author: PER CURIAM. PARIENTE, J., CANADY, J.,

text:
    Roger Lee CHERRY, Petitioner, v. Julie L. JONES, etc., Respondent.
    No. SC15-957.
    Supreme Court of Florida.
    Dec. 1, 2016.
    Linda McDermott of McClain & McDer-mott, PA,, Estero, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL; and Stacey E. Kircher, Assistant Attorney General, Daytona Beach, FL, for Respondent.
   PER CURIAM.

This case is before the Court on the petition of Roger Lee Cherry for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. For the following reasons, we grant Cherry’s petition and remand to the circuit court for an evidentiary hearing on Cherry’s claim of intellectual disability.

Roger Lee Cherry was convicted of two counts of first-degree murder, after which a jury recommended the sentence of death by a vote of seven to five for the first count and nine to three for the second count. We affirmed the convictions and one of the death sentences but vacated the other sentence with instructions to enter a life sentence. Cherry v. State, 544 So.2d 184 (Fla.1989).

In a 2005 evidentiary hearing, Drs. Gregory Prichard and Peter Bursten testified that Cherry met the criteria for intellectual disability. The experts testified that Cherry received a full scale IQ score of 72. The experts also- found that Cherry met the other two prongs for establishing that he is intellectually disabled. Nevertheless, the circuit court denied relief, finding that Cherry did not meet the statutory definition of intellectual disability. We affirmed in Cherry v. State, 959 So.2d 702 (Fla.2007).

Cherry asserts that we should revisit our prior decision in which the Court found that Cherry was not intellectually disabled under the first prong of Cherry, thereby precluding consideration of the remaining Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), factors. Similar to the defendant in Hall v. Florida, — U.S. -, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014), Cherry took multiple IQ tests over the course of thirty-seven years. Cherry, 959 So.2d at 712 n. 6. Based on the new standard imposed by Hall and taking into account the standard error of measurement of IQ tests, we find that Cherry is entitled to an evidentiary hearing on the remaining prongs to establish whether he has an intellectual disability. See Hall, 134 S.Ct. at 1993, 2000, 2001 (stating that a determination of intellectual disability requires a court to “take into account the standard error of measurement” of IQ tests rather than implement a “rigid rule” characterizing intellectual disability as an IQ of 70 or below.) We therefore grant Cherry’s petition and remand this case to the circuit court for an evidentiary hearing in accordance with Hall. See Walls v. State, — So.3d -, 41 Fla. L. Weekly S466 (Fla. Oct. 20, 2016).

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur.

PARIENTE, J., concurs with an opinion.

CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

PARIENTE, J.,

concurring.

In 2007, this Court unanimously denied Roger Lee Cherry relief on his claim of intellectual disability because Cherry had a full scale IQ score of 72. Cherry v. State, 959 So.2d 702 (Fla.2007). The Court was wrong, as we have now been told by the United States Supreme Court in Hall v. Florida, — U.S. -, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014), and the error is of such constitutional magnitude that the Eighth Amendment demands that the error be corrected. I was part of the Court in Cherry that made a legal error — one that could literally mean the difference between life and death.

Yet Justice Canady, in his dissent in this case, which he elaborates on in his dissent in Walls v. State, — So.3d -, 41 Fla. L. Weekly S466, 2016 WL 6137287 (Fla. Oct. 20, 2016), states that Cherry should not get the benefit of Hall — even though the United States Supreme Court specifically disapproved of the bright-line IQ cutoff set forth in the very case involving Roger Lee Cherry:

In summary, every state legislature to have considered the issue after Atkins— save Virginia’s — and whose law has been interpreted by its courts has taken a position contrary to that of Florida. Indeed, the Florida Legislature, which passed the relevant legislation prior to Atkins, might well have believed that its law would not create a fixed cutoff at 70. The staff analysis accompanying the 2001 bill states that it “does not contain a set IQ level.... Two standard deviations from these tests is approximately a 70 IQ, although it can be extended up to 75.” Fla. Senate Staff Analysis and Economic Impact Statement, CS/SB 238, p. 11 (Feb. 14, 2001). But the Florida Supreme Court interpreted the law to require a bright-line cutoff at 70, see Cherry, 959 So.2d, at 712-713, and the Court is bound by that interpretation.

Hall, 134 S.Ct. at 1998 (emphasis supplied).

Justice Kennedy, writing for the majority in Hall, also explained the flaw in looking only at IQ as conclusive evidence of intellectual disability:

It is not sound to view a single factor as dispositive of a conjunctive and interrelated assessment. See DSM-5, at 37 (“[A] person with an IQ score above 70 may have such severe adaptive behavior problems ... that the person’s actual functioning is comparable to that of individuals with a lower IQ score”). The Florida statute, as interpreted by its courts, misuses IQ score on its own terms; and this, in turn, bars consideration of evidence that must be considered in determining whether a defendant in a capital case has intellectual disability. Florida’s rule is invalid under the Constitution’s Cruel and Unusual Punishments Clause.

Id. at 2001 (emphasis supplied).

And further directing that intellectual disability could not be determined by a number but by a consideration of all factors, including adaptive functioning, the Supreme Court warned:

Intellectual disability is a condition, not a number. See DSM-5, at 37. Courts must recognize, as does the medical community, that the IQ test is imprecise. This is not to say that an IQ test score is unhelpful. It is of considerable significance, as the medical community recognizes. But in using these scores to assess a defendant’s eligibility for the death penalty, a State must afford these test scores the same studied skepticism that those who design and use the tests do, and understand that an IQ test score represents a range rather than a fixed number. A State that ignores the inherent imprecision of these tests risks executing a person who suffers from intellectual disability. See APA Brief 17 (“Under the universally accepted clinical standards for diagnosing intellectual disability, the court’s determination that Mr. Hall is not intellectually disabled cannot be considered valid”).

Id. (emphasis supplied).

As this Court recognized in Oats v. State, Hall changed the manner in which courts must consider evidence of intellectual disability. We stated that: “courts must consider all three prongs in determining an intellectual disability, as opposed to relying on just one factor as dispositive ... [tjhese factors are interdependent, if one of the prongs is relatively less strong, a finding of intellectual disability may still be warranted based on the strength of other prongs.” Oats, 181 So.3d 457, 467-68 (Fla.2015).

Justice demands that Roger Lee Cherry have an opportunity to establish that he is intellectually disabled under the standards established by the United States Supreme Court under the Eighth Amendment, which prohibits the execution of those who are, in fact, intellectually disabled. As we stated in Thompson v. State, 208 So.3d 49, 50, SC15-1752, 2016 WL 6649950, at *1 (Fla. Nov. 10, 2016), “to fail to give [the defendant] the benefit of Hall, which disapproved of Cherry, would result in a manifest injustice, which is an exception to the law of the case doctrine.” More than fundamental fairness, the risk of executing a person who is not constitutionally eligible for the death penalty surpasses any other considerations that this Court looks to in attempting to ensure the even-handed administration of the death penalty. This principle could not be better expressed than in the words of Justice Kennedy writing for the majority in Hall:

The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits then- execution. Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world. The States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects.

Hall, 134 S.Ct. at 2001. I concur with the majority that Cherry is entitled to a new evidentiary hearing pursuant to the United States Supreme Court’s decision in Hall and our decision in Oats.

CANADY, J.,

dissenting.

For the reasons I have explained in my dissent in Walls v. State, — So.3d - 41 Fla. L. Weekly S466, 2016 WL 6137287 (Fla. Oct. 20, 2016) (Canady, J., dissenting), I have concluded that Hall v. Florida, — U.S. -, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014), should not be given retroactive effect. I would therefore deny Cherry relief.

POLSTON, J., concurs.


source: Caselaw Access Project

license: Public Domain

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    Transguard Ins. Co. of America, Inc. v. Klein
    2D15-4780
    11/24/2015
   Proh.den.


text:
    Tucci v. Aurora Loan Services, LLC
    2D15-1047
    12/03/2015
   App.dism.


text:
    Varnadoe v. Mc Gill
    2D15-1938
    12/21/2015
   App.dism.


text:
    Ventura v. State
    2D15-2157
    08/26/2015
   Pet. den.


text:
    Vigna v. Vigna
    2D15-4806
    12/09/2015
   App.dism.


text:
    Vinacco v. Vinacco
    2D15-5199
    12/23/2015
   App.dism.


text:
    Von Goetzman v. Starcher
    2D15-5704
    11/16/2016
   Aff.

Cir. Ct. (Hills-borough)


text:
    Von Goetzman v. U-Haul of Florida, Inc.
    2D15-5296
    11/09/2016
   Aff.

Cir. Ct. (Hills-borough)


text:
    Ward v. Hicks
    2D15-3789
    12/23/2015
   App.dism.


text:
    Wilson v. State
    2D15-3025
    10/14/2015
   Pet. den.


text:
    Wilson v. State
    2D15-4560
    12/03/2015
   App.dism.


text:
    Wilson v. State
    2D15-4327
    10/14/2016
   Aff.

Cir. Ct. (Polk)


text:
    Woods v. State
    2D15-4634
    11/04/2015
   Proh.den.


text:
    Yisha v. Mob Enterprises, LLC
    2D15-5632
    01/08/2016
   App.dism.


text:
    Zucallo v. State
    2D14-806
    01/15/2016
   Aff.

Cir. Ct. (Sarasota)


text:
    511 Palm, LLC v. Suntrust Mortg., Inc.
    2D15-3190
    11/09/2016
   Aff.

Cir. Ct. (Pinel-las)


text:
    THIRD DISTRICT
    Alvarez v. Xerox Recovery Services
    3D15-2826
    10/19/2016
   Aff.

Cir. Ct. Dade) (Miami-


text:
    Ancrum v. State
    3D15-474, 3D15-475
    11/09/2016
   Aff.

Cir. Ct. Dade) (Miami-


text:
    Aracena v. State
    3D16-2124
    10/19/2016
   Aff.

Cir. Ct. Dade) (Miami-


text:
    Baldwin v. State
    3D16-1147
    08/10/2016
   Aff.

Cir. Ct. Dade) (Miami-


text:
    Batts v. State
    3D15-1862
    10/05/2016
   Aff.

Cir. Ct. Dade) (Miami-


text:
    Beach Food Market, Inc. v. ARRP Miami, LLC
    3D15-1727, 3D16-348
    10/26/2016
   Aff.

Cir. Ct. Dade) (Miami-


text:
    Bendross v. State
    3D16-1497
    09/07/2016
   Aff,

Cir. Ct. Dade) (Miami-


text:
    Blash v. State
    3D15-1694
    10/13/2016
   Aff.

Cir. Ct. Dade) (Miami-


text:
    Bolano v. Bolano
    3D16-346
    10/13/2016
   Aff.

Cir. Ct. Dade) (Miami-


text:
    Bowens v. State
    3D15-1697
    10/13/2016
   Aff.

Cir.' Ct. Dade) (Miami-


text:
    Brown v. State
    3D16-1589
    10/05/2016
   Aff.

Cir. Ct. Dade) (Miami-


text:
    Brown v. State
    3D16-1695
    11/09/2016
   Aff.

Cir. Ct. Dade) (Miami-


text:
    BCML Holding, LLC v. Wells Fargo Bank, N.A.
    3D15-871
    09/28/2016
   Aff.

Cir. Ct. Dade) (Miami-


text:
    BK Centroamerica Cayman, Ltd. v. Burger King Corp.
    3D16-158
    10/13/2016
   Aff.

Cir. Ct. Dade) (Miami-


text:
    Calhoun v. State
    3D16-2082
    11/09/2016
   Aff.

Cir. Ct. Dade) (Miami-


text:
    Cardenas v. State
    3D16-1966
    10/26/2016
   Aff.

Cir. Ct. Dade) (Miami-


text:
    Castillo v. State
    3D16-1074
    10/13/2016
   Aff.

Cir. Ct. Dade) (Miami-


text:
    Charlton v. State
    3D16-2052
    10/26/2016
   Aff.

Cir. Ct. Dade) (Miami-


text:
    Childress v. State
    3D16-1734
    10/05/2016
   Aff.

Cir, Ct, Dade) (Miami-


text:
    Cueto v. Wells Fargo Bank, N.A.
    3D15-2403
    10/26/2016
   Aff.

Cir. Ct. Dade) (Miami-


text:
    Cyrus v. State
    3D16-1711
    10/05/2016
   Aff.

Cir. Ct. Dade) (Miami-


text:
    Del Toro v. State
    3D16-2071
    11/23/2016
   Aff.

Cir. Ct. Dade) (Miami-


text:
    Delhall v. State
    3D16-2021
    10/05/2016
   Aff.

Cir. Ct. Dade) (Miami-


text:
    Didato v. Wilmington Trust Co.
    3D15-254
    11/30/2016
   Aff.

Cir. Ct. (Monroe)


text:
    Doyle v. State
    3D16-1563
    10/05/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Duran v. State
    3D16-1863
    10/05/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Frank v. State
    3D16-0598
    10/05/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Franklin v. State
    3D16-2217
    11/16/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Friend v. State
    3D14-2901, 3D14-2922
    09/07/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Garrido v. State
    3D15-1095
    09/28/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Girtman v. State
    3D15-2055
    11/23/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Gonzalez v. State
    3D16-2068
    10/26/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Gonzalez v. State
    3D16-2083
    11/23/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Gonzalez v. VanDyk Mortg. Corp.
    3D16-530
    11/16/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Gregory v. State
    3D16-1120
    10/26/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Groman v. State
    3D16-1507
    10/19/2016
   Aff.

Cir. Ct. (Monroe)


text:
    Hamilton v. State
    3D16-1542
    10/26/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Henderson v. State
    3D15-2536
    11/09/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Henton v. State
    3D15-645
    10/26/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Hernandez v. U.S. Bank Trust, NA
    3D16-105
    11/23/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Jackson v. State
    3D16-1233
    09/14/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    James v. State
    3D16-2023
    10/19/2016
   Aff.

Cir. Ct. (Monroe)


text:
    Jean v. State
    3D16-2011
    11/09/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Jeudine v. City of Homestead
    3D16-752
    11/09/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Johnson v. State
    3D14-3031
    09/07/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Johnson v. State
    3D16-1911
    10/05/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Joseph v. HSBC Bank USA, N.A.
    3D15-1846
    10/19/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Junes v. State
    3D16-2155
    11/09/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Kofaxcurve LLC v. AMH 21, LLC
    3D16-106
    10/26/2016
   Aff.

Cir. Ct. (Miami Dade)


text:
    Laffitte v. State
    3D16-1969
    10/13/2016
   Aff.

Cir. Ct. (Miami Dade)


text:
    Lake Success Hoa Management, LLC v. Wells Fargo Bank, N.A.
    3D15-1582
    10/19/2016
   Aff.

Cir. Ct. (Miami Dade)


text:
    Lawton v. State
    3D16-1612
    10/05/2016
   Aff.

Cir. Ct. (Miami Dade)


text:
    Lepre v. Department of Business and Professional Regulation
    3D15-2445
    09/07/2016
   Aff.

DBPR


text:
    Martin v. State
    3D16-986
    10/05/2016
   Aff.

Cir. Ct. (Monroe)


text:
    Matos v. State
    3D16-1050
    07/20/2016
   Aff.

Cir. Ct. (Miami Dade)


text:
    McCray v. State
    3D15-2009
    10/13/2016
   Aff.

Cir. Ct. (Miami Dade)


text:
    Melendez v. State
    3D16-330
    10/13/2016
   Aff.

Cir. Ct. (Miami Dade)


text:
    Melendez v. State
    3D16-1913
    10/26/2016
   Aff.

Cir. Ct. (Miami Dade)


text:
    Mingo v. State
    3D16-1889
    09/21/2016
   Aff.

Cir. Ct. (Miami Dade)


text:
    Montgomery v. State
    3D16-1890
    11/02/2016
   Aff.

Cir. Ct. (Miami Dade)


text:
    Munoz v. Davis
    3D15-1431
    11/09/2016
   Aff.

Cir. Ct. (Miami Dade)


text:
    Muselaire v. State
    3D16-2110
    11/09/2016
   Aff.

Cir. Ct. (Miami Dade)


text:
    Narvaez v. State
    3D15-1959
    11/23/2016
   Aff.

Cir. Ct. (Miami Dade)


text:
    Norris v. State
    3D16-1709
    10/26/2016
   Aff.

Cir. Ct. (Miami Dade)


text:
    O.D. v. State
    3D16-878
    10/13/2016
   Aff.

Cir. Ct. (Miami Dade)


text:
    Osme v. Osme
    3D15-1946
    10/26/2016
   Aff.

Cir. Ct. (Miami Dade)


text:
    Pacheco v. State
    3D16-170
    11/16/2016
   Aff.

Cir. Ct. (Miami Dade)


text:
    Palm-Aire Holdings, LLC v. JRGS Investments, LLC
    3D15-2379
    10/26/2016
   Aff.

Cir. Ct. (Miami Dade)


text:
    Pawley v. State
    3D16-2120, 3D16-2286
    11/16/2016
   Aff.

Cir. Ct. (Monroe)


text:
    Payen v. Helm A.G.
    3D15-2589
    10/26/2016
   Aff.

Cir. Ct. (Miami Dade)


text:
    Perez-Tejon v. State
    3D16-1376
    09/28/2016
   Aff.

Cir. Ct. (Miami Dade)


text:
    Philip Morris USA, Inc. v. Merino
    3D15-2035
    11/09/2016
   Aff.

Cir. Ct. (Miami Dade)


text:
    Pitts v. State
    3D16-1467
    10/13/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Poindexter v. State
    3D14-2788
    06/22/2016
   Aff.

Cir. Ct. (Monroe)


text:
    R.E. v. State
    3D16-880
    10/13/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Reid v. State
    3D16-1634
    11/09/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Renaissance Joint Venture v. Garcia
    3D15-2907
    11/09/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Richer v. State
    3D15-229
    10/19/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Ritter v. Ritter
    3D15-2144, 3D15-673
    10/13/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Roberts v. State
    3D15-2722
    03/09/2016
   AE

Cir. Ct. (Miami-Dade)


text:
    Roberts v. State
    3D16-1417
    10/05/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Rodriguez v. Deutsche Bank Nat. Trust Co.
    3D15-1438
    10/05/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Rodriguez v. State
    3D16-609
    10/13/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Russ v. State
    3D16-1764
    10/05/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Shaw v. State
    3D16-379
    04/20/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Sotolongo v. State
    3D16-1909
    10/05/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    St. John Institutional Missionary Baptist Church, Inc. v. Southeast Overtown
    3D15-1515
    10/26/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    State v. Kinsey
    3D14-3011
    10/13/2016
   AE

Cir. Ct. (Miami-Dade)


text:
    Stern v. State
    3D16-1339
    09/14/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Terry v. State
    3D16-287
    07/20/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Torrente v. HSBC Bank USA, Nat. Ass’n
    3D16-343
    10/26/2016
   AE.

Cir. Ct. (Miami-Dade)


text:
    Torres v. State
    3D16-1968
    11/09/2016
   AE.

Cir. Ct. (Miami-Dade)


text:
    Trellez v. State
    3D16-856
    09/07/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    V.E. v. State
    3D16-826
    10/19/2016
   AE.

Cir. Ct. (Miami-Dade)


text:
    Valdez v. Citizens Property Ins. Corp.
    3D15-1332
    10/26/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    W.S. v. State
    3D15-1955
    10/13/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Weill v. LAAD Americas, N.V.
    3D16-1278
    10/26/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Williams v. State
    3D16-2020
    10/19/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Wilson v. State
    3D16-916
    09/21/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Woods v. State
    3D16-1970
    10/13/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    FIFTH DISTRICT
    Powell v. State
    5D15-2004
    01/27/2017
   Aff.

Cir. Ct. (Bre-vard)


author: PER CURIAM.

text:
    Kimberly Lorene HOGUE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6077.
    District Court of Appeal of Florida, First District.
    Nov. 28, 2012.
    Nancy A. Daniels, Public Defender, Devin Collier, Assistant Public Defender, Tallahassee, for Appellant,
    Pamela Jo Bondi, Attorney General, Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

As to Appellant’s first issue, we affirm without comment. As to Appellant’s second issue, we also affirm. See State v. Adkins, 96 So.3d 412 (Fla.2012).

AFFIRMED.

PADOVANO, RAY, and MAKAR, JJ., concur.


text:
    Charlie Lee DENMARK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4674.
    District Court of Appeal of Florida, First District.
    March 18, 2013.
    Charlie Lee Denmark, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

This petition seeks belated appeal of judgments and sentences in two circuit court case numbers. This court relinquished jurisdiction to the circuit court for evidentiary proceedings pursuant to Staley v. State, 12 So.3d 778 (Fla. 1st DCA 2009).

Based on the special master’s findings, petitioner is granted a belated appeal of the July 19, 2011, judgment and sentence in Baker County Circuit Court case number 02-2010-CF-000595-XXAXMX. The request for belated appeal of the March 20, 2012, judgments and sentences in Baker County Circuit Court case numbers 02-2010-CF-000595-XXAXMX and 02-2010-CF-000596-XXAXMX is denied. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D), If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED in part, DENIED in part.

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


text:
    Jesse Dontase SQUARE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4532.
    District Court of Appeal of Florida, First District.
    March 18, 2013.
    James Owens, Public Defender, and Asma Anwar, Assistant Public Defender, Pensacola, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the July 12, 2012, judgment and sentence in Escambia County Circuit Court case number 2011-CF-002407-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

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


text:
    Michael D. ARRINGTON, Appellant(s)/Petitioner(s), v. William E. GREGORY Esquire, et al., Appellee(s)/Respondent(s).
    Nos. 3D13-1836, 3D13-1681.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 2013.
   Appellant’s motion to consolidate this case with case no. 3D13-1681 is granted, and the above referenced appeals are hereby consolidated for all appellate purposes under case no. 3D13-1836.

Upon consideration of the appellees’ motion for sanctions, the response by the appellant, and the absence of a record on appeal in case no. 3D13-1681, these appeals are dismissed for non-prosecution and failure to comply with applicable rule.

SUAREZ, LAGOA and SALTER, JJ., concur.


author: LAGOA, J. LOGUE, J.

text:
    KEY WEST SEASIDE, LLC, Appellant, v. CERTIFIED LOWER KEYS PLUMBING, INC., Appellee.
    No. 3D13-2589.
    District Court of Appeal of Florida, Third District.
    Sept. 2, 2015.

      Vincent F. Vaccarella and Craig R. Lewis, for appellant.
    Garcia & Smith, P.A., and Peter Rys-man, for appellee.
    Before SHEPHERD, LAGOA, and LOGUE, JJ.
   LAGOA, J.

Key West Seaside, LLC, (“Seaside”) appeals from an order denying its motion for attorney’s fees and costs pursuant to the offer of judgment statute, section 768.79, Florida Statutes (2010), and Florida Rule of Civil Procedure 1.442. Because a final judgment of no liability was entered in favor of Seaside, and because the trial court made no finding that Seaside’s offer of judgment was not made in good faith, we reverse and remand with instructions to determine reasonable attorney’s fees.

I. FACTUAL AND PROCEDURAL HISTORY

Certified Lower Keys Plumbing, Inc., (“Certified”) was the subcontractor on a condominium project owned by Seaside. Certified sued the following five defendants: (1) Seaside; (2) Current Builders of Fla., Inc., the general contractor; (3) Travelers Casualty and Surety Company of America, Inc., the surety; (4) CB Development; and (5) Michael Taylor, the president of Current Builders of Fla., Inc. One law firm represented all the defendants.

During the course of the litigation, each of the five defendants served an offer of judgment on Certified, none of which were accepted. Following trial, the trial court entered judgment against the general contractor. A judgment of no liability, however, was entered against Seaside. Specifically, the trial court ruled that “[jjudgment is hereby rendered in favor of Defendant KEY WEST SEASIDE, LLC on the basis that the lien was transferred to the bond of Defendant TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA and that Defendant KEY WEST SEASIDE, LLC, made payment in full to Defendant CURRENT BUILDERS OF FLA. INC.”

Seaside subsequently moved for attorney’s fees and costs under the offer of judgment statute and rule. The trial court denied the motion, basing its ruling in part on the testimony of Seaside’s attorney, Vincent Vaccarella, that the attorney’s fees “were billed to and paid by or on behalf of Current Builders of Fla., Inc.,” (“Current Builders”) pursuant to an indemnification agreement between Seaside and Current Builders. The trial court also based its denial of fees on “the fact that Attorney Vaccarella, while advocating for Defendants Current Builders of Fla., Inc., CB Development, Inc., and Travelers Casualty and Surety Company of America, Inc., made arguments adverse to Key West Seaside, LLC.” The trial court made no findings that Seaside made the offer of judgment in bad faith. This timely appeal followed.

II. ANALYSIS

The sole issue before this Court is whether the trial court erred in denying Seaside’s motion for fees and costs pursuant to section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1,442. Florida’s offer of judgment statute, section 768.79, provides in pertinent part that:

(1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him ... from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award. Where such costs and attorney’s fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiffs award.
(7)(a) If a party is entitled to costs and fees pursuant to the provisions of this section, the court may, in its discretion, determine that an offer was not made in good faith. In such case, the court may disallow an award of costs and attorney’s fees.

§ 768.79(1), (7)(a), Fla. Stat. (2010). Florida Rule of Civil Procedure 1.442(h)(1) further provides that “[i]f a party is entitled to costs and fees pursuant to applicable Florida law, the court may, in its discretion, determine that a proposal was not made in good faith. In such a case, the court may disallow an award of costs and attorneys’ fees.”

Under both the statute and rule, therefore, entitlement to fees and costs to a qualifying offeror is mandatory, if the statutory prerequisites have been met. Schmidt v. Fortner, 629 So.2d 1036, 1040 (Fla. 4th DCA 1993). Indeed,

once an offer has been filed by a defendant and a judgment is one of no liability by the defendant, the defendant has the right to an award of attorney’s fees. The sole basis on which a court can disallow an entitlement to an award of fees is if it determines that a qualifying offer was not made in good faith.

Mesa v. Ocean Enters., Inc., 803 So.2d 908, 909-10 (Fla. 4th DCA 2002) (holding that it was error for the trial court to deny a prevailing defendant attorney’s fees under the offer of judgment statute without making a finding that the offer was made in bad faith); see also Downs v. Coastal Sys. Int’l, Inc., 972 So.2d 258, 261 (Fla. 3d DCA 2008) (“[Ajbsent a finding that a party’s offer of judgment was not made in good faith, the trial court cannot disallow an entitlement to an award of fees.”); Vines v. Mathis, 867 So.2d 548, 550 (Fla. 1st DCA 2004); Mateo v. Rubiales, 717 So.2d 133, 135 (Fla. 4th DCA 1998) (holding that trial court’s failure to make a finding of bad faith under section 768.79(7)(a) where prerequisites of the statute have been fulfilled demands reversal of order denying entitlement to fees).

Here, the trial court denied Seaside’s entitlement to attorney’s fees without finding that Seaside’s proposal was not made in good faith. Instead, its ruling was based on the fact that a co-defendant was legally responsible for Seaside’s attorney’s fees, and on its finding that in representing this co-defendant, the law firm seeking fees made arguments contrary to Seaside’s position. The fact that another party or a nonparty may have paid the offeror’s attorney’s fees is of no consequence to the question of whether the offeror is entitled to fees and costs pursuant to the offer of judgment statute or rule.

Moreover, a review of the record indicates that there could have been no basis for the trial court to find that Seaside made its offer in bad faith. At the time the offer of judgment was made, the magistrate had ruled that Seaside’s lien was transferred to the Travelers bond, and the trial court upheld that ruling twice — including in the Final Judgment. It is well established, as a matter of law, that a determination that Seaside’s transfer of the lien to the Travelers bond precluded liability against Seaside. See § 713.24(1), Fla. Stat. (2013); Allied Gen. Contractors v. Superior Asphalt Co., 397 So.2d 727, 728 (Fla. 5th DCA 1981); Riviera Beach P’ship Ltd. v. S.I. Goldman Mech. Contractor, 345 So.2d 783, 784 (Fla. 4th DCA 1977); Deltona Corp. v. Indian Palms, Inc., 323 So.2d 282, 283 (Fla. 2d DCA 1975) (holding that an owner is not a proper party to a subcontractor’s suit for payment after its lien was transferred to bond); W. Plumbing & Heating Co. v. Hurley, 168 So.2d 328, 329-30 (Fla. 1st DCA 1964); see also Dep’t of Highway Safety & Motor Vehicles v. Weinstein, 747 So.2d 1019, 1020 (Fla. 3d DCA 1999) (holding that good faith exists as a matter of law where at the time an offer was made the offeror had a reasonable basis to conclude that its exposure was nominal); Wagner v. Brandeberry, 761 So.2d 443, 445-46 (Fla. 2d DCA 2000) (same). Furthermore, as our sister court explained in Vines, 867 So.2d at 550, the “entry of the no liability judgment in favor- of [the defendant] mandated an award of attorneys’ fees and costs absent a finding that [the] offer of judgment was not made in good faith.”

Because the trial court did not find that Seaside’s offer of judgment was made in bad faith and Seaside’s offer of judgment met the statutory requirement for entitlement to fees, we find that the trial court erred in denying fees and costs. Accordingly, we reverse the trial court’s order and remand with instructions for the trial court to determine reasonable attorney’s fees.

SHEPHERD, J., concurs.

LOGUE, J.

(dissenting).

For me, the dispositive legal point in this case is Seaside’s failure to provide a copy of the transcript of the evidentiary hearing which formed the basis for the trial court’s detailed and well-reasoned order. The order under review specifically states it is based on testimony taken at a hearing on August 22, 2013. Without reviewing the evidence presented and any findings the trial court made orally at the hearing, we are not in a position to opine that the trial court abused its discretion in denying Seaside attorney’s fees for its nominal offer of judgment.

The most basic, black letter principle of appellate law is that the trial court’s decision arrives before this court cloaked with a “presumption of correctness and the burden is on the appellant to demonstrate error.” Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). This principle is particularly applicable here because the trial court’s order can only be reversed based upon a determination that the trial court abused its discretion. § 768.79(7)(a), Fla. Stat. (2013); see also State Farm Fla. Ins. Co. v. Laughlin-Alfonso, 118 So.3d 314, 315 (Fla. 3d DCA 2013) (“The abuse of discretion standard of review governs this Court’s review of a trial court’s determination that a proposal for settlement was not made in good faith.”). Without a copy of the evidentiary hearing transcript, it is simply impossible for an appellate court to conclude that the trial court abused its discretion in this case.

As the Florida Supreme Court explained,

In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.... When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court cannot properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal. The trial court should have been affirmed because the record brought forward by the appellant is inadequate to demonstrate reversible error.

Applegate, 377 So.2d at 1152 (emphasis added).

Judge Padovano has noted, “the absence of a transcript is likely to present a serious problem if the order is one that turns on an issue of fact or the proper exercise of judicial discretion. In either of these events, it may be impossible to evaluate the order without reference to a full record of the testimony and other evidence.” Philip J. Padovano, Florida Appellate Practice § 18:3, at 342 (2012 ed.). We have both events here. We are asked to review an order that implicates both issues of fact and a trial court’s discretion. If any type of order requires a transcript in order to conduct a meaningful review, it is precisely this type of order which turns on issues of fact and the proper exercise of judicial discretion.

For this reason, in a virtually identical case, the Fourth District affirmed the denial of a motion for attorney’s fees based upon an offer of judgment because “[tjhere is no transcript of the hearing where the court denied the motion, and we cannot determine whether the trial court’s ruling was an abuse of its discretion.” Bank One, Corp. v. Bornschein, 987 So.2d 172, 172 (Fla. 4th DCA 2008). Seaside has the temerity to argue that the record on appeal indicates that there could have been no basis for the trial court to find that Seaside made its offer in bad faith. Seaside’s argument should be summarily rejected for the simple reason that the record is incomplete because Seaside failed to provide the transcript. In fact, lawyers who have taken similar liberties with the record when making arguments on appeal have been sanctioned. See, e.g., Thornber v. City of Fort Walton Beach, 534 So.2d 754, 755 (Fla. 1st DCA 1988).

Because Seaside failed to provide a copy of the evidentiary hearing transcript, we also cannot hold that the trial court failed to make a required finding of lack of good faith. For my part, although the order under review did not use any “magic words,” I find that the trial court’s order is replete with specific findings that point directly to Seaside’s lack of good faith in making the nominal offer, and therefore the order constitutes a sufficient finding of lack of good faith. But even if one did not accept the written order as sufficient, it remains possible, indeed highly probable, that the trial court made such findings on the record at the hearing. Because the trial court’s order is cloaked with a presumption of correctness, it was Seaside’s burden to prove that no such findings were verbally made at the hearing. Applegate, 877 So.2d at 1152; Bornschein, 987 So.2d 172. Seaside failed to meet that burden. Id.

I also believe the majority errs by accepting Seaside’s argument that the nominal offer was in good faith as a matter of law because the trial court and this court on appeal found that the general contractor had, in fact, been paid (and therefore the lien against Seaside’s property for the unpaid work transferred to the general contractor’s bond). Seaside’s argument in this regard ignores the fact that Seaside and its attorney have adamantly maintained in every forum that the general contractor had not been paid. In the first appeal, Seaside, represented by the lawyer now seeking fees, argued “the trial court’s holding should be reversed since [the General Contractor] in fact never received payment as required by the subcontract.” Brief for Appellants at 49, Current Builders of Fla., Inc. v. Certified Lower Keys Plumbing, 105 So.3d 582 (Fla. 3d DCA 2012) (No. 3D11-2570) (emphasis added). Even after we upheld the trial court’s ruling to the contrary in Current Builders, Seaside and its lawyer have the gall to maintain in the initial brief in this appeal that “neither Certified nor the general contractor received final payment.” Yet Seaside and its lawyer simultaneously argue that the trial court and this court’s rejection of Seaside’s own argument proves that Seaside was justified in making a nominal offer of judgment.

I find Seaside’s argument on this point — to say the least — unpersuasive. If the reasonable foundation for Seaside’s nominal offer was the fact that the general contractor had been paid, why would Seaside consistently maintain (and still maintain) the general contractor had not been paid? Seaside’s argument makes no sense. It is the legal equivalent of dividing by zero.

This type of double-talk, like Seaside’s nominal offer of judgment at issue, forms a consistent pattern of lack of good faith that the trial judge summarized as the “peculiar alignment of the Defendants.” There is no gainsaying the alignment was peculiar. As the trial court found in denying the attorney’s fees at issue, Seaside’s own attorney consistently “made arguments adverse to Key West Seaside, LLC.” Seaside did not present a defense at trial. Seaside appealed a judgment that exonerated it. Seaside argued that the general contractor had not been paid, even though this argument was contrary to the facts and undermined its own defense. Time and again, to its own detriment, Seaside consistently aligned itself with the losing general contractor that the trial court expressly held attempted to defraud the subcontractor. Seaside acted in this manner because its lawyer was the general contractor’s lawyer, hired by the general contractor and paid by the general contractor.

The trial court was right that this alignment was “peculiar.” Seaside was acting as nothing more than a stalking horse or stooge for the general contractor and the general contractor’s lawyer (whose fees for representing Seaside we are being asked to award in this case). Under these circumstances, the trial court properly found that Seaside’s nominal offer of judgment was not based on any reasonable foundation, but was made merely a “Catch 22” intended to lay the predicate for a future award of attorney’s fees. Based even on the grossly inadequate record before us, Seaside’s offer was a textbook example of one lacking good faith. See Eagleman v. Eagleman, 673 So.2d 946, 948 (Fla. 4th DCA 1996).

I respectfully dissent.

      . This Court reviews de novo a trial court’s ruling on a motion to award attorney's fees and costs pursuant to the offer of judgment statute and rule. Wolfe v. Culpepper Constructors, Inc., 104 So.3d 1132, 1134 (Fla. 2d DCA 2012); Health First, Inc. v. Cataldo, 92 So.3d 859, 869 (Fla. 5th DCA 2012); Jacksonville Golfair, Inc. v. Grover, 988 So.2d 1225, 1226 (Fla. 1st DCA 2008).

      . Seaside joined the appeal in Current Builders, which found the General Contractor liable, even though the judgment found Seaside was not liable. Seaside was named as an appellant in the body of the notice of appeal and in the body of the initial brief. Notice of Appeal, Current Builders of Fla., Inc. v. Certified Lower Keys Plumbing, 105 So.3d 582 (Fla. 3d DCA 2012) (No. 3D11-2570) ("Defendants Current Builders of Florida, Inc., Travelers Causality Surety Company of American, Key West Seaside, LLC [the Developer], CB Development, Inc. and Michael Taylor, through undersigned counsel, appeal to the Florida Third District Court of Appeal....”); Brief for Appellants at 2, id. ("Current, Seaside [the Developer], Travelers, Taylor, and CB Development are defendants below and the appellants in this case.”).

      . After a two day non-jury trial, the trial court held that the general contractor’s transfer of all of its assets to the related corporation "constituted a fraudulent transfer, in an attempt to evade the lawful claim of [the Subcontractor], in violation of Florida law.”


author:
LAGOA, J.
      EMAS, J.,

text:
    MIAMI-DADE COUNTY BOARD OF COUNTY COMMISSIONERS, et al., Appellants, v. AN ACCOUNTABLE MIAMI-DADE, et al., Appellees.
    No. 3D16-2090.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 2016.

      Abigail Price-Williams, Miami-Dade County Attorney, and Oren Rosenthal and Michael B. Valdes, Assistant County Attorneys, for appellants.
    Greenspoon Marder and Joseph S. Geller, Fort Lauderdale; Ver Ploeg & Lump-kin and Andrew L. Gordon; Benedict P. Kuehne and Michael T. Davis, for appel-lees.
    KYMP LLP and Juan-Carlos Planas, for Eric Zichella as Amicus Curiae.
    Before SUAREZ, C.J., and LAGOA and EMAS, JJ.
   LAGOA, J.

Appellants, Miami-Dade County Board of County Commissioners (the “Board” or “County Commission”), Carlos Gimenez, in his capacity as Miami-Dade County May- or, and Christina White, in her capacity as Miami-Dade County Supervisor of Elections (collectively “Appellants”), appeal from the trial court’s entry of a writ of mandamus compelling Miami-Dade County to place on the November 8, 2016 General Election ballot an initiative petition submitted by Appellees, An Accountable Miami-Dade, Christian Ulvert, Tresnise Bryant, Michelle Davis and Caroline Williams (collectively “Appellees”). For the reasons set forth below, we reverse and vacate the writ.

I. FACTUAL AND PROCEDURAL HISTORY

a. The County’s Initiative Petition Process

In a September 10, 2002 election, the voters of Miami-Dade County approved an amendment to their County Charter concerning the initiatory petition process. In considering the issue, the voters were presented with the following ballot question:

County Question No. 9
Charter Amendment Placing Proposed Initiative Petitions on Ballot Without Further County Commission Action
Shall the Charter be amended to provide that if an initiative petition is deemed to be legally sufficient, the proposal shall be placed on the ballot without requiring any further action by the Board of County Commissioners, unless the Board determines to adopt the proposal?

(emphasis added).

The 2002 amendment is presently codified in Section 8.01 of the Charter. Section 8.01, titled Initiative, Referendum, and Recall, provides in pertinent part as follows.

The electors of the county shall have the power to propose to the Board of County Commissioners passage or repeal of ordinances and to vote on the question if the Board refuses action, according to the following procedure:
1. The person proposing the exercise of this power shall submit the proposal, including proposed ballot language to the Clerk of the Circuit Court who shall without delay approve as to form a petition for circulation in one or several copies as the proposer may desire. A public hearing shall be held on the proposal at the next Board of County Commissioner meeting subsequent to the date the Clerk approves the petition as to form.
2. The person or persons circulating the petition shall, within 120 days of the approval of the form of the petition, obtain the valid signatures of voters in the county in numbers at least equal to four percent of the registered voters in the county on the day on which the petition is approved, according to the official records of the County Supervisor of Elections. In determining the sufficiency of the petition, no more than 25 percent of the valid signatures required shall come from voters registered in any single county commission district. Each signer of a petition shall place thereon, after his name, the date, and his place of residence or precinct number. Each person circulating a copy of the petition shall attach to it a sworn affidavit stating the number of signers and the fact that each signature was made in the presence of the circulator of the petition.
3. The signed petition shall be filed with the Board which shall within 30 days order a canvass of the signatures thereon to determine the sufficiency of the signatures. If the number of signatures is insufficient or the petition is deficient as to form or compliance with this Section, the Board shall notify the person filing the petition that the petition is insufficient and has failed.
4.The Board may within 30 days after the date a sufficient petition is presented adopt the ordinance as submitted in an initiatory petition or repeal the ordinance referred to by a referendary petition. If the Board does not adopt or repeal the ordinance as provided above, then the proposal shall be placed on the ballot without further action of the Board.

b. The Current Petition Initiative

On April 26, 2016, An Accountable Miami-Dade, through Christian Ulvert, submitted an initiative petition, including proposed ballot language, to the Clerk of the Circuit Court. The petition contains the following ballot language:

Title: INITIATORY ORDINANCE PETITION, REVISING CAMPAIGN FINANCE CONTRIBUTION LIMITS AND TRUST FUND, AND BANNING CERTAIN CONTRACTOR CONTRIBUTIONS.
Summary: Should an ordinance be enacted addressing the appearance of ethical impropriety in county government; limiting campaign contributions to $250 per election per candidate to candidates for County offices; prohibiting large county contractors from making campaign contributions; amending the election campaign financing trust fund; repealing prior ordinances and resolutions in conflict; amending definition of gift; providing severability, code inclusion, and an effective date?

Two days after the petition was submitted, the Clerk of the Circuit Court (the “Clerk”) in a written letter dated April 28, 2016, notified Mr. Ulvert that “[t]he petition form complies with the format determined by the Supervisor Of Elections. Therefore, I have enclosed a copy of the approved petition form with the Clerk’s seal affixed thereto.” Significantly, the Clerk further notified Appellees “the Clerk approves the petition, as to form only. This approval as to form only does not address the substance of the petition, legal sufficiency of the proposed ordinance and/or factual accuracy of any statements herein.” (emphasis in original). The Clerk further directed Appellees to review Sections 3.06 and 8.01 of the Miami-Dade Home Rule Amendment and Charter (the “Charter”) as well as Section 12-23 of the Miami-Dade County Code and advised Ap-pellees that “[i]t is the responsibility of the petitioner to comply with all applicable laws governing the initiative petition process.” (emphasis in original)

After approval by the Clerk, and pursuant to Section 8.01(1) of the Charter, the subject petition was placed on the May 17, 2016 Board agenda for a public hearing. It is undisputed that at the May 17, 2016 meeting, the Board did not consider any motion on the petition and did not take any action with respect to the petition other than allowing Appellees and other members of the public to speak on the proposal.

The Clerk’s April 28, 2016 letter further informed Appellees that they had 120 days from April 28, 2016 to obtain the necessary signatures. The uncontroverted evidence in the record establishes that the Miami-Dade County Elections Department informed Appellees “that ballot questions submitted by municipalities by August 9, 2016 in final form and with all the required legal approvals would be placed on the November General Election Ballot.”

On August 2, 2016, Appellees filed their signed petitions with the Clerk of the Board of County Commissioners. Pursuant to Section 8.01(3) of the Charter, once signed petitions are submitted, the Board then has 30 days to “order a canvass of the signatures thereon to determine the sufficiency of the signatures.”

The Board, however, cannot order a canvass unless done as an act in a duly authorized and constituted meeting. A review of the Board’s 2016 Calendar shows that the regularly scheduled Board meeting of August 2, 2016 was cancelled because of the Board’s July 25 through August 31, 2016 recess, and that the next regularly scheduled meeting following recess was to be held on September 7, 2016. On August 8, 2016, the Chairman of the Board circulated a call for a special meeting of the Board on August 9, 2016 to address the petition. The August 9, 2016 special meeting, however, lacked a quorum and was not able to be convened. On August 22, 2016, the Chairman successfully convened a special meeting for the purpose of addressing the subject petition.

At the August 22, 2016 special meeting, the Board ordered the Supervisor of Elections to canvass the submitted petitions on an expedited basis. The record establishes that at the August 22, 2016 meeting, Appellees suggested that the Board defer consideration of the petition’s legal sufficiency to a later point in time.

On September 2, 2016, before the canvass was completed and before the Board considered or determined the petition’s sufficiency, Appellees filed a First Amended Petition for Writ of Mandamus. In their petition, Appellees asked the trial court to compel Miami-Dade County “to order that the campaign finance reform initiative ordinance petition be placed on the November 8, 2016 ballot or adopt the proposed ordinance if the Supervisor of Elections determines that the petition contains a sufficient number of signatures pursuant to the Home Rule Amendment and the Miami-Dade County Home Rule Charter.” On September 2, 2016, Appel-lees also filed a Motion to Expedite Consideration of Amended Petition for Writ of Mandamus.

On September 6, 2016, the trial court sua sponte requested that all parties appear for a hearing on September 8, 2016 at 10 a.m. The parties were expressly advised by the trial court’s judicial assistant that the hearing would only be on the motion to expedite. At no time prior to the September 8 hearing did the trial court issue an alternative writ in mandamus, provide notice that it would be considering the merits of the petition, or give the County the opportunity to show cause why such mandamus should not be granted.

Later on September 6, 2016, the Supervisor of Elections certified to the Board that the petition had been fully canvassed and contained 56,835 valid signatures and 72,189 invalid signatures. The Supervisor’s certification was subsequently added on to the agenda for the Board’s meeting scheduled for the following day, September 7, 2016.

At the September 7 meeting, the Board discussed both the status of the canvass and also the sufficiency of the petition. At that meeting, the Board determined that the petition was deficient as to form and that the petition had therefore failed. The record establishes that this was the first time that the Board made any determination regarding the sufficiency of the petition. Within an hour of that vote, Miami-Dade County filed a Consolidated Motion to Dismiss and Response to Motion to Expedite in the trial court below.

On September 8, 2016, the trial court proceeded with the scheduled hearing on the motion to expedite. Rather than address the motion to expedite — which was the only pending motion and which the trial court itself had advised the parties was the subject of the hearing — the trial court immediately proceeded to entertain argument on the merits of the petition itself. Our review of the video of the hearing, with which Appellees supplemented the record, confirms that the trial court began the hearing questioning the County on the merits of the petition and whether the initiative petition was sufficient. The Court at no time addressed the motion to expedite, which was the only matter it had noticed for hearing.

On Friday, September 9, 2016, the trial court issued an Order Granting Appellee’s First Amended Petition for Writ of Mandamus. The trial court found that Mandamus was warranted “[bjecause the initiative petition form was approved by the Clerk pursuant to section 8.01(1), and later approved by the Board of county commissioners [sic] on May 17, 2016, [and as such] the named officials consequently had a ministerial duty to either adopt the initiative petition or place it on November’s ballot. The Boards [sic] action in ordering the canvass of the signatures under County Charter 8.01(3) is merely ministerial, as is placement on the ballot if the Board does not adopt the ordinance.”

Following issuance of the written order, the County on the same day filed an emergency notice of appeal and a motion for expedited review. The County’s motion correctly noted that, pursuant to Florida Rule of Appellate Procedure 9.310(b)(2), the County’s Notice of Appeal automatically stayed the trial court’s order. This Court granted the motion for expedited appeal. On September 12, 2016, Appel-lees filed an Emergency Motion for Review and Vacation of Automatic Stay. This Court denied that motion on September 15, 2016.

II. ANALYSIS

a. The Entry of a Mandamus is Warranted only to Compel a Public Official to Discharge a Ministerial Duty

“Mandamus is a recognized remedy to require a public official, who is clothed with the authority, to discharge his duty.” Dante v. Ryan, 979 So.2d 1122, 1123 (Fla. 3d DCA 2008) (quoting Alexander v. City of Coral Gables, 745 So.2d 1004, 1005 (Fla. 3d DCA 1999)); see also Browning v. Young, 993 So.2d 64, 65 (Fla. 1st DCA 2008) (stating that mandamus is a civil remedy to compel a public official to discharge a ministerial duty); Eichelberger v. Brueckheimer, 613 So.2d 1372, 1373 (Fla. 2d DCA 1993) (“Mandamus is used to compel an official to perform lawful duties.”). “For the issuance of a writ of mandamus, the petitioner must demonstrate a clear legal right to the performance of a ministerial duty by the respondent and that no other adequate remedy exists.” Morse Diesel Int’l v.2000 Island Boulevard, Inc., 698 So.2d 309, 312 (Fla. 3d DCA 1997). “A duty or act is defined as ministerial when there is no room for the exercise of discretion, and the performance being required is directed by law.” Shea v. Cochran, 680 So.2d 628, 629 (Fla. 4th DCA 1996) (quoting Town of Manalapan v. Rechler, 674 So.2d 789, 790 (Fla. 4th DCA 1996)).

Mandamus is available only to “enforce an established legal right ... not to establish that right.” Morse Diesel Int’l, 698 So.2d at 312; accord Fla. League of Cities v. Smith, 607 So.2d 397, 401 (Fla. 1992) (“Mandamus may not be used to establish the existence of such a right, but only to enforce a right already clearly and certainly established in the law.”).

Here, the trial court granted the Appel-lees’ first amended petition for writ of mandamus based upon its conclusion that the Appellees had a clear legal right to place the proposed ordinance on the November 8, 2016 ballot. Specifically, the trial court concluded:

Because the initiative petition form was approved by the Clerk pursuant to section 8.01(1), and later approved by the Board of county commissioners on May 17, 2016, the named officials consequently had a ministerial duty to either adopt the initiative petition or place it on November’s ballot.

The relevant portion of Section 8.01 of the Charter provides:

3. The signed petition shall be filed with the Board which shall within 30 days order a canvass of the signatures thereon to determine the sufficiency of the signatures. If the number of signatures is insufficient or the petition is deficient as to form or compliance with this Section, the Board shall notify the person filing the petition that the petition is insufficient and has failed.
4. The Board may within 30 days after the date a sufficient petition is presented adopt the ordinance as submitted in an initiatory petition or repeal the ordinance referred to by a referendary petition. If the Board does not adopt or repeal the ordinance as provided above, then the proposal shall be placed on the ballot without further action of the Board.

As these provisions make clear, the Board’s duty to either adopt the petition as an ordinance or place the proposal on the ballot only arises if “a sufficient petition is presented.” However, if the “petition is deficient as to form or compliance with this Section, the Board shall notify the person filing the petition that the petition is insufficient and has failed.”

The trial court’s conclusion, therefore, that “the named officials” had a ministerial duty to either adopt the initiative petition or place it on the November ballot was incorrect because it was based upon an erroneous finding — that the Board “approved” the initiative petition on May 17, 2016. There is no evidence in the record that the Board “approved” the petition at the May 17 meeting, or that the Board approved the petition at any time.

In fact, at the August 22 special set Board meeting, Appellees suggested that the Board defer consideration of the sufficiency of the petition to a later date. The first time the Board considered the petition’s sufficiency was at its September 7, 2016 meeting. Contrary to the trial court’s finding in its order, the Board did not approve the petition but instead determined that the petition was deficient and had failed.

The Appellees in their answer brief properly concede that the Board did not “approve the petition as to form” at its May 17 meeting. The Appellees, however, argue that “[w]hile that [finding of the court] is not accurate, there is nothing in the trial court’s decision that suggests that the court in any way relied on that fact in reaching its decision.” We find Appellees’ argument without merit, as a review of the trial court’s order shows that the trial court’s ruling was clearly based on this incorrect finding.

Section 8.01(4) of the Charter only applies to a “sufficient petition.” The trial court’s order is premised on the erroneous finding that the Board approved the petition at its May 17, 2016 meeting and that Section 8.01(4) therefore applied. To the contrary, pursuant to Section 8.01(3), the Board’s determination at its September 7 meeting that the petition was deficient meant that the petition failed. The Board, therefore, was not required — nor was it even authorized — to take further action regarding the petition, whether by adopting it or by permitting it to be placed on the ballot.

Because no ministerial duty existed for the Board to place the petition on the ballot “without further action,” Appellees failed to establish a clear legal right to have the petition placed on the ballot. The trial court therefore erred in granting the amended petition for writ of mandamus and entering an order requiring the placement of this petition on the November 8, 2016 ballot. Accordingly, we reverse the trial court’s order and vacate the writ of mandamus compelling Miami-Dade County to add the initiative petition submitted by Appellees to the November 8, 2016 General Election ballot.

b. Trial Court’s Failure to Comply with Florida Rule of Civil Procedure 1.630

In addition to the reasons set forth above, and a separate basis for reversal, we find that the trial court failed to comply with the requirements of Florida Rule of Civil Procedure 1.630. Florida Rule of Civil Procedure 1.630 sets forth the procedure for a trial court’s issuance of extraordinary writs, including a writ of mandamus. Pursuant to Rule 1.630(d)(2), “[i]f the complaint shows a prima facie case for relief, the court shall issue ... an alternative writ in mandamus.” An alternative writ in mandamus is essentially an order to show cause. See Gilliam v. State, 996 So.2d 956, 958 (Fla. 2d DCA 2008) (stating that if a petition for writ of mandamus states a prima facie case for relief, the trial court must issue an alternative writ, “which ‘is essentially an order to show cause why the requested relief should not be granted.’ ” (quoting Bostic v. State, 875 So.2d 785, 786 (Fla. 2d DCA 2004))); Conner v. Mid-Fla. Growers, Inc., 541 So.2d 1252, 1256 (Fla. 2d DCA 1989) (“Upon receipt of a facially sufficient petition for writ of mandamus, a court having jurisdiction to consider such a petition should first issue an alternative writ, which is essentially an order to show cause why the requested relief should not be granted.”). “If the petition and answer to the alternative writ raise disputed factual issues, the trial court must resolve these issues upon evidence submitted by the parties.” See Radford v. Brock, 914 So.2d 1066, 1068 (Fla. 2d DCA 2005).

Additionally, Rule 1.630(e) provides that a defendant “shall respond to writ as provided in rule 1.140.” As such, a respondent must be given a reasonable time within which to file a return to the alternative writ. Conner, 541 So.2d at 1256 (“The respondent has the right to plead to the alternative writ and will be prejudiced by the failure to allow a reasonable time within which to do so.”); Southern Realty & Utils. Corp. v. State, 181 So.2d 552, 554 (Fla. 3d DCA 1966) (“The law requires that a reasonable time be given to file a return to an alternative writ of mandamus .... ”).

In its September 9, 2016 order, the trial court acknowledged that “Florida Rule of Civil Procedure 1.630 provides that ‘If the complaint shows a prima facie case for relief, the court shall issue ... an alternative writ in mandamus.’ Fla. R. Civ. P. 1.630(d)(2); see also Chandler v. City of Greenacres, 140 So.3d 1080, 1083 (Fla. 4th DCA 2014). Once the alternative writ in mandamus is issued, the defendant shall respond to the writ as provided in Rule 1.140. Fla. R. Civ. P. 1.630(e).” Despite acknowledging the mandatory procedural requirements of Rule 1.630, the trial court failed to follow them, and rather than making a preliminary determination as to Ap-pellees’ prima facie case for relief and issuing an alternative writ in mandamus, the trial court simply proceeded to a decision on the merits of the petition.

In Conner v. Mid-Fla. Growers, Inc., 541 So.2d 1252, 1256 (Fla. 2d DCA 1989), our sister court held that the trial court’s failure to issue an alternative writ requiring the appellant, the Department of Agriculture and Consumer Services, to respond to the petition warranted reversal. In Conner, as in this case, “instead of issuing an alternative writ and requiring the department to respond to the growers’ petition, the court proceeded directly to hear the merits of the petition and to rule forthwith.” Id. at 1256. The appellees in Conner argued that despite the lack of strict compliance with Rule 1.630, “the procedure employed by the trial court was proper and fair” and that “[t]he function of the alternative writ ... ‘is simply to advise the recipient that the court has reviewed the petition and found it to state a preliminary basis for relief.’ ” Id. at 1256. The Second District Court of Appeal disagreed and, in reversing the trial court’s writ of mandamus, stated: “[w]e hold only that once mandamus was contemplated ... the rules of civil procedure require proper notice and an adequate opportunity to respond.” Id. at 1257.

As in Conner, the trial court here failed to issue an alternative writ and failed to require the County to show cause why the writ should not be issued. Moreover, if disputed factual issues are raised by the petition and the answer to the petition, “the trial court must resolve these issues upon evidence submitted by the parties.” Radford, 914 So.2d at 1068. Having failed to provide the County with the opportunity to answer the petition, the trial court also failed to determine if an evidentiary hearing was required. Accordingly, because the trial court failed to comply with Rule 1.630, the writ of mandamus is reversed on this ground as well. See Conner, 541 So.2d at 1257; Southern Realty & Utils., Corp., 181 So.2d at 554 (finding reversible error where appellants not given a reasonable time in which to prepare its defenses to writ of mandamus and file its return).

c. Trial Court’s Violation of the County’s Right to Due Process

Finally, and in addition to the reasons set forth above, we find that reversal of the writ is required based on the trial court’s violation of the County’s due process rights. As discussed previously, the trial court’s September 8 hearing was noticed only for Appellees’ motion to expedite, and the record establishes that on the day of the hearing, the only response filed by the County was as to Appellees’ motion to expedite. A review of the video of the September 8 hearing shows that the trial court immediately entertained argument on the merits of the petition, and that the trial court began the hearing not by addressing the motion to expedite — the only matter which the court had set for hearing — but rather by questioning the County on the merits of the petition and whether the initiative petition was sufficient. Notwithstanding the lack of notice, the trial court granted relief on the merits of the Appellees’ petition.

It is well established that “the granting of relief, which is not sought by the notice of hearing or which expands the scope of a hearing and decides matters not noticed for hearing, violates due process.” Celebrity Cruises, Inc. v. Fernandes, 149 So.3d 744, 750 (Fla. 3d DCA 2014) (quoting Connell v. Capital City Partners, LLC, 932 So.2d 442, 444 (Fla. 3d DCA 2006)). Accord Mizrahi v. Mizrahi, 867 So.2d 1211, 1213 (Fla. 3d DCA 2004) (“Due process protections prevent a trial court from deciding matters not noticed for hearing and not the subject of appropriate pleadings.”); Epic Metals Corp. v. Samari Lake E. Condo. Ass’n, Inc., 547 So.2d 198, 199 (Fla. 3d DCA 1989) (“A trial court violates a litigant’s due process rights when it expands the scope of a hearing to address and determine matters not noticed for hearing.”).

Because it is undisputed that the September 8 hearing went well beyond the scope of the matter that the trial court had noticed for hearing, we reverse the writ on this ground as well, as the trial court’s actions in reaching the merits of the case violated the County’s due process rights.

III. CONCLUSION

We reverse the trial court’s order on three independent grounds. First, because the trial court’s conclusion that the Appellees had a clear legal right to compel the Board to place the proposed ordinance on the ballot was based upon the erroneous finding that the Board “approved” the initiative petition on May 17, 2016, we reverse the trial court’s order granting the Appellees’ first amended petition for writ of mandamus and vacate the writ of mandamus.

Second, the trial court failed to follow the procedural safeguards required by Rule 1.630 in failing to issue an alternative writ in mandamus, and we therefore reverse the trial court’s order on that ground as well. Third, we reverse the trial court’s order because by expanding the scope of the September 8 hearing to address and determine matters not noticed for hearing, specifically the merits of Appellees’ amended petition for writ of mandamus, the trial court violated the County’s due process rights.

Accordingly, we reverse the trial court’s September 9, 2016 order, and vacate the writ of mandamus.

This opinion shall take effect immediately, notwithstanding the filing of any motion for rehearing.

SUAREZ, C.J., concurs.

EMAS, J.,

specially concurring.

I concur in the result reached by the majority, but conclude that it is unnecessary to reach the analysis in parts II b. and II c., and those corresponding portions of part III. I join in the remainder of the majority opinion.

      . The County’s process is somewhat analogous to the process governing citizen initiatives for proposed amendments to the Florida constitution. Under that process, the petition sponsor submits the initiative petition form to the Florida Division of Elections. § 100.371(2), Fla. Stat. (2016). The Division reviews the petition form for sufficiency of its format. Id. After tire Division approves the petition form, the sponsor circulates the petition for signatures by registered Florida voters. Id. The petition is subsequently subject to signature verification by the various county supervisors of elections, § 100.371(3), Fla. Stat., and review for legal sufficiency by the Florida Supreme Court. §§ 15.21, 16.061(1), Fla. Stat. (2016). The petition is placed on the statewide ballot, accompanied by the relevant financial impact statement, only after all of these requirements are met.

      . Section 3.06 of the Charter incorporates “the provisions of the election laws of this state” into all Miami-Dade County elections held pursuant to the Charter.

      . The record shows that although the next regular Board of County Commissioners meeting would have been on May 3, 2016, the item was scheduled on the May 17, 2016 meeting in order to comply with the publication requirements of Section 1.02(B) of the Charter.

      . This Court takes judicial notice of the video of the May 17, 2016 Board meeting (http:// miamidade.gov/wps/portal/Main/webcasting).

      . The 120-day period expired on August 26, 2016.

      . The Supervisor of Elections, Christina White, submitted an affidavit attesting to this fact,

      . Pursuant to Section 8.01(3), the Board the County Commission had until September 1, 2016 to order the canvass.

      . See Nash v. Richard, 166 So.2d 624, 625 (Fla. 3d DCA 1964).

      . The record indicates that over $400,000 in taxpayer funds were expended in expediting the canvass.

      . The Court takes judicial notice of the video of the August 22, 2016 special Board meeting ( http://miamidade.gov/wps/portal/Main/ webcasting). A review of the video of the August 22, 2016 special meeting of the Board shows that counsel for Appellees also acknowledged that were legal questions about the sufficiency of the petition but that they could be considered at a later date.

      . In an email to all the parties, the trial court’s judicial assistant advised the parties that “[t]he judge will be hearing the Motion that was filed. The Court id [sic] also requesting the response by the end of today.” In response, the attorney for the County made the following inquiry: "[t]o be clear, that is the motion to expedite? That is the only motion pending.” In response, again to the all the parties, the trial court’s judicial assistant responded “[cjorrect the motion to expedite.”

      . The Court takes judicial notice of the video of the September 7, 2016 Board meeting (http://miamidade.gov/wps/portal/Main/ webcasting).

      . See Section 8.01(3) ("If ... the petition is deficient as to form or compliance with this Section, the Board shall notify the person filing the petition that the petition is insufficient and has failed.”). Additionally, the County Attorney’s Office advised the Board at the September 7, 2016 meeting that the ballot language was misleading, that the ballot title did not comply with the essential requirements of Florida law, and that the underlying ordinance was unconstitutional.

      . The initial brief was filed on Monday, September 12, 2016. The answer brief was filed on Tuesday, September 13, 2016 and the reply brief on Wednesday, September 14, 2016.

      . Appellees are not without a remedy if they believe the Board’s determination was incorrect. For example, Appellees could file a separate suit for declaratory relief challenging that determination. We express no opinion regarding the merits of such a suit.

      . Rule 1.140(a)(1), Fla. R. Civ. P., provides in pertinent part that: "[ujnless a different time is prescribed in a statute of Florida, a defendant shall serve an answer within 20 days after service of original process and the initial pleading on the defendant, or not later than the date fixed in a notice by publication.”

      . Although the County had filed a motion to dismiss the amended petition for mandamus late in the day on September 7, that motion was not set for hearing on September 8.

      . Because we reverse on these grounds, we need not reach any other issues raised in Appellants’ brief.