author: Kuntz, J. Gross, J., dissenting.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. CARE WELLNESS CENTER, LLC a/a/o Virginia Bardon-Diaz, Appellee.
    No. 4D16-2254
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2018]
    Nancy W. Gregoire of Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Scott E. Danner of Kirwan, Spellacy & Danner, P.A., Fort Lauderdale, for appellant.
    Marlene S. Reiss of Law Offices of Marlene S. Reiss, Esq., P.A., Miami, Thomas J. Wenzel of Cindy A. Goldstein, P.A., Coral Springs, and Stuart L. Koenigsberg of A Able Advocates-Stuart L. Koenigsberg, P.A., Miami, for appellee.
    Peter J. Valeta of Cozen O'Connor, Chicago, Illinois, for Amicus Curiae, Florida Justice Reform Institute.
    Matthew C. Scarfone of Colodny Fass, P.A., Sunrise, for Amicus Curiae, Property Casualty Insurers Association of America.
    Mac S. Phillips of Phillips|Tadros, P.A., Fort Lauderdale, and David M. Caldevilla of de laParte & Gilbert, P.A., Tampa, for Amicus Curiae, Floridians For Fair Insurance, Inc.
   Kuntz, J.

Application of the deductible when an insured seeks benefits under a personal injury protection (PIP) policy of vehicle insurance is an issue the circuit and county courts have inconsistently resolved. In each case, the healthcare provider argues the deductible must be applied to the total billed charges, before reducing the charges under section 627.736(5)(a)1., Florida Statutes (2013), a statutory fee schedule the legislature has found to be reasonable. On the other hand, the insurer argues the billed amount must be reduced to the amount in the approved fee schedule before applying the deductible and issuing payment.

Here, the county court agreed with the provider, granted the provider's motion for summary judgment, and certified the following question to be of great public importance:

PURSUANT TO FLA. STAT. § 627.739, IS AN INSURER REQUIRED TO APPLY THE DEDUCTIBLE TO 100% OF AN INSURED'S EXPENSES AND LOSSES PRIOR TO APPLYING ANY PERMISSIVE FEE SCHEDULE PAYMENT LIMITATION FOUND IN § 627.736(5)(A)(1), FLA. STAT. (2013)?

We previously exercised our discretionary jurisdiction under Florida Rule of Appellate Procedure 9.030(b)(4)(A) to answer the certified question, which we rephrase as follows:

PURSUANT TO SECTIONS 627.736 AND 627.739, FLORIDA STATUTES (2013), IS AN INSURER REQUIRED TO APPLY A POLICY DEDUCTIBLE TO THE TOTAL AMOUNT OF A PROVIDER'S INVOICES TO AN INSURED PRIOR TO APPLYING ANY FEE SCHEDULE FOUND IN § 627.736, FLA. STAT.?

For these reasons, we answer the rephrased certified question in the negative. In the context of PIP benefits, the legislature mandates a provider that has treated an injured party charge the "insurer and injured party only a reasonable amount." § 627.736(5)(a), Fla. Stat. (2013). The legislature also established two methods of determining reasonableness; one being the fee schedule. To apply the fee schedule to the billed charges only after applying the deductible, as the provider argues, would allow the provider to recover different amounts depending on the amount of the deductible. It would also allow the provider to recover more than the amount found to be reasonable in the fee schedule. This would render meaningless the portion of the statute precluding a provider from charging more than a reasonable amount.

To ensure the statute is applied as written, we hold that an insurer must reduce the provider's charges to the statutorily-approved permissive fee schedule before applying the deductible. As a result, we reverse the decision of the county court and remand for further proceedings consistent with this opinion. We also certify conflict with the Fifth District in Progressive Select Insurance Co. v. Florida Hospital Medical Center a/a/o Jonathan Parent , 236 So.3d 1183, 2018 WL 792012 (Fla. 5th DCA Feb. 9, 2018). We now turn to a more in-depth discussion of the case before us.

Background

State Farm, the insurer, issued a PIP policy to Ms. Bardon-Diaz, the insured, who elected a $1,000 policy deductible. Following an automobile accident, the insured received medical treatment at Care Wellness Center, the provider, for injuries related to the accident. At that time, the insured executed an assignment of benefits, assigning "any rights or benefits under my policy of insurance with State Farm, for any service and/or charges provided by the above-named medical provider." The assignment also specifically referenced the "status of PIP payments that are due to" the provider.

The insurer received bills for services from all providers totaling $1,812, an amount reduced to $825.96 after the insurer applied the fee schedule. The provider in this appeal submitted three bills to the insurer for the insured's treatment, but the deductible was applied to only two. The total amount billed for the two bills was $385.00 and, after the insurer applied the fee schedule, the two bills were reduced to $258.60. The policy deductible consumed all $258.60.

The provider filed a complaint for breach of contract in county court, alleging that the insured was covered by the vehicle insurance policy and received treatment from the provider. The provider further alleged that the insured "gave notice of covered losses and made demand for PIP benefits from [insurer] for reasonable, necessary, and related medical, rehabilitative and/or remedial treatment." Later, the provider amended its complaint and alleged that the insurer "reduced [the provider's] bill and subsequently applied the reduced amounts to the deductible." The provider's amended complaint stated that the provider "does not dispute that [the insurer's] policy clearly and unambiguously puts its insured on notice of its election to limit reimbursements to the 'permissive' fee schedule rate." The provider also acknowledged the existence of the policy deductible.

The provider challenged the insurer's application of the deductible, alleging "the reduction of [provider's] bills prior to applying said bills to the deductible resulted in an underpayment of [provider's] bills." More specifically, the provider alleged that it "believe[s] that [the insurer] is permitted to limit only reimbursed charges to the 'permissive fee schedule' rate pursuant to the subject policy of insurance" and that the provider "believe[s] that bills that are applied to a deductible are not 'reimbursed' or 'paid.' "

Both parties moved for summary judgment on applying the deductible. After holding a hearing, the court granted the provider's motion for summary judgment. The court later amended the summary judgment order, finding for the provider and certifying the issue as presenting an issue of great public importance.

Analysis

At issue is the proper application of a PIP-claim deductible. Because this involves the interpretation of both a statute and an insurance policy, we have de novo review. See Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc. , 141 So.3d 147, 152 (Fla. 2013) (citations omitted).

First, we discuss the Florida Motor Vehicle No-Fault Law, see §§ 627.730-.7405, Fla. Stat. (2013)-specifically, the PIP statute. Next, we focus on the cornerstone of the PIP statute: reasonableness. Then, we discuss the Fifth District's recent opinion interpreting the same provisions of the statute at issue in this case. Finally, we offer our interpretation of the statute and apply it to this case.

a. The PIP Statute

Florida enacted the PIP statute in 1971. Since its inception, the statute "has required insurers to provide coverage for reasonable expenses for necessary medical services."

Virtual Imaging , 141 So.3d at 153. The legislature has amended the statute several times, and these amendments "were designed to regulate the amount providers could charge PIP insurers and policyholders for the medically necessary services PIP insurers are required to reimburse." Id.

One of these amendments added a provision that allowed an insurer to limit reimbursements for medical services to a statutory fee schedule, which the legislature has found to be reasonable. Id. (citing § 627.736(5)(a) 2., Fla. Stat. (2008) (stating that an "insurer may limit reimbursement to 80 percent of the following schedule of maximum charges," and various categories of service follow with a designated schedule) ). For example, the amendment included a provision allowing the insurer to limit reimbursements to "200 percent of the allowable amount under the participating physician's schedule of Medicare Part B." Id. at 156 (citing § 627.736(5)(a) 2.f., Fla. Stat. (2008) ). To use this fee schedule, the insurer must provide notice to the insured within the policy of insurance. See id. (citing § 627.736(5)(a) 5., Fla. Stat. (2008) ).

The parties agree that the insurer properly put the insured on notice of its intent to apply the fee schedule. They also agree on the amount of the applicable deductible. So our issue is narrow. We must determine the proper application of a PIP policy deductible, governed by section 627.739, Florida Statutes, and the PIP benefit statutory section, or section 627.736, Florida Statutes.

To accomplish this task, we first look to the plain language of the PIP deductible statute. The relevant subsection allows the insurer to provide a deductible, and provides the terms of its application:

Insurers shall offer to each applicant and to each policyholder, upon the renewal of an existing policy, deductibles, in amounts of $250, $500, and $1,000. The deductible amount must be applied to 100 percent of the expenses and losses described in s. 627.736. After the deductible is met, each insured is eligible to receive up to $10,000 in total benefits described in s. 627.736(1). However, this subsection shall not be applied to reduce the amount of any benefits received in accordance with s. 627.736(1)(c).

§ 627.739(2), Fla. Stat. (2013). The dispositive issue in this appeal is to determine what the following phrase means: "the deductible amount must be applied to 100 percent of the expenses and losses described in s. 627.736." To determine the meaning of the phrase "expenses and losses," section 627.739(2) must be read along with section 627.736.

Section 627.736 contains several references to "expenses," and each section includes, directly or indirectly, a requirement that the expenses be reasonable. See, e.g. , § 627.736(1)(a), (1)(b), (4), (4)(f), (6)(b), (6)(c), Fla. Stat. To highlight two of those provisions, section 627.736(1)(a) references "reasonable expenses for medical services," and section 627.736(6)(b) requires a provider to furnish a written report stating why the items charged were medically necessary and why the amount charged is reasonable.

b. Reasonableness

Reasonableness is the key throughout these provisions. Yet the providers effectively argue that their charges need to be reasonable only to the insurer, not the insured. We disagree. The requirement that charges be reasonable applies to the totality of the charges. The statute states that the provider "may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered." § 627.736(5)(a), Fla. Stat. (2013). We think the plain language of the statute is clear. The legislature unambiguously emphasized a requirement that expenses be reasonable. We cannot minimize the importance of this reasonableness requirement. Indeed, our supreme court found that "this provision-the reasonable medical expense coverage mandate-is the heart of the PIP statute's coverage requirements." Allstate Ins. Co. v. Orthopedic Specialists , 212 So.3d 973, 976 (Fla. 2017) (internal quotation omitted).

With reasonableness in mind, courts have stated that a PIP insurer is an "indemnitor against liability for reasonable and necessary medical expenses incurred by persons the PIP or medpay provisions cover." Kaklamanos v. Allstate Ins. Co. , 796 So.2d 555, 561 (Fla. 1st DCA 2001), approved , 843 So.2d 885 (Fla. 2003). The court in Kaklamanos defined expense as "the same as a debt," and the expense "has been incurred when liability for payment attaches." Id. (citation omitted). So a "reasonable expense" is the amount the insurer must pay, see , e.g. , Tri-Cty. Diagnostic & Imaging Ctrs., LLC v. Windhaven Ins. Co. , 25 Fla. L. Weekly Supp. 114a, 2017 WL 1051157 (Fla. Palm Beach Cty. Ct. Mar. 14, 2017), and it is the limit a medical provider is entitled to charge, Northwoods Sports Med. & Physical Rehab., Inc. v. State Farm Mut. Auto. Ins. Co. , 137 So.3d 1049, 1057 (Fla. 4th DCA 2014).

As PIP benefits are established only for reasonable charges, we must next review how to determine reasonableness. Our supreme court has explained that there are two different methods to calculate reasonableness. Orthopedic Specialists , 212 So.3d at 976. Under the first method-found within section 627.736(5)(a) -reasonableness is a fact-dependent inquiry determined by considering various factors. Orthopedic Specialists , 212 So.3d at 976 (citing Virtual Imaging , 141 So.3d at 155-56 ). Under the second method-found within section 627.736(5)(a) 1.-an insurer may limit reimbursement to eighty percent of a schedule of maximum charges set forth in the PIP statute. § 627.736(5)(a) 2., Fla. Stat. (2013). "Reimbursements made under section 627.736(5)(a) 2. satisfy the PIP statute's reasonable medical expenses coverage mandate." Orthopedic Specialists , 212 So.3d at 976 (citing Virtual Imaging , 141 So.3d at 150, 156-57 ).

Now, returning to the PIP deductible statute, we first note our sister district's interpretation of this section. Then, we offer our interpretation. Again, that section states "the deductible amount must be applied to 100 percent of the expenses and losses described in s. 627.736." § 627.739(2), Fla. Stat. (2013).

c. The Fifth District's Interpretation of the PIP Deductible Statute

A divided panel of the Fifth District recently interpreted this same provision of this statute. Parent , 236 So.3d at 1184. Judge Sawaya's majority opinion agreed with the circuit court's conclusion that "when calculating the amount of PIP benefits due to the insured, section 627.739(2) requires the deductible to be subtracted from the total medical care charges before applying the statutory reimbursement limitations provided in section 627.736(5)(a) 1.b., Florida Statutes (2014)." Parent , 236 So.3d at 1184. As the provider argues here, the majority opinion explained that the current version of the statute distinguishes between "expenses and losses" and "benefits," stating:

[ Section 627.739(2) ] distinguishes between "expenses and losses" and "benefits." The second sentence states that the deductible "must be applied to 100 percent of the expenses and losses." In the very next sentence, the statute provides that "[a]fter the deductible is met, each insured is eligible to receive up to $10,000 in total benefits." Thus, the statute indicates that the deductible applies to "100 percent of the expenses and losses" whereas "benefits" refers to the calculated amount after the deductible has been applied to the total expenses and losses and after application of the statutory reimbursement limitations found in section 627.736.

Id. at 1186.

The majority opinion also cited as persuasive authority a proposed amendment to the statute the legislature did not approve in 2016. Id. at 1189-90. The majority opinion asserted the proposed amendment would have changed the statute to reflect the view of the insurer. Id. We find it unnecessary to consider whether the Fifth District majority or dissent correctly interpreted the language of the proposed amendment. Legislative inaction on a proposed bill "lacks 'persuasive significance' because 'several equally tenable inferences' may be drawn from such inaction, 'including the inference that the existing legislation already incorporated the offered change.' " Pension Ben. Guar. Corp. v. LTV Corp. , 496 U.S. 633, 650, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990) (quoting United States v. Wise , 370 U.S. 405, 411, 82 S.Ct. 1354, 8 L.Ed.2d 590 (1962) ). Similarly, the Seventh Circuit explained the insignificance of proposed legislation:

[p]roposed legislation can fail for many reasons. Some Members of Congress may oppose the proposal on the merits; others may think it unnecessary and therefore not worth the political capital needed to write the 'clarification' into the statute over opposition; still others may be indifferent, or seek to use the bill as a vehicle for some unrelated change. Congress may run out of time, as a noncontroversial bill sits in a queue while a contentious proposal is debated. No surprise, therefore, that the Supreme Court repeatedly reminds us that unsuccessful proposals to amend a law, in the years following its passage, carry no significance.

N.A.A.C.P. v. Am. Family Mut. Ins. Co. , 978 F.2d 287, 299 (7th Cir. 1992) (internal citations omitted). Whatever the reason the legislature declined to enact the proposed amendment to the statute has no bearing on our interpretation of the statute that it did enact.

Ultimately, the Fifth District concluded "that Section 627.739(2) currently requires that the deductible be applied to 100% of the expenses and losses" and only then may an insurer reduce the billed amount to the amount the legislature has found reasonable. Id. at 1192.

Judge Palmer dissented, finding the majority incorrectly concluded that "medical expenses" are different than "medical benefits" under the PIP statute. Id. at 1193 (Palmer, J., dissenting). He found the majority's conclusion that the deductible must be first applied to the billed charge, no matter if the PIP policy covers the charge, "fundamentally unreasonable." Id. We find Judge Palmer's position to be more persuasive.

d. Our Interpretation of the PIP Deductible Statute and its Application to This Case

Reading section 627.739(2) along with section 627.736, as the statute expressly requires, the deductible must be applied to 100% of the reasonable and necessary expenses. Consistent with this conclusion, in Northwoods Sports , we explained that "in order to activate the right to claim PIP payments ... the provider's bills must be compensable under the statute in that they have been determined to be reasonable and necessary" and "[u]ntil the necessity of the services and reasonableness of the charges is settled, their compensability under PIP is not established." 137 So.3d at 1057. In other words, there is no PIP claim until the provider's bill is reduced, if necessary, to the amount set forth in section 627.736(5)(a) 1. If there is no PIP claim until the amount is reduced to the amount found to be reasonable by the legislature, then there is nothing to apply the deductible to until the amount is reduced. Because the deductible applies to expenses as described in section 627.736, the deductible is applied to the amounts after the reduction.

This interpretation is also consistent with a general understanding of insurance deductibles. Logically, "the deductible only applies to losses covered under the policy of insurance, not simply the total bills submitted." Better Chiropractic & Rehab Ctr. LLC v. Geico Indem. Co. , 22 Fla. L. Weekly Supp. 378b (Fla. Miami-Dade Cty. Ct. Sept. 25, 2014) (citing Gen. Star Indem. Co. v. W. Fla. Vill. Inn, Inc. , 874 So.2d 26, 33-34 (Fla. 2d DCA 2004) ). As the Second District held in West Florida Villages , "[t]he notion that a deductible could be applied to loss that is not covered by the policy is fundamentally unreasonable." 874 So.2d at 33.

To apply the deductible to the billed charge irrespective of whether the charge was reasonable-or even covered-would effectively render the deductible meaningless. The insurer offers the PIP coverage at different premiums depending on the amount of the deductible selected by the insured. If the policy coverage were not relevant to the deductible, then the insurer would have no reason to offer reduced premiums in exchange for a higher deductible. Such a system cannot be what the legislature intended when it enacted a law that requires a provider charge the "insurer and injured party only a reasonable amount." § 627.736(5)(a), Fla. Stat. (2013). The legislature established what is reasonable through the adoption of predetermined fee schedule limitations.

To take the fee schedule out of the abstract, we apply it to the hypothetical scenario shown below:

In this example, applying the deductible to the billed charge, before reducing the charge to the amount on the fee schedule, allows a provider to charge the insurer and injured party an amount more than a "reasonable fee." This, as we know, would be contrary to the plain language of the statute. The insurer's proposed method, however, results in the provider being paid the amount the legislature has determined to be reasonable.

Shown below is the same example, but without a deductible:

In this example, the provider receives the same payment regardless of which method is used. This is consistent with the plain language of the statute, which establishes a maximum payment to be paid by the insurer and insured. The legislature did not indicate that maximum payment could be exceeded if the insured elected a policy deductible, and we cannot write such an exception into the statute.

The fact that in some circumstances, such as in this case, the insurer is not required to pay the provider because the deductible is unmet does not change the analysis. The chart below represents the dollar figures at issue in the present case:

Collectively, the providers billed $1,812. After applying the fee schedule, the insurer reduced the amount to $825.96. Incidentally, the insured's deductible was $1,000 so the insurer was not required to pay the provider. Nevertheless, the providers were still entitled to collect the $825.96 in the form of the deductible from the insured. This, as the legislature has found, is reasonable for the specific charges at issue. Because the legislature has established reasonableness as the maximum charge, the provider is simply receiving what the legislature has permitted. Nothing more, nothing less.

For these reasons, the county court erred when it entered summary judgment in favor of the provider. As noted, the parties agree that the insurer elected to use the second methodology, which allows for application of the statutory fee schedule. The insurer was thus entitled to reduce the billed charges to those considered reasonable by the legislature and under the insurance policy. Here, the insurer reduced the billed charges in a manner consistent with section 627.736(5)(a)(1). That amount represents the maximum the provider can charge the insurer and injured party, and is the limit the insurer and injured party must pay. It is also the amount to which the policy deductible logically applies.

Conclusion

The PIP statute allows insurers to offer policies with varying deductibles. § 627.739(2), Fla. Stat. The statute instructs that the deductible is to be applied to 100% of the expenses and losses described in section 627.736, Florida Statutes. The expenses and losses described in section 627.736 require that all expenses be reasonable, and the statute provides that the amount charged to both the "insurer and injured party" must be reasonable. The statute also determines what is reasonable-a predetermined fee schedule. To apply the deductible to the total amount billed, even if the amount exceeds the statutory fee schedule, would render portions of the legislation meaningless.

Instead, we must apply the statute in the manner that the legislature intended. A provider may not bill the insurer and injured party more than is reasonable. The insurer may reduce the amount of the provider's bill to a reasonable amount, as provided on the fee schedule. Then, after determining the reasonable amount, the insurer may apply the deductible.

We answer the rephrased certified question in the negative, reverse the judgment in favor of the provider, and remand for further proceedings not inconsistent with this opinion.

Reversed and remanded; conflict certified.

Forst, J., concurs.

Gross, J., dissents with opinion.

Gross, J., dissenting.

I dissent for the reasons set forth in my dissent to the Court's opinion in USAA Gen. Indem. Co. v. Gogan a/a/o Tara Ricks , No. 4D16-3313, 238 So.3d 937, 2018 WL 1315053 (Fla. 4th DCA Mar. 14, 2018).

      We address the same issue in two other cases decided today. See also USAA Gen. Indem. Co. v. Gogan, M.D. a/a/o Tara Ricks , No. 4D16-3313, 238 So.3d 852, 2018 WL 1315053 (Fla. 4th DCA Mar. 14, 2018); Progressive Select Ins. Co. v. Blum, M.D., P.A. a/a/o Vaness a Moreno , No. 4D16-4311, 238 So.3d 937, 2018 WL 1314603 (Fla. 4th DCA Mar. 14, 2018).

      The provider also submitted additional invoices for other treatment. State Farm applied the fee schedule to those invoices and, because the deductible had been satisfied, paid the invoices.

      The relevant provisions cited by our supreme court in Virtual Imaging have since been renumbered to section 627.736(5)(a) 1. See Ch. 2012-197, § 10, Laws of Fla.

      Prior to our issuance of this opinion, the Fifth District issued this February 9, 2018 opinion on a motion for rehearing and for certification to the Florida Supreme Court. The opinion on rehearing certifies the following question to the Florida Supreme Court:
      WHEN CALCULATING THE AMOUNT OF PIP BENEFITS DUE AN INSURED, DOES SECTION 627.739(2), FLORIDA STATUTES, REQUIRE THAT THE DEDUCTIBLE BE SUBTRACTED FROM THE TOTAL AMOUNT OF MEDICAL CHARGES BEFORE APPLYING THE REIMBURSEMENT LIMITATION UNDER SECTION 627.736(5)(a) 1.b., OR MUST THE REIMBURSEMENT LIMITATION BE APPLIED FIRST AND THE DEDUCTIBLE SUBTRACTED FROM THE REMAINING AMOUNT?
      Parent , 236 So.3d at 1192. On the same day it issued the opinion on rehearing in Parent , the Fifth District also released an opinion on rehearing in a second case and certified the same question of great public importance. See Progressive Select Ins. Co. v. Fla. Hosp. Med. Ctr. a/a/o Louis Pena , 236 So.3d 1182, 2018 WL 792009 (Fla. 5th DCA Feb. 9, 2018).

      In further support, section 627.736(9), Florida Statutes (2013) presents another example of the legislature recognizing the limits on the amount the insurer and insured may pay a provider. This subsection allows an insurer to waive the deductible and pay more than otherwise allowed by the statute if the insured elects to use the insurer's preferred provider. To apply the deductible in the manner sought by the providers would allow for payment beyond the maximum amounts, but not in the specific situation authorized by the legislature in this subsection.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Sean KOWLESSAR, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1675
    District Court of Appeal of Florida, Fourth District.
    [March 28, 2018]
    Joshua LeRoy of LeRoy Law, PA, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

The State concedes, and we agree, that the record does not conclusively refute Kowlessar's post-conviction claim. We therefore reverse and remand with instructions for the trial court to either attach additional records conclusively refuting Kowlessar's claim, or conduct an evidentiary hearing, if necessary.

Reversed and remanded.

Gross, Damoorgian and Conner, JJ., concur.

      We also note that the record attached to the order did not include Page 2 of the plea form which contained Kowlessar's conditions.


text:
    Neal M. JACOBSON, Appellant, v. Pierre ANDRE, M.D., P.A., Appellee.
    No. 4D17-1907
    District Court of Appeal of Florida, Fourth District.
    [March 21, 2018]
    Neal M. Jacobson, Indiantown, pro se.
    Richard Warren and RoseMarie Antonacci-Pollack of Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A., Boca Raton, for appellee.
   Per Curiam.

Affirmed. See Jacobson v. Pfizer, Inc. , 618 Fed. Appx. 509 (11th Cir. 2015).

Gross, Taylor and Kuntz, JJ., concur.


author: DAMOORGIAN, J.

text:
    Jose Anthony HERNANDEZ and Safeco Insurance Company of Illinois a/k/a Safeco Insurance Company of Illinois, Inc., Appellants, v. Rebecca L. HEIKKA, Appellee.
    No. 4D17-0905
    District Court of Appeal of Florida, Fourth District.
    [April 4, 2018]
    J. Pablo Cáceres and Hudson Jones of Butler Weihmuller Katz Craig LLP, Tampa, for appellant Safeco Insurance Company of Illinois a/k/a Safeco Insurance Company of Illinois, Inc.
    Kenneth D. Cooper, Fort Lauderdale, for appellee.
   DAMOORGIAN, J.

Safeco Insurance Company of Illinois appeals from a final judgment awarding Rebecca Heikka $361,775 in attorney's fees and costs pursuant to section 627.428, Florida Statutes (2017) and as a sanction under section 57.105, Florida Statutes (2017). Although we agree with Appellant that the trial court erred in awarding fees under section 627.428, the error was harmless because the trial court properly awarded fees under section 57.105. We accordingly affirm without further comment.

Affirmed.

Gerber, C.J., and May, J., concur.


author: Gerber, C.J.

text:
    Timothy James BRADSHAW, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2493
    District Court of Appeal of Florida, Fourth District.
    [April 4, 2018]
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   Gerber, C.J.

The defendant appeals his thirty-month concurrent sentences for giving false information to a pawnbroker and dealing in stolen property, arguing that the circuit court improperly considered the defendant's later arrest for possession of cocaine for which the defendant was not convicted because the state nolle prossed that charge. We agree with the defendant's argument, and therefore vacate the sentences and remand for resentencing before a different judge. See Norvil v. State , 191 So.3d 406, 410 (Fla. 2016) ("[A] trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense.");

Smith v. State , 232 So.3d 430, 431 (Fla. 4th DCA 2017) ("In light of Norvil , we have since vacated a defendant's sentence and remanded for resentencing when a court considered subsequent crimes, even though the sentence was within the statutory limits."); Hillary v. State , 232 So.3d 3, 4-5 (Fla. 4th DCA 2017) (vacating sentences for primary offenses and remanding for resentencing before a different judge where court considered defendant's later arrest without conviction).

Sentences vacated; remanded for resentencing.

May and Damoorgian, JJ., concur.


text:
    Valerie FULTON, Appellant, v. Judith BRANCATO, Dean C. Fulton, Fulton Insurance Agency d/b/a Florida Insurance Agency, Center Management Corporation, and Laser Fun Zone Corporation, Appellees.
    No. 4D17-1453
    District Court of Appeal of Florida, Fourth District.
    [April 11, 2018]
    Kevin F. Richardson of Clyatt, Richardson & Ryan, P.A., West Palm Beach, for appellant.
    Michael J. Ferrin, Delray Beach, for appellee, Judith Brancato.
   Per Curiam.

Affirmed . See Applegate v. Barnett Bank of Tallahassee , 377 So.2d 1150 (Fla. 1979).

Warner, Gross and Levine, JJ., concur.


text:
    Kurt L. HUDSON, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, as trustee FOR J.P. MORTGAGE ACQUISITION TRUST 2006-WF1; Emilio Valls, Teresita Valls, United States of America, Acropolis Property Maintenance, Inc., McCormick Power, Inc., Hugins Construction Corp., AK Construction & Remodeling, Inc, Glo Tel, Inc., and Hillsboro Lebaron Condominium Apartments, Inc., Appellees.
    No. 4D17-1177
    District Court of Appeal of Florida, Fourth District.
    [April 11, 2018]
    Kurt L. Hudson, Chicago, IL, pro se.
    Michele L. Stocker of Greenberg Traurig, P.A., Fort Lauderdale, and M. Hope Keating and Karusha Y. Sharpe of Greenberg Traurig, P.A., Tallahassee, for Appellee U.S. Bank National Association.
   Per Curiam.

This is an appeal of a final judgment of mortgage foreclosure. While appellant was the original mortgagor, appellant lost the property in a foreclosure action by his condominium association for unpaid condominium assessments. He was joined in the appellee bank's foreclosure complaint because he was the maker of the note. The only relief the bank sought was foreclosure of the mortgage and a deficiency if the proceeds of sale were insufficient to cover the mortgage. Only the request for deficiency constituted a request for relief against appellant, as appellant's interest in the property had already been foreclosed. The appellant raised several affirmative defenses, but we conclude that they did not establish meritorious defenses to the foreclosure after he was no longer the owner of the property. Appellant did allege that Wells Fargo collected fraudulent monthly inspection fees and late charges, which he paid, but which violated the Federal Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C., section 1961, and related state laws. If his defense is meritorious, it is a claim which is personal to him which he can assert as a set-off against any claim for a deficiency judgment.

For these reasons we affirm the final judgment of foreclosure.

Warner, Ciklin and Klingensmith, JJ., concur.


author: PER CURIAM.

text:
    Jose AGOSTINO, and Estefania Agostino, Appellants, v. RAMIREZ SUPER MOTORS, INC., d/b/a/ Ramirez Super Motors, a Fla. Corporation, and Jose Ramirez, Individually, John Doe and all others in possession, custody and control, Appellees.
    No. 3D17-0565
    District Court of Appeal of Florida, Third District.
    Opinion filed November 15, 2017. Rehearing Denied February 23, 2018
    Alberto F. Sarasua, for appellants.
    T.P. Murphy's Law P.A., and Thomas P. Murphy, for appellees.
    Before SCALES, LUCK and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See G & S Dev. Corp. v. Seitlin, 47 So.3d 893, 895 (Fla. 3d DCA 2010) ("Without a record of the hearing, this Court cannot determine what issues were raised or argued by the parties during the hearing, and therefore, may reverse the decision 'only if an error of law appears on the face' of the order under review.") (quoting Whelan v. Whelan, 736 So.2d 732, 733 (Fla. 4th DCA 1999) ); Id. (citing Chaiken v. Suchman, 694 So.2d 115, 117 (Fla. 3d DCA 1997) ("Without a transcript, appellate courts cannot usually determine what issues were either raised or argued by the parties during a proceeding. As such, the lack of a transcript normally precludes appellate review.")); Id. (citing S. Fla. Apartment Ass'n v. Dansyear, 347 So.2d 710, 711 (Fla. 3d DCA 1977) (finding that it is the responsibility of the appellant to provide a sufficient record for review, and that the failure to do so leaves the appellate court with no alternative but to assume that the trial court ruled correctly)).


author: SUAREZ, J.

text:
    Steven BATEMAN, Appellant/Cross-Appellee, v. The STATE of Florida, Appellee/Cross-Appellant.
    Nos. 3D14-3072 & 3D14-3110
    District Court of Appeal of Florida, Third District.
    Opinion filed December 20, 2017
    Kuehne Davis Law, P.A. and Benedict P. Kuehne and Michael T. Davis, for appellant/cross-appellee.
    Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellee/cross-appellant.
    Before SUAREZ, EMAS, and LOGUE, JJ.
   SUAREZ, J.

Steven Bateman ("Bateman"), appeals from a final order denying in part and granting in part his motion for judgment of acquittal. The State of Florida cross-appeals from that part of the trial court's order granting Bateman's motion for judgment of acquittal on Count 1. We affirm in all respects.

Bateman was the subject of a grand jury indictment which arose out of a Miami-Dade County ethics investigation into his actions while Mayor of Homestead. Bateman was investigated for attempting to persuade Miami-Dade County to approve and expedite the permitting process for a new pumping station in Homestead without disclosing that he was being paid by a private company that wanted the permitting expedited. The five-count grand jury indictment charged Bateman with unlawful compensation or reward for official behavior by a public servant, unlawful compensation for exerting influence, exploitation of his official position, acquiring a financial interest in conflict with his official position, and illegal lobbying.

The story begins with Community Health of South Florida ("CHI"), a non-profit organization that wished to build a children's crisis center in Homestead. The new building was to be constructed on an empty lot owned by CHI. The new building was required to be connected to one of the City's sewer pump stations. But the pump station adjacent to the CHI-owned lot was over forty years old, had cracks in it, could not properly handle any new connections, and was subject to an EPA moratorium on any new connections. Miami-Dade's Department of Environmental Resources Management ("DERM") would thus not issue a permit until the City upgraded the pump, despite CHI's securing funding from the County for the crisis center project. Without the permit CHI could not construct the center on the property it owned. The pump station issue had been before the Homestead City Council long before Bateman was hired by CHI, and Homestead had approved money to upgrade the station in 2012. The problem was that the pump station permit approval process through DERM and the County was taking too long and CHI wanted the process expedited so construction could begin.

Testimony at trial was that Bateman, then Mayor of Homestead, contacted CHI, met with its principals and entered into a consulting agreement to act as a private consultant to advise and assist CHI with its expansion and multiple construction projects. After Bateman was hired by CHI, he frequently consulted with the City's public works director to discuss the status of the pump station in his capacity as Mayor of the City of Homestead, but did not disclose he was also acting as a consultant for CHI on that project. Bateman's problems escalated when he arranged and attended a meeting with the Miami-Dade County Mayor and Deputy County Mayor during which he discussed the status of the pumping station and his concern with DERM's delay in approving and issuing the needed permits. He asked the County to expedite the permitting process. Bateman had a follow-up conversation with the Deputy County Mayor on the subject. During those interactions and meetings, Bateman presented himself as appearing in his capacity as Mayor of Homestead and did not disclose his contractual relationship with CHI or that CHI had an interest in the permitting process being expedited. Furthermore, despite being legally required to do so, Bateman never registered as a lobbyist for CHI. Bateman then billed CHI for eight hours, representing the two meetings with the County Mayor and Deputy Mayor and for meeting with the Homestead city engineer to prepare for the county meeting. Two days later, he billed CHI for six hours representing a phone conference with the County Deputy Mayor and the Homestead city engineer.

Subsequent to the ethics committee's investigation into his actions, the Grand Jury rendered a five-count indictment charging Bateman with Count 1, unlawful compensation for official behavior in violation of section 838.016(1), Florida Statutes (2013) ; Count 2, unlawful compensation for exerting influence in violation of section 838.016(2), Florida Statutes (2013) ; Count 3, exploitation of official position in violation of section 125.69, Florida Statutes, (2013), and Miami-Dade County Code 2-11.1(g); Count 4, acquiring a financial interest in conflict with official actions, in violation of section 125.69, Florida Statutes (2013), and Miami-Dade County Code 2-11.1(o); Count 5, illegal lobbying in violation of section 125.69, Florida Statutes, (2013) and Miami-Dade County Code 2-11.1(s). The State dismissed Count 3 (exploitation of official position) and Bateman went to trial on the remaining counts. The jury found him guilty of Count 1 (unlawful compensation for official behavior), Count 2 (unlawful compensation for exerting influence), and Count 5 (illegal lobbying) and acquitted him of count 4 (acquiring a financial interest in conflict with official actions). On a post-verdict motion for new trial and judgment of acquittal on all counts, the trial court denied Bateman's motion for new trial, granted judgment of acquittal on Count 1 and denied acquittal on Counts 2 and 5. The State sought rehearing of the acquittal on Count 1, which was denied. The court sentenced Bateman to twenty-two (22) months on Count 2 and sixty (60) days on Count 5, to run concurrently. Bateman appeals from the final order denying in part and granting in part his motion for judgment of acquittal and the State cross-appeals from that part of the trial court's order granting Bateman's motion for judgment of acquittal on Count 1. We affirm in all respects.

COUNT 1. The State cross-appeals the trial court's grant of judgment of acquittal on Count 1, unlawful compensation or reward for official behavior in violation of section 838.016(1), Florida Statutes (2013). Our standard for reviewing a motion for judgment of acquittal is de novo. Reynolds v. State, 934 So.2d 1128, 1145 (Fla. 2006).

Subsection (1) of this statute makes it unlawful for a public official to corruptly represent that some present or future act is within his or her official authority to accomplish and then agree to perform that act in exchange for pecuniary gain. Bateman asserted in his motion for judgment of acquittal that the State had not presented sufficient evidence that he acted corruptly when he entered into the consulting contract with CHI, and that he represented to CHI that his actions on its behalf were within his official discretion or in performance of a public duty. The trial court in its detailed order granting acquittal of this count examined the evidence presented, thoroughly parsed the statute, and delineated exactly what the State was required to prove based on section 838.016(1) and the Florida Standard Jury Instruction (Criminal) 19.4.

In granting acquittal, the trial court determined that the State did not present evidence such that a rational trier of fact could find, beyond a reasonable doubt, that Bateman represented to CHI that obtaining the necessary permit was within his official discretion or public duty to perform, or that there was any evidence from which the jury could reasonably conclude that Bateman represented that he would "sell his vote or twist the City staff's arm to approve the water pump." In other words, there was no evidence from which a reasonable trier of fact could determine that Bateman represented to CHI that obtaining the permit was within his power as Mayor to accomplish. We have similarly examined the record and conclude that the State did not present evidence that Bateman's acts, in his capacity as Mayor, were the kind of official discretionary or duty bound acts that fell within the proscriptions of section 838.016(1), i.e., that Bateman represented to CHI that he had the official discretion to approve the pump permitting himself. The trial court's thorough analysis of the statute and our examination of the record evidence supports the trial court's conclusion, and we affirm the trial court's grant of judgment of acquittal on Count 1.

COUNT 2. In Count 2, the jury found Bateman guilty of unlawful compensation or reward for exerting influence on another official's behavior, in violation of section 838.016(2), Florida Statutes (2013). Subsection (2) makes it unlawful for one public servant to corruptly accept any pecuniary gain to influence another public servant to perform an act that is within the second public servant's discretion. Bateman argued in his motion for acquittal that the State had not presented evidence that he acted corruptly when he entered into the CHI consulting agreement and that the evidence at trial was not inconsistent with his theory that the CHI consulting agreement was a legitimate contract for Bateman's services to assist CHI in construction projects. In other words, he asserts that there was not competent substantial evidence from which a rational trier of fact could find that he entered into the agreement with CHI with the intent of being compensated by CHI for using his position as Mayor of Homestead to influence the Mayor of Miami-Dade County to expedite the permitting process of the pump station. We disagree.

Upon review of the record we find that the State presented evidence, admittedly circumstantial, from which a rational trier of fact could find beyond a reasonable doubt that Bateman's agreement to accept money from CHI was made with corrupt intent. We agree with the trial court that the timing of the Bateman/CHI consulting agreement, Bateman's qualifications, CHI's approval of his contract, evidence of payment irregularities, Bateman's overbilling, Bateman's failure to disclose his CHI consulting agreement to Miami-Dade officials, his failure to disclose or register as a lobbyist for CHI, and Bateman's billing of CHI for his meetings with Miami-Dade officials where he attempted to persuade the Miami-Dade Mayor to expedite the permitting process for the pump project, among others, showed a corrupt intent in soliciting and accepting the CHI contract. As such, the State presented competent substantial evidence to contradict Bateman's theory. See Pagan v. State, 830 So.2d 792, 803 (Fla. 2002) ("Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction." (citations omitted)). Therefore, we affirm the trial court's denial of Bateman's motion for acquittal of Count 2.

COUNT 5. The trial court properly denied judgment of acquittal on Count 5. That count charged Bateman with violating Miami-Dade ordinance section 2-11.1(s)(2), which provides that "all lobbyists shall register with the Clerk of the Board of County Commissioners within five (5) business days of being retained as a lobbyist or before engaging in any lobbying activities, whichever shall come first." Bateman asserts that he is entitled to acquittal on Count 5 because the documentary and testimonial evidence showed that his consulting agreement with CHI did not include lobbying and that he was not hired to lobby for CHI. Therefore, he argues, as he was not hired as a lobbyist he was not acting as a lobbyist for CHI when he met with the Mayor of Dade County. He cites to the exception in the ordinance excluding "employees of a principal whose normal scope of employment does not include lobbying activities." After a thorough examination of the record on appeal, we agree with the trial court that,

[E]ven if his consulting agreement with the company did not call for him to lobby, and even if Community Health did not hire Bateman as its "lobbyist," Bateman was a lobbyist because as Community Health's hired consultant he encouraged county officials to approve and expedite the water pump permit-a priority for Community Health so it could build its Homestead facility. The county ordinance definition of lobbyist is broad, and included what Bateman did here, even if the company did not label him that way.

Bateman further argues that the public servant exclusion of that ordinance applies because he appeared before Miami-Dade County personnel solely in his official capacity as Mayor of the City of Homestead. The public servant exception applies, however, when the public official appears only in his or her official capacity. There was competent substantial evidence that Batman did not meet with the Dade County officials to persuade them to expedite the permitting solely in his capacity as Mayor of Homestead. The evidence showed that, unknown to Miami-Dade County officials, he was also appearing at the meeting on behalf of CHI, which had a great interest in having the permitting process expedited. He cannot argue that he appeared only as the Mayor of Homestead and only in the City's interest where the evidence showed that he billed CHI and was paid by CHI for his time in attending the meeting and for the follow-up phone calls in which he tried to persuade the County to expedite the permitting process. As such, there was competent substantial evidence that Bateman did not appear on behalf of the City only in his capacity as Mayor. As the trial court rightly observed,

Bateman billed [CHI], (and was paid), for meeting with the county Mayor and Deputy Mayor about the company's Homestead construction project and "moving [the] permit process forward in reference to [the] sewer tie-in." Bateman also billed for a phone conference, a day later, with the deputy county mayor about moving the Homestead construction project forward. Before and after his meeting, Bateman sent electronic mail messages to Community Health's chief executive updating him about the status of the water pump. At the company's facilities conference, days after his meeting with the county mayor, Bateman gave a recap of his meeting, and said that Homestead was "off the hook," for the sewage problems and he would know the status of the Homestead construction project by the end of the week and would share the news with the group because he was eager to start the groundbreaking. From this evidence, a rational juror could find beyond a reasonable doubt that Bateman was not at county hall "only" as a public official.

There was competent substantial evidence to go to the jury to decide whether CHI retained and paid Bateman to encourage, i.e. lobby for, the County's approval of the permit for the pump station while acting in his official capacity as Mayor of Homestead. "The state is not required to 'rebut conclusively every possible variation' of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant's theory of events." State v. Law, 559 So.2d 187, 188-89 (Fla. 1989). To be sure,

The question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine. Where the circumstantial evidence contradicts the defendant's theory of innocence, and the inferences pointing to guilt are sufficiently strong, the case should go to the jury. The standard for review of a denial of a motion for judgment of acquittal is not whether in the opinion of the trial judge or of the appellate court the evidence fails to exclude every reasonable hypothesis other than guilt, but rather whether the jury must reasonably so conclude.

Perez v. State, 565 So.2d 743, 744 (Fla. 3d DCA 1990) (citations omitted). We conclude there was sufficient competent evidence on this record to contradict Bateman's theory of innocence and support the denial of his motion for judgment of acquittal.

Accordingly, we affirm Bateman's conviction on Counts 2 and 5. We further affirm the trial court's judgment of acquittal on Count 1.

Affirmed.

      Section 838.016(1), Florida Statutes (2013) provides,
      (1) It is unlawful for any person corruptly to give, offer, or promise to any public servant, or, if a public servant, corruptly to request, solicit, accept, or agree to accept, any pecuniary or other benefit not authorized by law, for the past, present, or future performance, nonperformance, or violation of any act or omission which the person believes to have been, or the public servant represents as having been, either within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty.

      In 2013, section 838.014(4) defined "corruptly" or "with corrupt intent" to mean "acting knowingly and dishonestly for a wrongful purpose."

      § 838.016. Unlawful compensation or reward for official behavior
      ...
      (2) It is unlawful for any person corruptly to give, offer, or promise to any public servant, or, if a public servant, corruptly to request, solicit, accept, or agree to accept, any pecuniary or other benefit not authorized by law for the past, present, or future exertion of any influence upon or with any other public servant regarding any act or omission which the person believes to have been, or which is represented to him or her as having been, either within the official discretion of the other public servant, in violation of a public duty, or in performance of a public duty.

      Miami-Dade County Ordinance § 2-11.1(s)(1)(b).

      "Any public officer, employee or appointee who only appears in his or her official capacity shall not be required to register as a lobbyist." Miami-Dade County Ordinance § 2-11.1(s)(3)(a). [emphasis supplied].


author: LINDSEY, J.

text:
    Judy PERCIVAL, Petitioner, v. Karen CAPPS, et al., Respondents.
    No. 3D17-1109
    District Court of Appeal of Florida, Third District.
    Opinion filed January 3, 2018 Rehearing Denied March 13, 2018
    Judy Percival, in proper person.
    Goodkind & Florio, P.A., Brian K. Goodkind and Kenneth R. Florio, for respondent ANF Miami Gardens, LLC.
    Before SUAREZ, LUCK and LINDSEY, JJ.
   LINDSEY, J.

Judy Percival ("Appellant") appeals an order of the appellate division of the circuit court dismissing her appeal from a final judgment of tenant eviction in the County Court in and for Miami-Dade, County. We treat the notice of appeal as a petition for writ of certiorari. See Fla. R. App. P. 9.040(c) ("If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy."). We have certiorari jurisdiction to review the final order of the circuit court acting in its review capacity. See Fla. R. App. P. 9.030(b)(2)(B).

A final judgment for tenant eviction was entered by the county court on December 20, 2016 and docketed on the clerk's docket on December 21, 2016. On January 31, 2016, Appellant filed a notice of appeal of the final judgment to the appellate division of the circuit court. On April 18, 2017, ANF Miami Gardens, LLC ("Appellee") filed a motion to dismiss the appeal on the grounds that it was filed beyond the thirty days prescribed by Florida Rule of Appellate Procedure 9.110(b) and was, therefore, untimely. On May 3, 2017, the appellate division of the circuit court entered an order granting the motion to dismiss. On May 15, 2017, Appellant filed a notice of appeal of that order.

Having reviewed the record, we find no departure from the essential requirements of law. See Boffelli v. Kent Sec. Servs., 175 So.3d 310 (Fla. 3d DCA 2015) ; Soro Co. Int'l v. Jones, 89 So.3d 258, 258 (Fla. 3d DCA 2012) (denying petition for certiorari review of an order of the appellate division of the circuit court affirming a final judgment for removal of a tenant).

Petition denied.


author: EMAS, J.

text:
    GEICO GENERAL INSURANCE COMPANY, Petitioner, v. Katherine MARTINEZ, Respondent.
    No. 3D17-1086
    District Court of Appeal of Florida, Third District.
    Opinion filed January 3, 2018 Rehearing Denied February 28, 2018
    Young, Bill, Boles, Palmer & Duke, Michel A. Morgan, B. Richard Young, Adam A. Duke and Cody S. Pflueger, for petitioner.
    Brodsky Fotiu-Wojtowicz and Alaina Fotiu-Wojtowicz ; Michael S. Olin, for respondent.
    Before SALTER, EMAS and LOGUE, JJ.
   EMAS, J.

INTRODUCTION

GEICO General Insurance Company, a defendant below, petitions this court for a writ of certiorari, following the trial court's orders, which: 1) permitted plaintiff Katherine Martinez to add GEICO as a party defendant to Martinez's negligence claim against GEICO's insured, arising out of an automobile accident; 2) permitted Martinez to amend her complaint to add a third-party bad-faith claim against GEICO; and 3) abated, rather than dismissed, Martinez's unaccrued and premature third-party bad-faith claim against GEICO.

We grant the petition and quash the orders under review because, under these circumstances and given our existing precedent, abatement (rather than dismissal) of a third-party bad-faith claim filed in contravention of the express requirements of the nonjoinder statute ( section 627.4136, Florida Statutes (2016) ), constitutes a departure from the essential requirements of the law, and results in irreparable harm that cannot be remedied on appeal.

FACTS AND PROCEDURAL BACKGROUND

The facts material to this petition do not appear to be in dispute:

On February 12, 2009, Katherine Martinez sustained injury when the car she was riding in was struck by a car being driven by Diana Guevara. Guevara was insured under a policy issued by GEICO. That policy provided bodily injury coverage in the amount of $10,000 per person and $20,000 per occurrence.

Martinez filed a one-count negligence complaint against Guevara in 2009. In October 2016, Martinez filed a motion to amend her complaint to add GEICO as a party defendant to the action and to add a third-party bad-faith claim against GEICO. The trial court granted the motion, and Martinez filed an amended complaint, adding GEICO as a party defendant and pleading a count for third-party bad-faith against GEICO.

GEICO moved to dismiss the third-party bad-faith count, and at the hearing on the motion to dismiss, Martinez conceded that the bad-faith claim against GEICO was unaccrued and premature because, pursuant to the nonjoinder statute, the bad-faith claim had not yet accrued and would not accrue unless and until Martinez first obtained a settlement or verdict against Guevara on the underlying negligence claim.

The trial court denied the motion to dismiss, and instead, abated the action to await resolution of Martinez's underlying negligence action against Guevara. This petition followed.

ANALYSIS

The nonjoinder statute, section 627.4136, Florida Statutes (2016), provides in pertinent part:

(1) It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.
(2) ... No person who is not an insured under the terms of a liability insurance policy shall have any interest in such policy, either as a third-party beneficiary or otherwise, prior to first obtaining a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.

Martinez concedes that her third-party bad-faith claim against GEICO has not yet accrued, and concedes that Martinez is not an insured under the terms of the liability insurance contract between Guevara, the insured and GEICO, the insurer. Nevertheless, Martinez argues that it was within the trial court's discretion to abate, rather than to dismiss, the premature bad-faith claim.

We are unpersuaded by Martinez's arguments and conclude that this case is controlled by our decision in Lantana Insurance, Ltd. v. Thornton, 118 So.3d 250 (Fla. 3d DCA 2013). We accordingly grant the petition and quash the order denying the motion to dismiss Martinez's unaccrued third-party bad-faith claim against GEICO.

In Lantana, plaintiffs sued homeowner Thornton for negligence. Thornton was an insured under two homeowner's policies, one issued by Alfa Insurance and the other by Lantana Insurance, Ltd. Lantana and Alfa each denied coverage to Thornton, and Alfa brought a separate action seeking a declaratory judgment on the question of coverage. When Lantana failed to bring its own declaratory action or join in Alfa's declaratory action, plaintiffs filed a third-party complaint against Lantana in Alfa's declaratory judgment action.

Lantana moved to dismiss plaintiffs' third-party complaint, contending that section 627.4136 barred such third-party claims absent the plaintiffs first securing a settlement or verdict against Thornton. The trial court denied the motion to dismiss and instead abated the third-party action.

Lantana filed a petition for writ of certiorari, and this court concluded that because plaintiffs "have not obtained a settlement with or verdict against Thornton ... [t]hey therefore have no beneficial interest in Thornton's policy with Lantana and no cause of action against Lantana has accrued." Id. at 251. We granted the petition and quashed the order denying the motion to dismiss and abating the action, holding that "the irreparable harm in such cases arises from the fact that an insurer is being forced to litigate an action brought by a third-party plaintiff which would be barred if, in fact, the requirements of section 627.4136 have not been met." Id. (quoting S. Owners Ins. Co. v. Mathieu, 67 So.3d 1156, 1158 (Fla. 2d DCA 2011) ).

In Starr Indemnity & Liability Co. v. Morris, 155 So.3d 429 (Fla. 3d DCA 2015), we cited approvingly to Lantana and reaffirmed that "[t]he law is well established that a trial court's incorrect application of Florida's nonjoinder statute establishes the irreparable harm necessary for certiorari relief." Id. at 431.

Martinez also asserts that the trial court's abatement, rather than dismissal, of an unaccrued and premature third-party bad-faith claim is supported by this court's decision in State Farm Florida Insurance Co. v. Seville Place Condominium Association, Inc., 74 So.3d 105 (Fla. 3d DCA 2011). However, Seville Place involved a first-party claim, rather than a third-party claim, and therefore did not implicate section 627.4136 (the nonjoinder statute), which:

- creates a condition precedent before a cause of action against GEICO has even accrued or can be maintained by Martinez; and
- requires Martinez, as a condition precedent to accrual or maintenance of her action against GEICO, to first obtain a settlement or verdict against Guevara, the insured, for a cause of action that is covered by the policy between Guevara and GEICO.

By its terms, the nonjoinder statute, and its mandatory condition precedent, is inapplicable to first-party bad-faith claims; it is instead limited to cases, such as this, which involve a third party (such as Martinez, who is not an insured under the policy) seeking to join an insurer in the underlying action before Martinez "first obtain[s] a settlement or verdict against a person [such as Guevara] who is an insured under the terms of the policy...." Therefore, Seville Place is inapposite and Martinez's reliance upon it is misplaced. Unlike first-party claims, premature and unaccrued third-party claims must be evaluated in light of the legislative mandate established by the plain language of the nonjoinder statute. That legislative mandate precludes Martinez from maintaining any cause of action against GEICO-indeed, precludes even the accrual of such a cause of action-until Martinez satisfies the compulsory condition precedent of obtaining a settlement or verdict against Guevara. This mandate would be rendered effectively meaningless by simply abating, rather than dismissing, Martinez's concededly unaccrued and premature third-party bad-faith claim against GEICO. In fact, under subsection (2) of 627.4136, Martinez is declared to have no interest in the GEICO insurance policy until the condition precedent has been met, and therefore does not have standing at this time to file or maintain the third-party bad-faith claim against GEICO.

CONCLUSION

We grant the petition because, under these circumstances, abatement (rather than dismissal) of a third-party bad-faith claim filed in contravention of the express requirements of the nonjoinder statute ( section 627.4136, Florida Statutes (2016) ) constitutes a departure from the essential requirements of law, and results in irreparable harm that cannot be remedied on appeal. We quash the trial court's order denying GEICO's motion to dismiss the premature third-party bad-faith claim and remand with instructions to enter an order dismissing that claim without prejudice.

      Because we grant the petition on this basis, we do not reach GEICO's additional argument: that the trial court's order abating (rather than dismissing) the premature third-party bad-faith action constitutes irreparable harm because it precluded GEICO from exercising its statutory right of removal of the bad-faith action to federal court under the diversity jurisdiction provisions of 28 U.S.C. § 1446(b). This court has not addressed the merits of this issue, and there exists some disagreement among the districts that have. See GEICO Gen. Ins. Co. v. Harvey, 109 So.3d 236 (Fla. 4th DCA 2013) (holding that insurer's loss of the statutory right of removal to federal court constituted material injury for which certiorari review is appropriate); Safeco Ins. Co. of Ill. v. Rader, 132 So.3d 941 (Fla. 1st DCA 2014) (denying certiorari petition and noting that any harm flowing from loss of statutory right of removal is not irreparable, as it can be remedied on appeal from the final judgment).

      In Starr, the plaintiff filed a negligence action against a fishing boat owner and its captain, and also filed a breach of contract action against the insurer for the boat owner. The insurer filed a motion to dismiss relying upon the nonjoinder statute, but the trial court denied dismissal and instead severed the claim against the insurer. We held that the trial court's decision to sever, rather than dismiss, was not a departure from the essential requirements of law, because plaintiff's breach of contract claim against the boat owner's insurance company alleged that plaintiff was an "omnibus insured" under the insurance policy, and thus fell out of the proscription of the nonjoinder statute: if plaintiff's alleged status as an "omnibus insured" were proven, he would no longer be "a person not an insured under the terms of the liability insurance contract." § 627.4136, Fla. Stat. (2016) (emphasis added).

      In like fashion, Martinez's reliance on Citizens Property Insurance Corp. v. San Perdido Association, Inc., 104 So.3d 344 (Fla. 2012) is inapplicable. San Perdido was a first-party rather than a third-party action, and did not involve application of the nonjoinder statute.


author: BLACK, Judge.

text:
    Andrew HYRE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3133
    District Court of Appeal of Florida, Second District.
    Opinion filed January 19, 2018 Rehearing Denied March 15, 2018
    Howard L. Dimmig, II, Public Defender, and Joseph N. D'Achille, Jr., Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Andrew Hyre challenges his conviction and sentence for unlawful sexual activity. He was sentenced to the statutory maximum of fifteen years in prison. Hyre asserts that the trial court erred in ruling that the child hearsay statements of the alleged victim were admissible at trial. Because the trial court failed to conduct the required factual analysis and the resultant error in admitting the hearsay statements was not harmless, we reverse Hyre's judgment and sentence and remand for further proceedings.

Hyre was charged with one count of unlawful sexual activity. See § 794.05(1), Fla. Stat. (2014). The information alleged that Hyre engaged in sexual activity with A.M., the alleged victim, "a person of 16 or 17 years of age, by the sexual organ of [Hyre] penetrating the vagina" of A.M. The State filed its notice of intent to introduce child hearsay statements, identifying the hearsay statements as A.M.'s statements to her mother and her recorded interview with a detective. See § 90.803(23), Fla. Stat. (2015).

An evidentiary hearing was held, following which the court entered an order finding that the hearsay statements would be admissible at trial. Hyre argues that the trial court order fails to address crucial evidence and that the findings are conclusory, merely parroting the State's child hearsay notice; he also contends that the trial court abused its discretion in determining that the sources of information were trustworthy and that the content of the hearsay statements demonstrated indicia of reliability.

I. The hearsay statements

A. A.M.'s statements to her mother

A.M.'s mother testified at the hearing. She explained that on the date of the alleged crime she, her two children, and her ex-husband were visiting extended family while on vacation in Florida. At least nine people were in the house that day. A.M.'s mother testified that A.M. went upstairs to lie down with her grandmother. A few hours later A.M. came downstairs and told her mother that she wanted to leave. The mother testified that she believed her daughter was bored and told her that they would not be leaving yet. Approximately thirty to forty-five minutes later, A.M. again told her mother that she wanted to leave and the mother again told her that they would not be leaving yet. The third time A.M. came to her mother, A.M. said she needed to talk with her mother. The two went outside, and according to the mother, A.M. told her that "[Hyre], he touched me-touched me on my vagina and my breasts." When the mother asked A.M. what she meant, A.M. responded, "I don't think I'm a virgin anymore." At that point, the mother asked A.M.'s father to come outside and A.M. "talked to her dad." A.M. was then taken to the hospital. The mother testified that prior to this she had a good relationship with Hyre, as did Hyre and A.M.'s father.

On cross-examination, the mother testified that she did not remember what she told police officers that A.M. had said. She could not recall whether she used the word "penetration" in telling the police what had occurred, and her statement was otherwise different than the statement provided in the State's notice of intent to offer child hearsay evidence. A.M.'s mother also testified regarding her relationship with her ex-husband and family, reiterating that there was "no bad blood" despite the divorce.

Jane Smith, who had been at the home the night the alleged unlawful sexual activity occurred, testified as a defense witness. Ms. Smith stated that she asked A.M.'s father not to bring his ex-wife, A.M.'s mother, to the house. She testified that A.M.'s mother asked where the nearest hospital was almost immediately upon arrival at the house. A.M.'s mother told Ms. Smith that she always wants to know where the nearest hospital is when she is in a new place. Ms. Smith also testified that A.M.'s mother was "ranting and talking" about how her divorce was A.M.'s father's fault and that the mother was angry and upset. She said that A.M. was present during the time A.M.'s mother was talking about her relationship with A.M.'s father. Ms. Smith further testified that A.M's mother was angry with Hyre and verbally "attacked him during that session."

On cross-examination, Ms. Smith was asked additional questions about why A.M.'s mother asked about the nearest hospital. She also was asked about A.M. "whispering" to her mother and the two leaving the house. Ms. Smith testified that A.M. and her mother "stayed out there for maybe an hour or hour and a half." She then testified that A.M.'s mother told her that Hyre had touched A.M.'s vagina. There was no indication that anyone confronted Hyre.

B. A.M.'s recorded statement

The officer who interviewed A.M. and took her statement also testified at the hearing. He stated that at the time in question he had been a detective with the special victims unit. At the time of his testimony, he was a sergeant. The sergeant testified that prior to the interview with A.M. he had not conducted a forensic interview. The sergeant spoke with A.M. after she had been examined by medical staff, and he recorded their conversation. He testified that he established that A.M. knew the difference between a lie and the truth and that he tried to avoid leading questions. He then authenticated the audio recording of the interview; it was introduced into evidence and played in court.

In the interview, A.M. stated that she had gone upstairs to lie down in a bedroom with her grandmother and that her grandmother and her sibling were in the bedroom. Hyre came into the room a few times while the others were there; everyone in the room was awake. A.M. stated that at some point she fell asleep. She remembered waking and feeling someone rubbing her back; she assumed it was her grandmother. She also heard people talking downstairs.

A.M. stated that the second time she awoke someone was touching her breasts. She saw that Hyre was lying down beside her and that "it looked like he was asleep." When the sergeant asked A.M. whether Hyre had his eyes closed, she responded: "Oh, he had his-his back was turned. His back was to me and his arm was around me." The sergeant then asked, "So he was-was he laying like on his stomach?" A.M. responded, "On his side." The sergeant confirmed that Hyre's arm was around A.M. and then said: "Okay. Now, are you-I'm trying to picture this." A.M. immediately responded, "Maybe he was on his stomach."

A.M. then stated that she went back to sleep. Thereafter, she was awoken by her grandmother, who had been in the en suite bathroom taking a shower. A.M. stated, "I remember she pulled up the sheets and she, I think-I forget what she said, but he left the room." The sergeant then asked whether "he" referred to Hyre, and A.M. confirmed that it did. She then said, "And I think my [sibling] left before that." A.M. confirmed that Hyre was not in the room when her grandmother pulled up the sheets. She stated that her grandmother lay down next to her; when she next awoke her grandmother was not there. A.M. texted a male friend and then went back to sleep. At this point in the interview, A.M. stated that "he was there, [Hyre]," and the sergeant asked, "The second time you fell back to sleep after texting[,] he was in the room-at that point?" A.M. confirmed that Hyre was in the room. The sergeant then asked if anyone was in the room with her when she was texting her friend, B.A.M. stated that she had been by herself. The sergeant again asked whether Hyre was there when A.M. woke up again. A.M. responded: "Wait. Yeah, [Hyre]-yeah, he was there. And I was playing a game on my phone. ... I was playing when he comes in the room."

A.M. said that Hyre was rubbing "like kind of like here," and the sergeant clarified, "I see you're pointing at your like stomach area?" A.M. then described how Hyre began fondling her. She stated that Hyre unbuttoned her top shirt then "kind of like pulled [her shirt] to the side." The sergeant then asked, "Did he push your bra aside, too?" A.M. responded, "Yeah." When asked if Hyre said anything to her, A.M. responded: "Yeah. He said things. ... Like, I remember what he said but it was like something you would say to a child. Well, I am a child, but-I can't remember it."

A.M. then described that Hyre "went lower" into her pants. The sergeant clarified: "And when you mean lower, is it towards your private area in the front? Do you know what the word is for that?" A.M. responded: "Front? Uh, I don't like that word. Vagina." A.M. then described Hyre's penetration of her vagina with his finger. She was again asked if Hyre said anything to her and whether she responded. She said she did not respond to his question of whether "it felt good." When asked to continue, A.M. stated that Hyre "pulled out his like private." The sergeant asked A.M. if she knew what Hyre's private is called, and she responded, "Penis." When asked what Hyre's penis felt like, A.M. responded that it felt "mushy."

A.M. went on to describe sexual intercourse; she stated that while she was on her back Hyre put his "private" into her "private" and started moving. A.M. described changing positions and then stated, "And then I-then it like hit me, like I remembered in school about these things." The sergeant asked, "You had health class before or something?" A.M. affirmatively responded, and the sergeant clarified the positions A.M. had described. He then asked A.M. what happened next. A.M. responded, "I remember I said that I told him he couldn't, you know, inside ejaculate." She stated that Hyre got a tissue, "ejaculated on that[,] and flushed it away."

The sergeant asked what then happened, and A.M. stated that Hyre went downstairs but that she stayed upstairs. A.M. said she did not know how long it was before she left the room. She called her friend B "like eight or ten times. Because it was a bad connection-so it kept hanging up." She eventually left the room because B told her that she had to tell her mom. A.M. told the sergeant that she called B because she "felt secure by him." She stated that she eventually left the room and went downstairs when B told her that she had to tell her mother. A.M. asked her mother if they could leave; she stated that she asked her mother in way that "it didn't sound like a big deal." Her mother "brushed [her] off." A.M. stated that she kept going downstairs and then eventually told her mother that she had something to tell her. She told her mother what had happened, then talked to her father, and finally she told another family member what had occurred.

At that point in the interview, A.M. requested a break. When the interview resumed, the sergeant asked a few follow-up questions. He specifically confirmed that B told A.M. to tell her mother what had occurred. He asked whether Hyre "was around" when A.M. spoke with her mother. A.M. responded that he was; upon prompting, A.M. also stated that Hyre kept his distance after seeing A.M. speak with her mother and father. The sergeant also asked if what occurred had been recorded on a cell phone or if pictures had been taken. A.M. responded that no pictures had been taken, that she was "the only one who had the cell phone," and that she "kind off-hid [hers] afterwards." The sergeant asked if everything A.M. had told him was "true and accurate, to the best of your knowledge," and A.M. responded, "To the best of my knowledge."

During the course of the interview, A.M. was asked questions unrelated or peripheral to the alleged offense which are relevant to the admissibility of the hearsay statement. A.M. was asked to provide her home address and phone number. She was unable to provide her zip code to the sergeant and could provide only her father's phone number. She was also unable to provide the names of the extended family she was visiting. At multiple points in the interview, A.M.'s responses to questions were nonverbal; for instance, she did not audibly respond to the question "Do you promise to only talk about true things with me?" A.M. defined the truth by giving an example of breaking a vase and "covering it up." When asked if she was sleeping on a comforter or bed sheets when she was in the bedroom, A.M. responded, "It was like comforters, because I remember the pattern." When then asked to describe the pattern, she said, "I don't remember what they look like, but I know the sheets were a dark color." A.M. also stated that she "remember[ed] what [Hyre] said but it was like something you would say to a child." The sergeant asked what Hyre had said, and A.M. responded, "I can't remember it." When asked what Hyre was wearing, A.M. stated: "I think the shirt was red. Either it was red or white."

After the interview was played, Hyre's counsel cross-examined the sergeant. He confirmed that the interview occurred in the early morning hours after A.M. had been at the hospital with her mother. The court then inquired about A.M.'s maturity level. The sergeant confirmed that A.M.'s maturity level was "age-appropriate" but that she was "very like reclusive and very shy."

C. The order

The trial court took the issue under advisement and, approximately one month after the hearing, rendered its order. The order provides that A.M.'s mother and the sergeant testified at the hearing and contains incomplete recitations of the two hearsay statements along with limited findings of fact. There is no mention of Jane Smith or her testimony. The court reached eight conclusions, which are, in large part, verbatim recitations from the State's notice of intent. The court found, in part, that A.M. "displayed the mental, physical, and emotional capacity of a typical 16 year old," that A.M. "used terminology and descriptions that were usual or expected for a child of her age," and that "[t]here was no testimony related to motives the child may have to fabricate allegations" and "no testimony of any inappropriate influence on the child by persons involved in a domestic dispute." The court concluded that based upon the totality of the circumstances, "the time, content, and circumstances of the statements" by A.M. to her mother and the sergeant "provide sufficient indicia of both trustworthiness and reliability."

II. Analysis

A. Lack of factual analysis

Out-of-court statements made by a child sixteen years old or younger and describing an unlawful sexual act committed against the child are admissible where the child testifies at trial "[u]nless the source[s] of information or the method or circumstances by which the statement[s] [are] reported indicate[ ] a lack of trustworthiness" and where the court finds "that the time, content, and circumstances of the statement[s] provide sufficient safeguards of reliability." § 90.803(23) ; see also State v. Townsend, 635 So.2d 949, 954 (Fla. 1994). "[T]he focus is on the person to whom the statement was made and the manner in which the statement was made." N.W. v. M.W., 41 So.3d 383, 384 (Fla. 2d DCA 2010).

In evaluating the reliability of the statements, "the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion[s], the reliability of the child victim, and any other factor deemed appropriate." T.B. v. R.B., 186 So.3d 544, 551 (Fla. 2d DCA 2015) (quoting § 90.803(23)(a)(1) ).

Other factors may include, but are not limited to, a consideration of the statement's spontaneity; whether the statement was made at the first available opportunity following the alleged incident; whether the statement was elicited in response to questions from adults; the mental state of the child when the abuse was reported; whether the statement consisted of a child-like description of the act; whether the child used terminology unexpected of a child of similar age; the motive or lack thereof to fabricate the statement; the ability of the child to distinguish between reality and fantasy; the vagueness of the accusations; the possibility of any improper influence on the child by participants involved in a domestic dispute; and contradictions in the accusation.

Townsend, 635 So.2d at 957-58. "[A] court is to use a totality of the circumstances evaluation in determining reliability." Platt v. State, 201 So.3d 775, 778 (Fla. 4th DCA 2016) (alteration in original) (quoting Townsend, 635 So.2d at 958 ). "[A]dmission of a child victim's hearsay statements under this exception [should] not be allowed absent clear indications of reliability." Townsend, 635 So.2d at 954.

In ruling on the admissibility of the hearsay statements, the court must place specific findings of fact on the record as to each statement. § 90.803(23)(c) ; see N.W., 41 So.3d at 384 (holding that the failure to address the "individual statements and the circumstances under which they were made" was error). "[L]ist[ing] each statement to be considered and summarily conclud[ing], without explanation or factual analysis, that the circumstances surrounding most of the statements showed them to be trustworthy" is insufficient and constitutes reversible error. Townsend, 635 So.2d at 952, 957 ; see also Hopkins v. State, 632 So.2d 1372, 1377 (Fla. 1994) (concluding that mere recitation of the statute "ignores the clear directive of the statute"). "[L]imited, summary findings [are] insufficient to satisfy the case-specific requirements of the statute because they fail[ ] to address why the time, content, and circumstance of each individual statement provide[s] sufficient safeguards of reliability." Garcia v. State, 659 So.2d 388, 392 (Fla. 2d DCA 1995).

The court's failure to conduct a factual analysis as to the reliability of each statement is "particularly troublesome" where, as here, it does not appear that the court considered internal inconsistencies within the alleged victim's recorded statement including: A.M.'s unexplained use of a clinical term where the majority of her statement described the acts in imprecise or vague terms, her inability to provide basic information to the sergeant, her ability to recall only certain, very specific details, and her deviation from prior answers upon further-often leading-questioning by the sergeant; conflicts between the two hearsay statements which reflect on various criteria; and the testimony of a witness which called into doubt the reliability of a statement's source. See Garcia, 659 So.2d at 392 ; cf. Small v. State, 179 So.3d 421, 424 (Fla. 1st DCA 2015) (affirming conviction where trial court "consider[ed] the language and gestures of the child and relat[ed] them to factors suggested by statute and case law" and the order contained thorough explanation as to child's mental and physical age, including that the child "had a very detailed memory, not only about the events [at issue] but other things as well"); Ingrassia v. State, 747 So.2d 445, 447 (Fla. 4th DCA 1999) (affirming conviction where "the trial court did not abuse its discretion in admitting the child victim's hearsay statement because '[t]he record reflects that the court cumulatively weighed numerous potential facts, such as time, circumstances, credibility, demeanor, spontaneity, internal consistency of the individual statements, and maturity of the child' " (quoting Reynolds v. State, 660 So.2d 778, 780 (Fla. 4th DCA 1995) )). Perhaps more troubling is the court's apparent failure to address that the person to whom the incident was allegedly first reported was A.M.'s friend, B, and that it was only upon his advice that A.M. talked to her mother. There is no timeframe given between when the alleged sexual activity occurred and when A.M., after repeatedly speaking with B, reported it to her mother. See Platt, 201 So.3d at 778 ("Had the court reviewed the totality of the circumstances, it might have found that the statement was not reliable or that there were discrepancies.").

B. Harmless error

The court's failure to address why the time, content, and circumstances of each statement provides sufficient safeguards of reliability is not harmless error in this case. Although A.M. testified at the trial, "this does not automatically render the error harmless." Platt, 201 So.3d at 778. A.M.'s testimony was significantly abbreviated and, in some respects, inconsistent with her recorded interview. The hearsay statements were not merely cumulative of other evidence. Cf. Heuss v. State, 660 So.2d 1052, 1057 (Fla. 4th DCA 1995). No Williams rule evidence was presented, cf. Diaz v. State, 618 So.2d 346, 349 (Fla. 2d DCA 1993), and Hyre testified in his defense. Although physical evidence was presented, it was not unassailable: vaginal swabs resulted in no foreign DNA evidence; the DNA evidence obtained from the victim's underwear was a partial mixture which included an unidentified third contributor; and testimony established that the lab analyst "assumed" that A.M.'s DNA was present in the mixture. The analyst also testified that she "expect[s] relatives to share some" DNA in common. Only family members were present on the night of the alleged incident.

On these facts, we cannot conclude the court's error in admitting the hearsay statements in the absence of the required reliability findings was harmless beyond a reasonable doubt. See Garcia, 659 So.2d at 393 ; Platt, 201 So.3d at 778 ; cf. Seifert v. State, 616 So.2d 1044, 1046 (Fla. 2d DCA 1993) (finding error in admitting hearsay statements harmless where "[t]he medical testimony was unequivocal" and Williams rule evidence was properly introduced), approved in part, disapproved in part, 636 So.2d 716 (Fla. 1994) ; Lawson v. State, 884 So.2d 540, 547 (Fla. 4th DCA 2004) (concluding that improper admission of pretrial identification was harmless "given the very strong DNA evidence connecting" the defendant to the crimes).

III. Conclusion

The trial court's order is insufficient. The court did not conduct the necessary factual analysis considering the totality of the circumstances, nor did it consider all of the testimony presented at the hearing. The trial court improperly admitted the sixteen-year-old victim's hearsay statements under section 90.803(23), and the error was not harmless. Consequently, we reverse Hyre's judgment and sentence and remand for further proceedings.

Reversed and remanded.

NORTHCUTT and SALARIO, JJ., Concur.

      Hyre's scoresheet reflects that his lowest permissible sentence was sixty-six months in prison.

      We have found no cases applying section 90.803(23) where the charge is unlawful sexual activity pursuant to section 794.05. This may be because section 90.803(23) was amended as of January 2014 to increase the age of the child from eleven to sixteen, and section 794.05 applies only to sixteen- or seventeen-year-old victims. See ch. 2013-98, § 1, Laws of Fla.

      "Jane Smith" is a fictitious name. In an effort to further protect A.M., we have chosen to identify this witness through a pseudonym.

      A.M. identified the male friend by his first name only. The record before us provides no further information about this friend; we do not know his age or last name. We will therefore refer to A.M.'s friend as B.

      At various points throughout the interview, A.M. vacillated between precisely detailed and vague answers. When asked whether she had dinner at the house at which the alleged offense took place, she responded: "I had a little like-I didn't eat the rice. I only had a little bit of chicken." The sergeant then asked, "What happened after dinner?" and A.M. responded, "Got pistachio ice cream."

      We note that the recorded interview was audio only; as a result, the court could not view A.M.'s demeanor during the interview or make independent findings based on her physical responses. Cf. Cabrera v. State, 206 So.3d 768, 773 (Fla. 1st DCA 2016).

      Williams v. State, 110 So.2d 654 (Fla. 1959) (codified in section 90.404(2), Florida Statutes ).

      Hyre was not the only male present in the home on the night the incident was alleged to have occurred; but he was the only one from whom a DNA sample was taken.


text:
    James Allen BRYANT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2237
    District Court of Appeal of Florida, Third District.
    Opinion filed January 31, 2018 Rehearing Denied February 22, 2018
    James Allen Bryant, in proper person.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before LOGUE, SCALES and LINDSEY, JJ.
   PER CURIAM.

James Allen Bryant appeals an order on his Florida Rule of Criminal Procedure 3.800(a) postconviction motion seeking both: (i) a correction of jail credit, and (ii) prison credit for the time Bryant served in prison between his initial conviction and the date of Bryant's second conviction after retrial. While the trial court found that Bryant was entitled both to a correction of jail credit and to prison credit, the court declined to determine the exact number of days he should receive.

First, we reverse that portion of the trial court's order finding that Bryant is entitled to a correction of jail credit. A claim for jail credit must be raised under Florida Rule of Criminal Procedure 3.801. See Curtis v. State, 197 So.3d 135, 136 (Fla. 2d DCA 2016) (" Rule 3.801 provides for the correction of a sentence that fails to award a defendant credit for time the defendant spent in jail prior to sentencing; it does not provide for the correction of prison credit. Instead, a claim for credit for prison time is properly raised in a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a)."). Though the trial court properly treated Bryant's jail credit claim as being raised under rule 3.801, the jail credit claim is nevertheless untimely. See Fla. R. Crim. P. 3.801 ("No motion shall be filed or considered pursuant to this rule if filed more than 1 year after the sentence becomes final."); Narayan v. State, 149 So.3d 739, 739 (Fla. 5th DCA 2014) ("[R]ule 3.801 is the exclusive postconviction remedy available for seeking jail credit, and defendants whose sentences became final prior to July 1, 2013, have a grace period of one year to file any jail credit claims.").

Second, we affirm that portion of the trial court's order determining that Bryant is entitled to prison credit. The October 22, 1993 sentencing order reflects that the box for prison credit was unchecked. On this appeal, the State properly and commendably concedes that Bryant is entitled to prison credit for the time Bryan served in prison between his initial conviction and the date of Bryant's second conviction after retrial. Our judicial labor on this issue, however, is not done.

"Once the sentencing judge has awarded a defendant prior prison credit, the Department of Corrections has primary responsibility for calculating the credit." Hardenbrook v. State, 953 So.2d 717, 719 (Fla. 1st DCA 2007). It is, therefore, "permissible for the trial court to delegate to DOC the administrative task of calculating the amount of prison credit which is due" after the court fulfills its responsibility of ordering that prison credit be provided. Thistle v. State, 769 So.2d 1149, 1149 (Fla. 5th DCA 2000). Although the trial court in this case determined that Bryant is entitled to prison credit, it does not appear that the trial court ever delegated the responsibility of calculating the amount of prison credit to the Department. For this reason, as suggested by the State, we remand this cause to the lower court with instructions that it direct the Department to calculate the appropriate amount of prison credit pursuant to the order on review.

Affirmed in part; reversed in part; remanded with instructions.

      Bryant was sentenced to three consecutive life sentences for one count of burglary with an assault and two counts of first degree murder, both after his first trial and after his retrial. In the order on review, the trial court found that the credits Bryant is to receive "will only count towards one life sentence, the first of the consecutive sentences served by [Bryant.]." See, e.g. Barnishin v. State, 927 So.2d 68, 71 (Fla. 1st DCA 2006) ("If convicted of multiple offenses, the defendant must be given credit only on the first of consecutive sentences."). Further noting that his life sentences were parole eligible, the trial court referred Bryant to the Florida Parole Commission and the Florida Department of Corrections with any issues regarding parole.

      Garrett v. State, 229 So.3d 416, 416 n.1 (Fla. 3d DCA 2017) ("Although Garrett labeled his motion as a motion to correct illegal sentence pursuant to Rule 3.800(a), the trial court properly treated it as a jail credit motion under Rule 3.801 because it sought to correct a miscalculation in his jail credit after his sentence became final.").