source: Caselaw Access Project

author: QUINCE, J.

license: Public Domain

text:
    FLORIDA DEPARTMENT OF REVENUE, et al., Appellants, v. DIRECTV, INC., etc., et al., Appellees.
    No. SC15-1249
    Supreme Court of Florida.
    [April 13, 2017]

      Pamela Jo Bondi, Attorney General, J. Clifton Cox, Special Counsel, and Rachel Nordby and Jonathan L. Williams, Deputy Solicitors General, Tallahassee, Florida, for Appellant Florida Department of Revenue
    Eric S. Tresh, Amelia Toy Rudolph, and Zachary T. Atkins of Eversheds Sutherland (US) LLP, Atlanta, Georgia; David A. Konuch, Tallahassee, Florida; and Walter Hellerstein, Athens, Georgia, for Appellant Florida Cable Telecommunications Association, Inc.

      Katherine E. Giddings and Kristen M. Fiore of Akerman LLP, Tallahassee, Florida; Peter 0. Larsen and Timothy J. McDermott of Akerman LLP, Jacksonville, Florida; E. Joshua Rosenkranz, Jeremy N. Kudon, and Nicholas G. Green of Orrick, Herrington & Sutcliffe LLP, New York, New York; and Eric A. Shumsky of Orrick, Herrington & Sutcliffe LLP, Washington, District of Columbia, for Ap-pellees
    Gigi Rollini of Messer Caparello, P.A., Tallahassee, Florida, for Amicus Curiae Public Knowledge
    John S. Mills, Courtney R. Brewer, and Andrew D. Manko of The Mills Firm, P.A., Tallahassee, Florida, for Amicus Curiae Satellite Broadcasting and Communications Association
    John A. Hinman of Hinman Carmichael LLP, San Francisco, California; and Christine Davis Graves of Carlton Fields Jorden Burt, P.A., Tallahassee, Florida, for Amicus Curiae National Association of Wine Retailers
   QUINCE, J.

This case is before the Court on appeal from the decision of the First District Court of Appeal in DIRECTV, Inc. v. State, Department of Revenue, 218 So.3d 895, 2015 WL 3622354 (Fla. 1st DCA June 11, 2015), where the district court expressly declared a state statute invalid. We have jurisdiction to review the decision. See art. V, § 3(b)(1), Fla. Const. Because we find that the statute involved does not violate the dormant Commerce Clause, we reverse the decision of the First District.

FACTS AND PROCEDURAL HISTORY

In 2005, DIRECTV, Inc. and Echostar, L.L.C. (the satellite companies) filed suit in the trial court, “seeking a declaratory judgment holding the sales tax provision in the [Communications Services Tax] unconstitutional, a permanent injunction against the enforcement of the provision, and a refund of the taxes paid pursuant to the provision.” DIRECTV, Inc., 218 So.3d 895. Enacted in 2001, the Communications Services Tax (CST) imposed a 6.8 percent tax rate on cable service and a 10.8 percent tax rate on satellite service. § 202.12(1), Fla. Stat. (2005). Presently, cable service is taxed at 4.92 percent and satellite is taxed at 9.07 percent. § 202.12(1), Fla. Stat. (2015). It is this difference, according to the satellite companies, that violates the dormant Commerce Clause. The trial court disagreed, and “[i]n ruling on cross-motions for summary judgment,” found that section 202.12(1), Florida Statutes, does not violate the Commerce Clause “because it does not benefit in-state economic interests or similarly situated entities.” Id.

The satellite companies appealed the decision to the First District, arguing that the statute unconstitutionally discriminates against interstate commerce in both its effect and purpose. Id. The First District agreed with the satellite companies and reversed the decision of the trial court. Id. at D1378-79, — So.3d at-. The district court noted that satellite companies and cable companies were similarly situated because they both “operate in the same market and are direct competitors within that market.” Id. at D1376, — So.3d at-. Moreover, the district court found cable companies to be in-state interests due to their local infrastructure and local employment. Id. at D1377, — So.3d at-. The district court held that “because the CST favors communications that use local infrastructure, it has a discriminatory effect on interstate commerce.” Id. However, the court did not find that the statute was discriminatory in its purpose. Id. at D1378-79, — So.3d at-.

Now before this Court, Appellants Florida Department of Revenue and the Florida Cable Telecommunications Association, Inc. (FCTA) argue that section 202.12(1) of the CST does not discriminate in its effect or its purpose and the satellite companies are not entitled to a refund for the taxes paid. This Court reviews decisions evaluating a statute’s constitutionality de novo. Fla. Dept. of Revenue v. City of Gainesville, 918 So.2d 250, 256 (Fla. 2005). All statutes come “clothed in a presumption of constitutionality,” and this Court will invalidate a statute only if a challenger has shown its invalidity “beyond reasonable doubt.” Crist v. Fla. Ass’n of Criminal Def. Lawyers, Inc., 978 So.2d 134, 139 (Fla. 2008).

ANALYSIS

The statute at issue in this case, section 202.12(1) of the Communications Services Tax Simplification Law, states in relevant part:

The Legislature finds that every person who engages in the business of selling communications services at retail in this state is exercising a taxable privilege. It is the intent of the Legislature that the tax imposed by chapter 203 be administered as provided in this chapter.
(1) For the exercise of such privilege, a tax is levied on each taxable transaction, and the tax is due and payable as follows:
(a) Except as otherwise provided in this subsection, at a rate of 6.8 percent applied to the sales price of the communications service which:
1. Originates and terminates in this state, or
2. Originates or terminates in this state and is charged to a service address in this state,
when sold at retail, computed on each taxable sale for the purpose of remitting the tax due. ...
(c) At the rate of 10.8 percent on the retail sales price of any direct-to-home satellite service received in this state.

§ 202.12(1), Fla. Stat. (2005). The satellite companies contend that section 202.12(1) is facially unconstitutional. They argue that the text of the statute shows it was enacted with a discriminatory purpose and has a discriminatory effect, which violates the dormant Commerce Clause. “A facial challenge to a legislative Act is ... the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exist under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).

Commerce Clause

The Commerce Clause authorizes Congress to “regulate Commerce with foreign Nations, and among the several States.” Article I, § 8, cl. 3, U.S. Const. The Supreme Court recognizes, in addition to the text’s affirmative grant of authority, a further, negative command, known as the dormant Commerce Clause. This clause prohibits certain state taxation even when Congress has failed to legislate on the subject. Okla. Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 179, 115 S.Ct. 1331, 131 L.Ed.2d 261 (1995). A state tax is permissible under the dormant Commerce Clause only if it “[1] is applied to an activity with a substantial nexus with the taxing State, [2] is fairly apportioned, [3] does not discriminate against interstate commerce, and [4] is fairly related to the services provided by the State.” Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 97 S.Ct. 1076, 61 L.Ed.2d 326 (1977). The satellite companies’ challenge to the CST is limited to the third prong, namely the prohibition on discrimination against interstate commerce.

“[Statutes that openly discriminate against out-of-state economic interests in order to protect in-state interests are subject to a per se rule of invalidity.” Simmons v. State, 944 So.2d 317, 330 (Fla. 2006). A statute can discriminate against out-of-state interests in one of three ways: (1) it may be facially discriminatory; (2) it may discriminate in its practical effect; or (3) it may have a discriminatory intent. Amerada Hess Corp. v. Dir., Div. of Taxation, 490 U.S. 66, 75, 109 S.Ct. 1617, 104 L.Ed.2d 58 (1989). In this case, the satellite companies argue that the sales tax portion of the CST discriminates in its effect and purpose.

I. Discriminatory Effect

A state law is discriminatory in effect if it affects similarly situated entities in a market by imposing disproportionate burdens on out-of-state interests and conferring advantages upon in-state interests. Or. Waste Sys., Inc. v. Dep’t of Envtl. Quality, 511 U.S. 93, 99, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994). Appellants argue Appellees’ discriminatory effect argument fails at the threshold level. According to Appellants, this Court does not need to examine whether the tax imposes disproportionate burdens because satellite and cable companies are not similarly situated.

Substantially Similar Entities

Appellant Department of Revenue argues that cable companies and satellite companies are not similarly situated entities. “[A]ny notion of discrimination assumes a. comparison of substantially similar entities.” Gen. Motors Corp. v. Tracy, 519 U.S. 278, 298, 117 S.Ct. 811, 136 L.Ed.2d 761 (1997) (footnote omitted). If the differences between the two companies render the entities not substantially similar, the Commerce Clause is not implicated. See id. Appellant contends that cable and satellite providers offer different communications services using different technologies and are subject to different regulatory burdens. In response, Appel-lees argue that cable and satellite providers compete directly and offer virtually identical products, and consumers view their products as similar and substitutable.

What is required for entities to be considered “substantially similar” has not been extensively considered by the courts. See Gen. Motors Corp., 519 U.S. at 299, 117 S.Ct. 811 (“[The] central assumption [of substantially similar entities] has more often than not itself remained dormant in this Court’s opinions on state discrimination subject to review under the dormant Commerce Clause .... ”). It appears that at the very least, the entities must be in competition with one another. “[I]n the absence of actual or prospective competition between the supposedly favored and disfavored entities in a single market there can be no local preference ... to which the dormant Commerce Clause may apply.” Id. at 300, 117 S.Ct. 811; see also Alaska v. Arctic Maid, 366 U.S. 199, 204, 81 S.Ct. 929, 6 L.Ed.2d 227 (1961) (refusing to compare freezer-ship owners and local fish processors because “[t]he freezer ships do not compete with those who freeze fish for the retail market”).

We find that cable and satellite providers are similarly situated because they both provide television service and compete directly in the pay-television market for the same customers. Appellant. notes that cable offers Internet and phone service and satellite does not. While true, both satellite and cable offer television programming and compete for customers in that market. Appellees’ expert offered uncontroverted testimony that cable and satellite TV “are economic substitutes,” such that an increase in the cost of one “will cause consumers, on net, to shift” to the other—i.e., that consumers see the services as fungible. Moreover, Appellant FCTA’s president acknowledged in depositions that satellite is cable’s direct competitor, “an alternative provider of multichannel video and another means for customers to get that particular product.”

Appellant also states that cable is heavily regulated by the federal government and satellite is not. However, one may argue that because cable predates satellite by decades, Congress may have decided to limit federal regulation on what was a burgeoning industry in order to allow it to compete with cable. See, e.g., DISH Network Corp. v. F.C.C., 653 F.3d 771, 774 (9th Cir. Ct. 2011) (noting Congress passed the Satellite Home Viewer Improvement Act of 1999 “to better enable competition between satellite TV and cable TV”). The Florida Legislature also appears to view cable and satellite as competitors. In enacting the CST, the Legislature declared that it wanted to provide a “uniform method for taxing communications services sold in the state” in order to “free consumers to choose a provider based on tax-neutral considerations” and “spur[j new competition by simplifying an extremely complicated state and local tax and fee system.” § 202.105(1), Fla. Stat. (2001).

Although Appellant argues that cable and satellite are not similarly situated because cable offers services that satellite does not and cable is regulated more heavily, they both compete in the same market for the same customers. Accordingly, we consider satellite and cable to be similarly situated for the purpose of the dormant Commerce Clause.

In-State Interests

Appellants Department of Revenue and FCTA both argue that cable is not an in-state interest. The Supreme Court has identified “in-state” and “out-of-state” businesses based on a distinct geographic connection, or lack thereof, to the home state. See American Trucking Ass’ns v. Scheiner, 483 U.S. 266, 286, 107 S.Ct. 2829, 97 L.Ed.2d 226 (1987) (“[A] state tax that favors in-state business over out-of-state business for no other reason than the location of its business is prohibited by the Commerce Clause.”); see also Lewis v. BT Inv. Managers, Inc., 447 U.S. 27, 28, 100 S.Ct. 2009, 64 L.Ed.2d 702 (1980) (striking down a Florida statute prohibiting banks “with principal operations outside Florida” from operating investment subsidiaries or giving investment advice within the state). Appellants argue that cable and satellite companies are both out-of-state interests because they each have corporate headquarters and principal places of business located outside of Florida. Additionally, they each have employees and property in Florida and elsewhere that facilitate the provision of their services to customers. Appellees counter that cable companies are in-state interests because they employ more Florida residents and utilize local infrastructure to produce and distribute their programming.

Cable companies are not in-state interests for the purpose of the dormant Commerce Clause. Instead, we find that both businesses are interstate in nature. Florida’s largest cable companies, Comcast Corporation, Coxcom, Inc., Cox Communications Gulf Coast, LLC, and Bright House Networks, LLC, have their headquarters in Pennsylvania, Georgia, Georgia, and New York, respectively. Florida’s largest satellite provider, DIRECTV, has its headquarters in California. Florida’s second largest satellite provider, DISH, has its headquarters in Colorado. The cable and satellite companies have employees and property both inside and outside of Florida to facilitate their operations and earn income. They both employ Florida residents to sell, maintain, or repair their service to Florida customers. They also own and lease a significant amount of property in Florida.

Neither cable nor satellite “produce” anything in Florida. Instead, they are service providers that acquire video content from national and regional networks and local broadcasters and distribute that video content to their customers in Florida. To do this, they both employ the use of ground infrastructure. Cable uses head-ends to aggregate video content from the national and regional networks and process it for further downstream transmission to Florida customers. Satellite uses local collection facilities to receive off-air video content from local broadcast stations, encode the content, and prepare it for long-haul transmission back to their satellite uplink facilities outside of Florida. This local off-air video content is then transmitted over ground, using leased capacity on fiber or coaxial networks owned by telecommunications companies in Florida.

Cable is not a local, in-state interest any more than satellite. While it may be true that cable employs more Florida residents and uses more local infrastructure to provide its services, the Supreme Court has never found a company to be an instate interest because it had a greater presence in a state. Instead, the Supreme Court has affirmed the prerogative of state and local governments to treat different business models differently. See Amerada Hess, 490 U.S. 66, 109 S.Ct. 1617, 104 L.Ed.2d 58; Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981); Exxon Corp. v. Governor of Md., 437 U.S. 117, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978). According to these cases, a state may treat “two categories of companies” differently so long as the discrimination is based on “differences between the nature of their businesses” and not “the location of their activities.” Amerada Hess, 490 U.S. at 78, 109 S.Ct. 1617. Here, the difference between cable and satellite is not that one is located or primarily operates “instate” and the other “out-of-state.” Instead, it is that their different business models have a different impact on local communities. While cable’s business model requires the employment of more people and the use of more infrastructure, it is not a local business. Neither cable nor satellite is produced in Florida, and neither business is headquartered in the state.

For these reasons, we do not consider cable an in-state interest for the purpose of the dormant Commerce Clause. Because we find that cable is not an instate interest, the satellite companies’ discriminatory effect argument fails. To date, every state and federal court considering Commerce Clause challenges brought by the satellite industry arguing against state tax measures as favoring the cable industry has held that these taxes do not violate the dormant Commerce Clause. They have found either that cable and satellite are not similarly situated or that cable is not an in-state interest, We agree with those decisions that find cable is not an in-state interest.

II. Discriminatory Purpose

A state law may also violate the dormant Commerce Clause if it has a discriminatory purpose. See Hunt v. Wash. State Apple Advertising Comm’n, 432 U.S. 333, 352-53, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). To determine discriminatory purpose, courts look to the language and the legislative history of the statute in question. See Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 270-72, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984). Appellees argue that affidavits from lobbyists and two former legislators, which stated that the cable lobbyists sought a differential tax rate for cable and satellite because satellite was beginning to take over market share, demonstrate that the Legislature acted with a discriminatory purpose. Moreover, they claim that the Supreme Court has made clear that courts can and must consult a broad range of evidence— including statements by proponents and sponsors of suspect legislation—to unmask the true purpose for an alleged discriminatory enactment.

A general rule of statutory construction is that “legislative intent is determined from the statute’s text.” Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 198 (Fla. 2007). In this case, section 202.105, Florida Statutes, provides the legislative intent of the CST:

(1) It is declared to be a specific legislative finding that the creation of this chapter fulfills important state interests by reforming the tax laws to provide a fair, efficient, and uniform method for taxing communications services sold in this state. This chapter is essential to the continued economic vitality of this increasingly important industry because it restructures state and local taxes and fees to account for the impact of federal legislation, industry deregulation, and the convergence of service offerings that is now taking place among providers. This chapter promotes the increased competition that accompanies deregulation by embracing a competitively neutral tax policy that will free consumers to choose a provider based on tax-neutral considerations. This chapter further spurs new competition by simplifying an extremely complicated state and local tax and fee system. Simplification will lower the cost of collecting taxes and fees, increase service availability, and place downward pressure on price. New-found administrative efficiency is demonstrated by a reduction in the number of returns that a provider must file each month. By restructuring separate taxes and fees into a revenue-neutral communications services tax centrally administered by the department, this chapter will ensure that the growth of the industry is unimpaired by excessive governmental regulation. The tax imposed pursuant to this chapter is a replacement for taxes and fees previously imposed and is not a new tax. The taxes imposed and administered pursuant to this chapter are of general application and are imposed in a uniform, consistent, and nondiscriminatory manner.

§ 202.105, Fla. Stat. (2001). There is no evidence from the text of the statute that it was enacted with a discriminatory purpose. As noted by the First District, an examination of the 2000 Senate and House Journals reveals that there was no intent to favor cable companies. DIRECTV, Inc., 40 Fla. L. Weekly at D1378, — So.3d at -. Moreover, the 2000 Senate Staff Analysis and Economic Impact Statement shows that analysts believed the CST’s impact would have the benefit of a simplified tax structure for all communication providers. Id.

Appellees argue that courts can and must consider other forms of evidence, such as the affidavits presented in this case. However, the Supreme Court has held that legislative history is far more problematic when sources outside of the Legislature are consulted, or when courts “speculate upon the significance of the fact that a certain interest group sponsored or opposed particular legislation.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 120, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001); see also Kelly v. Robinson, 479 U.S. 36, 51 n.13, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986) (“[N]one of those statements was made by a Member of Congress, nor were they included in the official Senate and House Reports. We decline to accord any significance to those statements.”).

Therefore, we do not find that the CST was enacted with a discriminatory purpose. Because the CST is not discriminatory in either its purpose or effect, the satellite companies’ facial challenge fails. Consequently, Appellees are not entitled to a refund of the taxes paid pursuant to the statute.

CONCLUSION

For the reasons set forth above, we reverse the First District’s decision holding that the statute is invalid. Section 202.12(1) is not discriminatory in either its purpose or its effect and therefore does not violate the dormant Commerce Clause.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and CANADY, JJ., concur.

POLSTON, J., concurs in result.

LAWSON, J., did not participate.

      . DIRECTV, Inc. v. Treesh, 487 F.3d 471, 480 (6th Cir. 2007) (finding that cable and satellite "are distinct, consisting of two very different means of delivering broadcasts”); DIRECTV, LLC v. Dep't of Revenue, 470 Mass. 647, 25 N.E.3d 258, 266-71 (2015) (concluding that cable and satellite are not substantially similar for Commerce Clause puiposes); DIRECTV, Inc. v. Roberts, 477 S.W.3d 293, 307 (Tenn. Ct. App. 2015) (determining that cable and satellite providers are not "substantially similar entities for purposes of the Commerce Clause”).

      . DIRECTV, Inc. v. State, 178 N.C.App. 659, 632 S.E.2d 543, 548 (2006) (holding that cable providers are not "local” as compared to satellite providers); DIRECTV Inc. v. Levin, 128 Ohio St.3d 68, 941 N.E.2d 1187, 1196 (2010) (explaining that "the cable industry is not a local interest benefited at the expense of out-of-state competitors”), cert. denied, DIRECTV Inc. v. Testa, 567 U.S. 934, 133 S.Ct. 51, 183 L.Ed.2d 675 (2012); DIRECTV v. Utah State Tax Comm'n, 364 P.3d 1036, 1046-47 (Utah 2015) (finding that cable providers are not "in-state” and satellite providers are not "out-of-state” for Commerce Clause purposes).


author: LABARGA, C.J. PARIENTE, J.,

text:
    Brenton MCNEIL, Petitioner, v. STATE of Florida, Respondent.
    No. SC15-979
    Supreme Court of Florida.
    [April 13, 2017]

      Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Wesley Heidt, Bureau Chief, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, Florida, for Respondent
   LABARGA, C.J.

This case is before the Court for review of the decision of the Fifth District Court of Appeal in McNeil v. State, 162 So.3d 274 (Fla. 5th DCA 2015). In a separate opinion, the district court, on a motion to certify the question, certified the following question as one of great public importance:

ARE THE COSTS IMPOSED PURSUANT TO SECTIONS 938.085, 938.08, AND 938.10, FLORIDA STATUTES (2006), ASSESSED “PER CASE” OR “PER COUNT”?

McNeil v. State, 163 So.3d 661 (Fla. 5th DCA 2015). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we answer the certified question by holding that sections 938.08, 938.085, and 938.10(1), Florida Statutes (2006), call for imposition of costs on a per count basis and approve the decision in McNeil, 162 So.3d 274.

FACTS AND PROCEDURAL BACKGROUND

The district court explained the underlying facts as follows:

Brenton McNeil pled nolo contendere to three counts of sexual battery of a child under the age of twelve by a person under the age of eighteen in violation of section 794.011(2), Florida Statutes (2006), which requires costs to be imposed under sections 938.08, 938.085, and 938.10; and one count of lewd or lascivious molestation in violation of section 800.04(5), Florida Statutes (2006), which requires costs to be imposed under section 938.10. The court imposed costs for each of the four convictions, resulting in costs of $603 pursuant to section 938.08, $453 pursuant to section 938.085, and $404 pursuant to section 938.10(1).

Id. at 275. The trial court imposed costs according to the following 2006 statutes:

938.08 Additional cost to fund programs in domestic violence.—In addition to any sanction imposed for a violation of ... s. 794.011, or for any offense of domestic violence described in s. 741.28, the court shall impose a surcharge of $201. Payment of the surcharge shall be a condition of probation, community control, or any other court-ordered supervision....
938.085 Additional cost to fund rape crisis centers.—In addition to any sanction imposed when a person pleads guilty or nolo contendere to, or is found guilty of, regardless of adjudication, a violation of s. 784.011, s. 784.021, s. 784.03, s. 784.041, s. 784.045, s. 784.048, s. 784.07, s. 784.08, s. 784.081, s. 784.082, s. 784.083, s. 784.085, or s. 794.011, the court shall impose a surcharge of $151. Payment of the surcharge shall be a condition of probation, community control, or any other court-ordered supervision ....
938.10 Additional court cost imposed in cases of certain crimes against minors.—
(1) If a person pleads guilty or nolo contendere to, or is found guilty of, regardless of adjudication, any offense against a minor in violation of s. 784.085, chapter 787, chapter 794, s. 796.03, s. 800.04, chapter 827, s. 847.0145, or s. 985.701, the court shall impose a court cost of $101 against the offender in addition to any other cost or penalty required by law.

(Emphasis added.) McNeil was sentenced to eight years in prison followed by thirteen years of probation. He filed an appeal, contending that the trial court erroneously assessed the costs per count, instead of per case. The Fifth District affirmed, holding that the costs were properly assessed on a per count basis. McNeil, 162 So.3d at 277. The district court concluded that the plain language of these statutes reflects that the Legislature intended to impose costs per count, not per case:

By the plain language of these statutes, sections 938.08 and 938.085 require costs to be assessed for “a violation” of an enumerated statute, while section 938.10 requires assessment of costs for a nolo contendere or guilty plea to “any offense” enumerated in the statute. We believe the use of the words “a” and “any” in these statutes indicates the Legislature’s intent to impose costs for each offense.

Id. at 276. However, the district court certified for this Court’s determination the question of whether the costs under the applicable statutes are to be assessed per count or per case. McNeil, 163 So.3d at 662. This review follows.

ANALYSIS

Applicable Law

At issue in this case is whether three statutes contained in chapter 938 impose costs per count or per case. The interpretation of these statutes is a purely legal matter and is subject to the de novo standard of review. See Davila v. State, 75 So.3d 192, 195 (Fla. 2011). This Court has previously held that when the question of law involves the provisions of a statute, “we must first and foremost endeavor to give effect to the legislative intent underlying that statute .... ” Florida Parole Com’n v. Spaziano, 48 So.3d 714, 717 (Fla. 2010). To determine legislative intent, this Court looks first to the plain language of the statute. Montgomery v. State, 897 So.2d 1282, 1285 (Fla. 2005). When the plain language of the statute is unambiguous and conveys a clear meaning, the statute must be given its obvious meaning. Davila, 75 So.3d at 195. An unambiguous statute cannot be construed “in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications.” Id. at 196. Therefore, we first look to the plain language of the statutes at issue in this case to determine whether they convey a clear and obvious meaning.

Plain Meaning of Sections 938.08, 938.085, and 938.10(1)

We agree with the district court’s conclusion that costs imposed under sections 938.08, 938.085, and 938.10(1), Florida Statutes (2006), should be assessed per count, not per case. The plain meaning of the language used in these sections—“a violation” and “any offense”—is unambiguous and reflects legislative intent that the costs be imposed for each violation or offense. There can clearly be more than one violation or more than one offense under the same statute for which a defendant is convicted, and there can be multiple violations or offenses combined under a single case, as evidenced by this case. Each violation or offense is, thus, the basis for separate assessment of costs. If the Legislature intended to impose costs per case, it could have expressly done so as it has in other cost statutes. See, e.g., § 938.03(1), Fla. Stat. (2016) (“shall pay as an additional cost in the case”); § 938.05(1), Fla. Stat. (2016) (“shall pay as a cost in the case”); § 938.27(1), Fla. Stat. (2016) (“In all criminal and violation-of-probation cases, convicted persons are liable for payment of the costs of prosecution.... ”). (Emphasis added.) Section 27.3455, Florida Statutes (1993), which has since been repealed, also contained similar language. The Legislature chose not to include such language in sections 938.085, 938.08, and 938.10(1), Florida Statutes (2006). Instead, the plain language of these statutes mandates that costs be imposed for “a violation of’ certain enumerated offenses or “any offense” constituting a violation of certain enumerated offenses. To construe this language to mean that costs are only to be imposed “per case” modifies the reasonable and obvious meaning of the statutes. As the district court noted, “[i]f the Legislature believes that we have misinterpreted these statutes, it can certainly clear it up. However, until and unless that happens, we must discern legislative intent from the plain words used, and not resort to rules of construction unless we find an ambiguity exists.” McNeil, 162 So.3d at 277.

The dictionary definitions of “a” and “any” also support the conclusion that the costs here should be imposed per count. See L.B. v. State, 700 So.2d 370, 372 (Fla. 1997) (“[A] court may refer to a dictionary to ascertain the plain and ordinary meaning which the [L]egislature intended to ascribe to the term.”) superseded by statute on other grounds as stated in State v. A.M., 765 So.2d 927 (Fla. 2d DCA 2000). The word “a” is typically “used as a function word before most singular nouns” and is defined as “one,” or “any, each.” Webster’s Third New International Dictionary 1 (1993). The word “any” is defined as “one, no matter what one: every” or “all.” Id. at 97. In the context of the statutes here, “a violation of’ plainly means each violation. In other words, sections 938.08 and 938.085, Florida Statutes (2006), mandate that a court impose a surcharge for each violation of the enumerated statutes, in addition to any sanction. Thus, multiple violations would result in multiple surcharges. Similarly, “any offense” in section 938.10(1), Florida Statutes (2006), plainly means that costs should be imposed for every offense that would constitute a violation of one of the enumerated statutes.

McNeil correctly notes that appellate courts have recognized in some cases that costs should be assessed per case, albeit under different cost statutes. See, e.g., Rafael v. State, 679 So.2d 314, 315 (Fla. 1st DCA 1996) (“Costs levied under sections 960.20 [crimes compensation trust fund], 943.25 [criminal justice trust fund], and 27.3455, and costs assessed for the Law Library and for Gulf Coast Criminal Justice Assessment, are to be imposed on a per case, rather than a per count, basis.”); Hunter v. State, 651 So.2d 1258, 1260 (Fla. 1st DCA 1995) (noting that section 960.20, Florida Statutes (Supp. 1992), expressly provides “there shall be imposed as an additional cost in the case .... ”); Hollingsworth v. State, 632 So.2d 176, 177 (Fla. 5th DCA 1994) (holding that a plain reading of section 27.3455(1), Florida Statutes (1991), calls for costs to be imposed “in the case”). However, these decisions are not inconsistent with our decision today. As previously noted, these cases did not involve sections 938.085, 938.08, or 938.10, Florida Statutes (2006), nor did the disputed statutes in those cases contain the critical language at issue here—“a violation” or “any offense.” Rather, the relevant statutes in the decisions relied upon by McNeil use the terms “per case” or “in the case,” language that is notably absent in sections 938.085, 938.08, and 938.10, Florida Statutes (2006).

Other decisions cited by McNeil hold generally that costs should be assessed per case, but do so without identifying a specific statute upon which that conclusion is based. For example, in Webster v. State, 705 So.2d 970 (Fla. 2d DCA 1998), the district court struck costs imposed by the trial court because the trial court had failed to cite any statutory authority for the assessment of the costs. Id. at 971. The district court also stated that “statutory costs must be assessed per case, not per count.” Id However, the case cited as the basis for this general rule, Mills v. State, 672 So.2d 873, 873-74 (Fla. 2d DCA 1996), was referring to section 27.3455(1), Florida Statutes (1993), which explicitly requires imposition of an additional “cost in the case.” See Van Vorous v. State, 696 So.2d 1317, 1318 (Fla. 1st DCA 1997) (holding that costs should have been imposed only once for the entire case, without discussing the underlying statute upon which those costs were assessed).

McNeil also cites Stickles v. State, 44 So.3d 653, 654 (Fla. 1st DCA 2010), for the principle that “[generally, costs may be imposed per case and not per count.” However, as the State correctly points out, Stickles addressed the issue of costs in two consolidated cases. Id. at 654. Moreover, the costs were assessed pursuant to section 27.3455, Florida Statutes (1993), the same statute that was at issue in Mills, which explicitly provided for the imposition of costs “in the case.” Again, in the present case, sections 938.085, 938.08, and 938.10, Florida Statutes (2006), do not provide for the imposition of costs “per case,” but instead impose additional costs for “a violation” or “any offense.” Therefore, we conclude that the precedent relied upon by McNeil is distinguishable and does not compel a similar result here.

CONCLUSION

Based on the foregoing, we approve the decision of the Fifth District and hold that sections 938.085, 938.08, or 938.10(1), Florida Statutes (2006), require an imposition of costs per count.

It is so ordered.

LEWIS, CANADY, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., dissents with an opinion, in which QUINCE, J., concurs.

PARIENTE, J.,

dissenting.

I disagree that the cost statutes, sections 938.08, 938.085, and 938.10, are clear and unambiguous. As a result of this ambiguity and in accordance with the longstanding rule that costs are imposed per case, I agree with Judge Sawaya that “costs under these three statutes should be imposed per case.” McNeil v. State, 162 So.3d 274, 277 (Fla. 5th DCA 2015) (Sawaya, J., dissenting). While it is not determinative, I note that the trial judge himself, then-judge Lambert (now of the Fifth District Court of Appeal) also determined that the statutes are “poorly worded” and ambiguous. Id. at 278.

Judge Sawaya’s dissent explains and I agree that, after analyzing the rules of statutory construction, it is obvious that the statutory language of sections 938.08, 938.085, and 938.10 does not include “a clear expression of legislative intent to impose costs either per case or per count,” and is, therefore, ambiguous. Id. Of course, the Legislature may enact statutes that require costs to be imposed per count (which then depends, in part, on how many counts are included in the State’s information or indictment), but that intention should be made clearly and unambiguously-

In concluding that these statutes clearly reflect the intent to impose separate costs for each count, the majority emphasizes the phrases “a violation” and “any offense” in the text of the statutes. Majority op. at 57-59. However, using the majority’s definitions of “a” and “any” in the singular (meaning “one”) could also justify imposing costs on a per case basis because the violations listed under these provisions are separated by the word “or” (meaning “in the alternative”). See McNeil, 162 So.3d at 279 (Sawaya, J., dissenting); see also Sparkman v. McClure, 498 So.2d 892, 895 (Fla. 1986) (“[T]he word ‘or’ is generally construed in the disjunctive when used in a statute or rule. The use of this particular disjunctive word in a statute or rule normally indicates that alternatives were intended.” (citations omitted)). As Judge Sawaya explained in his dissent, “by including the word ‘or’ preceded by a comma in the three costs statutes, the Legislature intended that costs be imposed for violation of only one listed statute.” McNeil, 162 So.3d at 279-80 (Sawaya, J,, dissenting). This reading of the statutes is even more reasonable given that provisions for the increased costs in these statutes are singular: “the surcharge,” “a surcharge,” and “a court cost.” Id. at 278 (quoting §§ 938.08, 938.085, 938.10, Fla. Stat. (2006)).

The inherent ambiguity in these statutes is further illustrated by the variance between the text of section 938.10 and the title of that statute: “Additional court cost imposed in cases of certain crimes against minors.” § 938.10, Fla. Stat. (2006) (emphasis added). The majority recognizes the variance but does not accord it any statutory significance. Majority op. at 56-57. But see Larimore v. State, 2 So.3d 101, 112 (Fla. 2008) (“[T]he title of an act is properly considered in determining legislative intent.”); Horowitz v. Plantation Gen. Hosp. Ltd. P’ship, 959 So.2d 176, 182 (Fla. 2007) (citing City of Boca Raton v. State, 595 So.2d 25, 29 n.3 (Fla. 1992)).

These ambiguities stand against the backdrop, as the majority recognizes but then summarily discounts, of the longstanding rule that “costs are to be imposed per case and not per count.” Rocker v. State, 640 So.2d 163, 163 (Fla. 5th DCA 1994). Because the text of the statutes at issue in this case is ambiguous, especially as it does not demonstrate the Legislature’s clear intent to deviate from this longstanding rule, the rule of lenity directs that we construe the statutes most favorably to the defendant. See § 775.021(1), Fla. Stat. (2016); McNeil, 162 So.3d at 277 (Sawaya, J., dissenting) (“The courts have held that similar cost statutes in criminal cases are penal statutes and must be strictly interpreted in favor of the defendant when they are ambiguous.”).

As we recently held in State v. Weeks, 202 So.3d 1 (Fla. 2016), when a criminal statute is subject to two different interpretations, courts are obliged to apply the rule of lenity. Id. at 8. As we have stated, the rule of lenity requires, “to the extent that definiteness is lacking, a statute must be construed in the manner most favorable to the accused.” Perkins v. State, 576 So.2d 1310, 1312 (Fla. 1991) (citing Palmer v. State, 438 So.2d 1, 3 (Fla. 1983); Ferguson v. State, 377 So.2d 709, 711 (Fla. 1979)). Applying the rule of lenity to sections 938.08, 938.085, and 938.10,1 am compelled to conclude that the costs created by these statutes shall be assessed per case rather than per count to lessen the burden on the defendant.

Finally, the majority’s statement that the Legislature may clarify its intent if the majority’s determination is inconsistent with the Legislature’s original intent in these statutes is unavailing. See majority op. at 58-59 (quoting McNeil, 162 So.3d at 277). Such logic could likewise be applied to a decision imposing costs on a per case basis. If this reasoning were persuasive, statutory analysis—conducted under the pretext that if the Court reaches the incorrect conclusion, the Legislature can just “clear it up”—"would be meaningless. Majority op. at 58-59.

Due to the ambiguity arising from the text of the statutes at issue, which is even more evident in comparison to the longstanding rule that costs are imposed per case rather than per count, I would conclude that, pursuant to the rule of lenity, the costs provided for by the statutes at issue should be assessed on a per case basis. If the Legislature intended to depart from this longstanding rule, then it should have made clear its intent to do so in the text of the statutes. For the reasons explained above and consistent with Judge Sawaya’s dissent in the case below, I would conclude that the costs provided for in sections 938.08, 938.085, and 938.10 should be assessed per case.

QUINCE, J., concurs.

      . While portions of these statutes have been amended since 2006, the changes are not relevant to the Court's analysis in this case.

      . "When any person pleads nolo contendere to a misdemeanor or criminal traffic offense ... there shall be imposed as a cost in the case § 27.3455(1), Fla. Stat. (1993) (emphasis added).

      . Although Judge Sawaya provides an insightful statutory construction analysis in his dissent, see McNeil, 162 So.3d at 277-81 (Sawaya, J., dissenting), the rules of statutory construction are only appropriate when a court is unable to discern the plain meaning of a statute. Fajardo v. State, 805 So.2d 961, 964 (Fla. 2d DCA 2001). In this case, however, the plain language of each statute is unambiguous and provides that the costs be assessed per count, and therefore, there is no need to resort to the rules of statutory interpretation.

      . Van Vorous does, however, cite to Hunter, 651 So.2d 1258, in reaching its conclusion. As previously discussed, Hunter held that costs imposed under section 960.20, Florida Statutes (Supp. 1992), should be assessed per case based on the plain language of the statute: "[T]here shall be imposed as an additional cost in the case .... ”

      . See majority op. at 59 (citing Rafael v. State, 679 So.2d 314, 315 (Fla. 1st DCA 1996); Hunter v. State, 651 So.2d 1258, 1260 (Fla. 1st DCA 1995); Hollingsworth v. State, 632 So.2d 176, 177 (Fla. 5th DCA 1994)); majority op. at 59-60 (citing Mills v. State, 672 So.2d 873, 873-74 (Fla. 2d DCA 1996)); see also McNeil, 162 So.3d at 281 (Sawaya, J., dissenting) (citing Stickles v. State, 44 So.3d 653, 654 (Fla. 1st DCA 2010); Webster v. State, 705 So.2d 970, 971 (Fla. 2d DCA 1998); Van Vorous v. State, 696 So.2d 1317, 1318 (Fla. 1st DCA 1997); Seeker v. State, 674 So.2d 853, 853 (Fla. 1st DCA 1996); Neal v. State, 669 So.2d 1113, 1114 (Fla. 1st DCA 1996); Stephens v. State, 667 So.2d 312, 313 (Fla. 1st DCA 1995); Smith v. State, 661 So.2d 378, 378 (Fla. 1st DCA 1995); Renaud v. State, 660 So.2d 408, 408 (Fla. 1st DCA 1995); Nguyen v. State, 655 So.2d 1249, 1249 (Fla. 1st DCA 1995)).


text:
    DISTRICT COURTS OF APPEAL FIRST DISTRICT
    Burnett v. State
    1D15-5100
    02/10/2016
   Aff.

Cir. Ct. (Escam-bia)


text:
    Coleman v. State
    1D15-5027
    02/09/2016
   Aff.

Cir. Ct. (Escam-bia)


text:
    Cummings v. State
    1D15-4970
    02/05/2016
   Aff.

Cir. Ct, (Clay)


text:
    Dean v. State
    1D15-5021
    02/05/2016
   Aff.

Cir. Ct. (Bay)


text:
    Dovil v. Jones
    1D15-3226
    01/20/2016
   Cert. den.


text:
    Duong Thanh Ho v. State
    1D15-4733
    01/20/2016
   Aff.

Cir. Ct. (Bay)


text:
    Hawkins v. State
    1D15-5273
    02/11/2016
   Aff.

Cir. Ct. (Duval)


text:
    Longoria v. State
    1D15-2014
    02/05/2016
   Aff.

Cir. Ct. (Washington)


text:
    Mency v. State
    1D15-3792
    01/29/2016
   Aff.

Cir. Ct. (Clay)


text:
    OBrien v. State
    1D15-4994
    02/03/2016
   Aff.

Cir. Ct. (Ala-chua)


text:
    Rains v. State
    1D15-5016
    02/09/2016
   Aff.

Cir. Ct. (Duval)


text:
    Randolph v. State
    1D15-4905
    02/08/2016
   Aff.

Cir, Ct. (Duval)


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

Cir. Ct. (Jackson)


text:
    Stewart v. State
    1D15-5120
    02/10/2016
   Aff.

Cir. Ct. (Escam-bia)


text:
    Thornton v. State
    1D15-4056
    01/21/2016
   Aff.

Cir. Ct. (Walton)


text:
    Worley v. State
    1D15-4114
    01/21/2016
   Aff.

Cir. Ct. (Escam-bia)


text:
    SECOND DISTRICT
    Atzenhoefer v. Hyman
    2D16-4479
    11/18/2016
   App.dism.


text:
    B.D.D. v. K.R.D.
    2D16-1799
    11/17/2016
   App.dism.


text:
    B&T Ventures, LLC v. Wachovia Mortg. Corp.
    2D15-2159
    12/02/2016
   Aff.

Cir. Ct. (Pinel-las)


text:
    Beller v. State
    2D16-2334
    08/09/2016
   Mand.dism.


text:
    Bohley v. State
    2D16-1138
    09/20/2016
   Mand.den.


text:
    Boswell v. Winefordner
    2D16-4602
    10/31/2016
   App.dism.


text:
    Brooks v. State
    2D16-3267
    10/24/2016
   Pet.den.


text:
    Brown v. State
    2D16-3710
    11/17/2016
   App.dism.


text:
    Bunyan v. U.S. Bank Nat. Ass’n
    2D16-3142
    09/22/2016
   App.dism.


text:
    Butler v. State
    2D15-5521
    10/17/2016
   Mand.den.


text:
    C.B. v. Department of Children and Families
    2D16-4339
    10/21/2016
   Hab.Corp'.dism.


text:
    C.R.-G. v. Department of Children & Families
    2D16-3737
    10/27/2016
   App.dism.


text:
    Cameron-Osorio v. State
    2D16-3548
    10/26/2016
   Mand.den.


text:
    Caraballo v. Weir
    2D15-2729
    11/17/2016
   App.dism.


text:
    Casteel v. State
    2D16-1611
    08/24/2016
   Mand.dism.


text:
    Chavez-Hernandez v. State
    2D15-4655
    10/11/2016
   App.dism.


text:
    Cray v. State
    2D16-3477
    11/07/2016
   App.dism.


text:
    D.S. v. Department of Children and Families
    2D16-1839
    11/02/2016
   Mand.den.


text:
    D.T.E. v. Wilson
    2D16-4031
    10/17/2016
   Hab.Corp.den.


text:
    Dawson v. State
    2D16-983
    11/17/2016
   Withdrawn


text:
    Desylvester v. Bank of New York Mellon
    2D16-4177
    11/17/2016
   App.dism.


text:
    Dicapua v. State
    2D15-2892
    11/15/2016
   App.dism.


text:
    Essix v. State
    2D16-4169
    10/24/2016
   Cert.dism.


text:
    Feld v. Wiseberg
    2D16-4180
    10/25/2016
   Probuden.


text:
    German v. State
    2D16-4282
    10/11/2016
   Belated App. den.


text:
    H.H. v. Department of Children and Families
    2D16-2242
    11/17/2016
   App.dism.


text:
    Harris v. Serber
    2D16-2370
    12/02/2016
   Cert.den.

Cir. Ct. (Pasco)


text:
    Henry Gonzalez Plumbing Co., Inc. v. Maroulis
    2D16-4341
    10/24/2016
   Cert.dism.


text:
    Hume v. State
    2D16-4109
    10/11/2016
   Belated App. den.


text:
    Huntley v. State
    2D16-1033
    10/17/2016
   Mand.den.


text:
    Isenhower v. State
    2D16-3038
    08/23/2016
   Hab.Corp.den.


text:
    Jackson v. Publishers Clearing House
    2D16-4740
    11/18/2016
   Mand.dism.


text:
    Jacobs v. State
    2D16-1357
    10/17/2016
   Mand.den.


text:
    Johnson v. State
    2D16-4045
    10/20/2016
   Belated App.gr.


text:
    Johnson v. State
    2D16-3178
    10/17/2016
   Mand.den.


text:
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    2D16-2691
    11/18/2016
   App.dism.


text:
    K.A. v. Seeber
    2D16-4363
    10/19/2016
   Hab.Corp.den.


text:
    Kern v. State
    2D16-4695
    11/08/2016
   App.dism.


text:
    Knight v. State
    2D15-3956
    12/02/2016
   Aff.

Cir. Ct. (Polk)


text:
    Kousnsky v. Village on Bay, LLC
    2D16-1344
    10/18/2016
   App.dism.


text:
    L.H. v. Department of Children & Families
    2D16-1732
    11/17/2016
   App.dism.


text:
    Llano v. Lee County, Florida
    2D16-3380
    11/10/2016
   App.dism.


text:
    Lyft, Inc. v. Hillsborough Co. Public Transp. Com'n
    2D15-3449
    11/14/2016
   App.dism.


text:
    Mack v. State
    2D16-2306
    10/17/2016
   Mand.den.


text:
    Margarejo v. State
    2D16-3634
    10/17/2016
   Mand.den.


text:
    Markland v. State
    2D16-4543
    10/27/2016
   Proh.den.


text:
    McGlamry v. Deutsche Bank Nat. Trust Co.
    2D16-2389
    10/26/2016
   App.dism.


text:
    McKnight v. State
    2D16-2718
    08/24/2016
   Pet. den.


text:
    McLean v. Certainteed Corporation
    2D16-4290
    11/10/2016
   App.dism.


text:
    Miles v. State
    2D16-3651
    10/26/2016
   Mand.den.


text:
    N.D.W. v. Seeber
    2D16-4330
    10/26/2016
   Hab.Corp.dism.


text:
    Naples Mimosa Club, Inc. v. Galleberg
    2D16-1460
    11/17/2016
   App.dism.


text:
    Perrotti v. Perrotti
    2D14-5203
    10/17/2016
   App.dism.


text:
    Rivera v. State
    2D16-3358
    10/17/2016
   Proh.den.


text:
    Robinson v. State
    2D16-3959
    11/15/2016
   App.dism.


text:
    Roorda v. Sarasota County
    2D16-3540
    10/17/2016
   Mand.den.


text:
    Sassel v. State
    2D16-3049
    10/17/2016
   Mand.den.


text:
    Schultz v. State
    2D15-3934
    12/02/2016
   Aff.

Cir. Ct. (Hills-borough)


text:
    Scott v. State
    2D16-3254
    08/23/2016
   Hab.Corp.den.


text:
    Sentlingar v. State
    2D16-41
    11/02/2016
   App.dism.


text:
    Seymour v. 1700 W. Memorial Holdings, Inc.
    2D16-1780
    11/04/2016
   App.dism.


text:
    Skinner v. State
    2D16-3866
    10/25/2016
   Proh.den.


text:
    Soto-Toro v. State
    2D16-1798
    10/26/2016
   Mand.den.


text:
    State v. Howard
    2D16-1332
    11/07/2016
   App.dism.


text:
    T R & S N F, Inc. v. Agency for Health Care Admin.
    2D16-4043
    10/19/2016
   App.dism.


text:
    Tranquility Bay Southwest Florida, LLC v. Aloia & Roland, LLP
    2D16-4444
    11/18/2016
   App.dism.


text:
    Tunstill v. State
    2D16-1599
    11/15/2016
   App.dism.


text:
    Turtle Rock Community Ass'n, Inc. v. Buzby
    2D16-3997
    10/25/2016
   App.dism.


text:
    United Services Auto. Ass'n v. Marshall
    2D16-2965
    11/10/2016
   App.dism.


text:
    Vazquez v. State
    2D16-3484
    08/23/2016
   Hab.Corp.den.


text:
    W.G. v. Department of Children & Families
    2D16-1362
    11/17/2016
   App.dism.


text:
    Wells Fargo Bank, N.A. v. Leonhardt
    2D16-3352
    11/01/2016
   App.dism.


text:
    Wells Fargo Bank, N.A. v. Stisser
    2D15-2762
    11/07/2016
   App.dism.


text:
    White v. State
    2D16-3332
    09/26/2016
   Pet.den.


text:
    Williams v. State
    2D16-262
    10/19/2016
   Mand.den.


text:
    Wilmington Trust Nat. Ass’n v. Aaron
    2D16-4389
    11/15/2016
   App.dism.


text:
    Wilson v. State
    2D16-3575
    10/11/2016
   Belated App.gr.


text:
    Wittler v. State
    2D16-3318
    10/17/2016
   Mand.den.


text:
    THIRD DISTRICT
    Almonor v. Reemployment Assistance Appeals Com'n
    3D16-2343
    11/08/2016
   App.dism.


text:
    Barcelona v. State
    3D16-2335
    10/25/2016
   App.dism.


text:
    Bonilla v. State
    3D16-1739
    11/08/2016
   Pet.den.


text:
    Casado v. U.S. Bank N.A.
    3D16-2275
    11/08/2016
   App.dism.

Cir. Ct. (Miami-Dade)


text:
    Etienne v. Aspen NPL, LLC
    3D16-1893
    10/27/2016
   App.dism.


text:
    Goni v. State
    3D16-2237
    11/30/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Haigh v. Haigh
    3D16-2073
    11/29/2016
   Vol.dism.

Cir. Ct. (Miami-Dade)


text:
    Henley v. State
    3D16-2383
    11/08/2016
   Hab.Cotp. stricken


text:
    Igbinadolor v. Deutsche Bank Nat. Trust Co.
    3D16-2265
    10/26/2016
   App.dism.

Cir. Ct. (Miami-Dade)


text:
    Jones v. State
    3D16-2202
    10/24/2016
   Pet.dism.


text:
    Lauret v. Deutsche Bank Nat. Trust Co.
    3D16-1754
    11/08/2016
   App.dism.


text:
    Leroy v. Noa
    3D16-2254
    11/29/2016
   Vol.dism.


text:
    Maps v. State
    3D16-2088
    10/25/2016
   Proh.dism.


text:
    McGloun v. Fowles
    3D15-1131
    11/29/2016
   Vol.dism.

Cir, Ct. (Miami-Dade)


text:
    Mercado v. National Union Fire Ins. Co. of Pittsburg, P.A.
    3D16-1888
    10/27/2016
   Pet.den.


text:
    Pressley v. State
    3D16-1490
    11/08/2016
   Pet.den.


text:
    Quattrocchi v. State
    3D16-2211
    10/28/2016
   App.dism.


text:
    Richardson v. State
    3D16-2162
    10/26/2016
   Pet.den.


text:
    Rodriguez v. Murphy
    3D16-2061
    10/27/2016
   App.dism.

Cir. Ct. (Miami-Dade)


text:
    S & S Diner, Inc. v. 17th & Second Ave. Properties, Corp.
    3D16-2184
    10/26/2016
   Pet.den.


text:
    Scharer v. Scharer
    3D15-2915
    11/10/2016
   Pet.dism.


text:
    Schoenlank v. Schoenlank
    3D16-2366
    10/24/2016
   Pet.den.


text:
    Small v. State
    3D16-2315
    10/24/2016
   Pet.den.


text:
    Tinner v. State
    3D16-2111
    11/30/2016
   Aff.

Cir. Ct. (Miami-Dade)


text:
    Title Capital Management LLC v. Progress Residential LP
    3D16-2049
    10/21/2016
   Pet.den.


author: EMAS, J.

text:
    Carlos SANCHEZ, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D13-1453, 3D15-20.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 2016.
    Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Roberta G. Mandel, Special Assistant Regional Counsel, for appellant (3D13-1453); Carlos Sanchez, in proper person (3D15-20).
    Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellee.
    Before SHEPHERD, LAGOA and EMAS, JJ.
   EMAS, J.

In these consolidated appeals, Carlos Sanchez appeals his judgment and sentence, following a jury trial, on the charge of attempted second-degree murder. Sanchez raises four issues on appeal, two of which warrant no further discussion. As to Sanchez’s claims that the trial court erred in denying Sanchez’s pretrial motion to dismiss or exclude evidence based upon the State’s alleged destruction of (or failure to produce) a urine toxicology report, we find that the record below supports the trial court’s conclusion that no such report ever existed. Further, even if such a report did exist, the trial court properly determined that the report was never in the actual or constructive possession of the State. Given the absence of any evidence that the report in question ever existed or (if it did exist) was ever in the State’s possession, or that the State was ever aware of the results of any such test, the trial court properly denied Sanchez’s motion to dismiss or to exclude evidence,

Affirmed.

      . In case number 3D13-1453, Sanchez is represented by Criminal Conflict and Civil Regional Counsel and appeals his judgment and sentence. During the pendency of that appeal, Sanchez filed a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). That motion was denied by the trial court, and a notice of appeal was filed (case no. 3D 15-20). Regional Counsel was appointed to represent Sanchez on that appeal as well, but filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and sought to withdraw. We find no merit in the issues raised in case number 3D15-20 and affirm without further discussion.

      . The victim was transported to the hospital after the incident in question. The physician who treated the victim at the hospital ordered several tests, including both a blood test and a urine screen. A blood test was performed, a report was prepared, and that report was provided to the defense. However, there is nothing in the record to indicate that the urine screen was actually performed or that, if performed, a report was ever prepared or provided to the State. Further, a hospital records custodian later certified that no such urine screen report exists.

      .We reject the contention that, because the hospital in question received funding from Miami-Dade County, possession by the hospital should be imputed to the State. Compare Gorham v. State, 597 So.2d 782 (Fla.1992) (holding that the state attorney is charged with constructive knowledge and possession of evidence withheld by other state agents such as law enforcement officers); Antone v. State, 355 So.2d 777 (Fla.1978) (holding that evidence in the possession of the FDLE, a law enforcement agency that participated directly in the investigation and prosecution, was imputed to the state attorney).


author: LAGOA, J.

text:
    Donald Keith ROLLING, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-66.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2016.
    Donald Keith Rolling, in proper person.
    Pamela Jo Bondi, Attorney General, and Jacob Addicott, Assistant Attorney General, for appellee.
    Before SUAREZ, C.J., and LAGOA and LOGUE, JJ.
   ON MOTION FOR REHEARING

LAGOA, J.

On January 20, 2016, this Court affirmed the trial court’s order denying Donald K. Rolling’s (“Rolling”) 3.800(a) Motion to Correct Illegal Sentence as successive, although for reasons other than those stated by the trial court. Rolling v. State, 218 So.3d 911, 2016 WL 231362 (Fla. 3d DCA Jan. 20, 2016). Rolling has filed a motion for rehearing pursuant to Florida Rule of Appellate Procedure 9.330. We deny the motion for rehearing.

Rolling asserts that the Information was insufficient to charge him with “actual possession” of a firearm, and that it is a violation of due process to convict Rolling of a crime not charged. That argument, however, was never raised by Rolling in either his direct appeal or in any of his 3.800(a) motions. See Sarmiento v. State, 371 So.2d 1047, 1053 (Fla. 3d DCA 1979); Cleveland v. State, 887 So.2d 362, 364 (Fla. 5th DCA 2004). A new issue raised for the first time in a motion for rehearing is improper under Rule 9.330, and this Court will not entertain this new argument on rehearing, Cleveland, 887 So.2d at 364 (“No new ground or position may be assumed in a petition for rehearing.... This court need not entertain new argument or consider additional authority cited in support thereof,”).

We note that any alleged defect in the charging document could have been corrected if a timely objection had been made. See Martinez v. State, 169 So.3d 170, 172 (Fla. 4th DCA 2015). Consequently, Rolling’s failure to object to a technical deficiency in the charging document prior to the jury’s verdict constitutes a waiver. Bradley v. State, 3 So.3d 1168, 1171 (Fla. 2009); Connolly v. State, 172 So.3d 893, 902 (Fla. 3d DCA 2015).

Motion for Rehearing Denied.


text:
    T.J., Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-109.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 2016.
    T.J., in proper person.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before EMAS, FERNANDEZ and LOGUE, JJ.
   EMAS, J.

T.J. appeals from an order denying his motion for extraordinary relief pursuant to Florida Rule of Juvenile Procedure 8.140. We affirm.

As alleged in his motion filed below, in 1990, T.J. was arrested as a juvenile. The State filed three separate delinquency petitions, each alleging that T.J. committed delinquent acts of burglary and grand theft at three separate homes, including a burglary and grand theft on November 9, 1989 at Curlew Lane in Homestead.

In March of 1990, T.J. entered an admission to five of the six charges, was adjudicated delinquent, and was committed to the Department of Health and Rehabilitative Services (“HRS”). T.J. did not appeal the delinquency adjudication. In 1992, T.J. was successfully terminated from HRS supervision.

In June of 2001, more than eleven years after the adjudicatory hearing on these cases, T.J. filed a “Motion to Vacate Judgment and Sentence Under 3.850, in Light of Wood v. State, 750 So.2d 592 (Fla. 1999).” In his motion, T.J. alleged he was actually innocent of the burglary and grand theft charges of which he had been adjudicated delinquent eleven years earlier. Attached to the motion was an affidavit of one Jabar Turner who averred that he (Jabar Turner) was arrested and charged in the November 9, 1989 burglary and grand theft at the Curlew Lane home. Turner further averred that he (Jabar Turner) and he alone was the person who committed the Curlew Lane burglary and grand theft, and that T.J. was not involved. T.J. separately alleged that school records established T.J. could not have committed the other two burglaries/grand thefts because he was attending school on the dates and times of those offenses.

For reasons that are not clear, the motion (though docketed) was never set for a hearing, and no action was taken on that motion. In March of 2015, T.J. filed the instant Motion for Extraordinary Relief, in which he reasserted the same claims made in his 2001 motion. The tidal court held a hearing on T.J.’s motion for extraordinary relief, but T.J. did not present any testimony or other evidence beyond the motion and the affidavit. The trial court denied the motion as untimely under rule 8.140(a) and also denied the motion on its merits.

Rule 8.140 provides:

(a) Basis. On motion and upon such terms as are just, the court may relieve a party or the party’s legal representative from an order, judgment, or proceeding for the following reasons:
(1) Mistake, inadvertence, surprise, or excusable neglect.
(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for rehearing.
(3) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of any other party.
(4) That the order or judgment is void.
(b) Time. The motion shall be made within a reasonable time and, for reasons (1), (2), and (3), not more than 1 year after the judgment, order, or proceeding was taken.

(Emphasis added.)

On appeal, T.J. contends that his actual innocence claim overcomes any procedural or time bar established by rule 8.140(b), and that such a conclusion is mandated by McQuiggin v. Perkins, — U.S. -, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013), House v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006), and Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). We do not agree.

First and foremost, T.J. did not go to trial on these delinquency petitions. Rather, pursuant to a negotiated plea (the terms of which included the State’s abandonment of one count and its abandonment of a waiver to adult court), T.J. admitted to having committed the delinquent acts, was adjudicated delinquent, and committed to the supervisions of HRS. The record before us evidences that the plea was entered knowingly and voluntarily, and T.J. does not contend his actual innocence claim is interconnected with a claim that the plea was coerced, involuntary, or the result of affirmative misadvice of counsel. By his plea, T.J. gave up, inter alia, his right to an adjudicatory hearing at which his guilt or innocence would be determined. See Fla. R. Juv. P. 8.080(a)(4). That rule further provides that, by pleading guilty or nolo contendere, “the right to appeal all matters relating to the judgment, including the issue of guilt or innocence, is relinquished, but the right to review by appropriate collateral attack is not impaired.” Having admitted and pleaded guilty to the charges, a claim of actual innocence (absent some interrelated assertion of involuntariness, newly-discovered evidence, fraud, or affirmative misad-vice of counsel) made eleven years after a guilty plea is both time-barred and fails to qualify as an “appropriate collateral attack” as referred to in rule 8.080(a)(4) and delineated in rule 8.140.

Further, even if we were to reach the merits of T.J.’s claim, it would be unnecessary to decide the broader question of whether a viable claim of actual innocence could overcome the one-year time bar for extraordinary relief under rule 8.140(a)(2) and (b). In the instant case, T.J.’s assertion of actual innocence is based not upon newly-discovered evidence, but upon newly-presented evidence. T.J. did not assert, in his original motion of 2001, his subsequent motion in 2015, or at the hearing on the motion, any evidence which “by due diligence could not have been discovered in time to move for rehearing.” Fla. R. Juv. P. 8.140(a)(2). Instead, he asserted the existence of high school records and presented the affidavit of Jabar Turner, a corespondent charged together with T.J. in the Curlew Lane burglary/grand theft case. There is nothing to indicate that Jabar Turner was unknown or unavailable in 1990 (or within one year thereafter) to present the exculpatory testimony contained in his 2001 affidavit. Likewise, the school records which T.J. asserts would establish he was attending high school at the time of the other two burglaries would appear to be information which was available to T.J. in 1990 (and T.J. fails to allege whether and why such records could not have been discovered in the exercise of due diligence).

Even if T.J. was permitted to rely upon newly-presented evidence, a person asserting a claim of actual innocence must show they have been diligent in presenting their claims, and must present new evidence to establish that “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt” in light of the new and existing evidence. Bell, 547 U.S. at 537, 126 S.Ct. 2064 (quoting Schlup, 513 U.S. at 327, 115 S.Ct. 851). See also Tompkins v. State, 994 So.2d 1072, 1089 (Fla.2008). T.J. has failed to make the necessary showing for the “severely confined category” of actual innocence claims. McQuiggin, 133 S.Ct. at 1933. The trial court properly determined that T.J.’s claim was time-barred under rule 8.140, and that T.J. failed to present a viable claim of actual innocence.

Affirmed.

      . As a part of the negotiations, the State abandoned its motion for an order waiving juvenile jurisdiction and transferring T.J. to adult felony court in case number 90-547B. Also as part of the negotiations, the State abandoned the grand theft charge contained in that petition.

      . In the interim, T.J. had been arrested, indicted and convicted in United States District Court for the Eastern District of North Carolina on charges of cocaine trafficking, and was sentenced to 360 months in prison. T.J. alleged that these juvenile delinquency adjudications were utilized to enhance his sentence under the federal sentencing guidelines.

      . T.J. alleged three other grounds in his motion, which were denied both as untimely and on their merits. We affirm the trial court’s denial of these claims as they are either subsumed within the analysis of this opinion or are otherwise without merit.

      . The unavailability of portions of the court file appears to be due at least in part to the twenty-five-year hiatus between the 1990 adjudicatory hearing and the 2015 Motion for Extraordinary Relief.

      . We note that the high school records are not a part of the record on appeal and do not appear to have been attached to the original motion (2001) or the motion for extraordinary relief (2015).

      . People accused of crimes or delinquent acts often enter a plea of nolo contendere instead of a guilty plea. Also known as an Alford plea, a plea of nolo contendere allows an accused, in effect, to plead guilty while continuing to maintain his or her innocence. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Brown v. State, 943 So.2d 899 (Fla. 5th DCA 2006); Fla. R. Crim. P. 3.170(a); Fla. R. Juv. P. 8.075(a). It would be anomalous indeed if an accused could enter a plea of guilty while maintaining his innocence, receive the benefit of that plea bargain and then, eleven years later, be permitted to raise a bare "actual innocence” claim, untethered to any alleged constitutional error in the plea proceeding.

      . We do not reach the question of whether a viable claim of actual innocence can be based only upon newly-discovered evidence, or can be based upon newly-presented evidence that was available and could have been, but was not, presented at the time of trial.

      . To the contrary, both T.J. and Turner were listed as co-defendants in the arrest affidavit; Turner was subsequently charged in the Curlew Lane burglary, and his delinquency case was closed in 1990.

      . Notably, T.J. does not contend that his trial counsel rendered constitutionally ineffective assistance in failing to investigate, discover or present this evidence.

      .We further note that the Florida Supreme Court has rejected the existence of a freestanding claim of actual innocence to overcome a procedural bar to collateral relief in capital cases under rule 3.851. See Tompkins, 994 So.2d at 1088-89.


author: SUAREZ, C.J.

text:
    Alton LIGHTBOURN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1703.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 2016.
    Alton Lightbourn, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, C.J., and FERNANDEZ and SCALES, JJ.
   SUAREZ, C.J.

Aton Lightbourn appeals the denial of his Florida Rule of Criminal Procedure 3.800 motion to correct sentence. We affirm because no appeal was pending at the time the subject motion was filed and because the trial court was correct in finding that the claims made in the motion are successive.

The motion at issue was filed by Lightb-ourn on March 16, 2015. The state responded to that motion on March 27, 2015 and supplemented its response on February 5, 2016. The trial court properly denied that motion on June 6, 2016. Lightb-ourn incorrectly argues that the trial court lacked jurisdiction to rule because there was an appeal pending at the time of its ruling. That is not so. The most recent appeal in this Court involving Lightbourn was case number 3D13-2618. The mandate in that case issued in December 2014, well before Lightbourn filed his most recent motion. In addition, Lightbourn raised nearly identical claims relating to the upward departure sentence imposed in 2010 in case numbers 3D12-1455 and 3D12-2175. Conflict counsel also raised similar issues in case number 3D13-2618. As a result, the claims are successive.

Because there was no pending appeal at the time Lightbourn filed his motion and because the trial court properly found his claims successive we affirm.

Affirmed.

      . Two other appeals filed by Lightbourn, 3D12-2025 and 13-2534 were petitions for belated appeals and did not involve substantive argument.


author: ROTHENBERG, J.

text:
    Andrew ROLLE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-2664.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2016.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before SUAREZ, C.J., and ROTHENBERG and FERNANDEZ, JJ.
   ROTHENBERG, J.

Andrew Rolle (“the defendant”) appeals his criminal convictions for first degree murder, attempted first degree murder, and attempted second degree murder on the grounds that the trial court abused its discretion by: (1) permitting the lead detective in the case to testify as to the defendant’s guilt; (2) denying the defendant’s motion for a mistrial after the State introduced irrelevant information about how one of the detectives in the case was fired after manufacturing evidence in an unrelated case; (3) allowing the State to introduce inadmissible hearsay testimony from two of the victims, and (4) limiting the defense’s cross-examination of one of the State’s witnesses. For the reasons that follow, we find no abuse of discretion, and thus, we affirm.

BACKGROUND

The relevant facts on appeal are as follows. On January 8, 2008, an armed assailant shot and killed an off-duty police officer, shot and wounded Wesner Senobi (“Senobi”), and shot at but missed Susie Agenor (“Agenor”). Senobi and Agenor (collectively, “the victims”) subsequently identified Ricardo Ajuste (“Ajuste”) as the shooter from a photographic lineup. Ajuste was taken into custody, but he was later released after the lead detective, Detective Stein, determined that Ajuste was not the shooter. Upon further investigation, the defendant was arrested, and he was subsequently indicted by the grand jury for first degree murder and two counts of attempted first degree murder.

At trial, the State called three witnesses who testified that the defendant admitted to them that he was the shooter. Ryan Stubbs (“Stubbs”) testified that he saw the defendant on the day of the shooting. When he saw the defendant, the defendant was upset because someone had stolen his gun. The defendant told Stubbs that he wanted an AK-47 and also needed a ride so that he could retrieve his stolen gun. Stubbs called John Blanchard (“Blanchard”), who owned a white Ford Taurus, to ask him if he would give the defendant a ride. Stubbs left and he did not see the defendant for the rest of the night. The next day, when Stubbs saw the defendant, he told Stubbs that he had shot several people the prior night. He told Stubbs that when he saw the person he believed had stolen his gun, he shot at him several times. The defendant then ran to a ear that looked like the one Blanchard was driving and shot the occupant because he believed the occupant was going to shoot the defendant.

The second witness, Blanchard, testified that he gave the defendant and two other individuals a ride to an apartment complex. At the complex, the defendant exited the car, retrieved an AK-47 from of the trunk of the vehicle, and walked away. As Blanchard was driving away from the complex, he heard gun shots. The following day, the defendant told Blanchard that he was involved in the shootings the night before.

The third witness, Norris McDowell (“McDowell”), testified that he had met the defendant in jail. While he and the defendant were talking in the “yard,” the defendant told him that he was in jail because he was involved in a shooting while attempting to retrieve his stolen gun.

The defendant’s defense at trial was that the detectives had arrested the wrong person and let the real perpetrator, Ajuste, go free. After the State rested, the defense rested without calling any witnesses. The jury found the defendant guilty of first degree murder of the off-duty police officer, attempted first degree murder of Sen-obi, and attempted second degree murder of Agenor. The trial court sentenced the defendant to life imprisonment for the first degree murder, life imprisonment with a twenty-five-year minimum mandatory sentence for the attempted first degree murder, and thirty years with a twenty-year minimum mandatory sentence for the attempted second degree murder. Thereafter, the defendant filed the instant appeal.

ANALYSIS

The trial court’s rulings on the admissibility of evidence are reviewed for an abuse of discretion, O’Connell v. State, 480 So.2d 1284, 1286 (Fla.1985), as are the trial court’s rulings on a motion , for a mistrial, Anderson v. State, 841 So.2d 390, 403 (Fla. 2003), and a trial court’s determination to limit the scope of cross-examination, Tompkins v. State, 502 So.2d 415, 419 (Fla. 1986). “[Discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial, court, then it cannot be said that the trial court abused its discretion.” Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) (quoting Delno v. Mkt. St. Ry. Co., 124 F.2d 965, 967 (9th Cir.1942)).

I. Detective Stein’s testimony regarding the defendant’s guilt

The defendant claims that the trial court abused its discretion by permitting the State to elicit Detective Stein’s opinion as to the defendant’s guilt, Specifically, the defendant contends that Detective Stein improperly commented on the defendant’s guilt when he stated that based on his investigation he determined that Ajuste was not involved in the crimes. We find that this issue has not been properly preserved for appeal because the defense failed to articulate the specific legal basis for its contemporaneous objection before the trial court. Chamberlain v. State, 881 So.2d 1087, 1104 (Fla.2004); Spann v. State, 857 So.2d 845, 852 (Fla,2003); Fleitas v. State, 3 So.3d 351, 356 (Fla. 3d DCA 2008) (stating that the defendant “failed to state the specific legal ground for the objection that he now raises on appeal,” and thus failed to properly preserve the issue for appellate review). However, we additionally conclude that even if the issue had been properly preserved for appellate review, it is without merit.

It is true that a witness’s opinion as to the guilt or innocence of the defendant is inadmissible in a criminal case. See, e.g., Martinez v. State, 761 So.2d 1074, 1079-81 (Fla.2000) (finding that it was reversible error where the lead investigating officer testified that he had no doubt that Martinez had murdered the victim and the prosecutor compounded the error by arguing in closing arguments that the officer, a witness, and the prosecutor all had no doubt as to Martinez’s guilt); Sosa-Valdez v. State, 785 So.2d 633, 634 (Fla. 3d DCA 2001) (noting that a witness’s opinion testimony regarding the guilt or innocence of a defendant is inadmissible, as its probative value is substantially outweighed by the danger of unfair prejudice to the defendant); Henry v. State, 700 So.2d 797, 798 (Fla. 4th DCA 1997) (finding that it was reversible error for the State to elicit testimony from the victim’s mother, who did not observe the offense, that she had no doubt that the defendant was the person who had robbed her son). However, in the instant case, Detective Stein did not offer an opinion as to the defendant’s guilt. Rather, Detective Stein merely explained that although it was initially believed that Ajuste was the shooter, he was ultimately not charged after he was ruled out as a suspect,

Q: Now did there come a time that video surveillance from the apartment building was located?
A. Yes.
Q. Was there video of it?
A. Yes.
Q. Did it take some time to go through it?
A. Yes it did.
Q. And [was] the video surveillance looked at prior to Mr. Ajuste being arrested and charged with the attempted murder?
A. No.
Q. Did there come a time when the video was continuing [sic] that you were looking through the video?
A. Yes.
Q. Did there come a time through the investigation that you were looking at other evidence?
A. Yes.
Q. And did you make a determination eventually that Mr. Ajuste was not involved in the case?
A. Yes.
[Defense Counsel]: Objection.
The Court: Overruled.

Unlike the cases cited and others, Detective Stein did not offer an opinion as to the defendant’s guilt or innocence. Rather, the record reflects that his testimony was merely an explanation for why the police had released Ajuste. Curtis v. State, 204 So.3d 463, 466, 2016 WL 3182045 (Fla. 4th DCA June 8, 2016) (finding that the lead detective did not imper-missibly testify as to his opinion of the defendant’s guilt or innocence, but instead “simply explained why the investigation focused on [the defendant] and why certain investigative steps were not taken”). Additionally, by arguing to the jury during opening statements that the police let the real criminal go free and had arrested the wrong person, the defense opened the door for the State to explain why Ajuste was released from custody and not charged in this case. Tosh v. State, 424 So.2d 97, 98-99 (Fla. 1st DCA 1982) (concluding that the defense had opened the door for the State to elicit testimony as to why it had entered into plea agreements with two key witnesses after the defense attacked the State’s motivation in doing so and inferring that the State had entered into these plea agreements in order to frame Tosh). Therefore, we reject the defendant’s first argument on appeal.

II. Disciplinary action against the detective in another case

The defendant also argues that the trial court abused its discretion by denying his motion for a mistrial based on the State’s question to Detective Stein implying that the detective who showed the victims the photographic lineup, after which the victims identified Ajuste as their shooter, was fired for fabricating evidence in another case. Specifically, the State asked Detective Stein the following question. “Was [the detective who showed the victims the photographic lineup] fired for creating other evidence in another case?” Before Detective Stein could answer, the trial court sustained defense counsel’s objection to this question and gave the jury a curative instruction.

While it is undoubtedly true that testimony regarding the detective’s disciplinary history in another case was irrelevant in the instant case, see Breedlove v. State, 580 So.2d 605, 609 (Fla.1991), we do not find that the trial court abused its discretion by denying the defendant’s motion for a mistrial because the defense counsel’s objection to the State’s question was sustained before Detective Stein answered the question, and the trial court gave the jury a curative instruction. See Joseph v. State, 704 So.2d 1149 (Fla. 3d DCA 1998) (“[T]he strong curative instruction promptly given by the trial court alleviated any possible prejudice, thus the court correctly denied the mistrial motion.”).

III. The victim’s hearsay testimony

The defendant contends that the trial court abused its discretion by allowing the State to introduce the objected-to hearsay statements of the victims, Senobi and Agenor, through the testimony of Detective Stein. Specifically, Detective Stein testified that Senobi said that

[he] was sitting in a car with another person and that a person in dark clothing with a hat on or a skully type hat walked in front of the car and began shooting. Shortly before that a white vehicle with damage to it passed by where they were sitting and the car left in the alley towards the west.

Detective Stein also testified that Agenor’s statement to him was “[essentially the same thing that Mr. Senobi said that a vehicle passed by there. It was a Black male dressed in dark clothing produced a AK-47 began to shoot at them while they were in the car.”

Although both Senobi’s and Agenor’s statements qualify as hearsay under section 90.801, Florida Statutes (2013), we conclude that Senobi’s statement was properly admitted because it was an “excited utterance,” see § 90.803(2), Fla. Stat. (2013) (stating that “[a] statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” is admissible even though it is hearsay), and any error in the admission of Agenor’s out-of-court statement was harmless beyond a reasonable doubt. The record reflects that when Sen-obi was interviewed at the hospital where he was being treated a few hours after the shooting, he appeared to be in pain; and “[h]e was very emotional at times. He would cry at times, he would get angry at times. He was up and down on his emotion.” Given our standard of review, we find that a reasonable person could conclude that Senobi was still agitated and traumatized from the shooting while he was being interviewed at the hospital and that he did not have an opportunity for clear reflective thought. Edmond v. State, 559 So.2d 85, 86 (Fla. 3d DCA 1990) (stating that a witness’s emotional description of an assailant made two to three hours after witnessing the crime qualified as an excited utterance).

Although no predicate was laid for the admission of Agenor’s out-of-court statement made to Detective Stein, we conclude that its admission was harmless beyond a reasonable doubt. First, the statement was merely cumulative, as Detective Stein testified that Agenor essentially said the same thing as Senobi, which we have already determined was properly admitted under the excited utterance exception to the hearsay rule. Second, both Senobi’s and Agenor’s statements were also introduced through the testimony of Detective Denham without objection, and those statements were nearly identical to the hearsay statements introduced by Detective Stein. We therefore find that any error in the introduction of the objected-to testimony was harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986).

IY. The limitation of the defendant’s cross-examination of Stubbs

Lastly, the defendant argues that the trial court abused its discretion by limiting the scope of the defense’s cross-examination of Stubbs regarding the nature of his pending charges, where such inquiry would have established that Stubbs had a motive to lie in the case. We disagree.

It is well recognized that “[w]hen charges are pending against a prosecution witness at the time he testifies, the defense is entitled to bring this fact to the jury’s attention to show bias, motive or self-interest.” Breedlove, 580 So.2d at 608 (quoting Torres-Arboledo v. State, 524 So.2d 403, 408 (Fla.1988)). In Bell v. State, 614 So.2d 562, 564 (Fla. 3d DCA 1993), this Court additionally held that it is also “permissible” to ask the witness to identify the specific pending charges. However, the defendant’s right to cross-examination of a witness for bias is not unlimited. Breedlove v. State, 580 So.2d at 609 (Fla.1991) (stating that “inquiry into collateral matters, if such matters will not promote the ends of justice, should not be permitted if it is unjust to the witness and uncalled for by the circumstances”); Mosley v. State, 616 So.2d 1129, 1130 (Fla. 3d DCA 1993).

Based on the facts of this case, we conclude that the trial court did not abuse its discretion by limiting the cross-examination to only preclude the defense from inquiring as to the nature of the pending charges in Broward County. Stubbs testified at trial without objection that: (1) he currently had pending charges in Broward County; (2) the State was not assisting him with his pending charges; and (3) he did not expect to receive anything in exchange for his testimony. The defense was, however, precluded from inquiring into the nature of the pending charges, which was for possession of heroin. The jury, however, also learned that Stubbs had provided his statements to the police in 2008, prior to his arrest for the charges that were pending during the 2014 trial, taken on January 12, 2008, four days after the shooting and a second statement given three months later. The two 2008 statements, which were made prior to his arrest in Broward County, were consistent with each other and with Stubbs’s 2014 trial testimony.

However, even if the trial court erred, any error was harmless beyond a reasonable doubt because the defense was permitted to question Stubbs about the pending charges, ask Stubbs whether he had been offered or promised anything in exchange for his testimony, and inquire into whether he expected to receive any benefit for his cooperation with the State. And as already stated, Stubbs had provided two statements to the police in this case in 2008, some six years prior to his trial testimony and prior to his arrest in Bro-ward County for possession of heroin, and these statements were consistent with his trial testimony. Additionally, the State relied on the testimony of: (1) Blanchard, who drove the defendant to the scene of the shooting; watched the defendant as he exited the vehicle and retrieved an AK-47, and heard shots being fired as he drove away, and to whom the defendant admitted being involved in the shootings the following day; and (2) Norris McDowell, who testified that the defendant had confessed to committing the crimes to him in jail where McDowell was being held on misdemeanor prostitution charges. We, therefore, find no reversible error as to this ground raised on appeal.

CONCLUSION

Because we find that the trial court either did not abuse its discretion regarding any of the above mentioned issues or that if the trial court erred, the error was harmless beyond a reasonable doubt, we affirm. As to any remaining arguments raised by the defendant, we have determined that they are without merit and thus we have declined to specifically address them.

Affirmed.

      . During the investigation, the police found an AK-47 and AK-47 bullet casings at the crime scenes.