author: LaROSE, Judge.

text:
    Randy R. WILLOUGHBY, Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    Case No. 2D15-4845
    District Court of Appeal of Florida, Second District.
    Opinion filed March 10, 2017.

      Brent G. Steinberg, Brandon G. Cathey, and Rachel M. Batten of Swope, Rodante P.A., Tampa, for Appellant.
    Alexander R. Boler of Boler Legal, PLLC, Tallahassee, for Appellee.
   LaROSE, Judge.

Randy Willoughby, a Medicaid recipient, appeals a final administrative order denying his petition to reduce the amount owed to the Agency for Health Care Administration (AHCA) to satisfy a Medicaid lien that attached to settlement proceeds he recovered in an insurance coverage dispute. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(C). Mr. Willoughby advances two arguments. First, he maintains that the Administrative Law Judge (ALJ), in calculating the funds available to satisfy the lien, improperly included the bad-faith portion of a $4 million settlement Mr. Willoughby obtained from his uninsured motorist (UM) carrier. Second, he contends that the ALJ erred by not reducing the amount of the lien to correspond with that portion of the settlement allocable to past medical expenses. We affirm as to the first issue. Because the final order requiring reimbursement for all Medicaid-paid expenses is not supported by competent, substantial evidence, we reverse and remand as to the second issue. In doing so, we certify conflict with Giraldo v. Agency for Health Care Administration, 208 So.3d 244 (Fla. 1st DCA 2016).

Facts

Mr. Willoughby sustained serious injuries in an automobile accident. As a result, Mr. Willoughby requires assistance to perform basic activities; he no longer enjoys a normal and active life. Medicaid paid $147,019.61 for medical expenses he incurred. He is no longer eligible for Medicaid benefits. Mr. Willoughby sued the tort-feasor for damages; that lawsuit remains pending in the Thirteenth Judicial Circuit.

After the accident, Mr. Willoughby sought UM benefits from his insurer, 21st Century Centennial Insurance Company. 21st Century denied coverage and refused to pay. Mr, Willoughby sued, claiming that 21st Century acted in bad faith and engaged in unfair claims settlement practices. 21st Century eventually settled, paying Mr. Willoughby $4 million. He also received $20,000 from Esurance Property & Casualty Insurance Company for bodily injury and UM benefits under the .driver’s insurance policy.

Procedural History of the Medicaid Lien

Section 409.910(6)(c), Florida Statutes (2015), imposes a lien on judgments, awards, or settlements received by an injured person in order to reimburse Medicaid for medical bills it pays on the injured person’s behalf. “[AHCA] is entitled to, and has, an automatic lien for the full amount of medical assistance provided by Medicaid to or on behalf of the recipient for medical care furnished as a result of any covered injury or illness for which a third party is or may be liable .... ” § 409.910(6)(c).

After Mr. Willoughby settled with 21st Century, AHCA sought to recover from the settlement proceeds the approximately $148,000 it had expended through Medicaid on his behalf. AHCA proceeded pursuant to section 409.910(ll)(f), which provides as follows:

Notwithstanding any provision in this section to the contrary, in the event of an action in tort against a third party in which the recipient or his or her legal representative is a party which results in a judgment, award, or settlement from a third party, the amount recovered shall be distributed as follows:
1. After attorney’s fees and taxable costs as defined by the Florida Rules of Civil Procedure, one-half of the remaining recovery shall be paid to [AHCA] up to the total amount of medical assistance provided by Medicaid.
2. The remaining amount of the recovery shall be paid to the recipient.
8. For purposes of calculating the agency’s recovery of medical assistance benefits paid, the fee for services of an attorney retained by the recipient or his or her legal representative shall be calculated at 25 percent of the judgment, award, or settlement.

Mr. Willoughby filed a petition with the Department of Administrative Hearings (DOAH) seeking to decrease' the hen amount. See §§ 120.569, .57(1), Fla. Stat. (2015) (stating the procedure for proceedings and petitions for hearing with an agency). Florida law allows such action:

A recipient may contest the amount designated as recovered medical expense damages payable to [AHCA] pursuant to the formula specified in paragraph (ll)(f) by filing a petition under chapter 120 within 21 days after the date of payment of funds to [AHCA] or after the date of placing the full amount of the third-party benefits in the trust account for the benefit of [AHCA] ....

§ 409.910(17)(b). To prevail on his petition, Mr. Willoughby had to demonstrate “by clear and convincing evidence, that a lesser portion of the total recovery should be allocated as reimbursement for past and future medical expenses than the amount calculated by [AHCA] pursuant to the formula.” § 409.910(17)(b).

Mr. Willoughby and AHCA stipulated that the full value of Mr. Willoughby’s personal injury damages was at least $10 million. They also stipulated that Mr. Wil-loughby suffered at least $23,800 in lost wages, and: a loss of future earning capacity between nearly $800,000 and $2,000,000. The parties also agreed that his past medical expenses paid by Medicaid were almost $148,000, and that Mr. Willoughby’s future medical expenses will exceed $5 million. Finally, AHCA and Mr. Willoughby stipulated that his past noneconomic damages exceed $1 million. Notably, the parties stipulated that, under the 21st Century settlement, Mr. Willoughby recovered less than $147,019.61 as payment for his past medical expenses. Nothing suggests that the parties made these stipulations in anything other than good faith arm’s-length negotiations. AHCA posited that its Medicaid lien could be satisfied from settlement funds allocable to past and future medical expenses. Mr. Willoughby, on the other hand, argued that AHCA could satisfy its lien only on a portion of the settlement representing past medical expenses. Despite the parties’ stipulations as to medical expenses, the ALJ concluded that the entire $4 million settlement was available to satisfy the Medicaid lien. He then denied Mr. Willoughby’s petition to reduce AHCA’s lien.

Standard of Review

We review the final administrative order to determine if it is supported by competent, substantial evidence. Mobley ex rel. Mobley v. Agency for Health Care Admin., 181 So.3d 1233, 1236 (Fla. 1st DCA 2015). “If supported by competent, substantial evidence, an appellate court must accept those findings.” Id. “However, if the agency’s decision is not supported by substantial, competent evidence established in the record of the administrative hearing, it will be overturned.” Wise v. Dep’t of Mgmt. Servs., Div. of Ret., 930 So.2d 867, 870-71 (Fla. 2d DCA 2006). “[T]his court reviews the agency’s conclusions of law de novo.” Peace River/Manasota Reg'l Water Supply Auth. v. IMC Phosphates Co., 18 So.3d 1079, 1082 (Fla. 2d DCA 2009). “An appellate court may set aside an agency action where the court finds that the agency erroneously interpreted a provision of law and a correct interpretation compels a particular result.” Lutheran Servs. Fla., Inc. v. Dep’t of Child. & Fams., 199 So.3d 286, 288 (Fla. 2d DCA 2015).

Analysis

Bad Faith Damages Are Subject to the Medicaid Lien

Mr. Willoughby pressed strenuously before the ALJ that $3.99 million of the $4.02 million settlement was for bad faith damages that could not be used to satisfy the Medicaid lien. .He argued to the ALJ, and maintains here, that no more than $30,000, the UM policy limits, can be used to satisfy the lien. We note that AHCA and Mr. Willoughby stipulated that '“[o]f the $4 million paid by 21st Century, $3.99 million was bad faith damages, paid to settle [Mr. Willoughby’s] claim for damages ... on account of 21st Century’s wrongful failure to pay [Mr. Willoughby’s UM] claim.” Mr. Willoughby argued that no part of the bad faith recovery could be allocated to his medical expenses. Apparently, he assumed that bad faith damages were exclusively a punishment for failure to settle an insurance claim properly. His assumption was misplaced. The settlement compensated Mr. Willoughby for damages he sustained in the automobile accident and was available to satisfy the Medicaid lien.

UM benefits cover a panoply of losses. See Fridman v. Safeco Ins. Co. of Ill., 185 So.3d 1214, 1220 (Fla. 2016); State Farm Mut. Auto Ins. Co. v. Rutkin, 199 So.2d 705, 706 (Fla. 1967) (“[T]he insured is entitled to recover under the policy all damages he or she would have been able to recover from the offending motorist if that motorist had maintained a policy of auto liability insurance.”). Section 624.155, Florida Statutes (2015), requires “an insurer to act in good faith in handling claims brought by its own insured under a UM policy and expose[s] the insurer to the consequences of failing to do so.” Fridman, 185 So.3d at 1220.

We cannot agree with Mr. Wil-loughby’s contention that bad faith damages are not subject to the Medicaid lien because they were not allocable to medical expenses. “[Dfemages in first-party bad faith actions are to include the total amount of a claimant’s damages, including any amount in excess of the claimant’s policy limits without regard to whether the damages were caused by the insurance company.” Id. at 1223 (emphasis added) (quoting State Farm Mut. Auto Ins. Co. v. Laforet, 658 So.2d 55, 60 (Fla. 1995)). Moreover, Mr. Willoughby and 21st Century acknowledged in their settlement that “all sums set forth ... herein constitute^] damages on account of personal injuries or sickness.”

AHCA may “seek reimbursement from ‘third-party benefits,’ § 409.910(6), including those benefits received from any ‘causes of action, suits, claims, counterclaims, and demands that accrue to the recipient or to the recipient’s legal representative, related to any covered injury, illness, or necessary medical care, goods, or services’ for which Medicaid paid.” Goheagan v. Perkins, 197 So.3d 112, 117 (Fla. 4th DCA 2016) (quoting 409.901(7)(a), Fla. Stat. (2014)), review denied, No. SC16-1510, 2016 WL 7105014 (Fla. Dec. 6, 2016). Mr. Willoughby’s settlement with 21st Century provided compensation for all injuries Mr. Willoughby suffered. Medicaid paid medical bills related to those injuries. Thus, the bad faith portion of the settlement was available to satisfy the lien. The ALJ’s decision on this issue was supported by competent, substantial evidence and was a proper interpretation of section 409.910(7)(a). We affirm on this issue.

AHCA Can Satisfy Its Lien Only From Settlement Funds Allocable to Past Medical Expenses

Medicaid is the “payor of last resort for medically necessary goods and services furnished to Medicaid recipients.” § 409.910(1). The Medicaid law requires participating states to seek reimbursement of medical expenses incurred by tort victims who later recover from liable third parties. Davis v. Roberts, 130 So.3d 264, 266 (Fla. 5th DCA 2013). The right to reimbursement, however, is not unbridled. Under Medicaid’s anti-lien provisions, AHCA cannot impose its “lien upon settlement proceeds which are not ‘designated as payments for medical care,’ as those [nonmedical] proceeds qualify as a recipient’s property.” Goheagan, 197 So.3d at 116 (quoting Ark. Dep’t of Health & Human Servs. v. Ahlborn, 547 U.S. 268, 283-86, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006)); see also 42 U.S.C. § 1396p(a)(1) (“No lien may be imposed against the property of any individual prior to his death on account of medical assistance paid or to be paid on his behalf under the State [Medicaid] plan .... ”).

As noted earlier, section 409.910(ll)(f) provides a formula to determine the amount available for Medicaid reimbursement from a third-party settlement. The formula “caps recovery at half of the total amount of the settlement, after deducting attorney’s fees and costs.” Davis, 130 So.3d at 266. “Although the entire amount of any settlement may be subject to a Medicaid lien, the amount of recovery is limited by the amount of Medicaid assistance provided. It is also limited by a statutory formula.” Estate of Hernandez v. Agency for Health Care Admin., 190 So.3d 139, 142 (Fla. 3d DCA 2016) (citing § 409.910(11)(e), (f)), review denied, No. SC16-930, 2016 WL 5407673 (Fla. Sept. 28, 2016).

AHCA stipulated that the 21st Century settlement did not make Mr. Wil-loughby whole for his past medical expenses. Yet, applying the formula, AHCA contends that the settlement provided ample funds to satisfy the entire lien. But, echoing Ahlborn, Wos v. E.M.A. ex rel. Johnson, — U.S. -, 133 S.Ct. 1391, 1398, 185 L.Ed.2d 471 (2013), like Goheag-an, teaches that “[t]he Medicaid anti-lien provision prohibits a State from making a claim to any part of a Medicaid beneficiary’s tort recovery not ‘designated as payments for medical care.’ ” (quoting Ahlborn, 547 U.S. at 284, 126 S.Ct. 1752). Thus, the formula is not always conclusive. Indeed, since 2013, Florida law enables Medicaid recipients, such as Mr. Willoughby, to rebut the presumption yielded by the formula. § 409.910(17)(b); see also Garcon v. Agency for Health Care Admin., 150 So.3d 1101, 1102 (Fla. 2014); Agency for Health Care Admin. v. Riley, 119 So.3d 514, 516 (Fla. 2d DCA 2013); Davis, 130 So.3d at 270.

Before the ALJ, Mr. Willoughby relied on the parties’ stipulation that he recovered less than the amount of the lien as payment for his past medical expenses from the 21st Century settlement. The ALJ was not persuaded. He observed that “[although the parties ... stipulated that [Mr. Willoughby] has recovered less than $147,019.61 as payment for past medical expenses, the settlement agreement .., states that ‘all sums set forth herein constitute damages on account of personal injuries or sickness.’ ” But not all personal injury damages are for medical expenses. Even AHCA conceded as much.

Mr. Willoughby urged the ALJ to employ a pro rata allocation to calculate the amount of the 21st Century settlement allocable to past medical expenses. He acknowledged that if the entire 21st Century settlement proceeds are available, AHCA can recover no more than about $59,000 as reimbursement for past medical expenses paid by Medicaid. Indeed, because the settlement represents but only some forty percent of the total value of the case, Mr. Willoughby urges that AHCA can only recover about forty percent of the expenses it incurred. We do not condemn this approach; we recognize that ALJs frequently resort to this methodology in calculating amounts available to satisfy Medicaid liens. See Osmond v. Agency for Health Care Admin., Case No. 16-3408MTR (Fla. DOAH Hrgs. Sept. 8, 2016); Bryant v. Agency for Health Care Admin., Case No. 15-4651MTR (Fla. DOAH Feb. 12, 2016). But we also acknowledge that the U.S. Supreme Court has not explicitly endorsed this method. The Supreme Court “in no way adopted the formula as a required or sanctioned method to determine the medical expense portion of an overall settlement amount.” Smith v. Agency for Health Care Admin., 24 So.3d 590, 591 (Fla. 5th DCA 2009). We remain mindful, though, that “[a]n irre-buttable, one-size-fíts-all statutory presumption is incompatible with the Medicaid Act’s clear mandate that a State may not demand any portion of a beneficiary’s tort recovery except the share that is attributable to medical expenses.” Wos, 133 S.Ct. at 1399. Mr. Willoughby offered a methodology to demonstrate that AHCA is owed a lesser amount, and AHCA agreed that his past medical expenses were not satisfied by the 21st Century settlement. The ALJ rejected the agreement without analysis.

There seems to be no question that AHCA cannot recoup its Medicaid lien from settlement proceeds allocable to non-medical expense damages. We struggle to determine whether AHCA may satisfy its lien from funds allocated to future medical expenses. We noted earlier that AHCA and Mr. Willoughby stipulated that his future medical expenses will likely exceed $5 million. If Mr. Willoughby’s forty percent recovery versus total case value is applied to the total stipulated for all medical expenses, $5,148,000, the result yields over $2 million, more than enough to satisfy the entire lien. Yet, previous decisions from our sister districts suggested that the lien could be satisfied only from funds allocable to past medical expenses. Cf. Davis, 130 So.3d at 270 (holding that recovery is limited to the “portion of the Medicaid recipient’s third-party recovery representing compensation for past medical expenses”).

Recently, however, in Giraldo, the First District concluded that AHCA had the “right to secure reimbursement for payments already made for medical costs from not only that portion of the settlement allocated for past medical expenses but also from that portion of the settlement intended as compensation for future medical expenses,” 208 So.3d at 248. In reaching this conclusion, the First District relied on section 409.910(17)(b) which requires a Medicaid recipient challenging the . lien amount to demonstrate that AHCA has not properly allocated past - and future medical expenses. Id. Respectfully, we disagree with our sister district. Giraldo misinterprets Ahlborn, 547 U.S. 268, 126 S.Ct. 1752, Under our federal system of government, the First District’s understanding of section 409.910 must yield to the United States Supreme Court’s interpretation. See Art. VI, cl. 2, U.S. Const. (Supremacy Clause). Ahlborn and its progeny are best read as limiting the recovery of the Medicaid lien to that portion of a settlement allocable to past medical expenses.

A more detailed exposition of Ahlborn is useful. Ahlborn was injured in an automobile accident. She sued the tortfeasor, seeking damages for past and future medical expenses, loss of earnings, and pain and suffering. The total value of her claiih exceeded $3 million. Arkansas, through its Medicaid program, paid over $215,000 of her medical expenses. Ahlborn settled her tort case for $550,000, roughly 1/6 of its value. Under its state law, Arkansas sought full reimbursement of its Medicaid lien from the total settlement. Ahlborn argued that the Arkansas law violated Medicaid’s anti-lien provision, see 42 U.S.C. § 1396p(a)(l), because it would reach funds recovered for damages other than past medical expenses. Ahlborn and Arkansas stipulated that if her interpretation of federal law was correct, only 1/6 of her settlement was allocable to medical expenses, about $36,000 of the $215,000 actually paid by Medicaid. Ahlborn, 547 U.S. at 273-74, 126 S.Ct. 1752. The Supreme Court agreed with Ahlborn. Although the Supreme Court did not address specifically the availability of funds for future medical expenses to pay the lien, it is clear that the Court accepted the parties’ stipulation that only the amounts allocable to past payments were subject to the lien. Indeed, the Court observed that Medicaid acquires a lien “of no more than the right to recover that portion of a settlement that represents payments for medical care.” Id. at 282, 126 S.Ct. 1752. Future medical expenses have neither been incurred nor paid. More to the point, section 409.910(17)(b) specifically states that the recipient must demónstrate that “a lesser portion of the total recovery should be allocated as reimbursement for past and future medical expenses.” (Emphasis added.) Reimburse means “to pay back to someone” or “to make restoration or payment of an equivalent to.” Reimburse, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/ dictionary/reimburse (last visited Dec. 22, 2016). The statute contemplates that AHCA cannot be reimbursed for monies it has not expended. See Bryant, Case No. 15^651MTR.

Reaffirming Ahlborn, the Supreme Court in Wos, 133 S.Ct. at 1397, stated that North Carolina’s Medicaid program had a right to recover Medicaid expenses paid on the recipient’s behalf. North Carolina had no right to settlement proceeds beyond such expenses. Wos, 133 S.Ct. at 1397. The North Carolina statute under consideration required that up to 1/3 of any damages recovered by a Medicaid recipient were payable to reimburse North Carolina for Medicaid benefits paid. Again, the Supreme Court did not directly address whether a Medicaid lien could attach to settlement funds allocable to future medical expenses. Yet, the underlying facts of Wos indicate not. In Wos, the Supreme Court affirmed a decision of the Fourth Circuit Court of Appeal. See E.M.A. ex rel. Plyler v. Cansler, 674 F.3d 290 (4th Cir. 2012), aff'd sub nom. Wos v. E.M.A. ex rel. Johnson, — U.S. -, 133 S.Ct. 1391, 185 L.Ed.2d 471 (2013). In its opinion, the' Fourth Circuit noted that E.M.A. challenged North Carolina’s effort to collect the full amount of its lien by encumbering “funds that are not payment[s] for medical expenses already incurred.” Id. at 295. Hewing to Ahlborn, the Fourth Circuit made clear that “federal Medicaid law limits North Carolina’s recovery to settlement proceeds representing payment for medical expenses.” Id. at 296 (emphasis omitted). As in Ahlborn, any settlement proceeds allocable to future medical expenses are expenses not yet incurred or paid. Such proceeds properly belong to the tort victim as compensation for future medical expenses that will be incurred.

Our survey of the cases since Ahlborn reflects a majority view that the Medicaid lien does not attach to settlement funds allocable to future medical expenses. See, e.g., E.M.A., 674 F.3d 290; McKinney ex rel. Gage v. Phila. Hous. Auth., No. 07-4432, 2010 WL 3364400, at *9 (E.D. Pa. Aug. 24, 2010); Price v. Wolford, No. Civ-07-1076-M, 2008 WL 4722977 (W.D. Okla. Oct. 23, 2008); State Dep’t of Health & Welfare v. Hudelson, 146 Idaho 439, 196 P.3d 905, 912-13 (2008), abrogated on other grounds by Verska v. St. Alphonsus Reg’l Med. Cent., 151 Idaho 889, 265 P.3d 502, 508 (2011); Lugo ex rel. Lugo v. Beth Israel Med. Ctr., 13 Misc.3d 681, 819 N.Y.S.2d 892, 895 (N.Y. Sup. Ct. 2006); Aguilera v. Loma Linda Univ. Med. Ctr., 235 Cal.App.4th 821, 831-32, 185 Cal. Rptr.3d 699 (Cal. Ct. App. 2015); Branson v. Sharp Healthcare, Inc., 193 Cal.App.4th 1467, 1471, 123 Cal.Rptr.3d 462 (Cal. Ct. App. 2011); In re E.B., 229 W.Va. 435, 729 S.E.2d 270, 292-93 (2012). Many of those decisions painstakingly explain how Ahl-born compels that result. See, e.g., E.M.A., 674 F.3d at 300-01; McKinney, No. 07-4432 (rejecting the argument that Ahlborn allows states “to encumber settlement monies attributable to future medical expenses”); In re E.B., 729 S.E.2d 270 (“After a thorough examination of the Ahlbom decision and the language contained in [the West Virginia statute] ... we find that [the statute] directly conflicts with Ahl-born, insofar as it permits [the State] to assert a claim to more than the portion of a recipient’s settlement that represents past medical expenses.”).

Even several Florida administrative law judges conclude that AHCA cannot satisfy its Medicaid lien from proceeds set aside for future medical expenses. See Weedo v. Agency for Health Care Admin., Case No. 16-1932MTR (Fla. DOAH Sept. 27, 2016); Osmond, Case No. 16-3408MTR; Bryant, Case No. 15-4651MTR; Quesada v. Agency for Health Care Admin., Case No. 153764MTR (Fla. DOAH Jan. 28, 2016); Gibbons v. Agency for Health Care Admin., Case No. 13-4720MTR (Fla. DOAH May 7, 2014); cf. Silnicki v. Agency for Health Care Admin., Case No. 13-3862MTR (Fla. DOAH July 15, 2014).

Two more features of this case make clear that limiting the scope of the lien to past medical expenses makes sense. First, AHCA agreed to the allocation of damages. The parties’ stipulation poses no risk of collusion. AHCA, the agency tasked with administering Florida’s Medicaid program, acknowledged that Mr. Willoughby was not made whole as to his past medical expenses. AHCA had no incentive to skew the allocations of the 21st Century settlement in a way that reduces its lien for paid medical expenses. Cfi Giraldo, 208 So.3d at 247 (holding that ALJ properly concluded that allocation agreed to in settlement agreement between victim and tortfeasor was not clear and convincing evidence and could not “be credited as reasonable products of arms-length adversarial negotiation”). Second, Mr. Willoughby is no longer eligible for Medicaid benefits. Thus, AHCA will expend no funds for his future care. See I.P. ex rel. Cardenas v. Henneberry, 795 F.Supp.2d 1189, 1197 (D. Colo. 2011) (“Because Plaintiff intends on staying on Medicaid, any funds allocated for future medical expenses should rightfully be exposed to the [S]tate’s lien so that the [S]tate can be reimbursed for its past medical payments.”).

Conclusion

The ALJ had authority to reduce the Medicaid lien. See Davis, 130 So.3d at 270; see also § 409.910(17)(b). However, the ALJ did not analyze any methodology provided by Mr. Willoughby to reduce the lien. Instead, the ALJ concluded that the 21st Century settlement included all of Mr. Willoughby’s medical expenses. The record supports no such conclusion. We cannot ignore the fact that Mr. Willoughby and AHCA stipulated that, in his settlement with 21st Century, Mr. Willoughby recovered less than $147,019.61 for past medical expenses. The ALJ should not have ignored the parties’ stipulation.

Mr. Willoughby provided clear and convincing evidence that a lesser portion of his recovery was allocable to satisfy the Medicaid lien. Because the ALJ’s decision not to reduce the lien amount is not supported by competent, substantial evidence and misapplies Ahlborn and Wos, we must reverse on the second issue. We also certify conflict with Giraldo.

Accordingly, we affirm the ALJ’s refusal to exclude the bad faith damages from the Medicaid lien. We reverse and remand for the ALJ to reconsider, consistent with this opinion, Mr. Willoughby’s petition in light of the parties’ stipulation as to the apportionment of the settlement for Mr. Wil-loughby’s past medical expenses.

Affirmed in part, reversed in part, and remanded. Conflict certified.

SILBERMAN and SLEET, JJ., Concur.

      . AHCA administers the Florida Medicaid program. See § 409.902, Fla. Stat. (2015).

      . "Florida law allows insureds to sue insurers whose denial of meritorious claims is in bad faith.” Harris v. GEICO Gen. Ins. Co., 619 Fed.Appx. 896, 898 (11th Cir. 2015) (citing § 624.155(1)(b) Fla. Stat. (2009)); see also Fridman v. Safeco Ins. Co. of Ill., 185 So.3d 1214, 1220 (Fla. 2016).

      . Mr. Willoughby placed the disputed funds in an interest-bearing trust account pending final decision by the AU.

      . The amount Mr. Willoughby obtained from 21st Century and Esurance totaled $4,020,000. For ease, unless the context requires otherwise, we refer to the $4.02 million settlement obtained by Mr. Willoughby from 21st Century and Esurance.

      . Ch. 2013-150, § 2, at 97, Laws of Fla, (2013).

      . We do not address whether AHCA could pursue what is left of the lien from any monies Mr. Willoughby receives in his action against the tortfeasor.


source: Caselaw Access Project

author: BADALAMENTI, Judge.

license: Public Domain

text:
    B.M., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-4782
    District Court of Appeal of Florida, Second District.
    Opinion filed March 10, 2017.

      Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appel-lee.
   BADALAMENTI, Judge.

B.M. appeals his final disposition of delinquency for (1) resisting an officer without violence and (2) burglary of an unoccupied structure. The basis of the resisting-without-violence charge was B.M.’s flight from a purportedly lawful Terry stop. The State used this same alleged nonviolent resistance to satisfy the intent element of B.M.’s burglary charge. B.M. contends that the State presented insufficient evidence to demonstrate that the law enforcement officer who attempted to conduct the Terry stop had a well-founded and reasonable suspicion to do so. We agree and reverse B.M.’s disposition for resisting an officer without violence. Because the State used B.M.’s alleged nonviolent resistance as the specific intent necessary to establish a prima facie case for burglary of an unoccupied structure, we must reverse the burglary disposition as well. See § 810.02(l)(b)(l), (l)(b)(4)(a), Fla. Stat. (2015).

At B.M.’s delinquency hearing, the State’s first witness was Kristi Sofroni. Mr. Sofroni testified that on January 28, 2015, he was driving his car on the University of South Florida campus when he observed “two kids,” a male (the suspect) and a female (the victim). According to Mr. Sofroni, the suspect and the victim were “fighting or ... grabbing onto each other.” Mr. Sofroni described the suspect as being tall and slender, wearing a white tank top with jeans, and riding a bike. Mr. Sofroni observed the victim trying to pull on the suspect’s tank top to keep him from riding away on the bike. The suspect was “swinging his arms trying to get [the victim] off him” and managed to “catch her on the jaw,” which allowed the suspect to break free and flee on foot. Mr. Sofroni heard the victim yelling, “He stole my phone.” Mr. Sofroni attempted to chase down the suspect but could not catch him. He only observed the suspect from behind and thus never saw the suspect’s face.

The State’s next witness, a detective from the University of South Florida Police Department (USFPD), testified that on the afternoon of that same day, she “responded to an area where individuals had known direction of travel after they committed ... a strong-arm robbery.” The detective explained that she was “able to identify people within the area” who she “believed to be the suspects.” One of these suspects, later identified as B.M., was riding a bike in the company of two other individuals riding bikes. The detective testified that B.M. was wearing a white, sleeveless tank top and shorts. The detective activated her police vehicle’s lights and attempted to detain B.M. by twice yelling, “Stop, police.” The other individuals accompanying B.M. stopped, but B.M. fled on his bike. An officer from the Tampa Police Department apprehended B.M. later that day in a shed located in a fenced residential backyard. B.M. did not have the owner’s permission to enter the shed.

B.M.’s delinquency petition initially charged him with (1) robbery by sudden snatching, (2) burglary of an unoccupied structure, (3) battery, and (4) resisting an officer without violence. After the State rested its case, B.M. moved to dismiss the robbery and battery counts, arguing that Mr. Sofroni could not identify B.M. as the suspect who robbed the victim of her phone and battered her in the process. The State conceded that it failed to prove robbery and battery. Accordingly, the trial court dismissed the robbery and battery counts. After closing arguments, B.M. moved for judgments of dismissal on the remaining counts of burglary and resisting an officer without violence, which the trial court denied. The trial court adjudicated B.M. delinquent of both burglary of an occupied dwelling and resisting an officer without violence. The trial court sentenced B.M. to juvenile probation.

A motion for judgment of dismissal in a delinquency proceeding is equivalent to a motion for judgment of acquittal. See Fla. R. Juv. P. 8.110(k). We review an order denying a motion for dismissal in a juvenile proceeding de novo. G.T.J. v. State, 994 So.2d 1182, 1184 (Fla. 2d DCA 2008). “On such a motion, the evidence must be viewed in the light most favorable to the State, but if the State fails to present sufficient evidence to establish a prima facie case of the crime charged, then a judgment of dismissal is proper.” Id. (citing E.A.B. v. State, 851 So.2d 308, 310 (Fla. 2d DCA 2003)).

To prove the crime of resisting an officer without violence, the State must prove (1) that the officer was lawfully executing a legal duty and (2) that the defendant acted in such a way as to obstruct or resist the execution of the officer’s duty. § 843.02, Fla. Stat. (2015); E.A.B., 851 So.2d at 311. Knowing defiance of a lawful Terry stop constitutes unlawful resistance without violence. C.E.L. v. State, 995 So.2d 558, 561 (Fla. 2d DCA 2008) (en banc), approved, 24 So.3d 1181 (Fla. 2009).

To establish the lawfulness of a Terry stop, “it is necessary for the State to prove that the officer had a reasonable suspicion of criminal activity that would support the detention.” Davis v. State, 973 So.2d 1277, 1279 (Fla. 2d DCA 2008). “A stop is justified when an officer observes facts giving rise to a reasonable and well-founded suspicion that criminal activity has occurred or is about to occur.” C.E.L., 24 So.3d at 1186 (citing Davis, 973 So.2d at 1279). “[W]hether an officer’s well-founded suspicion is reasonable is determined by the totality of the circumstances that existed at the time of the investigatory stop and is based solely on facts known to the officer before the stop.” Id. (first citing Travers v. State, 739 So.2d 1262, 1263 (Fla. 2d DCA 1999); then citing McCloud v. State, 491 So.2d 1164, 1165 (Fla. 2d DCA 1986)).

Our supreme court has explained that “as a general rule, flight, standing alone, is insufficient to form the basis of a resisting without violence charge.” C.E.L., 24 So.3d at 1186 (citing Mosley v. State, 739 So.2d 672, 675 (Fla. 4th DCA 1999)). “There must be some additional factor or factors, which, when combined with flight, would give rise to a reasonable suspicion that criminal activity is afoot.” State v. Lewis, 98 So.3d 89, 92 (Fla. 4th DCA 2012) (quoting Parker v. State, 18 So.3d 555, 558 (Fla. 1st DCA 2008)). The State contends that the USFPD detective acted within the lawful scope of her duty when she ordered B.M. to stop and that B.M.’s adjudications of delinquency must stand. We disagree.

The State did not present sufficient evidence to establish the detective had a reasonable suspicion to detain B.M. There is no indication that the detective received a description of B.M. before she ordered him to stop. There was no testimony that B.M. was detained in a high crime area. Although Mr. Sofroni testified to a description of the suspect, the State neglected to produce any record evidence to demonstrate that his description of the suspect was conveyed to the detective before she ordered B.M. to stop. According to the detective’s testimony, the only information she knew was the time of the robbery and the suspect’s known direction of travel. This was not enough for the detective to form a reasonable suspicion that criminal activity was afoot before she ordered B.M. to stop.

In M.M.H. v. State, 929 So.2d 628 (Fla. 3d DCA 2006), an officer responded to a call at approximately 11:00 p,m. about “suspicious activity around a suspicious vehicle.” Id. at 629. When the officer arrived at the scene, the officer noticed that a vehicle matched the description of a stolen vehicle that had been used during an armed robbery earlier that day. Id. The officer also noticed that the vehicle’s engine was still hot and that the robbery victim’s belongings were lying next to the vehicle. Id. The officer then observed a juvenile riding his bike in close proximity to that vehicle. Id. When the officer told the juvenile to stop, the juvenile instead rode away. Id. Eventually, the juvenile was apprehended and charged with resisting an officer without violence. The juvenile’s motions for dismissal were both denied. On appeal, the Third District reversed, holding that there was no “‘articulable well-founded suspicion of criminal activity1 to justify stopping M.M.H.” Id. at 630 (quoting D.T.B. v. State, 892 So.2d 522, 524 (Fla. 3d DCA 2004)). The M.M.H. court reasoned, “[E]ven if a person is within a suspected crime area, flight itself, is insufficient to justify an arrest for resisting arrest without violence.” Id. (first citing D.M. v. State, 681 So.2d 797 (Fla. 2d DCA 1996); then citing S.G.K. v. State, 657 So.2d 1246 (Fla. 1st DCA 1995)).

Similar to M.M.H., the detective’s only articulated basis to order B.M. to stop was B.M.’s proximity to the robbery suspects’ “known direction of travel,” coupled with B.M.’s unprovoked flight after the detective ordered him to stop. There were no additional facts articulated by the detective to support her basis to detain B.M. at the time she ordered him to stop. If the detective had additional information to form a reasonable and well-founded suspicion to order B.M. to stop, she did not convey that information in her testimony. With the detective’s limited and conclusory testimony as to what she knew at the time she attempted to execute an investigatory stop of B.M., it is difficult to conclude how B.M., along with two other bicyclists, in the afternoon near a college campus and in the proximity of a reported robbery, was suspicious enough to justify an investigatory stop. Without additional record evidence as to what the detective knew at that time, we are left with what appears to be little more than the detective’s hunch that B.M. was one of the suspects, which certainly amounts to less than a reasonable and well-founded suspicion that B.M. had committed the reported robbery. Cf. D.M., 681 So.2d at 798; F.E.C. v. State, 559 So.2d 413, 414 (Fla. 2d DCA 1990).

At bottom, the detective did not articulate a reasonable and well-founded suspicion that B.M. had committed a crime so as to conduct an investigatory stop. Accordingly, B.M. did not violate section 843.02 by defying the detective’s order to stop. See M.M.H., 929 So.2d at 629-30. We therefore reverse B.M.’s disposition for resisting an officer without violence. Because the State used B.M.’s alleged nonviolent resistance as the specific intent necessary to establish a prima facie case for burglary of an unoccupied structure, we must reverse the burglary disposition as well. See § 810.02(l)(b)(l), (l)(b)(4)(a); cf. A.D. v. State, 106 So.3d 67, 70 (Fla. 2d DCA 2013) (“Because the theft charge fails, so too must the burglary charge to the extent it is based on an intent to steal the van.”). With no remaining charges in the petition for delinquency left for disposition, we remand with instructions for the trial court to dismiss the petition. See G.T.J., 994 So.2d at 1184.

Reversed; remanded with instructions to dismiss petition.

SILBERMAN and SLEET, 33., Concur.

      . Terry v. Ohio. 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . Notably, Mr. Sofroni's description of the suspect did not even match the detective’s description of B.M. Mr. Sofroni testified that the suspect was wearing jeans, whereas the detective testified that B.M. was wearing shorts.

      . Unprovoked flight from attempted detention in a “suspected crime area” is different from unprovoked flight in a “high crime area,” the latter of which often forms the basis for reasonable suspicion. See Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).


author: ROWE, J.

text:
    STATE of Florida, Appellant, v. Damien C. LING, Appellee.
    CASE NO. 1D15-4714
    District Court of Appeal of Florida, First District.
    Opinion filed March 10, 2017

      Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellant.
    Kevin Alvarez of Law Office of Kevin Alvarez P.A., Tallahassee, for Appellee.
   ROWE, J.

The State appeals the postconviction court’s order granting Damien Ling a new trial on the charge of possession of a firearm by a convicted felon. Ling filed a motion for postconviction relief pursuant to Florida Rule of' Criminal Procedure 3.850. The lower court granted the motion, concluding Ling’s trial counsel was ineffective for failing to object to certain comments made by the prosecutor during closing argument, and the failure to object to the comments prejudiced Ling. Because we find that the comments were a fair response to arguments presented by the defense, we reverse the order granting postconviction relief.

Facts

Ling was charged with possession of cocaine, possession of cannabis, possession of a firearm by a convicted felon, and two counts of resisting an officer without violence. The possession of a firearm count and one of the counts for resisting an officer were severed from the drug possession counts and the case proceeded to tidal. Before trial, the parties agreed that no reference would be made to the cocaine found in the parked car Ling admitted to have been driving the evening of his arrest, but they agreed that testimony regarding the marijuana found in the car could be presented to the jury. At trial, witnesses testified that a gun was found in the driver’s side door of the car, and that marijuana was found throughout the car, including inside a backpack in the back seat.

Ling was not in the car at the time police approached. But Ling’s two nephews—ages eleven or twelve and fifteen— were in the back seat. Defense counsel argued that the backpack—and the marijuana inside—may have belonged to Ling’s nephews, and that the gun may have belonged to them, too. Specifically, defense counsel suggested that both the marijuana and the gun may have been in the backpack, and that Ling’s nephews may have placed the gun in the driver’s side door when the officer approached, so that Ling would “take the fall for the gun.” To buttress this theory, defense counsel argued that kids, rather than adults, carry backpacks. In rebuttal, the prosecutor stated, “And I’m sorry, but again, use your own common sense. Adults don’t carry backpacks? Really? Drugs and guns go together. And the gun in this ease belonged to the defendant and so did the drug[s], ladies and gentlemen.” The prosecutor added, “And there’s drugs in the car. That’s why the gun is there, too, ladies and gentlemen.” Ling’s counsel did not object to these statements.

After his convictions and sentences for possession of a firearm by a convicted felon and resisting an officer without violence were affirmed on direct appeal, Ling moved for postconviction relief raising several arguments, including a claim that his counsel was ineffective for failing to object to the prosecutor’s remarks linking the marijuana and gun together. At an eviden-tiary hearing, Ling’s trial counsel explained that he did not try to hide the fact that marijuana was found in a backpack in the back seat of the car, because his trial strategy was to deflect blame onto Ling’s nephews. Trial counsel considered this fact a key strength of the defense. Further, he indicated, and Ling acknowledged, that this strategy was undertaken with Ling’s approval.

The court granted Ling’s motion for postconviction relief, concluding that the prosecutor’s statements linking “drugs and guns” were improper because they suggested Ling was guilty of marijuana possession—a crime for which he was not on tidal—and further, that because he was guilty of possessing marijuana, he was also guilty of possessing a firearm. The court concluded that if counsel had objected, Ling would have been entitled to either a mistrial or a strongly worded curative instruction. Because the court was not convinced the failure to object did not contribute to the verdict, it ordered a new trial on the possession of a firearm charge. The State appealed.

Analysis

Appellate review of an ineffective assistance of counsel claim after an eviden-tiary hearing presents a mixed question of fact and law. Cardenas v. State, 49 So.3d 322, 325 (Fla. 1st DCA 2010). The appellate court defers to the postconviction court’s findings of fact to the extent they are supported by competent, substantial evidence, but independently reviews the court’s legal conclusions as to the alleged ineffectiveness of the defendant’s counsel and the resulting prejudice under the standard outlined in Strickland. Stephens v. State, 748 So.2d 1028, 1031-34 (Fla. 1999); see also Sochor v. State, 883 So.2d 766, 771 (Fla. 2004) (“When we review a circuit court’s resolution of a Strickland claim, as we do here, we apply a mixed standard of review because both the performance and the prejudice prongs of the Strickland test present mixed questions of law and fact”). The State argues the postconviction court’s legal conclusion that Ling’s counsel was deficient for failing to object to the prosecutor’s rebuttal argument was incorrect because the prosecutor’s comments were invited by the defense. The State argues Ling would not have been entitled to mistrial, nor even a curative instruction, had counsel objected to the remarks. We agree.

“A prosecutor’s argument should be examined in the context in which it is made.” Stancle v. State, 854 So.2d 228, 229 (Fla. 4th DCA 2003). “This is particularly so where invited by the nature of the defense.” Id. “A prosecutor’s comments are not improper where they fall into the category of an ‘invited response’ by the preceding argument of defense counsel concerning the same subject.” Walls v. State, 926 So.2d 1156, 1166 (Fla. 2006); see also Ferguson v. State, 417 So.2d 639, 642 (Fla. 1982) (finding no impropriety in “comment [ ] made on rebuttal in response to the theory presented by the defense during its closing argument”). Where defense counsel places an issue before the jury in closing argument, the prosecution is permitted to respond, and “the defense may not be granted a new trial because the state ‘rose to the bait.’” Brown v. State, 367 So.2d 616, 625 (Fla. 1979).

Ling argues in his postconviction motion and on appeal that the prosecutor’s remarks improperly suggested he was guilty of conduct for which he was not on trial. However, notwithstanding the severance of Ling’s drug possession charges, he expressly agreed to allow evidence of the marijuana found in the car because it was central to his theory of defense. Indeed, the presence of marijuana was known to the jury from the outset of trial, when the defense referred to Ling’s vehicle as a “cannabis car” during opening statements. Further, the implication that “drugs and guns go together” was introduced by the defense during closing argument, and it was central to the theory that both the marijuana and the gun may have belonged to Ling’s nephews, rather than to Ling. Thus, because the prosecutor’s rebuttal argument fell well within the bounds of an invited reply to the defense’s closing argument, the postconviction court erred in finding that Ling would have been entitled to a mistrial or curative instruction if counsel had objected. See Hitchcock v. State, 991 So.2d 337, 361 (Fla. 2008) (“Counsel cannot be deemed ineffective for failing to make a meritless objection.”).

Because we conclude that Ling’s trial counsel was not deficient for failing to object to the prosecutor’s remarks, we need not address the prejudice prong of the ineffective assistance claim. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (noting that in reviewing ineffective assistance claims, courts need not “address both components of the inquiry if the defendant makes an insufficient showing on one”). However, even if counsel’s failure to object did constitute deficient performance, the omission was not so serious as to deprive Ling of a fair trial. See id. at 687,104 S.Ct. 2052.

Accordingly, the order granting postcon-viction relief is REVERSED and we REMAND for reinstatement of Ling’s conviction. See, e.g., State v. Woodel, 145 So.3d 782, 807 (Fla. 2014) (plurality opinion).

B.L. THOMAS and WINSOR, JJ., CONCUR.

      . Ling v. State, 2014 WL 4101593, at *1 (Fla. 1st DCA 2014).

      . Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (“A convicted defendant's claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.”).


author: PER CURIAM.

text:
    Derrise HOWARD, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-0089
    District Court of Appeal of Florida, First District.
    Opinion filed March 10, 2017
    Derrise Howard, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the Court’s order dated January 10, 2017, and having determined the appeal is untimely, the appeal is hereby DISMISSED. The dismissal is without prejudice to appellant filing a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

ROBERTS, C. J., WINOKUR and M.K. THOMAS, JJ„ CONCUR.


text:
    M.J., a Child, Appellant, v. STATE of Florida, Appellee.
    CASE NOS. 1D16-2613, 1D16-2615, 1D16-2616, 1D16-2617 & 1D16-2618
    District Court of Appeal of Florida, First District.
    Opinion filed March 10, 2017

      Andy Thomas, Public Defender; Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Trisha Meggs Pate and Heather Flanagan Ross, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

In these consolidated cases, the juvenile appellant, M.J., argues that the trial court reversibly erred in deviating from the Department of Juvenile Justice’s recommendation without complying with the require-merits of E.A.R. v. State, 4 So.3d 614 (Fla. 2009). We agree and reverse.

In November 2015, after admitting to a violation of probation in four prior cases, M.J.’s probation was continued with a special condition that he successfully complete the AMI program. In March 2016, M.J. admitted to violating probation again, this time by not attending AMI. Upon the trial court’s directive, the Department prepared a pre-disposition report (PDR), which found M.J. was a “high risk” to reoffend, but stated the Department’s belief that M.J. had not had the proper services in place to facilitate his successful completion of probation. The Department continued to recommend probation as the least restrictive setting necessary to ensure public safety. The PDR further provided, “But in compliance with the Court’s expressed intention to commit the youth, and its demand for a restrictiveness level, the Department would offer minimum-risk as the most appropriate commitment alternative.”

At the disposition hearing, the State objected, arguing that M.J. had already violated probation for not attending AMI, rendering the Department’s recommendations futile. The State requested that M.J. be committed to a nonsecure residential level facility. See § 985.03(44), Fla. Stat. (2016) (defining the four restrictiveness levels of juvenile commitment). During the hearing, the trial court heard from M.J.’s probation officer that she had no reason to believe he would comply with probation and also heard that M.J. had not attended AMI because he was fearful of some people in the program.

The trial court found that probation was not appropriate. The trial court also found commitment to AMI was not appropriate based upon M.J.’s articulated fear. The trial court announced it would deviate from the Department’s recommendation, adjudicated M.J. delinquent in each case, and committed him to the Department under concurrent nonsecure residential placements. The State attempted to bolster the trial court’s ruling by stating for the record that the deviation was valid because the Department did not take into consideration the welfare of the community and the welfare of the child. The trial court agreed with this statement, and again stated that probation was “simply not an option” for M.J. and there was no reason to believe he was going to comply with the probation. The trial court did not enter a written order.

On appeal, M.J. argues that the trial court improperly deviated from the Department’s recommendation solely based on its disagreement and, in so doing, failed to comply with the requirements of E.A.R. This Court reviews the trial court’s decision for an abuse of discretion. See B.L.R. v. State, 74 So.3d 173, 175 (Fla. 1st DCA 2011). Whether the trial court exercised appropriate discretion depends on “(1) whether the trial court employed the proper legal standard as set forth in E.A.R. and (2) whether the court’s departure reasons are supported by the evidence.” Id. (citing E.A.R., 4 So.3d at 638-39). Whether the trial court employed the proper legal standard is reviewed de novo. Id.

Section 985.433, Florida Statutes (2016), governs the disposition hearing in delinquency proceedings. Under subsection (6), the first determination to be made is “the suitability or nonsuitability for adjudication and commitment of the child to the [Department.” § 985.433(6), Fla. Stat. (2016). This Court has recognized that subsection (6) gives wide discretion to the trial court in determining whether to commit a child to the Department and that the rigorous analysis in E.A.R. does not apply to this initial determination. J.B.S. v. State, 90 So.3d 961, 967 (Fla. 1st DCA 2012) (holding the E.A.R. analysis did not apply to the trial court’s initial determination made under section 985.433(6) to reject the Department’s recommendation of probation in favor of commitment); B.K.A. v. State, 122 So.3d 928, 930 (Fla. 1st DCA 2013) (“Probation is not a restrictiveness level because it is a limitation on the freedom of the child ⅛ lieu of commitment to the custody of the [Department.’ ”) (citing § 985.03(44), Fla. Stat.) (emphasis in original). Here, the trial court apparently advised the Department in advance that it intended to commit M.J. and requested an alternative commitment recommendation. Cf. B.K.A. v. State, 122 So.3d 928, 930 (Fla. 1st DCA 2013) (finding E.A.R. did not apply to the trial court’s initial decision to reject probation in favor of commitment, but error occurred when the trial court committed the juvenile before obtaining the Department’s recommendation as to the appropriate restrictiveness level); A.L.M. v. State, 176 So.3d 1025 (Fla. 1st DCA 2015) (affirming the disposition order that adjudicated the juvenile delinquent and found probation not appropriate, but reversing the trial court’s nonsecure placement and remanding to first get a recommendation of a restrictiveness level from the Department before committing the juvenile).

The trial court’s decision to deviate from the Department’s minimum-risk commitment recommendation is what triggers the application of the E.A.R. in this case. Under E.A.R., a trial court may not depart from the Department’s recommendation merely because it disagrees; instead, it must provide reasons that are supported by a preponderance of the evidence. 4 So.3d at 638. The standards the trial court must meet are as follows:

(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and
(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile-in the least restrictive setting-and maintaining the ability of the State to protect the public from further acts of delinquency.

Id. (emphasis in original).

The trial court’s stated reasons must provide a “legally sufficient foundation” for departing from the Department’s recommendation, which is accomplished “by identifying significant information that [the Department] has overlooked, failed to sufficiently consider, or misconstrued with regard to the child’s programmatic, rehabilitative needs along with the risks that the unrehabilitated child poses to the public.” Id These measures insure “fulfillment of the Legislature’s comprehensive scheme and its stated intent that the juvenile courts of this state exercise appropriate discretion with the ultimate aim of providing the juvenile offender the most appropriate dispositional services in the least restrictive available setting.” Id

Here, the trial court did not articulate an understanding of the respective characteristics of the different restrictiveness levels as required under E.A.R. Nor did it explain why the nonsecure residential level was better suited to serving both M. J.’s rehabilitative needs—in the least restrictive setting—and maintaining the ability of the State to protect the public from further acts of delinquency than the Department’s minimum-risk recommendation. While the trial court may have relied on its experience and personal knowledge to determine that a nonsecure residential program was more suitable, it did not provide a full reasoning and understanding on the record. Without such elucidation, this Court is not able to provide a meaningful review and determine whether the rigorous requirements of E.A.R. were complied with.

We agree with M.J. that this case is similar to B.L.R. in which the majority recognized that the trial court had a legally sufficient basis to deviate from the Department’s recommendation, but held the trial court’s failure to articulate its understanding of the restrictiveness levels and failure to explain why a maximum-risk facility was better suited to the juvenile’s needs and the safety of the public compelled reversal under E.A.R. 74 So. 3d at 176. Much like B.L.R., the trial court in this case did not articulate a sufficient basis for deviating from the Department’s recommendation of minimum-risk commitment. We disagree with the State’s argument that the trial court implicitly set out reasons for the deviation and relied on pieces of information that the Department overlooked. First, implicit reasoning does not satisfy the court’s duty under E.A.R. as the trial court’s reasoning must be placed on the record. See B.L.R., 74 So.3d at 176-77. Second, the information identified by the State primarily relates to M. J.’s suitability for probation and not why a nonsecure residential placement was more suitable than the Department’s minimum-risk recommendation. We also note the trial court’s general agreement with the State’s attempt to bolster its analysis for the record by using magic buzzwords does not meet the strict requirements under E.A.R. As stated by this Court in M.H. v. State,

[I]t is important for trial courts to understand that deviating from a [Department] recommendation is a difficult matter pursuant to the dictates of EAR. In order to deviate lawfully, a trial court must do more than place generalized reasons on the record; it must engage in a well-reasoned and complete analysis of the PDR and the type of facility to which the trial court intends to send the child. This is no easy task and will take time and consideration.

69 So.3d 325, 328 (Fla. 1st DCA 2011).

Accordingly, we reverse the trial court’s dispositions and remand for resentencing with instructions to either enter a disposition order that includes the requisite E.A.R. findings or, if such findings cannot be made, enter an order committing M.J. to a minimum-risk facility as recommended by the Department. See B.L.R., 74 So.3d at 177.

REVERSED and REMANDED.

ROBERTS, C.J., WOLF and B.L. THOMAS, JJ., CONCUR.


text:
    Charles KELLY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3020
    District Court of Appeal of Florida, First District.
    Opinion filed March 10, 2017
    Russell L. Healey, Judge.
    Charles Kelly, pro se, Appellant.

      Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Charles Kelly, appeals the trial court’s summary denial of his motion for postconviction relief brought pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without comment the denial of claims one through three that were raised in the section of his motion entitled “Arguments.” However, appellant also raised seven claims of ineffective assistance of counsel in a preceding section entitled “Supporting Facts.” The trial court’s order failed to address these claims. Appellant filed a motion for rehearing in which he made it clear that the items in his “Supporting Facts” section were, in fact, separate claims for relief. The trial court denied rehearing, did not address the additional claims, and did not allow appellant to amend his motion. We, therefore, reverse as to the ineffective assistance of counsel claims contained in the “Supporting Facts” section and remand for the trial court to consider them. See Purse v. State, 185 So.3d 627, 627 (Fla. 5th DCA 2016) (citing Gonzalez v. State, 829 So.2d 323, 324 (Fla. 2d DCA 2002)); Bridges v. State, 81 So.3d 616, 618 (Fla. 5th DCA 2012). If the trial court determines that these claims are facially insufficient, appellant should be given an opportunity to amend them pursuant to Spera v. State, 971 So.2d 754 (Fla. 2007).

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

WOLF, LEWIS, and WETHERELL, JJ., CONCUR.


text:
    Charles BRAXTON, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-3473
    District Court of Appeal of Florida, Second District.
    Opinion filed March 10, 2017
    Charles Braxton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Respondent.
   PER CURIAM.

Charles Braxton, Jr., appeals the order summarily denying his motion filed under Florida Rule of Criminal Procedure 3.850(b)(2), which provides an exception to the two-year time limit for newly established constitutional rights that have been held to apply retroactively. We reverse.

In 1987, a jury found Mr. Braxton guilty as charged of second-degree murder and of armed robbery. The trial court departed from the sentencing guidelines and imposed concurrent sentences of life imprisonment. In his postconviction motion, Mr. Braxton argued that because he was a juvenile at the time of the offenses, his life sentences are unconstitutional under Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 2475, 183 L.Ed.2d 407 (2012) (holding that a mandatory sentence of life in prison without parole for juvenile offenders violates the Eighth Amendment), and Graham v. Florida, 560 U.S. 48, 74, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (holding that the Eighth Amendment categorically forbids a mandatory sentence of life in prison without parole for a juvenile who commits a nonhomicide offense). Both of these cases apply retroactively. See Falcon v. State, 162 So.3d 954, 956 (Fla. 2015) (applying Miller); Kleppinger v. State, 81 So.3d 547, 550 (Fla. 2d DCA 2012) (applying Graham).

Relying on Starks v. State, 128 So.3d 91, 92 (Fla. 2d DCA 2013), quashed, 41 Fla. L. Weekly S372, 372 (August 22, 2016), the postconviction court denied relief. But while this appeal ivas pending, the supreme court disapproved Starks. See Landrum v. State, 192 So.3d 459, 470 (Fla. 2016) (holding that a discretionary life sentence imposed on a juvenile without consideration of how children are different is unconstitutional under Miller); see also Lawton v. State, 181 So.3d 452, 453 (Fla. 2015) (holding that Graham does not allow for an exception to the categorical rule against sentencing juvenile offenders to life imprisonment without parole for non-homicide offenses).

Accordingly, we reverse the postconviction court’s order denying Mr. Braxton’s rule 3.850 motion and remand for resen-tencing pursuant to chapter 14-220 as codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes (2014). See Henry v. State, 175 So.3d 675, 680 (Fla. 2015) (holding that resentencing pursuant to chapter 14-220 is the proper remedy for a sentence that violates Graham); Horsley v. State, 160 So.3d 393, 406 (Fla. 2015) (holding that resentencing pursuant to chapter 14-220 is the proper remedy for a sentence that violates Miller).

Reversed and remanded.

LaROSE, CRENSHAW, and SALARIO, JJ., Concur.


text:
    A.B., Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-657
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 14, 2017

      James S. Purdy, Public Defender, Wil-ber L. Cooke, II and Kathryn Rollison Radtke, Assistant Public Defenders, Day-tona Beach, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Caroline Johnson Levine, Assistant Attorney General, Tampa, for Respondent.
   PER CURIAM.

We grant AB.’s amended petition seeking emergency habeas corpus relief to obtain her immediate release from her present confinement at Halifax Health. The order of involuntary commitment issued by the lower court pursuant to section 394.467, Florida Statutes (2017), is improper because the evidence presented at the hearing did not establish, by clear and convincing evidence, that A.B. would suffer from neglect, or that she posed a danger to herself or others. See In re Lehrke, 12 So.3d 307, 308 (Fla. 2d DCA 2009). Accordingly, A.B. should be immediately discharged if she is still involuntarily committed.

PETITION GRANTED.

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


author: Gross, J.

text:
    Victor GUERRA, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D15-1235 and 4D15-1328
    District Court of Appeal of Florida, Fourth District.
    March 15, 2017
    Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING AND CLARIFICATION

Gross, J.

We grant the state’s motion for rehearing or clarification and withdraw the opinion issued February 8, 2017. We substitute the following.

We reverse appellant’s sentence of 45 years for solicitation to commit murder, armed home invasion robbery, and refusal to submit a DNA sample, because the trial judge erred in subjecting appellant to cross-examination during his allocution. We remand for resentencing before a different judge.

Appellant entered an open plea to the court. During the plea colloquy, the trial judge asked no questions concerning appellant’s codefendants. Appellant did not dispute the prosecutor’s description of the crime, which involved codefendants. The trial court accepted the plea, ordered a presentence investigation, and set a sentencing hearing for a later date.

Three months later, at the sentencing hearing, defense counsel asked that appellant be sworn in before his allocution. Appellant expressed his remorse and clarified some of the facts given by the prosecutor during his plea hearing, but did not discuss any codefendants. When appellant finished, the state was permitted to cross-examine him. Appellant’s multiple objections to the cross-examination were overruled. Both the state and the trial judge repeatedly asked appellant whether a co-defendant was present with him at the home invasion, but appellant refused to answer. On several occasions the judge voiced her exasperation, asking how appellant could seek the court’s mercy while refusing to confirm a codefendant’s involvement in the criminal conduct. Ultimately, the court sentenced appellant to 30 years for the robbery and 15 years for solicitation to commit murder, to run consecutively, followed by 10 years of probation.

Florida Rule of Criminal Procedure 3.720(b) requires the court to entertain submissions and evidence from the parties that are relevant to sentencing. In Jean-Baptiste v. State, we construed this rule to mean that “a criminal defendant prior to sentencing has the opportunity to make an unsworn statement to the sentencing judge in allocution,” not subject to cross-examination. 155 So.3d 1237, 1242 (Fla. 4th DCA 2015); see also Chillingworth v. State, 846 So.2d 674, 676 (Fla. 4th DCA 2003). The trial court erred by subjecting appellant to cross-examination. By the judge’s questioning of appellant and her expressed frustration at his unwillingness to answer these questions, it is apparent that the imposed sentence was based on improper considerations. See Norvil v. State, 191 So.3d 406, 409 (Fla. 2016); see also Allen v. State, 42 Fla. L. Weekly D125 (Fla. 4th DCA Jan. 4, 2017) (explaining that due process is violated where a defendant is forced to decide between remaining silent or making a potentially false statement at the court’s coercion, to receive a less harsh sentence). Thus, we reverse appellant’s sentence and remand for sentencing before a different judge.

Reversed and remanded.

Warner and May, JJ., concur.


text:
    Timothy WEINER, Appellant, v. DEPARTMENT OF REVENUE O/B/O Jesica M. SOINSKI, Appellee.
    Case No. 5D16-3414
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 17, 2017

      Timothy Weiner, New Port Richey, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellee.
   ON CONFESSION OF ERROR

PER CURIAM.

Pursuant to The Florida Department of Revenue’s Confession of Error, we reverse the Order on Objection to Driver’s License Suspension Report of the Child Support Hearing Officer, and remand this matter to the trial court for further proceedings.

REVERSED and REMANDED.

PALMER, ORFINGER and EDWARDS, JJ., concur.


text:
    Yves K. CARRIERE, Appellant, v. CHUNICK HOLDINGS, LLC and Charles A. Hayden, Appellees.
    Case No. 5D15-3808
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 17, 2017
    Nicholas A. Shannin, of The Shannin Law Firm, P.A., Orlando, and Eric H. Faddis, and Tiffany M. Faddis, of Faddis <& Faddis, P.A., Orlando, for Appellant.
    Daniel M. Schwarz, Robert A. Swift, and Scott A. Cole, of Cole Scott & Kissane, P.A., Miami, for Appellees.
   PER CURIAM.

After carefully considering the record on appeal and the arguments raised in the parties’ briefs, we conclude that the trial court properly granted directed verdicts in favor of Defendants/Appellees Chunick Holdings, LLC and Charles A. Hayden. We also find that there is no legal basis underlying a separate argument made by Appellant, Yves K. Carriere, that the trial court somehow erred by entering an agreed order that granted the parties’ stipulated motion to dismiss with prejudice Appellant’s vicarious liability claims. Accordingly, we affirm the partial final judgment entered in favor of the Appellees and against Appellant, which concluded the litigation between those parties. By a separate order, we will provisionally grant Ap-pellees’ motion for appellate attorney’s fees pursuant to section 768.79, Florida Statutes (2014), Florida Rule of Civil Procedure 1.442, and Florida Rule of Appellate Procedure 9.400(b).

AFFIRMED.

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


text:
    Orestes J. FERRER, Appellant, v. TRULY NOLEN OF AMERICA, INC. and Crawford & Company, Appellees.
    CASE NO. 1D14-5178
    District Court of Appeal of Florida, First District.
    Opinion filed March 20, 2017
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Janet M. Oreene of Janet M. Greene, P.A., Tampa, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Appellant challenges an order of the Judge of Compensation Claims (JCC) awarding a statutory guideline attorney’s fee as set forth in section 440.34(1), Florida Statutes (2010). On remand pursuant to Castellanos v. Next Door Co., 192 So.3d 431 (Fla. 2016), we affirm the attorney fee and cost order of October 8, 2014, on the basis of the JCC’s alternate ruling. Competent, substantial evidence exists to support the JCC’s alternative finding in support of the fee awarded. Appellant failed to satisfy his burden of proof regarding the requested attorney’s fees. Specifically, Appellant failed to introduce evidence delineating the attorneys within the subject law firm who worked the hours claimed in the Verified Petition for Attorney Fees and/or to establish the appropriate hourly rate for the attorney hours expended.

AFFIRMED.

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


text:
    Chairty Lane FURR, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D14-0308
    District Court of Appeal of Florida, First District.
    Opinion filed March 20, 2017.
    Andy Thomas, Public Defender-, and Mark V. Murray, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

We originally reversed the appellant’s conviction for manslaughter with a firearm based on this Court’s decision in Floyd v. State, 151 So.3d 452 (Fla. 1st DCA 2014) (Floyd I). Thereafter, the Florida Supreme Court quashed our opinion in Floyd I and remanded for reconsideration upon application of its decision in State v. Floyd, 186 So.3d 1013 (Fla. 2016) (Floyd II).

Applying Floyd II, we find that the jury instructions given in the instant case did not amount to fundamental error. Although we did not previously address it, we also reject the appellant’s claim of ineffective assistance of counsel. The appellant’s judgment and sentence is AFFIRMED.

ROBERTS, C.J., WOLF and LEWIS, JJ., CONCUR.


text:
    UNIVERSITY MEDICAL CLINICS, INC., Appellant, v. STATE of Florida, EX. REL., DEPARTMENT OF FINANCIAL SERVICES OF FLORIDA In re: The Receivership of Quality Health Plans, Inc., Appellees.
    CASE NO. 1D17-0258
    District Court of Appeal of Florida, First District.
    Opinion filed March 20, 2017.
    Richard H. Levenstein of Kramer, Sop-ko & Levenstein, P.A., Stuart, for Appellant.
    No appearance for Appellees.
   PER CURIAM.

The Court has determined that the Order on University Medical Clinics, Inc.’s Claim Objection as to Class Priority is not a final order. Accordingly, the appeal is dismissed. Because an indeterminate amount of judicial labor is required by the lower tribunal to determine the amount of appellant’s claim, the Court declines to stay the appellate proceeding as requested by appellant in its response to the Court’s February 20, 2017, order. See Demont v. Demont, 24 So.3d 699 (Fla. 1st DCA 2009).

B.L. THOMAS, BILBREY, and JAY, JJ., CONCUR.


author: PER CURIAM. WETHERELL, J.,

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Florence MONROE, Appellee.
    CASE NO. 1D16-1911
    District Court of Appeal of Florida, First District.
    Opinion filed March 23, 2017
    Charles F. Beall, Jr., of Moore, Hill & Westmoreland, P.A., Pensacola; Jason T. Burnette of Jones Day, Atlanta, GA, for Appellant.
    Paulo R. Lima, Juan P. Bauta, II, and Allan B. Kaiser of The Ferraro Law Firm, P.A., Miami, for Appellee.
   PER CURIAM.

AEFIRMED. R.J. Reynolds Tobacco Co. v. Marotta, 182 So.3d 829 (Fla. 4th DCA 2016), rev. granted, No. SC16-218, 2016 WL 934971 (Fla. Mar. 8, 2016).

BILBREY and JAY, JJ., CONCUR; WETHERELL, J., CONCURS IN PART AND DISSENTS IN PART WITH OPINION.

WETHERELL, J.,

concurring in part and dissenting in part.

I concur in the disposition of this appeal in all respects except for the affirmance of the order denying Appellant’s motion for remittitur of the $11 million noneconomic damages award. I would reverse that order and remand for a new trial on damages if the parties were unable to agree upon a reduced award that is in line with the awards in other Engle progeny cases involving plaintiffs with laryngeal cancer. See R.J. Reynolds Tobacco Co. v. Smith, 131 So.3d 18 (Fla. 1st DCA 2013) (Wetherell, J., specially concurring); R.J. Reynolds Tobacco Co. v. Townsend, 90 So.3d 307 (Fla. 1st DCA 2012) (Wetherell, J., concurring in part and dissenting in part).


text:
    Phillip Dewayne BURNS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-5195
    District Court of Appeal of Florida, First District.
    Opinion filed March 23, 2017.
    Diana L. Johnson of Johnson and Lufra-no, P.A., Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Tayo Popoola, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Phillip Burns challenges his judgment of conviction and sentences for attempted second degree murder and possession of a firearm by a convicted felon. We affirm the convictions without comment, but vacate his sentences because the trial court believed, given our prior precedent, that the sentences imposed pursuant to section 775.087(2), Florida Statutes, had to be consecutive sentences. As Burns discharged a firearm striking a single victim and as both offenses arose out of a single criminal episode, consecutive sentences were permissible but not required. See Williams v. State, 186 So.3d 989 (Fla. 2016), and Tate v. State, 194 So.3d 564 (Fla. 1st DCA 2016); but see Torres-Rios v. State, 205 So.3d 883 (Fla. 5th DCA 2016) (holding concurrent sentences are required under section 775.087(2) when there was only a single discharge of a firearm and only one person shot during a single criminal episode).

The judgment of conviction is AFFIRMED, but the sentences are VACATED and the cause is REMANDED for resentencing; we certify conflict with Torres-Rios.

B.L. THOMAS, OSTERHAUS, and BILBREY, JJ., CONCUR.


author: CRAIN, J. HOLDRIDGE, J.,

text:
    SUCCESSION OF George MATTHEWS
    NO. 2016 CA 0289 c/w 2016 CA 0290
    Court of Appeal of Louisiana, First Circuit.
    JANUARY 05, 2017
    Rehearing Denied February 7, 2017

      Ronald R. Johnson, Baton Rouge, Louisiana, Attorney for 1st Appellants, Luge-nia Matthews, et al.
    Yvette A. D’Aunoy, Rebecca S. Miller, New Orleans, Louisiana, Attorneys for 2nd Appellants, Sandra Wilson and Larry Johnson
    Edwin M. Shorty Jr., Nathan M. Chian-tella, New Orleans, Louisiana, Attorneys for 3rd Appellants, Heirs of Sarah “Minnie” Matthews
    Tregg C. Wilson, Baton Rouge, Louisiana, Attorney for Appellees, Lionel Matthews, et al.
    Alen J. Myles, Plaquemine, Louisiana, Attorney for Appellees, Earl Brown, et al.
    Roy J. Rodney Jr., John K. Etter, New Orleans, Louisiana, Attorneys for Appel-lees, Heirs of George Matthews, Verline Matthews Johnson, et al.
    Craig Stewart, Houma, Louisiana, Attorney for Appellee, Sarah Matthews Ruffin
    Samuel Markus, Houma, Louisiana, Attorney Ad Hoc for Appellees, Absentee Heirs
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

| gThis is an appeal of a judgment granting a summary judgment in this succession proceeding and dismissing the claims of certain alleged heirs. We affirm.

FACTS AND PROCEDURAL HISTORY

George Matthews Sr. (Matthews) died intestate in 1930, and his succession was judicially opened in 1932; however, no judgment of possession was rendered in that proceeding. In 1972, the combined successions of Matthews and Frances Taylor Matthews were judicially opened, and then consolidated with the 1932 proceeding. The petition in the 1972 proceeding asserted that Matthews and Frances Taylor were each married once, to each other, and that nine children were bom of their marriage. On May 8, 1972, a judgment of possession was rendered in the consolidated proceeding, recognizing descendants of the nine children named in the petition as the sole heirs and descendants of Matthews and Frances Taylor, and sending them into possession of the succession property.

In 2002, a petition to reopen the succession was filed by Horace Johnson, who alleged that he was a legal heir of Matthews, and that he had discovered that certain property had been omitted from the succession. It appears that the succession was reopened.. In 2003, individuals claiming to be legal heirs of Matthews and Frances Taylor,, who were not included in the succession proceeding initiated by Horace Johnson, filed a motion seeking to be recognized as Matthews’ heirs. A judgment was signed declaring them to be descendants of Matthews; however, that judgment was vacated shortly thereafter by a stipulated judgment that also granted a motion for new trial.

Thereafter, others claiming to be descendants of children fathered by Matthews outside of marriage, filed pleadings seeking to be recognized as heirs. In a prior opinion, this court held that those inheritance claims were barred by operation of peremption because no timely filiation action had been asserted. In re Succession of Matthews, 13-1325 (La.App. 1 Cir. 5/2/14), 145 So.3d 1039, 1042, writs denied, 14-1121 (La. 9/19/14), 148 So.3d 954 and 14-1148 (La. 9/19/14), 149 So.3d 243. Those alleged descendants then filed a petition for alimony pursuant to Aticle 919 of the Louisiana Civil Code of 1870, which the trial court denied.

Additionally, alleged descendants of Matthews’ siblings (the collateral heirs) filed pleadings asserting their own inheritance rights. They claim that a marriage license proves that Matthews married Elie Tailor, and that there was no valid marriage between Matthews and Frances Taylor. Thus, they contend that Matthews died without legitimate or legitimated children, and therefore, as collateral heirs, they are entitled to inherit the succession property. The collateral heirs assert that the 1972 judgment of possession is absolutely null due to “patent defects in the proceedings.”

The Succession Administrator, acting on behalf of the heirs placed into possession by the 1972 judgment, filed a motion for summary judgment seeking dismissal of the claims urged by the collateral heirs on the basis that their claims are barred by liberative prescription and are meritless, as Matthews acknowledged his marriage to Frances Taylor in a recorded act of mortgage. The collateral heirs opposed the motion, contending that Matthews’ alleged marriage to Frances Taylor was an absolute nullity because there is no evidence that Matthews divorced Elie Tailor. They further argued that their claims had not prescribed because the reopening of the succession by Horace Johnson and the subsequent judgment resulted in the commencement of a new prescriptive period. Also, noting that prescription does not run against an absolutely null judgment, they argued that the 1972 judgment of possession was an absolute nullity. The collateral heirs then filed a petition to nullify the judgment of possession based on the alleged invalidity of Matthews’ marriage to Frances Taylor. They also filed their own motions for summary judgment, seeking a declaration that George Matthews and Frances Taylor were not married, that the ^children of Frances Taylor were not legitimately filiated to Matthews, and that the descendants of Frances Taylor are not Matthews’ lawful heirs.

After a hearing on all of these matters, the trial court granted summary judgment in favor of the Succession Administrator, denied the cross-motions for summary judgment, and dismissed the claims asserted by the collateral heirs. In written reasons, the trial court explained that it found no genuine issue of material fact regarding Matthews’ marriage to Frances Taylor. Based on the evidence submitted, the trial court found that there could be no conclusion that Matthews was married to Frances Taylor and Elie Tailor at the same time as had been asserted;, therefore, the trial court rejected the collateral heirs’ claim that Matthews’ marriage to Elie Tailor was a legal impediment to a valid marriage to Frances Taylor.

The collateral heirs now appeal, contending that the trial court erred in granting the motion for summary judgment and dismissing their claims,

JURISDICTION

■ This court’s appellate jurisdiction extends to final judgments that determine the merits in whole or in part. La. Code Civ. Pro. arts. 1841 and 2083. A judgment that only partially determines the merits of an action is a partial judgment and is appealable only as authorized by Louisiana Code of Civil Procedure article 1915. Rhodes v. Lewis, 01-1989 (La. 5/14/02), 817 So.2d 64, 66. Appellate courts have a duty to examine their subject matter jurisdiction sua sponte, even if the litigants do not raise the issue. Tower Credit, Inc. v. Bradley, 15-1164 (La.App. 1 Cir. 4/15/16), 194 So.3d 62, 64. Accordingly, this court, ex proprio motu, issued a rule to show cause why this appeal | ^should not be dismissed as having been taken from a partial judgment that was not designated as final pursuant to Article 1915. The parties filed briefs contending that the judgment was not a partial judgment requiring designation. Nonetheless, the parties also submitted an amended judgment that is now designated as final, with which the record has been supplemented. After reviewing the amended judgment’s decretal' language, as well as the Article 1915 designation, we maintain the appeal.

DISCUSSION

A motion for summary judgment shall be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966 B(2). The summary judgment procedure is favored and is designed, to secure the just, speedy, and inexpensive' determination of every action. See La. Code Civ. Pro. art. 966 A(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is, appropriate. Reynolds v. Bordelon, 14-2371 (La. 6/30/15), 172 So.3d 607, 610.

The burden of proof is on the mover. See La. Code Civ. Pro. art. 966 C(2). However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover’s burden does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support. for one |fior more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled, to summary judgment as a matter of law. La. Code Civ. Pro. art, 966 C(2); Temple v. Morgan, 15-1159 (La.App. 1 Cir. 6/3/16), 196 So.3d 71, 76.

A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that- time. La. Code Civ. Pro. Art. 966F(1). The Succession Administrator’s motion for summary judgment set forth the issues of prescription and the validity of Matthews’ marriage to Frances Taylor. The trial court’s written reasons reflect that the trial court rendered its judgment based on the validity of the marriage issue. Nonetheless, since summary judgments are reviewed on appeal de novo, all issues raised in the motion are subject to appellate review. See Robertson v. Doug Ashy Bldg. Materials, Inc., 14-0141 (La.App. 1 Cir. 12/23/14), 168 So.3d 556, 583 n.29, writ denied, 15-0365 (La. 4/24/15), 169 So.3d 364. Accordingly, the issue of prescription is properly considered in this appeal.

The law in effect at the time of the decedent’s death controls the substantive rights of inheritance in and to the succession property. In re Succession of Beard, 13-1717 (La.App. 1 Cir. 6/6/14), 147 So.3d 753, 762; Breaux v. Cozy Cottages, LLC, 14-486 (La.App. 3 Cir. 11/12/14), 151 So.3d 183, 188; see also La. Civ. Code art. 870B (providing, in pertinent part, that intestate succession rights are governed by the law in effect on the date of the decedent’s death). At the time of Matthews’ 17death in 1930, Louisiana Civil Code article 1030 (1870) provided “The faculty of accepting or renouncing a succession becomes barred by the lapse of time required for the longest prescription of the rights to immovables.” That time period was thirty years. La Civ. Code art. 3548 (1870) (“All actions for immovable property, or for an entire estate, as a succession, are prescribed by thirty years.”); Succession of Lapene, 233 La. 129, 96 So.2d 321, 326 (La. 1957). The prescriptive period began at the time of the decedent’s death. See Sun Oil Co. v. Tarver, 219 La. 103, 52 So.2d 437, 439 (1951); Breaux, 151 So.3d at 188; Kinney v. Waddell, 171 So.2d 782, 788 (La.App. 3 Cir. 1965).

Matthews died in 1930. More than seventy years lapsed before the collateral heirs asserted their inheritance claims. Therefore, on its face, the record supports the Succession Administrator’s plea of prescription. On the motion for summary judgment, the burden then shifted to the collateral heirs to establish an interruption or suspension of the prescriptive period. See La. Code Civ. Pro. Art. 966C(2); Sun Oil Co., 52 So.2d at 440.

The collateral heirs have asserted that the heirs who were put into possession by the 1972 judgment of possession committed fraud or ill practices by filing pleadings asserting a valid marriage between Matthews and Frances Taylor. The supreme court recognized the possibility of fraud preventing the running of the prescriptive period established by Article 1030 (1870), if the fraud was of such a nature that those pleading prescription or their ancestors in title had committed some fraudulent act that effectively prevented the claimants from timely asserting their | slights. See Smith v. Tyson, 193 La. 571, 192 So. 61, 63 (1939); Kinney, 171 So.2d at 787. Although the collateral heirs contend that the court was supplied fraudulent information on which it relied in rendering the 1972 judgment of possession, the collateral heirs have not alleged that the heirs placed into possession committed any fraudulent acts that prevented their ancestors from asserting their rights to the succession. Compare Kinney, 171 So.2d at 787. More importantly, the allegedly fraudulent pleadings were filed more than thirty years after Matthews’ death, and therefore, after the prescriptive period for assertion of the collateral heirs’ claims had passed.

The collateral heirs have further claimed that the reopening of the succession proceedings by Horace Johnson in 2002 resulted in a new thirty-year prescriptive period for their inheritance claims, citing current Louisiana Code of Civil Procedure article 3393, which provides that the procedure for an original administration shall apply to the administration of a reopened succession. This argument is without merit. At the time of Matthews’ death, Article 3393 was not in effect, although the reopening of a succession was permitted. See Succession of Quaglino, 223 La. 171, 65 So.2d 127, 129 (1953). In any event, the collateral heirs have cited no authority holding that the reopening of a succession amounts to a renunciation of prescription already accrued. The reopening of the succession did not operate to revive their prescribed claims.

Another argument advanced by the collateral heirs is that the 1972 judgment of possession is an absolute nullity, against which prescription does not run. See La. Code Civ. Pro. art. 2002; Smith v. LeBlanc, 06-0041 (La.App. 1 Cir. 8/15/07), 966 So.2d 66, 71. However, the validity of the 1972 judgment of possession has no 13bearing on the timeliness of the collateral heirs’ rights to assert their inheritance claims. This argument is also without merit.

Finally, it has been argued that the thirty-year prescriptive period is inapplicable to the collateral heirs’ claims because of well-settled law that coheirs do not, as a general rule, acquire or lose by prescription against each other. See In re Succession of Helms, 15-0851, 2015 WL 9436168 (La.App. 1 Cir. 12/23/15). Here, however, the collateral heirs and those placed into possession by the 1972 judgment of possession are not “co-heirs” or “co-owners” of the succession property. This is clear from the collateral heirs’ own pleadings, in which they assert that those placed into possession by the 1972 judgment of possession are not legitimate heirs who were entitled to inherit, and that the entirety of the succession should have passed to Matthews’ siblings, i.e., the collateral heirs. This argument is without merit.

The record establishes on its face that the collateral heirs are barred by the thirty-year prescriptive period of Article 1030 (1870) from asserting their inheritance claims. The collateral heirs have not shown any suspension or interruption of the prescriptive period, or renunciation of the accrued prescription. The Succession Administrator was entitled to summary judgment dismissing the collateral heirs’ claims. Consequently, we do not consider the parties’ arguments regarding the validity of Matthews’ marriage to Frances Taylor.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed equally to the appellants.

APPEAL MAINTAINED; JUDGMENT AFFIRMED.

Holdridge, J., dissents and assigns reason

HOLDRIDGE, J.,

dissenting.

hi respectfully dissent. I do not believe that the Succession Administi-ator carried his burden of proving that the claims of the collateral heirs were prescribed. Moreover, genuine issues of material fact exist regarding the validity of the marriage between George Matthews Sr. and Frances Taylor Matthews. Therefore, I would reverse the trial court’s judgment granting the motion for summary judgment and remand the matter to the trial court.

      . As part of this appeal, the descendants of the children allegedly fathered by Matthews outside of marriage have filed a brief challenging the trial court’s denial of their petition for alimony, which ruling was made in the same judgment granting the summary judgment being appealed by the collateral heirs. In order to obtain a beneficial modification of the trial court’s judgment, a party must either appeal independently or answer another party’s appeal. See La. Code Civ. Pro. art. 2133; In re Succession of Seal, 15-0855 (La.App. 1 Cir. 12/23/15), 185 So.3d 791, 793 n.2. Since the alleged descendants complaining of the denial of their petition for alimony have neither answered the appeal nor filed their own separate appeal, we consider their brief only as one filed by an appellee, and do not address the assignments of error raised therein.

      . Louisiana Code of Civil Procedure article 966 was amended and reenacted by Acts 2015, No. 422, § 1, with an effective date of January 1, 2016. The amended version of Article 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the Act; therefore, we refer to the former version of the article in this case. See Acts 2015, No. 422, §§ 2 and 3,

      . This provision in Article 870 was enacted by La. Acts 2001, No. 560, which provides that "this Act shall not apply to successions which have been judicially opened prior to the enactment of this Act.” La. Acts 2001, No. 560, § 3. Although the succession in this case was judicially opened before the effective date of the act, this particular provision in Article 870 is nevertheless consistent with the jurisprudence that mandates that the law in effect on the date of the decedent’s death controls the substantive rights of inheritance in and to the succession property. In re Succession of Beard, 147 So.3d at 762 n.8.

      . Currently, Louisiana Civil Code article 3502 provides that "An action-for the recognition of a right of inheritance and recovery of the whole or a part of a succession is subject to a liberative prescription of thirty years. This prescription commences to run from the day of the opening of the succession.” Comment (d) of the Official Revision Comments to Article 3502, which is not law, but is helpful in determining legislative intent, references Article 934 of the Louisiana Civil Code of 1870 for determining the day of "opening of the succession.” See Central Properties v. Fairway Gardenhomes, LLC, 16-0111 (La.App. 1 Cir. 9/16/16), 204 So.3d 240, 252-53 (2016 WL 4956713). Article 934 (1870) provided "The succession, either testamentary or legal, or irregular, becomes open by death or by presumption of death caused by long absence, in the cases established by law.”

      . Our analysis here is limited to the claims asserted by the collateral heirs, which were dismissed by the summary judgment before us in this appeal. The propriety of other judgments or claims in this proceeding are not before us and are not considered herein.