author: PARIENTE, J.

text:
    Gangapersad RAMROOP, Petitioner, v. STATE of Florida, Respondent.
    No. SC15-1816
    Supreme Court of Florida.
    March 30, 2017

      William R. Ponall of Ponall Law, Mait-land, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Wesley Heidt, Bureau Chief, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, Florida, for Respondent
   PARIENTE, J.

The conflict issue in this case is whether section 782.065, Florida Statutes (2013), creates a substantive criminal offense of attempted murder of a law enforcement officer that includes as an essential element that the defendant knew that the victim was a law enforcement officer. In Ramroop v. State, 174 So.3d 584 (Fla. 5th DCA 2015), the Fifth District Court of Appeal held that section 782.065, titled “Murder; law enforcement officer, correctional officer, correctional probation officer,” requires knowledge but is a reclassification statute that “in and of itself, is not a substantive crime.” Id. at 598. Gangaper-sad Ramroop, who received two life sentences, including a mandatory life sentence for attempted second-degree murder of a law enforcement officer, seeks review of the Fifth District’s decision on the ground that it expressly and directly conflicts with this Court’s decisions in Wright v. State, 586 So.2d 1024 (Fla. 1991), and State v. Darst, 837 So.2d 394 (Fla. 2002), on whether the crime of attempted murder of a law enforcement officer constitutes a substantive criminal offense. We have jurisdiction. See Art. V, § 3(b)(3), Fla. Const.

The Fifth District correctly concluded that the jury instructions in Ramroop’s trial were erroneous by not requiring the jury to find that Ramroop knew that the victim was a law enforcement officer because knowledge is an essential element of the crime defined by section 782.065. However, the Fifth District incorrectly determined that section 782.065 is a reclassification statute that does not create a separate substantive offense. We conclude that section 782.065 is a reclassification statute that creates a substantive offense and, therefore, the proper remedy for the erroneous jury instructions in 'Ramroop’s case would have been to vacate both Ramroop’s convictions—attempted second-degree murder of a law enforcement officer and first-degree felony murder of another victim, which was based on the attempted second-degree murder conviction—and remand for a new trial. Because the Fifth District incorrectly determined that section 782.065 does not create a separate substantive offense, it improperly remanded Ramroop’s case for resentencing on the lesser-included offense of attempted second-degree murder instead of ordering a new trial. Id. at 599. In doing so, the Fifth District left intact the conviction of first-degree felony murder of a separate victim, for which a life sentence was also imposed. Id. Accordingly, we quash the Fifth District’s decision to the extent that it held that section 782.065 does not create a substantive offense and remand with directions to order a new trial' on the charges of attempted second-degree murder of a law enforcement officer and first-degree felony murder.

BACKGROUND

The Fifth District explained the facts underlying Ramroop’s convictions as follows:

During the early morning hours of July 4, 2013, several officers of the Orlando Police Department attempted to pull over Ramroop’s vehicle for a traffic violation. A chase ensued, whereupon Ramroop ran several red lights, and allegedly shot at one of the officers involved in the pursuit, Officer Christopher Brillant. Ramroop ultimately struck another vehicle in an intersection, causing the death of the driver of that vehicle, Robert Charles John Hunter. Hunter was not wearing a seatbelt at the time of the crash, and his body was ejected from the vehicle onto the pavement. Ramroop was apprehended at the scene of the crash and subsequently charged by information with (1) attempted first-degree murder of an officer engaged in the lawful performance of a legal duty and (2) knowingly discharging a firearm from a vehicle within 1000 feet of a person. Ramroop was also separately indicted for first-degree murder of Hunter.

Ramroop, 174 So.3d at 587.

A grand jury indicted Ramroop of first-degree murder for unlawfully killing Robert Charles John Hunter “while engaged in the perpetration of an attempt to murder [Officer Brillant] or while escaping from the immediate scene of an attempt[ ] to murder [Brillant]” in violation of section 782.04(1)(a)(2). Ramroop was separately charged by information with attempted first-degree murder of a law enforcement officer in violation of sections 782.04(1)(a)(1), 777.04, 782.065, 775.087(1), 775.087(2), and 775.0823, Florida Statutes. The information alleged that the crime of attempted first-degree murder arose from a “premeditated design to effect the death of Christopher Brilliant [sic], attempt to murder Christopher Brilliant [sic], by shooting a gun at Christopher Brilliant [sic] thus creating in the mind of Christopher Brilliant [sic] a well founded fear that violence was about to take place, while Christopher Brilliant [sic], a law enforcement officer for the Orlando Police Department, was engaged in the lawful performance of a legal duty; to-wit: enforcement of the traffic laws.”

At trial, the special verdict form as to the indictment listed the following offenses:

_WE, THE JURY, find the Defendant, guilty of First Degree Murder, as charged in the Indictment.
_WE, THE JURY, find the Defendant, guilty of the lesser included offense of Manslaughter.
_WE, THE JURY, find the Defendant, not guilty.

The special verdict form as to Count 1 of the information listed the following offenses:

_WE, THE JURY, find the Defendant, guilty of Attempted First Degree Murder, as charged in the Information.
_WE, THE JURY, find the Defendant, guilty of the lesser included offense of Attempted Second Degree Murder.
_WE, THE JURY, find the Defendant, guilty of the lesser included offense of Attempted Voluntary Manslaughter.
_WE, THE JURY, find the Defendant, guilty of the lesser included offense of Aggravated Assault on a Law Enforcement Officer.
_WE, THE JURY, find the Defendant, guilty of the lesser included offense of Assault.
_WE, THE JURY, find the Defendant, not guilty.

(Emphasis added.) The jury convicted Ramroop of the first-degree felony murder of Hunter and the lesser-included offense of attempted second-degree murder of a law enforcement officer, which served as the underlying felony for the conviction of first-degree felony murder.

As to section 782.065, the verdict form reflects that the jury made a special finding “that [the victim] was at the time of the offense a police officer for the City of Orlando in the lawful execution of his legal duties.” On appeal, the Fifth District found that “the jury instruction pertaining to the jury’s special finding that the victim was a law enforcement officer engaged in the performance of his duties at the time of the offense failed to also require the jury to find that Ramroop had knowledge of the victim’s status.” Ramroop, 174 So.3d at 586. However, the Fifth District concluded that because section 782.065 is a reclassification statute that does not. create a separate substantive offense, but rather “operates solely to reclassify ... offenses committed against law enforcement officers,” reversing Ramroop’s conviction of first-degree felony murder was unnecessary, and the proper remedy for the erroneous jury instructions was to vacate the jury’s special finding and remand Ram-roop’s case for resentencing on the lesser-included offense of attempted second-degree murder without reclassification. Ramroop, 174 So.3d at 598-99.

ANALYSIS

The issue before us is whether section 782.065 creates a separate substantive offense. Because this is a pure question of law, our review is de novo. See Haygood v. State, 109 So.3d 735, 739 (Fla. 2013).

The United States Supreme Court made clear in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that the Sixth Amendment to the United States' Constitution guarantees each criminal defendant the right “to ‘a jury determination [of guilt on] every element of the crime with which he is charged, beyond a reasonable doubt.’” Id. at 476-77, 120 S.Ct. 2348 (quoting United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)) (citations omitted). This principle guides our analysis.

The text of section 782.065 states in full:

Murder; law enforcement officer, correctional officer, correctional probation officer.—Notwithstanding ss. 775.082, 775.0823, 782.04, 782.051, and chapter 921, a defendant shall be sentenced to life imprisonment without eligibility for release upon findings by the trier of fact that, beyond a reasonable doubt:
(1) The defendant committed murder in the first degree in violation of s. 782.04(1) and a death sentence was not imposed; murder in the second or third degree in violation of s. 782.04(2), (3), or (4); attempted murder in the first or second degree in violation of s. 782.04(1)(a)1. or (2); or attempted felony murder in violation of s. 782.051; and
(2) The victim of any offense described in subsection (1) was a law enforcement officer, part-time law enforcement officer, auxiliary law enforcement officer, correctional officer, part-time correctional officer, auxiliary correctional officer, correctional probation officer, part-time correctional probation officer, or auxiliary correctional probation officer, as those terms are defined in s. 943.10, engaged in the lawful performance of a legal duty.

§ 782.065, Fla. Stat. (2013).

Similar to section 782.065, section 784.07, titled “Assault or battery of law enforcement officers, firefighters, ' emergency medical care providers, public transit employees or agents, or other specified officers: reclassification of offenses; minimum sentences,” provides for reclassification “[w]henever any person is charged with knowingly committing an assault or battery upon a law enforcement officer .,. while the officer ... is engaged in the lawful performance of his or her duties.” § 784.07(2), Fla. Stat. (2016). Section 784.07 provides the lesser-included offense of aggravated assault on a law enforcement officer that was listed on the verdict form as to Count 1 of the information in Ramroop’s trial.

Subsection (8) of a former version of section 784.07 eventually became what is now section 782.065. As the Fifth District explained:

Looking beyond the plain language of the statute, we begin our analysis by reviewing the Florida Supreme Court’s earlier determination of whether section 784.07(3), Florida Statutes (1993), which, as discussed below, ultimately progressed to the statute at issue, section 782.065, required knowledge of the victim’s status as a law enforcement officer. In 1993, section 784.07—entitled Assault or battery of law enforcement officers, firefighters, or other specified officers; reclassification of offenses.—provided in relevant part as follows:
(2) Whenever any person is charged with knowingly committing an assault or battery upon a law enforcement officer ... engaged in the lawful performance of his duties, the offense for which the person is charged shall be reclassified as follows:
(3) Notwithstanding the provisions of any other section, any person who is convicted of attempted murder of a law enforcement. officer engaged in the lawful performance of his duty or who is convicted of attempted murder of a law enforcement officer when the motivation for such attempt was related, all or in part, to the lawful duties of the officer, shall be guilty of a life felony, punishable as provided in s. 775.0825.
§ 784.07(2)-(3), Fla. Stat. (1993). As drafted, knowledge of the victim’s status as a law enforcement officer was not expressly required , as an element under subsection (3) to prove the attempted murder of a law enforcement officer.

Ramroop, 174 So.3d at 592-93 (footnote omitted).

In Wright, this Court held that section 784.07 defines the “substantive offense” of battery on a law enforcement officer and “requires as an essential element proof that the victim was in fact a law enforcement officer.” 586 So.2d at 1030. Two years later, again reviewing section 784.07 in Thompson v. State, this Court “addressed on appeal whether the trial court erred in denying the defendant’s requested jury instruction, which included knowledge of the victim’s status as a law enforcement officer as an element of attempted murder of a law enforcement officer under section 784.07(3), Florida Statutes (1993).” Ramroop, 174 So.3d at 593 (citing Thompson, 695 So.2d 691, 691 (Fla. 1997)). This' Court concluded that “knowledge of the victim’s status as a law enforcement officer is a necessary element of the offense” defined in section 784.07, Florida Statutes (1993), and reversed the defendant’s conviction for attempted felony murder. Thompson, 695 So.2d at 693. Therefore, taking Wright and Thompson together, it is clear that knowledge that the victim is a law enforcement officer is an essential element of the crime defined by section 784.07. Thus, relying on our case law regarding section 784.07, the Fifth District correctly held that “section 782.065 requires knowledge of the victim’s status as a law enforcement officer.” Ramroop, 174 So.3d at 597. Accordingly, for a defendant to be convicted of the offense defined in section 782.065, the jury must find beyond a reasonable doubt that the defendant knew, when the offense was committed, that the victim was a law enforcement officer. Id.; see Thompson, 695 So.2d at 693; see also Apprendi, 530 U.S. at 476-77, 120 S.Ct. 2348.

Section 782.065, which sets forth the crime of attempted murder of a law enforcement officer, is functionally the same as section 784.07, which sets forth the crime of assault and battery on a law enforcement officer, except of course that the crime is different and the penalty for violating section 782.065 is a mandatory life sentence. In Darst, we unanimously held that section 784.07 was not an enhancement statute but a reclassification statute that creates a substantive crime:

We have for review the decision of the Fifth District Court of Appeal, Darst v. State, 816 So.2d 680 (Fla. 5th DCA 2002), both declaring section 784.07 of the Florida Statutes (1999) to be an enhancement statute, and certifying conflict with Mills v. State, 773 So.2d 650 (Fla. 1st DCA 2000). We have jurisdiction. See Art. V, § 3(b)(4), Fla. Const.
This Court granted review in Mills, and addressed the issue presented here. See Mills v. State, 822 So.2d 1284 (Fla. 2002). There we held section 784.07 of the Florida Statutes is a reclassification statute, not an enhancement statute, and thus creates a substantive crime. See id. at 1287. As the district court’s holding is inconsistent with this Court’s decision in Mills, its decision is quashed and the case is remanded to the district court for further proceedings consistent with Mills.

837 So.2d at 395.

The Fifth District in Darst, contrary to the First District in Mills, erroneously held that section 784.07 was an enhancement statute and was created to “increase the penalties for the enumerated crimes of assault,, aggravated assault, battery and aggravated battery for offenders who commit these crimes upon law enforcement officer.” Darst v. State, 816 So.2d 680, 682 (Fla. 5th DCA 2002) (quoting Merritt v. State, 712 So.2d 384, 385 (Fla. 1998)). However, the Fifth District acknowledged that “section 784.07(c) could also be interpreted as creating a substantive offense because it contains the element of knowingly committing the act of aggravated assault on a law enforcement officer.” Id. at 683. The Fifth District stated that the First District’s decision in Mills v. State, 773 So.2d 650 (Fla. 1st DCA 2000), held that this same subsection actually creates a substantive offense dealing with assault or battery on a law enforcement officer. Darst, 816 So.2d at 683.

We acknowledge that, in Merritt, we stated that section 784.07, Florida Statutes (1995), the precursor to section 782.065, “is an enhancement statute rather than a statute creating and defining any criminal offense.” 712 So.2d 384, 385 (Fla. 1998). However, that statement directly contradicts our subsequent opinion in Darst. Because our statement in Merritt was made before the United States Supreme Court opinion in Apprendi and our decision in Darst, we conclude that the statement was erroneous. Thus, to the extent that our statement in Merritt' misled the Fifth District, we now clarify this issue.

In the case below, the Fifth District relied on our earlier decision in Mills, 822 So.2d at 1287, to conclude that “section 782.065 operates as a reclassification statute” rather than an enhancement statute because it “does not ‘cut across some or all criminal statutes.’” Ramroop, 174 So.3d at 598. As we have pointed out, we held in Darst that section 784.07 of the Florida Statutes “is a reclassification statute, not an enhancement statute, and thus creates a substantive crime.” 837 So.2d at 395. Therefore, the Fifth District erred when it concluded that a reclassification statute does not create a separate substantive crime because “it increase[s] a defendant’s sentence beyond the maximum possible sentence of the substantive crime and is only applied following a jury’s finding that the defendant violated a particular subsection of section 782.04 or 782.051.” Ramroop, 174 So.3d at 598.

The United States Supreme Court’s decision in Apprendi made clear that any factual finding that increases the maximum sentence must be found by a jury beyond a reasonable doubt. 530 U.S. 466, 120 S.Ct. 2348. Indeed, referring to its decision in Apprendi, the United States Supreme Court stated in Alleyne v. United States, “that any fact that increases the mandatory minimum is an .‘element’ that must be submitted to the jury.” — U.S. ——, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013). The Supreme Court further explained:

[I]t is impossible to dispute that facts increasing the legally prescribed floor aggravate the punishment. ... Elevating the low-end of a sentencing range heightens the loss of liberty associated with the crime: the defendant’s “expected punishment has increased as a result of the narrowed range” and “the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish.” Apprendi [530 U.S.] at 522[, 120 S.Ct. 2348], (Thomas, J., concurring). Why else would [the legislative body] link an increased mandatory minimum to a particular aggravating fact other than to heighten the consequences for that behavior? ... This reality demonstrates that the core crime and the fact triggering the mandatory minimum sentence together constitute ' a new, aggravated crime, each element of which must be submitted to the jury.
Defining facts that increase a mandatory statutory minimum to be part of the substantive offense enables the defendant to pi-edict the legally applicable penalty from the face of the indictment. See Apprendi, 530 U.S. at 478-479 [120 S.Ct. 2348]. It also preserves the historic role of the jury as an intermediary between the State and criminal defendants. See United States v. Gaudin, 515 U.S. [506,] 510-511 [115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)] (“This right was designed ‘to guard against a spirit of oppression and tyranny on the part of rulers,’ and ‘was from very early times insisted on by our ancestors in the parent country, as the great bulwark of their civil and political liberties’ ” (quoting 2 J. Story, Commentaries on the Constitution of the United States §§ 1779, 1780, pp. 540-541 (4th ed. 1873))); Williams v. Florida, 399 U.S. 78, 100 [90 S.Ct. 1893, 26 L.Ed.2d 446] (1970) (“[T]he essential feature of a jury obviously lies in [its] interposition between the accused and his accuser”); Duncan v. Louisiana, 391 U.S. 145, 155 [88 S.Ct. 1444, 20 L.Ed.2d 491] (1968) (“A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government”).
As noted, the essential Sixth Amendment inquiry is whether a fact is an element of the crime. When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury. It is no answer to say that the defendant could have received the same sentence with or without that fact. It is obvious, for example, that a defendant could not be convicted and sentenced for assault, if the jury only finds the facts for larceny, even if the punishments prescribed for each crime are identical. One reason is that each crime has different elements and a defendant can be convicted only if the jury has found each element of the crime of conviction.

Id. at 2161-62 (second and third emphasis added), overruling Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). Therefore, the same principles that apply to treating section 784.07 as a substantive offense, requiring knowledge as an essential element, apply equally to section 782.065. Due to the knowledge requirement and the fundamental, constitutional principles announced in Apprendi, a defendant may be subject to the increased sentence set forth in section 782.065 only when a jury finds beyond a reasonable doubt that the offense was committed with knowledge that the victim was a law enforcement officer. In other words, a defendant is not subject to the increased punishment under section 782.065 if he or she did not know that the victim was a law enforcement officer when he or she committed the offense. Thus, we hold that section 782.065 is a reclassification statute that creates a substantive offense, which includes knowledge as an essential element.

PROPER REMEDY IN THIS CASE

We now turn to determine the proper remedy for the erroneous jury instructions in Ramroop’s trial on an essential element of the crime of attempted murder of a law enforcement officer, charged under section 782.065. As the Fifth District stated, “because the jury was not instructed to determine whether Ramroop had knowledge of Officer Brillant’s status as a law enforcement officer, his sentence for attempted second-degree murder is erroneous.” Ramroop, 174 So.3d at 599. The Fifth District concluded that because 782.065 was not a substantive offense, the appropriate remedy for failing to properly instruct the jury on the knowledge requirement was to reduce Ram-rooop’s conviction to the lesser-included offense without reclassification under section 782.065. Id. Ramroop argues, however, that when a fundamentally erroneous jury instruction is given, the proper remedy is to reverse for a new trial. We agree.

This Court has “long held that fundamental error occurs in a jury instruction where the instruction pertains to a disputed element of the offense and the error is pertinent or material to what the jury must consider to convict.” Haygood, 109 So.3d at 741 (citing State v. Delva, 575 So.2d 643, 644-45 (Fla. 1991)). As this Court explained in Reed, “[flundamental error is not subject to harmless error review. By its very nature, fundamental error has to be considered harmful. If the error was not harmful, it would not meet our requirement for being fundamental.” Id. at 369-70.

The error in the jury instructions in Ramroop’s trial pertained to both attempted first-degree murder and attempted second-degree murder of a law enforcement officer. Attempted second-degree murder of a law enforcement officer, the exact crime of which Ramroop was convicted, is a lesser-included offense one degree removed from the crime of attempted first-degree murder of a law enforcement officer—the crime charged in the information. See State v. Montgomery, 39 So.3d 252, 259 (Fla. 2010). Pursuant to our case law, because the erroneous jury instruction in Ramroop’s trial pertained to an element of the crime that was necessary for the jury to convict Ramroop of the crime as charged, the jury instructions were fundamental error. Haygood, 109 So.3d at 741; Reed v. State, 837 So.2d 366, 369-70 (Fla. 2002) (“Fundamental error is not subject to harmless error review.”). Further, because the error pertained to an offense within one degree of the crime for which Ramroop was convicted, this fundamental error is per se reversible. Montgomery, 39 So.3d at 259; Pena v. State, 901 So.2d 781, 787 (Fla. 2005), Therefore, we conclude that the erroneous jury instructions in Ramroop’s case were fundamental error and require reversal of his conviction for attempted second-degree murder and felony first-degree murder because these convictions were interdependent.

This conclusion is further illustrated by the discrepancies within the jury instructions and verdict form that were used in Ramroop’s trial. In the Introduction to Attempted Homicide, the jury instructions stated: ■

In this case Gangapersad Ramroop is accused of Attempted First Degree Murder with a Firearm.
Attempted murder in the first degree includes the lesser crimes of attemptéd murder in the second degree and attempted voluntary manslaughter, all of which are unlawful.
An attempted killing that is excusable or was committed by the use of justifiable deadly force is lawful.
If you find that there was an attempted killing of Christopher Brilliant [sic] by Gangapersad Ramroop, you will then consider the circumstances surrounding the attempted killing in deciding if it was attempted first degree murder, or attempted second degree murder, or attempted voluntary manslaughter, or whether the attempted killing was excusable or resulted from justifiable use of deadly force.

However, the explanation of “lesser included crimes or attempts” later in the jury instructions stated, “The lesser crimes indicated in the definition of Attempted First Degree Murder are Attempted Second Degree Murder, Attempted Voluntary Manslaughter, Aggravated Assault and Assault.” In other words, the latter explanation added additional lesser included charges of “Aggravated Assault and Assault.” Ironically, the jury instructions given on the lesser-included offenses of attempted second-degree murder and aggravated assault demonstrate the error that we seek to remedy in this case.

The jury instructions on attempted second-degree murder stated:

To prove the crime of Attempted Second Degree Murder, the State must prove the following two elements beyond a reasonable doubt:
1. Gangapersad Ramroop intentionally committed an act which would have resulted in the death of Christopher Brilliant [sic] except that someone prevented Gangapersad Ramroop from killing Christopher Brilliant [sic] or he failed to do so.
2. The act was imminently dangerous to another and demonstrating a depraved mind without regard for human life. ,
In order to convict of Attempted Second Degree Murder, it is not necessary for the State to prove the defendant had an intent to cause death.

(Citing §§ 782.04(2), 777.04, Fla. Stat.).

Along with .the jury instructions on attempted second-degree murder were the instructions on “Aggravation of a Felony Victim Law Enforcement Officer,” which stated, in pertinent part:

If you find that Gangapersad Ram-roop committed the erime charged in count one of the information or any lesser included offense and you also find beyond a reasonable doubt that Christopher Brilliant [sic] was a law enforcement officer in the lawful performance of a legal duty your finding should reflect that in the special verdict form.

The jury instructions on the lesser-included offense of aggravated assault on law enforcement stated:

To prove the crime of Aggravated Assault on a Law Enforcement Officer, the State must prove the following seven elements beyond a reasonable doubt. The first three elements define assault.
1. Gangapersad Ramroop intentionally and unlawfully threatened, either by word or act, to do violence to Christopher Brill[ ]ant.
2. At the time, Gangapersad Ramroop appeared to have the ability to carry out the threat.
3. The act of Gangapersad Ramroop created in the mind of Christopher Brill[ ]ant a well-founded fear that the violence was about to take place.
4. The assault was made with a deadly weapon.
5. Christopher Brill[]ant was at the time a law enforcement officer.
6. Gangapersad Ramroop knew Christopher Brill[ ]ant was a law enforcement officer.
“Willfully” means intentionally and purposely.

(Citing § 784.07(c), Fla. Stat.) (emphasis added).

These jury instructions make clear that aggravated assault on a law enforcement officer, which includes a knowledge requirement, is treated as a separate, substantive crime under section 784.07. Not only was it charged as a distinct crime, but, while the jury was not required to find that Ramroop knew that Officer Brillant was a law enforcement officer to convict him of the greater offense of attempted second-degree murder, the jury instructions required knowledge as an element of the lesser-included offense of aggravated assault on a law enforcement officer.

Indeed, the jury’s verdict reflects that they did not find any premeditation or knowledge of the victim’s status on Ram-roop’s part before he committed the offense—namely discharging his firearm out of his driver’s window towards Officer Brillant. The jury did not convict Ramroop of attempted first-degree murder, which would have required a finding of premeditation and intent to kill Officer Brillant. Instead, they found Ramroop guilty “of the lesser included offense of Attempted Second Degree Murder” with the aggravation that Brillant “was at the time of the offense a police officer for the City of Orlando in the lawful execution of his legal duties”—two findings that did not include knowledge as an element. Likewise, the jury did not find Ramroop guilty of the lesser-included offense of aggravated assault on a law enforcement officer, which also requires the jury to find that the defendant knew that the victim was a law enforcement officer. See Thompson, 695 So.2d at 693.

As to the remedy for this error, the State argues that the Fifth District employed the correct remedy by remanding with instructions to impose a sentence for attempted second-degree murder, which provides for a fifteen-year sentence, rather than for attempted second-degree murder of a law enforcement officer, which carries a mandatory life sentence. We disagree. As the Second District recently held in Ortiz v. State, 192 So.3d 517 (Fla. 2d DCA 2016), a case where the defendant argued “that the appropriate remedy ... is a remand for entry of a judgment finding [him] guilty of [the lesser included offense], and for resentencing ... for that offense” under section 924.34, Florida Statutes, “the correct remedy is to remand for a new trial on the offense charged in the information, free of the incorrect jury instruction.” Ortiz, 192 So.3d at 521. Likewise, in Ramroop’s case, we conclude that the correct remedy “is to remand for a new trial on the offense charged in the information, free of the incorrect jury instruction.” Id.

The State also relies on the United States Supreme Court’s decision in Alleyne as support for arguing that the Fifth District’s remedy was appropriate. However, because the life sentence accompanying section 782.065 is a mandatory statutory minimum punishment, the Fifth District’s remedy was inconsistent with Alleyne, which clearly stated, “It is no answer to say that the defendant could have received the same sentence with or without that fact.” 133 S.Ct. at 2162-63.

Thus, we conclude that Ramroop is entitled to a new trial.

CONCLUSION

We conclude that section 782.065 creates a separate substantive criminal offense. Therefore, the erroneous jury instructions that did not include knowledge as an essential element of attempted murder of a law enforcement officer as to section 782.065 amounted to fundamental error. Accordingly, we quash the Fifth District’s decision to the extent it is inconsistent with this opinion, vacate Ramroop’s convictions of attempted second-degree murder and first-degree felony murder, and remand for a new trial on these charges.

It is so ordered.

LABARGA, C.J., and LEWIS, QUINCE, and LAWSON, JJ., concur.

CANADY and POLSTON, JJ., concur in result.

      . The current version of this statute is identical to the 2013 version under which Ramroop was tried. See § 782.065, Fla. Stat. (2016).

      . Ramroop does not challenge and we do not address his conviction for Knowingly Discharging a Firearm from a Vehicle Within 1000 Feet of a Person. § 790.15(2), Fla. Stat. (2013).

      . Section 924.34, Florida Statutes, provides the following:
      When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.
      § 924.34, Fla. Stat. (2011); see State v. Sigler, 967 So.2d 835, 841 (Fla. 2007) (holding that section 924.34 could be unconstitutional in application).

      . The Standard Jury Instructions should be amended to treat the crime of Murder or Attempted Murder of a Law Enforcement Officer in a manner similar to Assault or Battery on a Law Enforcement Officer. See Fla. Std. Jury Instr. 6.4 (Attempted Second Degree Murder); Fla. Std. Jury Instr. 8.10, 8.11, 8.12, 8.13; see also In re Std. Jury Instrs. in Crim. Cases—Report No. 2013-03, 146 So.3d 1110, 1110 (Fla. 2014); In re Std. Jury Instrs. in Crim. Cases—Report No. 2013-02, 137 So.3d 995, 995 (Fla. 2014).

      . Because this issue is dispositive, we leave undisturbed the other issues discussed in the Fifth District’s opinion and decline to address the other issues raised by Ramroop.


source: Caselaw Access Project

license: Public Domain

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    English v. State
    1D16-1033
    07/25/2016
   Aff.

Cir. Ct. (Columbia)


text:
    Fernandez v. State
    1D15-0725
    02/24/2016
   Aff.

Cir. Ct. (Okaloo-sa)


text:
    Griffin v. Crawford
    1D15-2440
    03/01/2016
   Aff.

Cir. Ct. (Leon)


text:
    Hawkins v. State
    1D15-5273
    03/23/2016
   Aff.

Cir. Ct. (Duval)


text:
    Hendrix v. Kelly Steel of Florida
    1D14-4677
    04/06/2015
   Aff

Judge of Comp. Claims


text:
    J.J. v. State
    1D14-4167, 1D14-5089
    04/06/2015
   Aff.

Cir. Ct. (Leon)


text:
    James v. State
    1D14-2367
    04/13/2015
   Aff.

Cir. Ct. (Clay)


text:
    Jernigan v. Agency for Persons with Disabilities
    1D15-3174
    03/11/2016
   Aff.

Persons with Disabilities


text:
    Lauramore v. State
    1D13-2173
    04/07/2015
   Aff.

Cir. Ct. (Baker)


text:
    Middleton v. State
    1D14-1881
    04/13/2015
   Aff.

Cir. Ct. (Escam-bia)


text:
    Paramore v. State
    1D13-4531
    04/07/2015
   Aff.

Cir. Ct. (Leon)


text:
    Ragans v. State
    1D14-2670
    03/27/2015
   Aff.

Cir. Ct. (Escambia)


text:
    S.C. v. Department of Children and Families
    1D14-5311
    03/30/2015
   Aff.

Cir. Ct. (Ala-chua)


text:
    Schmoldt v. State
    1D13-5610
    03/27/2015
   Aff.

Cir. Ct. (Escambia)


text:
    Scott v. State
    1D15-4571
    01/20/2016
   Aff.

Cir. Ct. (Jackson)


text:
    Sharpe v. Sharpe
    1D14-5018
    03/18/2015
   Aff.

Cir. Ct. (Levy)


text:
    Taylor v. State
    1D15-5282
    03/23/2016
   Aff.

Cir. Ct. (Duval)


text:
    SECOND DISTRICT
    Blackshear v. State
    2D16-3845
    10/24/2016
   Hab.Corp.den.


text:
    Bowers v. State
    2D16-3673
    09/22/2016
   Belated App. den.


text:
    Carll v. State
    2D16-3657
    10/19/2016
   App.dism.


text:
    Cliff v. M.F.
    2D16-4385
    11/10/2016
   App.dism.


text:
    Correa v. Wells Fargo Bank NA
    2D15-5177
    11/03/2016
   App.dism.


text:
    Crawford v. State
    2D15-3877
    10/05/2016
   Motion gr.


text:
    Crnich v. Ginsberg
    2D16-4686
    11/08/2016
   App.dism.


text:
    Crystal v. State
    2D16-2529, 2D15-3281
    10/19/2016
   Dism.


text:
    Curtis v. State
    2D16-3444
    09/22/2016
   Belated App. dism.


text:
    Curtis v. State
    2D16-3510
    09/22/2016
   Belated App. den.


text:
    Delarosa v. State
    2D16-3030
    09/22/2016
   Belated App.gr,


text:
    Garcia v. State
    2D16-3207
    11/03/2016
   App.dism.


text:
    Hassett v. Boule
    2D16-4783
    11/08/2016
   App.dism.


text:
    Hines v. State
    2D16-3981
    10/19/2016
   App.dism.


text:
    Hofmeister v. State
    2D16-898
    09/22/2016
   Belated App.gr.


text:
    Hood v. State
    2D16-146
    09/22/2016
   Belated App. den.


text:
    Howard v. R.J. Reynolds Tobacco Co.
    2D16-4579
    11/09/2016
   App.dism.


text:
    Jackson v. Roberts
    2D16-3744
    10/24/2016
   Cert.dism.


text:
    Lopez v. Haven Builders, Inc.
    2D16-2292
    11/03/2016
   App.dism.


text:
    Lykoudis v. H.C.R. Manor Care Facility
    2D16-3284
    11/04/2016
   App.dism.


text:
    Mathis v. State
    2D16-3485
    09/22/2016
   Hab.Corp.den.


text:
    McQuiston v. State
    2D16-3160
    11/02/2016
   App.dism.


text:
    Meyers v. State
    2D16-1915
    09/22/2016
   Pet. den.


text:
    Mills v. State
    2D16-4035
    10/19/2016
   App.dism.


text:
    Morrison v. State
    2D15-5551
    09/22/2016
   Mand.den.


text:
    Morton Plant Hosp. Ass’n, Inc. v. Alexander
    2D16-2737
    11/10/2016
   App.dism.


text:
    Newsome v. State
    2D16-3039
    09/22/2016
   Pet. den.


text:
    Polanco v. State
    2D16-3481
    09/22/2016
   Hab.Corp.den.


text:
    Riemenschneider v. State
    2D16-4253
    10/11/2016
   Belated App.gr.


text:
    Sorensen v. Head
    2D16-3804
    10/19/2016
   App.dism.


text:
    South v. State
    2D16-2857
    09/22/2016
   Belated App. den.


text:
    Toro v. State
    2D16-2607
    09/22/2016
   Motion den.


text:
    Torres v. State
    2D16-3791
    09/22/2016
   Belated App. den.


text:
    Troupe v. State
    2D16-3563
    09/22/2016
   App.dism.


text:
    Vargas v. State
    2D16-3847
    10/24/2016
   Hab.Corp.den.


text:
    Visram v. Lorenz
    2D16-4440
    10/19/2016
   Cert. den.


text:
    Walker v. State
    2D16-3763
    09/22/2016
   Belated App. den.


text:
    Williams v. State
    2D16-2727
    09/22/2016
   Belated App.gr.


text:
    Williams v. State
    2D16-3985
    10/24/2016
   Hab.Corp.den.


text:
    THIRD DISTRICT
    iSchools, LLC v. Eagle Arts Academy, Inc.
    3D16-1036
    11/30/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Alfonzo v. Los Palacios II
    3D16-0960
    10/18/2016
   App.dism.


text:
    American Integrity Ins. Co. of Florida v. Torres
    3D14-0685
    10/27/2016
   Motion den.


text:
    Baratta v. Costa-Martinez
    3D16-2001
    10/31/2016
   App.dism.

Cir. Ct. (Miami-Dade)


text:
    Burkich v. 3 Bro’s Trucking, Inc.
    3D16-2367
    10/31/2016
   App.dism.

Cir. Ct. (Miami-Dade)


text:
    Cameron v. 90th Street Intern. Inv. Corp.
    3D16-2013
    10/13/2016
   Petden.


text:
    Collins v. Nationstar Mortg. LLC
    3D16-1422
    11/02/2016
   App.dism.

Cir. Ct. (Miami-Dade)


text:
    D.W. v. Department of Children and Families
    3D16-1447
    11/02/2016
   App.dism.

Cir. Ct. (Miami-Dade)


text:
    Edward v. State
    3D16-1475
    10/24/2016
   App.dism.

Cir. Ct. (Miami-Dade)


text:
    Fails v. State
    3D16-1743
    10/24/2016
   App.dism.


text:
    Fuentes v. State
    3D15-2795
    10/27/2016
   Motion den.


text:
    Hormachea v. State
    3D16-1060
    09/27/2016
   Petden.


text:
    Jackson v. State
    3D16-2515
    11/10/2016
   Mand.den.


text:
    Jarrett v. State
    3D16-2486
    11/08/2016
   Pet.den.


text:
    Lak v. Deutsche Bank Nat. Trust Co.
    3D15-2891
    11/01/2016
   App.dism.

Cir. Ct. (Miami-Dade)


text:
    Mariah v. State
    3D16-2337
    11/03/2016
   Petden.


text:
    Marrero v. State
    3D16-2453
    11/08/2016
   Petden.


text:
    Miami Dade College v. Nader-Museu I, Ltd. Liability Ltd. Partnership
    3D16-1803
    10/24/2016
   Motion den.


text:
    Miami Health Diagnostic Center, Corp. v. State Farm Mut. Auto. Ins. Co.
    3D16-0914
    11/03/2016
   Motion den.


text:
    Minnucci v. Luxury Living USA, Inc.
    3D16-2384
    11/10/2016
   Cert.dism.


text:
    Moore v. State
    3D16-2512
    11/10/2016
   Pet.den.


text:
    Moss v. U.S. Bank, Nat. Ass’n
    3D16-2502
    11/10/2016
   Mand.den.


text:
    Richardson v. Wells Fargo Bank, N.A.
    3D16-2375
    11/01/2016
   Pet.den.


text:
    Rogers v. Ellison
    3D16-1595
    10/28/2016
   Pet.den.


text:
    Rouse v. Best Hospitality Group, Inc.
    3D16-0886
    11/29/2016
   Vol.dism.

Cir. Ct. (Miami-Dade)


text:
    Valdes v. Sainz
    3D16-1996
    11/01/2016
   Proh.den.; Cert. den.


text:
    Valls v. State
    3D16-2491
    11/10/2016
   Pet.den.


text:
    Wimes v. State
    3D16-2395
    11/01/2016
   Pet.den.


text:
    Young Israel of Sunny Isles v. Mesa Underwriters Specialty Ins. Co.
    3D15-2752
    11/30/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    FOURTH DISTRICT
    A.W. v. Department of Children & Families
    4D16-2783
    11/01/2016
   Opinion Withdrawn


text:
    Alberttis v. Nationstar Mortg. LLC
    4D15-229
    07/28/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Alexander v. US Bank Nat. Ass’n
    4D15-862
    07/07/2016
   Aff.

Cir. Ct. (Broward)


text:
    Allen v. State
    4D15-141
    07/07/2016
   Aff.

Cir. Ct. (Bro-ward)


text:
    Almeida v. SunTrust Mortg., Inc.
    4D15-1941
    08/04/2016
   Aff.

Cir. Ct. (Broward)


text:
    Audain v. State
    4D16-1006
    07/07/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    B.H. v. State Dept. of Children and Families
    4D16-1588
    07/29/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Bank of America, N.A. v. Windle
    4D15-1573
    09/08/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Baram v. State
    4D14-2472
    07/28/2016
   Aff.

Cir. Ct. (Broward)


text:
    Benharosh v. Hen
    4D15-2816
    07/07/2016
   Aff.

Cir. Ct. (Broward)


text:
    Blome v. State
    4D16-2707
    09/08/2016
   Aff.

Cir. Ct. (Broward)


text:
    Boberg v. Pulitzer
    4D16-384
    07/07/2016
   Aff.

Cir. Ct. (Okeechobee)


text:
    Booker v. Bank of New York Mellon
    4D15-4403
    11/10/2016
   Aff.

Cir. Ct. (Broward)


text:
    Bush v. State
    4D16-2260
    09/22/2016
   Aff.

Cir. Ct. (St. Lucie)


text:
    Cecere-Ferguson v. Town Center at Boca Raton Trust
    4D15-1669
    07/28/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Cotto v. State
    4D14-3500, 4D14-3501
    07/07/2016
   Aff.

Cir. Ct. (Broward)


text:
    David v. State
    4D15-2195
    07/21/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Deutsche Bank Trust Co. Americas v. Page
    4D15-959
    07/07/2016
   Aff.

Cir. Ct. (Broward)


text:
    Durgee v. Nationstar Mortg. LLC
    4D15-588
    07/28/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Early v. State
    4D16-1569
    07/07/2016
   Aff.

Cir. Ct. (Broward)


text:
    Echeverry v. Deutsche Bank Nat. Trust Co.
    4D16-232
    07/07/2016
   Aff.

Cir. Ct. (Broward)


text:
    Edwards v. State
    4D16-2024
    09/01/2016
   Aff.

Cir. Ct. (Broward)


text:
    Fonseca v. Chalas
    4D15-2992
    07/07/2016
   Aff.

Cir. Ct. (Broward)


text:
    Fuentes v. Residential Credit Solutions, Inc.
    4D16-877
    07/28/2016
   Aff.

Cir. Ct. (Broward)


text:
    Galczynski v. State
    4D16-1127
    07/21/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    George v. Florida Dept. of Revenue ex rel. Nelson
    4D15-2398
    07/14/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Gunter v. State
    4D15-423
    07/21/2016
   Aff.

Cir. Ct. (Broward)


text:
    Harper v. State
    4D16-2424
    09/29/2016
   Aff.

Cir. Ct. (Broward)


text:
    Hinds v. Publix Super Markets, Inc.
    4D14-4583
    07/28/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Hofer v. Boca Reef Ass’n, Inc.
    4D15-2048
    07/28/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Igoe v. Orlando
    4D15-3818
    11/03/2016
   Aff.

Cir. Ct. (Broward)


text:
    Jacobson v. Estate of Jacobson
    4D15-4248
    07/28/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Jean-Baptiste v. Wells Fargo Bank, N.A.
    4D15-3299
    07/14/2016
   Aff.

Cir. Ct. (Broward)


text:
    Johnson v. State
    4D15-1101
    08/04/2016
   Aff.

Cir. Ct. (St. Lucie)


text:
    Johnson v. State
    4D16-1904
    09/22/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Johnson v. State
    4D14-4898
    09/29/2016
   Aff.

Cir. Ct. (Broward)


text:
    Jordan v. State
    4D14-622
    08/25/2016
   Aff.

Cir. Ct. (Broward)


text:
    Juarez v. State
    4D15-1903
    07/21/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Kessler v. U.S. Bank Nat. Ass'n
    4D13-4711
    08/04/2016
   Aff.

Cir. Ct. (Broward)


text:
    Lustberg v. Bank of America Funding Corp. Mortg. Pass-Through Certificates, Series 2007-A
    4D15-3194
    07/14/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Malcolm v. State
    4D13-3445
    07/28/2016
   Aff.

Cir. Ct. (Broward)


text:
    Martin v. State
    4D16-532
    07/07/2016
   Aff.

Cir. Ct. (Martin)


text:
    McPhee v. State
    4D16-1293
    07/07/2016
   Aff.

Cir. Ct. (St. Lucie)


text:
    Melley v. Mariner's Way Ass’n, Inc.
    4D14-2998
    07/07/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Mizrachi v. Palms at Lighthouse Point, Inc.
    4D16-161
    07/28/2016
   Aff.

Cir. Ct. (Broward)


text:
    Munoz v. State
    4D15-3775
    07/07/2016
   Aff.

Cir. Ct. (Broward)


text:
    Novick v. Metnick, Levy & Dyson
    4D15-3515
    07/14/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Oce v. Mitchell
    4D16-156
    07/07/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Petit-Frere v. Nationstar Mortg. LLC
    4D15-1545
    07/28/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Pierre v. Liberty Home Equity Solutions, Inc.
    4D15-3907
    11/03/2016
   Aff.

Cir. Ct. (Broward)


text:
    Piscopo v. State
    4D14-789
    07/14/2016
   Aff.

Cir. Ct. (Broward)


text:
    Poux v. State
    4D16-917
    07/07/2016
   Aff.

Cir. Ct. (Broward)


text:
    Pryce v. State
    4D16-1063
    07/28/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    R.J. Reynolds Tobacco Co. v. Buonomo
    4D15-1938
    09/22/2016
   Aff.

Cir. Ct. (Broward)


text:
    Reed v. State
    4D16-1129
    07/07/2016
   Aff.

Cir. Ct. (St. Lucie)


text:
    Reilly v. Transunion Risk and Alternative Data Solutions, Inc.
    4D16-2429
    10/05/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Reyes v. State
    4D16-1462
    07/21/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Rivas v. Google, Inc.
    4D15-2810, 4D15-4369
    07/28/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Robinson v. State
    4D16-568
    07/07/2016
   Aff.

Cir. Ct. (Broward)


text:
    S.F. v. State, Dept. of Children and Families
    4D16-1177
    08/01/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Sanchez v. State
    4D14-4276
    08/18/2016
   Aff.

Cir. Ct. (Broward)


text:
    Sanders v. State
    4D15-2166
    07/21/2016
   Aff.

Cir. Ct. (Indian River)


text:
    Scott v. State
    4D15-2132
    11/03/2016
   Aff.

Cir. Ct. (Broward)


text:
    Seasons Condo Unit 5C LLC v. Nationstar Mortg., LLC
    4D14-4610
    07/14/2016
   Aff.

Cir. Ct. (Broward)


text:
    Smith v. State
    4D16-1315
    07/07/2016
   Aff.

Cir. Ct. (Broward)


text:
    Smith v. State
    4D15-3183, 4D15-3184, 4D15-3185, 4D15-3186, 4D15-3187, 4D15-3188, 4D15-3189
    07/21/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Sostre v. State
    4D14-4293
    08/04/2016
   Aff.

Cir. Ct. (St. Lucie)


text:
    Stephenson v. State
    4D16-2958
    11/23/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Suazo v. State
    4D15-127
    07/14/2016
   Aff.

Cir. Ct. (St. Lucie)


text:
    Swartz v. Boca Woods Country Club Ass'n, Inc.
    4D15-2326
    07/28/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Thompson v. State
    4D15-4635
    09/15/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Thompson v. State
    4D16-1526
    10/20/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Varnum v. State
    4D14-2151
    09/08/2016
   Aff.

Cir. Ct. (Okeechobee)


text:
    Varnum v. State
    4D15-1468
    10/13/2016
   Aff.

Cir. Ct. (Okeechobee)


text:
    Vasserman v. Wells Fargo Bank, N.A.
    4D15-1389
    07/07/2016
   Aff.

Cir. Ct. (Broward)


text:
    Wasserman v. Wilson
    4D15-3970
    07/28/2016
   Aff.

Cir. Ct. (Broward)


text:
    Wilkins v. State
    4D16-1433
    07/07/2016
   Aff.

Cir. Ct. (Broward)


text:
    Williams v. State
    4D16-1992
    11/03/2016
   Aff.

Cir. Ct. (Broward)


text:
    Williams v. State
    4D16-3154
    11/23/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Wilson v. State
    4D14-1043
    07/14/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Wiringer v. Wells Fargo Bank, N.A.
    4D15-1892
    07/28/2016
   Aff.

Cir. Ct. (Palm Beach)


text:
    Young v. State
    4D16-1150
    07/21/2016
   Aff.

Cir. Ct. (Broward)


text:
    FIFTH DISTRICT
    Ayala v. LNV Corp.
    5D15-695
    12/15/2015
   Aff.

Cir. Ct. (Osceola)


text:
    Forum Const. Group, Inc. v. Welbro Bldg. Corp.
    5D15-61
    12/15/2015
   Aff.

Cir. Ct. (Orange)


text:
    Kinney v. State
    5D15-66
    12/15/2015
   Aff.

Cir. Ct. (Orange)


text:
    Mesic v. Clerk of Circuit Court
    5D15-1639
    12/15/2015
   Aff.

Cir. Ct. (Citrus)


text:
    Morales-Estrella v. Chase Home Finance, LLC
    5D15-1711
    12/15/2015
   Aff.

Cir. Ct. (Osceola)


text:
    Napoli v. State
    5D15-2997
    12/29/2015
   Aff.

Cir. Ct. (Seminole)


text:
    Qmedrx, Inc. v. Zulaica
    5D15-1413
    12/15/2015
   Aff.

Cir. Ct. (Orange)


text:
    Reyes v. Chase Home Finance, LLC
    5D14-680
    12/29/2015
   Aff.

Cir. Ct. (Brevard)


text:
    Rodriguez v. Marrero
    5D15-2313
    12/15/2015
   Aff.

Cir. Ct. (Orange)


text:
    Sofsky v. King
    5D15-540
    12/15/2015
   Aff.

Cir. Ct. (Marion)


text:
    Vilardi v. Bank of New York
    5D15-1810
    12/15/2015
   Aff.

Cir. Ct. (Volusia)


author: Warner, J.

text:
    NORTHWEST CENTER FOR INTEGRATIVE MEDICINE & REHABILITATION, INC. and Randy Rosenberg, D.C., P.A., Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 4D15-2881
    District Court of Appeal of Florida, Fourth District.
    [February 22, 2017]
    Gary M. Farmer, Sr. of Farmer Jaffe Weissing Edwards Fistos & Lehrman P.L., Fort Lauderdale, for appellants.
    Nancy A. Copperthwaite, Marcy Levine Aldrich and Ross E. Linzer of Akerman LLP, Miami, for appellee.
   Warner, J.

The trial court dismissed a complaint for declaratory judgment regarding State Farm’s calculation of PIP policy medical reimbursements based solely on Medicare fee schedules, where the insurance policy did not provide notice that the insurance company elected to apply the fee schedules pursuant to section 627.736(5)(a)2., Florida Statutes (2009). The court considered that the declaration requested had already been determined in GEICO General Insurance Co. v. Virtual Imaging Services, Inc., 141 So.3d 147, 159 (Fla. 2013), which held that notice was required to exercise the option, pursuant to the statute, to use the Medicare fees schedules in calculating reimbursements. Appellants challenge the dismissal, arguing that Virtual Imaging did not resolve the dispute in this case because the insurance policy did not rely on permissive Medicare fee schedules, but instead used a fact-based determination of a reasonable fee based on section 627.736(5)(a)1., Florida Statutes, yet the insurer exclusively used the Medicare fee schedules to calculate provider fees. We agree that Virtual Imaging did not conclusively resolve the issue presented. We thus reverse for further proceedings.

Three State Farm insureds were all issued separate automobile insurance policies with PIP benefits by State Farm. In 2008, while the policies were all in effect, the insureds were injured in separate accidents.

Following the accidents, appellant Northwest Center for Integrative Medicine and Rehabilitation, Inc., provided care to some of the insureds, and appellant Randy Rosenberg, D.C., P.A., provided care to another insured. This care was covered under the insureds’ policies with State Farm. Appellants received assignments of benefits from the insureds and billed State Farm for the care under the assignments.

Under section 627.736, Florida Statutes (2008), the PIP statute, an insurer may elect to calculate medical reimbursements in one of two ways: (a) it can pay a reasonable amount consistent with subsection (5)(a)l. of the statute; or (b) it can elect to apply the Medicare fee schedules, as set forth in subsection (5)(a)2. of the statute. § 627.736(5)(a)1.-2., Fla. Stat. (2008). However, in order to exercise the subsection (5)(a)2. option, “the insurer must provide notice in the policy of its election to use the fee schedules.” Virtual Imaging, 141 So.3d at 159.

State Farm did not elect subsection 5(a)2. in the insureds’ policies. The insureds’ policies all provided that State Farm would pay “80% of all reasonable expenses incurred for ... medically necessary” services and treatments. The policies further provided:

To determine whether a charge is reasonable we may consider usual and customary charges and payments accepted by the provider, reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment or supply.
We will not pay: any charge that the No-Fault Act does not require us to pay; or the amount of any charge that exceeds the amount the No-Fault Act allows to be charged.

(Emphasis omitted).

State Farm reimbursed appellants for the insureds’ medical care at Medicare Fee schedule amounts. Eventually, appellants filed suit for a class action declaratory judgment regarding the calculation of reimbursement under the policy. In the fifth amended complaint, appellants alleged:

(a) it was Defendant’s common, widespread practice to instruct its adjusters or representatives to base their determinations of what constitutes “reasonable expenses” under the Policy solely on the permissive fee schedules', (b) Defendant systematically limited reimbursement of PIP claims under the Policy solely in accordance u>ith the permissive fee schedules ... in § 627.736(5)(a)2; and (c) instead of conducting a fact dependent inquiry to determine what constitutes a reasonable expense, Defendant systematically made no inquiry at all into the reasonableness of the provider’s charges but rather calculated and limited reimbursements by using the fee schedules ... in § 627.736(5)(a)2 (2008), Fla. Stat.

(Emphasis added). The complaint sought class representative status for appellants, who did not seek monetary relief or ask the court to determine the reasonableness of any medical provider’s charges. Instead, it sought a declaration that the methodology used by State Farm did not allow it to use the Medicare fee schedule as the sole basis to determine payment for medical reimbursements under PIP, and that State Farm was required to make a fact-dependent inquiry to determine reasonableness in accordance with its policy and section 627.736(5)(a)1., Florida Statutes. It also sought a declaration that class member medical providers have a right to re-adjustment of their claims under the policy.

State Farm moved to dismiss the complaint, arguing that there was no live controversy between the parties because the issue had been resolved in the case law. It conceded that the policies did not elect to apply the Medicare fee schedules pursuant to section 627.736(5)(a)2., Florida Statutes, but rather the fact-dependent methodology of section 627.736(5)(a)1., Florida Statutes. However, State Farm asserted that under Virtual Imaging, it was still entitled to consult a variety of sources, including the Medicare fee schedules, in determining a “reasonable” amount under subsection (5)(a)1. It also argued that the issue was not a proper subject for a class action.

The trial court held a hearing and thereafter entered a final order on State Farm’s motion to dismiss the fifth amended complaint. The court determined that

the allegations of the fifth amended complaint do not state a cause of action for declaratory relief based on the insurance policies ... and binding Florida Supreme Court precedent in Virtual Imaging. Specifically, the court determines the relief requested by Plaintiffs has been determined by the Florida Supreme Court in Virtual Imaging. Accordingly, the court determines the Plaintiffs do not adequately allege the existence of a bona fide dispute which is appropriate for declaratory relief.

The court therefore granted State Farm’s motion to dismiss and dismissed the fifth amended complaint with prejudice. Appellants moved for rehearing, arguing that the court erred in relying on State Farm’s characterization of Virtual Imaging. State Farm opposed the motion. The court denied rehearing, and appellants filed this appeal.

We review an order dismissing a complaint for declaratory judgment for an abuse of discretion, although “the complaint’s allegations and all reasonable inferences from them must be accepted as true.” See Acad. Express, LLC v. Broward Cty., 53 So.3d 1188, 1190 (Fla. 4th DCA 2011).

To be entitled to declaratory relief, a party must show that the claim satisfies the following elements:

[Tjhere is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts’, that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law;- that the antagonistic and adverse interest [sic] are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity.

Bartsch v. Costello, 170 So.3d 83, 88 (Fla. 4th DCA 2015) (quoting Olive v. Maas, 811 So.2d 644, 657-58 (Fla. 2002)).

Under section 627.736, Florida Statutes (2008), the PIP statute, an insurer may elect to calculate medical reimbursements in one of two ways: (a) it can pay a reasonable amount consistent with subsection (5)(a)1. of the statute; or (b) it can elect to apply the Medicare fee schedules, as set forth-in subsection (5)(a)2, of the statute. § 627.736(5)(a)1.-2., Fla. Stat. These two subsections will be referred to as (5)(a)1. and (5)(a)2., respectively.

Specifically, the statute provides:

1. Any physician, hospital, clinic, or other .person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered .... With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the' service, treatment, or supply.
2. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
f. For all other medical services, supplies, and care, 200 percent of the allowable . amount under the participating physicians schedule of Medicare Part B.

§ 627.736(5)(a), Fla. Stat. (emphasis added).

In order to exercise the (5)(a)2. methodology, “the insurer must provide notice in the policy of its election to use the fee schedules.” Virtual Imaging, 141 So.3d at 159. In Virtual Imaging, the court stated,

The issue presented to the Court is whether the Medicare fee schedules set forth in section 627.736(5)(a), Florida Statutes (2008), authorized an insurer to limit reimbursements for medical services rendered to an insured without giving notice in the insurance policy of the insurer’s election to use the Medicare fee schedules as the basis for calculating reimbursements.”

Id. at 149. The court held:

We conclude that notice to the insured, through an election in the policy, is necessary because the PIP statute, section 627.736, requires the insurer to pay for “reasonable expenses ... for medically necessary ... services,” § 627.736(1)(a), Fla. Stat., but merely permits the insurer to use the Medicare fee schedules as a basis for limiting reimbursements, see § 627.736(5)(a)2., Fla. Stat. In other words, the PIP statute provides that the Medicare fee schedules are one possible method of calculating reimbursements to satisfy the PIP statute’s reasonable medical expenses coverage mandate, but does not provide that they are the only method of doing so.
Accordingly, we conclude that the insurer was required to give notice to its insured by electing the permissive Medicare fee schedules in its policy before taking advantage of the Medicare fee schedule methodology to limit reimbursements.

Id. at 150.

State Farm concedes that its policy does not provide notice of an intention to use the (5)(a)2. methodology. Therefore, the issue in this case, unlike the issue in Virtual Imaging, is the proper methodology for calculating reimbursement under (5)(a)1. and whether, under that provision and the policy language, use of Medicare fee reimbursement rates to calculate provider reimbursements is authorized. In particular, can it be the sole consideration for reimbursement under (5)(a)1.? Consequently, the trial court erred in concluding that Virtual Imaging fully answered the issues in the present controversy.

Appellants would like for us to answer the foregoing question. This, however, is the purpose of the declaratory judgment, which must be rendered by the trial court after determining the state of facts giving rise to the application of the statute and policy provisions. We thus reverse and remand for reinstatement of the complaint. We also decline to address State Farm’s alternate argument for dismissal, namely that the complaint failed to state a proper class claim, because the trial court did not rule on this issue.

Reversed and remanded for reinstatement of the complaint and for further proceedings thereon.

Gross and May, JJ., concur.


text:
    Gail FLINN, Appellant, v. Kevin DOTY, as Personal Representative of the Estate of Robert Flinn, deceased, Appellee.
    Nos. 4D15-2424 and 4D15-3481
    District Court of Appeal of Florida, Fourth District.
    [March 8, 2017]

      Jennifer S. Carroll of Law Offices of Jennifer S. Carroll, P.A., Palm Beach Gardens, for appellant.
    Amy D. Shield and Roger Levine of Shield <& Levine, P.A., Boca Raton, and Jason L. Odom of Gould Cooksey Fennell, Vero Beach, for appellee.
   Warner, J.

Appellant challenges a final judgment of foreclosure of her property, claiming that the property is her homestead and exempt from sale. We conclude that under authority of Palm Beach Savings & Loan Ass’n v. Fishbein, 619 So.2d 267, 270 (Fla. 1993), appellee is entitled to foreclose on an equitable lien to the extent that the lien secured monies paid to satisfy appellant’s mortgage on the property.

This case arises out of a family dispute over properties originally owned by the parents of appellant and her siblings. The parents executed quit claim deeds to appellant of several properties. After the mother died and the father was declared incapacitated, appellant’s sister, as guardian of the father, filed suit against appellant to recover the properties and monies appellant took from the sale of some of the properties, alleging both that the father had lacked mental capacity when he executed the deeds and that appellant had exercised undue influence over her parents in seeming the properties. In one count, the guardian sought to impose an equitable lien on appellant’s property for the amount she used to pay off the mortgage on the property. Appellant answered, but did not raise the fact that the property was her homestead.

After a lengthy trial, the trial court found that the father lacked the capacity to execute the deeds. Among other relief, it imposed an equitable lien in the amount of $206,000 on appellant’s home, the amount that she used to pay off the mortgage on the property. It also declared an equitable lien in the amount of $185,000 for additional monies received by appellant from the sale of the parents’ properties.

Appellant appealed, and this Court affirmed. During the proceedings the father had died. After the appeal, the personal representative of the father sought to foreclose on the equitable lien. The complaint alleged that the estate had an equitable lien in the amount of $206,000 against appellant’s property. Appellant answered and again failed to raise her homestead exemption. The court conducted a trial and entered a final judgment foreclosing liens totaling $390,000 (the two liens combined), entered judgment for $421,428, including interest on both liens, and set a foreclosure sale. Several days after the final judgment was entered, appellant moved to cancel the sale and for the first time asserted that the property was her homestead. The court denied the motion, and appellant filed this appeal from the final judgment as well as the order denying the motion to cancel the sale.

On appeal, appellant contends that the court erred in imposing an equitable lien on her homestead, as it is exempt from forced sale pursuant to under Article X, section 4, of the Florida Constitution. We conclude, however, that Fishbein authorizes the equitable lien on appellant’s homestead for the amount of money she used to pay off her mortgage.

In Fishbein, a husband, who was in divorce proceedings with his wife, forged his wife’s signature on a mortgage loan documents and obtained a mortgage on the marital residence. Fishbein, 619 So.2d at 268. He used $930,000 of the funds to pay three existing mortgages and taxes on the property. Id. The wife ultimately obtained title to and possession of the property. Id. When the wife refused to pay the new mortgage the husband had placed on the property using her forged signature, the bank brought suit to foreclose. Id. at 269. The wife argued that the property was her homestead, and she hadn’t been a party to the fraud/forgery. Id. The trial court refused to foreclose the mortgage, but allowed the bank to have an equitable lien on the property for the amount of the taxes paid on the property and that portion of the mortgage which had been used to satisfy the pre-existing mortgage. Id. The court set a sale, but gave the wife time to arrange a private sale. On appeal, this Court reversed the imposition of an equitable lien, reasoning that the equitable lien could not be imposed where the wife had been innocent of any wrongdoing. Id. We concluded that the beneficiary of the homestead exemption can only be deprived of that protection when guilty of fraud or egregious conduct. Id.

The Florida Supreme Court quashed our decision to deny the bank an equitable lien. Id. at 271. The court acknowledged “that where equity demands it this Court has not hesitated to permit equitable liens to be imposed on homesteads[.]” Id. at 270. Citing several prior cases allowing equitable liens on homestead property, the court noted that equitable liens had been imposed against homestead property to prevent unjust enrichment. Id. at 269-70. The court allowed a lien on the wife’s homestead to the extent that the bank’s loan proceeds were used to pay the preexisting mortgages for which the wife would have been liable if the husband had not paid them off. Id. at 271. The court concluded:

Of course, Mrs. Fishbein should not be made to suffer because the bank was not more careful in ensuring that her signature on the mortgage was genuine. This is why the bank can make no claim against the property for the $270,000 not used to benefit the homestead. On the other hand, Mrs. Fishbein is not entitled to a $930,000 windfall. The homestead exemption is intended to be a shield, not a sword.

Id. (footnote omitted). Notably, in quashing the opinion of this Court, the Florida Supreme Court rejected this court’s conclusion that an equitable lien could be imposed only where fraud and egregious conduct are shown.

Applying Fishbein to this case, the court did not err in foreclosing on the equitable lien of $206,000 because it was imposed to prevent unjust enrichment by appellant, who used the proceeds of the sale of her parents’ property to pay off her pre-exist-ing mortgage on her home. While appellant contends that there still must be a showing of egregious conduct on her part, Fishbein clearly rejects such a finding. Unjust enrichment is sufficient in these circumstances to permit an equitable lien against a homestead.

The court did err, however, in including the $185,000 lien as part of the foreclosure proceeding. First, the complaint did not seek to impose that lien against appellant’s home. It only alleged that it was entitled to enforce the $206,000 lien. Second, the $185,000 lien did not satisfy any pre-exist-ing obligations on the home. In fact, it appears to be unrelated to the home. Therefore, it could not be imposed under Fishbein.

Appellees contend that the second lien could be imposed based upon the egregious conduct exception to the homestead exemption. See Dyer v. Beverly & Tittle, P.A., 777 So.2d 1055, 1059 (Fla. 4th DCA 2001). They claim that the record shows that appellant engaged in undue influence and egregious conduct in securing the deeds to the properties from her parents. But the trial court in the first case, in which the equitable lien was imposed, expressly refused to rule on whether undue influence was shown. In light of the trial court’s refusal to rule and the fact that the evidence was disputed on the issue, we cannot conclude that this portion of the final judgment should be approved under a “right for the wrong reason” analysis.

We affirm as to all other issues raised by appellant and thus affirm the order denying the motion to cancel the sale, as well as the final judgment to the extent it enforces the equitable lien of $206,000 against appellant’s home. We reverse the final judgment to the extent it enforces the $185,000 lien and remand for the court to revise the judgment accordingly.

Gross and May, JJ., concur.

      . In Dyer v. Beverly & Tittle, P.A., 777 So.2d 1055, 1059 (Fla. 4th DCA 2001), we allowed a litigant to assert a defense of homestead for the first time on appeal, noting that the defense is not waived or barred by res judicata, citing Sherbill v. Miller Mfg. Co., 89 So.2d 28 (Fla.1956).

      . See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999) ("[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”).


author: Per Curiam.

text:
    Taj COLLIER, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3107
    District Court of Appeal of Florida, Fourth District.
    [March 15, 2017]
    Taj Collier, Bristol, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed. See Kuehl v. Bradshaw, 954 So.2d 653, 655 (Fla. 4th DCA 2007).

Ciklin, C.J., Warner and Gross, JJ., concur.


text:
    PENNYMAC CORP., Appellant, v. Robert T. FROST a/k/a Robert Frost, Appellee.
    No. 4D16-262
    District Court of Appeal of Florida, Fourth District.
    [March 15, 2017]

      .Nancy M. Wallace of Akerman LLP, Tallahassee, William P. Heller of Akerman LLP, Fort Lauderdale, and Eric M. Levine of Akerman LLP, West Palm Beach, for appellant.
    Michael J. Wrubel of Michael Jay Wru-bel, P.A., Davie, for appellee.
   ON MOTION FOB REHEARING AND REHEARING EN BANC OF AP-PELLEE ROBERT FROST

Per Curiam.

We grant appellee’s motion for rehearing, withdraw our previous opinion, and substitute the following in its place.

In this mortgage foreclosure action, PennyMac Corporation appeals from a final order granting the borrower’s motion for involuntary dismissal and entering judgment in favor of the borrower. We affirm, because the trial court properly dismissed the action after PennyMac failed to present competent substantial evidence of its standing to enforce the note.

In 2007, the borrower executed a note and mortgage in favor of Washington Mutual Bank, F.A. The note contains a blank indorsement made by Washington Mutual, but it was marked “VOID.” The note also contains an allonge with a purported blank indorsement by “JPMorgan Chase Bank, National Association, successor in interest by purchase from the FDIC as Receiver of Washington Mutual Bank, f/k/a Washington Mutual Bank, F.A.” The borrower defaulted on the loan and PennyMac filed this foreclosure action.

At trial, PennyMac presented evidence that it possessed the original note with the indorsement by JPMorgan at the time the complaint was filed. The borrower moved for involuntary dismissal on the ground that PennyMac failed to show how JPMor-gan had the right to enforce the note at the time JPMorgan transferred the note to PennyMac. The trial court granted the borrower’s motion for involuntary dismissal, prompting this appeal.

The issue of whether a foreclosure plaintiff proved its standing is reviewed de novo. Boyd v. Wells Fargo Bank, N.A., 143 So.3d 1128, 1129 (Fla. 4th DCA 2014).

On appeal, PennyMac argues that the involuntary dismissal should be reversed because PennyMac “irrefutably established” that it possessed the original note indorsed in blank from the inception of the case. PennyMac contends that the indorsement by JPMorgan was presumed to be authentic and authorized. The underlying premise of PennyMac’s argument, however, is flawed because the indorsement by JPMorgan did not constitute a blank indorsement.

“A plaintiff has standing to foreclose if it is entitled to enforce the promissory note under Florida’s enactment of the Uniform Commercial Code.” U.S. Bank Nat’l Ass’n v. Clarke, 192 So.3d 620, 622 (Fla. 4th DCA 2016). Under the UCC, a “person entitled to enforce” a negotiable instrument means the holder of the instrument, a nonholder in possession of the instrument who has the rights of a holder, or a person not in possession of the instrument who is entitled to enforce. § 673.3011(1)-(3), Fla. Stat. (2015).

A “holder” is “[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.” § 671.201(21)(a), Fla. Stat. (2015). Thus, a plaintiff who is not the original lender may establish its standing to foreclose with proof that it was in possession of the original note with a blank or special indorsement when it filed the complaint. Kenney v. HSBC Bank USA, Nat’l Ass’n, 175 So.3d 377, 379 (Fla. 4th DCA 2015).

Generally, “if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder.” § 678.2011(2), Fla. Stat. (2015) (emphasis added). By definition, a “blank indorsement” must be “made by the holder” of the note. § 673.2051(2), Fla. Stat. (2015).

An indorsement “made by a person who is not the holder” of the note is defined as an “anomalous indorsement.” § 673.2051(4), Fla. Stat. (2015). “An anomalous indorsement does not affect the manner in which the instrument may be negotiated.” Id.

Here, from the face of the note, JPMor-gan’s indorsement was an anomalous in-dorsement, not a blank indorsement. Because the indorsement by the original lender was void, JPMorgan could not have been a holder of the note. At best, JPMor-gan may have been a nonholder in possession of the note with the rights of a holder. Thus, because JPMorgan was not a holder of the note, JPMorgan’s indorsement was not a blank indorsement and did not negotiate the note.

Any rights PennyMac had to the note were purely derivative to those of JPMorgan. “A transfer vests in the transferee only the rights enjoyed by the trans-feror, which may include the right to enforcement, through the shelter rule.” Murray v. HSBC Bank USA, 157 So.3d 355, 358 (Fla. 4th DCA 2015) (citation, internal quotation marks, and brackets omitted). To prove standing as a nonholder in possession with the rights of a holder, the plaintiff must prove the chain of transfers starting with the first holder of the note. Id. at 357-58. Where the plaintiff “cannot prove that [a transferor] had any right to enforce the note, it cannot derive any right from [the transferor] and is not a nonholder in possession of the instrument with the rights of a holder to enforce.” Id. at 359.

In this case, because JPMorgaris in-dorsement was merely an anomalous in-dorsement, PennyMac’s possession of the note did not make it a holder. Therefore, PennyMac needed to establish its standing by showing that it was a nonholder in possession of the note with the rights of a holder, which required PennyMac to prove the chain of transfers in accordance with Murray. Correspondingly, PennyMac was required to prove that JPMorgan, as the transferor, had the right to enforce the note at the time of the transfer. PennyMac failed to do so at trial.

PennyMac argues that JPMorgaris in-dorsement on the note was presumed to be authentic and authorized. This argument is beside the point. To be sure, a signature on an instrument is generally “presumed to be authentic and authorized.” § 673.3081(1), Fla. Stat. (2015). However, the issue of whether a signature on an indorsement is “authentic and authorized” is a separate question from the legal effect of the indorsement. Stated another way, the presumption that a signature on an indorsement is “authentic and authorized” does not mean we must presume that JPMorgan was a holder of the note or that JPMorgaris indorsement negotiated the note. To the contrary, the note on its face demonstrates that JPMorgaris indorsement was an anomalous indorsement, rather than a blank indorsement.

In sum, because PennyMac failed to prove that it was entitled to enforce the note, we affirm the trial court’s entry of an involuntary dismissal.

Affirmed.

Taylor, Levine and Conner, JJ., concur.

      . In light of this disposition, appellee’s motion for rehearing en banc is denied as moot.


text:
    Keith INCHIERCHIERE, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-4141
    District Court of Appeal of Florida, Fourth District.
    [March 29, 2017]
    Alvin E. Entin and Eric Pakowitz of Law Offices of Entin and Della Fera, Fort Lauderdale, for appellant.
    No appearance for appellee.
   Per Curiam.

Affirmed. As to the claim that counsel failed to file a timely motion to disqualify the trial judge, claims of ineffective assistance of postconviction counsel do not present a valid claim, as there is no constitutional right to collateral counsel. Zack v. State, 911 So.2d 1190, 1203 (Fla. 2005). Further, appellant wanted to disqualify the judge from ruling on a motion to mitigate a sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). A rule 3.800(c) motion is a collateral proceeding, “not a de novo proceeding complete ‘with the full array of due process rights.’” Fox v. State, 166 So.3d 894, 896 (Fla. 4th DCA 2015) (quoting St. Lawrence v. State, 785 So.2d 728, 729-30 (Fla. 5th DCA 2001)). Thus, his claim against collateral counsel is not cognizable. Zack, 911 So.2d at 1203. Appellant’s remaining claims are conclusively refuted by the record.

Warner, Taylor and May, JJ., concur.


text:
    F.W., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-432
    District Court of Appeal of Florida, Fourth District.
    [March 29, 2017]
    Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

F.W. appeals the disposition order in his delinquency case, arguing that it does not contain a specific provision that the trial court orally pronounced .during the disposition hearing. We agree that the disposition order must be corrected to reflect the trial court’s pronouncement.

During its oral pronouncement at the disposition hearing, the trial court provided that as a special condition of probation, F.W. would submit to two random drug tests each month but that the testing would terminate after two months if F.W. tested negative. The written disposition order does not contain this qualification. F.W. moved to correct the disposition order but the court did not rule on the matter and thus the motion was deemed denied. See Fla. R. Juv. P. 8.135(b)(2).

While rule 8.115 of the Rules of Juvenile Procedure does not require trial courts to make an oral pronouncement at disposition hearings, when the trial court does make such an oral pronouncement, and the written disposition order conflicts with the oral pronouncement, the matter is to be remanded for the trial court to correct the written disposition order. See C.G.K v. State, 150 So.3d 1203, 1203 (Fla. 4th DCA 2014); W.S.G. v. State, 32 So.3d 725, 726 (Fla. 2d DCA 2010).

The state does not concede error, but it provides that it has no objection to a remand for correction of the disposition order. Based on the foregoing, we affirm the portion of the order withholding an adjudication of delinquency but reverse and remand for correction of the disposition order.

Affirmed in part, reversed in part, and remanded with instructions.

Ciklin, C.J., Damoorgian and Gerber, JJ., concur.


text:
    SAWGRASS FORD, INC., a Florida for-profit corporation, Appellant, v. Bryan VARGAS, on behalf of himself and all others similarly situated, Appellee.
    No. 4D16-3457
    District Court of Appeal of Florida, Fourth District.
    [March 29, 2017]

      Geralyn M. Passaro and Angela M. Swenka of Litchfield Cavo LLP, Fort Lauderdale, for appellant.
    Ruben Martin Saenz and Ilona Demeni-na Anderson of Saenz & Anderson, PLLC, Aventura, and David C. LaValle of Zipris Lavalle, P.A., Miami, for appellee.
   Per Curiam.

Sawgrass Ford, Inc. (“Sawgrass”) appeals a non-final order granting a motion to compel arbitration. The trial court ordered arbitration to maintain procedural fairness to both sides. Because the doctrine of equitable estoppel supports the court’s ruling, we affirm.

In March 2014, Bryan Vargas filed a complaint against Sawgrass and individual employee defendants seeking to litigate a class action based upon violations of the Florida Minimum Wage Act, section 448.110, Florida Statutes (2014), and alleging an individual claim of retaliation.

In December 2014, Vargas’s counsel, on behalf of another Sawgrass employee, filed a federal action against the same defendants, alleging violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq., arising from the same wage payment practices. In that case, Sawgrass successfully moved to compel arbitration. The parties agree the federal suit is substantially similar to this state action and involves essentially the same arbitration agreements signed by Vargas and the putative class members.

Also in December 2014, Vargas moved for class certification in this state case. Later that month, Sawgrass filed a memorandum in opposition but did not raise any issue regarding arbitration. Sawgrass did not answer the complaint, but discovery and other litigation, including motions to dismiss and motions for summary judgment, continued for months. Shortly before the December 2015 hearing on class certification, Sawgrass alleged for the first time that the putative class members should be compelled to arbitrate their wage claim. The court denied the motion for class certification without prejudice and allowed limited class discovery so that Vargas could determine whether putative class members signed valid arbitration agreements.

After confirming that all employees signed arbitration agreements, Vargas moved to compel arbitration. The trial court initially denied his motion. Vargas moved for clarification or reconsideration. He argued in part that he could not have sought arbitration of the class claim until he confirmed that all employees were subject to arbitration. He also argued that Sawgrass’s delay in raising an arbitration defense could bar claims of some putative class members because the statute of limitations has run.

At the hearing on his motion for clarification or reconsideration, Vargas asked the court to either certify the class and find that Sawgrass waived its right to arbitrate, or let them all go to arbitration. The court asked Sawgrass if it would prefer to bring the class into the litigation or go to arbitration. Sawgrass wanted to proceed with litigation only as to Vargas and wanted to preserve its right to arbitrate with the putative class. Sawgrass claimed it would have been estopped from seeking arbitration as to Vargas because it did not seek arbitration when it filed a county court action against him for violation of a non-compete agreement. The county court action was subsequently consolidated with Vargas’s complaint. Sawgrass maintained that Vargas could not serve as the class representative because he had waived his right to arbitration by litigating this case for two years.

“Upon further review and in the interest of maintaining procedural fairness as to both sides,” the trial court granted reconsideration and granted Vargas’s motion to compel arbitration. This appeal follows. The trial court subsequently denied a stay, and this case was assigned to the same arbitrator who is hearing the similar federal action.

Sawgrass argues that the trial court erred by compelling arbitration between Vargas and Sawgrass because Vargas waived arbitration.

“An order granting or denying a motion to compel arbitration is reviewed de novo.” Best v. Educ.163457

Affiliates, Inc., 82 So.3d 143, 145 (Fla. 4th DCA 2012) (citations omitted).

Public policy favors arbitration; questions regarding the scope of an arbitration agreement and whether a party waived the right to arbitrate should be resolved in favor of arbitration. KFC Nat’l Mgmt. Co. v. Beauregard, 739 So.2d 630, 631 (Fla. 5th DCA 1999).

The trial court did not make any findings as to whether Vargas waived arbitration. It compelled arbitration in the interests of fairness. Courts can compel arbitration based upon equitable estoppel. See Marcus v. Florida Bagels, LLC, 112 So.3d 631 (Fla. 4th DCA 2013) (explaining the rationale for allowing non-signatories to an arbitration agreement to compel arbitration under a theory of equitable estoppel). Equitable estoppel focuses on fairness, and it can prevent a party from taking inconsistent positions regarding arbitration of related issues. Id. at 634; see also Heller v. Blue Aerospace, LLC, 112 So.3d 635, 637 (Fla. 4th DCA 2013).

Sawgrass compelled arbitration in federal court of substantially similar claims involving the same wage practices. If class certification is granted, the cases will involve the same parties. Sawgrass pointed out that the state statute has a pre-suit notice requirement that was the basis for a motion to dismiss. The federal statute does not have a similar requirement, and Saw-grass alleged this accounted for its different strategies. Sawgrass’s explanations for why it did not seek arbitration as to Vargas and why it took a different strategy in the federal case do not explain why it compelled arbitration in the federal case but will not consent to arbitration with Vargas in the state case. The trial court tried to accommodate Sawgrass, but was not inclined to let the company “have it both ways.”

We find no error in compelling arbitration in these circumstances and affirm the trial court’s order.

Warner, Gross and Gerber, JJ., concur.

      . Sawgrass also argues that the trial court erred by compelling arbitration with the individual employee defendants who did not sign the arbitration agreements. This argument was not preserved below, and the individual defendants did not appeal the trial court’s order. The same individual defendants also successfully sought arbitration of the federal action.