author: CASANUEVA, Judge.

text:
    Joseph E. ABDO, Petitioner, v. STATE of Florida, Respondent.
    No. 2D13-5644.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2014.

      Lee Segal of Segal & Schuh Law Group, P.L., Clearwater, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Respondent.
   CASANUEVA, Judge.

Joseph E. Abdo petitions for a writ of certiorari seeking review of an order denying his emergency motion for protective order. Mr. Abdo’s motion for protective order sought to expunge a video and voice recording of Mr. Abdo, which the State seeks to use as evidence in criminal cases to which Mr. Abdo is not a party. Mr. Abdo argues the recording was taken without his knowledge or consent and thus is subject to exclusion pursuant to chapter 934, Florida Statutes (2013). After hearing argument of counsel and viewing the video, the trial court concluded that the recorded communication was not subject to exclusion pursuant to chapter 934. For the reasons stated below, we grant Mr. Abdo’s petition, quash the order of the trial court, and remand for an evidentiary hearing.

To obtain relief by certiorari, the petitioner must establish “both irreparable harm, further defined as a material injury that cannot be remedied on plenary review, and a departure from the essential requirements of the law.” Allstate Ins. Co. v. Total Rehab & Med. Ctrs., Inc., 123 So.3d 1162, 1163 (Fla. 4th DCA 2013). The trial court’s order in this case meets the irreparable harm prong of our analysis, as it would make available to the public the recording Mr. Abdo seeks to protect as private pursuant to chapter 934, and the harm could not be remedied on appeal due to Mr. Abdo’s nonparty status. See Dep’t of Corr. v. Grubbs, 884 So.2d 1147, 1147 (Fla. 2d DCA 2004) (stating petitioner’s nonparty status in criminal proceedings left it with no adequate remedy by direct appeal); Armor Corr. Health Servs., Inc. v. Ault, 942 So.2d 976, 977 (Fla. 4th DCA 2006) (“Because Armor is not a party to the criminal case, a direct appeal in that case will not provide it with relief.”); Fla. Dep’t of Health & Rehabilitative Servs. v. Myers, 675 So.2d 700, 701 (Fla. 4th DCA 1996) (determining that petitioner, a non-party to the action, lacked an adequate remedy by direct appeal after final judgment). Absent review via petition for writ of certiorari, Mr. Abdo would be left with no adequate remedy on appeal and would be denied the safeguards provided for in chapter 934. Cf McDade v. State, 114 So.3d 465, 469-71 (Fla. 2d DCA 2013) (reviewing, on direct appeal by defendant, whether recording should have been suppressed pursuant to chapter 934).

Next, we must determine whether the trial court’s order departs from the essential requirements of law under chapter 934. The stated legislative purpose of chapter 934 is “to define the circumstances and conditions under which the interception of wire and oral communications may be authorized and to prohibit any unauthorized interception of such communications and the use of the contents thereof in evidence in courts and administrative proceedings.” § 934.01(2).

“Oral communication” is defined as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation .... ” § 934.02(2). Protection under chapter 934 requires not only a subjective expectation of privacy, but the expectation must also be reasonable in order for the communication to be protected. State v. Inciarrano, 473 So.2d 1272, 1275 (Fla.1985).

Significant factors used in determining the reasonableness of the utterer’s expectation of privacy in a conversation include “the manner in which the oral communication is made and the kind of communication,” and “the location in which the conversation or communication occurs.” Stevenson v. State, 667 So.2d 410, 412 (Fla. 1st DCA 1996). Thus, “ ‘[conversations occurring inside an enclosed area or in a secluded area are more likely to be protected under section 934.02(2).’” Id. at 412 (quoting Cinci v. State, 642 So.2d 572, 573 (Fla. 4th DCA 1994) (finding no reasonable expectation of privacy where conversation occurred in an apartment building courtyard)); see also Chandler v. State, 366 So.2d 64, 70 (Fla. 3d DCA 1978) (finding no reasonable expectation of privacy in open-air conversations held over walkie-talkies).

In Stevenson, 667 So.2d 410, the Fourth District determined a statement did not qualify as oral communication where a defendant’s conversation was overheard by the police using bionic ears. Stevenson, while sitting in his van, spoke through an open window to two men standing on a public street. The men were conducting a drug deal with Stevenson. The court noted that “the parties took no action to ensure privacy for their conversation — they met on a public street and did not attempt to enter the van to converse.” Id. at 412. The court went on to conclude that the claimed expectation of privacy is not one that society would recognize as reasonable. Id. at 413.

In this case, Mr. Abdo argues that the video and voice recording, taken while he was a passenger in his own vehicle, was taken without his knowledge or consent under circumstances in which he had an expectation of privacy and thus should be protected under chapter 934. Significantly, there was no testimony provided at the hearing on Mr. Abdo’s motion for protective order. After argument of counsel, the trial court took the matter under consideration and apparently later viewed the recording.

Based upon a review of the recording, the trial court found the communication was made in a moving vehicle in broad daylight while travelling down public roads, and the recording was less than forty-two seconds long. The trial court found it was unclear how many people were in the vehicle, whether Mr. Abdo was aware of the recording, who recorded the video, and what was said on the recording. The trial court then found the communication in question “was not made ‘exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.’ ” The court concluded that the communication in question is not subject to exclusion under chapter 934.

The trial court departed from the essential requirements of law by reaching such a conclusion based only upon its review of the video where the communication was made by Mr. Abdo in an enclosed vehicle, which was owned by him, while the vehicle was in motion. Furthermore, Mr. Abdo is not a party to the criminal cases in which the State seeks to introduce the recording as evidence, and there is no allegation that Mr. Abdo was a participant in criminal activity, a factor relied on in Stevenson and Inciarrano to conclude the statements were not protected.

Under the known circumstances in this case, there was insufficient evidence for the court to conclude that the communication lacked a reasonable expectation of privacy and was thus not subject to exclusion under chapter 934. The order of the trial court is quashed, and the cause is remanded for an evidentiary hearing on the motion for protective order.

Petition granted; order quashed; remanded.

NORTHCUTT and WALLACE, JJ., Concur.


source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    WINDERTING INVESTMENTS, LLC, a Florida limited liability company, and Helen Emily Kwok, an individual, Petitioners, v. Gregory FURNELL, an individual, Darlene Braden, an individual, and Jamie Johnston, n/k/a Jamie Tanner, an individual, Respondents.
    No. 2D14-6.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2014.

      Thomas C. Saunders and Alan L. Perez of Saunders Law Group, Bartow, for Petitioners.

      Daniel F. Pilka and Dixie T. Brady of Pilka & Associates, P.A., Brandon, for Respondents.
   WALLACE, Judge.

Helen Emily Kwok, a nonparty in the proceedings in the circuit court, and Win-derting Investments, LLC (Winderting), seek review by certiorari of an order denying a motion for a protective order seeking to prevent the discovery of Mrs. Kwok’s personal financial information by three judgment creditors of KMPB Group USA, Inc. (KMPB). Because the judgment creditors failed to establish any facts demonstrating that the discovery of Mrs. Kwok’s personal financial information was reasonably calculated to identify or to lead to the discovery of assets that could be reached to satisfy the judgment, we grant the writ and quash the circuit court’s order.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

In January 2005, Mrs. Kwok and Michael Kwok formed two entities in Florida: KFSL Investments, Inc. (KFSL), and Imperial Management Group, Inc. KFSL was converted to a limited liability company with a similar name in 2010. In May 2008, the name of Imperial Management Group, Inc., was changed to KMPB Group USA, Inc. For the sake of clarity, we will refer to this entity as KMPB in the remainder of this opinion.

The principal asset of KFSL was a hotel located in Lakeland known as the “Imperial Swan Hotel & Suites” (the Hotel). KMPB managed the Hotel in accordance with a written contract with KFSL. Because KMPB was a single purpose entity formed to manage the Hotel, it had little or no hard assets. Michael Kwok served as the registered agent and president or sole managing member of KFSL until 2010. In 2012, Mrs. Kwok became the registered agent and sole managing member of KFSL. Mrs. Kwok was the president of KMPB until 2011. The record does not disclose the identities of the shareholders of these companies, but Mrs. Kwok seems to have had some association with or connection to both of them.

In 2006 and early 2007, Gregory Furnell, Darlene Braden, and Jamie Johnston, n/k/a Jamie Tanner (the judgment creditors), became employed at the Hotel. KMPB issued the paychecks to the judgment creditors for their services. On December 8, 2008, the judgment creditors filed an action alleging a variety of employment and related claims against “KMPB Group, USA D/B/A Imperial Swan Hotel & Suites” and against an individual named Sherman Clark. Following service of process, the trial court entered defaults against both defendants and subsequently conducted a nonjury trial on damages. The judgment creditors ultimately recovered a judgment for $3,000,773 against KMPB. Of this amount, the trial court ordered Mr. Clark to pay $250,000 to Jamie Johnston, n/k/a Jamie Tanner.

On March 1, 2012, at a time when the judgment remained unpaid, KFSL executed a special warranty deed transferring ownership of the Hotel property to Win-derting. Mrs. Kwok was then the sole member/manager of KFSL and Windert-ing; she was also the registered agent and the sole officer of KMPB. At this point in the narrative, the reader should bear in mind that the judgment was entered against KMPB, the management company, not against KFSL, the owner of the Hotel property.

On November 6, 2012, after the judgment creditors discovered the transfer of the ownership of the Hotel property from KFSL to Winderting, they filed an “Emergency Motion for Temporary Restraining Order and to Appoint Receiver.” In this motion, the judgment creditors moved for the appointment of a “receiver for the Imperial Swan Hotel & Suites to take all actions necessary to collect the judgment.” The judgment creditors also alleged that: (1) the transfer of the ownership of the Hotel is void; (2) the Kwoks created Win-derting for the sole purpose of attempting to defraud creditors; (3) the Kwoks were always the sole owners of the Hotel and held themselves out as such; (4) the Kwoks were still in the possession of the Hotel; (5) Mrs. Kwok, Mr. Kwok, KFSL, and Winderting should be impleaded as defendants in proceedings supplementary; (6) Mrs. Kwok and Mr. Kwok dominate and control KMPB, KFSL, and Windert-ing in such a way that these entities are merely the “alter egos” of each other and are used for the personal benefit of Mrs. Kwok and Mr. Kwok; and (7) the judgment “is enforceable and may be executed against the property currently owned by Winderting.”

The appendices provided by the parties do not include an order specifically granting the “Emergency Motion for Temporary Restraining Order and to Appoint Receiver.” Insofar as we can tell, the trial court did not enter a restraining order or appoint a receiver of the Hotel property. However, on December 10, 2012, the trial court entered an order titled “Order on Plaintiffs’ Motion to Add Defendant.” This order states that Winderting is added “as a party defendant to this lawsuit.” The status of Winderting in the proceedings as a result of this order is uncertain. There is no order reopening the underlying action or initiating proceedings supplementary under section 56.29, Florida Statutes (2012). One thing is clear — the trial court did not amend the judgment to add Winderting or any other person or entity as a judgment debtor.

From this point on, the parties appear to have treated the Emergency Motion as a supplemental pleading under Florida Rule of Civil Procedure 1.190(d). The judgment creditors commenced a new round of discovery. Here, we arrive at the subject of the petition for certiorari filed by Mrs. Kwok and Winderting. The judgment creditors issued subpoenas duces tecum without deposition to three nonparties. The subpoenas were directed to Bank of America, TD Bank, and Westpac Bank. The subpoena to Bank of America sought all bank account records for KMPB as well as all checking and savings account records for Mrs. Kwok from January 1, 2006, to the present. The subpoenas to TD Bank and Westpac Bank sought only Mrs. Kwok’s bank account records for the same period.

Mrs. Kwok and Winderting moved for a protective order blocking the production of Mrs. Kwok’s financial information from the three banks. No objection was made to the production of the financial records of KMPB, the judgment debtor. In the motion, Mrs. Kwok and Winderting observed that they had already provided “a litany of banking information,” including bank statements for every company involved in the case. Mrs. Kwok and Win-derting objected solely to the production of Mrs. Kwok’s personal financial information. After a hearing, the circuit court entered an order denying the motion, for a protective order. This petition for certio-rari followed..

II. THE AVAILABILITY OF RELIEF BY CERTIORARI

A petition for certiorari is appropriate to review a discovery order when the “order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.” Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995) (citing Martin-Johnson, Inc. v. Savage, 509 So.2d 1097,1099 (Fla.1987)). An order compelling the production of documents by a nonparty is reviewable by certiorari because he or she has no adequate remedy by appeal. Price v. Han-nahs, 954 So.2d 97,100 (Fla. 2d DCA 2007) (citing Nussbaumer v. State, 882 So.2d 1067, 1072 (Fla. 2d DCA 2004)). Thus, in order to obtain relief, the petitioner must demonstrate a departure from the essential requirements of law and material injury. See id. (citing Syken v. Elkins, 644 So.2d 539 (Fla. 3d DCA 1994), approved, 672 So.2d 517 (Fla.1996)).

III. THE APPLICABLE LAW

Florida Rule of Civil Procedure 1.560(a) provides as follows: “In aid of a judgment, decree, or execution the judgment creditor or the successor in interest, when the interest appears of record, may obtain discovery from any person, including the judgment debtor, in the manner provided in these rules.” “A judgment creditor should be allowed broad discovery into the debtor’s finances.” Jim Appley’s Trw-Arc, Inc. v. Liquid Extraction Sys. Ltd. P’ship, 526 So.2d 177, 179 (Fla. 2d DCA 1988). The matters relevant to post-judgment discovery “are concerned with information that will enable the judgment creditor to collect the debt.” Regions Bank .v. MDG Frank Helmerich, LLC, 118 So.3d 968, 969 (Fla. 2d DCA 2013)- (citing Citibank, N.A. v. Plapinger, 461 So.2d 1027 (Fla. 3d DCA 1985)). In cases that have already proceeded to the entry of a money judgment,

The creditor has the right to discover any assets the debtor might have that could be subject to levy or execution to satisfy the judgment, or assets that the debtor might have recently transferred. Broad discovery of a debtor’s assets is permitted postjudgment — the debtor’s assets, whether held individually or jointly, are relevant to collecting the debt owed.

Id. at 970 (citations omitted). “If a proper predicate is'laid, someone other than the judgment debtor may be required to submit to financial discovery.” Gen. Elec. Capital Corp. v. Nunziata, 124 So.3d 940, 943 (Fla. 2d DCA 2013); see also Jim Appley’s Trvr-Arc, 526 So.2d at 179 (“[W]e do agree with the trial court’s rulings insofar as they prohibited discovery into the separate income and assets of [the judgment debtor’s wife], individually, until a proper predicate has been shown.”) (citing Rose Printing Co. v. D’Amato, 338 So.2d 212 (Fla. 3d DCA 1976)). When a judgment creditor seeks to discover the personal financial information of a nonparty, he or she bears the burden of proving that the information sought is relevant or is reasonably calculated to lead to the discovery of admissible evidence. Rowe v. Rodriguez-Schmidt, 89 So.3d 1101, 1103 (Fla. 2d DCA 2012) (citing Spry v. Prof l Emp’r Plans, 985 So.2d 1187, 1188-89 (Fla. 1st DCA 2008)).

IV. DISCUSSION

The trial court’s order denying the motion for protective order quotes from Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114, 1117 (Fla.1984), which states: “[C]ourts will look through the screen of corporate entity to the individuals who compose it in cases in which the corporation ... is a mere instrumentality or agent of another corporation or individual owning all or most of its stock.” (quoting Mayer v. Eastwood, Smith & Co., 122 Fla. 34, 164 So. 684, 687 (1935)). The circuit court’s reference to the Dania Jai-Alai case is appropriate as far as it goes. However, standing alone, the circuit court’s reliance on the proposition stated in Dania Jai-Alai overlooks certain larger principles, which are worth restating here:

Every corporation is organized as a business organization to create a legal entity that can do business in its own right and on its own credit as distinguished from the credit and assets of its individual stockholders. The mere fact that one or two individuals own and control the stock structure of a corporation does not lead inevitably to the conclusion that the corporate entity is a fraud or that it is necessarily the alter ego of its stockholders to the extent that the debts of the corporation should be imposed upon them personally. If this were the rule, it would completely destroy the corporate entity [as] a method of doing business and it would ignore the historical justification for the corporate enterprise system.
We therefore hold that in order to justify the issuance of a rule directing individual stockholders to show cause why they should not be held personally accountable for the corporation’s debts, there should be a preliminary showing that the corporation is in actuality the alter ego of the stockholders and that it was organized or after organization was employed by the stockholders for fraudulent or misleading purposes, or in some fashion that the corporate property was converted or the corporate assets depleted for the personal benefit of the individual stockholders, or that the corporate structure was not bona fidely established or, in general, that property belonging to the corporation can be traced into the hands of the stockholders.
It isn’t sufficient merely to show that the corporation exists and that there are a limited number of stockholders doing business in good faith through the corporate entity. From a procedural standpoint we hold that a showing similar to that suggested in summary above be made before the rule nisi is issued and directed against the individual stockholders. If this requirement were not made then every judgment against a corporation could be exploited as a vehicle for harassing the stockholders and entering upon fishing expeditions into their personal business and assets.

Advertects, Inc. v. Sawyer Indus., Inc., 84 So.2d 21, 28-24 (Fla.1955).

Here, the judgment creditors have not made a showing that Mrs. Kwok formed or used KMPB, KFSL, or Win-derting for the purpose of perpetuating a fraud. Mrs. Kwok may have owned or had an interest in all three of these companies at various times; the details are not entirely clear from the record. However, there is no evidence that the corporate formalities for these entities were not observed or that Mrs. Kwok improperly diverted money or other property from the corporate entities to hferself. Unproven allegations containing terms such as “alter ego” and “fraud” are not a substitute for the kind of evidence deemed essential by the Florida Supreme Court in Advertects to hold stockholders personally liable for corporate debts. Furthermore, the fact of the transfer of the Hotel property from KFSL to Winderting does not enlarge the judgment creditors’ rights. The judgment creditors did not sue or obtain a judgment against KFSL. It follows that the judgment creditors were not harmed by KFSL’s transfer of the Hotel property to Winderting.

V. CONCLUSION

To summarize, the judgment creditors failed to carry their burden of showing that the discovery of Mrs. Kwok’s personal financial information was relevant or reasonably calculated to lead to the discovery of admissible evidence. The judgment creditors obtained their three million-dollar judgment against KMPB, a management company that apparently had insufficient assets to satisfy the judgment. Mrs. Kwok was associated with both KMPB and KFSL, a separate company that owned the Hotel managed by KMPB. These facts— without more — not give the judgment creditors carte blanche to inquire into Mrs. Kwok’s personal financial information. In order to inquire into the personal financial information of a nonparty such as Mrs. Kwok, the judgment creditors were required to lay a proper predicate. That predicate would necessarily include a showing that the proposed financial discovery “would encompass matters identifying or leading to the discovery of assets available for execution.” Nunziata, 124 So.3d at 943 (quoting 4 Bruce J. Berman, Ber-man’s Florida Civil Procedure ¶ 560.03[5] (2013)). Because the judgment creditors failed to lay such a predicate, the trial court departed from the essential requirements of law in entering the order that denied Mrs. Kwok’s motion for protective order. For this reason, we grant the writ and quash the circuit court’s order.

Writ granted; order quashed.

ALTENBERND and SLEET, JJ., Concur.

      . At this point, Mrs. Kwok was known as Helen Emily James. In the interest of clarity, we will continue to refer to her as Mrs. Kwok.


author: KHOUZAM, Judge.

text:
    Reashod ROSIER, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4865.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2014.

      Reashod Rosier, pro se.
   KHOUZAM, Judge.

Reashod Rosier appeals the summary denial of his motion filed under Florida Rule of Criminal Procedure 3.850. Because the postconviction court erroneously determined that Rosier’s amendments to his motion were untimely, we reverse and remand for further proceedings with respect to the amendments. We affirm the postconviction court’s denial of Rosier’s other grounds without comment.

A jury found Rosier guilty of attempted first-degree murder and armed robbery with a firearm, and the court sentenced Rosier to life imprisonment on both charges. This court affirmed Rosier’s convictions and sentences. See Rosier v. State, 943 So.2d 1018 (Fla. 2d DCA 2006) (per curiam). The mandate issued on January 10, 2007. Rosier filed his initial rule 3.850 motion on April 4, 2007. On April 16, 2008, after considering a response from the State, the postconviction court entered an order denying in part and dismissing in part Rosier’s rule 3.850 motion; this order did not specify a timeframe for Rosier to amend his dismissed claims.

Rosier then filed a motion for leave to amend along with an amendment to his 3.850 motion addressing the claims that were dismissed by the postconviction court’s prior order. However, this motion did not include the oath required by rule 3.850(c). On September 17, 2008, the post-conviction court granted Rosier’s motion to amend, but ordered him to refile the motion with the proper oath within thirty days. Over a year later, on October 26, 2009, Rosier filed an amendment to his rule 3.850 motion, asserting that he filed an amended motion on September 30, 2008, but the postconviction court had still not entered a final order on the motion. The postconviction court dismissed, with prejudice, the October 26, 2009, amendment as untimely because it was not filed within thirty days of the September 17, 2008, order granting leave to amend and was filed outside of the two-year limitation in rule 3.850(b).

Rosier timely moved for rehearing, arguing that both amendments were timely filed because he placed an amended motion in prison officials’ hands for mailing on September 30, 2008, even though the post-conviction court apparently did not receive it. Rosier attached a copy of the amendment to this motion for rehearing; although it does not contain a prison stamp, it does contain a certificate of service indicating that it was placed into the hands of prison officials for mailing on September 30, 2008. After receiving no ruling on his motion for rehearing, Rosier filed a “notice of action,” on September 3, 2013. On September 20, 2013, the posteonviction court found that Rosier’s motion for rehearing was timely filed and denied it.

Absent proof otherwise, the date reflected on the certificate of service of a pro se inmate’s document is presumed to be the date on which the document was filed. See Fla. R. App. P. 9.420(a)(2); Thompson v. State, 761 So.2d 324, 326 (Fla.2000); Curtis v. State, 106 So.3d 56, 57 (Fla. 2d DCA 2013). Because Rosier’s amended rule 3.850 motion contained a certificate of service showing that it was handed over for mailing on September 30, 2008, and nothing in the record suggests otherwise, the amended motion is presumed to be timely filed. Thus, the post-conviction court erred in finding that Rosier’s September 30, 2008, amendment was untimely, and we must reverse.

Where such a presumption arises, the burden shifts “to the State to prove that the document was not timely placed in prison officials’ hands for mailing.” Thompson, 761 So.2d at 326; see also Pagan v. State, 899 So.2d 1203, 1205 (Fla. 2d DCA 2005) (reversing and remanding for an evidentiary hearing to determine whether the defendant timely created the motion and entrusted it to prison officials). Thus, on remand, the posteonviction court should allow the State an opportunity to rebut the presumption of timeliness.

If the State is unable to rebut this presumption and the posteonviction court finds that Rosier timely handed the amendment to prison officials on September 30, 2008, then his October 26, 2009, amendment should also be considered timely filed because the posteonviction court had not yet disposed of the September 30, 2008, amendment. See Williams v. State, 99 So.3d 593, 597 (Fla. 2d DCA 2012); Bulley v. State, 857 So.2d 237, 239-40 (Fla. 2d DCA 2003); Graham v. State, 846 So.2d 617, 618 (Fla. 2d DCA 2003) (“A timely-filed rule 3.850 motion, prior to the trial court’s disposition of the motion, may be amended with sworn allegations relevant to the issue or issues raised in the motion, even after the two-year time period for filing a timely rule 3.850 motion has expired.”).

For the foregoing reasons, we reverse the order denying Rosier’s motion for rehearing and remand to the posteonviction court to reconsider the issue of timeliness and, if appropriate, rule upon the merits of the amendments.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and WALLACE, JJ„ Concur.


author: BLACK, Judge.

text:
    Jacquelyn A. ASTEBERG f/k/a Jacquelyn Russell, Petitioner, v. Jeffrey L. RUSSELL, Respondent.
    No. 2D13-5890.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2014.

      Allison M. Perry of Florida Appeals & Mediations, P.A., Tampa; and Rana Holz of Rubinstein & Holz, P.A., Fort Myers, for Petitioner.
    No appearance for Respondent.
   BLACK, Judge.

Jacquelyn Asteberg (Former Wife) seeks certiorari review of the lower court’s order rendered on November 22, 2013, requiring her to submit to a psychological examination. The Former Wife asserts that the lower court departed from the essential requirements of the law by ordering the evaluation when it had not been established that her mental condition was in controversy and where there had been no showing of good cause as required by Florida Rule of Civil Procedure 1.360. Additionally, the Former Wife asserts that the lower court denied her due process right to notice since she was not advised prior to the hearing that her mental condition was at issue. We agree and grant the petition.

On October 30, 2013, a hearing was held on the Former Wife’s motion for leave to file an amended answer and motion for leave to file a counterpetition. At the hearing it was revealed that the minor child had chosen not to visit the Former Husband since June 2013. Though the Former Husband wished to see his child, the Former Husband did not want to force her to see him. The lower court surmised that if the Former Wife was indeed supportive of the child’s relationship with the Former Husband, he would be able to see his child pursuant to the timesharing order. The lower court emphasized that the Former Wife is responsible for promoting the child’s relationship with the Former Husband because she has primary residential custody of the child. Thereafter, the lower court sua sponte ordered the Former Wife to undergo a psychological evaluation. The court made no findings to support its ruling.

“Certiorari jurisdiction lies to review an order compelling a mental examination.” J.B. v. M.M., 92 So.3d 888, 889 (Fla. 4th DCA 2012); see also Vo v. Bui, 680 So.2d 601, 601 (Fla. 2d DCA 1996). Rule 1.360(a)(1) provides that “[a] party-may request any other party to submit to ... examination by a qualified expert when the condition that is the subject of the requested examination is in controversy.” An examination under the rule “is authorized only when the party submitting the request has good cause for the examination.” Fla. R. Civ. P. 1.360(a)(2). “This court has found that to be ‘in controversy,’ the condition must directly involve a material element of the cause of action and that to show ‘good cause’ for the examination, it must be demonstrated that expert medical testimony is necessary to resolve the issue.” Williams v. Williams, 550 So.2d 166, 167 (Fla. 2d DCA 1989) (citing Gas-parino v. Murphy, 352 So.2d 933, 935 (Fla. 2d DCA 1977)).

The Former Wife’s mental condition was certainly not a material element of her motions to file an amended answer and a counterpetition. Additionally, there were no allegations regarding her mental condition made at the hearing, and the court did not make any findings regarding such. At most, the transcript of the hearing demonstrates that the lower court believed that the Former Wife was not supporting or otherwise promoting the child’s relationship with the Former Husband since the child was choosing not to see the Former Husband. Such does not demonstrate that the Former Wife’s mental health was in controversy nor demonstrate good cause for a psychological evaluation. See id. at 168 (“Conclusory allegations alone do not put the appellant’s mental health ‘in controversy’ nor demonstrate ‘good cause’ for submission to examination.”); Wade v. Wade, 124 So.3d 369, 375 (Fla. 3d DCA 2013) (“A parent’s mental state is typically at issue in a custody hearing only when there are verified allegations that the parent in question is having mental problems that could substantially impact his or her ability to properly raise children.”). Further, the lower court did not modify custody or timesharing, indicating that it did not in fact have good cause to believe that the Former Wife’s behavior was adversely affecting the child. See Wade, 124 So.3d at 376 (“[T]he trial court ordered that the children should go home with the Mother for visitation the very same afternoon that it ordered her to undergo a mental evaluation. Thus, the trial court clearly did not think there was ‘good cause’ to believe that the Mother’s mental status jeopardized the children’s well-being.”).

Notwithstanding the foregoing, the lower court also departed from the essential requirements of the law in ordering the mental evaluation without notice to the Former Wife that her mental condition was at issue. See Florida Bar v. Centurion, 801 So.2d 858, 863-64 (Fla.2000) (holding that the Bar failed to properly notice the attorney that his mental health was at issue prior to requiring him to undergo a mental evaluation); A.W.P. v. Dep’t of Children & Family Servs., 10 So.3d 134, 135-36 (Fla. 2d DCA 2009) (holding that the nonfinal order, effectively modifying the father’s visitation, entered without notice or real opportunity to be heard, violated the father’s right to due process, entitling him to certiorari relief); Aiello v. Aiello, 869 So.2d 22, 23-24 (Fla. 2d DCA 2004) (holding that the temporary modification of the father’s visitation without notice and opportunity to be heard violated the father’s right to due process, entitling him to certiorari relief).

Accordingly, the petition for writ of cer-tiorari is granted, and the lower court’s order is quashed to the extent that it requires the Former Wife to undergo a psychological evaluation.

Petition granted; order quashed in part.

VILLANTI and MORRIS, JJ., Concur.

      . The Former Wife also requests an order from this court reassigning this case to another circuit judge. However, as conceded by the Former Wife, this issue is not properly before this court pursuant to the petition for writ of certiorari.


author: PER CURIAM.

text:
    Jeremy DOUGLAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1984.
    District Court of Appeal of Florida, First District.
    Aug. 1, 2014.
    Rehearing Denied Aug. 1, 2014.
    Nancy A. Daniels, Public Defender, Glen P. Gifford and Steven L. Seliger, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

This cause is before us on Appellant’s motion for rehearing. We deny the motion for rehearing, but withdraw our previous opinion of June 10, 2014, and substitute this opinion in its place.

Appellant appeals his conviction of four counts of sexual battery on a child under the age of 12; one count of solicitation to commit the offense of Sexual Battery Upon a Child Under 12 Years of Age, in violation of sections 777.04(2) and 794.011(2), Florida Statutes; one count of solicitation of a minor to commit a lewd or lascivious act, contrary to section 800.04(6), Florida Statutes; and one count of showing pornography to a child, in violation of section 847.0133(1), Florida Statutes.

We affirm the battery convictions and the conviction for violating section 847.0133(1) without further comment. We affirm the conviction for solicitation based on section 800.04(6), Florida Statutes, pursuant to Cleveland v. State, 135 So.3d 425 (Fla. 1st DCA 2014). We reverse Appellant’s conviction for solicitation based on sections 777.04(2) and 794.011(2), Florida Statutes. See F.B. v. State, 852 So.2d 226, 229 (Fla.2003); Patel v. State, 679 So.2d 850, 851 (Fla. 1st DCA 1996). We therefore vacate Appellant’s conviction on this charge and remand for resentencing.

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

BENTON, VAN NORTWICK, and THOMAS, JJ., concur.


text:
    Donald WATERS, Appellant, v. DEPT. OF CORRECTIONS, Appellee.
    No. 1D13-3310.
    District Court of Appeal of Florida, First District.
    Aug. 1, 2014.

      Donald Waters, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Daniel A. Johnson, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Despite the assertion and presentation of evidence that appellant’s formal grievance appeal was timely turned over to prison officials for mailing pursuant to the “prison mailbox rule” and Gonzalez v. State, 604 So.2d 874 (Fla. 1st DCA 1992), the circuit court dismissed his petition for writ of mandamus to compel the Department of Corrections (Department) to consider his grievance appeal on the merits. Finding that appellant failed to take advantage of an optional internal logging/tracking process and instead sent his grievance appeal through the U.S. mail which was receipted at the central office in Tallahassee after the deadline, the circuit court concluded appellant had “no clear legal right” to the issuance of a writ. See Hatten v. State, 561 So.2d 562, 563 (Fla. 1990). For the same reasons expressed in Waters v. Dept, of Corrections, — So.3d - (Fla. 1st DCA, Opinion filed this date), including the continued viability of Gonzalez, and because the Department failed to provide any evidence to rebut appellant’s assertion of timely mailing, we reverse the order dismissing appellant’s petition for writ of mandamus and remand for entry of the writ.

However, appellant also challenges the circuit court’s refusal to appoint counsel, grant an injunction against retaliation, or otherwise address constitutional arguments raised in the petition, and the court’s adoption of the Department’s draft order. Other than as discussed above, we find no error in the circuit court’s actions, agree that mandamus is not the proper remedy to address constitutional issues, and otherwise affirm the circuit court’s orders.

REVERSED IN PART and REMANDED.

WOLF, PADOVANO, and RAY, JJ., concur.


author: THOMAS, J.

text:
    Benjamin D. ROLISON, Appellant, v. Rachel L. ROLISON, Appellee.
    No. 1D14-1135.
    District Court of Appeal of Florida, First District.
    Aug. 1, 2014.

      Brian P. North of Kenny Leigh & Associates, Mary Esther, for Appellant.
    No appearance for Appellee.
   THOMAS, J.

Appellant (the Father) appeals a non-final order denying his emergency verified motion to compel Appellee (the Mother) to return the parties’ minor children to Florida. We affirm the trial court’s order, which correctly found that section 61.13001, Florida Statutes (2013), Florida’s relocation statute, did not apply, as the Mother moved to Georgia before the Father filed for dissolution.

The Father filed a petition for dissolution of marriage and other relief on February 21, 2014. On the same date, the Father filed the emergency motion to compel the Mother to return their minor children to Florida. The motion alleged that the Mother had removed the two minor children from Florida and moved to Fort Valley, Georgia, in January 2014, without the Father’s consent or leave of the court, in violation of section 61.13001. The motion also asserted that the Father was concerned about the minor children’s safety in the Mother’s care in Georgia, and requested that the trial court order the children’s return to this jurisdiction and enter a temporary parenting plan awarding the Father majority timesharing.

The trial court denied the Father’s emergency motion, finding' that section 61.13001 was inapplicable, because it only applied to a child’s relocation or proposed relocation during a pending proceeding. The court noted that the emergency motion alleged that the Mother removed the parties’ minor children from the jurisdiction in January 2014, before the dissolution proceeding was filed in February 2014.

On appeal, the Father asserts that the trial court erred when it established a bright line rule that the relocation statute was inapplicable in a dissolution proceeding when a spouse unilaterally relocates before filing a dissolution petition. “ ‘Statutory interpretation is a question of law subject to de novo review.’ ” Hahn v. Hahn, 42 So.3d 945, 947 (Fla. 4th DCA 2010) (quoting Murray v. Mariner Health, 994 So.2d 1051, 1056 (Fla.2008)). “When construing a statute, an appellate court must strive to effectuate the Legislature’s intent.” Id. (citing Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla. 2006)). “‘When the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.’” Borden, 921 So.2d at 595 (quoting Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla. 2005)).

The relevant language in section 61.13001 is located within the definition of the word “relocation,” and states in pertinent part:

(1) Definitions. — As used in this section, the term:
(e) “Relocation” means a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing. The change of location must be at least 50 miles from that residence, and for at least 60 consecutive days not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of health care for the child.

§ 61.13001(l)(e), Fla. Stat. (2013) (emphasis added).

Appellant asserts that the trial court’s ruling has the effect of narrowly interpreting the phrase “at the time of filing” to mean after the date of filing, arguing that no such bright line rule exists. Appellant maintains that if the legislature had intended a bright line rule that the relocation statute only applied to spousal reloca-tions that occurred after the date of filing a petition, it could have done so. Appellant further asserts that the trial court’s interpretation of the relocation statute is contrary to the public policy behind the statute, because a parent should not be permitted to unilaterally relocate with the couple’s minor children.

Although the result here may be troubling, the plain language of the relocation statute applies only where a parent’s principal place of residence changes “at the time of the last order establishing or modifying time-sharing” (which is not applicable here), or “at the time of filing the pending action.” § 61.13001(l)(e), Fla. Stat. The Mother’s location was already in Georgia when the Father filed the pending action; as such, in accordance with section 61.13001, she did not have to seek permission from the Father or the court to move there.

We note that this court’s plain reading of section 61.13001 is in accordance with the interpretation of at least two other districts. See Essex v. Davis, 116 So.3d 445 (Fla. 4th DCA 2012); A.F. v. R.P.B., 100 So.3d 71 (Fla. 2d DCA 2011). In Essex, the Fourth District addressed the relocation statute in the context of a paternity proceeding. 116 So.3d at 446. Based upon the definition of relocation under section 61.13001(l)(e), and citing the Second District’s opinion in A.F. for support, the Fourth District, in dicta, stated that “the mother is correct in arguing that if she had already moved to Louisiana prior to the father’s filing of the petition to determine paternity or any order establishing or modifying time-sharing, then she is not subject to the relocation statute.” Id. at 448 (emphasis supplied); see also, A.F., 100 So.3d at 72 (holding that section 61.13001 did not apply to court’s decision awarding the father majority timesharing, as the father was not relocating and already resided in Pennsylvania when the mother’s petition for majority timesharing and the father’s counterpetition were filed).

We note that section 61.13, Florida Statutes, provides in relevant part:

(2)(a) The court may approve, grant, or modify a parenting plan, notwithstanding that the child is not physically present in this state at the time of filing any proceeding under this chapter, if it appears to the court that the child was removed from this state for the pmmary purpose of removing the child from the court’s jurisdiction in an attempt to avoid the court’s approval, creation, or modification of a parenting plan.

(Emphasis added.) Of course, we offer no view on the applicability of this section here, but acknowledge that the legislature has addressed the issue in a different context. Further, in dissolution proceedings, the court may approve a parenting plan that would determine, inter alia, time-sharing in accordance with the child’s best interests. See § 61.13(2), Fla. Stat.

Here, the trial court correctly determined that section 61.13001 is inapplicable under the facts of this case. Thus, we affirm.

AFFIRMED.

RAY and OSTERHAUS, JJ., concur.


author: WOLF, J.

text:
    Donald WATERS, Appellant, v. DEPT. OF CORRECTIONS, Appellee.
    No. 1D13-3483.
    District Court of Appeal of Florida, First District.
    Aug. 1, 2014.

      Donald Waters, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Daniel A. Johnson, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant appeals an order dismissing his petition for writ of mandamus for failure to state a cause of action. We reverse that portion of the order which determined that appellant did not have a clear legal right to the consideration of the merits of his grievance appeal on the basis that his grievance appeal was untimely.

Appellant filed a petition for writ of mandamus with the circuit court seeking to compel the Department of Corrections (Department) to consider the merits of his grievance appeal that had been filed pursuant to Florida Administrative Code Rule 33-103.007, “Appeals and Direct Grievances to the Office of the Secretary.” Appellant alleged that the Department returned his grievance appeal without action because it was received more than fifteen calendar days after the institutional response giving rise to the appeal. See Fla. Admin. Code R. 33-103.011(l)(c) (“Grievance Appeals to the Office of the Secretary — Must be received within 15 calendar days from the date the response to the formal grievance is returned to the inmate.”). In its order returning the appeal, the Department speculated that appellant’s failure to utilize the institution’s grievance log/tracking process as outlined in Rule 33-103.006(8) of the Code, may have contributed to its untimeliness.

In his petition, appellant asserted that his grievance appeal was timely because he turned his appeal over to officials at his institution for mailing within the 15 day deadline. As such, he argues the “Prison Mailbox Rule” adopted in Haag v. State, 591 So.2d 614 (Fla.1992), and made applicable to inmate grievance appeals in Gonzalez v. State, 604 So.2d 874 (Fla. 1st DCA 1992), should apply.

In response to the circuit court’s order to show cause why relief should not be granted, the Department argued that the rule establishing a procedure for mailing of grievances was set up so an inmate could comply with the mailbox rule and have the mail stamped as received at the institution rather than when it is actually received at the central office in Tallahassee. The Department asserts that if an inmate chooses to bypass the grievance logging^tracking procedure and send it through the mail instead, the appeal is not deemed received until receipt at the central office. Finally, the Department argues that because inmates are not “required” to use the U.S. mail to submit a grievance appeal, Gonzalez does not apply and the grievance appeal would be untimely. Therefore, the Department argues, appellant did not have a “clear legal right” for the grievance appeal to be considered by the Department. Adopting the Department’s arguments, the circuit court dismissed appellant’s petition.

An appeal from an order dismissing a petition for writ of mandamus is reviewed by this court de novo. Johnson v. McNeil, 978 So.2d 847 (Fla. 1st DCA 2008). “One seeking a writ of mandamus must establish the existence of ‘a clear legal right to the performance of a clear legal duty by a public officer and that ... no other legal remedies [are] available.’ ” Rivera v. Moore, 825 So.2d 505, 506 (Fla. 1st DCA 2002) (quoting Hatten v. State, 561 So.2d 562, 568 (Fla.1990)). “‘[Although [a writ of mandamus] cannot be used to compel a public agency to exercise its discretionary powers in a given manner, it may be used to compel the agency to follow its own rules.’ ” Rivera, 825 So.2d at 506 (quoting Williams v. James, 684 So.2d 868, 869 (Fla. 2d DCA 1996)). This includes ensuring the Department complies with inmate grievance rules. Id.

In Crews v. Matara, 123 So.3d 144 (Fla. 1st DCA 2013), this court reviewed the history of the prison mailbox rule in Florida:

In Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), the United States Supreme Court adopted the “mailbox rule” for incarcerated litigants and held that a petition or notice of appeal filed by pro se inmate was deemed filed at the moment in time when the inmate lost control over the document by entrusting its further delivery or processing to agents of the state. In Haag v. State, 591 So.2d 614 (Fla. 1992), the Florida Supreme Court adopted the “mailbox rule.” In Thompson v. State, 761 So.2d 324 (Fla.2000), the inmate was housed at a correctional institution which did not maintain outgoing mail logs. The Florida Supreme Court held that the presumption of timely filing by inmate existed if the legal document contained a certificate of service showing that the pleading was placed in the hands of prison or jail officials for mailing on a particular date and that the presumption shifted to the state the burden to prove that the document was not timely placed in prison officials’ hands for mailing. The Thompson court stated that, “[s]hould the State wish to have a means of verifying or objecting to an inmate’s assertion that his or her pleading was actually placed in the hands of prison or jail officials on a particular date, we leave it to the State to create and implement the mechanism for doing so.” Thompson, 761 So.2d at 826. The “mailbox rule” for inmate filings is now codified in rule 9.420(a)(2), Florida Rules of Appellate Procedure.

Malara, 128 So.3d at 146 (emphasis added).

In Gonzalez, 604 So.2d 874, this court applied the prison mailbox rule to inmate grievance appeals, holding:

For similar reasons predicated on the notions of simplicity and fairness [as stated in Haag], it is our opinion that the mailbox rule should not be limited solely to the filing of petitions or notices of appeal in court, but should instead be uniformly applied whenever a pro se inmate is required to use the U.S. mail to file documents within a limited jurisdictional time frame. Accordingly, in this particular instance, where an appeal from a grievance procedure must be received by the Department within 15 calendar days of the date of the institutional response, under the mailbox rule the appeal is deemed “received” by the Department “at the moment in time when the inmate loses control over the document by entrusting its further delivery or processing to agents of the state.”

Id. at 875-6 (quoting Haag, 591 So.2d at 617).

Subsequent to Gonzalez, the Department promulgated Rule 33-103.006(8) (emphasis added):

(8) Mailing Procedures. The warden or person designated in Rule 33-103.002, F.A.C., shall establish a procedure in the institution or facility under his supervision for processing those grievances that require mailing. Inmates who are filing grievances that require mailing shall be required to utilize the procedure set forth in this rule when processing their grievances or appeals to the reviewing authority of community facilities or the Bureau of Policy Management and Inmate Appeals in central office. The institution or facility shall provide postage for grievances submitted through this process. Procedures implemented shall include, at a minimum, the following:
(a) The establishment of an office through which grievances shall be processed.
(b) The establishment of a logging and tracking system to record and document receipt and mailing of inmate grievances.
(c) A requirement that the staff person designated to accept the grievance to be mailed shall:
1. Complete the receipt portion of Form DC1-303 for appeals being forwarded to central office by entering a log/tracking number and date of receipt and sign as the recipient.
2. Record receipt of the grievance in the institutional log. The staff person' shall not read or classify the grievance.
3. Place the grievance in the mail through the institution or facility mail service within one workday.
(d) The inmate shall have his grievance ready for mailing at the time he turns it over to staff for processing as described in paragraph (c) above. Once this process has been completed, the grievance will not be returned to the inmate. If the inmate desires his grievance to be forwarded in a sealed envelope, the inmate shall provide to the staff a properly addressed envelope so that once the grievance is processed by staff, the grievance can be placed into the envelope and sealed for forwarding.
(e) If the inmate elects to mail the grievance to central office directly and bypass the logging/tracking process, the inmate may submit his or her grievance in a sealed envelope to be placed in the institutional bulk mail that is to be mailed daily to central office.

The Department argues that this rule effectively supplants the prison mailbox rule developed by Florida courts in the context of inmate grievance appeals. The Department asserts that because the logging/tracking process avoids the vagaries of the U.S. mail, inmates are not “required” to utilize the U.S. mail, and Gonzalez is no longer good law. We must disagree.

In Malara, this court pointed out that because the Department had established a procedure for legal mail to track the date it changes hands for purposes of establishing jurisdictional timeframes as suggested in Thompson, “DOC has a mechanism to rebut the presumption that the inmate’s assertion that his pleading was actually placed in the hands of prison or jail officials on a particular date.” Malara, 123 So.3d at 146.

Notably, the rule for legal mail prohibits the use of mail drop boxes for outgoing legal mail. Fla. Admin. Code. R. 33-210.102(8)(g). Because of this prohibition, there should always be an institutional date stamp on the inmate’s legal mail if the inmate complies with the rule. However, it is not the existence of the rule or mechanism that rebuts the presumption that the document was placed in the mail on the date the inmate asserts, but the institutional stamp itself which the Department has taken steps to ensure is always in place. In Malara, it was the institutional date stamp that rebutted the presumption of an earlier date asserted in the certificate of service, not the mere fact that the Department had instituted the procedure. 123 So.3d at 147.

Furthermore, the use of mail drop boxes is not prohibited for grievance appeals and other direct grievances. It is completely possible for an inmate to comply with the rule and still have a document that has not been date stamped by the institution. Unlike the procedure for legal mail, the Department has not created a procedure to ensure the application of a date stamp that could rebut the presumption of an inmate’s assertion that a grievance appeal was timely placed into the hands of prison officials for mailing. There is a reason the Department allows inmates to bypass staff of the local institution in order to bring a grievance appeal or other direct filing to the Secretary’s attention. In certain situations, an inmate may feel compelled to use U.S. mail. If an inmate exercises this option available in the rule, “notions of simplicity and fairness” should still apply and the inmate should have the benefit of the presumption.

In this case, appellant presented several pieces of evidence that he turned his appeal over to prison officials within the 15-day deadline. Appellant dated the appeal himself and obtained an institutional “legal mail” stamp. Appellant followed up with a timely letter to the Secretary asserting the date on which he turned his appeal over to officials. Furthermore, it can be logically assumed that if the Department received the grievance appeal in the U.S. mail one day after the deadline, appellant must have placed the appeal in the mail no later than the day before which was the last day of the deadline. The only evidence the Department presented in rebuttal was that appellant did not take advantage of the logging/tracking procedure.

Having failed to present evidence that would rebut the presumption created by appellant’s evidence, the Department failed to show cause why the petition should not be granted to compel consideration of appellant’s grievance appeal on the merits. We, therefore, reverse the circuit court’s dismissal of the petition and remand for entry of the writ.

However, appellant also challenges the circuit court’s refusal to appoint counsel, grant an injunction against retaliation, or otherwise address constitutional arguments raised in the petition, and the court’s adoption of the Department’s draft order. Other than as discussed above, we find no error in the circuit court’s actions, agree that mandamus is not the proper remedy to address constitutional issues, and otherwise affirm the circuit court’s orders.

REVERSED IN PART and REMANDED with directions.

PADOVANO and RAY, JJ., concur.

      . Appellant's formal grievance was denied on September 19, 2012. The deadline for the Department to receive the appeal was 15 days later on October 4, 2012. Appellant dated his appeal September 28, obtained an institutional "legal mail” stamp dated September 28, had the appeal notarized September 28, and sent a follow-up letter to the Secretary on October 3 asserting an original mailing date of September 28. The Department marked the appeal received on October 5, one day late.

      . Of the myriad of issues raised in both the petition and in this appeal, only the timeliness issue is properly before the court on mandamus.

      . The Department also argues that appellant lacked standing to challenge the process that found his appeal to be untimely. We find this argument wholly without merit. An inmate has a due process right to the agency complying with its own rules. A petition for writ of mandamus filed in the circuit court is the correct manner for an inmate to challenge a determination by the Department that a grievance appeal is untimely. See, e.g., Whitfield v. Dep’t of Corrections, 107 So.3d 1210 (Fla. 1st DCA 2013); Gonzalez v. State, 604 So.2d 874 (Fla. 1st DCA 1992).

      . Inexplicably, the Department and the circuit court ignored this date stamp, focusing instead on a notary stamp which only certifies the appellant’s signature, not that he mailed the document on the asserted day. However, we do not wish to imply such a date stamp is the only way an inmate can "prove” the date of mailing in order to obtain the benefit of the presumption.

      . Notably absent in this case is a copy of the envelope in which appellant mailed his appeal to the Department. An envelope with an untimely U.S. mail postmark may be evidence that would decrease the presumption that an inmate turned his appeal over to officials on the date he asserts.


author: GERBER, J.

text:
    STATE of Florida, Appellant, v. Randolph HUTZ, Appellee.
    No. 4D13-1726.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellant.
    Hilliard E. Moldof of Hilliard Moldof, P.A., Fort Lauderdale, for appellee.
   GERBER, J.

The state appeals from the circuit court’s non-final order granting the defendant’s motion to suppress his statements and physical evidence. The state argues the court erred in finding that a security guard’s observation of the defendant snorting cocaine, immediately conveyed to the arresting officer, did not provide reasonable suspicion for the officer to conduct an investigatory stop of the defendant a couple minutes later. We agree with the state’s argument and reverse.

At the hearing on the motion to suppress, the officer testified as follows. On the night of the arrest, he was in uniform and armed while on patrol in a casino. He received a dispatch that a security guard observed a man snorting cocaine by one of the men’s rooms. A couple minutes later, the officer met with the security guard. The officer did not know the security guard’s training or whether the security guard “[knew] what cocaine is” or “[saw it] before in his life.”

The security guard identified the defendant, who was sitting behind some people who were gambling at a gaming table. The officer approached the defendant with the security guard a few feet behind him. The officer tapped the defendant on the shoulder, identified himself, and, in a casual tone, asked the defendant “Sir, can I talk [to you] over here?” referring to an area to the side where there were not many people standing around. The defendant followed the officer and security guard over to an area of slot machines twenty to thirty feet away. The defendant was not blocked in any way. The officer did not say the defendant was under arrest, did not indicate he was detaining the defendant, and did not restrict the defendant’s freedom of movement. However, the officer acknowledged that “normal citizens in any situation would think they have to follow [him].”

The officer told the defendant he was investigating an incident that occurred by the men’s room. Before the officer was able to finish his statement, the defendant immediately responded “[s]omething to the effect [of], ‘You got me. I have the stuff in my pocket.’ ” When the officer asked if he could “see it,” the defendant reached in his pocket and pulled out a baggie of cocaine and a straw. According to the officer, the defendant spoke and acted voluntarily. The defendant was charged with possession of cocaine.

The defendant testified as follows. He was sitting at the end of a row of slot machines while watching a friend gamble at an adjacent table when the officer and three security guards approached. The officer said, “I need to talk to you over here,” motioning to walk over to a more private area. The defendant got up and walked with the officer down the row of slot machines. The officer then said to the defendant, “I had a report of a suspicious incident and I need to ask you some questions .... [Y]ou were observed with a baggie and straw over by the restroom and I need you to empty your pockets.” The defendant followed the officer’s instruction.

When the defendant was asked whether he hesitated in getting up and complying with the officer’s request to talk, he testified: “I would have no reason not to. He’s a police officer.” The defendant testified that the officer did not show a weapon or say he was under arrest. However, the defendant testified if an officer asked him to do anything, he would do it. The defendant also agreed that he complied with the officer not because the officer indicated he had no other choice, but because he “just felt like [he] needed to comply with the officer’s request.”

The defendant argued that the court should suppress his statements, the cocaine, and the paraphernalia because he made the statements and ' produced the cocaine during an investigatory stop without reasonable suspicion and without Miranda warnings.

The circuit court granted the motion to suppress. The court reasoned as follows:

The Court ... finds [the officer] credible in his recitation of the events. However, what the Court does find is that ... once the officer asks [the defendant] to relocate himself 20 or 30 feet away, it no longer constitutes a consensual encounter and it does, in fact, constitute a detention. He is by himself. He is in uniform. He is armed. I think what makes this a totally circumstancial [sic] difference than the cases cited by the State is the fact that the officer, rather than questioning him at the location, did ask him to move 20 or 30 feet after indicating to him that he needed to talk to [him]. Even the officer conceded that a reasonable person would feel compelled to have to follow the officer.
So that takes it outside of the realm of a consensual encounter at that point and turns it into a detention which at least requires reasonable suspicion.
The reasonable suspicion in this case is premised upon the security [guard]. However, the only evidence that was presented to the Court was hearsay upon hearsay. [The officer] testified that the information he received was not even from the [security guard], but was from a dispatch officer who was providing statements to [the officer] based upon statements that the security [guard] had related to the dispatch officer.
There is no evidence as to what the security [guard’s] training was. There was no testimony from the security [guard] as to what he saw. [The officer] gave no testimony other than the fact that this security [guard] pointed out [the defendant]. There was no testimony as to what details were related, if any, to [the officer].... The security [guard] may very well be a citizen informant, may be presumed reliable, however the Court cannot only look to the reliability of the individual but also the contents of the information provided. And based upon that information as presented in this evidentiary hearing, the Court cannot find that [the officer] had articulable suspicion based on the facts upon which to raise this from a consensual encounter to an investigatory stop. And for those reasons, the items collected as well as the statements taken after that investigatory stop are suppressed and the motion is granted.

After the court entered a written order granting the motion, this appeal followed. The state argues the court erred in finding that the security guard’s observation of the defendant snorting cocaine, immediately conveyed to the arresting officer, did not provide reasonable suspicion for the officer to conduct an investigatory stop of the defendant a few minutes later. We employ a mixed standard of review. See State v. Blaylock, 76 So.3d 13, 14 (Fla. 4th DCA 2011) (“The standard of review applicable to a motion to suppress requires an appellate court to defer to the trial court’s factual findings but review legal conclusions de novo.”).

We agree with the state’s argument. “Law enforcement may conduct an investigatory stop of an individual based on a tip providing reasonable suspicion where that tip has been deemed sufficiently reliable, based on either the surrounding circumstances or the nature of the information given in the tip itself.” Castel-la v. State, 959 So.2d 1285, 1290 (Fla. 4th DCA 2007) (internal quotation marks and citation omitted). “[T]he veracity and reliability of a citizen informant are presumed, because such an informant is one who is motivated not by pecuniary gain, but by the desire to further justice, such as by relating details of a witnessed crime to law enforcement as a matter, of civic duty; consequently, further investigation and corroboration by law enforcement is not required.” Id. (internal quotation marks and citations omitted). “Furthermore, a witness who provides information to a police officer through face to face communication is deemed to be sufficiently reliable, so as to generally be classified as a citizen informant.” Id. (internal brackets, quotation marks, and citation omitted).

Here, the tip which the officer received was sufficiently reliable to provide reasonable suspicion to conduct an investigatory stop of the defendant. The officer received information from the security guard through face to face communication. The security guard thus was a citizen informant whose tip was sufficiently reliable by itself to provide the officer with reasonable suspicion to conduct an investigatory stop of the defendant without further investigation or corroboration. Furthermore, the defendant admitted he possessed contraband before the officer posed a statement or question which required Miranda warnings.

This case is most similar to State v. Marsh, 576 So.2d 387 (Fla. 2d DCA 1991). There, two officers were conducting a check at a nightclub when they were approached by a female whom they had never met or seen before, but whom they believed was a nightclub employee. She informed the officers that two women had been snorting cocaine in the bathroom. She described the two women and pointed them out. She then walked the officers outside and showed them the car in which the two women had been in earlier. After receiving this information and without verifying it, the officers waited in their squad car for the two women to leave. Shortly thereafter, the two women exited the nightclub, entered the car, and drove away. The officers immediately stopped the vehicle. One of the officers asked the defendant to exit the vehicle. She cooperated. The officer then asked the defendant for consent to search her vehicle, informing her that the officers had been told she had been using cocaine. The defendant told the officers to “[g]o ahead and search all you want.” The officers found drugs and paraphernalia in the vehicle and arrested the defendant. The driver later moved to suppress the evidence on the ground that the information relied upon by the officers to initiate the stop was uncorroborated information from a source of unknown reliability. The circuit court granted the motion.

The second district reversed. Id. at 388. Our sister court reasoned:

The officers received detailed and specific information regarding the physical description of the women observed snorting cocaine and their vehicle. The officers were, shortly thereafter, able to corroborate this information when they observed the two women leave the nightclub and drive away in the vehicle. At this time, the officers had a well[-]founded suspicion to initiate the investigatory stop. Therefore, the stop and subsequent consent were valid, and the trial court erred in suppressing the evidence seized.

Id. (internal citation omitted).

Similarly here, the security guard’s observations of the defendant snorting cocaine gave the officer a well-founded suspicion to conduct an investigatory stop of the defendant. While the officer testified that he did not know the security guard’s training or whether the security guard “[knew] what cocaine is” or “[saw it] before in his life,” the Marsh officers had no such information about the employee’s knowledge of cocaine either. On its face, the security guard’s tip would appear to be as reliable as the Marsh employee’s tip, if not more so because of the security guard’s duty to “further justice, such as by relating details of a witnessed crime to law enforcement.” Castella, 959 So.2d at 1290 (internal quotation marks and citation omitted).

In sum, we conclude that reasonable suspicion existed to support an investigatory stop, and that the defendant admitted he possessed contraband before the officer posed a statement or question which required Miranda warnings. Because we conclude that reasonable suspicion existed to support an investigatory stop, we need not address the state’s alternative argument that the event was a consensual encounter not requiring reasonable suspicion. Our decision not to address the state’s alternative argument should not be interpreted as indicating that the event neces-' sarily constituted an investigatory stop. We reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded for further proceedings.

GROSS and CONNER, JJ., concur.


author: DAMOORGIAN, C.J.

text:
    CONSERVATION ALLIANCE OF ST. LUCIE COUNTY INC., and Treasure Coast Environmental Defense Fund, Inc. a/k/a Indian Riverkeeper, Inc., Appellants, v. FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Allied Universal Corporation, and Chem-Tex Supply Corporation, Appellees.
    No. 4D13-3504.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2014.

      Sarah Hayter and Robert Hartsell of Robert N. Hartsell, P.A., Pompano Beach, for appellant.
    Matthew Z. Leopold, General Counsel, W. Douglas Beason and David K. Thul-man, Assistant General Counsels, Tallahassee, for appellee Florida Department of Environmental Protection.
    Daniel K. Bandklayder of Daniel K. Bandklayder, P.A., Miami, for appellee Allied Universal Corporation.
    C. Anthony Cleveland and Timothy P. Atkinson of Oertel, Fernandez, Bryant & Atkinson, P.A., Tallahassee, for appellee Chem-Tex Supply Corporation.
   DAMOORGIAN, C.J.

Appellants, Conservation Alliance of St. Lucie County, Inc. and Treasure Coast Defense Fund, Inc. a/k/a Indian River-keeper, appeal the Florida Department of Environmental Protection’s (“FDEP”) final order dismissing their petition for a formal administrative proceeding. We affirm because Appellants do not have standing to initiate an administrative proceeding pursuant to section 403.412(6), Florida Statutes (2010).

In 2010, Allied Universal Corporation (“Allied”) and Chem-Tex Supply Corporation (“Chem-Tex”) negotiated a settlement agreement with FDEP to remediate soil and groundwater contamination at a bleach-manufacturing and chlorine-repackaging facility owned by Allied and Chem-Tex. Dissatisfied with its terms, Appellants petitioned for an administrative hearing to challenge the settlement agreement. They claimed standing under section 403.412(6), Florida Statutes, which grants automatic standing to certain Florida corporations to initiate an administrative proceeding. The statute provides that

[a]ny Florida corporation not for profit which has at least 25 current members residing within the county where the activity is proposed, and which was formed for the purpose of the protection of the environment, fish and wildlife resources, and protection of air and water quality, may initiate a hearing pursuant to s. 120.569 or s. 120.57, provided that the Florida corporation not for profit was formed at least 1 year prior to the date of the filing of the application for a permit, license, or authorization that is the subject of the notice of proposed agency action.

§ 403.412(6), Fla. Stat.

An administrative law judge (“ALJ”) entered a recommended order of dismissal, finding that Appellants did not have standing to challenge the settlement agreement. The ALJ concluded that the settlement agreement resolved an enforcement action and thus, does not constitute a “permit, license, or authorization” within the meaning of the statute. FDEP adopted the ALJ’s recommended order in its entirety and entered a final order dismissing Appellants’ administrative petition. This appeal follows.

Although we conduct a de novo review of cases involving an agency’s statutory interpretation, we defer to the agency’s interpretation of a statute it is given the power and duty to administer when that interpretation is reasonable. Capo v. Fla. Pub. Emps. Council 79, 82 So.3d 1116, 1119 (Fla. 4th DCA 2012). Because we hold that FDEP’s reading of section 403.412(6) is reasonable, we affirm the order dismissing Appellants’ administrative petition for lack of standing.

“As with the interpretation of any statute, the starting point of analysis is the actual language of the statute.” Brown v. City of Vero Beach, 64 So.3d 172, 174 (Fla. 4th DCA 2011) (citing Cont’l Cas. Co. v. Ryan Inc. E., 974 So.2d 368, 374 (Fla.2008)). If the language is clear and unambiguous, there is no need to resort to the rules of statutory construction; “the statute must be given its plain and obvious meaning.” Samples v. Fla. Birth-Related Neurological, 40 So.3d 18, 21 (Fla. 5th DCA 2010) (quoting GTC, Inc. v. Edgar, 967 So.2d 781, 785 (Fla.2007)). However, if a statute is subject to multiple interpretations, the rules of statutory construction apply. Id. (citing GTC, Inc., 967 So.2d at 785). “It is an elementary principle of statutory construction that significance and effect must be given to every word, phrase, sentence, and part of the statute if possible, and words in a statute should not be construed as mere surplusage.” Hecht-man v. Nations Title Ins. of N.Y., 840 So.2d 993, 996 (Fla.2003).

The language of section 403.412(6) is not ambiguous. The statute is clearly premised upon an application for the permit, license, or authorization that the complaining party seeks to challenge. This case does not concern an application for a permit, license, or authorization. Rather, it involves a third-party challenge to a settlement agreement. Accordingly, we hold that Appellants do not have standing to challenge the settlement agreement under section 403.412(6), Florida Statutes (2010).

Affirmed.

FORST, J., and HANZMAN, MICHAEL, Associate Judge, concur.


author: PEREZ, GLADYS, Associate Judge.

text:
    Jermaine SWATTS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-891.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2014.
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PEREZ, GLADYS, Associate Judge.

Defendant was charged with burglary of a dwelling and grand theft. After a jury trial, the defendant was convicted of trespass of a structure, a lesser-included offense, and grand theft as charged in the second count. On appeal, defendant raises several issues; however, we write to address only his contention that he is entitled to reversal of the trespass conviction because the jury was allowed to consider multiple factual theories where the information charged only a single count of burglary. We agree with defendant’s contention, and based upon Perley v. State, 947 So.2d 672 (Fla. 4th DCA 2007), reverse and remand for a new trial only as to the trespass. As to all other issues, including defendant’s argument that he was denied a unanimous verdict as to the grand theft charge, we affirm.

Defendant’s neighbor returned home from work on March 16, 2010, and was approached by the defendant. The defendant stated that earlier that day he had entered the neighbor’s apartment, upon seeing smoke, and turned off the stove. The next evening, March 17, the neighbor’s wife noticed that jewelry and a piggy bank containing $200 were missing. On March 18, the neighbor, while changing a punctured tire, noticed a light in the window of his apartment and called the police. A window had been broken, the front door was open, and computers, a camera, a camcorder, and an MP3 player were missing.

In his statement to the police, defendant admitted he was in the apartment on March 16, accompanied by a co-defendant. Defendant insisted that the co-defendant had taken the jewelry on the 16th and that a man named “Jit” committed the second burglary. Items from the neighbor’s apartment were recovered from a pawn shop, having been pawned by a Mr. Baker, who had gone to the pawn shop with the defendant and co-defendant.

Defendant argues he is entitled to reversal of his convictions on the ground that he was denied a unanimous verdict as a consequence of the State’s charging a single count of each offense, but presenting multiple factual theories to support a conviction. We agree with Defendant only as to the trespass conviction.

The information charged the defendant with a single count of burglary, alleging the defendant entered the apartment sometime between March 16th and March 18th. Despite this, in opening, the State advised the jury that not only did the defendant burglarize the apartment on March 16th, but he “broke back into the [neighbor’s] home two days later to steal more and to continue harassing.” At the close of the evidence, defense counsel asked that the court instruct the jury not to consider the alleged second burglary as it had not been investigated. The State insisted there was enough evidence to permit the matter to be considered by the jury. The trial court denied defense counsel’s request. In closing argument, the State argued the evidence established the defendant entered the apartment on the 16th and on the 18th, even suggesting at one point that the defendant had entered the apartment a third time, as he had been the one who had turned on the stove. The prosecutor invited the jury to consider the defendant’s multiple entries into the apartment in determining whether the defendant was guilty. The prosecutor said, “Do you really have a reasonable doubt about whether at some point, between the 16th and the 18th he went into [the] home, either one is good enough, at some point? Really?”

In Perley v. State, 947 So.2d 672 (Fla. 4th DCA 2007), the defendant was charged with one count of escape and two counts of resisting an officer. With regard to the escape, there was evidence at trial that, during the initial attempts to detain the defendant, he broke away from police and was pursued. The defendant was taken to the hospital and, while at the hospital, the defendant again attempted to escape. The information did not include the factual allegations surrounding the escape and, at' trial, the State told the jury it could convict the defendant based upon either the flight from police at the scene or the subsequent flight at the hospital. 947 So.2d at 674. We held the trial court fundamentally erred by allowing the jury to deliberate on two separate instances of escape where only a single instance was charged in the information as the effect was to •deprive the defendant of his constitutional right to a unanimous jury verdict. Id.; see also Chaffin v. State, 121 So.3d 608 (Fla. 4th DCA 2013), review denied, 139 So.3d 296 (Fla.2014).

Initially, we note that the issue was sufficiently preserved, as defense counsel attempted to have the judge preclude the State from making the very argument it made to the jury. Here, as in Perley and Chaffin, the prosecutor invited the jury to consider either entry in reaching its verdict, telling them “either one is good enough.” While the jury ultimately convicted the defendant of trespass, a lesser-ineluded offense of the charged burglary, this does not alter the fact that some of the jurors may have done so based on the March 16th entry, while others may have done so solely based on the March 18th entry. Accordingly, defendant’s conviction for trespass is reversed and this cause is remanded.

Affirmed in part, Reversed in part, and Remanded.

TAYLOR and CONNER, JJ., concur.


author: SALTER, J.

text:
    Jorge Raul CERMESONI, Appellant, v. Carolina Cermesoni MANEIRO, Appellee.
    No. 3D14-537.
    District Court of Appeal of Florida, Third District.
    Aug. 6, 2014.

      Rosenthal Rosenthal Rasco Kaplan and Eduardo I. Rasco, Aventura, and William L. Tucker, Fort Lauderdale, for appellant.
    Baron Breslin & Sarmiento and Jerrell A. Breslin, for appellee.
    Before SHEPHERD, C.J., and SALTER and EMAS, JJ.
   SALTER, J.

This appeal turns on the applicability of the injunction bond requirement, Florida Rule of Civil Procedure 1.610(b), when a Florida court plays an ancillary role and the primary judicial forum is in another country. Finding no error in the Florida order at issue here, we affirm.

The Dissolution of Marriage in Argentina and the Letters Rogatory

The appellee, Ms. Maneiro, filed for a dissolution of her marriage to the appellant, Mr. Cermesoni, in Buenos Aires, Argentina, in 2011. Both spouses are citizens and residents of Argentina, but Mr. Cermesoni allegedly owns and controls certain bank accounts at Wells Fargo Bank and Citibank in Miami.

On Ms. Maneiro’s motion in the proceeding in Argentina, the Argentinian Court (a) directed that one-half of the Miami-based accounts be frozen until further order of the court,, and (b) issued letters rogatory seeking assistance of the appropriate United States court(s) in establishing and enforcing the Argentinian Court’s freeze order.

Ms. Maneiro then filed a circuit court action in Miami seeking to give effect to the letters rogatory. In November 2012, the circuit court granted Ms. Maneiro’s emergency motion for a temporary injunction freezing the bank accounts identified in the letters rogatory. Mr. Cermesoni alleges that the resulting injunction has frozen approximately $3,000,000.00, while requiring Ms. Maneiro to post a cash bond of only $100.00.

The Motion to Increase Bond

Mr. Cermesoni moved the court in Miami to increase the injunction bond, and the court conducted an evidentiary hearing on the motion. Mr. Cermesoni testified that the injunction had subjected him to existing and continuing damages exceeding $227,000.00. The Miami court concluded that its role under existing precedent was merely to “enforce the interlocutory foreign order in the same manner as a final order,” under principles of international comity applicable to family cases. Because a bond is not required to enforce a final order of a foreign court under such principles, the court held, there is no reason to require a bond when enforcing the foreign court’s interlocutory order. The circuit court denied Mr. Cermesoni’s motion to increase the bond, and this appeal followed.

Analysis

Mr. Cermesoni’s motion sought, and the order subject to this appeal denied, modification of the injunction to condition it upon a higher bond. We thus have jurisdiction under Florida Rule of Appellate Procedure 9.180(a)(3)(B).

Mr. Cermesoni argues that Florida law requires an injunction bond sufficient to protect the adverse party against those “costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined.” Fla. R. Civ. P. 1.610(b); Parker Tampa Two, Inc. v. Somerset Dev. Corp., 544 So.2d 1018 (Fla.1989) (limiting recoverable damages for wrongful injunction to the amount of the injunction bond). If this was a case in which a Florida court was the primary judicial forum, we might well find Mr. Cermesoni’s argument persuasive.

The controlling circumstance in this case, however, is that Florida’s jurisdiction is ancillary, not primary. The primary judicial forum is the civil court in Buenos Aires, Republic of Argentina, which issued the letters rogatory. The Miami court merely carried out the cross-border request for assistance by recognizing the Argentinian Court’s ruling and entering the injunction directed to specific Florida assets. The Miami court’s role on this record was confined to these in rem matters, and it did not address the merits of Ms. Maneiro’s suit for dissolution of marriage, the parties’ ultimate interests in the assets subject to the injunction, or the custody of their two minor children.

As the trial court properly observed, we have repeatedly approved the enforcement in Florida of temporary injunctions issued by foreign courts as a matter of international comity. “A foreign decree ‘is entitled to comity, where the parties have been given notice and the opportunity to be heard, where the foreign court had original jurisdiction, and where the foreign decree does not offend the public policy of the State of Florida.’ ” Intrinsic Values Corp. v. Superintenden-cia de Administración Tributaria, 806 So.2d 616, 619 (Fla. 3d DCA 2002) (quoting Nahar v. Nahar, 656 So.2d 225, 229 (Fia. 3d DCA 1995), rev. den., 664 So.2d 249 (Fla.1995)).

In Cardenas v. Solis, 570 So.2d 996, 998 (Fla. 3d DCA 1990), we surveyed the cases and other authorities recognizing limited exceptions to the “general rule” that “only the final judgments of courts of a foreign country are subject to recognition in this country, provided certain jurisdictional and due process standards are observed by the foreign court; non-final or interlocutory orders of foreign courts, however, are generally not entitled to such recognition or enforcement.” (citations omitted). In that case, we recognized that one such limited exception allowed the enforcement in Florida of a temporary injunction entered in Guatemala in a dissolution of marriage case, protecting Ms. Solis’s claims to one-half of the marital property, because “the defendant husband ought not to be able to escape his financial obligations to his wife in Guatemala by secreting the parties’ marital assets in Miami banks .Id. at 999.

In the case at hand, Mr. Cermesoni may or may not have “secreted” the parties’ marital assets at the banks in Miami, but the verified motion for recognition of the injunction in Miami included an allegation that Mr. Cermesoni threatened to “deplete all U.S. bank accounts in which he has an interest, and remove them from [Ms.] Maneiro’s reach.” In a global marketplace in which liquid banking assets can be moved in microseconds, unless a foreign creditor can identify and obtain limited Florida jurisdiction over assets of the debtor, “the ultimate final judgment may become a hollow victory for the litigant.” Otto’s Heirs v. Kramer; 797 So.2d 594, 597 (Fla. 3d DCA 2001).

This brings us to the injunction bond. The tribunal that oversees such a requirement is, in the present case, the civil court in Buenos Aires. Mr. Cermesoni has not addressed his reasons for seeking an increased bond in Miami rather than in Bue-nos Aires, but an affidavit in the prior appeal here sheds light on the point:

Matters related to Family Law, aimed at protecting the property of the economically weakest party in a divorce proceeding, do not require economic guarantees or bonds in the Argentine Republic. The party [Ms. Maneiro] is in a position of inferiority and has no access to the management of the marital property, and thus, her right of access to justice for the protection of her rights would otherwise be undermined. Mrs. Manei-ro has requested to proceed in court without incurring in [sic] legal costs or fees in the Argentine Republic in order to continue with the proceedings for the protection of the marital property, pursuant to the rights established by the Argentine National Constitution.

If the foreign court which has jurisdiction over the subject matter and the non-resident parties does not deem it appropriate to impose a bond, we see no reason the Florida court should insinuate itself into the case and impose its own local requirement under Florida Rule of Civil Procedure 1.610(b). “When a court is confronted with an action that would involve it in a serious interference with or usurpation of [the] continuing power [of another court to supervise and modify its injunctions], ‘considerations of comity and orderly administration of justice demand that the nonrendering court should decline jurisdiction ... and remand the parties for their relief to the rendering court, so long as it is apparent that a remedy is available there.’ ” Mann Manufacturing, Inc. v. Hortex, Inc., 439 F.2d 403, 408 (5th Cir. 1971) (citation omitted). To reiterate, the court in Miami merely accorded recognition and enforcement to the foreign court’s order; it has not addressed the merits of the parties’ claims to marital property, legal fees and expenses, or other issues in the dissolution case.

The Florida court’s refusal to increase the minimal injunction bond does not preclude Mr. Cermesoni from seeking relief in the primary proceeding in Buenos Aires. But for the reasons detailed in this opinion, the trial court committed no error in denying Mr. Cermesoni’s motion.

Affirmed.

      . See Inter-American Convention on Letters Rogatory, Jan. 30, 1975, 1483 U.N.T.S. 288, 14 I.L.M. 339; Additional Protocol to the Inter-American Convention on Letters Roga-tory, May 8, 1979, 1438 U.N.T.S. 322, 18 I.L.M. 1238 (signed and ratified by member nations of the Organization of American States, including the Republic of Argentina and the United States); 28 U.S.C. § 1781.

      . Mr. Cermesoni appealed the injunction order, Cermesoni v. Maneiro, Case No. 3D 13-1680, but that appeal was dismissed for lack of jurisdiction.

      . Affidavit of attorney Ana Mirta Rosenfeld, July 4, 2013, in the appellee’s appendix in Cermesoni v. Maneiro, Case No. 3D 13-1680, given judicial notice under Buckley v. City Miami Beach, 559 So.2d 310, 313 n. 1 (Fla. 3d DCA 1990).

      . The Miami case was filed and assigned to the civil division, not the family division, because it involves letters rogatory, not the dissolution of the parties’ marriage in Florida.


text:
    Roger LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5110.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2014.
    Antonio Bugge, Miami, for appellant.
    No appearance required for appellee.
   PER CURIAM.

On Remand

This case is before the Court on remand from the Florida Supreme Court which quashed our decision in Lopez v. State, 84 So.3d 389 (Fla. 4th DCA 2012). Appellant entered his plea in this case on April 22, 2009. He did not appeal. His conviction became final on direct review on or about May 22, 2009.

Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), which issued on March 31, 2010, does not apply retroactively to convictions that were final on direct review at the time Padilla issued. Chaidez v. United States, — U.S. -, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); Hernandez v. State, 124 So.3d 757 (Fla.2012).

Appellant filed this timely rule 3.850 motion seeking to withdraw his plea on June 2, 2010, after Padilla had been decided. We have held that Padilla does not apply retroactively in this situation. Perez v. State, 120 So.3d 49, 51 (Fla. 4th DCA 2013) (holding that Castaño v. State, 119 So.3d 1208 (Fla.2012), applies only where the postconviction claim was pending before the trial court when Padilla was decided).

Affirmed.

TAYLOR, GERBER and LEVINE, JJ., concur.


text:
    Giancarlo CAMERON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4168.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2014.

      Carey Haughwout, Public Defender, West Palm Beach, and David A. Henson, Special Assistant Public Defender, Bre-vard, NC, for appellant.
    Pamela Jo Bondi, Attorney General, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Guzman v. State, 110 So.3d 480 (Fla. 4th DCA 2013). We certify conflict with Thomas v. State, 78 So.3d 644 (Fla. 1st DCA 2011), and certify the following questions to the Florida Supreme Court:

1. DOES GRAHAM V. FLORIDA, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), APPLY TO LENGTHY TERM-OF-YEARS SENTENCES THAT AMOUNT TO DE FACTO LIFE SENTENCES?
2. IF SO, AT WHAT POINT DOES A TERM-OF-YEARS SENTENCE BECOME A DE FACTO LIFE SENTENCE?

Affirmed; conflict certified; questions certified.

TAYLOR, LEVINE and KLINGENSMITH, JJ., concur.


text:
    Carlos A. CAJIGAS CORTES, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-2142.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 2014.
    Carlos A. Cajigas Cortes, Zephyrhills, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court order denying appellant’s habeas corpus petition, in which he asked to file a belated rule 3.850 motion for post-conviction relief. Appellant also sought a belated appeal, which is not properly requested in the trial court. The request must be filed in the appellate court by timely petition under Florida Rule of Appellate Procedure 9.141(c). However, appellant has filed two such petitions in this court and they have been dismissed by orders as deficient and untimely in case numbers 4D13-4011 and 4D13-4656. Thus, to the extent he intends this appeal to be a petition for belated appeal, it is also dismissed as untimely.

Appellant is cautioned against the filing of future frivolous post-conviction or appellate filings in this case, as such filings will result in sanctions including referral to prison officials for disciplinary proceedings and/or a prohibition against pro se filings in this court. See State v. Spencer, 751 So.2d 47 (Fla.1999).

Affirmed; appellant cautioned against frivolous filings.

STEVENSON, GERBER and KLINGENSMITH, JJ., concur.