author: Kuntz, J.

text:
    ELEMENT FINANCIAL CORP., Appellant, v. MARCINKOSKI GRADALL, INC., Ray A. Marcinkoski, KFIR Baranes, Individually, and The Best Floor Care, Inc., Appellees.
    No. 4D16-368
    District Court of Appeal of Florida, Fourth District.
    March 29, 2017

      Eric B. Zwiebel of Emanuel <& Zwiebel, PLLC, Plantation, for appellant.
    Peter M. Feaman and Nancy Guffey of Peter M. Feaman, P.A., Boynton Beach, for appellee Marcinkoski Gradall, Inc. and Ray A. Marcinkoski.
    Noah Tennyson and Gregory L. Scott of Nason, Yeager, Gerson, White & Lioce, P.A., Palm Beach Gardens, for appellee KFIR Baranes and The Best Floor Care, Inc.
   Kuntz, J.

Element Financial Corp. appeals the trial court’s final judgment in favor of appellees, where the court found that Element did not have a perfected security interest. The court first concluded that a guarantor is a debtor pursuant to section 679.3161(1)(b), Florida Statutes (2014), and therefore, that Element was required to perfect its lien in Florida within four months of the guarantor moving to this state. Next, the court concluded that the appellees were buyers in the ordinary course of business and, pursuant to the Uniform Commercial Code, section 679.320(1), Florida Statutes (2014), entitled to title free of the pre-existing security interest.

We hold that the court erred in its interpretation of both statutory provisions. First, a guarantor is not a debtor within section 679.3161(1)(b). Therefore, Element was not required to perfect its security interest within four months of the guarantor moving to Florida; rather, it was required to perfect its security interest in Florida within one year of the goods being moved into Florida. See § 679.3161(1)(c), Fla. Stat. (2014). Second, section 679.320(1) allows a buyer to take goods purchased in the ordinary course of business free of a security interest “created by the buyer’s seller.” § 679.320(1), Fla. Stat. (2014) (emphasis added). Because the appellees’ sellers did not create the security interests, that section does not apply to appellees’ purchases.

Element had a perfected security interest and the appellees took the goods subject to that perfected interest. Therefore, we reverse the court’s judgment and remand for the entry of judgment in favor of Element.

I. Background

At issue in this appeal are three Bobcat utility vehicles purchased and financed in California between August 27, 2013 and October 21, 2013. The Bobcats were sold to Inland Empire Distribution, LLC, a California limited liability company, and financed by Element Financial Corp. With each transaction, Inland signed a promissory note and security agreement, and Omri Elkadar, the managing member of Inland, signed a personal guaranty.

Elkadar moved the Bobcats to Florida shortly after the original sales to Inland. He listed them for sale in a local paper and all three Bobcats were sold by CM Global, Inc., a Nevada corporation, to Damage Services, Inc. Damage Services then sold two of the Bobcats to Marcinkoski Gradall, Inc.

The various sales are shown below:

Shortly after the second and third sales, Element located the Bobcats and attempted to enforce its security interest. Element filed this lawsuit in Florida, and less than a year after the three Bobcats had been taken to Florida, Element filed additional U.C.C. Financing Statements in both Florida and California.

After a bench trial, the trial court determined that Element’s perfected liens expired four months after the “debtor” moved to Florida and, additionally, that the appellees were purchasers in the ordinary course of business entitled to take the goods free of the perfected security interest. Element appeals,

II. Analysis

We address two issues in this appeal. First, we determine whether a guarantor is a “debtor” for purposes of section 679.3161(1)(b), Florida Statutes (2014). Second, we decide whether the appellees satisfied the requirements of section 679.320(1), in order to take the Bobcats free and clear of Element’s perfected security interest.

a. Pursuant to Section 679.3161, Florida Statutes, the Security Interest Remained Perfected for One Year After the Goods Were Moved Into Florida.

In 2001, Florida’s adoption of Article 9 of the U.C.C. was amended to include a specific section detailing the time a perfected interest expires after the debtor or secured goods are transported to a different jurisdiction. Ch. 2001-198, Laws of Fla. The relevant provision states:

(1) A security interest perfected pursuant to the law of the jurisdiction designated in s. 679.3011(1) or s. 679.3051(3) remains perfected until the earliest of:
(a) The time perfection would have ceased under the law of that jurisdiction;
(b) The expiration of 4 months after a change of the debtor’s location to another jurisdiction; or
(c) The expiration of 1 year after a transfer of collateral to a person who thereby becomes a debtor and is located in another jurisdiction.

Ch. 2001-198, § 3, at 1663, Laws of Fla. (codified at § 679.3161(1), Fla. Stat. (2014)).

The parties do not agree which subsection applies or even that the statute applies. Element argues that the guarantor was not a debtor and did not become one. Thus, Element argues that section 679.3161(1)(b) does not apply. The appellees argue that the guarantor was a debtor and, therefore, the four-month grace period found in subsection (1)(b) applies.

The trial court concluded that the guarantor was a debtor and applied the shorter four-month grace period. In its oral ruling, the court stated that it was “bound by the statutory authority in the U.C.C., and also bound by ... the case law in Gennet v. Fason,” 178 B.R. 888 (S.D. Fla. 1995), to conclude that the perfected lien was no longer valid due to “the four-month expiration period of the change in debtor’s location.” The four-month period in Gennet was based upon an earlier version of the U.C.C. and, at that time, Article 9 of the U.C.C. was “built upon the premise that filing with respect to goods should normally be at the place where the goods are located.” 4 James J. White et al., Uniform Commercial Code § 31:43. Pre-1999 Rules (6th ed.). However, the 2001 amendments were designed to “greatly diminish[] the possibility that the law governing perfection will change during a transaction,” Id. § 31:46, and the code now provides a one-year grace period when goods are brought to a new jurisdiction. § 679.3161(1)(c), Fla. Stat. (2014). Therefore, Gennet’s application of the then-four-month grace period after the goods were moved to the transferee jurisdiction is not relevant to the present situation.

The appellees also argue that the four-month grace period applies for a different reason: the guarantor’s relocation to Florida. To support their argument, they rely upon Burley v. Gelco Corp., 976 So.2d 97 (Fla. 5th DCA 2008), and Tropical Jewelers, Inc. v. Nationsbank, N.A. (S.), 781 So.2d 392 (Fla. 3d DCA 2000), both of which relate to the disposition of collateral and sections of the code not at issue in this appeal. In Tropical Jewelers, the Third District concluded that a guarantor’s waiver of the right to object to the disposition of collateral violated the anti-waiver provision of the U.C.C., § 679.504(3), Fla. Stat. (1995). 781 So.2d at 394. The Third District applied the definition of debtor in the code at that time which provided that a debtor was a “person who owes payment or other performance.” Id. (citing § 679.105(1)(d), Fla. Stat. (1995)). Because a guarantor is a person who owes “other performance,” the Third District concluded that the guarantor was a debtor. The court’s application of the then-existing definition of debtor to the statutory provision governing disposition of collateral is not persuasive in this appeal.

Burley is also distinguishable. As an initial matter, Burley involved a lease and, with limited exceptions, Article 2A of the U.C.C. governs lease agreements. The opinion does not explain why Article 9 was applied and the facts stated in the opinion do not implicate any of the limited exceptions that would require the application of Article 9. Regardless, the Burley court applied Article 9 and included a footnote stating that “Burley could properly seek the protections afforded by the U.C.C. because a guarantor is a debtor for Article 9 purposes.” 976 So.2d at 100 n.2 (citing Tropical Jewelers, Inc., 781 So.2d at 394). This footnote appears to be dicta. Burley dealt with the notification that must be given by a secured creditor prior to the disposition of collateral. Id. After Tropical Jewelers, but before Burley, the code was amended to significantly change the definition of debtor and to specifically require notice to a guarantor prior to disposition of collateral. See § 679,1021(1)(bb), (sss), (yyy), Fla. Stat. (2005); see also § 679.611(1), (2), Fla. Stat. (2005). Burley, the guarantor, was not entitled to notice because he was a debtor. He was entitled to notice because, since 2001, the code has specifically required notice to a secondary obligor such as a guarantor. See § 679.611, Fla. Stat. (2005).

While Tropical Jewelers and Burley are not persuasive for the disposition of this appeal, they are relevant to show the wrangling courts were required to perform in order to apply to the earlier definition of “debtor.” Until the 2001 amendments, it was “unclear whether a guarantor falls within the meaning of ‘debtor’ every time the word appears in Article 9 of the U.C.C.,” and the courts were required to “decide whether the term ‘debtor’ includes guarantors on a section-by-section basis.” Beth C. Housman, Guarantors as Debtors Under Uniform Commercial Code § 9-501(3), 56 Fordham L. Rev. 745, 747-48 (1988). Therefore, the code was amended to reduce the need for a close examination of the context in which the term debtor is used throughout every section of the code. See U.C.C. § 9-102 cmt. 2(a).

The code now defines a debtor as a “person having an interest, other than a security interest or other lien, in the collateral, whether or not the person is an obligor.” § 679.1021(1)(bb), Fla. Stat. (2014). Additionally, new defined terms such as secondary obligor and supporting obligation were added. § 679.1021(1)(sss), (yyy), Fla. Stat. (2014). Supporting obligations “cover the most common types of credit enhancements-suretyship obligations (including guarantees).” U.C.C. § 9-102 cmt. 5(f). Similarly, a person is a “secondary obligor if any portion of the obligation is secondary or if the obligor has a right of recourse against the debtor or another obligor with respect to an obligation secured by collateral.” See U.C.C. § 9-102 cmt. 2(a).

In this case, the guarantor is not a debtor for purposes of section 679.3161(1)(b), and the four-month grace period does not apply. We acknowledge that Element also argues that section 679.3161(1)(c) does not apply. Element states that the guarantor did not become a “new debtor” as that term is defined in the code. See § 679.1021(1)(ddd), Fla. Stat. (2014) (defining “new debtor”). However, section 679.3161(1)(c) does not require the person become a “new debtor,” but rather a “debtor.” And here, the guarantor became a debtor to the extent that he took possession of the secured property. See U.C.C. § 9-316 cmt. 2, ex. 4 (“[T]he application of subsection (a)(3) is not limited to transferees who are new debtors.”); 4 White et al., supra, § 31:46 (“A sale to a third party in another state constitutes a ‘transfer’ that ‘thereby’ makes the buyer a debtor ... located in another jurisdiction.”).

The plain language of the statute states that a perfected interest remains perfected until four months after the debtor moves to the new jurisdiction or one year after the secured goods are moved to the new jurisdiction. In this case, the debtor did not move. Instead, the guarantor moved with the secured property. When the guarantor moved the goods from California to Florida, the guarantor became a debtor for purposes of section 679.3161(1)(c) and triggered the one-year grace period found in that section. Therefore, the secured interest remained perfected until one year after the property was moved to Florida,

b. The Appellees Did Not Purchase From A Seller Which Created The Security Interest And, Therefore, Did Not Take The Bobcats Free of the Security Interest.

Next, we must determine whether the appellees purchased the goods free of the previously perfected security interest. The trial court found the appellees to be buyers in the ordinary course of business and, as a result, concluded that they took the goods free of Element’s security interest. There are, however, two requirements under the code for a purchaser to take an item free of a security interest.

Generally, a security interest remains attached to collateral unless an exception is found in Article 9 of the U.C.C. The exception applied by the court in this case states that “a buyer in ordinary course of business ... takes free of a security interest created by the buyer’s seller, even if the security interest is perfected and the buyer knows of its existence.” § 679.320(1), Fla. Stat. (2014). Accepting for purposes of this opinion the court’s conclusion that the appellees were buyers in the ordinary course of business, the appellees were still required to establish that the security interest was “created by the buyer’s seller.” Id.

The requirement that a secured interest be “created by the buyer’s seller” is unambiguous. A buyer takes the goods free of a security interest only if the security interest was “created by the buyer’s seller.” 4 White et al., supra, § 33:32 n.2 (citing JPMorgan Chase Bank, N.A. v. Jeffco Cinnaminson Corp., 77 U.C.C. Rep. Serv. 2d 254 (N.J. Super. Ct. App. Div. 2012); Leasing One Corp. v. Caterpillar Fin. Servs. Corp., 776 N.E.2d 408 (Ind. Ct. App. 2002); Martin Bros. Implement Co. v. Diepholz, 109 Ill.App.3d 283, 64 Ill.Dec. 768, 440 N.E.2d 320 (1982); Sec. Pac. Nat’l Bank v. Goodman, 24 Cal.App.3d 131, 100 Cal. Rptr. 763 (1972)).

To illustrate application of the phrase “created by the buyer’s seller,” White & Summers provide an example that is remarkably similar to the facts in the present appeal. Id. In the example, Mrs. Jones purchased a new vehicle and gave a security interest to Rao Bank. Subsequently, Mrs. Jones traded the vehicle in to Purka-yastha Motors without informing Rao Bank. Purkayastha Motors then sold the vehicle to Mr. Szot. After Mrs. Jones defaulted, Rao Bank sought to recover the vehicle from Mr. Szot. Even though Mr. Szot was a good faith purchaser who made a purchase in the ordinary course of business, the security interest was not created by his seller. Therefore, he did not qualify for the protection of section 679.320(1), and his interest in the vehicle was subordinate to that of Rao Bank. Id.

We reach the same result in this case. Here, the appellees did not purchase the Bobcats from the seller that created the security interest. While the appellees argue that the Florida seller, CM Global, Inc., was doing business as Inland Empire Distribution, Inc., that was not the entity which created the security interest. Inland Empire Distribution, LLC is a California limited liability company and Inland Empire Distribution, Inc. is a Nevada corporation. While the names are similar, the entities are different. In this case, Inland Empire Distribution, LLC purchased the Bobcats and Element financed the transaction. Just as they were in the example with Mr. Szot, the purchases in Florida were from separate persons or entities. Therefore, the security agreement was not created by the buyer’s seller and the appellees took the Bobcats subject to Element’s perfected security interest.

III. Conclusion

Pursuant to section 679.3161(1)(c), Florida Statutes (2014), Element’s security interest remained perfected for one-year after the secured goods were moved into Florida. Further, the appellees did not take the goods free of Empire’s perfected security interest. Section 679.320(1), Florida Statutes (2014), allows a buyer in the ordinary course of business to take the goods free of a security interest created by the buyer’s seller. In this case, the security interest was not created by the appellees’ seller and therefore appellees took the goods subject to the perfected security interest. Therefore, we reverse the court’s judgment and remand for entry of judgment in favor of Element.

Reversed and remanded with instructions.

Warner and Gerber, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Jason DENNIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1045
    District Court of Appeal of Florida, Fourth District.
    March 29, 2017
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Attorney General, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

We reverse the order denying appellant’s motion for postconviction relief and remand for resentencing pursuant to At-well v. State, 197 So.3d 1040 (Fla. 2016). Appellant is entitled to be resentenced pursuant to the sentencing provisions enacted in Chapter 2014-220, Laws of Florida. Id. at 1050; Michel v. State, 204 So.3d 101 (Fla. 4th DCA 2016) (certifying conflict with Stallings v. State, 198 So.3d 1081 (Fla. 5th DCA 2016), and Williams v. State, 198 So.3d 1084 (Fla. 5th DCA 2016)).

Appellant’s claim that his sentence for the non-homicide count violates Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), was not raised in the motion filed below and may not be raised for the first time in this appeal. Atwell, 197 So.3d at 1043, n.1. Appellant may raise this claim through a proper motion filed in the trial court following remand.

Reversed and remanded for resentenc-ing.

Gross, Taylor and Levine, JJ., concur.


author: PER CURIAM.

text:
    John NELSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-87
    District Court of Appeal of Florida, Third District.
    Opinion filed March 29, 2017
    John Nelson, in proper person.

      Pamela Jo Bondi, Attorney General, for appellee.
    Before LAGOA, SALTER and EMAS, JJ.
   PER CURIAM.

Affirmed. See Nelson v. State, 44 So.3d 594 (Fla. 3d DCA 2010). See also State v. McBride, 848 So.2d 287 (Fla. 2003); Concepcion v. State, 944 So.2d 1069 (Fla. 3d DCA 2006).


text:
    Diego Jorge JIMENEZ, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D16-561
    District Court of Appeal of Florida, Third District.
    Opinion filed March 29, 2017.
    Diego Jorge Jimenez, in proper person.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for respondent.
    Before EMAS, LOGUE and SCALES, JJ.
   PER CURIAM.

Petitioner Diego Jorge Jimenez seeks habeas corpus relief from his resentencing order. Because the trial court was without jurisdiction to enter the resentencing order, we grant Jimenez’s petition.

In 2003, Jimenez was convicted of one count of aggravated assault on a police officer, one count of aggravated battery on a police officer, one count of battery on a police officer, one count of battery, two counts of resisting officer with violence, and one count of depriving an officer of means of protection. Thereafter, Jimenez filed several rule 3.800 motions with the trial court and appealed several of his rule 3.800 denials.

In Jimenez’s appeal of the trial court’s denial of Jimenez’s third rule 3.800 motion, this Court reversed and remanded to the trial court on the State’s proper concession of error. Jimenez v. State, 88 So.3d 194 (Fla. 3d DCA 2011) (Mem) (“Jimenez I”). On remand, the trial court denied Jimenez’s motion in part and granted it in part, on the ground of double jeopardy. Jimenez subsequently appealed this trial court order to this Court, and, on July 8, 2015, this Court affirmed in part and reversed in part the trial court’s order. We remanded the matter to the trial court for entry of a new sentence in accordance with its opinion. State v. Jimenez, 173 So.3d 1020 (Fla. 3d DCA 2015) (“Jimenez II”). Our mandate in Jimenez II issued on September 29, 2015.

Prior to the issuance of our mandate, however, on September 25, 2015, the trial court entered Jimenez’s new sentencing order, attempting to conform to our opinion in Jimenez II.

Jimenez brought the instant petition arguing that the trial court lacked jurisdiction to enter the September 25, 2015 resentencing order. Because the resen-fencing order was entered prior to the issuance of this Court’s mandate in Jimenez II, the trial court lacked jurisdiction to enter same. Leatherwood v. State, 168 So.3d 328, 330 (Fla. 3d DCA 2015) (Mem). We, therefore, grant Jimenez’s petition and direct the trial court to enter a revised sentencing order in accordance with this Court’s opinion in Jimenez II.

Petition granted.

      . While our Jimenez II decision was released on July 8, 2015, the mandate did not issue, and therefore the decision was not final until September 29, 2015. See Thibodeau v. Sarasota Mem'l Hosp., 449 So.2d 297, 298 (Fla. 1st DCA 1984).

      . We do not reach the merits of Jimenez’s petition seeking review of the trial court’s resentencing order because the trial court was without jurisdiction to enter the order.


text:
    Larry L. BRINSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2809
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 31, 2017
    Rehearing Denied May 5, 2017
    Larry L. Brinson, Raiford, pro se.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Samuel A. Perrone, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Larry Brinson appeals the postconviction court’s “Order Banning Further Pro Se Filings” in all cases. Because we find that the challenged order is overbroad, we reverse for the entry of an order that prohibits Brinson from pro se filings attacking the judgment, convictions, and sentence imposed in the underlying criminal case but does not otherwise bar him from filing pro se pleadings in other unrelated matters.

In 2007, following a jury trial, Brinson was convicted in the Seventh Judicial Circuit Court, St. Johns County, Florida, Case No. CF06-1283, of sexual battery with a weapon or use of force likely to cause great bodily harm and was sentenced to serve life in prison. This court affirmed his direct appeal without opinion. Brinson v. State, 969 So.2d 1036 (Fla. 5th DCA 2007). Over the ensuing years, Brinson filed a total of eight separate, unsuccessful motions for collateral or postconviction relief. In denying Brinson’s eighth motion, the postconviction court incorporated into its order what is commonly referred to as a “Spencer order,” directing Brinson to show cause in writing why, due to his “repetitive, frivolous, and meritless filings,” the court should not prohibit him from filing any further pro se motions or petitions in the court attacking his judgment and sentence in Case No. CF06-1283.

Brinson timely responded to the show cause order. The postconvietion court found no merit in Brinson’s response and further found that Brinson had abused the judicial system by his repetitive and merit-less filings. As a sanction, the court barred Brinson from filing any further pleadings or papers in the court unless signed by an attorney licensed to practice law in Florida. The court’s prohibition applied not only to Case No. CF06-1283 but also to “any other currently active case in which [Brin-son] is representing himself and to any ‘future case.’ ”

A circuit court’s order prohibiting pro se filings by a defendant is reviewed by the appellate court under the abuse of discretion standard. Ashe v. State, 106 So.3d 956, 957 (Fla. 4th DCA 2013) (citing Hudson v. State, 95 So.3d 413, 414 (Fla. 4th DCA 2012)). Initially, we find no abuse of discretion in the court barring Brinson from future pro se filings attacking his judgment, convictions, or sentence in Case No. CF06-1283, whether filed in that case or in any other case. However, a literal reading of the present order prohibits Brinson from filing any pro se pleadings, motions, or petitions in any case in the Seventh Judicial Circuit, St. Johns County, even if completely unrelated to Case No. CF06-1283. We find that aspect of the order to be overbroad, especially as the show cause order placing Brinson on notice that the court was considering imposing sanctions against him for his repetitive and frivolous filings only provided that the ban would apply to Brinson’s pro se filings attacking his judgment, convictions, and sentence in Case No. CF06-1283 and not in those cases unrelated to Case No. CF06-1283.

Accordingly, we reverse the order on appeal and remand to the lower court to enter an order barring Brinson from filing any pleadings, motions, petitions, or other papers in any case in which Brinson is attacking or challenging the judgment, convictions, or sentence in Case No. CF06-1283, unless reviewed and signed by an attorney licensed to practice law in the State of Florida and in good standing with The Florida Bar.

REVERSED and REMANDED, with directions.

PALMER, ORFINGER, and LAMBERT, JJ. concur.

      . Brinson was also convicted of kidnapping, but the trial court did not impose a sentence for this conviction.

      . State v. Spencer, 751 So.2d 47 (Fla. 1999).


author: THOMAS, M. K, J.

text:
    Ivory Lee ROBINSON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1988
    District Court of Appeal of Florida, First District.
    Opinion filed April 4, 2017
    Rehearing Denied May 4, 2017

      Ivory Lee Robinson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, M. K, J.

Ivory Lee Robinson, defendant, appeals an order denying his rule 3.800(a) motion to correct illegal sentence, in which he challenges a twenty-five year mandatory minimum sentence imposed under the “10-20-Life” law. See § 775.087, Fla, Stat. In the first claim, he asserts he was never found in actual possession of a firearm. As this claim was raised and disposed of in a prior appeal, it is barred. Now in his second claim and more than thirteen years after his conviction and sentence, he proclaims his mandatory minimum sentence is illegal pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because: 1) the Amended Information failed to expressly charge that “great bodily harm,” as opposed to “bodily harm,” resulted from his shooting of the victim in the stomach with a .357 revolver handgun (in essence, defendant is raising a technical-defect challenge, in that the Amended Information does not track precisely the verbiage of the sentencing enhancement statute); and 2) the “great bodily harm” factor of the enhancement statute was not precisely submitted to, and found by the jury beyond a reasonable doubt, resulting in grounds for a substantive-defect challenge. We disagree, and affirm his sentence.

I. Facts

In 2003, the State charged the defendant with attempted second-degree murder and possession of a firearm by a felon pursuant to sections 784.045, 782.04 and 790.23, Florida Statutes (2002). The Amended Information also charged section 775.087, Florida Statutes, the sentencing enhancement provision, also known as the “10-20-Life” law. The victim testified at trial and described being shot in the stomach by the defendant. The victim’s injuries required immediate medical care and hospitalization. The jury found the defendant guilty on all counts, as charged. In response to special interrogatories submitted, the jury found: 1) “the defendant guilty of Attempted Second[-]Degree Murder, as charged in Count I of the Information;” 2) that he “possessed and discharged a firearm, and by the discharge of said firearm caused injury to another person;” 3) he was guilty of Possession of a Firearm by a Convicted Felon, as charged in Count II of the Information; and 4) he was “in actual possession of a firearm.” This Court affirmed the conviction and sentence on direct appeal. Robinson v. State, 888 So.2d 25 (Fla. 1st DCA 2004) (unpublished table decision).

Thereafter, the defendant filed a number of post-conviction pleadings including multiple rule 3.800(a) motions, which asserted no finding of the “use” of a firearm, failure to find “actual” possession of a firearm, and use of a “deadly weapon,” among other claims. All were unsuccessful. In March 2016, the defendant filed this rule 3.800(a) motion, arguing for the first time since being charged that the absence of “great bodily harm” constituted technical and substantive-defects in the Amended Information.

II. “Illegal Sentence”

“[T]he definition of ‘illegal sentence’ as interpreted by case law has narrowed significantly since that term was used in the 1960s and 1970s.” Carter v. State, 786 So.2d 1173, 1176 (Fla. 2001). In Davis v. State, 661 So.2d 1193, 1196 (Fla. 1995), the Florida Supreme Court defined an “illegal sentence” as “one that exceeds the maximum period set forth by law for a particular offense without regard to the guidelines.” But later, the contention Davis mandates that only those sentences that facially exceed the statutory máximums may be challenged as illegal under rule 3.800(a) was rejected. State v. Mancino, 714 So.2d 429, 433 (Fla. 1998). Instead, “[a] sentence that patently fails to comport with statutory or constitutional limitations is by definition ‘illegal.’” Id. Further, “where it can be determined without an evidentiary hearing that a sentence has been unconstitutionally enhanced in violation of the double jeopardy clause, the sentence is illegal and can be declared so at any time under rule 3.800.” Hopping v. State, 708 So.2d 263, 265 (Fla. 1998). The Florida Supreme Court thus receded from Davis in Mancino and Hopping to the extent that Davis could be read to limit challenges under rule 3.800(a) to only those sentences that exceed the “statutory maximum.” Carter, 786 So.2d at 1177.

In 2014, the Florida Supreme Court addressed the question of whether a rule 3.800(a) motion is an appropriate vehicle to attack a defendant’s upward-departure sentence under Apprendi, Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Plott v. State, 148 So.3d 90 (Fla. 2014). The Court determined “that upward departure sentences that are unconstitutionally enhanced in violation of Apprendi and Blakely fail to comport with constitutional limitations, and consequently, the sentences are illegal under rule 3.800(a).” Plott, 148 So.3d at 95. Recently, however, in Martinez v. State, No. SC15-1620, 211 So.3d 989, 2017 WL 728098 (Fla. Feb. 23, 2017), the Florida Supreme Court declared that an alleged technical-defect in the charging document, which was not preserved at the trial level, does not constitute an “illegal sentence” subject to correction under Florida Rule of Criminal Procedure 3.800(a).

Accordingly, only the defendant’s substantive-defect claim (that Apprendi factors were not submitted to and found by the jury) is properly raised by rule 3.800(a) motion.

III. Apprendi & State-Issued Informations

The defendant asserts that pursuant to Apprendi, his conviction and sentence are illegal, as the Amended Information did not “precisely” track the sentencing reclassification statute by charging “great bodily harm.” As a result of Apprendi, certain facts (though labeled by state law as “sentencing factors”) are regarded as essential elements of the offense for purposes of the Sixth Amendment’s jury-trial guarantee and the due process requirement of proof beyond a reasonable doubt. The U.S. Supreme Court’s requirement that Appren-di-type elements be included in all federal indictments is grounded on the Grand Jury Clause of the Fifth Amendment and also serves a notice function. Id. at 476, 120 S.Ct. 2348. But Apprendi does not affect trial procedure except when fact-finding is necessary to raise the floor or ceiling of the authorized sentencing range. See Blakely; Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).

The Fifth Amendment’s Indictment Clause states, in pertinent part: “[N]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentation or indictment of a Grand Jury.” U.S. Const. Amend. V. The U.S. Supreme Court, to date, has not yet held the “Fifth Amendment’s grand jury indictment requirement” as applicable to the states. Gosa v. Mayden, 413 U.S. 665, 668, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973); Byrd v. State, 995 So.2d 1008, 1011 (Fla. 1st DCA 2008). The Sixth Amendment states, in pertinent part: “[I]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed ... and to be informed of the nature and cause of lent the accusation.” U.S. Const. Amend. VI. The states would have a constitutional obligation to include Apprendi-type factors in their charging instruments only if the notice requirement of the Sixth Amendment, which does apply to the states via Fourteenth Amendment due process, imposed such a requirement. Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (holding the Sixth Amendment right to a jury trial applies to the states through the Fourteenth Amendment).

A state legislature is “vested,” subject to constitutional limitations, “with authority to define the elements of a crime.” Chicone v. State, 684 So.2d 736, 741 (Fla. 1996). “Accordingly, identification of the elements of a crime which must be charged in a state-issued information is, at least initially, a question of legislative intent.” Id. The Florida Legislature enacted the “10-20-Life” sentencing reclassification statute components as “sentencing factors” rather than elements of the underlying offense—an act within the state’s established power. McMillan v. Pennsylvania, 477 U.S. 79, 83, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986); Patterson v. New York, 432 U.S. 197, 211, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); Speiser v. Randall, 357 U.S. 513, 523, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958).

A review of the evolution of Apprendi, with emphasis on precedent addressing charging-document defects and the relationship to the jury verdict, is necessary here. Following Apprendi, the United States Supreme Court issued multiple opinions defining an “Apprendi factor.” See Blakely; Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Alleyne. In 2001, the Florida Supreme Court determined that sentencing errors raised under the Prison Releasee Reoffender Act must be preserved for review and rejected the assertion that such error was fundamental. McGregor v. State, 789 So.2d 976, 977 (Fla. 2001). This was likely a precursor to a similar analysis of Apprendi factors.

In 2002, the Supreme Court, in United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), addressed a defendant’s appeal of a technical-pleading deficiency in a federal indictment in the absence of a challenge regarding the jury verdict submission. The defendant asserted the imposition of an illegal sentence as a result of the indictment’s failure to charge the precise weight of drugs in his possession at the time of arrest (where amount of drugs was relevant to sentencing enhancement, but not to underlying offense). Id. at 628, 122 S.Ct. 1781. Of note, the defendant did not raise an objection to the alleged technical-defect in the indictment at the trial stage. In a unanimous decision -written by Justice Rehnquist, in which the sentence was upheld, the Supreme Court applied its Apprendi analysis as follows: under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any factor (other than prior convictions) that increases the maximum penalty for a crime must be: 1) charged in an indictment; 2) submitted to the jury; and 3) proven beyond a reasonable doubt. Id. at 627, 122 S.Ct. 1781. However, the Court found that an overall record review, with an emphasis on the jury verdict, confirmed that the three-fold Apprendi requirements were satisfied.

The Supreme Court, in Cotton, further detailed the deficiency in the indictment did not present a jurisdictional weakness for failure to charge a crime, and also, the omission of the sentencing enhancement factor in the indictment did not justify vacating the enhanced sentence. 535 U.S. at 626, 122 S.Ct. 1781. The Court explained the real threat then to the:

‘fairness, integrity, or public reputation of judicial proceedings’ would be if respondents, despite the overwhelming and uncontroverted evidence that they were involved in a vast drug conspiracy, were to receive a sentence prescribed for those committing less substantial crimes because of an error that was never objected to at trial.

Id. at 634, 122 S.Ct. 1781. Accordingly, Apprendi-type element satisfaction could be accomplished despite charging deficiencies.

In 2006, in a landmark decision, the United States Supreme Court declared Apprendi violations no longer constitute per se fundamental error. See Washington v. Recuenco, 548 U.S. 212, 222, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006). The Court announced:

Failure to submit a sentencing factor to the jury is not “structural” error. If a criminal defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that most constitutional errors are subject to harmless-error analysis. E.g., Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 [ (1999) ]. Only in rare cases has this Court ruled an error ‘structural,’ thus requiring automatic reversal. In Neder, the Court held that failure to submit an element of an offense to the jury—there, the materiality of false statements as an element of the federal crimes of filing a false income tax return, mail fraud, wire fraud, and bank fraud, see id. at 20-25, 119 S.Ct. 1827—is not structural, but is subject to Chapman’s harmless-error rule, 527 U.S. at 7-20, 119 S.Ct. 1827, ... Apprendi makes clear that “[a]ny possible distinction between an ‘element’ of a felony ... and a ‘sentencing factor’ was unknown. . .during the years surrounding our Nation’s founding.” 530 U.S. at 478, 120 S.Ct. 2348. Accordingly, the Court has treated sentencing factors, like elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt.

Id. at 213, 126 S.Ct. 2546. Following Recuenco, even failure to submit an Apprendi factor to the jury was not considered structural error, and therefore, not a basis for a per se reversal on direct appeal.

In Galindez v. State, 955 So.2d 517 (Fla. 2007), the Florida Supreme Court applied the Recuenco harmless-error application to Apprendi and Blakely challenges. The Florida Supreme Court detailed, “... [T]o the extent some of our pre-Apprendi decisions may suggest that the failure to submit factual issues to the jury is not subject to harmless error analysis, Recuenco has superseded them.” Id. at 522-523.

A year later, the Florida Supreme Court in Deparvine v. State, 995 So.2d 351 (Fla. 2008), distinguished the holding and application of its prior decision in State v. Gray, 435 So.2d 816 (Fla. 1983), and addressed preservation and waiver of alleged Apprendi error. Specifically, the court previously held, “[Generally, if an indictment or information fails to completely charge a crime under the laws of the state, the defect can be raised at any time. Gray, 435 So.2d at 818 (emphasis added). However, now “where a defendant waits until after the State rests its case to challenge the propriety of an indictment, the defendant is required to show not that the indictment is technically defective but that it is so fundamentally defective that it cannot support a judgement of conviction.” Deparvine, 995 So.2d at 373 (citing Ford v. State, 802 So.2d 1121, 1130 (Fla. 2001) (emphasis added)). Per Deparvine, there exist two avenues for raising an Apprendi error. The first requires a timely objection to the technical-defect. Technical errors may be remedied at the trial level by dismissal or an order for particulars. Secondly, if no timely objection is raised rendering the technical-defect as unpreserved, the defendant may raise, on appeal, a claim of fundamental right violation, which is subject to harmless error analysis. Accordingly, following Deparvine, the holding of Gray could no longer be cited as a basis for per se reversible error as technical-defects were no longer considered “structural error.”

The Florida Supreme Court later held that the preservation rules of Deparvine applied to a defendant’s challenge to charging documents involving mandatory minimum sentencing under the “10-20-Life” law. Bradley v. State, 3 So.3d 1168 (Fla. 2009). The court highlighted the “slightly different” rules relating to raising sentencing error challenges: 1) when preserved for review by contemporaneous objection, error may be raised on direct appeal; 2) even if not originally preserved, rule 3.800(b) provides a defendant with a mechanism to correct sentencing errors in the trial court at the earliest opportunity and gives defendants a means to preserve these errors for appellate review even while an appeal is pending (but before initial brief); 3) rule 3.850 allows a defendant to raise a sentencing error within two years after the sentence becomes final; and 4) rule 3.800(a) permits “a defendant to allege that the sentence was illegal, that insufficient credit was awarded for time served, or that the sentencing scoresheet was incorrectly calculated.” Jackson v. State, 983 So.2d 562, 568 (Fla. 2008) (citing Brooks v. State, 969 So.2d 238, 241-42 (Fla. 2007)).

In Price v. State, 995 So.2d 401 (Fla. 2008), the Florida Supreme Court, in further distinguishing Gray, recognized a distinction between technical and substantive-defect challenges to state informations. Price provided a standard for distinguishing a technical-defect from a substantive-defect in declaring a substantive-defect (capable of appeal at any time as violation of fundamental right) as one that “wholly fails to allege any element of the crime ....” Id. at 405.

In 2010, the Florida Supreme Court again reviewed a conviction and sentence based on an alleged information deficiency. Miller v. State, 42 So.3d 204, 216 (Fla. 2010). The court announced “... the test for granting relief based on a defect in the information is actual prejudice to the fairness of the trial” is applicable to Apprendi challenges to state-issued informations, regardless of an enhanced sentencing component. Id.

A year later, in Carbajal v. State, 75 So.3d 258 (Fla. 2011), the Florida Supreme Court further distinguished the application of Gray. The Court advised:

We have also explained, however, that while a charging instrument is essential to invoke the circuit court’s subject matter jurisdiction, ‘defects in charging documents are not always fundamental where the omitted matter is not essential, where the actual notice provided is sufficient, and where all the elements of the crime in question are proved at trial.’

Id. at 262 (quoting Gray, 435 So.2d at 818).

The Eleventh Circuit agreed with the Florida Supreme Court’s holding that the Sixth Amendment did not require an indictment specify aggravating circumstances, even in a capital case. Grim v. Secy., Fla. Dep’t of Corrs., 705 F.3d 1284 (11th Cir. 2013); see also Winkles v. State, 894 So.2d 842, 846 (Fla. 2005).

Despite precedent provided by the United States Supreme Court and Florida Supreme Court, conflict exists among the district courts of Florida regarding treatment of Apprendi defects in state-issued informations. District courts continue to intermittently cite Whitehead v. State, 884 So.2d 139 (Fla. 2d DCA 2004), Rogers v. State, 875 So.2d 769 (Fla. 2d DCA 2004), Davis v. State, 884 So.2d 1058 (Fla. 2d DCA 2004), and Daniel v. State, 935 So.2d 1240 (Fla. 2d DCA 2006), as supporting per se reversible error for technical-defects in charging documents. See McKenzie v. State, 31 So.3d 275 (Fla. 2d DCA 2010); Green v. State, 139 So.3d 460 (Fla. 1st DCA 2014); Lewis v. State, 177 So.3d 64 (Fla. 2d DCA 2015), However, the Florida Supreme Court’s recent opinion in Martinez v. State, No. SC15-1620, 211 So.3d 989, 2017 WL 728098 (Fla. Feb. 23, 2017), declares technical-defects in state-issued charging documents are no longer considered “structural” constituting per se reversible error and do not qualify as an “illegal sentence” subject to a rule 3.800(a) challenge. A defendant must raise a timely objection at the trial court level in order to preserve a technical-defect challenge, or such claim is waived. In the absence of timely objection, the defendant’s claim survives only if fundamental error is established.

IV. The Amended Information

The subject Amended Information charged:

... IVORY LEE ROBINSON, in Alachua County, Florida, on or about May 26, 2002, unlawfully and by an act imminently dangerous to another, and evincing a depraved mind regardless of human life, but without a premediated design to effect the death of any particular person, did attempt to kill and murder WILLIAM FRANK MABREY, by shooting William Frank Mabrey, a human being, with a firearm and/or IVORY LEE ROBINSON did unlawfully commit a battery upon WILLIAM FRANK MABREY by actually and intentionally touching or striking said person against said person’s will, or causing bodily harm to WILLIAM FRANK MABREY and in the commission of said battery did use a deadly weapon, to-wit: .357 Llama Comanche Stoger Industries Revolver Serial Number S830231, and in the course or commission of said offenses, Ivory Lee Robinson did discharge a firearm; to wit; 357 Llama Comanche Stoger Industries Revolver. Serial Number S83023; and as a result of the discharge of said firearm, Ivory Lee Robinson did cause an injury to WILLIAM FRANK MA-BREY, in violation of Section 775.087, Florida Statutes, Section 784.045(1)(a)(2), and Section 782.04(2), Florida Statutes. (L10)
COUNT II: ... IVORY LEE ROBINSON, in Alachua County, Florida, on or about May 26, 2002, having been convicted of a felony in the courts of this state or of a crime against the United States of America which .is. designated as a felony or convicted of an offense in another state, territory or country punishable by imprisonment for a term exceeding one year, did own or have in his care, custody, actual possession or control, a certain firearm, to-wit: .357 Llama Comanche Stoger Industries Revolver Serial Number S830231, contrary to Section 790.23(1), Florida Statutes. (L5)

(Emphasis added.)

The purpose of an information is to inform the accused of the charge(s) against him, so that the accused will have an opportunity to prepare a defense. Florida charges the majority of crimes by information. Florida Rule of Criminal Procedure 3.140 provides, “[T]he indictment or information on which the defendant is to be tried shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” In addition, Florida Rule of Criminal Procedure 3.140(d) (1) further requires the information to recite:

... official or customary citation of the statute, rule, regulation or other provision of law that the defendant is alleged to have violated. Error in or omission of the citation shall not be grounds for dismissing the count or reversal of a conviction based thereon if the error or omission did not mislead the defendant to the defendant’s prejudice.

Rule 3.140 allows a court to order the prosecuting attorney to furnish a statement of particulars when the information fails to inform the defendant sufficiently to prepare a defense. With respect to any defect,

no indictment or information, or any count thereof, shall be dismissed or judgement arrested, or new trial granted on account of any defect in the form of the information or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct, and indefinite as to mislead the accused and embarrass him or her in the preparation of a defense or expose the accused after conviction or acquittal to substantial danger of a new prosecution for the same offense.

Fla. R. Crim. P. 3.140(o). These sections reveal the duty of the State to give clear and adequate notice, but with the disclaimer that defects are not grounds for automatic reversal or dismissal. See Leeman v. State, 357 So.2d 703, 705 (Fla. 1978).

Technical-Defect Challenge

Here, defendant asserts the Amended Information is technically flawed pursuant to Apprendi, which he argues requires the phrase “great bodily harm” be precisely charged as an essential element of the enhancement provision. Accordingly, he asserts such an omission constitutes per se reversible error and cannot be cured by jury verdict. The defendant claims error based on a semantic comparison arguing that the information does not sufficiently charge the required Apprendi elements. In support, the defendant cites to the Second District’s opinions in Daniel and Whitehead. These cases presented challenges to minimum mandatory sentences and the charging documents did not track the language of the enhancement statute. In both, the jury ultimately found the specific factors pursuant to special interrogatories. Daniel, 935 So.2d at 1241; Whitehead, 884 So.2d at 139. The Second District reversed both sentences, finding that the jury verdict could not cure the “defects” in the charging document and an information must precisely track the sentencing enhancement statute. Id. However, Daniel and Whitehead are readily distinguishable and have now been abrogated by the Florida Supreme Court in Martinez, No. SC15-1620, 211 So.3d at 991, 2017 WL 728098, at *2. In Daniel, the State conceded error on a portion of the sentencing and the case involved multiple defendants—a fact pattern demanding greater specificity in pleading. Daniel, 935 So.2d at 1241.

Technical-defects in a charging document are reviewed differently than the failure to assert an essential element of the crime. Gray, 435 So.2d at 818. “Great bodily harm” is not an essential element of attempted second-degree murder or possession of a firearm by a convicted felon, but rather, it allows for reclassification of the underlying crimes pursuant to section 775.087, Florida Statutes. Because the alleged defect was not the omission of an essential element of the crime, the defect is fundamental only if due process was denied. Connolly v. State, 172 So.3d 893, 904 (Fla. 3d DCA 2015); Delgado v. State, 43 So.3d 132, 133 (Fla. 3d DCA 2010) (“An information is fundamentally defective only where it totally omits an essential element of the crime or is so vague, indistinct or indefinite that the defendant is misled or exposed to double jeopardy.”); State v. Wimberly, 459 So.2d 456, 458-59 (Fla. 5th DCA 1984) (“There is a difference between an information that completely fails to charge a crime and one where the charging allegations are incomplete or imprecise. The former is fundamentally defective. However, where the information is merely imperfect or imprecise, the failure to timely file a motion to dismiss under Rule 3.190(c) waives the defect and it cannot be raised for the first time on appeal .... If the information recites the appropriate statute alleged to be violated, and if the statute clearly includes the omitted words, it cannot be said that the imperfection of the information prejudiced the defendant in his defenses.”) (quoting Jones v. State, 415 So.2d 852, 853 (Fla. 5th DCA 1982)); Brewer v. State, 413 So.2d 1217, 1221 (Fla. 5th DCA 1982) (en banc) (finding no fundamental error where the deficiency of the charging document was not a total omission of an essential element of the crime); Kane v. State, 392 So.2d 1012, 1013 (Fla. 5th DCA 1981); State v. Cadieu, 353 So.2d 150, 151 (Fla. 1st DCA 1977) (“The law does not favor a strategy of withholding attack on the information until the defendant is in jeopardy, then moving to bar the prosecution entirely.”).

Florida does not view Apprendi type facts as within the essential elements pleading requirement because Apprendi-elements do not alter the offense itself (as opposed to the punishment that can be imposed). The different levels of punishment, under state law, do not create separate offenses. Florida now adopts the position that the requirements of the Sixth Amendment regarding notice can be satisfied without necessarily and precisely alleging Apprendi-type elements in the charging documents. See Deparvine; Grim v. Sec’y Fla. Dep’t of Corrs., 705 F.3d 1284 (11th Cir. 2013); Miller v. State, 42 So.3d 204 (Fla. 2010); DuBoise v. State, 520 So.2d 260 (Fla. 1988). Additionally, the Florida Supreme Court has noted “it will be a rare occasion that an information tracking the language of the statute defying the crime will be found inefficient to put the accused on notice of the misconduct charged.” Price, 995 So.2d at 405.

Defendant’s appeal of the technical-defect was initiated under rule 3.800(a), as opposed to rule 3.800(b). Accordingly, the asserted technical charging error must be deemed waived by the defendant’s lack of a contemporaneous objection prior to the jury verdict and before the sentence was imposed in 2003. To preserve error for appellate review, a contemporaneous, specific objection must be made during trial. Jackson v. State, 983 So.2d 562, 568 (Fla. 2008); Gore v. State, 964 So.2d 1257, 1265 (Fla. 2007). Further, the alleged pleading insufficiency at issue here does not result in an “illegal sentence” subject to correction at any time under rule 3.800(a). The Florida Supreme Court recognizes that a defendant can waive the failure to precisely charge grounds for a mandatory minimum under the “10-20-Life” law. See Martinez; Nelson v. State, 191 So.3d 950 (Fla. 4th DCA 2016); Rolling v. State, 215 So.3d 70, 2016 WL 4723682 (Fla. 3rd DCA Aug. 17, 2016); Connolly v. State, 172 So.3d 893 (Fla. 3d DCA 2015); Bradley v. State, 3 So.3d 1168 (Fla. 2009).

The technical-defect challenge raised by the defendant is also contrary to the “Criminal Appeal Reform Act of 1996,” which provides that “[a]n appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error.” § 924.051(3), Fla. Stat. An issue is not preserved -within the meaning of the statute unless it was “timely raised before, and ruled on by, the trial court.” § 924.051(l)(b) Fla. Stat., (Supp. 1996); see Latson v. State, 193 So.3d 1070 (Fla. 1st DCA 2016) (Winokur, J., concurring). Here, the defendant did not raise any objection as to the technical insufficiency of the Amended Information prior to the jury verdict. Accordingly, fundamental error must be established to maintain a viable argument on appeal.

Substantive-Defect Challenge

A charging document that “references a specific section of the criminal code” sufficiently detailing “all the elements of the offense” may support a conviction where the pleading otherwise fails to include an essential element of the crime. DuBoise v. State, 520 So.2d 260, 265 (Fla. 1988); Figueroa v. State, 84 So.3d 1158, 1161 (Fla. 2d DCA 2012). However, “a conviction on a charge not made by the indictment or information is a denial of due process[,]” and an indictment or information, that “wholly omits to allege one or more of the essential elements of the crime” cannot support a conviction for that crime. Gray, 435 So.2d at 818. This is a “defect that can be raised at any time-before trial, after trial, on appeal, or by habeas corpus.” Id.

Defendant also claims that his conviction and sentence are illegal, as the Apprendi factor of “great bodily harm” was not charged in the Amended Information and found by the jury beyond a reasonable doubt. Relying again on Daniel, the defendant argues that a jury verdict cannot cure any alleged deficiencies in the charging document. He also asserts that the jury did not find all sentencing factors under section 775.087, Florida Statutes, in violation of Apprendi. The trial court expressly denied defendant’s argument that the Amended Information did not precisely track the enhancement statute—finding that even though the language is not precise, it is clear, and the jury found beyond a reasonable doubt that defendant discharged a firearm causing “great bodily harm.”

Here, the trial court cited Gentile v. State, 87 So.3d 55 (Fla. 4th DCA 2012), in denying defendant’s rule 8.800(a) motion. In Gentile, the information alleged the defendant committed the offense with a deadly weapon. Id. at 57. The Fourth District determined that by inference, the jury’s verdict found the defendant guilty of using a deadly weapon because it found him guilty “as charged in the information.” Id. Thus, the verdict form’s reference to the information was sufficient to support Gentile’s sentence reclassification.

The Florida Supreme Court has consistently held a jury verdict may “cure” an Apprendi defect in a state-issued information. See Galindez v. State, 955 So.2d 517 (Fla. 2007); Miller; Price; Grim. Post-2006, failure to submit a sentencing factor to a jury is no longer considered structural error. Such failure is subject to harmless error analysis, if the error is of a fundamental nature. Recuenco, 548 U.S. at 221, 126 S.Ct. 2546. Here, any defect in the charging document, namely failure to allege “great bodily harm” as opposed to “bodily harm,” was cured by the victim’s testimony at trial and the jury verdict. The jury found the defendant guilty as charged, which included the factual finding the defendant shot the victim. We find this sufficient to satisfy “great bodily harm” as a required element of the sentencing enhancement.

If a pleading should require an identification of the particular injury, additional detail is commonly seen as flowing from the factual specificity requirement rather than the essential elements requirement. See United States v. Gayle, 967 F.2d 488 (11th Cir. 1992). Here, the record on appeal confirms Count I of the Amended Information charged that defendant “did attempt to kill ... by shooting ... with a firearm ... causing bodily harm ... did use a deadly weapon ... did possess a firearm ... did discharge a firearm ... did cause injury ... in violation of Section 775.087, Florida Statutes, Section 784.045(1)(a)(2), and Section 782.04(2), Florida Statutes.” We agree with the State. The fact the defendant shot the victim, coupled with the statutory citation, was sufficient to give notice of the “great bodily harm” element of section 775.087, Florida Statutes. See Coke v. State, 955 So.2d 1216, 1217 (Fla. 4th DCA 2007) (concluding that an information, which charged the defendant with aggravated battery by “shooting [the victim] in the legs,” was sufficient to advise the defendant of the “great bodily harm” element, as language was more specific than “simply alleging great bodily harm”); Nelson v. State, 191 So.3d at 952-53 (concluding the information indicating that the victim was “shot” was sufficient to provide notice of the “great bodily harm” element).

Y. Fundamental Error & Harmless Error

A review of the Amended Information and the record demonstrates fundamental error was not present because: 1) the Amended Information did not omit an essential element of the charged offenses; 2) the Amended Information referenced section 775.087, Florida Statutes, in the charging document; 3) the defendant had notice the State would be seeking a reclassification of his conviction under section 775.087, Florida Statutes, based on the defendant’s personal possession of a firearm during the commission of the underlying offenses; and 4) the defendant claims no surprise or prejudice in the preparation or presentation of his defense and establishes no other grounds of actual prejudice.

The Florida Supreme Court has clarified that, although a specific finding in an interrogatory on the verdict form is preferable, what is ultimately required is a “clear jury finding.” State v. Iseley, 944 So.2d 227, 231 (Fla. 2006). The Court emphasized:

[A]ll that is required for the application of a reclassification or enhancement statute to an offense is a clear jury finding of the facts necessary to the reclassification or enhancement ‘either by (1) a specific question or special verdict form (which is the better practice), or (2) the inclusion of a reference to [the fact necessary for reclassification] in identifying the specific crime for which the defendant is found guilty.’

Gentile, 87 So.3d at 57 (Fla. 4th DCA 2012) (quoting Sanders v. State, 944 So.2d 203, 207 (Fla. 2006) (quoting Iseley, 944 So.2d at 231)).

The test for granting relief based upon a substantive-defect in the charging document is “actual prejudice.” Gray, 435 So.2d at 818. Because the defect did not pertain to an essential element of the crime, the defect is fundamental only if the defendant demonstrates that he was denied due process. In other words, because the defendant failed to make a contemporaneous objection, the defect was not fundamental error unless he is able to demonstrate insufficient notice that a conviction for second-degree murder and possession of a firearm by a convicted felon could subject him to a reclassification under section 775.087, Florida Statutes (2002).

“An illegal sentence subject to correction under rule 3.800(a) must be one that no judge under the entire body of sentencing laws could possibly impose under any set of factual circumstances.” Martinez at 991, 2017 WL 728098, at *2 (citing Wright v. State, 911 So.2d 81, 83 (Fla. 2005); see also Carter v. State, 786 So.2d 1173, 1181 (Fla. 2001). The illegality must be of a fundamental nature and clear from the face of the record. Wright, 911 So.2d at 83-84, We find no such fundamental error.

Prior decisions of this Court in Boyce v. State, 202 So.3d 456 (Fla. 1st DCA 2016), and Arnett v. State, 128 So.3d 87 (Fla. 1st DCA 2013), are factually distinguishable. Furthermore, clarity has been provided by the Florida Supreme Court in Martinez at 991, 2017 WL 728098, at *2.

Conclusion

In the wake of Galindez, Deparvine, and Martinez, the menu options for a defendant’s Apprendi-error appeal have been limited. Technical-defects in a charging document are no longer “structural” constituting per se reversible error. A defendant’s failure to raise a timely objection to a charging document’s technical insufficiency, prior to a jury verdict, results in waiver of a pure pleading challenge. Subsequently, a defendant may only appeal by arguing constitutional error, which is subject to harmless error review.

Defendant failed to properly preserve the technical-defect claim, and his “illegal sentence” challenge is not cognizable under a rule 3.800(a) motion. His substantive challenge failed to establish fundamental error. Alternatively, even if the Apprendi defects asserted by the defendant constitute a constitutional violation, we find the error to be harmless.

For these reasons, we affirm the trial court’s denial of defendant’s rule 3.800(a) motion.

WOLF and BILBREY, J.J., CONCUR.

      . It is important to distinguish between "enhancement” of penalty laws and "reclassification” of offense laws. Admittedly, in some instances such a distinction may be without a difference in its practical effect, but the legislature has chosen to make a distinction. Enhancement is commonly associated with the province of the judge in sentencing, as in the case of habitual offenders, section 775.084, and the wearing of a mask, section 775.0845. Reclassification speaks to the degree of the crime charged, and in legislative application, appears to attach at the time the indictment or information is filed and not at the time a conviction is obtained. Section 775,081 "classifies” felonies. Section 775.087(1) "reclassifies” all felonies with specified exceptions when certain conditions attend to the commission of the crimes. Cooper v. State, 455 So.2d 588, 589 (Fla. 1st DCA 1984). Subsections (2) and (3) of section 775.087, Florida Statutes, "enhance” the penalty.

      , In Florida, a capital crime must be charged by indictment; all other felonies may be charged by information. See Fla. Const. Art. I, section 15(a). If the Indictment Clause applied to the states, Florida could not prosecute non-capital felonies by information.

      . In Arnett, the defendant was charged with possession of a firearm by a convicted felon. 128 So.3d at 87. The information did not charge "actual possession" of a firearm (key element of the underlying charge), nor did it charge the sentencing reclassification or enhancement. Id. at 88. This Court reversed on the basis that the "enhancement must be clearly charged in the information." Id. (emphasis added). In Boyce, this Court reversed an enhanced sentence when the information failed to charge "actual possession” of a firearm despite the underlying burglary crime involving multiple defendants. 202 So.3d at 456. The information failed to detail whether the defendant was being charged under the principal or accomplice theory and was silent with respect to the State’s intent to seek the enhancement sentence; The State did not provide notice of its intent to seek sentencing enhancement against Boyce until after the jury trial. Id.


author: BILBREY, J.

text:
    STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. M.A., Father of M.R.A. and C.A., Minor Children, Appellee.
    CASE NO. 1D16-5873
    District Court of Appeal of Florida, First District.
    Opinion filed April 10, 2017.

      Ward L. Metzger, Appellate Counsel, Department of Children and Families, Jacksonville, for Appellant.
    Heidi P. Kemph, Alachua, for Appellee.
   BILBREY, J.

The Florida Department of Children and Families appeals the circuit court’s second amended order dismissing dependency proceedings. The Department claims error based on the lack of compliance with the Interstate Compact on the Placement of Children (ICPC) as required by section 409.401, Florida Statutes, and the lack of a home study of the father’s residence in Indiana. See §§ 39.521(3)(b), 39.522(1), Fla. Stat. (2016). We agree with the Department, and hold that however well intentioned, the circuit court committed error in dismissing the dependency proceedings and thereby making a de facto placement with the out-of-state father. The order dismissing the dependency proceeding is reversed and this matter remanded for further proceedings.

Upon the Department’s dependency shelter petition, the circuit court entered its shelter order for four children on August 11, 2015. See § 39.401, Fla. Stat.; Fla. R. Juv. P. 8.655. The proceedings were based on an incident of domestic violence in the home where the children lived with their mother and the father of the youngest child. ■ The children were placed with their maternal grandmother, under the protective custody of the Department. M.A., the father of two of the children, was incarcerated in North Carolina at the time, had not lived with the children recently, and was not involved in the incident resulting in the shelter of the children. Although M.A.’s location was referenced in the pleadings and order, he was not served and the Department represented that he was not noticed of the proceedings due to his incarceration.

The Department filed a petition for dependency proceedings for all four children on August 20, 2015. M.A. was released by the State of North Carolina on September 12, 2015, and was unaware of the status of his children at that point. The court adjudicated the children dependent, by order entered October 8, 2015, and on October 16, 2015, a case plan was filed by the Department, establishing tasks for the mother and the father of the youngest child. M.A. was not a party to the case plan, not assigned any tasks, and not served or copied with the Plan.

M.A. sought information from the clerk of courts and contacted or was contacted by a representative of the community based care provider, and thus became aware of the dependency proceedings involving his two children. The court appointed counsel for M.A. on November 20, 2015, and counsel requested and obtained discovery of the case file. Through counsel, M.A. filed a motion to modify visitation on December 11, 2015, and requested an order directing the Department to seek a home study of his residence pursuant to section 409.401, Florida Statutes, the ICPC.

The court heard M.A.’s motion on December 18, 2015. Counsel for M.A. was present and M.A. appeared by telephone. The court found that M.A. acknowledged paternity of M.R.A. and C.A., and that the mother had previously testified that M.A. was the father of these children. Accordingly, the court held that M.A. was established as the father of M.R.A and C.A. In addition, the court found that upon discovering the dependency action, M.A. denied the allegations in the Department’s petition and requested an adjudicatory hearing. Finally, the court ordered the Department to seek an ICPC home study on M.A.’s home, as M.A. had requested. See § 409.401, Fla. Stat.

The children remained in their placement with their maternal grandmother in Florida while the Department pursued an ICPC home study for M.A.’s home in Indiana. The Department amended its petition for dependency to remove the allegations against M.A. but did not amend the case plan to impose any tasks for M.A. The Department consistently alleged in the subsequent filings that it recommended placement of M.A.’s children in Indiana and the court consistently ordered that the Department was authorized to place M.R.A. and C.A. with their father “upon an approved ICPC home study.”

Upon M.A.’s motion, the court allowed M.R.A. and C.A, to spend the summer of 2016 with M.A. in Indiana, and by all accounts the extended visit went well. Over the summer, the Indiana Department of Child Services denied the ICPC approval because M.A. failed to return the required paperwork to the correct office. M.A.’s children returned to their grandmother’s home after the summer visit and started the school year in Florida.

After finding that the mother failed to make any progress with her case plan within the one-year time frame for permanency, the circuit court directed the Department to file a petition to terminate the mother’s parental rights. In September 2016, rather than going forward with the termination of parental rights, the court entered its order placing the two children not fathered by M.A. into permanent guardianship with the maternal grandmother. See § 39.6221, Fla. Stat. M.A.’s children remained under the protective supervision of the Department, in a temporary placement with their grandmother.

The Department initiated a second attempt to obtain the ICPC home study and approval from Indiana officials, to no avail. By letter dated October 24, 2016, the Indiana Department of Child Services informed M.A. that the case worker had observed his home “and noted that there were six beds in the home, smoke detectors, fire extinguisher in the kitchen and the home had working utilities and was appropriately clean.” However, the lack of paperwork and M.A.’s cancellation of the home visit scheduled for October, caused the case worker to deny M.A.’s ICPC for a second time.

At a hearing held November 18, 2016, M.A.’s counsel described M.A.’s efforts to communicate and cooperate with the Indiana child services personnel and his difficulty in reading the required paperwork. Counsel for M.A. assured the court that there were “no issues with the house,” but problems only with coordination and communication. The parties and the court acknowledged that the children could not be sent out of state without the ICPC approval, but counsel for M.A. argued that because he was the father, not involved in the situation which prompted the dependency action, and not subject to any case plan tasks, the case should be dismissed and M.A. be allowed to take his children home with him to Indiana. In its second amended order, entered January 17, 2017, the circuit court dismissed the dependency action as to M.R.A. and C.A., “without jurisdiction being retained.” It was clear at the time of dismissal that the circuit court had intended, and the grandmother had agreed, that M.R.A. and C.A. would live with their father in Indiana.

Although M.A. was not initially served with the dependency action, was not living with the children or involved in the incident which prompted the dependency action, not made a party to the case plan, and his parental rights have not been directly judicially altered, under our governing precedent, M.A. is not automatically entitled to assume custody of his children and relocate them to his home in another state by virtue of his parental rights. Under current law, the circuit court’s assumption of jurisdiction over M.A.’s children in the dependency action necessitates an “interstate placement” subject to the ICPC in order for M.A to remove his children from their placement with their grandmother and return with them to his home in Indiana. Dep’t of Children & Families v. C.T., 144 So.3d 684, 686 (Fla. 1st DCA 2014). His status prior to the circuit court’s order on appeal was “the same as the position of a foster parent” and the court was not authorized to relinquish its jurisdiction over these children without complying with the ICPC study and positive report from Indiana officials. Id. See also D.R. v. J.R., 203 So.3d 952 (Fla. 5th DCA 2016) (reversing order placing children with father in Massachusetts and relinquishing jurisdiction in dependency action; ICPC cannot be avoided by transferring custody to out-of-state parent and relinquishing jurisdiction); B.G. v. Dep’t of Children & Families, 189 So.3d 305 (Fla. 4th DCA 2016) (vacating order placing child out-of-state in custody of previously noncustodial parent and subsequent relinquishment of jurisdiction to circumvent ICPC requirements).

While the frustration of the parties and the circuit court with the repeated failures, despite the parties’ apparent good-faith efforts, to obtain a favorable ICPC report from Indiana officials, is certainly understandable, the order dismissing the dependency action and relinquishment of the court’s jurisdiction cannot be affirmed. Additionally, even without the ICPC requirement, section 39.522(1), requires compliance with “the home study criteria,” and that requirement has not been met.

Accordingly, the circuit court’s order dismissing the dependency action and relinquishing jurisdiction over these children is reversed. The case is remanded for further proceedings. If M.R.A. and C.A. are currently with M.A. out of state, this opinion does not compel their removal and return to Florida. See B.G., 189 So.3d at 307; D.R., 203 So.3d at 956. “Rather, the trial court must hold a hearing on remand to ensure the [children are] in a safe placement.” B.G., 189 So.3d at 307-08. “If the trial court finds it is in the [children’s] best interest to be placed with the Father pending disposition, the Department must comply with the ICPC.” Id, at 308; see also D.R., 203 So.3d at 956. “In that case, the trial court must determine if it is in the [children’s] best interest to remain with the Father pending the Department’s compliance with the ICPC.” B.G. (citing Dep’t of Children & Families v. T.T., 42 So.3d 962, 964 (Fla. 5th DCA 2010)).

REVERSED AND REMANDED.

RAY, J., CONCURS, WOLF, J., DISSENTS WITHOUT OPINION.

      . The original dependency petition alleged that M.A, was a registered sex-offender, had battered the mother, and had been imprisoned for a sex crime against a minor. These allegations were based on statements of the mother but were supported in the record only by the Department's filing of an Information filed in Indiana in 1998, when M.A. was 19 years old. M.A. was charged with "sexual misconduct with a minor” due to an alleged sexual relationship with a 14-year-old girl. The Department did not file a judgment, sentence, or any other document showing the disposition of this Indiana charge. There was no evidence presented to indicate that Appellant’s recent incarceration in North Carolina was for any sexual or violent offense, Counsel for M.A, represented to the court that Appellant was incarcerated "for embezzlement” and the Department did not dispute this representation.

      . It should be noted that no constitutional challenge to the application of the ICPC to a non-offending, noncustodial parent was raised before the trial court or is raised here. See Vivek Sankara, Out of State and Out of Luck: The Treatment of Noncustodial Parents Under the Interstate Compact on the Placement of Children, 25 Yale L. & Pol’y Rev. 1, 63-94 (2006).

      . This holding will change if the Interstate Compact for the Placement of Children becomes effective in Florida. See § 409.408, Fla. Stat., Art. III.B.5.


author: EMAS, J.

text:
    U.S. BANK TRUST, N.A., etc., Appellant, v. Reginald L. WELLMAN, etc., Appellee.
    No. 3D15-1368
    District Court of Appeal of Florida, Third District.
    Opinion filed April 12, 2017
    Robertson Anschutz & Schneid and Heidi J. Bassett and David Rosenberg (Boca Raton), for appellant.
    The Ticktin Law Group and Kendrick Almaguer (Deerfield Beach), for appellee.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   EMAS, J.

U.S. Bank Trust, N.A. appeals from a final judgment involuntarily dismissing its foreclosure complaint, upon the trial court’s determination that the lender failed to comply with conditions precedent prior to filing its foreclosure lawsuit. Specifically, the trial court determined that the lender’s notice of default and intent to accelerate failed to comply with paragraph 22 of the mortgage agreement. Upon our de novo review, Nationstar Mortgage, LLC v. Craig, 193 So.3d 74 (Fla. 3d DCA 2016), we find that the notice substantially complied with paragraph 22 of the mortgage.

The relevant facts of the instant case are indistinguishable from those in our recent decisions in Craig, 193 So.3d at 77; Bank of New York v. Mieses, 187 So.3d 919 (Fla. 3d DCA 2016); Bank of America v. Cadet, 183 So.3d 477 (Fla. 3d DCA 2016); Suntrust Mortgage, Inc. v. Garcia, 186 So.3d 1036 (Fla. 3d DCA 2016); and Bank of New York Mellon v. Nunez, 180 So.3d 160 (Fla. 3d DCA 2015). In those cases we held (as we hold in the instant case) that the notice of default substantially complied with the default notice provision contained in paragraph 22 of the mortgage. We therefore reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

      . U.S. Bank was substituted in as party plaintiff during the proceedings below.


author: LUCK, J.

text:
    UV CITE III, LLC, Appellant, v. DEUTSCHE BANK NATIONAL TRUST CO., as Trustee, in Trust for the Registered Holders of Morgan Stanley ABS Capital I Inc. Trust 2006-NC5, Mortgage Pass-Through Certificates, Series 2006 NC5, Appellee.
    No. 3D16-2341
    District Court of Appeal of Florida, Third District.
    Opinion filed April 12, 2017

      Wallen Hernandez Lee Martinez, LLP, and Todd L. Wallen, for appellant.
    Weitz & Schwartz, P.A., and Sarah T. Weitz (Fort Lauderdale), for appellee.
    Before EMAS, LOGUE, and LUCK, JJ.
   LUCK, J.

This is a residential foreclosure case. In 2016, Deutsche Bank National Trust Company sought to foreclose on the mortgage it held on a condominium in Sailboat Cay owned by UV Cite III, LLC. While the case was pending, Deutsche Bank moved to “sequester” the rents that UV Cite was collecting from tenants living in the condominium, and have the rents placed in the court registry. The trial court held a hearing on the motion, and granted it, ordering UV Cite to “pay all rents due each month ... under the subject lease into the Court Registry.” “At the conclusion of this action,” the trial court continued, “all sums deposited into the Court Registry shall be released to Plaintiff or other prevailing party.”

UV Cite appeals the order requiring that it deposit in the court registry the rent it receives from leasing out the condominium. We reverse because, absent an agreement between the parties to assign rents or some form of injunctive relief, a trial court has no authority to order a deposit of money into the registry of the court if the money was not the subject of the litigation. See Ksaibati v. Ksaibati, 824 So.2d 219, 222 (Fla. 2d DCA 2002) (“A trial court has no authority to order a deposit of money into the registry of the court if the money is not the subject of the litigation.”); Morroni v. Fisher, 647 So.2d 127, 129 (Fla 2d DCA 1994) (“[T]he appellees’ counterclaim does not seek a money judgment for the fair rental value of the properties; the causes of action asserted against the Morronis are ejectment, possession and trespass. A trial court has no authority to order a deposit of money in the registry of the court if the money is not the subject of the litigation.”); Wincast Assocs., Inc. v. Hickey, 320 So.2d 17, 18 (Fla. 4th DCA 1975) (“The authority conferred on a court to order a deposit of money or property does not apply if the money in the possession of the party is not the subject of the litigation, but rather its payment is an incident thereto, dependent on the judgment to be rendered in the action, as in the case of an action for redemption, specific performance, accounting, rescission, or the like.” (quotation omitted)).

The Morroni case, for example, involved a dispute over real property secured as part of a loan. Morroni, 647 So.2d at 128. The Morronis deeded property to the Fishers as “security for loans [that Mr. Fisher] had made to them.” Id. The arrangement ended in a lawsuit with the Morronis suing to cancel or reform the deed, and the Fishers counterclaiming for ejectment, possession, and trespass. M. As the case was winding its way through the circuit court, the Fishers moved “to require the Morronis to deposit funds in the registry of the court ,.. representing the fair rental value of the properties.” Id. The trial court ordered the Morronis to deposit money into the court registry equal to the fair rental value of the properties they had deeded to the Fishers. Id. at 128-29. The appellate court reversed because the Fishers’ counterclaim did “not seek a money judgment for the fair rental value of the properties.” Id at 129. “A trial court,” the Second District explained, “has no authority to order a deposit of money in the registry of the court if the money is not the subject of the litigation.” Id.

Here, Deutsche Bank’s complaint alleged three causes of action: to foreclose on the mortgage (count one); and to reform the mortgage (count two) and deed (count three). The complaint did not seek a judgment for the rent UV Cite collected, and the rent was not part of any of the three alleged causes of action. The record, moreover, contains no evidence of an assignment of rents provision, and Deutsche Bank did not seek injunctive relief. Because the rent was not the subject of Deutsche Bank’s lawsuit, and there was no other basis for sequestering the money, the trial court had no authority to order that the rent UV Cite collected from its tenant be deposited in the registry of the court.

Reversed and remanded.

      . "A mortgage or separate instrument may provide for an assignment of rents of real property or any interest therein as security for repayment of an indebtedness. ... Upon application by the mortgagee or mortgagor, in a foreclosure action ... a court of competent jurisdiction, pending final adjudication of any action, may require the mortgagor to deposit the collected rents into the registry of the court ....”§ 697.07(1), (4), Fla. Stat. (2016). Section 697.07 “was enacted as a public policy matter by the legislature to facilitate commercial lending by banks by enabling them to obtain an assignment of rents as further security in the event of default.” Williams v. First Union Nat. Bank of Fla., 591 So.2d 1137, 1140 (Fla. 4th DCA 1992).

      . While UV Cite objected that the trial court did not have authority to order what it ordered, neither party cited these cases to the trial court in the motion or at the hearing.


text:
    Jeffrey LOCKE, Appellant, v. CITY OF MIAMI, Appellee.
    No. 3D16-670
    District Court of Appeal of Florida, Third District.
    Opinion filed April 12, 2017

      McGuinness & Gonzalez, P.A., and Lawrence J. McGuinness and Juliana Gonzalez, Miami, for appellant.
    Victoria Méndez, City Attorney, and John A. Greco, Deputy City Attorney, and Kerri L. McNulty, Assistant City Attorney, for appellee.
    Before EMAS, LOGUE and SCALES, JJ.
   PER CURIAM.

For the reasons articulated in the trial court’s well considered order, we affirm.

Affirmed.


text:
    Lisa Bonny WEAVER, Appellant, v. DEPARTMENT OF HEALTH, BOARD OF NURSING, Appellee.
    Case No. 5D16-2366
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 13, 2017
    Lisa Bonny Weaver, Rockledge, pro se.
    Sarah Young Hodges, Chief Appellate Counsel, Florida Department of Health, Prosecution Services Unit, Tallahassee, for Appellee.
   PER CURIAM.

Lisa Bonny Weaver, a registered nurse, appeals a final administrative order permanently revoking her nursing license for violations of sections 456.072(l)(c) and 464.018(l)(d)2., Florida Statutes (2015). We affirm.

On appeal, Ms. Weaver argues that her attorney failed to properly represent her by providing sufficient facts to the Department of Health, Board of Nursing, so that it could make an informed decision. Ms. Weaver’s dissatisfaction with her counsel and the quality of her representation is not a basis for reversal. An ineffective assistance of counsel claim is premised on a violation of an individual’s Sixth Amendment right to counsel. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Mullins v. Dep’t of Law Enf., 942 So.2d 998, 1000 (Fla. 5th DCA 2006). However, no Sixth Amendment right to counsel exists in the context of administrative proceedings involving the revocation of state-issued licenses. Mullins, 942 So.2d at 1000; see Santacroce v. State, Dep’t of Banking & Fin., 608 So.2d 134, 136 (Fla. 4th DCA 1992) (explaining that while agency cannot prevent person from obtaining and utilizing counsel in administrative proceedings, constitutional guarantee of right to counsel is not applicable to administrative proceedings involving revocation of licenses issued by state to those engaged in regulated businesses and professions); see also Slavin v. Comm’r, 932 F.2d 598, 601 (7th Cir. 1991) (recognizing “[t]here is no principle of effective assistance of counsel in civil cases”).

Because there is no right to counsel, there is no right to collaterally challenge the effectiveness of counsel. Accordingly, Ms. Weaver, who was represented by counsel of her own choosing, cannot now complain that the representation was inadequate as a means to challenge the permanent revocation of her nursing license. See Mullins, 942 So.2d at 1001 (concluding that officer had no right to collaterally challenge effectiveness of his counsel in revocation of his law enforcement license proceedings); Prieto v. Fla. Dep’t of Bus. & Prof'l Regs., 876 So.2d 633, 633-34 (Fla. 3d DCA 2004) (rejecting ineffective assistance claim brought by real estate appraiser to challenge agency’s suspension of his license).

AFFIRMED.

ORFINGER and BERGER, JJ., and JACOBUS, B.W., Senior Judge, concur.


author: SLEET, Judge.

text:
    The BANK OF NEW YORK MELLON, f/k/a The Bank of New York, as Successor Trustee to JPMorgan Chase Bank, N.A., as Trustee on behalf of the Certificateholders of the CWHEQ, Inc., CWHEQ Revolving Home Equity Loan Trust, Series 2006-D, Appellant, v. Dianne D. GLENVILLE, a/k/a Diane D. Glenville, a/k/a Diane Glenville; and Mark S. Glenville, Appellees.
    Case No. 2D15-5198
    District Court of Appeal of Florida, Second District.
    Opinion filed April 26, 2017

      Anthony R. Smith and Kendra J. Taylor of Sirote & Permutt, P.C., Winter Park; and Shaun K. Ramey and Matthew R. Feluren of Sirote & Permutt, P.C., Fort Lauderdale, for Appellant.
    Sheryl A. Edwards of The Edwards Law Firm, PL, Sarasota, for Appellees.
   BY ORDER OF THE COURT:

Appellant’s motion for rehearing and request for certification are granted to the extent that the prior opinion dated January 20, 2017, is withdrawn, and the attached opinion is issued in its place. The motion for rehearing en banc is denied. No further motions for rehearing will be entertained.

I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.

SLEET, Judge.

The Bank of New York Mellon appeals the trial court’s order denying its claim for surplus funds from a foreclosure sale. Because the bank’s claim was untimely, we affirm.

Under section 45.031(7)(b), Florida Statutes (2015), any person claiming a right to surplus funds must file a claim with the clerk of court within sixty days of the foreclosure sale. The record reflects that the underlying property was sold at public auction on July 2, 2015, and that the bank filed its claim for surplus funds as a subordinate lienholder on September 2, 2015, sixty-two days after the date the property was sold. The trial court denied the bank’s claim as untimely filed. On appeal, the bank argues that a foreclosure sale is not complete until the clerk issues the certificate of sale. Because the certificate of sale in this case was issued on July 6, 2015, the bank claims that it had until September 4, 2015, to file a claim and that therefore its September 2, 2015, filing was timely. We disagree.

“The interpretation of a statute is a question of law, and it is therefore subject to a de novo review.” Mathews v. Branch Banking & Tr. Co., 139 So.3d 498, 500 (Fla. 2d DCA 2014) (citing W. Fla. Reg'l Med. Ctr., Inc. v. See, 79 So.3d 1, 8 (Fla. 2012)). “[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Gulf Atl. Office Props., Inc. v. Dep’t of Revenue, 133 So.3d 537, 539 (Fla. 2d DCA 2014) (quoting Hess v. Walton, 898 So.2d 1046, 1049 (Fla. 2d DCA 2005)).

This court has previously explained that “the language in section 45.031(7)(b) is clear and unambiguous: any person claiming a right to the surplus funds must file a claim with the clerk no later than sixty days after the sale.” Dever v. Wells Fargo Bank Nat’l Ass’n, 147 So.3d 1045, 1047 (Fla. 2d DCA 2014); see also Mathews, 139 So.3d at 500 (“The language of section 45.031(7)(b) is clear and unambiguous in requiring that any person claiming a right to the surplus funds ‘MUST FILE A CLAIM WITH THE CLERK NO LATER THAN 60 DAYS AFTER THE SALE.’ ” (emphasis omitted)). This subsection only refers to the “sale,” not the “certificate of sale.” § 45.031(7)(b). This is significant because section 45.031 assigns particular and distinct meanings to the terms “sale” and “certificate of sale” and does not use them interchangeably. See § 45.031(4) (“After a sale of the property the clerk shall promptly file a certificate of sale and serve a copy of it on each party .... ” (emphasis added)); .031(5) (“If no objections to the sale are filed within 10 days after filing the certificate of sale, the clerk shall file a certificate of title and serve a copy of it on each party.” (emphasis added)). Reading subsection (7)(b) to require a claim for surplus funds to be filed within sixty days of the certificate of sale—instead of the actual sale itself—would render subsection (4) meaningless and would confuse the meaning of other subsections of the statute.

Additionally, such a reading would be inconsistent with this court’s prior case law interpreting section 45.031(7)(b), In Mathews, this court explained that the bank “was required to file a claim with the clerk within sixty days after the sale of the property to preserve any claim it may have had to the surplus funds.” 139 So.3d at 500 (emphasis added). Similarly, in Dever, this court used the date the property was sold at auction, not the date the certificate of sale was issued, as the start date for the sixty-day period. 147 So.3d at 1047. Although using either date would not have changed the fact that the banks’ claims were untimely, in both cases this court interpreted the language of the statute to refer to the date of the actual sale, not the issuance of the certificate of sale. See Mathews, 139 So.3d at 499-500; Dever, 147 So.3d at 1047.

For the first time on rehearing, the bank argues that the date of the sale should be calculated from the date of the issuance of the certificate of title. In support, it cites Straub v. Wells Fargo Bank, N.A., 182 So.3d 878, 881 (Fla. 4th DCA 2016), which was published prior to the filing of the bank’s initial brief. In Straub, the Fourth District held that “[ujnder section 45.01(1)(a), (2)(f), and (7)(b), a foreclosure ‘sale’ takes place when ownership of the property is transferred upon filing of the certificate of title.” The bank waived this argument by failing to raise it in its appellate briefs. See Fla. R. App. P. 9.330(a) (stating that a motion for rehearing shall not include “issues not previously raised in the proceeding”); see also Teitelbaum, v. S. Fla. Water Mgmt. Dist., 176 So.3d 998, 1005 n.3 (Fla. 3d DCA 2015) (holding that an argument raised for the first time in a motion for rehearing was waived), review denied, SC15-1994, 2016 WL 1065552 (Fla. Mar. 16, 2016); Tillery v. Fla. Dep’t of Juvenile Justice, 104 So.3d 1253, 1255 (Fla. 1st DCA 2013) (“[A]n argument not raised in an initial brief is waived.”); Philip Morris USA, Inc. v. Naugle, 103 So.3d 944, 949 (Fla. 4th DCA 2012) (“It is a rather fundamental principle of appellate practice and procedure that matters not argued in the briefs may not be raised for the first time on a motion for rehearing.” (quoting Ayer v. Bush, 775 So.2d 368, 370 (Fla. 4th DCA 2000))).

However, we recognize that our holding in this opinion conflicts with the Fourth District’s holding in Straub. Therefore we must certify conflict. And we note that construing the term “sale” to refer to the issuance of the certificate of title confuses the meaning of several subsections of section 45.031. See, e.g., § 45.031(l)(a) (requiring the trial court to “direct the clerk to sell the property at a public sale” and stating that “[a] sale may be held more than 35 days after the date of final judgment”); .031(2) (requiring publication of a “[njotice of sale” that “shall contain ... [t]he time and place of sale”); .031(3) (stating that “[t]he sale shall be conducted at public auction” and requiring the highest bidder to post a deposit “[a]t the time of the sale”); .031(5) (requiring the clerk to file a certificate of title “[i]f no objections to the sale are filed within 10 days after filing the certificate of sale”); .031(6) (“When the certificate of title is filed the sale shall stand confirmed.” (emphasis added)).

Because the bank filed its claim outside the statutory window, we must affirm the trial court’s order denying the claim. In so doing, we note that the two cases on which the bank relies on appeal—In re Jaar, 186 B.R. 148, 154 (Bankr. M.D. Fla. 1995), and Shlishey the Best, Inc. v. CitiFinancial Equity Services, Inc., 14 So.3d 1271, 1275 (Fla. 2d DCA 2009)—are inapplicable here because they both concern a mortgagor’s right of redemption, which is governed by section 45.0315, not section 45.031.

Affirmed, conflict certified.

LaROSE and BADALAMENTI, JJ., Concur.

      . Diane and Mark Glenville were the property owners and defendants in the foreclosure action. They are entitled to the surplus funds remaining with the clerk more than sixty days after the foreclosure sale pursuant to section 45.031(7)(b), Florida Statutes (2015).


text:
    Montre D. RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3233
    District Court of Appeal of Florida, First District.
    Opinion filed April 28, 2017
    Montee D. Richardson, Pro Se, Bonifay, Florida, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, for Appellee.
   PER CURIAM.

In this postconviction appeal, Appellant challenges the trial court’s summary denial of his rule 3.850 motion wherein he raises four ineffective assistance of counsel claims. Because the trial court failed to attach the relevant portions of the record upon which it relied to refute Appellant’s claims, we reverse and remand for the trial court to either hold an evidentiary hearing or attach portions of the record to its order that conclusively refute Appellant’s claims. See Fla. R. Crim. P. 9.141(b)(2)(D) (“On appeal from the denial of relief, unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.”); see also Davis v. State, 153 So.3d 399, 401 (Fla. 1st DCA 2014) (“Rule 9.141(b)(2)(d), Florida Rules of Appellate Procedure, requires reversal of an order denying postconviction relief without an evidentiary hearing if the order fails to comply with the applicable subsection of rule 3.850(f)—in this case rule 3.850(f)(5), requiring the postconviction court’s determination that the grounds asserted can be conclusively resolved either as a matter of law (with citations) or by reliance on records of the case (with attached copies).”).

REVERSE and REMAND.

WETHERELL, MAKAR, and KELSEY, JJ, CONCUR.


author: VILLANTI, Chief Judge.

text:
    Stephen V. PAPPACHEN, Appellant, v. LAKELAND REGIONAL HEALTH SYSTEMS, INC., Appellee.
    Case No. 2D16-4079
    District Court of Appeal of Florida, Second District.
    Opinion filed April 28, 2017
    Stephen V. Pappachen, pro se.
    Robert E. Puterbaugh and Stephen R. Senn of Peterson & Myers, P.A, Lake-land, for Appellee.
   VILLANTI, Chief Judge.

Dr. Stephen Pappachen appeals an order granting Lakeland Regional Health Systems, Inc.’s motion to compel arbitration. Dr. Pappachen also appeals a separate order dismissing his claims alleging violations of the peer review process and dismissing his claims alleging violations of Title VII of the Civil Rights Act.

To the extent that Dr. Pappachen seeks review of the May 19, 2016, order compelling arbitration, we must dismiss the appeal as untimely. See Fla. R. App. P. 9.130(b). To the extent that Dr. Pappachen seeks review of the August 3, 2016, order dismissing his remaining claims, we affirm without further discussion.

Affirmed in part; dismissed in part.

MORRIS and BADALAMENTI, JJ, Concur.