text:
    Jennifer DOWNS and William Downs, Appellants, v. Ruth D. LEDOUX-NOTTINGHAM, Appellee.
    Case No. 5D16-468
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 19, 2017

      Andrew T. Windle, of The Windle Family Law Firm, P.A., Orlando, for Appellants.
    Jamie Billotte Moses, of Holland & Knight LLP, Orlando, for Appellee.
   PER CURIAM.

This case is before this Court for the second time after the trial court denied the grandparents’ request for make-up visitation with their two minor grandchildren. In the first case, Ledoux-Nottingham v. Downs, 163 So.3d 560 (Fla. 5th DCA 2015), this Court upheld the trial court’s enforcement of the Colorado order awarding the grandparents visitation with the minor children pursuant to the Full Faith and Credit Clause of the United States Constitution and the Uniform Child Custody Jurisdiction and Enforcement Act (UC-CJEA), as set forth, in part, in section 61.526(1), Florida Statutes (2013). The Florida Supreme Court affirmed our opinion in Ledoux-Nottingham v. Downs, 210 So.3d 1217, 1219 (Fla. 2017). In the initial ease, this Court held that the issue of make-up visitation or timesharing was not ripe for review. 163 So.3d at 564. On remand, the trial court denied the grandparents’ motion for make-up grandparent visitation as a -matter of law, finding section 61.13, Florida Statutes (2013), inapplicable, as it only explicitly authorizes make-up timesharing for parents, and holding that there was no other authority authorizing the award of such make-up visitation.

The Florida Supreme Court stated in no uncertain terms that the Colorado grandparent visitation order—which was entered in compliance with the Parental Kidnapping Prevention Act of 1980 (PKPA) —is by the express terms of the PKPA subject to the commands of the Full Faith and Credit Clause. Ledoux-Nottingham, 210 So.3d at 1221. In order to give the Colorado order full faith and credit, the grandparents are entitled to enforce their grandparent visitation rights in Florida. The remedy provided in the Florida Statutes due to a party’s refusal to honor timesharing rights is make-up timesharing to the nonoffending party under section 61.13(4)(c). See § 61.13(4)(c), Fla. Stat. (2013) (stating a court shall award makeup timesharing where the refusal is “without proper cause”). In this sense, make-up visitation “square[s] the loss of past visitation rights.” Morales v. Morales, 915 So.2d 247, 249 n.1 (Fla. 5th DCA 2005). Furthermore, section 61.526, titled “Duty to enforce,” authorizes the award of “any remedy” to enforce another state’s child custody determination. § 61.526, Fla. Stat. (2013). We construe these provisions together, and conclude that the grandparents are entitled to pursue the remedy of make-up visitation. As a result, we reverse and remand this matter to the trial court for determination of the issue of make-up visitation. The trial court must determine whether it would be in the children’s best interest for the grandparents to receive make-up visitation and if so, order time-sharing in a manner fitting the best interests of the children. See Cheek v. Hesik, 73 So.3d 340 (Fla. 1st DCA 2011).

REVERSED and REMANDED.

EVANDER and EDWARDS, JJ., and JACOBUS, B.W., Senior Judge, concur.

      . U.S. Const., Art. IV, § 1.

      . Pub. L. 96-611, §§ 6-10, 96 Stat. 3568 (1980).

      . We note, for clarification, that the trial court was remiss when it stated that the application of the PKPA, a "federal statute” is "for a federal appellate court or the U.S. Supreme Court, not me” as modification and enforcement of interstate child custody determinations in Florida are governed by both the UCCJEA and the PKPA.


source: Caselaw Access Project

author: EVANDER, J.

license: Public Domain

text:
    ROCKLEDGE NH, LLC, Greystone Healthcare Management Corp. and Julie D. Morris (as Rockledge Health and Rehabilitation Center), Appellants, v. Mary Elizabeth MILEY, BY AND THROUGH, Bruce W. MILEY, Attorney in Fact, Appellee.
    Case No. 5D16-812
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 19, 2017

      Thomas A. Valdez, Karen M. Shimon-sky, and Jade M. Gummer, of Quintarnos, Prieto, Wood & Boyer, P.A., Tampa, for Appellants.
    Megan L. Gisclar, and Joanna Greber Dettloff, of Wilkes & McHugh, P.A., Tampa, for Appellee.
   EVANDER, J.

Rockledge NH, LLC, Greystone Healthcare Management Corp., and Julie D. Morris (“Appellants”) appeal an order denying their motion to compel arbitration. We conclude that the arbitration agreement at issue contains an attorneys’ fee provision that violates public policy. However, because the attorneys’ fee provision could be properly severed from the arbitration agreement, it was error for the trial court to deny the motion to compel arbitration.

In September 2013, Mary Miley was admitted to Rockledge Health and Rehabilitation Center (“the facility”). During her admission process, Miley signed an admission agreement that included an arbitration provision:

The facility and the resident or the resident’s authorized representative recognize that future disagreements or disputes may arise and these parties both wish to agree now, in advance, to submit any disputes which may arise between the parties which they cannot otherwise resolve to binding arbitration instead of court litigation. The parties believe binding arbitration to be a speedy and economical alternative to what is generally a more protracted, more expensive, more public and more unpredictable means of resolving disputes. The'parties hereto have entered into the attached arbitration agreement which is hereby incorporated by reference.
The foregoing arbitration clause does not apply to actions brought by the facility to collect accounts receivable, unless specifically set forth in writing in a separate instrument.

Attached to the admission agreement and incorporated by reference was an “Addendum to Admission Agreement Optional Arbitration Agreement,” wherein the parties agreed-to resolve any disputes related to Miley’s stay at the facility by arbitration. The arbitration agreement contained a fee provision that provided that each party would be responsible for its own attorneys’ fees. Finally, the arbitration agreement contained the following sever-ability clause:

The foregoing notwithstanding, the Parties agree that all of the provisions contained in this Agreement are severa-ble. In the event any provision of the agreement, or portion thereof, or any rule incorporated by reference in the agreement, is held to be invalid by a court of competent jurisdiction, this agreement shall be interpreted as if the invalid provision or portion was not contained herein, and the remaining provisions of the agreement will remain in full force and effect. This agreement to arbitrate will not fail because any part, clause or provision hereof is held to be indefinite or invalid.

In June 2015, Miley, by and through her attorney-in-fact (and husband), Bruce Mi-ley, sued the facility owner—Rockledge NH, LLC, the facility management company—Greystone Healthcare Management Corp., and the facility administrator—Julie Morris. The four-count complaint included a count for violation of Florida’s Nursing Home Residential Rights Act, sections 400.022-.023, Florida Statutes (2013), two counts for violation of Florida’s Adult Protective Services Act, section 415.1111, Florida Statutes (2013), and one count for breach of fiduciary duty.

Appellants responded to the complaint by filing a Motion to Dismiss and to Compel Arbitration. The trial court denied the motion, finding that the attorneys’ fee provision violated public policy because it effectively “replaced” the prevailing party provision set forth in section 415.1111 with a provision requiring each party to be responsible for its own attorneys’ fees. The trial court further found that the attorneys’ fee provision was not severable. This appeal followed.

Florida’s Adult Protective Services Act is remedial in nature. Hochbaum v. Palm Garden of Winter Haven, LLC, 201 So.3d 218, 220 (Fla. 2d DCA 2016). Accordingly, an arbitration agreement provision that purports to preclude application of the Act’s prevailing party fee provision is unenforceable because it violates public policy. See id. at 221 (holding that arbitration agreement that limits statutory remedy of attorneys’ fees pursuant to section 415.1111 violates public policy).

Based on the determination that the arbitration agreement attorneys’ fee provision violates public policy, we must next determine whether the provision is severable. Here, the parties’ arbitration agreement contained a severability clause expressly providing that in the event a provision in the agreement was determined to be invalid, the agreement was to be interpreted “as if the invalid provision or portion was not contained herein, and the remaining provisions of the agreement [would] remain in full force and effect.”

The existence of a severability clause is not dispositive of whether a void clause invalidates the entire arbitration agreement. Estate of Novosett v. Arc Villages II, LLC, 189 So.3d 895, 896 (Fla. 5th DCA 2016). Rather, the controlling issue is whether an offending clause goes to “the very essence of the agreement.” Shotts v. OP Winter Haven, Inc., 86 So.3d 456, 459, 478 (Fla. 2011); Estate of Novosett, 189 So.3d at 896. On the other hand, a contract provision can be severed from a bilateral contract “where the illegal portion of the contract does not go to its essence, and where, with the illegal portion eliminated, there still remains of the contract valid legal promises on one side which are wholly supported by valid legal promises on the other.” Shotts, 86 So.3d at 475.

In Hochbaum, our sister court was similarly confronted with an arbitration agreement between a nursing home and one of its residents that contained an attorneys’ fee provision that was inconsistent with the prevailing party attorneys’ fee provision set forth in section 415.1111. The Hochbaum court concluded that the attorneys’ fees provision did not go to the essence of the parties’ agreement:

Here, the offending provision deals only with attorneys’ fees. The provision does not require the arbitration to be conducted in accordance with certain rules, and it does not limit the compensatory or punitive damages that Hochb-aum may recover in arbitration. ... It is clear from the agreements in this case that the parties agreed to bind themselves to arbitration for any disputes arising out of Donald Hochbaum’s residency at the nursing home. The attorneys’ fees provision does not go to the heart of the contracts, and severance of the attorneys’ fees provision would not require a drastic rewriting of the agreements and would preserve the intent of the parties to adjudicate their disputes in arbitration.

Hochbaum, 201 So.3d at 223 (citations omitted).

We agree with the reasoning of the Hochbaum court quoted above. Because the offending attorneys’ fee provision was severable from the arbitration agreement, we conclude that the trial court erred in denying the motion to compel arbitration.

REVERSED and REMANDED.

BERGER and EDWARDS, JJ., concur.

      . In Hochbaum, the arbitration agreements at issue did not contain a severability clause. We do not address the question of whether we would have reached a different result in this case in the absence of a severability clause.


author: OSTERHAUS, J.

text:
    STATE of Florida, Appellant, v. I.D., Appellee.
    CASE NO. 1D16-3630
    District Court of Appeal of Florida, First District.
    Opinion filed May 19, 2017

      Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, for Appellant.
    Andy Thomas, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, for Appellee.
   OSTERHAUS, J.

The State appeals the disposition of a juvenile delinquency case claiming that the trial court erroneously deviated'from the Department of Juvenile Justice’s (the Department’s) recommended disposition without giving reasons as required by E.A.R. v. State, 4 So.3d 614 (Fla. 2009). We affirm because the court did not deviate from the Department’s recommendation.

I.

The appellee juvenile in this case, I.D., pled no contest to a misdemeanor battery charge, after which the trial court requested a predisposition report (PDR) from the Department. The Department’s amended report presented a conditional' recommendation based upon section 985.441(2), Florida Statutes, that I.D. be committed to a non-secure residential commitment program “conditioned upon the court finding by a preponderance' of the evidence ‘that the protection of the public requires such placement or that the needs of the child would be best served by such placement.’ ” § 985.441(2)(d), Fla. Stat. In the absence of such findings, the statute provided for the court to sentence misdemeanor offenders like I.D. to a minimum-risk, non-residential commitment program. After' • the disposition hearing here, the trial court chose the latter route, committing I.D. to a minimum-risk, non-residential commitment program, a step below non-sécure residential, and ordering the Department of Children and Families to find placement for the child.

II.

Although the trial court is permitted wide latitude in making juvenile-offender commitment decisions, if it deviates from the commitment level recommended by the Department in a PDR, it must give reasons for disregarding the Department’s assessment and recommendation. § 985.433(7)(b), Fla. Stat.; E.A.R., 4 So.3d at 635. Here, the State appeals what it considers to be a deviation from the Department’s recommendation without giving reasons for the departure. State v. A.C., 44 So.3d 1240 (Fla. 5th DCA) (recognizing the State’s standing to appeal on the basis that the trial court departed from the Department’s recommendation without making required findings). The Department’s PDR in this case made a recommendation straight from the statute, § 985.441(2); Tracking the statute, it recommended nonsecure residential placement for I.D. “conditioned upon” whether the trial court made findings that public safety required the placement or that the needs of the child were best served by the placement. See § 985.441(2)(d), Fla. Stat. By conditioning its recommendation under this statute, the Department’s recommendation incorporated § 985.441(2)’s directive, applicable in the absence of findings, that the court “not commit the child for any misdemeanor offense ... at a restrictiveness level other than minimum-risk nonresidential.” Because the Department conditioned its recommendation upon the trial court’s findings of fact—approving either “a non-secure residential placement” with additional fact-finding, or minimum-risk nonresidential without additional findings—we cannot conclude that the trial court deviated from its recommendation. The trial court chose the latter recommended course and didn’t need to explain its reasons as though it had deviated from the Department’s restrictiveness level recommendation.

III.

We thus AFFIRM the trial court’s disposition because it did not deviate from the Department’s recommendation.

WETHERELL and M.K. THOMAS, JJ., CONCUR.

      § 985.441(2), Florida Statutes, states in relevant part:
      (2) Notwithstanding subsection (1), the court having jurisdiction over an adjudicated delinquent child whose offense is a misdemeanor, or a child who is currently on probation for , a misdemeanor, may not commit the child for any misdemeanor offense or any probation violation that is technical in nature and not a new violation of law at a restrictiveness level other than minimum-risk nonresidential. However, the court may commit such child to a nonse-cure residential placement if:

      (d) The court finds by a preponderance of the evidence that the protection of the public requires such placement or that the particular needs of the child would be best served by such placement. Such finding must be in writing.


author: PER CURIAM. B.L.THOMAS, J.

text:
    Keenon Lamar RHODES, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-5852
    District Court of Appeal of Florida, First District.
    Opinion filed May 19, 2017.

      Andy Thomas, Public Defender, Christopher F. Busch and Benjamin R. Kelley, Special Assistant Public Defenders, Busch & Kelley, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Tayo Popoola, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Keenon Lamar Rhodes, appeals his conviction of the following offenses: (I)—(II) burglary while armed with a firearm; (III) possession of a controlled substance without a prescription; and (IV) resisting an officer without violence. We reverse due to trial court error in denying Appellant’s Motion to Suppress, which sought to suppress statements he made during a custodial interrogation by police. The following exchange is under review:

Appellant: Man, I’m not no lawyer.
Officer: What’s up?
Appellant: I said I’m not no lawyer. I need to see a lawyer.
Officer: Okay. Well, what I’m telling you is this. They said you were observed in a vehicle, rummaging through a vehicle.

The Fifth Amendment right against self-incrimination requires an accused person be made aware that he is entitled to counsel during a custodial interrogation. Moss v. State, 60 So.3d 540, 542 (Fla. 4th DCA 2011) (citing Miranda v. Arizona, 384 U.S. 436, 467-72, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). Once the right to counsel is invoked, police questioning is required to cease. Moss, 60 So.3d at 543 (citing Black v. State, 59 So.3d 340, 345 (Fla. 4th DCA 2011)). There are no magic words an accused person must use in order to invoke their right to counsel. State v. Owen, 696 So.2d 715, 719 (Fla. 1997). Whether an accused person has invoked his right to counsel hinges on whether the invocation is clear and unambiguous. Spivey v. State, 45 So.3d 51, 54 (Fla. 1st DCA 2010), “ ‘[A]t a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney’ is a sufficient invocation of rights to require the cessation of further interrogation.” Moss, 60 So.3d at 543 (quoting McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991)).

In the present case, a review of the Appellant’s interrogation establishes he made a clear, unequivocal request for counsel when he stated, “I need to see a lawyer.” The officer disregarded Appellant’s invocation of his right to counsel and continued the conversation without acknowledging the statement. A lengthy interrogation followed, during which inculpa-tory statements were made by Appellant.

In Moss, the Fourth District reversed the denial of a motion to suppress and noted, “[i]t is hard to imagine more unequivocal statements,” than “I want a lawyer,” and “I want to talk to a lawyer.” 60 So.3d at 543. Similarly, here, because Appellant’s statement, “I need to see a lawyer,” was a clear and unequivocal request for counsel, we hold that the trial court erred in denying Appellant’s Motion to Suppress.

Reversed and remanded for a new trial. Appellant’s Motion to Suppress is hereby granted, and all portions of the recorded interview after Appellant’s invocation of his right to counsel are to be suppressed.

WETHERELL, and M.K. THOMAS, JJ., CONCUR; B.L. THOMAS, J., DISSENTS WITH OPINION.

B.L.THOMAS, J.

DISSENTS.

I respectfully dissent, because the order denying Appellant’s motion to suppress should be affirmed under the authority of Jones v. State, 748 So.2d 1012 (Fla. 1999), and State v. Owen, 696 So.2d 715 (Fla. 1997). Appellant’s comments regarding his “need to see a lawyer,” taken in context, were not an unequivocal request for an attorney or for a cessation of questioning. As the supreme court noted in Jones, “once there has been a knowing and voluntary waiver of the Miranda rights ... ‘law enforcement officers may continue questioning until and unless the suspect clearly [unequivocally] requests an attorney.’ ” Jones, 748 So.2d at 1020 (quoting Owen, 696 So.2d at 719).

In Jones, the defendant stated that he “wanted to speak ‘to his mother, his attorney, and Detective Parker.’ ” Id. The court rejected the defendant’s argument that he had revoked his waiver of Miranda rights, describing the statement as “at most an equivocal statement regarding counsel.” Id. In rejecting the argument, the supreme court quoted its earlier opinion in Long v. State, wherein it stated that the defendant’s comment, “ T think I might need an attorney,’” was an equivocal request for counsel. 517 So.2d 664, 667 (Fla. 1987), receded from on other grounds, Owen, 696 So.2d at 720. The supreme court also relied on its earlier opinion in Waterhouse v. State, where the defendant stated, “I think I want to talk to an attorney before I say anything else,” and the supreme court held that police interrogation could continue “because appellant did not express a desire to deal with.the police only through counsel.” 429 So.2d 301, 305 (Fla. 1983), receded from on other grounds, Owen, 696 So.2d at 720.

The Fourth District’s holding in Moss v. State, 60 So.3d 540, 542 (Fla. 4th DCA 2011), is not controlling here. While the majority holds that our sister court’s opinion in Moss is factually similar, any similarities Moss shares with the instant case conflicts with Jones, which should control because it is binding.

A review of Appellant’s interrogation and the context of the conversation demonstrates that Appellant’s comments were, at best, merely “equivocal statements] regarding counsel” and did not in any way show that Appellant wanted to “deal with police only through counsel.” Jones, 748 So.2d at 1020. I would affirm the trial court’s order denying Appellant’s motion to suppress.


author: PER CURIAM,

text:
    Alphonso FINNEY, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0356
    District Court of Appeal of Florida, First District.
    Opinion filed May 19, 2017.
    Andy Thomas, Public Defender, Talla-hasse, and Samantha Porche, Assistant Public Defender, Quincy, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM,

Alphonso Finney filed a petition for writ of prohibition seeking review of the order denying his motion to dismiss the amended information charging him with violating section 322.34(2)(c), Florida Statutes (2015). Finney contends that he is not subject to prosecution under that statute and that the highest offense he can be charged with is a misdemeanor over which the circuit court lacks jurisdiction. We agree and grant the petition.

Background

Finney was originally charged with violating section-322.34(5), but the trial court granted Finney’s motion to dismiss that charge because he has never had a Florida driver’s license. The State thereafter filed an amended information charging Finney under section 322.34(2)(c) for driving while his driving privilege was suspended or revoked. Finney again moved to dismiss, arguing that he could not be charged under section 322.34(2)(c) because he was a “habitual traffic offender” as defined in section 322.264., The trial court denied Finney’s motion, noting that the result advocated by Finney “cannot possibly have been the intent of the legislature and this result goes against public policy and neglects public safety.”

Finney sought review of the order denying his motion to dismiss by filing a petition for writ of prohibition in this court. The petition argues that the circuit court lacks jurisdiction because Finney is not subject to prosecution under section 322.34(2)(c) and the highest offense that he can be charged with is driving without a valid license, a misdemeanor: We issued an order to show cause, and in response, the State argued that the “evil” addressed by section 322.34(2)(c) is the “exact indifference and disrespect [Finney] flagrantly continues to participate in” and that to preclude his prosecution under section 322.34(2)(c) “would limit the scope of the statute unreasonably and lead to absurd results.”

Analysis

Section 322.34(2)(e) provides:

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:
(c) A third or subsequent conviction is guilty of a felony of the third degree

(emphasfe supplied). Section 322.264 defines “habitual traffic offender.”

Based on this clear and unambiguous language, we agree with Finney that section 322.34(2) does not apply to persons who are habitual traffic offenders. See State v. Harvey, 693 So.2d 1009, 1010 (Fla. 4th DCA 1997) (“Under the plain meaning of section 322.34(1) [now (2) ], persons who have been declared habitual traffic offenders are excluded from its application. In stead, section 322.34(2) [now (5)] applies to habitual traffic offenders who drive while their license is revoked.”); see also Gil v. State, 118 So.3d 787, 791 (Fla. 2013) (noting that section 322.34(2) “expressly provides that it does not apply to habitual traffic offenders”). Accordingly, Finney, an undisputed habitual traffic offender, cannot be prosecuted under section 322.34(2)(c).

The exemption of habitual traffic offenders from prosecution under section 322.34(2) was likely based on the fact that such offenders are subject to prosecution under section 322.34(5). However, offenders such as Finney who have never had a driver’s license cannot be prosecuted under section 322.34(5). See Crain v. State, 79 So.3d 118, 121 (Fla. 1st DCA 2012) (holding that section 322.34(5) “does not outlaw driving by drivers never issued a license to drive” because the statute only applies to persons whose “license” has been revoked as a habitual traffic offender). Accord Burgess v. State, 198 So.3d 1151 (Fla. 2d DCA 2016) (review pending in case no. SC16-1751); State v. Miller, 193 So.3d 1001 (Fla. 3d DCA 2016) (review pending in case no. SC16-1170).

In sum, because Finney is a habitual traffic offender that cannot be prosecuted under section 322.34(2)(c), the trial court erred in denying his motion to dismiss the amended information. That said, because 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 ne-gleets 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. However, as we noted in Crain, “[i]t “‘is a firmly established rule that ‘Courts must apply a statute as they find it, leaving to the legislature the correction of assorted inconsistencies and inequalities in its operation.’ ” ’ ” Crain, 79 So.3d at 122 (quoting Guilder v. State, 899 So.2d 412, 419 (Fla. 4th DCA 2005)). Only the Legislature has the power to close this loophole, and we urge it to do so.

Conclusion

In sum, because Finney cannot be prosecuted under section 322.34(2)(c) and the highest crime with which he can be charged is misdemeanor driving without a valid license over which the circuit court lacks jurisdiction, see Sections 26.012(2)(d), 34.01(l)(a), Florida Statutes (2015), we grant the petition for writ of prohibition. In doing so, we note that the State is not precluded from prosecuting Finney in county court for driving without a valid license.

PETITION GRANTED.

WETHERELL, OSTERHAUS, and M.K. THOMAS, JJ., CONCUR.

      . 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...."

      . Section 322.264 defines "habitual traffic offender” as a person "whose record, as maintained by the Department of Highway Safety and Motor Vehicles, shows that such person has accumulated the specified number of convictions” for certain enumerated offenses, including three or more convictions within in five year period for "[d]riving a motor vehicle while his or her license is suspended or revoked." § 322.264(l)(d), Fla. Stat. (2015).

      . The State did not file a traverse or otherwise dispute the assertion that Finney is a habitual traffic offender, and Finney’s driving record (which the State attached to the response to the show cause order filed in this court) reflects that he was designated a habitual traffic offender by the Department of Highway Safety and Motor Vehicles in 1997, 2000, and 2014. Finney is certainly a habitual traffic offender in the colloquial sense. His driving record lists 11 convictions between 1995 and 2013 for driving while his driving privilege was suspended- or revoked (referred to in the driving record as "DRIV WHILE LIC—CANC/REV/SUS/DISQ”); two driving under the influence convictions (one with a .144 blood alcohol level and one with- a .164 blood alcohol level); one conviction for possession. of an open alcoholic beverage container while operating a motor vehicle; and one conviction for operation of a motor vehicle with no tag or registration. Additionally, Finney’s driving privilege was suspended "indefinitely]” in 2013 for failing to pay traffic fines, However, it is not entirely clear that Finney actually meets the statutory definition of a habitual traffic offender because his driving record reflects that the designation was based on his convictions for driving while his driving privilege was suspended or revoked, but section 322.264(l)(d) requires convictions for driving while the offender's "license” (not his driving privilege) is suspended’ or revoked. That said, because the State did not dispute Finney’s assertion that he is a habitual traffic offender, he is one for purposes of this case.

      . The Legislature might also want to consider whether section 322.264(l)(d) should be amended to expand the definition of "habitual traffic offender” to include persons who have the requisite number of convictions for driving while their driving privilege is suspended or revoked. See note 3, supra.

      . See §§ 322.03(1), 322.39, Fla. Stat. (2015); Crain, supra (reversing conviction under section 322.34(5) because defendant never had a driver’s license and remanding with instructions to adjudicate defendant guilty of the lesser-included offense of driving without a license, a second-degree misdemeanor).


author: PALMER, J. BERGER, J.,

text:
    Daryl BUSH, Appellant, v. WHITNEY BANK, a Mississippi State Chartered Bank, formerly known as Hancock Bank, a Mississippi State Chartered Bank, as Assignee of the FDIC as Receiver for Peoples First Community Bank, etc., Appellee.
    Case No. 5D16-2344
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 19, 2017
    L. William Porter, III, of Bogin, Munns & Munns, P.A. of Orlando, for Appellant.
    Michael Anthony Shaw and Stephen P. Drobny of Jones Walker, LLLP, Miami, for Appellee.
   PALMER, J.

In this breach of contract action, Daryl Bush (the borrower) appeals the final judgment of monetary damages entered by the trial court in favor of Whitney Bank (the bank). Because the trial court properly ruled that the one-year statute of limitations in section 95.11(5)(h) of the Florida Statutes (2015) did not apply to the bank’s action, we affirm.

The borrower signed a promissory note (secured by a mortgage) and delivered it to the Peoples First Community Báhk. The note was later transferred to Hancock Bank. Subsequently, the borrower requested a short sale which Hancock Bank approved. In the letter approving the short sale, Hancock Bank wrote:

15. The “shortfall” due to Hancock Bank is estimated at $235,093,80. The Borrower(s) will continue to be obligated to pay Hancock Bank the shortfall amount (outstanding loan balancing including additional charges, less net sale proceeds in [the] amount of $235.093.80).

The borrower accepted the terms of the letter, and the short sale occurred on August 31,2011.

On September 19, 2015, the bank filed an action seeking to reestablish a lost note and to obtain damages for the borrower’s breach of the promissory note. The borrower filed a motion to dismiss the action, alleging that the action was time' barred under section 95.11(5)(h) which provides:

[a]n action to enforce a claim of a deficiency related to a note secured by a mortgage against a residential property that is a one-family to four-family dwelling unit. The. limitations period shall commence on the day after the certificate is issued by the clerk of coürt or the day after the mortgagee accepts a deed in lieu of foreclosure.

In particular, he argued that section 95.11(5)(h) should be interpreted in conjunction with section 702.06 of the Florida Statutes (2015) which reads:

Deficiency decree; common law suit to recoverdeficiency

In all suits for the foreclosure of mortgages heretofore or hereafter executed the entry of a deficiency decree for any portion of a deficiency, should one exist, shall be within the sound discretion of the court; however, in the case of an owner-occupied residential property, the amount of the deficiency may not exceed the difference between the judgment amount, or in the case of a short sale, the outstanding debt, and the fair market value of the property on the date of sale.

After a hearing, the .trial court denied the motion. Thereafter, the bank successfully moved for the entry of a final summary judgment for monetary damages, and this appeal followed.

' The borrower argues that the trial court misinterpreted section 95.11(5)(h) in ruling that the one-year statute of limitations did not apply to the bank’s action. Specifically, he contends that section 95.11(5)(h) must be interpreted in conjunction with section 702.06. We disagree. ,

“Questions of statutory interpretation are matters of law that are reviewed de novo.” Green v. Cottrell, 204 So.3d 22, 26 (Fla. 2016). “The first place [a court] look[s] when construing a statute is to its plain language—if the meaning of the statute is clear and unambiguous, [a court] look[s] no further.” State v. Hackley, 95 So.3d 92, 93 (Fla. 2012) (citing Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216, 1220 (Fla. 2010)).

Here, the first' sentence' of section 95.11(5)(h) sets forth a'one-year statute' of limitations for “[a]n action to enforce a claim of a deficiency related to a note secured by a mortgage against a residential property that is a one-family to four-family dwelling unit.” The statute’s second sentence clarifies the scope of the first, sentence, providing: “The limitations period shall commence on the day after the certificate is issued by the clerk of court or the day after the mortgagee accepts a deed in lieu of foreclosure.” Id. Accordingly, the limitations period is triggered by one of two events: 1) issuance of certificate by clerk or 2) acceptance of deed in lieu of foreclosure by mortgagee. After a short sale, neither of these events occur. Thus, pursuant to the statute’s plain terms, section 95.11(5)(h) does not apply to the bank’s action.

The borrower further contends that, if section 95.11(5)(h) does not apply to an action following a short sale, then the portion of section 702.06 addressing short sales would effectively be réad out of the statute. We disagree.

The language of section 702.06 does suggest that the Legislature considers an action following a short sale to be a deficiency action for certain purposes. However, the statute does not address when such an action must be brought. Rather, it establishes a maximum amount of damages which may be recovered in an action following a short sale. Accordingly, even though the one-year statute of limitations does not govern this type of action, section 702.06 operates to limit the recovery in this type of action to the difference between the outstanding debt and fair market value at the time of the short sale. Thus, our interpretation of .section 95.11(5)(h) does not render the short sale provision in section 702.06 meaningless.

The borrower additionally argues that the legislative history supports his interpretation of the statute. However, when a statute is not ambiguous, a court is not authorized to resort to the legislative history to determine the statute’s meaning. Fla. Dep’t. of Revenue v. Fla. Mun. Power Agency, 789 So.2d 320, 323 (Fla. 2001).

AFFIRMED.

JACOBUS, B.W., Senior Judge, concurs.

BERGER, J., concurring specially.

BERGER, J.,

concurring specially.

I agree with the majority that the plain language of section 95.11(5)(h) does not support the borrower’s argument. I write separately to note that, in my view, legislative history is useless as a tool for deriving legislative intent, even in the face of an ambiguous statute. Indeed, “it is utterly impossible to discern what'the Members of [the Legislature] intended except to the extent that intent is manifested in the only remnant of ’history' that bears the unanimous endorsement of the majority in each House: the text of the enrolled bill that became law.” Graham Cty. Soil & Water Conservation Dist. v. United States, 559 U.S. 280, 302, 130 S.Ct. 1396, 176 L.Ed.2d 225 (2010) (Scalia, J., concurring).

      . The parties do not dispute that section 95.11(2)(b) (providing a five-year limitations period for “[a] legal or equitable action on a contract, obligation, or liability founded on a written instrument”) would apply if subsection (5)(h) does not.


author: PER CURIAM.

text:
    Susan MARTINEZ, Appellant, v. Isaac MARTINEZ, Appellee.
    Case No. 5D16-795
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 19, 2017

      David A. Maney, of Maney Damsker Jones & Kuhlman, P.A., Tampa, for Appellant.
    Courtney M. Keller, I. William Spivey, II, and Colin S. Baker, of Greenberg Trau-rig, P.A., Orlando, for Appellee.
   PER CURIAM.

Susan Martinez (“Susan”) appeals the final summary judgment entered in favor of her stepson, Isaac Martinez (“Isaac”), which effectively dismissed Isaac as a respondent fi’om the dissolution of marriage litigation between Susan and her husband, Jared Martinez (“Jared”). For the following reasons, we reverse.

In November 2009, Susan filed her initial petition for dissolution of marriage in Seminole County. She voluntarily dismissed that action in February 2011, but refiled her petition one week later, this time in Flagler County, where it remains pending. In July 2012, Susan filed a two-count amended petition for dissolution of marriage, and in count two, she joined additional respondents, including Isaac and various corporations that Jared formed during the marriage. Susan alleged that, among other things, Jared had been commingling the parties’ marital assets with assets owned by Isaac and by the corporate respondents. Susan also asserted that Jared and Isaac were receiving distributions from these corporations, under the guise of “loans,” in an effort by Jared to deplete the marital estate. Susan sought partition of the marital assets, recognition and equitable distribution of her interest in the corporations that Jared formed during the marriage, to have the court “claw” back and then equitably distribute to the spouses any marital assets previously transferred to the newly joined respondents, and injunctive relief.

In 2015, Susan amended her petition to add a third count. Susan continued to assert that she had a “marital interest” in certain properties now held by these respondents, who she alleged were involved in a plan with her husband to minimize or conceal Jared’s net worth in an effort to defraud Susan from any interest in what she stated were millions of dollars of marital assets that Jared had transferred to these parties for little, if any, consideration. Susan asked that, among other things, the trial court identify all properties that should be classified as marital assets and, after making this determination, require the impleaded respondents to “account” for their receipt of these marital properties. Susan requested that the court then equitably distribute all marital assets between the spouses.

After the parties conducted some discovery, Isaac moved for final summary judgment. His argument was two-fold. Isaac first asserted that Susan pleaded no cognizable cause of action against him to entitle her to any relief, but that if she had pleaded an arguable claim under the “Uniform Fraudulent Transfers Act,” it was barred by the applicable statute of limitations. Susan filed a memorandum in opposition to the motion. After each party filed their summary judgment evidence pursuant to Florida Family Law Rule of Procedure 12.510, the court held a hearing on Isaac’s motion and entered the unelaborated final summary judgment in Isaac’s favor now under review.

In a dissolution of marriage proceeding, section 61.075(1), Florida Statutes (2015), requires the trial court to equally distribute the marital assets and liabilities between the spouses unless there is a justification for an unequal distribution based on the factors listed in subparagraphs (a)(j). Subparagraph (i) is pertinent to this appeal, providing that a spouse’s “intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition!,] or within two years prior to the filing of the petition,” must be considered by the court in distributing the marital assets. § 61.075(l)(i), Fla. Stat. (2015). Under this statute, if a spouse intentionally dissipates a marital asset, the trial court has the authority and discretion to assign the dissipated asset to the dissipating spouse as part of that spouse’s equitable distribution. Karimi v. Karimi, 867 So.2d 471, 475 (Fla. 5th DCA 2004) (citing Bush v. Bush, 824 So.2d 293 (Fla. 4th DCA 2002); Romano v. Romano, 632 So.2d 207 (Fla. 4th DCA 1994)).

Susan alleged that Jared’s fraudulent dissipation of some of the marital assets to or through Isaac and the corporate respondents took place-more than two years before her petition for dissolution of marriage was filed. In Beers v. Beers, 724 So.2d 109, 115 (Fla. 5th DCA 1998), this court held that section 61.075(1)(i) did not operate as a two-year statute of limitations to bar one spouse’s efforts to subject marital assets dissipated by the other, spouse to equitable distribution. We determined that for cases of dissipation of marital assets occurring more than two years before the filing of the petition, section 61.075(l)(j), which permits a trial court to consider “any other factors necessary to do equity and justice between the parties,” allows, but does not require, the court to consider the more remote dissipation of marital assets when equitably distributing the marital assets and marital liabilities to the spouses. Beers, 724 So.2d at 114-15; accord Amos v. Amos, 99 So.3d 979, 980 (Fla. 1st DCA 2012) (finding this court’s analysis of remote dissipation in Beers to be persuasive). Thus, Beers provides Susan the ability to pursue Jared for his alleged remote dissipation of their marital assets.

Turning back to Isaac, we begin our analysis, with the preliminary recognition that a dissolution action is an action in equity. See § 61.011, Fla. Stat. (2015) (“Proceedings under this chapter are in chancery.”). Under principles of equity, a trial court may determine whether a third person has acted with a spouse to deprive the other spouse of his or her share in the marital estate. However, for the court to make a complete determination of the case before it, that person- (Isaac) must be joined as a party to the action where, as here, the person is claiming an interest in the marital assets because “[i]n [a] dissolution action, the trial court does not have jurisdiction to adjudicate the rights of non-parties.” Noormohamed v. Noormohamed, 179 So.3d 379, 380 (Fla. 5th DCA 2015) (second alteration in original) (quoting Minsky v. Minsky, 779 So.2d 375, 377 (Fla. 2d DCA 2000)); see also Fla. Fam. L. R. P. 12.210(a) (providing, that “[a]ny person may at any time be made a party if that person’s presence is necessary or proper for á cómplete détermination of the cause”).

. We reject Isaac’s argument that summary judgment was properly entered because Susan, did not sufficiently allege a cause of action against him.- We agree with the recent observation by the Michigan Court of Appeals that in cases where one spouse has allegedly acted in concert with a third person to dissipate the marital assets, “[tjhere is no need to specify or enumerate a separate cause of action against the third party; instead, the action against the third party, is incidental to the divorce.” Cassidy v. Cassidy, No. 328004, 899 N.W.2d at 492, 2017 WL 104978 at *13 (Mich. Ct. App. Jan. 10, 2017). Furthermore, because section 61.075(1)(j) gives the trial court the discretion to claw back marital assets that may have been remotely dissipated by Jared more than two years before Susan’s dissolution of marriage petition was filed, it would then be anomalous to preclude the court from making a full and complete adjudication of the spouses’ marital property rights to those dissipated assets by dismissing Isaac from the litigation based on his statute of limitations defense.

A final summary judgment, as entered in this case, “is proper only where the [issues of] fact[] are ‘so crystalized’ that nothing remains [for resolution] but questions of law.” McCabe v. Fla. Power & Light Co., 68 So.3d 995, 997 (Fla. 4th DCA 2011) (quoting Tolan v. Coviello, 50 So.3d 73, 74 (Fla. 4th DCA 2010)). “[I]f the record raises even the slightest doubt that [a genuine] issue [of material fact] might exist, summary judgment is improper.” Grissett v. Circle K Corp. of Tex., 593 So.2d 291, 293 (Fla. 2d DCA 1992) (citing Crandall v. Sw. Fla. Blood Bank, Inc., 581 So.2d 593 (Fla. 2d DCA 1991); Gomes v. Stevens, 548 So.2d 1163 (Fla. 2d DCA 1989)). In the present case, the record is by no means clear whether the trial court will exercise its discretion under section 61,075(1)(j) to consider assets allegedly remotely dissipated by Jared in order to make a complete determination of the cause to achieve equity and justice between the spouses. If, after receiving evidence and argument at trial, the court elects to exercise its discretion and distributes remotely dissipated assets in it's equitable distribution of the marital assets and marital liabilities to Susan and Jared, then those parties whose property rights would be affected by the distribution (such as Isaac) aré indispensable to the complete adjudication of the case.

Accordingly, the final summary judgment entered in favor of Isaac is reversed, and this matter is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

COHEN, C.J., SAWAYA and LAMBERT, JJ., concur.

      .Susan referred to these respondents as "third-party defendants” in her pleading, but that was not technically correct. See Fla. Fam. L. R. P. 12.180 (providing that third-party respondents are joined to an action by the respondent, through the serving of a summons and third-party petition upon each third-party respondent, based on the respondent’s claim that the third-party respondent is liable to the respondent for all or part of the petitioner’s claim against the respondent); see also Fla. R. Civ. P. 1.180 (the counterpart rule governing third-party practice in general civil actions). Rather, Isaac and the corporate parties were technically joined as respondents pursuant to either Florida Family Law Rules of Procedure 12.210(a) or 12.250(c).

      . The trial court had previously granted Isaac a summary judgment on Susan’s claims for partition and injunctive relief.

      . Chapter 726, Florida Statutes.

      . Chancery is defined as "[a] court of equity; collectively, the courts of equity.” Chancery, Black’s Law Dictionary (10th ed. 2014).


text:
    John E. RAMOS, Appellant, v. Natalie D. RAMOS, Appellee.
    No. 3D16-2541
    District Court of Appeal of Florida, Third District.
    Opinion filed May 24, 2017.
    John E. Ramos, in proper person.
    Natalie D. Ramos, in proper person.

      Before LAGOA, SCALES and LUCK, JJ.
   PER CURIAM.

John E. Ramos, pro se, appeals a final judgment of dissolution of marriage, claiming that the written order contains findings that to do not comport with the court’s oral rulings at the final hearing, and that the court erred in permitting the appellee’s counsel in the divorce proceedings to submit a proposed final judgment for the court’s consideration. Concluding that no error has been demonstrated by the record before us, we affirm. See Valladares v. Junco-Valladares, 30 So.3d 519, 522-23 (Fla. 3d DCA 2010) (“The standard of review for divorce proceedings is abuse of discretion. ‘The findings and judgment of the trial court come to us clothed with a presumption of correctness and may not be disturbed upon appeal in the absence of a record demonstrating errors of law.’” (quoting Merritt v. Williams, 295 So.2d 310, 311 (Fla. 1st DCA 1974))); Bryan v. Bryan, 930 So.2d 693, 695 (Fla. 3d DCA 2006) (recognizing that, in a marital dissolution proceeding, the trial court may permit either party, or both parties, to submit a proposed final judgment).

Affirmed.


author: LUCK, J.

text:
    Steven GILCHREASE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1027
    District Court of Appeal of Florida, Third District.
    Opinion filed May 24, 2017
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before FERNANDEZ, SCALES, and LUCK, JJ.
   LUCK, J.

Steven Gilchrease appeals his conviction and sentence for battery of his 67-year-old landlady on February 28,2015, alleging error in the admission at trial of evidence relating to a prior confrontation which occurred three days before the charged incident. We affirm.

Gilchrease had rented an efficiency from Etta McKensie for about six months prior to the February 28 incident. Sometime in January, water to the efficiency was turned off. On February 25, the electricity was turned off. Gilchrease confronted Ms. McKensie about the utilities, and, according to Ms. McKensie, Gilchrease threatened her and pulled out the chair she was sitting on. Subsequently, on February 28, Gilchrease again confronted Ms. McKen-sie, and pushed her, causing her to stumble backward. Gilchrease was arrested for the latter incident and charged with battery of a person sixty-five years or older.

Prior to trial, defense counsel moved in limine to exclude evidence of the February 25 confrontation as irrelevant and prejudicial. The State argued the evidence was admissible to prove Gilchrease’s motive and an absence of mistake. The trial court ruled the evidence was admissible to prove “motive and any mistake and any other attempt to bring in the testimony for any other reasons,” and Ms. McKensie testified as to the incident at trial. The jury returned a verdict of guilty, and the trial court sentenced Gilchrease to 180 days in the county jail and two years of probation.

On appeal, Gilchrease contends admission of the objected to evidence was error because it constituted prejudicial evidence of an uncharged crime, the admission of which destroyed his right to a fair trial. We disagree.

The State may introduce evidence of an uncharged crime where that evidence is relevant to an issue in dispute and is not being used solely to show the defendant’s propensity to commit a crime. § 90.404(2)(a), Fla. Stat; (2015). Here, evidence of the February 25 incident was relevant to Gilchrease’s motive and intent in confronting and pushing Ms. McKensie.

As to motive, the testimony about the February 28 incident, the one that was charged, was that Gilchrease confronted Ms. McKenzie in her home, pushed her in the chest and forehead, and said, “You don’t know what I’ll do to you.” Gil-chrease’s words and actions on February 28, however, did not explain his motive for confronting and pushing Ms. McKenzie, in other words, why he did what he did. The February 25 incident, which happened three days earlier, after the electricity and water had been shut off, filled in the gap to explain Gilchrease’s motive for the February 28 battery.

On February 25, after the lights went off, Gilchrease confronted Ms. McKenzie and said, “The light off, I’m not moving, and I’m not giving you any money.... [Y]ou don’t know me. You don’t know me.” Gilchrease then pulled Ms. McKenzie’s chair out from under her. The February 25 incident explained that Gilchrease’s motive for pushing Ms. McKenzie, and saying what he said, was that he was upset about the water and electricity being turned off, and blamed Ms. McKenzie for it. The February 25 incident, therefore, was relevant and admissible as motive evidence under section 90.404(2)(a). See Jackson v. State, 522 So.2d 802, 806 (Fla. 1988) (“The testimony of a prior assault on the victim McKay by Jackson during an argument over drugs was not so remote in time as to be irrelevant and supported the state’s theory that Jackson’s motive for killing. Milton and McKay was his belief that they were stealing- his drugs and taking-advantage of him.”); Craig v. State, 510 So.2d 857, 863 (Fla. 1987) (“We find that the evidence of appellant’s thefts of cattle on several occasions was relevant to show his motive for killing Eubanks and Farmer. The cattle theftp were not wholly independent of,the, murders.but rather were an integral part of the entire factual context in which the charged crimes took place. While evidence of motive is not necessary to a conviction, when it is available and would help the jury to understand the other evidence presented, it should not be kept from them merely because it reveals the commission of crimes not charged. The test for. admissibility is not the necessity of evidence, but rather its relevancy.” (citations omitted)).

The February 25 incident also was relevant to prove Gilchrease had the intent to commit battery on Ms. McKenzie. The battery statute requires the state to prove that the defendant “intentionally touch[ed] or str[uck] another person against the will of the other.” § 784.03(l)(a)l, Fla. Stat. (2015). The February 25 incident, which involved Gilchrease confronting, and pulling the chair out from under, Ms. McKen-zies was relevant to show that his push was willful and purposeful because of his continued anger about the utilities being turned off. See Charles W. Ehrhardt, Florida Evidence § 404.14, at 255-56 (2006 ed.) (“Although motivé' itself is usually not an ultimate issue, it supplies the basis from which the jury may infer'that the defendant intended to do the act.”); see also Beard v. State, 842 So.2d 174, 176 (Fla. 2d DCA 2003) (“Intent is a necessary element of battery, and must be determined by the surrounding circumstances.”). The prior incident showed Gilchrease’s state of mind when he went to Ms. McKenzie’s home on February 28.

The trial court correctly determined that evidence of the first.incident was relevant to , prove an issue in dispute in Gilchrease’s battery trial. There being no- error, we affirm the conviction and sentence entered below.

Affirmed.

      . A second witness, Ms. McKenzie’s friend, testified that Gilchrease pushed Ms. McKenzie in the forehead and said, "Do you know who you’re fooling with? I will put you - down.”


author: SUAREZ, C,J.

text:
    FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. P.I., the Mother, and M.H., the Father, Respondents.
    No. 3D17-914
    District Court of Appeal of Florida, Third District.
    Opinion filed May 24, 2017.

      Karla Perkins, for petitioner.
    Eugene F. Zenobi, Regional Counsel, Criminal Conflict & Civil Regional Counsel and Kevin Coyle Colbert, Assistant Regional Counsel, for the mother; Andrea Newman, for the father.
    Before SUAREZ, C.J., and EMAS and LOGUE, JJ.
   SUAREZ, C,J.

The Department of Children and Families [“DCF”] seeks a writ of certiorari to review a non-final order of the circuit court, Juvenile Division, granting supervised visitation to both parents over DCF’s objection. We grant the petition, quash the visitation order, and remand for an eviden-tiary hearing on modification of the “no contact” shelter order, pursuant to proper motion and notice to the parties.

The-youngest child,.Z.I., was examined by Child Protective Services and was found with belt buckle marks and bruising consistent with beatings. Following -a March 9, 2017 shelter hearing for Z.I. and his three siblings, the court denied .both parents’ visitation and ordered no contact with the parents based on explicit findings of “egregious physical abuse” (mother) and “failure to protect” (father). The children were placed in the care of a great aunt.

On March 27, a dependency petition'filing- hearing was’ scheduled at which the parents were to be served with the petition for dependency. This was for the purpose of serving the petition to the parents, having them confer with their attorneys, be sure all the information‘was correct, and to determine if they wished to plead to the petition or try to resolve it at another hearing. The transcript of the hearing shows that the judge acknowledged this was the sole purpose of the hearing,' that any denial of the petition was premature as arraigriment was set for' the following week'.

At this preliminary, petition hearing, the attorney for the father asked to discuss visitation. The attorney for the .mother joined in that request. The court continued with the petition hearing and then asked, “ok, all right, so what’s the issue with visitation?” DCF immediately objected to addressing the issue of visitation because this hearing was merely to serve the dependency petition, the parents had not filed any motion for modification of visitation, and no notice was provided to DCF that visitation would be challenged.

The trial court allowed the parents’ attorneys to argue that they were entitled to visitation because they had not had visitation since the children were sheltered two weeks earlier, and that the next court date on April 3, 2017, one week later, meant yet another week without visitation. Counsel for the parents argued that visitation should have been addressed at the shelter hearing, insisted that their clients had a right to visitation, and asked for supervised visitation. The trial court admitted that he did not have a chance to look at the visitation issue because that court was not prepared to deal with visitation at the petition healing.

DCF’s counsel continued to object to any modification of visitation from the initial “no contact” order because, 1) DCF had not been noticed by motion that the parents would seek modification of visitation at the petition hearing; 2) the parents’ counsel were present at the shelter hearing where DCF presented evidence and probable cause to shelter the children; and 3) the shelter judge did determine the visitation rights of the parents at the shelter hearing. At the end of the petition hearing, the trial court judge granted both parents supervised visitation once a week until therapeutic visitation could be established. DCF seeks to quash that order.

The record shows that the no-contact shelter order was supported by the Child Protective Services affidavit attesting to the child’s injuries, as well as evidence provided by DCF’s investigation. Section 39.402(9)(a), Florida Statutes (2016) provides:

At any shelter hearing, the department shall provide to the court a recommendation for scheduled contact between the child and parents, if appropriate. The court shall determine visitation rights absent a clear and convincing showing that visitation is not in the best interest of the child. ... § 39.402, Fla. Stat. (2016).

This procedure was followed at the shelter hearing, at which the shelter judge determined there was clear and convincing evidence that visitation was not in the best interests of the child.

Furthermore, a party seeking to modify a visitation order in a dependency proceeding must meet the same burden that is applicable to modifications in domestic relations cases, that is, the party must prove that there has been a substantial change in material circumstances and that modification is required to protect the child’s best interests. See In re A.W.P., Jr. v. Dep’t Children and Family Servs., 823 So.2d 323, 324 (Fla. 2d DCA 2002) (remanding for properly noticed evidentiary hearing on a motion for modification of visitation, and to provide evidence of substantial change in material circumstances and proof that modification is in the best interest of the child); Green v. Dep’t of Health & Rehabilitative Servs., 696 So.2d 1351, 1352 (Fla. 5th DCA 1997) (same); see also Spano v. Dep’t of Children and Families, 820 So.2d 409 (Fla. 3d DCA 2002).

The trial court at the petition hearing erred by entertaining modification of visitation without proper notice to DCF, at a statutorily prescribed hearing designed for a different stage of the dependency process, without any proof of substantial change in circumstances in the two weeks since the shelter hearing to justify granting visitation, and no argument that a contravening visitation order would be in the best interests of the children. The parents’ only argument was that they had had no visitation since the shelter placement two weeks earlier. This does not meet the barest standards to protect the children, and directly contradicts the shelter court’s findings of “egregious physical harm,” “failure to protect,” and the resulting no-contact order at the shelter hearing.

It is clear from this record that parents’ counsels did not file any motion to modify visitation, did not properly notice DCF of intent to seek modification of visitation, and proffered no evidence at the petition hearing to support a modification of the no-contact order issued at the shelter hearing. We therefore find the petition judge’s order granting supervised visitation to be a departure from the essential requirements of the law, grant the petition for certiorari, quash the visitation order on review, and remand for proper notice and an evidentiary hearing to determine if modification of visitation from the initial no-contact order is warranted.

      . In light of the statutory obligations and clear case law on the issue of modification of visitation, it was inappropriate of counsel to tell the judge that "I don’t have to file a motion for every little thing,” in response to DCF’s objection that it had not been properly noticed.


text:
    Joeann MCCLANDON, Appellant, v. DAKEM & ASSOCIATES, LLC, Appellee.
    Case No. 5D16-3300
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 26, 2017
    Stephanie L. Cook and Robert Clayton Roesch, of Shuffield, Lowman & Wilson, P.A., Orlando, for Appellant.
    ' Jon Marshall Oden, of Ball Janik, LLP, Orlando, for Appellee.
   PER CURIAM.

This appeal arises out of proceedings supplementary below where Appellee/judgment creditor Dakem & Associates, LLC is attempting to collect on a twelve-year-old judgment from Appellant/judgment debtor, Joeann McClandon. Appellant has a controlling interest in eleven limited liability companies (“LLCs”). Appellee filed the proceedings supplementary to reach the distributions from these LLCs to satisfy its, judgment. The trial court granted a charging order in Appellee’s favor against Appellant’s transferable interest in the LLCs.. To enforce the charging order, the court appointed a receiver to take control of four of the LLCs’ finances, acting as the de facto Chief Financial Officer, and authorized the receiver to ■ make financial management decisions.

Appellant takes issue with the portion of the trial court’s order appointing a receiver. She argues that section 605.0503, Florida Statutes (2015), permits a charging order as the sole exclusive remedy to attach a judgment debtor’s interest in a multi-member LLC and that there is no authority .under that statute for the appointment of a receiver. On the other hand, Appellee counters that the receiver is necessary to give the charging order “teeth” and that the court was well within its jurisdiction to appoint a receiver pursuant to subsections 605.0503(7)(c) and (d). We agree with the trial court in part and reverse in part.

Appellee obtained a judgment against Appellant in Nevada, in 2005. In 2008, Ap-pellee domesticated the Nevada judgment in Florida and began proceedings to collect the amounts owed, which culminated in the order at issue. Section 605.0503 permits the court to enter a charging order against a judgment debtor’s transferrable interest and requires the LLC to pay over to the judgment creditor any distribution that would otherwise be paid to the judgment debtor. Subsection (3) dictates that “a charging order is the sole and exclusive remedy by which a judgment creditor ... or member’s transferee may satisfy a judgment from the judgment debtor’s interest in a limited liability company or rights to distributions from the limited liability company.” § 605.0503(3), Fla. Stat. (2015). That being said, subsection (7) provides that “[t]his section does not limit any of the following”:

(c) the availability of the equitable principles of alter ego, equitable lien, or constructive, trust or other equitable principles not inconsistent with this section.
(d) the continuing jurisdiction of the court to enforce its charging order in a manner consistent with this section.

§§ 605.0503(7)(c)-(d). It is clear' to this Court that the trial court did not abuse its discretion when it appointed a receiver to enforce its charging order. However, it did abuse its discretion in determining the scope of the receiver’s power—specifically, by authorizing the receiver to have managerial control over the LLCs. The commentary under RULLCA provides that:

Under this section, the judgment creditor of a member or transferee is entitled to a charging order against the relevant transferable interest. While in effect, that order entitles the judgment creditor to whatever distributions would otherwise be due to the member or transferee whose interest is subject to the order. However, the judgment creditor has. no say in the timing or amount of those distributions. The charging order does not entitle the judgment creditor to accelerate any distributions or to otherwise interfere with the management and activities of the limited liability company.

RULLCA § 503 cmt. Under RULLCA and section 605.0503, the charging order entered by the court should have only directed the LLCs to divert Appellant’s rights to the LLCs’ profits and distributions to Appellee. Stated differently, the charging order should have only divested Appellant of her economic opportunity to obtain profits and distributions from the LLC, charging only'her membership interest, not her managerial rights. To the extent that the order appointing the receiver authorized the receiver to exercise managerial control over the LLCs, it exceeded the permissible scope and is reversed. In sum, the order granting the charging order and appointing the receiver is affirmed; however, the portions of the order permitting the receiver to be the financial officer of the LLC and exercise managerial control is reversed. The management control remains with the LLCs.

AFFIRMED in part and REVERSED in part.

PALMER and WALLIS, JJ., and JACOBUS, B.W., Senior Judge, concur.

      . Florida’s Revised Limited Liability Act is based on tire Revised Uniform Limited Liability Company Act of 2006, as amended in 2011 ("RULLCA”). Section 503 of RULLCA provides in part:
      SECTION 503. CHARGING ORDER.
      (a) On application by a judgment creditor of- a member or transferee, a court may enter a charging order against the transferable interest of the judgment debtor for the unsatisfied amount of the judgment. A charging order constitutes a lien on a judgment debtor’s transferable interest and requires the limited liability company to pay over to the person to which the charging order was issued any distribution that would otherwise be paid to the judgment debtor.
      (b) To the extent necessary to effectuate the collection of distributions pursuant to a charging order in effect under subsection (a), the court may:
      (1) appoint a receiver of the distributions subject to the charging order, with the power to make all inquiries the judgment debtor might have made; and
      (2) make all other orders necessary to give effect to the charging order.


text:
    Junior J. BATISTA, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-1135
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 26, 2017
    Junior J. Batista, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and; Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall' be filed with the trial court and be treated as the notice of appeal from the February 20, 2017 order, denying postconviction motion, filed in Case No. 2010-CF-554-A, in the Circuit Court in and for Osceola County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, C.J., SAWAYA, TORPY, JJ., concur.


text:
    Jean Renel PAUL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-114
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 26, 2017
    James S. Purdy, Public Defender, and Sean Kevin Gravel, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Jean Renel Paul appeals his judgment and sentence, contending that the trial court erred by applying an incorrect legal standard to his motion for new trial. We agree and remand for further consideration of Paul’s new trial motion.

The proper standard of review to address a defendant’s motion for new trial is whether the verdict is against the weight of the evidence. See Lee v. State, 117 So.3d 848, 849 (Fla. 5th DCA 2013); Santiago v. State, 874 So.2d 617, 625 (Fla. 5th DCA 2004). However, in this case, the trial court denied Paul’s motion for a new trial using the sufficiency of the evidence standard. We therefore reverse and remand for the trial court to consider Paul’s motion for new trial pursuant to the weight of the evidence standard. See Loudermilk v. State, 211 So.3d 356, 356 (Fla. 5th DCA 2017).

REVERSED and REMANDED.

COHEN, C.J., ORFINGER and BERGER, JJ,, concur.


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    Guies Ulysses JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-322
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 26, 2017
    Guies Ulysses Johnson, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Guies Ulysses Johnson appeals the summary denial of his motion for postconviction relief and his amended motion for postconviction relief. We affirm, in part, and reverse, in part.

In his original motion for postconviction relief, Johnson raised six grounds, some of which included subparts. On April 11,2016, the trial court entered an order summarily denying all of Johnson’s claims, except “Ground 2E.” Johnson was afforded an opportunity to file an amended motion as to this ground. Because the trial court’s order did not resolve all of Johnson’s claims, it was a non-final, non-appealahle order. See Fla. R. Crim. P. 3.850(f)(4).

On December 29, 2016, the trial court entered an order summarily denying Johnson’s amended motion. Attached to the trial court’s order was its original order of April 11, 2016, but not the attachments thereto. As a result, our record consists of the order (with attachments) denying Johnson’s amended motion and the order (without attachments) summarily dénying Johnson’s original motion. Based on the limited record before us, we affirm the summary denial of “Grounds 1, 2A, 2C, 2E, 2F and 4.” However, we reverse and remand for record attachments that conclusively refute Johnson’s claims, or an evi-dentiary hearing on “Grounds 2B, 2D, 2G, 3, 5, and 6.”

AFFIRMED, in part; REVERSED, in part; and REMANDED.

COHEN, C.J., and ORFINGER and EVANDER, JJ., concur.


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    Virgil O’Keith STEWART, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3564
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 26, 2017
    James S. Purdy, Public Defender, and Alexander. J. Gilewicz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Virgil Stewart appeals the summary denial of his motion seeking additional credit for time served both in jail and in prison. Although the trial court properly concluded Stewart’s motion was facially insufficient, it also denied Stewart’s claim on the merits. This denial was error. The trial court should have allowed Stewart sixty days to amend his motion. See Nazario v. State, 188 So.3d 975, 976 (Fla. 5th DCA 2016) (holding. that when defendant files facially insufficient rule 3.801 motion, court must enter non-final,, non-appealable order allowing defendant sixty days to amend motion); see also Fla. R. Crim. P. 3.850(e).

We reverse the trial court’s summary denial order and remand to provide Stewart sixty days to amend his motion.

REVERSED and REMANDED with instructions.

PALMER, ORFINGER, and EVANDER, JJ., concur.