author: BILBREY, J.,

text:
    Matthew Joseph DETTLE, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s)
    CASE NO.: 1D14-1382
    District Court of Appeal of Florida, First District.
    May 25, 2017
   BY ORDER OF THE COURT:

Appellant’s motion for rehearing or certification, filed January 31, 2016, is denied.

LEWIS and WINSOR, JJ., CONCUR; BILBREY, J. DISSENTS WITH OPINION.

BILBREY, J.,

dissenting.

I respectfully dissent from the denial of Appellant’s motions for rehearing and to certify a question to the Florida Supreme Court as to the issue of double jeopardy. However, I believe Appellant has conflict jurisdiction for Florida Supreme Court review based on our original decision, which conflicts with State v. Shelley, 176 So.3d 914, 919 (Fla. 2015), as well as numerous cases from other Florida district courts as discussed below.

Appellant challenges his convictions, after jury trial and guilty verdicts, ■ of 1) traveling to meet a person believed to be a child after using a computer or device capable of electronic data stprage to solicit .unlawful sexual conduct, pursuant to section 847.0135(4)(a), Florida Statutes (2012); 2) use of a computer online service or other device capable of electronic data storage to seduce, solicit, lure, or entice, a-person he believed to be a child, under section 847.0135(3)(a), Florida Statutes (2012); and 3) unlawful use of a two-way communication device (cell phone) to further the commission of a felony, under section 934.215, Florida Statutes (2012). In our original opinion we properly rejected four of the issues raised by Appellant. In the original decision we also rejected— incorrectly I now believe—part of his fifth issue that the multiple convictions of'the “same offense” based on the same conduct constitute double jeopardy. Accordingly, I would affirm Appellant’s conviction for the greater offense of traveling to meet a person believed to be a child after using a computer or device capable of electronic data storage to solicit unlawful sexual conduct, pursuant to section 847.0135(4)(a), Florida Statutes, and vacate the convictions and sentences for the lesser offenses in both counts II and III.

This case is the result of a strategic ruse by the Alachua County Sheriffs Office where law enforcement personnel placed an advertisement for legal social interaction, to which Appellant responded. Appellant and the officer then engaged in email and text communications. In the third exchange of messages—less than three hours after Appellant’s first response—the officer claimed to be a 14-year-old girl, and Appellant clearly believed that he was sending messages to a minor. Appellant continued to communicate with the fictitious minor and he initiated the suggestion of sexual activity on the second day after his initial response to the advertisement.

The content of the ensuing messages over the following two weeks, from July 19 to August 3, 2012, and the fact that Appellant drove over 100 miles on August 3, 2012, to the address provided by the officer as the residence of the supposed 14-year-old, were not in question. What is in question on appeal is the legal issue of whether the convictions for all three offenses as charged in the three-count information withstand constitutional scrutiny under a double jeopardy analysis and current governing case law. “A determination of whether double jeopardy is violated based on undisputed facts is a legal determination; thus, this Court’s review is de novo.” State v. Drawdy, 136 So.3d 1209, 1213 (Fla. 2014). Appellant unsuccessfully raised the issue of double jeopardy during the jury instruction conference, at sentencing, and in a postconviction motion raising sentencing error. Even if he had not raised the issue, “a violation of a defendant’s substantive double jeopardy rights constitutes fundamental error [which] may be raised for the first time on appeal.” Holt v. State, 173 So.3d 1079, 1081 (Fla. 5th DCA 2015) (considering double jeopardy issue applied to convictions under §§ 847.0135(4) and 934.15, Fla. Stat.).

Count I of the information alleged that the traveling offense occurred “on or about August 3, 2012.” Counts II and III alleged that the computer online solicitation and the use of a two-way communication device to further the commission of a felony took place “from, on, or between July 21, 2012 through, on, or about August 3, 2012.” The evidence adduced at trial included multiple communications between Appellant and the Alachua County Sheriffs deputy posing as the minor, several of which were sufficient to prove solicitation of unlawful sexual conduct and use of a two-way communication device to further the commission of a felony. However, there is no way to be certain that Appellant was not convicted in violation of double jeopardy of the same acts he committed on August 3, 2012, when the Appellant traveled after soliciting and unlawfully used a two-way communication device to solicit the purported minor.

As explained by the Florida Supreme Court, “the Constitution prohibits subjecting a person to multiple prosecutions, convictions, and punishments for the same criminal offense. The constitutional protection against double jeopardy is found in both article I, section 9, of the Florida Constitution and the Fifth Amendment to the United States Constitution.” Valdes v. State, 3 So.3d 1067, 1069 (Fla. 2009). The U.S. Supreme Court summarized the test to determine whether there are “two offenses or only one” in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). This “Blockburger test” to determine if multiple convictions and punishments are for “the same offense” or separate offenses is codified in section 775.021(4), Florida Statutes, which provides in part:

(4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is tp convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3.Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

§ 775.021, Fla. Stat. (2012).

Florida courts have applied the Block-burger test to the offenses described in sections 847.0135(3), 847.0135(4), and 934.215, Florida Statutes, in cases similar to this one—where a defendant engages in electronic and cell phone communications with a law enforcement officer posing as a minor, solicits the supposed minor for unlawful sexual conduct, and travels after the solicitation for the purpose of engaging in the unlawful sexual conduct. The Florida Supreme Court has deemed the offenses set out in sections 847.0135(3) (soliciting a minor) and 847.0135(4) (traveling after soliciting a minor) “the same for purposes of the Blockburger same-elements test codified in section 775.021(4), Florida Statutes.” Shelley, 176 So.3d at 919. Likewise, this court has deemed the violation of sections 847.0135(4) and 934.215 to be the same offenses under the Blockburger test because “ ‘the proof of the unlawful use of a two-way communications device was subsumed within the proof of the soliciting and traveling offenses in this case.’ ” Hamilton v. State, 163 So.3d 1277, 1278 (Fla. 1st DCA 2015) (quoting Mizner v. State, 154 So.3d 391 (Fla. 2d DCA 2014)); see also Batchelor v. State, 193 So.3d 1054 (Fla. 2d DCA 2016); Holubek v. State, 173 So.3d 1114 (Fla. 5th DCA 2015).

“However, the prohibition against double jeopardy does not prohibit multiple convictions and punishments where a defendant commits two or more distinct criminal acts.” Hayes v. State, 803 So.2d 695, 700 (Fla. 2001) (armed robbery and subsequent theft under facts in that case were “sufficiently separate in time, place and circumstances ... to constitute distinct and independent criminal acts.”). Courts have looked to the allegations in the charging documents, the provisions of the verdict forms, and the proof adduced at trial to determine if distinct criminal acts to support the dual convictions were proyen by the State.

For example, in State v. Meshell, 2 So.3d 132 (Fla. 2009), dual convictions for lewd and lascivious battery were affirmed where the acts occurred within seconds of each other, but the information alleged different anatomical combinations. As the Florida Supreme Court in Meshell observed, “Florida courts have focused on whether the acts forming the basis of the charges are ‘distinct.’ ” Id at 134. “Distinct acts” are “acts of a separate character and type requiring different elements of proof.” Id. at 135. On the other hand, where “neither the charging information nor the jury verdict form included language clearly predicating the disputed charges on two distinct sex acts,” it was “impossible for this court to know if the jury convicted appellant for one act of sexual battery or two distinct acts” when the evidence produced at trial showed overlapping acts. Partch v. State, 43 So.3d 758, 761-62 (Fla. 1st DCA 2010). Accordingly, in Partch, the “distinct acts exception” to the double jeopardy rule did not apply and the conviction was reversed. Id. at 763. See also Graham v. State, 170 So.3d 141, 143 (Fla. 1st DCA 2015), aff'd, 207 So.3d 135 (Fla. 2016) (affirming a conviction over a double jeopardy challenge where “the information and the jury verdict demonstrate that the charges were predicated on two distinct acts”).

There are times when although the information did not charge two separate acts, the proof at trial was clear that distinct acts were involved and therefore double jeopardy was not implicated. In Fravel v. State, 188 So.3d 969, 972 (Fla. 4th DCA 2016), convictions for two counts of fraudulent use of personal identification were affirmed over a double jeopardy challenge where the evidence at trial showed two different banks and therefore “clearly distinguished between two separate counts.” In Nicholson v. State, 757 So.2d 1227 (Fla. 4th DCA 2000), the convictions for two counts of throwing deadly missile were affirmed over a double jeopardy challenge based on the proof at trial of two bricks thrown into two windows. In Nicholson, “the evidence at trial clearly distinguished between the two separate offenses.” Id. at 1228. In Vizcon v. State, 771 So.2d 3, 6 (Fla. 3d DCA 2000), convictions for 29 counts of money laundering were affirmed over a double jeopardy challenge with a citation to Nicholson’s requirement that the evidence at trial clearly distinguish separate offenses to avoid double jeopardy.

Section 847.0135(3) does provide—for multiple solicitations—that “[e]ach separate use of a computer online service, Internet service, ... wherein an offense described in this section is committed may be charged as a separate offense.” Here, the State argues that Appellant could have been charged with multiple counts of solicitation based on at least four completed criminal acts with temporal breaks between them where Appellant requested or offered sexual activity involving the “minor.” While the evidence presented at trial- could have supported multiple charges, the State charged only one count of solicitation and one count of travel after solicitation. In addition, the amended information charged that the solicitation occurred over a range of dates, including the date charged for the travel. Based on this, it is impossible to know whether the jury “clearly distinguished” between the separate acts or whether they convicted the Appellant for the same offense accruing on August 3, 2012, since the Appellant was not charged with separate acts of solicitation as section 847.0135(3) would allow.

In Mizner, the information charged one count each of soliciting a minor, traveling after solicitation, and unlawful use of two-way communications device; and charged each of the offenses “over the same time period, from November 1, 2011, to November 4, 2011.” 154 So.3d at 400. The Mizner court rejected the State’s argument on appeal of the multiple convictions that double jeopardy did not apply because the evidence “could support convictions for each offense as occurring during a separate criminal episode.” Id. Because the State charged the offenses “as occurring during a single criminal episode,” the court in Mizner affirmed the conviction for traveling after solicitation (§ 847.0135(4)), and reversed the convictions for soliciting (§ 847.0135(3)) and unlawful use of two-way communications device (§ 934.215). Id.; see also Holt, 173 So.3d at 1081 (information charged single counts of unlawful use and traveling, both alleged to have occurred on or about the same day; pursuant to State’s charges as single criminal episode, court could not assume offenses were predicated on distinct acts).

Similarly, in Hamilton, convictions for both traveling to meet a minor and unlawful use of a two-way communications' device were-challenged on double jeopardy grounds. 163 So.3d at 1278. This court reversed the unlawful use conviction because that offense 'did not contain any element not subsumed in the traveling count, and because, although the evidence at trial showed unlawful uses of Hamilton’s cell phone “over three or four days in May of 2012,” the information alleged that each offense occurred “on or about” May 4, 2012. Id. Thus, “the state did not charge the offenses as occurring during separate criminal episodes.” Id. at 1279,

The deficiency in the charging document required reversal in Stapler v. State, 190 So.3d 162 (Fla. 5th DCA 2016), as well. There, - dual convictions for soliciting and travel after soliciting were challenged on double jeopardy grounds. Id . at 163-64. Acknowledging that .sections 847.0135(3) and 847.0135(4) contain the-same elements, “the only issue in this case is whether Stapler can be convicted of multiple solicitations despite being charged with single counts of solicitation and traveling based on conduct occurring over the same specified period of time.” Stapler, 190 So.3d at 164. The State in Stapler argued that the evidence established multiple violations sufficient to justify convictions under both sections, but the court, declined “to deny a double-jeopardy claim ‘based on uncharged conduct simply because it could have been charged.’ ” 190 So.3d at 165 (quoting State v. Shelley, 134 So.3d 1138, 1141-42 (Fla. 2d DCA 2014)).

Recently, the unlawful use of a computer to solicit conviction was reversed in Batchelor due to the possibility that the additional conviction for travelling after solicitation was based on the same acts. The State had charged that both offenses occurred “on or between June 10, 2013 and June 13, 2010,” but the court in Batchelor held that it was “not at liberty to infer” from the record that the State charged the defendant “with two distinct, chargeable offenses, separated in space or time.” 193 So.3d at 1058. Discussing the same argument as the State makes here, the court in Batchelor stated:

Finally, the State argues that it is not possible to determine whether the defendant’s use of his two-way communications device was the same as his use of a computer online service or internet service without looking at the underlying facts of the case. The State is on to something here, but its analysis ignores the allegations of the charging document that it filed against Mr. Batchelor. One can imagine a scenario where convictions for both traveling to meet a minor and the unlawful use of a two-way communications device could be sustained. But such a scenario would require a charging document—unlike the one filed in this case—that distinguished the two acts as occurring separately, and that facts were adduced at trial to prove that the offenses were indeed committed as separate and distinct acts.

Id.

In contrast, where the State charged separate episodes of solicitation, as allowed by section 847.0135(3)(b), and alleged a clear temporal break between the illegal solicitations, convictions under sections 847.0135(3) and 847.0135(4) were affirmed in Barnett v. State, 159 So.3d 922 (Fla. 5th DCA 2015). See also Hartley v. State, 129 So.3d 486 (Fla. 4th DCA 2014) (each episode of solicitation charged on separate date; reversing conviction for the solicitation charged on the same day as the travel offense but affirming convictions for solicitations charged on other dates). We have previously noted that double jeopardy might be avoided if, once the State discovers evidence of multiple criminal communications, it timely amends its information to allege separate solicitations other than the solicitation which caused the defendant to travel. Anderson v. State, 190 So.3d 1120, 1121 (Fla. 1st DCA 2016); see also Meythaler v. State, 175 So.3d 918, 919 (Fla. 2d DCA 2015).

Harmonizing the recent case law from our court and others, I would submit that double jeopardy can be avoided for potentially overlapping offenses if the information charges distinct acts, if the verdict form separates the distinct acts, or if the proof at trial clearly distinguishes between separate acts such that a defendant could not have been convicted of the same act. Here, the information in this case did not allege distinct acts, the verdict form did not separate the acts, and the evidence presented to the jury was such that I cannot clearly determine that the acts underlying Appellant’s conviction were separate. Therefore I would find that a double jeopardy violation has occurred.

As the Florida Supreme Court has instructed, when multiple convictions violate double jeopardy, the convictions and sentences for the lesser offense or offenses should be vacated, and the greater offense affirmed. Shelley, 176 So.3d at 920; State v. Tuttle, 177 So.3d 1246 (Fla. 2015). Using a computer to solicit a minor and unlawful use of a two-way communication device are lesser offenses, and traveling after soliciting a minor is the greater offense, because the elements of the lesser offenses are subsumed in the greater offense. Hamilton, 168 So.3d at 1278. In light of the foregoing, I would affirm the conviction under count I for violation of section 847.0135(4)(a), traveling to meet a person believed to be a child after using a computer or device capable of electronic data storage to solicit unlawful sexual conduct. I would vacate the convictions and sentences for both counts II and III as violations of the prohibition on double jeopardy. Amend. V, U.S. Const.; Art. I, § 9, Fla. Const.

Because the original opinion conflicts with numerous opinions from other districts, I would also certify conflict or a question of great public importance to the Florida Supreme Court. See Art. V, § 3(b)(4), Fla. Const.

ORDER ON MOTION FOR REHEARING EN BANC

BY ORDER OF THE COURT:

A judge of this court requested that this cause be considered en banc in accordance with Florida Rule of Appellate Procedure 9.331(c). All judges in regular active service have voted on the request. Less than a majority of those judges voted in favor of rehearing en banc. Accordingly, the request for rehearing en banc is denied.

ROBERTS, C.J., and WOLF, LEWIS, B.L. THOMAS, WETHERELL, ROWE, RAY, OSTERHAUS, KELSEY, WINOKUR, JAY, WINSOR, and M.K. THOMAS, JJ., concur.

MAKAR and BILBREY, JJ., would grant the motion for rehearing en banc.

      . In State v. Shelley, 176 So.3d 914 (Fla. 2015), the Florida Supreme Court approved the decision of the Second District in Shelley v. State, 134 So.3d 1138 (Fla. 2d DCA 2014), disapproved our decision in State v. Murphy, 124 So.3d 323 (Fla. 1st DCA 2013), and thereby overruled any cases where this court found that the Legislature intended separate punishment for the same acts of soliciting a minor and traveling to effectuate the purpose of that solicitation. Murphy was binding on the trial judge when Appellant was sentenced.

      . In the initial opinion we vacated the conviction and sentence for count III. That remains unaltered on rehearing.

      . The advertisement stated, "Tired of bein Bored—w4m—99 (N FL) Sittin at home, tired of bein bored.”

      .The trial court found that the carefully crafted messages by the officer did not constitute entrapment of Appellant. This was one of the other issues raised on appeal but I agree that there was no error in this ruling under the facts of this case.

      . It would arguably be simpler to rely solely on the specific acts alleged in the information without regard to what was proven at trial. This appears to be the approach taken by other districts. See Honaker v. State, 199 So.3d 1068 (Fla. 5th DCA 2016); Mizner v. State, 154 So.3d 391 (Fla. 2d DCA 2014). But such an approach is precluded by our recent case McCarter v. State, 204 So.3d 529 (Fla. 1st DCA 2016). In McCarter, the proof at trial for the soliciting count consisted of multiple requests via social media for nude pictures of a minor while the solicitation in the traveling after solicitation count consisted of messages via smart phone to arrange in-person meetings with the minor. McCarter could be reconciled with the cases from the other districts by the approach I propose here to avoid conflict.

      . The issue in my view is not whether what was proven at trial could support multiple charges, but whether we clearly know that the jury convicted the Appellant for separate acts. If he was convicted of the same act of solicitation underlying all three offenses with which he was charged, double jeopardy was violated. See Partch v. State, 43 So.3d 758 (Fla. 1st DCA 2010); Batchelor v. State, 193 So.3d 1054 (Fla. 2d DCA 2016); Stapler v. State, 190 So.3d 162 (Fla. 5th DCA 2016). Without specificity in the information, a verdict form with separate acts listed, or clearly distinct acts proven at trial there is no way to know.


source: Caselaw Access Project

author: ROTHSTEIN-YOUAKIM, Judge.

license: Public Domain

text:
    Arthur A. GENOVESE, DOC #Y09175, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-4892
    District Court of Appeal of Florida, Second District.
    Opinion filed May 26, 2017
    Rehearing Denied August 22, 2017
    Arthur A. Genovese, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

Arthur A. Genovese appeals the revocation of his probation and resulting sentence. We affirm the revocation of probation and sentence without further comment but remand for the circuit court to correct a scrivener’s error in the written order of revocation.

After the parties fully briefed this appeal, this court, in an unpublished order, relinquished jurisdiction for the circuit court to enter a signed, written order of revocation. See Greene v. State, 919 So.2d 684, 685 (Fla. 2d DCA 2006) (explaining that we will relinquish jurisdiction for circuit court to enter order of revocation when necessary to perfect our jurisdiction). The order that the circuit court subsequently entered indicates that Genovese violated condition 5 of his probation three times, as alleged in the violation affidavit, but indicates further that, at the September 29, 2015, violation hearing, Genovese also “was found in willful and substantial violation of condition (09) ... as stated in the affidavit.” At that hearing, however, the trial court explicitly stated that the State proved that Genovese had thrice violated condition 5 but failed to prove that he had violated condition 17—-a violation of condition 9 had not even been alleged in the violation affidavit. Thus, the discrepancy between the written order and the court’s oral pronouncement at the hearing is clearly the result of a scrivener’s error in the written order.

Generally, this type of scrivener’s error does not constitute fundamental error that should be corrected on appeal'unless the defendant has preserved the issue for review by first seeking relief in the circuit court via a motion pursuant to Florida Rule of Criminal Procedure 3.800(b). See Thomas v. State, 763 So.2d 316, 316 n.1 (Fla. 2000). But because the issue in this case arose while the appeal was already pending and only after it had been fully briefed, Genovese was foreclosed from seeking relief under either rule 3.800(b)(1) or rule 3.800(b)(2).

Given this atypical procedural posture, we remand for the circuit court to enter an amended written order of revocation’that conforms to its oral pronouncement at the September 29, 2015, hearing. See Smith v. State, 780 So.2d 166, 167 n.1 (Fla. 2d DCA 2001).

Affirmed; remanded with directions.

. CASANUEVA and BLACK, JJ., Concur.

      . Whenever such a discrepancy arises, the oral pronouncement governs over the written order. Turner v. State, 873 So.2d 480, 481 (Fla. 2d DCA 2004) (“A written order of revocation of probation must conform with the trial court’s oral pronouncement,”).


author: SALARIO, Judge.

text:
    Tazarious Vonellis HAWTHORNE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-105
    District Court of Appeal of Florida, Second District.
    Opinion filed May 26, 2017
    Howard L. Dimmig, II, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   SALARIO, Judge.

Tazarious Hawthorne challenges ,his convictions and sentences for trafficking in hydrocodone (twenty-eight grams or more) and carrying a concealed firearm in this appeal that is proceeding pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm the convictions and sentences without comment. We remand for the purpose of having the trial court enter an order that dismisses, rather than denies, a motion to withdraw plea Mr. Hawthorne filed after being sentenced.

The motion to withdraw was filed by Mr. Hawthorne pro se and alleged that his plea was involuntary because the trial court failed to determine whether he understood the terms of the plea agreement, whether he understood the constitutional rights he was waiving, and whether a factual basis for the plea existed. The trial court denied the motion, finding that it was both facially insufficient and meritless,

Mr. Hawthorne'filed the motion to withdraw plea after he filed a notice of appeal of his judgment and sentences. Because the filing of a notice of appeal divests the trial court of jurisdiction, the trial court should have dismissed the motion on that basis instead of denying it. See Mingo v. State, 914 So.2d 1070, 1070 (Fla. 2d DCA 2005); Wilson v. State, 814 So.2d 1203, 1204 (Fla. 2d DCA 2002). Inasmuch as the trial court was without jurisdiction to reach the merits of Mr. Hawthorne’s pro se motion, we must remand with instructions for the trial court to vacate its order denying that motion and to enter an order dismissing it for lack of jurisdiction. See id. In that connection, it is not clear from our record whether Mr. Hawthorne, was also represented by counsel at the time he filed his pro se motion to. withdraw plea. If, on remand, the trial court finds that Mr. Hawthorne was represented and did not move to, discharge counsel, it should instead, after vacating the denial order, strike Mr. Hawthorne’s motion as an unauthorized pro se pleading. See Mingo, 914 So.2d at 1070; Sharp v. State, 884 So.2d 510, 512 (Fla. 2d DCA 2004). Neither disposition reaches the merits of Mr. Hawthorne’s claim that his plea was involuntary.

Affirmed; remanded with instructions.

BLACK and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: MORRIS, Judge.

text:
    Peter Thomas STAVROU, Alexandra Stavrou, and Bessy Stavrou, Appellants, v. DESTINATION BOAT CLUBS, INC.; and Island Breeze Boat Club and Rental, Inc., Appellees.
    Case No. 2D16-390
    District Court of Appeal of Florida, Second District.
    Opinion filed May 31, 2017.
    Rehearing Denied August 30, 2017

      Jack C. Morgan, III of Roetzel & An-dress, LPA, Fort Myers, for Appellants.
    Dennis L. Avery of Avery, Whigham & Winesett, P.A., Fort Myers, for Appellee Destination Boat Clubs, Inc.
    No appearance for remaining Appellee.
   MORRIS, Judge.

Peter Thomas Stavrou, Alexandra Stav-rou, and Bessy Stavrou appeal from a final judgment upon impleader wherein the circuit court awarded Destination Boat Clubs, Inc. (Destination), a total of $59,900 in proceedings supplementary. For the reasons explained herein, we affirm in part and reverse in part.

The proceedings supplementary award was based on the final judgment entered in a breach of contract action between Destination and Island Breeze Boat Club and Rental, Inc. (Island Breeze). Peter Stavrou was the sole officer and shareholder of Island Breeze. Judgment was rendered in favor of Destination in the breach of contract action, and the circuit court awarded $10,000 (the equivalent of Destination’s escrow deposit) plus an award of attorneys’ fees and costs in the amount of $36,552.90. Destination thereafter impleaded the three Stavrous individually and initiated the proceedings supplementary, arguing that Peter improperly withheld the escrow deposit as well as $23,000 that Island Breeze earned from boat sales and that Peter improperly transferred $26,900 from Island Breeze’s bank account to a joint bank account shared by the three Stavrous. Ultimately, the circuit court entered the order on appeal, concluding (1) that Peter violated his fiduciary duties by keeping the $10,000 escrow deposit, thereby preventing Destination from recovering at least a portion of the final judgment, (2) that Peter engaged in fraudulent transfers of the $10,000 deposit, the $23,000 earned from the boat sales, and the $26,900 that was moved from the Island Breeze bank account to the Stavrous’ joint bank account, and (3) that Peter’s actions justified piercing the corporate veil. The effect of the circuit court’s order was to award all of the improperly transferred monies to Destination. Peter was held liable for the entire amount of the judgment while Alexandra and Bessy were held jointly and severally liable only for the $26,900.

On appeal, the Stavrous first argue that the circuit court erred by rendering a judgment against Peter in an amount that exceeded the amount that was owed to Destination under the original final judgment, and Destination concedes error on this point. A judgment in an ancillary proceeding should not be entered in excess of the unpaid amount of the underlying judgment. See § 726.109(2), Fla. Stat. (2015) (explaining that “to the extent a [fraudulent] transfer is voidable in an action by a creditor under s. 726.108(l)(a), the creditor may recover judgment for the value of the asset transferred ... or the amount necessary to satisfy the creditor’s claim” (emphasis added)); Mansolillo v. Parties by Lynn, Inc., 753 So.2d 637, 640 (Fla. 3d DCA 2000) (applying section 726.109(2) to a judgment rendered in proceedings supplementary); cf. Sec. Bank, N.A. v. BellSouth Advert. & Publ’g Corp., 679 So.2d 795, 800 (Fla. 3d DCA 1996) (quoting Henry P. Trawick, Jr., Trawick’s Florida Practice and Procedure § 33-6, at 559 (1995 ed.), for the proposition that a judgment should not be entered against a garnishee in excess of the unpaid amount on the judgment against a garnishment defendant “or in excess of the garnishee’s liability to the garnishment defendant” (emphasis omitted)). And here, the underlying judgment was for $46,552.90 ($10,000 for the escrow deposit plus $36,552.90 for attorneys’ fees and costs). However, we agree that Destination is entitled to recover prejudgment interest running from the date of loss. See Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 215 (Fla. 1985); Mansolillo, 753 So.2d at 640. Consequently, we reverse the final judgment upon impleader in part as against Peter. We affirm the final judgment upon im-pleader as against Alexandra and Bessy. On remand, the circuit court should enter an amended final judgment upon impleader that reflects a judgment against Peter in an amount of $46,552.90 plus any prejudgment interest that has accrued fern the various dates of loss. The judgment against Alexandra and Bessy jointly and severally for $26,900 should remain unchanged. We find no merit in the other two points raised by the Stavrous in this appeal.

Affirmed in part, reversed in part, and remanded for proceedings in conformance herewith.

WALLACE and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . The proceedings supplementary in this case were ancillary postjudgment proceedings wherein Destination sought to recover fraudulently transferred monies. We reject the Stav-rous’ contention to the contrary. See Nat'l Auto Serv. Ctrs., Inc. v. F/R 550, LLC, 192 So.3d 498, 502 (Fla. 2d DCA 2016); Nat'l Mar. Servs., Inc. v. Straub, 776 F.3d 783, 788 (11th Cir. 2015).

      . Because Alexandra and Bessy were only held jointly and severally liable for the money that was transferred to the joint bank account ($26,900), no argument can be made that the final judgment upon impleader improperly awarded monies in excess of the underlying judgment as against them. Cf. Pollizzi v. Paulshock, 52 So.3d 786, 790 (Fla. 5th DCA 2010) (explaining that third-party defendants can only be held responsible for returning improperly transferred monies that are in their possession). Thus we need not reverse the portion of the final judgment as against them.


author: PER CURIAM.

text:
    Adrian GRAY, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0782
    District Court of Appeal of Florida, First District.
    Opinion filed June 6, 2017
    Rehearing Denied July 18, 2017
    Adrian Gray, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED as untimely and successive. See Fla. R. App, P. 9.141(d)(5) and (d)(6)(C).

WOLF, RAY, and BILBREY, JJ., CONCUR.


text:
    Christina PAYLAN, M.D., Appellant, v. DEPARTMENT OF HEALTH, Appellee.
    Case No. 2D16-3597
    District Court of Appeal of Florida, Second District.
    Opinion filed June 9, 2017
    Rehearing Denied August 4, 2017
    Christina Paylan, M.D., pro se.
    Sarah Young Hodges, Chief Appellate Counsel, Florida Department of Health, Tallahassee, for Appellee.
   PER CURIAM.

Christina Paylan appeals from a final administrative order from the Department of Health (Department) denying her application for renewal of her medical license. The Department’s order was based on the application of section 456.0635(3)(a)(2), Florida Statutes (2016), which mandates denial of a renewal application from any applicant who has been convicted of or pleaded to a felony under chapters 409, 817, or 893, Florida Statutes, unless the applicant is either “currently enrolled in a drug court program that allows the withdrawal of the plea for that felony upon successful completion of that program” or, in the case of a third-degree felony, where more than ten years have passed since “the sentence and any subsequent period of probation for such conviction or plea has ended.”

It is undisputed that Paylan was convicted of a third-degree felony under chapter 893, that she was neither offered nor ordered to complete a drug eourt program by the trial court, and that the ten-year period from the completion of her sentence and subsequent probationary period had not yet expired at the time she filed her application for renewal; Consequently, the Department was required to apply section 456.0635(3)(a)(2) in considering her application.

In this appeal, Paylan is proceeding pro se. She contends that because she chose to take her criminal case to trial and because the criminal charges involved'only a single prescription, she did not have the opportunity to participate in a drug court treatment program. Thus she argues that the application of the ten-year waiting period set forth in section 456.0635(3)(a)(2) is unjust as applied to her. We write only to address this argument as we find the other issues raised by Paylan to be without merit.

I. Background

On August 22, 2014, Paylan was convicted after a jury trial of obtaining a controlled substance by fraud, a third-degree felony as set forth in section 893.13(7)(a)(9), Florida Statutes (2011), and fraudulent use of personal information, a third-degree felony as set forth in section 817.568(2)(a), Florida Statutes (2011). These two convictions arose from an incident involving á single prescription that Paylan obtained by using the personal identification information of someone who had consulted with her for a medical procedure. Paylan was sentenced to 364 days in jail with jail credit applied.

On July 29, 2015, the Department filed an amended administrative complaint against Paylan alleging that she violated section 456.072(l)(c), Florida Statutes (2014), because she was found guilty of crimes related to the practice of medicine. Ultimately, in December of that year, the Board of Medicine (Board) issued a final order requiring Paylan to pay a $5000 fine, suspending her license for two years followed by one year of probation (with credit for time Paylan had served under an emergency suspension order), requiring her to complete continuing medical education, and requiring her to pay costs.

During her suspension, Paylan’s license came up for renewal, and she timely filed her application. On February 2, 2016, the Department notified Paylan that it denied her application pursuant to section 456.0635(3)(a) because she had been convicted of a third-degree felony violation of section 893.13(7)(a)(9). The Department’s Notice of Agency Action Denial of License Renewal letter did not reference Paylan’s conviction under chapter 817.

Paylan thereafter-petitioned to dismiss the Department’s letter of denial, and she requested an evidentiary hearing. In her petition, she argued, among other things, that the denial of her license renewal was tantamount to a license revocation on the same ground for which the Board had already suspended her license. Thus she argued that the denial violated principles of double jeopardy, res judicata, and collateral estoppel.

At the hearing, the Department presented the testimony of a Department employee who testified that she reviewed Paylan’s application, determined it was complete, and then denied it based on Paylan’s criminal convictions under chapters 817 and 898.

Ultimately, the presiding officer filed a report recommending denial of Paylan’s application based on her conviction for a third-degree felony under chapter 893. The presiding officer correctly concluded, as a matter of law, that section 456.0635(3)(a)(2) mandated the denial because Paylan was not enrolled in a qualified drug court program and because the ten-year period set forth in the statute had not yet expired. The Department subsequently issued its final order approving and adopting the presiding officer’s report.

II. Analysis

We may only set aside agency action if we find “that the action is dependent on findings of fact that are not supported by substantial competent evidence in the record, material errors in procedure, incorrect interpretations of law, or an abuse of discretion.” Malave v. Dep’t of Health, Bd. of Med., 881 So.2d 682, 683 (Fla. 5th DCA 2004) (citing § 120.68(7), Fla. Stat. (2002)); see also Bollone v. Dep’t of Mgmt. Servs., Div. of Ret., 100 So.3d 1276, 1279 (Fla. 1st DCA 2012). “With respect to an agency’s interpretation based on an issue of law,” we must determine whether the agency “erroneously interpreted the law and, if so, whether a correct interpretation compels a particular action.” Bollone, 100 So.3d at 1279 (citing Rosenzweig v. Dep’t of Transp., 979 So.2d 1050, 1053 (Fla. 1st DCA 2008)). “The administrative construction of a statute by the agency charged with its administration is entitled to great weighty [and] [w]e will not overturn an agency’s interpretation unless clearly erroneous.” Dep’t of Ins. v. S.E. Volusia Hosp. Dist., 438 So.2d 815, 820 (Fla. 1983) (citing State ex rel. Biscayne Kennel Club v. Bd. of Bus. Reg., 276 So.2d 823, 828 (Fla. 1973)).

Paylan’s argument is that the Department incorrectly interpreted the law by denying her application for renewal pursuant to section 456.0635(3)(a)(2). She primarily argues that the Department lacked the authority to “impose a penalty” based upon her conviction because the Board of Medicine had already done so by imposing the two-year suspension and one-year probationary term. She asserts that the doctrine of administrative finality precludes a second administrative punishment for the same conduct. She also contends that the nonrenewal of her license is, in effect, an improper revocation of her license for a ten-year period, which she contends should be treated like a double jeopardy violation.

However, Paylan misunderstands the difference in the nature of the two types of proceedings. Disciplinary proceedings are conducted to determine whether a licensee violated the disciplinary statutes. Conversely, in licensure renewal proceedings, the Department determines whether the licensee has met all the requirements for continued licensure or whether there is some fact that precludes renewal. Paylan’s conviction under chapter 893 subjected her to both types of proceedings, but that fact does not implicate either the administrative finality doctrine or double jeopardy. Whether or not Paylan met the requirements for continued licensure under section 456.0635(3)(a)(2) was not an issue that was decided by the Board of Medicine in her disciplinary proceedings. Similarly, the Department, in reviewing Paylan’s application for renewal, did not base the nonre-newal on Paylan’s violation of section 456.072(l)(c), which permits discipline against a physician’s license where a physician has either been convicted of or pleaded to a crime relating to the practice of the physician’s profession. Indeed, although the same drug-related conviction was used as a predicate for the two proceedings, one of the proceedings focused on how Pay-lan’s conviction was related to her profession (i.e., by fraudulently obtaining a prescription through the use of someone else’s information), whereas the other proceeding focused on Paylan’s continued fitness for licensure due to the drug-related conviction.

We reject Paylan’s argument that the denial of her renewal application was punitive in nature. While civil proceedings can constitute punishment under certain circumstances, we do not believe that the Department’s denial of renewal was so disproportionate so as to serve as a sanction. Cf. N. Hill Manor, Inc. v. State, Agency for Health Care Admin., 881 So.2d 1174, 1177 n.3 (Fla. 1st DCA 2004) (explaining that double jeopardy does not ordinarily “apply to limit sanctions in civil cases unless the ‘sanction as applied in individual cases is so disproportionate to the government’s damages that it serves the goal of punishment’” (quoting State v. Knowles, 625 So.2d 88, 91 (Fla. 5th DCA 1993))). Sections 456.0635(3)(a)(l)-(3) focus on a physician’s continued fitness to practice his or her profession when they have been convicted of certain crimes. The statute thus serves the public welfare by ensuring that a physician is either currently obtaining help for drug dependency or waiting a requisite period of time after his or her sentence and any subsequent period of probation has concluded before seeking renewal. We therefore conclude that the Department was not prohibited by the administrative finality doctrine from following the mandate set forth in section 456.0635(3)(a)(2) and that it did not commit a double jeopardy violation in doing so.

Paylan’s argument that application of section 456.0635(3)(a)(2) is unjust appears to be based on the idea that section 456.0635(3)(a) fails to contain any exceptions for licensure renewal applicants who are in her exact predicament, i.e., applicants who are not ordered to complete or expressly offered a drug court program as part of the resolution of a criminal case and for whom the relevant time period has not yet expired. However, we see nothing in section 456.0635(3)(a) that requires a trial court to offer or to order an applicant to attend a drug court program. Rather, the statute requires the Department to refuse renewal of a license of any applicant who has been convicted of or entered a plea to a felony under the specified chapters unless the applicant is “currently enrolled in a drug court program that allows the withdrawal of the plea for that felony upon successful. completion of that program.” § 456.0635(3)(a). Thus Paylan had a choice at the time she was charged with the criminal offenses. She could go to. trial and hope to be found not guilty, at which point section 456.0635(3)(a) would be inapplicable. Or she could voluntarily enter a pretrial drug court program, assuming she qualified for it. Either Paylan did not qualify for such a program or she chose hot to participate in it. Consequently, while her angst and frustration about her situation are understandable, that is not a sufficient basis to bar application of section 456.0635(3)(a)(2).

Because Paylan was not currently enrolled in a drug court program and because the ten-year period specified in section 456.0635(3)(a)(2) had not yet expired, the Department was mandated to deny her renewal application due to her conviction of a felony under chapter 893. The Department is not permitted to make ah exception because the result seems harsh or unfair as applied to a particular individual or situation. See Cortes v. State, Bd. of Regents, 655 So.2d 132, 136 (Fla. 1st DCA 1995) (“The legislature may authorize administrative agencies to interpret, but never to alter statutes.” (citations omitted)); Commercial Coating Corp. v. Dep’t of Envtl. Regulation, 548 So.2d 677, 679 (Fla. 3d DCA 1989) (“Administrative agencies entrusted with authority to carry out statutory provisions are ... prohibited from giving the statute an amendatory construction”).

In enacting section 456.0635(3)(a), the legislature clearly wanted to create an opportunity for certain first-time offenders to be able to renew their medical license as long as they are progressing in a drug court treatment program. The incentive in picking that option is that an applicant would not have to wait for the expiration of the time periods set forth in sections 456.0635(3)(a)(l)-(3). Rather, the applicant is only required to be “currently enrolled” in such a program when their application for renewal is .processed. § 456.0635(3)(a). But where an applicant either does not qualify for such a program or chooses not to enter into such a program, the legislature has made it equally clear that the applicant must wait for the expiration of the requisite time period—here, ten years—regardless of what the Board has done in a prior disciplinary proceeding. In the absence of a successful constitutional challenge, neither the Department nor this court may modify the statute in order to achieve a less harsh result for Paylan. See Hayes v. State, 750 So.2d 1, 4 (Fla. 1999) (“We are not at liberty to add words to statutes that were not placed there by’ the [(legislature.”); Commercial Coating Corp., 548 So.2d at 679 (“In construing statutes[,] courts may not invoke a limitation or add words to the statute not placed there by the legislature.”). Section 456.0635(3)(a)(2) is very clear, and under the facts and circumstances of this case, the Department lacked the discretion to do anything except to deny the renewal of Paylan’s license. Accordingly, the Department’s final order is affirmed.

Affirmed.

NORTHCUTT, KHOUZAM, and MORRIS, JJ., Concur.

      . The statute also applies to applicants who have been convicted-of or have pleaded to similar felonies committed in other states or jurisdictions.

      , The crimes took place on July 1, 2011,

      . The administrative finality doctrine is based on the idea that “there must be a 'terminal point in every proceeding both administrative and judicial, at which the parties and the public may rely on a decision as being final and dispositive of the rights and issues therein.’ ” Fla. Power Corp. v. Garcia, 780 So.2d 34, 44 (Fla. 2001) (quoting Austin Tupler Trucking, Inc. v. Hawkins, 377 So.2d 679, 681 (Fla. 1979)). The doctrine is applied where there are common facts and issues presented in different proceedings and there has not been a significant change in circumstances. See id.

      . The other subsections of the statute provide different time periods barring renewal depending on the offense level and whether the crime constituted a violation of section 893.13(6)(a).

      . Although not addressed by the parties and not dispositive of this case, we note that section 397.334(2), Florida Statutes (2014), provides in relevant part that “[e]ntry into any . pretrial treatment-based drug court program shall be voluntary." And the website for the Drug Pretrial Intervention Program for the Thirteenth Judicial Circuit indicates that "[a]ny person over the age of 18 who has not had a prior felony or pretrial intervention episode is’ eligible provided they waive their right to a speedy trial, admit to having a drug problem and express a desire for treatment." Thirteenth Judicial Circuit Hillsborough County Drug Pretrial Intervention Program .FAQs, http://www.fl.judl 3.org/CourtPrograms/ DrugCourtPrograms/DrugPretrial Intervention/FAQs.aspx (last visited May 18, 2017).


author: SLEET, Judge.

text:
    DESTINATION BOAT CLUBS, INC., and David E. Sutton, Jr., Appellants, v. ISLAND BREEZE BOAT CLUB & RENTAL INC.; Peter Thomas Stavrou; Bessy Stavrou and Alexandra Stavrou, Appellees.
    Case No. 2D16-2092
    District Court of Appeal of Florida, Second District.
    Opinion filed June 9, 2017
    Rehearing Denied August 21, 2017

      Dennis L. Avery of Avery, Whigham & Winesett, P.A., Fort Myers, for Appellant.
    No appearance for Appellant, David E. Sutton, Jr.
    Jack C. Morgan, III, and Noel J. Davies of Roetzel & Andress, LPA, Fort Myers, for Appellees, Peter Thomas Stavrou, Bes-sy Stavrou and Alexandra Stavrou.
    No appearance for Appellee, Island Breeze Boat Club & Rental, Inc.
   SLEET, Judge.

Destination Boat Clubs, Inc., appeals the order denying its motion for attorney fees and costs after Destination received a judgment in its favor in proceedings supplementary against Island Breeze Boat Club and Rentals, Inc., and Peter, Bessy, and Alexandra Stavrou. We affirm the order to the extent that it denied fees and costs against Peter Stavrou individually. However, we reverse the portion of the order that denied fees and costs against Island Breeze because it was contrary to the court’s oral rulings at the evidentiary hearing and not supported by competent substantial evidence.

This case began with a contract between Destination and Island Breeze. Destination attempted to renegotiate the terms of the agreement with Island Breeze, which declined and withdrew from the contract entirely. Destination sought repayment of a $10,000 deposit it had paid to Peter Stav-rou, the sole officer and director of Island Breeze. Stavrou declined and transferred all of Island Breeze’s monetary assets to the Stavrous’ personal bank account, and Island Breeze sued Destination for breach of contract. Destination countersued Island Breeze for breach of contract and sought return of the deposit.

After Destination obtained a judgment for the $10,000 deposit and $36,552.90 in attorney fees and costs, it initiated proceedings supplementary against the Stavrous, alleging that the transfers from Island Breeze to the Stavrous were fraudulent and an attempt to avoid paying any judgment in favor of Destination. The circuit court entered judgment in favor of Destination in the proceedings supplementary and ordered the transfers undone. This court affirmed that order on appeal, reversing only to the extent that the judgment entered against Peter Stavrou exceeded the amount of the judgment against Island Breeze. See Stavrou v. Destination Boat Clubs, Inc., No. 2D16-390, 226 So.3d 293, 2017 WL 2373446 (Fla. 2d DCA May 31, 2017).

Destination sought fees and costs generated during the proceedings supplementary against Island Breeze and Peter Stav-rou. There is no transcript of the hearing on this motion, but Destination provided an approved statement of the evidence on appeal. See Fla. R. App. P. 9.200(b)(4). According to the statement of the evidence, Island Breeze was not represented by counsel at the hearing. The statement of the evidence also reflected that the court found that Destination was entitled to reasonable costs and fees pursuant to section 56.29(11), Florida Statutes (2015). The court considered evidence as to amounts and found that Destination had proven that 162 hours at $250 an hour—a total of $40,500—was a reasonable amount for fees and that Destination was entitled to recover $1012.15 in costs. The court found that Destination was entitled to recover these amounts against Island Breeze but not against Peter Stavrou. However, after the hearing the court entered an order denying the motion in its entirety. Destination now appeals this order, arguing that it is entitled to recover fees and costs against Island Breeze and against Peter Stavrou individually.

Generally, our review of an order denying fees is for an abuse of discretion; however “[wjhere entitlement rests on the interpretation of a statute or contract, our review is de novo.” Raza v. Deutsche Bank Nat’l Trust Co., 100 So.3d 121, 123 (Fla. 2d DCA 2012) (citing Country Place Cmty. Ass’n v. J.P. Morgan Mortg. Acquisition Corp., 51 So.3d 1176, 1179 (Fla. 2d DCA 2010)). Section 56.29(11) provides for the award of fees and costs against the judgment debtor in proceedings supplementary. The statement of the evidence reflects that the attorney fee and cost awards were supported by competent substantial evidence and that they were unopposed by Island Breeze, the judgment debtor. Moreover the award of costs was mandatory under section 56.29(11). See Gaedeke Holdings, Ltd. v. Mortg. Consultants, Inc., 877 So.2d 824, 827 (Fla. 4th DCA 2004) (“[Cjosts for proceedings supplementary shall be taxed against the defendant.” (quoting § 56.29(11))). Accordingly, we reverse the order denying attorney fees and costs against Island Breeze.

To the extent that Destination argues that the trial court should have awarded attorney fees and costs against Peter Stavrou individually, we disagree. “[I]mpleaded parties are not liable for attorney’s fees and costs in ... proceedings supplementary. In such proceedings, attorney’s fees and costs may be awarded only against the original judgment debtor—not against any impleaded parties.” Kingston Corp. Grp. of Fla. v. Richard Kleiber Walter Kleiber P’ship, 127 So.3d 802, 804 (Fla. 2d DCA 2013); see also Gaedeke, 877 So.2d at 826 (“[C]hapter 56 demonstrates that attorney’s fees, if awarded, are to be assessed against the judgment debtor.” (quoting Rosenfeld v. TPI Int’l Airways, 630 So.2d 1167, 1169 (Fla. 4th DCA 1993))). However, once a judgment for fees is entered against the judgment debtor, the trial court may apply assets .previously determined to have been fraudulently transferred toward the new judgment debt. Gaedeke, 877 So.2d at 826. Because there is no basis for an award of fees and costs against Peter .Stavrou, we affirm the order to the extent it denies the award against the impleaded parties.

Affirmed in part and reversed in part.

NORTHCUTT and SALARIO, JJ., Concur.

      . The parties have not raised the issue of whether the portion of this court’s opinion issued in case number 2D16-390 that reverses the judgment entered against Peter Stavrou to the extent that it exceeded the amount of the judgment against Island Breeze, may be moot in light of this opinion. Accordingly, we do not address that issue.


author: LAMBERT, J.

text:
    The TOWN OF PONCE INLET, a Florida Municipality, Appellant, v. PACETTA, LLC, a Florida Limited Liability Company, Down the Hatch, Inc., a Florida Corporation, and Mar-Tim, Inc., a Florida Corporation, Appellees.
    Case No. 5D14-4520
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 16, 2017
    Rehearing/Rehearing En Banc Denied September 25, 2017

      Elliot H. Scherker and Brigid F. Cech Samóle, of Greenberg, Traurig, P.A., Miami, and Kimberly S. Mello, of Greenberg Traurig, P.A., Tampa, and Clifford B. Shepard, of Shepard, Smith & Cassady, P.A., Maitland, and Noah C. McKinnon, Jr., and Abraham C. McKinnon, of McKin-non & McKinnon, P.A., Ormond Beach, for Appellant.
    Amy Brigham Boulris, Kenneth B. Bell and Lauren L. Purdy, of Gunster, Yoakley & Stewart, P.A., Miami,- and Peter B. Heebner and John N. Upchurch, of Heeb-ner, Baggett, Upchurch & Garthe, P.L., Daytona Beach, for Appellees.
    Nancy E. Stroud, Counsel for American Planning Association, Boca Raton, Amicus Curiae for Appellant.
    Mark Miller and Christina M. Martin, of Pacific Legal Foundation, Palm Beach Gardens, Amicus Curiae for Appellees.
   LAMBERT, J.

The parties in this case make their third appearance before this court. In this appeal, the Town of Ponce Inlet (“Town”) appeals a multi-million-dollar second amended final judgment entered following a jury trial on damages arising from an inverse condemnation claim as well as an earlier order resulting from a bench trial on liability (“liability order”) that found in favor of the Appellees: Pacetta, LLC; Down the Hatch, Inc.; and Mar-Tim, Inc. (collectively “Pacetta”). To explain our decision today, we first chronologically discuss the factual and procedural history involving these parties as well as the significance and intertwinement of our two earlier opinions regarding these parties.

The Town of Ponce Inlet is a small, mostly residential community in Volusia County, located on the southern tip of a peninsula south of Daytona Beach. The main peninsula of the town is bordered to the west by the Halifax River, to the east by the Atlantic Ocean, and to the south by the Ponce Inlet, connecting the river to-the ocean. There is very little commercial development in the town, other than as described by the trial court as “some limited retail establishments.” The primary commercial developments in the town are three riverfront enterprises, with Pacetta’s property being the middle of the three riverfront enterprises.

The origin of the dispute between the parties began in 2003. That year, Town adopted a Comprehensive Land-Use Plan, which was accepted and approved by the State of Florida. The plan created a “riverfront commercial” land-use category that placed limits on both the height and square footage of commercial buildings, and it also prohibited the construction of new marinas and the expansion of existing marinas. In January 2004, Town enacted a Riverfront Overlay District (“ROD”), which limited the use of dry stack boat storage facilities.

In June 2004, Pacetta, through its two controlling principals, Lyder and Simone Johnson, purchased the first two parcels of property at issue, with parcel 1 being situated in the riverfront commercial zoned area and parcel 2 being located in an area zoned medium-density residential. The original intent for this purchase was to build a “dream home,” along with some possible other residential development.

The following year, Pacetta, with encouragement from Town, decided to broaden its development into what the trial court described in its liability order as a “delightful mixed-use planned waterfront development.” However, to do so required the acquisition of additional properties. To that end, in August 2005, Pacetta purchased parcels 3 and 4, and in March 2006, it purchased parcels 5-9, on which were situated the commercial establishments Sea Love Boat Works and the Down the Hatch restaurant. Finally, in May 2006, Pacetta purchased parcel 10, which was zoned multi-family and permitted for nineteen townhouses and an equivalent number of boat slips. As a result of these purchases, Pacetta’s ten parcels were contiguous to each other and encompassed sixteen acres of land.

Pacetta then began to prepare a plan to develop all ten parcels as a waterfront project to be known as the Villages of Ponce Park. As found by the trial court, Pacetta anticipated that “it would be entitled to build and sell a series of townhomes on the south end of the acreage, would be able to continue to run and expand the restaurant,” Down the Hatch, “and would be able to build and operate a dry slip stacked storage facility on the north end of the property in an area historically dedicated to boat building, maintenance and repair.” However, Pacetta’s proposed development was not consistent with, and in fact was forbidden by, the Town’s 2003 Comprehensive Land-Use Plan and the 2004 ROD. This was significant because “[a] local comprehensive land use plan is a statutorily mandated legislative' plan to control and direct the use and development of property within a county or municipality.” Citrus Cty. v. Halls River Dev., Inc., 8 So.3d 413, 420 (Fla. 5th DCA 2009) (citing § 163.3167(1), Fla Stat. (2005); Machado v. Musgrove, 519 So.2d 629, 631-32 (Fla. 3d DCA 1987)). The plan is similar to a constitution for all future development within the government boundary. Id. at 420-21 (citing Machado, 519 So.2d at 632). Where, as here, a Comprehensive Land-Use Plan has been adopted, “ ‘all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan’ must be consistent with that plan.” Id. at 421 (quoting § 163.3194(l)(a), Fla. Stat. (2005)).

Therefore, in order to proceed with its planned waterfront development, Pacetta needed Town to amend its Comprehensive Land-Use Plan and to essentially relax the existing ROD zoning. Town began taking necessary steps to amend its plan to accommodate Pacetta’s development project. In return, Town had certain requirements of Pacetta for the project, which were amenable to Pacetta. Pacetta invested significant time, effort, and money in its attempt to implement the project. As found by the trial court, “between June of 2004 and 2008, there does not appear to be any meaningful dispute that ■ [Pacetta] and-the Town- had a harmonious convivial relationship that might even be described as pa-cesetting. While some cracks began to form in late 2007, the cooperation between [Pacetta] and the Town [toward developing this project] was unprecedented.”

What occurred in 2007 was the result of a - growing movement -by some of -Town’s officials and other citizens opposing Pacet-ta’s project. In August 2007, Town passed an ordinance proposing an amendment to its town charter to allow “citizens’ initiatives ... in conjunction with land actions.” On October 17, 2007, Town then passed a year-long moratorium on any building. Despite the foregoing, in March 2008, Town’s council approved an amendment to its Comprehensive Land-Use. Plan that deleted the square foot limits on commercial buildings and allowed both wet and dry boat storage in the riverfront commercial area,, two requirements essential for Pacet-ta to proceed with the waterfront project. As it was required to do, Town submitted the Comprehensive Land-Use - Plan amendment to the State of Florida Department of Community Affairs (“DCA”) for review. The DCA thereafter provided Town with its objections, recommendations, and comments. After the plan was modified to address the DCA’s objections, it was submitted back to the town council for a second reading and for final approval of the amendment to the Comprehensive Land-Use Plan.

In the meantime, during the fall of 2008, an election for town council seats was held. The ballot also included a referendum resulting from a citizens’ initiative petition to amend the town charter so that land-use restrictions already in place would be elevated to the status of an immutable charter provision that, in this case, would effectively bar or restrict Pacetta’s effort to construct and operate dry boat storage facilities on its property. This prohibition was significant to Pacetta because the operation of a large dry stack boat storage facility on portions of its property made the entire project economically feasible. Pending the results of the referendum vote, on October 15, 2008, the Town adopted a second year-long moratorium on building.

The referendum passed by a 62-38% vote. Additionally, three citizens who were opposed to the Pacetta project were elected to the town council. The outgoing town council rejected, on its second reading, the previously acceptable amendment to the Comprehensive Land-Use Plan. Thereafter, pursuant to the aforementioned vote, Town adopted a revised plan and conforming ordinance that incorporated the charter amendment from the citizens’ initiative, effectively prohibiting Pacetta’s development project.

Pacetta sued Town to invalidate the town charter amendment and the ordinance that amended the Comprehensive Land-Use Plan to include these restrictions. Pacetta argued that the charter amendment and the conforming ordinance affected, only its singular sixteen-acre parcel, of property and, thus, violated section 163.3167(12), Florida Statutes (2008), which, at that time, prohibited local initiatives or referenda in regard to development orders or comprehensive plan amendments affecting five or fewer “parcels,” as that term is defined by section 163.3164(16). See Preserve Palm Beach Political Action Comm. v. Town of Palm Beach, 50 So.3d 1176, 1179 (Fla. 4th DCA 2010) (“Section 163.3167(12) rightfully protects the small landowner from having to submit her development plans to the general public and ensures that those plans will be approved or not, instead, by the elected officials of the municipality in a quasi-judicial process.”). The trial court granted summary judgment in favor of Pacetta, invalidating the town charter amendment and conforming ordinance because it improperly affected five or fewer parcels of property.

In Town of Ponce Inlet v. Pacetta, LLC, 63 So.3d 840 (Fla. 5th. DCA 2011) (“Pacet-ta P’), this court affirmed the final summary judgment. We first addressed whether Pacetta’s sixteen acres of land were properly considered as ten separate parcels or one parcel. Pacetta, I, 63 So.3d at 840-42. Section 163.3164(16), Florida Statutes (2008), defined a “parcel of land” as:

any quantity of land capable of being described with such definiteness that its locations and boundaries may be established, which is designated by its owner or developer as land to be used, or developed as, a unit or which has been used or developed as a unit.

Pacetta took the position that although it purchased ten separate tracts or parcels of property, its combined property constituted one unit or one parcel of land. Pacetta I, 63 So.3d at 840-41.

In affirming the summary judgment, we held that although Pacetta had purchased the various tracts of land from the prior owners, the summary judgment evidence filed clearly showed that this was a contiguous sixteen-acre parcel of land' that had been designated by Pacetta as land to be used or developed as a single unit. Id. at 841. Therefore,, we concluded that “[because the evidence was uncontroverted that the citizens’ initiative referendum affected five or fewer parcels, the trial court correctly determined that the referendum violated section 163.3167(12), and declared it invalid.” Id. at 842 (footnote omitted). As a result, the ordinance conforming the Comprehensive Land-Use Plan to the referendum was also invalidated. Id.

In May 2010, Pacetta filed the instant suit. In its operative amended complaint filed against Town, Pacetta sought compensation for an “unconstitutional ‘taking’/inverse condemnation” in violation of the United States Constitution and the Florida Constitution (count I), a denial of substantive due process and equal protection under both constitutions (count II), a denial of procedural due process under both constitutions (count III), and for statutory damages for the “inordinate burdening” of its real property by Town’s regulations pursuant to the Bert J. Harris, Jr., Private Property Rights Protection Act (“Harris Act”), as codified in section 70.001, Florida Statutes (2010) (count IV). In January 2012, the case proceeded to a non-jury trial on the issue of liability, and following twelve days of testimony and argument, the court entered the aforementioned liability order.

The trial court first determined that the four causes of action asserted by Pacetta proceeded on the single assumption that Pacetta “had a vested interest in the option or obligation to construct and operate the mixed use planned waterfront development that had been discussed and submitted in concept form to the Town.” The trial court acknowledged, and neither party disputes, that Pacetta’s proposed development was absolutely prohibited under Town’s 2003 Comprehensive Land-Use Plan and the 2004 ROD. The court related that the threshold issue that it had to decide was essentially whether Pacetta had established “a vested right in [its] favor based on the concept of equitable estoppel, to nevertheless construct and build this mixed use planned waterfront development.” Stated differently, the trial court believed the dispositive issue before it was whether Pacetta had proved that it had the vested right under the doctrine of equitable estoppel to require Town to amend its Comprehensive Land-Use Plan and the ROD to allow it to build its proposed waterfront development. As the trial court explained, the doctrine of equitable estoppel precludes a municipality from exercising its zoning power where the “property owner (1) [relying] in good faith (2) upon some act or omission of the government (3) has made such a substantial change in position or has incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the. right he acquired.” Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10, 15-16 (Fla. 1976) (quoting City of Hollywood v. Hollywood Beach Hotel Co., 283 So.2d 867, 869 (Fla. 4th DCA 1973)).

The trial court found in Pacetta’s favor, with minor exceptions, on all four counts. As to the regulatory taking/inverse condemnation claim, the court divided the sixteen acres into the ten separate parcels that Pacetta originally purchased and evaluated whether there had been a “taking” as to each individual parcel. The court found that there had been a “taking” as to parcels 1, 3, 4, and 10, but concluded that there had been no “taking” as to parcels 2, 6, 6, 7, 8, and 9. As to these latter parcels, the court found that under counts II and III, Pacetta was entitled to damages based on Town’s equal protection violation and the violation of Pacetta’s substantive and procedural due process rights. Lastly, the court found that Pacetta had clearly established that the actions of Town had inordinately burdened Pacetta’s property under the Harris Act.

Pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(viii), Town appealed that portion of the non-final liability order finding liability under the Harris Act. In Town of Ponce Inlet v. Pacetta, LLC, 120 So.3d 27 (Fla. 5th DCA 2013) (“Pacetta II”), Town argued that the trial court erred as a matter of law in finding that Pacetta had established by equitable estoppel a vested right to essentially require Town to amend its 2003 Comprehensive Land-Use Plan so that Pacetta could develop its sixteen acres consistent with the proposed 2008 amendment to the plan, which initially had been approved on first reading but was later rejected on the second reading. Pacetta II, 120 So.3d at 29.

This court reversed the liability order finding Town liable to Pacetta under the Harris Act. Id. at 29-31. We explained that

equitable estoppel can be invoked only when a property owner relies in good faith upon some government action. No such good faith reliance was established in this case. At the time Pacetta purchased its properties, [Town’s] Comprehensive Land-Use Plan expressly prohibited the type of development which Pacetta proposed for its properties. Any assurances by town officials that the Comprehensive Plan would be amended so as to authorize Pacetta’s development plans could not be relied upon in good faith by Pacetta, since town officials lacked the authority to unilaterally amend the Comprehensive Land-Use Plan. See § 168.3184(4), (15), Fla. Stat. (2009) (requiring any proposed change to Comprehensive Plans to be subject to approval by various government agencies). Recognition of a vested right based on assurances from town officials to amend the Comprehensive Land-Use Plan would' also be in violation of public policy, in light of the public hearings and other government approvals required for Comprehensive Plan amendments.

Id, at 30-31.

Upon remand from Pacetta II, Town moved the trial court to reconsider its liability order as to the remaining counts. Town argued that the trial court’s findings of liability against it on all counts were solely predicated on the court’s threshold finding that Pacetta established a vested right to build its project in violation of the 2003 plan based upon the equitable estop-pel doctrine and that, as a result of Pacet-ta II, this avenue was no longer viable. The trial court, while acknowledging that its liability order was no longer sustainable based upon the equitable estoppel theory that was now contrary to the “law of the case,” nevertheless denied the motion, concluding in an unelaborated order that its remaining findings in the liability order provided “sound support” for Pacetta, on the three remaining counts.

The jury trial on the issue of damages occurred in September 2014. At the close of Paeetta’s case-in-chief, Town moved for a directed verdict on counts II and III, arguing that Pacetta failed to produce any evidence of damages based on- the alleged due process or equal protection violations. In response, Pacetta requested that, if the court was inclined to grant the motion, it dismiss counts II and III without prejudice, rather than directing a verdict in Town’s favor. The trial court declined Pa-cetta’s request and granted Town’s motion for directed verdict on both counts without qualification. The jury thereafter returned its verdict on the “taking” count, finding the relevant fair market value of parcels 1 and 10 to be $18 million and the relevant fair market value of parcels 3 and 4 to be $1.85 million. After computing prejudgment interest, the court entered final judgment in favor of Pacetta in the amount of $30,775,248.29. As to counts II and III, the court receded from its earlier directed verdict ruling and entered an amended final judgment finding in favor of Town on Pa-cetta’s state constitution claims but keeping intact Pacetta’s federal constitutional due process and equal protection causes of action. This appeal followed.

Pacetta’s Regulatory Taking/Inverse Condemnation Claim

The Fifth Amendment to the United States Constitution prohibits the government from taking private property “for public use without just compensation.” The typical taking is accomplished through an eminent domain action, which provides for a. “direct government appropriation or physical invasion of private property.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005). Here, there has been no physical invasion of Pacetta’s property by Town. Instead, Pacetta asserted that Town’s actions resulted in an inverse condemnation of its properties, which is defined as “a cause of action by a property owner to recover the value of property that has been de facto taken by an agency having the power, of eminent domain where no formal exercise of that power has been undertaken.” Ocean Palm Golf Club P’ship v. City of Flagler Beach, 139 So.3d 463, 471 (Fla. 5th DCA 2014) (quoting Osceola Cty. v. Best Diversified, Inc., 936 So.2d 55, 59-60 (Fla. 5th DCA 2006)). A regulatory taking can be either total or partial. In a “total” or “per se” taking, the government’s regulations effectively deny all economically beneficial or productive use of the property. Id. (citing Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)). In a “partial” or “as-applied” taking under Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), the court must evaluate: “(1) the economic impact of the regulation on [the property owner]; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the .character of the governmental action.” Id. (quoting Leon Cty. v. Gluesenkamp, 873 So.2d 460, 467 (Fla. 1st DCA 2004)).

■ The first step for a court in analyzing whether there has been a taking under Lucas or Penn Central is to “define what constitutes the relevant parcel before [it] can evaluate the regulation’s effect on that parcel.” Dist. Intown Props. Ltd. P’ship v. Dist. of Columbia, 198 F.3d 874, 879 (D.C. Cir. 1999). Stated differently, the subject of the alleged taking must first be determined. Ocean Palm, 139 So.3d at 468 n.7. Town argues that the proper analysis is to treat the sixteen acres as one whole parcel. Pacetta urges that the trial court correctly treated the property as ten separate parcels, as the properties were purchased as separate and distinct lots. Based upon the doctrine of judicial estoppel, we hold that th.e trial court erred in not treating Pacet-ta’s land as one parcel.

Judicial estoppel' provides that “[o]ne who assumes a particular'position or theory in a case,” and secures 'court action thereby, “is judicially estopped in a later phase of that same case, or in another case, from asserting any ... inconsistent position toward the same parties and subject matter.” In re Adoption of D.P.P., 158 So.3d 633, 639 (Fla. 5th DCA 2014) (emphasis added) (citing Federated Mut. Implement & Hardware Ins. Co. v. Griffin, 237 So.2d 38, 41-42 (Fla. 1st DCA 1970)). As previously discussed, in Pacetta I, Pa-cetta took the position that its entire sixteen-acre property constituted one parcel of land to be developed as a single unit. Having successfully defeated the citizens’ initiative referendum in that case based upon its position that its property was one parcel or unit, Pacetta is estopped from taking the diametrically opposite position here. Additionally, in the operative complaint, Pacetta specifically alleged that-it “is seeking development of the parcels as a single parcel and is thus directly impacted by [Town’s] regulations of all the parcels.” “When a ‘developer treats several legally distinct parcels as a single economic unit, together they may constitute the relevant parcel.’ ” Lost Tree Vill. Corp. v. United States, 707 F.3d 1286, 1293 (Fed. Cir. 2013) (quoting Forest Props., Inc. v. United States, 177 F.3d 1360, 1366 (Fed. Cir. 1999)). Having determined that the subject of the- alleged taking is one parcel, we next address whether there has been a “total” or “partial” taking of this parcel of property.

“Total” Taking

In its complaint, Pacetta alleged that Town’s actions have deprived Pacetta of all “economically viable beneficial use of its property since 2004,” which, pursuant to Lucas, Pacetta must prove for a “total” regulatory taking. See 505 U.S. at 1015, 112 S.Ct. 2886. This standard applies to the relevant parcel as a whole because “ ‘[tjaking’ jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated.” Penn Cent., 438 U.S. at 130, 98 S.Ct. 2646. Here, the trial court found that six of the ten individual parcels maintained economically beneficial uses. The trial evidence established that Pacetta paid significant sums of money for these six parcels and that whatever were the permissible uses under the 2003 Comprehensive Land-Use Plan for these properties at the time of purchase remain intact. Because these six individual parcels with economic value must be considered as part of the larger parcel, we conclude that there has been no deprivation of all economically beneficial uses of the parcel, and therefore, we find that no total taking under Lucas has been established.

“Partial” Taking

In its liability order, - the trial court referred to the. criteria enunciated in Penn. Central that must be analyzed .in determining whether a “partial” regulatory taking occurred: specifically, “(1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action.” Ocean Palm, 139 So.3d at 473 (quoting Gluesenkamp, 873 So.2d at 467). As previously discussed, following Pacetta II, Town moved the trial court to reconsider its liability order because the equitable estop-pel predicate upon which recovery for each count was based, including the taking claim in count I, was determined to be inapplicable. Following a hearing, the court entered an order denying the motion. The court made no additional factual findings in its written order regarding the partial taking, determining that there were sufficient findings in its liability order to support finding in favor of Pacetta on this count.

We have carefully reviewed the transcript from the hearing on Town’s motion for reconsideration. At no point during the hearing was an analysis of the three-pronged standard for finding a “partial” taking under Penn Central ever discussed. Moreover, in its liability order, the trial court repeatedly addressed whether there had been a “total” taking, with no mention of a partial taking. Additionally, the court’s analysis focused on whether there was a total taking of each individual parcel and misapplied the Penn Central standard in determining whether there-was a partial or as-applied taking. “In an as-applied claim, the landowner challenges the regulation in the context of a concrete controversy specifically regarding the impact, of the'regulation on a particular parcel of property.” Collins v. Monroe Cty., 999 So.2d 709, 713 (Fla. 3d DCA 2008) (citing Taylor v. Vill. of N. Palm Beach, 659 So.2d 1167, 1167 (Fla. 4th DCA 1995)). In that we have now determined that the entire sixteen acres of land is to be considered as one parcel and that there is no “total” taking under Lucas, we find it necessary to reverse the liability order and to remand for a new trial on whether there has been a “partial” taking under the Penn Central criteria as applied to this one sixteen-acre parcel of land. Moreover, because the jury verdict awarding damages for the “taking” of separate parcels is premised upon the evaluation of individual parcels and the misapplication of the Penn Central standard, we reverse the second amended final judgment awarding damages.

On remand, the court shall address two other issues regarding Pacetta’s partial taking claim. First, the court must more specifically address whether the claim is ripe. “[A] takings claim challenging the application of land-use regulations is not ripe unless ‘the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.’ ” Palazzolo v. Rhode Island, 533 U.S. 606, 618, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (quoting Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985)). “A final decision by the responsible state agency informs the constitutional determination whether a regulation has ... defeated the reasonable investment-backed expectations of the landowner to the extent that a [partial] taking has occurred.” Id.

Town argues that the “partial” taking claim is not ripe because Pacetta failed to submit at least one meaningful application for developmental approval specifying its proposed uses for the property. See Taylor, 659 So.2d at 1172-74. This application provides the land-use authority, i.e. Town, the ability “to exercise its discretion in considering development plans, ‘including the opportunity to grant any variances or waivers allowed by law.’” Collins, 999 So.2d at 716 (quoting Palazzolo, 533 U.S. at 620-21, 121 S.Ct. 2448). We conclude that the trial court’s findings of fact in its liability order were unclear as to whether Pacetta had in fact submitted an application for development. Because the government “must arrive at a ‘final, definitive position’ on the ‘nature and extent’ of permitted development before a court may adjudicate the ‘constitutionality of the regulations that purport to limit it,’ ” Martin Cty. v. Section 28 P’ship, Ltd., 676 So.2d 532, 538 (Fla. 4th DCA 1996) (citations omitted) (quoting Taylor, 659 So.2d at 1173), on remand, the trial court shall make a specific factual determination as to whether Pacetta’s partial taking claim is ripe for adjudication by having submitted the requisite meaningful application.

Finally, if the court finds that Pa-cetta did not file this application for development, the trial court must also address whether the “futility” exception to the ripeness doctrine applies. Under certain circumstances, “where the governmental agency effectively concedes that any other development would be impermissible, this can negate the requirement of pursuing further administrative remedies and the governmental action is effectively treated as a final decision.” Taylor v. City of Riviera Beach, 801 So.2d 259, 263 (Fla. 4th DCA 2001) (quoting City of Riviera Beach v. Shillingburg, 659 So.2d 1174, 1181 (Fla. 4th DCA 1995)). Accordingly, the trial court on remand should determine whether Town has effectively determined that any other development of Pacetta’s property would be impermissible, thus causing any application by Pacetta for development of for an amendment to the plan to be futile.

Pacetta’s Federal Due Process/Equal Protection Claims

' Town argues that the trial court erred when it did not enter judgment on Pacetta’s due process and equal protection claims asserted under the Federal Constitution but only entered judgment in Town’s favor on Pacetta’s claims for substantive and procedural due process violations under the Florida Constitution. Town contends that Pacetta pursued both its state and federal constitutional claims in this state court action and that when Pa-cetta failed to present at trial any evidence of damages on either count, the trial court erred post-trial when it entered final judgment only on the state constitutional claims, despite having granted Town’s motion for directed verdict at trial. We agree.

In count II of its operative complaint, Pacetta alleged that the various actions of Town denied it substantive due process and equal protection in violation of article I, section 9 of "the Florida Constitution and the Fifth and Fourteenth Amendments of the United States Constitution. In count III, Pacetta asserted that the same actions of Town violated Pacetta’s rights to procedural due process under the same provision of the Florida' Constitution as well as the Fourteenth Amendment and title 42, section 1983, United States Code. Pacetta did not seek injunctive relief on either of these two counts; instead, it demanded judgment for damages and a jury trial. "When a party is challenging “a regulation, statute or land use plan as a denial of substantive or procedural due process, the focus is on whether there has been an invalid exercise’ of police power. If proven, the remedy is monetary damages.” Taylor, 659 So.2d at 1170.

Following the bench trial on liability, the court entered the now challenged liability order in which, among other things, it found in favor of Pacetta on’its constitutional claims asserted in counts II and III, but only as to parcels 2, 5, 6, 7, 8, and 9. The court specifically found that Town had violated Pacetta’s constitutional rights by: (1) colluding with citizens’ groups in creating an “illegal charter amendment”; (2) committing a “series of illegal acts,”, including the “illegal referendum and amendment of the Town charter to interfere with Pacetta” and “other conduct” involving only the Pacetta property; and (3) “refusing to accept applications for building projects since 2004.”. The court concluded this portion of the liability order by stating that damages, if any, on these two counts would be determined by a jury.

At the jury trial, at the conclusion of Pacetta’s case-in-chief, Town moved for an unqualified directed verdict on both counts. The trial court inquired of Pacet-ta’s counsel why the motion should not be granted when there was no evidence presented as to any separate or independent damages for either count. Counsel responded that the court could grant Town’s motion but requested that the court do, so as a “dismiss[al-]” “without prejudice,” rather than a directed verdict, to preserve Pacetta’s ability to proceed in. an action “unrelated to what’s going on [in the present trial].” The court granted Town’s motion without any of the qualifications sought by Pacetta.

Pacetta then argued post-trial that the trial court could not. adjudicate its federal constitutional claims because it reserved its right to assert its federal constitutional claims in federal court, with the following allegation in its complaint:

-Reservation of Federal Rights
89. Pacetta, by pursuing the claims herein in the State of Florida court, reserves its right to the disposition of the entire case by the state court, and preserves its access to a federal forum to assert its federal constitutional rights.

This pleading- is typically referred to as an “England reservation.” See England v. La. State Bd. of Med. Exam’rs, 375 U.S. 411, 421-22, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964) (holding that a party may inform the state courts-that he or she is exposing the federal claims there only .for the purpose of complying with Government and Civic Employees Organizing Committee, CIO v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894 (1957), and that he or she intends, should the state courts hold against him or her on the question of state law, to return 'to the district court for disposition of his or her federal contentions). Nevertheless, this reservation is not absolute and is dependent upon the party making the reservation and not thereafter asking the state court to resolve the federal issue or issues that had previously .been reserved. San Remo Hotel, L.P. v. City & Cty. of San Francisco, Cal., 545 U.S. 323, 344-46, 125 S.Ct. 2491, 162 L.Ed.2d 315 (2005).

Here, Pacetta pursued both its state and federal due process claims and its federal equal protection, claim and received an unqualified finding in its favor in the liability order on both counts, with the court specifically stating that the issue of damages on the claims would be determined by, the jury. At the hearing held during trial on Town’s motion for directed verdict, Pacet-ta’s counsel did not argue that it had established monetary damages on either count and notably made no argument that a directed verdict should not be entered on its federal due process and equal protection constitutional claims based on its “England reservation.” Under these circumstances, the failure of such proof of damages requires the granting of .a directed verdict on all claims asserted in both counts. Morgan Stanley & Co. v. Coleman (Parent) Holdings Inc., 955 So.2d 1124, 1131 (Fla. 4th DCA 2007).

We recognize, as agreed by both parties in their briefs, that the federal court will make its own determination on whether Pacetta effectively preserved its right to pursue its federal due process and equal protections claims in federal court. Nevertheless, we conclude that the trial court erred in not entering final judgment in favor of Town on the federal constitutional claims asserted by Pacetta in counts II and III. On remand, the trial court is directed to enter an amended final judgment, in favor of Town on those two counts, unqualified and not restricted to Pacetta’s state law claims, consistent with this opinion.

Accordingly, for'the reasons expressed herein, we reverse the liability order and the final judgment for damages in favor of Pacetta. We remand this case for a new trial on liability and, if thereafter appropriate, damages on count I, limited to determining whether a “partial” or “as-applied” taking has occurred in reference to the single relevant parcel, including the preliminary determination of whether such a claim is ripe in this case pursuant to Pacet-ta’s sufficient application for development or the applicability of the “futility” exception. We also remand for the entry of an amended final judgment in favor of Town on counts II and III.

REVERSED and REMANDED, with directions.

SAWAYA and EVANDER, JJ., concur,

      . At the time, there was a two-stage process for amending a Comprehensive Land-Use Plan under chapter 163, Florida Statutes. Martin Cty. v. Yusem, 690 So.2d 1288, 1294 (Fla. 1997). First, the local government determines whether to transmit the proposed amendment for further review. Id. (citing § 163.3184(3), Fla. Stat. (1989)). If transmitted to the DCA, the DCA, after receiving' the -amendment, provides the local government with its objections, recommendations for modifications, and comments from any other regional agencies. Id. (citing § 163.3184(4), Fla, Stat. (1989)). The local government then has three options: (1) adopt the amendment; (2) adopt the amendment with changes; or (3) not adopt the amendment. Id. (citing § 163,3184(7), Fla. Stat. (1989)). Amendments to comprehensive plans are legislative policy decisions, Id. at 1293-94.

      . Pacetta’s equal protection claim under state law was dismissed prior to trial and is not contested in this appeal.

      . The jury's determination of the parcels’ fair market values was based upon the fair market values as of January 17, 2007, the date on which the trial court found that the taking had occurred.

      . The Federal Takings Clause applies to the states through the Fourteenth Amendment. St. Johns River Water Mgmt. Dist. v. Koontz, 77 So.3d 1220, 1226 (Fla. 2011), rev’d on other grounds, — U.S. -, 133 S.Ct. 2586, 186 L.Ed.2d 697 (2013); see also Art. X, § 6(a), Fla. Const.

      . There is also a fourth type of "taking,” referred to as a "land-use exaction” taking, that, is not applicable here. See Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994); Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987).

      . The trial judge who presided over the liability trial, received all of the evidence during that twelve-day trial, and entered the liability order also subsequently granted a motion to disqualify himself in April 2014, which was after he denied Town's motion to reconsider the liability order upon remand from Pacetta II but before the jury trial on damages (which was consequently held before Judge Perkins). Therefore, because the first judge is not available to enter an amended liability order based upon his recollection of the evidence and the law of the case provided in this opinion, a new trial on the single claim that a "partial” taking has occurred is necessaiy.

      . The trial court found in favor of Town on these two counts regarding Pacetta's allegations in its complaint that Town had violated Pacetta's due process and equal protection rights by "creating an ROD that impacted only Pacetta properties and by using serial building moratoria to deprive Pacetta of its investment-backed expectations.”

      . Based on our ruling, we decline to address any issues raised by Town regarding the jury trial on damages.


text:
    Julio A. JIMINEZ, Petitioner, v. UNITED PARCEL SERVICE and Liberty Mutual, Respondents.
    CASE NO. 1D16-4959
    District Court of Appeal of Florida, First District.
    Opinion filed June 19, 2017
    Mark L. Zientz of the Law Offices of Mark L. Zientz, P.A., Miami, for Petitioner.
    Raoul G. Cantero, David P. Draigh, and Quinshawna S. Landon of White & Case LLP, Miami; Matthew J. Lavisky and David B. Krouk of Butler Weihmuller Katz Craig LLP, Tampa; Brian S. Bartley of The Chartwell Law Offices, LLP, Fort Myers, for Respondents.
   PER CURIAM.

In this workers’ compensation case, Petitioner filed a petition for certiorari review of an order of the Judge of Compensation Claims (JCC) which dismissed his Petition for Benefits (PFB) for lack of jurisdiction. In that PFB, Petitioner challenged as unconstitutional the statutory cap on the weekly compensation rate set out in subsection 440.12(2), Florida Statutes (2014). Petitioner argues that the order dismissing his PFB, without affording him the opportunity to create a record for review in this court, resulted in irreparable harm and departed from the essential requirements of law. We agree. See Russ v. Brooksville Health Care Ctr., 109 So.3d 1266, 1268 (Fla. 1st DCA 2013) (concluding, where claimant raised constitutional challenge, “JCC departed from the essential requirements of law, and caused irreparable harm by denying Claimant’s motion for an evidentiary hearing”).

The Petition is GRANTED, and the order dismissing the PFB is QUASHED,

ROBERTS, C.J., WINOKUR, and M.K. THOMAS, JJ., CONCUR.