s girlfriend all testified to appellant’s unusual behavior.

The trial court then granted the state’s motion to exclude and prevent Officer Fox from testifying that appellant appeared “possessed.” Officer Fox did testify that appellant said “he was God in the flesh, or something to that effect.” Appellant’s counsel proffered that Detective Toyota would testify that appellant appeared “crazy” to him. Appellant’s counsel noted that both Fox’s and Toyota’s statements would come into evidence later through the testimony of a psychologist. The trial court noted, “If it comes in through the doctors, then it’s in a different shade.” Detective Toyota, the lead investigator, testified that appellant “didn’t seem like he was acting normal.” The detective testified that appellant would “roll his eyes” and was not capable of giving any coherent information.

Dr. Fichera testified that appellant met the criteria for insanity. Dr. Fichera testified to appellant’s hallucinations, delusional beliefs, incoherent speech, and disorganized thought processes. At this point, the trial court, at sidebar, reversed its previous ruling and stated that “I made a mistake. Doctor, you can get into it only as to the witnesses that were close in time. So, that would be Detective Toyota, Fox. I apologize to you, I was wrong.”

Dr. Fichera testified to reviewing Detective Toyota’s report and that the detective thought appellant was “crazy.” Dr. Fich-era further testified that Officer Fox reported that appellant looked “possessed.”

The trial court later stated:
There’s a couple things I wanted to put on the record. To amplify what I said at side-bar_ I read the cases while I was sitting here, and in reading the cases I reversed my decision in this case based on the Garrón case in particular, as well as the Hixon case, I agree with your position. I probably should have even let them testify about it in the case in chief, but I think it’s cured by bringing it in that way. I just disagree with you, [the prosecutor], in your reading of that.

During closing arguments, appellant’s counsel argued, “Detective Toyota, a trained and skilled investigator, a homicide investigator for years, a police officer, I think, for 18 years, told you that in his opinion ... [appellant] was crazy.” Later, appellant’s counsel stated, “[Y]ou have the benefit of several police officers that came into contact with [appellant]. Several of them said, you know, possessed, crazy.”

During the state’s rebuttal closing arguments, the state argued:

[Defense counsel] said ... that Detective Toyota said he was crazy, and you heard it. I submit to you I don’t believe you heard that from Detective Toyota. Dr. Fichera told you that he reviewed Detective Toyota’s report, and according to Dr. Fichera, Detective Toyota said, yes, he was crazy.
I never said, Dr. Fichera, are you making that up. He says that’s what Detective Toyota said in his report, and I’m sure that’s in Detective Toyota’s report. ...

Appellant moved for a mistrial, arguing that the state intimated to the jury that Detective Toyota never said appellant was crazy. Appellant further argued that but for the trial court’s initial ruling, appellant would have elicited such testimony from the detective. Appellant acknowledged that “clearly, pursuant to the Court’s ruling, that we all knew, and I could have called Detective Toyota back.” The trial court denied the motion. Appellant was found guilty and sentenced to life in prison for first-degree murder.

On appeal, appellant argues that the trial court erred by preventing lay opinion testimony about his sanity. We find that based upon the evidence admitted about appellant’s unusual behavior, and the trial court’s ultimate reversal of its ruling on lay testimony, no reversible error occurred.

A trial court’s decision on the admissibility of evidence is reviewed for abuse of discretion, as limited by the rules of evidence. Jones v. State, 95 So.3d 426, 429 (Fla. 4th DCA 2012). Under the Florida Evidence Code, a lay witness may testify about an opinion regarding the witness’s perceptions if:

(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness’s use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and
(2)The opinions and inferences do not require a special knowledge, skill, experience, or training.

§ 90.701, Fla. Stat. (2011).

As the supreme court has explained:

A lay witness, testifying on his or her personal observation as to a defendant’s sanity, must have gained this personal knowledge in a time period reasonably proximate to the events giving rise to the prosecution. Thus, the opinion testimony as to appellant’s sanity could only come from those whose personal observation took place either at the [crime] or in close time proximity thereto.... Any lay opinion testimony as to the appellant’s sanity must necessarily be based on observations made in close time proximity to those events upon which appellant’s sanity is in question.

Garron v. State, 528 So.2d 353, 357 (Fla.1988); see also Hixon v. State, 165 So.2d 436, 441 (Fla. 2d DCA 1964) (“[A] nonex-pert witness who bases his testimony upon relevant facts and circumstances known to and detailed by him may give an opinion as to sanity.”).

To the extent that appellant argues the trial court erred in preventing lay opinion testimony from appellant’s family as to his sanity, this issue is not preserved as appellant did not proffer what testimony his family would have offered. See Morrison v. State, 818 So.2d 432, 448 n. 8 (Fla.2002). As to the exclusion of lay opinion testimony from the police officers regarding appellant’s sanity, any error was harmless under Cruse v. State, 588 So.2d 983 (Fla.1991). In Cruse, the supreme court found the trial court erred in excluding a lay witness’s opinion of the defendant’s mental condition but found the error harmless because the witness was allowed to testify about the defendant’s strange behavior. Like in Cruse, here the police officers were permitted to testify about appellant’s unusual behavior and were prevented only from saying that appellant appeared “crazy” or “possessed.” See also Reynolds v. State, 837 So.2d 1044, 1048 (Fla. 4th DCA 2002).

[5] Additionally, any error in excluding these statements was cured by the subsequent admission of these statements though Dr. Fichera’s testimony. See Calhoun v. State, _ So.3d _, 38 Fla. L. Weekly S779, 2013 WL 5878916 (Fla. Oct. 31, 2013) (finding error in excluding statements harmless because statements were cumulative to other information elicited during trial); Wright v. State, 994 So.2d 447 (Fla. 3d DCA 2008) (holding that error in excluding expert witness testimony on defendant’s sanity was harmless where other expert witnesses testified as to his sanity). Moreover, the trial court reversed its ruling during trial and permitted appellant to introduce lay opinion testimony as to his sanity. Thus, as appellant’s counsel acknowledged in his motion for mistrial, appellant could have recalled the police officers to introduce the previously excluded testimony, but he did not.

Appellant next contends that the trial court erred by permitting the state to argue during closing arguments that the police never testified that appellant was crazy, when the state had successfully excluded such testimony from trial. “Our standard for review of the denial of the motion for a mistrial is whether the trial court abused its discretion.” Miller v. State, 847 So.2d 1093, 1096 (Fla. 4th DCA 2003) (citation omitted). “A motion for a mistrial should only be granted when an error is so prejudicial as to vitiate the entire trial.” Pagan v. State, 830 So.2d 792, 814 (Fla.2002).

We find no error in the trial court’s denial of appellant’s motion for mistrial because the state’s comments during closing argument were a fair response to the statements made by appellant. During closing argument, appellant represented that Detective Toyota told the jury that appellant appeared crazy. In response, the state merely clarified that it was Dr. Fichera, not Detective Toyota, who testified that Detective Toyota described appellant as “crazy.” The state’s argument was a fair comment on the evidence and did not misrepresent any facts to the jury.

In his last argument, appellant asserts that the trial court erred in denying his motion for judgment of acquittal as to the charge of first-degree murder because there was legally insufficient evidence of a premeditated killing. A trial court’s denial of a motion for judgment of acquittal is reviewed de novo. Id. at 803. “Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence.” Id. “Where the element of premeditation is sought to be established by circumstantial evidence, the evidence relied upon by the state must be inconsistent with every other reasonable inference.” Cochran v. State, 547 So.2d 928, 930 (Fla.1989). “[A] trial court should rarely, if ever, grant a motion for judgment of acquittal based on the state’s failure to prove mental intent.” Hardwick v. State, 630 So.2d 1212, 1214 (Fla. 5th DCA 1994) (citation omitted).

In the present case, “the nature and number of the wounds inflicted” on the victim support a finding of premeditation. Hampton v. State, 103 So.3d 98, 119 (Fla.2012); see also Hodges v. State, 55 So.3d 515, 541 (Fla.2010) (“[T]he deliberate use of a knife to stab a victim multiple times in vital organs is evidence that can support a finding of premeditation.”) (quoting Williams v. State, 967 So.2d 735, 758 (Fla.2007)). The medical examiner testified that the victim was stabbed multiple times in his face, neck, and chest. Two of the stab wounds near the victim’s eyes penetrated the brain stem and were fatal. Given the evidence of multiple injuries to the head and neck, a reasonable jury could have concluded that appellant formed a premeditated intent to kill.

For all of the foregoing reasons, we affirm appellant’s convictions and sentence.

Affirmed.

STEVENSON and CIKLIN, JJ., concur.


author: SCHIFF, LOUIS H., Associate Judge.

text:
    ARCHSTONE PALMETTO PARK, LLC, and City of Boca Raton, a Florida Municipality, Appellants, v. Kathleen KENNEDY, James M. Sullivan, Peter S. Barbour, Douglas R. Bloch, Darold R. Hurlbert and John A. Clarke, Appellees.
    No. 4D12-4554.
    District Court of Appeal of Florida, Fourth District.
    Jan. 29, 2014.

      Gerald F. Richman and Manuel Farach of Richman Greer, P.A., West Palm Beach, and Charles L. Siemon and J. Michael Marshall of Siemon & Larsen, P.A., Boca Raton, for appellant Archstone Palmetto Park, LLC.
    Jamie A. Cole and Daniel L. Abbott of Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., Fort Lauderdale, and Diana Grub Frieser, City Attorney, Boca Raton, for appellant City of Boca Raton, a Florida Municipality.

      Ralf Brookes, Cape Coral, for appellees. Trela J. White and Jennifer G. Ashton of Corbett, White and Davis, P.A., Lantana, for Amicus Curiae, The Palm Beach County League of Cities, Inc.
    Jane West, St. Augustine, for Amicus Curiae, Florida Coalition for Preservation.
   SCHIFF, LOUIS H., Associate Judge.

On occasion, the Legislature provides explicit guidance as to its intent and how a statute is to be applied for a specific case. This is one such instance. We reverse the declaratory judgment in favor of the appel-lees, which interpreted a 2012 amendment to section 163.3167(8), Florida Statutes, as requiring the City of Boca Raton to submit a development order to public referenda. Read properly, the 2012 amendment served to reaffirm the longstanding prohibition on referenda for development orders while grandfathering in specific charter provisions permitting referenda in place as of June 1, 2011.

Factual Background

In February 2012, the City of Boca Raton adopted Ordinance 5203, which amended a previously-approved development order by, among other things, setting additional development approval requirements for a four-acre parcel of land owned by appellant Archstone. Although Ordinance 5203 was styled as an amendment, the parties stipulated that it was a “local government development order.”

One month after the ordinance’s passage, the appellees, a group of Boca Raton residents, collectively filed a petition, pursuant to Section 6.02 of the City’s charter, seeking a citywide referendum to determine whether Ordinance 5203 should be repealed. Although not specifically addressing development orders, Section 6.02 conferred upon the City’s residents a general power of referendum with regard to the passage of city ordinances, providing as follows:

The qualified voters of the city shall have the power by petition to require reconsideration by the council of any adopted ordinance or resolution, and if council fails to repeal an ordinance or resolution, to approve or reject it at a city election ....

At the time the appellees initiated their petition, section 163.3167(8), Florida Statutes (2011) (“the 2011 Amendment”), barred referendum proceedings for all development orders. As became effective on April 6, 2012, however, the Legislature amended section 163.3167(8) (the “2012 Amendment”) to permit local governments to “retain[ ] and implement^ ]” charter provisions that were in effect as of June 1, 2011, and provided “for an initiative or referendum process in regard to development orders.” § 163.3167(8), Fla. Stat. (2012) (emphasis added).

Unsure of the 2012 Amendment’s impact, the City brought suit in the circuit court seeking a declaratory judgment to the effect that development orders, such as Ordinance 5203, were not statutorily subject to referendum. One week later, Arch-stone, as the owner of the parcel subject to Ordinance 5203, intervened in the action as a co-plaintiff. Through their pleadings, the appellants collectively argued the City was powerless to process the appellees’ referendum petition since the 2012 Amendment’s “grandfather” clause applied only to a charter’s “express” referendum provision, and “the City has never had a referendum process that specifically applied to development orders.”

Following cross-motions for summary judgment, the trial court entered an order denying the appellants’ motions while granting that of the appellees. In its order, the trial court found that, through the passage of the 2012 Amendment, “the Legislature intended for the referendum process to be permitted for Development Orders, where ... the City Charter provided for this prior to June, 2011.” Accordingly, since Section 6.02’s general provision “for the referendum process on any Ordinances” impliedly included development orders, the trial court reasoned “the 2012 Amendment supported] the referendum process in th[e instant] case.”

To support its ruling, the trial court traced section 163.3167(8)’s legislative history, recognizing the 2012 Amendment was enacted to grandfather in previously permitted charter provisions rendered invalid under the 2011 Amendment’s blanket prohibition. Nevertheless, the trial court interpreted the statute’s inclusion of the phrase “development orders” to evidence the Legislature’s intent to expand the referendum process to all general charter provisions, such as Section 6.02, which inferentially, although not directly, apply to development orders. Additionally, given this expansive view, the trial court interpreted the 2012 Amendment as overruling this Court’s decision in Preserve Palm Beach Political Action Committee v. Town of Palm Beach, 50 So.3d 1176 (Fla. 4th DCA 2010), which questioned the efficacy of subjecting development orders to referendum.

The appellants challenge the trial court’s interpretation as contrary to the Legislature’s intent. Specifically, they argue the 2012 Amendment did nothing to disturb the previous bar on referendum for development orders, since its express purpose was to satisfy a contingent settlement agreement by grandfathering in a municipality’s limited charter provision. As an issue of statutory interpretation, our review is de novo. See Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006), cert. denied, 549 U.S. 1216, 127 S.Ct. 1268, 167 L.Ed.2d 92 (2007).

“Referendum is the right of the people to have an act passed by the legislative body submitted for their approval or rejection.” City of Coral Gables v. Carmichael, 256 So.2d 404, 411 (Fla. 3d DCA 1972) (quotation marks and citation omitted). In Florida, the availability of the referendum is constrained to those situations where “the people through their legislative bodies decide it should be used.” Fla. Land Co. v. City of Winter Springs, 427 So.2d 170, 172-73 (Fla.1983) (footnote omitted). In this regard, Article VI, section 5(a) of the Florida Constitution provides that “referenda shall be held as provided by law,” with the phrase “as provided by law” equating to “as passed ‘by an act of the legislature.’ ” Holzendorf v. Bell, 606 So.2d 645, 648 (Fla. 1st DCA 1992) (quoting Broward Cnty. v. Plantation Imports, Inc., 419 So.2d 1145, 1148 (Fla. 4th DCA 1982)); Grapeland Heights Civic Ass’n v. City of Miami, 267 So.2d 321, 324 (Fla.1972) (defining “law” as used in the Florida Constitution as “enacted] by the State Legislature”). Thus, as applied to this case, the appellees’ right to referendum is effectively tied to the reach of the 2012 Amendment.

Legislative History

“Legislative intent is the polestar that guides the interpretation and construction of a statute.” Anderson v. State, 87 So.3d 774, 777 (Fla.2012). “Where a statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent.” Beyel Bros. Crane & Rigging Co. of S. Fla., Inc. v. Ace Transp., Inc., 664 So.2d 62, 64 (Fla. 4th DCA 1995) (citing City of Miami Beach v. Galbut, 626 So.2d 192 (Fla.1993)). “However, when a statute is unclear or ambiguous as to its meaning, the Court must resort to traditional rules of statutory construction_” Murray v. Mariner Health, 994 So.2d 1051, 1061 (Fla.2008). In conducting such analysis, “courts are permitted to consider subsequently enacted legislation in determining the meaning of a statute,” Edward T. Byrd & Co. v. WPSC Venture I, 66 So.3d 979, 983 (Fla. 5th DCA 2011) (citing Martin Daytona Corp. v. Strickland Constr. Servs., 941 So.2d 1220, 1224 (Fla. 5th DCA 2006)), particularly where the “amendment was enacted soon after a controversy regarding the statute’s interpretation arose.” McKenzie Check Advance of Fla., LLC v. Betts, 928 So.2d 1204, 1210 (Fla.2006) (citing Lowry v. Parole & Prob. Comm’n, 473 So.2d 1248, 1250 (Fla.1985)).

To discern the Legislature’s intent in enacting the 2012 Amendment, first we must navigate the statute’s history. The limitations placed upon referenda for development orders originated in 1995, when the Legislature enacted section 163.3167(12), Florida Statutes (1995), which provided as follows:

An initiative or. referendum process in regard to any development order or in regard to any local comprehensive plan amendment or map amendment that affects five or fewer parcels of land is prohibited.

Applying this statute, this Court decided Preserve Palm Beach Political Action Committee v. Town of Palm Beach, 50 So.3d 1176 (Fla. 4th DCA 2010), rev. denied, 63 So.3d 750 (Fla.2011). Preserve Palm Beach involved the determination as to whether a proposed charter amendment constituted a development order, and thus was statutorily barred from referendum. In finding section 163.3167(12) to apply, this Court noted “ ‘the due process problems associated with subjecting small property owners to public referendum votes when they would otherwise be entitled to a quasi[-]judicial hearing and review procedures.’” Id. at 1179. Furthermore, we questioned the wisdom of subjecting a development order to referendum, stating:

The right of the people to vote on issues they are entitled to vote on is one of utmost importance in our democratic system of government. But there are issues — such as the right of a small landowner to use his property subject only to government regulations — which should not be determined by popular vote. Section 163.3167(12) rightfully protects the small landowner from having to submit her development plans to the general public and ensures that those plans will be approved or not, instead, by the elected officials of the municipality in a quasi-judicial process.

Id.

Less than a year after Preserve Palm Beach, the Legislature enacted the 2011 Amendment, which served to bar referen-da for all development orders, comprehensive amendments, and map amendments. See § 163.3167(8), Fla. Stat. (2011). Besides simply placing a limitation on referenda power, however, the 2011 Amendment also had the residual effect of invalidating the in-place charter provisions promulgated by several Florida municipalities, not including Boca Raton, which tracked the 1995 statute’s limited permission of referenda.

The Town of Yankeetown’s charter, for example, contained the following provision, which specifically permitted referenda for comprehensive plans affecting more than five parcels of land:

Section 11. Voter approval is required for approval of comprehensive land use plan or comprehensive land use plan amendments affecting more than five parcels except for amendments to the Capital Improvements Element of the Comprehensive Plan, including annual updates to the capital improvement schedule shall not require voter approval.

To combat their provision’s invalidation, the Town of Yankeetown filed a complaint in the Leon County circuit court seeking a declaratory judgment which would maintain its right to enforce Section 11, notwithstanding the 2011 Amendment’s prohibition. See Town of Yankeetown, FL v. Dep’t of Cmty. Affairs, et al., Case No. 37 2011 CA 002036 (Fla.2d Cir.Ct.2011).

To resolve the matter, Yankeetown and the Department of Community Affairs reached a proposed settlement contingent upon the Legislature amending section 163.3167(8) to “grandfather-in those charter provisions, such as Yankeetown’s, in place on the effective date of the Act that specifically provided for an initiative or referendum process relating to approval of any development order or any comprehensive plan or map amendment.” Fla. H.R. Comm, on Econ. Affairs, Subcomm. on Community & Military Affairs, and Workman, HB 7081 (2012), Staff Analysis 4 (Apr. 9, 2012) (emphasis added). From this settlement, the 2012 Amendment was enacted, providing in full as follows:

An initiative and referendum process in regard to any development order or in regard to any local comprehensive plan amendment or map amendment is prohibited. However, any local government charter provision that was in effect as of June 1, 2011, for an initiative or referendum process in regard to development orders or in regard to local comprehensive plan amendments or map amendments may be retained and implemented.

§ 163.3167(8), Fla. Stat. (2012).

Drawing from the statute’s history, the Legislature intended to enforce the 2011 Amendment’s impediment on the referendum process while exempting specific charter provisions permitting referendum, such as Yankeetown’s Section 11, in place as of June 2011. Without express wording to the contrary, we decline to infer that the Legislature intended to radically expand the referendum process through general charter provisions, where such provisions are commonplace throughout our state. See Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (“[Cjourts must presume that a legislature says in a statute what it means and means in a statute what it says there.”).

2013 Amendment and the Intent of the Legislature

Such interpretation is cemented by a 2013 amendment to section 163.3167(8), which provided as follows:

(8) (a) An initiative or referendum process in regard to any development order is prohibited.
(b) An initiative or referendum process in regard to any local comprehensive plan amendment or map amendment is prohibited. However, an initiative or referendum process in regard to any local comprehensive plan amendment or map amendment that affects more than five parcels of land is allowed if it is expressly authorized by specific language in a local government charter that was lawful and in effect on June 1, 2011. A general local government charter -provision for an initiative or referendum process is not sufficient.
(c) It is the intent of the Legislature that initiative and referendum he prohibited in regard to any development order.... Therefore, the prohibition on initiative and referendum stated in paragraphs (a) and (b) is remedial in nature and applies retroactively to any initiative or referendum process commenced after June 1, 2011, and any such initiative or referendum process that has been commenced or completed thereafter is hereby deemed null and void and of no legal force and effect.

§ 163.3167(8)(a)-(c), Fla. Stat. (2013) (emphasis added). As grounds for this amendment, the committee staff made express reference to the instant case in its accompanying May 14, 2013 staff analysis, stating:

In October 2012, the Palm Beach County Circuit Court ruled that CS/HB 7081 (2012) extended the exception to all local government general referendum or initiative charter provisions in effect as of June 1, 2011. The court held that such a general provision encompassed specific land amendments, such as development orders and comprehensive map amendments, despite the charter language not specifically authorizing either. This broad interpretation is contrary to the intent of the 2011 and 2012 legislation, which sought to restrict these voting mechanisms.

Fla. H.R. Comm, on Econ. Affairs, Sub-comm. on Economic Development & Tourism, and Trujillo, Perry, HB 7019 (2013), Staff Analysis 4-5 (May 14, 2013) (footnote omitted) (emphasis added).

“While we recognize that staff anal-yses are not determinative of final legislative intent, they are, nevertheless, ‘one touchstone of the collective legislative will.’ ” White v. State, 714 So.2d 440, 443 n. 5 (Fla.1998) (quoting Sun Bank/S. Fla., N.A. v. Baker, 632 So.2d 669, 671 (Fla. 4th DCA 1994)). Here, the above-mentioned staff analysis, when taken in conjunction with the changes made to section 163.3167(8), clearly expresses the Legislature’s intent to bar referendum for development orders unless exempted by specific authorization that existed before June 1, 2011. Accordingly, we reverse the declaratory judgment with instructions for the trial court to enter a declaratory judgment in accordance with this opinion.

Reversed and remanded.

MAY and CIKLIN, JJ„ concur.

      . Read in conjunction, Section 6.04 of the City’s Charter provides the means of commencing such proceedings, providing as follows:
      Any five (5) qualified voters may commence initiative or referendum proceedings by filing with the city clerk an affidavit stating that they will constitute the petitioners' committee and be responsible for circulating the petition and filing it in the proper form, representing the petitioners in any subsequent formal proceedings, and withdrawing a submitted petition.

      . As of 2011, the local governments containing a specific referendum or initiative process affected by the 2011 Amendment included Yankeetown, Longboat Key, Key West, and Miami Beach. Fla. H.R. Comm. on Econ. Affairs, Subcomm. on Community & Military Affairs, and Workman, HB 7081 (2012,) Staff Analysis 3 n. 2 (Apr. 9, 2012).


text:
    Richard CORATELLO, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-881.
    District Court of Appeal of Florida, Fourth District.
    Jan. 29, 2014.

      Richard Coratello, Bristol, pro se.
    No appearance required for appellee.
   PER CURIAM.

Richard Coratello appeals a post-conviction circuit court order which denied his habeas corpus petition, his separate petition alleging ineffective assistance of counsel, and which struck or dismissed his three motions for post-conviction relief with leave to amend by August 1, 2014. We affirm the denial of the two petitions without the need for discussion, as they are clearly without merit.

The balance of the circuit court’s order striking or dismissing the three motions for post-conviction relief with leave to amend is non-fínal and non-appealable at this time. We therefore dismiss this portion of the appeal without prejudice since the order provides that Coratello has until August 1, 2014 in which to file a single, amended motion for post-conviction relief. If he fails to do so, the circuit court may enter a final order disposing of his earlier filed motions for post-conviction relief, which would be appealable to this court. Farnworth v. State, 34 So.3d 251 (Fla. 4th DCA 2010). Should Coratello timely file an amended motion, the trial court’s final order on the amended motion would likewise be appealable.

Affirmed in part, dismissed in part, without prejudice.

DAMOORGIAN, C.J., WARNER and LEVINE, JJ., concur.