source: Caselaw Access Project

license: Public Domain

text:
    Leary v. Leiderman Shelomith, PA
    3D16-0098
    01/28/2016
   Vol.dism.

Cir. Ct. (Miami-Dade)


text:
    Lima v. London
    3D16-0028
    02/08/2016
   App.dism.


text:
    Livingston v. State
    3D16-0031
    01/25/2016
   Pet.den.


text:
    Louis-Jacques v. Joseph
    3D15-2207
    01/28/2016
   Vol.dism.

Cir. Ct. (Miami-Dade)


text:
    Lunkina v. Gleiberman
    3D16-0174
    02/08/2016
   App.dism.

Cir. Ct. (Miami-Dade)


text:
    M.E. v. Department of Children and Families
    3D15-2444
    01/07/2016
   App.dism.

Cir. Ct. (Miami-Dade)


text:
    Machin v. BASF Corp.

    3D15-1232
    02/18/2016
   App.dism.

Cir. Ct, (Miami-Dade)


text:
    Mad Properties of America Inc. v. Wells Fargo Bank, N.A.
    3D15-1889
    02/24/2016
   Vol.dism.

Cir. Ct. (Miami-Dade)


text:
    Majid v. Fiaz
    3D16-0350
    02/24/2016
   App.dism.

Cir. Ct. (Miami-Dade)


text:
    Major v. State
    3D15-0815
    01/19/2016
   App.dism.

Cir. Ct. (Monroe)


text:
    Marwan v. Sahmoud
    3D15-2081
    02/04/2016
   Vol.dism.

Cir. Ct. (Miami-Dade)


text:
    Mascarenhas v. La Mansion LLC
    3D15-0736
    02/16/2016
   Vol.dism.

Cir. Ct. (Miami-Dade)


text:
    McKenzie v. State
    3D15-1290
    02/04/2016
   Vol.dism.

Cir. Ct. (Monroe)


text:
    Melo v. Bank of New York Mellon
    3D15-2694
    12/21/2015
   App.dism.

Cir. Ct. (Miami-Dade)


text:
    Melvin v. State
    3D15-2703
    02/02/2016
   Pet.den.


text:
    Miami Car Sales, Inc. v. Colon
    3D15-2159
    10/29/2015
   App.dism.


text:
    Mikell v. State
    3D16-0145
    01/26/2016
   Pet.den.


text:
    Mon-Club Management, Inc. v. Energy Smart Industry, LLC
    3D16-0071
    01/22/2016
   Vol.dism.

Cir. Ct. (Miami-Dade)


text:
    Monzon v. Monzon
    3D15-2408
    02/04/2016
   Vol.dism.

Cir. Ct. (Miami-Dade)


text:
    Mourra v. U.S. Bank
    3D15-0523
    01/28/2016
   Vol.dism.

Cir. Ct. (Miami-Dade)


text:
    Mullins v. State
    3D15-2218
    01/11/2016
   Pet.den.


text:
    NCL America, LLC v. Ligon
    3D15-0412
    11/18/2015
   Cert.den,


text:
    Otero v. State
    3D15-0739
    01/08/2016
   App.dism.

Cir. Ct. (Miami-Dade)


text:
    Owens v. State
    3D16-0114
    01/21/2016
   Pet.den.


text:
    P.C. v. Department of Children
    3D15-2162
    01/29/2016
   App.dism,

Cir, Ct. (Miami-Dade)


text:
    P.M. v. Department of Children
    3D15-2834
    12/23/2015
   Pet.dism,

Dept, of Children and Families


text:
    P.T. v. Department of Children
    3D15-2645
    02/09/2016
   App.dism,

Cir. Ct. (Miami-Dade)


text:
    Patterson v. Medina
    3D15-2855
    12/21/2015
   Pet.den.


text:
    Perekotiy v. Akam On Site, Inc.
    3D16-0159
    02/04/2016
   App. Transferred

Cir. Ct. (Miami-Dade)


text:
    Pfeffer v. City of Miami
    3D15-2208
    01/07/2016
   Pet.den.


text:
    Pierre v. Bank of New York
    3D15-0959
    01/05/2016
   App.dism.

Cir. Ct. (Miami-Dade)


text:
    Pijuan v. R.J. Reynolds Tobacco Co.
    3D15-2626
    02/04/2016
   Vol.dism.


text:
    Pro Transport Jacksonville, Inc. v. Fiber Intern., LLC
    3D15-2436, 3D15-2575
    02/25/2016
   Vol.dism.

Cir. Ct. (Miami-Dade)


text:
    Ramirez v. Andrades
    3D15-2263
    01/21/2016
   Vol.dism.

Cir. Ct. (Miami-Dade)


text:
    Ramos v. Super Wheels Miami, LLC
    3D14-3092
    03/02/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Redero v. State
    3D15-1745
    01/07/2016
   Pet.den.


text:
    Reyes v. Reemployment Assistance Appeals Com'n
    3D15-1516
    01/06/2016
   App.dism.

Reemployment Assistance Apps. Com'n


text:
    Reynolds v. State
    3D15-2770
    01/04/2016
   Pet.den.


text:
    Roberts v. State
    3D16-0024
    01/29/2016
   App.dism.


text:
    Robinson v. State
    3D16-0036
    01/28/2016
   Pet.den.


text:
    Rodriguez v. ALS Commercial Funding, LLC
    3D15-488
    03/02/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Roederer v. Roederer
    3D16-0082
    01/28/2016
   Vol.dism.

Cir. Ct. (Miami-Dade)


text:
    Rothman v. Bank of America, N.A.
    3D15-1135
    02/17/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Rozier v. State
    3D16-0205
    01/28/2016
   Pet.den.


text:
    RJR Charitable Holdings, LLC v. Joe Hand Promotions, Inc.
    3D15-0214
    01/21/2016
   App.dism.


text:
    Schnechner v. Old Navy, LLC
    3D15-2658
    02/12/2016
   App.dism.

Cir. Ct. (Miami-Dade)


text:
    Scott v. State
    3D16-0094
    01/14/2016
   Pet.den.


text:
    Serbinski v. City of Key West
    3D16-0037
    01/08/2016
   Pet.den.


text:
    Siegel v. Segall/Gordich, P.A.
    3D15-2945
    01/29/2016
   Vol.dism.


text:
    Solanas Corp. v. Agency for Health Care Admin.
    3D15-2682
    01/21/2016
   App.dism.


text:
    Solomon v. Department of Revenue Child Support Enforcement ex rel. Neal
    3D16-0129
    02/09/2016
   App.dism.

Dept, of Revenue


text:
    Solorio v. State
    3D15-2896
    01/05/2016
   Pet.den.


text:
    State v. Vega
    3D14-3139, 3D14-3140, 3D14-3141
    11/17/2015
   App.dism.


text:
    State v. Weaver
    3D15-2343
    01/19/2016
   App.dism.


text:
    Steiger v. Steiger
    3D15-2467
    02/12/2016
   Vol.dism.

Cir. Ct. (Miami-Dade)


text:
    Strachan v. State
    3D16-0201, 3D16-0228
    02/04/2016
   Pet.den.


text:
    T.D. v. Department of Children
    3D15-2529
    01/29/2016
   App.dism.

Cir. Ct. (Miami-Dade)


text:
    Tabuteau v. Bank of New York Mellon
    3D15-2587
    01/12/2016
   App.dism.


text:
    Tate v. State
    3D16-0079
    02/04/2016
   App.dism.

Cir. Ct. (Miami-Dade)


text:
    Thompson v. Federal Nat. Mortg. Ass’n
    3D16-0101
    02/04/2016
   App.dism.

Cir. Ct. (Miami-Dade)


text:
    Tobias v. Downs Brill Whitehead & Sage, P.A.
    3D15-2925
    01/07/2016
   App.dism.

Cir. Ct. (Miami-Dade)


text:
    Trend Home Health Services v. Reemployment Assistance Appeals Com’n
    3D15-0972
    01/19/2016
   App.dism.

Reemployment Assistance Apps, Com'n


text:
    Valladares v. Greater Miami Hebrew Academy
    3D15-2714
    01/11/2016
   App.dism.

Cir. Ct. (Miami-Dade)


text:
    Vass v. State
    3D16-0179
    01/28/2016
   Vol.dism.


text:
    Vergano v. Viana
    3D16-0019
    01/08/2016
   Pet.den.


text:
    Warehouse 1050 Corp. v. Florida Sol Systems, Inc.
    3D15-0372
    02/16/2016
   Vol.dism.

Cir. Ct. (Miami-Dade)


text:
    Welch v. George
    3D15-2326
    01/11/2016
   App.dism.


text:
    Wheeler v. Planning Bd. City of Key West
    3D15-0789
    02/04/2016
   VoLdism.


text:
    Williams v. State
    3D15-2203
    10/01/2015
   Pet.den.


text:
    Woodson v. State
    3D16-0016
    01/28/2016
   Pet.den.


text:
    Y.H. Imaging, Inc. v. Progressive Exp. Ins. Co.
    3D15-1284
    01/15/2016
   Vol.dism.


text:
    Yulee v. BAC Home Loans Servicing LP
    3D16-0127
    02/09/2016
   App.dism.

Cir. Ct. (Miami-Dade)


text:
    11385 NW 66, LLC v. Bayview Loan Servicing, LLC
    3D16-0236
    01/29/2016
   Pet.dism.


text:
    50 Biscayne Condominium Ass'n, Inc. v. Wells Fargo Bank, N.A.
    3D15-2110
    01/08/2016
   App.dism.

Cir. Ct. (Miami-Dade)


author: Gerber, J.

text:
    Jesse Lee PENN, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-592
    District Court of Appeal of Florida, Fourth District.
    [December 14, 2016]
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   Gerber, J.

The defendant appeals from his convictions for two counts of aggravated assault with a discharged firearm and his sentence of two twenty-year mandatory minimum prison terms to be served consecutively. The defendant raises three arguments: (1) the trial court erred in denying his motions for judgment of acquittal; (2) the trial court committed fundamental error when it charged the jury using Florida Standard Juiy Instruction (Criminal) 3.6(f), Justifiable Use of Deadly Force (2013); and (3) resentencing is necessary because the trial court believed it was legally required to sentence the defendant to consecutive mandatory minimum prison terms under the 10-20-Life statute, section 775.087(2), Florida Statutes (2013).

On the first two arguments, we affirm without discussion. On the third . argument, we agree that resentencing is necessary pursuant to Williams v. State, 186 So.3d 989, 993 (Fla. 2016) (“If ... multiple firearm offenses are committed contemporaneously, during which time multiple victims are shot at, then consecutive sentencing is permissible but not mandatory. In other words, a trial judge has discretion to order the mandatory minimum sentences to run consecutively, but may impose the sentences concurrently.”) (emphasis added; internal citations omitted).

Based on the foregoing, we affirm the defendant’s convictions, but reverse the sentence and remand for resentencing for the court to exercise its discretion to order the two mandatory minimum prison terms to run consecutively or concurrently.

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

Levine and Klingensmith, JJ., concur,


author: KLINGENSMITH, J.

text:
    BAYVIEW LOAN SERVICING, LLC, Appellant, v. Luciano DEL LUPO, et al., Appellees.
    No. 4D15-1088
    District Court of Appeal of Florida, Fourth District.
    [January 4, 2017]
    Mark Morales of Florida Foreclosure Attorneys, PLLC, Boca Raton, and Marjorie H. Levine of Clarfield, Okon, Salomone & Pincus, West Palm Beach, for appellant.
    Jonathan H. Kline and Gregory Light of Jonathan Kline, P.A., Weston, for appel-lees.
   KLINGENSMITH, J.

Bayview Loan Servicing, LLC (“Bay-view”) brought a foreclosure action against appellees. At the conclusion of Bayview’s presentation of evidence, appellees moved for dismissal, claiming Bayview failed to prove damages. The trial court agreed and entered an order of involuntary dismissal. This was error and we reverse.

At trial, Bayview presented witnesses who testified that appellees were in default on their payments. The court also admitted into evidence a copy of appellees’ payment history showing that the principal balance due on the note was $300,000. Based on the payment history, another witness testified that there was an uncured breach of payment on appellees’ account. After Bay-view rested its case, the court granted appellees’ motion for dismissal and provided the following justification:

Okay. Here’s your issue for appeal, sir. Because here’s why I’m ruling on it. Is it appropriate just to place documents into evidence without substantiating what’s in the document to the court or having anyone testify to it? I think it is not.
And, therefore, I’m saying that even though the evidence is there, I cannot ferret out what the amount owed is, what the — I can maybe — I can read a note and I can tell what the original mortgage was, that the document that you have that I did allow in, over much objection, doesn’t have a defining document that says here’s — heir’s the principal, here’s the interest, here’s the — in it.
So, as far as I’m concerned, sir, you did not prove your damages and I’m granting his motion to dismiss.

(Emphasis added).

The standard of review for an order granting a motion for involuntary dismissal is de novo. Deutsche Bank Nat’l Tr. Co. v. Huber, 137 So.3d 562, 563 (Fla. 4th DCA 2014). “An involuntary dismissal or directed verdict is properly entered only when the evidence considered in the light most favorable to the non-moving party fails to establish a prima facie case on the non-moving party’s claim.” McCabe v. Hanley, 886 So.2d 1053, 1055 (Fla. 4th DCA 2004) (quoting Hack v. Estate of Helling, 811 So.2d 822, 825 (Fla. 5th DCA 2002)). This is true even if the evidence of damages involved inadmissible hearsay erroneously admitted at trial. See Beauchamp v. Bank of N.Y., 150 So.3d 827, 829 n.2 (Fla. 4th DCA 2014).

In an analogous case from this court, Wachovia Mortgage, F.S.B. v. Goodwill, 199 So.3d 346, 348 (Fla. 4th DCA 2016), the bank introduced a payment history at trial that clearly showed the principal balance due on the note. The bank’s witness also testified that “the payment history accurately reflected all payments received and disbursed, along with the total amount due and owing on the loan.” Id. The trial court nonetheless dismissed the bank’s case for failure to prove damages. Id. at 347. On appeal, we reversed and remanded for further proceedings because “[t]he payment history and testimony of [the bankj’s witness were sufficient to present a prima facie case on damages and withstand involuntary dismissal.” Id. at 348; see also Lasala v. Nationstar Mortg., LLC, 197 So.3d 1228, 1230 (Fla. 4th DCA 2016) (explaining that the dismissal of a foreclosure action for failure to prove damages was inappropriate because an admitted loan payment history provides “some evidence the trial court can use to support a judgment on the principal amount owed”).

Here, although Bayview’s witnesses failed to confirm or interpret appellees’ loan payment history, the payment history showing the principal amount due was admitted into evidence. When considered in the light most favorable to Bayview, this evidence was sufficient to establish a pri-ma facie case on damages. Having admitted Bayview’s proof of damages, albeit in a form not easily comprehensible, the trial court should not have granted appellees’ motion for involuntary dismissal. Although we sympathize with the trial court’s frustration when faced with this situation, less drastic methods than dismissal are available for dealing with such an issue.

Accordingly, we reverse the involuntary dismissal and remand for a new trial.

Reversed and Remanded.

Taylor and Forst, JJ., concur.


author: Damoorgian, J.

text:
    Terrence SAUNDERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-1396
    District Court of Appeal of Florida, Fourth District.
    [January 11, 2017]

      Stuart Adelstein of Law Offices of Adel-stein & Matters, P.A., and Philip R. Horowitz of Law Offices of Philip R. Horowitz, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   Damoorgian, J.

Terrence Saunders appeals his conviction and sentence for one count of battery and one count of lewd or lascivious conduct. On appeal, Appellant raises a jury selection issue and challenges two eviden-tiary rulings below. We affirm the trial court’s rulings on the jury selection issue and on a defense objection to law enforcement officer testimony during cross examination without further comment. However, we conclude that the trial court erred in denying Appellant’s motion to suppress his post-arrest statements to an undercover officer and his cellmate and, therefore, reverse.

By way of background, Appellant was arrested and charged with three counts of sexual battery by a person eighteen years of age or older on a person less than twelve years old and one count of lewd or lascivious conduct based on a family member’s accusations of sexual abuse. After Appellant was advised of his Miranda rights, Appellant requested to have a lawyer present and did not provide a statement to law enforcement. While awaiting a bond determination, Appellant was placed in a cell with a jailhouse informant who worked with law enforcement in setting up and reporting in-prison drug transactions. The placement was the result of medical circumstances and not law enforcement influence.

Shortly after Appellant was placed with the informant, the informant approached his law-enforcement handler and reported that Appellant indicated he was facing sexual battery charges and wanted to hire a hitman to kill the victim and the primary witness in his case. The handler, who had no previous knowledge of Appellant or his charges, asked the informant to obtain more information about Appellant’s intended targets. The informant complied and, based on the information he obtained, the handler was able to verify the charges against Appellant and the identities of the victim and witness. The handler then devised a plan wherein the informant, while wearing a wire, would tell Appellant that he knew of a hitman. The informant would then put Appellant in contact via telephone with the handler who would pose as the hitman. While developing this plan, the handler also contacted the lead investigator in Appellant’s sexual battery case, who in turn met with the informant to determine if he had any information pertinent to the sexual battery case. The sexual battery investigator determined that the informant did not have any useful information and instructed the informant not to ask any questions about the sexual battery case. The investigator did, however, advise the informant to portray himself as “somewhat of a pedophile” in order to gain Appellant’s trust in gathering more information on the murder for hire plot.

Thereafter, law enforcement obtained several recordings of conversations between Appellant and the informant and Appellant and the handler posing as a hitman. During one recorded telephone conversation between Appellant and the handler, Appellant provided information on the victim and the witness, including where they resided, where the witness worked, and where the victim went to school. In a separate recorded conversation between Appellant and the informant, Appellant provided a description of what he thought a witness saw happen between Appellant and the victim. Prior to trial, the State notified Appellant of its intent to use these statements against Appellant. Appellant moved to suppress the evidence, arguing that it was gathered in contravention to his Sixth Amendment right to counsel.

After hearing evidence of how the statements were gathered, the court issued an order denying Appellant’s motion to suppress. It concluded that Appellant’s Sixth Amendment rights were not violated because law enforcement did not take any action beyond merely listening which was designed to deliberately elicit incriminating statements. The court reasoned that since the informant initially gathered and reported Appellant’s statements on his own initiative without law enforcement intervention or assistance, all of Appellant’s subsequent recorded statements to the informant and law enforcement were admissible. The State went on to introduce the recorded statements as well as the handler’s and the informant’s testimony at trial. The jury ultimately acquitted Appellant on two of the sexual battery counts and found him guilty of lewd or lascivious conduct as well as the lesser included offense of battery on one of the sexual battery counts. This appeal follows.

“The Sixth Amendment prohibits law enforcement officers from deliberately eliciting statements from a defendant after the right to counsel has attached.” Brown v. State, 725 So.2d 1164, 1165 (Fla. 2d DCA 1998) (citing Massiah v. United, States, 377 U.S. 201, 206, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964)). “The ‘deliberately elicited’ standard is clearly satisfied when the police directly interrogate or question a defendant, but it also may be satisfied by less direct types of questioning.” Id. “[A] knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity.” Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). As such, “[t]he passivity of law-enforcement authorities is the critical element in assessing the facts in any given case.” State v. Zecckine, 946 So.2d 72, 74 (Fla. 1st DCA 2006).

In Broun, the cellmate of a defendant in a high profile murder case contacted the state attorney and offered to obtain information from the defendant in exchange for a possible sentencing benefit. 725 So.2d at 1165. Law enforcement then worked to keep the defendant and the cellmate placed together, and the investigating detective periodically stopped by the jail to obtain updates from the cellmate. Id. The Brown court held that under these circumstances, the statements made to the cellmate should have been suppressed because they were “a product of a ‘stratagem deliberately designed to elicit an incriminating statement.’ ” Id. at 1166 (quoting Rolling v. State, 695 So.2d 278, 291 (Fla. 1997)). Conversely, in Rolling, the court held that statements made by a defendant to his cellmate were admissible because the evidence established the cellmate obtained the statements on his own initiative without assistance or a promised benefit from the state. 695 So.2d at 290-91. See also Cooper v. State, 856 So.2d 969, 973 (Fla. 2003) (holding that a defendant’s statements made to his cellmate were admissible because the evidence established that the cellmate contacted authorities of his own accord after the defendant bragged about his crimes).

Applying the framework set forth in Rolling and Brown, the First District’s decision in Zecckine establishes that the proper inquiry in determining whether a defendant’s statement to a jail-mate/informant violates a defendant’s Sixth Amendment rights is the degree of law enforcement involvement at the time the statement was made. 946 So.2d at 74. In Zecckine, the defendant made incriminating statements to his cellmate who then reported the statements to law enforcement and worked with law enforcement to obtain more information. Id. at 73. The court affirmed that any statements made by the defendant to his cellmate after the date the cellmate began working with law enforcement were obtained in violation of his Sixth Amendment rights and were not admissible, but that any statements made before that date were admissible. Id. at 74. See also Peoples v. State, 612 So.2d 555, 556 n.1 (Fla. 1992) (although a defendant’s jail-mate approached police on his own accord, recorded statements violated defendant’s Sixth Amendment rights because the state granted the cellmate immunity and “otherwise arranged for and conducted the clandestine monitoring and taping”).

In ruling on Appellant’s motion to suppress, the trial court concluded that since the informant initially gathered and reported Appellant’s statements on his own initiative without law enforcement intervention or assistance, all of Appellant’s subsequent statements to the informant were admissible. Under Zecckine and Peoples, this ruling was incorrect. The court’s inquiry should have focused on the level of law enforcement influence at the time the statements were made. Certainly, prior to the point the informant approached his handler about Appellant, any statements Appellant made to the informant were not the result of law enforcement intervention. However, the same cannot be said of the recorded statements. Not only did law enforcement outfit the informant with a wire and arrange for him to receive a reduced sentence, but it came up with a plan wherein a law enforcement officer was involved in an undercover capacity. Such active participation by law enforcement in obtaining information cannot logically be deemed “passive.” See Peoples, 612 So.2d at 556, n.1 (holding that once police grant immunity and arrange for and conduct monitoring and taping of a defendant through an informant who voluntarily approached the police, the information is no longer passively obtained).

Despite the fact that the admitted recorded statements were obtained as a result of law enforcement intervention, the State argues that Appellant’s Sixth Amendment rights did not attach to the statements because they were gathered as part of an investigation into the uncharged crime of solicitation of murder for hire. Therefore, the State maintains that the statements were admissible. We disagree.

“[U]nlike the Fifth Amendment right to counsel, ‘the Sixth Amendment right to the assistance of counsel is ‘offense specific’ and applies only to the offense or offenses with which the defendant has actually been charged, and not to any other offense he may have committed but with which he has not been charged.’” Scott v. State, 66 So.3d 923, 933 (Fla. 2011) (quoting Ibar v. State, 938 So.2d 451, 470 (Fla. 2006)). Accordingly, law enforcement may investigate uncharged offenses against a defendant who has invoked his Sixth Amendment rights in other pending charges. See id. However, this does not mean that the government may use a defendant’s statements as obtained during a permissible investigation into an uncharged crime to prove that the defendant is guilty of a charged crime. On this point, the Supreme Court’s decision in Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985) is instructive.

In Moulton, two men were charged as co-defendants with various theft charges. Id. at 162, 106 S.Ct. 477. Both men retained counsel and were released on bail pending trial, but one had a change of heart and confessed to the police, also letting them know that his co-defendant mentioned wanting to kill one of the state’s witnesses. Id. The police offered the cooperative co-defendant a deal in exchange for his further cooperation investigating the murder plot. Id. The co-defendant turned informant agreed, and began recording his phone conversations with his co-defendant. Id. at 164, 106 S.Ct. 477. The informant also wore a wire to a face-to-face meeting with the co-defendant. Id. Although the express purpose of the meeting was to discuss strategy for the theft trial, the police told the informant not to question the co-defendant about the thefts and to “just be himself.” Id. at 165, 106 S.Ct. 477. During that meeting the men briefly discussed the idea of eliminating witnesses and, at the informant’s prompting, went over the thefts in great detail. Id. All of these statements were admitted against the co-defendant at his theft trial based on the trial court’s conclusion that the statements did not violate the co-defendant’s Sixth Amendment rights because “the recordings were made... ‘to gather information concerning defendant Moulton’s plans to kill [a witness].’” Id. at 166-67, 106 S.Ct. 477.

In considering the propriety of the trial court’s ruling, the Supreme Court held:

The police have an interest in the thorough investigation of crimes for which formal charges have already been filed. They also have an interest in investigating new or additional crimes. Investigations of either type of crime may require surveillance of individuals already under indictment. Moreover, law enforcement officials investigating an individual suspected of committing one crime and formally charged with having committed another crime obviously seek to discover evidence useful at a trial of either crime. In seeking evidence pertaining to pending charges, however, the Government’s investigative powers are limited by the Sixth Amendment rights of the accused. To allow the admission of evidence obtained from the accused in violation of his Sixth Amendment rights whenever the police assert an alternative, legitimate reason for their surveillance invites abuse by law enforcement personnel in the form of fabricated investigations and risks the evisceration of the Sixth Amendment right recognized in Massi-ah. On the other hand, to exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public’s interest in the investigation of criminal activities. Consequently, incriminating statements pertaining to pending charges are inadmissible at the trial of those charges, not withstanding the fact that the police were also investigating other crimes, if, in obtaining this evidence, the State violated the Sixth Amendment by knowingly circumventing the accused’s right to the assistance of counsel.

Id. at 179-80, 106 S.Ct. 477 (footnotes omitted).

In other words, Moulton recognizes that evidence obtained during the course of a criminal investigation may sometimes have a “dual purpose.” Id. at 179 n. 15, 106 S.Ct. 477. In some circumstances, a defendant’s statement may simultaneously incriminate the defendant with respect to both charged and uncharged offenses. Moulton makes it clear that the fact the government may have a legitimate and constitutional reason for confronting a person facing criminal charges does not permit it to circumvent the protection of the Sixth Amendment as it pertains to the pending charges. The inevitable conclusion is that statements which serve such a dual purpose may be admissible in one trial but not the other. See United States v. Bender, 221 F.3d 265, 270 (1st Cir. 2000) (holding that statements made by a defendant pending charges to an undercover government agent in an uncharged murder for hire investigation were not admissible as evidence of a guilty mind in the trial on the pending charges); Rubalcado v. State, 424 S.W.3d 560, 573 (Tex. Crim. App. 2014) (“Of course, if a statement incriminates a defendant with regard to two separate offenses simultaneously, one a charged offense and one an uncharged offense, then that particular statement could be inadmissible at one trial and admissible at the other.” (quotation omitted)).

Here, although the recorded statements gathered by law enforcement may have been permissibly obtained and admissible in a murder for hire prosecution, they were used in Appellant’s sexual battery case to bolster witness testimony and show that Appellant had a guilty mind at work. As gathered and used for this purpose, the statements violated Appellant’s Sixth Amendment rights. Therefore, we hold that the court erred in admitting any statements made by Appellant after the informant approached law enforcement and began working on Appellant’s case at law enforcement’s behest.

Finally, we consider whether the use of the recording at trial was harmless error. Peoples, 612 So.2d at 557. Appellant’s guilt was highly contested. Moreover, the jury’s verdict suggests that it did not entirely believe the victim’s account of the events, thus making Appellant’s own statements that much more important. Indeed, in issuing its sentence, the court explained that it was the recorded statements which convinced the court that Appellant was guilty. Accordingly, we conclude that the error was not harmless.

Reversed, and remanded for a new trial.

GERBER and KLINGENSMITH, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: LAGOA, J.

text:
    Davon FRANCIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-418.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 2015.
    Rehearing Denied Dec. 22, 2016.
    Eugene F. Zenobi, Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Third Region, and Philip L. Reizenstein, Assistant Regional Counsel, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before ROTHENBERG, LAGOA, and SCALES, JJ.
   LAGOA, J.

Appellant, Davon Francis (“Francis”), challenges his sentence for two counts of armed robbery, one count of attempted armed robbery, and two counts of aggravated assault with a firearm. Francis argues that the trial court erred in sentencing him to an aggregate sentence of eighty-five years in prison because this sentence is the functional equivalent of life without parole and thus violates the reasoning of Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). The Florida Supreme Court recently held in Henry v. State, 175 So.3d 675 (Fla.2015), that Graham’s constitutional prohibition against cruel and unusual punishment is implicated when a juvenile nonhomicide offender’s sentence does not afford any meaningful opportunity to obtain release. Because Francis’s convictions were for non-homicide offenses, which he committed when he was seventeen years old, we are compelled to agree that Francis must be resentenced.

I. FACTUAL AND PROCEDURAL HISTORY

The evidence at trial established that Francis and his co-defendants were on an armed crime spree the night of September 21, 2004. At approximately 6:00 pm, that night, Francis approached three individuals at the corner of 189th Street and N.W. 57th Avenue in Opa-locka. One of the individuals, Tracy Hunter (“Hunter”), testified at trial that Francis put a gun in Hunter’s face, took a chain and ring from Hunter, and left. At approximately 6:20 pm, Francis, along with co-defendants Richard Latson (“Latson”) and Romlous Jacques (“Jacques”), approached motorcyclist William Hernandez (“Hernandez”), who was stopped at the corner of 154th Street and N.W. 27th Avenue. Hernandez testified at trial that Francis pointed a gun at his face and told him to “get off the bike.” Hernandez attempted to drive off, but was grazed in the pelvis by a bullet from Francis’s gun. At approximately 6:40 pm, Francis and Latson approached Manuel Tejeda (“Tejeda”) on 83rd Street and N.W. 27th Avenue. They attempted to take a chain from Tejada, and shot him in the hand as Tejada ran away. Francis and Latson also shot and injured Tejada’s neighbor, Javier Puerto (“Puerto”), in the back of the hip. The police heard the gunshots from a nearby station and apprehended co-defendants Francis, Latson, and Jacques.

Francis was originally convicted of three counts of attempted second-degree murder, two counts of armed robbery, one count of attempted armed robbery, and two counts of aggravated assault with a firearm. We upheld the judgment and sentence in Francis v. State, 22 So.3d 788 (Fla. 3d DCA 2009). Subsequently, in light of the Florida Supreme Court’s decision in State v. Montgomery, 39 So.3d 252 (Fla.2010), which held that an inaccurate instruction on manslaughter as a lesser-included offense only one step removed constitutes fundamental error, we vacated Francis’s conviction for the attempted second-degree murder counts in Francis v. State, 77 So.3d 806 (Fla. 3d DCA 2011). On remand, the State abandoned the attempted second-degree murder charges.

Francis subsequently filed a Motion to Correct Illegal Sentence pursuant to the United States Supreme Court’s decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). In Graham, the Supreme Court invalidated life sentences for juveniles convicted of nonhomi-cide offenses and held that those offenders must be provided a meaningful opportunity to obtain release. 560 U.S. at 82, 130 S.Ct. 2011. Because Francis was a juvenile at the time of the offense, the trial court granted his motion and vacated his life sentences for the armed robbery counts. The trial court resentenced Francis to a term of thirty years for each armed robbery count, but his term-of-years remained the same on the remaining counts (fifteen years for the attempted armed robbery count and five years for each aggravated assault with a firearm count). The trial court ordered the sentences on each count to run consecutively, resulting in an aggregate sentence of eighty-five years. This appeal followed.

II. ANALYSIS

In Henry v. State, 175 So.3d 675 (Fla. 2015), the Florida Supreme Court ruled “that the constitutional prohibition against cruel and unusual punishment under Graham is implicated when a juvenile nonho-micide offender’s sentence does not afford any ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’ ” 175 So.3d at 679 (quoting Graham, 560 U.S. at 75, 130 S.Ct. 2011); see also Gridine v. State, 175 So.3d 672, 674-75 (Fla.2015) (holding that a seventy-year sentence imposed on a juvenile who was fourteen years old at the time he was charged was “unconstitutional because it fail[ed] to provide [the juvenile] with a meaningful opportunity for early release based upon a demonstration of his maturity and rehabilitation”). Henry, a juvenile, was convicted for committing multiple non-homicide offenses, including three counts of sexual battery with a deadly weapon, one count of kidnapping, two counts of robbery, one count of carjacking, one count of burglary of a dwelling, and one count of possession of cannabis. Henry was sentenced to life for the sexual battery offenses, plus an additional sixty years’ imprisonment for the remaining offenses, to run consecutively. During the pendency of Henry’s appeal, the United States Supreme Court issued its decision in Graham, and Henry filed a rule 3.800(b)(2) motion predicated on the Graham holding. Henry was resentenced to concurrent thirty-year sentences for the sexual batteries; the remaining sentences were ordered to run consecutively, totaling ninety years’ imprisonment. The Fifth District Court of Appeal affirmed Henry’s aggregate term-of-years sentence as “not invalid under the Eighth Amendment.” 175 So.3d at 676 (quoting Henry v. State, 82 So.3d 1084, 1089 (Fla. 5th DCA 2012)).

On review, the Florida Supreme Court concluded that Graham prohibits the States from sentencing juvenile nonhomi-cide offenders to prison terms that do not provide these offenders with a meaningful opportunity for release. The Florida Supreme Court noted, “we believe that the Graham Court had no intention of limiting its new categorical rule to sentences denominated under the exclusive term of ‘life in prison.’” Henry, 175 So.3d at 680.

Accordingly, under the rule articulated in Henry, Francis’s term-of-years sentence is unconstitutional. Pursuant to Henry, an eighty-five year prison sentence with four counts running consecutively does not provide Francis with a meaningful opportunity to obtain future early release during his natural life. See Morris v. State, 198 So.3d 31, 40 Fla. L. Weekly D1948, 2015 WL 4965907 (Fla. 2d DCA Aug. 21, 2015) (citing Henry and Gridine in holding that a sixty-five-year sentence was unconstitutional because it did not provide the defendant with a meaningful opportunity for release).

The State argues that neither Graham nor Henry should automatically be applied to aggregate term-of-years sentences that amount to life in prison. Specifically, as it relates to Francis, the State posits that because Francis’s offenses occurred in distinct criminal episodes with multiple vie-tims, at different times, and in different locations, the analysis and reasoning behind Henry is not applicable. We do not find the State’s attempt to distinguish Francis’s case from Henry persuasive. The Florida Supreme Court did not expressly limit its decision in Henry to sentences for nonhomicide offenses involving a single victim. Rather, Henry stated that the Graham decision “intended to ensure that the states would provide all juvenile nonhomicide offenders who were sentenced to life terms of imprisonment with meaningful future opportunities to demonstrate their maturity and rehabilitation.” Henry, 175 So.3d at 679 (citing Graham, 560 U.S. at 79, 130 S.Ct. 2011 (noting that the “categorical rule gives all juvenile non-homicide offenders a chance to demonstrate maturity and reform”)). Henry’s adoption of Graham’s admonition that States must give juvenile nonhomicide offenders some meaningful opportunity to obtain release does not limit the scope of the decision to only juveniles who commit one felony against one victim. Graham, 560 U.S. at 75, 130 S.Ct. 2011. As such, we are bound by Henry and must reverse Francis’s eighty-five-year sentence and remand for resentencing.

III. CONCLUSION

Accordingly, on remand, Francis “must be resentenced under the provisions of chapter 2014-220, Laws of Florida, in conformance with the holdings of Henry and Horsley v. State, 160 So.3d 393 (Fla.2015), which determined that chapter 2014-220 is applicable to all juvenile offenders whose sentences are unconstitutional under Miller and Graham.” Morris, 198 So.3d 31, 40 Fla. L. Weekly D1948. See §§ 775.082, 921.1401, 921.1402, Fla. Stat. (2014); Gridine, 175 So.3d at 675 (remanding Gri-dine’s case to the sentencing court to conduct proceedings “in accordance with Henry”); Barnes v. State, 175 So.3d 380 (Fla. 5th DCA 2015) (citing Henry in remanding for resentencing in accordance with Florida’s 2014 juvenile sentencing legislation); cf. Abrakata v. State, 168 So.3d 251, 252 (Fla. 1st DCA 2015) (noting that “absent a violation of Graham, there is no legal basis to retroactively apply section 921.1402 (or any other provision of the juvenile sentencing legislation enacted in 2014) to the 2011 offense in this case”). We therefore reverse and remand to the trial court to conduct an individualized sentencing hearing and to sentence Francis to a term-of-years. If Francis is sentenced to a term-of-years in excess of twenty years, he is entitled to a subsequent judicial review of his sentence. §§ 775.021(3)(c), 921.1402(2)(d), Fla. Stat. (2014).

REVERSED AND REMANDED WITH INSTRUCTIONS.


author: PER CURIAM.

text:
    Julie K. HILTON, The Loyd Charles Hilton, Jr. Qualified Personal Residence Trust, the Lela Griffin Hilton Qualified Personal Residence Trust, and the Loyd Charles (Chip) Hilton, III Irrevocable Trust, Appellants, v. David PEARSON and Elizabeth Pearson and Paradise by the Sea Property Owners Association, Inc., a Florida Homeowners Association, Appellees.
    No. 1D15-440.
    District Court of Appeal of Florida, First District.
    Feb. 10, 2016.

      W. Douglas Hall and Peter D. Webster of Carlton Fields Jorden Burt, P.A., Tallahassee, for Appellants.
    William S. Howell, Jr. of Williams S. Howell, Jr., P.A., Santa Rosa Beach; and Fred D. Bentley, Jr., Marietta, GA, for Appellees David Pearson and Elizabeth Pearson.
    No appearance for Appellee Paradise by the Sea Property Owners Association, Inc.
   PER CURIAM.

Appellants (the Hiltons) seek review of an amended final order invalidating the 2001 and 2005 amendments to the restrictive covenants governing the Paradise by the Sea subdivision in south Walton County, We reverse because the suit challenging the amendments is barred by the five-year statute of limitations in section 95,ll(2)(b), Florida Statutes.

In July 2013, Appellees David and Elizabeth Pearson (the Pearsons) filed suit against the homeowners’ association for the Paradise by the Sea subdivision alleging that the amendments to the subdivision’s restrictive covenants recorded in September 2001 and April 2005 are “null and void” because they were not properly enacted. Specifically, the suit alleged that the amendments were not enacted in compliance with the subdivision’s original restrictive covenants because the 2001 amendments were never voted on or approved by the owners within the subdivision and the 2005 amendments were approved by only 70% of the owners even though the amendments affected the owners’ property rights.

The Hiltons were permitted to intervene to oppose the relief sought by the Pear-sons, and they filed an answer asserting the affirmative defense that the Pearsons’ suit is barred by the statute of limitations. The Hiltons subsequently filed a motion for summary judgment on the statute of limitations issue in which they argued that “Harris [v. Aberdeen Property Owners Association, Inc., 135 So.3d 365 (Fla. 4th DCA 2014) ] is directly on point and controlling.” The trial court denied the motion.

In March 2015, after a bench trial, the trial court entered an amended final order declaring the 2001 and 2005 amendments “void” and finding that the subdivision’s original restrictive covenants remain in effect. The order also reaffirmed the trial court’s rejection of the Hiltons’ statute of limitations defense, finding that Hams “is not applicable to the present case.”

On appeal, in support of the argument that the trial court erred in rejecting their statute of limitations defense, the Hiltons rely primarily on Harris and Silver Shells Corp. v. St. Maarten at Silver Shells Condominium Association, Inc., 169 So.3d 197 (Fla. 1st DCA 2015). In response, the Pearsons argue that the statute of limitations defense was waived below because it was not raised by the association in its answer, and even if the defense was not waived, the trial court correctly rejected the defense because the improperly enacted amendments were tantamount to forged deeds that were void ab initio and could be challenged at any time. The Hiltons reply that the defense was not waived because the trial court expressly ruled that they could raise the issue as an affirmative defense as intervenors and the court also granted the association’s motion asking the trial court to consider the issue in order to avoid further delay in resolving which version of the restrictive covenants governs the subdivision.

We summarily reject the Pearsons’ waiver argument, finding it refuted by the record and contrary to rulings by the trial court that the Pearsons did not cross-appeal. On the merits of the statute of limitations issue, we agree with the Hiltons that reversal is compelled by Harris and Silver Shells, which stand for the proposition that a suit challenging the validity of an amendment to restrictive covenants must be filed within five years of the date that the amendment is recorded even if the suit alleges that the amendment was void because it was not properly enacted. Here, the Pearsons’ suit was filed almost 12 years after the 2001 amendment was recorded and more than 8 years after the 2005 amendment was recorded. Therefore, the suit is barred by the statute of limitations.

Finally, contrary to the position explicated by the Pearsons for the first time at oral argument, we see nothing in the record that could support a finding that the Hiltons were equitably estopped from asserting the statute of limitations defense or that would otherwise require further development of the record regarding the applicability of that defense. Accordingly, the amended final order is reversed and this case is remanded for entry of judgment against the Pearsons.

REVERSED and REMANDED with directions.

WETHERELL, MAKAR, and WINOKUR, JJ., concur.

      .The original restrictive covenants provided that amendments generally "must be approved by the affirmative vote of members who own not less than two-thirds (2/3) of the total Lots in the [subdivision].” However, for amendments that “make any change in the property rights of property owners,” the original restrictive covenants required "approval ... by all owners.”

      . Silver Shells was decided after this appeal was filed.

      . Based on this disposition, we need not consider the Hiltons’ argument that the trial court misconstrued the original restrictive covenants and erroneously determined that the 2001 and 2005 amendments are void.


author: FERNANDEZ, J.

text:
    MIAMI-DADE COUNTY, et al., Appellants, v. In re FLORIDA POWER & LIGHT CO., etc., et al., Appellees.
    Nos. 3D14-1451, 3D14-1465, 3D14-1466, 3D14-1467.
    District Court of Appeal of Florida, Third District.
    April 20, 2016.
    Rehearing Denied Nov. 22, 2016.

      Abigail Price-Williams, Miami-Dade County Attorney, and Dennis A. Kerbel, Assistant County Attorney; Nabors Giblin & Nickerson, P.A., and William C. Garner, Tallahassee; Thomas F. Pepe, City Attorney; Victoria Méndez, City Attorney, and John A. Greco, Deputy City Attorney, and Forrest L. Andrews and Matthew Haber, Assistant City Attorneys, for appellants.
    Michael S. Tammaro, Juno Beach; Hopping Green & Sams, P.A., and Peter C. Cunningham and Brooke E. Lewis, Tallahassee; Holland & Knight, LLP, and Rodolfo Sorondo; Franscisco J. Pines; Craig D. Varn, General Counsel, and Francine M. Ffolkes, Administrative Law Counsel, Tallahassee, for appellees.
    Wasson & Associates, Chartered, and Roy D. Wasson, for The Friends of the Underline, Inc., as amicus curiae.
    Before LAGOA, EMAS and FERNANDEZ, JJ.
   FERNANDEZ, J.

The City of Miami, Miami-Dade County (“the County”), the Village of Pinecrest, and the City of South Miami, et al., supported by amicus curiae, appeal the same Final Order on Certification rendered by Florida’s State Siting Board, including a Recommended Order and approved Conditions of Certification, which permits appel-lee Florida Power & Light Company (“FPL”) to construct and operate two new nuclear generating units and associated facilities at Turkey Point, in addition to allowing FPL to install miles of new transmission lines. The parties appeal a number of issues, a few of which overlap. We reverse and remand because the Siting Board failed to apply the City of Miami’s applicable land development regulations, the Siting Board erroneously thought it did not have the power to require FPL to install the lines underground at FPL’s expense, and the Siting Board erred in interpreting the County’s East Everglades Ordinance as a zoning regulation, rather than an environmental one.

Factual Background

1. The Florida Electrical Power Plant Siting Act

Sections 403.501-.518, Florida Statutes (2013) are known as the “Florida Electrical Power Plant Siting Act” (“PPSA”). The PPSA governs certification of new power plants and its associated facilities. Section 403.502 describes the legislative intent, which states:

The Legislature finds that the present and predicted growth in electric power demands in this state requires the development of a procedure for the selection and utilization of sites for electrical generating facilities and the identification of a state position with respect to each proposed site and its associated facilities. The Legislature recognizes that the selection of site and the routing of associated facilities, including transmission lines, will have a significant impact upon the welfare of the population, the location and growth of industry, and the use of the natural resources of the state. The Legislature finds that the efficiency of the permit application and review process at both the state and local level would be improved with the implementation of a process whereby a permit application would be centrally coordinated and all permit decisions could be reviewed on the basis of the standards and recommendations of the deciding agen-cíes. It is the policy of this state that, while recognizing the pressing need for increased power generation facilities, the state shall ensure through available and reasonable methods that the location and operation of electrical power plants will produce minimal adverse effects on human health, the environment, the ecology of the land and its wildlife, and the ecology of state waters and their aquatic life and will not unduly conflict with the goals established by the applicable local comprehensive plans. It is the intent to seek courses of action that will fully balance the increasing demands for electrical power plant location and operation with the broad interests of the public. Such action will be based on these premises:
(1) To assure the citizens of Florida that operation safeguards are technically sufficient for their welfare and protection.
(2) To effect a reasonable balance between the need for the facility and the environmental impact resulting from construction and operation of the facility, including air and water quality, fish and wildlife, and the water resources and other natural resources of the state.
(3) To meet the need for electrical energy as established pursuant to s. 403.519.
(4) To assure the citizens of Florida that renewable energy sources and technologies, as well as conservation measures, are utilized to the extent reasonably available.

See § 403.502, Fla. Stat. (2013). Specifically, section 403.509(3) outlines a certification test which the Siting Board, comprised of the Governor and his cabinet, must apply when it holds hearings to approve in whole, approve with modifications or conditions, or deny a new project. The test requires the submitted application to include the following, in pertinent part:

a) Provide reasonable assurance that operational safeguards are technically sufficient for the public welfare and protection.
b) Comply with applicable nonprocedural requirements of agencies.
c) Be consistent with applicable local government comprehensive plans and land development regulations.
d) Meet the electrical energy needs of the state in an orderly, reliable, and timely fashion.
e) Effect a reasonable balance between the need for the facility as established pursuant to s. 403.519 and the impacts upon air and water quality, fish and wildlife, water resources, and other natural resources of the state resulting from the construction and operation of the facility.
f) Minimize through the use of reasonable and available methods, the adverse effects on human health, the environment, and the ecology of the land and its wildlife and the ecology of state waters and their aquatic life.
g) Serve and protect the broad interests of the public.

In addition, the PPSA requires transmission line corridors to adhere to the same certification test as the rest of the power plant project. See § 403.509(4)(a).

2. The East Everglades Ordinance

The East Everglades is a unique section of land with a biologically diverse ecosystem. In 1980, the East Everglades Resources Planning Project issued a “Proposed Management Plan for the East Everglades.” In 1981, to implement the Management Plan, the Miami-Dade County Board of County Commissioners designated the East Everglades Area of Critical Environmental Concern (“East Everglades”) and adopted regulations to protect the natural ecosystem of the East Everglades. These were codified as Chapter 33B, Article II, Divisions 1-4 of the Miami-Dade County Code (known as “The East Everglades Ordinance” or Chapter 33B).

The East Everglades was designated first, then in 1989 the Park expanded into Everglades National Park. The eastern boundary of the East Everglades is the L-31N canal, which is also the eastern boundary of Everglades National Park.

The East Everglades Ordinance’s statement of legislative intent declared:

It is the purpose of this designation to protect the public health, safety and welfare by assuring orderly development of the designated area and minimal degradation of those natural ecosystems described in Section 33B-13; by requiring that the functional integrity of natural ecosystems as described in Section 33B-13 is protected; by assuring the maintenance of the present surface and subsurface hydrology within those lands described in Section 33B-13; by providing for the protection of the ecological form and function of the Everglades National Park, its estuarine areas and adjacent wetlands, and to maintain the capability of the natural environment to sustain a proposed use in the long term.

See § 33B-11, County Code.

Specifically, Section 33B-13(d)-(f) outlines environmental findings describing the “[djangers resulting from uncontrolled development of the area,” including:

(1) Pollution of groundwater supply. Uncontrolled development within the area poses a serious threat to the quality of water recharged to the Biscayne Aquifer ...
(2) Pollution of surface water to Everglades National Park.
(3) Reduction of surface water flow to Everglades National Park.
(4) Reduction of groundwater recharge to Biscayne Aquifer.
(5) Reduction of flood storage capacity.
(6) Danger to development from flooding. ■
(7) Danger to development from fire.
(8) Loss of vegetation, pinnacle rock, wildlife.

The ordinance includes Division 2 titled, “East Everglades Zoning Overlay Ordinance.” Division 2 describes which uses are allowed in the East Everglades, which uses require a conditional use permit, and which uses are prohibited. Although the title includes the word “zoning” in it, section 33B-26 includes “environmental performance standards.” These standards are enforced by Miami-Dade County’s Division of Environmental Resources Management (“DERM”). Division 2 sets the standards for conditional use permits, as well as the standards for variances.

The Ordinance divides the East Everglades into management areas. Management Area 2A is the most restrictive area in terms of land uses, filling land, excavating land, building roads and clearing native vegetation. See § 33B-25, 33B-26. For example, section 33B-26(c)(l) and (2) state that no roads shall be permitted in Management Area 2A,

3. FPL’s Site Certification Application and Proceedings Below

FPL submitted a Site Certification Application to the Florida Department of Environmental Protection (“DEP”), pursuant to the PPSA. FPL sought approval for the Turkey Point Units 6 & 7 Project (“Project”). The Project included new electrical transmission lines and associated facilities in western Miami-Dade County.

After FPL filed is Site Certification Application, a lengthy certification hearing before the Administrative Law Judge (“ALJ”) followed, at which numerous parties participated, including all the appellants. At the hearing, the City of Miami presented evidence regarding its land development regulations and why FPL was required to comply with those regulations. The City of Miami also outlined the problems raised with the placement of FPL’s proposed poles, which in some cases were as tall as 105 feet, in the City of Miami’s densely populated urban areas. The City of Miami presented evidence that the sea level and storm surges would be a problem for the proposed two nuclear reactors. It additionally believed that FPL’s proposed water uses for the facilities would harm wetlands, ground and surface waters, Bis-eayne Bay and the Biscayne Bay Aquatic Preserve. It contended that the DEP refused to consider local land development regulations or comprehensive plans to the transmission line portions of FPL’s application, which it claimed the DEP was statutorily required to consider. Miami-Dade County also raised its objections, particularly because the western transmission line corridor would run through areas of the East Everglades.

At the end of the certification hearing, the ALJ issued its Recommended Order approving the project. The ALJ approved FPL’s West Preferred Corridor as a backup western transmission corridor if adequate right-of-way could not be obtained in the primary corridor in a timely manner and at a reasonable cost. The transmission lines and roads in the West Preferred Corridor would be installed all within the current boundaries of both the East Everglades and Everglades National Park for approximately 6 miles. The Recommended Order did not consider local regulations, stating:

“[DEP] interprets the [Act], and in particular section 403.509, to mean that there are no “applicable” local government comprehensive plans or [land development regulations] for the proposed transmission lines ...

In addition, the Recommended Order did not require FPL to underground its lines. The parties opposed to the Recommended Order filed numerous exceptions. On May 19, 2014, the Siting Board, sitting as the head of the DEP, issued a Final Order on Certification (“Order”), in which it adopted the ALJ’s Recommended Order.

Standard of Review

An administrative agency’s conclusions of law are reviewed de novo. Parlar to v. Secret Oaks Owners Ass’n, 793 So.2d 1158, 1162 (Fla. 1st DCA 2001). This is only with respect to statutory interpretation. Florida Statute, section 120.68(7)(d) states that “[t]he court shall remand a case to the agency for further proceedings consistent with the court’s decision or set aside agency action, as appropriate when it finds that: ... [t]he agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action ...”

Deference is given to administrative agencies, however a “court need not defer to an agency’s construction if the language of the statute is clear and therefore not subject to construction.” Doyle v. Dep’t of Bus. Regulation, 794 So.2d 686, 690 (Fla. 1st DCA 2001). Here, the statute is clear and unambiguous. Thus, we review this case de novo and are not required to give deference to an agency’s interpretation.

The Siting Board Failed to Consider Local Regulations, as required by section 403.509(3), Fla. Stat. (2013 ).

We first address the City of Miami’s contention that the Siting Board erred in not considering local regulations when certifying the transmission line corridors, as was required by section 403.509(3)(b), Florida Statute (2013). We agree with the City of Miami, as the applicable local regulations should have been applied.

The PPSA requires that the Siting Board apply the certification test outlined in section 403.509(4)(a). Criteria b) and c) state that the applied for project will comply with applicable nonprocedural requirements of agencies and be consistent with applicable local government comprehensive plans and land development regulations, respectively. Section 403.509(4)(a), Fla. Stat. (2013) states that “[a]ny transmission line corridor certified by the board ... shall meet the criteria of this section.”

In addition, “Nonprocedural requirements of agencies” is defined in section 403.503(21) as:

... any agency’s regulatory requirements established by statute, rule, ordinance, zoning ordinance, land development code, or comprehensive plan, excluding any provisions prescribing forms, fees, procedures, or time limits for the review or processing of information submitted to demonstrate compliance with such regulatory requirements.

Section 403.503(2)’s definition of “agency” includes local governments. As such, section 403.509(3)’s certification test requires that local comprehensive plans and land development regulations be taken into account. The DEP and FPL both agreed that this was to be considered at the certification hearing. Therefore, the PPSA requires that local comprehensive plans, substantive conditions of zoning approvals, and other land development regulations be ■considered in the certification of power plants.

Here, the conditions of certification in the Final Order did not consider local regulations. As the City of Miami contends, the conditions of certification issued with the Siting Board’s Final Order' are the means by which the Board takes into' consideration and incorporates local regulations. The ALJ’s Recommended Order found that “there are no ‘applicable’ local government” regulations. The record that the Siting Board had before it was thus incomplete because the local regulations were not considered with respect to the transmission line corridors.

In addition, the Siting Board applied a “development” exception when it should not .have it. Section 380.04(3)(b), Florida Statute (2013), part of “The Florida Environmental Land and Water Management Act of 1972” defines “development” as:

Work done by an utility and other persons engaged in the distribution or transmission of gas, electricity, or water, for the purpose of inspecting, repairing, renewing, or construction on established rights-of-way any sewers, mains, .pipes, cables, utility tunnels, power lines, towers, poles, tracks or the like ...

The Siting Board incorrectly determined that transmission line- corridors were excluded from consideration by the definition of “development.” As the City of Miami contends, this is incorrect. The “development” exception does not apply to the entire corridor. The Siting Board certifies a corridor, not a right-of-way. According to the PPSA:

(11) a “corridor” means the proposed area within which an associated linear facility right-of-way is to be located. The width of the corridor proposed for certification as an associated facility, at the option of the applicant, may be the width of the right-of-way or a wider boundary, not to exceed a width of 1 mile. The area within the corridor in which a right-of-way may be located may be further restricted by a condition of certification. After all property interests required for the right-of-way have been acquired by the licensee, the boundaries of the area certified shall narrow to only that land within the boundaries of the right-of-way ...
(27) “Right-of-way” means land necessary for the construction and maintenance of a connected associated linear facility, such as a railroad line, pipeline, or transmission line as owned by or proposed to be certified by the applicant ... The right of way shall be located within the certified corridor and shall be identified by the applicant subsequent to certification in documents filed with the department prior to construction.

See § 403.503(11) and (27), Fla. Stat. (2013).

Consequently, the “development” exception cannot be applied to the entire width of the corridor. As the record reflects, the corridor is made up of parcels outside of established rights-of-way, some of which are privately owned. Thus, the Siting Board has no way of knowing if construction will take place within an established right-of-way or a private easement. The “development” exception thus cannot exempt transmission line corridors from the PPSA’s requirement that local land regulations are to be considered.

In addition, FPL contends that section 380.04 stands for the proposition that any work done by a utility company is not development, so land development regulations do not apply. We believe this argument to be misplaced and instead agree with the City of Miami that construction of a transmission line on land that is not established as a right-of-way constitutes “development.” Section 380.04(3)(b) states that the “development” exception is limited to work conducted on “established rights-of-way.” Courts that have interpreted this section use “established” with the word “existing.” See Rinker Materials Corp. v. Town of Lake Park, 494 So.2d 1123, 1126 (Fla.1986); St. Johns Cnty. v. Dep’t of Cmty. Affairs, 836 So.2d 1034, 1037 (Fla. 5th DCA 2002).

This section uses “established,” a past tense word. The use of the past tense in this statute indicates that the “development” exception only applies to existing rights-of-way. The Siting Board, in essence, struck the word “established” from the statute, which it is not permitted to do. Florida Dept. of Revenue v. Florida Mun. Power Agency, 789 So.2d 320 (Fla.2001). The right-of-way must be established, so there is no exemption from local regulations. And as the City of Miami contends, were this Court to accept FPL’s argument on this issue, that an established right-of-way is not the same as an existing or preexisting right-of-way, this would make the word “established” meaningless.

The Siting Board did not review or consider the City of Miami’s LDR’s, so the order on appeal does not incorporate the local regulations of the City of Miami into the conditions of certification that control the electrical transmission lines, as required by section 403.509(3), Fla. Stat. (2013). Accordingly, because the order did not comply with this statute, we reverse on this issue.

The Siting Board Has the Power to Order Undergrounding of Transmission Lines

We further reverse that portion of the Siting Board’s Order where it erroneously determined that it lacked the authority to condition certification of FPL’s project on FPL installing the power lines underground, at FPL’s expense. As the City of Miami and the City of South Miami contend, the PPSA empowers 'the Siting Board to require FPL to bury these transmission lines.

Section 403.511 of the PPSA gives the Siting Board the power to make certification of FPL’s application subject to the conditions set out in the Final Order. The general grant of power in the PPSA to “impose conditions” upon certification, other than those listed in the PPSA, gave the Siting Board the power to impose the condition of requiring that the power lines be installed underground, at FPL’s expense. See § 403.511(1), Fla. Stat.; § 403.511(2)(b)(2). Undergrounding of the transmission lines is a condition upon certification encompassed by the Siting Board’s ability to impose “site specific criteria, standards, or limitations” on FPL’s project. As such, the Siting Board had the power to require it, contrary to the Siting Board’s conclusion that it had no such power. Accordingly, reversal is required on this point.

FPL contends that Florida Power Corp. v. Seminole County, 579 So.2d 105, 108 (Fla.1991) stands for the proposition that requiring undergrounding of the transmission lines is outside of the Siting Board’s jurisdiction. We disagree with FPL’s interpretation of this case.

In Seminole, Seminole County and the City of Lake Mary were trying to mandate Florida Power Corporation (FPC) to convert overhead lines to underground lines on a stretch of road in question. Id. at 106. The City and County decided to widen Lake Mary Boulevard. The City enacted ordinances requiring FPC to relocate its power lines underground and stating that FPC bear the cost of undergrounding. The County’s ordinance did not specify who would pay the cost of placing the power lines underground, but the County stated that it would not do so. Id.

FPC sued the City and the County for a declaratory judgment and injunctive relief, admitting it was obligated under section 337.403(1), Florida Statutes (1989), to relocate the lines overhead within the new right of way at its expense. Id. However, FPC contended that it would cost an additional $1,250,000 to place the lines underground, and it would place the lines underground only if the City and the County would bear the additional cost. Following trial, the circuit judge upheld the validity of the ordinances. Id.

On appeal, FPC asserted that the ordinance invaded the exclusive authority of the Public Service Commission (PSC) to regulate rates and service. Id. FPC argued that if the ordinances were upheld, similar ordinances would follow and that the cost of converting all of FPC’s lines to underground lines would exceed $2.5 billion. Both the City and the County relied on section 337.403(1), Florida Statutes (1989), which the circuit judge cited as authority for his ruling. Id.

The Supreme Court of Florida ruled in favor of FPC. Id. The Court stated that section 366.04(1), Florida Statutes (1989), expressly confers jurisdiction on the Public Service Commission to “regulate and supervise each public utility with respect to its rates and service.” Id. The Court stated that the Public Service Commission has broad powers in the exercise of its “exclusive and superior” jurisdiction, including:

[the] power to prescribe fair and reasonable rates and charges, classifications, standards of quality and measurements, and service rules and regulations to be observed by each public utility; to require repairs, improvements, additions, and extensions to the plant and equipment of any public utility when reasonably necessary to promote the convenience and welfare of the public and secure adequate service or facilities for those reasonably entitled thereto; ... and to prescribe all rules and regulations reasonably necessary and appropriate for the administration and enforcement of this chapter. § 366.05(1), Fla. Stat. (1989).

Id. at 106-07. The Court reasoned that if FPC has to expend large sums of money in converting its overhead power lines to underground, these expenditures will necessarily be reflected in the rates of its customers. The Court did not believe that the statute granted the County the authority to regulate public utilities and that such authority rested exclusively with the Public Service Commission. Id. at 107.

The Court went on to state that “if there was any doubt that the legislature did not intend that cities and counties could dictate the decision of whether public utilities should convert their overhead systems to underground, this was laid to rest by the enactment'of section 366.04(7)(a), Florida Statutes (1989),” which provides in pertinent part that:

By July 1, 1990, the commission shall make a determination as to the cost-effectiveness of requiring the installation of underground electric utility distribution and transmission facilities for all new construction, and for the conversion of overhead distribution and transmission facilities to underground distribution and transmission facilities when such facilities are replaced or relocated..., Upon a finding by the commission that the installation of underground distribution and transmission facilities is cost-effective, the commission shall require electric utilities, where feasible, to install such facilities.

Id. at 108. The Court stated, “Permitting cities or counties to unilaterally mandate the conversion of overhead lines to underground would clearly run contrary to the legislative intent that the Public Service Commission have regulatory authority over this subject.” Id.

We find the Seminole case to be distinguishable because the Court said nothing in that case regarding whether under-grounding may be required as a condition of certification in the licensing of a transmission line corridor. In addition, the Supreme Court’s determination regarding the Public Service Commission was based on statutory language that the Legislature has since deleted from this section. The Seminole holding was made in the context of rate-making with regard to the power vested in the Public Service Commission and not in the context of any of the Siting Board’s powers. The Siting Board’s power in no way infringes on the PSC’s authority with regard to rate-making, and there is no conflict with the PSC’s role. The Seminole case is simply inapplicable to the case before us.

The Siting Board Erred in Interpreting the Countg’s East Everglades Ordinance as a Zoning Ordinance Rather than as an Environmental Regulation

Turning now to Miami-Dade County’s contention that the Siting Board erred in interpreting the County’s East Everglades Ordinance, we believe that the substance and legislative history of the ordinance demonstrate that the ultimate purpose of the East Everglades Ordinance is to protect the environment in the Everglades. Thus, we agree with the County that the East Everglades Ordinance is primarily an environmental regulation.

In coming to this decision, we note that it appears that the Siting Board decided that Chapter 33B is a zoning regulation because one of its divisions is titled “East Everglades Zoning Overlay Ordinance.” In its Order, the Siting Board stated “MDC has adopted the East Everglades regulations as part of its Zoning Code, it cannot now be allowed to unilaterally change the nature or expand the scope of those regulations to suit its purposes in this proceeding.” This statement was incorrect.

The County’s Zoning Code is codified as Chapter 33 of the Miami-Dade County Code. As previously discussed, the East Everglades Ordinance is codified as Chapter 33B. It is a separate chapter titled “Areas of Critical Environmental Concern.” Although it appears adjacent to the zoning code, it is not part of it. As the County points out in support of its position, Chapter 28 of its Code addresses “Subdivisions,” while chapter 28A addresses “Seaport Security and Operations.” Chapter 8 is titled, “Building Code,” while chapter 8A is the code of “Business Regulations.” Just like these adjacent chapters make it clear that they are not related to each other, chapter 33B is not related to chapter 33. These two chapters are distinct, and Chapter 33B is not an appendix to chapter 33.

The County contends that the character of a law is determined by its purpose and operation, not its titles or headings. The United States Supreme Court held in United States v. Constantine, 296 U.S. 287, 294, 56 S.Ct. 223, 80 L.Ed. 233 (1935) that courts “must ascribe to [a regulation] the character disclosed by its purpose and operation, regardless of name.” The “sub-chapter heading cannot substitute for the operative text of the statute.” Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 47, 128 S.Ct. 2326, 171 L.Ed.2d 203 (2008). In addition, the County Code specifies that section headings are not to be considered as part of the regulation: “The catchlines of the several sections of this Code printed in boldface type are intended as mere catchwords to indicate the contents of the section and shall not be deemed or taken to be titles of such sections, nor as any part of the section, nor, unless expressly so provided, shall they be so deemed when any of such sections, including the catchlines, are amended or reenacted.” See § 1-3, County Code. Furthermore, the title or section heading does not determine its meaning. See Whitman v. American Trucking Assocs., 531 U.S. 457, 482-83, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001). Thus, the Siting Board’s determination that Chapter 33B is a zoning regulation was erroneous because it focused on the title of the chapter as opposed to its environmental character.

In addition, the text of Chapter 33B indicates that it is an environmental regulation. Section 33B-13, Division 1, outlines the “environmental findings” which focuses on the protection of water flow, water quality and quantity, and native wildlife in the East Everglades. Division 2 states its purpose is to protect and preserve the environmental values of the East Everglades. As previously discussed, the “Zoning Overlay” division lists “environmental performance standards” and regulates issues such as fill, excavation, and roads and then- environmental impacts.” See § 33B — 26(c)(1). The Ordinance is how the County implemented the East Everglades Resources Planning Project’s “Proposed Management Plan for the East Everglades.” The Management Plan’s main concern was the area’s freshwater resources, its wildlife and its vegetation, and the impact of future development on those resources,” in addition to “the long term health of the water supply.”

The East Everglades Ordinance is administered mainly by DERM, not the County’s zoning department. Moreover, the land use components that are included in the ordinance are designed to address environmental impacts, such as water pollution, reduction in the supply of water to the Everglades, reduction of groundwater recharge to the Biscayne Aquifer, and reduction of flood storage capacity. See § 33B-13(d), 33B-25, 33B-28. All of these factors together leads us to the conclusion that the ALJ erred in determining that 33B was a zoning regulation, and the Siting Board erred in accepting the ALJ’s findings.

Consequently, because the East Everglades Ordinance is an applicable, non-procedural environmental requirement of the County, very similar to Chapter 24 of the County Code, which is the County’s environmental regulatory code, FPL cannot install the transmission lines and roads proposed in its project without requesting a variance. Chapter 33B expressly prohibits roads, does not permit transmission lines anywhere in the East Everglades, and greatly restricts the amount of wetland filing in the area. FPL never requested these variances. There is no evidence in the record that notice was given that these variances would be considered. The East Everglades Ordinance required public notice and an opportunity to be heard for any conditional uses or variances being approved. See § 33B-27(b)(2). Because FPL cannot construct the transmission lines and roads on the west side of the L-31N canal without these variances, FPL’s proposed West Preferred Corridor project could not have been approved.

The PPSA requires applicants to request any “variance, exemption, exception, or other relief’ that would be required to comply with the applicable, non-procedural regulations of agencies such as the County, that are parties to the certification proceeding. The only way for the applicant to not have to comply with this requirement is if the agency has failed to provide notice in the site certification proceeding that the regulations are applicable. See § 403.507(3)(a), Fla. Stat.

Here, the County filed an Agency Report on the West Preferred Corridor that outlined all the requirements of Chapter 33B, including Section 33B-28, as County regulations that apply to FPL’s project in question. The Agency Report stated that roads and fill pads would be prohibited in certain areas under Chapter 33B. The County’s Report also stated:

The portion of the project proposed in the East Everglades Area of Critical Environmental Concern shall be relocated outside the Easter Everglades or not be constructed unless the project is modified to meet all requirements of County Code Chapter 24 and 33B including but not limited to the Section 33B-28 and provided the portions of the corridor are built with road less construction techniques and without fill pads for the transmission lines. Furthermore, additional modification of project design in this area would be required to avoid all permanent impacts to rare, threatened and endangered species by techniques such as undergrounding, and FPL shall be responsible for the cost associated with undergrounding transmission lines.

Because FPL did not apply for the necessary variances from Chapter 33B, it was a violation of due process for the Siting Board to grant them. A court must set aside any agency action if a notice does not adequately identify the matters that the agency will consider. Florida Optometric Ass’n v. Dep’t of Prof'l Reg., Bd. of Opticianry, 567 So.2d 928, 934 (Fla. 1st DCA 1990). With regard to public notice, “notice must adequately inform as to what changes are proposed, and the actual change must conform substantially to the proposed changes in the notice.” Williams v. City of N. Miami, 213 So.2d 5, 7 (Fla. 3d DCA 1968).

In addition, even if the variances had been requested and considered, FPL presented no competent substantial evidence that the project could satisfy the environmental performance standards requirements of Chapter 33B. Variances must satisfy the same standards as conditional uses. See § 33B-31. Here, the West Preferred Corridor cannot satisfy the East Everglades Ordinance’s variance standards because the corridor would adversely impact the environment and the ecology of the land and its wildlife.

Section 33B-28 states that a conditional use permit may be granted only if the applicant demonstrates that:

(a) The conditional use is consistent with the purposes, goals, objectives and standards of the East Everglades Management Plan; ...
The proposed use, singly or cumulatively, will not have any of the following irreversible effects on the ecological integrity of the East Everglades:
(1) Harmful obstruction or undesirable alteration of the natural flow of water within the area of work.
(2) Harmful or increased erosion, or adverse environmental impact resulting from changes in water quality or quantity.
(3) Adverse impact upon wetland flora and fauna within adjacent parcels.
(4) Adverse impact upon wetland flora and fauna within those portions of the subject property not proposed for development under the application ...

Under these restrictions, FPL’s application cannot be approved under the facts before us. For example, filling land and constructing structures in the proposed area would affect sheet flow and the hydrological resources of the area. FPL’s application proposed filling is up to 137 acres of the 296-acre right-of-way. Filling wetlands in this area would create barriers to water flow. The effect on the area’s hydrology would destroy the plant species that supplies the base for the food chain in the ecosystem and will adversely affect the endangered birds that nest and feed on the west side of the L-31N canal. In addition, these adverse impacts would also affect the County’s water supply.

The roads that FPL would need to build for the construction of the project would affect the sheet flow in the area. Roads would have to be elevated in some areas so that vehicles could avoid the high water levels in this part of the East Everglades. The Siting Board permitted FPL to construct roads using culverts, which is a drain or channel crossing under a roadway. Section 33B-26 maintains that a variance is needed to install elevated roads or culverts. FPL alleged that it could build a road with enough culverts to mitigate disrupting sheet flow west of the L-31N canal.

The record on appeal indicates that FPL’s hydrology expert admitted that FPL had not conducted any analysis of the actual flow of water from one side of the transmission lines to the other. In addition, FPL’s experts did not enter the Park when they conducted their field visits. The structure pads and roads would change the local hydrology and ecology of the subject area. These changes would have an irreversible ecological effect on the Everglades that would result from “[hjarmful obstruction or undesirable alteration of the natural flow of water.” § 33B-28(e)(l). In sum, the evidence was insufficient to support a variance to allow roads and culverts in Management Area 2A.

With regard to FPL’s project’s impact to endangered birds, the Siting Board stated that “there will be no adverse impacts on avian species.” However, the record supports the opposite — that the endangered avian species would be greatly impacted. Filling wetlands in the manner proposed by FPL’s project, for example, would irreversibly affect endangered species in the subject area. The East Everglades wetlands are home to a number of federally-listed endangered species. Two of these species, the wood stork and the snail kite, nest and forage for food very close to or in the West Preferred Corridor. Filling wetlands in the area would destroy the foraging habitat of these birds. The FPL’s proposed roads and structure pads have side slopes not suitable for producing food sources. The fill would change the microclimate in the area, rendering the area less suitable for apple snails, which snail kites feed almost exclusively on and other food sources for the wood stork. In addition, snail kites nest in woody vegetation, and FPL removes woody vegetation under power lines. FPL submitted no competent substantial evidence that the approved conditions of certification would adequately address the risk to these endangered birds.

There is also risk that the birds will collide with the transmission poles and lines proposed by FPL, particularly young birds that have not yet learned how to avoid obstacles. There is no competent substantial evidence that the proposed facilities will comply with the County’s East Everglades Ordinance. The conditions in the Order do not address the loss of foraging or the potential loss of protected birds. Furthermore, the Order approves mitigation techniques such as perch discouragers and flight diverters so birds can identify and avoid poles and wires. This finding was not supported by competent substantial evidence because it fails to satisfy the variance criteria that the proposed use not have an “irreversible effectf] on the ecological integrity of the East Everglades” that would result from “adverse impact upon wetland flora and fauna”. 33B-28(e)(3), (4). The mitigation technique presumes that some of the species are going to die. And that simply is not the standard under chapter 33B.

Conclusion

We therefore reverse the Final Order and remand to the Siting Board for further review consistent with local developmental regulations, comprehensive plans and the applicable environmental regulations, as discussed in this opinion.

Reversed and remanded.

      . The Village of Pinecrest adopts the City of Miami's positions.

      . There were many issues that were dealt with below via stipulations and agreements. We decline to discuss those issues.

      . The West Preferred Corridor would run along the west side of the L-31N canal for 7.4 miles between S.W. 120th Street and S.W. 8th Street/Tamiami Trail and would consist of dual 500-kV transmission lines and a single 230-kV line, along with access roads. The transmission lines and roads in the West Preferred Corridor would be installed entirely within the current boundaries of both the East Everglades and Everglades National Park for approximately 6 miles. The remaining 1.4-mile segment would run south along the 1X3 IN canal to S.W. 120th Street and falls outside the Everglades National Park boundaries, but remains within the East Everglades.

      . Florida courts have held that a plan to create a right-of-way in the future is not a right-of-way. See Clipper Bay Investments, LLC v.

        State Dep’t of Transp., 117 So.3d 7 (Fla. 1st DCA 2013).

      . In its Final Order of Certification, the Siting Board adopted the ALJ's conclusion that "as a matter of law ,.. the PPSA preempts a local government’s authority to regulate transmission lines that extend through several local government jurisdictions.” A fair reading of the Final Order of Certification, in context, leads us to conclude that the Siting Board determined it did not have the authority to require undergrounding of transmission lines as a condition of certification. As we explain in this opinion, we conclude that the Siting Board does have such authority, although we express no opinion on the merits of the issue. We recognize that the Final Order of Certification contains a discussion of the ALJ's factual findings regarding the increased cost and effectiveness of such a proposition. Our holding in this regard should not be interpreted as requiring that additional hearings be held or additional evidence taken, only that the Siting Board is within its authority to consider such an issue and should exercise that authority as it deems appropriate.

      . At oral argument, FPL’s counsel conceded that the purpose of chapter 33B was to “protect the natural resources and environmental values” in the East Everglades area.

      . Chapter 24 of the Miami-Dade County Code is titled "Environmental Protection, Biscayne Bay and Environs Designated Aquatic Park and Conservation Area, The Biscayne Bay Environmental Enhancement Trust Fund, and the Environmentally Endangered Lands Program. Section 24-2, "Declaration of Legislative Intent” states:
      The Board further finds it necessary to maintain within Miami-Dade County a freshwater wetlands management program for the purposes of providing adequate water levels, flood control, water conservation, protection of water quality and recharge to the Biscayne Aquifer, and prevention of saltwater intrusion; for the maintenance of the biological integrity of freshwater wetlands in Miami-Dade County; for the protection of the interrelated natural functions between Miami-Dade County's wetlands and the natural systems in Everglades National Park; for managing freshwater wetland resources in accordance with environmental standards and management criteria as recommended by the Miami-Dade County Comprehensive Development Master Plan and Chapter 33B of the Code of Miami-Dade County, Florida, as amended from time to time; and providing for cooperation with federal, State, and local agencies and authorities.


text:
    Charles Edward PEARCE, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-3224.
    District Court of Appeal of Florida, First District.
    April 27, 2016.
    Nancy A. Daniels, Public Defender, and W.C. McLain, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Matthew Pavese, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

On consideration of the motion for rehearing, the response thereto, and the parties’ oral arguments, this Court grants the motion for rehearing, withdraws the opinion filed December 31, 2015, and substitutes the following opinion in its place.

After an extensive review of the record and consideration of the parties’ arguments at oral argument on the motion for rehearing, we conclude that any error that may have occurred was harmless. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). Therefore, Pearce’s convictions and sentences are AFFIRMED.

WOLF, ROWE, and MAKAR, JJ., concur.