text:
    ASSET RECOVERY GROUP, LLC, and Wayne Ginter, Petitioners, v. Lazaro CABRERA, et al., Respondents.
    No. 3D17-1517
    District Court of Appeal of Florida, Third District.
    Opinion filed November 22, 2017

      BeharBehar, and Jaclyn Ann Behar and Sharita R. Young (Sunrise), for petitioners.
    Law Offices of Stephen M. Cohen, P.A., and Stephen M. Cohen (Palm Beach Gardens), for respondent Lazaro Cabrera.
    Before ROTHENBERG, C.J., and LAGOA and SCALES, JJ.
   ROTHENBERG, C.J.

The defendants below, Asset Recovery Group, LLC, and Wayne Ginter (collectively, “the Receiver”), petition this Court for a writ of prohibition, challenging the trial court’s non-final order denying the Receiver’s motion to dismiss for lack of subject matter jurisdiction Counts IV and V of the amended complaint filed by Lazaro Cabrera (“Cabrera”). Because Cabrera was required to obtain leave of court from the trial court appointing the Receiver prior to filing his negligence action against the Receiver, we grant the petition for writ of prohibition,- quash the order under review, and remand with directions to enter an order granting the motion to dismiss without prejudice. - ■

I. FACTS AND PROCEEDINGS BELOW

The petition relates to two cases filed in the Miami-Dade Circuit Court. First, Case No. 11-38747 (Judicial Section CA05) is a commercial foreclosure action, during which the trial court (Judge Schumacher) appointed the Receiver and ordered, the Receiver to take control of the mortgaged property—an apartment complex located in Homestead, Florida (“the apartment complex”). Second, Case No. 16-31938 (Judicial Section CA06) is a premises liability action filed by Cabrera against the owners of the apartment complex and the Receiver for injuries sustained during a stabbing that occurred at the apartment complex on May 7, 2013, prior to the discharge of the Receiver in Case No. 11-38747. The facts in each case are as follows:

A. Case No. 11-3874.7—Commercial Foreclosure

In November 2011, U.S Century Bank filed a commercial foreclosure action against 1200 Homestead 72,.LLC (“1200 Homestead”). Thereafter, U.S. Century Bank filed an emergency motion to appoint a receiver, or in the alternative, a motion for sequestration of rent. In February 2012, the trial court (Judge Schumacher) granted the motion and appointed the Receiver. The order appointing the Receiver provides that the Receiver shall take possession, custody, and control of the mortgaged real property—the apartment complex. Paragraph 16 of the appointing order provides:

Judicial Immunity. The Receiver and the Receiver’s attorneys and agents: ... (iii) shall not be liable to anyone for their good faith compliance with the- duties and responsibilities as a receiver, or as attorney or agent for Receiver; and (iv) shall not be liable to anyone for their acts or omissions, except upon a finding by this Court that such acts or omissions were outside the scope of their duties or were grossly negligent,

Samjack Homestead, LLC (“Samjack”), was substituted as the plaintiff for U.S. Century Bank. In March 2013, a final judgment of foreclosure was entered in favor of Samjack and against defendant 1200 Homestead and others. In April 2013, the apartment complex was sold at the foreclosure sale to Samjack, and on July 9, 2013, the Receiver was discharged.

B. Case No. 16-31938—Premises-Lia-bility Action

On December 14, 2016, Cabrera filed a negligence (premises liability) action against Samjack and 1200 Homestead, asserting that on May 7, 2013, he was stabbed at the apartment complex while he was an invitee and that Samjack and 1200 Homestead were negligent by failing to maintain the premises in a reasonably safe condition by not keeping it free from third party criminal conduct. Two days after filing his complaint, Cabréra filed a motion to amend the complaint to add the Receiver as a defendant, explaining that the apartment complex was in receivership when Cabrera was stabbed. The trial, court granted the motion to amend, and thereafter, in January 2017, Cabrera filed an amended complaint adding the Receiver as a named defendant and asserting negligence claims against the Receiver (Count IV as to Asset Recovery Group, LLC, and Count V as to Wayne Ginter).

In March 2017, the Receiver filed a motion to dismiss Counts IV and V of the amended complaint for lack of subject matter jurisdiction, arguing that the trial court lacked subject matter jurisdiction because, prior to filing suit, Cabrera had not sought leave of court from the court that had appointed the Receiver, as required by Barton v. Barbour, 104 U.S. 126, 128, 26 L.Ed. 672 (1881), in which the Supreme Court of the United States held that “before suit is brought against a receiver]),] leave of the court by which he was appointed must be obtained.” (“Barton doctrine”).

Cabrera filed a memorandum in opposition, arguing that he was not required to seek leave from the appointing court based on two applicable exceptions to the Barton-doctrine. First, a receiver may be personally liable and not claim the protection of the court if he “steps outside the authority granted by the court or does things in his personal capacity and not as a receiver.” Murtha v. Steijskal, 232 So.2d 63, 66 (Fla. 4th DCA 1970). Second, Cabrera contended that he was not required to seek leave from the appointing court based on the “carrying on business” exception to the Barton doctrine, which is set forth in 28 U.S.C. § 959(a) and provides as follows:

(a) Trustees, receivers or managers of any property, including debtors in possession, may be sued, without leave of the court appointing them, with respect to ,any of their acts or transactions, in carrying on business .connected with such property. Such actions shall be subject to the general equity power of such court so far as the same may be necessary to the ends of justice, but this shall not deprive a litigant of his right, to trial by jury.

Following a hearing in Case No. 16-31938, the trial court (Judge Cohen) denied the Receiver’s motion to dismiss. Although the trial court’s order simply states that the motion to dismiss is denied, the transcript of the hearing indicates that it was denied based on Murtha and Patco Energy Express, LLC. v. Lambros, 353 Fed.Appx. 379 (11th Cir. 2009). The Receiver’s petition for writ of prohibition followed. See Floridian Cmty. Bank, Inc. v. Bloom, 25 So.3d 43 (Fla. 4th DCA 2009) (“Prohibition lies where a petitioner has demonstrated that a trial court lacks subject matter jurisdiction over a lawsuit.”).

II. ANALYSIS

In seeking the petition for writ of prohibition, the Receiver claims that the trial court erred by denying the motion to dismiss the amended complaint because the “carrying on business” exception to the Barton doctrine does not apply to receivers appointed by state courts, and therefore, Cabrera was required to seek leave from the appointing court prior to filing suit against the Receiver. We agree.

In Barton, Barbour was appointed as the receiver of a railroad company. Id. at 126-27. While Barbour was acting as receiver, Barton was injured when he was aboard a rajlroad ear. Id. at 127. Barton filed suit against the receiver, Barbour. Id at 126. The Supreme Court of the United States held that “before suit is brought against a repeiver[,] leave of the court by which he was appointed must be obtained.” Barton, 104 U.S. at 128.

The Barton doctrine has been recognized in Florida, see One S. Ocean Drive 2000, Ltd. v. One Ocean Boca, LLC, 182 So.3d 872 (Fla. 4th DCA 2016), and “applies equally whether a state court appointed receiver is sued in state court ... [or] in federal court.” Pateo Energy, 353 FedAppx. at 381. Further, even when the receiver has been discharged, as in the instant case, leave from the court that had appointed the receiver must still be obtained to file suit against the receiver. See Murtha, 232 So.2d at 55. The requesting party must demonstrate a prima facip case of liability before the appointing court may grant leave to file suit. Id.

An exception to the Barton doctrine— the “carrying on business” exception— which is currently set forth in section 959(a), was enacted six years after Barton. As the Third Circuit explained in In re VistaCare Group, LLC, 678 F.3d 218, 226 (3d Cir. 2012), it appears that section 959(a) was enacted in response to Justice Miller’s dissent in Barton. The Third Circuit explained as follows:

This provision, originally enacted in 1887, just six years after Barton, seems to have been in direct response to the concerns raised in Justice Miller’s dissent in Barton. Criticizing the scope of the Court’s holding, Justice Miller noted that the role of a receiver had expanded well beyond winding up the affairs of a defunct corporation and liquidating its assets, to in some situations, essentially running the company. Barton, 104 U.S. at 137-38 (Miller, J., dissenting). Justice Miller opined that it would be fundamentally unfair to require a party to obtain court permission to pursue claims against the receiver arising out of the receiver’s operation of the business. Id. at 138. Such a system would render the everyday operations of the corporation “exemptU from the operation of common law” and deprive potential litigants of the right “to have their complaints tried by [a] jury or by the ordinary courts of justice.” Id. Rather, a party’s only remedy against the corporation would be in “the hands of ... the court which appointed [the receiver].” Id.

(footnotes omitted; alterations in In re VistaCare Group); see also Fin. Indus. Ass’n v. Sec. & Exch. Comm’n, 2013 WL 11327681 (M.D. Fla. 2013) (explaining that the “‘carrying on business’ exception in section § 959(a) is intended to permit actions redressing torts committed in furtherance of the debtor’s business, such as the common situation of a negligence claim in a slip and fall case where a bankruptcy trustee, for example, conducted a retail store”) (emphasis omitted); Carter v. Rodgers, 220 F.3d 1249, 1254 (11th Cir. 2000) (same).

As stated above, the trial court relied on the Eleventh Circuit’s opinion in Pateo Energy, which involved a state court appointed receiver who was sued in federal court. Lambros—the state court appointed receiver—moved to dismiss the federal lawsuit for lack of subject matter jurisdiction. Pateo Energy, 353 Fed.Appx. at 380-81. The district court dismissed the case, and Pateo Energy appealed to the Eleventh Circuit.

The Eleventh Circuit recognized that the Barton doctrine “applies equally whether a state court appointed receiver is sued in state court ... [or] in federal court.” Id. at 381. The Eleventh Circuit noted that Pateo Energy’s complaint did not allege that it sought leave of the state court to file suit against the receiver in federal court, and therefore, unless an exception to the Barton doctrine applies, the case was properly dismissed for lack of subject matter jurisdiction. The Eleventh Circuit acknowledged the “carrying on business” exception set forth in section 959(a), and explained as follows:

This exception contemplates actions redressing torts committed in furtherance of the debtor’s business. For example, if a customer of a gas station operated by a receiver slips and falls while- shopping and alleges the fall was caused by negligence attributable to the receiver, the customer could bring suit against the receiver without first seeking permission from the appointing court.

Id. at 381 (citations and quotation marks omitted). The Eleventh Circuit found that section 959(a) did not apply because “Pat-co’s allegations arise from liquidation of gas station assets, not the operation of the gas stations.” Id. Thus, thp Eleventh Circuit affirmed the dismissal of the complaint filed against the state court appointed receiver. The Eleventh Circuit, however, did not explicitly address whether section 959(a) applies 'to state court appointed receivers.

This issue, however, was explicitly addressed by a federal district court in Minnesota in Republic Bank of Chicago v. Lighthouse Management, 829 F.Supp.2d 766 (D. Minn. 2010), approximately seven months after Pateo Energy was issued. In Republic Bank, the court held:

Section 959(a) applies to receivers appointed by federal courts. See S.E.C. v. Lincoln Thrift Ass’n, 557 F.2d 1274, 1277 n.1 (9th Cir.1977) (“[I]t has been held that, absent statutory authorization, a federal receiver cannot be sued without leave of the court which appointed him.”). Republic cites no authority in support of its argument that § 959(a) applies to receivers appointed by state courts, and the Court determines that it does not. Section 959(a) does not permit maintenance of this action against Lighthouse because Lighthouse was appointed by a state court,

(emphasis added). Following Republic Bank, other courts have similarly held that section 959(a) applies only to receivers appointed by federal courts, not state courts. See Freeman v. Cty. of Orange, 2014 WL 12668679 (C.D. Cal. 2014) (concluding that 28 U.S.C. § 959(a) “has no application to a receiver appointed by a state court,” and therefore, the Bartondoctrine was applicable to the plaintiffs claims); In re Jefferson County, Alabama, 484 B.R. 427, 456-458 (Bankr. N.D. Ala. 2012); Republic Bank of Chi. v. Lighthouse Mgmt. Grp., Inc., 829 F.Supp.2d 766 (D. Minn. 2010) (holding that section 959(a) only applies to receivers appointed by federal courts, not state courts).

Based bn the above cited cases, we conclude that section 28 U.S.C. § 959(a) is not applicable to receivers appointed by state courts. In the instant case, as the Receiver was appointed by a state court, the exception to the Barton doctrine, 28 U.S.C. § 959(a), is not applicable. Therefore, pursuant to Barton, prior to filing suit, Cabrera was required to seek leave of court from the court that appointed the Receiver. Thus, we grant the petition for writ of prohibition, quash the order under review, and remand with instructions for the trial court in Case No. 16-31938 to enter an order granting the Receiver’s motion to dismiss counts IV and V of the amended complaint without prejudice to allow Cabrera to move to amend his complaint in an attempt to sufficiently allege that the acts or the omissions of the Receiver were outside the authority granted to him by the appointing court, or to seek leave to file the negligence action from the court that appointed the Receiver. Considine v. Murphy, 297 Ga. 164, 773 S.E.2d 176, 179 (2015) (“In states like Georgia that treat the rule [set forth in Barton] as jurisdictional, the pri- or-leave requirement applies even to a separate lawsuit filed in the same court that appointed the receiver.”).

Petition granted; order quashed; • remanded with instructions.

      . Counts IV and V asserted claims for negligence. Count IV was against Asset Recovery Group, LLC, and Count V was against Wayne Ginter.

      . The Receiver filed a petition for writ of certiorari, or in the alternative, a petition for writ of prohibition. Without further discussion, we dismiss the petition for writ of certio-rari. See Stockinger v, Zeilberger, 152 So.3d 71, 73 (Fla. 3d DCA 2014) (“The establishment of irreparable harm is a condition precedent to invoking certiorari jurisdiction.”).

      . Our review of the amended complaint reflects that it does not contain any allegations that the Receiver had "step[ped] outside the authority granted by the court or [did] things in his personal capacity and not as a receiver.” Accordingly, without further discussion, we conclude that the exception set forth in Murtha is inapplicable to the instant case.


source: Caselaw Access Project

author: SALTER, J.

license: Public Domain

text:
    Christophe VUILLERMIN, etc., Appellant, v. MITSUBISHI ELECTRIC EUROPE BV, Appellee.
    No. 3D17-672
    District Court of Appeal of Florida, Third District.
    Opinion filed November 22, 2017

      Joel M. Aresty. (Tierra Verde), for appellant.
    EPGD Attorneys at Law and Oscar A. Gomez, for appellee.
    Before ROTHENBERG, C.J., and SALTER and FERNANDEZ, JJ.
   SALTER, J.

Christophe Vuillermin, a/k/a “Andre Martin,” a/k/a “John A. Smith,” appeals two orders granting recognition and enforcement of a foreign (French) money judgment against him pursuant to Florida’s Uniform Out-of-country Foreign Money-Judgment Act,” sections 55.601-.607, Florida Statutes (2017) (the “Act”). The creditor seeking recognition and enforcement of the French judgment against Vuil-lermin is the appellee, Mitsubishi Electric Europe B.V. (“Mitsubishi”).

Vuillermin, a French citizen, was charged with, and' convicted of, multiple counts of criminal fraud in France. The District Court of Paris, France, found Vuillermin guilty of financial crimes committed against Mitsubishi and other victims between 1995 and 1997 under the false name of “Andre Martin.” As a corollary to the criminal charges, and as permitted by the French procedural code, Mitsubishi sued Vuillermin for civil damages based on the fraud. In the criminal case, Vuillermin was Sentenced to prison and probation. He absconded after completing his prison term.

In the civil action, the French court entered a judgment against Vuillermin in 2006, in the amount of 237,438.11 Euros. Mitsubishi then began garnishment proceedings in France, Vuillermin objected to the garnishment solely on the grounds that he was not given notice of the rendition of the 2006 judgment. Vuillermin did not assert lack- of personal service. The French court upheld the validity of the judgment and the garnishment, finding that Vuiller-min had fled the jurisdiction to avoid prosecution and ,had not-provided a current, valid address for notice. Under French procedure, this also supported the judg-ment without further personal service. Vuillermin appealed the garnishment, but the French court of appeals rejected his objections and affirmed the garnishment judgment.

In 2013, Mitsubishi began proceedings to domesticate the French judgment'in the Miami-Dade-Circuit Court, filing the affidavit and following the procedure specified in the Act. Vuillermin objected and argued that he was -not personally served with process in ‘ France, making the French judgment unenforceable. Mitsubishi’s .response to the objections appended the documents in the French proceedings. The objections were set for a hearing, at which Vuillermin’s attorney did' not appear. Mitsubishi styled the next notice as a non-evidentiary, show cause hearing. Vuiller-min did not object or serve a ■written.request for an evidentiary hearing. After the hearing, the Florida court denied Vuiller-min’s motion for new trial and for rehearing. This appeal followed;

Analysis

The French judgment meets the criteria for recognition under section 55.604 of the Act. Contrary to Vuillermin’s argument, the foreign judgment does not fall within any of the limited and enumerated grounds for non-recognition specified in section 55.605 of the Act. Vuillermin may not avoid the foreign judgment based on lack of personal service; he failed to raise the issue initially in the foreign court of competent jurisdiction, and the foreign court authorized, garnishment of the judgment in that jurisdiction despite his (unsuccessful) appearance to object to such enforcement. Moreover, a French judgment need not be refused recognition because it was based on a default. See Chabert v. Bacquie, 694 So.2d 805, 815 (Fla. 4th DCA 1997).

Vuillermin’s reference to his open and obvious residence in Florida does not alter his status in France as a French national who absconded from the jurisdiction. The record is devoid of any proffer by Vuiller-min of a pleading seeking to vacate the French court’s findings on that point, or establishing any basis under the Act for non-recognition.

Affirmed.

      . A Florida circuit court order of March 10, 2017, granted recognition and enforcement with respect to a French money judgment in favor of the appellee issued in May 2006. An order entered by the same court two weeks later denied Mr, Vuillermin’s "Amended Motion for New Trial and Rehearing and Amendments of Judgment and for Relief from Judgment, Decree, or Order re Order Granting Enforcement of Judgment and Overruling Respondent’s Objections to Recognition.”

      . Under the French procedural rules, that argument was not available to him because he had fled the jurisdiction.


author: LOGUE, J.

text:
    Jeffrey NELSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-314
    District Court of Appeal of Florida, Third District.
    Opinion filed November 22, 2017
    Jeffrey Nelson, in proper person.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before SALTER, EMAS, and LOGUE, JJ.
   LOGUE, J.

Appellant seeks review of a trial court order that attempted, but failed, to completely conform a written sentence to the oral sentence.

After the Department of Corrections brought to the attention of the trial court a discrepancy between the oral pronouncement of Appellant’s sentences and the written sentencing orders, the trial court attempted to correct the discrepancy. See Scott v. State, 109 So.3d 866, 866 (Fla. 3d DCA 2013) (“The oral pronouncement of sentence prevails over a subsequent and conflicting written sentencing order.”); Wright v. State, 98 So.3d 1215, 1216 (Fla. 3d DCA 2012) (“[A]ny discrepancy between the oral pronouncement and the written sentence requires the written sentence to be corrected to conform to the court’s oral pronouncement.”). But as the State commendably acknowledges, the corrected sentencing orders under review do not remedy the conflict between the original written sentences and the oral pronouncements of Appellant’s sentences.

Reversed and remanded to conform written sentencing orders to oral pronouncements.


author: ROTHENBERG, C.J.

text:
    Kevin PAUL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2038
    District Court of Appeal of Florida, Third District.
    Opinion filed November 22, 2017
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and FERNANDEZ and LUCK, JJ.
   ROTHENBERG, C.J.

Kevin Paul (“the defendant”) appeals the trial court’s entry of an order denying his motion to dismiss for lack of jurisdiction, wherein the trial court determined that jurisdiction was justified based on the effect of the defendant’s conduct in Florida. Because we find that the State of Florida properly and reasonably exercised jurisdiction, we affirm.

BACKGROUND

The defendant, a crewmember aboard the Norwegian Pearl, attempted to commit a sexual battery against á fellow crew-member (“the victim”) while the Norwegian Pearl was in international waters. The defendant is a citizen of Grenada, and the victim is a citizen of Nicaragua. Neither the defendant nor the victim are Florida residents. The Norwegian Pearl flies under the Bahamian flag..Norwegian Cruise Line Holdings, Ltd., owns the Norwegian Pearl and is a Bermudian company, but the company’s headquarters is in Miami, Florida. The Norwegian Pearl departed from Miami and returned to Miami, and nearly all of the revenue passengers embarked and disembarked in Miami.

After the attempted sexual battery was reported, the defendant was taken into custody by the ship’s Captain (master of the ship) and confined to the brig on the Norwegian Pearl until the ship returned to Miami, Upon its return to Miami, Miami-Dade law enforcement was contacted, and Miami-Dade police subsequently took the defendant into custody. The State of Florida, charged the defendant by information with battery, attempted sexual battery, and false imprisonment.

The defendant filed a motion to dismiss the charges brought by the State for lack of subject matter jurisdiction. The trial court denied the motion based on its determination that Florida’s exercise of jurisdiction under section 910.006(3)(d), Florida Statutes (2016), was appropriate and justified based on the effect of the defendant’s criminal conduct in Florida. Thereafter, the defendant pled guilty to one count of attempted sexual battery without serious personal injury, reserving his right to appeal the order denying his motion to dismiss. The defendant’s appeal followed.

ANALYSIS

Whether a court has subject matter jurisdiction is a question of law, which we review de novo. Mobley v. State, 197 So.3d 572, 574 (Fla. 4th DCA 2016); Nissen v. Cortez Moreno, 10 So.3d 1110, 1111 (Fla. 3d DCA 2009).

Pursuant to section 910.006(3)(d), Florida has criminal jurisdiction over acts taking place on board a ship outside pf Florida’s territory where “[t]he act or omission occurs during a voyage on which over half of the revenue passengers on board the ship originally embarked and plan to finally disembark in this state, without regard to intermediate stopovers.” In the instant case, it is undisputed that over half of the Norwegian Pearl’s revenue passengers embarked from and disembarked in' Miami, Florida. In fact, 2,885 of the 2,888 revenue passengers aboard the Norwegian Pearl embarked and disembarked in Miami. Therefore, it is clear that section 910.006(3)(d) extends jurisdiction over the defendant’s conduct.

Although the defendant concedes as much, the defendant contends that Florida’s exercise of jurisdiction under this statute is nevertheless unconstitutional as applied to the defendant because the specific exercise of jurisdiction in this case falls outside' of Florida’s traditional police powers. On the other hand', the State contends that the exercise of jurisdiction in this case does fall within Florida’s traditional police powers pursuant to the “effects doctrine,” which refers to a state’s sovereign authority to punish a criminal act occurring outside of the territory of the state if the act has a significant effect within the state. See State v. Stepansky, 761 So.2d 1027, 1035-36 (Fla. 2000) (stating that an extraterritorial exercise of criminal jurisdiction may fall within Florida’s traditional police powers pursuant to the “effects doctrine” so long as it (1) “does not conflict with federal law” and (2) “is a reasonable application of the effects doctrine”).

Thus, the specific and narrow issue in this appeal is whether the effects doctrine was reasonably applied in this ease. The defendant also concedes that if a revenue passenger was involved in the crime, then Florida would have jurisdiction pursuant to the effects doctrine because the criminal conduct could, if left unprosecuted, affect Florida’s cruise-reliant tourism economy. The defendant’s argument in this appeal is that it is unreasonable to conclude that his criminal conduct in international waters will have a significant effect on Florida’s tourism industry because the crime .involved only foreign crewmembers, which the defendant contends does not involve or pose a threat to revenue passengers. In other words, the defendant contends that even if a sexual assault between crewmem-bers were to go unprosecuted, Florida’s tourism economy would not be significantly affected. We reject the defendant’s argument because we find the distinction between working passengers and revenue passengers on board cruise ships to be entirely without merit. '

Both the Florida Supreme ■ Court and the Florida Legislature have recognized Florida’s interest in protecting all persons who travel on cruise ships departing from and returning to Florida. The Legislature has not limited its intent to revenue passengers. See §§ 910.006(l)(a-b) (stating that “[t]he State of Florida is a major center for international travel and trade by sea,” and that “[tjhe state has an interest in ensuring the protection of persons traveling to or from Florida by sea”); Stepansky, 761 So.2d at 1036 (citing United States v. Roberts, 1 F.Supp.2d 601, 607-08 (E.D. La. 1998) (emphasis added); United States v. Pizdrint, 983 F.Supp. 1110, 1112-13 (M.D. Fla. 1997)). As the Florida Supreme ‘ Court specifically noted in Stepansky, “Florida’s tourism industry could be significantly affected if crimes that occur on board cruise ships where a majority of the fare-paying passengers embark and disembark in Florida were to go unprosecuted.” Stepansky, 761 So.2d at 1036. The Florida Supreme Court did not limit its holding to the status of those involved in the criminal incident. Indeed, the defendant has not pointed to any case in Florida that distinguishes ' between crewmembers and passengers for the purpose of determining whether Florida may exercise jurisdiction. The threat that un-prosecuted cruise-ship crimes pose to Florida’s tourism industry is not somehow lessened by the fortuitous fact that the defendant chose to attack a fellow crewmem-ber (working passenger) instead of a revenue passenger. Accordingly, we find, based on the facts of this case, that the effects doctrine is a reasonable and proper basis for exercising jurisdiction in Florida.

CONCLUSION

In short, nothing in the record suggests that the application of the effects doctrine would be unreasonable in this case. Accordingly, because Florida has the sovereign authority to exercise criminal jurisdiction based on section 910.006(3)(d) and the effects doctrine, we conclude that the trial court properly denied the defendant’s -motion to dismiss.

Affirmed.

      . The defendant does not suggest that there is a conflict between Florida law and federal law, and he'has expressly waived any preemption arguments on appeal. ■

      . We additionally noté that/ contrary to the defendant's arguments, there are no comity concerns in this case. Although the legislature has made it clear in section 910.006(5)(a)(l) that ''[t]his section is not intended to assert priority over or otherwise interfere with the exercise of criminal jurisdiction by the United States, the flag state, or the state in whose territory an act or omission occurs," this provision is not even implicated in this case as there is no evidence that any other state has attempted' to exercise jurisdiction' over the defendant's conduct.


author: SCALES, J.

text:
    Cesar RUIZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1119
    District Court of Appeal of Florida, Third District.
    Opinion filed November 22, 2017
    Law Office of Daniel J. Tibbitt, P.A., and Daniel Tibbitt, for appellant.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before LAGOA, EMAS and SCALES, JJ.
   SCALES, J.

Cesar Ruiz appeals the trial court’s summary denial of his amended motion for postconviction relief, pursuant to Florida Rule of Criminal Procedure 3.850, which raised multiple claims of ineffective assistance of trial counsel. For the following reasons, we affirm the summary denial as to those claims that the defendant has elected not to challenge on this appeal, and reverse as to the remainder for further proceedings consistent with this opinion.

On May 28, 2015, Ruiz filed a timely rule 3.850 pro se motion alleging twenty-two separate grounds of ineffective assistance of trial counsel in conclusory fashion. The State filed a response. Ruiz thereafter retained private counsel, who, on December 10, 2015, filed an amended rule 3.850 motion that incorporated Ruiz’s prior pro se motion, but set forth the specific grounds as to why Ruiz was entitled to an eviden-tiary hearing on only certain of those claims—specifically, claims Three, Five, Six, Ten, Thirteen, Fourteen, Sixteen, Eighteen, Nineteen, Twenty, and Twenty-One. The amended motion also set forth two additional claims for ineffective assistance of counsel—ground A and ground B. The State filed an amended response that addressed grounds A and B, but which was otherwise identical to its previous response to Ruiz’s pro se motion. The State also attached those portions of the record that purportedly refuted certain, but not all, of these claims.

On April 15,2016, the trial court entered the subject order summarily denying Ruiz’s amended rule 3.850 motion, incorporating the State’s amended response and record attachments. In his brief on this appeal, Ruiz does not challenge the trial court’s summary denial of claims One, Two, Four, Seven, Eight, Nine, Eleven, Twelve, Fifteen, Seventeen and Twenty-Two that were initially raised in Ruiz’s pro se rule 3.850 motion, and that were incorporated, but not addressed, in his amended rule 3.580 motion. We therefore affirm the denial of these claims without discussion. See Prince v. State, 40 So.3d 11, 13 (Fla. 4th DCA 2010) (“In appeals from the summary denial of Rule 3.850 motions, the rules do not require briefs.... An appellant who presents no argument as to why a trial court’s ruling is incorrect on an issue has abandoned the issue—essentially conceding that denial was correct.”) (citation omitted).

As to the remaining claims alleging ineffective assistance of counsel—Three, Five, Six, Ten, Thirteen, Fourteen, Sixteen, Eighteen, Nineteen, Twenty, Twenty-One, and grounds A and B—because the trial court’s order did not specifically address any of these claims in a manner from which we can determine the lower court’s precise reason for denying each claim, we must reverse. See Runge v. State, 24 So.3d 768, 769 (Fla. 4th DCA 2009) (“[T]he trial court’s order did not address any of the claims raised with any degree of specificity.... As such, we cannot determine the precise grounds assigned by the trial court for its denial of the specific grounds in question.).,

We therefore: (i) affirm that portion of the trial court’s order summarily denying claims One, Two, Four, Seven, Eight, Nine, Eleven, Twelve, Fifteen, Seventeen and Twenty-Two of Ruiz’s amended rule 3.850 motion; (ii) reverse that portion of the trial court’s order summarily denying claims Three, Five, Six, Ten, Thirteen, Fourteen, Sixteen, Eighteen, Nineteen, Twenty, Twenty-One, and grounds A and B; and (iii) remand for the trial court to, with regard to each of the claims, either grant an evidentiary hearing, or set forth the specific basis for the denial of relief as to each claim attaching as necessary the portions of the record which conclusively show Ruiz is not entitled to relief.

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

      . The State suggests that this Court can nevertheless affirm because the order on review incorporated the State's amended response and certain portions of the record. We disagree. Aside from addressing two additional claims of ineffective assistance of counsel (grounds A and B), the State’s amended response to the amended rule 3.850 motion is a mirror image of its response to Ruiz’s prior pro se rule 3.850 motion. The amended response does not address any of the additional grounds raised in the amended rule 3.850 motion as to claims Three, Five, Six, Ten, Thirteen, Fourteen, Sixteen, Eighteen, Nineteen, Twenty and Twenty-One. The State's amended response therefore provides no clarity as to the trial court's reasons for summarily denying these claims.

      . We note from Ruiz's reply brief that Ruiz is not seeking a remand to further amend his already once-amended rule 3.850 motion.


author: EMAS, J.

text:
    Schmertz PIERRE-LOUIS Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-940
    District Court of Appeal of Florida, Third District.
    Opinion filed November 22, 2017.
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi,. Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and EMAS, JJ.
   EMAS, J.

Following a jury trial on the charge of second-degree murder, Schmertz Pierre-Louis, Jr. was convicted of manslaughter and sentenced to thirty years’ state prison followed by ten years’ probation.

On appeal, Pierre-Louis, Jr. asserts four claims of error during closing argument. We affirm; and write to address one of those claims.

Pierre-Louis, Jr. contends that, during closing' argument, the State improperly commented on his right not .to testify at trial. Appellant relies for this contention upon the following passage in the State’s rebuttal closing:

PROSECUTOR: [Defense counsel] says that paying to stay at a hotel is not against the law. Paying to change your clothes and put clothes on is not against the law. Dreadlocks are not against the law. Cutting your dreadlocks off is not against the law.
DEFENSE: Objection, Your Honor. Motion.
PROSECUTOR: Shooting somebody is. He is not on the stand because he paid for a hotel room.
DEFENSE: Objection. Motion.
COURT: Overruled.
(Emphasis added;)

A criminal accused has a constitutional right not to testify in his trial. U.S. Const., Amend. V; Art. I, § 9, Fla. Const.-Therefore, “any comment on, or which is fairly susceptible of being interpreted as referring to, a defendant’s failure to testify is error and is strongly discouraged.” State v. Marshall, 476 So.2d 150, 153 (Fla. 1985). See also Fla. R. Crim. P. 3.250 (entitled “Accused as Witness” and providing: “In all criminal prosecutions the.accused may choose to be sworn as a witness in the accused’s own behalf and shall in that case be subject to examination as other witnesses, but no accused person shall be compelled to give testimony against himself or herself, nor shall any prosecuting attorney be permitted before the jury or court to comment on the failure. of the accused to testify in his or her own behalf’).

However, a more expansive review of the transcript reveals that the prosecutor was not attempting to point out why the defendant was not “on the stand,” -but instead was arguing why the defendant was on trial. ■ ■

The defense, during its closing, argued that the State was improperly relying upon innocent conduct (e.g., changing his clothes and cutting his dreadlocks) to prove its ease. The defense argued that this conduct was not illegal and should not be relied upon as evidence of guilt. The State in its rebuttal was responding to this defense argument. Here is a more complete excerpt of the State’s rebuttal argument:

PROSECUTOR: [Defense counsel] says that paying to stay at a hotel is not against the law. Paying to change your clothes and put clothes on is not against the law. Dreadlocks are not against the law. Cutting your dreadlocks off is not against the law.
DEFENSE: Objection, Your Honor. Motion.
PROSECUTOR: Shooting somebody is. He is not on the stand because he paid for a hotel room.
DEFENSE: Objection. Motion.
COURT: Overruled.
PROSECUTOR: He is not sitting here as a defendant because he paid for a hotel room. He is not sitting here before you because he changed his clothes. He’s sitting here before, you because he shot and killed [the victim],
(Emphasis added.)

Even if the trial court erred in overruling the initial objection, we conclude that such error was nevertheless rendered harmless by the State’s immediate corrective action, telling the jury that the defendant was not “sitting here” because of innocent conduct, but rather was “sitting here” because of the act in shooting and killing the victim. Under these circumstances, the prosecutor’s isolated slip • of the tongue, followed by an immediate correction, was not fairly susceptible of being interpreted by the jury as a comment on the defendant’s failure to testify. We therefore conclude that any error in overruling the initial objection was harmless beyond a reasonable doubt. State v. DiGuiho, 491 So.2d 1129 (Fla. 1986).

Affirmed.

      . We affirm as to the remaining three claims (improper bolstering of a witness, misstatement of the evidence, and argument as to consciousness of guilt) without further discussion.

      . We note that the statement, "[h]e .is not on the stand because he paid for a hotel room,” does not even make sense, and the only reasonable conclusion, under the circumstances and in light- of the prosecutor’s immediate correction, is that the prosecutor simply mis-. spoke and intended to say "[h]e is not on trial because he paid for a hotel room.” The trial court reached this very conclusion in denying the defense's motion for mistrial following the conclusion of the closing arguments.


text:
    PEREZ-GURRI CORPORATION, etc., Appellant, v. Don MCLEOD, et al., Appellees.
    No. 3D15-2591
    District Court of Appeal of Florida, Third District.
    Opinion filed November 22, 2017.
    GPG Law, and Christopher J. Perez-Gurri (Fort Lauderdale); Samson Appellate Law, and Daniel M. Samson, for appellant.
    Quintairos, Prieto, Wood & Boyer, P.A., and Thomas A. Valdez and Karen M. Shi-monsky (Tampa), for appellee M2G2 Architects, LLC.
    Before LOGUE, SCALES, and LUCK, JJ.
   LOGUE, J.

Perez-Gurri Corporation (the General Contractor) appeals a trial court order dismissing its action against defendants Engineering Design Associates, Inc., Mitchell Stewart, and Robert Salsbury (the EDA Defendants). We reverse. The General Contractor is not contractually barred from bringing a delay damages claim against these defendants and the General Contractor should be allowed an opportunity to amend its complaint to address the trial court’s added ruling—made without notice to the parties—that the complaint did not meet minimum pleading standards against these defendants.

The General Contractor is a Florida construction company that successfully bid on, and became the general contractor for, a City of Miami renovation project for the Caribbean Marketplace in Little Haiti. The City’s prime consultant on the project subcontracted with an architect who, in turn, subcontracted with the EDA Defendants to prepare mechanical, electrical, and plumbing design services. When construction on the renovation project was delayed, the General Contractor sued the EDA Defendants.

In its fourth amended complaint, the General Contractor alleged that the delay was caused by the EDA Defendants’ professional malpractice in the preparation of the design documents for the renovation project. The EDA Defendants moved to dismiss the complaint, arguing in part that a “No Damages for Delay” clause in the contract between the General Contractor and the City of Miami insulated the EDA Defendants from liability.

In October 2015, the trial court entered a nonfinal order granting the EDA Defendants’ motion to dismiss based on the “No Damages for Delay” clause in the contract between the General Contractor and the City. The General Contractor moved for entry of final judgment so it could challenge on appeal the trial court’s interpretation of the General Contractor-City contract. The trial court indicated that in order for it to enter a final dismissal with prejudice, the General Contractor would have to “affirmatively state that [it] cannot embrace another theory because it has to be clear that the Court is allowing [it] leave to amend.” The General Contractor thereafter gave formal notice that it was not going to amend its complaint as to the claims brought against the EDA Defendants. It stated, “[i]n light of this Court’s findings of fact and conclusions of law, including those that relate to the contract, Plaintiff believes that any further amendment would be futile.”

The trial court entered its final judgment of dismissal in February 2016. However, in addition to its prior ruling that the General Contractor’s claims were precluded by the “No Damages for Delay” clause, the trial court added a new basis for dismissal—that the General Contractor failed to meet minimum pleading requirements. This appeal followed.

We reverse and remand for two reasons. First, for the reasons explained in the companion case of Perez-Gurri Corp. v. McLeod, No. 3D15-2590, — So.3d—, 2017 WL 5616924 (Fla. 3d DCA Nov. 22, 2017), the “No Damages for Delay” clause in the contract between the General Contractor and the City insulates only the City from liability for delay damages.

Second, we conclude it was error to add an alternate basis for dismissal not raised by the parties—a pleading deficiency— without first giving the General Contractor notice of this new ground and an opportunity to amend its complaint. The .record shows that the General Contractor’s statement that it would not amend its complaint was predicated solely on its effort to appeal the trial court’s dispositive ruling that the delay damages clause protected the EDA Defendants. Prior to making that statement, the General Contractor had no notice that the trial court was going to dismiss its case on the alternative basis that the pleadings were insufficient. Accordingly, we reverse and remand for the trial court to provide the General Contractor an opportunity to amend its complaint against the EDA Defendants.

Reversed and remanded.


author: LINDSEY, J.

text:
    Alvaro MARTINEZ, Jr., M.D., Appellant, v. GOLISTING.COM, INC., d/b/a Palm Beach Premier Real Estate, et al., Appellees.
    No. 3D16-1906
    District Court of Appeal of Florida, Third District.
    Opinion filed November 22, 2017

      Barry S. Franklin & Associates, P.A., arid Barry S. Franklin, for appellant;
    Padula Bennardo Levine, LLP, and Stephen J. Padula (Boca Raton), and Joshua S. Widlansky (Boca Raton), for appellee Golisting.com, Inc.
    Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
   LINDSEY, J.

A former husband appeals an order finding a continuing writ of garnishment filed to collect on a final judgment against his former wife for attorney’s fees incurred in post-dissolution litigation void ab initio. We agree with the trial court’s finding and, for the reasons set forth below, affirm.

The marriage between Alvaro Martinez, Jr. (“former husband”) and Gia Martinez (“former wife”) was dissolved in 2000. For almost a decade thereafter, the parties continued to remain embroiled in contentious litigation over issues including child custody and time sharing arrangements, parental responsibility and decision-making authority, health care, and school registration. In May. of 2010, the trial court, having found the former husband entitled to attorney’s fees incurred in litigating these issues, entered a final money judgment in the amount of $37,081.00 plus statutory post-judgment interest accruing from April 21, 2010, the date of the court’s order awarding post-judgment attorney’s fees.

Three years later, in furtherance of the former husband’s efforts to collect on this final judgment, a continuing writ of garnishment against salary or wages (“continuing writ”) was entered against the former wife’s employer, Golisting.com, Inc. (“Garnishee”). The Garnishee filed an answer stating it employs the former wife.at an annual salary of $30,000.00 and acknowledging that, in an abundance of caution, $453.86 of her wages per month are subject tp garnishment. The former husband then filed a reply denying that the former wife was a mere salaried employee and stating that her pay structure was changed solely to minimize his collection efforts. Thereafter, the Garnishee filed an amended answer, noting an additional withholding. The former husband filed a reply to the amended answer, asserting that commissions and any other pecuniary benefits received by the former wife constituted wages subject to the continuing writ. The Garnishee kept the withholdings in a trust account. Three years after the continuing writ was issued, the Garnishee filed a motion entitled, Motion to Dismiss and/or Dissolve the Continuing Writ of Garnishment or, in the' Alternative, Notice of Dissolution of the Continuing Writ of Garnishment (“motion to dismiss and/or dissolve”): (1) seeking dissolution of the continuing writ; (2) awarding the Garnishee entitlement to its reasonable attorney’s fees and costs from the garnished funds; (3) allowing the Garnishee to return all remaining garnished funds (after fees and costs) to the former wife; and (4) setting a limited hearing on the amount of the Garnishee’s attorney’s fees and costs.

The former husband then filed a motion for summary judgment on the Garnishee’s amended answer asserting that the former husband is entitled to a continuing writ of garnishment until the amount in question is paid in full because the fees are in the nature of support and subject to the court’s full contempt power and seeking attorney’s fees pursuant to section 57.115, Florida Statutes (2016). The Garnishee filed a response in opposition, claiming that the judgment which forms the basis of garnishment is not in the “nature of support,” and thus a continuing writ of garnishment is not available to the former husband.

The former husband also filed a response in opposition to the Garnishee’s motion to dismiss and/or dissolve, contending that the Garnishee’s argument that the attorney’s fees debt is not in the nature of support is a red herring, but claiming that even so, the continuing writ was proper because the nature of the attorney’s fees debt is indisputably for purely child related fees. The former husband further contended that the Garnishee’s argument for attorney’s fees and costs fails because the Garnishee is not a purely “innocent stakeholder,” and is, in effect, the “alter ego” of the former wife. Lastly, the former husband asserted that the Garnishee incurred unauthorized fees and failed to follow the court’s order (the continuing writ) and remit any funds garnished from the former ■wife to the former husband.

After a final evidentiary hearing, the trial court entered an order granting the Garnishee’s motion to dismiss and/or dissolve, denying the former husband’s motion for summary judgment and finding that the continuing writ was void ab initio. This appeal follows.

We review de novo orders construing statutes such as those controlling garnishment. Marquez v. BlueCare Home Health Svcs., 116 So.3d 563, 565 (Fla. 3d DCA 2013); Arnold, Matheny & Eagan, P.A. v. First Am. Holdings, Inc., 982 So.2d 628, 632 (Fla. 2008) (emphasis added) (“Because the issue requires this Court to interpret the statutory provisions of Florida garnishment law, we apply a de novo standard of review.”). The standard of review of a summary judgment order is de novo and requires viewing the evidence in the light most favorable to the non-moving party. Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000).

Garnishment proceedings are governed by statute and must be strictly construed. Marquez, 116 So.3d at 565 (citing Williams v. Espirito Santo Bank of Fla., 656 So.2d 212, 213 (Fla. 3d DCA 1995)). “The cardinal rule of statutory construction is ‘that a statute should be construed so as to ascertain and give effect to the intention of the Legislature as expressed in the statute.’ ” Reeves v. State, 957 So.2d 625, 629 (Fla. 2007) (citing City of Tampa v. Thatcher Glass Corp., 445 So.2d 578, 579 (Fla. 1984)). Furthermore, “courts must construe statutes to give each word effect, without limiting the statute’s words or adding words not placed there by the legislature.” Miami Stage Lighting v. Budget Rent-A-Car Sys., 712 So.2d 1135, 1137 (Fla. 3d DCA 1998) (emphasis added) (citing, among others, Reyf v. Reyf, 620 So.2d 218 (Fla. 3d DCA 1993)). Florida courts are without power to construe an unambiguous statute in a way that would extend, modify, or limit its express terms or its reasonable and obvious implications because to do so would be an abrogation of legislative power. Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984); Akerman Senterfitt & Eidson, P.A. v. Value Seafood, Inc., 121 So.3d 83, 87 (Fla. 3d DCA 2013) (refusing to extend the express terms of the version of section 77.07(5) in effect in 2012 because to do so would be to read language into the statute that is simply not there).

This case originally began as a proceeding for dissolution of marriage. This appeal originates from a final judgment awarding attorney’s fees to the former husband which he incurred litigating post-dissolution issues related to custody, time sharing and parental responsibility. Before the court is whether a continuing writ of garnishment is available as a remedy to the former husband to collect on his final judgment for attorney’s fees. Chapter 61 of the Florida Statutes, entitled, “Dissolution of Marriage; Support; Time-sharing,” provides the statutory framework for resolution of this issue.

Section 61.12, Florida Statutes (2017) is titled, “Attachment or garnishment of amounts due for alimony or child support.” Section 61.12(1) provides for “garnishment to enforce and satisfy the orders and judgments of the courts of this state for alimony, suit money, or child support .... ” However, while subpart (1) of the statute addresses garnishment, oply subpart (2) authorizes a continuing writ of garnishment, “which is a remedy separate and distinct from a writ of garnishment.” Reyf, 620 So.2d at 219 (citing Vetrick v. Hollander, 566 So.2d 844 (Fla. 4th DCA 1990)). Section 61.12(2) provides as follows:

The provisions of chapter 77 or any other provision of law to the contrary notwithstanding, the court may issue a continuing writ of garnishment to an employer to enforce the order of the court for periodic payment of alimony or child support or both. The writ may provide that the salary of any person having a duty of support pursuant to such order be garnisheed on a periodic and continuing basis for so long as the court may determine or until otherwise ordered by the court or a court of competent jurisdiction in a further proceeding. Any disciplinary action against the employee by an employer to whom a writ is issued pursuant to this section solely because such writ is in effect constitutes a contempt of court, and the court may enter such order as it deems just and proper.

§ 61.12(2), Fla. Stat. (2017) (emphasis added). Thus, while subpart (2) states that a continuing writ of garnishment is available to collect alimony or child support or both, there is no reference to suit money or attorney’s fees in subpart (2). See Reyf, 620 So.2d at 219.

In Reyf, after a final judgment was entered against the former husband for- attorneys’ fees, the former wife sought to obtain a continuing writ of garnishment under section 61.12(1), Florida Statutes (1991), against the former husband’s salary to, satisfy the judgment. 620 So.2d at 219. In affirming the trial court’s refusal to issue the continuing writ, this Court stated: “We must interpret Section 61.12 as a whole, and in such a way as to give meaning to both of its constituent subparts.” Id. (citing State v. Hayles, 240 So.2d 1 (Fla. 1970); Greenhut Constr. Co. v. Henry A. Knott, Inc., 247 So.2d 517 (Fla. 1st DCA 1971)). As , such, ⅜ this Court “conclude[d] that a continuing writ of garnishment is not available under Section 61.12 to satisfy a final judgment for attorneys’ fees ancillary to a dissolution action.” Id. (emphasis in. original). Subsequently, in Sachs v, Sachs, this .Court reversed a trial court’s non-final order entered after' final judgment granting a continuing writ of garnishment against one former spouse’s wages solely for the collection of the other former spouse’s attorney’s- fees. 623 So.2d 640 (Fla. 3d DCA 1993) (per curiam) (reversing the order on authority of Reyf).

In conclusion, séctidri 61.12 limits the remedy of a continuing writ of garnishment to alimony or child support in proceedings under Chapter 61. Whether attorney’s fees were incurred litigating child related issues is irrelevant to the analysis because attorney’s fees are neither alimony nor child support. Here, the former husband sought a continuing writ of garnishment to satisfy a final judgment for attorney’s fees incurred in post-dissolution litigation. In order to prevail, .he would have to persuade this Court to recede from, and overturn, our decision in Reyf and extend the express language of section 61.12(2) to section 61.12(1). We decline to do so.

Affirmed.

      . The former wife received raises, which increased the monthly withholding by the Garnishee.

      . Upon the filing of this appeal, this Court, sua sponte, issued an order to show cause as to why this appeal should not be dismissed on the basis that the order on appeal is not final. In response, the former husband cited to the current version of Rule 9.130(a)(3)(C)(ii) which allows for review of non-final orders that determine "the right to immediate possession of property, including but not limited to orders that grant, modify, dissolve or refuse to grant, modify, or dissolve writs of replevin, garnishment, or attachment^]” Fla. R. App, P. 9.130(a)(3)(C)(ii). In 2008, Subdivision 9.130(a)(3)(C)(ii) was amended to address a conflict in the case law concerning whether orders granting, modifying, dissolving, or refusing to grant, modify, or dissolve garnishments are appealable under this subdivision. See Committee Notes to In re Amendments to the Fla. Rules of Appellate Procedure, 2 So.3d 89, 93 (Fla. 2008) (noting conflicting authorities in Ramseyer v, Williamson, 639 So.2d 205 (Fla. 5th DCA 1994) (garnishment order not appealable) and 5361 N. Dixie Highway v. Capital Bank, 658 So.2d 1037 (Fla. 4th DCA 1995) (permitting appeal from garnishment order and acknowledging conflict)); Fla. R. App. P. 9.130(a)(3)(C)(ii), committee notes (2008 amend.) (same). Accordingly, the rule to show cause is dismissed. See Higgins v. Ryan, 81 So.3d 588, 589 (Fla. 3d DCA 2012) (alteration in original) (dismissing appeal of a non-final order determining the respective percentages of ownership of three individuals in a corporate entity, but noting that Rule 9.130(a)(3)(C)(ii) allows for review of non-final orders that determine "the right to immediate possession of property, including but not limited to orders that grant, modify, dissolve or refuse to grant, modify, or dissolve writs of replevin, garnishment, or attachment[.]”).

      . In 1977, the existing section 61.12 was designated as subpart (1) and subpart (2) was added. Ch. 77-26, § 1, at 40, Laws of Fla. The preamble of that enactment, describing it as "[a]n act relating to child support; amending s. 61.12, Florida Statutes, to provide that a court may issue a continuing writ of gamishment to enforce the periodic payment of child support; providing an effective date,” expressly states the purpose of the amendment. Ch. 77-26, § 1, at 40, Laws of Fla. (emphasis added). In 1978, the Legislature added "alimony” to subpart (2). Ch. 78-63, § 1, at 86, Laws of Fla.

      . The current version of section 61.12 has not changed since 1991.


author: PER CURIAM.

text:
    Javarus Lamont MORGAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1848
    District Court of Appeal of Florida, Third District.
    Opinion filed November 29, 2017

      Carlos J. Martinez, Public Défendér, and Jonathan Greenberg, Assistant Public Defender j for appellant.
    Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellee.
    Before SUAREZ, SALTER and EMAS, JJ. .
   PER CURIAM.

This case returns to us from the Florida Supreme Court, which quashed our earlier decision affirming the trial court’s denial of Morgan’s motion to vacate illegal sentence, and remanded for reconsideration in light of the court’s subsequent decisions in Walton v. State, 208 So.3d 60 (Fla. 2016) and Williams v. State, 186 So.3d 989 (Fla. 2016); Morgan v. State, 42 Fla. L. Weekly S680, 2017 WL 2302326 (Fla. May 26, 2017).

Following remand, this court ordered supplemental briefing by the parties. Having considered those supplemental briefs, and in light of Walton and Williams, we reverse the trial court’s order denying Morgan’s motion under Florida Rule of Criminal Procedure 3.800(a), and remand this cause to the trial court to permit Morgan to file, within sixty days, an amended motion, for the purpose of affirmatively alleging and establishing “that the court records demonstrate on their face an entitlement to relief’ on the claim raised in Morgan’s original motion. See Fla. R. Crim. P. 3.800(a); Johnson v. State, 60 So.3d 1045 (Fla. 2011) (observing: “The State .has no obligation to refute a defendant’s claim raised under rule 3.800(a). .On the contrary, ‘the burden [is on] the petitioner to demonstrate an entitlement-to relief- on the face of the record’”) (quoting Williams v. State, 957 So.2d 600, 604 (Fla. 2007)).

The trial court shall thereafter hold such hearings as may be appropriate to render a final order upon Morgan’s amended motion.

Given this court’s prior order appointing counsel for Morgan on this appeal, the trial court shall appoint conflict-free counsel to represent Morgan during the proceedings on remand.

Reversed and remanded with instructions.

      . Morgan v. State, 137 So.3d 1075 (Fla. 3d DCA 2014).

      . In Williams, the Florida Supreme Court held (and reaffirmed in Walton) that generally, under the 10-20-Life statute, "consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode and a firearm was-merely possessed but not discharged," Williams, 186 So.3d at 993; Walton, 208 So.3d at 64.

      . Morgan entered a negotiated plea to the charges of, inter alia, armed sexual battery- and armed robbery. In .each of these counts, it was alleged that Morgan possessed a firearm during the commission of these offenses. For each of these offenses, the trial court imposed a ten-year mandatory minimum sentence pursuant to the 10-20-Life statute, (section 775.087(2)(a)l., Fla. Stat. (2001)). The trial court ordered that these two ten-year mandatory minimum sentences would run consecutively. Morgan’s specific claim is that these sentences are illegal and should have been imposed concurrently rather than consecutively, because the two offenses occurred in a single episode and no firearm was discharged.

      .We decline to reach the other issues raised in the supplemental briefs, and express no opinion on the merits of Morgan’s claim.


text:
    John JULES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1337
    District Court of Appeal of Florida, Third District.
    Opinion filed November 29, 2017.
    Geller Tamayo LLC and Pablo Tamayo, for appellant.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before EMAS, LOGUE and LINDSEY, JJ.
   EMAS, J.

INTRODUCTION

John Jules appeals from an order denying his motion for postconviction relief following an evidentiary hearing. Jules claimed in his motion that the trial court’s failure to advise him of possible immigration consequences rendered his plea involuntary, entitling him to withdraw his plea. For the reasons that follow, we hold that Jules’ claim is time-barred.

FACTS AND PROCEDURAL HISTORY

The relevant factual allegations, with one notable exception, are not in dispute:

Jules was a citizen of Haiti living in Miami, Florida. In 1993, Jules obtained legal permanent resident status.

In September 1994, Jules was arrested and was subsequently charged with seven crimes: three counts of attempted first-degree murder; one count of armed burglary; one count of burglary with an assault or battery; one count of armed robbery; and one count of strongarm robbery.

In April 1995, Jules entered a negotiated plea of guilty to all seven charges. In exchange for his guilty plea, he was sentenced to ten years’ state prison on each count, all sentences to run concurrently.

Jules served his sentence and was released from prison in January 2001. No immigration detainer or hold was placed on him preventing his release from prison following the completion of his sentence. In 2003 and 2014, Jules was approved for the renewal of his legal permanent resident status to remain in the United States. In 2008 and 2009 Jules traveled to and from the Bahamas and returned to the United States without incident. In June 2015, Jules traveled to Turks and Caicos and,, upon his return into the United States, he was detained by immigration officials and advised that his 1995 convictions subjected him to deportation. In August 2015, Jules was formally placed into removal proceedings.

In March 2017 Jules filed a motion for postconviction relief, alleging that, in 1995, the trial judge failed to advise Jules that his plea could subject him to possible immigration consequences. A review of the 1995 plea colloquy confirms the trial judge simply asked Jules “Are you a United States citizen?” to which Jules answered “Yes.” The trial judge did not thereafter advise Jules that, regardless of his assertion of United States citizenship, if he was not a United States citizen, the plea may subject him to deportation. Jules contends that this failure rendered his plea involuntary because, had he been properly advised of the potential immigration consequences of his plea, he would not have entered the plea' but would have insisted on going to trial.

The State contended below, and here on appeal, that Jules’ motion was untimely. Under rule 3.850(b), a defendant generally must file his 3.850 motion “no more than 2 years after the judgment and sentence become final. ...” Jules asserts that his motion is timely because he satisfied the “due diligence” exception to the two-yéar time limitation, which permits a defendant to file a 3.850 motion more than two years after the judgment and sentence are final if

the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence, and the claim is made within 2 years of the time the new facts were or could have been discovered with the exercise of due diligence. ...

Fla. R. Crim. P. 3.850(b)(1).

The State, asserted that Jules could not meet this exception because he failed to act with due diligence to ascertain the potential immigration .consequences of his plea. The trial court held an evidentiary hearing and denied the motion, concluding that the motion was time-barred.

ANALYSIS AND DISCUSSION

Jules asserts that he did not know the immigration consequences of his plea until June 2015, when he was detained at the airport by immigration authorities and advised that his prior convictions subjected him to deportation. We need not decide whether Jules in fact knew of the immigration consequences of his plea prior to June 2015 because, even if true, it is not alone sufficient to warrant relief. Jules must also establish that this information “could not have been ascertained by the exercise of due. diligence.” Fla. R. Crim. P. 3.850(b)(1).

In his motion, Jules assert that, in the exercise of due diligence, he could not have ascertained the possible immigration consequences of his plea prior to June 2015, However, Jules failed to allege, or establish at the hearing, any steps he took’ to show that he acted with due diligence or to otherwise establish why he could not have discovered the possible immigration consequences of his plea prior to Juñe 2015. Instead, Jules alleges that he was misled into believing that there were no immigration consequences to his plea, and points to the fact that no detainer was placed on him during his prison sentence; that his lawful permanent resident status had been renewed (though under a different name) on two separate occasions after his release from prison; and that in 2008 and 2009 he had traveled to the Bahamas and returned to the United States without being detained.

The State counters that, under State v. Green, 944 So.2d 208 (Fla. 2006), Jules had two years from the date of Green to file his motion for postconviction relief or, if filed outside that two-year window, to affirmatively plead and prove that, in the exercise of due diligence, he could not have ascertained during that two-year window the possible immigration consequences of his 1995 plea. In the absence of pleading and proving same, the State asserts, Jules’ motion was time-barred under Green. We agree.

In Peart v. State, 756 So.2d 42 (Fla. 2000), the Florida Supreme Court reaffirmed a trial court’s obligation to make the appropriate inquiry under rule 3.172(c), to ensure a defendant enters his plea knowingly and voluntarily. The Court also recognized that a defendant may, under certain circumstances, seek to withdraw. a plea as involuntary when the trial court’s failure to make the proper inquiry results in prejudice to the defendant. Id. at 45. The Court held that a defendant seeking to withdraw his plea under these circumstances must file a motion pursuant to rule 3.850 and that such motion must be filed within the two-year time established in rule 3.850(b)(1). Id. at 46.

Finally, the Court was called upon to determine when the two-year time imitation begins to run. The Peart Court held that that two-year period within which to file such a motion begins to run “when the defendant has or should have knowledge of the threat of deportation” based on a plea. Id. Further, the Court held, “in order for a defendant to establish a prima facie case for relief, the defendant must be threatened .with deportation resulting from the plea. Id. (Emphasis added.)

However, six year later, in Green, the Court receded from that portion of Peart, and established a new standard:

We recede from our holding in Peart that the two-year period for moving to withdraw a plea on grounds that the trial court failed to advise the defendant that the plea could result in deportation begins “when the defendant has or should have knowledge of the threat of deportation based on the.plea.” [Peart,] 756 So.2d at 46.
Instead, pursuant to Florida Rule of Criminal Procedure 3.850(b), the limitations period commences when the judgment and sentence become final unless the defendant could not,1 ¡with the exercise of due diligence, have ascertained within the two-year period that- he or she was subject to deportation. Further the defendant must establish only that he or she is subject to deportation because of the plea, not, as we held in Peart, that he or she has been specifically threatened’with deportation.
Green, 944 So.2d at 210 (emphasis added).

. .Additionally, and significantly.for our purposes, the Court in Green noted that, under this new standard, a defendant acts at his peril by simply waiting until the occurrence of some event that renders deportation imminent:, “It will not be enough to allege that the defendant learned of the possibility of deportation only upon the commencement of deportation proceedings after the two-year, limitations period has expired.” Id. at 218. Instead, due diligence “compels the defendant to allege and prove that affirmative steps were taken in an attempt to discover the effect of the plea on his or her residency status.” Id. (Emphasis added.)

In establishing the proper timeframe for cases (like Jules’) whose'conviction and sentence were already final at the time of the Greén decision, the Court noted:

Our holding in this cases reduces the time in which a defendant must bring a claim based on an alleged violation of rule 3.172(c)(8). Therefore, in the interest of fairness, defendants whose eases are already final will 'have two years from the date of this opinion in which to file a motion comporting with the standards adopted today-
id. at 219 (emphasis added).

Green was decided on October 26, 2006. Therefore, Jules had until October - 26, 2008, to file his motion. Because he did not file his motion until March 30, 2017, Jules was required to allege in his motion, and prove at a hearing, that, in the exercise of due diligence, he .could not have ascertained the .possible immigration consequences of his plea until June 2015, when he was detained by immigration authorities and advised he was subject to deportation. Green, 944 So.2d at 218; Canseco v. State, 52 So.3d 575 (Fla. 2010); State v. Ruiz, 30 So.3d 653 (Fla. 3d DCA 2010).

Jules filed his motion in March 30, 2017 and, ’ by his own concession, did so only after he was detained by immigration authorities (in June 2015), and only after receiving a Notice to Appear (in August 2015) for removal proceedings. Jules failed to plead or prove any affirmative steps taken by him prior to that time (in the exercise of due diligence) to discover the effect of his plea on his residency status. We agree with the trial court’s determination that Jules’ allegations that he was “misled” into believing that there were no immigration consequences from his plea (based upon the fact that no detainer was placed on him during his prison sentence; that his lawful permanent resident status had been renewed after his release from prison; and that in 2008 and 2009 he.returned from the Bahamas to the United States without being detained) were insufficient to satisfy the “due diligence” and “affirmative steps” requirement of rule 3.850(b)(1) and Green.

On appeal, Jules argues that, had he consulted an attorney during the relevant two-year window (i.e., .the 2006-2008 window established in Green), “the only valid advice” the attorney would have provided was that Jules “didn’t have a ripe postcon-viction claim until he was facing imminent deportation proceedings. ...” Jules relies for this proposition on Aparicio v. State, 893 So.2d 630 (Fla. 3d DCA 2005) (abrogated by Green, as recognized in State v. Gaston, 960 So.2d 803 (Fla. 3d DCA 2007)). That reliance, however, is misplaced. This court in Aparicio followed the standard established in Peart, and correctly stated the law as it existed at the time of our Aparicio decision in 2005. However, the Florida Supreme Court decision in Green (issued a year after Aparicio), receded from that portion of Peart, created a new standard, and imposed new obligations on the defendant. Stated more concretely, had Jules consulted an attorney within the two-year period following the 2006 decision in Green, that attorney would have advised that, pursuant to Green, Jules could not simply wait until he was facing the threat of deportation proceedings before filing his motion, but instead was required to take “affirmative steps ... in an attempt to discover the effect of the plea on his ... residency status.” Green, 944 So.2d at 218.

CONCLUSION

■ Jules did precisely what the Green Court (receding from its earlier decision in Peart) held was no longer adequate: he waited to file his motion until after he was facing imminent deportation proceedings. The trial court properly denied Jules’ motion for postconviction relief because the motion was filed after the expiration of the two-year time limitation established in Green, 944 So.2d at 218, and because Jules failed to establish that in the exercise of due diligence he could not have ascertained the possible immigration consequences of his plea within that two-year period. His motion was therefore time-barred.

Affirmed.

      ; That one notable exception' is Jules’ penultimate allegation that, in the exercise of due diligence, he could not have ascertained, pri- or to June of 2015, the immigration consequences resulting from his plea. This allegation is at the heart of the claim.

      . Appellant was charged, convicted and sentenced under the name John Jules, date of birth February 6, 1979. However, the record provided by appellant indicates that Jules’ permanent resident status was granted, and subsequently renewed, under the name of John Dieudonne Joseph, date of birth February 4, 1977. The notice of removal proceedings indicates that the name John Jules is an alias.

      . We note that in 1995, Florida Rule of Criminal Procedure 3.172(c)(8) provided that if a defendant:
      pleads guilty or nolo contendere the trial judge must inform him or her that, if he or she is not a United States citizen, the plea may subject him or her to deportation pursuant to the laws and regulations governing the United States Immigration and Naturalization Service. It shall not be necessary for the trial judge to inquire as to whether the defendant is a United States citizen, as this admonition shall be given to all defendants in all cases.
      Though not relevant to the instant case, we note that the Florida Supreme Court substantially amended this rule, effective January 1, 2016, expanding the trial court’s admonitions to a defendant regarding potential immigration-status consequences of a plea. See In re Amendments to the Florida Rules of Criminal Procedure, 188 So.3d 764 (Fla. 2015); Fla. R. Crim. P. 3.172(c)(8)(A)-(D).

      . If Jules in fact established that, in the exercise of due diligence, he could not have ascertained this information prior to June 2015, then his motion would be timely, because it' was filed on March 30, 2017, a date that falls "within 2 years of the time the new facts were or could have been discovered with the exercise of due diligence.” Fla. R, Crim. P. 3.850(b)(1).

      . Because Jules’ motion was procedurally barred, the trial court did not adjudicate .the actual merits of Jules’ claim: that had Jules known that the plea would have subjected him to deportation or removal from the United States, he would not have entered the plea but instead would have continued to plead not guilty and insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Hernandez v. State, 124 So.3d 757, 762 (Fla. 2012). Because we agree with the trial court's determination that his motion was time-barred, we likewise do not reach the merits of Jules' claim.


text:
    Eva Helen CANNIE, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0944
    District Court of Appeal of Florida, First District.
    Opinion filed December 6, 2017
    Rehearing Denied January 22, 2018
    Eva Helen Cannie, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed as unauthorized. See Logan v. State, 846 So.2d 472 (Fla. 2003). In light of the dismissal, the motion, filed on October 23,2017, is denied.

WOLF, LEWIS, and M.K. THOMAS, JJ., CONCUR.


text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. PARTNERS IN HEALTH CHIROPRACTIC CENTER, a/a/o Cecilia Yanique Gerlin, Respondent.
    No. 3D17-666
    District Court of Appeal of Florida, Third District.
    Opinion filed December 06, 2017.

      Michael J. Neimand, for petitioner.
    Law Offices of Marlene S. -Reiss, Esq., P.A., and Marlene S. Reiss, for respondent.
    Before ROTHENBERG, C.J., and FERNANDEZ and LUCK, JJ.
   ROTHENBERG, C.J.

United Automobile Insurance Company (“United Auto”) seeks second-tier certiora-ri review of a circuit court appellate decision affirming the county court’s order denying United Auto’s motion for entitlement to attorney’s fees filed pursuant to section 768.79, Florida Statutes (2013), and Florida Rule of Civil Procedure 1.442, following the plaintiff’s, Partners in Health Chiropractic Center (“Partners in Health”), failure to accept- United Auto’s nominal proposal for settlement. Because there is no showing that the circuit court, sitting in its appellate capacity, ■ failed to afford United Auto procedural due process in the appeal or failed to apply the correct law resulting in a miscarriage of justice, we dismiss the petition. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla. 2010).

FACTS

Cecilia Yanique Gerlin (“Gerlin”) was treated by Partners in Health in 2003, and thereafter, she assigned her rights to PIP benefits under her automobile insurance policy issued by United Auto to Partners in Health. Partners in Health submitted bills for Gerlin’s treatment to United Auto. After United Auto denied the claim, Partners in Health filed suit against United Auto in the Miami-Dade county court, asserting a claim for breach of contract for failing to pay the PIP benefits due under Gerlin’s policy with United Auto. United Auto answered the complaint and denied that the treatment was reasonable, related to the automobile accident Gerlin was involved in on- June 19, 2003, or necessary.

While the case was pending, United Auto submitted a nominal proposal for settlement to Partners in Health, which did not accept the offer. The case proceeded to trial in county court, and after the jury found that Partners in Health’s services to Gerlin were not related to the June 19, 2003 accident, United Auto filed a motion seeking an order finding that, it was entitled to its attorney’s fees pursuant to section 768.79 and rule 1.442. Partners in Health opposed United Auto’s motion arguing that the proposal for settlement was not made in good faith.

The county court conducted a hearing to determine whether United Auto’s nominal proposal for settlement prior to trial was a good faith offer. After conducting the hearing, the county court entered an order denying United Auto’s motion for entitlement to attorney’s fees based on the following four findings: (1) the extensive and protracted length of the litigation; (2) the prior rulings in favor of Partners in Health (during litigation a final judgment was initially issued in favor of Partners in Health, and Partners in Health was also awarded its fees. and costs, but those judgments were reversed on appeal prior to United Auto making its proposal for settlement); (3) United Auto had no reasonable expectation that its offer would be accepted; and (4) the record before the county court at the time of the entitlement hearing failed to show that United Auto had no exposure in the case when it made its proposal for settlement.

United Auto appealed the denial of its motion for entitlement to attorney’s fees to the circuit court, sitting in its appellate capacity. The circuit court appellate panel issued a detailed opinion rejecting the first three grounds cited by the county court for denying United Auto’s motion for entitlement to attorney’s fees, but affirmed the order on appeal nevertheless, based on the circuit court’s standard of review (abuse of discretion) and the absence of the trial transcript and certain medical records. B¿cause we conclude that the circuit court appellate panel applied the correct law and nothing in the record indicates that United Auto was not afforded due process, we dismiss the instant petition for lack of jurisdiction.

ANALYSIS

First, we note that the circuit court appellate panel. correctly reviewed the county court’s findings and order under the abuse of discretion standard of review. See State Farm Fla. Ins. Co. v. Laughlin-Alfonso, 118 So.3d 314, 315 (Fla. 3d DCA 2013) (holding that the abuse of discretion standard of review governs review of the trial court’s determination that a proposal for settlement was not made in good faith).

Second, the circuit court appellate panel also applied the correct law when it rejected the first three grounds relied oh by the county court. The fact that the litigation may have been protracted, resulting in extensive expenditure of resources, is not a valid basis for finding that a nominal proposal for settlement is a bad-faith offer. The issue is whether the defendant had a reasonable basis on which to make its offer. Peoples Gas Sys., Inc. v. Acme Gas Corp., 689 So.2d 292, 300 (Fla. 3d DCA 1997) (stating that “[t]he obligation of good faith ... merely insists that the offeror have some reasonable foundation on which to base an offer”) (quotation omitted). The fact that Partners in Health may have obtained favorable rulings by the county court earlier in the litigation is also of no import in this case because those rulings were reversed on appeal prior to United Auto’s proposal for settlement. Additionally, whether United Auto reasonably expected Partners in Health to accept its offer is irrelevant. The relevant consideration is whether United Auto fully intended to settle the case when it made its offer. Peoples Gas, 689 So.2d at 300-301 (stating that “the fact that Metrogas and Siegel Gas may have believed that Peoples Gas would reject their nominal offers is not determinative of the issue of good faith”) (citing Schmidt v. Fortner, 629 So.2d 1036, 1040 n.5 (Fla. 4th DCA 1993). In Schmidt, the Fourth District Court of Appeal held:

A mere belief that the figure offered or demanded will not be accepted, on the other hand, does not necessarily suggest to us either the absence of good faith or the presence of bad faith—at least where the offeror fully intends to conclude a settlement if the offer or demand is accepted as made, and the amount of the offer or demand is not so widely inconsistent with the known facts of the case as to suggest on its face the sole purpose of creating a right to fees if it is not accepted.

Schmidt, 629 So.2d at 1040 n.5.

Third, the circuit court appellate panel also applied the correct law when it relied on the long-standing principle that where factual issues exist as to whether the trial court abused its discretion in reaching its conclusion, and the question on appeal is whether its findings were supported by the record, the appellant must provide the reviewing court with an adequate record on appeal. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979). Although this Court might not necessarily agree with the circuit court appellate panel’s determination as to whether the record before it was adequate, this Court is not free to reweigh the adequacy of the record or the sufficiency of the evidence on second-tier certiorari review. See Far Niente, LLC v. City of Key West, 209 So.3d 43, 46 (Fla. 3d DCA 2016) (holding that “review is to become narrower, not broader, as the case moves to higher levels of appellate- review”; “[t]he issues presented for review are not to be reinvestigated, tried, and determined upon the merits generally”; and only “grievous errors” are subject to second-tier certiorari review) (citing Custer, 62 So.3d at 1092) (full citation, internal quotation, and emphasis omitted).

The final reason provided by the county court for rejecting United Auto’s motion for entitlement to attorney’s fees based on its proposal for settlement was that “the record before the Court at the time of the entitlement hearing failed to show that United Auto had no exposure in the case at the time the Proposal” was made. We conclude that the circuit court appellate panel correctly determined that this finding by the county court was also an incorrect application of the law. United Auto was not required to show that it had no exposure in the case at the time the proposal for settlement was made—it was only required to demonstrate that at the time of its offer, it possessed a reasonable basis to conclude that its exposure was nominal. See Isaias v. H.T. Hackney Co., 159 So.3d 1002, 1004-05 (Fla. 3d DCA 2015); Laughlin-Alfonso, 118 So.3d at 315 (“To determine whether State Farm’s settlement offer was justified, we consider whether the record demonstrates conclusively that, at the time [the offer] was made, [State Farm] ... had a reasonable basis ... to conclude that [its] exposure was nominal”) (internal citations omitted) (alterations in original); Event Servs. Am., Inc. v. Ragusa, 917 So.2d 882, 884 (Fla. 3d DCA 2005) (holding that a nominal offer should be stricken unless the offeror had a reasonable basis to conclude that its exposure was nominal).

In applying the correct standard on appellate review, the circuit court appellate panel noted that the determination of good faith regarding the offeror’s reasonable assessment of its exposure is a fact-intensive inquiry made on a case by case basis. See Fox v. McCaw Cellular Commc’ns of Fla., Inc., 745 So.2d 330, 333 (Fla. 4th DCA 1998) (“Whether an offer was made in bad faith involves a matter of discretion reposed in the trial judge to be determined from the facts and circumstances surrounding the offer.”). Wflien attempting to determine whether the county court abused its discretion after considering the facts and circumstances, the circuit court appellate panel noted that United Auto was relying on the testimony of Dr. Mer-rit, who conducted a peer review, and medical records purporting to show that Ger-lin’s injuries were work related, and thus, not related to the subject automobile accident. However, the circuit court appellate panel noted that Dr. Merrit’s peer review report was “ambiguous,” thus requiring review of his trial testimony. However, the trial transcript and the medical records allegedly reflecting that Gerlin’s injuries were not related to the automobile accident were not included in the record on appeal.

Thus, the circuit court appellate panel concluded that there was an insufficient record upon which it could evaluate the county court’s resolution of the factual issues and, in reliance upon Applegate, affirmed the order denying United Auto’s motion for entitlement to attorney’s fees pursuant to its proposal for settlement. Because the circuit court appellate panel has applied the correct law and the record does not demonstrate that United Auto was not afforded due process, we dismiss the petition for lack of jurisdiction.

Petition dismissed.


text:
    K.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-0184
    District Court of Appeal of Florida, Third District.
    Opinion filed December 6, 2017

      Caídos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Brian H. Zack, Assistant Attorney General, for appellee.
    Before FERNANDEZ, SCALES and LINDSEY, JJ.
   LINDSEY, J.

K.M., a juvenile, appeals an adjudication of delinquency for petit theft of retail merchandise. K.M. challenges the level of misdemeanor for which she was found delinquent as well as the juvenile .court’s imposition of a $65 court cost. We affirm the adjudication of delinquency for petit theft and reverse the juvenile court’s imposition of the additional court cost.

The State filed an amended petition for delinquency, charging K.M. with one count of petit theft against a retailer, a first-degree misdemeanor under section 812.014(2)(e), Florida Statutes (2016). See § 812.014(2)(e), Fla. Stat. (2016) (“[I]f the property stolen is valued at $100 or more, but less than $300, the offender commits petit theft of the first degree, punishable as a misdemeanor of the first degree. ... ”). Following a disposition hearing, the juvenile court denied KM.’s motion for judgment of dismissal and entered an order finding that K.M. had committed the offense of petit theft as charged, withholding adjudication and placing K.M. on probation. The juvenile court also entered a memorandum of costs, ordering K.M. to pay court costs, fines, and fees in the amount of $218, which included a $65 assessment for “[additional] court costs” under section 939.185(l)(a), Florida Statutes (2016). This timely appeal follows.

KM. raises two issues on appeal. First, KM. argues that the State’s sole proof of the value of the stolen merchandise is fin-admissible hearsay. Second, KM. argues that section 939.185(l)(a) authorizes the imposition of a $65 additional court cost only where a juvenile has been “adjudicated delinquent,” not where, as here, adjudication of delinquency is withheld.

We find no error by the trial court in admitting the testimony of the asset protection detective as to the contents of the price tags indicating the value of the merchandise, in this retail theft case, as this testimony did not constitute hearsay. See F.T. v. State, 146 So.3d 1270, 1271 (Fla. 3d DCA 2014) (concluding that the juvenile court did not err in permitting a loss prevention officer to testify, over objection, to the price contained on the price tags attached to merchandise stolen by the appellant and finding that this testimony was not hearsay in a retail theft case); Watson v. State, 415 So.2d 128 (Fla. 4th DCA 1982) (per curiam) (holding that the trial court did not err in allowing a store employee to testify as' to the contents of a price tag that was affixed to an item of merchandise on the day appellant was accused of stealing the merchandise and finding that this testimony did not constitute hearsay). As such, the juvenile court did not err in finding KM. delinquent for first-degree misdemeanor petit theft and we affirm on this issue.

As to KM.’s second issue on appeal, the juvenile court erred in imposing a $65 additional court cost under section 939.185(l)(a) where the juvenile court sustained the allegations in the juvenile delinquency petition, but adjudication of delinquency has been withheld. This Court has recently stated that “section 939,185(l)(a) of the Florida Statutes (2015) does not authorize a Florida county to adopt an ordinance imposing an additional $65 court cost where a juvenile court sustains the allegations in the juvenile delinquency petition, but adjudication of delinquency is withheld.” H.S. v. State, 229 So.3d 423, 2017 WL 4399240 (Fla. 3d DCA Oct. 4, 2017) (“The statute simply does not authorize the surcharge when, .as here, a juvenile is found to be delinquent, but adjudication is withheld.”). Accordingly, we reverse as to this issue and remand with directions that the $65 in additional court cost be stricken from KM.’s disposition.

Affirmed in part and reversed in part.

      . Subsequently, K.M. filed a motion to correct disposition error under Florida Rule of Juvenile Procedure 8.135(b)(2), challenging the imposition of the additional court cost, on the basis that the plain language of the statute, as well as- several cases decided by this Court, prohibited the juvenile court from imposing the additional court cost. K.M.'s motion was deemed denied when the juvenile court failed to file an order ruling on the motion within thirty days. See H.S. v. State, 229 So.3d 423, 2017 WL 4399240 (Fla. 3d DCA Oct. 4, 2017) (citing Fla. R. Juv. P. 8.135(b)(1)(B), (b)(2)(B)).

      . Section 939.185(l)(a), Florida Statutes (2016) mirrors section 939.185(l)(a>, Florida Statutes (2015).