text:
    John MATHERS and Brenda Mathers, Appellants, v. WAKULLA COUNTY, a Political Subdivision of the State of Florida, Appellee.
    CASE NO. 1D16-0582
    District Court of Appeal of Florida, First District.
    Opinion filed May 2, 2017.
    Rehearing Denied June 6, 2017

      Ronald A. Mowrey and Mark L. Mason of Mowrey Law Firm, P.A., Tallahassee, for Appellants.
    Heather J. Encinosa, Heath R. Stokley, Evan J. Rosenthal, and Carly J. Schrader of Nabors, Giblin & Nickerson, P.A., Tallahassee, for Appellee.
   PER CURIAM.

John and Brenda Mathers (the Mathers-es) appeal from a final summary judgment entered in favor of Wakulla County (“the County”). The Matherses argue, among other things, that the trial court erred in its application of section 95.361(2), Florida Statutes. Because acceptance is not an element of statutory-presumed dedication under section 95.361, and section 95.361 may be invoked by private parties, we agree and reverse the trial court’s judgment with respect to Counts 1 and 3. We affirm in all other respects without comment.

I.

Kristin Lane is a quarter-mile strip of dead-end gravel road located in rural Crawfordville, Florida. The road runs north from East Ivan Road and is the only means of ingress and egress to the handful of residences it serves. The Matherses and Wayne and Brenda Mitchell (“the Mitch-ells”) are adjoining landowners on Kristin Lane, with the Matherses’ residence located just north of the Mitchells.

In early July of 2014, the Mitchells erected a fence and gate on the part of their property abutting Kristin Lane. In an effort to block the Matherses from using the road, the Mitchells closed the gate across Kristin Lane and posted a “No Trespassing” sign. Although it necessarily blocked other residents from using Kristin Lane as well, the gate was apparently directed at the Matherses, whose names were emblazoned on the sign in black and white lettering stickers. According to Mr. Mitchell, Mrs. Mathers had been “stating negative things about him.”

When they arrived home, the Matherses simply opened the gate and proceeded on their way. The next day the Mitchells chained the gate closed. The evidence conflicts on who telephoned police first, but in either event deputies from the .Wakulla County Sherriffs Office eventually responded along with several county employees. The Mitchells claimed that the part of the road traversing their land was privately owned while the Matherses claimed it was publicly owned. At the advice of the deputies, the Mitchells agreed to keep the gate open until the matter could be resolved in the courts.

When the County learned of the dispute between the Mitchells and the Matherses, it searched minutes from meetings held before the Wakulla County Board of County Commissioners for any reference of Kristin Lane or record of a vote accepting Kristin Lane as a dedicated roadway. Finding none, the County’s attorney sent the Matherses a letter informing them that the County had determined that Kristin Lane is a private road.

The Matherses filed a four-count complaint naming the Mitchells'and the County as defendants. Count 1 of the complaint sought a declaratory judgment confirming that Kristin Lane had become a county road pursuant to section 95.361(2)and that the County was under a duty to maintain and repair-it. In Count 2, the Matherses claimed inverse condemnation on a theory of diminished access to their property resulting from an alleged -failure of the County to maintain Kristin Lane. Count 3 sought injunctive relief requiring the County to resume maintenance of Kristin Lane. Count-4 sought injunctive relief requiring the Mitchells to remove the fence and gate. The Matherses and the Mitchells eventually entered into a settlement agreement resolving Count 4, leaving the County as the only remaining defendant.

Referring to Kristin Lane, the County acknowledged in answers to interrogatories that “[t]he County Public Works Department has occasionally provided voluntary maintenance or repairs to non-arterial and non-collector roadways that are more in the nature of driveways or private neighborhood roads at the request of citizens as a public service to ensure accessibility for emergency vehicles.” However, according to the County, it did not have any legal duty to provide such maintenance or repair to Kristin Lane because it “is not aware of any recorded official document of acceptance of Kristin Lane ... as a public roadway for use by the general public.”

A county-issued document entitled “Work Order Listing Report” listed Kristin Lane as a road maintained by the County for grading. An affidavit completed in 1998 by Don Kemp, superintendent for the Road and Bridge Department of Wa-kulla County, states that Wakulla County has continuously maintained Kristin Lane for a period of twenty years. Kristin Lane is designated with a green road sign, as opposed to a blue road sign. According to the County’s website, the presence of a green road sign indicates that the road at issue is a county-maintained road. The road matrices of Wakulla County .reflect that .Kristin -Lane is listed as an unpaved county road for the years 1997, 2001, and 2008. i

Both the Matherses and the County moved for summary judgment. After a hearing on the merits, the trial court granted summary judgment in favor of the County on all three counts. While acknowledging that there was a genuine issue of material fact as to whether Kristin Lane had been regularly maintained or repaired by the County for seven years as Required by section 95.361(2), the trial court rear soned that 1) section 95.361(2) cannot be invoked by private parties and 2) a dedication. did not occur under section 95.361(2) because the County did not accept ownership of Kristin Lane.

II.

There are two distinct forms of dedication in Florida with regard to roads: common-law dedication and statutory-presumed dedication. Common-law dedication of a road requires “clear and unequivocal proof’ of two elements: 1) an offer to dedicate property to the use of the public and 2) acceptance by the public. Bonifay v. Dickson, 459 So.2d 1089, 1093-94 (Fla. 1st DCA 1984). An offer to dedicate may be implied from the acts of the landowner. Id. at 1094. Likewise, acceptance may be implied from acts of the public, including “use by the public or maintenance and improvement by the proper authorities of part of the land dedicated.” Id. The Math-erses do not rely on this form of dedication.

There are two types of statutory-presumed dedication. The first type is set forth in section .95.361(1) and involves roads constructed by a county, municipality, or the Department of Transportation. Under this provision, a private road becomes a public road when it “has been maintained or repaired continuously and uninterruptedly for 4 years by the county, municipality, or the Department of Transportation.” § 95.361(1), Fla. Stat. This provision dates to the 1940s, See Sun Plaza W. Dev. Corp. v. City of Holmes Beach, 465 So.2d 542, 544 n.2 (Fla. 2d DCA 1985) (“The law has been in essentially the same form for more than forty years though under different numbers. Therefore, references to section 95.361 in this opinion should be read to include its predecessor statutes.”).

The second type of presumed dedication is set forth in section 95.361(2) and applies to roads not constructed by a government entity. Enacted in 2003, this provision employs nearly the same language used in .section 95.361(1), the only differences being that the road must have been “regularly maintained or repaired” rather than “maintained or repaired continuously and uninterruptedly” and such maintenance must occur for seven years rather than four years. Because the Matherses -rely on this particular provision, its text is set forth in full below: .

(2) In those instances where a road has been constructed by a nongovernmental entity, or where the road was not constructed by the entity currently maintaining or repairing it, or where it cannot be determined who constructed the road, and when such road has been regularly maintained or repaired for the immediate past 7 years by a county, a municipality, or the Department of Transportation, whether jointly or severally, such road shall be deemed to be dedicated to the public to the extent of the width that actually has been maintained or repaired for the prescribed period, whether or not the road has been formally established as a public ■ highway. This subsection shall not apply to an electric utility, as defined in s. 366.02(2). The dedication shall vest all rights, title, easement, and. appurtenances in and to the road in:
(a) The county, if it is a county road;
whether or not there is a -record- of conveyance, dedication, or appropriation to the public use.

§ 95.361(2), Fla. Stat¡ Because it was enacted so much later than section 95.361(1), no case law construes section- 95.361(2). However, because the statutory language of each provision is virtually the same, we look to case law on section 95.361(1) for guidance. In those cases applying common-law. dedication and statutory-presumed dedication under section 95.361(1), the concepts are discussed separately and analysis of each is not mixed. Importantly, there are no cases applying section 95.361(1) so that the common law elements of offer and acceptance are made requirements of statutory-presumed dedication. Instead, to the extent statutory-presumed dedication is applied, courts focus on the level of maintenance and repair without reference to offer or acceptance. See e.g., Chackal v. Staples, 991 So.2d 949, 953-56 (Fla. 4th DCA 2008); Pasco v. City of Oldsmar, 953 So.2d 766, 769-70 (Fla. 2d DCA 2007); Hancock v. Tipton, 732 So.2d 369, 372 (Fla. 2d DCA 1999); Lee v. Calhoun Cty., 532 So.2d 43, 43 (Fla. 1st DCA 1988); Osceola Cty. v. Castelli, 435 So.2d 417, 418 (Fla. 5th DCA 1983); Hodges v. City of Winter Park, 433 So.2d 1257, 1259 (Fla. 5th DCA 1983); Balbier v. City of Deerfield Beach, 408 So.2d 764, 765 (Fla. 4th DCA 1982); Campanella v. Shuford, 336 So.2d 1257, 1258 (Fla. 1st DCA 1976).

The County argues that section 95.361 provides for acceptance by the filing of a map with the clerk. The County points to section 95.361(3), which states as follows:

(3) The filing of a map in the office of the clerk of the circuit court of the county where the road is located showing the lands and reciting on it that the road has vested in the state, a county, or a municipality in accordance with subsection (1) or subsection (2) or by any other means of acquisition, duly certified by:
(a) The secretary of the Department of Transportation, or the secretary’s designee, if the road is a road in the State Highway System or State Park Road System;
(b) The chair and clerk of the board of county commissioners of the county, if the road is a county road; or
(c) The mayor and clerk of the municipality, if the road is a municipal road or street,
shall be prima facie evidence of ownership of the land by the state, county, or municipality, as the case may be.

The County misunderstands this particular provision. Filing a map is not necessary to accomplish dedication under the statute. See Sun Plaza W. Dev. Corp., 465 So.2d at 544 (noting that a government entity may obtain title under section 95.361 without the filing of a map). Instead, the filing of the map, as the statute states, creates “prima facie evidence of ownership of the land.” § 95.361(3), Fla. Stat. Again, there is nothing in section 95.361 requiring that the government entity accept ownership.

Next, the County argues that acceptance must be a requirement of statutory-presumed dedication because a government entity cannot acquire property without intending to do so. The County points out that section 95.361 resides within a chapter entitled “Limitations on Action; Adverse Possession” and argues that it “would be contrary to the concept of adverse possession that an entity could unintentionally meet the requirements to adversely possess property and thereby be required to assume unintended obligations.”

The County is mistaken. Adverse possession may occur where the occupier has a mistaken belief of ownership. There is no requirement that the occupier intend to acquire land belonging to another. See Gay Bros. Constr. Co. v. Fla. Power & Light Co., 427 So.2d 318, 320 (Fla. 5th DCA 1983) (citing Seaboard Air Line R. Co. v. Cal. Chemical Co., 210 So.2d 757, 761 (Fla. 4th DCA 1968) (“[W]e reject appellant’s contention that the occupier must have the subjective intent to appropriate property of another in order for his possession to be adverse.”)).

Similarly, there is no requirement that a government entity intend to acquire property under section 95.361. See In re Jackson, 169 B.R. 742, 746 (Bankr. N.D. Fla. 1994) (“The debtor seeks to prove that the County does not own fee title to the land beneath the roadway. He asserts that since the County neither owns the land nor seeks to assert any claim of title to the land, fee title belongs to him. Regardless of the County’s intentions, however, the land may have been dedicated to the County by common laiv or statutory dedication.”) (emphasis added). To the extent the County is concerned with inadvertently assuming heavy financial burdens, it should bear in mind that roads may be abandoned pursuant to section 336.10, Florida Statutes.

In concluding that Kristin Lane was not publicly owned under section 95,361(2) because the County had not accepted ownership, the trial court either inadvertently conflated the concepts of common-law dedication and statutory-presumed dedication, or uncritically assumed that because acceptance is a requirement of common-law dedication, it must also be a requirement of statutory-presumed dedication. However, as discussed above, the plain language of the statute compels a different conclusion. Once dedication occurs, “[t]he dedication shall vest all rights, title, easement, and appurtenances in” one of three government entities, here, the County. § 95.361(2), Fla. Stat. In other words, ownership of the road automatically passes to the government entity at the moment it provides regular maintenance and repair for the prescribed period of time, regardless of any acceptance on the part of the government entity.

Finally, the County argues that summary judgment was warranted because the trial court correctly concluded that section 95.361 cannot be invoked by a private party. However, we see no reason that section 95.361 should be limited to use by government entities. Furthermore, there are a variety of cases in which private parties have been permitted to claim that a roadway became public property by operation of section 95.361. See e.g., In re Jackson, 169 B.R. at 746 (permitting private objector to invoke section 95.361 in order to destroy contiguity of land for purposes of homestead exemption); Darley v. Marquee Enters., Inc., 565 So.2d 715, 717-18 (Fla. 4th DCA 1990) (holding that trial court erred in refusing to instruct jury on plaintiffs theory that city owned road on which auto accident occurred by operation of section 95.361); Premer v. State, Dep’t of Transp., 346 So.2d 1219, 1220 (Fla. 3d DCA 1977) (stating that personal injury plaintiffs theory that Department of Transportation owned road pursuant to predecessor statute of section 95.361 was question of law).

III.

In conclusion, acceptance is not an element of statutory-presumed dedication under section 95.361, and section 95.361 may be invoked by private parties. Because the trial court correctly acknowledged that there was a genuine issue of fact on the issue of whether regular maintenance or repair occurred for the prescribed period, this case must be reversed for further proceedings. See Alpha Data Corp. v. HX5, L.L.C., 139 So.3d 907, 910 (Fla. 1st DCA 2013) (“We reverse the summary judgment in all other respects and remand for further proceedings because there remain genuine issues of material fact.”).

The trial court’s judgment is reversed and remanded as to Counts 1 and 3 for further proceedings consistent with this opinion. We affirm in all other respects.

ROBERTS, C.J., WINOKUR, J., and CLARK, JR., BRANTLEY S., ASSOCIATE JUDGE, CONCUR.


source: Caselaw Access Project

author: Levine, J.

license: Public Domain

text:
    Ruben M. TIRADO, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-802
    District Court of Appeal of Florida, Fourth District.
    May 3, 2017
    Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   Levine, J.

We are presented- in this case with the following issues: whether the trial court erred in denying appellant’s motion for a mistrial when a state’s witness allegedly made an isolated comment on the credibility of other witnesses and non-witnesses; and whether the trial court fundamentally erred in giving the standard jury instruction that the term “union,” as used in the sexual battery statute, means “contact.” We conclude that the trial court did not abuse its discretion in denying appellant’s motion for a mistrial, and additionally, we find that the trial court’s instruction was consistent with Florida law. We also find the remaining issue on appeal to be without merit and affirm without further comment.

The eight-year-old victim and her twin sister went to visit their uncle at his home that the uncle shared with his girlfriend and his girlfriend’s father, Ruben Tirado, the appellant. After arriving at the home, the twins went outside to play, and when they returned, their mother was present, sleeping on a couch. The two girls went into a bedroom where appellant was watching television. One of the girls got into bed with appellant and the other got onto a small side bed.

As the victim was falling asleep, appellant rolled over, pulled her pants down, and pulled his own pants down. The victim told appellant to get off of her and tried to push him .off, but was unable. When the victim’s sister noticed the victim struggling, the twin attempted to get appellant off of the victim as well, but could not. Although at trial the victim stated that appellant’s penis “touched” her “butt,” the victim told others shortly after the incident occurred that appellant had put his penis “in her butt.” When the victim’s uncle entered the room, appellant told the victim leave and to pull her pants up.

A subsequent medical examination of the victim did not show signs of injury. However, semen was found both in and around the victim’s anus and vagina, and DNA testing showed the semen belonged to appellant.

After appellant’s arrest and before being interviewed, he was kept in an interview room, alone, for several hours while a detective' interviewed the victim and other witnesses. At trial, appellant argued that the state must introduce the entire tape of his time inside of the interview room to show that appellant was uncomfortable, which, he argued, was relevant to the vol-untariness of his statement to police.

The state asked the detective why appellant was kept waiting in the interview room. The detective responded that she wanted to speak to the witnésses and the victim before speaking to appellant. The state asked the detective why she did this and she responded, “Because I want to get the most accurate information as to what occurred.” Appellant objected, argued the witness was commenting on the accuracy of others’ statements, and moved for a mistrial. The state asserted that it was not the witness’s intention to comment on anyone else’s testimony. The court sustained appellant’s objection and told the state to rephrase the question, but denied appellant’s motion for a mistrial. The state changed to a • different line of questions and did not later discuss the • detective’s comment.

Following the close of evidence, the court gave the standard jury instruction on sexual battery:

To prove the crime of Sexual Battery upon a person less than twelve years of age the State must prove the following three elements beyond a reasonable doubt:
Two, [appellant] committed an act upon [the victim] in which the penis of [appellant] penetrated or had union with the anus of [the victim].
And the term union méans contact.

Appellant did not object to the court’s definition of “union.”

The jury convicted appellant of both sexual battery and false imprisonment. Appellant appealed.

Appellant argues that the trial court erred in denying his motion for a mistrial after the detective commented on the credibility of the other witnesses and non-witnesses. We review the trial court’s decision to deny a mistrial for abuse of discretion. See Power v. State, 605 So.2d 856, 861 (Fla. 1992).

“A mistrial is appropriate only where the error is so prejudicial as to vitiate the entire trial.” Hamilton v. State, 703 So.2d 1038, 1041 (Fla. 1997). For example, in Tumblin v. State, 29 So.3d 1093 (Fla. 2010), a police officer testified he told another officer that the defendant’s co-defendant was reliable. The co-defendant’s testimony in that case was crucial as it was the only eyewitness testimony that the defendant had committed a crime. The Florida Supreme Court held the trial court abused its discretion in denying the defendant’s motion for a mistrial. Id. at 1104. In contrast, in Hamilton, a state’s witness unexpectedly testified that the defendant committed a collateral murder. The Florida Supreme Court found that the trial court did not abuse its discretion in denying a mistrial because “the improper comment was unanticipated by the State and was brief.” 703 So.2d at 1041.

In the present case, we first note that the witness’s testimony was not as crucial to showing guilt as the testimony was in Tumblin because appellant’s semen was found both in and around the victim’s anus and vagina. Furthermore, although the detective’s statement could be interpreted as vouching for the credibility of others, this testimony appears to have been “unanticipated” and was “brief.” See Hamilton, 703 So.2d at 1041. We therefore conclude that the trial court did not abuse its discretion in denying appellant’s motion for a mistrial because the detective’s statement did not “vitiate the entire trial.” See id.

Appellant next argues that the trial court fundamentally erred in giving the standard jury instruction that defines “union,” under the sexual battery statute, as meaning “contact.” For an error to be fundamental, “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” State v. Delva, 575 So.2d 643, 644-45 (Fla. 1991) (citation omitted).

“Sexual battery” is defined as “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object.” § 794.011(1)(h), Fla. Stat. (2012). The standard jury instruction the trial court gave defines “union” as meaning “contact.” Fla. Std. Jury Instr. (Crim.) 11.1. Appellant contends that “[s]exual union is the reciprocal of penetration.” Thus, he argues that mere “contact” between the sexual organs of one and the oral, anal, or vaginal orifice of another is insufficient to prove sexual battery.

We note that the standard jury instruction in this case is consistent with the Florida Supreme Court’s decision in Seagrave v. State, 802 So.2d 281 (Fla. 2001), which dealt with the assessment of victim injury points for “sexual contact.” In Seag-rave, the court held that the assessment of “sexual contact points” was not limited to only criminal acts involving “the union of the sexual organ of one person with the oral, anal or vaginal opening of another.” Id. at 283. The supreme court stated,

We do not disagree that the standard jury instructions for sexual battery define “union” as “contact” and that a definition of “contact” includes “union.” However, the term “sexual contact” encompasses a broader range of conduct than does the term “union” with regard to acts of sexual battery because the sexraal battery statute limits the contact to the “union” between the sexual organ of one and the oral, anal or vaginal opening of another. If the Legislature had intended to limit sexual contact points to offenses involving union for the purposes of the sexual battery statute, then it would have used the word “union” in section 921.0011(7)(b)2., rather than the more inclusive word “sexual contact.”

Id. at 287 (second emphasis added) (footnote omitted).

The supreme court also defined “contact” as “a union or junction of body surfapes: a touching or meeting.” Id. at 286 (quoting Webster’s Third New International Dictionary 490 (1993)) (emphasis added). Indeed, the court explained that “the term ‘union’ and the term ‘penetration’ are used with some precision. Union permits a conviction based on contact with the relevant portion of anatomy, whereas penetration requires some entry into the relevant part, however slight.” Id. at 287 n.7 (quoting Richards v. State, 738 So.2d 415, 418 (Fla. 2d DCA 1999)). See also Dorch v. State, 458 So.2d 357, 358 (Fla. 1st DCA 1984) (“[I]t is clear that the Legislature intended that ‘union’ mean something other than penetration. We agree with the trial court that contact alone, between the sexual organ of the offender and the mouth, anus, or vagina of the victim, is sufficient to convict.”); Victor v. State, 566 So.2d 354, 355 (Fla. 4th DCA 1990) (explaining that “[a] sexual battery under chapter 794 does not require penetration of a victim. Contact between the defendant’s mouth and the victim’s sexual organ is sufficient.”) (citing Dorch, 458 So.2d at 357). We therefore find that the trial court did not err in giving the standard jury instruction that “union means contact.”

In summary, we conclude that the trial court’s decision to deny appellant’s motion for a mistrial was not an abuse of discretion. We also conclude that the trial court did not fundamentally err in giving the standard jury instruction for sexual battery. We affirm as to the remaining issue, finding it to be without merit.

Affirmed.

Warner and Taylor, JJ., concur.

      . Appellant also'requested that the’trial court give a curative instruction though the trial court did not rule on appellant's request and appellant floes riot raise the lack of a curative instruction for our consideration.


author: EMAS, J.

text:
    WEST FLAGLER ASSOCIATES, LTD., Appellant, v. The DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Appellee.
    No. 3D16-2311
    District Court of Appeal of Florida, Third District.
    Opinion filed May 3, 2017

      The Lockwood Law Firm, John M. Lockwood, Thomas J. Morton and Kala Kelly Shankle (Tallahassee), for appellant.
    Jason Maine, General Counsel, and Dwight O. Slater, Chief Appellate Counsel (Tallahassee), for appellee.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   EMAS, J.

West Flagler Associates, Ltd. (“West Flagler”) appeals a final order of the Florida Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (“the Division”), which denied West Flagler’s two applications for summer jai alai permits. For the reasons' that follow,'we affirm, holding that the Division properly construed and applied section 550.0745(1), Florida-Statutes (2015).

BACKGROUND

West Flagler is the owner of a parimutuel permit and is one of sevén permit holders authorized to conduct pari-mutuel pools on exhibition sports in Miami-Dade County. In 2015, West Flagler filed two separate applications with the Division, each application seeking a new summer jai alai permit pursuant to section 550.0745(1), which provides:

The owner or operator of a pari-mutuel permit who is authorized by the division to conduct pari-mutuel pools on exhibition sports in any county having five or more such pari-mutuel permits and whose mutuel play from the operation of such pari-mutuel pools for the 2 consecutive years next prior to filing an application under this section has had the smallest play or total pool within the county may apply to the division to convert its permit to a permit to conduct a summer jai alai fronton in such county during the summer season commencing on May 1 and ending on November 30 of each year on such dates as may be selected by such permittee for the same number of days and performances as are allowed and granted to winter jai alai frontons within such eounty. If a permittee who is eligible under this section to convert a permit declines to convert, a new permit is hereby made available in that permit-tee’s county to conduct summer jai alai games as provided by this section, notwithstanding mileage and permit ratification requirements.

(Emphasis added).

West Flagler’s first application. for a new summer jai alai permit was. based on state fiscal years 2012-13 and 2013-14 (“the First Application”); its second application was. based on state fiscal years 2013-14 and 2014-15 (“the Second Application”). In each application, West Flagler took the position that South Florida Racing Association (“SFRA”) was the permit holder with the smallest play or total pool for each of the relevant fiscal periods, and thus, that SFRA was eligible to convert its parimutuel permit to a summer jai alai permit. West Flagler asserted that, because SFRA declined on each occasion to convert its permit to a summer jai alai permit, section 550.0745(1) required that a new summer jai alai permit be created and made available for each of those two-year periods.

On July. 10, 2015, the. Division denied both of West Flagler’s applications. As to the. First Application, the Division .concluded that there was no single permit holder with the smallest play or. total pool for fiscal years 2012-13 and 2013-14. As to the Second Application, the Division concluded that Summer Jai Alai Partnership (“SJAP”) was the permit holder with the smallest play or total pool for fiscal years 2013-14 and 2014-15, and because SJAP was already the holder of a summer jai alai permit, it was not eligible under the statute to “convert” its existing summer jai alai permit to a “new” summer jai.'alai permit. Therefore, no new summer jai alai permit was created for those fiscal periods.

West Flagler filed petitions for administrative hearings on each application denial. The petitions were consolidated and referred to the Department of Administrative Hearings.

Two issues of statutory construction were central to the determinations made at the final hearing, held before an Administrative Law Judge: (1) Whether the ■term “smallest play or total pool,” as used in section 550.0745(1), includes only live wagers and intertrack wagers, or whether that term also includes “simulcast export” wagers (i.e., out-of-state wagers); and (2) Whether under section 550.0745(1), a summer jai alai permit holder is eligible to “convert” its existing summer jai alai permit into a “new” summer jai alai permit.

West Flagler’s position was that the statutory term “play or total pool” should be construed to include live wagers and intertrack wagers, but not simulcast export wagers. Applying such a construction, SFRA would have had the smallest play or total pool in Miami-Dade County for the relevant years. Thus, West Flagler contended, because SFRA was eligible to convert its permit but declined to do so, two new summer jai alai permits were available, and West Flagler’s applications for each of those permits should have been granted.

By contrast, the Division asserted that the calculation of “play or total pool” does include simulcast export wagers, and that if such wagers were included in the calculation, West Flagler had the smallest play or total pool for the 2012-13 fiscal year, while SJAP had the smallest play or total pool for fiscal years 2013-14 and 2014-15. Thus, as to the First Application (covering fiscal years 2012-13 and 2013-14), there was no permit holder eligible to convert and consequently no new permit was available. For the Second Application, SJAP was the permit holder with the lowest play or total pool for 2013-14 and 2014-15. However, SJAP was already a summer jai alai permit holder, and the Division asserted that one cannot “convert” a summer jai alai permit to a summer jai alai permit, and therefore, no new summer permit was available for that fiscal period either.

After a final hearing, the ALJ issued its recommended order, wherein it concluded, inter alia, that:

• Simulcast export wagers should be included in the calculation of which pari-mutuel has the “smallest play or total pool” within the county;
• There was no summer jai alai permit available in Miami-Dade County for the period encompassing fiscal years 2012-13 and 2013-14 because West Flagler had the smallest play or total pool for 2012-13 (including simulcast export wagers) and SJAP had the smallest play or total pool for 2013-14 (including simulcast export wagers);
• SJAP had the smallest play or total pool for the 2013-14 and 2014-15 fiscal years;
• SJAP is already the holder of a sum- ■ mer jai alai permit, so it cannot “convert” that existing permit to a summer jai alai permit and therefore, no new summer jai alai permit was created.

• Accordingly, the AL J recommended that the Division deny both of West Flagler’s applications. Thereafter, the Division issued its final order, which approved and adopted the ALJ’s findings of fact, and denied each of West Flagler’s applications for new summer jai alai permits. This appeal followed.

ANALYSIS

“This court reviews an ALJ’s findings of fact for competent, substantial evidence, while reviewing an ALJ’s conclusions of law de novo.” J.S. v. C.M., 135 So.3d 312, 315 (Fla. 1st DCA 2012). However, the “administrative construction of a statute given by those charged with its enforcement and interpretation is entitled to great weight, and the courts will not depart from such a construction unless it is clearly erroneous or unreasonable.” West Flagler Assoc., Ltd. v. Dep. of Bus. & Reg., 139 So.3d 419, 421 (Fla. 1st DCA 2014).

There are two conclusions of law, based upon the ALJ’s and the Division’s statutory construction of section 550.0745(1), which we must review in this appeal: (1) whether the calculation of a pari-mutuel facility’s “play or total pool” includes simulcast export wagers (i.e., out-of-state wagers); and (2) whether an existing summer jai alai permit holder is eligible to “convert” its existing summer- jai alai permit to a new summer jai alai permit.

Issue # 1: Does the calculation of a pari-mutuel facility’s “play or total pool” include simulcast export wagers?

As discussed above, if simulcast export wagers are included in a pari-mutuel facility’s “play or total pool,” as applied to section 557.0745(1), then there was no single permit holder with the smallest play or total pool for fiscal years 2012-2013 and 2013-2014, no eligible permit to be converted, and West Flagler’s First Application was properly denied.

West Flagler contends that pursuant to this court’s precedent in South Florida Racing Association v. State, Department of Business & Professional Regulation, Division of Pari-Mutuel Wagering, 201 So.3d 57 (Fla. 3d DCA 2015), only live wagers and intertrack wagers should be included in the calculation of a permit holder’s “play or total pool.” It is true that in South Florida Racing this court held that both live wagers and intertrack wagers are to be included in the calculation of play or total pool. Significantly, however, the question of whether simulcast export wagers should also be included in that calculation was never raised, briefed or argued in South Florida Racing, and therefore was never considered by this court. • Specifically, the issue in South Florida Racing was whether only live wagers should be included in the “smallest play or total pool” calculation, or whether, as South Florida Racing contended, both live wagers and intertrack wagers should be included.

The statute at issue here is the same statute that was at issue in South Florida Racing:

The owner or operator of a pari-mutuel permit who is authorized by the division to conduct pari-mutuel pools on exhibition sports in any county having five or more such pari-mutuel permits and whose mutuel play from the operation of such pari-mutuel pools for the 2 consecutive years next prior to filing an application under this section has had the smallest play or total pool within the county may apply to the division to convert its permit to a permit to conduct a summer jai alai fronton in such county during the summer season ....

§ 557.0745(1), Fla. Stat, (emphasis added).

However, in South Florida Racing, 201 So.3d at 61, the pertinent portion of the statute this court was required to construe was “within the county,” as the Division argued that only live wagers and wagers made at other tracks within Miami-Dade County should be calculated in determining. who had the “smallest play or total pool.” This court rejected that argument, holding that the “within the county” language limited which owners and operators (only those within Miami-Dade County) qualified to convert their permit, but did not limit which wagers (intra-county v. inter-county) should be counted in the calculation. Therefore, we held, even wagers placed’ outside Miami-Dade County (via intertrack wagers) should be included in the calculation of “smallest play or total pool.” Because it was not presented as an issue to this court, however, South Florida Racing .did not address or -determine whether wagers placed outside the State (simulcast export- wagers) must also be included calculation, of which permit holder had the “smallest play or total pool.”

We can discern nothing in the language of the statute which would require, for the purpose of calculating the smallest play or total pool under section 557.0745(1), drawing a distinction between intertrack wagers and simulcast export wagers. As this court recognized in South Florida Racing, 201 So.3d at 61, “[although ‘total pool* is not statutorily defined, the term ‘pari-mu-tuel wagering pool’ is defined to mean ‘the total amount wagered ón a race or game for a single possible result,’ ” and “[n]oth-ing'in Chapter 550 of the Florida Statutes limits the total pool to solely physical in-county wagers.” Id. Our determination in the instant case—that the statutory language includes simulcast export wagers— is consistent with our analysis in South Florida Racing, and the contrary construction proposed by West Flagler would conflict with the plain meaning of section 550.0745(1).

Thus, because we conclude that simulcast export wagers are to be included in a calculation of the play or total pool, the ALJ correctly determined that West Flagler had the smallest total pool in 2012-13, and that SJAP had the smallest total pool in 2013-14. Because no single permit holder had the smallest play or total pool for both of these fiscal periods, there was no available permit to convert and the First Application was therefore properly denied.

Issue # 2: Is an existing summer jai alai permit holder eligible to convert its summer jai alai permit to a “new” summer jai alai permit?

The Second Application raises a separate issue, because the Division does not dispute that SJAP was the permit holder with the smallest play or total pool for fiscal years 2013-14 and 2014-15. Rather, the Division contends that SJAP was not eligible to convert its permit under section 550.0745(1) because SJAP’s only permit is already a summer jai alai permit, and á summer jai alai permit cannot be “converted” to a summer jai alai permit. Therefore, because there is no permit holder who is eligible to convert its permit, no new permit was created, and West Flagler’s Second Application was properly denied. We agree.

Again, section 550.0745(1) provides:
The owner or operator of a pari-mutuel. permit who is authorized by the division to conduct pari-mutuel pools on exhibition sports in any county having five or more such pari-mutuel permits and whose mutuel play from the operation of such pari-mutuel pools for the 2 consecutive years next prior to filing an application under this section has had the smallest play or total pool within the county may apply to the division to convert its permit to a permit to conduct a summer jai alai fronton in such county during the summer season commencing on May-1 and ending on November 30 of each year on such dates as may be selected by such permittee for the same number of days and performances as are allowed and granted to winter jai alai frontons within such county. If a permittee who is eligible under this section to convert a permit declines to convert, a new permit is hereby made available .in that permit-tee’s county to conduct summer jai alai games as provided by this section, 'hot-withstanding mileage and permit ratification requirements.

(Emphasis added.)

A plain reading of this language establishes that: (1) a new permit is only made available when a permit holder who is “eligible under this section to convert a permit declines to, convert;” and (2) an eligible permit holder is one who “may apply to the division to convert its permit to a permit to conduct a summer jai alai fronton;” and (3) the eligible permit holder may convert from a permit “to conduct pari-mutuel pools on exhibition- sports” into a “permit to conduct a summer jai alai fronton;” '

If the permit holder is already a summer jai alai permit holder, and only a summer jai alai permit holder, then clearly it cannot “convert” its summer jai alai permit to a summer jai alai permit, ás there is nothing to “convert.” If the permit holder cannot convert its permit (because it is ineligible to do so), then under the statute, no new permit is available for which other permit holders (here, West Flagler) may apply.

We reject West Flagler’s argument that, because a new summer jai alai permit would have allowed SJAP to relocate from its present fixed location, such a change in the nature or character of the permit constitutes a “conversion” of its present summer jai alai permit to a “new” summer jai alai permit. We find nothing in the plain language of the statute that would support this construction urged by West Flagler.

Even if we were to conclude that this statutory language is subject to differing constructions, we are duty-bound to afford deference to the Division’s construction:

Administrative construction of a statute by an agency responsible for its administration is entitled to great weight and should not be overturned unless clearly erroneous. All Seasons Resorts, Inc. v. Division of Land Sales, Condominiums and Mobile Homes, 455 So.2d 544, 547 (Fla. 1st DCA 1984).

Shell Harbor Grp., Inc. v. Dep’t of Bus. Reg., Div. of Alcoholic Beverages & Tobacco, 487 So.2d 1141, 1142 (Fla. 1st DCA 1986). See also West Flagler, 139 So.3d at 421 (holding that “an administrative construction of a statute given by those charged with its enforcement and interpretation is entitled to great weight, and the courts will not depart from such a construction unless it is clearly erroneous or unreasonable.”) The Division’s construction of the statute is neither unreasonable nor clearly erroneous.

CONCLUSION

We hold that the Division properly construed and applied section 550.0745(1), Florida Statutes, and therefore affirm the Division’s order denying both of West Fla-gler’s applications for summer jai alai permits.

Affirmed.

      . Based upon its calculations, the Division instead determined that West Flagler was the . permit holder with the smallest play or total pool for fiscal year 2012-13, and Summer Jai Alai Partnership was the permit holder with the smallest play or total pool for fiscal year 2013-14. To be entitled to convert a permit, however, the statute requires a permit holder to have had the smallest play or total pool for both of those'fiscal periods.

      . Live wagers are those accepted at a permitted Florida facility on a race or game performed live at that facility.

      . Intertrack wagers are those accepted at a permitted Florida facility on a race or game transmitted from and performed live at, or simulcast rebroadcast from, another permitted Florida facility,

      .Simulcast export wagers are those accepted at an out-of-state facility on a race or game performed live at a permitted Florida facility.

      . We reject West Flagler's assertion that the Division’s findings of fact regarding the accuracy of the amounts of the simulcast export wagers are not supported by competent substantial evidence. In its recommended order, the ALJ sets forth the process of calculating the wager amounts and determined, specifically with regard to simulcast export wagers, that the Division relies on information reported to it by the totalizator (the "tote”), who is contracted by the permit holder to provide those numbers. Those numbers are then audited by the Division to ensure that wagers are accounted for and paid. There is competent substantial evidence in the record to support these findings and the determination that the amounts of the simulcast export wagers were accurate. We affirm without further discussion the other claims raised by West Fla-gler in this appeal.

      . West Flagler contends that, in construing section 550,0745(1), we should define the term "total pool” synonymously with the term "handle." The term "handle” is statutorily defined, and means “the aggregate contribu-tibns to pari-mutuel pools.” § 550.3551(2)(b). Significant to West Flagler’s argument, the "handle” does not include “any wagers accepted by an out-of-state pari-mutuel permit-holder.” Id. In support of its position, West Flagler argues that the First District, in West Flagler Associates, Ltd. v. Department of Business & Professional Regulation, 139 So.3d 419, 421 (Fla. 1st DCA 2014), used “total pool” and "handle” interchangeably and thereby ascribed the same meaning to them. Though the First District’s opinion in West Flagler Associates' may have used the terms "total pool”- and “handle” interchangeably in its opinion, the issue in that appeal did not involve the distinction between these two terms in construing "total pool” under section 550.0745(1), and such a short-hand description, utilized by our sister court for ease of reference, is neither dispositive of, nor even persuasive in, our consideration of the issue addressed in the instant appeal.


author: FERNANDEZ, J.

text:
    Gonzalo C. SANCHEZ, as Chairman of the Recall Committee, and Providing Effective Government for all Residents, a political committee, Appellants, v. Orlando LOPEZ, individually and as Mayor of the City of Sweetwater, Appellee.
    No. 3D17-733
    District Court of Appeal of Florida, Third District.
    Opinion filed May 3, 2017

      Kuehne Davis Law, P.A., and Benedict P. Kuehne and Michael T. Davis; and KYMP and Juan-Carlos Planas, for appellants.
    Carballo Law, P.A., and Joseph A. Car-ballo and John Rodriguez; Coffey Burlington, P.L., and Kendall Coffey and Scott A. Hiaasen, for appellee.
    Before LAGOA, FERNANDEZ and LUCK, JJ.
   FERNANDEZ, J.

Appellants Gonzalo C. Sanchez, etc., et al., appeal the trial court’s final judgment concluding that the recall petition filed against appellee, Sweetwater Mayor Orlando Lopez, did not state a valid ground for neglect of duty pursuant to the City Charter. We agree with the trial court that the recall petition, filed pursuant to section 100.361, Florida Statutes (2009), is legally insufficient as a matter of law and therefore affirm the court’s final judgment.

Appellants sought the recall of the may- or on the grounds that he failed to perform his duties as section 4.01(d)(10) of the City Charter requires. They alleged in the recall petition, among other things, that the mayor failed to attend numerous commission meetings, or provide staff to City Budget Workshops, which forced the cancellation of meetings and prevented commissioners from addressing important financial issues. The mayor sought declaratory and injunctive relief to suspend the recall process. He mainly argued that the recall petition was invalid because he, did not neglect his duties pursuant to the City Charter. The court found that the language of the recall petition was legally insufficient because the mayor’s absence from commission meetings did not constitute neglect of duty under the City Charter.

The duties of the Mayor of the City of Sweetwater are delineated in Article IV of the City Charter. Section 4.00 specifies that “[t]he executive authority of the City of Sweetwater will be vested in the mayor who will be responsible for the administration of the city government.” Section 4.01 specifies the powers and duties of the may- or which include, in relevant part, the following:

(a) Position of mayor: The mayor shall be the chief executive officer of the City of Sweetwater and shall be responsible for the management and administration of the city government and the legislative power of the mayor shall be limited to his right to participate in meetings of ‘ the city commission, the power of veto, approval in writing of ordinances and resolutions as provided hereinafter in this section but the mayor shall not have a right to vote.
* * *
(d) Specific authority of mayor: The mayor shall:
(1)Appoint and when he ■ deems it necessary for the good of the city, suspend or remove all city employees and appointive administrative officers provided for by or under this Charter or personnel rules adopted pursuant to this Charter subject to appeal to the city commission as more specifically set forth in section 3.06(e) of this Charter. The may- or may authorize any administrative officer who is subject to his direction and supervision to exercise these powers with respect to subordinates in that officer’s department, office or agency.
(2) Direct and supervise the administration of all departments, offices ' and agencies of the city, except as otherwise provided by this Charter or by law.
(3) Respond to inquiries of the commission. The mayor may attend all commission meetings and may be allowed to participate in the discussion but shall not have the right to vote.
(4) Ensure that all laws, provisions of this Charter and acts of the commission, subject to enforcement by- the mayor or officers subject to the Mayor’s direction and supervision, are faithfully executed.
(5) Prepare and submit to the commission the annual budget and budget message which shall include any proposed capital improvement program.in a form as required by Charter and state law.
(6) Submit to the commission and make available to the public a complete report on the finances and administrative activities of the city as of the end of each fiscal year.
(7) Make such other reports as the commission may require concerning the operations of city departments, offices and agencies that are subject to the direction and supervision of the mayor.
(8) Keep the commission fully advised as to the financial condition and future.needs of the city and . make • such recommendations; to them [it] concerning, the affairs of the' city as the mayor deems advisable or commission requests.
(9) In conjunction with the city clerk sign contracts on behalf of the city pursuant to the requirements of ordinances or resolutions providing there have been proper ' appropriation of funds for same.
(10) Be available at all reasonable times to respond to questions from members of the city commission.
(11) Perform .such other duties as are specified in this Charter or may be required by the city commission.

(Emphasis added)

The plain language of the City Charter makes clear that the mayor’s attendance, at commission meetings is not mandatory. Section 4.01(d)(3) provides that “[t]he mayor may. attend all commission meetings and may be allowed to participate in the discussion but shall not have the right to vote.” In addition, section 4.01(d)(3) requires the mayor to “[rjespond to inquiries, of the commission” and section 4.Ql(d)(10) requires the mayor to “[b]e available at all reasonable times to respond to questions from members of the city commission.”

The City Charter thus gives the mayor the right to attend commission meetings but does- not require the mayor to do . so. In addition, there are no allegations that the mayor has not responded to the commission’s inquiries or has not been available. to respond to questions at all reasonable times. Florida’s recall statute “requires that a recall petition allege conduct by the public official which would constitute one -of the seven grounds for removal,” as provided for in section 100.361(2)(d). See Bent v. Ballantyne, 368 So.2d 351, 353 (Fla. 1979). In the case of neglect of duty for failure to attend commission meetings, as is alleged in the recall petition, the inquiry begins with the establishment of a- legal duty of the mayor and a violation of that legal duty by the mayor. Since' the City Charter does not require that the mayor attend commission meetings, then it stands' to reason that there cannot be a violation of such duty because the duty does not exist. Finally, because one of the grounds, for recall advanced in the petition, neglect of duty for failure to attend city commission, meetings, is legally insufficient, the entire petition is legally insufficient. See Garvin v. Jerome, 767 So.2d 1190 (Fla. 2000).

We therefore affirm the trial' court’s final judgment concluding that the facts alleged in the recall petition do not . support a claim for neglect of duty.

Affirmed.

      . The entire operative text of the petition reads as follows:
      I, the undersigned registered elector in Sweetwater, Florida, petition the Sweetwa-ter City Clerk to RECALL Mayor Orlando Lopez pursuant to Section 7.01, Article VII of the Sweetwater City Charter, which allows for all elected officials to be recalled and Florida Statutes, section 100.361 which provides the procedure. Mayor Lopez should be recalled for neglect of duty as he has failed to perform his duties required by Section 4.01(d)(10) of the City Charter. On numerous occasions, including June 10, 2016, Mayor Lopez failed to attend, or provide staff to City Budget Workshops, forcing their cancellation and preventing Commissioners from addressing important financial issues. Mayor Lopez has also missed numerous meetings of the Sweetwater City Commission, including September 15th and 30th, as well as October 3rd and November 16th of 2016. As the chief administrator of the City, his presence is needed in order to provide essential information to members of the Commission for pending legislation. Without the Mayor present, the City Commission was hampered in its ability to fulfill its duty. Mayor Orlando Lopez’s neglect of his duty by his continued absences has burdened the City of Sweetwater and caused problems in the effective and efficient governance of the City.

      ,' The seven grounds for removal include malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, and conviction of a felony involving moral turpitude. •


author: BERGER, J.

text:
    STATE of Florida, Petitioner, v. Oscar Eugene MILBRY, III, Respondent.
    Case No. 5D16-3360
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 5, 2017

      Phil Archer, State Attorney, and Julia Lynch, Assistant State Attorney, Viera, for Petitioner.
    Blaise Trettis, Public Defender, and Patrick Lepore, Assistant Public Defender, Viera, for Respondent.
   BERGER, J.

The State of Florida seeks certiorari relief from a circuit court order denying its motion to consolidate. We grant the writ.

To receive relief under certiorari review, a party must show that the lower court departed from the essential requirements of the law, the party will suffer a material injury for the rest of the case, and there is no adequate remedy on post-judgment appeal. Holmes Reg’l Med. Ctr., Inc. v. Dumigan, 151 So.3d 1282, 1284 (Fla. 5th DCA 2014) (citing Allan & Conrad, Inc. v. Univ. of Cent. Fla., 961 So.2d 1083, 1087 (Fla. 5th DCA 2007)). The last two requirements are' often combined into the concept of “irreparable harm.” Id. (citing Citizens Prop. Ins. Corp. v. San Perdido Ass’n, 104 So.3d 344, 351 (Fla. 2012)). Irreparable harm is jurisdictional and must be found before a court may even consider whether there has been a departure from the essential requirements of the law. Id.

On October 4, 2011, a grand jury indicted Oscar Milbry, III, on charges of first-degree felony murder and aggravated child abuse. The case was set for trial. Shortly before trial, Milbry listed Dr. Mark Shuman as an expert witness. During the State’s deposition, Dr. Shuman provided an alternative theory that would support the charge of aggravated manslaughter of a child. Based on the doctor’s testimony, the State filed an information charging Milbry with aggravated manslaughter of a child and thereafter moved to consolidate the two cases because the separate charging documents arose from the death of the same child. The motion was denied, prompting the State to seek certiorari review,

The first consideration in any certiorari proceeding is whether irreparable harm has been demonstrated. State v. Foley, 193 So.3d 24, 26 (Fla. 3d DCA 2016). Irreparable harm in the criminal context, when the petition is brought by the State, is a unique issue due to the State’s limited ability to appeal. State v. Pettis, 520 So.2d 250, 253 (Fla. 1988). Indeed, the State may only appeal certain enumerated orders, id (citing Fla. R. App. P. 9.140(c)), and the order under consideration here is not within that list. See Fla. R. App. P. 9.140(c). Moreover, when there is an acquittal, the State is precluded from review by double jeopardy. Id. Accordingly, the Florida -Supreme Court has held that where an order forces the State to proceed to trial with a significant impairment, and no appeal from the order would be available on an acquittal, the State may properly invoke certiorari review. See Petfe, 520 So.2d at 253.

The State argues it has a material injury that cannot be corrected on appeal because it is being forced to present competing theories of guilt for the same act in separate trials. According to the State, if it moves ahead with the felony murder and child abuse case, Milbry will argue culpable negligence to defeat the intent element. Conversely, if the State moves ahead- on aggravated manslaughter of a child, Milbry will argue child abuse as a defense to defeat the culpable negligence element by showing intent. Accordingly, the State maintains that the current order forces it to trial without a fundamental theory of the case, and requires it to proceed piecemeal, with Milbry able to use the State’s own alternative theories as a defense.

The question we must resolve is whether this alleged harm substantially impairs the State’s ability to prosecute. State v. Jones, 30 So.3d 619, 623 (Fla. 2d DCA 2010) (citing Pettis, 520 So.2d at 253). We conclude that it does. Because failing to consolidate robs the State of an entire theory of. culpability, the State has alleged irreparable harm sufficient to invoke certiorari jurisdiction.

We next turn to whether there has been a departure from the essential requirements of the law. State v. Clyatt, 976 So.2d 1182, 1182 (Fla. 5th DCA 2008). Florida Rule of Criminal Procedure 3.151(b) provides:

(b) Consolidation. of Indictments or Informations. Two or more indictments or informations charging related offenses shall be consolidated for trial on a timely motion by a defendant or by the state. The procedure thereafter shall be the same as if the prosecution were under a single indictment or information. Failure to timely move for consolidation constitutes a waiver of the right to consolidation.

Fla, R. Crim. P. 3.151(b) (emphasis added). For the purpose of this rule, related offenses are two or more offenses “triable in the same court and ... based on the same act or transaction or on 2 or more connected acts or transactions.” Fla. R. Crim. P. 3.151(a).

Here, the two cases are related offenses because they occurred at the same time and involve the death of the same child. Therefore, given the mandatory language of the rule and absent an untimely motion, it appears consolidation was required. See Shands Teaching Hosp. & Clinics, Inc. v. Sidky, 936 So.2d 715, 721 (Fla. 4th DCA 2006) (“The word ‘may’ when given its ordinary meaning. denotes a permissive term rather than the mandatory connotation of the word ‘shall.’ ” (quoting The Fla. Bar v. Trazenfeld, 833 So.2d 734, 738 (Fla. 2002))).

• Inasmuch as the State was entitled to consolidation, we hpld that the trial court departed from the essential requirements of the law when it denied the State’s motion by concluding,, “there is [sic] no grounds with which this Information can be consolidated with the grand jury’s Indictment.” Accordingly, we quash the order under review and remand for entry of an order consolidating the two cases.

PETITION GRANTED.

WALLIS, J., and JACOBUS, B.W., Senior Judge, concur.

      .Milbry’s entire argument on the matter revolves around a theory of constructively amending an indictment via consolidation. That argument is without merit. See Mendyk v. State, 545 So.2d 846, 848-49 (Fla. 1989) (citing King v. State, 390 So.2d 315 (Fla. 1980)) (consolidating indictment with information is- permissible). Nonetheless, the State bears the burden to establish a clear departure from the essential requireménts of law, See State v. Davis, 147 So.3d 7, 9 (Fla. 1st DCA 2013) (citing Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla. 2004)).

      . At the hearing on Milbiy’s motion to dismiss, defense counsel conceded the offenses were related when he argued, ”[t]he Indictment was wholly made from the same facts and circumstances and events, and the entire episode occurred on May 20, 2011.”

      . The use of '‘shall’' in rule 3.151(b) differs from the civil rule, which only uses the permissive "may.”. See Fla. R. Civ. P. 1.270(a).


author: COHEN, C.J.

text:
    Arthur SLINGER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1874
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 5, 2017
    James S. Purdy,. Public Defender, and Brittany N. O’Neil, ..Assistant Public Defender, Daytona Beach, for Appellant..

      Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-' pellee.
   COHEN, C.J.

Arthur Slinger appeals his convictions and sentences, following a jury trial, on three counts: 1) sexual battery; 2) lewd or lascivious molestation of a child between the ages of twelve and sixteen; and 3) lewd or lascivious battery of a' child between the ages of twelve and sixteen. The State alleged that Slinger both fondled and performed oral sex upon a twelve-year-old boy. On appeal, Slinger argues that the trial court erred in failing to conduct an adequate Faretta inquiry into whether his waiver of his Sixth Amendment right to representation was knowing and voluntary; We agree, reverse Slinger’s convictions, and remand for further proceedings.

In addition to guaranteeing an accused person representation by appointed counsel, the Sixth Amendment protects a defendant’s right to represent himself or herself. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The purpose of a Faretta inquiry is to determine whether a defendant knowingly and intelligently waives the right to counsel and asserts the right to self-representation. Id. at 835, 95 S.Ct. 2525; see also Fla. R. Crim. P. 3.111(d)(2)—(3). In making that determination, no specific language is required, but the Florida Supreme Court has provided guidelines for courts to utilize. See, e.g., Amend. to Fla. R. Crim. P. 3.111(d)(2)-(3), 719 So.2d 873, 876-80 (Fla. 1998) (setting out model inquiry); see also Fitzpatrick v. Wainwright, 800 F.2d 1057, 1064-68 (11th Cir. 1986) (laying out factors to consider in assessing a Faretta inquiry).

The trial court’s handling of the defendant’s right to self-representation is reviewed for an abuse of discretion. McCray v. State, 71 So.3d 848, 864 (Fla. 2011) (quoting Aguirre-Jarquin v. State, 9 So.3d 593, 602 (Fla. 2009)). Failure to conduct a Faretta inquiry when the defendant makes an unequivocal invocation of his right to self-representation is per se reversible error. Id. “The ultimate test is not the trial court’s express advice, but rather the defendant’s understanding.” Fitzpatrick, 800 F.2d at 1065.

During a pretrial status conference, Slinger requested a hearing on his previously filed motion to discharge his public defender. The trial court then began what was ostensibly a Nelson hearing to determine whether Slinger’s appointed counsel was ineffective. From the start, however, the inquiry blurred the line between a Faretta hearing and a Nelson hearing, despite procedurally important distinctions between the two. The court began by asking several questions about Slinger’s age, education, work history, and prior legal experience—questions that should have been part of the Faretta inquiry. The court then asked questions related to the Nelson inquiry and heard arguments by Slinger and his counsel. The court found that Slinger’s counsel was not rendering ineffective assistance. Slinger, in response to the court’s questioning, indicated that he wished to represent himself.

The court then proceeded to conduct a Faretta inquiry. The inquiry itself, however, lasted a mere three pages of the transcript. Cf. State v. Bowen, 698 So.2d 248, 251 (Fla. 1997). The court did not ask about Slinger’s history of mental or emotional illness, nor did it discuss the maximum possible sentence or the nature and complexity of the case. See Jones, 658 So.2d at 128 (Altenbernd, J., concurring). The court asked Slinger one question about his knowledge of legal proceedings— whether he was aware of the interrogative methods on direct and cross examination— but did not address the issue of jury selection. Cf. id. The court warned Slinger that he would be expected to follow the same rules of procedure as any attorney, but it did not point out that Slinger, as opposed to an appointed attorney, would have diminished access to legal materials and limited ability to contact witnesses while in jail. See McGirth v. State, 209 So.3d 1146, 1157 (Fla. 2017) (noting that the Faretta inquiry requires the court to state that the defendant’s “access to legal resources will be limited while in custody”). Finally, the court failed to state on the record the reasons for its determination that Slinger had knowingly and voluntarily waived his right to counsel. Cf. Jones, 658 So.2d at 128-29.

We find this Faretta inquiry inadequate. While we acknowledge that there are no magic words for the court to use in conducting the exchange, the deficiencies in this inquiry make it impossible for us to determine if Slinger made a knowing waiver of his right to counsel. See Fitzpatrick, 800 F.2d at 1065. Although the trial court referenced the seriousness of the charges, the court did not explain the maximum penalties that Slinger faced. Most importantly, the court’s explanation of the challenges of self-representation did not adequately explain the disadvantages. Without establishing that Slinger was aware of the many disadvantages of self-representation or the possible penalties he faced, it is impossible to say that his waiver was knowing. Accordingly, we find that the court abused its discretion in accepting Slinger’s waiver of his Sixth Amendment right to counsel. We reverse and remand for further proceedings.

REVERSED and REMANDED.

PALMER and BERGER, JJ., concur.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (recognizing a constitutional right for a defendant to present his own defense).

      . Amend. VI, U.S. Const. The Sixth Amendment guarantee of self-representation applies' to the states through the Fourteenth Amendment’s guarantee of due process. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

      . Nelson v. State, 274 So.2d 256, 258-59 (Fla. 4th DCA 1973), approved by Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla. 1988) (establishing procedure for discharging appointed counsel for ineffectiveness and substituting new counsel).

      .We are sympathetic to the challenges trial courts face in ruling on inarticulate motions from inexperienced litigants without the benefit of hindsight. We only point out the trial court's conflation of the Nelson/Faretta issues because we believe that if courts pay close attention to the separate inquiries and proceed in a methodical fashion, errors such as this one are more likely to be avoided. Cf. Jones v. State, 658 So.2d 122, 126-29 (Fla. 2d DCA 1995) (Altenbernd, J., concurring) (noting the complexity of combined Nelson/Faret-ta hearings and recommending a mechanical approach),

      .In fairness to the court, portions of the initial Nelson hearing were relevant to the Faretta inquiry as well. We have considered the totality of both inquiries, but even after considering the initial section of the proceedings dedicated to determining Slinger’s background, we find that the inquiry was insufficient.

      . At the request of stand-by counsel, Judge Musleh, who was tasked with presiding over the trial, conducted a more truncated Faretta inquiry. Unfortunately, it did not alleviate the inadequacies of the earlier inquiry.

      . Because we reverse Slinger’s convictions, we need not address his argument that dual convictions for lewd or lascivious molestation and lewd or lascivious battery violate his constitutional protection from double jeopardy.


author: PER CURIAM.

text:
    Pedro LEON, Appellant, v. CSB SERVICES, INC., North American Risk Services, Inc., Sea Bright Insurance, Appellees.
    CASE NO. 1D16-3865
    District Court of Appeal of Florida, First District.
    Opinion filed May 5, 2017.
    William. F. Souza of the Law Offices of William F. Souza, P.A., North Miami Beach, for Appellant.
    Robert B. Griffis of the Law Office of Jones, Hurley & Hand, P.A., Orlando, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC)' denying his claim for replacement of his ’authorized treating physician. For the reasons that follow, we reverse.

Claimant sustained a compensable injury in December 2000. He attained maximum medical improvement in 2002, but was left with a permanent impairment rating. When he moved to Lima, Peru, the Employer/Carrier (E/C) authorized a doctor of 'Claimant’s choice, Dr. Linares: Despite this, in 2014, Claimant filed a petition for benefits (PFB) seeking authorization of Dr. Linares, and the JCC denied the claim as moot because Dr. Linares was already authorized and had never been deauthor-ized. However, Dr. Linares was uncooperative with the Florida workers’ compensation system; in the words of the JCC, he “has demonstrated his disinterest in being paid through workers’ compensation by hanging up on the adjuster and by failing to follow up with her,” and “his actions speak to his express desire not to cooperate with the workers’ compensation system.” The JCC in that order explained that Dr. Linares remained authorized even though he had chosen to be paid for that treatment via Peru’s alleged “socialized medicine scheme” rather than via Florida workers’ compensation.

In July or August of 2015, Dr. Linares advised Claimant that he was (again in the JCC’s words) “henceforth unwilling to treat” Claimant. Although the reason he was unwilling to treat is not entirely clear, there is no evidence or suggestion from the E/C that he had opined that no further treatment was medically necessary. In fact, the E/C seemed to believe that Dr. Linares was still treating Claimant (the E/C was unable to depose him). Accordingly, when Claimant filed a PFB seeking “authorization of an orthopedist to replace Dr. Linares,” the E/C argued that Dr. Linares did not need replacing because he was continuing to treat Claimant, The E/C did not argue, at any time below,' that further treatment was not medically necessary. Yet, in the order now appealed, the JCC denied the claim on the sole ground that Claimant had not proven medical necessity. The JCC rejected the argument the E/C had made, finding instead that treatment with Dr. Linares is no longer “a viable option” given his noncooperation and refusal to treat.

We agree with Claimant that the JCC erred in deciding this case based on medical necessity—a defense that was not raised. This Court has held that a JCC’s sua sponte denial of a claim based on a defense not raised at all by the E/C below is a violation of the claimant’s right to due process. See Rucker v. Just Brakes, 75 So.3d 807 (Fla. 1st DCA 2011). Moreover, in the specific factual circumstances presented by this case, the E/C waived a challenge to medical necessity by not asserting it in the pretrial stipulation. Cf. Marin v. Aaron’s Rent To Own, 53 So.3d 1048, 1050 (Fla. 1st DCA 2010) (“Here, in response to Claimant’s PFB for authorization of a physiatrist -in Colombia, the E/C not only failed to raise the medical necessity defense in the pretrial statement, but took the additional and affirmative step of entering into a stipulation to provide a physiatrist in Colombia, obviating any defense or requirement of further proof.”). And finally, the E/C’s insistence that Dr. Linares was authorized was effectively a stipulation to medical necessity, rendering proof of medical necessity unnecessary. Cf. Franklin v. Riviera Beach Fire Rescue, 132 So.3d 1219 (Fla. 1st DCA 2014) (holding JCC violated due process and abused his discretion in denying benefits for failure to1 prove medical necessity where E/C had conceded medical necessity).

Given the JCC’s uncontested, finding that treatment with Dr. Linares is no longer a viable option, we reverse and remand with instructions for entry of an order awarding authorization of an orthopedist to replace Dr. Linares.

REVERSED and REMANDED with instructions.

ROBERTS, C.J., MAKAR and JAY, JJ„ CONCUR.

         Claimant apparently misunderstood this order, as evidenced by his continued claims that the JCC had denied authorization of Dr. Li-nares—an assertion wholly unsupported by the record. • • :


author: BILBREY, J.

text:
    Sterling Allen JOHNSON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1577
    District Court of Appeal of Florida, First District.
    Opinion filed May 5, 2017

      Andy Thomas, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   BILBREY, J.

Sterling Allen Johnson challenges the five-year prison sentence he received upon his conviction for fleeing or attempting to elude a law enforcement officer. Because the written findings made in support of the prison sanction are insufficient, we vacate the sentence and remand for entry of a non-state prison sanction.

By amended information, Johnson was charged with (i) aggravated battery of a law enforcement officer and (ii) fleeing or attempting to elude a law enforcement officer. These charges followed a traffic stop for an equipment violation. During the stop, as the officer was waiting on warrants check, Johnson drove away; the officer had claimed he was dragged by Johnson’s vehicle. The stop and Johnson’s flight were captured on the video recorder on the officer’s, patrol car. The cause proceeded to a jury trial, and at the conclusion, Johnson was acquitted of the charge of aggravated battery on a law enforcement officer but was found guilty as charged with respect to the remaining count. A judgment entered in accordance with that verdict. Johnson’s scoresheet produced a score of 5.6 points. Pursuant to section 775.082(10), Florida Statutes, the presumptive sentence for Johnson is a non-state sanction given that his scoresheet totaled less than 22 points and that he was convicted of a non-forcible third degree felony committed after 1999. The trial court sentenced Johnson to 5 years in prison.. No written findings were entered" in support of this sentence.

Johnson moved to correct what he claimed to be an illegal sentence. The State agreed with Johnson that a written finding in support of the sentence was required by section 775.082(10), but disagreed that Johnson should be sentenced to a non-state sanction. The trial court thereafter refused to reduce the sentence and entered findings in support of it. The findings of the court were:

1. The defendant was released on bond for another charge at the time he committed the offense in this case.
2. The defendant was being taken into custody for failing to appear in court at the time he committed the offense in this case.
3. The defendant represented a specific danger to Officer Harrison. The video played during the course of the trial showed "the defendant accelerating his vehicle" into the roadway while the officer was partially in and/or attached to the defendant’s vehicle.
4. The defendant represented a danger to other traffic as a semi-truck could be seen entering'the video frame seconds after the defendant fled the scene of the traffic stop.
5. While the defendant was released on bond in the current case, he violated probation in a separate offense and pled to an independent new law offense.
6. The defendant is currently serving an independent prison sentence for a violation of probation.

On appeal, Johnson contends that section 775.082(10) is unconstitutional; alternatively, he argues that the findings do not comply with the statute and thus are insufficient. As we agree that the findings are insufficient,, it is not necessary to address the constitutional questioned raised.

Section 775.082(10) provides:
(10) If a defendant is sentenced for an offense ... which is a third degree felony but not a forcible felony as defined in s. 776.08 ... and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.

(Emphasis added).

No guidance has been provided by the Legislature for deciding when a “non-state prison sanction could present a danger to the public.” In Jones v. State, 71 So.3d 173, 176 (Fla. 1st DCA 2011), this court held that the phrase “danger to the public” need not require a history of violence and can be based on economic or other types of harm. See also Ryerson v. State, 189 So.3d 1047 (Fla. 4th DCA 2016). However, in reversing the non-state prison sanction imposed, this court found that the record in Jones did not show that a prison sentence rather than a county jail sentence “would better deter” the defendant from future commissions of the offense for which he was being sentenced (“unlicensed driving”). Jones, 71 So.3d at 176. Similarly, in Reed v. State, 192 So.3d 641, 648 (Fla. 2d DCA 2016), the reviewing court explained that the statute requires a “nexus” between a sentence to a non-state prison sanction and the resulting danger a defendant could then present to the public. See McCarthy v. State, No. 2D15-1511, 2017 WL 1277739 (Fla. 2d DCA April 5, 2017). In the case at bar, none of the six grounds stated by the trial court explain how a non-state prison sanction, such as jail, could present a danger to the community, as required by the plain meaning of the statute as well as. by subsequent case law. Given the lack of a “nexus,” we are constrained to reverse.

Further, with regard to the third ground (that Johnson represented a danger to the officer), the prison sentence was improperly imposed for conduct for which Johnson was acquitted. See Dinkines v. State, 122 So.3d 477, 481 (Fla. 4th DCA 2013) (reversing a prison sentence because the trial court erred in relying on offenses for which the defendant was either acquitted or never charged to support its findings under section 776.082(10)); see also Doty v. State, 884 So.2d 547 (Fla. 4th DCA 2004) (holding that trial judge erred in imposing maximum sentences after citing as grounds therefor charges for which defendant was acquitted).

Further still, as • for the fourth ground, that Johnson “represented a danger to other traffic as a semi-truck could be seen entering the video frame seconds after the defendant fled the scene of the traffic stop,” this finding is not supported by a preponderance of evidence. While a truck passes Johnson’s vehicle as he is fleeing the scéne, the video recording reflects that ' Johnson neither entered the truck’s lane nor otherwise posed a dangér to it. See Rodriguez-Aguilar v. State, 198 So.3d 792 (Fla. 2d DCA 2016) (explaining that a finding for imposition of a non-state prison sanction must be based on preponderance ofrecord evidence).

On remand, the trial court must impose a non-state prison sanction, and thus, is not permitted to articulate new reasons for a departure. See Bryant v. State, 148 So.3d 1251 (Fla. 2014); Jones, 71 So.3d at 176.

Accordingly, Johnson’s sentence is VACATED, and the cause is REMANDED for resentencing.

WETHERELL and JAY, JJ., CONCUR.


text:
    Gregory S. BURDOO, Appellant, v. Kristen T. PLYMPTON, Appellee.
    CASE NO. 1D15-2036
    District Court of Appeal of Florida, First District.
    Opinion filed May 9, 2017

      Gregory S. Burdoo, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee; Kristen T. Plymton, pro se, for Appellee.
   PER CURIAM.

Appellant, Gregory S. Burdoo, who is incarcerated, appeals the denial of his motion to ’dissolve injunction against him. Burdoo argues the lower court erred by not allowing him to appear telephonically or in person at the hearing. We agree and reverse.

The record indicates Burdoo properly brought to the lower court’s attention his desire to attend the hearing telephonically. Specifically, Appellant’s motion stated, “The Petitioner requests a telephonic hearing to attend the hearing, as the costs for transportation can easily be avoided. However, Petitioner requires an order for this Court to secure access to a telephone line through prison officials,” Despite Appellant’s request, the lower court issued an order scheduling a hearing to occur at the courthouse. No subsequent order for telephonic hearing was entered, nor was an order to transport Appellant to the hearing issued. Accordingly, Appellant was not present at the hearing, in person or tele-phonically. Following the hearing, the lower court denied Appellant’s motion.

A prisoner involved in civil litigation has the right to be heard; however, “the prisoner must bring to the court’s attention his desire to appear personally or telephonically at hearing or trial.” Johnson v. Johnson, 992 So.2d 399, 401 (Fla. 1st DCA 2008) (quoting Rogers v. Rogers, 977 So.2d 687, 687 (Fla. 4th DCA 2008)). If a prisoner requests a telephonic hearing or asserts his desire to be. heard on the matter, “the right is clear.” Johnson, 992 So.2d at 401. A court reversibly errs when a prisoner requests to appear telephonically, and the court fails to issue an order directed to the Department of Corrections requiring the prisoner to appear telephoni-cally. See Havenner v. Hutchinson, 162 So.3d 1113 (Fla. 1st DCA 2015).

Because Burdoo properly notified the lower court that he wished to appear telephonically and he was denied the opportunity to appear, we reverse the order denying Burdoo’s motion to dissolve the injunction and remand for further proceedings.

REVERSED AND REMANDED.

ROWE, RAY, and M.K. THOMAS, JJ., CONCUR.