author: PER CURIAM. MAKAR, J.,

text:
    Fior A. RAMIREZ, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, Appellee.
    No. 1D12-5009.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2014.
    Jason H. Clark, West Palm Beach, for Appellant.

      Norman A. Blessing, General Counsel, Amanda L. Neff, Senior Attorney, and Louis A. Gutierrez, Senior Attorney, Tallahassee, for Appellee.
    Craig Thomas, Assistant General Counsel, Department of Economic Opportunity, Tallahassee.
   PER CURIAM.

Appellant, Fior A. Ramirez, appeals an order of appellee, the Reemployment Assistance Appeals Commission, denying her claim for reemployment compensation benefits. We reverse and remand, concluding that appellant is entitled to benefits.

Appellant began working as a housekeeper for Remington Lodging & Hospitality, a hotel in Atlantic Beach, Florida, on October 29, 2009. As found by the appeals referee, on Thursday, March 22, after learning that her father in the Dominican Republic had had a stroke, appellant asked her manager, Katie Berkowski, for time off to go be with him, but was unable to say when she would return. Ms. Berkowski told appellant that the employer could not give her a leave of absence, “but I offered her FMLA [the Family Medical Leave Act].” On Saturday, March 24, appellant called to let Ms. Berkowski know she was in the Dominican Republic, explaining that her brother had bought her an airline ticket so she had just left without letting Ms. Berkowski know. Appellant’s father died about a week after she got there. When she went to pick up her paycheck the following week, Ms. Berkow-ski told appellant she had abandoned her position.

The appeals referee affirmed the initial determination denying benefits, concluding that appellant had quit her job for personal reasons not attributable to her employer. Appellant had essentially asked for an indefinite amount of time off for a family emergency, and the employer’s denial of such a request could not be considered unreasonable such that it would cause the average able-bodied qualified worker to quit. Moreover, appellant did not seek leave under the FMLA after being advised to. Accordingly, she quit without good cause attributable to the employer.

The Commission found no reason to disturb the referee’s conclusion. In response to appellant’s contention that she had been discharged and had not quit, the Commission concluded that even if appellant had been constructively discharged, the evidence showed that the discharge would have been for excessive absences without permission, which would amount to misconduct connected with work.

We review de novo the referee’s and the Commission’s application of law to the referee’s findings of fact. See Arbor Tree Mgmt., Inc. v. Unemployment Appeals Comm’n, 69 So.3d 376 (Fla. 1st DCA 2011). There is a longstanding body of case law that excuses an employee’s departure from work without the permission or against the wishes of the employer, when there is a bona fide “family emergency.” Under section 443.101(£ )(a)l, Florida Statutes (2012), an employee is disqualified from receiving benefits if he or she voluntarily left work without good cause attributable to the employing unit, or was discharged for misconduct connected with work. The term “good cause” includes “that cause attributable to the employing unit which would compel a reasonable employee to cease working or attributable to the individual’s illness or disability requiring separation from his or her work.” When there is evidence of a genuine family emergency, a claimant cannot be denied benefits because he or she either voluntarily quit or committed misconduct, because leaving work for such emergency constitutes good cause under the above provision, rather than disregard of the employer’s interests. Under the facts of this case, appellant’s father’s stroke and death easily qualify as a family emergency under the case law, showing that she had good cause to leave work to go to him. See Campbell v. Dep’t of Labor & Employment Security, 455 So.2d 569 (Fla. 1st DCA 1984); Langley v. Unemployment Appeals Comm’n, 444 So.2d 518 (Fla. 1st DCA 1984); Tucker v. Dep’t of Commerce, 866 So.2d 845 (Fla. 1st DCA 1979); Andres v. Unemployment Appeals Comm’n, 888 So.2d 119 (Fla. 4th DCA 2004); Hamilton v. Unemployment Appeals Comm’n, 880 So.2d 1284 (Fla. 2d DCA 2004); Lewis v. Lakeland Health Care Ctr., Inc., 685 So.2d 876 (Fla. 2d DCA 1996); Foote v. Unemployment Appeals Comm’n, 659 So.2d 1282 (Fla. 5th DCA 1995); Gadsden v. Unemployment Appeals Comm’n, 616 So.2d 1196 (Fla. 2d DCA 1993); Williams v. Unemployment Appeals Comm’n, 608 So.2d 572 (Fla. 5th DCA 1992); Dean v. Unemployment Appeals Comm’n, 598 So.2d 100 (Fla. 2d DCA 1992); Howlett v. S. Broward Hosp. Tax Dist., 451 So.2d 976 (Fla. 4th DCA 1984); Williams v. Florida Industrial Comm’n, 135 So.2d 435 (Fla. 3d DCA 1961).

In a case with facts similar to those at bar, Szniatkiewicz v. Unemployment Appeals Commission, 864 So.2d 498 (Fla. 4th DCA 2004), the Fourth District reversed the Commission’s decision to deny benefits because the claimant voluntarily quit his job to care for a family member, which the Commission concluded was not good cause attributable to the employer. The appeals referee found that the claimant’s father had suffered a massive heart attack and was in intensive care in Germany, and the claimant asked for approximately two weeks off, but the manager said that if the claimant left, he would not have a job when he got back. The claimant did go, and when he returned to Florida, he did not report to work because he believed he had been fired. The referee concluded that the claimant had neither quit nor engaged in misconduct, because he had left in response to a legitimate family emergency. The Commission reversed, concluding that the facts showed that “the claimant initiated the separation when he chose to leave work,” and that even though there was a family emergency, “the claimant did not take reasonable steps to preserve his employment prior to leaving,” because he “did not fill out a leave request form and ... did not speak with anyone above the shift manager regarding his request for time off.” Id. at 501. The Commission concluded that this constituted voluntarily leaving work without good cause attributable to the employer.

The Fourth District reversed, because the facts showed that the claimant did not quit and had no intention of doing so, but instead was told that he would not have a job if he left to go to his father. Moreover, responding to the family emergency did not constitute misconduct. The court concluded that the Commission had “ignored” the family-emergency exception, which showed incontrovertibly that the claimant “clearly had a valid reason to leave his employment and to travel overseas to tend to his ailing father.” Id. at 503.

Under the facts found by the appeals referee, appellant voluntarily left work because of a family emergency after the employer declined to give her time off without knowing a precise date when she would return. According to the case law cited above, leaving for appellant’s family emergency was encompassed by the statutory exception for good cause attributable to illness or disability, or, in the alternative, leaving because of the family emergency after the employer had refused permission constituted good cause attributable to the employer.

The referee’s conclusion that appellant quit in part because she did not seek leave under the FMLA does not change this result. There was no evidence that Ms. Berkowski explained the Act to appellant or that appellant understood it. The Act requires an employer to provide up to 12 weeks of unpaid leave to an eligible employee who needs to care for a parent with a serious health condition. If the employer believed appellant was eligible, as Ms. Berkowski testified, she should have responded to appellant’s request for leave by telling her that yes, she could take leave without pay under the Act.

Regarding the Commission’s conclusion that appellant’s trip to the Dominican Republic to see her father constituted “excessive absenteeism” justifying denial of benefits based upon misconduct, the Florida Supreme Court stated in Mason v. Load King Manufacturing Company, 758 So.2d 649 (Fla.2000), that in a case of misconduct by absenteeism, the employer must prove “a serious and identifiable pattern of excessive absenteeism or late arrivals,” which must be established by “more than one act.” Id. at 654. The court said: “It logically follows that the employee’s entire course of conduct must be considered, not just the acts immediately precipitating the employee’s discharge.” Id. There was no evidence in the ease at bar that claimant was absent for any days other than for those associated with this particular family emergency.

Because there was no basis for the denial of appellant’s request for reemployment benefits, we

REVERSE and REMAND for an award of benefits.

PADOVANO and MARSTILLER, JJ., concur.

MAKAR, J., dissents.

MAKAR, J.,

dissenting.

I would affirm because the employer was accommodative of Ms. Ramirez by: (a) pointing out the availability of leave under FMLA, and (b) offering her reinstatement upon her return. Ms. Ramirez pursued neither available option. When offered reinstatement, she simply said it was “no big deal” to have a job with the employer and, instead, chose to file for unemployment benefits soon thereafter. This was job abandonment. § 443.101(2), Fla. Stat. (2013). Sympathy and a degree of legal leniency are justifiably on the side of the employee who has a family emergency, such as the imminent death of a close family member, which occurred here. See, e.g., Tallahassee Primary Care Assoc. v. Unemployment Appeals Com’n, 930 So.2d 824, 827 (Fla. 1st DCA 2006). But the employee must also take advantage of — or at least make a good faith effort to pursue — accommodations extended by the employer. The accommodations extended to Ms. Ramirez distinguish her case from Szniatkiewicz v. Unemployment Appeals Commission, 864 So.2d 498 (Fla. 4th DCA 2004), where the employer summarily dispensed with further employment, telling the employee that if he left there would be no job upon his return. In sharp contrast, the employer here made some efforts at accommodating the employee, both before and after the emergency. That Ms. Ramirez never pursued leave under FMLA and did not even try to be reinstated, decides this case; competent substantial evidence supports the referee’s factual finding that Ms. Ramirez abandoned her job for a reason not attributable to the employer. Cochran v. Unemployment Appeals Comm’n, 46 So.3d 1195, 1197 (Fla. 1st DCA 2010).

      . The employer’s right to terminate appellant’s employment is not at issue, but only the denial of benefits.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles FETTERLY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-3931.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2014.
    Charles Fetterly, Perry, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order denying Petitioner’s motion for post-conviction relief filed August 19, 2013, in Case No. 05-2007-CF-056403-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, LAWSON and WALLIS, JJ., concur.


text:
    Lawrence Lee WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-4193.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2014.
    Lawrence Lee Williams, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal of the judgment and sentence in Case Nos. 05-2013-CF-055617-A and 05-2012-CF-070541-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, LAWSON and WALLIS, JJ., concur.


author: COHEN, J.

text:
    Donald J. HACHENBERGER, Petitioner, v. Glenda A. HACHENBERGER, Respondent.
    No. 5D13-4450.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2014.
    Damon A. Chase of Chase Freeman, Lake Mary, for Petitioner.
    Alan B. Taylor of Alan B. Taylor & Associates, Professional Association, Orlando, for Respondent.
   COHEN, J.

As in Chace v. Loisel, — So.3d - (Fla. 5th DCA 2014), the trial judge initiated ex parte communications with a party through a Facebook “friend” request. For the reasons expressed in Chace, we grant the petition in the instant case. As in Chace, we do not anticipate the need to issue a formal writ.

PETITION GRANTED.

SAWAYA and BERGER, JJ„ concur.


author: ALTENBERND, Judge.

text:
    Kevin Ellisworth SANDERS, Petitioner, v. STATE of Florida, Respondent.
    No. 2D13-967.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2014.
    Rehearing Denied March 25, 2014.

      Kevin Ellisworth Sanders, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Respondent.
   ALTENBERND, Judge.

Kevin Ellisworth Sanders has filed a petition pursuant to Florida Rule of Appellate Procedure 9.141(d), claiming that his appellate attorney should have challenged, as fundamental error, the trial court’s use of the standard jury instruction for attempted manslaughter by intentional act. He is currently serving sentences for attempted second-degree murder and conspiracy to commit armed burglary. We conclude that he is entitled to no relief concerning his conspiracy conviction and the resulting sentence of fifteen years in prison. We agree that, under the holdings in State v. Montgomery, 39 So.3d 252 (Fla.2010), and Gonzalez v. State, 40 So.3d 60, 61-62 (Fla. 2d DCA 2010), he is entitled to relief as to the conviction for attempted second-degree murder.

In August 2008, Mr. Sanders was allegedly owed a debt from one of the two victims in this case. In an effort to obtain payment, Mr. Sanders and two other men armed themselves with a handgun and a machine gun and drove to the debtor’s house. Mr. Sanders and one of his accomplices climbed over a backyard fence. Mr. Sanders apparently had the machine gun, and his accomplice had the handgun. They confronted the debtor and another man, who was the debtor’s friend, in the backyard. It appears that the accomplice shot the debtor’s friend in the leg. Mr. Sanders discharged the machine gun, possibly by accident, but fortunately he did not wound anyone.

The State charged Mr. Sanders with attempted first-degree murder and several counts of conspiracy. He was convicted of the lesser-included offense of attempted second-degree murder with a weapon and as charged on the conspiracy charges. The jury found that he possessed a firearm during this offense, but it did not find that he discharged the weapon. On appeal, this court affirmed the conviction and sentence for attempted second-degree murder, but we reversed Mr. Sanders’ convictions and sentences on the three conspiracy counts, remanding to the trial court with instructions to enter a judgment and sentence for one count of conspiracy. Sanders v. State, 46 So.3d 150 (Fla. 2d DCA 2010).

It is now well established that, at least barring unusual circumstances, a defendant is entitled to relief in this context and is entitled to a new trial on the attempted homicide charge. See Pierce v. State, 121 So.3d 1091 (Fla. 5th DCA 2013); Coleman v. State, 110 So.3d 971 (Fla. 2d DCA 2013); McClendon v. State, 93 So.3d 1131 (Fla. 2d DCA 2012); Arnold v. State, 93 So.3d 1094 (Fla. 2d DCA 2012). There being no reason to deviate from this law in this case, we grant Mr. Sanders the same relief. Accordingly, Mr. Sanders is entitled to have his attempted second-degree murder conviction set aside. Because a new appeal would be redundant in this instance, we reverse Mr. Sanders’ attempted second-degree murder conviction, vacate the sentence, and remand for a new trial.

On remand, we caution the trial court that the language in the count charging attempted murder is quite unusual. Although it appears likely that the jury concluded that Mr. Sanders was a principal in the shooting of the debtor’s friend, the information and the resulting jury instructions create some ambiguity as to whether the victim of the attempted homicide was the debtor or his friend. This confusion should be resolved before any retrial.

Petition granted.

CASANUEVA and SILBERMAN, JJ., Concur.

      . In his second ground for relief, Mr. Sanders contends that trial counsel was ineffective for not moving to suppress his confessions. Ineffective assistance of trial counsel is not a cognizable claim under rule 9.141(d), so we deny this claim without further comment.

      . Our record contains nothing that would require the reversal of the fifteen-year sentence as a result of the relief we grant in this opinion. We do not, however, foreclose Mr. Sanders from seeking a resentencing on the conspiracy conviction if our opinion in this case alters a scoresheet or otherwise results in circumstances justifying a resentencing for that conviction.


text:
    BROWARD COUNTY, Florida, Appellant, v. ORBITZ, LLC, and Internetwork Publishing Corp., d/b/a Lodging.Com, and Florida Department of Revenue, A State Agency, Appellees.
    No. 1D13-543.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2014.
    Rehearing Denied Feb. 20, 2014.
    Jon C. Moyle, Jr., of Moyle Law Firm, P.A., Tallahassee; Joni Armstrong Coffey, Broward County Attorney, and Andrew J. Meyers, Chief Appellate Counsel, Fort Lauderdale; Gary Cruciani and Steven D. Wolens of McKool Smith, Dallas, TX, for Appellant.
    Larry Smith, Deputy Volusia County Attorney, and Mary G. Jolley, Assistant Vo-lusia County Attorney, Deland, Amicus Curiae for Appellant.
    Andrew Lutostanski and J. Clifton Cox, Assistant Attorneys General, Tallahassee; Mark E. Holcomb of Madsen, Goldman & Holcomb, LLC, Tallahassee; and Darrell J. Hieber of Skadden, Arps, Slate, Los Angeles, CA, for Appellees.
   PER CURIAM.

AFFIRMED. See Alachua Cnty. v. Expedia, Inc., 110 So.3d 941 (Fla. 1st DCA 2013).

BENTON, PADOVANO, and ROBERTS, JJ., concur.


text:
    Albert WILLIAMS, Petitioner, v. FLORIDA PAROLE COMMISSION and Michael D. Crews, Secretary, Florida Department of Corrections, Respondents.
    No. 1D13-5265.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2014.
    Rehearing Denied March 27, 2014.

      Albert Williams, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

The petition for writ of certiorari is denied without prejudice to petitioner’s right to seek review upon rendition of a final order disposing of the case below in its entirety, or a partial final judgment totally disposing of it as to any party.

VAN NORTWICK, PAJDOVANO, and ROWE, JJ., concur.


text:
    Florence HIGDON, Appellant, v. Terence HIGDON, Appellee.
    No. 5D13-1924.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2014.
    Barry A. Bobek, Jacksonville, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Florence Higdon appeals the Order Granting Attorney’s Charging Lien rendered in the pending dissolution action. The parties in whose favor the Order was rendered, David Garfinkel and GrayRobin-son, P.A., have not filed an answer brief. They were retained by Higdon to represent her in her dissolution action pursuant to an agreement that provided in pertinent part that the firm

shall have a lien against all monies or properties received by me or assigned to me as recovery in my case, including, but not limited to, my home, automobile, bank accounts, investment accounts, or other recovery which I receive or which I am due to receive as a result of the fruits of litigation, in the event that the attorney’s fees and costs owed to the firm are not otherwise paid.
I consent to a charging lien that allows payment of my attorney’s fees and costs owed to the firm from my recovery in my lawsuit.

The agreement set out the hourly fee of $350 for Garfinkel and $125 for paralegal work.

Garfinkel withdrew from representing Higdon before the dissolution action was concluded and filed a sworn Notice of Claim of Attorney’s Charging Lien in the amount of $18,384.97 and a motion requesting entry of an order establishing a lien in that amount against specified property that had not as yet been distributed to either of the parties. Higdon filed a reply opposing entry of an order on the grounds that such a lien is premature because there was nothing before the court sufficient to show entitlement to the relief requested in that there had been no distribution of the property subject to an order and therefore no recovery obtained by the attorney or his firm. The trial court entered the Order establishing a lien in the requested amount without conducting a hearing to consider Higdon’s objections.

Garfinkel and GrayRobinson have perfected their right to seek a charging lien in the underlying case. See Brown v. Vt. Mut. Ins. Co., 614 So.2d 574 (Fla. 1st DCA 1993). However, we agree with Higdon that the Order under review was premature in that it issued during the pendency of the underlying dissolution action, i.e., before it could be determined that Garfinkel’s services resulted in a benefit to Higdon, in the form of assets awarded in the dissolution action, to which the charging lien could attach. See Walia v. Hodgson Russ LLP, 28 So.3d 987 (Fla. 4th DCA 2010) (finding error in trial court’s act of issuing order establishing a charging lien while underlying dissolution action remained pending; noting that without a final dissolution judgment, imposition of the charging lien was premature as there was no evidence the attorney’s services had benefited the client and there was nothing to which the charging lien could attach).

Furthermore, the court summarily entered the Order establishing the lien without hearing Higdon’s objections. Had the court heard Higdon’s argument regarding prematurity, it may well have realized the charging lien could not be imposed until the dissolution case concluded. Too, the irregularity precluded Higdon’s due process right to raise any equitable defenses she may have had and to dispute the amount claimed. This was error. We note parenthetically that Garfinkel and GrayRobinson do not contest Higdon’s arguments in light of the fact that they did not file a brief in this appeal.

We, therefore, reverse the Order as premature and remand with directions that, after the final dissolution judgment is rendered, and after Higdon has been given notice and opportunity to be heard, the court can consider entry of an order establishing a charging lien in favor of Garfinkel and GrayRobinson. See Rose v. Marcus, 622 So.2d 63, 65 (Fla. 3d DCA 1993) (reversing order permitting charging lien where wife was not provided notice that charging lien issue would be heard at attorney’s fees hearing and wife was not given an opportunity to have her objections heard).

REVERSED and REMANDED.

TORPY, C.J., SAWAYA and LAWSON, JJ., concur.


text:
    Samuel J. GARDNER, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections and State of Florida, Respondents.
    No. 1D14-0302.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2014.
    Rehearing Denied April 3, 2014.
    Samuel J. Gardner, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

THOMAS, RAY, and SWANSON, JJ., concur.


text:
    Gerald S. EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1684.
    District Court of Appeal of Florida, Fifth District.
    Feb. 21, 2014.
    Rehearing Denied March 25, 2014.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED.

EVANDER, COHEN and WALLIS, JJ., concur.

      . Our affirmance of Appellant’s conviction on Count III is based on this court's recent decision in Roughton v. State, 92 So.3d 284 (Fla. 5th DCA 2012) (convictions for sexual battery and lewd or lascivious molestation did not violate prohibition against double jeopardy even though convictions arose from same act).


text:
    Nesta Kamely WALKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5350.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2014.
    Rehearing Denied April 7, 2014.

      Nesta Kamely Walker, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

CLARK, MAKAR, and OSTERHAUS, JJ., concur.


text:
    Michael COMPTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-6038.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2014.
    Rehearing Denied April 7, 2014.
    Michael Compton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. RApp. P. 9.141(c)(5)(A).

CLARK, MAKAR, and OSTERHAUS, JJ., concur.


text:
    John F. JONES, Petitioner, v. Michael FINESILVER, Respondent.
    No. 1D13-6209.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2014.
    Rehearing Denied April 7, 2014.
    John F. Jones, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Powell v. Fla. Dep’t of Corr., 727 So.2d 1103 (Fla. 1st DCA 1999).

CLARK, MAKAR, and OSTERHAUS, JJ., concur.


text:
    Jeffrey L. STANTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0452.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2014.
    Rehearing Denied April 17, 2014.

      Jeffrey L. Stanton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

CLARK, MAKAR, and OSTERHAUS, JJ., concur.


author: BERGER, J.

text:
    Wray DAWES, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-3239.
    District Court of Appeal of Florida, Fifth District.
    Feb. 28, 2014.
    Rehearing Denied April 1, 2014.

      James S. Purdy, Public Defender, and Lisa A. Haskins, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   BERGER, J.

Wray Dawes appeals the trial court’s order denying his motion to dismiss, which was premised on the State’s failure to bring him to trial within 180 days as required under the Interstate Agreement on Detainers Act (“IADA”). Because we agree with the trial court’s determination that a county jail does not qualify as a state facility under the IADA, we affirm.

Dawes was serving a twelve-month sentence in the Plymouth County, Massachusetts Correctional Facility, a county jail, when a detainer was placed on him for outstanding charges in Orange County, Florida. Thereafter, he sought to resolve his Florida case through the IADA by providing an inmate request to the jail stating he needed to “put in for my final disposition, waiver of extradition and speedy trial.” On March 29, 2011, Dawes was notified by jail officials that Florida would not extradite him until he completed his sentence in Massachusetts. He was ultimately returned to Florida on October 15, 2011, at which time the warrant on the Orange County charges was executed.

Dawes moved to dismiss the charges, claiming the State’s failure to bring him to trial within 180 days of his request for final disposition under the IADA required the final dismissal of the charges. Relying on State v. Fay, 763 So.2d 473 (Fla. 4th DCA 2000), the trial court denied the motion after concluding the IADA did not apply to inmates serving sentences in county jail facilities. Dawes later entered a plea, reserving his right to appeal the detainer issue.

Having considered the issue, we affirm. The IADA is a compact entered into by forty-eight States, the District of Columbia, Puerto Rico, the Virgin Islands, and United States. Monroe v. State, 978 So.2d 177, 179 (Fla. 2d DCA 2007). The act presumes that prison treatment and rehabilitation programs are negatively impacted by a prisoner’s lengthy absence from a jurisdiction in connection with outstanding charges. To counter these problems, the IADA encourages the expeditious and orderly disposition of any and all detainers based on untried indictments, informations or complaints. See § 941.45(1), Fla. Stat. (2011); United States v. Wilson, 719 F.2d 1491, 1494 (10th Cir.1983) (finding IADA was enacted to prevent the obstruction of programs of treatment or rehabilitation frustrated by “numerous absences in connection with successive proceedings related to pending charges in another jurisdiction”) (quoting United States v. Roberts, 548 F.2d 665, 670-71 (6th Cir.1977)); State v. Butler, 496 So.2d 916, 917 (Fla. 2d DCA 1986) (“The purpose of the act is to ‘obviate difficulties in securing speedy trials of persons incarcerated in other jurisdictions and to minimize the time during which there is an inherent danger that a prisoner may forego preferred treatment or rehabilitation benefits.’ ”) (quotation and citation omitted). Under the IADA, a prisoner must be brought to trial within 180 days of his request for a final disposition of charges to the extent he has entered upon “a term of imprisonment in a penal or correctional institution of a party state.” § 941.45(III)(a), Fla. Stat. (2011). The statute provides:

(III) REQUEST FOR FINAL DISPOSITION
(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he or she shall be brought to trial within 180 days after the prisoner shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his or her imprisonment and the prisoner’s request for a final disposition to be made of the indictment, information, or complaint .... The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.

Id. (emphasis added).

The issue before us is whether a one-year sentence in a county jail is “a term of imprisonment in a penal or correctional institution of a party state,” as those terms are used in Article III of the IADA. Federal law governs the interpretation of the IADA, State v. Edwards, 509 So.2d 1161, 1163 (Fla. 5th DCA 1987), which states it is to be “liberally construed so as to effectuate its purposes.” § 941.45(IX), Fla. Stat. (2011).

Neither the term “imprisonment” or the phrase “penal or correctional institution of a party state” is defined by the IADA. A “term of imprisonment” has been described as “that definable period of time during which a prisoner must be confined in order to complete or satisfy the [p]rison term or sentence which has been ordered.” United States v. Dobson, 585 F.2d 55, 58-59 (3d Cir.1978) (explaining further that because a pretrial detainee’s confinement is tentative and dependent upon verdict at trial and imposition of sentence, he has no “immediate interest” in institutional rehabilitation or treatment). Dictionary definí-tions, however, suggest a distinction between state prison and local jail facilities. Black’s Law Dictionary defines “penal institution” as a prison, which, in turn, is defined as “[a] state or federal facility of confinement for convicted criminals, esp. felons.” Black’s Law Dictionary 1247, 1814 (9th ed. 2009). A “jail” is defined as “[a] local government’s detention center where persons awaiting trial or those convicted of misdemeanors are confined.” Black’s Law Dictionary, 910 (9th ed. 2009).

Nonetheless, various state courts have reached differing results on whether prisoners serving sentences in county jails may avail themselves of the IADA. For example, the Colorado Court of Appeals held that, for the purposes of the IADA, facilities, including county jails, where inmates are sentenced to incarceration are “penal or correctional institutions of a party state.” See People v. Walton, 167 P.3d 163, 166 (Colo.App.2007). It determined that construing “penal or correctional institutions” to include jails as well as prisons was consistent with the purpose of the IADA since some defendants may be ordered to serve their sentences in a jail that may offer rehabilitative programs the same as prisons often do. Likewise, the Tennessee Supreme Court found “that a ‘term of imprisonment’ begins when a prisoner has been sentenced and confined, even when the prisoner is serving the sentence in a temporary detention facility or a county jail.” State v. Springer, 406 S.W.3d 526, 538 (Tenn.2013). On the other hand, the Nevada Supreme Court has held that a jail is not a penal or correctional institution based on the assumption that jails do not offer rehabilitative services. See State v. Wade, 105 Nev. 206, 772 P.2d 1291, 1294 (1989); see also Dorsey v. State, 490 N.E.2d 260 (Ind.1986) (holding that IADA was intended to benefit persons serving time in prison), overruled on other grounds by Wright v. State, 658 N.E.2d 563 (Ind.1995).

Here, the State relied on Fay to argue the IADA is inapplicable to prisoners held in county jail facilities. In Fay, the defendant filed a request under the IADA while temporarily housed in a county jail facility awaiting transfer to his “permanent correctional residence,” a New Jersey state prison. 763 So.2d at 475. Under those circumstances, the Fourth District held that the IADA did not apply. Id.

Dawes, however, was not awaiting transfer; rather, he was under sentence serving his time in a county facility. Nevertheless, we believe the end result is the same. Article III of the IADA is clear that in order for a defendant to avail himself of the provision for speedy trial disposition, he must first be incarcerated in a state penal or correctional institution. See § 941.45(III)(a), Fla. Stat. (2011). If the legislative intent were to include both local and state facilities, the statute would have so read. Florida law distinguishes between county jails and correctional institutions. Florida’s correctional system, which is made up of all prisons and other correctional institutions, is under the jurisdiction of the Department of Corrections, see § 944.02(2), Fla. Stat. (2011), while county detention facilities are locally controlled and operated by the sheriff. See § 951.061, Fla. Stat. (2011). Moreover, because Florida defines a state correctional institution as “any prison ... or other correctional institution ... in which prisoners are housed, worked, or maintained, under the custody and jurisdiction of the department, § 944.02(8), Fla. Stat. (2011), which is a state agency, we conclude that for the purposes of the IADA, “penal or correctional institutions of a party state” do not include county jails.

At the time Dawes sought to resolve his Florida charges through the IADA, he was serving a sentence in the Plymouth County, Massachusetts Correctional Facility, a county jail, not a penal or correctional institution of the State of Massachusetts. Accordingly, the IADA did not apply to him.

AFFIRMED.

SAWAYA and COHEN, JJ„ concur.

      . The Florida detainer was based on a warrant charging Dawes with two counts of kidnapping with intent to commit a life felony (with a firearm), home invasion robbery (with a firearm), aggravated battery with a firearm, possession of a firearm by a convicted felon, two counts of aggravated assault with a firearm, and grand theft of $100 or more from a dwelling or curtilage.

      . In his motion, Dawes argued the 180-day time period began to run on March 28, 2011, because that is the date jail officials responded to his inmate request and informed him Orange County would not extradite. Nevertheless, we are unable to conclude that the 180 day time period began to run on this date. The United States Supreme Court has determined that “the 180-day time period in Article 111(a) of the IADA does not commence until the prisoner’s request for final disposition of the charges against him has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him.” Fex v. Michigan, 507 U.S. 43, 52, 113 S.Ct. 1085, 122 L.Ed.2d 406 (1993). Although the record contains an inmate request and staff response form, dated March 29, 2011, stating, "I spoke with Florida (Orange County Sheriff’s Department) they told me that you are ineligible for an IAD and that you will be picked up after you complete your sentence,” nothing contained therein indicates Dawes’ request under the IADA was delivered, as required, to either the court or prosecuting officer.

      . The Fourth District found support in United States v. Taylor, 173 F.3d 538 (6th Cir.1999), wherein the federal circuit court found that a prisoner housed in a local jail pending transfer to a state prison was not housed in a correctional facility so as to be entitled to the provisions of the IADA. The circuit court reasoned that the IADA serves to prevent interference with institutional care and rehabilitation — programs that are not normally available at a facility or jail designed for temporary custody of prisoners. Id. (quoting Runck v. State, 497 N.W.2d 74 (N.D.1993) (quotations omitted)). Thus, because the prisoner had yet to begin his rehabilitation while held in the temporary facility, his rehabilitation could not be interrupted.

      . By contrast, a "county detention facility” is defined as "a county jail, a county stockade, a county work camp, a county residential probation center, and any other place except a municipal detention facility used by a county or county officer for the detention of persons charged with or convicted of either felony or misdemeanor.” § 951.23(l)(a), Fla. Stat. (2011).


text:
    Christopher Mitchell KINSEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-0413.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2014.
    Rehearing Denied April 7, 2014.
    Michael Ufferman of Michael Ufferman Law Firm, Tallahassee for Appellant.
    Pamela Jo Bondi, Attorney General, and Meredith Hinshelwood, Assistant Attorney General, Tallahassee for Appellee.
   PER CURIAM.

Christopher Kinsey appeals the sentence imposed following his entry of an open no contest plea to one count of failing to register as a sexual predator. During the sentencing hearing, Mr. Kinsey sought a downward departure sentence under section 921.0026(2)(d), Florida Statutes (2013), asserting that he suffers from a mental disorder. He did not present evidence that the Department of Corrections could not or would not accommodate his apparent need for specialized treatment and the trial court refused to impose the downward departure sentence, adhering to the requirements set forth in State v. Holmes, 909 So.2d 526 (Fla. 1st DCA 2005).

Mr. Kinsey asks this Court to recede from its decision in Holmes in view of the conflicting conclusions reached more recently by other district courts as to what a defendant must establish in order to qualify for a downward departure under section 921.0026(2)(d). See State v. Chubbuck, 83 So.3d 918 (Fla. 4th DCA 2012) (en banc); State v. Owens, 95 So.3d 1018, 1021 (Fla. 5th DCA 2012) (en banc). As this Court recognized recently in Dixon v. State, 128 So.3d 972 (Fla. 1st DCA 2013), we are bound by our own precedent to affirm. But if it were an open question, we would find the reasoning of Chubbuck, and Owens strongly persuasive. In Chubbuck, the Fourth District Court of Appeal, sitting en banc, determined a defendant is not required to establish that needed treatment is unavailable in the Department of Corrections in order to qualify for a downward departure. Subsequently, in Owens, the Fifth District Court of Appeal agreed, stating:

By requiring the defendant seeking downward departure from a criminal punishment code sentence to prove that services to treat his or her medical condition are unavailable in prison, the courts have placed an additional burden on the defendant which is not required by the Legislature. In fact, nothing in the legislative history even hints that in order to justify a downward departure on this ground, services must be unavailable in prison to treat the condition.

95 So.3d at 1020-21.

As a practical matter, defense counsel’s ability to accurately determine if treatment is available for a particular mental health malady is constrained by bureaucracy, budget considerations, and the diverse nature of facilities -within the Department of Corrections. Moreover, under a plain reading of the statute, it is not required.

Nonetheless, we must affirm the trial court’s adherence to this Court’s precedent.

AFFIRMED.

BENTON, SWANSON, and OSTERHAUS, JJ. concur.


author: PER CURIAM. PADOVANO, J.,

text:
    Fred Antonio CLEVELAND, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5228.
    District Court of Appeal of Florida, First District.
    March 4, 2014.
    Rehearing Denied April 8, 2014.

      Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We deny Appellant’s motion for rehearing or certification of conflict. For purposes of clarification, we withdraw our previous opinion and substitute this opinion in its place.

Fred Antonio Cleveland, Jr. challenges his convictions and sentences for lewd or lascivious conduct by touching a person under sixteen years of age and for lewd or lascivious conduct by solicitation. Cleveland raises three arguments on appeal: (1) whether the trial court abused its discretion when it denied Appellant’s motion for continuance; (2) whether the State failed to prove that he committed lewd or lascivious conduct by solicitation; and (3) whether he is entitled to be resentenced because the trial court failed to renew the offer of counsel prior to conducting the sentencing hearing. We affirm the first issue without further comment.

Cleveland argues that the State failed to present sufficient evidence to establish that he committed lewd or lascivious conduct by solicitation. The information charged Cleveland with violating section 800.04(6), Florida Statutes (2010), which provides that lewd or lascivious conduct occurs when a person “[s]olicits a person under 16 years of age to commit a lewd or lascivious act.” In order to prove lewd or lascivious conduct by way of solicitation, the State is required to show that the victim was under the age of sixteen, that the defendant solicited the victim to commit a lewd or lascivious act, and that the defendant was eighteen years of age or older at the time of the offense. Fla. Std. Jury Instr. 11.10(d) (Crim). At trial, there was no dispute that the victim was under the age of sixteen and that Cleveland was over the age of eighteen at the time of the offense. Moreover, the State produced evidence that Cleveland asked the victim to “let” him perform a sexual act on her. Thus, under a plain reading of the statute, the State proved the charged crime.

Cleveland argues this Court is required to reverse his conviction based on the decisions in Randall v. State, 919 So.2d 695 (Fla. 4th DCA 2006), and Patel v. State, 679 So.2d 850 (Fla. 1st DCA 1996). In Randall, the Fourth District reversed the defendant’s conviction for lewd or lascivious conduct by solicitation because the State only established that the defendant told the victim that he “wanted” to perform a sexual act on her, which was an expression of desire and not a form of solicitation. Id. at 697. In contrast, the State proved in the instant case that Cleveland said “let me” perform a sexual act on the victim. The decision in Patel is also not applicable because Patel was charged with soliciting the victim, a child under the age of sixteen, to commit sexual battery on another child younger than age sixteen, in violation of sections 777.04(2) and 800.04(2), Florida Statutes (1989). Id. at 851. Because the 1989 version of section 800.04 did not refer to solicitation, the State was required to charge the defendant with violating both statutes. Id. Here, Cleveland was charged only with violating section 800.04(6). Compare, Pri-vett v. State, 110 So.3d 543 (Fla. 1st DCA 2013) (reversing a conviction for soliciting unlawful sexual activity with minors, in violation of sections 794.05 and 777.04(2), Florida Statutes). Thus, neither of these decisions is applicable to this case, and we affirm Cleveland’s conviction for lewd or lascivious conduct by solicitation.

However, as properly conceded by the State, the trial court erred when it failed to renew the offer of counsel at the sentencing phase of Appellant’s trial as required by Florida Rule of Criminal Procedure 3.111(d)(5). Lewis v. State, 31 So.3d 944, 945 (Fla. 1st DCA 2010); Travis v. State, 969 So.2d 532, 533 (Fla. 1st DCA 2007). We, therefore, affirm Cleveland’s convictions, vacate his sentences, and remand for resentencing.

AFFIRMED in part, REVERSED in part, and REMANDED.

ROWE and OSTERHAUS, JJ„ concur.

PADOVANO, J., concurs in part and dissents in part.

PADOVANO, J.,

concurring in part and dissenting in part.

I dissent from the part of the court’s decision that affirms the defendant’s conviction for solicitation to commit lewd or lascivious conduct. In my view, the evidence presented by the state was not sufficient to satisfy the elements of proof required by the statute proscribing this offense. I join in the court’s decision to the extent that it requires resentencing with a proper renewed offer of counsel.

Section 800.04(6)(a)2, Florida Statutes (2010), requires evidence that the offender solicited the victim “to commit a lewd or lascivious act.” (Emphasis added.) This language plainly refers to the solicitation of an action by the victim, not a request for permission to do something to the victim. The statute could be violated by enticing the victim to perform an act on a third person or by enticing the victim to perform an act on or for the offender. However, the text of the statute rules out the situation we have here: a request by the offender that he be allowed to perform an act on the victim. See Randall v. State, 919 So.2d 695 (Fla. 4th DCA 2006); Stumpf v. State, 677 So.2d 1298 (Fla. 5th DCA 1996). At most, this kind of offense would amount to an attempt to commit the crime of lewd or lascivious molestation.

The majority attempts to distinguish Randall on the ground that the defendant in that case merely stated that he “wanted” to perform a sexual act on the victim whereas the defendant in this case said “let me” perform a sexual act on the victim. With respect for my colleagues in the majority, I think that this is a distinction without a difference.

       Section 800.04(6) was added in 1999 to expressly proscribe the act of solicitation. Ch. 99-201, Laws of Fla.


author: SILBERMAN, Judge.

text:
    Jeanne Abou SHARAKA, Appellant, v. E & A, INC., Elias Anastasopoulos, and Nickolas Ekonomides, Appellees.
    No. 2D12-4118.
    District Court of Appeal of Florida, Second District.
    March 5, 2014.

      David E. Platte of David E. Platte, P.A., Clearwater, for Appellant.
    William H. Walker of Law Office of William H. Walker, Chartered, St. Peters-burg, for Appellees E & A, Inc., and Elias Anastasopoulos.
    Nickolas C. Ekonomides, pro se.
   SILBERMAN, Judge.

Jeanne Abou Sharaka (the Tenant) appeals a final summary judgment in favor of E & A, Inc., Elias Anastasopoulos, and Nickolas Ekonomides (collectively referred to as the Landlord) in the Tenant’s action for malicious prosecution. The trial court resolved only one element of the malicious prosecution action: whether the Tenant obtained a bona fide termination in her favor in a previous county court eviction action. We conclude that the circuit court erred in determining that the Tenant had not obtained a bona fide termination in her favor and in entering final summary judgment in favor of the Landlord. Thus, we reverse and remand for further proceedings.

I. The Previous Eviction Action

E & A, Inc., owns the shopping center in which the Tenant rented retail space. Elias Anastasopoulos owns and controls E & A. Nickolas Ekonomides is the attorney for Anastasopoulos and E & A. Ekonom-ides is also the son-in-law of Anastasopou-los. The Tenant had rented retail space in the shopping center since 1992.

In 2003 the Landlord notified the Tenant that she owed common area maintenance (CAM) expenses for 1998 through 2002. The Landlord issued a three-day notice demanding possession of the premises or payment of $19,422, which included the claimed CAM expenses and significant late charges. When the Tenant did not pay or move out, the Landlord filed a county court eviction action against the Tenant.

The Tenant alleged in her affirmative defenses to the eviction action that she timely made each rental payment, including CAM expenses, due to the Landlord throughout the term of the lease. She claimed that the Landlord failed to give her notice of any outstanding CAM expenses for each year from 1998 through 2002. She also asserted that the Landlord did not give her a breakdown of the claimed expenses so that she could determine the methodology and validity of the amounts and whether she actually owed any monies to the Landlord. The Tenant contended that the Landlord waived its right to the claimed expenses based on the Landlord’s delay in presenting statements to the Tenant.

After a bench trial, the county court that heard the eviction action determined that the Landlord had not complied with the requirements of the lease by failing to provide to the Tenant a yearly statement as to the Tenant’s share of CAM expenses. As a result, the court found that the Landlord waived its right to claim that the Tenant had breached the lease for nonpayment of the CAM expenses. The county court also stated that the Landlord’s failure to provide notice of annual adjustments and then making demand years later was prejudicial to the Tenant. The court concluded that because the three-day notice improperly included a demand for CAM expenses for which annual statements had not been provided, the notice was invalid. The invalid notice could not be a predicate for an eviction action, which was the only action brought by the Landlord. For these reasons, the county court entered final judgment in the Tenant’s favor.

II.The Appeal in the Eviction Action

The Landlord appealed the county court’s final judgment to the circuit court, and the circuit court affirmed with a written opinion. The circuit court stated that while the Landlord had sent a letter dated June 25, 2008, for 2002 CAM expenses, nothing in the record showed that the Landlord had ever provided to the Tenant “a statement showing operating costs, adjusted the succeeding period to reflect increased operating costs, or demanded payment for such operating costs, as required” by the lease. The circuit court noted that while the county court had used the term “waiver” in its ruling, that ruling was a finding that the Landlord had breached the lease and was not entitled to evict the Tenant based on the Landlord’s own breach. The circuit court agreed with the county court’s determination that because the three-day demand notice was defective for seeking full payment of CAM expenses “going back five years in contradiction to the terms of the parties’ contract, [the Landlord] was precluded from seeking to evict [the Tenant] based on non-payment for solely year 2002.”

III.The Malicious Prosecution Action

In March 2010 the Tenant filed her malicious prosecution action against the Landlord. The Tenant alleged that in 2003 the Landlord created a “huge” back charge of CAM expenses for 1998 through 2002. Then, in its three-day eviction notice, the Landlord demanded a lump sum of $19,422, which included CAM expenses and thousands of dollars of late charges. The Tenant asserted that since 1992 she had always timely paid the rent and charges each month. She further alleged that the claimed CAM expenses had never been billed to her prior to 2003 and that the Landlord’s failure to provide annual statements constituted a waiver of any right to claim additional amounts. She contended that the previous eviction action was filed without probable cause and was intended to maliciously injure her. And she alleged that the eviction action resulted in a bona fide termination in her favor.

The Landlord filed a motion for summary judgment and contended that the ruling in the eviction action did not constitute a bona fide termination in the Tenant’s favor because it was a technical termination based on waiver rather than on the merits of the case. The Tenant filed a response and opposing affidavits. After a hearing, the trial court granted summary judgment in favor of the Landlord, stating that it made “this ruling reluctantly and primarily based on Jones v. State Farm Mutual Automobile Insurance Co., 578 So.2d 783 (Fla. 1st DCA 1991).” The trial court entered final summary judgment in favor of the Landlord, and the Tenant timely appealed.

IV.This Appeal and the Applicable Law

Our review of a ruling on a motion for summary judgment is de novo. Olson v. Johnson, 961 So.2d 356, 358 (Fla. 2d DCA 2007). The party moving for summary judgment must conclusively show that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Id.

In a malicious prosecution action the plaintiff must establish six elements:

(1) an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding against the present plaintiff as the defendant in the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damage as a result of the original proceeding.

Alamo Rent-A-Car, Inc. v. Mancusi 632 So.2d 1352, 1355 (Fla.1994); see also Olson, 961 So.2d at 359. If the plaintiff fails to establish any one element, the malicious prosecution claim fails. Alamo Rent-A-Car, Inc., 632 So.2d at 1355.

In the trial court, the Landlord specified that the basis for its motion for summary judgment was that the Tenant could not establish the third element, that termination of the eviction action constituted a bona fide termination of that proceeding in favor of the Tenant. The Landlord did not assert that any of the other elements would support its motion for summary judgment. In fact, the Landlord acknowledged that for purposes of the motion the Tenant fulfilled the first two elements and that if the case went forward the probable cause element would be addressed by “lots of evidence.” Thus, the only issue before us is whether the Landlord was entitled to summary judgment based on its contention that the final judgment in the eviction action was not a bona fide termination of that case in the Tenant’s favor.

“The element that there be a bona fide termination of the underlying civil suit is satisfied by either a favorable decision on the merits or a bona fide termination of that lawsuit.” Rowen v. Holiday Pines Prop. Owners’ Ass’n, 759 So.2d 13, 15-16 (Fla. 4th DCA 2000); see also Union Oil of Cal., Amsco Div. v. Watson, 468 So.2d 349, 353 (Fla. 3d DCA 1985). In Rowen, the court stated as follows:

A favorable adjudication may be by a judgment rendered by a court after trial, or upon demurrer or its equivalent. In either case the adjudication is a sufficient termination of the proceedings, unless an appeal is taken. If an appeal is taken, the proceedings are not terminated until the final disposition of the appeal and of any further proceedings that it may entail.

759 So.2d at 16 (quoting Restatement (Second) of Torts, § 674 cmt. j). Thus, contrary to the Landlord’s argument, the Circuit court’s decision on the appeal of the eviction action is relevant to the determination of whether there was a bona fide termination in the Tenant’s favor.

The malicious prosecution cases that the Landlord relies upon to argue that we should not consider the appellate ruling in the eviction action dealt with the element of lack of probable cause to bring the underlying action, not bona fide termination. See Gallucci v. Milavic, 100 So.2d 375 (Fla.1958); Goldstein v. Sabella, 88 So.2d 910 (Fla.1956). Those decisions did not focus on the end result of the underlying cases. In Gallucci, a determination had been made that the underlying case could go forward against a defendant, but later the trial court directed a verdict in the defendant’s favor. 100 So.2d at 377. In Goldstein, the underlying case had been successfully prosecuted against a defendant but reversed on appeal. 88 So.2d at 911. As the Goldstein court noted, the appellate reversal of a conviction or judgment would not affect the existence of probable cause to institute the proceeding. “[0]ne need not be certain of the outcome of a criminal or civil proceeding to have probable cause for instituting such an action.” Id.

In contrast, an appellate resolution of a case is relevant to the question of whether there was a bona fide termination of the proceeding in favor of the defendant. See Rowen, 759 So.2d at 16. A bona fide termination means not only that the underlying action was resolved favorably to the defendant in that action but also that it ended in a manner demonstrating that the underlying suit lacked merit. Cohen v. Corwin, 980 So.2d 1153, 1155 (Fla. 4th DCA 2008) (determining that the issue of bona fide termination based on a voluntary dismissal without prejudice could not be determined on a motion to dismiss); Doss v. Bank of Am., N.A., 857 So.2d 991, 994-997 (Fla. 5th DCA 2003) (reversing summary judgment in malicious prosecution action and concluding, in light of all circumstances, that a stipulated dismissal with prejudice constituted a bona fide termination in favor of the defendant in underlying suit).

Here, in the eviction action the county court entered a final judgment in favor of the Tenant after a trial, and the appellate court affirmed that judgment. Both the trial and appellate court actions are relevant to the question of whether there has been a bona fide termination of the eviction proceeding in the Tenant’s favor.

A review of the county court’s ruling and the appellate court’s opinion affirming the ruling in favor of the Tenant shows that the eviction action lacked merit. Both courts determined that the Landlord predicated the eviction action on a claim that the Tenant had breached the lease when, in fact, the evidence established that the Landlord had breached the lease. The Landlord pursued eviction based on its claim that CAM expenses for multiple years went unpaid by the Tenant even though the Landlord had not complied with its contractual obligation to annually notify the Tenant of any purported CAM expenses to be paid by the Tenant. Both courts concluded that the Landlord’s three-day notice was invalid and that the Landlord was not entitled to evict the Tenant. Thus, the Tenant prevailed and obtained a final judgment and an affirming appellate opinion.

In the present malicious prosecution action, the Landlord argued to the trial court and to this court that Jones v. State Farm Mutual Automobile Insurance Co., 578 So.2d 783 (Fla. 1st DCA 1991), supports its position. The Landlord maintains that the termination of the underlying action based on a successful waiver defense falls under the category of a technical or procedural termination and does not meet the element of bona fide termination for a malicious prosecution claim. See id. at 786. Jones, however, is distinguishable from the present case. In Jones, the First District determined that the plaintiffs in the malicious prosecution action “failed to prove that there was a favorable decision on the merits or a bona fide termination of the previous proceedings in their favor.” Id. at 785. The First District affirmed the grant of a directed verdict in favor of State Farm in the malicious prosecution action because the plaintiffs could not show that they prevailed on the merits of the underlying action, a negligence action. Id. at 786. The negligence action had been terminated by a final summary judgment with a ruling that a general release State Farm had executed with other parties entitled the defendants to prevail in the negligence action. No determination on the issue of negligence was ever made. Id.

The Landlord likens the release in Jones to the waiver defense the Tenant asserted. The First District determined that the release resulted in a termination on technical grounds or for procedural reasons, explaining that the issue of whether one of the defendants negligently operated the automobile was never tried. Id. at 786.

But here, the county court conducted a bench trial on the eviction action. The court found, and the appellate court agreed, that the Landlord had failed to comply with its obligation to provide annual statements to the Tenant in order to collect adjusted CAM expenses in succeeding years. The county court determined, and again the appellate court agreed, that the three-day notice was invalid and the Landlord was not entitled to evict the Tenant. In our view, the circumstances reflect that the merits of the Landlord’s eviction action were finally decided in favor of the Tenant.

Thus, we conclude that the trial court erred in granting summary judgment and entering its final summary judgment in favor of the Landlord as to the malicious prosecution action. Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

LaROSE and CRENSHAW, JJ., Concur.


text:
    Charles J. DAVIS, Appellant, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Appellee.
    No. 1D13-3953.
    District Court of Appeal of Florida, First District.
    March 7, 2014.
    Rehearing Denied April 16, 2014.
    Charles J. Davis, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer Parker, General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Villareal v. Craig, 813 So.2d 984 (Fla. 1st DCA 2002); Sciabbarrasi v. Uddo, 466 So.2d 19 (Fla. 5th DCA 1985) (holding an order denying leave to amend an answer/counterclaim is not appealable).

CLARK, MAKAR, and OSTERHAUS, JJ., concur.


text:
    Susan HARDMAN, Former Wife, Appellant, v. Harry KOSLOWSKI, Former Husband, Appellee.
    No. 1D13-1883.
    District Court of Appeal of Florida, First District.
    March 12, 2014.
    Rehearing Denied April 9, 2014.

      Susan Hardman, pro se, Appellant.
    William S. Graessle, of William S. Graes-sle, P.A., Jacksonville, for Appellee.
   PER CURIAM.

This cause came before the trial court on the former husband’s Corrected Second Motion for Contempt Regarding Visitation, alleging the former wife was frustrating his attempts to visit the parties’ disabled adult son, Alexander Koslowski, contrary to the provisions of an order entered by the trial court on July 9, 2010. Alexander presently lives in the State of Washington with the former wife and his stepfather, who were appointed Alexander’s co-guardians in November 2009 by order of the Superior Court of the State of Washington in and for King County. The former husband resides in Jacksonville, Florida. Viewing the former husband’s motion as one for enforcement, the trial court ordered that the former husband could exercise visitation with Alexander in Jacksonville for one month, and directed former wife (a registered nurse) to accompany Alexander or, at her option, pay an airline representative or a nurse to do so. The former wife challenges the order primarily on the basis that the trial court lacks subject matter jurisdiction to address visitation because Alexander is no longer a minor. While the former wife also raises other points on appeal, we need not reach them. Instead, we hold the circuit court, Fourth Judicial Circuit in and for Duval County, Florida, lost subject matter jurisdiction under chapter 61, Florida Statutes (2004), for purposes of custody and visitation, once Alexander reached the age of majority, notwithstanding his disability.

Our decision to reach this point, despite past trial court orders assuming jurisdiction and appellate opinions silent on the matter, is mandated by principles so rudimentary to our system of jurisprudence as to be beyond debate. First, “[s]ubject matter jurisdiction — the ‘power of the trial court to deal with a class of cases to which a particular case belongs’— is conferred upon a court by constitution or by statute.” Strommen v. Strommen, 927 So.2d 176, 179 (Fla. 2d DCA 2006) (quoting Cunningham v. Standard Guar. Ins. Co., 630 So.2d 179, 181 (Fla.1994)). It “cannot be created by waiver, acquiescence, or agreement of the parties, or by error or inadvertence of the parties or their counsel, or by the exercise of power by the court; it is a power that arises solely by virtue of law.” Hoechst Celanese Corp. v. Fry, 693 So.2d 1003, 1006-07 (Fla. 3d DCA 1997) (quoting 84 Lumber Co. v. Cooper, 656 So.2d 1297, 1298 (Fla. 2d DCA 1994)); Strommen, 927 So.2d at 179. Second, a lack of subject matter jurisdiction renders a judgment void, “and a void judgment can be attacked at any time, even collaterally.” Strommen, id. Accord, Edwards v. State, 128 So.3d 134, 136 (Fla. 1st DCA 2013); Holub v. Holub, 54 So.3d 585, 587 (Fla. 1st DCA 2011); Colucci v. Greenfield, 547 So.2d 224, 225 n. 1 (Fla. 3d DCA 1989). Third, an appellate court has an independent duty to recognize a jurisdictional defect even if not raised by either party. See 84 Lumber, 656 So.2d at 1299 (citing City of Gainesville v. Republic Inv. Corp., 480 So.2d 1344 (Fla. 1st DCA 1985)). Finally, “[a] judicial or quasi-judicial decision will not be given res judicata effect where rendered by a tribunal lacking subject matter jurisdiction.” Fla. Export Tobacco Co. v. Dep’t of Revenue, 510 So.2d 936, 943 (Fla. 1st DCA 1987) (citing Fla. Nat’l Bank v. Kassewitz, 156 Fla. 761, 25 So.2d 271 (1946)); see also 84 Lumber, 656 So.2d at 1299 (holding a trial court’s order rendered without jurisdiction “is not entitled to the preclusive effect of res judi-cata,” citing Kassewitz).

In the present case, the trial court had the power to order visitation with Alexander only while he was a minor. See § 61.13(2), Fla. Stat. (2004). The trial court could not exercise that jurisdiction once Alexander reached majority. See Poliak v. Poliak, 235 So.2d 512, 514 (Fla. 2d DCA 1970) (holding the law of Florida “is well settled” that a circuit court retains continuing exclusive jurisdiction to modify its custody orders, including visitation privileges, until such time as the minor children reach their majority). The trial court does, however, have continuing jurisdiction under sections 61.13(1) and 743.07(2), Florida Statutes (2012), to order support for Alexander, despite his having reached adulthood, because of his mental and physical incapacity. No similar exception exists, though, continuing the trial court’s jurisdiction to enter orders concerning visitation. Indeed, even for the general purposes of the Uniform Child Custody Jurisdiction and Enforcement Act, the term “child” is defined as meaning “an individual who has not attained 18 years of age.” See § 61.503(2), Fla. Stat. (2004). Furthermore, we consider it worthy to emphasize that under the guardianship order entered by the State of Washington, Alexander was found not to be incompetent in the area of making decisions regarding his social relationships, including (as added and initialed by both parties), “supervised visitation with [his] father.”

In conclusion, because the trial court lacked subject matter jurisdiction to enforce the July 9, 2010, order, the order on appeal is void and, for that reason, is hereby quashed.

BENTON, SWANSON, and OSTERHAUS, JJ., concur.

      . The order, entered on various motions and addressing contact between two of the parties’ sons and the former husband, was affirmed on direct appeal. See Koslowski v. Koslowski, 78 So.3d 642 (Fla. 1st DCA 2011). A subsequent order holding the former wife in contempt of the July 9, 2010, order was reversed by this Court in Hardman v. Koslowski, 107 So.3d 1246 (Fla. 1st DCA 2013). The history of the parties’ post-2004 dissolution litigation is expanded on in these decisions.

      . Alexander suffers from an acute epileptic condition that renders his condition unstable and requires a nurse’s "critical thinking and assessment skills[.]” Koslowski, 78 So.3d at 643.

      .The doctrine of law of the case is a doctrine of judicial estoppel "limited to questions of law actually presented and considered on a former appeal.” Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105-06 (Fla.2001). The former husband argued in his answer brief that subject matter jurisdiction was actually raised and necessarily, though implicitly, resolved by this Court in Hardman, supra note 1. We disagree. In Hardman, we reversed the trial court’s order holding the former wife in contempt for failing to abide by the terms of the July 9, 2010, order, ruling the provisions of that order concerning contact between the former husband and his sons were "aspirational goals” only, relying on the well-settled rule that " ‘[o]ne may not be held in contempt for violating something that an order does not say.' ” 107 So.3d at 1248 (quoting Keitel v. Keitel, 716 So.2d 842, 844 (Fla. 4th DCA 1998)). Reversal in Hardman was not, on its face, predicated on a lack of subject matter jurisdiction, and reflects no consideration of the issue.

      . Section 61.13(l)(a)l.a., provides that "the court may at any time order either or both parents who owe a duty of support to a child to pay support to the other parent,” and this duty ceases after the "child’s eighteenth birthday unless the court finds or previously found that s. 743.07(2) applies, or is otherwise agreed to by the parties.” In turn, section 743.07(2) empowers the court to require support "for a dependent person beyond the age of 18 years when such dependency is because of a mental or physical incapacity .... ”


text:
    Mahmoud NASSIROU, Former Husband, Appellant, v. Nellie Borba NASSIROU, Former Wife, Appellee.
    No. 1D13-4506.
    District Court of Appeal of Florida, First District.
    March 12, 2014.
    Rehearing Denied April 7, 2014.
    See also 117 So.3d 451.
    Mahmoud Nassirou, pro se, Appellant.
    William S. Graessle, Jacksonville; F. Su-sannah Collins, Jacksonville, for Appellee.
   PER CURIAM.

This is Former Husband’s second appeal arising out of the final judgment of dissolution dissolving the parties’ marriage and adjudicating various attendant issues related to the dissolution. In this appeal, Former Husband appeals three orders entered by the trial court. First, he challenges that portion of the final judgment of dissolution of marriage naming Former Wife “the Majority 100% Time-Sharing parent” of the parties’ two minor children. He also challenges two post-dissolution orders, one relieving a psychologist of his responsibility as a parenting coordinator, and another addressing the distribution of Former Husband’s 401(k) plan assets, school tuition arrearages, and child support arrearages. We affirm as to the time-sharing portion of the final decree, because Former Husband waived this issue when he failed to raise it in his first direct appeal of the dissolution judgment. We affirm the second order without further comment. As explained below, however, we reverse and remand as to the court’s order concerning asset distribution and arrearages.

The judgment of dissolution ordered Former Husband to pay child support in the amount of $1,690 per month, or if paid weekly, $390 per week. These payments were effective May 1, 2012. The court also adjudicated child support arrearages in the amount of $4,981.06, to be paid at the rate of $50 per month. Finally, as noted in this court’s previous opinion, the court ordered Former Husband to pay $595 per month toward the parties’ oldest child’s private school tuition. The judgment instructed that all three of these obligations were subject to an income deduction order.

In the first appeal, this court reversed that portion of the dissolution judgment awarding 100% of the assets in Former Husband’s 401 (k) plan to Former Wife, because the trial court improperly considered marital misconduct as one of the bases for the inequitable distribution of those assets. 117 So.3d at 452-53. The other ground for this distribution was Former Husband’s failure to contribute his share of the private school tuition. Id. This court remanded the matter for the trial court to determine the value of the plan’s assets and also to determine “how much of that account must be distributed to satisfy the tuition arrearage” owed by Former Husband. Id. at 453. We also held that any “amount above the tuition arrearage should be equitably distributed.” Id.

Upon Former Wife’s motion, the court conducted a hearing to address these matters, as well as to determine the amount of child support arrearage owed by Former Husband and his share of a medical bill incurred for treatment of one of the children. In its order, the trial court found that Former Husband owed $13,587.28 in unpaid tuition, with this amount to be deducted from Former Husband’s share of the 401 (k) assets. The court also found that Former Husband was responsible for $14,867.56 in child support arrearages. Only the child support arrearage amount is at issue.

In making its finding as to the amount of the child support arrearage still owed by Former Husband, the court relied on a domestic relations depository record generated by the clerk of the court and an attached cover letter. These documents were generated based on a request to conduct an audit to determine Former Husband’s payments and amounts due on all three obligations. The clerk conducted three such audits for the period of May 1, 2012, through June 18, 2013. According to the cover letter, the first audit “has the child support, arrearage, and school tuition going through the depository,” and reflected a balance due of $14,696.02. The second audit “has only the child support and arrearage going through the depository,” and reflected a balance due of $6,457.42. The third audit “has only child support going through the depository,” and reflected a balance due of $1,476.36.

Based on Former Wife’s testimony and argument, and over Former Husband’s objection, the court determined that the first audit reflected the correct child support arrearage, despite the fact that this figure included not only the pre- and post-judgment arrearages, but also tuition arrearag-es. This finding also overlooked the fact that there was a breakdown of the “Final Payoff Balances” by type of payment at the end of the audit report. This, in turn, reflected three separate balances, one for child support, one for child support arrears, and one for tuition, the total of which was $14,696.02. Significantly, however, of that total, only $3,560.26 is for child support and $4,819.50 is for arrears, for a total of $8,379.76. Equally significant is the fact that the payoff balance for these two items in the other two audit reports is the same as in the first, and in the third, the amount of arrears is actually negative $161.56.

Based on the foregoing, the record does not support the trial court’s finding that Former Husband’s child support arrearage obligation was $14,867.56. Consequently, we REVERSE the trial court’s order on this issue and REMAND for a recalculation of child support arrearages.

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

THOMAS, RAY, and SWANSON, JJ., concur.

      . See Nassirou v. Nassirou, 117 So.3d 451 (Fla. 1st DCA 2013).

      . The trial court found that the distributable amount of the 401 (k) plan was $52,469.75. In the trial court’s order, and contrary to this court's instructions, the trial court first determined that each party was entitled to one-half of this amount, or $26,234.88. The trial court then used this amount as the benchmark and deducted from Former Husband’s half of the 401(k) assets his portion of the medical bill and his child support and tuition arrearages. Although Former Husband did not object to this below and, thus, it is not an issue on appeal, our decision today will necessitate revisiting the 401(k) distribution issue, at which time the trial court can correct this oversight.

      . Although Former Husband argues the tuition arrearage is only $11,522.67, it is clear from the hearing transcript that he agreed the higher amount was the correct figure; thus, this argument was waived.

      . The higher amount determined by the court was based on the time elapsed between June 18, 2013, and the hearing on September 18, 2013.


text:
    Korey COLE (“Mr.Cole”), Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4796.
    District Court of Appeal of Florida, First District.
    March 13, 2014.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BENTON, PADOVANO, and ROBERTS, JJ., concur.


author: COHEN, J. TORPY, C.J., LAWSON, J.,

text:
    Albert HAMPTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2115.
    District Court of Appeal of Florida, Fifth District.
    March 14, 2014.
    Rehearing Denied April 8, 2014.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EN BANC

COHEN, J.

Albert Hampton appeals from the judgment and sentence entered after a jury found him guilty of conspiracy to traffic in cocaine. On appeal, he argues that the evidence adduced at trial was insufficient to prove conspiracy to engage in trafficking. For support, Hampton relies on this Court’s opinion in Davis v. State, 95 So.3d 340 (Fla. 5th DCA 2012). We recede from our earlier opinion in Davis and affirm.

While investigating a drug trafficking operation in Sanford, Florida, the City County Investigative Bureau (“CCIB”) of the Seminole County Sheriffs Office learned of a man named Marcel Crichlow, a mid-level supplier who sold cocaine to lower-level dealers. The CCIB secured a wiretap on Crichlow’s phone, recording several conversations that exposed Hampton as one of the lower-level dealers to whom Crichlow sold cocaine. During these conversations, Crichlow discussed their drug transactions using code words.

Based on these conversations, the State charged Hampton with conspiracy to traffic in cocaine. Crichlow testified as a State witness at Hampton’s trial. The State played for the jury the recorded conversations between Crichlow and Hampton. Crichlow testified as to the meaning of the code words used in the recorded conversations and explained that he regularly sold three to five ounce quantities of cocaine to Hampton. After the State rested, Hampton moved for a judgment of acquittal, which the trial court denied. The jury returned a guilty verdict, and this appeal followed. This Court reviews the denial of a motion for judgment of acquittal de novo. Pagan v. State, 830 So.2d 792, 803 (Fla.2002).

Hampton argues the trial court fundamentally erred in denying his motion for judgment of acquittal because he and Cri-chlow did not agree to commit the same act, as Crichlow was the seller and Hampton was the buyer. Hampton relies on this Court’s opinion in Davis v. State, 95 So.3d 340, for support.

In Davis, the State presented evidence that the defendant agreed to sell cocaine to a man named Adams. The defendant argued that the evidence was insufficient to prove a trafficking conspiracy, and we agreed, holding:

Here, the State’s evidence was insufficient to establish conspiracy because it did not show an agreement between the defendant and any person to commit the same act of selling, purchasing, delivering, or possessing cocaine. Instead, the evidence simply established the planning and execution of a buy-sell transaction between the defendant and Adams.

Id. at 342 (emphasis added). For support, we relied on Schlicher v. State, 13 So.3d 515 (Fla. 4th DCA 2009), in which the Fourth District held that the evidence of a buy-sell transaction was insufficient to establish a conspiracy to purchase cocaine. In so holding, the Schlicher court explained:

Logic demands that the agreement that constitutes the conspiracy must be an agreement to commit the same criminal offense. In a buy-sell transaction, that agreement usually does not exist because the buyer and seller each intend to commit a different criminal offense. As a result, there is no criminal conspiracy to pursue a common goal. Such is the case here, where [the buyer] and [the seller] were on opposite sides of the drug transactions. Accordingly, there was no evidence of an express or implied agreement between [the buyer] and [the seller] to commit the common criminal offense of purchase of cocaine.

13 So.3d at 517-18 (emphasis added) (footnote and citation omitted). Analogizing the case to Schlicher, the Davis court concluded:

As in Schlicher, the evidence here failed to demonstrate any agreement or concurrent intent between the defendant and Adams to join in the same act of selling, purchasing, delivering, or possessing a particular item of cocaine. Rather, the evidence demonstrated that the defendant intended to possess and then to sell and deliver the cocaine, and Adams intended to purchase and then possess the cocaine.

95 So.3d at 343 (emphasis added).

Under Davis, we would be bound to reverse Hampton’s conviction because the State “did not show an agreement between the defendant and any person to commit the same act of selling, purchasing, delivering, or possessing cocaine.” Id. at 342. Because the evidence was insufficient to establish conspiracy to traffic in cocaine, the trial court’s denial of Hampton’s motion for judgment of acquittal would have amounted to fundamental error. See F.B. v. State, 852 So.2d 226, 280 (Fla.2003) (stating that “argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime need not be preserved” for appellate review because “such complete failure of the evidence meets the requirements of fundamental error”). In arguing for affirmance, however, the State submits that we should recede from Davis because our decision there was based on an erroneous interpretation of the trafficking conspiracy statute. We agree.

The offense of trafficking in cocaine is committed when “[a]ny person ... knowingly sells, purchases, manufactures, delivers, or brings into this state, or ... is knowingly in actual or constructive possession of, 28 grams or more of cocaine ... but less than 150 kilograms of cocaine.” § 893.185(l)(b)l., Fla. Stat. (2011). A conspiracy to engage in trafficking is committed when “[a]ny person ... agrees, conspires, combines, or confederates with another person to commit any act prohibited by [section 893.135(1) ].” § 893.135(5), Fla. Stat. (emphasis added). The interpretation of the words “any act” governs our conclusion in this case.

We conclude that the Davis court interpreted the “any act” language too narrowly. In our view, the Davis court’s interpretation is contrary to the very nature of conspiracy. Often, members of a conspiracy play different roles, and, in drug trafficking cases, the conspiracy might involve the manufacture, transportation, storage, sale, or purchase of the drugs. Thus, evidence that each conspirator agreed to commit any act that constitutes trafficking — whether it be the sale, purchase, possession; delivery, or manufacture of drugs, or the bringing of drugs into the state — is sufficient to support a conviction for conspiracy to traffic.

Although not critical to our analysis, we note that our view is consistent with legislative intent. It does not appear that the Legislature intended to make it more difficult to establish conspiracy to commit trafficking than it would be to establish conspiracy to commit any other crime under section 777.04(3), which merely requires that the co-conspirators agree to commit the same offense, not the same act. To the contrary, in enacting section 893.135(5), the Legislature intended for trafficking conspirators to be punished just as harshly as actual traffickers. See § 893.135(5), Fla. Stat. (providing that one who conspires to traffic in cocaine “is punishable as if he or she had actually committed [trafficking]”); see also Ellis v. State, 475 So.2d 1021, 1023 (Fla. 2d DCA 1985) (recognizing that “the legislative intent behind section 893.135’s minimum mandatory sentencing requirements for certain drug offenses is to provide severe punishment for those who are engaged in narcotic trafficking in an effort to take strong measures to combat Florida’s drug problems”).

Based on our interpretation of section 893.135(5), we deem it appropriate to recede from Davis because there, both the defendant and the seller agreed to commit the same offense-trafficking. We believe that the Davis court’s reliance on Schlicher was misplaced because Schlicher did not involve an alternative conduct statute. Instead, the defendant in Schlicher was charged with conspiracy to purchase cocaine, rather than conspiracy to traffic in cocaine. The Schlicher court properly held that the conspiracy conviction could not stand because, based upon the charges brought, Schlieher and the seller did not agree to commit the same offense, as Schlieher was agreeing to buy the cocaine, whereas the seller was agreeing to sell it. In contrast, in Davis, the defendant was charged with conspiracy to traffic in cocaine. Trafficking in cocaine is an offense that can be committed in a variety of ways. Thus, the buyer and seller in Davis were, in fact, agreeing to commit the same crime (trafficking), albeit in different ways (one by purchasing, the other by selling).

In sum, because the State presented evidence that Hampton and Crichlow agreed to commit the same offense — trafficking in cocaine — the trial court properly denied Hampton’s motion for judgment of acquittal. Accordingly, we affirm. Because this opinion conflicts with our prior holding in Davis, we recede from Davis en banc.

AFFIRMED; RECEDE FROM DAVIS.

GRIFFIN, SAWAYA, PALMER, ORFINGER, and BERGER, JJ., concur.

TORPY, C.J., concurs with opinion.

LAWSON, J., dissents with opinion in which EVANDER and WALLIS concur.

TORPY, C.J.,

concurring.

I concur in the majority opinion. The conspiracy statute, section 893.135(5), makes it a crime to commit “any act prohibited by subsection 1.” In my view, the prohibited act is “trafficking” in the various types of drugs. This is made clear to me by the title and language of the statute. The title to the statute is, “Trafficking; ... conspiracy to engage in trafficking.” (Emphasis added). Each of the enumerated subsections describes a different way to commit the crime of “trafficking.” The subsection that pertains to cocaine, subsection l(b)l., in particular, defines the crime “known as ‘trafficking in cocaine.’” In enacting section 893.135, the legislature created a new crime and attached to it a new label. Accordingly, when two people agree to engage in a transaction involving a trafficking quantity of the drug, just as the title states, it is appropriate to charge them with conspiracy to engage in trafficking in the drug. A common economic enterprise or objective is not an element of the crime, only an agreement to commit an enumerated offense. I thus conclude that the there is no ambiguity in this statute and concur in the opinion affirming the conviction and agree that we should recede from Davis.

LAWSON, J.,

dissenting.

I agree with my colleagues that this case boils down to an issue of statutory construction. Section 893.135(5), Florida Statutes, provides that the crime of conspiracy to engage in trafficking is committed when “[a]ny person ... agrees, conspires, combines, or confederates with another person to commit any act prohibited by [section 893.135(1), Florida Statutes]” and is punishable “as if he or she had actually committed such prohibited act.” § 893.135(5), Fla. Stat. (2011) (emphasis added). Section 893.135(1) in turn, prohibits the “acts” of selling, purchasing, manufacturing, delivering, bringing into the state or possessing a trafficking amount of delineated controlled substances. Id. By its plain language, then, it is the agreement to commit “any” of these prohibited “acts” that constitutes the crime of conspiracy to traffic. The Davis panel properly read the statute as inapplicable to a buy-sell transaction because the parties did not agree to commit the same “prohibited act.” To the extent that the statute can also be read more broadly, as the majority concludes, we are required to apply the “rule of lenity,” a “deeply-rooted common law principle of statutory construction requiring strict interpretation of ambiguous criminal statutes in favor of the accused.” Macchione v. State, 123 So.3d 114 (Fla. 5th DCA 2013); see also § 775.021(1), Fla. Stat. (2013) (“The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.”). Put another way, “if there is a reasonable construction of a penal statute favorable to the accused, the court must employ that construction.” Wallace v. State, 860 So.2d 494, 497-98 (Fla. 4th DCA 2003).

I would also note that the majority’s reading of the phrases “any act prohibited by subsection (1)” and “such prohibited act” to broadly mean “trafficking” necessarily turns every buy-sell transaction involving a trafficking amount of a controlled substance into a conspiracy. The legislature clearly expressed its intent that a person conspiring to traffic in a controlled substance be punished to the same extent as he or she would have been punished for actually committing a trafficking offense. See Espinoza v. State, 1 So.3d 1257 (Fla. 2d DCA 2009) (holding that double jeopardy principles do not prevent convictions and sentences for both trafficking in a controlled substance and conspiracy to traffic in the same substance). It seems equally clear that the legislature did not intend that every buy-sell transaction be punished both as an underlying trafficking offense and as a conspiracy to traffic.

Finally, I note that words in statutes should be interpreted as they are commonly understood and used in the real world. See, e.g., State v. Delgrasso, 653 So.2d 459, 463 (Fla. 2d DCA 1995) (the “language of [a] statute” should be “measured by common understanding and practice”). I have always understood a conspiracy as involving two or more persons agreeing or working in concert to accomplish the same illicit scheme or act. An arms-length buy-sell transaction simply does not fit within that common understanding. A buyer and seller may agree to the terms for a transaction, but they are negotiating against each other — on opposite sides of the transaction — with one agreeing to sell and one agreeing to buy. As such, the majority’s broad interpretation not only violates the rule of lenity, but also seems to run afoul of the basic rule that words in statutes should be interpreted as they are commonly understood.

EVANDER and WALLIS, JJ., concur.

      . Generally, criminal conspiracies are scored one severity level below the completed offense. See Fla. R. Crim. P. 3.702(d)(6).

      . We note that the Second District has similarly concluded that evidence of a buy-sell agreement is sufficient to establish a prima facie case of conspiracy to traffic in cocaine. See State v. Russell, 611 So.2d 1265, 1267 (Fla. 2d DCA 1992) (reversing dismissal of conspiracy to traffic charge, even though "[t]he state’s only evidence consisted of recorded telephone conversations between [the defendant] and one of the other defendants which only indicated buy/sell transactions between those two”).

      . I think prohibited act means the same thing as "any offense" in the general conspiracy statute, section 777.04(3).


text:
    Clarence Leonte FRAZIER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-253.
    District Court of Appeal of Florida, Fifth District.
    March 14, 2014.
    Rehearing Denied April 11, 2014.

      James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Clarence L. Frazier, Bushnell, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Appellant’s judgment and sentence for burglary of a dwelling, but reverse the judgment for grand theft because the evidence was insufficient to establish the value of the items at the time of the theft. Smith v. State, 955 So.2d 1227 (Fla. 5th DCA 2007). We, therefore, remand for entry of a judgment for petit theft pursuant to section 812.014(3)(a), Florida Statutes (2011).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

TORPY, C.J., PALMER and ORFINGER, JJ., concur.


author: CASANUEVA, Judge.

text:
    Kevin M. OWENS, Petitioner, v. Mike FORTE, Village Investments, Inc., and Cypress Park Garden Homes Condominium Association, Respondents.
    No. 2D14-437.
    District Court of Appeal of Florida, Second District.
    March 14, 2014.
    Kevin M. Owens, pro se.
    No appearance for Respondents.
   CASANUEVA, Judge.

Kevin M. Owens files this petition for writ of certiorari, seeking to quash the circuit court’s order that precludes him from filing any further pleadings, motions, documents, or papers with the Hillsbor-ough County Clerk of the Circuit Court unless they are signed by a member in good standing of the Florida Bar. Upon review of the petition, we conclude that Mr. Owens’ arguments that the circuit court departed from the essential requirements of law in barring him from future pro se filings are without merit. See Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995) (explaining that in order for an appellate court to grant a petition for writ of certiorari, “[a] petitioner must establish (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal”). Accordingly, we deny Mr. Owens’ petition for writ of certiorari.

Although not raised by Mr. Owens, we note that the documents filed with this court suggest that the circuit court failed to provide him with notice or an opportunity to respond before it entered the order barring him from future pro se filings. See State v. Spencer, 751 So.2d 47, 48-49 (Fla.1999) (requiring that pro se litigants receive notice and opportunity to respond before restricting their access to courts); see also Delgado v. Hearn, 805 So.2d 1017, 1018 (Fla. 2d DCA 2001) (applying Spencer to civil causes of action filed by pro se litigants); Bolton v. SE Prop. Holdings, LLC, 127 So.3d 746, 747 (Fla. 1st DCA 2013) (same). To ensure that Mr. Owens receives his right to due process, we encourage the circuit court to review its prior procedure. If appropriate, it may reconsider the order after providing Mr. Owens notice and an opportunity to respond. See Delgado, 805 So.2d at 1018 (“While it is clear that a litigant’s right to access the courts may be restricted upon a showing of egregious abuse of the judicial process, ... due process requires that courts first provide notice and an opportunity to respond before imposing this extreme sanction.” (internal citations omitted)).

Petition denied.

LaROSE and MORRIS, JJ., Concur.