author: WELLS, Judge.

text:
    The STATE of Florida, Appellant, v. Christine CAREY, Appellee.
    No. 3D15-1003
    District Court of Appeal of Florida, Third District.
    Opinion filed January 11, 2017
    Rehearing Denied March 1, 2017

      Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant Public Defender, for appellee.
    Before WELLS, LAGOA and SALTER, JJ.
   WELLS, Judge.

The State appeals from an order terminating jurisdiction, discharging Appellee and dismissing the pending criminal case against Appellee, on a finding that Appel-lee could not be restored to competency and that further review by the court would be futile. We agree with the State that Florida Rule of Criminal Procedure 3.213(a)(1) precludes dismissal of the criminal case at this time and for that reason reverse in part the order under review.

The underlying facts are relatively undisputed. Appellee is an elderly woman who suffers from advancing dementia which is irreversible. The charges against her stem from an aggravated battery on a pregnant woman.

Over a period of three years, Appellee has been evaluated by a number of experts all of whom agree she will never be restored to competency. The State does not disagree with these determinations and no determination of competency restoration has been ordered by the court. In fact, Appellee was conditionally released in 2013 to her family which continues to care for her and to do everything possible to protect others from her.

Essentially concluding that Appellee’s physical condition, as well as her mental status, makes Appellee no threat to the public and that continued court supervision would be futile and a waste of judicial resources, the court below terminated further court ordered supervision or care and then dismissed the criminal action against her.

While the State does not take issue with the former determination it claims that the court below erred in determining that a lack of restorability to competency supports dismissal of the criminal action. We agree.

Rule 3.213(a)(1) generally provides that charges “shall” be dismissed against an individual charged with a felony who remains incompetent for five years; who does not meet the criteria for commitment; and, who has “no substantial probability” of having competency restored:

(a) Dismissal without Prejudice during Continuing Incompetency.
(1) If at any time after 5 years following a determination that a person is incompetent to stand trial or proceed with a probation or community control violation hearing when charged with a felony, or 1 year when charged with a misdemeanor, the court, after hearing, determines that the defendant remains incompetent to stand trial or proceed with a probation or community control violation hearing, that there is no substantial probability that the defendant will become mentally competent to stand trial or proceed with a probation or community control violation hearing in the foreseeable future, and that the defendant does not meet the criteria for commitment, it shall dismiss the charges against the defendant without prejudice to the state to refile the charges should the defendant be declared competent to proceed in the future.

(Emphasis added).

Section 916.145 of the Florida Statutes similarly provides for dismissal of charges where a defendant has remained continuously incompetent for five uninterrupted years with no return to competency foreseeable:

(1)The charges against a defendant adjudicated incompetent to proceed due to mental illness shall be dismissed without prejudice to the state if the defendant remains incompetent to proceed for 5 continuous, uninterrupted years after such determination, unless the court in its order specifies its reasons for believing that the defendant will become competent to proceed within the foreseeable future and specifies the time within which the defendant is expected to become competent to proceed. The court may dismiss such charges at least 3 years after such determination, unless the charge is:
(n) Aggravated battery[.]

§ 916.145(l)(n), Fla. Stat. (2015).

Both Rule 3.213(a)(1) and section 916.145(l)(n), leave no doubt that the court below, while free to terminate supervised follow up care, was not authorized to dismiss the charges pending against Appellee as fewer than five years had elapsed between the time Appellee was adjudicated incompetent and the dismissal order.

In reaching this conclusion we necessarily reject Appellee’s argument that section 916.17 of the Florida Statutes conferred discretion on the court below to dismiss the charges against Appellee in less than five years. That provision, authorizes conditional release in lieu of involuntary commitment either before an adjudication of guilt or after an acquittal on a finding of not guilty by reason of insanity. Section 916.17 expressly authorizes release in either circumstance when predicated on a court approved treatment plan encompassing, among other things, periodic follow up reports to the court regarding a defendant’s compliance and treatment progress:

(1) Except for an inmate currently serving a prison sentence, the committing court may order a conditional release of any defendant in lieu of an involuntary commitment to a facility pursuant to s. 916.13 or s. 916.15 based upon an approved plan for providing appropriate outpatient care and treatment. Upon a recommendation that outpatient treatment of the defendant is appropriate, a written plan for outpatient treatment, including recommendations from qualified professionals, must be filed with the court
In its order of conditional release, the court shall specify the conditions of release based upon the release plan and shall direct the appropriate agencies or persons to submit periodic reports to the court regarding the defendant’s compliance with the conditions of the release and progress in treatment
(3)If at any time it is determined after a hearing that the defendant who has been conditionally released under subsection (1) no longer requires court-supervised follow up care, the court shall terminate its jurisdiction in the cause and discharge the defendant.

§ 916.17(1), (3), Fla. Stat. (2016) (emphasis added).

While this provision does state that when a trial court has determined that a defendant on conditional release no longer requires follow up care, jurisdiction will be terminated and the defendant discharged, to be consistent with section 916.145, this provision must be read to apply only to the court’s continuing jurisdiction to enforce a conditional release plan and its authority to discharge a defendant from the obligation to further comply with the plan. See Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla. 1992) (“Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.”). Section 916.17 should not be read as invalidating the five year before dismissal requirement of section 916.145.

In sum, while the court below was authorized to “discharge” Appellee from her responsibility to further comply with the obligation to report to the court under her conditional release plan, and to “terminate its jurisdiction” to enforce that plan, it was not authorized to dismiss the charges against Appellee, because five years had not elapsed since she was determined incompetent to proceed. See Mosher v. State, 876 So.2d 1230, 1232 (Fla. 1st DCA 2004) (“The trial court correctly ruled that Fla. R.Crim. P. 3.213 and section 916.145, by their plain language, relate to the dismissal of charges at. any time after five years have elapsed from the time the person is determined incompetent to proceed. Because the five-year period of time has not yet passed, we find no error in the trial court’s ruling that the charges against Mosher should not yet be dismissed pursuant to Fla. R. Crim. P. 3.213 and section 916.145.”); see also State v. Benninghoff, 188 So.3d 64, 67 (Fla. 4th DCA 2016) (“Cases reviewing the dismissal of charges, pursuant to section 916.145, Florida Statutes, and rule 3.213 of the Florida Rules of Criminal Procedure have uniformly and consistently enforced the five-year requirement before dismissal. See Bryant v. State, 99 So.3d 612, 613 (Fla. 5th DCA 2012) (affirming denial of motion to dismiss because five years had not elapsed); Tiburcio v. State, 95 So.3d 1037 (Fla. 5th DCA 2012) (reversing dismissal of charges because five years had not elapsed). Mosher v. State, 876 So.2d 1230, 1232 (Fla. 1st DCA 2004) (affirming denial of motion to dismiss prior to expiration of five years). Here, less than four years elapsed before the trial court dismissed the charge against the defendant. Based on a plain reading of rule 3.213, section 916.145, and case law, the trial court erred in dismissing the charge.”); accord McCray v. State, 200 So.3d 1296, 1297 (Fla. 2d DCA 2016) (“To the extent the petition seeks relief from that portion of the trial court’s order denying dismissal of the information, it is denied based on a failure to show a departure from the essential requirements of law because fewer than five years have elapsed since the original determination that Mr. McCray was incompetent to proceed due to mental illness.”).

Accordingly, with only two years from Appellee’s March 2013 determination of incompetency to the April 2015 order under review, the trial judge erred in dismissing the criminal charge against Appel-lee. In accordance with the analysis above, that portion of the order on appeal terminating further follow up review by the trial court is affirmed; that portion of the order dismissing the charges against Appellee is reversed and remanded.

Affirmed in part, reversed in part.

      . The State supports the five year requirement in part by pointing to Florida Rule of Criminal Procedure 3.213(a)(2), as an instance where a shorter period before dismissal was provided, wording missing from Rule 3.213(a)(1):
      (2) If the incompetency to stand trial or to proceed is due to intellectual disability or autism, the court shall dismiss the charges within a reasonable time after such determination, not to exceed 2 years for felony charges and 1 year for misdemeanor charges, unless the court specifies in its order the reasons for believing that the defendant will become competent within the foreseeable future ....


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Katherine REITZEL, Appellant, v. The SCHOOL BOARD OF MONROE COUNTY, Florida, Appellee.
    No. 3D15-2545
    District Court of Appeal of Florida, Third District.
    Opinion filed January 11, 2017
    The Powell Law Firm, P.A. and Brett C. Powell, for appellant.
    Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., and Michael T. Burke and Hudson C. Gill (Fort Lauder-dale), for appellee.
    Before SUAREZ, C.J., and LAGOA and SALTER, JJ.
   PER CURIAM.

Katherine Reitzel (“Reitzel”) appeals from the trial court’s order granting summary judgment in favor of appellee, the School Board of Monroe County, Florida (“School Board”). Because genuine issues of material fact exist, we reverse and remand.

Summary judgement is improper unless the record demonstrates that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Here, genuine material issues of fact remain as to whether Reitzel voluntarily decided to retire and whether the School Board had good cause for Reit-zel’s termination. Accordingly, we reverse the trial court’s entry of summary judgment in favor of the School Board and remand for further proceedings consistent with this opinion.

Reversed and remanded.


author: LEWIS, J.

text:
    FLORIDA CARRY, INC. and the Second Amendment Foundation, Inc., Appellants/Cross-Appellees, v. CITY OF TALLAHASSEE, Florida, a Political Subdivision of the State of Florida; John Marks, Mayor of the City of Tallahassee; Nancy Miller, City Commissioner of The City of Tallahassee; Andrew Gillum, City Commissioner of the City of Tallahassee; and Gil Ziffer, City Commissioner of the City of Tallahassee, Appellees/Cross-Appellants.
    CASE NO. 1D15-5520
    District Court of Appeal of Florida, First District.
    Opinion filed February 3, 2017
    Rehearing Denied March 20, 2017

      Eric J. Friday of Fletcher & Phillips, Jacksonville; Lesley McKinney of Law Office of David M. Goldman, Jacksonville, for Appellants/Cross-Appellees.
    Jason Gonzalez of Shutts & Bowen LLP, Tallahassee; Robert Dowlut, Bethseda, MD,'for Amicus Curiae National Rifle Association, in support of Appellants/Cross-Appellees.
    Louis C. Norvell, Assistant City Attorney, Tallahassee; Marc J. Fagel and Lauren G. Escher of Gibson, Dunn & Crutcher LLP, San Francisco, CA, for Appel-lees/Cross-Appellants.
    Pamela Jo Bondi, Attorney General, Blaine H. Winship, Special Counsel, Tallahassee, for Intervenor,
    Edward G. Guedes, Jamie A. Cole, and Adam Schwartzbaum of Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, for Amicus Curiae City of'Weston, Florida, and City of Miramar, Florida, in support of Appellees/Cross-Appellants.
    Brook Dooley and David J. Rosen of Keker & Van Nest LLP, San Franciso, CA; Ruth E. Vafek of Ausley & McMul-len, P.A., Tallahassee for Amici Curiae The Law Center to Prevent Gun Violence, The League of Women Voters of Florida, States United to Prevent Gun Violence, concerned local elected officials, and concerned state elected officials, in support of Appellees/Cross-Appellants.
    Harry Morrison, Jr., Tallahassee; Susan H. Churuti of Bryant Miller Olive P.A., Tampa; and Elizabeth W. Neiberger of Bryant Miller Olive P.A., Miami, for Ami-cus Curiae The Florida League of Cities, in support of Appellees/Cross-Appellants.
   LEWIS, J.

Appellants, Florida Carry, Inc. and The Second Amendment Foundation, Inc., appeal a Final Summary Judgment entered by the trial court in favor of Appellees, the City of Tallahassee (“City”), John Marks, Nancy Miller, Andrew Gillum, and Gil Zif-fer. Appellants argue on appeal that the trial court erroneously determined that section 790.33(S)(f), Florida Statutes (2013), is a standing provision rather than a provision prohibiting certain conduct and that the City’s re-publication of two firearms ordinances that have been declared null and void by the Legislature’s preemption of the field of firearms regulation constitutes “promulgation” as that term is used in section 790.33(3)(f) and is prohibited by law. For the reasons that follow, we reject Appellants’ arguments and, therefore, affirm as to the issue raised on appeal. On cross-appeal, Cross-Appellants/Appellees assert that the trial court erred in dismissing their counterclaim wherein they asserted that section 790.33’s “penalty provisions” violate The rights of absolute legislative immunity and free speech. Concluding that the trial court correctly determined that 'dismissal of the counterclaim was appropriate, we affirm as to the issue raised on cross-appeal as well.

FACTUAL HISTORY

In 1987, the State preempted the field of firearms regulation by enacting section 790,33, Florida Statutes, which provided in part that the State is “occupying the whole field of regulation of firearms and ammunition ... to the exclusion of all existing and future county, city, town, or municipal ordinances or any administrative regulations or rules adopted by local or state government relating thereto. Any such existing ordinances, rules, or regulations are hereby declared null and void.” At that time, the City had two ordinances that conflicted with the newly enacted provisions of section 790.33. One of the ordinances dated back to 1957, and the other dated back to 1984. The 1957 provision.is now referred to as section 12-61(a) of the Tallahassee Code and provides, “No person shall discharge any firearms except in areas five acres or larger zoned for agricultural uses.” This provision was in effect in the 1957 version of the Tallahassee Code and was restated in the 2003 re-codification in its current form. The 1984 provision, which was amended in 1988, is now referred to as section 13—34(b)(5) of the Tallahassee Code and makes it unlawful for any person to discharge a firearm in a park or recreational facility owned, managed, maintained, or controlled by the City. This provision was also restated in the 2003 re-codification in its current form. Other than the restatement in the 2003 re-codification, neither section 12-61 nor section 13-34(b) has been revised or amended since 1957 and 1988, respectively. The parties stipulated that no instance of enforcement of either ordinance has been identified in the past ten years. In 2011, the Legislature amended section 790.33, creating what the parties term as “penalty provisions” against local officials involved in the enactment or enforcement of firearms regulations, including a civil fine, loss of public funds in defense of a claim, and removal from office. By memorandum dated June 30, 2011, the Tallahassee Police Chief advised all officers and all personnel within the Tallahassee Police Department that the Florida Legislature had preempted the firearms provisions of sections 12-61 and 13-34 and that the ordinances were unenforceable.

In May 2014, Appellants filed a Complaint for Declaratory Judgment and In-junctive Relief against Appellees. In Count I, Appellants sought a declaration on the validity and enforceability of the two ordinances at issue in light of section 790.33 and an order requiring the City to repeal the ordinances. In Count II, Appellants petitioned for injunctive relief pursuant to section 790.33(3)(b), requesting that the court enjoin Appellees from enforcing and promulgating the ordinances and requiring their repeal. Count III was a claim for declaratory relief and a petition for injunc-tive relief pursuant to section 790.33(3)(f). Therein, Appellants alleged that at a February City Commission meeting, the individual Appellees participated in advisory discussions with the City Attorney, public comment, debate, and a vote to determine the status of the two ordinances at issue in light of the prohibitions of section 790.33. According to Appellants, the individual Ap-pellees voted to indefinitely table the discussion of repealing the two ordinances. In Count IV, Appellants sought an injunction prohibiting the continued promulgation and enforcement of the ordinances at issue and a writ of mandamus ordering Appel-lees to repeal/amend the ordinances.

In Defendants’ Answer and Counterclaim for Declaratory Relief, Appellees sought a declaratory judgment declaring certain portions of section 790.33 unconstitutional. Appellees asserted that the penalty provisions provided for in section 790.33 violated legislative immunity and the right of free expression. Thereafter, the parties filed motions for summary judgment as did the Attorney General who intervened in the case in order to address Appellees’ counterclaim.

In the Final Summary Judgment, the trial court set forth in part:

It is undisputed the individual Defendants have done nothing to enact any ordinance or regulation relating to the use of firearms, during the time they have been in office. The big complaint against the individual Defendants is that they refused to vote on the proposed repeal of the two challenged ordinances by “tabling” the matter indefinitely.
This brings us to the issue of, can this Court compel the City Commission to “untable” the proposed repeal of the Ordinances in question and require a vote? There is little authority for a court to mandate a governing body to vote on a legislative matter before it. ...
This Court does not believe it has the authority under the circumstances of this case to mandate the Commission to vote on the requested legislation that was previously considered and “tabled.” “Laying a matter on the table” or “tabling” is a well-known and commonly used rule of procedure utilized to postpone voting on an issue under consideration and it leaves the “tabled” matter in a state of non-action. ...
No doubt, the Commissioners in this case understood the preemption issue and acted defiantly in refusing to repeal the challenged ordinances, but the Court finds that tabling a request to repeal a preempted City Ordinance is not a violation of section 790.83(3)(a) because it is not “... enacting or causing to be enforced any local ordinance or administrative rule or regulation impinging upon such exclusive occupation of the field ....” (e.s.)
Therefore, the Court finds that the individual City Commissioners are not liable, such that a mandatory fine should be imposed pursuant to sec. 790.33(3)(c), F.S. because the individual Commissioners by “tabling” the matter refused to vote to repeal the challenged ordinances. So, if the individual Commissioners can’t be mandated to vote on the proposed repeal of the pre-empted ordinances, can they be mandated to discontinue promulgating/publishing them in the City Code book and online as if they were valid?

After noting that there was no evidence that either ordinance was being enforced, the trial court set forth under the heading “Re-publishing does not equal ‘promulgation’ ” the following:

What does the word “promulgated” mean in the context in which it is used in section 790.33(3)(f), F.S.? The exact statutory usage is as follows:
Section 790.33(3)(f) states as follows:
A person or an organization whose membership is adversely affected by any ordinance, regulation, measure, directive, rule, enactment, order, or policy promulgated or caused to be enforced in violation of this section may file suit against any county, agency, municipality, district, or other entity in any court of this state having jurisdiction over any defendant to the suit for declaratory and injunctive relief and for actual damages, as limited herein, caused by the violation. (e.s.)
The Webster’s New Collegiate Dictionary defines “promulgate” to mean both “to make known or public” and “to put into action or force.” ...
As the law-making process has evolved so too have the definitions of the word “promulgate.” The Florida 5th Judicial Circuit recently held that:
“while ... open to various interpretations, generally the dictionary definitions of the word relate to the passage and initial publication of an ordinance, not the simple presence of the ordinance within a code book.” Florida Carry, Inc, v. City of Leesburg, Florida, 2015 WL 4945748 (2015).
This Court finds the best way to describe the word “promulgate” is as a two-fold process: first, it involves an act of legislation or law making which occurs at a single point in time; and second, it involves the act of publication and re-publication of the enacted provision. A good example of the contextual distinction to be given to the meaning of the word promulgation is found in a memorandum from the General Counsel to the United States Environmental Protection Agency which concludes that the act of promulgation is distinct from, and precedes, the act of publication. ...
The term “publication” is defined as “the offering or distribution of copies of a work to the public.” Black’s Law Dictionary, 579 (3rd pocket ed. 2006). The older definition and understanding of the term promulgate leans more towards publication as being the meaning it should be given. After all, historically, it was the town crier’s job to “promulgate” or make known to the people that a new law was in effect.
Historically the word “promulgate” comes from the Latin word promulgare, which literally means “to milk forward,” which is derived from the Latin verb mulgere, which means “to milk.” The underlying idea and meaning of the verb promulgare is of “bringing out into the light of day.” ...
Based on the foregoing, the Court finds that the word “promulgated,” as used in section 790.33(3)(f), F.S., does not mean to publish or re-publish, rather based on the context in which it is used “promulgated” is used in its legislative sense as in legislatively adopting or enacting an “... ordinance, regulation, measure, directive, rule, enactment, order, or policy.”
Next, the Court must resolve whether the Defendants are in willful violation of the statute due to their continued publication and republication of two admittedly pre-empted ordinances: the purported “promulgation.” The first question is does paragraph (f) of subsection 790.33(3), F.S. even prohibit the purported “promulgation” that Plaintiffs allege? Plaintiffs have seized upon the reference to “promulgated” in section 790.33(3)(f), which confers standing on a party. Section 790.33(3)(f) states as follows:
A person or an organization whose membership is adversely affected by any ordinance, regulation, measure, directive, rule, enactment, order, or policy promulgated or caused to be enforced in violation of this section may file suit against any county, agency, municipality, district, or other entity in any court of this state having jurisdiction over any defendant to the suit for declaratory and injunctive relief and for actual damages, as limited herein, caused by the violation (e.s.)
The text is clear that section 790.33(3)(f) does not by itself prohibit any specific act; it only confers standing on person(s) or organization(s) adversely affected by violations of section 790.33(3)(a). Therefore, section 790.33(3)(f) cannot serve as the basis for any purported violation.
In contrast, paragraph (a) of section 790.33(3) clearly lays out the prohibited activity:
[“] Any person, county, agency, municipality, district, or other entity that violates the Legislature’s occupation of the whole field of regulation of firearms and ammunition, as declared in subsection (1), by enacting or causing to be enforced any local ordinance or administrative rule or regulation impinging upon such exclusive occupation of the field shall be liable as set forth herein.” (e.s.)
“Where the legislature includes wording in one section of a statute and not in another, it is presumed to have been intentionally excluded. ... Even when the court determines the legislature intended something not expressed in the wording, the judiciary lacks the authority under organic law to depart from the plain meaning of an unambiguous statute.” ... Accordingly, the Court finds that section 790.33(3)(a)—the prohibition section—only addresses “... enacting or causing to be enforced any local ordinance or administrative rule or regulation .... ” and that even if the word “promulgated” as that term is used in 790.33(3)(f) was only given the meaning of publication it still would not fall within the ambit of the prohibitions set forth in section 790.33(3)(a).
Lastly, the Court has considered whether the city’s re-codification of the challenged provisions in 2003 was a new enactment of the old challenged ordinances. Both provisions of the challenged City Code, the one enacted before and the one after the enactment of Sec. 790.33, F.S. (1987), have continued to be re-published in the City Code each year thereafter through 2015. The City re-codified its Code in 2003 and Sec. 1-10 of the City’s 2003 re-codification specifically provided:
The provisions of this Code, insofar, as they are substantially the same as legislation previously adopted by the city relating to the same subject matter, shall be construed as restatements and continuations thereof and not as new enactments. (e.s.)
Therefore the Court finds that the re-codification by the City in 2003 was not a new enactment or new adoption of the two challenged ordinances because the re-codification of the two ordinances in 2003 was not a new “enactment” as prohibited by section 790.33(3)(a), F.S. This Court finds that all the City is guilty of is offering or distributing, either electronically or in paper, copies of the City Code book of enacted ordinances which unfortunately contain the two challenged outdated provisions which purport to regulate firearms within the City. However, there has been no enactment of a new law by the City or the Commissioners such that it or they would be in violation of the statute.
Contrary to Plaintiffs’ assertions, the Court, for reasons stated finds no violation of 790.33(3)(a)—the prohibition section—because the City has continued to allowed [sic] the two challenged city ordinances in question to be published and re-published both in written and electronic form in spite of their pre-emption by state statute. While cleaning up the City Code so that old city ordinances which are no longer legal, relevant, or enforced are removed may be good public policy, it remains the City’s prerogative—not the Plaintiffs, nor this Court’s.

With respect to Appellees’ counterclaim, the trial court found that the “individual Defendants” were not and could not be subject to the penalty provisions of section 790.33(3) because the Commissioners refused to vote on the request to repeal the two ordinances and tabled the requested repeal by Appellants, the challenged ordinances were republished during the time the named Commissioners were in office, and the individual Commissioners were not on the City Commission at the time the two challenged ordinances were initially enacted. The court set forth in part, “Therefore, because the Court finds they are not subject to the penalty provisions, the individual Defendants have no case in controversy upon which the Court needs to address.” The trial court ordered and adjudged that the ordinances are “void and unenforceable.” It denied Appellants’ motion for summary judgment as well as the motion for summary judgment filed by the Attorney General, it granted Appellees’ summary judgment motion, and it dismissed Appellees’ counterclaim. This appeal and cross-appeal followed.

APPEAL

Summary judgment is proper when there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). Summary judgment is reviewed de novo. Id. Statutory construction is a question of law also subject to de novo review. W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So.3d 1, 8 (Fla. 2012). The polestar of statutory construction is legislative intent. Id. at 8-9. To discern legislative intent, a court must look first to the plain and obvious meaning of the statute’s text, which may be discerned from a dictionary. Id at 9. If the language of the statute is clear and unambiguous and conveys a clear and definite meaning, a court must apply the unequivocal meaning and not resort to the rules of statutory construction. Id If, however, an ambiguity exists, a court should look to the rules of statutory construction to help interpret legislative intent, which includes the examination of a statute’s legislative history and the purpose behind its enactment. Id.

Article I, Section 8(a) of the Florida Constitution provides, “The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.” As we have explained, “The phrase ‘by law’ indicates that the regulation of the state right to keep and bear arms is assigned to the legislature and must be enacted by statute.” Fla. Carry, Inc. v. Univ. of N. Fla., 133 So.3d 966, 972 (Fla. 1st DCA 2013). Section 790.33, Florida Statutes (2013), the pertinent provision for purposes of this appeal, is entitled “Field of regulation of firearms and ammunition preempted” and provides:

(1) PREEMPTION.—Except as expressly provided by the State Constitution or general law, the Legislature hereby declares that it is occupying the whole field of regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, storage, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or any administrative regulations or rules adopted by local or state government relating thereto. Any such existing ordinances, rules, or regulations are hereby declared null and void.
(2) POLICY AND INTENT.—
(a) It is the intent of this section to provide uniform firearms laws in the state; to declare all ordinances and regulations null and void which have been enacted by any jurisdictions other than state and federal, which regulate firearms, ammunition, or components thereof; to prohibit the enactment of any future ordinances or regulations relating to firearms, ammunition, or components thereof unless specifically authorized by this section or general law; and to require local jurisdictions to enforce state firearms laws.
(b) It is further the intent of this section to deter and prevent the violation of this section and the violation of rights protected under the constitution and laws of this state related to firearms, ammunition, or components thereof, by the abuse of official authority that occurs when enactments are passed in violation of state law or under color of local or state authority.
(3) PROHIBITIONS; PENALTIES.—
(a) Any person, county, agency, municipality, district, or other entity that violates the Legislature’s occupation of the whole field of regulation of firearms and ammunition, as declared in subsection (1), by enacting or causing to be enforced any local ordinance or administrative rule or regulation impinging upon such exclusive occupation of the field shall be liable as set forth herein.
(b) If any county, city, town, or other local government violates this section, the court shall declare the improper ordinance, regulation, or rule invalid and issue a permanent injunction against the local government prohibiting it from enforcing such ordinance, regulation, or rule. It is no defense that in enacting the ordinance, regulation, or rule the local government was acting in good faith or upon advice of counsel.
(c) If the court determines that a violation was knowing and willful, the court shall assess a civil fine of up to $5,000 against the elected or appointed local government official or officials or administrative agency head under whose jurisdiction the violation occurred.
(d) Except as required by applicable law, public funds may not be used to defend or reimburse the unlawful conduct of any person found to have knowingly and willfully violated this section.
(e) A knowing and willful violation of any provision of this section by a person acting in an official capacity for any entity enacting or causing to be enforced a local ordinance or administrative rule or regulation prohibited under paragraph (a) or otherwise under color of law shall be cause for termination of employment or contract or removal from office by the Governor.
© A person or an organization whose membership is adversely affected by any ordinance, regulation, measure, directive, rule, enactment, order, or policy promulgated or caused to be enforced in violation of this section may file suit against any county, agency, municipality, district, or other entity in any court of this state having jurisdiction over any defendant to the suit for declaratory and injunctive relief and for actual damages, as limited herein, caused by the violation. A court shall award the prevailing plaintiff in any such suit:
1. Reasonable attorney’s fees and costs in accordance with the laws of this state, including a contingency fee multiplier, as authorized by law; and
2. The actual damages incurred, but not more than $100,000.

(Emphasis added).

Appellants first contend that the trial court erred in agreeing with Appellees that subsection (3) of section 790.33 contains distinct prohibition, penalty, remedy, and standing provisions. According to Appellants’ interpretation, subsections (3)(a) through © contain both prohibitions and penalties without any separation or distinction as to whether a particular subdivision is a prohibition or penalty. They then assert that the act of promulgation, as referred to in section 790.33(3)©, is prohibited. We disagree with Appellants’ arguments for the following reasons.

Section 790.33(3)(a) clearly sets forth what is prohibited by law, which is the enactment or enforcement of firearms regulations, whereas section 790.33(3)© addresses standing to sue any county, agency, municipality, district or other entity for declaratory and injunctive relief and damages. Indeed, the Fourth District recently described subsection (3)© as “creatfing] a private cause of action for declaratory and injunctive relief as well as actual damages .... ” Dougan v. Bradshaw, 198 So.3d 878, 881 (Fla. 4th DCA 2016). Appellants contend that the trial court’s interpretation that section 790.33(3)© does not prohibit any activity renders the subsection meaningless and absurd because, under that interpretation, Appellants would have standing “where a local government has promulgated an ordinance, but that the continued promulgation itself is not a violation of the statute.” The problem with this argument, however, is that the Legislature rendered the ordinances at issue null and void. See § 790.33(1), Fla. Stat. (“Any such existing ordinances, rules, or regulations are hereby declared null and void.”). Thus, while the ordinances may still be “on the books,” they are unenforceable and invalid. Because it is undisputed that Appellees did not enforce or enact the ordinances at issue, the only two acts prohibited by section 790.33(3)(a), Appellees were entitled to summary judgment.

As the trial court reasoned, even if section 790.33(3)(f) could be construed as containing prohibited acts, summary judgment in Appellees’ favor would still have been appropriate given that the re-publication of the ordinances and their existence in the City’s Code does not constitute promulgation. In support of their interpretation of “promulgated,” Appellants cite State v. Watso, 788 So.2d 1026, 1027 (Fla. 2d DCA 2001), where the State appealed an order dismissing the charge of providing false information during the attempted purchase of a firearm in violation of section 790.065(12), Florida Statutes (Supp. 1998). The trial court dismissed the charge after finding that the Florida Department of Law Enforcement (“FDLE”) had failed to properly promulgate the form required by section 790.065(l)(a), Florida Statutes; the statute describes the required form as being “promulgated by the Department of Law Enforcement.” Id. The Second District held that FDLE did properly promulgate the form at issue but affirmed on other grounds. Id, In holding such, the Second District noted that rather than creating its own form to satisfy the requirements of section 790.065(l)(a), FDLE chose to adopt a form already created by a federal agency. Id. The Second District rejected the appellee’s argument that the term “promulgate” meant “create.” Id. at 1027-28. The court reasoned that FDLE “simply had to ‘declare or announce publicly’ what form was to be used to carry out the statutory requirements.” Id. at 1028.

Although Watso addressed the term “promulgated” as used in another provision of chapter 790, which addresses weapons and firearms, the statutory provision at issue there addressed the promulgation of forms. It did not address rules, ordinances, and regulations as does section 790.33. Black’s Law Dictionary defines “promulgate” as follows:

1. To declare or announce publicly; to proclaim. 2. To put (a law or decree) into force or effect. 3. (Of an administrative agency) to carry out the formal process of rulemaking by publishing the proposed regulation, inviting public comments, and approving or rejecting the proposal.

Black’s Law Dictionary (10th ed. 2014). The tidal court in this case cited the Webster’s New Collegiate Dictionary definitions of “promulgate,” which are “to make known or public” and “to put into action or force.” The trial court concluded that the word “promulgated,” as used in section 790.33, did not mean to publish or republish, but “rather based on the context in which it is used ‘promulgated’ is used in its legislative sense as in legislatively adopting or enacting ....”

A review of the different ways “promulgate” has been used throughout the Florida Statutes establishes that the context in which the word is used must be evaluated in determining the Legislature’s intent as to the word’s meaning. For instance, in certain circumstances, the Legislature has used the word “promulgate” in the context of creating or enacting rules and the like. See § 14.021(1), Fla. Stat. (“The Governor of Florida is hereby authorized and empowered to promulgate and enforce such emergency rules and regulations- as are necessary .... ”); § 255.256, Fla. Stat. (“The department shall promulgate rules for energy performance indices as defined in s. 255.253(3) ....”); § 322.63(3)(b)12., Fla, Stat. (“Promulgate rules for the administration and implementation of this section ....”); § 195.073, Fla. Stat. (“The department shall promulgate uniform definitions for all classifications.”); § 255.255(3), Fla. Stat. (“To determine the life-cycle costs ..., the department shall promulgate rules that shall include .... ”); § 404.056(6), Fla. Stat. (“The department shall have the authority to promulgate rules necessary to carry out the provisions of this section, including the definition of terms.”).

In other contexts, the Legislature has differentiated between promulgation and publishing. See § 212.0305(3)(f), Fla. Stat. (“The department shall promulgate such rules and shall prescribe and publish such forms as may be necessary to effectuate the purposes of this section.”); § 14.021(2), Fla. Stat. (‘Whenever the Governor shall promulgate emergency rules and regulations, such rules and regulations shall be published and posted during the emergency in the area affected .... ”); § 316.304(3), Fla. Stat. (“The Department of Highway Safety and Motor Vehicles shall promulgate, by administrative rule, standards and specifications for headset equipment the use of which is permitted under this section. The department shall inspect and review all such devices submitted to it and shall publish a list by name and type of approved equipment.); § 288.1258(4)(e), -Fla. Stat. (“The Department of Revenue may promulgate such rules and shall prescribe and publish such forms as may be necessary to effectuate the purposes of this section ....”); § 336.025(2)(a), Fla. Stat. (“The department has the authority to prescribe and publish all forms upon which reports shall be made to it and other forms and records deemed to be necessary ... and shall promulgate such rules as may be necessary

While the foregoing statutes support Appellees’ argument and the trial court’s interpretation that “promulgate” means something akin to the' creation or enactment of a regulation or ordinance; in section 552.13, Florida Statutes, the Legislature set forth in part, “The division shall make, promulgate, and enforce regulations setting forth minimum general standards ....” See also § 379.2223(1), Fla. Stat. (“The Fish and' Wildlife Conservation Commission is authorized to make, adopt, promulgate, amend, repeal, and enforce all reasonable rules and regulations .... ”); § 379.248(4), Fla. Stat. (“The commission is authorized and empowered to make, promulgate, and put into effect all rules and regulations ... notice of all rules, regulations, and orders ... adopted by the commission shall be published in a newspaper of general circulation ....”). These statutes indicate that the Legislature intended the word “promulgate” in the given circumstances to mean something akin to proclaiming or declaring.

After considering the context in which the term “promulgated” is used in section 790.33(3)(f), we agree with the trial court’s interpretation. While we are aware of the maxim that “legislative use of different terms in different portions of the same statute is evidence that different meanings were intended,” see Rollins v. Pizzarelli, 761 So.2d 294, 299 (Fla. 2000), we are guided by the fact that the Legislature was primarily concerned with the enactment of local regulations and ordinances in the field of firearms regulation. If “promulgated” is construed to mean something different than “enacted” in this context, then those persons or entities who are adversely affected could sue for something that was not expressly prohibited by section 790.33(3)(a).

In support of its interpretation, the trial court cited a Fifth Judicial Circuit Court case where the trial court addressed the statute and a certain provision of the Lees-burg Code of Ordinances, which, according to the court, was repealed in light of section 790.33. See Fla. Carry, Inc. v. City of Leesburg, Fla., No. 2012-CA-001001, 2015 WL 4945748, at *1 (Fla. 5th Cir. Ct. May 13, 2015). The trial court concluded that section 790.33, “although a somewhat lengthy statute,” contained only one brief subsection—subsection (a)—actually prohibiting actions by local governments and listing activities that would subject them to liability under the statute. Id. Because the plaintiff offered no evidence demonstrating that the City of Leesburg enacted the ordinance at issue or caused it to be enforced after the effective date of section 790.33, the trial court found that the City had not violated the statute. Id. After noting that the plaintiff initially demanded the repeal of the ordinance, the trial court set forth, “[Njothing in the statute mandates repeal of any ordinance, in fact the word ‘repeal’ does not even appear in the statute. Rather, the statute [declared existing ordinances, rules, or regulations null and void]. It would be inconsistent, and nonsensical, to require the repeal of an ordinance the Legislature has already declared void.” Id. After noting that the repeal of the ordinance rendered the plaintiffs request to enjoin the defendants moot, the court also set forth, “The request for an injunction is also moot because the Ordinance was already nullified and made void by the express language of s. 790.33.” Id. The trial court further set forth:

8. Plaintiff also claimed the mere presence of the Ordinance in the City of Leesburg’s code book was a violation of § 790.33, relying on subsection 3(f) which states that a person or organization adversely affected by an ordinance “... promulgated or caused to be enforced in violation of this section ...” may file an action seeking relief under the statute. This argument fails on at least three grounds. First, subsection 3(f) is a remedies provision, not one proscribing any particular conduct. Second, while the word “promulgate” is open to various interpretations, generally the dictionary definitions of the word relate to the passage and initial publication of an ordinance, not the simple presence of the ordinance within a code book. For example, Webster’s New World College Dictionary contains this definition: “... to make known the terms of (a new or proposed law or statute); to put (a law) into effect by publishing its terms.” The Ordinance was published, and thereby put into effect, at the time of its adoption, not on a daily basis since its adoption by the mere presence of the Ordinance in the code book. The position taken by Plaintiff, that the Ordinance is “promulgated” each and every day it remains in the City of Leesburg’s code book, is rejected as being materially at variance with the normal and ordinary meaning of the word “promulgate.”

Id. at *1-2. The Fifth District per curiam affirmed the trial court’s decision in an unpublished disposition. See Fla. Carry, Inc. v. City of Leesburg, Fla., 197 So.3d 562, 562 (Fla. 5th DCA 2016).

As did the trial court, we agree with the Fifth Judicial Circuit’s reasoning. While Appellants’ frustration with the City’s inaction and the individual Appellees’ unwillingness to engage in what some might describe as a simple task of repealing void ordinances is understandable, section 790.33, as it currently stands, does not prohibit the re-publication or re-printing of the void ordinances. Instead, the more reasonable interpretation of “promulgated,” as the term is used in section 790.33(3)(f), is that the ordinances at issue were promulgated at the time they were enacted and initially published. The fact that Ap-pellees refused to remove the ordinances from the City’s Code does not constitute prohibited conduct under the statute.

In their second and related issue, Appellants contend that the trial court erred in granting summary judgment in Appellees’ favor because a deprivation of a constitutional right is by definition an injury and an adverse effect. After contending that the trial court was incorrect in finding that the 1957 and 1984 enactments of the preempted ordinances were lawful and not enacted ultra vires, Appellants aver that summary judgment in Appellees’ favor despite their admitted failure to cease promulgation of the ordinances was contrary to both the express terms of and the express policy and intent behind section 790.33. However, the issue of whether or not the ordinances were lawful when they were enacted need not be addressed given that the Legislature rendered the ordinances null and void and the issue moot. For the reasons previously stated, Appellants’ contention that Appellees have engaged in promulgation of the ordinances since 2011 is meritless.

In their third and final issue, Appellants contend that the trial court’s Final Summary Judgment declaring the ordinances null and void should have resulted in at least a partial summary judgment in their favor, thereby making them the prevailing parties for the purpose of awarding attorney’s fees and costs. This contention is also meritless. While the trial court did “order and adjudge” that the two ordinances were void and unenforceable, section 790.33 rendered “existing” ordinances null and void. The primary relief sought by Appellants was a declaration that the continued publication of the ordinances was prohibited and an accompanying injunction enjoining any future publication of such. Because the trial court declined to award such relief, Appellants were not entitled to attorney’s fees and costs.

CROSS-APPEAL

Turning to the cross-appeal, Cross-Appellants/Appellees contend that the trial court erred in dismissing their counterclaim wherein they asserted that the penalty provisions contained within section 790.33(3)(c)-(e) violated the principles of absolute legislative immunity and their right to free speech. In declining to address the counterclaim, the trial court relied upon the long-subscribed principle of judicial restraint requiring courts to avoid considering a constitutional question when a case can be decided on non-constitutional grounds. See Inquiry Concerning a Judge, re Gregory P. Holder, 945 So.2d 1130, 1133 (Fla. 2006). To be entitled to a declaratory judgment, one must demonstrate that “(1) a good-faith dispute exists between the parties; (2) he presently has a justiciable question concerning the existence or non-existence of a right or status, or some fact on which such right or status may depend; (3) he is in doubt regarding his right or status ...; and (4) a bona-fide, actual, present, and practical need for the declaration exists.” Rhea v. Dist. Bd. of Trs. of Santa Fe Coll., 109 So.3d 851, 859 (Fla. 1st DCA 2013). When a trial court dismisses a count in a complaint seeking a declaratory judgment or declines to address the claim, the trial court’s ruling is accorded great deference. Abruzzo v. Haller, 603 So.2d 1338, 1339 (Fla. 1st DCA 1992). As such, the standard of review as to the dismissal of a declaratory judgment claim is whether the trial court abused its discretion. Id.

In determining that there was no case or controversy to address with respect to Cross-Appellants/Appellees’ counterclaim, the trial court relied upon its determination that the individual Cross-Appellants/Appellees were not and could not be subject to the provisions of section 790.33(3) because there “has been no enactment or adoption of a new ordinance relating to the regulation of firearms that they voted to enact or adopt” and because the continued re-publication of ordinances enacted years before the enactment of section 790.33(3) did not constitute promulgation as the term is used in section 790.33(3)(f). We find no abuse of discretion in the trial court’s dismissal of the counterclaim. Had this been a situation where Cross-Appellants/Appellees were penalized through a fine, denied the use of public funds for their legal defense, or removed from office by the Governor, the counterclaim would certainly need to be addressed. However, not only was there no violation of section 790.33(3)(a) that has occurred in this case, but there were also no penalties imposed. As such, no bona-fide, actual, present, and practical need exists for the declaration sought by Cross-Appellants/Appellees.

CONCLUSION

Based upon the foregoing, we conclude that the trial court properly granted summary judgment in Appellees’ favor and did not abuse its discretion in dismissing the counterclaim filed by Cross-Appellants/Appellees. Accordingly, we affirm the Final Summary Judgment.

AFFIRMED.

BILBREY and WINOKUR, JJ., CONCUR.


text:
    Manuel GOVEA, Appellant, v. STARBOARD CRUISE SERVICE, INC./Travelers Insurance Co. Appellees.
    CASE NO. 1D16-2123
    District Court of Appeal of Florida, First District.
    Opinion filed February 7, 2017
    Rehearing Denied March 23, 2017

      Richard A. Sicking and Mark A. Touby of Touby, Chait & Sicking, P.L., Coral Gables, for Appellant.
    Steven H. Preston of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for Appel-lees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals the Judge of Compensation Claims’ (JCC’s) order granting the Employer/Carrier’s (E/C’s) motion for prevailing party costs under subsection 440.34(3), Florida Statutes (2011). Because we find no error in the JCC’s application of the statute under the circumstances here, we affirm the JCC’s order with regard to the substantive and procedural grounds argued in Issue I without additional comment. We also reject the constitutional challenge to subsection 440.34(3) raised in Issue II, because Claimant failed to prove he has standing.

Our review of constitutional claims is de novo. See Medina v. Gulf Coast Linen Servs., 825 So.2d 1018, 1020 (Fla. 1st DCA 2002). Because JCCs do not have the authority to address constitutional issues, the JCC here made no findings on the constitutional challenge. See B & B Steel Erectors v. Burnsed, 591 So.2d 644, 647 (Fla. 1st DCA 1991) (stating “we note that workers’ compensation judges do not have the power to determine the constitutionality of a portion of the Workers’ Compensation Act, and that such issues may be raised for the first time on appeal, without having been preserved below”). Nevertheless, Claimant was not prohibited from creating a supporting record below. See Anderson Columbia v. Brown, 902 So.2d 838, 841 (Fla. 1st DCA 2005) (holding that inability of JCC to rule on constitutional issues does not preclude claimant from building record so that constitutional challenge might be made on appeal).

Here, Claimant argues that the imposition of prevailing party costs on him, as the injured worker, is unconstitutional as a denial to access to courts. To establish standing to make this challenge, Claimant first “must demonstrate ‘an injury which is both real and immediate, not conjectural or hypothetical.’ ” Punsky v. Clay Cty. Bd. of Cty. Comm’rs, 60 So.3d 1088, 1092 (Fla. 1st DCA 2011) (quoting Montgomery v. Dep’t of Health & Rehab. Servs., 468 So.2d 1014, 1016 (Fla. 1st DCA 1985)). In Punsky, the claimant asserted a violation of his right of access to courts because it will be “ ‘a rare injured worker’ who can afford to pay the costs of litigation when his claim fails.” Id. at 1092. But the claimant there provided no evidence in support of the alleged injury. Accordingly, the . Punsky court concluded that the claimant’s constitutional argument failed “because there is no support in the record for his argument that the award of costs is ‘an injury which is both real and immediate, not conjectural or hypothetical.’” Id. (quoting Montgomery, 468 So.2d at 1016).

Similar to the claimant in Punsky, Claimant here argues that the requirement of claimant-paid costs has a potential chilling effect on the pursuit of claims, but offers no support of a real and immediate injury. Although Claimant may well be adversely affected by the amended statute, he does not explain how this distinguishes him from the claimant in Punsky. Because Claimant has failed to establish a real and immediate injury resulting in a denial of access to courts, he lacks the necessary standing to pursue a constitutional challenge on this ground and this issue must fail. We, therefore, AFFIRM the award of claimant-paid costs.

LEWIS, WINOKUR, and JAY, JJ., CONCUR.


text:
    Larry PRIDE, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0034
    District Court of Appeal of Florida, First District.
    Opinion filed February 7, 2017
    Rehearing Denied March 21, 2017
    Larry Pride, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied as untimely. See Fla. R. App. P. 9.141(c)(5)(A).

ROWE, RAY, and M.K. THOMAS, JJ., CONCUR.


text:
    William C. MAWHINNEY and Randall A. Ralicki, Appellants, v. 998 SW 144TH COURT RD, LLC, et al., Appellees.
    Case No. 5D15-2185 & 5D15-2819
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 10, 2017
    Rehearing Denied March 17, 2017
    Kelley A Bosecker, of Law Office of Kelley A. Bosecker, St. Petersburg, for Appellants.
    Michelle L. Klymko, Klymko Law, PA, Ocala, and Thomas Regnier, of Tom Reg-nier Appeals, P.A., Miami Beach, for Ap-pellee, 998 SW 144th Court Rd, LLC.
    No Appearance for other Appellees.
   PER CURIAM.

Randall A. Ralicki and William C. Mawhinney appeal the summary final judgments of foreclosure entered against them in favor of 998 SW 144th Court Rd, LLC. We are compelled to reverse because the trial court rendered the final summary judgments after the filing of a notice of removal to federal court and before the federal court remanded the case back to the trial court. Thus, the trial court lacked jurisdiction to enter the final summary judgments. See Cole v. Wells Fargo Bank Nat’l Ass’n, 201 So.3d 749, 750 (Fla. 5th DCA 2016); Musa v. Wells Fargo Del. Tr. Co., 181 So.3d 1275, 1284 (Fla. 1st DCA 2015) (“We hold the final judgment entered by the court below after removal of the case to federal court (and prior to remand) is void because the circuit court no longer had jurisdiction.”); Preston v. Allstate Ins. Co., 627 So.2d 1322, 1324 (Fla. 3d DCA 1993) (concluding that the filing of a notice of removal divests the state court of jurisdiction until the federal court enters an order of remand); see also Maseda v. Honda Motor Co., 861 F.2d 1248, 1254-55 (11th Cir. 1988) (“[Ajfter removal, the jurisdiction of the state court absolutely ceases and the state court has a duty not to proceed any further in the case. Any subsequent proceedings in state court on the case are void ab initio.” (footnote omitted) (citations omitted)). We reiterate, however, that upon remand, the trial court has the discretion to assess sanctions against Ralicki and Mawhinney if it determines that the case was removed to federal court as a delay tactic. See Musa, 181 So.3d at 1284 (Bilbrey, J., concurring) C‘[U]pon remand, the state court can assess sanctions for fraud on the court. While a variety of sanctions are available to the state court upon remand following an improper removal, ‘[t]he striking of a party’s pleadings “has long been an available and often favored remedy for a party’s misconduct in the litigation process.” ’ ” (citing Empire World Towers, LLC v. CDR Créances, S.A.S., 89 So.3d 1034, 1038 (Fla. 3d DCA 2012))).

REVERSED and REMANDED.

SAWAYA, TORPY and BERGER, JJ., concur.


author: EMAS, J.

text:
    Jose Luis PEREZ, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D14-2530, 3D14-2529, 3D14-2528 & 3D14-2527
    District Court of Appeal of Florida, Third District.
    Opinion filed February 15, 2017.
    Rehearing Denied March 3, 2017

      Quintero Broche and Frank Quintero, Jr., Alejandro Gonzalez Contrera and Juan P. Broche, for appellant.
    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham and Nikole Hiciano, Assistant Attorneys General, for appellee.
    Before SUAREZ, C.J., and EMAS and FERNANDEZ, JJ.
   EMAS, J.

Jose Luis Perez challenges the lower court’s order denying his motion to vacate his plea, judgments and sentences based upon newly-discovered evidence and upon an alleged Brady violation. In his motion, Perez contended that this newly-discovered evidence supported the defense’s position that law enforcement illegally entered and seized evidence from his warehouse two days before obtaining and executing a search warrant of the warehouse. Perez argued that, had he been in possession of this evidence at the time of the motion to suppress, the preparation for, and outcome of, that hearing would have been different. According to Perez, this newly-discovered evidence, and the State’s suppression of this evidence in violation of Brady, constitutes a “manifest injustice” and, therefore, he was entitled to a vacatur of his plea, judgments and sentences. The trial court denied the motion, and this appeal followed.

We do not reach the merits of this claim. Instead, we reverse and remand this cause for the trial court to reconsider the merits of Perez’s claim utilizing the standard recently announced by the Florida Supreme Court in Long v. State, 183 So.3d 342 (Fla. 2016).

In 2014, when the trial court held the evidentiary hearing and rendered its order, the case law held that a defendant seeking to withdraw or vacate a plea after sentencing must demonstrate that withdrawal or vacatur of the plea “is necessary to correct a manifest injustice,” Perez v. State, 118 So.3d 298, 301 (Fla. 3d DCA 2013) (quoting Scott v. State, 629 So.2d 888, 890 (Fla. 4th DCA 1993)), and that the defendant “has the burden of demonstrating a manifest injustice through clear proof of prejudice.” Id. Appropriately, the trial court utilized this then-existing manifest injustice/clear prejudice standard in its consideration of the motion. The trial court found Perez failed to meet this standard, and further concluded that, because “there [had] been no claim of actual innocence in conjunction with the motion to vacate the plea .,. there is no manifest injustice or prejudice” (quoting Oce v. State, 742 So.2d 464, 466 (Fla. 3d DCA 1999)).

However, after the trial court rendered its order in this case, and while this appeal was pending, the Florida Supreme Court announced a different standard to be applied by trial courts considering a motion to vacate a plea based upon newly-discovered evidence, In Long, the court began by acknowledging the established standard for a motion to vacate a plea, judgment and sentence based upon a claim of ineffective assistance of counsel:

We have addressed the vacation of a judgment and sentence on postconviction relief where the defendant has entered a guilty plea within the context of ineffective assistance of counsel. See Grosvenor v. State, 874 So.2d 1176 (Fla. 2004). In Grosvenor, we established a two-prong test for determining claims of ineffective assistance of counsel relating to guilty pleas. The first prong is identical to the deficient performance prongs in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The defendant must specifically identify acts or omissions of counsel that were manifestly outside the wide range of reasonably competent performance under prevailing professional norms. As for the second prong, we held that a defendant must demonstrate “a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial.” Grosvenor, 874 So.2d at 1181. The defendant does not have to show that he actually would have prevailed at trial, but the strength of the government’s case against the defendant should be considered in evaluating whether the trial if defendant really would have gone to he had received adequate advice from his counsel. Id. “Counsel’s effectiveness is determined according to the totality of the circumstances.” Id. (citing Strickland, 466 U.S. at 690,104 S.Ct. 2052).

Long, 183 So.3d at 345-46. (Citations omitted).

Borrowing heavily from this hybrid standard utilized in a motion to vacate plea based on ineffective assistance of counsel, the Court held that a similar standard should apply where the motion to vacate judgment and sentence following a plea is based upon newly-discovered evidence:

We likewise establish a similar two-prong test for determining postconviction claims for newly discovered evidence relating to guilty pleas which adopts the first prong of the Jones test and the second prong from Grosvenor. First, the evidence must not have been known by the trial court, the party, or counsel at the time of the plea, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the defendant must demonstrate a reasonable probability that, but for the newly discovered evidence, the defendant would not have pleaded guilty and would have insisted on going to trial. “[I]n determining whether a reasonable probability exists that the defendant would have insisted on going to trial, a court should consider the totality of the circumstances surrounding the plea, including such factors as whether a particular defense was likely to succeed at trial, the colloquy between the defendant and the trial court at the time of the plea, and the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at a trial.” Grosvenor, 874 So.2d at 1181— 82.

Id. at 346.

Whether Perez has carried his burden of establishing an entitlement to relief under the standard announced in Long involves mixed questions of fact and law. We therefore reverse and remand for the trial court to reconsider the merits of Perez’s claims of newly-discovered evidence under the standard newly-announced in Long. The trial court need not (but may, in its discretion) hold a further evidentiary hearing or take additional evidence before considering this matter on remand.

The trial court should determine, pursuant to Long, whether Perez has established: First, that the newly-discovered evidence was not known by the trial court, the party, or counsel at the time of the plea, and that the defendant or defense counsel could not have known of it by the use of diligence. Second, that there is a reasonable probability that, had he known of this newly-discovered evidence, Perez would not have pleaded guilty and would have insisted on going to trial.

Reversed and remanded with directions.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . Although the trial court properly relied upon the then-existing standard, the Florida Supreme Court’s announcement of a new rule of law in Long occurred during the pendency of this appeal, Perez’s case was thus in the pipeline at the time Long became final, and that controlling precedent applies to our consideration of this appeal. See, e.g., Pierre v. State, 973 So.2d 547 (Fla. 5th DCA 2008); Barthel v. State, 882 So.2d 1054 (Fla. 2d DCA 2004). See also Castano v. State, 119 So.3d 1208, 1209-11 (Fla. 2012) (Pariente, J., concurring). This is especially true where the new rule of law announced in Long (i.e., the appropriate standard to be used when deciding the merits of a motion to vacate a plea and sentence based upon newly-discovered evidence) will apply almost exclusively to post-conviction claims.

      . The Florida Supreme Court uses the "but for” language in similar fashion to the standard applied to ineffective assistance of counsel claims. It is clear from the context, however, that this language requires Perez to establish that, had he known of this newly-discovered evidence prior to the plea, there is a reasonable probability that he would not have pleaded guilty and would have insisted on going to trial.

      . We note that Perez also asserted that the State committed a Brady violation. However, in this case the alleged Brady violation involves the identical documents comprising the newly-discovered evidence claim, and the "reasonable probability” standard adopted in Long for analyzing prejudice in a newly-discovered evidence claim is the very same standard used to analyze prejudice from an alleged Brady violation. See White v. State, 664 So.2d 242, 244 (Fla. 19.95) (holding that the prejudice/materiality prong of Brady requires a defendant to demonstrate that "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different”) (quoting United States v. Bagiev, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). In light of this, and for ease of discussion, we have addressed the issue only in the context of newly-discovered evidence.

      . Although we do not reach the merits, we observe that, from the order on review, the record on appeal and the parties’ briefs, it would appear to be undisputed that Perez satisfied this first prong.


text:
    Jorge Martin MAZZI, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2253
    District Court of Appeal of Florida, Third District.
    Opinion filed February 15, 2017
    Jorge Martin Mazzi, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, C.J., and LAGOA and SCALES, JJ,
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.801. On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R. App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for attachment of records conclusively showing that the appellant is not entitled to any relief or an evidentiary hearing. Langdon v. State, 947 So.2d 460 (Fla. 3d DCA 2007). If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Eniel PLANAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2487
    District Court of Appeal of Florida, Third District.
    Opinion filed February 15, 2017
    Rehearing Denied March 3, 2017
    Eniel Planas, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, C.J., and EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Durm v. State, 139 So.3d 370 (Fla. 3d DCA 2014); White v. State, 644 So.2d 174 (Fla. 3d DCA 1994); Coughlin v. State, 932 So.2d 1224 (Fla. 2d DCA 2006).


author: WALLIS, J.,

text:
    WILMINGTON SAVINGS FUND SOCIETY, FSB, not in its individual Capacity but solely as trustee for the Primestar-H Fund I Trust, Appellant, v. Rosena LOUISSAINT, Appellee.
    Case No. 5D15-3830
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 17, 2017
    Rehearing and Rehearing En Banc Denied March 31, 2017

      Ezra Scrivanich, of Scrivanich/Hayes, Plantation, for Appellant.
    Andres H. Lopez, of The Andres Lopez Law Firm, P.A., Coral Springs, for Appel-lee.
   WALLIS, J.,

Appellant, Wilmington Savings Fund Society, FSB, not in its individual capacity but solely as trustee for the Primestar-H Fund I Trust (“Bank”), appeals the trial court’s final judgment dismissing its foreclosure action against appellee, Rosena Louissaint. Because the trial court erred by finding that Bank lacked standing to foreclose, we reverse and remand for entry of final judgment of foreclosure.

In April 2007, Louissaint executed and delivered a mortgage and note in favor of SunTrust Mortgage, Inc. (“SunTrust”), with MERS acting as nominee. The following series of assignments subsequently occurred: from MERS to SunTrust; from SunTrust to Nationstar Mortgage, LLC; from Nationstar Mortgage, LLC, back to SunTrust; and from SunTrust to Bank. This final assignment from SunTrust to Bank, dated February 8, 2013, assigned only the mortgage, not the accompanying note.

In January 2014, Bank filed a complaint against Louissaint, asserting foreclosure and reestablishment of a lost note. Bank attached a lost-note affidavit, prepared by a representative of its servicer, which included a copy of the unindorsed note and a copy bearing an undated blank indorsement from SunTrust. In her answer, Louissaint argued, inter alia, that Bank lacked standing to enforce the note and mortgage because it “never had possession of the Note and did not have possession when it filed this action,” “[Bank] does not own the Note,” and “[t]he Assignments of Mortgage do not confer any rights to [Bank].” In September 2015, upon locating the original note, Bank dropped its lost-note count. The original note, like the copy attached to the complaint, bore a blank indorsement from SunTrust.

At a non-jury trial, the parties stipulated to admission of the original note and mortgage, and certified copies of the assignments. A senior litigation associate for the loan servicer testified that a December 21, 2012 purchase agreement showed that SunTrust purchased the loan from NNPL, Trust Series 2012-1. Further, the March 27,2013 assignment assumption and recognition agreement showed that NNPL, Trust Series 2012-1, then assigned the pool of loans for this sale to Bank. Bank then rested, after which Louissaint moved for dismissal, maintaining that Bank lacked standing because it did not possess the note at the time of filing. After argument from both parties, the trial court reserved ruling on the motion.

The trial court ultimately entei-ed final judgment in Louissaint’s favor, denying foreclosure and dismissing the case. The judgment contained only two findings: “[Bank] did not have possession of the Note when the case was filed,” and “[t]he Assignment of Mortgage does not confer the Plaintiff with standing to foreclose because it does not assign the Note. As a result, the plaintiff did not have standing to prosecute this case at its inception.”

“The trial court’s granting of a motion for involuntary dismissal is reviewed de novo.” Bank of N.Y. v. Calloway, 157 So.3d 1064, 1069 (Fla. 4th DCA), re; view denied, 177 So.3d 1263 (Fla. 2015). When reviewing the grant of an involuntary dismissal, we “view the evidence and all inferences of fact in a light most favorable to the nonmoving party,” and affirm “only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.” Deutsche Bank Nat’l Tr. Co. v. Clarke, 87 So.3d 58, 60 (Fla. 4th DCA 2012).

A party seeking foreclosure must prove, by competent, substantial evidence, that it has standing to foreclose at the time of filing the lawsuit. Schmidt v. Deutsche Bank, 170 So.3d 938, 940-41 (Fla. 5th DCA 2015). “[A] person entitled to enforce the note and foreclose on a mortgage is the holder of the note, a non-holder in possession of the note who has the rights of a holder, or a person not in possession of the note who is entitled to enforce under section 673.3091, Florida Statutes.” Gorel v. Bank of N.Y. Mellon, 165 So.3d 44, 46 (Fla. 5th DCA 2015) (citing § 673.3011, Fla. Stat. (2013)). “If an indorsement is made by the holder of an instrument and it is not a special indorsement, it is a ‘blank in-dorsement.’ When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed.” § 673.2051(2), Fla. Stat. (2015). “[U]nder the Uniform Commercial Code, a plaintiff is not required to be both the owner and holder of the note in order to have standing to foreclose.” Tilus v. AS Michai, LLC, 161 So.3d 1284, 1285-86 (Fla. 4th DCA 2015) (citing Wells Fargo Bank, N.A. v. Morcom, 125 So.3d 320, 322 (Fla. 5th DCA 2013)).

Here, the trial court improperly relied on Bank’s lack of actual possession of the note at the time of filing, disregarding Bank’s statutorily-permitted lost-note count as an exception to actual possession. See Snyder v. JP Morgan Chase Bank, Nat’l Ass’n, 169 So.3d 1270, 1273 (Fla. 4th DCA 2015) (“[NJothing in the statute allows an ‘owner’ to enforce the note without possession, except where the instrument is lost or destroyed.” (citing § 673.3091, Fla. Stat. (2009)). The Fourth District Court previously addressed the prevalence of lost-note actions:

In the present case, as is common in recent foreclosure cases, Chase did not attach a copy of the original note to its complaint, but instead brought a count to re-establish a lost note. Later, however, Chase filed with the circuit court the original promissory note, which bore a special endorsement in favor of Chase. Because Chase presented to the trial court the original promissory note, which contained a special endorsement in its favor, it obtained standing to foreclose, at least at some point.

McLean v. JP Morgan Chase Bank Nat. Ass’n, 79 So.3d 170, 174 (Fla. 4th DCA 2012). In the case at issue, Bank followed its action to reestablish the lost note by filing the original note, once found. Thus, Bank established its standing “at some point.” See id. Bank further buttressed its standing by introducing evidence of assignments, as well as the mortgage loan purchase agreement and the assignment assumption and recognition agreement, both of which specifically referred to Louis-saint’s loan—showing its path to Bank— and predated the filing of the complaint. Thus, Bank sufficiently established that it had standing to enforce the lost note at the time of filing of the complaint. Cfi id.; Schmidt, 170 So.3d at 942 (reversing a foreclosure judgment where there existed no evidence of intent to transfer any interest in the note to the bank as trustee and “there was insufficient testimony and evidence that the note and mortgage in this case were actually included as part of the Mortgage Loan Purchase Agreement”).

The mere combination of the copy of the note with the complaint and the later-filed original sufficed to establish Bank’s standing to foreclose. Wells Fargo Bank, N.A. v. Ousley, — So.3d -, 41 Fla. L. Weekly D1409, D1410, 2016 WL 3268330 (Fla. 1st DCA June 15, 2016) (“A copy of a note with a blank endorsement attached to the complaint, with the original filed at trial, is enough to establish standing for the party that filed the complaint.”). Thus, the trial court erroneously dismissed Bank’s case for lack of standing. See id. (citing Ortiz v. PNC Bank, Nat’l Ass’n, 188 So.3d 923 (Fla. 4th DCA 2016); Clay Cty. Land Tr. v. JPMorgan Chase Bank, N.A., 152 So.3d 83 (Fla. 1st DCA 2014)). We reverse the order dismissing the action and remand with instructions to foreclose the mortgage in question. See Mortg. Elec. Registration Sys., Inc. v. Revoredo, 955 So.2d 33, 34 (Fla. 3d DCA 2007).

REVERSED and REMANDED with Instructions.

TORPY, J., and JACOBUS, B.W., Senior Judge, concur.

      . After a previous, since-dismissed foreclosure action against Louissaint by SunTrust, the trial court retained the original note, which it later released in March 2013 to SunTrust. SunTrust’s counsel subsequently delivered the original note and mortgage to Statebridge on September 14, 2015.

      . In its order, the trial court correctly asserted that "an assignment of the mortgage without an assignment of the debt creates no right in the assignee.” Bristol v. Wells Fargo Bank, Nat'l Ass'n, 137 So.3d 1130, 1133 (Fla. 4th DCA 2014) (quoting Vance v. Fields, 172 So.2d 613, 614 (Fla. 1st DCA 1965)). However, unlike the bank in Bristol, Bank relies on more than just the assignment of the mortgage to establish its standing. Cf. id.


author: KELLY, Judge.

text:
    NOVA CASUALTY COMPANY, Petitioners, v. WILSON DEVELOPERS, LLC, a Florida limited liability company; Sound Construction Group, Inc., a Florida corporation; Architectonics Studio, Inc., a Florida corporation; Trae Stokes Construction Services, Inc., d/b/a Construction Services, Inc., a dissolved Florida corporation; C & O Framing and Construction, Inc., a dissolved Florida corporation; C.Q. Insulation, Inc., a Florida corporation; Daniel Insulation, Inc., n/k/a Thomas D., Inc., a Florida corporation; Gypsum Products, Inc., a dissolved Florida corporation; and Steel Stud Enterprises, Inc., a Florida Corporation, Respondents.
    Case No. 2D15-5395
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2017.
    Jerry McKim of Wyland & Tadros LLP, West Palm Beach, for Petitioner Nova Casualty Company.
    Ty G. Thompson of Mills Paskert Divers, Tampa, for Respondent Sound Construction Group, Inc.

      No appearance for remaining Respondents.
   KELLY, Judge.

Nova Casualty Company seeks certiora-ri review of a nonfinal order adding it as a party to a final judgment. We grant Nova’s petition and quash the order.

Wilson Developers, LLC, filed suit against Sound Construction Group, Inc. (Sound), for defective construction of a condominium. Sound filed a third-party complaint against certain subcontractors, including Steel Stud Enterprises, Inc. Steel Stud failed to respond to the complaint and a default judgment was entered against it on August 4, 2014. On October 29, 2014, Sound moved to initiate proceedings supplementary and sought to implead Nova Casualty Company, Steel Stud’s commercial general liability insurer, and to join Nova as a party. The trial court granted Sound’s motion, impleaded Nova as Steel Stud’s insurer and joined Nova in the final judgment. Nova filed a motion for rehearing, which the trial court denied.

In its petition, Nova argues that joinder was improper because Sound failed to meet the requirements of section 627.4136(4), Florida Statutes (2014). That section states, in pertinent part, as follows:

At the time a judgment is entered or a settlement is reached during the pen-dency of litigation, a liability insurer may be joined as a party defendant for the purposes of entering final judgment or enforcing the settlement by the motion of any party, unless the insurer denied coverage under the provisions of s. 627.426(2) or defended under a reservation of rights pursuant to s. 627.426(2).

Under the statute, a motion to add an insurer must be made prior to, or at the time of, entry of judgment against the defendant. ACE Am, Ins. Co. v. HCP III of Bradenton, Inc., 913 So.2d 1280, 1281 (Fla. 2d DCA 2005) (noting that under the statute, “a liability carrier may be joined at or before the time judgment is entered against its insured”). “Such a motion could also be entertained if made within the time for a motion for rehearing under Florida Rule of Civil Procedure 1.530,” C.A. Seguros Catatumbo v. Herrera, 812 So.2d 576, 577 (Fla. 3d DCA 2002).

Sound’s motion was untimely under section 627.4136(4), because it was not filed at the time of final judgment on August 4, 2014, or within the following fifteen days allowed for a motion for rehearing under rule 1.530. Under rule 1.530, the latest a motion for joinder could have been filed was August 19, 2014. After that date the judgment became final and Nova could no longer be added as a party. See Herrera, 812 So.2d at 577-78 (noting that once the judgment became final, it could not be amended to add the insurer as a party).

Sound argues that this court should dismiss Nova’s petition for lack of jurisdiction because the order impleading Nova as a third party is not appealable. Sound also claims that Nova will not suffer irreparable harm by its impleader in the proceed•ings supplementary. However, as Nova argues, Sound treats impleading a party and joining a party as if they are interchangeable. They are not.

Impleader of a third party in proceedings supplementary “does not in and of itself imply liability on the part of the impleaded third parties.” Instead, it provides the party “with an opportunity to raise them defenses and protect their interests consistent with genuine due process.” Mejia v. Ruiz, 985 So.2d 1109, 1112-13 (Fla. 3d DCA 2008) (recognizing that an insurance company may pi-esent defenses at the proceedings supplementary). However, Nova does not challenge the order impleading it into the proceedings supplementary. Rather, Nova is challenging the order adding it to the final judgment as a party. The trial court departed from the essential requirements of the law by joining Nova as party to a final judgment that had been already rendered. Nova is irreparably harmed because it has been made responsible for coverage without having been given an opportunity to raise any defenses it might have to the determination of entitlement to coverage or the amount of coverage.

Accordingly, we grant the petition for a writ of certiorari and quash the order joining Nova as a party. This holding is without prejudice to Sound’s right to file a separate action against Nova seeking a declaratory judgment for a determination as to coverage. See C.A. Seguros Catatumbo, 812 So.2d at 578.

Petition granted; order quashed.

CASANUEVA and SILBERMAN, JJ., concur.


author: SUAREZ, C.J.

text:
    Carlos Jose GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2245
    District Court of Appeal of Florida, Third District.
    Opinion filed February 22, 2017.
    Carlos Jose Garcia, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, C.J., and EMAS and FERNANDEZ, JJ.
   SUAREZ, C.J.

Carlos Jose Garcia appeals the trial court’s entry of an Order Barring the Filing of Further Pleadings. We reverse.

Garcia was convicted in 1999 and appealed his conviction. This Court affirmed. Garcia v. State, 761 So.2d 1116 (Fla. 3d DCA 2000). Following that affirmance, Garcia has filed a total of three post-conviction motions, one of which was filed by counsel. In connection with his most recent motion, the trial court ordered him to show cause why he should not be precluded from further pro se filings, and, following his response precluded him from future pro se filings. We reverse as the filing of three post-conviction motions in this case, over a sixteen-year period, one filed by an attorney and the other two filed pro se, does not rise to the level of being an egregious abuse of the judicial process which would warrant barring Garcia from filing future petitions of merit.

As stated by the Court in Gaston v. State, 141 So.3d 627, 628-29 (Fla. 4th DCA 2014): “Florida courts have long recognized the need for judicial economy and the importance of curtailing the egregious abuse of judicial processes. Nevertheless, barring a criminal pro se litigant from filing future petitions has been described as an ‘extreme remedy’ which should be reserved for those who have repeatedly filed successive, frivolous, and meritless claims which were not advanced in good faith.... While there is no bright line rule on the maximum number of filings a pro se litigant can make before he is barred, we do not think the three filings in this case justify such a serious sanction.”

We do not think that the three particular filings in this case over a sixteen-year period is an egregious abuse of process. Therefore, the serious sanctions of barring the litigant from filing future pleadings is not warranted. We reverse the trial court’s order prohibiting Defendant from filing any future pro se pleadings.

Reversed and remanded.


text:
    Cornelius WATSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-958
    District Court of Appeal of Florida, Third District.
    Opinion filed February 22, 2017.
    Cornelius Watson, in proper person.
    Pamela Jo Bondi, Attorney General, and Gabrielle Raemy Charesfi-Turken, Assistant Attorney General, for appellee.
    Before SALTER, FERNANDEZ and SCALES, JJ.
   PER CURIAM.

Appellant Cornelius Watson appeals an order of the Miami-Dade Circuit Court, which determined that Watson’s motion for a speedy disposition of his probation violation case under the Interstate Agreement on Detainers was moot. At a hearing on March 3, 2016, the State withdrew its affidavit of probation violation and asked the court to unsuccessfully terminate Watson’s probation. Defense counsel stipulated to the motion, as the motion was consistent with Watson’s written request. The trial court granted the motion and terminated Watson’s probation as unsuccessfully completed. We affirm the trial court’s finding of mootness. A.V.S. v. State, 139 So.3d 944 (Fla. 4th DCA 2014) (Mem).

Affirmed.