author: SALTER, J.

text:
    BDO SEIDMAN, LLP, Appellant, v. Charles W. BEE, Appellee.
    No. 3D08-2526.
    District Court of Appeal of Florida, Third District.
    Jan. 6, 2010.

      Greenberg Traurig, and Elliot H. Scherker, David A. Coulson, and Elliot B. Kula, Miami, for appellant.
    Holland & Knight, and Frances F. Guasch, for appellee.
    Before GERSTEN, SUAREZ, and SALTER, JJ.
   SALTER, J.

BDO Seidman, LLP, a New York limited liability partnership engaged in an international accounting practice, appeals a final judgment awarding a former Florida partner, Charles Bee, his substantial attorney’s fees incurred in obtaining an arbitration award against BDO for approximately $4 million plus prejudgment interest. The issue presented is apparently one of first impression: whether an attorney’s fee statute applicable to an action for “unpaid wages,” section 448.08, Florida Statutes (2008), applies to a compensation dispute between a partner and an LLP. On the record presented, we affirm the trial court’s application of the statute.

The “Understanding”

Bee was a partner of BDO from July 1984 through and beyond October 19, 2008. On that date, he and BDO entered into a three-page letter agreement, the “Understanding Regarding Continued Employment,” referred to by the parties as the “Understanding.” The Understanding guaranteed an amount of future compensation payable to Bee by the partnership for the then-current BDO fiscal year and the next four fiscal years, including a $900,000 partnership bonus to be paid for the partnership’s fiscal year ending June 30, 2004. At the time Bee and BDO entered into the Understanding, they did not terminate Bee’s status as a partner. Indeed, the amounts to be paid through June 30, 2004 were characterized as “allocations of Partnership profits ... based on a per unit value, as determined in accordance with the Partnership Agreement,” and the bonus for that fiscal year was “payable at the time when bonuses are normally paid to BDO Partners.”

The Understanding fixed minimum “annual guaranteed distributable base earnings of $750,000, plus a guaranteed minimum annual bonus of $250,000,” for each of the next four fiscal years (ending June 30, 2008). That provision expressly acknowledged that Bee would remain a partner under the BDO partnership agreement for some time after the execution of the Understanding:

In the event that I withdraw from the partnership during the initial two year period [of the four fiscal year period beginning July 1, 2004 and ending June 30, 2008], the guarantees for those years shall be prorated up to the date of my withdrawal. After two years of service under this provision, the remaining two years’ payment shall be paid even if I withdraw from BDO.

Bee testified that he was going to remain a partner through at least June 30, 2004; that he had a capital account for that BDO fiscal year and therefore received and filed his personal income tax using IRS Schedule K-l for amounts distributed to him (rather than an employee’s form W-2); and that he continued coverage under the partners’ benefit plans after entering into the Understanding.

The Understanding and the partnership agreement did not include any provision for the recovery of attorney’s fees and costs by a prevailing party in the event of a dispute between Bee and BDO. The Understanding did, however, include a provision specifying that Bee would be paid all the amounts due under the Understanding “at the times set forth” if BDO terminated Bee without cause before November 1, 2006. The Understanding also included an arbitration provision for the resolution of any disputes arising under it.

Termination, Arbitration, Award, and Confirmation

In November 2004, BDO notified Bee that it was “rescinding” the Understanding and terminating Bee’s partnership interest for cause. Bee immediately filed a claim in arbitration against BDO in Florida. A three-member panel conducted an eviden-tiary hearing on the claim in May 2005, considered post-hearing memoranda, and entered a final award November 2, 2005.

The final award included several findings pertinent to the issue presented in this appeal:

1. The panel ruled that it would make no determination as to prevailing party and attorney’s fees and costs. These issues would be judicially determined.

2. The panel found that it did not have jurisdiction to determine any dispute under the partnership agreement and thus confined its findings to those relating to the Understanding.

3. The substantive law of Florida applies to the Understanding. In making this finding, the arbitrators (a) permitted Bee to recede from his initial stipulation that the substantive law of New York applied to the Understanding, and (b) concluded that the Understanding was a contract that could be formed and enforced without resort to the BDO partnership agreement.

4. BDO’s termination of Bee’s partnership interest was “without cause” and was a material breach of the Understanding. BDO’s attempted rescission of the Understanding was in bad faith.

5. Bee was awarded $404,150 for the unpaid balance of his June 30, 2004 partnership fiscal year end bonus of $900,000; $3,498,436 as the present value of the guaranteed payments and bonus amounts for subsequent partnership fiscal years, per the Understanding; pre-award interest on these amounts; and $57,802 in administrative fees and expenses of the American Arbitration Association and arbitrators.

In June 2006, Bee filed a complaint in the Miami-Dade circuit court against BDO seeking confirmation of the final arbitration award and an award by the court of attorney’s fees and costs under sections 448.08 and 448.104. The trial court confirmed the arbitration award, characterized it as “an action for unpaid wages for purposes of section 448.08,” and awarded Bee attorney’s fees in the amount of $286,655.50, in a final judgment against BDO. This appeal followed.

Analysis

BDO makes a logical argument that Bee’s claim is a partnership dispute that should be governed by New York law (as specified in the partnership agreement) and that, even if Florida law is applied, Bee was a co-owner seeking partnership profits rather than an employee seeking unpaid wages. It is true that partners are ordinarily considered co-owners of their partnership rather than employees. BDO maintains that the history and purpose of the statute show an intention to remedy a “disparity of economic power,” an “inequity” that simply does not exist in the case of a professional partner seeking millions of dollars from an LLP.

In this case, however, the arbitrators found that the Understanding is an agreement “separate and distinct” from the BDO partnership agreement, and that the Understanding is governed by the substantive law of Florida. Those determinations are not subject to judicial review under any of the limited grounds enumerated in section 682.13, Florida Statutes (2008). Packard v. Ripple, 531 So.2d 991 (Fla. 3d DCA 1988); Dairyland Ins. Co. v. Hudnall, 279 So.2d 905 (Fla. 3d DCA 1973) (each holding that an arbitration award may not be vacated upon mistake of fact or law but only upon statutory grounds). Giving effect to the arbitrators’ findings, the caption and introductory sentence in the Understanding (referring to Bee’s continued or remaining “employment” by BDO) support the characterization of the unpaid amounts as “wages.” On that basis, the trial court correctly applied section 448.08. If LLPs and other partnership entities operating in Florida intend to avoid statutory fee-shifting in compensation disputes involving a Florida partner or partnership, it may be advisable to put that intention in writing.

Affirmed.

      . The statute provides that "[t]he court may award to the prevailing party in an action for unpaid wages costs of the action and a reasonable attorney’s fee.” It is part of the "terms and conditions of employment” in a chapter entitled "general labor regulations."

      . The panel also concluded that it had jurisdiction to determine a separate dispute relating to indemnification under a third agreement. As that agreement did not involve compensation or partnership distributions, it does not affect the analysis here.

      . One of the three members of the arbitration panel dissented from these and certain other findings of the majority.

      . Lamy v. Jack Jarvis & Co., Inc., 281 Or. 307, 574 P.2d 1107, 1111 (1978).

      . § 448.104 shifts attorney's fees and costs in favor of the prevailing party in a so-called "whistleblower” action. The arbitrators made no findings that would warrant an award under that section, and the trial court limited the basis for its award against BDO to § 448.08.


source: Caselaw Access Project

license: Public Domain

text:
    Gary Farber GELMAN, Appellant, v. Katia GELMAN, Appellee.
    No. 4D08-3918.
    District Court of Appeal of Florida, Fourth District.
    Jan. 6, 2010.

      Matthew S. Nugent and Adam M. Zbo-rowski of Nugent Ticktin Attorneys at Law, North Palm Beach, for appellant.
    John T. Mulhall III and Caroline B. Ganin of Rutherford Mulhall, P.A., Boca Raton, for appellee.
   RODRIGUEZ-POWELL, MILY, Associate Judge.

Gary Gelman (“Former Husband”) filed a Petition for Dissolution of Marriage. His wife, Katia Gelman (“Former Wife”), filed an Answer and Counterpetition for Dissolution of Marriage. The trial court issued a Final Judgment for Dissolution of Marriage (with Minor Children). The court incorporated the parties’ parenting and timesharing plans in its judgment and awarded shared parental responsibility of the three minor children. The court also ordered Former Husband to pay child support in the amount of $6,300.00 per month, and pursuant to the prenuptial agreement, the lump sum payment of $475,000.00 in lieu of spousal support or equitable distribution. Finally, the court directed Former Husband to pay the minor children’s private school tuition. Former Husband appeals the Final Judgment for Dissolution of Marriage.

We affirm the final judgment, except as to the trial court’s order that Former Husband pay the children’s private school tuition.

The award of a child’s private school expenses is reviewed for abuse of discretion. See Thomas v. Thomas, 776 So.2d 1092, 1094 (Fla. 5th DCA 2001). “[W]hen an award of relief is not sought by the pleadings, it is reversible error to grant such relief.” McDonald v. McDonald, 732 So.2d 505, 506 (Fla. 4th DCA 1999). A court may order a noncustodial parent to pay for private educational expenses if it finds that the “parent has the ability to.pay for private school” and the “expenses are in accordance with the family’s customary standard of living and are in the child’s best interest.” Wilson v. Wilson, 559 So.2d 698, 700 (Fla. 1st DCA 1990) (citing Luskin v. Luskin, 492 So.2d 783, 784 (Fla. 4th DCA 1986)).

Former Husband contends that the trial court improperly ordered him to pay the children’s private school tuition because Former Wife did not plead for the award and the trial court failed to make requisite findings of fact under Wilson. Former Wife counters that the parenting plan included the financial responsibility to pay the private school tuition and that the trial court incorporated the plan into the final judgment.

Former Wife’s counterpetition did not contain a request for payment of the private school tuition. Moreover, there is no record evidence establishing that Former Husband agreed to pay the tuition. Finally, the court did not make the requisite findings as to whether Former Husband has the ability to pay the tuition, and whether the private school expenses are in accordance with the family’s customary standard of living and are in the children’s best interest. See Wilson, 559 So.2d at 700 (citing Luskin, 492 So.2d at 784).

Accordingly, we reverse and remand for further proceedings consistent with this opinion. See McDaniel v. McDaniel, 835 So.2d 1265, 1268 (Fla. 1st DCA 2003); McDonald, 732 So.2d at 506.

Affirmed in part, Reversed in part, and Remanded.

HAZOURI and DAMOORGIAN, JJ., concur.


author: PER CURIAM.

text:
    William James JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-2034.
    District Court of Appeal of Florida, Fifth District.
    Jan. 8, 2010.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant challenges his convictions on three counts of lewd or lascivious molestation. , We address only those points on appeal that necessitate discussion.

Although requested, the trial court erroneously denied Appellant’s request for an instruction on the lesser included offense of simple battery. Biles v. State, 700 So.2d 166, 167 (Fla. 4th DCA 1997). The State concedes error on this point. Appellant is entitled to a new trial.

Further, Appellant is correct that Detective Liotta’s testimony amounted to improper bolstering. Therefore it should not be permitted on retrial. See Essex v. State, 917 So.2d 953 (Fla. 4th DCA 2005).

Finally, we agree with Appellant that the State engaged in improper final argument, although some of these issues were not preserved by contemporaneous objection. We specifically reject the State’s contention that the Golden Rule argument was fair rebuttal to the defense closing. On retrial, the State is admonished to refrain from argument that interjects the personal opinions of counsel, violates the Golden Rule or is otherwise improper.

We have carefully considered Appellant’s other points on appeal and find them to be without merit.

REVERSED AND REMANDED.

TORPY, EVANDER and COHEN, JJ., concur.


author: LaROSE, Judge.

text:
    Susan MATHIS, Appellant, v. Jim COATS, as Sheriff of Pinellas County, Florida, Appellee.
    No. 2D09-193.
    District Court of Appeal of Florida, Second District.
    Jan. 8, 2010.

      Elihu H. Berman of Elihu H. Berman, P.A., Clearwater, for Appellant.
    Sherwood S. Coleman, Largo, for Appel-lee.
   LaROSE, Judge.

Susan Mathis appeals a final summary judgment entered in favor of Sheriff Jim Coats. She sued the Sheriff for false arrest. Ms. Mathis raises three issues for our review. First, she challenges the trial court’s determination that she was under arrest when she was taken to Central Breath Testing (CBT). Second, she challenges the trial court’s conclusion that a deputy had probable cause to arrest her for driving under the influence (DUI). Third, she challenges the denial of her motion to file an amended complaint. We reverse and remand to allow Ms. Mathis to file an amended complaint. We affirm in all other respects.

Factual Background

On a summer afternoon in 2004, Ms. Mathis was driving north on U.S. Hwy. 19 in Pinellas County. Deputy McKenzie saw her strike the center median, nearly sideswipe another vehicle, and then strike the center median again. A backup deputy stopped Ms. Mathis. She does not contest the validity of the stop.

Deputy McKenzie told Ms. Mathis that she failed to maintain a single lane and nearly caused a collision. According to Deputy McKenzie, Ms. Mathis seemed agitated and moved in a very jerky fashion. He also testified that she had bloodshot eyes. In his written report, Deputy McKenzie noted that Ms. Mathis had slow coordination, exhibited difficulty following conversation, and had a flushed face. Yet, she was cooperative, did not smell of alcohol, and had clear speech. At the scene, Ms. Mathis reported that she had no sleep the previous night, took medication, and wore contact lenses. Although she denied being sick or injured at the scene, Ms. Mathis later reported that she had a broken right radius and complained of being nauseous at CBT.

Based on his observations, Deputy McKenzie administered a series of field sobriety tests that Ms. Mathis could not satisfactorily complete. He concluded that she was driving under the influence, in violation of section 316.193, Florida Statutes (2003).

Deputy McKenzie handcuffed Ms. Mathis, placed her in his cruiser, and drove her to CBT. There, she was subjected to another set of field sobriety tests. Ms. Mathis also submitted to a breath test; there was no indication of alcohol. Due to the inconsistency between the breath test and the field sobriety test results, Deputy McKenzie requested a urine sample from Ms. Mathis, and another deputy conducted a drug recognition evaluation. At that point, about 6:30 p.m., Ms. Mathis was given a DUI citation and taken to the jail’s booking area. She was released from jail at about noon the next day.

The On-Scene Arrest

Ms. Mathis argues that she was not under arrest until sometime after she arrived at CBT. As we understand her argument, there was no probable cause to arrest her based on the observations made at CBT. Thus, she argues that the trial court erred in concluding that she was under arrest when she was placed in the cruiser at the scene of the stop. Ms. Mathis also contends that she was not under arrest at the scene because she was not told specifically that, indeed, she was under arrest. She claims that she was being detained only for investigation.

A determination of when Ms. Mathis was under arrest is important to assess whether her false arrest claim is barred by the existence of probable cause. As the trial court recognized, it must “analyze whether there was probable cause at the time [Ms. Mathis] was arrested.”

A lawful arrest occurs when there is:

1) a purpose or intention to effect an arrest; 2) an actual or constructive seizure or detention by a person having present power to control the person arrested; and 3) communication by the arresting officer to, and an understanding by, the person whose arrest is sought of the officer’s purpose and intention to effect an arrest.

Dep’t of Highway Safety & Motor Vehicles v. Whitley, 846 So.2d 1163, 1167 n. 2 (Fla. 5th DCA 2003) (citing Kearse v. State, 662 So.2d 677, 682-83 (Fla.1995)). Griggs v. State, 994 So.2d 1198, 1199 (Fla. 5th DCA 2008), is instructive. There, the accused was handcuffed and told he was being detained following a traffic stop. Police searched his vehicle while he sat by the side of the road. Id. He was placed in a cruiser and taken to a police building. Id. The officers never used the word “arrest.” Id. After an interview, the accused was released. Id. The Fifth District held that the officers “undoubtedly communicated their intention to effect an arrest by their actions,” regardless of whether the word “arrest” was used. Id. at 1201. “ ‘Where ... the detained individual is physically removed from the scene and involuntarily transported to the police station for questioning and/or investigation, the courts have had little difficulty in construing such a detention to be a de facto arrest.’ ” Id. (quoting Saturnino-Boudet v. State, 682 So.2d 188, 193 (Fla. 3d DCA 1996)). See also Whitley, 846 So.2d at 1167 n. 2 (noting that an officer need not notify the detained individual that she is under arrest; officer’s conduct alone may be sufficient to inform the person).

Also noteworthy is State v. Rivas-Marmol, 679 So.2d 808, 809 (Fla. 3d DCA 1996), where the Third District determined that an arrest of an individual accused of DUI occurred after he failed a field sobriety test and was handcuffed, placed in the back of a police cruiser, and advised he was going to the police station.

In the case before us, Ms. Mathis was detained and, after failing to complete the field sobriety tests, handcuffed and involuntarily transported to CBT. Ms. Mathis was notified that her car would be impounded if alternate arrangements were not made to secure it. Although Deputy McKenzie told Ms. Mathis why she was stopped and testified that he transferred her to CBT to continue the DUI investigation, these statements are insufficient to establish mere detention. See Rivas-Marmol, 679 So.2d at 809 (holding that an arrest occurred despite an officer’s testimony that the accused was only detained prior to a breath test). The trial court correctly concluded that Ms. Mathis was under arrest at the scene of the traffic stop.

Probable Cause

We must now determine whether the trial court properly concluded that probable cause existed at the time of arrest. We review the trial court’s decision de novo. See City of Clearwater v. Williamson, 938 So.2d 985, 988 (Fla. 2d DCA 2006) (applying a de novo standard of review in a case involving an underlying probable cause question). Sufficient probable cause to justify an arrest exists where the facts and circumstances allow a reasonable officer to conclude that an offense has been committed. State v. Riehl, 504 So.2d 798, 800 (Fla. 2d DCA 1987); Mailly v. Jenne, 867 So.2d 1250, 1251 (Fla. 4th DCA 2004). The existence of probable cause requires an examination of the totality of the circumstances. Williamson, 938 So.2d at 989. The facts are to be analyzed from the officer’s knowledge, practical experience, special training, and other trustworthy information. City of Jacksonville v. Alexander, 487 So.2d 1144, 1146 (Fla. 1st DCA 1986).

Many factors contribute to a finding of probable cause for a DUI arrest. David A. Demers, “Probable Cause for DUI Arrest,” in DUI Handbook § 4.6(c) (11 West’s Fla. Practice Series 2008-2009 ed.). For example, although an odor of alcohol is significant, it may not be dispositive. State v. Kliphouse, 771 So.2d 16, 23 (Fla. 4th DCA 2000). Other factors “may include the defendant’s reckless or dangerous operation of a vehicle, slurred speech, lack of balance or dexterity, flushed face, bloodshot eyes, admissions, and poor performance on field sobriety exercises.” Id. (footnotes omitted); see also Ingram v. State, 928 So.2d 423 (Fla. 1st DCA 2006) (determining that law enforcement had probable cause to arrest defendant for DUI where defendant drove erratically, drove completely off the road, and had watery and bloodshot eyes and impeded speech); Whitley, 846 So.2d at 1166 (holding that there was probable cause to arrest defendant for DUI where, among other factors, the officer observed defendant driving erratically and defendant’s eyes were glassy); McNall v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 1163 (Fla. 20th Cir.Ct.2006) (determining there was probable cause for a DUI arrest where a vehicle made a sudden jerk movement to the right and then back to the left while going eastbound, during that movement both left tires crossed the white line into the center eastbound lane, vehicle slowed down and sped up suddenly and made several drifting movements within the right lane, defendant’s eyes were red and watery, and defendant had problems with the field sobriety tests).

Ms. Mathis argues that Deputy McKenzie unreasonably declined to accept her excuses for her erratic driving, unusual behavior, and difficulties performing the field sobriety tests. The deputy need not eliminate all possible defenses in order to establish probable cause. See Williamson, 938 So.2d at 990 (stating that an officer is not required to take every conceivable step to investigate a defendant’s excuses prior to making a probable cause determination). Deputy McKenzie’s determination that probable cause for arrest existed was reasonable under the circumstances and based on information then available to him. The arrest was lawful. Probable cause barred an action for false arrest on the record as then developed. See Bolanos v. Metro. Dade County, 677 So.2d 1005, 1005 (Fla. 3d DCA 1996).

Amended Complaint

After the trial court orally announced the grant of the Sheriffs motion for summary judgment, Ms. Mathis filed a motion for reconsideration and sought leave to file an amended complaint. The trial court denied her requests. Reasonably read, the amendment purportedly asserted a cause of action based on Ms. Mathis’s unlawful seizure and subsequent detention in jail for an unreasonable length of time. Absent an abuse of discretion, a trial court’s decision to permit or refuse an amendment will stand. Ohio Cas. Ins. Co. v. MRK Constr., Inc., 602 So.2d 976, 978 (Fla. 2d DCA 1992). “It is an abuse of discretion to disallow amendment of a pleading unless it clearly appears the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.” Colandrea v. King, 661 So.2d 1250, 1251 (Fla. 2d DCA 1995).

To the extent Ms. Mathis purported to revitalize a false arrest claim, she must fail. The proposed amendment as to either the Sheriff or Deputy McKenzie on a false arrest theory would be futile; probable cause existed to arrest Ms. Mathis at the scene of the traffic stop.

We cannot say the same to the extent that the proposed amendment challenged her continued detention at CBT. Though not exacting in its details, the proposed amendment appears to assert a cause of action for false imprisonment. False arrest and false imprisonment are closely related, but false imprisonment is a broader common law tort; false arrest is only one of several methods of committing false imprisonment. See § 787.02(l)(a), Fla. Stat. (2004) (“The term ‘false imprisonment’ means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.”); Everett v. Fla. Inst. of Tech., 503 So.2d 1382, 1383 (Fla. 5th DCA 1987) (holding that a claim that a hospital involuntarily held the plaintiff without complying with Baker Act provisions adequately alleged the tort of false imprisonment); Candy H. v. Redemption Ranch, Inc., 563 F.Supp. 505, 516 (M.D.Ala.1983) (recognizing a cause of action for false imprisonment against a home for unwed girls); Big Town Nursing Home, Inc. v. Newman, 461 S.W.2d 195, 197 (Tex.Civ.App.1970) (affirming judgment for false imprisonment by a nursing home). Indeed, a person improperly detained pursuant to a lawful arrest may have the right to bring an action for false imprisonment. Andrews v. Fla. Parole Comm’n, 768 So.2d 1257, 1266 (Fla. 1st DCA 2000).

The essential elements of a cause of action for false imprisonment include: (1) the unlawful detention and deprivation of liberty of a person; (2) against that person’s will; (3) without legal authority or “color of authority”; and (4) which is unreasonable and unwarranted under the circumstances. Montejo v. Martin Mem’l Med. Ctr., Inc., 935 So.2d 1266, 1268 (Fla. 4th DCA 2006) (citing Johnson v. Weiner, 155 Fla. 169, 19 So.2d 699, 700 (1944); Jackson v. Navarro, 665 So.2d 340, 341 (Fla. 4th DCA 1995)).

Although probable cause existed at the time Ms. Mathis was arrested at the scene, she may be able to demonstrate that probable cause evaporated at some point after she was transported to CBT and jailed. After transport to CBT, Ms. Mathis’s breathalyzer test showed a .000 reading. A subsequent urinalysis indicated no level of drug or other intoxicants. We cannot say that Ms. Mathis’s proposed amended complaint was futile. See Sponar v. S.C. Dep’t of Pub. Safety, 361 S.C. 35, 603 S.E.2d 412, 416 n. 3 (2004) (noting that an individual whom authorities continued to detain for DUI after registering below .05% on a breath test may have recourse in a civil action for false imprisonment); McConney v. City of Houston, 863 F.2d 1180, 1185 (5th Cir.1989) (concluding that “a person may constitutionally be detained for at least four or five hours following a lawful warrantless arrest for public intoxication without the responsible officers having any affirmative duty during that time to inquire further as to whether the person is intoxicated”; an arrestee should be released once it is ascertained that he is not intoxicated); Babers v. City of Tallassee, Ala., 152 F.Supp.2d 1298, 1309 (M.D.Ala.2001) (“[Fjollowing a lawful warrantless arrest, a police officer has an affirmative duty to release an arrestee if he ascertains beyond a reasonable doubt that the probable cause which formed the basis for the arrest was unfounded.”).

Conclusion

We conclude that Ms. Mathis was under arrest when she was placed in the cruiser for transport to CBT. Probable cause existed to arrest Ms. Mathis for DUI at that point. However, Ms. Mathis should have been given leave to amend her complaint to pursue claims as to whether she was unlawfully detained after, and if, probable cause ceased to exist to justify her continued detention.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and VILLANTI, JJ„ Concur.

      . A motion for summary judgment may be granted if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c). We review the trial court's ruling de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

      . A drug evaluation form indicates that Ms. Mathis’s eyes were glassy, not bloodshot.

      . The urinalysis proved negative, although the results were obtained some days later.

      . We note that section 943.0585, Florida Statutes (2009), provides that a court can order a criminal justice agency to expunge the "criminal history record” of an individual. See generally 15 Fla. Jur. 2d Criminal Law § 2105 (2009) (providing an overview of the expunction procedure). Our record is silent as to whether Ms. Mathis has pursued this option.


text:
    Bruce Palmer JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-6100.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2010.
    James S. Purdy, Public Defender, Seventh Judicial Circuit, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied without prejudice to consideration of the issues raised therein in petitioner’s direct appeal from judgment and sentence. See Munn v. State, 997 So.2d 423 (Fla. 1st DCA 2008).

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


text:
    Mary MADARIAGA n/k/a Mary Keyack, Appellant, v. Gonzalo MADARIAGA, Appellee.
    No. 5D08-4442.
    District Court of Appeal of Florida, Fifth District.
    Jan. 15, 2010.
    Billy M. Thomas, W. Melbourne, for Appellant.
    James H. Greason, Miami, for Appellee.
   PER CURIAM.

Mary Madariaga, n/k/a Mary Keyack [“Keyack”], appeals the trial court’s Order on Motion [for] Credit for Direct Payments as well as its amended order on her motion for rehearing and relief of judgment. The Order on Motion [for] Credit for Direct Payments required Keyack to repay Gonzalo Madariaga [“Madariaga”], her former husband, $10,777.78 in overpayment of child support and alimony at a rate of $300.00 per month and also directed the Clerk of Court [“Clerk”] to cease all of Madariaga’s child support and alimony obligations and to show a credit for Mada-riaga’s overpayment.

The Order on Motion [for] Credit for Direct Payments resulted from Madariaga having filed several pro se motions requesting that the trial court terminate his child support and alimony obligations, clear arrears, and give credit for direct payments. The trial court entered an order of referral to the general magistrate on the issues raised in Madariaga’s motions. Keyack filed a notice of objection to the said referral, but a hearing before the magistrate was scheduled for September 17, 2008. On that date, prior to the hearing before the magistrate, the trial court conducted a hearing and ordered an audit by the Clerk. Later the same day, the general magistrate also held a hearing, the result of which he reported and recommended that the hearing be continued to November 25, 2008, due to a lack of notice, and that Madariaga be ordered to provide Keyack with tangible proof of direct payments, such as cancelled checks, prior to the rescheduled hearing. The trial court entered an order approving the general magistrate’s report and recommendations. Upon receipt of the audit, however, on October 15, 2008, the trial court entered the Order on Motion [for] Credit for Direct Payments. The trial court based its findings, in large part, upon the Clerk audit. Keyack unsuccessfully sought rehearing or relief from judgment, arguing in part that the trial court denied her due process by not allowing her an opportunity to be heard on the audit. Given the unusual procedural overlap and Keyack’s lack of opportunity to address and raise objections to the Clerk audit, a hearing should be held on the issue of child support and alimony arrearages.

Madariaga’s supplemental motion for sanctions pursuant to section 57.105(1), Florida Statutes and his motion for award of attorney’s fees on appeal are denied.

REVERSED and REMANDED.

GRIFFIN, SAWAYA and EVANDER, JJ., concur.

      . There is no transcript of this hearing in the record.

      . This order was entered on November 7, 2008 — after entry of the Order on Motion [for] Credit for Direct Payments.

      .We express no opinion on the correctness of the figures contained in the appealed order. They may be correct, but we have not been able to confirm them.


text:
    In re Involuntary Placement of Damian A. DELGADO. Damian A. Delgado, Appellant, v. State of Florida, Appellee.
    No. 2D09-5096.
    District Court of Appeal of Florida, Second District.
    Jan. 15, 2010.
    Julianne M. Holt, Public Defender, and Geogymon George and Elaine L. Cooper, Assistant Public Defenders, Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jamie M. Braun, Assistant Attorney General, Tampa, for Appellant.
   PER CURIAM.

In this appeal from an order of commitment pursuant to chapter 397.675, Florida Statutes (2009), the recording of the commitment proceedings has been lost through no fault of any party, and both the State and the appellant have agreed that the hearing cannot be reconstructed. In a situation such as this, when an adequate record is unavailable and cannot be recreated, the appropriate remedy is to afford the appellant a new trial. See Delap v. State, 350 So.2d 462, 463 (Fla.1977); L.I.B. v. State, 811 So.2d 748, 748 (Fla. 2d DCA 2002); M.R.G. v. State, 576 So.2d 1378, 1378 (Fla. 2d DCA 1991).

Accordingly, the Order for Involuntary Placement filed October 1, 2009, is reversed, and this cause is remanded for a new trial.

KHOUZAM, CRENSHAW, and MORRIS, JJ., Concur.


text:
    L.J.M., JR., Father of B.J., A.M., and Z.M., etc., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee.
    No. 5D08-4318.
    District Court of Appeal of Florida, Fifth District.
    Jan. 15, 2010.

      Jeffrey Deen, Office of the Criminal and Civil Regional Counsel and Ryan Thomas Truskoski, Altamonte Springs, for Appellant.
    Kelly A. Swartz, Rockledge, for Appel-lee.
    Wendie Michelle Cooper, Tavares, for the Guardian ad Litem Program.
    L.J.M., Jr. Father, pro se.
   PER CURIAM.

Pursuant to the Appellee’s confession of error that the appellant was improperly denied appointment of counsel in the proceedings below, the order “Placing Child in a Permanent Guardianship, Designating Authority of Guardian, and Terminating Protective Services” is reversed and this cause is remanded for further proceedings.

REVERSED and REMANDED.

PALMER, ORFINGER and EVANDER, JJ., concur.


text:
    Clement FELIX, Appellant, v. DEPARTMENT OF REVENUE o/b/o Jerssie LABOSSIERE, Appellee.
    No. 3D09-427.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 2010.
    Clement Felix, in proper person.
    Bill McCollum, Attorney General, and Toni C. Bernstein, Assistant Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and SUAREZ, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Upon the Department of Revenue’s confession of error, we reverse and remand this matter back to the lower tribunal for an administrative hearing.

Reversed and remanded.


author: Per Curiam.

text:
    14269 BT LLC, A Florida Limited Liability Corporation, Petitioner, v. VILLAGE OF WELLINGTON, FLORIDA, A Florida Municipal Corporation, Respondent.
    No. 4D17-2376
    District Court of Appeal of Florida, Fourth District.
    [January 17, 2018]
    Michael B. Stevens of Derrevere Stevens Black & Cozad, West Palm Beach, for petitioner.
    Laurie Stilwell Cohen and Aaron C. Dunlap, Wellington, for respondent.
   Per Curiam.

The operator of a horse farm, 14269 BT, LLC (the "farm"), seeks second-tier certiorari review of an administrative code enforcement order finding that the farm violated several sections of the Village of Wellington's (the "village") land development regulations ("LDR"). These violations arose from unpermitted improvements the farm made to its property including the construction of two barns, a storage building, a manure bin, a driveway, and a swale. The code enforcement order mandates several corrective actions including removing one of the barns.

The farm argues that all of its improvements are nonresidential farm buildings and support structures, which are exempt from the village's LDRs pursuant to the plain language of section 604.50(1), Florida Statutes (2016). We agree that some of the improvements, including the two barns, the storage building, and the manure bin, are exempt under the plain language of section 604.50(1). Therefore, we grant the petition, in part, and quash the circuit court's affirmance because it contravenes the plain language of section 604.50(1).

Factual and Procedural Background

In March 2016, the village cited the farm with several code violations in two separate cases. In the first case, the farm was cited for violating various storm-water management regulations by failing to (i) design and build a secondary storm-water system and (ii) obtain permits for grading work done during the construction of the driveway and the swale. Notably, the driveway and the swale were partially built across a public right-of-way. The corrective actions listed for these violations included obtaining permits for the grading work and submitting plans for a secondary storm-water system.

In the second case, the farm was cited for failing to obtain building permits for the two barns, the storage building, and the manure bin. The farm was also cited for violating LDR section 6.10.12, which limits the number of barns that can be built on lots within the farm's zoning district. The corrective actions listed for these violations included obtaining the required building permits and removing the second barn.

These cases proceeded to an evidentiary hearing before a special magistrate, who ultimately entered an amended consolidated order in favor of the village. The farm appealed to the circuit court, and the circuit court affirmed in an unelaborated opinion.

This petition for second-tier certiorari review follows.

Second-tier Certiorari Review

"Second-tier certiorari is not a second appeal; it is extraordinarily limited, and narrow in scope." Advanced Chiropractic & Rehab. Ctr. Corp. v. United Auto Ins. Co. , 103 So.3d 866, 868 (Fla. 4th DCA 2012). "Review is limited to whether the circuit court failed to afford petitioner procedural due process in the appeal or departed from the essential requirements of the law, that is, committed a grievous error which results in a miscarriage of justice." State Farm Mut. Auto Ins. Co. v. Pembroke Pines MRI, Inc. , 171 So.3d 814, 816 (Fla. 4th DCA 2015).

The circuit court's failure to obey the plain language of a statute can form the basis for second-tier review. Nader v. Fla. Dep't of Highway Safety & Motor Vehicles , 87 So.3d 712, 727 (Fla. 2012) ("[S]tatutes also constitute 'clearly established law,' meaning that a district court can use second-tier certiorari to correct a circuit court decision that departed from the essential requirements of statutory law.").

Applicable Law

"When a statute is clear and unambiguous, courts will not look behind the statute's plain language for legislative intent or resort to rules of statutory construction to ascertain intent." Lee Cnty. Electric Coop., Inc. v. Jacobs , 820 So.2d 297, 303 (Fla. 2002). Section 604.50(1) provides:

Notwithstanding any provision of law to the contrary, any nonresidential farm building, farm fence, or farm sign that is located on lands used for bona fide agricultural purposes is exempt from the Florida Building Code and any county or municipal code or fee , except for code provisions implementing local, state, or federal floodplain management regulations. A farm sign located on a public road may not be erected, used, operated, or maintained in a manner that violates any of the standards provided in s. 479.11(4), (5)(a), and (6)-(8).

§ 604.50(1), Fla. Stat. (emphasis added).

Prior to 2011, this section only exempted nonresidential farm buildings from "any county or municipal building code." § 604.50(1), Fla. Stat. (2010) (emphasis added). In 2011, the legislature broadened the language of this section by removing the word building, so it now generally applies to "any county or municipal code or fee ...." Ch. 2011-7, § 6, Laws of Florida.

There are no cases construing whether municipal zoning regulations, such as LDR section 6.10.12, fall within the meaning of "any county or municipal code." However, in 2013, the Florida Attorney General issued an advisory opinion directly on point, which is persuasive authority. See Op. Att'y Gen. 2013-01 (2013). The opinion addresses whether the Town of Loxahatchee Groves would be violating section 604.50(1) if it sought to enforce zoning LDRs, specifically setback requirements, against nonresidential farm buildings. Id. Based on the plain language of section 604.50(1), as amended in 2011, the Attorney General concluded that nonresidential farm buildings are exempt from all municipal building and zoning LDRs. Id.

Discussion

It is undisputed that the farm's property is zoned for agricultural use, and the property is being used for a bone fide agricultural purpose. It is also undisputed that the barns and storage facilities are nonresidential farm buildings.

Pursuant to the plain language of section 604.50(1), nonresidential farm buildings are exempt from "any county or municipal code or fee." (emphasis added). The legislature's 2011 amendment to this section, as outlined above, indicates an intent to expand the exemption to include any county or municipal code rather than merely including county or municipal building codes. As such, we conclude that the two barns, the storage building, and the manure bin are not only exempt from the village's building permit requirements, but they are also exempt from the village's zoning regulations including LDR section 6.10.12.

The farm also contends that it is exempt from complying with the village's storm-water management regulations (LDR sections 8.24.6 and 8.24.9). However, these violations arose from (i) grading work done to build a driveway and a swale, which were partially built across a public right-of-way, and (ii) the farm's failure to build a secondary storm-water system. Nothing within the language of section 604.50 permits a farm owner to encroach upon a public right-of-way without seeking approval. Furthermore, driveways, swales, and storm-water systems do not fall within the meaning of "nonresidential farm buildings."

Finally, the farm asserts that the magistrate's factual findings pertaining to the violations of LDR sections 8.24.6 and 8.24.9 were not supported by competent substantial evidence. However, second-tier certiorari is not an appropriate mechanism for reviewing whether a lower tribunal's findings are supported by competent substantial evidence. Stranahan House, Inc. v. City of Fort Lauderdale , 967 So.2d 1121, 1128 (Fla. 4th DCA 2007).

Conclusion

Based on the foregoing, we conclude that the circuit court departed from the essential requirements of the law because its affirmance in this case directly contravenes the plain language of section 604.50(1). Under the specific facts of this case, failure to correct this error would result in a miscarriage of justice because the farm has been ordered to remove the second barn even though it is exempt from the requirements of LDR section 6.10.12.

Therefore, we grant the petition, in part, and quash the circuit court's affirmance. We deny the petition with respect to the farm's violations of LDR sections 8.24.6 and 8.24.9.

Granted in part and denied in part.

Gross, Ciklin and Levine, JJ., concur.

      "Although an opinion of the Attorney General is not binding on a court, it is entitled to careful consideration and generally should be regarded as highly persuasive." State v. Family Bank of Hallandale , 623 So.2d 474, 478 (Fla. 1993).

      Two prior advisory opinions issued by the Attorney General concluded that counties and municipalities are permitted to enforce zoning regulations, such as set-backs, on the construction of nonresidential farm buildings. See Op. Fla. Att'y Gen. 2009-26 (2009) ; Op. Fla. Att'y Gen. 2001-71 (2001). However, these opinions were both issued before the legislature amended section 604.50 in 2011.

      Under section 604.50(2)(d), a nonresidential farm building is defined as:
      [A]ny temporary or permanent building or support structure that is classified as a nonresidential farm building on a farm under s. 553.73(10)(c) or that is used primarily for agricultural purposes, is located on land that is an integral part of a farm operation or is classified as agricultural land under s. 193.461, and is not intended to be used as a residential dwelling. The term may include, but is not limited to, a barn, greenhouse, shade house, farm office, storage building, or poultry house.


text:
    CHIPOTLE MEXICAN GRILL, INC., a foreign profit corporation, Chipotle Mexican Grill of Colorado, LLC, a foreign limited liability company, and Chipotle Services, LLC, a foreign limited liability company, Petitioners, v. Yuvitkza QUINONES, Respondent.
    No. 4D17-2764
    District Court of Appeal of Florida, Fourth District.
    [January 31, 2018]
    Christopher S. Stratton and Lee A. Kantor of Hightower Stratton Novigrod Kantor, West Palm Beach, for petitioner Chipotle Mexican Grill of Colorado, LLC.
    Lara S. Shiner of Shiner Law Group, P.A., Boca Raton, for respondent.
   Per Curiam.

Chipotle Mexican Grill of Colorado, LLC ("Chipotle"), petitions this court for certiorari review of the trial court's order overruling its objections to discovery requests made by the plaintiff, Yuvitkza Quinones ("Quinones"), in the underlying premises liability action. We grant the petition and quash the trial court's order because the trial court's ruling was entered by default, and the trial court failed to conduct an in camera inspection of documents, which Chipotle claimed to be privileged.

Due to a calendaring error, Chipotle's counsel appeared approximately fifteen minutes late for a special set one-hour hearing, which was set to address a variety of matters including Chipotle's objections to Quinones's first request for production and first set of interrogatories. The record reflects that the trial court entered a default ruling in favor of Quinones due to counsel's failure to timely appear.

In overruling Chipotle's objections, the trial court also failed to conduct an in camera inspection of various documents that Chipotle claimed to be privileged. These documents were specifically identified in a privilege log filed by Chipotle. Quinones argues that Chipotle waived its claims of privilege by failing to timely object. However, failure to timely raise objections based on privilege does not automatically result in waiver. Palm Beach Primary Care Assocs., Inc. v. Mufti , 935 So.2d 122, 123 (Fla. 4th DCA 2006) ; Austin v. Barnett Bank of S. Fla., N.A. , 472 So.2d 830, 830 (Fla. 4th DCA 1985). Even if a claim of privilege is untimely raised, the trial court is required to conduct an in camera inspection of the documents claimed to be privileged. Mufti , 935 So.2d at 123. Failure to conduct the requisite in camera inspection is a departure from the essential requirements of the law. Id.

Quinones also argues that Chipotle failed to timely file its privilege log. However, the obligation to file a privilege log does not arise until after a party's written objections have been ruled upon. Gosman v. Luzinski , 937 So.2d 293, 296 (Fla. 4th DCA 2006).

Accordingly, we grant the petition and quash the trial court's order to the extent that it overruled Chipotle's objections to Quinones's first request for production and first set of interrogatories.

Warner, Taylor and Kuntz, JJ., concur.

      Quinones asserts that the trial court afforded Chipotle's counsel an opportunity to argue the objections after counsel appeared. This assertion is refuted by the trial court's order, which states that Chipotle's counsel failed to appear.


author: Forst, J.

text:
    Anne OBOLENSKY, Appellant, v. CHATSWORTH AT WELLINGTON GREEN, LLC d/b/a Nuvista Living at Wellington Green, Appellee.
    No. 4D16-3143
    District Court of Appeal of Florida, Fourth District.
    [February 28, 2018]
    Richard D. Schuler of Schuler, Halvorson, Weisser, Zoeller & Overbeck, P.A., West Palm Beach, Esther A. Zaretsky, West Palm Beach, and Nichole J. Segal of Burlington & Rockenbach, P.A., West Palm Beach, for appellant.
    Rolando A. Diaz and Adilia C. Hedges of Diaz Law Group, Coral Gables, and Dinah Stein of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for appellee.
   Forst, J.

Appellant Anne Obolensky, a nursing home resident who is suing the appellee nursing home for negligence, appeals a non-final order compelling arbitration. Relying upon two Florida Supreme Court opinions that were issued on the same day, Gessa v. Manor Care of Fla., Inc. , 86 So.3d 484 (Fla. 2011) and Shotts v. OP Winter Haven, Inc. , 86 So.3d 456 (Fla. 2011), Obolensky argues the arbitration agreement in her contract with the nursing home cannot be saved by the severance of certain invalid provisions that are also part of the nursing home contract. In so doing, she gives too broad a reading to those supreme court opinions. Accordingly, as set forth below, we conclude that the trial court did not err in its non-final order compelling arbitration.

Background

Upon admission to the nursing home, Obolensky signed "Admission and Alternative Dispute Resolution Agreements." The "Admission Agreement" dealt with issues such as "Consent to Treatment," "Financial Agreements," "Confidentiality of Your Medical Information," and "Center Rules and Grievance Procedure." It also included an "Arbitration & Limitation of Liability Agreement," which contains a severability clause stating that "Should any of sub-section A, B, or C provided below, or any part thereof, be deemed invalid, the validity of the remaining sub-sections, or parts thereof, will not be affected." The three sub-sections are as follows: (A) "Arbitration Provision"; (B) "Limitation of Liability Provision"; and (C) "Benefits of Arbitration and Limitation of Liability Provisions."

The Arbitration Provision includes a limitation on discovery (providing that only experts may be deposed), a waiver of the right to appeal the arbitrator's decision, and a waiver of any right to recover attorney's fees and costs. Sub-section A also expressly incorporates sub-section B, the Limitation of Liability Provision.

Sub-section B provides that the purpose of the provision is to limit each party's liability in relation to the agreement. There is no cap on economic damages, but non-economic damages are capped at $250,000, and punitive damages are not allowed.

Sub-section C explains the purpose or benefits of sub-sections A and B and states in part:

The parties' decision to select arbitration is supported by the potential cost-effectiveness and time-savings offered by selecting arbitration, which may avoid the expense and delay of judicial resolution in the court system. The parties' decision to select arbitration and to agree to a limitation of liability also are supported by the potential benefit of preserving the availability, viability and insurability of a long term care company for the elderly and disable[d] in Florida, by limiting such long term care company's exposure to liability. With this Agreement, the Community is better able to offer its services and accommodations at a rate that is more affordable to you. In terms of the time-savings offered by selecting arbitration, selecting a quick method of resolution is potentially to your advantage.

After Obolensky filed a negligence claim against the nursing home, the latter moved to compel arbitration. Citing Gessa , Obolensky opposed the motion. She argued that the arbitration agreement is unenforceable, because two of the limitation of liability provisions in sub-section B violate public policy and are not severable, as they go to the essence of the parties' agreement. The trial court found Gessa distinguishable because there was no severability clause in that case. The court granted the motion to compel arbitration with the understanding that the arbitrator would not be deciding the viability of the limitations on liability, as the Florida Supreme Court had already determined that liability limitations were invalid. This non-final order compelling arbitration is the subject of the instant appeal.

Analysis

"[T]he standard of review applicable to the trial court's construction of the arbitration provision, and to its application of the law to the facts found, is de novo ." Alterra Healthcare Corp. v. Bryant , 937 So.2d 263, 266 (Fla. 4th DCA 2006) (quoting Fonte v. AT & T Wireless Servs., Inc. , 903 So.2d 1019, 1023 (Fla. 4th DCA 2005) ). Similarly, we review de novo the question of whether the trial court erred in ruling that the illegal provisions in the arbitration agreement were severable. Shotts , 86 So.3d at 475.

"Arbitration is a preferred method of dispute resolution, so any doubt regarding the scope of an arbitration clause should be resolved in favor of arbitration." BallenIsles Country Club, Inc. v. Dexter Realty , 24 So.3d 649, 652 (Fla. 4th DCA 2009) ; see also Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp. , 559 U.S. 662, 683, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010) ("By agreeing to arbitrate ... [a party] trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration." (alterations in original) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. , 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) ) ); Franzen v. Mogler , 744 So.2d 1029, 1031 n.3 (Fla. 4th DCA 1997) ("The legislature has concluded that voluntary arbitration and predictability of outcome are in the public interest ....").

There is no dispute in this case that the limitations of liability provisions in the agreement, which cap non-economic damages and prohibit punitive damages, are unenforceable. See Gessa , 86 So.3d at 492 ; Alterra , 937 So.2d at 266 ; Lacey v. Healthcare & Ret. Corp. of Am. , 918 So.2d 333, 334 (Fla. 4th DCA 2005). Nonetheless, Shotts and Gessa do not dictate that the unenforceable limited liability provisions cannot be severed from the valid provisions of the arbitration agreement.

A. Shotts is distinguishable

The Florida Supreme Court in Shotts found that an arbitration agreement could not be saved by a severability clause because the agreement required arbitration in accordance with the American Health Lawyers Association (AHLA) rules and prohibited the award of punitive damages. 86 So.3d at 478. The AHLA rules in effect at that time changed the plaintiff's burden of proof for certain damages from preponderance of the evidence to clear and convincing evidence. Id. The supreme court agreed with the majority of district courts that the limitations of remedies provisions, which restricted rights afforded by the legislature to nursing home residents, violate public policy. Id. at 474. Addressing whether the arbitration agreement could be saved in the absence of the limitations of remedies provisions, the court explained the test for severability:

As to when an illegal portion of a bilateral contract may or may not be eliminated leaving the remainder of the contract in force and effect, the authorities hold generally that a contract should be treated as entire when, by a consideration of its terms, nature, and purpose, each and all of its parts appear to be interdependent and common to one another and to the consideration. Stated differently, a contract is indivisible where the entire fulfillment of the contract is contemplated by the parties as the basis of the arrangement. On the other hand, a bilateral contract is severable where the illegal portion of the contract does not go to its essence, and where, with the illegal portion eliminated, there still remains of the contract valid legal promises on one side which are wholly supported by valid legal promises on the other.
Whether a contract is entire or divisible depends upon the intention of the parties. And this is a matter which may be determined by a fair construction of the terms and provisions of the contract itself, and by the subject matter to which it has reference.

Id. at 475 (quoting Local No. 234 v. Henley & Beckwith, Inc. , 66 So.2d 818, 821-22 (Fla. 1953) ).

Although there was a severability clause, the supreme court decided it could not sever a provision providing for AHLA arbitration procedures because "[i]f the provision were to be severed, the trial court would be forced to rewrite the [arbitration] agreement and to add an entirely new set of procedural rules and burdens and standards, a job that the trial court is not tasked to do." Shotts , 86 So.3d at 478. The court's discussion of severability only focused on the AHLA procedures, though noting that other courts had addressed severability when the offending provision precluded punitive damages. Id. at 475-76.

In the instant case, the severance of any illegal arbitration provisions would not entail any rewriting of the arbitration agreement. Instead, as the parties agreed, "the Florida State Statutes concerning arbitration [would] govern the procedure," like section 682.08(2), Florida Statutes (2016) (governing the deposition of witnesses), and the arbitrator would continue to apply the Florida Rules of Evidence and the Florida Rules of Civil Procedure during proceedings. The "essence" of the Arbitration Provision would survive and, as distinguished from Shotts , there would be no need to create substitute procedures. Thus, the disposition of the instant case is not controlled by Shotts .

B. Gessa is distinguishable

Obolensky's reliance on Gessa is similarly misplaced. The Gessa agreement was worded and structured similarly to the contract in this case: Part A, "Arbitration Provisions" and Part B, "Limitation of Liability Provision[s]." 86 So.3d at 486, 488-89. The agreement had the same restriction on depositions, waiver of attorney's fees and costs, and the arbitration provisions in Part A incorporated the liability limitations in Part B. Id. at 488. The court found unenforceable the same limitation of liability provisions at issue in this case.

There was no severability clause in the Gessa arbitration agreement. The court nevertheless addressed whether the invalid provisions in Gessa could be severed pursuant to the standard of severability established in Shotts / Local No. 234 . Gessa , 86 So.3d at 490. Applying the standard, the court determined that the restrictions on non-economic damages and prohibition of punitive damages were intended to make the extent of liability "reasonably foreseeable" and went to "the essence" of the agreement. Id. at 490. The court concluded that these "two provisions constitute the financial heart of the agreement" and, if severed, the trial court would be hard pressed to determine that what remained was a valid contract supported by valid legal promises on both sides. Id. at 490-91 (citing Shotts , 86 So.3d at 459 ).

In the instant case, there are severability clauses; therefore, the supreme court's reasoning in Gessa need not extend to the instant case. See Estate of Deresh ex rel. Schneider v. FS Tenant Pool III Tr. , 95 So.3d 296, 301 (Fla. 4th DCA 2012) (holding in part that Gessa did not apply because, unlike in Gessa , there was a severability clause in the arbitration agreement that was on review on appeal); see also VoiceStream Wireless Corp. v. U.S. Commc'ns, Inc. , 912 So.2d 34, 38 (Fla. 4th DCA 2005) ("Despite the presence of these two [illegal] provisions in the dealer agreement, we conclude that where the contract contains a severability clause, their presence does not require a holding that the arbitration agreement is similarly unenforceable."); Fonte , 903 So.2d at 1024 (similar).

The Arbitration & Limitation of Liability Agreement begins with an express severability clause: "Should any of sub-section A, B, or C provided below, or any part thereof, be deemed invalid, the validity of the remaining sub-sections, or parts thereof, will not be affected." Thus, if sub-section B Limitation of Liability Provision is deemed invalid, sub-section A Arbitration Provision "will not be affected." This express severability clause is a material distinction from Gessa that strongly indicates-by the clause's plain terms-that the limited liability provisions were not the essence of the arbitration agreement between the parties. If they were, the parties would not have agreed to the severability clause for the Arbitration & Limitation of Liability Agreement, which states in the "Arbitration Provision," in bold type, "The parties to the Agreement further understand that a jury will not decide their case."

C. The Limitation of Liability Provision is neither the "financial heart" of the Admission and Alternative Dispute Resolution Agreements nor the "true essence" of the Arbitration & Limitation of Liability Agreement

Obolensky relies upon language in both Shotts and Gessa to argue that, severability clause notwithstanding, the removal of provisions that are the "financial heart of the agreement" but (arguably) violate public policy, would "gut" the essence of the parties' agreement and thus render the entire agreement invalid. This argument fails.

The Admission Agreement provided for the rights and responsibilities of the parties relating to the resident's stay at the nursing home, including the room and board rate. These terms remain in force.

Even setting aside the Admission Agreement, and looking only to the Arbitration & Limitation of Liability Agreement, it is clear that "the true essence" of the Admission and Alternative Dispute Resolution Agreements was, as its name suggests, arbitration, and its financial heart was the reduced costs and time-saving benefits accompanying arbitration. In fact, under the subheading "Benefits of Arbitration & Limitation of Liability Provisions" is the statement that "[t]he parties' decision to select arbitration is supported by the potential cost-effectiveness and time-savings offered by selecting arbitration, which may avoid the expense and delay of judicial resolution in the court system." To ensure the viability of this clause, the parties agreed to severability should any provision be later deemed invalid. Applying Shotts and Gessa in a manner to negate the arbitration provisions would ignore the fact that this agreement had a severability clause that was intended to be used in a situation as was presented here; by effectuating the severability clause, the parties were able to retain the "essence" of the agreement at issue.

Conclusion

When enforcing an agreement to arbitrate, courts must "give effect to the contractual rights and expectations of the parties." Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ. , 489 U.S. 468, 479, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989) ; see also Michael Pillow, Liberty over Death: Seeking Due Process Dimensions for Freedom of Contract , 8 FLA. A & M U.L. REV. 39, 52 (2012) ("Parties should be able to negotiate and sign contracts ... knowing that courts will likely enforce their terms with only limited exceptions.").

The trial court's order compelling arbitration effectuates the intention of the parties at the time the agreement was signed and, accordingly, we affirm.

Affirmed .

Warner and May, JJ., concur.

      The acceptance of severability in this agreement is further illustrated by the Limitation of Liability Provision, which provides, "[s]hould sub-sections [2.] a, b, c, and/or d ... be deemed invalid[,] the validity of the remaining sub-sections will not be affected." Sub-sections b and d were, respectively, the $250,000 cap on non-economic damages and waiver of punitive damages-the provisions deemed to be invalid by the trial court. Thus, the parties contemplated not only the arbitration provisions surviving invalid liability limitations, but also the valid, remaining liability provisions themselves.

      We previously noted the same when viewing a similar agreement: "The primary thrust of the [arbitration] agreement is 'to avoid costly and time-consuming litigation.' " Deresh , 95 So.3d at 301.

      We note that the one party that is negatively affected by the invalidation of the limitation of liability sub-provisions, the nursing home, is the party that is seeking to enforce the valid portions of the Arbitration & Limitation of Liability Agreement provisions.


author: Damoorgian, J.

text:
    CSC SERVICEWORKS, INC., a Delaware corporation, Appellant, v. BOCA BAYOU CONDOMINIUM ASSOCIATION, INC., a Florida corporation and Commercial Laundries, Inc., a Florida corporation, Appellees.
    No. 4D17-0974
    District Court of Appeal of Florida, Fourth District.
    [March 7, 2018]
    Monica Tirado of Reiner & Reiner, P.A., Miami, for appellant.
    Lilliana M. Farinas-Sabogal and Howard Perl of Becker & Poliakoff, P.A., Coral Gables, for appellee Boca Bayou Condominium Association, Inc., a Florida corporation.
    Rodney W. Bryson II, West Palm Beach, for appellee Commercial Laundries, Inc., a Florida corporation.
   Damoorgian, J.

Appellant, CSC Serviceworks, Inc., appeals a final judgment entered in favor of Boca Bayou Condominium Association, Inc. ("the Association") and Commercial Laundries, Inc. ("Commercial") (collectively "the Defendants") in its unlawful detainer lawsuit. For the reasons discussed below, we affirm the final judgment.

By way of background, Appellant, a self-service laundry equipment provider, entered into a seven year written laundry space lease ("the Lease") with the Association in September of 2000. The Lease provided that Appellant would furnish and install commercial washers and dryers in each of the Association's twenty-six laundry rooms. The Lease also included a right of first refusal clause which survived for one year after the expiration of the Lease. Prior to the expiration of the initial Lease, the parties elected to extend the Lease for an additional seven years. When the extended written Lease expired in October of 2014, Appellant continued to occupy the laundry rooms and pay the Association rent on a month-to-month basis. This arrangement continued for nearly two years before the Association began receiving various complaints from the residents.

In 2016, the Association began to solicit bids for the lease of the laundry rooms. Appellant actively participated in the bidding process; however, the Association ultimately selected Commercial as its new laundry service provider. On August 16, 2016, the Association sent Appellant a letter canceling the Lease and asking when it could expect Appellant to remove its machines. Shortly thereafter, on August 25, 2016, Commercial also contacted Appellant and inquired as to when the machines would be removed. Appellant's representative responded that she would "schedule something." The following day, Commercial emailed the same representative advising that its machines would be arriving on September 21, 2016 and asking that Appellant remove its machines by September 27, 2016. Appellant's representative did not respond to the email. On August 31, 2016, Commercial again contacted Appellant's representative to schedule a definite removal date. The representative responded that she would contact an installation technician about scheduling something and would follow-up after she made some progress. Appellant's representative never followed-up as promised.

During a September 19, 2016 meeting with the Association and Commercial, Appellant's representative informed the parties that Appellant intended to enforce its right of first refusal. That same day, the Association's attorney emailed Appellant advising that the right of refusal had been rejected. When Commercial arrived to install its machines as scheduled on September 27, 2016, Appellant's machines were still connected to the laundry rooms' water and electric hook-ups. With the Association's approval, Commercial disconnected each one of Appellant's machines and moved them aside. At no point in time were Appellant's machines removed from the laundry rooms and none of the machines were damaged. Appellant was never denied access to the unlocked laundry rooms nor to its machines. On October 3, 2016, the Association sent Appellant a pre-suit demand letter advising that if Appellant did not remove its machines from the laundry rooms within fifteen days, the Association would commence a tenant eviction action. Appellant complied and removed its machines before any formal eviction proceeding was commenced.

Appellant thereafter sued the Defendants, alleging causes of actions for breach of the lease agreement, tortious interference, conversion, and unlawful detainer. After Appellant successfully moved to sever its claims and try the unlawful detainer claim separately, the matter proceeded to a jury trial. At the close of evidence, Appellant moved for a directed verdict, arguing that by disconnecting its machines without legal process or Appellant's knowledge and consent, the Defendants undisputedly ousted Appellant of possession of the laundry rooms. The court denied the motion and the jury ultimately rendered a verdict in favor of the Defendants. This appeal follows.

Appellant argues that the court erred in denying its motion for directed verdict because the undisputed evidence at trial established that while Appellant was in possession of the laundry rooms, the Defendants disconnected its machines and, for all intents and purposes, retook possession of the laundry rooms without legal process. For much of the same reason, Appellant also argues that the jury's verdict is not supported by competent substantial evidence. The Defendants counter that the court correctly denied the motion because Appellant's machines were never physically removed from the laundry rooms and the act of "disconnecting" is not equivalent to "dispossessing." We agree with the Defendants.

Section 82.02, Florida Statutes, provides that "[n]o person who enters without consent in a peaceable, easy and open manner into any lands or tenements shall hold them afterwards against the consent of the party entitled to possession." § 82.02(1), Fla. Stat. (2017).

The entry and detainer action is designed to compel the party out of actual possession, whether the real owner and as such entitled to the Ultimate right of possession, or not, to respect the actual Present possession of another, wrongful though it might be, by requiring him, in order to obtain the possession he claims to be his, to resort to legal channels, such as a suit for ejectment, or trespass to try title, or removal of tennant proceedings under Sec. 83.20 et seq.

Floro v. Parker , 205 So.2d 363, 367 (Fla. 2d DCA 1967) (citations omitted). The salient questions in an unlawful detainer action, therefore, are whether: (1) plaintiff was in peaceful possession of the property; (2) plaintiff was ousted of actual possession of the property; and (3) defendant withheld possession of the property from plaintiff without consent or legal process. See id.

We hold that the Defendants' act of disconnecting the machines and moving them to the other side of the laundry rooms did not have the effect of ousting Appellant of its possession of the laundry rooms as contemplated under the unlawful detainer statute. Any connection rights that Appellant may have had were related to its leasehold interest which, as acknowledged by Appellant, was not at issue in the unlawful detainer action. See § 82.05, Fla. Stat. (2017) (providing that "[n]o question of title, but only right of possession and damages, is involved in the action" of unlawful detainer); Se. Fid. Ins. Co. v. Berman , 231 So.2d 249, 251 (Fla. 3d DCA 1970) (reiterating that "[t]he gist of an action for unlawful detainer is the unlawful withholding of possession by the defendant," and holding that an unlawful detainer action "is not the proper remedy where it is obvious to the trial judge that plaintiff is substantially seeking an adjudication of title").

Appellant nonetheless maintains that the holding in R. Bodden Coin-Op Laundry, Inc. v. Brandychase Condominium Ass'n , 557 So.2d 663 (Fla. 2d DCA 1990), which involved a dispute between a laundry service provider and a condo association regarding the possession of laundry rooms, supports reversal in this case. We disagree. Unlike in the instant case, Bodden involved a situation where an association removed the plaintiff's machines from the laundry rooms, transported them to a warehouse, and refused to release the machines to the plaintiff for a period of time. Id. at 664. The holding in Bodden , therefore, is not applicable to the facts in this case as Appellant's machines were not removed from the laundry rooms.

Our holding is further supported by the historical context within which the unlawful detainer action originated. As explained by the court in Floro , the unlawful detainer action has its origins in an English criminal statute:

which denounced as a crime the practice of subverting actual possession by the employment of force, even though the possession of the one forcibly displaced was itself wrongful. The reason for the original statute, as well as the later English statutes, was to prevent breaches of the peace which arose when one person would enter upon the land of another and, frequently by sheer physical power, oust the other from peaceful, albeit wrongful, possession.

205 So.2d at 366. In other words, unlawful detainer actions are, and have always been, about actual physical dispossession of real property, not constructive or useful dispossession.

Accordingly, we hold that the trial court correctly denied the motion for directed verdict because the evidence did not support the plaintiff's claim for unlawful detainer.

Affirmed.

Warner and May, JJ., concur.

      Only the unlawful detainer action is before this Court.


author: Kuntz, J.

text:
    Tyrie Deveonta THEOPHILE, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2841
    District Court of Appeal of Florida, Fourth District.
    [March 7, 2018]
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

The Defendant appeals his conviction for second-degree murder, aggravated battery, and robbery, and sentence of forty-five years' imprisonment. He raises several issues on appeal and we affirm each without comment except for one.

We agree with the Defendant that the court erred when it considered a fact at sentencing that specifically conflicted with a factual finding by the jury. See, e.g. , Baehren v. State , 234 So.3d 799 (Fla. 4th DCA Jan. 10, 2018) ; Guerra v. State , 212 So.3d 541, 542 (Fla. 4th DCA 2017). While orally pronouncing the sentence, the court stated that the Defendant "pulled out a firearm"; that he was "brandishing a firearm"; and, again, that he "pulled out firearms." Yet as counsel for the Defendant noted at the hearing and again argues on appeal, the verdict form specifically asked if "the Defendant actually possess[ed] a firearm," and the jury answered "no."

Further, the convictions on other charges do not explain the court's statements. Contra Howard v. State , 820 So.2d 337, 340 (Fla. 4th DCA 2002). Here, the jury specifically found the Defendant did not possess a firearm making it impossible to reconcile the court's statements at sentencing with the jury's verdict.

Because of the court's consideration of a fact at sentencing that specifically conflicts with the jury's verdict, we vacate the Defendant's sentence and remand the case for resentencing before a different circuit judge. The Defendant's conviction is otherwise affirmed.

Affirmed in part, vacated in part, and remanded for resentencing.

Gerber, C.J., and Gross, J., concur.


text:
    Thomas and Michelle DEBISH, Appellants, v. WELLS FARGO BANK, N.A., as Trustee, ON BEHALF OF REGISTERED HOLDERS OF FIRST FRANKLIN MORTGAGE LOAN TRUST, Mortgage Pass-Through Certificates, Series 2004-FF6, Appellee.
    No. 4D17-469
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2018]
    W. Trent Steele of Steele Law, Hobe Sound, for appellants.
    Nicholas Agnello and Erica Gomer of Burr & Forman LLP, Fort Lauderdale, for appellee.
   Per Curiam.

The borrowers, Thomas and Michelle Debish, appeal an Amended Final Judgment of Foreclosure. We affirm without discussion as to the borrowers' argument that the plaintiff failed to prove its standing to enforce the lost note. However, because the trial court reestablished the lost note without finding that the borrowers were adequately protected against loss that might occur due to a claim by another person to enforce the lost note, we reverse and remand with directions for the trial court to amend the judgment so as to provide adequate protection to the borrowers. See Blitch v. Freedom Mortg. Corp. , 185 So.3d 645, 646-47 (Fla. 2d DCA 2016) ; § 673.3091(2), Fla. Stat. (2017).

"Because the court's consideration of the issue of adequate protection is a condition of entering a judgment that reestablishes a lost note, its failure to provide adequate protection, or to make a finding that none is needed under the circumstances, requires reversal and remand for the court to consider the issue." Blitch , 185 So.3d at 646. As noted in Blitch , the requirement of adequate protection is generally satisfied "through a written indemnification agreement in the final judgment, the posting of a surety bond, a letter of credit, a deposit of cash collateral with the court, or '[s]uch other security as the court may deem appropriate under the circumstances.' " Id. (quoting § 702.11(1)(e), Fla. Stat. (2014) ).

Affirmed in part, Reversed in part, and Remanded for further proceedings.

Taylor, May and Damoorgian, JJ., concur.


author: Gerber, C.J.

text:
    Teias PEATENLANE, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3032
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2018]
    Carey Haughwout, Public Defender, and James W. McIntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   Gerber, C.J.

The defendant appeals from his statutory maximum fifteen-year sentence for burglary of a dwelling following his repeated violations of community control and probation. The defendant argues that the circuit court erred in two respects: (1) in not sentencing him as a youthful offender after the violations when he was originally placed on community control and probation as a youthful offender; and (2) in sentencing him as a violent felony offender of special concern posing a danger to the community, because no competent substantial evidence existed to support the court's finding that he poses a danger to the community under the factors listed in section 948.06(8)(e)1., Florida Statutes (2012).

On the defendant's first argument, the state properly concedes error. See , e.g. , Smith v. State , 143 So.3d 1023, 1024-25 (Fla. 4th DCA 2014) ("When a defendant violates his youthful offender probation by committing a substantive violation, the court is not bound to the usual youthful offender sentence of six years or less and can impose up to the statutory maximum for the underlying offenses. However, once a trial court imposes a youthful offender sentence, it must continue that status upon resentencing after a violation of probation or community control .") (emphasis added; internal citations, footnote, and quotation marks omitted).

On the defendant's second argument, we review to determine whether competent substantial evidence existed to support the circuit court's danger finding, and whether the circuit court abused its discretion in making the danger finding. Cf. Riggins v. State , 830 So.2d 920, 921 (Fla. 4th DCA 2002) ("The determination of whether a violation of probation is willful and substantial is a question of fact and will not be overturned on appeal unless the record shows that there is no evidence to support it.... [W]e once again recognize that the trial court is in the best position to evaluate the credibility of witnesses and on appeal we are obligated to give great deference to the findings of the trial court."); Miller v. State , 661 So.2d 353, 355 (Fla. 4th DCA 1995) ("On appeal our review is limited to whether the trial court abused its discretion in revoking defendant's probation.").

The defendant contends that the standard of review on his second argument is de novo , relying upon our sister court's holding in Williamson v. State , 180 So.3d 1224, 1224 n.1 (Fla. 1st DCA 2015) : "Whether a trial court erred in designating a defendant as a violent felony offender of special concern is reviewed by an appellate court de novo. "

Respectfully, our sister court's application of the de novo standard of review in Williamson may have been stated too broadly as quoted above. The issue upon which our sister court applied the de novo standard of review, as well the issue in the case upon which our sister court relied, Jeffers v. State , 106 So.3d 37 (Fla. 2d DCA 2013), was whether the court incorrectly relied on a qualifying offense which the defendant committed before section 948.06 was enacted. That being an issue of law, we would agree the de novo standard of review applied in those cases.

Here, however, the defendant argues no competent substantial evidence existed to support the court's finding that he poses a danger to the community under the factors listed in section 948.06(8)(e), Florida Statutes (2012). That being an issue of fact and an issue of discretion, we conclude that the competent substantial evidence and abuse of discretion standards of review apply here.

Applying those standards of review, we affirm. The circuit court orally recited the evidence and pronounced its findings as follows:

I am making a determination that the Defendant does pose a danger to the community. And I base that finding on the nature and the circumstances of the violation to include the fact that he originally caught a break in his case and I departed from the guidelines. He was supposed to go to prison initially, that's what the Legislature said was an appropriate sentence.
But I gave him a break by sentencing him as a Youthful Offender and keeping him out. He violated that trust and that break by abusing illegal narcotics.
...
And among the things he was told to do was not consume alcohol or intoxicants and to do his logs and do those other things. And he turned around and violated the Court's trust, again, by just committing the exact same thing indicating to this Court an unwillingness to follow simple instructions like not abusing drugs.
Additionally, the Court is allowed to look at the offender's present conduct. And it says, including criminal convictions. So it's not limited to criminal convictions, it includes ... his behavior while on probation.
The Court witnessed him testify under oath in a proffer implicating another individual in a burglary. If that was a lie in order to secure a more favorable sentence to himself then it is surely a despicable act to try and implicate someone else in a second degree felony in order to lower your own sentence, if that's not true.
On the other hand, if that was true and then come in during a trial and perjure oneself under oath before the Court in an attempt to twist justice and to affect the outcome of the case is equally despicable.
...
And he testified that he had committed perjury before. Now, whether he perjured himself at his proffer or whether he perjured himself in the trial, he admitted to committing perjury. And in trying to, again, deflect blame from himself, he testified that a member of the Florida Bar advised him to perjure himself in order to get a better sentence.
And on more than one occasion he testified under oath that his Counsel told him to perjure himself under oath. I find that testimony to be incredible. So whether he's willing to turn in a friend and falsely implicate him to get a better sentence or he's willing to attack and potentially put the license of a professional in danger in order to save himself, all I see is an individual who is willing to say and do and manipulate anything in order to get his own way. And that once he does get his own way, he doesn't follow through on his commitments. He continues to violate and show a flagrant disregard for the law.
So I do find him to be a danger to the community. I'm going to revoke his Community Control, adjudicate him to be guilty, sentence him to 15 years in [a] Florida State Prison with credit for 353 days already served.

The court later entered a short written order summarizing its ultimate finding as stated above.

Based on the circuit court's oral recitation of the evidence, competent substantial evidence existed to support the court's ultimate finding that the defendant poses a danger to the community, and that the circuit court did not abuse its discretion under the very broad factors listed in section 948.06(8)(e) 1., Florida Statutes (2012):

a. The nature and circumstances of the violation and any new offenses charged.
b. The offender's present conduct, including criminal convictions.
c. The offender's amenability to nonincarcerative sanctions based on his or her history and conduct during the probation or community control supervision from which the violation hearing arises and any other previous supervisions, including disciplinary records of previous incarcerations.
d. The weight of the evidence against the offender.
e. Any other facts the court considers relevant.

§ 948.06(8)(e) 1., Fla. Stat. (2012).

We also note that, irrespective of the circuit court's findings made under section 948.06(8)(e), the defendant's sentence remains legal. See Whittaker v. State , 223 So.3d 270, 275 (Fla. 4th DCA 2017) ("[E]ven when a trial court finds under section 948.06(8)(e) that a defendant designated as a VFOSC poses a danger to the community, this finding has no bearing on the statutory maximum sentence, but rather is relevant to the decision whether to revoke probation. Where a trial court imposes a guidelines sentence on a defendant who has been designated as a VFOSC, the sentence is legal irrespective of the findings made under section 948.06(8)(e).") (internal quotation marks and citation omitted).

Based on the foregoing, we affirm the defendant's statutory maximum fifteen-year sentence, and reverse only to the extent that the circuit court did not sentence him as a youthful offender after the violations. We remand for the circuit court to correct the sentence to include the youthful offender designation. It shall not be necessary for the defendant to be present for this administrative correction to the sentence.

Affirmed in part, reversed in part, and remanded for YO designation.

Kuntz, J., concurs.

Gross, J., concurs in part and dissents in part with opinion.

Gross, J., concurring in part, dissenting in part.

I concur in the portion of the majority opinion concerning the youthful offender designation.

I dissent because the record does not support the trial court's designation of appellant as a "danger to the community" within the meaning of section 948.06(8)(e) 1., Florida Statutes (2012).

Subsection 948.06(8) creates a special classification of probationer-a "violent felony offender of special concern." ("VFOSC"). § 948.06(8)(a), Fla. Stat. (2012). For offenders on probation, or who are placed on probation, the key to the VFOSC classification is the commission of a "qualifying offense," which is defined as those crimes specified in subsection 948.06(8)(c).

Appellant committed a qualifying offense because he was placed on probation and community control for the qualifying offense of burglary of a dwelling. See § 948.06(8)(c) 12., Florida Statutes (2012).

If a person qualifies as a VFOSC, after a court finds that the offender has committed a violation of probation other than failure to pay costs, fines, or restitution, the court is required to make written findings as to whether the offender "poses a danger to the community." § 948.06(8)(e) 1., Fla. Stat. (2012). If the court finds that the offender poses a danger to the community, the court "shall revoke probation and shall sentence the offender up to the statutory maximum, or longer if permitted by law." § 948.06(8)(e) 2.a., Fla. Stat. (2012). If the court finds no such danger, then the court is free to treat the offender the same as any other probationer who has violated probation.

Appellant violated his probation because he tested positive for marijuana use and failed to submit required job search logs. He admitted these violations.

Three witnesses testified at the "danger" hearing. All of them knew appellant. None of them testified that he was a danger to the community.

Appellant's probation officer said generally positive things about appellant but was not comfortable testifying as to whether or not he posed a community danger.

A sheriff's office employee who had worked with appellant said positive things about her contact with him. Based on her interactions with him, she did not "see him as a danger in the community."

Appellant's substance abuse counselor also said positive things about appellant and said she was not aware of anything suggesting that appellant was a danger to the community.

Appellant testified and apologized for his "immature and stupid" behavior.

Nonetheless, the circuit court ruled that appellant posed a danger to the community, focusing primarily on three factors: (1) appellant had abused illegal drugs while on probation; (2) appellant was placed on probation for burglary, a qualifying offense; (3) at a codefendant's trial, appellant made inconsistent statements concerning the codefendant's involvement in the burglary. The court revoked appellant's probation and sentenced him to 15 years in prison as a VFOSC.

Under section 948.06(8), a "danger to the community" is not a freewheeling concept unhinged from the statute. Rock and roll music was once considered dangerous to the morals of teenagers, but that type of soft danger is outside the purview of the statute.

Reading section 948.06(8) as a whole, the concept of "danger" is obviously linked to the enumerated offenses that generate the VFOSC classification. The intent of the statute is to protect Floridians from the type of individuals who commit the crimes enumerated in subsection 948.06(8)(c)1-19. All are crimes that directly put a person or body in physical peril. This view of "danger" under the statute is consistent with its common meaning: "exposure to harm or injury; risk; peril." THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE366 (1967). Section 948.06(8)(e) 1.a-e sets out factors to guide the trial court in evaluating this risk.

The record at the danger hearing does not support the trial court's finding. Appellant's marijuana usage is not an offense enumerated in subsection 948.06(8)(c)1-19. In fact, no type of drug possession or use, even of the most dangerous drugs, is mentioned in that subsection. It is inconceivable that Floridians can be placed in "danger" by appellant's marijuana consumption, an act legal in La Jolla. Similarly, appellant's dishonesty at the codefendant's trial physically endangered no one. Crimes of pure dishonesty, such as perjury and grand theft, are not qualifying offenses for the VFOSC designation. None of the witnesses who were familiar with appellant outside of the courtroom testified that he was a danger to the community.

The circuit court's finding that appellant was a VFOSC, given the few moments he was in the courtroom, should be reversed, with the case remanded for resentencing.