author: SALTER, J.

text:
    Alain BRUGAL, Appellant/Cross-Appellee, v. The STATE of Florida, Appellee/Cross-Appellant.
    Nos. 3D15-637 & 3D15-733
    District Court of Appeal of Florida, Third District.
    Opinion filed March 22, 2017
    Rehearing Denied April 19, 2017

      Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, Miami, for appellant/cross-appellee.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, Tallahassee, for appellee/cross-appel-lant.
    Before LAGOA, SALTER and EMAS, JJ.
   SALTER, J.

In these consolidated appeals, defendant Alain Brugal appeals a final judgment of conviction and sentence for one count of lewd and lascivious battery, and for one count of lewd and lascivious molestation, of a victim under 16 years of age (Case No. 3D15-637). The State appeals the trial court’s post-verdict judgment of acquittal as to another six such counts (Case No. 3D15-733). For the reasons which follow, we affirm Brugal’s judgment of conviction on Counts 1 and 6 of the information and jury verdict; we reverse the trial court’s post-verdict judgment of acquittal as to Counts 2, 3, 4, 5, and 7; and we affirm the court’s post-verdict judgment of acquittal as to Count 8 on grounds other than those described in open court. We remand the case for the entry of an amended judgment and for resentencing.

I. Proceedings in the Trial Court

A. Information vs. Incidents

In December 2012, the State filed an information alleging that Brugal committed: five acts of lewd and lascivious battery upon victim A.D., a child over 12 but under 16 years of age, in violation of section 800.04, Florida Statutes (2012); and three acts of lewd and lascivious molestation of A.D., in violation of section 800,04(5)(c)2, Florida Statutes (2012). Each of the five lewd and lascivious battery counts alleged that the violation occurred between April 1, 2011, and May 31, 2011, but did not identify a specific date or dates unique to that count. Each of the three lewd and lascivious molestation counts alleged that the violation occurred between April 1, 2011, and April 30, 2011, but did not identify a specific date or dates unique to that count.

The defense did not move for a statement of particulars under Florida Rule of Criminal Procedure 3.140(n):

(n) Statement of Particulars. The court, on motion, shall order the prosecuting attorney to furnish a statement of particulars when the indictment or information on which the defendant is to be tried fails to inform the defendant of the particulars of the offense sufficiently to enable the defendant to prepare a defense. The statement of particulars shall specify as definitely as possible the place, date, and all other material facts of the crime charged that are specifically requested and are known to the prosecuting attorney, including the names of persons intended to be defrauded. Reasonable doubts concerning the construction of this rule shall be resolved in favor of the defendant.

B. Trial

At trial, the victim’s testimony described eight separate incidents, though not in the order of the counts in the information, in which Brugal (her stepfather at the time) allegedly committed the criminal acts. She did not tie each incident to a specific calendar date charged by the information, but she did recall unique circumstances that separately identified each incident in her memory, and she testified that each occurred on a separate day during the interval specified in the information.

The first incident (Count 1) occurred when the victim’s mother was out of town on a trip to Atlanta. The victim recalled that Brugal, after telling her what he intended to do and procuring condoms from a drugstore, forcibly engaged in penile-vaginal sex with her in the master bedroom of the family’s home. She testified that she did not tell her mother or report the incident to the police because Brugal told her that she had to “take it to the grave,” and she was afraid of him. She testified (over objection) that Brugal had a gun on the bedpost of the bed where he committed the first incident.

The second incident (Count 2) occurred a day after Brugal and the victim went to a restaurant. This time Brugal directed the victim to engage in penile-vaginal sex but he did not wear a condom. During that incident, he also had her perform oral sex on him. The third incident (Count 6) occurred “a couple of days after my mom came back,” the victim testified. While her mother was out of the house, Brugal performed oral sex on the victim until her younger sister knocked on the bedroom door.

This testimony, and the victim’s further testimony regarding the other five incidents, included sufficient details to prove a temporal break and discrete criminal acts during the chronological periods bracketed in the information. Count 8 requires additional consideration, however. Count 8 was the last of the three lewd and lascivious molestation claims. It was the sixth of the eight incidents she described. Her description of that incident was that Brugal forced her to perform oral sex on him, but the description omitted allegations that Brugal touched her “breasts, genitals, genital area, or buttocks, or the clothing covering them,” the definition of lewd and lascivious molestation, section 800.04(5)(a), as alleged in Count 8. The proof related to lewd and lascivious battery rather than the crime charged in the information.

The pertinent part of the jury instruction pertaining to lewd and lascivious molestation was approved by the defense, State, and court:

To prove the crime of Lewd or Lascivious Molestation, the State must prove the following three elements beyond a reasonable doubt:
1. A.D. was 12 years of age or older but less than 16 years of age.
2. ALAIN BRUGAL, in a lewd or lascivious manner, intentionally touched the breasts, genitals, genital area, buttocks, clothing covering the breasts, clothing covering the genitals, clothing covering the genital area, clothing covering the buttocks of A.D.
3. ALAIN BRUGAL was 18 years of age or older at the time of the offense.

This instruction omitted the alternative provision within section 800.04(5)(a), “or forces or entices a person under 16 years of age to so touch the perpetrator,” which would have conformed to the testimony regarding Count 8 and Brugal’s act of forcing the victim to touch her mouth to Brugal’s penis. That alternative provision within section 800.04(5)(a) was also omitted from the charge in Count 8 of the information.

The jury convicted Brugal on all eight counts.

C. The Judgment of Acquittal

Following the trial and jury verdict, the defense moved for a new trial and renewed its motion for a judgment of acquittal. The court denied the motion for a new trial. In the motion for a judgment of acquittal, the defense argued that double jeopardy barred the separately charged offenses because the charges within the information alleged identical conduct during an undifferentiated time period, and the jury’s verdict did not clearly predicate the convictions on distinct acts or criminal episodes. The trial court granted the motion for a judgment of acquittal on four of the five identically-worded counts in the information regarding lewd arid lascivious battery (Counts 2 through 5), and two of the three counts in the information regarding lewd and lascivious molestation (Counts 7 and 8 of the information). In doing so, the trial court relied upon this Court’s opinion in Manetta v. State, 81 So.3d 560, 562 (Fla. 3d DCA 2012). Manetta vacated a conviction for the second of two identically-worded counts in the charging information where neither the information nor the jury verdict form identified separate acts that might be the subject of separate judgments, and the alleged acts occurred on a single day.

II. Analysis

A. Appeal by Brugal (Case No. 3D15-637)

Brugal raises two issues in his appeal from the conviction and judgment. First, he argues that the defense’s timely objection to the victim’s testimony regarding Brugal’s gun on the bedpost (during the first episode) should have been granted, as that testimony was irrelevant and highly prejudicial. We review the trial court’s ruling on this evidentiary point for “a clear abuse of discretion.” Ray v. State, 755 So.2d 604, 610 (Fla. 2000). We find no abuse of discretion, as the testimony pertained directly to the victim’s subjective fear and her delay in disclosing the first criminal episode, and later episodes to her mother or law enforcement.

Brugal’s second point on appeal is that the written judgment of conviction on all eight counts (entered before the judgment of acquittal on six of those eight counts) must be remanded for correction to reflect convictions on counts 1 and 6 only. Our ruling on the State’s appeal, which follows, renders this issue moot in substantial part, as we are vacating the judgment of acquittal as to counts 2 through 5 and count 7.

B. Appeal by the State (Case No. 3D15-733)

The State’s appeal makes a single claim of error, asserting that the post-verdict motion for a judgment of acquittal was improperly granted as to counts 2 through 5 and as to counts 7 and 8. We review de novo the judgment of acquittal based on double jeopardy. Pizzo v. State, 945 So.2d 1203, 1206 (Fla. 2006).

Close consideration of Manetta and the eases cited in that opinion discloses that in each the charging document identified a single date and, arguably, a single criminal episode. In Manetta, the two counts were “identical in every respect,” including the allegatiori that each criminal act occurred on the same day. 81 So.3d at 562.

In Cabanela v. State, 871 So.2d 279 (Fla. 3d DCA 2004), cited in Manetta, four counts of lewd assault were alleged to have occurred on a single day. In a post-conviction motion, Cabanela argued that “his multiple sentences for four convictions violated double jeopardy where they all arose from one criminal episode.” Id. at 280. This Court agreed, holding that “double jeopardy considerations preclude multiple convictions and sentences for lewd and lascivious behavior which arise out of a single criminal episode where there is no significant spatial and/or temporal break in the episode. In the instant case, it is clear to us that all of the acts for which Cabanela was charged, convicted, and sentenced arose of a single criminal episode which the victim agreed occurred in a short period of time.” Id. at 282.

The analytic test, initially addressed by the Fourth District in Eaddy v. State, 789 So.2d 1098, 1095 (Fla. 4th DCA 2001), was quoted and relied upon by this Court in Cabanela, 871 So.2d at 281:

In determining what qualifies as a distinct act for purposes of deciding whether multiple acts can be charged in a single count, the spatial and temporal aspects of the multiple occurrences must be analyzed in order to determine whether the defendant had time to pause, reflect, and form a new criminal intent between the occurrences.

Returning to the present case, the evidence presented at trial (and reiterated by the prosecution in closing argument) established spatial and temporal distinctions among the criminal acts, identifying them by unique occurrences within a bracketed time span (not on the same, single day as in Manetta and Cabanela). This record included competent, substantial evidence that Brugal had sufficient time to pause, reflect, and form a new criminal intent between the occurrences.

C. Count 8

In response to the State’s appeal seeking reversal of the judgment of acquittal as to Count 8, Brugal argues that the trial court properly dismissed Count 8 on sufficiency of the evidence grounds. Brugal maintains, and following our review of the trial testimony we agree, that the prosecution established that Brugal touched the victim’s mouth, but not her “breast, genital, genital area, or buttocks, or the clothing covering the breasts, genitals, genital area, or buttocks” as required by section 800.04(5)(a) and the allegations in Count 8 of the information. We thus affirm the trial court’s judgment of acquittal as to Count 8.

III. Conclusion

We find no merit in Brugal’s arguments seeking dismissal of the other counts (as duplicative) or a new trial as the State’s appropriate remedy on appeal. We affirm the trial court’s enfry of the judgment of conviction as to Counts 1 and 6; we affirm the trial court’s entry of the judgment of acquittal as to Count 8; we reverse the judgment of acquittal as to Counts 2, 3, 4, 5, and 7, and reinstate the jury verdict and judgment of conviction as to those counts; and we reverse and remand the case for the entry of an amended judgment and resentencing in accordance with this opinion. The defendant shall be present at the resentencing.

Affirmed in part, reversed in part, and remanded for further proceedings.

      . The victim recalled additional separate incidents: one occurred during her menstrual period; other incidents on separate days because Brugal would not let her leave the house to see her boyfriend until she provided vaginal and oral sex; another because Brugal was watching pornography on a laptop computer when he summoned her; and another incident after she told her best friend.


source: Caselaw Access Project

author: WELLS, Judge.

license: Public Domain

text:
    Parrish KERNEY, Petitioner/Appellant, v. The STATE of Florida, Respondent/Appellee.
    No. 3D15-392 Consolidated: 3D13-2443
    District Court of Appeal of Florida, Third District.
    Opinion filed March 22, 2017.

      Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant Public Defender; Benjamin S. Waxman, for petitioner/appellant.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for respondent/appellee.
    Before WELLS, SALTER and LOGUE, JJ

       Judges Salter and Logue did not participate in oral argument in Case Number 3D13-2443.

   WELLS, Judge.

In these eases, which we consolidate, we address Parrish Kerney’s appeal from an order denying his Florida Rule of Criminal Procedure 3.850 post-conviction motion and his Florida Rule of Appellate Procedure 9.141(d)(5) petition for habeas corpus relief. For the following reasons, we affirm denial of his Rule 3.850 motion but grant his petition for habeas corpus relief and remand this matter to the court below for a new trial.

In July of 2002, Kerney was indicted for the first degree murder and strong arm robbery of Claudette Andrews. Ms. Andrews was found in her ransacked home covered with bruises, strangled to death, with a television set on her head. Kerney admitted that he had gone to return a plunger that he had borrowed from Ms. Andrews, who was his neighbor, and while there, he had been caught stealing money from her purse. According to Kerney, during an ensuing struggle, Ms. Andrews ended up on the floor where he “started squeezing” her neck until she had stopped breathing. While Kerney denied that he intended to kill Ms. Andrews, he did admit that after she was dead he masturbated, ejaculating on the floor, and then left with her money.

At the close of Kenney's trial, the jury was instructed on manslaughter by act as follows:

1. Claudette Andrews is dead;
2. Parrish Kerney intentionally caused the death of Claudette Andrews; or the death of Claudette Andrews was caused by the culpable negligence of Parrish Kerney.
However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide as I have previously explained those terms.
In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.

Kerney was convicted of second degree murder, and, as pertinent here, argued on appeal that pursuant to Montgomery v. State, 39 So.3d 252 (Fla. 2010), it was reversible error to instruct the jury that “in order to convict [Kerney] of manslaughter by an intentional act, ... the state [had to] prove [that Kerney] had the intent to cause the death of the victim.” Kerney further argued that this error was not cured, as a number of other district courts had held, by also giving an instruction on manslaughter by culpable negligence:

The trial judge in this case, unlike the judge in Montgomery, also instructed the jury they could convict defendant of manslaughter if they found he was culpably negligent. Several district courts of appeal have concluded if the trial judge gives the jury the opportunity to convict defendant of manslaughter by culpable negligence, the improper jury instruction of manslaughter by act is not fundamental error. See Nieves v. State, 22 So. 2d [sic] 691 (Fla. 2d DCA 2009) and Solandko[sic] v. State, [42] So. 2d [sic] [801], 2010 WL 480844 (Fla. 1st DCA 2010).
However, a review of the facts in this case establishes that the inclusion of the culpable negligence instruction did not alleviate the prejudice of the improper manslaughter by act instruction since, there was no construction of the evi-denee which even remotely suggested that the crime in this case was caused by the culpable negligence of defendant.

This argument, as well as Kerney’s other arguments, were rejected by this court in a per curiam opinion without citation. On February 18, 2011, the mandate in that case issued. By that time, notices to invoke jurisdiction in the Florida Supreme Court had already been filed in both Salonko (April 29, 2010) and Cubelo v. State, 41 So.3d 263 (Fla. 3d DCA 2010) (September 7, 2010), seeking review of determinations from decisions determining that giving a culpable negligence instruction along with the erroneous manslaughter by act instruction in effect cured the manslaughter by act instruction error. See Cubelo, 41 So.3d at 267-68 (“We find, as the First District found in Salonko, that the instant case is factually distinguishable from Montgomery as the Montgomery jury did not receive an instruction on culpable negligence as did the jury in the instant case.... Thus, we conclude, as the First District concluded in Salonko, that because the jury was instructed on both manslaughter by act and manslaughter by culpable negligence, there was no fundamental error requiring a reversal of the defendant’s conviction for second degree murder.”).

While proceedings in the Florida Supreme Court in Salonko were stayed on June 9, 2010, pending disposition of Montgomery, by the time the mandate issued in Kerney’s appeal on February 18, 2011, a notice had been filed in the Florida Supreme Court (February 9, 2011) seeking discretionary review of the Second District Court of Appeal’s decision in Haygood v. State, 54 So.3d 1035 (Fla. 2d DCA 2011). There, as in Salonko and Cúbelo, the District Court of Appeal had held “that the erroneous [manslaughter by act] instruction was not fundamental error ... because the jury was also instructed on manslaughter by culpable negligence.” Haygood v. State, 109 So.3d 735, 738 (Fla. 2013). On May 5, 2011, a little over two months after the mandate issued in Ker-ney’s case, the Florida Supreme Court accepted jurisdiction in Haygood and simultaneously stayed further proceedings in this court’s decision in Cúbelo pending disposition of Haygood.

Despite the fact that the Miami-Dade County Public Defender’s office was seeking Supreme Court review in Cúbelo of the same issue raised and rejected in Ker-ney’s appeal, it filed no motion to recall the mandate and made no effort to secure a written opinion with citations to Salonko or otherwise so as to put Kerney in the Haygood “pipeline.” On February 14, 2013, Haygood was decided, holding that “that giving the manslaughter by culpable negligence instruction does not cure the fundamental error in giving the erroneous manslaughter by act instruction where the defendant is convicted of an offense not more than one step removed from manslaughter and the evidence supports a finding of manslaughter by act, but does not reasonably support a finding that the death occurred due to the culpable negligence of the defendant.” Haygood, 109 So.3d at 741. The decisions in Salonko and Cúbelo were quashed and remanded for reconsideration in light of Haygood. See Salonko v. State, 137 So.3d 1022 (Fla. 2014); Cubelo v. State, 137 So.3d 1019 (Fla. 2014).

A little over three months after the Supreme Court’s decision in Haygood, Kerney filed the instant post-conviction motion claiming that Haygood is retroactive in application and by virtue of the fact that he was in the Montgomery pipeline, he should have been in the Haygood pipeline as well. The court below denied the motion, determining that it was not timely as having been filed more than two years after Kerney’s judgment and sentence had become final and because Haygood is not retroactive in its application. We agree with both determinations and'-thus affirm the order denying his Rule 3.850 motion. See Fla. R. Crim. P. 3.850(b) (providing that “[n]o other motion [other than a motion to vacate a sentence that exceeds the limits provided by law] shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final”); De La Hoz v. Crews, 123 So.3d 101, 104 (Fla. 3d DCA 2013) (stating that Haygood is not retroactively applicable).

However, we reach a different result as to Kerney’s timely filed Rule 9.141 petition for habeas corpus alleging ineffective assistance of appellate counsel. That sworn petition filed four years to the day on which Kerney’s judgment and sentence became final on direct review claimed, among other things, that his appellate attorney had misadvised Kerney as to his options after his conviction by leading him to believe any further action on his part would be of no merit and by listing the options available to Kerney without identifying the one option that might have provided him relief—the right to request a written opinion citing case law that would put him in the Haygood pipeline:

Appellate counsel was under no obligation to file for discretionary review on Mr. Kerney’s behalf. But, having just correctly argued in the brief that Montgomery controlled the .outcome of this case, it was outside of professional standards of competence and diligence to then inform Mr. Kerney that this Court had granted a (non-existent) motion to withdraw as his attorney as though his appeal had no merits and an Anders brief had been filed. It was also outside professional competence to affirmatively tell Mr, Kerney some of his options without telling him the one option he most needed to know about: keeping this conviction from becoming final pending Haygood by asking this Court to amend its per curiam affirmed decision by including a citation to Cúbelo, Salonko or any of the other similar decisions and then filing for discretionary review in the Supreme Court of Florida.

(Citation omitted). The motion also argued that it was manifestly unjust under the circumstances to deny Kerney relief.

We need not determine which of these two grounds entitle Kerney to relief as both are sufficient to warrant relief. As this court’s decision in De La Hoz confirms, even had Kerney been advised of his right to request a written opinion citing cases that would have allowed him to seek pipeline treatment, there was no guarantee that such relief would have been granted and, under circumstances of this case, it would be manifestly unjust to deny relief similarly accorded to many others in Korney's position. 123 So.3d at 104-105; see, e.g., Moore v. State, 165 So.3d 712 (Fla. 3d DCA 2015); Dowe v. State, 162 So.3d 35 (Fla. 4th DCA 2014); Smith v. State, 145 So.3d 972 (Fla. 1st DCA 2014); Barros-Dias v. State, 141 So.3d 674 (Fla. 2d DCA 2014); Moninger v. State, 137 So.3d 1129 (Fla. 4th DCA 2014); see also McKay v. State, 988 So.2d 51, 52 (Fla. 3d DCA 2008) (vacating a judgment on an untimely ineffective assistance of appellate counsel motion claiming manifest injustice); Adams v. State, 957 So.2d 1183. (Fla. 3d DCA 2006) (granting relief based on manifest injustice on an untimely post-conviction motion).

Kerney’s Rule 9.141 petition is, therefore, granted and Kernels judgment and sentence for second degree murder is vacated with this matter being remanded to the court below for a new trial.

      . As Montgomery further confirmed, the intent necessary for the crime of manslaughter by act is not the intent to kill but the intent to act which resulted in a death:
      We ... hold that the crime of manslaughter by act does not require that the State prove that the defendant intended to kill the victim. We further hold that the intent which the State must prove for the purpose of manslaughter by act is the intent to commit an act that was not justified or excusable, which caused the death of the victim.
      Montgomery, 39 So.3d at 259-260.

      . Florida Rule of Appellate Procedure 9.141(d)(5) states that “[a] petition alleging ineffective assistance of appellate counsel on direct review shall not be filed more than 2 years after the judgment and sentence become final on direct review unless it alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the result of the appeal by counsel,” and that "[i]n no case shall a petition alleging ineffective assistance of appellate counsel on direct review be filed more than 4 years after the judgment and sentence become final on direct review.”

      . A letter provided to Kerney by his appellate attorney advised him of four options: (1) a motion for rehearing; (2) a motion to mitigate sentence; (3) a motion for post-conviction relief; and (4) an action for federal post-conviction relief. No mention was made of a request for a written opinion or a citation PCA to Salonko or Cúbelo which, as a number of other cases confirm, ultimately would have placed Kerney in the Haygood pipeline. See, e.g., Smith v. State, 43 So.3d 923 (Fla. 1st DCA 2010) quashed, 137 So.3d 1022 (Fla. 2014); Barros-Dias v. State, 41 So.3d 370 (Fla. 2d DCA 2010) quashed, 137 So.3d 1019 (Fla. 2014); see also Moninger v. State, 52 So.3d 696 (Fla. 4th DCA 2010) quashed, 137 So.3d 1021 (Fla. 2014).

      . We reverse for a new trial because we agree that in this case the evidence "does not reasonably support a finding that [Ms. Williams'] death occurred due to the culpable negligence of the defendant." See Haygood, 109 So.3d at 741.


author: EMAS, J.

text:
    CITY OF MIAMI, Petitioner, v. 346 NW 29TH STREET, LLC, et al., Respondents.
    No. 3D16-2053
    District Court of Appeal of Florida, Third District.
    Opinion filed March 22, 2017

      Victoria Méndez, City Attorney, and Henry J. Hunnefeld, Sr., Senior Assistant City Attorney, and Kerri L. McNulty and Joseph A. Ruiz, Assistant City Attorneys, for petitioner.
    Pardo Jackson Gainsburg, Stevan J. Pardo and Nicole R. Rekant, for respondents.
    Before LAGOA, SALTER and EMAS, JJ.
   EMAS, J.

The City of Miami filed a petition, seeking a writ of prohibition quashing the circuit court’s partial summary judgment on liability in favor of the Plaintiff class, 346 N.W. 29th Street, LLC, d/b/a Museo Vault and others (“the Class”). In its petition, the City contends that the trial court acted in excess of its jurisdiction by granting the Class’ motion, and offers various arguments in support of this contention. We conclude that these issues are either without merit or are not cognizable by prohibition. Accordingly, we deny the City’s petition but write to address the City’s principal argument: that the Class claims were barred by the sixty-day jurisdictional non-claim statute (§ 194.171(2), Fla. Stat.), thus depriving the trial court of jurisdiction over this action.

Pursuant to a 2001 referendum, City of Miami voters approved a proposal to permit certain new and expanding businesses located within the City to apply for an ad valorem tax exemption. In 2002, the City enacted sections 56-110 through 56-122 of the City of Miami Code, an ordinance entitled “Ad Valorem Tax Exemption for Enterprise Zone Businesses.” The purpose of the ordinance was to revitalize and rehabilitate distressed areas identified as “enterprise zones” within the City. The ordinance provided specific qualifying requirements as well as procedures for submitting an application, review and approval (or denial) of an application, and appeal from a denial of an application. If approved, the tax exemption was for a term of one year, and could be renewed annually thereafter for a maximum of ten years. See generally Miami, Fla., Code art. V, §§ 56-112 through 56-122 (2002).

In 2013, the Class representative filed a two-count complaint against the City and others, alleging that the City failed to review and approve (or deny) applications submitted pursuant to the City ordinance. Between 2004 and 2011, approximately sixty-seven businesses, each purportedly within the Miami Enterprise Zones, filed applications with the City, seeking approval of an ad valorem tax exemption. It is undisputed that, during the relevant time period, no applicant in this case received written approval of an ad valorem tax exemption pursuant to the City ordinance. It is also undisputed that, during the same relevant time period, no applicant received a written denial of their application.

The City argues that the sixty-day non-claim provision of section 194.171(2) bars the action below and deprives the trial court of jurisdiction. Section 194.171(2) provides:

No action shall be brought to contest a tax assessment after 60 days from the date the assessment being contested is certified for collection under s. 193.122(2), or after 60 days from the date a decision is rendered concerning such assessment by the value adjustment board if a petition contesting the assessment had not received final action by the value adjustment board prior to extension of the roll under s. 197.323.

Section 194.171(6) provides that the “requirements of subseetion[ ] (2) ... are jurisdictional” and that “[n]o court shall have jurisdiction in such cases until after the requirements of [ ] subsection! ] (2) ... have been met.”

While we are doubtful that section 194.171(2) applies to the instant case, we need not decide that issue. Even if section 194.171(2) does apply, the City’s position is nevertheless unavailing, because the City did not provide any Class member with a notice of denial of tax exemption in accordance with state law or in compliance with the City’s own ordinance. Section 196.193(5), Florida Statutes, which is part of the same statutory framework encompassing section 194.171, provides:

(5)(a) If the property appraiser determines that any property claimed as wholly or partially exempt under this section is not entitled to any exemption or is entitled to an exemption to an extent other than that requested in the application, he or she shall notify the person or organization filing the application on such property of that determination in writing on or before July 1 of the year for which the application was filed.
(b) The notification must state in clear and unambiguous language the specific requirements of the state statutes which the property appraiser relied upon to deny the applicant the exemption with respect to the subject property. The notification must be drafted in such a way that a reasonable person can understand specific attributes of the applicant or the applicant’s use of the subject property which formed the basis for the denial. The notice must also include the specific facts the property appraiser used to determine that the applicant failed to meet the statutory requirements. If a property appraiser fails to provide a notice that complies with this subsection, any denial of an exemption or an attempted denial of an exemption is invalid.
(e) All notifications must specify the right to appeal to the value adjustment board and the procedures to follow in obtaining such an appeal. Thereafter, the person or organization filing such application, or a duly designated representative, may appeal that determination by the property appraiser to the board at the time of its regular hearing. In the event of an appeal, the property appraiser or the property appraiser’s representative shall appear at the board hearing and present his or her findings of fact. If the applicant is not present or represented at the hearing, the board may make a determination on the basis of information supplied by the property appraiser or such other information on file with the board..

(Emphasis added.)

It is undisputed that the City did not provide notice in compliance with section 196.193(5). Further, the City failed to comply with its own ordinance in reviewing and determining the Class members’ applications for ad valorem tax exemptions. Section 56-116 of the City of Miami Code provides:

All applications shall be reviewed by the Department [of Economic Development] which shall transmit its findings to the city manager, who shall either recommend approval to the city commission or decline to recommend approval.

The ordinance further provides:

In the event the city manager declines to recommend approval of an application to the city commission, the applicant shall have the option to appeal the city manager’s recommendation directly to the city commission.
Notice to appeal must be presented to the city manager no later than 30 days from the date applicant was notified of denial by the Department. Copies of the original application and notice of denial must accompany appeal. Appeal must offer compelling reasons why the city commission should consider the application for approval.

Miami, Fla., Code art. V, § 56-117 (2002) (emphasis added).

As set forth above, the City ordinance provides a mechanism for appeal from a denial of an application, but the timeframe within which to appeal (thirty days) commences on “the date applicant was notified of denial” by the City’s Department of Economic Opportunity. Id. That notification of denial never occurred. Further, the ordinance provides that the City’s “notice of denial must accompany appeal.” Id. It stands to reason that, if the City never denied the application and never issued its notice of denial, the applicant could not appeal or comply with the ordinance’s directive that the City’s “notice of denial must accompany the appeal.” Id.

The City counters that, notwithstanding the City’s failure to provide the Class members with a notice of denial of their applications, the county’s issuance of annual TRIM notices is the equivalent of a denial and, thus, sufficient to trigger commencement of the sixty-day non-claim period under the statute. However, a similar argument was rejected by the First District in Genesis Ministries, Inc. v. Brown, 186 So.3d 1074 (Fla. 1st DCA 2016). In Genesis, the First District held that the failure of a property appraiser to strictly comply with statutory notice provisions in section 196.193(5) tolled the running of the sixty-day period within which to bring an action contesting a tax assessment. In reaching its decision, the court explained:

The Legislature has made clear that the property appraiser’s failure to comply with the notice requirements in section 196.193(5) has consequences: “If a property appraiser fails to provide a notice that complies with this subsection, any denial of an exemption or an attempted denial of an exemption is invalid.” § 196.193(5)(b), Fla. Stat. This statutory provision would be meaningless if, as Appellees argue, Genesis was barred from challenging the denial of its exemption for 2013 when it was not provided notice of the denial simply because its property was listed on the 2013 tax rolls and Genesis did not file suit within 60 days after the tax rolls were certified.

Id. at 1082. See also Chihocky v. Crapo, 632 So.2d 230 (Fla. 1st DCA 1994) (holding that failure of the property appraiser to strictly comply with statutory notice provisions tolls the running of the sixty-day period within which to bring an action contesting a tax assessment).

We agree with the First District’s decision in Genesis and find its reasoning applicable to the instant case. The City did not provide the Class members with a notice of denial in compliance with section 196.193(5)(b); nor did the City provide the Class members a notice of denial in compliance with the City’s own ordinance. We hold that the sixty-day non-claim statute did not bar the action or deprive the trial court of jurisdiction.

The City’s petition for writ of prohibition is denied.

      , The City argues, for example, that the lower court exceeded its jurisdiction in granting partial summary judgment where the Class failed to join indispensable parties, including the Miami-Dade County Property Appraiser. This argument is not properly raised in a petition for writ of prohibition, as the alleged failure to join an indispensable party is ordinarily not an error which deprives the court of subject matter jurisdiction. See City of Miami v. Vill. of Key Biscayne, 199 So.3d 300, 302 n. 3 (Fla. 3d DCA 2016) (noting "that rule 1.140(h) of the Florida Rules of Civil Procedure suggests that a party's failure to join an indispensable party is more akin to a failure to state a cause of action than to a depriving of the trial court of subject matter jurisdiction.”). See also Snipes v. Fla. Elections Comm'n, 19 So.3d 1178 (Fla, 4th DCA 2009) (holding: "Prohibition lies to prevent a lower tribunal from acting in excess of its jurisdiction, but not to prevent an erroneous exercise of jurisdiction”); Fla. R. Civ. P. 1.140 (h)(2) (providing: "The defenses of failure to state a cause of action or a legal defense or to join an indispensable party may be raised by motion for judgment on the pleadings or at the trial on the merits in addition to being raised either in a motion under subdivision (b) or in the answer or reply. The defense of lack of jurisdiction of the subject matter may be raised at any time”). We do not reach the merits of the City's claim that the Class failed to join certain indispensable parties.

      . The Class does not challenge any action of the county in its tax assessment or certification of the tax roll; instead, the Class challenges the City's action (or inaction) under its own ordinance for approval or denial of applications for a tax exemption. That ordinance contains no provision for issuing a denial within a timeframe that permits the applicant to appeal the denial prior to certification of the tax rolls, or to otherwise contest the denial within sixty days after certification. If we were to hold that the sixty-day non-claim provision of section 194.171(2) applies to this case, the City could wait until the tax rolls are certified and, sixty-one days later, issue its denial of the application for tax exemption. Under this scenario, by the time the City issues its notice of denial, the applicant would already be barred by the non-claim statute from filing an action to contest the denial.

      . Pursuant to sections 200.065 and 200.069, Florida Statutes, the county property appraiser is required each year to prepare and mail, to each taxpayer in the county, a notice of proposed property taxes. This is commonly referred to as a “TRIM” (TRuth In Millage) notice.


author: SCALES, J.

text:
    Jose Fernando De Matos REBOLLEDO, et al., Appellants, v. Mireya Cristina Cambero CORDERO, Appellee.
    Nos. 3D16-786 & 3D15-2409
    District Court of Appeal of Florida, Third District.
    Opinion filed March 22, 2017.

      Brenda B. Shapiro; Mesa & Associates, P.A., and Manuel Arthur Mesa, for appellants.
    Diaz, Reus & Targ, LLP, and Michael Diaz, Jr., Louis Martinez and Paola Sanchez Torres, for appellee.
    Before SUAREZ, C.J., and WELLS and SCALES, JJ.
   SCALES, J.

In these consolidated appeals, Appellant Jose Fernando de Matos Rebolledo (“Husband”) challenges two trial court orders: (i) a September 17, 2015 order awarding Appellee Mireya Cristina Carabero Corde-ro (“Wife”) monthly temporary support payments of $50,000 and a retroactive support payment of $668,037 (the “Support Order”); and (ii) a March 24, 2016 order finding Husband in contempt for failing to pay Wife the sums awarded in the Support Order (the “Contempt Order”). We consolidated Husband’s appeals of the two orders, and quash both orders because the trial court lacked jurisdiction to enter either order.

I. Relevant Facts and Procedural History

Husband and Wife were married on April 5, 2003. In May of 2011, Wife filed a divorce petition in the Miami-Dade Circuit Court, and in June of 2011, Husband filed a counter-petition. The following month, Wife voluntarily dismissed her divorce petition, leaving only Husband’s counter-petition pending in the circuit court. In February of 2012, after Wife had filed no responsive pleading to Husband’s counter-petition, Husband filed a motion seeking a clerk’s default on his counter-petition. A default was entered against Wife on April 23, 2012.

On August 19, 2014, pursuant to rules 1.500(d) and 1.540(b) of the Florida Rules of Civil Procedure, Wife filed a motion to set aside the April 23, 2012 default. Appended to her motion as an exhibit was a proposed answer to Husband’s June 2011 counter-petition as well as a proposed counterclaim to Husband’s counter-petition. Wife set her motion to lift the default for hearing on September 5, 2014.

On September 4, 2014, the eve of the scheduled hearing on Wife’s motion to lift the default, Husband filed a notice of voluntary dismissal, dismissing his- June 2011 counter-petition. At the September 5, 2014 hearing on Wife’s motion, Husband asserted that his September 4, 2014 voluntary dismissal had terminated the case and, thus, divested the circuit court of any further jurisdiction over the case.

The circuit court disagreed with Husband’s jurisdictional argument, and on December 17, 2014, entered an order lifting the April 23, 2012 default. The trial court’s order gave Wife thirty days to file a response to Husband’s June 2011 counter-petition. Shortly thereafter Wife filed her response to Husband’s June 2011 counter-petition.

On March 25, 2015, Wife filed a motion seeking temporary support pursuant to section 61.071 of the Florida Statutes, and in August of 2015, the trial court held a hearing resulting in the entry of the September 2015 Support Order. Husband timely appealed the Support Order (case number 3D15-2409). After Husband did not pay the sums pursuant to the Support Order, the trial court entered the Contempt Order in March of 2016, which Husband also timely appealed (case number 3D16-786). We consolidated the appeals.

II. Issue on Appeal and Standard of Review

While both Husband and Third-Party Appellants assert an array of challenges to the orders on appeal, we need address only the one dispositive issue raised by the parties: whether the trial court retained jurisdiction over this case after Husband’s September 4, 2014 voluntary dismissal. Because this issue involves a pure question of law, we review de novo the trial court’s decision that it retained jurisdiction. Herbits v. City of Miami, 197 So.3d 575, 578 (Fla. 3d DCA 2016). We conclude that Husband’s September 4, 2014 voluntary dismissal divested the trial court of jurisdiction.

III. Analysis

Relying on Gull Construction Co. v. Hendrie, 271 So.2d 775 (Fla. 2d DCA 1973) and Our Gang, Inc, v. Commvest Securities, Inc., 608 So.2d 542 (Fla. 4th DCA 1992), Wife argues, and the trial court concluded, that Wife’s August 2014 motion to have the default lifted is tantamount to a motion seeking leave to file an amended pleading. Therefore, Wife argues that her motion—like the motions in Gull Construction Co. and Our Gang, Inc.—stayed the effect of Husband’s voluntary dismissal. Indeed, Gull Construction Co. and its progeny stand for the proposition that a party’s pending motion to amend that party’s pleadings to assert a counterclaim stays the effect of a later filed voluntary dismissal. Our Gang, Inc., 608 So.2d at 543; Siler v. Lumbermens Mut. Cas. Co., 420 So.2d 357, 358 (Fla. 5th DCA 1982); Ryder Sys., Inc. v. O’Connor, 369 So.2d 980, 981 (Fla. 4th DCA 1979); Gull Constr. Co., 271 So.2d at 776.

Those cases, however, are inapposite: in none of those cases has the party filing the motion to amend already been defaulted. In this case, default was entered against Wife on April 23, 2012. By virtue of this default, Wife was precluded from filing anything in the trial court except a motion to have the default lifted. Smith v. Rheaume, 623 So.2d 625, 626 (Fla. 5th DCA 1993). Any other purported filings by Wife were a nullity. Paraud v. Suncoast E. No. 2, Inc., 785 So.2d 688, 689 (Fla. 3d DCA 2001) (Mem). Hence Wife’s procedural posture in this ease is fundamentally different from that of the parties in Gull Construction Co. and Our Gang, Inc. The movants in those cases had sought leave to amend a filed pleading when the other party’s dismissal notice was filed. Here, Wife had filed no pleadings in the case, resulting in the default being entered against her.

The only motion pending when Husband filed his dismissal was Wife’s motion to lift the default. This motion became moot when Husband filed his voluntary dismissal on September 4, 2014. See 84 Lumber Co. v. Cooper, 656 So.2d 1297, 1299-300 (Fla. 2d DCA 1994). Husband’s voluntary dismissal ended the case, depriving the trial court of any further jurisdiction over the case. Stone v. Stone, 691 So.2d 649 (Fla. 3d DCA 1997) (Mem). Therefore, any and all orders entered after the trial court was divested of jurisdiction were void. Herbits, 197 So.3d at 578. While, notwithstanding Husband’s dismissal, the trial court and the parties proceeded as if the trial court continued to have jurisdiction over the case, it is well settled that parties cannot confer jurisdiction where none exists. Strommen v. Strommen, 927 So.2d 176, 179 (Fla. 2d DCA 2006).

IV. Conclusion

Husband’s September 4, 2014 voluntary-dismissal terminated this case and divested the trial court of jurisdiction to adjudicate any further matters in this case. We therefore quash the orders on appeal and all other orders entered by the trial court after jurisdiction was divested.

Orders on appeal quashed.

      . While not relevant to our holding, the record is unclear as to why the trial court gave Wife thirty days to file a response to Husband's June 2011 counter-petition, rather than simply accepting the proposed answer and counterclaim that were appended as exhibits to Wife’s motion to lift the default.

      . The Contempt Order made several findings that allegedly affect the interests of several corporations in which Husband allegedly had some interest. These corporations—Colonnade 101 SE, Inc., Colonnade 119 SW, Inc., Colonnade 318 SW, Inc., Colonnade 116 SE, Inc., and Colonnade 115 SW, Inc.—have joined Husband as "Third-Party Appellants” in challenging the Contempt Order.

      . We express no opinion regarding any other issues raised by the parties.


author: PER CURIAM.

text:
    Sholone LEWIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-179
    District Court of Appeal of Florida, Third District.
    Opinion filed March 29, 2017
    Sholone Lewis, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, C.J., and LAGOA and LUCK, JJ.
   PER CURIAM.

Affirmed. See Jamison v. State, 73 So.3d 317 (Fla. 1st DCA 2011) (holding that, if filed more than two years after sentence is final, motion may not be considered. “This bar is jurisdictional and may not be waived.”).


author: FERNANDEZ, J.

text:
    Efren YERO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-891
    District Court of Appeal of Florida, Third District.
    Opinion filed March 29, 2017.
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before FERNANDEZ, LOGUE, and SCALES, JJ.
   FERNANDEZ, J.

Efren Yero appeals the denial of his motion for post-conviction relief, arguing that his sentence of 155 years in prison, with parole, for his commission of a crime at the age of sixteen was the equivalent of a life sentence which must be vacated and entitled him to be resentenced pursuant to sections 775.082, 921.1401, and 921.1402, Florida Statutes. We agree. See Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Henry v. State, 175 So.3d 675 (Fla. 2015), and Miller v. State, 208 So.3d 834 (Fla. 3d DCA 2017); Carter v. State, No. 3d16-1090, 215 So.3d 125, 2017 WL 1018513 (Fla. 3d DCA March 15, 2017).

Reversed and remanded with directions.


text:
    Darryl DESHAZIOR, Appellant, v. SCHOOL BOARD OF MIAMI-DADE COUNTY, Florida etc., Appellee.
    No. 3D16-1926
    District Court of Appeal of Florida, Third District.
    Opinion filed March 29, 2017
    Catherine A. Riggins, for appellant.
    Walter J. Harvey, School Board Attorney, and Cristina Rivera Correa, Assistant School Board Attorney, for appellee.
    Before LAGOA, EMAS and SCALES, JJ.
   EMAS, J.

In August 2014, Darryl Deshazior, an employee of the School Board of Miami-Dade County, Florida (“the School Board”), filed a complaint against the School Board, alleging a breach of the collective bargaining agreement. In February 2016, the School Board moved for summary judgment, supported by affidavits and other evidence, asserting that Deshaz-ior’s claim was barred by his failure to timely initiate and exhaust the grievance process mandated by the terms of the collective bargaining agreement; and that Deshazior failed to establish a prima facie case of breach of contract. The trial court entered final summary judgment in favor of the School Board, and Deshazior appealed.

The trial court properly determined that the affidavits submitted by the School Board were competent evidence and that the affidavits and other evidence were legally sufficient to conclusively establish the absence of any genuine issue of material fact. See Buzzi v. Quality Serv. Station, Inc., 921 So.2d 14 (Fla. 3d DCA 2006); Alvarez v. Florida Ins. Guar. Ass'n, Inc., 661 So.2d 1230, 1232 (Fla. 3d DCA 1995) (holding that an affidavit need not state that it is based upon personal knowledge where the affiant is shown to be in a position where he would necessarily possess such knowledge).

The trial court also determined that Deshazior failed to timely serve his notice of evidence in opposition to the School Board’s summary judgment motion, and we find no abuse of discretion in excluding such evidence. See Fla. R. Civ. P. 1.510(c) (providing that evidence in opposition to summary judgment must be served at least five days prior to the day of the hearing or delivered no later than 5:00 p.m. two business days prior to the day of the hearing); Independent Fire Ins. Co. v. Rogers, 580 So.2d 229 (Fla. 3d DCA 1991) (holding that trial court’s decision not to consider untimely affidavit in opposition to motion for summary judgment was not an abuse of discretion); Binford v. City of Winter Springs, 969 So.2d 1098, 1099 (Fla. 5th DCA 2007) (observing: “It is well established that an affidavit in opposition to summary judgment which is filed on the day of the summary judgment hearing is untimely and the trial court has discretion to disregard it.”)

Given the absence of any genuine issue of material fact, all that remained for determination was an issue of law: the interpretation and application of the terms of the collective bargaining agreement. Upon our de novo review, Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000), we affirm the trial court’s final summary judgment, and hold that the trial court properly determined that Deshazior’s claim was barred by his failure to timely initiate the grievance process as mandated by the terms of the collective bargaining agreement, and his failure to exhaust that administrative remedy. See Bello v. Miami Dade Cty., Fla., 167 So.3d 464, 469 (Fla. 3d DCA 2015) (holding: “It is a well settled principle] that a party, when bound by a collective bargaining agreement, must exhaust an administrative remedy prior to litigating in court”) (quoting Public Health Trust v. Hernandez, 751 So.2d 124, 125 (Fla. 3d DCA 2000)). We find no merit in the other issues raised by Deshazior.

Affirmed.


author: LAGOA, J.

text:
    Amruta PATEL, Appellant, v. Nilay R. SHAH, Appellee.
    No. 3D16-1370
    District Court of Appeal of Florida, Third District.
    Opinion filed March 29, 2017.

      Carlton Fields Jorden Burt, P.A., and Chris W. Altenbernd and Mariko Shitama Outman (Tampa), for appellant.
    Law Offices of Daniel J. Tibbitt, and Daniel Tibbit; Duncan Trial & Family Law, and Michael L. Duncan (Jacksonville), for appellee.
    Before SUAREZ, C.J., and LAGOA and SCALES, JJ.
   LAGOA, J.

Amruta Patel (the “Wife”) appeals from a final judgment of dissolution of marriage and an order denying her motion to vacate final judgment and for rehearing and reconsideration. Because the trial court erred in determining that the Wife did not file a counter-petition seeking any form of relief, we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

This is the second time this matter has come before this Court. In Shah v. Shah, 178 So.3d 70 (Fla. 3d DCA 2015), this Court reversed the trial court’s entry of final judgment after finding that the Wife’s due process rights were violated when the trial court expanded the scope of the scheduled hearing into a final hearing without proper notice. Id. at 70-71. This Court declined to address any of the other issues raised on appeal and remanded the matter to the trial court for further proceedings.

Following remand, the trial court held a final hearing on April 18, 2016. At the end of the hearing, the trial court concluded that the marriage was irretrievably broken and orally ruled:

There are no marital assets acquired, no marital assets to be divided, based on the sworn statement of your husband and your statement that you have no proof that any such asset has been acquired, therefore there is nothing to divide. As to the alimony that you keep bringing up, you bring it up over and over, you did not file a counter petition. There is no proof provided by you that your husband has this substantial living standard that you claim he has.

On May 3, 2016, the trial court rendered a written final judgment consistent with its earlier oral ruling. In its written order, the trial court found that “[t]he only Petition framing the issues before th[e] Court was the Husband’s Petition for Dissolution of Marriage as the Wife did not file any Counter-Petition.” The trial court further found that there were no marital assets because the Wife “was never able to produce any proof or information regarding any marital assets” and “the Husband [had] testified that there were no assets that were acquired during the marriage.” The trial court also denied the Wife’s request for alimony because “the Wife did not file Counter-Petition seeking any form of relief, she only filed an Answer.” This appeal ensued.

IL STANDARD OF REVIEW

Because the trial court’s final judgment is primarily based upon its finding that the Wife’s “Reply” did not constitute a counter-petition, we review the legal sufficiency of the Wife’s pleading de novo. See Jarrard v. Jarrard, 157 So.3d 332, 337 (Fla. 2d DCA 2015) (‘Whether the pleading is legally sufficient in its allegations of [a] claim, as with all pleadings, is a legal issue reviewed de novo.”).

III. ANALYSIS

Although the Wife raises several issues on appeal, we only address here whether the trial court properly considered the Wife’s counter-petition. The Wife asserts that the trial court erred in determining that “[t]he only petition framing the issues before t[he] Court was the Husband’s Petition for Dissolution of Marriage” and in failing to treat the Wife’s “Reply” as a “counter-petition.” We agree. The trial court’s failure to properly consider the Wife’s Reply as both an answer and a counter-petition resulted in a multitude of errors, including denying the Wife mandatory disclosure under Rule 12.285, Florida Family Law Rules of Procedure; rejecting the Wife’s request for alimony; and denying the Wife equitable distribution.

This Court has stated that “[pleadings by pro se litigants should only be defined by their function.” Castro v. State, 201 So.3d 77 (Fla. 3d DCA 2015) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). Thus, as a general rule, this Court will focus oh the substance of the pleading and not its title. Castro, 201 So.3d at 77; see also Fire & Cas. Ins. Co. of Conn. v. Sealey, 810 So.2d 988, 992 (Fla. 1st DCA 2002) (“We agree that the true nature of a [pleading] must be determined by its content and not by the label the moving party has used to describe it”).

Based on this Court’s review of the content of the Wife’s pro se pleading titled “Reply,” it is clear that the Wife intended to plead the equivalent of both an answer and a counter-petition. The Wife pled the equivalent of an answer by contesting the Husband’s claim in his petition that there was no marital property, identifying the Husband’s property, describing his income, and describing her non-marital “belongings” of “gold, clothes, and utensils,” which the Husband allegedly took with him to Florida.

The Wife also pled the equivalent of a counter-petition through her thirty “Prayers” to the trial court, including a request that the trial court order the Husband to provide her “shelter,” “monthly maintenance charges” until her remarriage, “monthly home rent” until her remarriage, pay her “medical expenses,” pay her telephone bill, reimburse her for “wedding expenses,” return her non-márital property, and pay for her lawyer’s expenses.

Accordingly, based on the substance of the Wife’s pro se pleading, the trial court erred in failing to treat the Wife’s Reply as both an answer and a counter-petition. Because we find that the Wife filed a counter-petition, we further hold that the trial court erred in failing to require the Husband to provide a mandatory disclosure as required by Rule 12.285.

IV. CONCLUSION

Based on the foregoing, we reverse the Final Judgment except for paragraph 20 of the Final Judgment, which dissolved the marriage between the parties in the United States. We remand to the trial court for proper consideration of the Wife’s pro se Reply as both a timely filed answer and counter-petition. We also grant the Wife leave to amend her pleading, if so desired. On remand, the trial court shall also require the Husband to provide a mandatory disclosure as required by Rule 12.285.

Affirmed in part as to paragraph 20 of Final Judgment; reversed in part as to the remainder of the Final Judgment and remanded.

      .See Palewsky v. Fla. Dep't of Rev., 81 So.3d 584, 585 (Fla. 3d DCA 2012) (holding that trial court erred in failing to require mandatory affidavit even without demonstrated objection by or prejudice to the other party because the requirement is mandatory and not waivable by either party); see also Salczman v. Joquiel, 776 So.2d 986, 988 (Fla. 3d DCA 2001) (concluding that “financial affidavits are required (and nonwaivable by the parties) where there has been an initial or supplemental request for permanent financial relief').

      . The trial court's denial of the Wife's request for alimony was specifically based on the trial court’s finding that “yet again, the Wife did not file [a] Counter-Petition seeking any form of relief, she only filed an Answer.”

      . Indeed, the trial court at the hearing expressed repeated frustration with the Wife's questions regarding these matters.

      . On appeal, the Wife agreed that paragraph 20 of the Final Judgment should be affirmed.

      . We express no opinion on the merits of the Wife's counter-petition.


author: LUCK, J.

text:
    Glen Cyril YERGIN, as Personal Representative of the Estate of Richard Yergin, Appellant, v. Mary GEORGOPOLOS, Appellee.
    No. 3D16-2192
    District Court of Appeal of Florida, Third District,
    Opinion filed April 5, 2017

      Michael Farrar, for appellant.
    Law Office of Shannon L. Akins, P.A., and Shannon L. Akins (Orlando); Law Office of Diane B. McWhirter and Diane B. McWhirter (Winter Park); Joseph Currier Brock (Winter Park), for appellee.
    Before EMAS, LOGUE and LUCK, JJ.
   LUCK, J.

Thirty-five years ago, Richard Yergin took out a life insurance policy on himself, and named as the beneficiary Mary Geor-gopolos, who was listed as Richard’s mother. The policy and the $41,687.74 it paid out, however, were unknown to Georgopo-los and Richard’s family. They didn’t know about the money when Richard died in 1997. They didn’t know about the money when Richard’s estate was probated in the circuit court the following year. And they didn’t know about the money for the next decade and a half, until 2015.

By then, the insurance company had turned over the forty-one thousand dollar annuity to the Florida Department of Financial Services. In 2015, when he learned about the money, Glen Yergin, Richard’s half-brother, petitioned to reopen Richard’s estate, appoint himself the personal representative, and for a declaration that the insurance policy annuity: (1) was a failed transfer because Georgopolos was not Richard’s mother as stated on the policy; and (2) belonged as part of the estate property. Glen also served his declaratory judgment petition on ninety-two-year-old Mary Georgopolos, in Fircrest, Washington.

Georgopolos remembered Richard as a tenant in her home many years before. Richard, Georgopolos remembered, liked her cooking and left his jacket when he moved out. She made a claim for the annuity with the financial services department, and moved to dismiss the petition, which the trial court granted. This is an appeal from the dismissal.

The issue in this appeal is whether an estate that seeks to obtain money or property delivered to the financial services department as unclaimed must first file a claim with the department, and exhaust administrative remedies, before it can file a lawsuit in the trial courts determining ownership of the property. Richard contends that the circuit court must decide first because Florida law gives it exclusive jurisdiction to determine whether property is part of an estate, Art. V, § 20(c)(3), Fla. Const.; § 86.011, Fla. Stat. (2015); id. § 733.105(l)(a), but our constitution and statutes also give the financial services department jurisdiction to make determinations as to unclaimed property deposited in the state treasury, Art. IV, § 4(c); § 717.124(1), Fla. Stat. (2015).

The Legislature reconciled these provisions in section 717.1242(1), finding that “consistent with [the] legislative intent” to give jurisdiction to the circuit court over the settlement of estates, and jurisdiction to the financial services department over unclaimed property, “any estate or beneficiary ... of an estate seeking to obtain property paid or delivered to the department ... must file a claim with the department.” § 717.1242(1), Fla. Stat. (2015). The Legislature then laid out an extensive administrative procedure for seeking unclaimed property. The department must make a determination on a claim within ninety days (with some exceptions), id. § 717.124(l)(c), and has a method for determining the priority of conflicting claims, id. § 717.1241. “In rendering a determination regarding the merits of an unclaimed property claim, the [department shall rely on the applicable statutory, regulatory, common, and case law.” Id. § 717.1244. And a person “aggrieved” by the department’s decision may petition for an administrative hearing under the Florida Administrative Procedures Act. Id. § 717.126(1).

Only after a claimant has exhausted these administrative procedures may she seek relief in the circuit court. See Atwater v. Citibank Fed. Sav. Bank, 96 So.3d 1000, 1001 (Fla. 3d DCA 2012) (“The trial court is without jurisdiction to compel the Department to disburse funds without the Department first having determined the entitlement of the claimant to the funds held by the Department.”); O’Connor v. Zane, 79 So.3d 105, 106 (Fla. 1st DCA 2012) (O’Connor I) (“[I]f Ms. O’Con-nor files a claim under section 717.124, the department must determine whether it is in possession of unclaimed property belonging to Mr. Zane, and if the property consists of cash, it must state the amount. Ms. O’Connor may then obtain legal process or pursue judicial remedies, if necessary, to execute her judgment against the property.”); State Dep’t of Fin. Servs. v. O’Connor, 155 So.3d 479, 481 (Fla. 1st DCA 2015) (O’Connor II) (“In O’Connor I, this Court held that O’Connor had not exhausted her administrative remedies because she did not file a claim with the Department pursuant to Chapter 717.”). The O’Connor cases are good examples of this interplay between the jurisdiction of the financial services department and the circuit courts.

There, the department was holding thirty-two thousand dollars in the name of a former husband. O’Connor I, 79 So.3d at 105. The former wife, who was owed child support, moved in the divorce case for a declaration that she was entitled to the money being held by the department. Id. (The same kind of declaration Glen sought in this case.) The trial court dismissed, “finding that [the former wife] had failed to exhaust her administrative remedy of filing a claim with the department to recover the funds.” Id. at 106. The First District Court of Appeal affirmed, explaining that because the former wife had a claim on the money, she first had to file a claim with the department, and only after a determination was made could she “obtain legal process or pursue judicial remedies.” Id. The former wife did that, and after she exhausted her remedies with the financial services department and the department determined the money belonged to the husband she sought judicial relief in the circuit court. See O’Connor II, 155 So.3d at 481-82. The First District affirmed the trial court’s post-exhaustion order to garnish the money to satisfy the outstanding child support obligation. Id. at 485.

Here, as the former wife in O’Con-nor, Glen first had to file his claim for the insurance annuity with the financial services department pursuant to section 717.1242(1), and exhaust his remedies under chapters 717 and 120. Only after he did that, and the department made a determination, was he permitted to pursue his legal remedies in the circuit court. Because it is undisputed that Glen did not file a claim with the department, the trial court correctly dismissed his petition for declaratory relief. We affirm.

      . "Funds held or owing under any life or endowment insurance policy or annuity contract which has matured or terminated are presumed unclaimed if unclaimed for more than 5 years after the date of death of the insured, the annuitant, or the retained asset account holder ....” § 717.107(1), Fla. Stat (2015).

      . The Florida Constitution provides that the "[cjircuit courts ... shall have exclusive original jurisdiction in all actions at law not cognizable by the county courts; of proceedings relating to the settlement of the estate of decedents and minors, the granting of letters testamentary, guardianship, involuntary hospitalization, the determination of incompetency, and other jurisdiction usually pertaining to courts of probate ....” Art. V, § 20(c)(3), Fla. Const. The declaratory judgment act provides that “the circuit and county courts have jurisdiction within their respective jurisdictional amounts to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed." § 86.011, Fla. Stat. (2015). And the probate code provides that “[wjhen property passes by intestate succession or the will is unclear and there is doubt about .., [w]ho is entitled to receive any part of the property ,.. any interested person may petition the court to determine beneficiaries or their shares." Id. § 733.105(l)(a).

      . The Florida Constitution provides that “[t]he chief financial officer shall serve as the chief fiscal officer of the state, and shall settle and approve accounts against the state, and shall keep all state funds and securities.” Art. IV, 4(c), Fla. Const. The unclaimed property statute provides that ‘‘[a]ny person ... claiming an interest in any property paid or delivered to the department under this chapter may file with the department a claim on a form prescribed by the department and verified by the claimant or the claimant's representative." § 717.124(1), Fla. Stat.- (2015).

      . That shouldn’t be a surprise. The former wife's attorney in the O'Connor cases is Glen’s attorney in this case.

      . Glen finally contends that the trial court cannot grant a motion to dismiss on exhaustion grounds because exhaustion is an affirmative defense. Glen is incorrect. The Florida courts have affirmed dismissal on exhaustion grounds where it was clear from the face of the initial pleading. This is what the First District did in O'Connor I, 79 So.3d at 106 ("The circuit court dismissed the motion [for a declaration], finding that Ms. O’Connor had failed to exhaust her administrative remedy of filing a claim with the department to recover the funds. We affirm.”); see also Criterion Ins. Co. v. Fla. Dep't of Ins., 458 So.2d 22 (Fla. 1st DCA 1984) (affirming dismissal of amended complaint seeking declaratory relief for failing to exhaust administrative remedies).


author: LOGUE, J.

text:
    Gojko DURKOVIC, Appellant, v. PARK WEST GALLERIES, INC., Appellee.
    No. 3D16-765
    District Court of Appeal of Florida, Third District.
    Opinion filed April 5, 2017
    The Peltz Law Firm, P.A., and Robert D. Peltz; The Vucci Law Group, P.A., and Louis A. Vucci, for appellant.
    Coffey Burlington, P.L., and Jeffrey B. Crockett and Paul J. Schwiep, for appellee.
    Before EMAS, LOGUE, and SCALES, JJ.
   LOGUE, J.

Appellant, a Serbian national and resident, filed a personal injury action against Park West Galleries, Inc., alleging he injured his back while under contract to conduct art auctions on cruise ships. He now appeals the trial court’s decision to dismiss his case pursuant to a mandatory forum selection clause. The forum selection clause at issue provides that all legal proceedings by either party relating to the contract will be brought in the Turks and Caicos Islands, except that the Appellant may be sued in other forums for the limited purpose of obtaining an injunction prohibiting him from violating the confidentiality and non-compete provisions of the contract.

For the purposes of reviewing a motion to dismiss, we accept as true the Appellant’s allegation that he has the status of a seaman under the Jones Act, 46 U.S.C. § 30104 (2015). We decline to adopt the Appellant’s position that the Jones Act per se prohibits a seaman who is a foreign national residing outside the United States from being bound by a contract provision mandating a specific foreign forum for disputes under the contract. See, e.g., Ramirez v. NCL (Bahamas), Ltd., 991 F.Supp.2d 1187, 1194 (S.D. Fla. 2013) (in cause of action alleged under the Jones Act, enforcing the arbitration agreement and also holding “the parties’ forum-selection and choice-of-law provisions are enforceable”). We also reject Appellant’s argument that the venue provision at issue is so one-sided as to be unconscionable.

Instead, under the authority of Estate of Stern v. Oppenheimer Trust Co., 134 So.3d 566 (Fla. 3d DCA 2014), we hold that such a mandatory forum selection clause is valid and enforceable unless the chosen forum is unjust and unreasonable in the sense that it constitutes no forum at all. The Turks and Caicos Islands are a British Overseas Territory whose courts are part of the British common law system. Appeals from the highest courts in the Turks and Caicos Islands lie with the highest courts in the United Kingdom of Great Britain and Northern Ireland. The affidavits on file in this record support the conclusion that the courts of the Turks and Caicos Islands are capable of deciding the choice of law issues, determining whether the contractual provisions limiting liability and recovery are operative, and applying the Jones Act, if appropriate. It certainly cannot be said on this record that the courts of the Turks and Caicos Islands constitute no forum at all.

Affirmed.

SCALES, J., concurs.

EMAS, J., concurs in result only.


text:
    Toronto Antonio FLANDERS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-0365
    District Court of Appeal of Florida, Third District.
    Opinion filed April 5, 2017.

      Toronto Antonio Flanders, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before EMAS, LOGUE and LUCK, JJ.
   LUCK, J.

In 1996, Toronto Antonio Flanders pleaded guilty in case number F95-10717 to attempted first degree murder (a life felony), attempted armed robbery (a second degree felony), unlawful possession of a firearm while engaged in a criminal offense (a second degree felony), and unlawful possession of a firearm by a convicted felon (a second degree felony); and in case number F95-7991 to armed robbery (a first degree felony), unlawful possession of a firearm by a convicted felon (a second degree felony), and resisting an officer without violence (a misdemeanor). As to the attempted first degree murder, attempted armed robbery, and armed robbery counts, Flanders was sentenced as an habitual violent felony offender to thirty five years in state prison, with a fifteen year mandatory minimum term. As to the two counts of unlawful possession of a firearm by a convicted felon, Flanders was sentenced as an habitual violent felony offender to thirty years in state prison with a ten year mandatory minimum sentence.

Flanders moved to correct his illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a) because “the habitual offender statute in existence at the time [he] committed his offenses,” March 1995, “did not provide [for an] enhanced habitual offender penalty for [a] defendant who committed [a] life felony.” Flanders asked to correct his sentence by removing the habitual violent felony offender designation.

The trial court granted in part and denied in part Flanders’ motion. The trial court granted the motion as to Flanders’ sentence for attempted first degree murder because that charge was a life felony and the habitual violent felony offender statute, section 775.084(4) (1995), Fla. Stat., did not provide for an enhanced sentence in life felony cases committed prior to October 1,1995. The trial court corrected the attempted first degree murder sentence by removing the habitual violent felony offender designation and fifteen year mandatory minimum. As to the rest of Flanders’ sentence, the trial court denied the motion.

Flanders appealed, and we affirm. The version of the habitual violent felony offender statute in effect at the time Flanders committed his crimes, March 1995, did not permit enhanced and mandatory minimum penalties for life felonies. Lamont v. State, 610 So.2d 435, 438 (Fla. 1992) (holding “that one convicted of a life felony is not subject to enhanced punishment as a habitual offender under section 775.084”). The trial court properly corrected only the portion of Flanders’ sentence that was illegal—the habitual violent felony offender enhancements on the attempted first degree murder charge—and left the remaining, legal portions of the sentence intact and untouched.

That is what the Florida Supreme Court did in Lamont. There, the defendant (Andre Lamont) had been sentenced as an habitual violent felony offender for armed sexual battery (a life felony), armed burglary (a first degree felony), and armed kidnapping (which was reclassified as a life felony under section 775.087(a)(1)). Id., at 486. The Florida Supreme Court concluded that it was error to sentence the defendant as an habitual violent felony offender for the life felonies, but found it was not error to apply the enhancement to the defendant’s conviction for armed burglary, which was a first degree felony, because the habitual violent felony offender statute included enhancements for first degree felonies. Id. at 438-39. The Court approved the district court’s decision “upholding the application of the habitual offender statute to [the] armed burglary conviction,” and quashed the decision finding that the statute applied to the life felonies. Id. at 439.

Here, as in Lamont, the trial court corrected the portion of Flanders’ sentence that applied the habitual violent felony offender statute to his life-felony attempted first degree murder charge, and denied the Rule 3.800(a) motion as to the rest. We affirm.

      . The Legislature amended section 775.084 to include life felonies effective for crimes committed on or after October 1, 1995, Lafleur v. State, 661 So.2d 346, 349 n.1 (Fla. 3d DCA 1995) ("We note also that, effective October 1, 1995, the legislature has overruled Lamont by providing that life felonies are subject to habitual offender sentencing.”).


author: Per Curiam.

text:
    Lawrence F. CURTAIN and Elena Curtain, Appellants, v. RANGER CONSTRUCTION INDUSTRIES, INC., a Florida corporation, State Farm Mutual Automobile Insurance Company, a foreign corporation, and Bob’s Barricades, Inc., a Florida corporation, Appellees.
    No. 4D16-1253
    District Court of Appeal of Florida, Fourth District.
    April 5, 2017
    Lawrence F. Curtain and Elena Curtain, Fort Pierce, pro se.
    Thomas A. Valdez of Quintairos, Prieto, Wood & Boyer, P.A., Tampa, and George Fernandez of Quintairos, Prieto, Wood & Boyer, P.A., Miami, for Appellee Ranger Construction Industries, Inc.
   Per Curiam.

Affirmed. See Section 337.195(2), Florida Statutes (2012).

Warner, Taylor and Levine, JJ., concur.


author: May, J.

text:
    PALM BEACH COUNTY SCHOOL BOARD, Appellant, v. Leha (“Bonnie”) WRIGHT, Appellee.
    No. 4D16-112
    District Court of Appeal of Florida, Fourth District.
    April 5, 2017
    JulieAnn Rico, Office of General Counsel, and Jean Marie Middleton and Sean Fahey, West. Palm Beach, for. appellant.
    Isidro M. Garcia of Garcia Law Firm, P.A., West Palm Beach, for appellee.
   EN BANC

May, J.

The Palm Beach County School Board appeals an adverse judgment on a retaliation claim. It argues the trial court erred in its instruction to the jury on causation. We agree and reverse. Because this requires us to adopt a new standard on causation in line with the United States Supreme Court’s decision in University of Texas Southwestern Medical Center v. Nassar, — U.S. -, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013), and recede from our prior decision in Guess v. City, of Miramar, 889 So.2d 840 (Fla. 4th DCA 2004), we issue this opinion en banc.

The plaintiff is of Vietnamese origin and worked in the Information Technology Department for over ten years under a series of annual contracts. She experienced hostile encounters with her supervisor, who eiiticized her accent and complained that she could not understand the plaintiff. This caused the plaintiff to email her supervisor and the Board of Directors about what she perceived as a hostile work environment.

The plaintiff never received a response from either her supervisor or the school board. But, soon thereafter she received a letter notifying her that her contract would not be renewed for the next school year. She was ordered not to report to work without explanation.

The plaintiff ultimately filed a Verified Second Amended Complaint, alleging three counts. The first count alleged three Florida Civil Rights Act [FCRA] violations for discrimination, a hostile work environment, and harassment, based on race and national origin. Count two alleged a FCRA violation for retaliation. Count three alleged a violation of the Florida Public Sector Whistleblower Act.

During the charge conference, the trial court ruled that the Eleventh Circuit Civil Pattern Jury Instructions (Civil Cases) and federal case law would be used to instruct the jury on the claim of race and national origin discrimination. There was no objection to this ruling. The school board then proposed the court follow the Eleventh Circuit Civil Pattern Jury Instruction 4.22 for the retaliation claim.

The plaintiff objected and asked the court to rely on Carter v. Health Management Assoc., 989 So.2d 1258 (Fla. 2d DCA 2008) and Guess to charge the jury on the retaliation claim. The court ruled that the Carter language of “not wholly or completely unrelated” together with the language from Eleventh Circuit Civil Jury Instruction 4.21, Retaliation 42 U.S.C. § 1981, would be given.

At trial, the court granted the school board’s motion for directed verdict on the hostile environment and harassment claims in count one and the count three whistle-blower claim. This left the discrimination based on race and national origin claim in count one and the count two retaliation claim for the jury’s determination.

The jury returned a verdict for the school board on the discrimination claim, but in favor of the plaintiff on the retaliation claim. The court entered final judgment awarding the plaintiff $206,000.

The school board moved for a new trial on the retaliation claim, arguing the trial court incorrectly instructed the jury on causation, which resulted in juror confusion and a miscarriage of justice. The trial court denied the school board’s motion for new trial. The school board now appeals.

The school board argues a new trial should be granted because the trial court should have insti-ucted the jury with the causation standard set forth in Nassar because the complaint alleged claims under Title VII, and not under 42 U.S.C. § 1981.

The plaintiff responds that the trial court was bound by the causation standards set forth in Carter and Guess. The plaintiff also argues that the school board acquiesced to using the Carter causation standard during the charge conference. The school board replies that it never stipulated to using the Carter causation standard, but only agreed to language once the court had ruled against the school board’s proposed instruction.

We have de novo review. D’Angelo v. Fitzmaurice, 863 So.2d 311, 313 (Fla. 2003).

“[A] long-standing rule of statutory construction in Florida recognizes that if a state law is patterned after a federal law on the same subject, the Florida law will be accorded the same construction as given to the federal act in the federal courts.” State v. Jackson, 650 So.2d 24, 27 (Fla. 1995). We and other Florida districts have recognized that “[t]he FCRA is patterned after Title VII” and that “federal case law on Title VII applies to FCRA claims.” Guess, 889 So.2d at 849 n.2; see also Carter, 989 So.2d at 1262; Hinton v. Supervision Int’l, Inc., 942 So.2d 986, 989 (Fla. 5th DCA 2006); Russell v. KSL Hotel Corp., 887 So.2d 372, 379 (Fla. 3d DCA 2004). Any changes to federal case law on Title VII interpretation necessitates a change in the interpretation of the FCRA.

The U.S. Supreme Court changed the causation standard for Title VII retaliation claims in Nassar. There, the Court held that “[t]he text, structure, and history of Title VII demonstrate that a plaintiff making a retaliation claim under § 2000(e)3(a) must establish that his or her protected activity was a but-for-cause of the alleged adverse action by the employer.” Nassar, 133 S.Ct. at 2534 (emphasis added). “Title VII retaliation claims must be prove[n] according to traditional principles of but-for causation, not the lessened causation test” for status-based discrimination. Id. at 2533.

Because “Florida courts follow federal case law when examining FCRA retaliation claims[,]” this change to Title VII retaliation claims required a change to the causation standard for FCRA retaliation claims. Carter, 989 So.2d at 1262. The FCRA must be given the same construction as Title VII post-Aassar.

Nassar sounded the end of the “wholly unrelated” standard from Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998). Olmsted had required the causal link under Title VII to “be construed broadly” and “ ‘a plaintiff merely ha[d] to prove that the protected activity and the negative employment action are not completely unrelated.’ ” Olmsted, 141 F.3d at 1460 (citation omitted).

Nassar requires Title VII retaliation claims to employ a “but-for” causation standard. That standard must be applied with equal force to FCRA retaliation claims. We therefore recede from our pri- or precedent in Guess, which utilized the “wholly unrelated” standard from Olmsted. Guess, 889 So.2d at 843. The Guess causation standard is simply no longer valid after Nassar.

Reversed and remanded for a new trial on the retaliation claim only.

Ciklin, C.j., Warner, Gross, Taylor, Damoorgian, Gerber, Levine, Conner, Forst, Klingensmith and Kuntz, JJ., concur.

      . The school board alternatively argues the trial court erred in using Eleventh Circuit’s Civil Pattern Jury Instruction 4.21, modified to include the Guess language, instead of Jury Instruction 4.22. In light of our holding, Jury Instruction 4.22 correctly states the proper causation standard for retaliation claims under the FCRA.

      . We note the trial court was required to instruct the jury on the Guess "wholly unrelated” causation standard at the time of trial based on the existing case law from this court. See Bunn v. Bunn, 311 So.2d 387, 389 (Fla. 4th DCA 1975) ("[A]n appellate court’s decision on issues properly before it and decided in disposing of tire case, are, until overruled by a subsequent case, binding as precedent on courts of lesser jurisdiction.”).


text:
    Jack MCFARLAND, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW and Florida Department of Corrections, Respondents.
    CASE NO. 1D17-0190
    District Court of Appeal of Florida, First District.
    Opinion filed April 11, 2017.
    Rehearing Denied May 17, 2017
    Jack McFarland, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee; Rana Wallace, General Counsel, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

Because the proceedings in the circuit court were civil in nature, the court lacks authority to grant a belated appeal. See Powell v. Florida Department of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999). Accordingly, the petition seeking belated appeal is DENIED, and petitioner’s motion for extension of time to file a petition for writ of certiorari is DENIED as moot.

WETHERELL, BILBREY, and JAY, JJ., CONCUR.