author: Roberts, J.

text:
    CHOICE PLUS, LLC, Appellant, v. DEPARTMENT OF FINANCIAL SERVICES, BUREAU OF UNCLAIMED PROPERTY ; Bengt Roland Dahlqvist, Ann-Kristin Dahlqvist Berlin, Barbro Britt Marie Linden Barkman, Bert Erik Gore Linden, Carl Johan Tegge, Malin Caroline Charlotte Tegge, Lars Ragner Linden, Gunvor Marie Linden Wilhde, Marianne Elisabeth Linden Holm, and Anita Margaretha Nyberg, Appellees.
    No. 1D15-3184
    District Court of Appeal of Florida, First District.
    April 17, 2018 Rehearing Denied May 22, 2018
    Seann M. Frazier, of Parker Hudson Ranier & Dobbs, Tallahassee, for Appellant.
    Lori Lynn Jobe and Josephine A. Schultz, Assistant General Counsels, Tallahassee, for Appellees.
   Roberts, J.

Choice Plus, LLC (Choice Plus), appeals a final order from the Department of Financial Services (the Department) denying its claim to recover funds from the estate of Mrs. Inez Eleanor Rigley that were being held by the Department. Choice Plus argues the Department improperly ignored a valid order from the Pinellas County Probate Court and made its own de novo determination regarding entitlement to the estate funds. We agree with Choice Plus that the Department overstepped its authority and reverse the final order.

Facts

In 2005, Mrs. Rigley died in St. Petersburg, Florida. In 2007, the Pinellas County Probate Court determined that Mrs. Rigley died intestate, having no known beneficiaries. The probate court ordered "[t]hat under [ section 732.107, Florida Statutes (2007) ] the assets of the estate shall escheat to the State of Florida." Per section 732.107(2), Mrs. Rigley's real property was sold as provided in the Florida Probate Rules, and the proceeds were paid to the Chief Financial Officer for deposit into the State School Fund. The Department documented receipt of $98,185.79 in cash proceeds from Mrs. Rigley's estate and marked it as an "escheated estate."

Section 732.107(3) provides,

At any time within 10 years after the payment to the Chief Financial Officer, a person claiming to be entitled to the proceeds may reopen the administration to assert entitlement to the proceeds. If no claim is timely asserted, the state's rights to the proceeds shall become absolute.

In 2013, before the ten-year deadline expired, Choice Plus took such action. Choice Plus is a private investigative agency registered with the Department as a claimant's representative. Choice Plus first petitioned the probate court to determine that ten individuals (hereinafter the ten claimants), all of whom resided in Sweden, were Mrs. Rigley's beneficiaries. Attached to the petition to determine beneficiaries was a family genealogical chart as well as a researcher's report that included thirty-three endnotes referencing various records like death and birth records. Choice Plus also petitioned the probate court to reopen the estate for administration and to declare the ten claimants were entitled to the funds deposited with the State. The Department was not a party to the probate proceedings; however, Choice Plus did notice the Attorney General's Office as required by section 733.816(3), Florida Statutes, which did not file any objections.

In two 2013 orders, the probate court reopened the estate; determined that the ten claimants were indeed beneficiaries of Mrs. Rigley's estate; delineated the share of her estate each claimant was owed; and ordered that "after providing for payment of costs and fees, the State of Florida is hereby authorized and directed to pay the funds it holds on behalf of the Estate of [Mrs. Rigley]" to the ten claimants in the proportions set out in the court's order. As the claimants' representative, Choice Plus stood to receive $21,500.53 in fees when the estate funds were paid.

Choice Plus then filed with the Department a claim on behalf of each of the ten claimants, seeking payment of each claimant's portion of Mrs. Rigley's estate funds. The claim was submitted on the Department's required form and attached the required copies of the government-issued, photographic identification of the ten claimants as well as certified copies of the probate court order demonstrating the ten claimants' entitlement to the estate funds. Choice Plus later submitted Mrs. Rigley's death certificate. Choice Plus also filed limited powers of attorney for it to act on behalf of each claimant.

In 2014, the Department issued a Notice of Intent to deny the claim (without prejudice) as incomplete because it did not include the appropriate documents in Florida Administrative Code Rule 69I-20.0022(3)(b) (2014) to connect the ten claimants to Mrs. Rigley. In essence, the Department took the position that the genealogic charts and researcher's report that had been relied upon by the probate court were too ambiguous to demonstrate the ten claimants were entitled to disbursement of Mrs. Rigley's estate funds. The Department concluded as custodian of the estate funds under The Florida Disposition of Unclaimed Property Act, chapter 717, Florida Statutes, it had authority to determine the merits of each claim for funds, and the claim as submitted failed to meet the burden of establishing entitlement to Mrs. Rigley's estate funds by a preponderance of the evidence.

Over the next two years, the parties disputed the Department's ability to deny the claim under chapter 717. The issues condensed into a purely legal question that was ultimately decided in the Department's 2015 final order on appeal. In its final order, the Department concluded that it had been vested with the sole jurisdiction to administer chapter 717 and to determine the merits of each claim for funds held in the State Treasury. The Department rejected Choice Plus's contention that it was under a ministerial duty to disburse the estate funds upon receipt of the probate court's order. Instead the Department determined that, despite the probate court's previous determination of entitlement, Choice Plus had failed to meet its burden of demonstrating entitlement to the Department by submitting the "appropriate documentation" connecting the individual claimants to Mrs. Rigley by a preponderance of the evidence. Choice Plus appeals the final order, arguing the Department overstepped its authority. We agree.

Standard of Review

As this case presents a purely legal issue, our review is de novo .

Kale v. Dep't of Health , 175 So.3d 815, 817 (Fla. 1st DCA 2015) ; see also § 120.68(7), Fla. Stat. (2013) (providing that a court shall remand a case or set aside an agency action when it finds that the agency "has erroneously interpreted a provision of law and a correct interpretation compels a particular action"). While an agency's interpretation of a statute that it is charged with administering is entitled to greater deference and will not be reversed unless clearly erroneous, deference is not warranted when the agency's interpretation conflicts with the plain meaning of the statute. Kale , 175 So.3d at 817.

Escheated Funds or Unclaimed Funds

The Department's final order rejected Choice Plus's attempt to draw a "semantic distinction" between escheated funds and unclaimed funds, finding it was a distinction without a difference in the context of this case. We disagree as the distinction is the difference under the facts of this case.

As aforementioned, Mrs. Rigley's estate funds were transferred to the Department through the escheat process in the Probate Code, section 732.107, Florida Statutes (2007). In 2007, when the probate court determined that Mrs. Rigley died intestate, her estate "escheated" to the State. § 732.107(1), Fla. Stat. (2007) ("When a person dies leaving an estate without being survived by any person entitled to a part of it, that part shall escheat to the state."). Black's Law Dictionary (10th ed.) defines "escheat," as "[r]eversion of property (esp. real property) to the state upon the death of an owner who has neither a will nor any legal heirs." Thus, unlike unclaimed funds, Mrs. Rigley's estate funds passed directly from her ownership to the ownership of the State. After a ten-year period, the State's ownership would become absolute with no other action taken so long as no purported beneficiaries had come forward. § 732.107(3), Fla. Stat. (2007).

The term "unclaimed property" is not defined in chapter 717. In Crescenzo v. Atwater (In re Order Directing Payment of 13,857.69) , 136 So.3d 1248 (Fla. 2d DCA 2014), the Second DCA examined the interplay between chapter 717 and "unclaimed funds" from judicial proceedings that are deposited with the Chief Financial Officer to the credit of the State School Fund pursuant to section 43.19, Florida Statutes (2011). The Court drew a distinction between section 43.19 funds and other unclaimed funds in chapter 717, stating,

Unlike section 43.19, [chapter 717] is not intended to address a narrow subset of unclaimed property but rather to provide broader substantive and administrative law addressing all varieties of unclaimed property. Thus, for example, it has procedures for unclaimed bank accounts, utility deposits, and life insurance proceeds. §§ 717.106-.07, 108. Similar to funds deposited under section 43.19, the funds deposited under chapter 717 often end up in the State School Fund. See § 717.123. The fact that the funds end up in the same account, however, does not mean that they must only be removed from that fund using the same procedures.

136 So.3d at 1254-55.

We regard the section 732.107 funds here in the same manner. The fact that section 732.107 funds are addressed within the ambit of chapter 717 does not mean that they lose their distinct character and become subject to the entirety of chapter 717. The Department's argument disregards the nature of these funds and simply assumes that because they are deposited with the Chief Financial Officer, the funds are subject to all of chapter 717. Putting oranges and apples into one large bowl does not make them all oranges.

We disagree that the Legislature intended section 732.107 funds to be treated in the same manner as all other "unclaimed property." With regard to much of the "unclaimed property" in chapter 717, the Department's role is as a custodian pending expiration of a dormancy period. See, e.g. , § 717.104, Fla. Stat. (2013) (outstanding traveler's checks presumed "unclaimed" after fifteen years); § 717.106, Fla. Stat. (2013) (certain bank accounts presumed "unclaimed" after a period of inaction for five years); § 717.115, Fla. Stat. (2013) (unpaid wages that have not been claimed for more than one year are presumed "unclaimed"). The Department also receives funds from Florida Clerks of Courts as the result of various judicial processes. See, e.g. , § 45.032, Fla. Stat. (2013) (detailing the process for surplus judicial funds, which may become "unclaimed property to be deposited with the Chief Financial Officer pursuant to chapter 717"). One obvious difference between the aforementioned "unclaimed" funds and the section 732.107 funds is the section 732.107 funds are never referred to as "unclaimed." While section 732.107 funds may be unclaimed in a colloquial sense, the fact that they escheat to the State upon a determination of intestacy means that the funds are never without an identifiable or locatable owner like other forms of "unclaimed" property in chapter 717. This is not a distinction without a difference.

The Department's Authority

The view that escheated funds are a distinct subset of "unclaimed funds" as that term is generally used in chapter 717 is confirmed by the fact that the only reference to section 732.107 in chapter 717 is in section 717.124. Section 717.124 details the process for filing a claim for unclaimed property, which includes the requirement to file the claim on the prescribed claim form and the requirement to include a copy of a government-issued, photographic identification. § 717.124(1), Fla. Stat. (2013). Notably, section 717.124 does not include any requirement that the claimant independently prove entitlement to the funds to the Department. Section 717.124(8) provides,

This section applies to all unclaimed property reported and remitted to the Chief Financial Officer, including, but not limited to, property reported pursuant to ss. 43.19, 45.032, 732.107, 733.816, and 744.534.

(Emphasis added.)

The plain statutory language is clear that only section 717.124 applies to section 732.107 funds. The Department cannot point to any statutory language stating the entirety of chapter 717 applies to section 732.107 funds. The specific use of the term "section" as opposed to chapter means that only section 717.124 applies to funds transferred pursuant to section 732.107. See Maggio v. Fla. Dep't of Labor & Employment Security , 899 So.2d 1074, 1080 (Fla. 2005). Indeed, if the entirety of chapter 717 applied to funds transferred under section 732.107, then the language in section 717.124(8) would be redundant and meaningless. State v. Goode , 830 So.2d 817, 824 (Fla. 2002) ("In addition to the statute's plain language, a basic rule of statutory construction provides that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.").

The Department's error here lies in presuming the estate funds are subject to all of chapter 717. Simply because Choice Plus had to file an "Unclaimed Property Claim" under section 717.124 in order to have the Department disburse Mrs. Rigley's estate funds does not make the estate funds themselves "unclaimed" and subject to all provisions of chapter 717. The Department's error in interpreting section 717.124(8)'s narrow provision as subjecting the estate funds to all of chapter 717 caused it to apply the wrong standards and improperly deny the claim.

Chapter 717 gives the Department a panoply of tools in order to determine the merits of a claim of ownership to "unclaimed property" that come to the Department through various means. See, e.g. , § 717.1244, Fla. Stat. (2013) ("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."); § 717.1301, Fla. Stat. (2013) (the Department has the authority to make investigations and examinations to enforce chapter 717); § 717.1341, Fla. Stat. (2013) ("No person shall receive unclaimed property that the person is not entitled to receive."); § 717.126, Fla. Stat. (2013) ("[T]he burden shall be upon the claimant to establish entitlement to the property by a preponderance of the evidence. Having the same name as that reported to the department is not sufficient, in the absence of other evidence, to prove entitlement to unclaimed property."). However, Crescenzo properly recognized that simply because funds often end up in the same account does not mean that they must be removed from that account in the same manner. Crescenzo , 136 So.3d at 1255 (distinguishing section 43.19 funds from other chapter 717 funds).

While the Department's duty to determine the merits of a claim makes sense with regard to its role as custodian over certain types of "unclaimed property," it does not make sense to apply the panoply of tools in chapter 717 to funds that escheat to the State under section 732.107. Escheat funds revert to the State after the probate court determines there are no beneficiaries. If potential beneficiaries wish to come forward, they do not go directly to the Department, but must first go to the probate court, which has jurisdiction over administration of the estate for a determination on entitlement. If the probate court determines the beneficiaries are entitled, it orders the Department to disburse the estate funds in the appropriate proportions. The oversight of the probate court means there is no need for the Department to independently determine whether the beneficiaries are entitled to the estate funds. The Department's interpretation of chapter 717 as requiring a second, independent determination of entitlement renders the probate court's function meaningless.

The Department takes the position that, as custodian of the estate funds in its possession, it had more than a ministerial duty to disburse the estate funds upon receipt of the proper claim form, government identification, and probate court orders. Rather, the Department references its duty to "determine the merits of the claims." Section 717.1242(1), Florida Statutes (2013), provides,

It is and has been the intent of the Legislature that, pursuant to s. 26.012(2)(b), circuit courts have jurisdiction of proceedings relating to the settlement of the estates of decedents and other jurisdiction usually pertaining to courts of probate. It is and has been the intent of the Legislature that, pursuant to s. 717.124, the department determines the merits of claims for property paid or delivered to the department under this chapter. Consistent with this legislative intent, any estate or beneficiary, as defined in s. 731.201, of an estate seeking to obtain property paid or delivered to the department under this chapter must file a claim with the department as provided in s. 717.124.

See also Atwater v. City of Cape Coral , 120 So.3d 595, 599 (Fla. 2d DCA 2013) (holding once surplus judicial funds were transferred to the Chief Financial Officer, the provisions of section 45.032 provided that the surplus funds became unclaimed property controlled by chapter 717, such that under section 717.1242 the Chief Financial Officer and the Department alone had the authority to make the final determination as to the disposition of the unclaimed funds).

We do not disagree that the Department carries a responsibility to ensure that funds are properly disbursed to the rightful owner. Unlike the funds in City of Cape Coral , here there is no explicit reference to chapter 717 in section 732.107. Compare § 45.032(4), Fla. Stat. (2013) ("Thirty days after termination of the appointment of the surplus trustee, the clerk shall treat the remaining funds as unclaimed property to be deposited with the Chief Financial Officer pursuant to chapter 717 ") with § 732.107(2), Fla. Stat. (2013) (" Property that escheats shall be sold as provided in the Florida Probate Rules and the proceeds paid to the Chief Financial Officer of the state and deposited in the State School Fund."). We also find the Department's reliance on Bondi v. Brito , 159 So.3d 369 (Fla. 2d DCA 2015), inapplicable to the instant case as Bondi was limited to the authority of the circuit court to order the Chief Financial Officer to appear at circuit court proceedings relating to Chief Financial Officer's declination to disburse funds received under section 43.19, Florida Statutes, despite the circuit court's order to do so. Bondi specifically provided, "We take no position regarding the validity or legitimacy of the circuit court's orders regarding entitlement to or transfer of the unclaimed funds." Id. at 373.

We do not read section 717.1242(1) as giving the Department independent jurisdiction over the merits of section 732.107 funds. Rather, section 717.1242 confirms that the probate court has jurisdiction to determine entitlement to the estate. This is clear in the plain language of section 732.107(3), which directs a party claiming entitlement to first go to the probate court to "reopen the administration and assert entitlement to the proceeds." See also Fla. Admin Code R. 69I-44.021(1) ("Petitions for funds held pursuant to [section 737.102] are to be filed initially with the court that directed the deposits of the funds with the Chief Financial Officer."). The Department has no basis to interpret its duty to determine the "merits" here to include a second determination of entitlement or an appellate-like review of the probate court's decision.

The Department ignored the probate court's orders finding the ten claimants were each entitled to a particular portion of Mrs. Rigley's estate. Instead, the Department rejected the probate court's finding and required Choice Plus to again present evidence of entitlement, despite the fact that the evidence had already been accepted and ruled upon by the probate court. Such action amounted to a wholesale rejection of the probate court's orders in contravention to section 732.107(3). If the Department had the ability to make an independent determination on entitlement of escheated funds, it would render the need to first petition the probate court meaningless. See Goode , 830 So.2d at 824.

The Department's reading also raises separation of powers concerns. The probate court's order was binding on the Department. Under Article V, section 20(c)(3) circuit courts have jurisdiction pertaining to courts of probate. The Department overstepped its authority by interpreting section 717.124 in such a way as to allow it to readjudicate the issue of entitlement in contravention to the probate court's order. This was error and resulted in a final order that exceeded the Department's authority by rejecting an order of an Article V court. See Canney v. Bd. of Public Instruction of Alachua Cty. , 278 So.2d 260, 262 (Fla. 1973) ("As a general rule administrative agencies have no general judicial powers, notwithstanding they may perform some quasi-judicial duties, and the Legislature may not authorize officers or bodies to exercise powers which are essentially judicial in their nature."). If the Department believed that Choice Plus failed to substantiate that the ten claimants were Mrs. Rigley's beneficiaries, the Department should have intervened in the probate court proceedings, which it did not do.

Conclusion

Choice Plus presented a complete claim as required of it under section 717.124 that included the order from the probate court directing the Department to disburse the estate funds. While the Department has a general duty to safeguard the estate funds in its possession, it overstepped that authority here by administratively invalidating the probate court's order. We reverse the final order on appeal and remand with instructions to grant Choice Plus's claim.

REVERSED and REMANDED .

Lewis and Ray, JJ., concur.

      Bengt Roland Dahlqvist, Ann-Kristin Dahlqvist Berlin, Barbro Britt Marie Linden Barkman, Bert Erik Gore Linden, Carl Johan Tegge, Malin Caroline Charlotte Tegge, Lars Ragner Linden, Gunvor Maria Linden Wilhde, Marianne Elisabeth Linden Holm, and Anita Margaretha Nyberg.

      Copies of the documents listed in the thirty-three endnotes are not included in the record on appeal. It is not wholly clear whether or not all of these documents were filed in the probate court.

      Rule 69I-20.0022 provides in relevant part,
      (1) Any and all persons filing a claim for unclaimed property have the burden to provide to the Department a preponderance of evidence to prove ownership and entitlement to such property being claimed[.]
      For claims by beneficiaries or estates, subsection (3)(b) directs the claimant to provide "appropriate documentation to connect the claimant to the deceased apparent owner."

      Rule 69I-44.021 was repealed by the Department in 2016 because the rule had been "superseded by the enactment of section 717.124(8) in 2013."


source: Caselaw Access Project

author: SLEET, Judge.

license: Public Domain

text:
    Joseph J. WEITZ, DOC #139777, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2892
    District Court of Appeal of Florida, Second District.
    Opinion filed April 18, 2018.
    Joseph J. Weitz, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   SLEET, Judge.

Joseph Weitz challenges the postconviction court's order summarily denying his Florida Rule of Criminal Procedure 3.850 motion in which he alleged six claims of ineffective assistance of counsel. We affirm without comment the denial of claims one, two, three, five, and six. However, we reverse the denial of claim four and remand for the postconviction court to consider Weitz's amended claim four filed on May 15, 2017.

Weitz was convicted by a jury of transmitting material harmful to minors to a minor and unlawful use of a two-way communications device. He was sentenced as a habitual felony offender (HFO) to ten years' imprisonment on the transmitting conviction and to a consecutive five-year non-HFO term on the two-way communications device count. On direct appeal, this court affirmed Weitz's convictions but reversed his sentences and remanded with instructions to run the sentences concurrently instead of consecutively. Weitz v. State, 196 So.3d 466, 466 (Fla. 2d DCA 2016). Weitz did not appeal his amended sentence.

Weitz then filed a timely rule 3.850 motion on April 6, 2017. That motion was summarily dismissed as facially insufficient with leave to amend. Weitz filed an amended motion on May 5, 2017. The postconviction court summarily denied that motion on May 25, 2017, addressing each of Weitz's six grounds for relief and concluding that each was conclusively refuted by the record. Weitz then filed a motion for rehearing, in which he alleged that on May 15, 2017-prior to the court entering its order denying his May 5 motion-he filed a second amended rule 3.850 motion modifying several of his initial claims. Weitz attached to his motion for rehearing a copy of his second amended motion, which according to its date stamp had been provided to prison officials on May 15, 2017. On June 16, 2017, the postconviction court denied the motion for rehearing, indicating that the record did not include the May 15 motion and that the last motion filed by Weitz was his May 5 motion.

"A motion may ... be amended at any time prior to either the entry of an order disposing of the motion or the entry of an order ... directing that an answer to the motion be filed ... whichever occurs first." Fla. R. Crim. P. 3.850(e). Here, Weitz's second amended motion was filed on May 15 when it was handed to prison officials. See Haag v. State, 591 So.2d 614, 617 (Fla. 1992) ("Under the mailbox rule, a petition or notice of appeal filed by a pro se inmate is deemed filed at the moment in time when the inmate loses control over the document by entrusting its further delivery or processing to agents of the state. Usually, this point occurs when the inmate places the document in the hands of prison officials.... [W]e hold that the mailbox rule exists as a matter of Florida law." (citation omitted)). As such, it was filed ten days before the postconviction court entered its order summarily denying Weitz's first amended motion. Although the motion may not have been in the record prior to the court's denying Weitz's motion for rehearing, Weitz did attach a copy of the amended motion to the motion for rehearing and the copy reflected the prison's date stamp. The court therefore erred in denying the motion for rehearing. See Bonilla v. State, 106 So.3d 534, 534 (Fla. 4th DCA 2013) ("Bonilla timely turned over the supplemental motion to prison officials for mailing before the two-year time period of rule 3.850 expired[ ] and before the trial court ruled on the initial motion. We recognize that the supplemental motion may not have been received by the trial court prior to it[s] ruling on the initial motion. However, Bonilla moved for rehearing, noting his timely supplemental motion and furnishing a copy for review." (citations omitted) ).

However, our review of both the May 5 and the May 15 motions reveals that only one claim for relief, ground four, was modified in any way. In ground four of the original motion Weitz alleged that counsel was ineffective for failing to object to the prosecutor's misrepresenting the evidence in her rebuttal closing argument. The postconviction court summarily denied this claim by attaching the transcript of the rebuttal closing argument in which it was clear that the prosecutor did not say what Weitz had alleged in his motion. However, the amended motion's ground four alleged that counsel was ineffective for failing to object to the prosecutor misrepresenting the evidence while conducting redirect examination of the investigating detective. As such, the postconviction court's attachment does not conclusively refute the amended ground four. We therefore reverse the summary denial of this ground and remand with instructions that the postconviction court consider ground four of the May 15 amended motion, determine whether it is facially sufficient, and either attach portions of the record that conclusively refute it or grant an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and LUCAS, JJ., Concur.


author: Rowe, J.

text:
    Alphonso JAMES, Sr., Appellant, v. Julie L. JONES, Secretary, Florida Department of Corrections, Appellee.
    No. 1D17-2255
    District Court of Appeal of Florida, First District.
    April 18, 2018 Rehearing Denied June 4, 2018
    Alphonso James, Sr., pro se, Appellant.
    Beverly Brewster, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellee.
   Rowe, J.

Alphonso James, Sr., whose judgment and sentence became final in 1990, asserts that the trial court erred when it dismissed his petition for the extraordinary writ of habeas corpus. James sought immediate release from incarceration, based on an alleged defect in the paperwork associated with his imprisonment. Since his convictions were final twenty-eight years ago, James has unsuccessfully challenged his judgment and sentence seven times. This, his eighth time challenging his judgment and sentence, is not the charm.

James is serving a sentence imposed by the Twentieth Judicial Circuit Court in Lee County. He is currently incarcerated in Jackson County, located in the Fourteenth Judicial Circuit. James filed his petition in Jackson County, alleging that he was being illegally detained because the county court judge who signed his commitment paperwork in 1990 was without jurisdiction to commit him to the Department of Corrections.

As the trial court observed, it lacked jurisdiction to rule on James's petition because it was not the court that imposed his conviction and sentence. Leichtman v. Singletary , 674 So.2d 889, 891 (Fla. 4th DCA 1996). And the trial court correctly determined that dismissal, rather than transfer of the petition, was proper. As we have explained:

[D]ismissal, rather than transfer, of a petition for writ of habeas corpus is appropriate when the petitioner seeks "the kind of collateral postconviction relief available through a motion filed in the sentencing court, and which (1) would be untimely if considered as a motion for postconviction relief under rule 3.850, (2) raise claims that could have been raised at trial or, if properly preserved, on direct appeal of the judgment and sentence, or (3) would be considered a second or successive motion under rule 3.850 that either fails to allege new or different grounds for relief that were known or should have been known at the time the first motion was filed."

Zuluaga v. State , 32 So.3d 674, 677 (Fla. 1st DCA 2010) (quoting Baker v. State , 878 So.2d 1236, 1245-46 (Fla. 2004) ).

Here, dismissal was proper because James's petition, if considered a 3.850 motion, was both untimely and successive. The motion was filed twenty-six years after his judgment and sentence became final. See Fla. R. Crim. P. 3.850(a)(3) (imposing a two-year time limit on filing motions under this rule). And James's argument that his commitment paperwork was defective is one that he has raised five times previously in the trial court and on appeal to this Court. See Fla. R. Crim. P. 3.850(h)(2) ; Gill v. Jones , 204 So.3d 459 (Fla. 4th DCA 2016) (holding dismissal, rather than transfer, is appropriate where defendant continued to pursue collateral postconviction relief through petitions for writ of habeas corpus in the wrong court). Accordingly, the trial court did not err in dismissing his petition.

AFFIRMED .

Roberts, Wetherell, and Rowe, JJ., concur.


author: Winsor, J.

text:
    Marlon Edgardo LARA-CASTILLO, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1021
    District Court of Appeal of Florida, First District.
    April 18, 2018
    Andy Thomas, Public Defender, and Victor D. Holder, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Winsor, J.

Marlon Lara-Castillo was convicted of lewd or lascivious molestation. The court sentenced him to twenty-five years. On appeal, Lara-Castillo contends the trial court should have granted his motion for judgment of acquittal and, alternatively, that he deserves a new trial because the prosecutor made improper arguments below. We affirm.

Lara-Castillo's victim, a girl who lived nearby, was eight years old at the time of the crime. She was nine when she testified at trial that Lara-Castillo touched her "under and over" her clothes. She explained that she visited Lara-Castillo's apartment one morning to meet her younger sisters, who were eating breakfast there. After she arrived, Lara-Castillo had her sit on his lap, and he asked her how old she was and if she had any friends. Then he touched her. She and her sisters ran home, where she immediately told her mother what happened.

The child's mother testified too. She said the child came home that morning "afraid and crying." The mother explained that she did not immediately call police because she could not speak English and had no one to translate for her. Instead, she went to see her pastor. The pastor arranged a meeting with himself, the mother, and Lara-Castillo. Both the mother and the pastor testified that Lara-Castillo admitted at the meeting that he touched the child, (the pastor said he admitted touching the child "in her parts ... between her legs"), and that he asked for forgiveness. But they both acknowledged Lara-Castillo insisted the touching was accidental.

About a week after the meeting with the pastor, the mother contacted police through a friend. Police soon found Lara-Castillo, just as he was leaving his apartment with a duffel bag containing clothes, his passport, and $900 in cash. After waiving his Miranda rights, Lara-Castillo answered officers' questions and admitted touching the child, maintaining the touching was accidental. But he gave officers inconsistent details: He first said he touched only the upper part of the child's body and only with the back of his hand. But he later said he it was the front of his hand and her thigh, near her private area.

After the State presented this and other evidence at trial, Lara-Castillo moved for a judgment of acquittal, arguing there was no evidence he touched the child in a "lewd or lascivious manner." See § 800.04(5)(a), Fla. Stat. (2016) ; cf. also Chesebrough v. State , 255 So.2d 675, 677 (Fla. 1971) ("The words 'lewd' and 'lascivious' behavior when used in a statute to define an offense has been held to have the same meaning, that is, an unlawful indulgence in lust, eager for sexual indulgence."); Fla. Std. Jury Instr. (Crim.) 11.10(c) ("The words 'lewd' and 'lascivious' mean the same thing: a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act."). Lara-Castillo argued that the child never testified to intent and that the only evidence of intent was his statement that the entire incident was an accident. The court denied the motion, and Lara-Castillo raises the same argument here. We review de novo. Pagan v. State , 830 So.2d 792, 803 (Fla. 2002).

The problem with Lara-Castillo's argument is that intent is almost always established through circumstantial, rather than direct, evidence.

Green v. State , 90 So.3d 835, 837 (Fla. 2d DCA 2012) ("Intent, a state of mind, is rarely susceptible of direct proof. It is almost always shown solely by circumstantial evidence."); Manuel v. State , 16 So.3d 833, 835 (Fla. 1st DCA 2005) ("[D]irect evidence of intent is rare, and intent is usually proven through inference ...."). And while no witness testified that Lara-Castillo touched the child for "sexual indulgence" or with "sensual intent," jurors could have found he did, based on the evidence: Lara-Castillo placed the girl on his lap before touching her under her clothes and between her legs. The girl ran home scared and crying. Lara-Castillo gave inconsistent accounts of what happened, and police found him carrying a duffel bag with items consistent with an effort to flee. Cf. Twilegar v. State , 42 So.3d 177, 196 (Fla. 2010) (holding that "evidence of flight ... after the fact of a crime is admissible as 'being relevant to consciousness of guilt which may be inferred from such circumstances.' " (quoting Straight v. State , 397 So.2d 903, 908 (Fla. 1981) ) ). Considering all the evidence in the light most favorable to the State, see Ibeagwa v. State , 141 So.3d 246, 246-47 (Fla. 1st DCA 2014), we conclude a reasonable jury could find Lara-Castillo touched the child "in a lewd or lascivious manner."

Finally, we reject Lara-Castillo's separate argument that he is entitled to a new trial based on allegedly improper comments in the State's closing arguments and during his cross-examination. As Lara-Castillo acknowledges, he presented no objection to the comments below, and we conclude that there was no fundamental error.

AFFIRMED .

Jay and M.K. Thomas, JJ., concur.


author: Lewis, J.

text:
    John Eugene WILLIAMS, III, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D17-1781 1D17-1782
    District Court of Appeal of Florida, First District.
    April 18, 2018
    Andy Thomas, Public Defender, Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Lewis, J.

Appellant, John Eugene Williams, III, challenges in these consolidated cases his convictions for violating section 322.34(2)(b), Florida Statutes (2016), which makes it a first-degree misdemeanor for a person, except a habitual traffic offender, to obtain a second conviction for driving a motor vehicle while knowing that his or her driver's license or driving privilege has been canceled, suspended, or revoked. Appellant contends that the trial court erred by denying his motion to dismiss the charges because the only offense with which he can be charged is driving without a valid driver's license given that he is a habitual traffic offender and he has never had a Florida driver's license and does not fall within a statutory exemption to the licensure requirement. For the foregoing reasons, we agree and, therefore, reverse and remand.

Appellant entered a plea of no contest to two charges of violating section 322.34(2)(b), while expressly reserving his right to appeal the denial of his motion to dismiss the charges. In his motion to dismiss, filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), Appellant argued that he could only be charged with driving without a valid driver's license because he was a habitual traffic offender and he did not have a driver's license or driving privilege. Specifically, Appellant contended that he did not have a driving privilege because he did not have a Florida driver's license and he did not fall within a statutory exemption to the licensing requirement. The State did not dispute Appellant's status as a habitual traffic offender and admitted that he has never had a driver's license. The trial court denied the motion upon finding that a person who has never been issued a driver's license by any government nevertheless has a driving privilege that can be suspended or revoked and that such person can, therefore, be convicted under section 322.34(2). The court reasoned that Appellant's interpretation of the statutorily undefined term "driving privilege" in section 322.34(2) allows persons who have never had a driver's license to escape punishment due to imprecise statutory drafting, elevates an unlicensed driver to a legally superior position over a licensed driver, and contravenes the Legislature's intent to foster public highway safety.

However, recognizing that there was support for Appellant's interpretation in the case law and in chapter 322, the trial court certified the following two questions as being of great public importance:

1: Does a person who has never had a driver's license issued to them by any government (state, federal, or foreign), and who is not exempt under section 322.04, have a 'driving privilege' in the State of Florida?
2: If the answer to Question One is no, can that person nonetheless be convicted of DWLSR, in violation of either section 322.34(1) or section 322.34(2), if DHSMV has suspended or revoked that person's privilege to obtain a valid driver's license?

We have jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030 and 9.160, and we rephrase the certified questions as follows: Does a person who has never had a Florida driver's license and who is not exempt from the licensing requirement under section 322.031 or section 322.04, Florida Statutes, have a "driving privilege" such that he or she can be convicted under section 322.34(1) or section 322.34(2), Florida Statutes ? We answer the rephrased certified question in the negative.

The purpose of a motion filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) is to determine whether the undisputed facts the State will rely on establish a prima facie case, as a matter of law, so as to permit a jury to find the defendant guilty of the charged crime. State v. Depriest , 180 So.3d 1099, 1100 (Fla. 1st DCA 2015). A trial court's ruling on a motion to dismiss is reviewed de novo. Id. Questions of statutory construction are also reviewed de novo. W. Fla. Reg'l Med. Ctr., Inc. v. See , 79 So.3d 1, 8 (Fla. 2012).

The polestar of statutory construction is legislative intent. Id. at 8. To discern legislative intent, the court must first look to the plain and obvious meaning of the statute's text, which may be discerned from a dictionary. Id. at 9. If the statutory language is clear and unambiguous, the court must apply that unequivocal meaning and may not resort to the rules of statutory construction. Id. The court must give full effect to all statutory provisions and avoid readings that would render a part of a statute meaningless; additionally, the court may not construe an unambiguous statute in a way that would extend, modify, or limit its express terms or its reasonable and obvious implications. Bennett v. St. Vincent's Med. Ctr., Inc. , 71 So.3d 828, 838 (Fla. 2011). If an ambiguity exists, however, the court should look to the rules of statutory construction to help interpret legislative intent. See , 79 So.3d at 9.

"Except as otherwise authorized in [chapter 322, titled 'Driver Licenses'], a person may not drive any motor vehicle upon a highway in this state unless such person has a valid driver license issued under this chapter." § 322.03(1), Fla. Stat. (2016) ; see also § 322.39(1), Fla. Stat. (2016) ("It is a misdemeanor for any person to violate any of the provisions of this chapter, unless such violation is declared to be otherwise by this chapter or other law of this state."). Sections 322.031 and 322.04 set forth exceptions to the Florida driver's license requirement, which include nonresidents who possess a valid driver's license issued by their home state. §§ 322.031, 322.04, Fla. Stat. (2016).

Section 322.34 provides in part as follows:

(1) Except as provided in subsection (2), any person whose driver license or driving privilege has been canceled, suspended, or revoked, except a "habitual traffic offender" as defined in s. 322.264, who drives a vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked is guilty of a moving violation, punishable as provided in chapter 318.
(2) Any person whose driver license or driving privilege has been canceled, suspended, or revoked as provided by law, except persons defined in s. 322.264 , who, knowing of such cancellation, suspension, or revocation, drives any motor vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked, upon:
....
(b) A second conviction is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

§ 322.34, Fla. Stat. (2016) (emphases added); see § 322.01(5), (17), (36), (40), Fla. Stat. (2016) (defining "[d]river license" as "a certificate that, subject to all other requirements of law, authorizes an individual to drive a motor vehicle and denotes an operator's license as defined in 49 U.S.C. s. 30301," "[c]ancellation" as "the act of declaring a driver license void and terminated," "[r]evocation" as "the termination of a licensee's privilege to drive," and "[s]uspension" as "the temporary withdrawal of a licensee's privilege to drive a motor vehicle") (emphases added); see also § 322.264(1)(d), Fla. Stat. (2016) (defining "habitual traffic offender" as a person whose record shows that he or she has accumulated three or more convictions within a five-year period for "[d]riving a motor vehicle while his or her license is suspended or revoked") (emphasis added). The Legislature did not define the term "driving privilege." Cf. MERRIAM-WEBSTER , https://www.merriam-webster.com/dictionary/privilege (last visited Jan. 11, 2018) (defining "privilege" as "a right or immunity granted as a peculiar benefit, advantage, or favor").

Based on the clear and unambiguous language of the statute, a defendant who is a habitual traffic offender cannot be prosecuted under section 322.34(2). Finney v. State , 219 So.3d 254, 256 (Fla. 1st DCA 2017). Moreover, "[a] person operating a motor vehicle on the roads of this State must possess a valid license issued by the State of Florida or fall under an exception to licensure." State v. Miller , 227 So.3d 562, 564 (Fla. 2017) (citing section 322.03(1) ). Considering sections 322.03 and 322.04in pari materia , the term "driving privilege" "refers to all the individuals who may lawfully operate vehicles on Florida's roads, even if they do not possess a Florida driver license." Id. at 564. A person who does not have a Florida driver's license and who does not fall within a statutory exemption to licensure does not have any driving privilege and is guilty of driving without a valid driver's license, a violation of section 322.03. Id. at 564-65 (noting that the Legislature has not created enhanced penalties for persons who accumulate multiple violations of section 322.03 ); see also Burgess v. State, 198 So.3d 1151, 1156-58 (Fla. 2d DCA 2016) (en banc ) (interpreting "driving privilege" as "encompass[ing] an individual's ability to operate a motor vehicle in accord with law" and "at least includ[ing] both the ability to drive as conferred by a driver's license and the legal ability to drive as conferred by an exemption from licensure").

Turning to the cases before us, the trial court erred by denying Appellant's motion to dismiss for two independent reasons. First, given that it is undisputed that Appellant is a habitual traffic offender, he cannot be convicted under section 322.34(2). See § 322.34(2), Fla. Stat.; see also Finney , 219 So.3d at 256. Second, given that it is undisputed that Appellant has never had a Florida driver's license and he does not fall within a statutory exemption to the licensure requirement, he cannot be convicted under section 322.34(2). In light of Miller , we answer the rephrased certified question in the negative and conclude that a person who has never had a Florida driver's license and who is not exempt from the licensing requirement under section 322.031 or section 322.04 does not have a driving privilege such that he or she can be convicted under section 322.34(1) or section 322.34(2). A driver's license or driving privilege that does not exist cannot be canceled, suspended, or revoked.

Although in Miller , the Florida Supreme Court was called upon to resolve the conflict among the district courts of appeal about whether a person who has never possessed a driver's license may be charged under section 322.34(5), Florida Statutes, and held that he or she may not, its interpretation of the Legislature's use of the term "driving privilege" is unequivocal and applicable to our cases. Additionally, we agree with the Florida Supreme Court's interpretation of "driving privilege" as deriving from a Florida driver's license or a statutory exemption.

The language of section 322.34(2) is not clear and unambiguous as to the meaning of the term "driving privilege"; thus, resort to the rules of statutory construction is warranted. One such rule is the doctrine of in pari materia, which requires that statutes with similar subjects be construed together so as to harmonize their meaning and give effect to the Legislature's intent. Miller , 227 So.3d at 564. The Legislature made clear that it is unlawful to drive a motor vehicle on Florida highways without a valid Florida driver's license, except as otherwise authorized by chapter 322. See §§ 322.03(1), 322.39(1), Fla. Stat. Chapter 322 in turn sets forth specific exemptions to the Florida licensing requirement, such as for nonresidents, members of the army, and federal government employees. See §§ 322.031, 322.04, Fla. Stat. As Appellant persuasively argues, if the State's position were correct and people had an innate privilege to drive, there would be no need for obtaining a license and persons could not be punished for driving without one. Also, Florida courts have consistently stated that a license to drive is a privilege, not a right, that is subject to regulation. Bolware v. State , 995 So.2d 268, 274 (Fla. 2008). In addition, several statutes within chapter 322 indicate that "driving privilege" encompasses "driver license." See, e.g. , § 322.0261(2), Fla. Stat. (2016) (requiring the cancellation of certain operators' driver's license if they fail to maintain their driving privileges by attending a driver improvement course); § 322.058, Fla. Stat. (2016) (requiring in subsection (1) the suspension of the "driver license" of a person who has a delinquent support obligation or has failed to comply with certain orders, but requiring in subsection (2) the reinstatement of the person's "driving privilege" under certain circumstances); § 322.091(1), Fla. Stat. (2016) (seemingly equating "driving privileges" with "driver license or learner's driver license"); § 322.271(1)(b), Fla. Stat. (2016) (stating, "[a] person whose driving privilege has been revoked under s. 322.27(5)," but section 322.27(5) speaks only of the revocation of a driver's license). Similarly, several statutes indicate that "driving privilege" is something that is granted to persons by the government, such as to nonresidents. See, e.g. , § 322.03(1), Fla. Stat. (prohibiting driving without a valid Florida driver's license unless "authorized"); § 322.056, Fla. Stat. (2016) (speaking in terms of a person being "eligible by reason of age for a driver license or driving privilege" and requiring the courts to direct the DHSMV "to withhold issuance of [a minor's] driver license or driving privilege" under certain circumstances); § 322.091(1), Fla. Stat. (setting forth "eligibility requirements for driving privileges" for minors); § 322.263(2), Fla. Stat. (2016) (declaring the legislative intent to "[d]eny the privilege of operating motor vehicles" to persons who have demonstrated their indifference to the safety of others and their disrespect for the laws and orders); § 322.23(1), Fla. Stat. (2016) (stating, "[t]he privilege of driving ... given to a nonresident"); § 322.271(1)(a), Fla. Stat. (stating, "a person who is ineligible to be granted the privilege of driving").

Moreover, under the principle of statutory construction expressio unius est exclusio alterius , the mention of one thing implies the exclusion of another. Miller , 227 So.3d at 564. Unlike section 322.34(2), which speaks only of a "driver license or driving privilege," section 322.34(6) expressly distinguishes between persons operating a vehicle "[w]ithout having a driver license as required under s. 322.03" and "[w]hile ... driver license or driving privilege is cancelled, suspended, or revoked," which indicates that the Legislature did not intend section 322.34(2) to apply to persons who have never had a license. See § 322.34(6), Fla. Stat. (2016) (making it a third-degree felony for a person who operates a motor vehicle "without having a driver license as required under s. 322.03 ; or [w]hile his or her driver license or driving privilege is canceled, suspended, or revoked" to cause death or serious bodily injury to another by the careless or negligent operation of the vehicle). Another applicable principle of statutory construction is the rule of lenity, which posits that a criminal statute must be strictly construed and when its language is susceptible to differing constructions, it shall be construed most favorably to the accused. See State v. Weeks , 202 So.3d 1, 10 (Fla. 2016) (citing section 775.021(1), Florida Statutes ).

Interpreting "driving privilege" as authorization to drive pursuant to a valid Florida driver's license or a statutory exemption is consistent with the dictionary definition of "privilege" and with the statutory scheme in chapter 322 and gives full effect to all statutory provisions. The trial court's reason for denying Appellant's motion to dismiss, and the State's primary argument, is that under that interpretation, an unlicensed driver is punished less harshly than a licensed driver and the Legislature's intent to foster highway safety is not carried out. As we did in Finney , we again recognize that there appears to be "a gaping loophole in section 322.34" and reiterate that it is firmly established that courts must apply a statute as they find it and leave to the Legislature the correction of inconsistencies and inequalities in its operation. 219 So.3d at 256 ("[B]ecause Finney cannot be prosecuted as a habitual traffic offender under section 322.34(5) since he has never been issued a driver's license, we agree with the trial court's observation that the result in this case 'goes against public policy and neglects public safety.' Indeed, there appears to be a gaping loophole in section 322.34 because as the statute is written, an offender who is a habitual traffic offender but who has never had a driver's license can escape felony punishment and receive a lesser punishment than a habitual traffic offender who had obtained a license.").

Therefore, we reverse and remand with instructions to vacate Appellant's convictions under section 322.34(2)(b) and adjudicate him guilty of the lesser-included offenses of driving without a valid driver's license.

REVERSED and REMANDED .

B.L. Thomas, C.J., and Makar, J., concur.

      Department of Highway Safety and Motor Vehicles.

      We note that the trial court did not have the benefit of Finney or Miller as its order denying Appellant's motion preceded those decisions.

      In Finney , we questioned whether the petitioner actually met the statutory definition of a "habitual traffic offender" given that his designation was based on convictions for driving while his driving privilege was suspended or revoked, whereas section 322.264(1)(d) requires convictions for driving while the offender's license is suspended or revoked. 219 So.3d at 255 n.3. Nevertheless, we considered the petitioner a habitual traffic offender for the purposes of the case because the State did not dispute his assertion that he was one. Id. Likewise, here, the State did not deny in its traverse and demurrer, at the hearing on the motion to dismiss, or now on appeal that Appellant is a habitual traffic offender. To the contrary, in making a sentence recommendation, the State argued that Appellant was a habitual traffic offender. Appellant's driver record reflects that he was designated as a habitual traffic offender in 2001 and that he had five convictions between 1999 and 2003, and two additional ones in 2015, for driving while his driving privilege was suspended or revoked. Given such, we consider Appellant a habitual traffic offender for the purposes of these cases.

      Section 322.34(5) provides that "[a]ny person whose driver license has been revoked pursuant to s. 322.264 (habitual offender) and who drives any motor vehicle upon the highways of this state while such license is revoked is guilty of a felony of the third degree ...." § 322.34(5), Fla. Stat. (2016) (emphasis added).


author: B.L. Thomas, C.J.

text:
    Leo C. BETTEY Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D17-0064
    District Court of Appeal of Florida, First District.
    April 18, 2018
    Leo C. Bettey Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We affirm the order denying relief for the reasons discussed below.

Following a jury trial, Appellant was convicted of four counts of capital sexual battery on a person under the age of 12 for specific sexual acts on M.B. and J.B., and was sentenced to concurrent terms of life in prison. This court affirmed his convictions and sentences, without opinion. Bettey v. State , 136 So.3d 1216 (Fla. 1st DCA 2014).

Appellant filed a postconviction motion arguing that he should have been tried by twelve jurors instead of six. The trial court denied the motion, and this court dismissed that appeal.

Appellant next filed a timely motion for postconviction relief alleging four claims of ineffective assistance of counsel. A claim of ineffective assistance of counsel is governed by Strickland v. Washington , 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove ineffective assistance, an appellant must allege 1) the specific acts or omissions of counsel which fell below a standard of reasonableness under prevailing professional norms, see id. at 690, 104 S.Ct. 2052 ; and 2) that the appellant's case was prejudiced by these acts or omissions such that the outcome of the case would have been different, see id. at 694, 104 S.Ct. 2052. To prove the first prong, "[t]he defendant must allege specific facts that, when considering the totality of the circumstances, are not conclusively rebutted by the record and that demonstrate a deficiency on the part of counsel which is detrimental to the defendant." Blackwood v. State , 946 So.2d 960, 968 (Fla. 2006) (citing LeCroy v. Dugger , 727 So.2d 236, 239 (Fla. 1998) ). The prejudice prong requires that Appellant demonstrate a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. See Strickland , 466 U.S. at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Appellant must demonstrate a likelihood of a different result which is substantial and not just conceivable. Harrington v. Richter , 562 U.S. 86, 112, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

In ground one, Appellant alleged that counsel was ineffective for failing to secure a ruling on a motion for a statement of particulars that sought to narrow the time frame during which the alleged offenses occurred. The information alleged that the three offenses against M.B. occurred between April 1, 2010 and April 10, 2012, while the offense against J.B. was alleged to have taken place between December 11, 2011 and April 9, 2012. Appellant alleged that if counsel had secured a ruling on the motion for a statement of particulars, and had the time frame shortened in the information, the State would not have been able to prove that the crimes occurred during that time frame. Thus, Appellant argues, he would have been entitled to be discharged, because "[w]hen a bill of particulars narrows the time within which the crime occurred, and the prosecution fails to show the defendant committed the offense within that time frame, a conviction on the charge must be reversed." Audano v. State , 674 So.2d 882 (Fla. 2d DCA 1996) (citing State v. Jefferson , 419 So.2d 330, 331-32 (Fla. 1982) ).

At trial in March 2013, M.B. testified that she was eight years old and that the abuse started when she was three. The State also introduced a video of the victims' interviews with a Child Protective Team member that occurred on April 12, 2012. In the interview, M.B. stated that the abuse started when she was five and continued until shortly before the interview. J.B. testified at trial that she was six years old, and that the abuse began when she was five years old; in her interview with the Child Protective Team member, J.B. stated she was five years old and she was not sure when the abuse started, but she was probably four years old.

Thus, the testimony indicates that the victims could not provide exact dates, but could only provide how old they were at the time, therefore, the State would not have been able to produce a statement of particulars. But contrary to Appellant's arguments, this would not have led to an acquittal or dismissal of the charges, as the State may charge a date range, and need not specify exact dates if they are not known. See Lightbourne v. State , 438 So.2d 380, 384 (Fla. 1983). The two-year date ranges alleged by the State were proper. Id. ("[I]t is not necessary that an indictment or information state the exact date of the offense if such date is not known."). Because the State could not narrow the time frame, and Appellant was not hindered in his ability to raise a defense, his claim fails. Cf. Dell'Orfano v. State , 616 So.2d 33 (Fla. 1993) (noting that 27-month time frame is not per se objectionable in a sexual-battery case). Thus, Appellant cannot show that he was prejudiced by counsel's failure to secure a ruling on his motion for a statement of particulars.

In ground two, Appellant alleged that counsel was ineffective for failing to move for a judgment of acquittal, because the State failed to prove that the crimes occurred during the range of the dates alleged in the information. This claim is meritless as well. The evidence was sufficient to show that M.B.'s abuse occurred between April 1, 2010 (when she would have been five years old) and April 12, 2012. Further, the evidence indicated the abuse to J.B. occurred when she was five years old, a period of time encompassed in the December 11, 2011 to April 2012 date range.

Finally, even if the State failed to prove the crimes occurred during the dates alleged, Appellant would not be entitled to relief. In order to overcome a motion for judgment of acquittal, the State must put forth evidence of each element of the crime. See K.S. v. State , 840 So.2d 1116 (Fla. 1st DCA 2003). The State was not required to prove that the crime took place on the exact dates listed in the information, as that is not an element of the offense. In Tingley v. State , 549 So.2d 649, 651 (Fla. 1989), the supreme court held that the date of a sexual offense alleged in the information does not have to be proven at trial:

[T]ime is not ordinarily a substantive part of an indictment or information and there may be a variance between the dates proved at trial and those alleged in the indictment or information as long as: (1) the crime was committed before the return date of the indictment; (2) the crime was committed within the applicable statute of limitations; and (3) the defendant has been neither surprised nor hampered in preparing his defense.

Here, the crime was committed before Appellant was charged, and there could be no statute of limitations violation.

Finally, there was no hampering of the defense. Both victims alleged the acts occurred when they were five years old and living with Appellant. As such, any motion for judgment of acquittal based on the failure to prove the date of the crime could not have been granted.

In ground three, Appellant argued that counsel was ineffective for failing to object to the following statements made by the prosecutor during closing argument, which he contends (1) bolstered the credibility of the witnesses and (2) demeaned his defense:

(a) "It's not reasonable to believe that they weren't doing anything other than telling you the truth."
(b) the CPT interviewer "has no interest in the outcome of this case";
(c) "the truth is what [the victims] told you happened";
(d) "there's no reasonable reason for these girls to lie";
(e) it was painful for both victims to tell the truth;
(f) the victims' mother was "telling you the truth";
(g) "the truth is what [the victims] told you";
(h) the victims' disclosures could not be "anything other than the truth"; and
(i) the Child Protective Team interviewer "didn't have an interest in this case."

"Improper prosecutorial 'vouching' for the credibility of a witness occurs 'where a prosecutor suggests that she has reasons to believe a witness that were not presented to the jury,' or, stated differently, where the prosecutor 'implicitly refers to information outside the record.' " Whigham v. State , 97 So.3d 274, 275 (Fla. 1st DCA 2012) (quoting Jackson v. State , 89 So.3d 1011, 1018 (Fla. 4th DCA 2012) ). However, where the arguments arose in the context of explaining why the jury should find the witness credible based upon the evidence, a prosecutor's comments that a State witness was open, honest, and telling the truth were held to be a valid expression of the prosecutor's opinion. Jackson , 89 So.3d at 1018-19.

Here, nothing in the challenged arguments indicates that the prosecutor was relying on information outside of the record or that he had reasons to believe the victims or the victims' mother that were not presented to the jury. The context of the statements indicate that the prosecutor was arguing why the jury should find the victims credible.

As to statement (a), the prosecutor provided three reasons for his assertion that the victims were credible: they took an oath, their testimony was very specific regarding the sexual acts which occurred, and they did not have a reason to lie. As to statements (b) and (i), the prosecutor stated that the interviewer did not know the victims or the victims' family, and thus did not have any interest in the outcome of the case other than to protect the children. As to statement (c), the prosecutor alleged that what the victims said was the truth was based on the evidence. As to statement (d), the prosecutor was arguing that, contrary to Appellant's defense, the victims did not have a motive to lie so their mother could get Appellant's house, as they already had possession of that house. As to statement (e), the State was making the common-sense observation that it would be easier for the victims to deny the abuse than to speak in detail of the abuse with their mother, multiple Department of Children and Families investigators, the State Attorney's office, and in front of the jury. As to statement (f), the prosecutor was arguing that it would have been easier for the mother to make the allegations than to have both of her daughters make the allegations. As to statement (g), the prosecutor was arguing that the victims were telling the truth based on the evidence. Thus, all the challenged statements were fair arguments, based on the evidence as to why the witnesses should be believed.

As to the State's alleged demeaning of Appellant's defense, Appellant objected to the prosecutor's arguments that: (1) the testimony about the quitclaim deed is not something the jury has to consider; (2) Appellant's defense is not something for the jury to consider; (3) nothing that defense counsel talked about in her closing argument mattered; and (4) the only thing that mattered was the testimony of the victims, not Appellant's defense. "If 'improper comments by a prosecutor do not constitute reversible error, the defendant 'cannot demonstrate the prejudice requisite for a successful ineffective assistance of counsel claim' relating to counsel's failure to object to the comments." Taylor v. State , 120 So.3d 540, 551 (Fla. 2013) (quoting Lugo v. State , 2 So.3d 1, 17 (Fla. 2008) ).

To show entitlement to a new trial based upon improper prosecutorial comments, such comments must

either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise.

Walls v. State , 926 So.2d 1156, 1167 (Fla. 2006) (quoting Spencer v. State , 645 So.2d 377, 383 (Fla. 1994) ). "Wide latitude is permitted in arguing to a jury. Logical inferences may be drawn, and counsel is allowed to advance all legitimate arguments." Breedlove v. State , 413 So.2d 1, 8 (Fla. 1982) (citations omitted).

None of the allegedly objectionable comments were improperly insulting or demeaning to Appellant's defense. Instead, the prosecutor was arguing that the evidence suggested that Appellant's defense was not credible. Specifically, Appellant alleged that the victims fabricated the abuse, because their mother wanted possession of Appellant's house, which he had signed over to her in a quitclaim deed. However, the challenged comments were fair argument that Appellant's defense was not persuasive, as Appellant signed the quitclaim deed four months before the victims came forward with the allegations, and the mother could possess the house without forcing her children to fabricate and report graphic sexual abuse allegations. The prosecutor's statement that nothing Appellant's attorney talked about in closing argument mattered, or that only the children's testimony should be believed, constituted a valid argument that Appellant's defense was not reasonable in light of the evidence.

Here, two small children testified in graphic detail as to Appellant's sexual abuse of them. Even were we to hold that defense counsel provided deficient representation, which we do not, we would hold that none of the alleged errors of counsel prejudiced Appellant, as there is no reasonable probability that he would have been acquitted. Thus, Appellant has failed to demonstrate prejudice. Strickland , 466 U.S. at 694, 104 S.Ct. 2052.

AFFIRMED .

Wolf and Ray, JJ., concur.

      Although Appellant's appeal was dismissed following non-payment of the filing fee or submission of the trial court's order of insolvency, such a claim is meritless. See Williams v. Fla. , 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) ; State v. Hogan , 451 So.2d 844 (Fla. 1984).

      Appellant's fourth claim was one of cumulative error. As we hold Appellant's claims in grounds one through three were meritless, as explained below, ground four was meritless as well. See Morris v. State , 931 So.2d 821, 837 (Fla. 2006) (denying claim based on cumulative error where the individual claims making up the cumulative claim were either procedurally barred or without merit).

      There is no statute of limitations for capital sexual battery. See § 775.15(1), Fla. Stat. (2012).

      Appellant alleged that his defense was that the victims' mother coached the victims into making the allegations in order to gain possession of his house.


author: Wolf, J.

text:
    SIMON'S TRUCKING, INC., Appellant, v. Charles A. LIEUPO, Appellee.
    No. 1D17-2065
    District Court of Appeal of Florida, First District.
    April 18, 2018
    Jason Gonzalez and Amber Stoner of Shutts & Bowen LLP, Tallahassee, for Appellant.
    Frank A. Shepherd of Gray Robinson, P.A., Miami, for Amicus Curiae Florida Justice Reform Institute, in support of Appellant.
    Peter D. Webster of Carlton Fields, Tallahassee; Michael J. Damaso, II, and Jackson W. Adams of Wooten Kimbrough, P.A., Orlando, for Appellee.
   Wolf, J.

Appellant, Simon's Trucking, challenges a judgment entered in favor of Charles Lieupo, appellee, awarding him damages for personal injuries that the jury found he suffered after a tractor-trailer owned by Simon's Trucking was involved in an accident. Simon's Trucking argues the case should never have gone to trial because the Florida Supreme Court held that the statutory cause of action created by section 376.313(3), Florida Statutes, under which Lieupo filed his claim, does not permit recovery for personal injuries. We agree and reverse, though we certify a question of great public importance asking the supreme court to clarify the issue.

I. Facts

Lieupo filed a complaint against Simon's Trucking, alleging it was strictly liable for injuries he suffered after one of its tractor-trailers was involved in an accident while transporting batteries, spilling battery acid onto the highway. Lieupo alleged he responded to the scene to tow away the truck and came into contact with the battery acid, which caused him serious personal injuries. He filed his complaint under section 376.313(3), Florida Statutes, which imposes strict liability for the discharge of certain types of pollutants.

Simon's Trucking argued that Lieupo could not seek recovery under section 376.313(3) because that statute did not permit recovery for personal injury. The trial court rejected this argument, and the case proceeded to trial. The jury found the battery acid caused Lieupo's injuries and awarded him a total of $5,211,500 in damages. This appeal follows.

II. Analysis

The sole issue before this court is whether section 376.313(3) permits recovery for personal injury. This question of statutory interpretation presents a pure question of law, reviewed de novo. Hardee Cty. v. FINR II, Inc. , 221 So.3d 1162, 1165 (Fla. 2017), reh'g denied , SC15-1260, 2017 WL 3015682 (Fla. July 17, 2017).

We conclude that the supreme court's decision in Curd v. Mosaic Fertilizer, LLC , 39 So.3d 1216 (Fla. 2010), precludes personal injury claims from being brought under section 376.313(3), but we certify a question of great public importance asking the court to clarify this issue.

A. Framework of Chapter 376

Chapter 376 regulates the discharge and removal of certain pollutants. The two portions of chapter 376 at issue in this case are the Pollutant Discharge and Control Act, passed in 1970 and codified at sections 376.011 - 376.21, Florida Statutes (the "1970 Act"), and the Water Quality Assurance Act, passed in 1983 and codified at sections 376.30 - 376.317, Florida Statutes, (the "1983 act"). The 1970 act is intended to protect coastal waters and adjoining lands, whereas the 1983 act is intended to combat pollution to surface and ground waters. §§ 376.021, 376.041, 376.30(1)(b), & (2)(b), Fla. Stat.

Each act established a private cause of action to recover damages caused by pollution covered under that act. The 1970 act permits "any person" to bring a cause of action for "damages," which are defined as "the ... loss of any real or personal property, or ... destruction of the environment and natural resources, including all living things except human beings ." §§ 376.205 & 376.031(5), Fla. Stat. (emphasis added). This definition of "damages" expressly states it applies to the 1970 act. § 376.031, Fla. Stat. ("When used in ss. 376.011-376.21 ... the term: ... 'Damage' means ....").

The 1983 act, under which appellee brought his cause of action, permits "any person [to] bring[ ] a cause of action ... for all damages resulting from ... pollution" regulated by that act. § 376.313(3), Fla. Stat. (emphasis added); see also Aramark Unif. & Career Apparel, Inc. v. Easton , 894 So.2d 20, 28 (Fla. 2004) (finding the cause of action created by section 376.313(3) is one of strict liability). The 1983 act has its own definitional section, but it does not include a definition of the word "damages." § 376.301, Fla. Stat.

B. Curd v. Mosaic Fertilizer, LLC , 39 So.3d 1216 (Fla. 2010)

The Florida Supreme Court applied the 1970 act's definition of "damages" to a cause of action brought under the 1983 act in Curd v. Mosaic Fertilizer, LLC , 39 So.3d 1216, 1220 (Fla. 2010). However, the parties dispute whether this application was dicta, or whether the supreme court intended to hold that this definition of damages applies in all causes of action brought under section 376.313(3). This presents a close question primarily because the opinion alternatingly states that the court relied solely on the plain language of section 376.313(3) to reach its decision and that the court relied on an in pari materia reading of the definition of "damages" from the 1970 act. We find the court's application of the definition of "damages" from the 1970 act was part of the court's holding and not dicta; however, we certify a question of great public importance asking the court to clarify the matter.

In Curd , fishermen brought a cause of action under the 1983 act seeking damages for economic loss they suffered after pollution contaminated the waters where they fished. Id. at 1218. The trial court dismissed their claim because the fishermen lacked an ownership interest in the fish. Id. at 1219. The Second District affirmed that decision, but the supreme court reversed. Id. The supreme court framed the issue before it as "whether the private cause of action recognized in section 376.313(3), Florida Statutes (2004), allows commercial fishermen to recover damages for their loss of income despite the fact that the fishermen do not own any property damaged by the pollution." Id. at 1220. There was no action for personal injury brought in that case.

The court began by explaining, "In reaching our conclusion that chapter 376, Florida Statutes (2004), allows a cause of action by these plaintiffs, we have construed several provisions of the chapter in pari materia and given effect to the various sections." Id. Specifically, the court construed sections 376.315 and 376.30 as expressing a legislative intent for the 1983 act to be "liberally construed" to promote public and private interests, including "public health and safety," "the environment,"

and "other interests deriving livelihood from the state." Id. at 1221 (citing §§ 376.315 & 376.30(2)(b), Fla. Stat.).

The court then stated, "We find that section 376.313(3) and the language used in section 376.30 are clear and unambiguous , and we rely solely on their plain language to discover the legislative intent." Id. The court quoted section 376.313(3) and emphasized that it provides "any person " may bring a cause of action for "all damages." Id.

However, the court then applied the definition of "damages" from the 1970 act, characterizing it as applying to the entirety of chapter 376: " 'Damage,' as used in chapter 376, is defined as '... destruction to or loss of any real or personal property ... or ... any destruction of the environment and natural resources, including all living things except human beings, as the direct result of the discharge of a pollutant.' " Id. (emphasis added) (quoting § 376.031(5), Fla. Stat ). The court noted this definition permitted recovery not only for damages to real or personal property, but also for damages to natural resources. Id. at 1222. Further, the court noted that a lack of ownership of the damaged property was not one of the expressly enumerated defenses provided in the 1983 act. Id. The court concluded:

In sum, the Legislature has enacted a far-reaching statutory scheme aimed at remedying, preventing, and removing the discharge of pollutants from Florida's waters and lands. To effectuate these purposes, the Legislature has provided for private causes of action to any person who can demonstrate damages as defined under the statute . There is nothing in these statutory provisions that would prevent commercial fishermen from bringing an action pursuant to chapter 376.

Id. (emphasis added).

In a concurrence, Justice Polston agreed with the majority's conclusion that the fishermen could bring their cause of action under the 1983 act. Id. at 1229-30. However, he disagreed with the majority's application of the "restrictive" definition of damages from the 1970 act because "the Legislature specified in section 376.031 that the definition only applies to ... the 1970 act." Id. at 1230. Instead, he stated the majority should have liberally construed the "plain meaning" of the "all damages" language from the 1983 act and concluded that "all damages" included the fishermen's claims of economic loss. Id.

It is somewhat difficult to determine whether the majority intended its in pari materia application of the definition of damages from the 1970 act to the fishermen's cause of action brought under the 1983 act to be its holding, or merely dicta.

Lieupo argues that Curd was not a personal injury case, and the court could not have intended to hold that this more restrictive definition of damages should be applied to prohibit all personal injury claims from being brought under the 1983 act. Such a holding would contradict the plain language of section 376.031, which states the "damages" definition only applies to the 1970 act. It would also contradict the court's statement that it reached its decision based "solely" on the "plain language" of sections 376.313(3) and 376.30, and the court's finding that the 1983 act should be liberally construed.

Instead, Lieupo suggests the supreme court merely looked to the 1970 act's definition for "guidance" and did not reach the question of whether only those damages available under the 1970 act could be sought under the 1983 act.

We cannot, however, overlook the fact that the Curd court specifically found the 1970 definition of damages was applicable to the fishermen's cause of action brought under the 1983 act. A court's statement is dicta if it is "not essential to the decision of that court." State ex rel. Biscayne Kennel Club v. Bd. of Bus. Regulation of Dep't of Bus. Regulation , 276 So.2d 823, 826 (Fla. 1973). "When a court makes a pronouncement of law that is ultimately immaterial to the outcome of the case, it cannot be said to be part of the holding in the case." Lewis v. State , 34 So.3d 183, 186 (Fla. 1st DCA 2010).

In order for the Curd court to answer the central question in that case of whether the fishermen's claims could be brought under the 1983 act, the court first had to determine what scope of damages was available under that act. The court found this scope of damages was defined by the 1970 act. The majority was clearly aware that the 1970 act's definition of damages stated that it was only applicable to that act, because Justice Polston pointed it out in his concurrence. Justice Polston also suggested that the majority could have proceeded by solely considering the plain meaning of the "all damages" language from the 1983 act. However, the majority did not follow that approach and instead found that the 1970 act's definition of damages was applicable to causes of action brought under the 1983 act. Thus, we cannot find that application was dicta.

As such, we are required to apply the 1970 act's definition of damages here, which precludes appellee's cause of action for personal injuries. However, because it is difficult to discern whether the Curd court actually intended for this definition of damages from the 1970 act to be applied to all causes of action brought under the 1983 act, we certify the following question as one of great public importance:

DOES THE PRIVATE CAUSE OF ACTION CONTAINED IN SECTION 376.313(3), FLORIDA STATUTES , PERMIT RECOVERY FOR PERSONAL INJURY ?

REVERSED ; QUESTION CERTIFIED .

Roberts and Wetherell, JJ., concur.

      Simon's Trucking raised this issue through a motion to dismiss, a motion for summary judgment, a motion for directed verdict, and a motion for judgment notwithstanding the verdict, all of which were denied by the trial court.

      During the trial, Simon's Trucking argued that Lieupo's injuries were caused by ant bites rather than battery acid and that his medical expenses were paid for by workers' compensation coverage. However, the narrow issue raised by Simon's Trucking on appeal does not pertain to these arguments. During oral argument, counsel for Simon's Trucking also acknowledged that the issue of whether the amount of damages was excessive was not before this court.

      Appellee also argues there is no indication that the Curd court intended to overturn Cunningham v. Anchor Hocking Corp. , 558 So.2d 93, 94 (Fla. 1st DCA 1990), which he interprets to have held that personal injury claims can be brought under the 1983 act. Though the plaintiffs in Cunningham sought damages for personal injuries, that court was not asked to address whether personal injury damages were recoverable under the 1983 act. Instead, the Cunningham court considered the limited issues of whether the 1983 act was applicable to certain gaseous pollutants and whether the alleged events occurred prior to the statute's effective date. Id. at 99. As such, Cunningham is not controlling.


author: Taylor, J.

text:
    Shan C. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1942
    District Court of Appeal of Florida, Fourth District.
    April 18, 2018
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   Taylor, J.

Appellant pled no contest to charges of criminal mischief arising from extensive damage he caused to two motor vehicles owned by the victim, including a 2001 Ford Explorer, and to one motor vehicle owned by the victim's sister. Appellant bashed the vehicles with a crowbar while they were parked in front of the victim's home. As part of the plea agreement, appellant was placed on probation. The issue on appeal concerns the restitution award for damage to the 2001 Ford Explorer. We conclude that, under the circumstances of this case, the trial court was required to determine the amount of restitution through evidence of the fair market value of the vehicle. We therefore reverse and remand for further proceedings.

At the restitution hearing, evidence showed that the 2001 Ford Explorer was totaled. The state did not introduce any evidence of the fair market value of the vehicle at the time of the offense, but instead sought to prove the amount of restitution by introducing a repair estimate for the vehicle. A body shop owner gave the victim a repair estimate in the amount of $5,902.06. He testified that the estimated repairs were the "bare minimum" necessary to make the vehicle drivable. In his opinion, the cost of repairing the vehicle would be more than the vehicle was worth, so he "didn't want to pile on." On cross-examination, he admitted that he had not seen the vehicle before the incident and did not know how much of the damage was caused by appellant.

The victim did not have the vehicle repaired. She believed that spending money to repair the vehicle did not make sense, explaining: "[It was] not fixable. I mean the money I would spend in the car it wouldn't make sense. I could get a new car and start over again. Who wants to be in a car that was bashed?" The victim had the vehicle towed away from her property, never reclaimed it, and acknowledged that it "might not exist anymore." She did not make an insurance claim for the vehicle and, because of appellant's misconduct, has been without a vehicle for over a year and a half.

Over defense counsel's objection to the lack of evidence regarding the condition or fair market value of the vehicle at the time it was damaged, the trial court found that the purpose of restitution would be served by awarding restitution to the victim based on the estimated cost to repair the damage to the vehicle. The trial court consequently entered a restitution order requiring appellant to pay restitution in the amount of $5,902.06.

On appeal, appellant argues that the trial court erred in ordering him to pay restitution based on the estimated cost to repair the vehicle, where no repairs were made or intended to be made and where there were no unique circumstances showing that fair market value would not adequately compensate the victim for the loss.

The state responds that "where Appellant entered a plea, where the amount awarded involved only that which would make the car drivable again, and which compensated [the victim] for Appellant's actions, the award should be upheld as within the trial court's discretion despite it not factoring in the fair market value."

A trial court's determination of the amount of restitution is reviewed for an abuse of discretion. Soriano v. State , 968 So.2d 112, 114 (Fla. 4th DCA 2007). The state bears the burden of proving the amount of restitution, and the restitution award must be supported by competent substantial evidence. Bennett v. State , 944 So.2d 524, 525 (Fla. 4th DCA 2006). "Where restitution is part of a plea bargain, it should be liberally construed in favor of making the victim whole." Hercule v. State , 655 So.2d 1256, 1257 (Fla. 3d DCA 1995). However, a restitution award cannot require payment in excess of the amount of damage the defendant's conduct caused the victim. Morel v. State , 547 So.2d 341, 342 (Fla. 2d DCA 1989).

"[A] court is not tied to fair market value as the sole standard for determining restitution amounts, but rather may exercise such discretion as required to further the purposes of restitution." State v. Hawthorne , 573 So.2d 330, 333 (Fla. 1991). In most cases, "the victim's loss and the fair market value of the property at the time of the offense will be the same." Id. However, there may be "instances when the market value of the property would not adequately reflect the victim's loss or when the consideration of the percentage of depreciation would be inequitable." Id. (footnotes omitted). Moreover, restitution is intended not only to compensate the victim, but also to serve other goals of the criminal justice system, including rehabilitation, deterrence, and retribution. Id.

Absent circumstances tending to show that fair market value does not adequately compensate the victim or otherwise serve the purposes of restitution, the amount of restitution should be established through evidence of fair market value at the time of the loss. Wolff v. State , 981 So.2d 651, 653 (Fla. 4th DCA 2008) ; Domaceti v. State , 616 So.2d 1148, 1149 (Fla. 4th DCA 1993). As the Florida Supreme Court has explained, "[w]here it is determined that a restitution amount equal to fair market value adequately compensates the victim or otherwise serves the purposes of restitution," the fair market value should be established either through direct testimony or through evidence of the following four factors: (1) original market cost; (2) manner in which the item was used; (3) the general condition and quality of the item; and (4) the percentage of depreciation. Hawthorne , 573 So.2d at 332-33.

Examples of circumstances where fair market value would not adequately compensate the victim include theft of a family heirloom, a new automobile, or an older car that had been repaired shortly before the theft. Domaceti , 616 So.2d at 1149. For instance, in Dickens v. State , 556 So.2d 782 (Fla. 2d DCA 1990), the Second District affirmed a restitution award of $1,900, which consisted of $1,000 the victim paid for the car, $600 the victim put into the car for repairs and improvements, and $300 the victim was charged for removing the car from the bay after it was stolen. Emphasizing that fair market value was "not the only way" to determine the amount of the loss, the appellate court declared: "While the court clearly rejected the fair market value standard in favor of charging the defendant the amount paid for the car plus improvements, the only evidence before it supported that figure and the defendant presented nothing to controvert it." Id. at 784-85.

Under certain circumstances, an alternative measure of restitution can be the cost of repairing the victim's damaged property. See, e.g., Gilileo v. State , 923 So.2d 612, 614 (Fla. 2d DCA 2006). However, awarding restitution for the cost of repairs requires proof of either: (1) repairs that were actually performed; or (2) repairs that were expected to be performed. See Hunter v. State , 48 So.3d 174, 175 (Fla. 4th DCA 2010) (holding that a restitution award was error, in part because "the victim testified that she paid $1000 for repairs to her home, but did not indicate what repairs were actually performed"); I.M. v. State , 917 So.2d 927, 932-35 (Fla. 1st DCA 2005) (affirming portion of restitution order compensating the school for the cost of a building restoration, including for repair work that was already completed and repair work that was expected to be completed).

Here, the trial court abused its discretion in awarding restitution to the victim based on the estimated cost to repair the damage to the 2001 Ford Explorer. The state did not present any evidence of the fair market value of the vehicle at the time of the offense. Nor did the state demonstrate any special circumstances, such as sentimental value or recent repairs, showing that the fair market value of the vehicle would not adequately compensate the victim or otherwise serve the purposes of restitution. Moreover, the cost of repairing the vehicle is not an appropriate measure of restitution where no repairs were performed or intended to be performed.

The state's reliance on Dickens is misplaced because there, unlike here, the trial court was ordering the defendant to pay restitution based on the victim's actual out-of-pocket costs. The trial court in Dickens was thus acting within its discretion in rejecting the fair market value standard, absent contrary evidence from the defendant to support a different figure.

In sum, because there were no circumstances justifying an exception to the fair market value rule, the trial court was required to determine the amount of restitution through evidence of fair market value at the time of the loss. Accordingly, we reverse and remand for further proceedings to determine the amount of restitution based on the fair market value of the vehicle. See Wolff , 981 So.2d at 653 (reversing restitution award as to the amount for the replacement cost of stolen car equipment and accessories, and directing that on remand "the trial court use the fair market value in re-calculating the award for those items").

Reversed and Remanded for further proceedings.

Gross and Kuntz, JJ., concur.


author: PER CURIAM.

text:
    Wilfredo PEREIRA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1096
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 20, 2018 Rehearing Denied May 30, 2018
    James S. Purdy, Public Defender, and David M. Dixon, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the judgment and sentence entered against Wilfredo Pereira after a jury found him guilty of dealing in stolen property. However, because the trial court failed to enter a written competency order after independently determining Pereira was competent to proceed, we remand for entry of a nunc pro tunc written order finding him competent. See Fla. R. Crim. P. 3.212(b), (c)(7) ; Dougherty v. State, 149 So.3d 672, 678-79 (Fla. 2014) (finding trial court may by stipulation decide issue of competency based on written reports alone but must enter written order if defendant is found competent to proceed); Ortiz v. State, 55 So.3d 724, 724 (Fla. 5th DCA 2011) (affirming judgment and sentence but remanding for entry of written competency order).

AFFIRMED; REMANDED with directions.

BERGER, WALLIS and EISNAUGLE, JJ., concur.