author: BURKE, Judge. JOINER, Judge,

text:
    James Lynn CANYON v. STATE of Alabama.
    CR-15-0607.
    Court of Criminal Appeals of Alabama.
    July 8, 2016.
    James Lynn Canyon, pro se.
    Luther Strange, atty. gen., and John J. Davis, asst. atty. gen., for appellee.
   BURKE, Judge.

James Lynn Canyon appeals the circuit court’s summary dismissal of his Rule 32, Ala. R.Crim. P., petition for postconviction relief, challenging his January 22, 2001, guilty-plea convictions of third-degree burglary, first-degree theft of property, second-degree theft of property, and the possession of a forged instrument and the resulting 20-year sentences, to be served concurrently. His filing fee was waived. Canyon did not directly appeal his convictions and sentences.

Canyon states that he mailed this, his first, Rule 32 petition on May 15, 2015. As his ground for relief, Canyon argued that the circuit court lacked jurisdiction to accept his guilty plea because, he argued, his constitutional right to be protected from double jeopardy was violated. Canyon contended that his charges and convictions of first-degree theft of property and second-degree theft of property arose from the same acts, facts, and circumstances. Specifically, he alleged that the thefts were of various property taken from the same victim during the same burglary. Canyon further argued that he was improperly convicted of the offense of first-degree theft of property and the lesser-included offense of second-degree theft of property.

The State filed a motion to dismiss, arguing that Canyon committed four separate offenses and that, therefore his claim lacked merit; the State argued that the pistol taken from the victim’s house was the basis for the second-degree-theft-of-property conviction and the other items, including knives, a video-cassette recorder, and a microwave, taken from the victim’s home were the basis for the first-degree-theft-of-property charge. The State argued that the offenses were not lesser-included offenses and that the claim was not a jurisdictional one. The State also argued that Canyon’s claim was precluded because it could have been, but was not, raised at trial or on appeal, Rule 32.2(a)(3) and (a)(5), Ala. R.Crim. P., and that his petition was time-barred pursuant to Rule 32.2(c), Ala. R.Crim. P.

Thereafter, the circuit court issued an order finding that Canyon’s claim lacked merit, that it was precluded by Rule 32.2(a)(3) and (5), and that it was time-barred by Rule 32.2(c).

On appeal, Canyon argues that his petition should not have been summarily dismissed because, he argues, the circuit court lacked jurisdiction over his case in that his right to be free from double jeopardy was violated when he was convicted of theft of property in the first degree and theft of property in the second degree as a result of the same burglary.

“ ‘[JJurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu. Horn v. Dunn Brothers, Inc., 262 Ala. 404, 79 So.2d 11 (1955).’ Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987).” Ex parte Kelley, [Ms. 1131451, November 6, 2015] — So.3d -, - (Ala.2015). “Because this issue is jurisdictional in nature, we can review it at any time. See Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987).” Pender v. State 740 So.2d 482, 484 (Ala.Crim.App.1999).

“[T]his double jeopardy claim goes to the jurisdiction of the trial court to render judgment. In Ex parte McKelvey, 630 So.2d 56 (Ala.1992), the Alabama Supreme Court examined the double jeopardy issue whether the imposition of separate sentences for convictions arising from the same act was improper under the ground specified in Rule 32.1(b): ‘The court was without jurisdiction to render judgment or to impose sentence.’ It stands to reason that if the double sentencing issue is cognizable, then a double conviction issue is cognizable. See also Salter v. State, 606 So.2d 209 (Ala.Cr.App.1992) (the appellant’s failure to raise on direct appeal the claim that he was guilty of only one offense of possession instead of the two offenses for which he was convicted, arguing that his possession of the two controlled substances was simultaneous, did not bar consideration of that issue in a Rule 32 proceeding because that issue presents a jurisdictional claim, not barred by the expiration of the Rule 32 limitations period because it falls within Rule 32.1(c), that is, ‘[t]he sentence imposed exceeds the maximum authorized by law or is otherwise not authorized by law1). Accordingly, we find that Rolling’s double jeopardy/jurisdictional issue is not precluded by operation of the limitations period.”

Rolling v. State, 673 So.2d 812, 816 (Ala.Crim.App.1995) (footnote omitted)(Rolling was convicted of the felony murder and reckless manslaughter of the same victim and was sentenced to concurrent terms of life imprisonment and 10 years’ imprisonment, respectively, and was granted relief on Rule 32 petition.). In Salter v. State, 606 So.2d 209 (Ala.Crim.App.1992), this Court determined that Salter could raise in a Rule 32 petition his double-jeopardy claim although he had pleaded guilty because, as a jurisdictional matter, he could not be convicted twice of possession of controlled substances for possessing two different types of narcotics in a single point of control at a single time at a single place. See also Pardue v. State, 571 So.2d 320, 329-30 (Ala.Crim.App.1989), rev’d on other grounds, 571 So.2d 333 (Ala.1990) (Pardue was improperly convicted of first- and second-degree theft of property where the convictions were based on a single theft of the same property stolen from the same victim in the same burglary).

We note that there was no impropriety as to Canyon’s burglary conviction and one of the theft-of-property convictions. Because the circuit court imposed concurrent sentences of 20 years’ imprisonment for Canyon’s burglary conviction and his theft conviction, there was no double-jeopardy error.

“[T]he appellate courts of this state have consistently held that where a defendant is charged with both burglary and; theft (or larceny) arising from a transaction that is the foundation for both charges, the defendant may receive only one punishment. Vason v. State, 574 So.2d 860, 863 (Ala.Crim.App.1990) (holding that although the defendant could receive only one sentence for two offenses arising out of the same transaction, the defendant was properly convicted of both burglary and theft that arose from the same transaction); Ex parte Harmon, 543 So.2d 716, 717 (Ala.1988) (in which this Court, reversed- the Court of Criminal Appeals’ holding that the defendant had not preserved for, review the issue of his consecutive sentences'for convictions of burglary and theft, and remanded the case to the Court of. Criminal Appeals ‘to determine whether [the defendant] was in fact subject to the imposition of separate sentences’); Gray v. State, 338 So.2d 444 (Ala.Cr.App.), cert. denied, 338 So.2d 445 (Ala.1976); Wade v. State, 42 Ala.App. 400, 401, 166 So.2d 739 (1964) (the Court of Appeals held that ‘where the same transaction supports both grand larceny [now theft] and burglary, on conviction there can be but one punishment’); Wildman v. State, 42 Ala.App. 357, 165 So.2d 396 (1963), writ denied, 276 Ala. 708, 165 So.2d 403 (1964) (the Adabama Court of Appeals held that ‘[g]rand larceny and burglary are of the same kindred of crimes,’ and that ‘[w]here the identical transaction is the foundation, a verdict of guilt of one excludes a like finding of the other’; modified on rehearing to hold that the statutory prohibition .against double punishment does not'forbid convictions for both charges and does not forbid concurrent sentences— only double punishment).”

Ex parte McKelvey, 630 So.2d 56, 57-58 (Ala.1992)(footnote omitted). See also Brown v. State, 821 So.2d 219, 225 (Ala.Crim.App.2000)(“A court may sentence a defendant for burglary and theft if the sentences are made concurrent, rather than consecutive.”).

There was no dispute as - to the facts supporting this claim. All of the items were taken from the same victim at the same time. The State argued that, because the pistol taken from the victim during the burglary was the basis for the second-degree-theft-of-property charge, while the other “specifically stated items” were the basis for the first-degree-theft-of-property charge, there was no double-jeopardy violation. (C. 52.) The circuit court then determined that Canyon’s claim lacked merit and that it was precluded. Because Canyon’s convictions of theft of property in the first degree and theft of property in the second degree violated double-jeopardy principles, we are reversing the circuit court’s judgment and remanding this case to the circuit court to vacate one of those convictions and the accompanying sentence and enter a new judgment. Due return shall be made to this Court within 28 days of this decision.

REVERSED AND REMANDED WITH INSTRUCTIONS

WELCH and KELLUM, JJ., concur.

JOINER, J., dissents, with opinion,

WINDOM, P.J., joins in dissent.

JOINER, Judge,

dissenting.

This Court’s decision ostensibly granting James Lynn Canyon’s Rule 32, Ala. R.Crim. P., petition for postconviction relief and remanding this case to the circuit court for that court to “vacate one of [his theft-of-property] convictions and the accompanying sentence” 218 So.3d at 874, is, at this juncture, premature.

Here, as the main opinion explains, Canyon’s Rule 32, Ala.Crim. P., petition was deemed filed on May 15, 2015; it challenged his January 22, 2001, guilty-plea convictions for third-degree burglary, see § 13A-7-7, Ala.Code 1975, first-degree theft of property, see § 13A-8-3, Ala.Code 1975, second-degree theft of property, see § 13A-8-4, Ala.Code 1975, and possession of a forged instrument, see § 13A-9-6, Ala.Code 1975, and his resulting concurrent sentences, as a habitual felony offender, of 20 years’ imprisonment.

In his petition, Canyon alleged that the circuit court “committed a violation of double jeopardy standards” when it “accepted an illegal guilty plea where [first-degree theft of property] and [second-degree theft of property] are of the same criminal offense.” (C. 22.) According to Canyon:

“On or about [April 11, 2000,] sometime between 10:00 p.m. [and] 1:00 a.m. I went to Mr. [Charles] Cash[’s] house and broke in and stole a set of collector’s knifes [sic], a [video-cassette recorder], a check, some gun holsters, a weed eater, a microwave, a .357 pistol, some rods [and] reels, tackle box, and some boxes of ammunition, and a pillowcase. I broke in through the front door and started to look around. I took the items listed above and put them in the car. That was parked in the carport.... I was in the house for about 15 or 20 minutes.
“I accepted a plea deal by conditions of all charges in the indictment. I was only offered this deal upon taking all charges at once combined in the plea agreement. I signed the plea deal with the understanding as explained by counsel ... and then the court accepted the plea deal, and we talked back [and] forth, the judge and I with counsel. I was then sentenced to (20) years on each count to be run concurrent with each other.”

(C. 34-35.) To support his allegation that his first-degree and second-degree-theft-of-property convictions arose from the same event, Canyon attached to his petition a copy of the four-count indictment charging him.

On November 23, 2015, the State filed a motion to dismiss. In its motion to dismiss, the State refuted Canyon’s allegation that the two theft offenses arose out of the same event. Specifically, the State alleged:

“As to each of the grounds cited by [Canyon] in his Petition claiming a conviction obtained by a violation of the protection against double jeopardy and lack of jurisdiction by the court to render judgment or impose sentence, both of said grounds, separately and severally, are without any basis in law or in fact due to the fact that [Canyon] committed, and entered pleas of guilty to, four separate substantive offenses, namely, Burglary 3rd Degree, Theft 1st Degree of specifically stated items, Theft 2nd Degree of a pistol, and Possession of a Forged Instrument, 2nd Degree. Pleas of guilty to each of the aforestated offenses are not mutually exclusive, nor are they alternative avernemnts [sic] or charges. Rather, each offense stands on its own and is not part of any of the others. As a result thereof, such fail to provide a basis upon which to grant any relief to [Canyon].”

(C. 52 (emphasis added).) Additionally, the State alleged that Canyon’s claim was precluded under Rule 32.2(a)(3) and (5), Ala. R.Crim. P., and was time-barred under Rule 32.2(c), Ala. R.Crim. P.

On February 16, 2016, the circuit court issued an order summarily dismissing Canyon’s petition under Rule 32.7(d), Ala. R.Crim. P., finding, in part:

“IT APPEARING TO THE COURT that, as to each of the grounds cited by [Canyon] in his Petition wherein he claims a conviction obtained by a violation of the protection against double jeopardy as well as a lack of jurisdiction by the Court to render judgment or impose sentence, each of said grounds, separately and severally, [is] found by this Court to be without any basis in law or in fact, inasmuch as [Canyon] was charged with, and entered pleas of guilty to, four separate substantive offenses, to-wit: Burglary 3rd Degree, Theft 1st Degree of certain specified items, Theft 2nd Degree of a firearm, and Possession of a Forged Instrument, 2nd Degree, each of which charges stands on its own and is not a part of any of the other charges to which [Canyon] entered a plea of guilty; and, as a result thereof, such fail to provide any basis upon which to grant any relief to [Canyon].”

(C. 56-57.) Thereafter, Canyon filed a timely notice of appeal.

“On appeal, Canyon argues that his petition should not have been summarily dismissed because, he argues, the circuit court lacked jurisdiction over his case in that his right to be free from double jeopardy was violated when he was convicted of theft of property in the first degree and theft of property in the second degree as a result of the same burglary.”

218 So.3d at 872 (emphasis added). I agree.

As set out above, Canyon alleged in his Rule 32 petition that his guilty-plea convictions for both first-degree and second-degree theft of property violated double-jeopardy principles because, he said, both offenses arose from one event.

Canyon’s claim, as set out in his petition, is jurisdictional, sufficiently pleaded, and, if true, entitles him to relief. Indeed, this Court has explained:

“This claim is jurisdictional; therefore, it is not precluded by any of the provisions in Rule 32.2. See Ex parte Benefield, 932 So.2d 92 (Ala.2005); Ex parte Robey, 920 So.2d 1069 (Ala.2004); and Young v. State, 892 So.2d 988 (Ala.Crim.App.2004).
; “It, is well settled that ‘[a] single crime cannot be divided into two or more offenses and thereby subject the perpetrator to multiple convictions for the same offense.’ Ex parte Darby, 516 So.2d 786, 787 (Ala.1987). With respect to theft of property, this Court has held that ‘[t]he State cannot convert a single theft of various items of property stolen from the same victim in the same [transaction] into separate offenses by alleging .the theft of different items in separate counts of the indictment.’ Pardue v. State, 571 So.2d 320, 330 (Ala.Crim.App.1989), rev’d on other grounds, 571 So.2d 333 (Ala.1990).”

Lynch v. State, [Ms. CR-14-1582, June 3, 2016] — So.3d -, -(Ala.Crim.App.2016).

Simply because Canyon has sufficiently pleaded a claim that is jurisdictional and, if true, entitles him to relief,, however, does not mean that this Court should, on appeal from the summary dismissal of that claim, grant him his requested Rule 32 relief without requiring him to prove that claim at an evidentiary hearing.

I recognize, of course, that such an approach has, on occasion, been used by both this Court and the Alabama Supreme Court to relieve a petitioner of his burden of proof in a Rule 32 proceeding. See, e.g., Williams v. State, 104 So.3d 254, 265-66 n. 5 (Ala.Crim.App,2012), and the cases cited therein. This approach, however, is used only when the facts underlying the claim are not in dispute and the petitioner would be wasting scarce judicial resources by presenting evidence “that has already been presented to a jury and that is already before this Court by way of judicial notice.” Id. For example, in Lynch, this Court noted:

“ ‘[I]t is unnecessary to remand this case to- allow [Lynch] an opportunity to prove [his] double-jeopardy claim because the facts warranting relief on that claim are not in dispute.... [0]ur holding is not based on [Lynch’s] mere allegations in [his] petition, but on the undisputed evidence present at [Lynch’s] trial, of which this Court has taken judicial notice .... Therefore, as both this Court and the Alabama Supreme Court have done numerous times in the past when the record is clear on its facts that'a Rule 32 petitioner is entitled to relief, we grant that relief, rather than waste scarce judicial resources to remand for [Lynch] to present evidence that has already been presented to a jury and that is already before this Court by way of judicial notice.’
“Williams [v. State], 104 So.3d [254] at 265-66 n. 5 [ (Ala.Crim.App.2012) ].”

Lynch, — So.3d at -n. 3.

Here, unlike in other instances in which this Court has absolved á petitioner of his burden of proof in a Rule 32 proceeding, there is no record on direct appeal of which this Court may take judicial notice and the facts underlying Canyon’s double-jeopardy claim are disputed by the State.

This Court, by granting Canyon’s request for postconviction relief solely on the allegations raised in his petition, absolves Canyon of his burden to prove that claim by a preponderance of the evidence. See Rule 32.3, Ala. R.Crim. P. (“The petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.” (emphasis added)). Here,

“[t]he circuit court summarily dismissed [Canyon’s] Rule 32, Ala. R.Crim. P., petition on the pleadings. Rule 32.3, Ala. R.Crim. P., provides that ‘[t]he petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.’ Because the circuit court summarily dismissed [Canyon’s] petition on the pleadings, [Canyon] has not had the opportunity to present evidence and has not met [his] burden of ‘proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.’ In other words, although the ‘assertions set forth in the majority’s opinion, if true, [may] entitle [Canyon] to [relief], ... they are merely allegations.’ Patrick[ v. State ], 91 So.3d [756] at 756 [(Ala.Crim.App.2011)] (Welch, J., dissenting).
“Because [Canyon’s] cause is before this Court to review the circuit court’s action on [his] pleadings ..,, I do not believe that it is appropriate for this Court to order the circuit court to vacate one of [Canyon’s] convictions. In other words, this Court should not summarily grant relief based on a Rule 32 petitioner’s pleadings. Instead, this Court should apply Rule 32.2, Ala. R.Crim. P., and remand the cause to the circuit court with instructions for it hold an evidentiary hearing or accept evidentia-ry submissions, thus providing [Canyon] with an opportunity to present evidence in an attempt to prove [his] claim. Rule 32.9, Ala. R.Crim. P.”

Williams, 104 So.3d at 266-67 (Windom, P.J., dissenting). Therefore, I respectfully dissent.

WINDOM, P.J., concurs.

       Note from the reporter of decisions: On September 2, 2016, on return to remand, the Court of Criminal Appeals affirmed, without opinion,

      . As the main opinion notes, Canyon did not file a direct appeal of his conviction and sentence.

      . The main opinion, in its procedural history ' óf this case, indicates that "the State argued that1 the pistol taken from the victim’s house ■was the basis for the second-degree-theft-of-property conviction and the other items ... taken, from the victim’s home were the basis for the first-degree-theft-of-property charge,”. 218 So.3d at 872, This statement implies that 'the State concedes the facts underlying Canyon’s double-jeopardy claim. I can find no such concession in the record on appeal. Indeed, as I have quoted above, the State, in its motion to dismiss, alleged that each offense was separate. Moreover, although Canyon attached a copy of his four-count indictment to his petition, that indictment does not indicate that the two theft offenses arose out of the same act. The indictment certainly does not indicate that the pistol and the other items taken by Canyon were taken from the victim’s house. At most, the indictment demonstrates that the victim owned all the property that was taken by Canyon.


source: Caselaw Access Project

author: QUINCE, J. PARIENTE, J.,

license: Public Domain

text:
    Carlos J. ACEVEDO, Petitioner, v. STATE of Florida, Respondent.
    No. SC15-1873
    Supreme Court of Florida.
    [May 18, 2017]
    Peter D. Webster, Christine Davis Graves, and James Parker-Flynn of Carlton Fields, Tallahassee, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Celia Terenzio, Bureau Chief, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, Florida, for Respondent
   QUINCE, J.

This case is before the Court for review of the decision of the Fourth District Court of Appeal in Acevedo v. State, 174 So.3d 437 (Fla. 4th DCA 2015). The district court certified that its decision is in direct conflict with the decision of the Fifth District Court of Appeal in Durant v. State, 94 So.3d 669 (Fla. 5th DCA 2012). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we approve the decision of the Fourth District Court of Appeal and disapprove of the decision of the Fifth District Court of Appeal to the extent that it is inconsistent with this opinion.

STATEMENT OF THE CASE AND FACTS

Carlos Acevedo was convicted of lewd and lascivious battery, three counts of lewd and lascivious molestation, and lewd and lascivious conduct. The trial court found him to be a sexual predator and sentenced him to life in prison on each count, to run concurrently. The trial court declared him to be a dangerous sexual felony offender (DSFO), pursuant to section 794.0115(2), Florida Statutes, and imposed a mandatory minimum twenty-five-year sentence. Acevedo, 174 So.3d at 437. Acevedo’s sentence was affirmed on direct appeal and, after the denial of his 3.850 motion, Acevedo filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(a), arguing that the predicate conviction used was insufficient to qualify him as a DSFO. Id. Specifically, Acevedo argued that the prior conviction under section 800.04, Florida Statutes (1981), did not contain elements similar to section 800.04(4), Florida Statutes (2005), or section 800.04(5), Florida Statutes. The Fourth District Court of Appeal disagreed and certified conflict with the Fifth District’s decision in Durant. Id. at 439. This review follows.

DISCUSSION

The issue before this Court is whether, under the Dangerous Sexual Felony Offender Act, section 794.0115(2)(e), Florida Statutes (2005), a conviction for an offense under section 800.04, Florida Statutes (1981), constitutes a “similar offense under a former designation” to those offenses enumerated in the Act. Because we find that a “similar offense” for the purposes of the Act need not be an identical offense, we approve the Fourth District’s decision below.

Because this is an issue of statutory interpretation, this Court’s review is de novo. Plott v. State, 148 So.3d 90, 93 (Fla.2014).

The DSFO Act provides:
Any person who is convicted of a violation of section 787.025; section 794.011(2), (3), (4), (5), or (8); section 800.04(4) or (5); section 825.1025(2) or (3); section 827.071(2), (3), or (4); or section 847.0145; or of any similar offense under a former designation, which offense the person committed when he or she was 18 years of age or older, and the person: ...
Has been previously convicted of a violation of section 787.025; section 794.011(2), (3), (4), (5), or (8); section 800.04(4) or (5); section 825,1025(2) or (3); section 827.071(2), (3), or (4); section 847.0145; of any offense under a former statutory designation which is similar in elements to an offense described in this paragraph; or of any offense that is a felony in another jurisdiction, or would be a felony if that offense were committed in this state, and which is similar in elements to an offense described in this paragraph,
is a dangerous sexual felony offender, who must be sentenced to a mandatory minimum term of 25 years imprisonment up to, and including, life imprisonment.

§ 794.0115(2)(e), Fla. Stat. (2005). In short, the DSFO Act states that anyone previously convicted of one of the enumerated felonies or “of any offense under a former statutory designation which is similar in elements to an offense described in this paragraph” is a dangerous sexual felony offender. In 2005, those enumerated felonies were:

• Luring or enticing a child, section 787.025, Florida Statutes (2005);
• Sexual battery, section 794.011, Florida Statutes (2005);
• Lewd or lascivious battery or molestation committed upon or in the presence of persons less than 16 years of age, section 800.04(4) and (5), Florida Statutes (2005);
• Lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled person, section 825.1025, Florida Statutes (2005);
• Sexual performance by a child, section 827.071, Florida Statutes (2005); and
• Selling or buying of minors, section 847.0145, Florida Statutes (2005).

In 1982, Acevedo was convicted of violating section 800.04, Florida Statutes (1981). In 1981, section 800.04, Florida Statutes, provided:

Any person who shall handle, fondle, or make an assault upon any child under the age of 14 years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lascivious act in the presence of such child, without the intent to commit sexual battery shall be guilty of a felony of the second degree ....

§ 800.04, Fla. Stat. (1981). The 1981 statute therefore prohibited molestation of, assault of, or lewd or lascivious conduct in the presence of a minor.

In 2005, section 800.04, Florida Statutes, provided the following:

(4)Lewd or lascivious battery.—A person who:
(a) Engages in sexual activity with a person 12 years of age or older but less than 16 years of age; or
(b) Encourages, forces, or entices any person less than 16 years of age to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any other act involving sexual activity commits lewd or lascivious battery, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(5) Lewd or lascivious molestation.—
(a) A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.
(b) An offender 18 years of age or older who commits lewd or lascivious molestation against a victim less than 12 years of age commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(c)l. An offender less than 18 years of age who commits lewd or lascivious molestation against a victim less than 12 years of age; or
2. An offender 18 years of age or older who commits lewd or lascivious molestation against a victim 12 years of age or older but less than 16 years of age
commits a felony of the second degree, punishable as provided in s. 775.082(3)(a)4.
(d) An offender less than 18 years of age who commits lewd or lascivious molestation against a victim 12 years of age or older but less than 16 years of age commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(6) Lewd or lascivious conduct.—
(a) A person who:
1. Intentionally touches a person under 16 years of age in a lewd or lascivious manner; or
2. Solicits a person under 16 years of age to commit a lewd or lascivious act commits lewd or lascivious conduct.
(b) An offender 18 years of age or older who commits lewd or lascivious conduct commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(c) An offender less than 18 years of age who commits lewd or lascivious conduct commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 800.04(4)—(6), Fla. Stat. (2005). The provisions of the 2005 version of the statute that are enumerated in the DSFO Act therefore prohibited both lewd and lascivious battery and lewd or lascivious molestation of a minor.

Acevedo argues that because the 1981 statute includes “without the intent to commit sexual battery” it cannot be found similar to the offenses defined in section 800.04, subsections (4) or (5), Florida Statutes (2005). We, like the Fourth District, are not persuaded by this argument.

Determining whether Acevedo met the requirements under the Act, the Fourth District Court of Appeal opined that the Act “requires similar elements, not identical elements.” Acevedo, 174 So.3d at 438. We agree. As the Fourth District noted, “[b]oth statutes proscribe the lewd and lascivious touching of a child[,] ... require the victim to be under a certain similar age [and] are second degree felonies.” Id.

In Durant, the Fifth District determined that section 800.04(1), Florida Statutes (1995) was not similar to section 800.04(4)—(5), Florida Statutes, for the purposes of DSFO designation pursuant to section 794.0115(2)(e), Florida Statutes. Durant, 94 So.3d at 671. Specifically, the Fifth District stated:

[W]e do not believe that the 1995 version of section 800.04(1) is similar in elements to sections 800.04(4) and (5).'In particular, section 800.04(4) requires evidence of sexual activity^ whereas there is no sexual activity requirement contained in section 800.04(1), Florida Statutes (1995). Likewise, section 800.04(5) requires evidence that the perpetrator intentionally touched “the breasts, genitals, genital area, or buttocks, or .the clothing covering them” of the minor. Section 800.04(1), Florida Statutes (1995), contains no such requirement. Although section 800.04(5) and the 1995 version of section 800.04(1) contain other elements that are the same, we conclude they do not have similar elements for purposes of section 794.0115(2)(e). 1

Id. (footnote omitted). The district court continued, “Further, section 800,04(1), Florida Statutes (1995), shares similar elements with section 800.04(6), Florida Statutes [ (2012] ),[] which is not a qualifying felony in the DSFO statute.” Id. (citing § 794.0115(2)(e), Fla. Stat.; Abrams v. State, 971 So.2d 1033, 1037 (Fla. 4th DCA 2008)). While we agree with the Fifth District that subsection (6) is closer to the 1981 statute, we disagree that the DSFO Act requires the courts to find the most similar statute to determine whether a pri- or offense is a qualifying felony.

Acevedo argues that the Fourth District incorrectly looked only to the similarities between his prior conviction under section-800.04, Florida Statutes (1981), and his current conviction pursuant to section 800.04, Florida Statutes (2005). He therefore asserts that this Court must decide the appropriate test for determining when a prior statute is similar in elements to an offense identified in section 794.0115, Florida Statutes. Acevedo further argues that his prior conviction under section 800.04, Florida Statutes (1981), does not contain similar elements to section 800.04(4) or (5), Florida Statutes (2005). We disagree.

The conduct prohibited in the 1981 version of section 800.04 is nearly identical to that prohibited in subsection (5) of the 2005 version of the statute. Compare § 800.04, Fla. Stat. (1981) (“Any person who shall handle, fondle, or make an assault upon any child under the age of 14 years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lascivious act in the presence of such child, without the intent to commit sexual battery shall be guilty of a felony of the second degree ....”) with § 800.04(5)(a)-(b), Fla. Stat. (2005) (“A person who: [i]ntentionally touches a person under 16 years of age in a lewd or lascivious manner; or ... solicits a person under 16 years of age to commit a lewd or lascivious act commits lewd or lascivious conduct [and] commits a felony of the second degree.”). There are very few differences between the 1981 statute and subsection (5) of the 2005 statute:

800.04(1981) 800.04(5) (2005) handles, fondles, assaults intentionally touches in a lewd, lascivious, or indecent manner in a lewd or lascivious manner the • breasts, • genitals, OR • genital area, • buttocks, or • clothing covering those areas commits any lewd or lascivious act in the presence of a child under age 14 of a child under age 16 without the intent to commit sexual battery

As demonstrated by the chart, the elements of the 1981 version of 800.04 and subsection (5) of the 2005 statute are remarkably similar. There are few dissimilarities. First, the 2005 version lists specific areas of the body. Second, the 2005 statute removes the language referring to committing a lewd act in the presence of a child, which was moved to subsection (7) of the statute. Third, the statutes protect children of similar ages, but differ on children between the ages of fourteen and fifteen. The 2005 statute protects all children under the age of sixteen, whereas the 1981 statute limits its application to children under the age of fourteen. Last, the 1981 statute excludes conduct committed with intent to commit sexual battery.

It is difficult to imagine an offense that would meet all the criteria of the 1981 statute but fail to meet the criteria of the 2005 statute. To “handle, fondle, or assault, in a lewd, lascivious, or indecent manner” necessarily requires an intentional touching that is sexual in nature. However, the DSFO Act does not preclude this Court’s consideration of even that imaginary act because the statute requires only that the previous offense be similar, not identical. Because any offense that would have qualified for a conviction under the 1981 statute would necessarily have characteristics in common with an offense proscribed by the 2005 statute, the Fourth District did not err in affirming Acevedo’s designation as a DSFO offender.

We therefore approve the Fourth District’s decision and disapprove of the Fifth District’s opinion to the extent that it is inconsistent with this opinion.

It is so ordered.

LABARGA, C.J., and LEWIS, CANADY, POLSTON, and LAWSON, JJ„ concur.

PARIENTE, J., concurs in result with an opinion.

PARIENTE, J.,

concurring in result.

I concur in result because I would follow the well-reasoned opinion of the Fifth District Court of Appeal in Durant v. State, 94 So.3d 669 (Fla. 5th DCA 2012), which properly analyzes whether a defendant’s prior conviction qualifies as an “offense under a former statutory designation which is similar in elements” for the purposes of the Dangerous Sexual Felony Offender Act, section 794.0115(2)(e), Florida Statutes (2005). Id. at 670. Contrary to the Fourth District’s decision below, I would conclude that Acevedo was improperly designated as a dangerous sexual felony offender (DSFO), based upon his prior conviction under section 800.04, Florida Statutes (1981). See Acevedo v. State, 174 So.3d 437, 438 (Fla. 4th DCA 2015). Nevertheless, because the trial court could have sentenced Acevedo to life in prison without the DSFO designation, this error was harmless under the applicable standard of review for motions filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Therefore, I concur in the majority’s result that Acevedo is not entitled to relief on his motion.

In Acevedo’s rule 3.800(a) motion under review, Acevedo argued “that he did not qualify as a DSFO because his prior conviction under section 800.04, Florida Statutes (1981), did not contain elements similar to section 800.04(4), Florida Statutes (2005) (lewd or lascivious battery), or section 800.04(5), Florida Statutes (2005) (lewd or lascivious molestation).” Id, at 437-38. Looking first to the DSFO statute, explaining which prior convictions count toward DSFO status, the pertinent language provides:

(2)Any person who is convicted of a violation of s. 787.025(2)(c); s. 794.011(2), (3), (4), (5), or (8); s. 800.04(4) or (5); s. 825.1025(2) or (3); s. 827.071(2), (3), or (4); or s. 847.0145; or of any similar offense under a former designation, which offense the person committed when he or she was 18 years of age or older, and the person:
(e) Has previously been convicted of a violation of s. 787.025(2)(c); s. 794.011(2), (3), (4), (5), or (8); s. 800.04(4) or (5); s. 825.1025(2) or (3); s. 827.071(2), (3), or (4); s. 847.0145; of any offense under a former statutory designation which is similar in elements to an offense described in this paragraph;-' or of any offense that is a felony in another jurisdiction, or would be a felony if that offense were committed in this state, and which is similar in elements to an offense described in this paragraph, is a dangerous sexual felony offender, who must be sentenced to a mandatory minimum term of 25 years imprisonment up: to, and including, life imprisonment.

§ 794.0115, Fla. Stat. (2015) (emphasis added).-

Of critical- importance to this case, this Court must determine whether courts are permitted to consider the underlying facts of the defendant’s prior conviction in deciding whether that prior offense is “similar in ’ elements” to a qualifying offense enumerated in the statute. Majority op. at 8. However, the majority, sidestepping this issue in a footnote, concludes “that there was no need for the district court to perform such an analysis because the elements [of the 1981 statute], themselves, are sufficiently similar [to the 2005 statute].” Id. at 6 n.l. By contrast, I would contend that examining the underlying facts of an individual’s crime to determine whether the prior conviction is sufficiently similar is not only unnecessary, it is impermissible. See Dautel v. State, 658 So.2d 88, 91 (Fla.1995).

In Dautel, this Court addressed whether “the trial court [may] consider the underlying facts in determining' whether an out-of-state conviction is analogous to a Florida statute for the purpose of calculating points for a sentencing guidelines score sheet.” Id. at 89. In answering this question, in the negative—holding that “only the elements of the out-of-state crime should be considered”—this Court stated that “[a] conviction establishes only the elements of the crime, and does not include underlying facts or conduct which are not elements of the offense.” Id. at 89-90. Therefore, despite the fact that the conduct leading to Acevedo’s prior conviction would currently fall within one of the enumerated offenses, which the Fourth District considered, Acevedo, 174 So.3d at 438, the underlying conduct is outside the scope of our analysis of whether the prior conviction is sufficiently similar.

Turning now to the similarities between the enumerated offenses and the statute under which Acevedo was previously convicted, it is evident that Acevedo’s prior conviction is more similar in elements to subsections (6) and (7) of section 800.04, Florida Statutes (2005), than it is to subsection (4) or (5) of the same section. In 1982, Acevedo was convicted of violating section 800.04, Florida Statutes, which read in relevant part:

Any person who shall handle, fondle, or make an assault upon any child under the age of 14 years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lascivious act in the presence-of such child, without the inteht to commit sexual battery shall be guilty of a felony of the second degree ....

The Fifth District, comparing a nearly identical statute to sections 800.04(4) and 800.04(5), correctly noted two key differences: (1) “section 800.04(4) requires evidence of sexual activity, whereas there is no sexual activity requirement contained in [thé older statutory language;] and (2) “section 800.04(5) requires evidence that the perpetrator intentionally touched ‘the breasts, genitals, genital area, or buttocks, or the clothing covering them’ of the minor[, while the older statute] contains no such requirement.” Durant, 94 So.3d at 671. The Fifth District held that the older statute “shares similar elements with section 800.04(6), Florida Statutes, which is not a qualifying felony in the DSFO statute.” Id.

The majority’s conclusion posits that “[i]t is difficult to imagine an offense that would meet all the criteria of the 1981 statute but fail to meet the criteria of the 2005 statute.” Majority op. at 9. Assuming that the majority means an offense that would meet the criteria of subsection (4) or (5) of the 2005 statute—those offenses that would qualify as a prior conviction under the DSFO statute—its statement is belied by the very language in the 1981 statute. Under the 1981 statute, a person who “knowingly commit[s] any lewd or lascivious act in the presence of such child, without the intent to commit sexual battery” would clearly commit a punishable offense. § 800.04, Fla. Stat. (1981). Conversely, under the 2005 statutory scheme, a person performing those same actions would squarely commit a violation of subsection (7) (Lewd or Lascivious Exhibition), which is not an enumerated offense pursuant to the DSFO statute. See § 794.0115(2)(e), Fla. Stat. (2005).

When the Legislature enacted the DSFO statute, it clearly did not intend to include the conduct proscribed by subsections (6) and (7) in the types of offenses that would qualify an offender as a DSFO because it specifically excluded these subsections from the enumerated offenses. Id. Accordingly, because the elements of the crime that Acevedo was previously convicted under are most similar to subsections (6) and (7), I would conclude that the 1981 statute does not qualify as an “offense under a former statutory designation which is similar in elements to an offense described in this paragraph.” Id.

Despite my conclusion that Acevedo was improperly designated a DSFO, I agree with the majority that his motion for relief under rule 3.800(a) does not merit relief. Fla. R. Crim. P. 3.800(a). Under the “could-have-been-imposed” harmless error standard that this Court adopted for motions filed under rule 3.800(a) in Brooks v. State, 969 So.2d 238, 238 (Fla. 2007), a defendant “does not require resentencing if the sentence legally could have been imposed (absent a departure) using a correct scoresheet.” M. The record reflects that Acevedo’s scoresheet totaled 458.1 points; therefore, the trial court could have imposed a life sentence without the DSFO designation, and any error from Acevedo being improperly designated a DSFO is harmless. For these reasons, I agree with the majority’s conclusion that Acevedo is not entitled to relief on his rule 3.800 motion. However, I cannot agree with the reasoning of the Fourth District’s decision approved by the majority and, instead, would approve of the Fifth District’s holding in Durant.

      .The Fourth District also considered the underlying facts of Acevedo's conviction, noting that Acevedo was charged with coercing an eleven year old boy to allow Acevedo to fellate him, conduct that "is proscribed by subsection (4)(b) of the 2005 statute.” The district court thus found that the trial court did not err in finding Acevedo a DSFO. Id, We find that there was no need for the district court to perform such an analysis because the elements, themselves, are sufficiently similar. See Dautel v. State, 658 So.2d 88, 90 (Fla.1995) ("[T]he elements of a crime are the surest way to trace that crime.” (quoting Forehand v. State, 557, So.24 103, 104 (Fla.1989))).

      . In 1995, section 800.04(1) read: "A person who: (1) handles, fondles, or assaults any child under the age of 16 in a lewd, lascivious, or indecent manner ... without committing the crime of sexual battery, commits-a felony of the second degree 800.04(1), Fla. Stat. (1995).

      . The 2012 version of section 800.04(6) is the same as the 2005 version quoted above.

      4. "Sexual activity” is defined as "oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object.” § 800.04 (l)(a), Fla, Stat.


author: Gross, J.

text:
    STATE FARM FLORIDA INSURANCE COMPANY, Appellant, v. Dina FIGUEROA, Appellee.
    No. 4D15-2698
    District Court of Appeal of Florida, Fourth District.
    [February 8, 2017]

      Elizabeth K. Russo and Kevin D. Franz of Russo Appellate Firm, P.A., Miami, and Green & Ackerman, P.A., Boca Raton, for appellant.
    George A. Yaka and Nancy A. Lauten of Vaka Law Group, Tampa, and David J. Pettinato of Merlin Law Group, Tampa, for appellee.
   Gross, J.

State Farm raises two issues in this appeal of a final judgment entered for the insured. State Farm argues first that the trial court erred in denying its summary judgment and directed verdict motions because the insured failed to timely comply with policy obligations following the loss. State Farm also argues that, at a minimum, a new trial is required because the introduction of the insured’s health issues at trial was both irrelevant and highly prejudicial.

We reject the first issue because the insured’s substantial compliance with her post-loss obligations under the policy involved issues of fact properly resolved by the jury. On the second issue, because evidence of the insured’s health should never have been introduced, we reverse for a new trial.

The insured, Dina Figueroa, first filed a claim on October 80, 2005, after Hurricane Wilma hit on October 24,2005. State Farm sent an adjuster to her home on December 17,2005. The adjuster believed that 29 roof tiles had been damaged by the hurricane, but that, because the cost to repair those roof tiles did not exceed the insured’s policy deductible, it was unable to provide a payment. State Farm advised the insured that she was free to obtain her own estimate of the cost of repairs, and to contact it immediately if she obtained an estimate that was above her deductible. In 2005, State Farm did not insist that the insured file a sworn proof of loss.

The insured contacted a few roofers, but none were interested in the job. In January 2006, the insured began dealing with a serious medicál condition, which distracted her from following up with her claim.

In late 2008, the insured obtained a contractor’s estimate that included a new roof because more than 25% of her roof tiles had been loosened by wind damage. The contractor estimated that a new roof would cost $43,648. The insured informed State Farm in early 2009 that she wanted to reopen her claim, sending along the contractor’s estimate.

State Farm sent another adjuster to the insured’s home in April 2009, who concluded that the original estimate was correct. After that inspection, State Farm sent the insured a letter that outlined her obligations under the policy following a loss. In relevant part, the policy required her to protect the property from further damage by making reasonable and necessary temporary repairs, and to submit to State Farm a signed sworn proof of loss within 60 days of the loss. The policy provided that no action could be brought against State Farm unless there was compliance with these provisions.

. The insured submitted a sworn proof of loss along with the contractor’s estimate on June 8, 2009. Counsel for State Farm responded in late September 2009, informing the insured that the proof of loss did not comply with policy provisions. Subsequently, upon State Farm providing a proof of loss form to the insured in March 2010, the insured completed and submitted the proof of loss form on June 10, 2010.

On June 22, 2010, State Farm notified the insured that it was relieved of its obligations under the policy because of the insured’s material breach, specifically, her failure to timely submit a valid sworn proof of loss. The insured filed suit the following month.

State Farm moved for summary judgment, arguing that the insured failed to comply with her post-loss obligations under the policy. It argued that the insured failed to submit a sworn proof of loss within 60 days of the loss and failed to protect her property from further damage by making reasonable and necessary repairs. The insured responded that she substantially complied with her post-loss obligations and that State Farm was not prejudiced by her untimely compliance. The insured also explained that she was unable to immediately dispute State Farm’s estimate in 2005 because she began experiencing health issues. The trial court denied the motion.

Prior to trial, State Farm moved in li-mine to prevent the insured from discussing her medical issues, arguing that such evidence was both irrelevant and highly prejudicial. The insured argued that the evidence was necessary to explain the 3-year gap between her initial claim at the end of 2005 and her reopening the claim in early 2009. The court agreed with the insured and denied the motion.

At trial, in addition to arguing that the insured’s noncompliance with the policy provisions precluded recovery, State Farm argued that the insured needed a new roof not because it was damaged by Hurricane Wilma, but because of improper installation and natural wear and tear. Both sides called roofing experts to testify about causation and damages.

The jury found that the insured substantially complied with her post-loss obligations of submitting a sworn proof of loss within 60 days and protecting her property from further damage by making reasonable and necessary repairs. It awarded her the full amount requested to replace her roof. State Farm’s post-verdict motion for a new trial was denied. This appeal followed.

I.

Rulings on summary judgment and directed verdict are reviewed de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000); Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So.3d 247, 250 (Fla. 4th DCA 2009).

As to State Farm’s first issue, we hold that the trial court did not err in denying its summary judgment or directed verdict motions. Whether an insured substantially complied with policy obligations is a question of fact. See Solano v. State Farm Fla. Ins. Co., 155 So.3d 367, 370 (Fla. 4th DCA 2014) (stating that, “where an insured cooperates to some extent, a fact question remains as to whether the condition is breached to the extent of denying. the insured any recovery under the policy.”). Whether an insurer is prejudiced by an insured’s untimely compliance is also a question of fact. See Kramer v. State Farm Fla. Ins. Co., 95 So.3d 303, 306 (Fla. 4th DCA 2012), Kramer explains that, although an insured’s “untimely presuit submission of the sworn proof of loss is presumed to have prejudiced the insurer,” that presumption can be rebutted by the insured showing “that the insurer was not prejudiced”.

State Farm argues that Kramer conflicts with Goldman v. State Farm Fire Gen. Ins. Co., 660 So.2d 300, 306 (Fla. 4th DCA 1995), where we held that an insured’s noncompliance with a policy provision that is a condition precedent to suit “precludes an action on the policy regardless of a showing of prejudice by the insurer.” But the insured in Goldman failed to perform the policy obligation of submitting to an examination under oath before filing suit. Although the insureds in Kramer did not timely submit a sworn proof of loss within 60 days, they did submit it before filing suit.

Similarly, here, although the insured did not submit a sworn proof of loss within 60 days of the loss, she did so before filing suit. In 2005, State Farm responded to the insured’s claim and evaluated it without requesting a sworn proof of loss. The insured first submitted a proof of loss shortly after notifying State Farm that she wished to reopen her claim in 2009. When State Farm advised the insured that the proof of loss did not comply with the policy and provided her with its own form, the insured completed and returned that proof of loss form. The insured complied “to some extent,” creating a question for the factfinder. See Solano, 155 So.3d at 370.

Although the insured’s compliance with the policy provision was untimely, because she complied prior to suit, whether that compliance was substantial was a fact question. Such untimely compliance presumes prejudice to the insurer, which the insured can overcome by showing that the insurer was not prejudiced. Because substantial compliance and prejudice were both questions of fact,'the trial court did not err in denying State Farm’s summary judgment and directed verdict motions.

II.

“The appropriate standard of review applied to a trial court’s denial of a motion for a new trial is whether the trial court abused its discretion.” Hernandez v. Gonzalez, 124 So.3d 988, 989 (Fla. 4th DCA 2013) (quoting Izquierdo v. Gyroscope, Inc., 946 So.2d 115, 117 (Fla. 4th DCA 2007)). “Rulings’ on the admission of evidence are reviewed under the abuse of discretion standard.” Cantore ex. rel. Cantore v. West Boca Med. Ctr., Inc., 174 So.3d 1114, 1117 (Fla. 4th DCA 2015).

As to State Farm’s second issue, we agree that the insured’s health was .not relevant, to any issue in the case. “Relevant evidence is evidence tending to prove or disprove a material fact,” § 90.401 Fla. Stat. (2015); see also Sims v. Brown, 574 So.2d 131, 134 (Fla.1991) (explaining that, tó be legally relevant, evidence must “bear[] on a fact to be proved” and have “a tendency to make the fact more or less probable”). Because no provision in the policy allowed illness.to excuse noncompliance or untimely compliance with the insured’s obligations, evidence of the insured’s health did not tend to prove or disprove that she substantially complied with the policy obligations or that State Farm was not prejudiced by her untimely compliance.

Not only did the insured’s health not “assist the jury in determining a material fact at issue,” it “may have led the jury to infer” that her health was a factor to be considered in determining whether she substantially complied. Barrett v. State, 605 So.2d 560, 561 (Fla. 4th DCA 1992). Where evidence is both irrelevant and highly prejudicial, it can amount to harmful error. See Osborne v. State, 997 So.2d 1266, 1268-69 (Fla. 4th DCA 2009) (“Admission of the irrelevant, highly prejudicial gun evidence was harmful error”). “ ‘Unfair prejudice’ has been described as ‘an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.’ ” McDuffie v. State, 970 So.2d 312, 327 (Fla. 2007) (quoting Brown v. State, 719 So.2d 882, 885 (Fla. 1998)). Evidence of the insured’s medical condition improperly injected the potential for a sympathy verdict in the case.

This was a case where State Farm’s main defense was that the insured failed to comply with her obligations under the policy, and that failure precluded an action on the policy. Because the insured’s health had no probative value, it could only have suggested that the jury make a decision on an improper basis.

The error in allowing this evidence was exacerbated by the multiple times it came up at trial. It was first mentioned by the insured’s counsel during opening statements. The insured testified on direct that she “had a recurrence of a life-threatening illness.” Counsel for State Farm questioned the insured about her employment during the 3-year gap suggesting that she was well enough to work during that period, which prompted the insured’s counsel to bring it up again on redirect:

Counsel: And during that time period, you were working at some time in that period, and at other times, you were not?
The insured: Correct.
Counsel: But even though you had this medical issue, you still needed to work? The insured: Yes. I was the only income in the house.

Moreover, the jury asked two questions about the insured’s health after she finished testifying. One question inquired into the nature of the health issue, and the other asked when the health issue began.

Because there is a reasonable possibility that the introduction of this irrelevant and prejudicial evidence contributed to the verdict, we reverse and remand for a new trial. See Special v. West Boca Med. Ctr., 160 So.3d 1251, 1256 (Fla. 2014).

Reversed and remanded.

Warner and May, JJ., concur.


author: Taylor, J.

text:
    Devonte DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3165
    District Court of Appeal of Florida, Fourth District.
    [ January 4, 2017 ]

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellee.
   Taylor, J.

Appellant, Devonte Davis, pleaded guilty to a charge of robbery and was sentenced as a juvenile to commitment in a high risk residential program, followed by probation. After appellant was released from the juvenile commitment facility, he committed new criminal offenses while on probation. The trial court determined that appellant was unsuitable for juvenile sanctions and sentenced him on the original robbery charge to three years in prison with credit for time served. On appeal, appellant argues that the original sentence of post-commitment probation was illegal because the trial court could not sentence him to both a commitment program and probation under section 985.565(4)(b), Florida Statutes (2012), without ordering a disposition hearing. We disagree and affirm.

The legality of a criminal sentence is reviewed de novo. State v. Valera, 75 So.3d 330, 331-32 (Fla. 4th DCA 2011). Likewise, issues of statutory interpretation are reviewed de novo. Therlonge v. State, 184 So.3d 1120, 1121 (Fla. 4th DCA 2015).

Under section 985.565(4)(b), Florida Statutes (2012), a criminal court may impose the following sanctions upon adjudicating a child delinquent:

(b) Juvenile sanctions.—For juveniles transferred to adult court ..., the court may impose juvenile sanctions under this paragraph. If juvenile sentences are imposed, the court shall, under this paragraph, adjudge the child to have committed a delinquent act. ... Upon adjudicating a child delinquent under subsection (1), the court may:
1. Place the child in a probation program under the supervision of the department for an indeterminate period of time until the child reaches the age of 19 years or sooner if discharged by order of the court.
;2. Commit the child to the department for treatment in an appropriate program for children for an indeterminate period .of time until the child is 21 or sooner if discharged by the department. The department shall notify the court of,its intent to discharge no later than 14 days prior to discharge. Failure of the court to timely respond to the department’s notice shall be considered approval for discharge.
3. Order disposition under ss. 985.435, 985.437,- 985.439, 985.441, 985.45, and 985.455 as an alternative to youthful of-, fender or adult sentencing if the court •determines not to impose youthful offender or adult sanctions.

§ 985.565(4)(b), Fla. Stat. (2012).

• Appellant argues that these options are mutually exclusive, 'noting that none of these options' are joined with the conjunction “and.” Appellant contends that these must be alternative sanctions because' otherwise the provisions of .the statute are duplicative. Appellant further argues that the court could impose a commitment followed by probation under section 985.565(4)(b)3, but .only if the court ordered a disposition hearing. Appellant’s arguments are unpersuasive.

When construing a statute, courts look first to the statute’s plain language. State v. Hockley, 95 So.3d 92, 93 (Fla. 2012). “It is an elementary principle of statutory construction that significance and effect must be given to every word, phrase, sentence, and part of the statute '- if possible, and words in a statute should not be construed as mere surplusage,” Hechtman v. Nations Title Ins. of N.Y., 840 So.2d 993, 996 (Fla. 2003).

“[Wjhere the language of a statute clearly limits the application to a particular class of cases, leaving no room for doubts as to the meaning of the legislature, the statute may not be enlarged or expanded to cover cases not falling within its provisions;” Chu v. State, 521 So.2d 330, 331 (Fla. 4th DCA 1988) (quoting Barruzza v. Suddath Van Lines, Inc., 474 So.2d 861, 864 (Fla. 1st DCA 1985)).

When interpreting different subsections of the same statute, however, the subsections must be read in pari materia. See State v. Riley, 638 So.2d 507, 508 (Fla. 1994); Payne v. State, 873 So.2d 621, 622 (Fla. 2d DCA 2004).

Chapter 985 of the Florida Statutes “contains a comprehensive and extensive array of provisions” that address juvenile justice. E.A.R. v. State, 4 So.3d 614, 628 (Fla. 2009). When interpreting Chapter 985, courts should not focus “exclusively upon one statutory provision ... without addressing any related provisions that further reveal the Legislature’s intent and address the broader standards that should control juvenile dispositions.” Id.

In D.G. v. State, 170 So.3d 1 (Fla. 2d DCA 2015), the Second District considered the argument that the commitment options in section 985.441(1)—a similar statutory provision containing multiple options that are not separated by any coordinating conjunctions-7-were discrete and mutually exclusive. The Second District,rejected this argument “if for no other reason than the absence of statutory language suggesting that the options set forth in section 985.441(1) are mutually exclusive.” Id. at 5. The court explained: “Indeed, to treat them as such would be inconsistent with the comprehensive approach to juvenile justice prescribed in chapter 985.” Id.

Here, the probationary portion of appellant’s original sentence was not illegal. The trial court was permitted to sentence appellant to a term of commitment followed by probation. This sentence was lawful either (1) under sections 985.565(4)(b)1 & 2, when those provisions are read together, or (2) under section 985.565(4)(b)3.

Contrary to appellant’s argument, the options set forth in section 985.565(4)(b) are not mutually exclusive. Rather, they should be read in pari materia. The legislature omitted the use of the restrictive “or” between the options. Had the legislature intended that the trial court choose between a sentence of juvenile probation or commitment, the legislature could have easily said so. Accordingly, in light of the absence of statutory language indicating the options set forth in section 985.565(4)(b) are mutually exclusive, we must reject appellant’s argument. Moreover, appellant’s interpretation would be inconsistent with the compressive approach to juvenile justice prescribed in Chapter 985.

Appellant further argues that, under section 985.565(4)(b)3, the trial court could impose both commitment and juvenile probation only if a disposition hearing was ordered. Even though we find that appellant’s sentence was authorized under sections 985.565(4)(b)1 & 2, we disagree with appellant’s interpretation of section 985.565(4)(b)3.

Section 985.565(4)(b)3 authorizes the court to “order disposition” pursuant to the delineated statutory sections. Here, the trial court properly ordered disposition under section 985.565(4)(b)3. This subsection does not require the court to order a “disposition hearing.” Instead, the court is required to conduct a sentencing hearing under section 985.565(3) when a juvenile is being prosecuted as an adult. At the sentencing hearing, the court is to consider a Pre-Sentence Investigation (hereinafter “PSI”) unless the PSI is waived by the offender, and the court may impose either adult or juvenile sanctions. Here, appellant resolved his case by entering a plea in which he waived a PSI and accepted a disposition with juvenile sanctions.

Section 985.565(4)(b)3 authorizes the court to sentence a juvenile to commitment followed by post-commitment probation. Section 985.435, one of the juvenile statutes cited in section 985.565(4)(b)3, expressly permits post-commitment probation. Although appellant suggests that the sentence was ordered “without any input from DJJ,” the record contradicts this claim. The disposition order states that the trial court approved a predisposition report.

In sum, the trial court’s original sentence, which included post-commitment probation,- was not illegal. The court was authorized to sentence appellant to both a commitment program and probation under section 985.565(4)(b). This sentence was lawful either (1) under sections 985.565(4)(b)l & 2, when those provisions are read together, or (2) under section 985.565(4)(b)3.

Affirmed.

Forst and Klingensmith, JJ., concur.

      . Appellant also argues that his new sentence of three years in prison was in violation of his original plea agreement. According to appellant, the plea agreement provided that the court would impose only juvenile sanctions in the event he violated probation. We reject this claim on the merits, as the record conclusively refutes appellant’s claim that that the plea agreement called for him to receive only juvenile sanctions if he violated probation.


author: PER CURIAM.

text:
    Paul Mitchell PORRETTO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-1362.
    District Court of Appeal of Florida, First District.
    April 14, 2015.

      Paul Mitchell Porretto, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROBERTS, SWANSON, and BILBREY, JJ., concur.


text:
    Ernie MONTILLA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-1471.
    District Court of Appeal of Florida, First District.
    April 14, 2015.
    Opinion filed April 14, 2015.
    Ernie Montilla, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROBERTS, SWANSON, and BILBREY, JJ., concur.


text:
    Jamaal Ali BILAL f.k.a. John L. Burton, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-1485.
    District Court of Appeal of Florida, First District.
    April 14, 2015.
    Jamaal Bilal, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R. App. P. 9.141(d)(5).

ROBERTS, SWANSON, and BILBREY, JJ., concur.


text:
    Wallin F. CALHOUN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-1511.
    District Court of Appeal of Florida, First District.
    April 14, 2015.
    Rehearing Denied April 27, 2015.

      Wallin F. Calhoun, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROBERTS, SWANSON, and BILBREY, JJ., concur.


text:
    Matthew Joseph DETTLE, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-1382.
    District Court of Appeal of Florida, First District.
    Jan. 15, 2016.
    Gilbert A. Schaffnit, Gainesville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant raises -five issues on appeal, only one of which has merit. Based on our recent opinion in Hamilton v. State, 163 So.3d 1277 (Fla. 1st DCA 2015), we find that Appellant’s convictions for both traveling to meet a minor after solicitation, in violation of section 847.0135(4)(a), Florida Statutes, and for use of a two-way communications device in the commission of a felony, in violation of section 934.215, Florida Statutes, violate double jeopardy under the facts of this case. See also Holt v. State, 173 So.3d 1079 (Fla. 5th DCA 2015); Holubek v. State, 173 So.3d 1114 (Fla. 5th DCA 2015).

We affirm Appellant’s convictions for travelling to meet a minor after using a computer to solicit the minor, under section 847.0135(4) and for using a computer or other device capable of electronic data storage to solicit a person believed to be a child to commit an illegal act, in violation of section 847.0135(3)(a), Florida Statutes, because the illegal acts solicited are separate illegal acts in this case. Accordingly, this case is distinguished from State v. Shelley, 176 So.3d 914 (Fla.2015), where the illegal acts solicited from the supposed minor were the same. We vacate the conviction and sentence for violation of section 934.215 and remand for correction of the criminal punishment code scoresheet and resentencing with the corrected score-sheet.

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

BENTON, LEWIS, and BILBREY, JJ., concur.

      . All of the cases cited herein were decided after the trial and sentencing of Appellant.


author: LAGOA, J.

text:
    Donald Keith ROLLING, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-66.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 2016.
    Donald Keith" Rolling, in proper person.
    Pamela Jo Bondi, Attorney, General, and Jacob Addicott, Assistant Attorney General, for appellee. .■
    Before SUAREZ, C.J., and LAGOA and LOGUE, JJ.
   LAGOA, J.

Appellant, Donald K. Rolling (“Rolling”), seeks reversal of the trial court’s order denying his 3.800(a) Motion to Correct Illegal Sentence as successivé. We affirm, although for reasons other than those stated by the trial court.

I. PROCEDURAL HISTORY

In February 2010, Rolling filed a Rule 3.800(a) motion for postconviction relief, contending that his sentence could not be enhanced for possession of a firearm because it was an element of the crimes charged. The February 2010 motion was denied and this Court affirmed on appeal. See Rolling v. State, 60 So.3d 402 (Fla. 3d DCA 2011) (Table).

In September 2012, Rolling filed a second Rule 3.800(a) motion, arguing that his three-year minimum mandatory term was illegal because the jury did not make a specific finding that he actually possessed a firearm. On February 22, 2013, the motion was denied as successive and this Court affirmed on appeal. See Rolling v. State, 145 So.3d 849 (Fla. 3d DCA 2014) (Table).

In October 2014, Rolling filed his most recent Rule 3.800(a) motion, asserting that the trial court erroneously enhanced his sentence for the kidnapping convictions because: (1) Rolling was never charged with possession' of a firearm under the kidnapping counts in the Information, and (2) the jury never determined whether Rolling “actually or constructively used or possessed a firearm.” On December 3, 2014, the trial court entered an order denying Rolling’s Rule 3.800(a) motion as successive and procedurally barred for having been raised in previous motions.

II. ANALYSIS

Rolling’s amended initial brief argues solely that his October 2014 3.800(a) motion was erroneously denied on the basis of being successive. In its response, the State submits that while the trial court’s reasoning for denying Rolling’s motion was incorrect, the ultimate denial of the motion was proper. Specifically, the State acknowledges that the particular issues Rolling presents in his most recent 3.800(a) motion have never been presented or addressed on the merits, even though Rolling has raised similar issues in prior motions. The State argues that we can nevertheless affirm the trial court’s denial of Rolling’s motion based on the “tipsy coachman” doctrine. According to the State, the attachments to the trial court’s order denying relief contain portions of the record that conclusively refute Rolling’s claims.

We turn first to the question of whether the trial court denied Rolling’s motion because it was successive. A review of the record shows that in his October 2014 Motion to Correct Illegal Sentence, Rolling’s primary argument is that the trial court erroneously enhanced sentencing for his kidnapping convictions because he was never charged with possession of a firearm under the kidnapping counts of the Information. In contrast, in his September 2012 motion, Rolling asserted that his three-year minimum mandatory term was illegal because the jury did not make a specific finding that he actually possessed a firearm. Thus, Rolling’s most recent argument regarding the specifics of the Information was not raised in his prior motion, and the State is correct that the trial court erred in denying the 3.800(a) motion as successive.

We now turn to whether the record provides another basis to affirm the trial court’s order. Our review of the kidnapping counts contained in the Information reveals that Rolling’s principal assertion that he was never charged with possession of a firearm under these counts is incorrect and ultimately warrants denial of his most recent motion. Specifically, Count IV states in relevant part:

DONALD KEITH ROLLING ... without lawful authority did then and there forcibly, secretly, or by threat, confine, abduct or imprison another person ... against that person’s will, with the intent to commit or facilitate the commission of any felony, to wit: BURGLARY and/or ROBBERY, and/or inflict bodily harm upon or to terrorize the victim of any other person, and during the commission of this act or acts, the defendants carried, displayed, used, threatened, or attempted to use a weapon or firearm, to wit: a REVOLVER....

(emphasis added). These portions of the record attached to the trial court’s order clearly refute Rolling’s claims that he was not charged with possession of a firearm under the kidnapping counts of the information.

Because the Information charged Rolling with possession of a firearm during the commission of the kidnapping, we conclude that the trial court did not err in denying Rolling’s October 2014 Motion to Correct Illegal Sentence.

We additionally note that Rolling conceded on page 3 of his February 2010 motion that the jury did, in fact, find him in possession of a firearm during the commission of the kidnapping: “In the instant case, the jury made the required finding and indicated the prerequisite on the specially prepared verdict form that this defendant was in actual possession of a firearm during the commission of the enumerated felonies.” Moreover, the trial court’s order denying the February 2010 motion attached a copy of the relevant portion of the jury verdict form indicating that Rolling was found guilty “as to KIDNAPPING ... AS CHARGED IN COUNT NINE OF THE INFORMATION.” Significantly, on the verdict form, the jury found that Count Nine was committed ‘WITH A FIREARM.” We therefore affirm the trial court’s order, although for reasons other than those stated by the trial court. See Ramkela-wan, 152 So.3d at 681.

Affirmed.

      . See State v. McBride, 848 So.2d 287, 290-91 (Fla.2003) (holding that collateral estoppel preludes a defendant from rearguing in a successive 3.800 motion the same issue argued in a prior motion).

      . See Ramkelawan v. State, 152 So.3d 680, 681 (Fla. 4th DCA 2014):
      Although we agree with the trial court’s ultimate conclusion that the petition warranted denial, we affirm for reasons other than those stated by the court. Robertson v. State, 829 So.2d 901 (Fla.2002). "This longstanding principle of appellate law, sometimes referred to as the ‘tipsy coachman’ doctrine, allows an appellate court to affirm a trial court that ‘reaches the right result, but for the wrong reasons’ so long as ‘there is any basis which would support the judgment in the record.’ ” Id. at 906 (quoting Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999)).

        . See Peck v. State, 425 So.2d 664, 665 (Fla. 2d DCA 1983) ("In order for a three-year mandatory minimum to apply on a conviction pursuant to section 775.087(2), the state must allege in the information and prove at trial that the defendant possessed a ‘firearm’ or ‘destructive device’ during the commission of the crime.”); Altieri v. State, 835 So.2d 1181, 1184 (Fla. 4th DCA 2002) (same).

      . See also Count II (charging Rolling with possession of a firearm during the commission of a theft and/or robbery and/or kidnapping); Count V (charging Rolling and code-fendant Watts with the same offense alleged in Count II upon another victim: "defendants were armed ... with a dangerous weapon, to wit: HANDGUNS’’); Count VII (charging Rolling and Watts with the same offenses alleged in Count IV upon another victim: "defendants carried, displayed, used, threatened, or attempted to use a weapon or firearm, to wit: HANDGUNS”); Count IX ("defendants carried, displayed, used, threatened, or attempted to use a weapon or firearm, to wit: a PISTOL”).


author: SCALES, J.

text:
    Yoanky De La OSA, Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    No. 3D14-1455.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2016.

      Feiler & Leach, P.L., and Martin E. Leach, for appellant.
    Carlton Fields Jorden Burt, P.A., and Nancy C. Ciampa, and Michael K Winston, Dean A. Morande and Donna L. Eng, West Palm Beach, for appellee.
    Before ROTHENBERG, LAGOA and SCALES, JJ.
   SCALES, J.

Yoanky De La Osa, the defendant below, appeals the trial court’s May 16, 2014 order that denied De La Osa’s Verified Motion To Vacate Order Vacating Dismissal And AH Subsequent Orders (“De La Osa’s Motion”). Because the trial court did not retain subject matter jurisdiction to vacate its prior order that dismissed the foreclosure action of plaintiff Wells Fargo Bank N.A. (the “Bank”), we reverse.

I. Facts

In 2008, the Bank filed a foreclosure action against De La Osa, seeking to foreclose on De La Osa’s condominium, located in Miami-Dade County.

On May 19, 2011, the trial court entered an order dismissing the Bank’s case without prejudice because the Bank failed to appear at the trial scheduled for that day (the “2011 Dismissal Order”).

More than two years later, on July 19, 2013, citing rule 1.540(b)(4) of the Florida Rules of Civil Procedure, the Bank filed a motion seeking to vacate the trial court’s 2011 Dismissal Order. The Bank argued in its rule 1.540 motion that the trial court’s 2011 Dismissal Order was void because the Bank never received notice of the trial.

On July 24, 2013, the trial court entered an order vacating its 2011 Dismissal Order (the “2013 Vacation Order”), and on January 30, 2014, the trial court entered an order setting the Bank’s case for trial on March 14, 2014. On that date, the trial court entered a final judgment of foreclosure against De La Osa.

On April 17, 2014—more than thirty days after the final judgment was rendered—De La Osa, through counsel, filed De La Osa’s Motion. De La Osa’s Motion sought to have the trial court vacate its 2013 Vacation Order, which had vacated the trial court’s 2011 Dismissal Order. De La Osa’s Motion sought to have all orders entered after the 2011 dismissal similarly vacated. De La Osa argued that the trial court lost jurisdiction over the case after it entered the 2011 Dismissal Order, and therefore lacked subject matter jurisdiction to enter the 2013 Vacation Order more than two years later.

The trial court conducted a hearing on De La Osa’s Motion. De La Osa appeals the trial court’s May 16, 2014 order denying De La Osa’s Motion.

II. Standard of Review

Ordinarily, we review a trial court’s ruling on a rule 1.540 motion under an abuse of discretion standard. Rodriguez-Faro v. M. Escarda Contractor, Inc., 69 So.3d 1097, 1098 (Fla. 3d DCA 2011). In this instance, however, the underlying issue of subject matter jurisdiction involves a pure question of law—specifically, the interpretation of a Florida rule of civil procedure—and, therefore, we review de novo the trial court’s May 16, 2014 order denying De La Osa’s Motion. Pino v. Bank of New York, 121 So.3d 23, 31 (Fla.2013); Barco v. Sch. Bd. of Pinellas Cty., 975 So.2d 1116, 1121 (Fla.2008).

III. De La Osa’s Argument

De La Osa argues that, once the trial court entered the 2011 Dismissal Order, which dismissed the Bank’s case without prejudice, the trial court was without jurisdiction to vacate, more than two years later, the 2011 Dismissal Order. As such, De La Osa argues, all subsequent orders entered by the trial court after that 2011 dismissal order were void for lack of subject matter jurisdiction. See Kippy Corp. v. Colburn, 177 So.2d 193, 196-97 (Fla. 1965).

De La Osa asserts that, while rule 1.540(b) enumerates five distinct situations where the trial court may exercise jurisdiction to revisit previously entered judgments, decrees, orders or proceedings, only “judgments or decrees” are subject to vacation pursuant to rule 1.540(b)(4). Further, inasmuch as the 2011 Dismissal Order is not a “judgment or decree,” it may be challenged only under subsections (1), (2) or (3) and only within one year of rendition. De La Osa asserts that because the Bank’s motion—seeking a rule 1.540(b) vacation of the 2011 Dismissal Order—was brought more than one year from the entry of the 2011 Dismissal Order, the trial court was without jurisdiction to enter the 2013 Vacation Order.

IV. Analysis

Because the 2011 Dismissal Order concluded the litigation and the trial court’s jurisdiction over the case, Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So.2d 68 (Fla.1978), the issue before this Court is whether rule 1.540(b) provided a mechanism for the trial court to reassert its jurisdiction to enter the 2013 Vacation Order.

A Scope, Purpose and Text of Rule lM0(b)

We begin by noting that the scope and purpose of rule 1.540(b) is to provide limited jurisdiction for a trial court to review acts of finality that, by virtue of such finality, have caused the trial court to lose jurisdiction of the case.

“A trial judge is deprived of jurisdiction, not by the manner in which the proceeding is terminated, but by the sheer finality of the act, whether judgment, decree, order or stipulation, which concludes litigation. Once the litigation is terminated and the time for appeal has run, that action is concluded for all time. There is one exception to this absolute finality, and this is rule 1.540, which gives the court jurisdiction to relieve a party from the act of finality in a narrow range of circumstances.” Miller v. Fortune Ins. Co., 484 So.2d 1221, 1223 (Fla.1986) (emphasis in original).

Rule 1.540(b) reads in its entirety, as follows:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based .has been reversed or otherwise vacated, or it is no . longer equitable that the judgment or decree should have prospective application. The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.

Rule 1.540, Fla. R. Civ. P. (emphases added)

The prefatory language of rule 1.540(b) refers broadly to those acts of finality for which a party may seek relief: “final judgment, decree, order or proceeding.” All or a portion of this prefatory language relates to the five specifically enumerated instances in which a trial court may exercise jurisdiction to relieve a party from such act of finality.

After identifying the five enumerated instances providing the basis for relief, the rule then prescribes .that motions made pursuant to subsections (1), (2) and (3) must be filed “not more than 1 year after the judgment, decree, order, or proceeding” is rendered.

Subsections (4) and (5) of rule 1.540(b), however, are not subject to the one-year limitation on motions made pursuant to subsections (1), (2) or (3). Relief under subsections (4) or (5) must be sought only “within a reasonable time.”

Finally, the rule clarifies that the trial court may always exercise jurisdiction over an independent challenge to any act of finality on the basis of fraud on the court.

B. Rule 1.540(b) (4) Applies Only to Judgments and Decrees, Not to Orders

Pursuant to the express language of subsections (4) or (5), relief under these subsections is limited to a “judgment or decree.” Nothing in subsections (4) or (5) indicates that these subsections provide jurisdiction to a movant seeking relief from an “order” or a “proceeding.”

The language in subsections (4) and (5) is clear and unambiguous. While we may question whether a party who is the victim of a void order is any less deserving of relief than a victim of a void judgment or decree, we are constrained by the rules of statutory construction to give the rule’s language its plain meaning. Fla. Dep’t of Transp. v. Clipper Bay Invs., LLC, 160 So.3d 858, 862 (Fla.2015); Barco, 975 So.2d at 1121-22 (applying the principles of statutory construction to the Florida Rules of Civil Procedure).

We conclude that , the exclusion of the words “order” and “proceeding” from subsections (4) and (5) is resistant to statutory interpretation; and that, relief under these subsections is limited to “judgments” and “decrees” previously entered by the trial court.

C. The 2011 Dismissal Order is Not a Judgment

Having concluded that rule 1.540(b)(4) is available to revisit only “judgments or decrees,” we next must determine whether the 2011 Dismissal Order is a “judgment or decree” for the purpose of rule 1.540(b) relief.

Here we note that, unlike the Rules of Appellate Procedure—which expressly and broadly define the word “order”—the Rules of Civil Procedure do not supply definitions for the identified acts of finality—“judgment,” “decree,” “order” and “proceeding”—from which a party may seek relief under rule 1.540(b).

Where the words used in a rule or statute are not defined, we apply the plain and ordinary meaning to those words. Greenfield v. Daniels, 51 So.3d 421, 425 (Fla.2010). In giving plain and ordinary meanings to “judgment," “decree,” “order” and “proceeding,” we understand that these words have distinct meanings from one another.

In other words, if the drafters of rule 1.540(b)(4) had intended for the word “judgment” to encompass the meaning of the word “order,” the drafters would not have enlisted each word for separate duty in the sentence.

A judgment is a final adjudication of the merits of an action. Makar v. Inv’rs Real Estate Mgmt., 553 So.2d 298, 299 (Fla. 1st DCA 1989). A decree is a judgment in an equitable action. See Nichols v. Bodenwein, 107 Fla. 25, 146 So. 86, 93 (1932). An order is a command, direction or instruction delivered by the trial court. .Order, BLACK’S LAW DICTIONARY (10th ed.2014). A proceeding generally encompasses certain other acts of litigation finality, such as a party’s voluntary dismissal. See Pino, 121 So.3d at 29.

To be clear, while the 2011 Dismissal Order might have been a final, appealable order, this factor does not convert the 2011 Dismissal Order into a “judgment” for rule 1.540(b) purposes. The 20Í1 Dismissal Order did not adjudicate with, finality any issue in the Bank’s foreclosure action against De La Osa; it simply dismissed the Bank’s claims without prejudice as a sanction for the Bank not showing for trial. Therefore, for the purposes of rule 1.540(b), the 2011 Dismissal Order was an “order,” not a “judgment,” “decree” or “proceeding.” ,

Because the 2011 Dismissal Order is an “order,” by the express terms of rule 1.540(b), the trial court’s; subject matter jurisdiction to revisit the’ 2011 Dismissal Order existed only pursuant to rule 1.540(b)(1),(2), or (3); and also, pursuant to the express terms of rule 1.540, any motion seeking relief under subsections (1), (2) or (3) must have been brought within one year of entry of the 2011 Dismissal Order.

The 2011 Dismissal Order was entered on May 19, 2011; the' Bank’s motion to vacate the 2011 Dismissal Order was filed on July 19, 2013, well beyond the one year authorized by rule 1.540(b).

Y. Conclusion

Consequently, because rule 1.540(b)(4) did' not provide the trial court jurisdiction to revisit and vacate the 2011 Dismissal Order, the 2013 Vacation Order and all proceedings thereafter, including the March 14, 2014 Final Judgment, are void.

Reversed.

      . The Bank filed its foreclosure complaint on June 24, 2008. The Bank filed its rule 1.540 motion to vacate the 2011 Dismissal Order on July 19, 2013, more than five years after the filing of the complaint. The Bank appears to have lost track of its case and, faced with a potential statute of limitations issue, sought relief through the procedural mechanism of rule 1.540.

      . While not relevant to the issue on appeal, we note that the certificate of service attached to the Bank's rule 1.540 motion did not include De La Osa's counsel.

      . Again, while not relevant to the issue on appeal, we note that De La Osa was not served with these two orders, and also was not served with the Bank's witness list, exhibit list and affidavits filed by the Bank in the trial court prior to trial.

      . De La Osa was not served with the final judgment of foreclosure.

      . De La Osa did not make the alternate argument that the March 14, 2014 Final Judgment against him is void because he was not made aware of the post-dismissal proceeding that resulted in the Final Judgment.

      . No transcript of this hearing has been provided to this Court.

      . "Order. A decision, order, judgment, decree, or rule of a lower tribunal, excluding minutes and minute book entries.” Fla. R.App. P. 9.020(f).

      . We distinguish the instant case's dismissal order from the trial court’s order in Department of Revenue v. Thurmond, 721 So.2d 827 (Fla. 3d DCA 1998). While this Court in Thurmond held that the appellant was entitled to relief under rule 1.540(b)(4) from a void dismissal order, the order in Thurmond, unlike the instant order, not only dismissed the case, but it represented a final adjudication of an issue in Thurmond (setting aside a previously issued writ of bodily attachment). In its analysis, the Court in Thurmond impliedly—if not expressly—refers to the trial court’s dismissal order as a “judgment.” Thurmond, 721 So.2d at 828 (“This court has repeatedly held that a judgment entered without notice to a party is void ab initio. In accordance with rule 1.540(b)(4), relief from a void judgment may therefore be granted at any time.”) (citations omitted) (underline emphasis added).

      . We need not, and do not, reach the issue of whether a trial court's order that dismisses a complaint, with prejudice, and that has res judicata effect, constitutes a “judgment” for the purposes of rule 1.540(b); however, we note that such an order has been characterized as a “final judgment” by this Court in a related context. Falkner v. Amerifirst Fed. Savs. & Loan, 467 So.2d 746, 747 (Fk. 3d DCA 1985); see Falkner v. Amerifirst Fed. Savs. & Loan, 489 So.2d 758, 759 (Fla. 3d DCA 1986). See also Cheshire v. Wells Fargo Bank, N.A., 175 So.3d 886 (Fla. 1st DCA 2015) (entitling appellant to relief under rule 1.540(b)(4) from void order dismissing counterclaim with prejudice).

      .We note that rule 1.540 is substantially modeled on Rule 60 of the Federal Rules of Civil Procedure. Federal rule 60(b)(6)— which has no corollary in rule 1.540(b)— provides a mechanism for a trial court to relieve a party from a final judgment, order or proceeding for "any other reason that justifies relief.” While motions made pursuant to rule 60(b)(6) must be filed "within a reasonable time,” the one-yeai; time limit of Federal rule 60(c)(1) does not apply to motions made pursuant to rule 60(b)(6). The Florida Bar’s Civil Procedure Rules Committee may wish to examine the differences between the two rules.


text:
    James ST. HILARE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-108.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 2016.
    James St. Hilare, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER, FERNANDEZ and LOGUE, JJ.
   PER CURIAM.

We affirm the order denying the defendant’s motion to vacate illegal sentence. But see Howard v. State, 180 So.3d 1135 (Fla. 2d DCA 2015) (Altenbernd, J., concurring); Atwell v. State, 128 So.3d 167 (Fla. 4th DCA 2013), review granted 160 So.3d 892 (Fla.2014).


text:
    Meachie DAVILA, Appellant, v. STATE of Florida, Appellee.
    No. 1D15-3317.
    District Court of Appeal of Florida, First District.
    March 1, 2016.
    Meachie Davila, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Wright, 180 So.3d 1043 (Fla. 1st DCA 2015).

THOMAS, BILBREY, and KELSEY, JJ., concur.


text:
    Jonathan C. BOLWARE, Appellant, v. STATE of Florida, Appellee.
    No. 1D15-5771.
    District Court of Appeal of Florida, First District.
    March 1, 2016.

      Jonathan C. Bolware, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Hall v. State, 117 So.3d 478 (Fla. 1st DCA2013).

THOMAS, BILBREY, and KELSEY, JJ., concur.


text:
    Lawrence T. DOWNING, Petitioner, v. STATE of Florida, Respondent.
    No. 1D16-0635.
    District Court of Appeal of Florida, First District.
    March 1, 2016.
    Lawrence T. Downing, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

THOMAS, BILBREY, and KELSEY, JJ., concur.


text:
    Leel Demitrius WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D16-0709.
    District Court of Appeal of Florida, First District.
    March 3, 2016.
    Leel Demitrius Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

THOMAS, BILBREY, and KELSEY, JJ., concur.


text:
    Thomas B. BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D16-2002.
    District Court of Appeal of Florida, First District.
    May 25, 2016.

      Thomas B. Brown, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

RAY, MAKAR, and OSTERHAUS, JJ., concur.


text:
    Diep H. NGUYEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D16-0301.
    District Court of Appeal of Florida, First District.
    June 23, 2016.
    Diep H. Nguyen, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R. App. P. 9.350(b).

B.L. THOMAS, WETHERELL, and WINSOR, JJ., concur.