author: Taylor, J.

text:
    Kenneth WHITTAKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1036
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2017]

      Carey Haughwout, Public Defender, and Jessica De Vera, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   Taylor, J.

Kenneth Whittaker appeals the sentence imposed after the trial court revoked his probation. We reverse and remand for the trial court to: (1) hold a new sentencing hearing and make the necessary written findings under section 948.06(8)(e), Florida Statutes (2015); (2) strike the $400 public defender fee without prejudice to the fee being reimposed on remand after the proper procedure is followed; and (3) enter a written order of revocation of probation specifying the conditions appellant was found to have violated.

Appellant entered a plea of no contest to the charge of aggravated battery with a deadly weapon. He was placed on probation for a period of five years. The state later charged appellant with six probation violations, including a new law violation for resisting an officer without violence.

At a “danger hearing,” appellant’s probation officer testified that he did not think appellant was a danger to the community, but that he was not sure. The trial court found as follows: “I do not find [appellant] to be a danger, based upon all the testimony.” Appellant entered an open plea to all alleged violations.

Over defense counsel’s objection, appellant’s scoresheet included 12 points for violating probation as “a violent felony offender of special concern.” Appellant received a bottom-of-the-guidelines sentence of 49.05 months in prison with credit for time served. The trial court also assessed a $400 public defender fee without notice or a hearing.

The disposition order indicated that appellant was “not a danger” and that appellant’s probation was revoked. However, the disposition order did not indicate that the trial court considered any of the factors set forth in section 948.06(8)(e)l.a.-e., Florida Statutes (2015). The trial court also did not enter a written order of revocation of probation specifying the conditions appellant was found to have violated.

During the pendency of this appeal, appellant filed two unsuccessful motions to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2). The motions collectively raised the same arguments he now raises in this appeal.

The legality of a trial court’s sentencing is reviewed de novo. Cherilus v. State, 199 So.3d 392, 394 (Fla. 4th DCA 2016).

On appeal, appellant first argues that the trial court failed to comply with the statutory procedure governing a violation of probation by a violent felony offender of special concern (“VFOSC”), as the trial court did not make the “danger” finding using the statutorily enumerated factors under section 948.06(8). Appellant further argues that, because the order designating him as a VFOSC fails to comply with statutory requirements, this court must strike that designation. Appellant therefore maintains that he should have received 6 points, rather than 12 points as a VFOSC, for his violation of probation, which would reduce his lowest permissible sentence. As a remedy, appellant argues that this court should reverse his sentence and remand for a new sentencing hearing where he cannot be designated as a VFOSC.

The state agrees that appellant is entitled to a new sentencing hearing, but otherwise disagrees with appellant’s requested relief. The state argues that the VFOSC designation should not be removed and that the proper remedy is to reverse the sentencing order for another sentencing hearing with directions that the trial court make the necessary written findings under section 948.06(8)(e)l.

A “violent felony offender of special concern” includes a person who is on felony probation or community control related to the commission of a qualifying offense committed on or after the effective date of the Act. § 948.06(8)(b)l., Fla. Stat. (2015). The term “qualifying offense” includes aggravated battery. § 948.06(8)(c)3., Fla. Stat. (2015).

If a person qualifies as a VFOSC and commits a violation of probation or community control (other than a failure to pay costs, fines, or restitution), the trial court must make written findings as to whether the VFOSC poses a danger to the community:

(e) If the court, after conducting the hearing required by paragraph (d), determines that a violent felony offender of special concern has committed a violation of probation or community control other than a failure to pay costs, fines, or restitution, the court shall:
1. Make written findings as to whether or not the violent felony offender of special concern poses a danger to the community. In determining the danger to the community posed' by the offender’s release, the court shall base its findings on one or more of the following:
a. The nature and circumstances of the violation and any new offenses charged.
b. The offender’s present conduct, including criminal convictions.
c. The offender’s amenability to nonin-carcerative sanctions based on his or her history and conduct during the probation or community control supervision from which the violation hearing arises and any other previous supervisions, including disciplinary records of previous incarcerations.
d. The weight of the evidence against the offender.
e. Any other facts the court considers relevant.
2. Decide whether to revoke the probation or community control.
a. If the court has found that a violent felony offender of special concern poses a danger to the community, the court shall revoke probation and shall sentence the offender up to the statutory maximum, or longer if permitted by law.
b. If the court has found that a violent felony offender of special concern does not pose a danger to the community, the court may revoke, modify, or continue the probation or community control or may place the probationer into community control as provided in this section.

§ 948.06(8)(e), Fla. Stat. (2015) (emphasis added).

“[T]he written findings requirement of section 948.06(8)(e) is mandatory, not discretionary.” Barber v. State, 207 So.3d 379, 384 (Fla. 5th DCA 2016). “The statute provides that there are a number of factors the trial court should consider in making the dangerousness determination, and that decision must be based on one or more of them.” Id...

Nonetheless, because a defendant’s designation as a VFOSC does not depend on a finding that the defendant poses a danger to the community, a trial court’s failure to make written findings under section 948.06(8)(e) as to whether a defendant poses a danger to the community does not entitle the defendant to have the VFOSC designation stricken. In Barber, the Fifth District conducted an exhaustive analysis of section 948.06(8) and explained:

For purposes of our discussion, section 948.06(8) can be analyzed in two parts. The first part deals with provisions that pertain to the requirements that must be met to qualify a person as a violent felony offender of special concern, which include provisions for pretrial detention for those who qualify. See § 948.06(8)(b)-(d), Fla. Stat. (2016); see also Fla. R. Crim. P. 3.790(b)(3)(A). The second part deals with sentencing of individuals who, are found by the trial court to be in violation of a non-monetary condition and who are violent felony offenders of special concern, found to pose,, a danger- to the. community. See § 948.06(8)(e), Fla. Stat. (2015); see also Fla. R. Crim. P. 3.790(b)(3)(B). The designation wider the first part of the statute does not depend on findings that the individual poses a danger to the community. However, for sentencing purposes under the second part of the statute, the designation under the first part is a nécessary ingredient. Hence, the designation under the first part is applicable and has -significance in the pretrial context before the case progresses to sentencing. If the defendant is found to be a danger to the community, that finding results in the designation under the second part of the statute. If not,, there is .nothing in the statute to. indicate that the designation under the first part must be eliminated. Accordingly, we reject the notion espoused by Barber that noncompliance with the written findings necessary for sentencing purposes requires that the designation under the first part of the statute be stricken.
Barber’s reliance on Bailey v. State, 136 So.3d 617 (Fla. 2d DCA 2013), is misplaced, so that decision is of no benefit to him. In Bailey, the court was concerned with the sufficiency of the written findings filed by the trial court to support its conclusion that the defendant qualified as a violent felony offender of special concern who posed a danger to the community under section 948.06(8)(e). Id. at 620-21. The court noted that the defendant did not contest the fact that he qualified for designation under sections 948.06(b)-(d). Id. at 619. The court held -that, because the written findings -were insufficient for the designation under section ‘ 948.06(8)(e), the designation-must be stricken. Id. at 620-21. There is nothing in the opinion indicating that the court meant to strike the designation under sections H8.06(8)(b)~ (d).

Id. at 383.

A trial court’s finding under section 948.06(8)(e) as-to whether a defendant who qualifies as a VFOSC poses a danger to the community is significant because it determines whether revocation of probation is mandatory , or discretionary. § 948:'06(8)(e)2., Fla. Stat. (2015). However, because a guidelines sentence “would be legal irrespective of the findings made pursuant .to section 948.06(8)(e),” a trial court’s failure to make the mandated written findings under section 948.06(8)(e) does not necessitate reinstatement of the defendant’s probation. See Barber, 207 So.3d at 383-85. Rather, “the proper remedy is to reverse the sentencing order and remand for another sentencing hearing with directions that the trial court make the necessary written findings under section 948.06(8)(e) when imposing its sentence.” Id, at 385.

Here, the trial court did make a conclusory written finding that appellant was “not a danger” to the community, but there is no indication in the disposition order that the trial court based its finding on one or more of the factors set forth in section 948.06(8)(e)l.a.-e. Thus, the trial court’s disposition order is deficient. See Bailey, 136 So.3d at 620 (“While the trial court did place an ‘X’ on the line indicating that it found Bailey to be a violent felony offender of special concern who posed a danger to the community, the court did not place an ‘X’ in any of the blanks to indicate which specific facts listed in section 948.06(8)(e) it was relying on to find that Bailey qualified as such.”).

Appellant is not entitled, however, to have the VFOSC designation stricken. Appellant indisputably qualifies as a VFOSC under section 948.06(8)(b)-(c). This designation does not depend on a finding as to whether he poses a danger to the community. Regardless of the adequacy of the trial court’s findings under section 948.06(8)(e), the trial court correctly imposed 12 points on appellant’s scoresheet due to his violation of probation as a VFOSC. See § 921.0024(b)2.a., Fla. Stat. (2015). Thus, there is no scoresheet error concerning appellant’s designation as a VFOSC.

Appellant’s reliance upon Bryant v. State, 148 So.3d 1251 (Fla. 2014), is misplaced because the required written findings at issue in that case were necessary to support the imposition of an upward departure sentence. In Bryant, the Florida Supreme Court held that a sentence in excess of a nonstate prison sanction constitutes an upward departure sentence where a defendant scores 22 points or fewer so as to implicate section 775.082(10), which requires the sentencing court to impose a nonstate prison sanction unless it makes written findings that such a sentence poses a danger to the public. Id, at 1258. The Florida Supreme Court further held that when any upward departure sentence is vacated, a guidelines sentence must be imposed on remand even if the trial court’s original error was failing to articulate the reasons supporting the sentence in a written order. Id. at 1257.

In contrast to Bryant, and contrary to appellant’s argument, a VFOSC designation is not “effectively an upward departure.” The VFOSC designation is based on a defendant’s criminal history, and does not depend on whether the trial court has made the required written findings pursuant to section 948.06(8)(e). While the VFOSC designation results in additional points on the defendant’s scoresheet if a defendant violates probation, it does not result in an upward departure from the sentencing guidelines.

Moreover, - even when a trial court finds under section 948.06(8)(e) that a defendant designated as a VFOSC poses a danger to the community, this finding has no bearing on the statutory maximum sentence, but rather' is relevant to the decision whether to revoke probation. Where a trial court imposes a guidelines sentence on a defendant who has been designated as a VFOSC, the sentence is “legal irrespective of the findings made” under section 948.06(8)(e). Barber, 207 So.3d at 384. Thus, unlike the situation in Bryant where the required written findings were necessary to support an upward departure, a trial court’s failure to make the required written findings under section 948.06(8)(e) is not the type of sentencing error that cannot be corrected on remand.

Under the specific facts of this case— where the trial court found that appellant was not a danger to the community and imposed a guidelines sentence—any suggestion that an “upward departure” sentence was imposed is without merit. Put simply, the present case does not involve an upward departure sentence.

Based on the foregoing, we reverse and remand “for another sentencing hearing with directions that the trial court make the necessary written findings under section 948.06(8)(e) when imposing its sentence.” Barber, 207 So.3d at 385.

Next, appellant correctly argues, and the state concedes, that we should reverse the trial court’s imposition of a public defender fee in excess of the $100 minimum under section 938.29(l)(a), Florida Statutes (2015), which was done without notice and a hearing, and without factual findings supporting the higher amount of fees. See Alexis v. State, 211 So.3d 81, 82-83 (Fla. 4th DCA 2017). We therefore reverse and remand for the trial court “to reduce the public defender fee to the statutorily required $100 or to hold a hearing with proper notice to obtain evidence in support of a public defender fee in an amount greater than the statutory minimum.” Id. at 83.

Finally, we remand for entry of a written order of revocation of probation specifying the conditions appellant was found to have violated. See, e.g., Clark v. State, 201 So.3d 799, 799 (Fla. 4th DCA 2016).

Reversed and Remanded

May and Ciklin, JJ., concur.

      . The Bryant court recognized an exception for cases involving habitual felony offender sentencing, Id. at 1259.


source: Caselaw Access Project

author: Forst, J.

license: Public Domain

text:
    Mustafa A. ABDULLA, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2606
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2017]

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

The Appellant in this case, Mustafa Ab-dulla, raises a single issue for our review: whether comments made by the prosecutor during closing arguments were impermissible and harmful such that a new trial is required. We agree with Appellant that some of the prosecutor’s comments rose to that level, and accordingly reverse and remand for a pew trial. .

Background

The charges against Appellant stem from an incident late at night at a convenience store. According to the State, Appellant was in the store when he pulled a concealed firearm from his waistband and waved it around. Appellant stated that he wanted to kill or shoot someone that night, pointed the gun at a store employee, and later ordered both customers and employees alike out of the store. Based on this theory, the State charged Appellant with aggravated assault with a firearm and with carrying a concealed firearm.

Appellant presented a much .different story to the jury. His-account was. that he picked up the store’s firearm, not his own, and used it to defend himself from a customer with a knife. Appellant, through counsel, claimed that he never pointed the gun at the employee.

As part of its case in chief, the State called a close friend of Appellant’s as a witness. However, the witness’s testimony was largely contradictory to the State’s theory of events and to the testimony of the store’s employee which had previously been elicited. The witness testified that there was a belligerent customer with a knife, and that Appellant- brandished the store’s gun in defense.

The State then impeached the witness using his prior inconsistent statements made to an officer shortly after the events at the store. At that time, the witness had stated that Appellant pulled the gun from his waistband and that he had threatened to shoot somebody. When confronted with these statements at trial, the witness admitted that he had previously said those things to the officer, but claimed that he was lying when he did.

During closing arguments, the prosecutor made two sets of comménts relevant on appeal. First, he recounted how the, witness testified that the gun did not come from Appellant’s waistband, but told the jury to disbelieve' the testimony, saying “but you heard his [prior] statement.” After this comment was objected to and the objection overruled, the prosecutor discussed how the State had impeached the witness’s statement by playing his prior statement. The prosecutor then stated the following:

The statement he gave that morning, I want you to think about the mind-frame of somebody testifying yesterday, or somebody testifying that morning. He gave a sworn statement that morning. That means before five months of meeting with [Appellant], of talking to defense attorneys, of thinking about the case, of strategizing of [sic] theories, of how to get [Appellant]—
[Appellant objected at this point and was overruled]
Before the chance to meet and talk with his cousin. Before the chance to talk to defense attorneys. Before the chance to come up with a defense to a criminal case came up, .that gun as you heard came from the waistband yesterday on the stand, it changed. You don’t get to dt> that five or six months later. He tried to. But when you do, your credibility gets impeached. You can consider that statement as an impeachment of. his credibility.

Later during closing arguments, the prosecutor said that the reason it had to play the witness’s prior statements was “to get the truth out.” He then asked, “What was his truth? The statement on the night that it happened ... or his statement yesterday ... [?[?] ” After recounting a variety of contradictions between the witness’s prior statement and his testimony, the prosecutor presented one final contradiction, saying as follows:

“Isn’t it true that you said the gun was pulled from his waistband”? “No, never said that.” ‘Want to listen to your statement”? “Oh, yeah, it .was pulled from his waistband.” The firearm in evidence was pulled from [Appellant’s] waistband.

The jury convicted Appellant for improper exhibition of a dangerous weapon or firearm, a lesser included offense of aggravated assault with a deadly weapon, and for cariying a concealed firearm. Appellant was sentenced and this appeal followed.

Analysis

Claims of improper closing arguments by a prosecutor are reviewed for an abuse of discretion. Paul v. State, 958 So.2d 1135, 1136 (Fla. 4th DCA 2007). The comments must be viewed “within the context of the closing argument as a whole and considered cumulatively within the context of the entire record.” McArthur v. State, 801 So.2d 1037, 1040 (Fla. 5th DCA 2001).

A. Prior Inconsistent Statements

Prior inconsistent statements are admissible for impeachment purposes so long as the goal is to have the jury “disbelieve both statements” rather than to convince the jury “that the prior statement is true and the in-court testimony is false.” Espinoza v. State, 37 So.3d 387, 388 (Fla. 4th DCA 2010). Put another way, “[a] witness’s prior inconsistent statement to a police officer cannot be used as substantive evidence.” Ivery v. State, 548 So.2d 887, 888 (Fla. 2d DCA 1989).

Here, viewing the 'quoted statements above within the necessary context, we hold that the prosecutor’s comments crossed the line from proper argument about impeachment into an improper claim that the prior statements were substantive evidence. Although the prosecutor’s initial statements emphasized the impeaching nature of the testimony, the later question'to the jury asking ‘What was his truth?” was a clear attempt to ask the jury to determine which of the two statements was true, not to determine whether the statement made at trial was true or false. See Espinoza, 37 So.3d at 388. The statements regarding “get[ting] the truth out” crossed the proverbial fine line between impeachment and using the prior inconsistent statements as proof of the matter asserted therein.

B. Statements Regarding Appellant’s Suborning of Perjury

‘Wide latitude is permitted in arguing to a jury.” Hosang v. State, 984 So.2d 671, 672 (Fla. 4th DCA 2008). “[T]he prosecution is permitted to comment upon the essential unbelievability of a [witness’s] testimony.” Reaves v. State, 324 So.2d 687, 688 (Fla. 3d DCA 1976). It is even appropriate for counsel to refer to a witness as a “liar.” Valentine v. State, 98 So.3d 44, 56 (Fla. 2012). However, “[a] suggestion that the defendant suborned perjury or that a defense witness manufactured evidence, without a foundation in the record, is completely improper.” Evans v. State, 62 So.3d 1203, 1204 (Fla. 4th DCA 2011) (quoting Cooper v. State, 712 So.2d 1216, 1217 (Fla. 3d DCA 1998)). “[T]he fact that a witness is impeached may imply that the witness is lying, but it does not imply that someone else has made the witness change [his] story.” Id. at 1205 (quoting Henry v. State, 651 So.2d 1267, 1268 (Fla. 4th DCA 1995)).

Here, the prosecutor described how five months of the witness meeting with Appellant, meeting with defense attorneys, and strategizing a defense might have led to him changing his story. This is not an allegation that the witness decided on his own to lie and commit perjury, it is an inference that the witness, through speaking with defense counsel and Appellant, came up with a defense strategy involving perjury. One can reasonably interpret this as the prosecutor conveying to the jury that Appellant and his counsel were complicit in the witness’s alleged perjury.

C. Harmless Error

Having determined that the trial court erred in allowing the prosecutor to tell the jury to consider the witness’s prior inconsistent statement as substantive evidence and in allowing him to imply that Appellant devised a strategy with the witness in which the witness would perjure himself, the only question remaining is whether these errors were harmless. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986) (holding that an error is harmless only if “there is no reasonable possibility that the error contributed to the conviction”).

We make particular note of the fact that the witness who was impeached was called not by Appellant, but rather by the State itself. Although Appellant did not raise the fact that the witness was called as a reason for reversal, it appears as though the State chose to call this witness for the sole purpose of impeaching him and thereby introducing his prior inconsistent statements. We cannot conclude that the trial court’s overruling Appellant’s objections to these statements did not contribute to the conviction. The State has not met its burden of showing beyond a reasonable doubt that the errors in this case, which turned entirely on the credibility of the various witnesses, were not harmless.

Conclusion

The prosecutor’s statements during closing arguments which directed the jury to consider prior inconsistent statements as substantive evidence rather than just as impeachment evidence were not proper comments on the evidence. Similarly, the prosecutor’s suggestion that the witness committed perjury as part of a strategy devised with defense counsel and Appellant himself was completely improper. The error in allowing these statements to be presented to the jury in closing arguments was not harmless. Accordingly, we reverse Appellant’s conviction and remand for a new trial.

Reversed and remanded.

Gerber, C. J., and Warner, J., concur.

      , The State’s case was based, in large part, on the testimony of the store’s employee, who was behind the counter during the incident.

      . No exceptions to this general rule are relevant to this case.

      . We note that the new trial may not involve a charge for aggravated assault with a firearm, for which Appellant was implicitly acquitted, and may instead only be on the charges which resulted in a conviction: improper exhibition of a firearm and carrying a concealed firearm. See Green v. United States, 355 U.S. 184, 189-190, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Middleton v. State, 131 So.3d 815, 815-18 (Fla. 1st DCA 2014).


author: Per Curiam.

text:
    Larry ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3686
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2017]
    Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Larry Rogers timely appeals the trial court’s order denying his rule 3.800(a) motion, where he alleged that his sentence is unconstitutional under Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). We affirm, because Rogers has not shown a violation of the Eighth Amendment under Graham.

In 1972, Rogers was convicted of robbery, an offense he committed at the age of seventeen. He was sentenced to life in prison with the possibility of parole. After spending seven years in prison, Rogers was released on parole. Rogers was rein-carcerated in 1979 when he violated his parole by committing robbery with a deadly weapon at the age of twenty-eight. He was released on parole again in 1990, but was reincarcerated again after violating his parole by committing grand theft in 1999.

Rogers claims that he is serving a de facto life without parole sentence for a nonhomicide crime committed as a juvenile in violation of the Eighth Amendment as interpreted by Graham and Henry v. State, 175 So.3d 675 (Fla. 2015). He requests resentencing pursuant to chapter 2014-220, Laws of Florida, which is the proper remedy for a Graham violation. Henry, 175 So.3d at 680.

Because Rogers was released on parole, he cannot show a violation of the Eighth Amendment under Graham, which held that:

A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation .... It bears emphasis, however, that while the Eighth Amendment prohibits a State from imposing a life without parole sentence on a juvenile nonho-micide offender, it does not require the State to release that offender during his natural life.

Graham, 560 U.S. at 75, 130 S.Ct. 2011. (emphasis added),

' A juvenile offender who has actually been released from a prison sentence has received more than what Graham requires. Rogers had an opportunity for release and was in fact released from prison twice on parole. He has ..not shown that his sentence violates the Eighth Amendment under Graham, and he is not entitled to resentencing, See Currie v. State, No. 1D16-5578, 219. So.3d 960, 960-61, 2017 WL 2350119, at *1 (Fla. 1st DCA May .31, 2017) (reaching a similar conclusion for different reasons).

Affirmed.

Warner, Gross and Klingensmith, JJ., concur.

      . We decline to reach Rogers’ argument that his discretionary sentence of life with the possibility of parole is unconstitutional under the holding of Landrum v. State, 192 So.3d 459 (Fla. 2016). This issue was not raised in the motion filed below and is not properly raised for the first timé in this appeal.


author: Ciklin, J.

text:
    Benjamin B. STALKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4675
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2017]

      Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   Ciklin, J.

Benjamin B, Stalker challenges his convictions for numerous child sexual abuse charges and raises six issues, all of which we affirm. However, we write to explain why the defendant’s appeal of the state’s reliance on different factual theories to prove one of the sexual battery counts cannot be raised for the first time before this court.

The state charged Stalker with, among other offenses, three counts of sexual battery on a person less than 12 by a person 18 years or older. Count IV of the Information alleged that “[o]n or between November 1, 2010 to December 23, 2013, [Stalker] ... on one or more occasions, did unlawfully commit sexual battery, to wit: vaginal penetration ..,. ” The Information was subsequently amended as to' Count IV to reflect a beginning date of October 1, 2009 and to allege “union with” in addition to penetration.

We need not delve into the details of the evidence presented at trial. It suffices to say that Stalker argues that it is not apparent the jury returned a unanimous verdict on Count IV because the state presented two factual theories for commission of the offense. He asserts that this amounts to fundamental error, and he requests that on remand for a new trial, the state elect the theory on which it intends to proceed.

Stalker is limited to arguing fundamental error because the alleged error he complains of was not preserved. “Fundamental error is error that ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” Krause v. State, 98 So.3d 71, 73 (Fla. 4th DCA 2012) (quoting Bassallo v. State, 46 So.3d 1205, 1209 (Fla. 4th DCA 2010)).

In support of his argument, Stalker relies on two cases, Perley v. State, 947 So.2d 672 (Fla. 4th DCA 2007), and Chaffin v. State, 121 So.3d 608 (Fla. 4th DCA 2013). In Perley, this court held that fundamental error occurred when the state charged Perley with one count of escape but presented evidence of- two entirely separate incidents of escape, thus making it unclear whether the jury’s verdict was unanimous. 947 So.2d at 674-75. Likewise, in Chaffin, this court held that the defendant’s conviction of tampering with evidence constituted fundamental error where he was charged with one count but the state informed the jury that it could convict based on either of the two distinct incidents of tampering. 121 So.3d at 615-16.

These cases are distinguishable, as illustrated in Whittingham v. State, 974 So.2d 616 (Fla. 4th DCA 2008). There, as in this case, the defendant sexually abused his girlfriend’s daughter over a period of years. Id. at 617. And like the instant case, the state in Whittingham “grouped the various types of abuse into single counts.” Id. Further:

On some counts, the victim’s testimony showed multiple, indistinct acts within a certain time range. On one count of abuse by way of vaginal intercourse, the victim was able to remember several distinct acts of intercourse at different places and different times. The defense did not object to the charging of these incidents in one count or to the submission to the jury of this one count.

Id. On appeal, the defendant argued that “because several counts submitted to the jury were each supported by more than one criminal episode, the jury verdict could be non-unanimous, resulting in fundamental error,” as in Perley. Id. In distinguishing Perley and finding that the issue could not be raised for the first time on appeal, this court reasoned as follows:

[T]he prosecutor in this case charged the defendant with a different type of sexual abuse in each separate count. Some counts charged that the act occurred within a specific time frame. Others charged the specific type of sexual abuse “on one or more occasions” within a specified time range. This is the same method of charging that we approved in [State v. Generazio, 691 So.2d 609 (Fla. 4th DCA 1997),] when a victim cannot be more specific regarding dates or events. The appellant never moved to dismiss the information or requested a bill of particulars to narrow the time gap or challenged the method of charging in any respect.
Child sexual abuse cases pose unique problems for prosecution, as our supreme court has recognized. See Dell’Orfano v. State, 616 So.2d 38, 35 (Fla. 1993). Because the state may charge a defendant in child sexual abuse cases in a manner not permitted in other types of criminal cases, expanding time periods for the commission of offenses and grouping types of offenses together, we hold that it is not fundamental error to submit such a charge to the jury. A defendant must object at trial to ... preserve the objection. Otherwise, the prosecution may assume that by failing to challenge the charging pattern, the defendant has acquiesced in the state’s determination to charge all of the same type of acts within a single count. Indeed, by doing so the prosecution actually lessens the potential penalty to the defendant. Where each charge is discrete and charged as such, the defendant is subject to substantially greater penalties and potential consecutive sentencing on each charge.

Id. at 618-19. The court distinguished Per-ley on the basis that the prosecutor there invited the jury to convict based on either incident of escape. Id. at 619. However, the court emphasized that “[m]ore importantly ... Perley was not a child sexual abuse case, which the courts have consistently treated differently from other types of prosecution.” Id.

In a subsequent case, this court went one step further in finding that there was no fundamental error even where the prosecutor invited the jury to convict the defendant if it found that he “put his penis in her vagina .... the first time, or .., the second time, or ... both.” Elghomari v. State, 66 So.3d 416, 422 (Fla. 4th DCA 2011) (first alteration added).

As in Whittingham, various - types of abuse charged in the instant case were grouped into single counts. Stalker does not assert that he sought a statement of particulars or otherwise challenged the pattern of charging in the proceedings below, nor has he distinguished Whittingham or Elghomari in his briefs. Because none of the errors raised by Stalker require reversal, we affirm.

Affirmed.

Taylor and May, JJ., concur.


text:
    Demetrius Jeffrey HOPKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4266
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2017]

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Taylor, J.

Appellant, Demetrius Jeffrey Hopkins, was found guilty by a jury of first-degree murder with a firearm. On appeal, he argues that the trial court abused its discretion in denying his motion for continuance, imposing an unreasonable time limitation on voir dire, and denying challenges for cause of two jurors who expressed doubts about their ability to follow the law if appellant 'did not testify. We affirm the trial court’s ruling on the motion for continuance but reverse for a new trial because of the trial court’s errors during jury selection.

At the beginning of trial, the trial court advised counsel that each side would be limited to three hours for voir dire. Defense counsel objected to this time limit, and when the clerk later announced the end of the three hours, he renewed his objection and requested twenty additional minutes to question seven remaining jurors whom he had not been able to question individually. Defense counsel proffered to the court the areas of inquiry he wanted to cover, including firearms and misidentification. The trial court denied the request.

We review a trial court’s imposition of time limits on voir dire for an abuse of discretion. O’Hara v. State, 642 So.2d 592, 593-94 (Fla. 4th DCA 1994).

Florida Rule of Criminal Procedure 3.300(b) affords the parties a reasonable voir dire examination of prospective jurors. The rule preserves the “right of the parties to conduct an examination of each juror orally.” Id. “The purpose of voir dire is to obtain a ‘fair and impartial jury to try the issues in the cause.’” Williams v. State, 424 So.2d 148, 149 (Fla. 5th DCA 1982) (quoting King v. State, 390 So.2d 315, 319 (Fla. 1980), receded from on other grounds by Strickland v. State, 437 So.2d 150 (Fla. 1983)).

Trial courts have considerable discretion in determining the extent of counsel’s examination of prospective jurors. This includes setting time limitations on voir dire. Perry v. State, 675 So.2d 976, 979 (Fla. 4th DCA 1996). However, limits that do not “flex with the circumstances” can result in unreasonable curtailment of counsel’s efforts to obtain a “fair and impartial jury to try the issues in the cause.” Williams, 424 So.2d at 149.

According to appellant, the trial court’s pre-established time limit on voir dire allowed counsel only 3.6 minutes per juror and prevented counsel from pux-suing a reasonable voir dire examination. See Gosha v. State, 534 So.2d 912, 912 (Fla. 3d DCA 1988) (holding that, as a matter of law, a one-to-three minute limit for voir dire examination of each potential juror is unreasonable and an abuse of discretion).

The state, relying on Anderson v. State, 739 So.2d 642 (Fla. 4th DCA 1999), responds that the trial court did not abuse its discretion in limiting voir dire in this case. In Anderson, we affirmed the trial judge’s 30-minute limitation on voir dire for each party. We stated that “[i]n reviewing a trial court’s discretionary decision to limit the amount of time allotted for voir dire, we consider ‘the nature of the case and the reasonableness of the use, by the attorneys, of the time allotted.’ ” Id. at 644 (quoting Rodriguez v. State, 676 So.2d 189, 191 (Fla. 3d DCA 1996)).

We find Anderson distinguishable. Unlike the less severe grand theft charge in Anderson, the charged offense in this case was first-degree murder with a firearm. Moreover, as we pointed out in Anderson, defense counsel in that case did not object when the trial court informed counsel of the 30-minute limitation at the beginning of voir dire. Here, in contrast, defense counsel objected to the initial imposition of the 180-minute time limit, as well as to the trial court’s later refusal to extend the time for examination. Given the large jury pool and the very few minutes the 3-hour time permitted counsel with each juror, the trial court abused its discretion in refusing to grant a few additional minutes, where there were jurors whom defense counsel could not reach within the allotted time for voir dire. See Perry, 676 So.2d at 979 (holding that the trial court abused its discretion when it terminated voir dire before defense counsel had an opportunity to question all jurors individually).

Appellant next argues that the trial court committed reversible error in denying his cause challenges of two jurors who expressed ambivalence about their ability to follow the law if the defendant chose not to testify.

During jury selection, when defense counsel asked whether the jurors would be influenced by an accused’s decision not to testify, the following exchange occurred:

Juror Mr. C: You know, I’m constitu-tionalist. I fully understand why the 5th is the 6th but, it’s—you know, there are two sides to every story, and both sides are going to get the—a lot of the details wrong but, unless you hear both sides, you can’t—I don’t think you could actually—yeah, that’s tough for me.
Defense Counsel: I hear what you’re saying, you’re saying, it’s tough. And I think most people and—was it Ms. C with the seven children. You mentioned how in deciding what you would do in terms with your children, you would hear both sides, you know, and talk to your kids, and so this kind of applies with us too. You might have that kind of, like, it’s the normal reaction, yeah, I want to hear both of sides, but you might not. And the. question really is— it’s not, do you want to hear both sides.
Juror Mr. C: I know the question you’re asking, it’s going to a negative—it may not be enough to influence me or to change my mind one way or another, but it’s going to negatively influence the way I’m thinking about what’s going on.
Defense Counsel: Okay. And could it negatively influence the way you are thinking in a way that would be adverse to the accused?
Juror Mr. C: That possibility exists.

Another prospective juror, Juror Mr. P, stated that he had similar concerns about a defendant not testifying. He noted that politicians are notorious for taking “The Fifth” on issues they do not want to address for fear of being incriminated. The trial judge pointedly asked Juror Mr. P if he could simply follow the law. Juror Mr. P initially replied, “I believe I can, yes,” but then he added, “I’m not certain that I can.”

Defense counsel moved to strike Jurors Mr. C and Mr. P for cause. After the trial court denied the motions, defense counsel used peremptory strikes on these jurors and requested two additional peremptory challenges to strike other objectionable venirepersons. When the trial court denied the request, defense counsel noted for the record that his acceptance of the jury was subject to the qualification that he would have used a peremptory challenge on Juror Ms. C, a bartender like the critical trial witness against appellant. Juror Ms. C actually sat on the jury.

The standard of review of a trial court’s ruling on a cause challenge is abuse of discretion. Ranglin v. State, 55 So.3d 744, 746 (Fla. 4th DCA 2011). “The test for determining juror competency is whether a prospective juror can lay aside any prejudice or bias and decide the case based solely on the evidence and the court’s instructions.” Chapman v. State, 593 So.2d 605, 606 (Fla. 4th DCA 1992). When there is a reasonable doubt about the ability of a juror to decide the case fairly and impartially, the juror should be excused for cause. Id. “[A]mbiguities or uncertainties about a juror’s impartiality should be resolved in favor of excusing the juror.” Carratelli v. State, 961 So.2d 312, 318 (Fla. 2007).

In this case, the responses of Jurors Mr. C and Mr. P. during voir dire examination raised reasonable doubt as to their ability to render an impartial decision. Mr. C admitted that not hearing the defendant’s side of the story might negatively influence his view of the defense. Mr. P likewise was not certain he could follow the law if the defendant exercised his right not to testify. Thus, these jurors should have been excused for cause and appellant should not have been required to use his peremptory challenges to excuse them. Each of the trial court’s errors during jury selection provides an independent ground for reversal. Accordingly, we reverse appellant’s conviction and sentence and remand for a new trial.

Reversed and Remanded for a new trial.

Warner and Levine, JJ., concur.

      . The jury pool started with 80 potential jurors but was reduced to about 50 potential jurors by the time appellant began his examination.


text:
    Rachelle Marie JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4854
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2017]

      Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

Appellant Rachelle James appeals the trial court’s restitution order requiring her to pay $22,997.95 with respect to thirty pieces of jewelry that were stolen from the victim. Appellant originally pled no contest to seven counts of giving false information to a pawnbroker contrary to section 539.001(8)(b)8.a., Florida Statutes (2013), and seven counts of dealing in stolen property contrary to section 812.019(1), Florida Statutes (2013). On appeal, Appellant first argues the trial court incorrectly ordered restitution for twenty pieces of jewelry.

She secondly argues that the trial court miscalculated the restitution value for almost all of the jewelry for which restitution was appropriate. As set forth below, we agree with Appellant’s first argument and therefore reverse in part the restitution order concerning twenty of the jewelry pieces. Due to Appellant’s failure to object below to the valuation of the remaining ten items, we affirm with respect to those jewelry pieces.

Background

The State charged Appellant with seven counts of giving false information to a pawnbroker and seven counts of dealing in stolen property. Appellant pled no contest to all counts. For the crimes, the trial court sentenced Appellant to a total of five years in prison, followed by ten years of probation.

At the plea hearing, the prosecutor provided the factual basis for the plea, saying: “the State would have shown that this Defendant was hired as a house cleaner for the victims in this case .... For some time they started noticing jewelry missing and other items missing from the house and they weren’t quite sure what was going on.” The prosecutor then explained that “[ejventually they figured out it was this Defendant who was stealing from them. ... There was a controlled phone call done between the victim and this Defendant. This Defendant admitted in this controlled call that she stole the jewelry to pay for her drug habit.” Later at the restitution hearing, the victim recalled that Appellant was the only person who had a house key other than the victim and her husband.

At the same restitution hearing, Appellant objected to the trial court ordering restitution for twenty pieces of jewelry that the State did not include in the information. Appellant argued the information only charged her with dealing in stolen property and she therefore should only have to pay restitution for the ten items she admitted she pawned. The prosecutor disagreed, saying, “[t]his is one criminal episode. The testimony;that was unrebut-ted was, you know, this Defendant was the only one who had access. You have all these items missing and she pawns, you know, a bunch of others. So I think- the logical conclusion circumstantially is she pawned them.” The trial court agreed with the prosecutor, explaining that Appellant would have to pay for the twenty additional pieces of jewelry because “the evidence has established that these items were taken during an ongoing criminal episode whereby the Defendant had access to the victim’s-house and these items were missing, that there’s no other evidence to explain their absence.”

Once the State established the number of. pieces of jewelry missing, it sought to calculate their value for • restitution. The State obtained their value by questioning the victim. For fourteen pieces of jewelry, the victim testified she estimated their value based on “website evaluations,” in which she compared the value of her items to similar items online. She did not provide any documentation of the evaluations. For another three pieces of jewelry, the victim estimated their value based on other people’s statements. Finally, for another four pieces of jewelry, the victim estimated their value by guessing their appreciation over time. Appellant’s only objection concerned the victim’s speculation that some of the items had increased in value due to appreciation of the price of gold.

The trial court accepted the victim’s valuation of all thirty pieces of jewelry, and ordered restitution in the amount of $22,997.95. Appellant now appeals the restitution order.

Analysis

“We review trial court restitution orders for an abuse of discretion.” Gonzalez v. State, 40 So.3d 86, 88 (Fla. 4th DCA 2010).

Appellant first argues on appeal that the trial court wrongly imposed restitution for twenty pieces of jewelry she never admitted she pawned. Appellant explains she only entered a no contest plea to pawning ten pieces of stolen jewelry— which she concedes in her initial brief were the subjects of the dealing in stolen property charges. However, the twenty additional pieces of jewelry were relevant to only the separate crime of theft, for which the State did not charge Appellant. Moreover, the State never sought restitution for these stolen items, having failed to include them in its information, arrest warrant affidavits, or factual basis.

We agree with Appellant. The trial court abused its discretion in awarding restitution for the twenty additional pieces of jewelry. Pursuant to section 775.089(l)(a), Florida Statutes (2013), a defendant must pay restitution for damage or loss caused directly or indirectly by his or her offenses and for damage or loss related to the criminal episode. Consequently, it is a foundational rule that “when a defendant agrees to pay restitution as part of a plea agreement, the defendant’s agreement is limited to restitution arising out of the offense charged by the State as reflected in the information and/or by the factual basis for the plea.” Malarkey v. State, 975 So.2d 538, 540-41 (Fla. 2d DCA 2008) (emphasis added); accord A.D. v. State, 152 So.3d 798, 798 (Fla. 4th DCA 2014); see also Socorro v. State, 901 So.2d 940, 941 (Fla. 5th DCA 2005) (“Absent a causal link and significant relationship between the loss for which restitution is ordered and the defendant’s offense, restitution may not be ordered for any loss which resulted from an unrelated offense for which the defendant was not charged or convicted.”).

Relevant here, the State only charged Appellant with dealing in stolen property. The State’s presentation of its factual basis for this charge made clear that it only sought restitution for the twenty additional pieces of jewelry because they were stolen—not pawned. The State’s arrest warrant affidavits are similarly limited in scope to the sole crimé of dealing in stolen property. Accordingly, we find that, in this case, the crime of theft and the crime of dealing in stolen property are unrelated and constitute separate criminal episodes that, here, were separated by time, place, and manner of commission. See Medlin v. State, 180 So.3d 1101, 1102-03 (Fla. 5th DCA 2015) (finding that the trial court erred in awarding restitution for “several items which were not covered by the charges” set forth in the information and “not related to [the defendant’s] conviction”); Faulkner v. State, 582 So.2d 783, 783-84 (Fla. 5th DCA 1991) (similar).

Appellant’s second argument on appeal, related to the value of the pawned items, is unpreserved. As a preliminary •matter, Appellant does not contest in her initial brief the sufficiency of the evidence for items 5, 11, and 24. She does contest the evidence for the other seven pawned items. However, Appellant failed to object below to the valuation of'these jewelry pieces, as the victim’s valuation of. these seven items (4, 12, 14, 21, 25, 26, and 27) was not premised on an increase in the price of gold and thus was not an object of Appellant’s sole objection with respect to valuation prior to this appeal. Having failed to object to the value of these items at the restitution hearing, Appellant failed to preserve the issue for appellate review. See Kiefer v. State, 909 So.2d 572, 574 (Fla. 5th DCA 2005) (“We have held that the contemporaneous objection rule applies to restitution proceedings.”); Fillyaw v. State, 734 So.2d 1136, 1137 (Fla. 1st DCA 1999) (similar); J.S. v. State, 717 So.2d 175, 177 (Fla. 4th DCA 1998) (“Because restitution is imposed after a contested adversary hearing, there is no reason to create a different rule than the one prevailing at trial, where a timely objection is necessary to preserve an issue for appeal, absent fundamental error.”). Accordingly, we affirm the trial court’s valuations of items 4, 5,11,12,14, 21, 24, 25, 26, and 27.

Conclusion

Because the trial court’s order includes restitution for items not related to Appellant’s convictions, we reverse with respect to those items. The trial court can only order restitution for the ten pawned items the State specifically included in its dealing in stolen property charges. Due to Appellant’s failure to object to the trial court’s valuation of all of the remaining items, the court’s order is affirmed with respect to the valuation issue.

Affirmed in part and Reversed in part.

Warner and Levine, JJ., concur.

      . These twenty pieces of jewelry, numbered in accordance with: the trial court’s exhibit one, were items 1, 2, 3, 6, 7, 8, 9, 10, 13, 15, 16, 17, 18, 19, 20, 22, 23, 28, 29, and 30.

      . These ten pieces of jewelry Appellant agrees in her initial brief that she. pawned and owes restitution for were items 4, 5, 11, 12, 14, 21, 24, 25, 26, and 27,


author: Levine, J.

text:
    SEARS, ROEBUCK & CO., Appellant, v. FORBES/COHEN FLORIDA PROPERTIES, L.P., a Michigan Limited Partnership, and City of Palm Beach Gardens, Florida, a Florida Municipal Corporation, Appellees.
    No. 4D16-2314
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2017]

      Gerald F. Richman and Leora B. Freire of Richman Greer, P.A., West Palm Beach, and Natalie J. Spears and Steven L. Mer-ouse of Dentons US LLP, Chicago, Illinois, for appellant.
    Bruce S. Rogow and Tara A. Campion of Bruce S. Rogow, P.A., Fort Lauderdale, and Robert M. Carson and Jeffrey B. Miller of Carson Fischer, P.L.C., Bloomfield Hills, Michigan, for appellee Forbes/Cohen Florida Properties, L.P.
    R. Max Lohman and Abigail F. Jorand-by of Lohman Law Group, P.A., Jupiter, Florida, for appellee City of Palm Beach Gardens.
   Levine, J.

Sears, Roebuck has a lease- with Forbes/Cohen for a store within the Gardens Mall. It attempted to sublease part of its store to Dick’s Sporting Goods. However, the landlord disapproved of the sublease and collaborated with the City of Palm Beach Gardens, unbeknownst to Sears, to enact a resolution to now require both the landlord and the City to agree to any subdivision of space within the Gardens Mall.

■ The issues presented in this case are whether the City’s resolution unconstitutionally impairs Sears’s contract rights and whether that resolution violates substantive due process because it has no criteria stating when approval to subdivide Sears’s leased space may be granted or denied. As a related issue, we consider whether Sears is owed attorney’s fees as a result of the City’s alleged violation of substantive due process. Finally, we consider whether Sears has a contractual right to sublease.

We conclude the City’s resolution is unconstitutional both because it impairs Sears’s right to contract—and the contract rights emanating from the lease between Sears and Forbes/C.ohen—and deprives Sears of its substantive due process rights. Consequently, we find Sears is a prevailing party under 42 U.S.C. sections 1983 and 1988 and is owed attorney’s fees. We further conclude that Sears has the contractual right to sublease without authorization from Forbes. The remaining issues are without merit and we affirm without comment.

Facts

In 1984, Forbes/Cohen Florida Properties, L.P. (“Forbes”) entered into a Land Lease to develop property within Palm Beach Gardens and construct a mall. Forbes then petitioned the City of Palm Beach- Gardens (the “City”) to approve construction for the mall. The City approved Forbes’s petition and enacted the Palm Beach Gardens Planning Unit Development (“P.U.D.”) through resolution.

The P.U.D. specifically requires that all anchor stores at the mall undergo architectural review “to achieve architectural design harmony and to maintain • integrity throughout the project.” Issuance of a building permit requires city council approval of any preliminary designs to ensure the proposed modifications do not “disrupt the architectural design, harmony and integrity” of the mall. Further, the P.U.D. restricts signage by limiting anchor tenants to “[o]ne wall sign for each anchor department store facade representing typical identification by sign, logo, style, and illumination indigenous to that anchor department store ....”

In 1987, Forbes entered into a sublease with Sears, Roebuck & Co. (“Sears”). The thirty-year sublease gives Sears the option to extend its lease for four separate periods of ten years each so long as Sears was not in material default and was operating as a retail store. Additionally, the sublease gives Sears the “right” to sublease, stating: '

[Sears] shall have the right to assign this Lease and to sublet from time to time the Demised Premises or any part thereof subject however, to the terms and provisions of the [Reciprocal Easement Agreement]. No such assignment or subletting shall relieve Tenant of its obligations under this Lease ....

(emphasis added). Lastly, the sublease requires Sears to “comply with all laws -and ordinances and the orders, rules, and regulations and requirements of all Federal, State, County and municipal governments . which may be applicable from time to time to the Demised Premises.” However, the sublease also allows Sears the “right to contest the applicability of any laws, ordinances, orders, rules, regulations or governmental requests .... ” (emphasis added).

Concurrent with the sublease, Sears entered into a Reciprocal Easement Agreement (the “R.E.A.”). The R.E.A. mandates that Sears initially operate as a department store, but after twenty years, Sears could use its space for “retail and service purposes and for no other purposes.” As to subleasing, the R.E.A. indicates that “Majors,” that being anchor tenants like Sears, could “lease all or any portion(s) of its building and/or license departments therein” so long as the sublease otherwise complied with the R.E.A. The R.E.A also sets forth criteria for signage. The R.E.A. requires signs to comply with aesthetic and safety standards, for example prohibiting blinking lights and rooftop signs and requiring compliance with electrical codes. The R.E.A. also prohibits tenants from creating dangerous hazards within the mall. Finally, the ,R.E.A. provides that it exists for the “exclusive benefit of the Parties and the Fee Owner” and nothing in the R.E.A. should “be construed to create any rights in or for the benefit of any space lessee of any part of the Shopping Center Parcel.”

In 2011, Sears began seeking a subtenant to sublease part of its two-story store and entered into negotiations with Dick’s Sporting Goods. Sears informed Sidney Forbes, a partner of Forbes, of its plans.

Without informing Sears, Sidney met with the City, told the City of Sears’s plans, and personally requested that the City enact a resolution. Forbes submitted a development application along with a $1,650 fee and then collaborated with the City in crafting the proposed resolution. The City passed Resolution 20-2012 (the “Resolution”) as part of its consent agenda without taking any testimony. The Resolution states that its purpose was to clarify the P.U.D. The Resolution requires the following:

Prior to any proposed structural modifications, installation of kiosks, and/or any subdivision of an anchor tenant space into any sub-space which requires separate business tax receipts and/or newly separate licensing of any kind whatsoever for the business enterprise intending to occupy the newly created sub-space, anchor tenants must obtain City Council approval. Prior to seeking City Council approval the subject anchor tenant must obtain approval for the subject modification from mall ownership.

Sears, not knowing of the Resolution, informed Forbes of its plans to sublease to Dick’s. Forbes claimed Dick’s was inappropriate for the mall. Subsequently, Forbes sent Sears a letter stating that Sears’s “contemplated actions ... are beyond [Sears’s] authority under the Sublease.” The letter further stated that Forbes did “not consent to the marketing by Sears of any portion of its space within the Gardens and will not consent to any proposals that is not fully in compliance with all applicable restrictions and fully satisfies all of [Sears’s] obligations.” Then, at a subsequent meeting, Sidney told Sears that it was not within its rights to sublease to Dick’s. Sidney believed Sears could not sublease to Dick’s because Dick’s was not a department store, Dick’s did not have signage rights, and Dick’s did not “belong” at the mall.

Sears filed a complaint seeking declaratory relief. As to Forbes, Sears sought a declaratory judgment stating that it had the right to sublease to Dick’s. As to the City, Sears sought a declaratory judgment stating that the Resolution was an unconstitutional impairment of contract under the Florida and United States Constitutions and that the Resolution violated Sears’s substantive due process rights. Lastly, Sears sought attorney’s fees under 42 U.S.C. sections 1983 and 1988.

During the pendency of litigation, Sears entered into a sublease with Dick’s for one floor of Sears’s two-floor lease. As per the sublease, Dick’s was to operate as a sporting goods store. Furthermore, the sublease was contingent on Sears getting necessary government approvals, including approvals for signage as well as obtaining a favorable declaratory judgment.

Following the trial court’s denial of the City’s and Forbes’s motions to dismiss and Sears’s motion for summary judgment, the case went to trial. At trial, testimony established that Dick’s was a “first-class” retailer. Further, Forbes conceded that Sears had the right to sublease so long as it complied with the sublease and the R.E.A. Nevertheless, Forbes asserted the following reasons against the sublease: the proposed Dick’s sublease was not compliant with the sublease and the R.E.A. because Dick’s could not put up a sign, Sears could not exercise its option to extend its lease while subleasing to Dick’s, Sears had not gotten the requisite architectural approvals for modification of the leased premises, and Dick’s potential gun sales violated the R.E.A.’s prohibition on creating dangerous hazards.

Sears conceded that, under the sublease, the current signage plans were not compliant with municipal zoning standards. Sears noted that it would need to get city approvals and waivers, but that other anchor tenants at the mall had multiple signs and that it was a regular industry practice to work with municipalities in getting necessary approvals and waivers. Further, Sears conceded that it had not yet attained the necessary architectural approvals for the mall, but would do so upon favorable disposition of the declaratory judgment action. Finally, Sears had not exercised its option to renew its lease, which was set to expire in 2018. .

The City’s contention at trial was that the Resolution did not create new rights or obligations, but instead was administrative and merely interpreted, and reiterated, pre-existing requirements under the P.U.D. Further, the Resolution did not require approval for “subleasing,” but required approval for “subdividing” anchor tenant space. Thus, the resolution did not impair Sears’s contract rights nor did it violate substantive due process.

Sears argued that the prohibition on subdividing space without approval was tantamount to a prohibition on subleasing without approval. Further, the Resolution gave both the City and Forbes unfettered authority to decide whether to permit an anchor tenant, such as Sears, to sublease. This authority, as outlined in the Resolution, did not exist in the sublease, P.U.D., or R.E.A.

Following the conclusion of trial, the trial court did not make any findings of fact or. conclusions of law nor did it declare the parties’ rights with respect to the sublease, R.E.A. or P.U.D. Instead, the court found as follows:

As to Count 1, the Court finds for the Defendant, [Forbes], who shall go hence without a day.
As to Counts 3, 4, 5, and 6, the Court finds for the Defendant, [the City], who shall go hence without a day.

Sears appealed.

Analysis

I. Declaratory Judgment

As a preliminary issue, Sears argues that, although the trial court’s order was deficient as it failed to determine the rights of the parties or make any factual findings, we may nevertheless consider the merits of this appeal without remanding to the trial court. We agree.

Florida’s Declaratory Judgment Act provides as follows: -

The circuit and county courts have jurisdiction within their respective jurisdictional amounts to declare rights, status; and other equitable or legal relations whether or not further relief is or could be claimed. No action or procedure is open to objection on the ground that a declaratory judgment is demanded. The court’s declaration may be either affirmative or negative in form and effect and such declaration has the force and effect of a final judgment.

§ 86.011, Fla. Stat.

Under this Act, where a trial court denies a motion to dismiss, the trial court must “fully determine the rights of the respective parties, as reflected by the pleadings.” Local 532 of the Am. Fed’n of State, Cty., & Mun. Emps., AFL-CIO v. City of Fort Lauderdale, 273 So.2d 441, 445 (Fla. 4th DCA 1973). Thus, conclusory final judgments on declaratory judgrhent claims, which are devoid of factual findings or conclusions of law, are inadequate. See id.) Hyman v. Ocean Optique Distribs., Inc., 734 So.2d 546, 548 (Fla. 3d DCA 1999).

The final judgment in the present case simply found for Forbes and the City, stating they “shall go hence without a day.” Consequently, the trial court failed to “fully determine the rights of the respective parties.” See Local 532, 273 So.2d at 445; see also State Farm Mut. Auto. Ins. Co. v. Hinestrosa, 614 So.2d 633, 635 (Fla. 4th DCA 1993) (stating that the words “plaintiff take nothing and defendant go hence without day” are “words usually found in cases seeking only a money judgment. rather than a declaratory judgment”).

Review of a declaratory judgment generally requires adequate fíndiñgs of fact and conclusions of law. Trump Endeavor 12, LLC v. Fla. Pritikin Ctr., LLC, 208 So.3d 311, 312 (Fla. 3d DCA 2016). Thus, normally, we would remand for the trial court to make additional findings. See Exotic Motorcars & Jewelry, Inc. v. Essex Ins. Co., 111 So.3d 208, 209 (Fla. 4th DCA 2013). However, in the present case, the issues to be reviewed are purely legal in nature and the underlying facts are not in dispute. Therefore, we conclude remand is unnecessary, and find that we may consider the merits of Sears’s appeal.

II. Impaiement op Conteact

Sears argues that the Resolution passed by the City, at the prompting of Forbes, unconstitutionally impaired its contract rights. We agree with Sears and find that the City’s Resolution unconstitutionally impaired Sears’s right to contract.

We review the constitutionality of statutes and municipal enactments with the de novo standard. Kuvin v. City of Coral Gables, 62 So.3d 625, 629 (Fla. 3d DCA 2010).

Both the state and federal constitutions prohibit the impairment of contract. See Art. I, § 10, cl. 1, U.S. Const.; Art. I, § 10, Fla. Const. It is a hallmark of the law in Florida that contracts are protected from unconstitutional impairment, and the Florida Supreme Court has unequivocally stated that “[t]he right to contract is one of the most sacrosanct rights guaranteed by our fundamental law. It is expressly guaranteed by article I, section 10 of the Florida Constitution.” Chiles v. United Faculty of Fla., 615 So.2d 671, 673 (Fla. 1993); see also In re Advisory Opinion to the Governor, 509 So.2d 292, 314 (Fla. 1987) (“It is ... indisputable ... that rights existing under a valid contract enjoy protection under the Florida Constitution.”).

The Florida Constitution offers greater protection for the rights derived from the Contract Clause than the United States Constitution. See Sarasota Cty. v. Andrews, 573 So.2d 113, 115 (Fla. 2d DCA 1991) (citing Pomponio v. Claridge of Pompano Condo., Inc., 378 So.2d 774, 780 (Fla. 1979)); James W. Ely, Jr., The Contract Clause: A Constitutional History 253 (2016) (“[T]he Florida' Supreme Court has signaled its willingness to protect contracts more fully than the federal courts”). Thus, the Florida Supreme Court has recognized that it is “not bound to accept as controlling the United States Supreme Court’s interpretation of a parallel provision of the federal constitution.” Pomponio, 378 So.2d at 779.

“To impair a preexisting contract, a law must ‘have the effect of rewriting antecedent contracts’ in a manner that ‘chang[es] the substantive rights of the parties to existing contracts.’” Searcy, Denney, Scarola, Barnhart & Shipley, etc. v. State, 209 So.3d 1181, 1191 (Fla. 2017) (citation omitted). “Total destruction of contractual expectations is not necessary for a finding of substantial' impairment.” U.S. Fid. & Guar. Co. v. Dep’t of Ins., 453 So.2d 1355, 1360 (Fla. 1984). Rather, impairment is defined as “to make worse; to diminish in quantity, value, excellency or strength; to lessen in power; to weaken.” Pomponio, 378 So.2d at 781 n.41 (citation omitted); Pudlit 2 Joint Venture, LLP v. Westwood Gardens Homeowners Ass’n, 169 So.3d 145, 150 (Fla. 4th DCA 2015),

“Any legislative action which diminishes the value of a contract is repugnant to and inhibited by. the Constitution.” In re Advisory Opinion, 509 So.2d at 314. For example, “[a] statute which retroactively turns otherwise profitable contracts into losing propositions is clearly such a prohibited enactment.” Id. at 314-15. Indeed, it is a “well-accepted principle that virtually no degree of contract impairment is tolerable.” Pudlit, 169 So.3d at 150 (quoting Coral Lakes Cmty. Ass’n v. Busey Bank, N.A., 30 So.3d 579, 584 (Fla. 2d DCA 2010)); see also Citrus Mem’l Health Found., Inc. v. Citrus Cty. Hosp. Bd., 108 So.3d 675, 677 (Fla. 1st DCA 2013) (“[A]ny legislation that detracts from the value of a contract is subject to the constitutional proscription ...,”).

The conclusion, ' however, that “ ‘virtually’ no impairment is tolerable necessarily implies that some impairment is tolerable,” though not as much impairment as would be “acceptable under traditional federal contract clause analysis.” Pomponio, 378 So.2d at 780. “[S]ome impairment” may be “tolerable” where the governmental actor can demonstrate a “significant and legitimate public purpose' behind the regulation.” Searcy, 209 So.3d at 1192 (quoting Energy Reserves Grp., Inc. v. Kan. Power & Light Co., 459 U.S. 400, 411, 103 S.Ct. 697, 74 L.Ed.2d 569 (1983)).

In Griffin v. Sharpe, 65 So.2d 751 (Fla. 1953), a piece of real property had a restriction whereby only, residences and apartments could be built upon it. A few years before the. restriction was set to expire, the legislature enacted a statute to extend the restriction. A purchaser subsequently purchased the property and sought to build a medical office on it. The Florida Supreme Court held that the legislative enactment violated the Contract Clause. The court described this legislative restriction as “legislative fiat,” stating:

The contested restriction is without doubt a private contract between private individuals, and its attempted extension by the Legislature can in no wise [sic] be related to the reasonable exercise of the police power of the state and is a futile effort to by-pass constitutional prohibitions and re-write the agreement through governmental authority.

Id. at 752.

The Resolution passed by the City, at the behest of Forbes, states the following:

Prior to any proposed structural modifications, installation of kiosks, and/or any subdivision of an anchor tenant space into any sub-space which requires separate business tax receipts and/or newly separate licensing of any kind whatsoever for the business enterprise intending to occupy the newly created sub-space, anchor tenants must obtain City Council approval. Prior to seeking City Council approval the subject anchor tenant must obtain approval for the subject modification from mall ownership.

It is clear that the Resolution diminished Sears’s interest in the contract, namely Sears’s right to sublease. Although the Resolution does not mention subleasing specifically, total destruction of Sears’s interest in the contract is not required to claim an impairment of contract. U.S. Fid. & Guar., 453 So.2d at 1360. The Resolution has “made worse” Sears’s rights emanating from the contract. See Pudlit, 169 So.3d at 150. Sears, although it can still enter into a subleasing agreement, as it has with Dick’s, must now get approvals from both Forbes and the City before it can subdivide the property to act on that agreement. Thus, the Resolution has depreciated and diminished the value of Sears’s contract.

Having concluded the Resolution is an impairment of contract, we must consider “whether the nature' and extent of the impairment is constitutionally tolerable in light of the importance of the State’s objective, or whether it unreasonably intrudes into the parties’ bargain to a degree greater than is necessary to achieve that objective.” Searcy, 209 So.3d at 1192 (quoting Pomponio, 378 So.2d at 780).

The City’s public purpose justification for the Resolution is that it helps to strengthen and maintain the mail’s aesthetic qualities. This justification is neither “significant” nor “legitimate,” particularly where the P.U.D. already sets forth aesthetic standards for the mall and already requires architectural approvals. The City has failed to show how the Resolution accomplishes anything to further its supposed purpose beyond what the P.U.D. already accomplishes. Additionally, the contract has been substantially impaired as it gives both the City and Forbes the unbridled discretion to disapprove of any attempts to divide property to effectuate a sublease. Thus, the impairment “unreasonably intrudes into the parties’ bargain to a degree greater than is necessary to achieve that objective.” Id. It is clear that the Resolution is an effort to “re-write the agreement through governmental authority,” and that governmental authority’s intervention resulted in the diminishment of Sears’s interest in a preexisting contract. Griffin, 65 So.2d at 752.

Finally, the City contends that Sears has contractually waived its impairment of contract claim. The sublease states that Sears “shall ... promptly comply with all laws and ordinances and the orders, rules, and regulations and requirements of all Federal, State, County and municipal governments ... which may be applicable from time to time to the Demised Premises .... ” The City argues that the parties anticipated amendments and changes to laws and rules and that Sears agreed to follow those laws and rules, as amended. We note, however, that in the very same paragraph of the contract, Sears reserved “the right to contest the applicability of any laws, ordinances, orders, rules, regulations or governmental requests ....” (emphasis added).

We must read the entire agreement as a whole, and “[t]he language being construed should be read in common with other provisions of the contract.” Royal Oak Landing Homeowner’s Ass’n v. Pelletier, 620 So.2d 786, 788 (Fla. 4th DCA 1993); Am. K-9 Detection Servs., Inc. v. Cicero, 100 So.3d 236, 238-39 (Fla. 6th DCA 2012). The two provisions, read together, indicate that Sears must follow all laws and ordinances, but that it has the right to challenge those laws and ordinances where they are illegal, or, as here, unconstitutional. Accordingly, Sears did not contractually waive this issue and is free to challenge the Resolution.

We therefore conclude that the Resolution is unconstitutional as it impairs Sears’s contract and is not “reasonable and necessary to serve an important public purpose.” Searcy, 209 So.3d at 1192.

III. Substantive Due Process

Sears next contends that the Resolution, in addition to being an unconstitutional impairment of contract, also deprives it of substantive due process because it requires Forbes and the City to approve subdivisions of anchor tenant space without also setting forth any standards or criteria upon which the City and Forbes are to base such a decision.

An individual’s substantive due process rights protect against the “mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense.” WCI Cmtys., Inc. v. City of Coral Springs, 886 So.2d 912, 914 (Fla. 4th DCA 2004). For a government policy to be unconstitutional, “it [is not] necessary that the record reveal that the governing body or its members have in fact acted capriciously or arbitrarily. It is the opportunity, not the fact itself, which will render an ordinance vulnerable.” ABC Liquors, Inc. v. City of Ocala, 366 So.2d 146, 150 (Fla. 1st DCA 1979). Thus, the Florida Supreme Court has instructed that

[a]n ordinance whereby the city council delegates to itself the arbitrary and unfettered authority to decide where and how a particul[a]r structure shall be built or where located without at the same time setting up reasonable standards which would be applicable alike to all property owners similarly conditioned, cannot be permitted to stand as a valid municipal enactment.

N. Bay Vill. v. Blackwell, 88 So.2d 524, 526 (Fla. 1956).

In Drexel v. City of Miami Beach, 64 So.2d 317 (Fla. 1953), the plaintiff was denied a permit to build a parking garage. The applicable city ordinance stated that no parking garages should be built except “upon ‘approval and permit by the City Council ... after a public hearing at which due consideration shall be given to the effect upon traffic of the proposed use Id. at 318 (alteration in original). The court stated the ordinance was unconstitutional, reasoning:

In the present ordinance there is found no guide whatever to aid the councilmen in deciding what permits should, and what permits should not, be granted: Reading the ordinance iñ a light most favorable to the city’s position, each councilman was accorded the privilege of deciding in his own mind whether he had duly considered the traffic problem and when a majority of councilmanic minds concluded that such consideration had been duly given and that the proposed building would complicate traffic conditions, the composite thought would ripen into a power that would take away property. This, in our opinion, would be doing so in violation of the guaranties of the Staté and United States Constitutions.

Id. at 319.

Similarly, in City of Miami Beach v. Fleetwood Hotel, Inc., 261 So.2d 801 (Fla. 1972), the city enacted an ordinance in order to regulate rents. However, the ordinance failed to set “objective guidelines and standards for its enforcement ... nor [could] such be reasonably inferred from ⅛⅜ language of the Ordinance.” Id. at 805. Further, the ordinance vested with a single individual, the City Rent Administrator, the “unbridled discretion to determine which accommodations are to be controlled and a number of other things.” Id. at 806. The court concluded that the ordinance was unconstitutional because it failed to lay out any guidelines for its enforcement. Id. at 805-06; see also Friends of the Great S., Inc. v. City of Hollywood ex rel City Comm’n, 964 So.2d 827, 830 (Fla. 4th DCA 2007) (“In order for ordinances which provide decisional authority to be constitutional, they must have mandatory objective criteria to be followed when making a decision.”); ABC Liquors, 366 So.2d at 149 (“Any standards, criteria or requirements which are subject to whimsical or capricious application or unbridled discretion will not meet the test of constitutionality.”).

The City contends substantive due process protections do not apply to non-legislative zoning decisions such as the Resolution. It is true that substantive due process challenges are permitted for the alleged deprivation of constitutional rights, and not the alleged deprivation of rights arising under state law, such as zoning decisions. See McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994); Kantner v. Martin Cty., 929 F.Supp. 1482, 1486 (S.D. Fla. 1996). Thus, decisions based on the application of zoning regulations will not be susceptible to substantive due process challenges. See Kantner, 929 F.Supp. at 1486-87. However, a land use regulation itself may be challenged under substantive due process. See Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208, 1213-15 (11th Cir. 1995) (addressing the merits of whether a zoning regulation prohibiting automobile sales violated the plaintiffs substantive due process rights); Kantner, 929 F.Supp. at 1487. In the present case, it is the Resolution itself, not the application of the Resolution, that is being challenged. Thus, the Resolution may be subject to a substantive due process challenge.

In the present case, the Resolution states:

.Prior to any proposed structural modifications, installation of. kiosks, and/or any subdivision of an anchor tenant space into any sub-space which requires separate business tax receipts and/or newly separate licensing of any kind whatsoever for the business enterprise intending to occupy the newly created sub-space, anchor tenants must obtain City Council approval. Prior to seeking City Council approval the subject anchor tenant must obtain approval for the subject modification from mall ownership.

The Resolution requires a tenant to “obtain approval” from both the City Council and “mall ownership,” that being Forbes, to subdivide its anchor tenant space, but it fails to identify any standards or criteria that would govern when approval is to be granted or withheld. The Resolution, in other words, grants the City and Forbes with “unbridled discretion” in this matter. See Fleetwood Hotel, 261 So.2d at 806. Therefore, we conclude that the Resolution violates substantive due process and “cannot be permitted to stand as a valid municipal enactment” because it permits the City and Forbes to arbitrarily and capriciously deprive Sears of its property rights as a Tenant pursuant to the contract negotiated and executed by the parties. See N. Bay Vill., 88 So.2d at 526.

The City argues that it had a rational basis for enacting the Resolution, claiming the Resolution preserves the “form, function, and composition of the Gardens PUD” and promotes “the health, safety, and welfare of the public at large.” Although the interests described may be a legitimate governmental interest, see City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364, 366-67 (1941), the Resolution’s total lack of guidance would allow for arbitrary and capricious enforcement “having no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense.” See WCI Cmtys., 886 So.2d at 914; cf. Estate of McCall v. United States, 134 So.3d 894, 901-03 (Fla. 2014) (stating a medical malpractice statute was irrational when it treated multiple claimants differently from a single claimant because there was no reason to treat the two categories differently).

We next address Sears’s argument that it is entitled to an attorney’s fee award against the City under 42 U.S.C. sections 1983 and 1988. Under section 1983,

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to thé party injured in an action at law, suit in equity, or other proper proceeding for redress ....

Section 1988 provides for attorney’s fees, stating, “In any action or proceeding to enforce a provision of section[ ] .,. 1983, ... the court, in its discretion, may allow the' prevailing party ... a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b).

As a preliminary issue, municipalities are liable under section 1983 but only if a plaintiff shows: “(1) that his constitutional rights were violated; (2) that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). As discussed above, Sears’s substantive due process rights were violated, thus satisfying the first prong. Furthermore, Sears has satisfied the second and third prongs because the City formally and expressly created and adopted the unconstitutional Resolution. See Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir. 1987) (“Policy, in the narrow sense of discrete, consciously adopted courses of governmental action may be fairly attributed to a municipality ... because (1) it is directly ‘made by its lawmakers,’ i.e., its governing body ....” (quoting Monell v. Dep’t of Social Servs., 436 U.S. 668, 694, 98 S.Ct. 2018, 66 L.Ed.2d 611 (1978))).

Section 1988 requires courts to conduct a two-part inquiry. First, “whether the plaintiff is a prevailing party,” and second, “if the plaintiff is a prevailing party, what constitutes a reasonable fee award,” Boston’s Children First v. City of Boston, 395 F.3d 10, 14 (1st Cir. 2005). As to the first inquiry, “[a] plaintiff ‘prevails’ ... ‘when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.’ ” Lefemine v. Wideman, 568 U.S. 1, 4, 133 S.Ct. 9, 184 L.Ed.2d 313 (2012) (quoting Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)). Having a declaratory judgment entered in a party’s favor will generally satisfy the “prevailing part/’ test. See id. A prevailing party is “ordinarily” entitled to recover attorney’s fees “unless special circumstances would render such an award unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (citation omitted).

As a consequence of the present appeal, Sears is a prevailing party under section 1988 as it has obtained the declaratory relief it sought.

Citing Farrar, the City argues that, even assuming Sears prevailed in its appeal, any victory on Sears’s part would be a merely nominal victory for which Sears would not be entitled attorney’s fees. In Farrar, the plaintiff sought substantial monetary damages but received only a nominal award. The Court held that the plaintiff was not entitled to attorney’s fees. Although the plaintiff was technically a “prevailing party,” the plaintiff had failed to prove damages, “an essential element of his claim for monetary relief.” Id. at 114-15, 113 S.Ct. 566. Thus, the Court stated that in such situations, “the only reasonable fee is usually no fee at all.” Id.

The City contends that because Sears has not sought damages as part of its substantive due process claim, Sears should not be entitled to attorney’s fees. We conclude, however, that Farrar is distinguishable. In Farrar, the plaintiff did not prevail in his attempt to secure substantial damages whereas in the present case Sears has received precisely what it requested: declaratory relief. The United States Supreme Court has “repeatedly held ... an injunction or declaratory judgment” will satisfy the prevailing party test. Lefemine, 568 U.S. at 4, 133 S.Ct. 9; see also Sanchez v. City of Austin, 774 F.3d 873, 882-83 (5th Cir. 2014) (explaining that Farrar does not control where a party sues for, and obtains, declaratory or in-junctive relief even if the party receives only nominal damages). Here, because Sears has “materially alter[ed] the legal relationship between the parties,” we conclude Sears is entitled to attorney’s fees.

On remand, the trial court should, in calculating Sears’s fees, consider both the hours expended and the reasonableness of the hourly rate and “whether the expenditure of counsel’s time was reasonable in relation to the success achieved.” Hensley, 461 U.S. at 433-37, 103 S.Ct. 1933; see also Phelps v. Hamilton, 120 F.3d 1126, 1131 (10th Cir. 1997) (“A court will generally determine what fee is reasonable by first calculating the lodestar—the total number of hours reasonably expended multiplied by a reasonable hourly rate— and then adjust the lodestar upward or downward to account for the particularities of the suit and its outcome.”).

IV. Subleasing Rights

Sears also argues it has the contractual right to sublease and may do so without Forbes’s approval. Thus, Sears asserts the trial court erred when it failed to award declaratory relief in its favor.

In interpreting the Sears-Forbes sublease, we must “give effect to the plain and ordinary meaning of its terms.” Golf Scoring Sys. Unlimited, Inc. v. Remedio, 877 So.2d 827, 829 (Fla. 4th DCA 2004). “Words should be given their natural meaning or the meaning most commonly understood in relation to the subject matter and circumstances, and reasonable construction is preferred to one that is unreasonable.” Id. (citation omitted).

The Sears-Forbes sublease states, “[Sears] shall have the right to assign this Lease and to sublet from time to time the Demised Premises or any part thereof; subject however, to the terms and provisions of the R.E.A.” (emphasis added). Although the sublease indicates certain restrictions apply should Sears seek to sublease “all or substantially all of the Demised Premises,” these restrictions do not apply because Sears seeks to sublease less than “all or substantially all” of the premises, that being only one floor of its two story mall location. Similarly, the R.E.A. states that Sears may “lease all of any portion(s) of its building and/or license departments therein .... ” While the R.E.A. states Sears’s space must be used for “retail and service purposes and for no other purposes,” this restriction is also not prohibitive as Dick’s is a retailer. Therefore, we conclude Sears may sublease to Dick’s without obtaining approval from Forbes.

Forbes contends that, even if Sears does have subleasing rights, Dick’s would have no right to install a sign as it is not permitted under the R.E.A because Dick’s is not a party to the R.E.A.

The R.E.A does not expressly prohibit sublessees, such as Dick’s, from installing signs. Rather the R.E.A. puts in place criteria by which signs are to be installed and maintained. This signage criteria does not expressly prohibit a sublessee from installing a sign nor does it prohibit Sears from granting a sublessee the right to install a sign.

Generally, a sublessee can have no more rights to the subleased premises than the sublessor had. See Thal v. S.G.D. Corp., 625 So.2d 862, 853 (Fla. 3d DCA 1993). As a corollary to that rule, where a lease includes the right to sublease, the sublessor may grant any rights and privileges the sublessor has except where specifically prohibited. See Max & Tookah Campbell Co. v. T. G. & Y. Stores, 623 P.2d 1064, 1067 (Okla. Civ. App. 1981); Restatement (Second) of Prop.: Landlord & Tenant § 15.1 (Am. Law Inst. 1977) (“The interests of the landlord and of the tenant in the leased property are freely transferable, unless: ... (3) the parties to the lease validly agree otherwise.”). Consequently, Sears has the right to grant Dick’s signage rights that Sears has under the Forbes-Sears sublease and the R.E.A

Additionally, in interpreting an agreement, “the goal is to arrive at a reasonable interpretation of the text of the entire agreement to accomplish its stated meaning and purpose.” Am. K-9 Detection Servs., Inc. v. Cicero, 100 So.3d 236, 238-39 (Fla. 5th DCA 2012) (citation omitted). It would be unreasonable to conclude that both the Forbes-Sears sublease and R.E.A. expressly and unequivocally permit Sears to sublease to a retailer while at the same time conclude that the R.E.A.’s signage criteria impliedly prohibits a retail sublessee, such as Dick’s, from installing a sign. Where the contract unambiguously gives Sears the right to sublease, we will not rewrite the parties’ agreements to add to the agreement, such as in this case, a prohibition on signage. See Peach State Roofing, Inc. v. 2224 S. Trail Corp., 3 So.3d 442, 445 (Fla. 2d DCA 2009). To do so would effectively eviscerate Sears’s right to sublease and render its express contractual rights merely illusory.

Forbes has also stated that the sublease is set to terminate soon and Sears would be unable to extend the sublease if it subleases to Dick’s. However, no such limitation appears in the sublease. The sublease states that Sears “shall have the right to extend the term of this Lease for Four (4) separate periods 6f ten (10) years each” so long as Sears is not in “material default.at the time of the exercise of such right” and Sears is “operating the Demised Premises for. retail purposes.” Further, nothing in the sublease indicates Sears’s subleasing rights exist only for the initial thirty-year term. Thus, we conclude Sears may extend its lease so long as it is not in material default and is operating the leased premises for retail purposes.

Forbes contends that Sears has asked us to “approve” its sublease with Dick’s. Sears has neither asked this court, nor the court below, to explicitly approve of its lease with Dick’s in toto, nor do we do so here. Qur opinion is limited to our interpretation of the Sears-Forbes sublease and the R.E.A., and our conclusion that nothing within those agreements requires Sears to seek approval before subleasing one .floor of its two-story lease, within the mall, to either Dick’s or any other retailer. We make no comment on whether aspects of the Sears-Dick’s sublease,, either as planned or as implemented in the future, violate existing contractual obligations, the P.U.D., or other any.law or regulation.

CONCLUSION

We conclude that the City unconstitutionally impaired Sears’s right to contract and deprived Sears of its rights to substantive due process. Because the City’s Resolution deprived Sears of substantive due process, Sears is also owed attorney’s fees under 42 U.S.C. sections 1983 and 1988. Finally, we conclude that the trial court erred in not granting declaratory relief in Sears’s favor, and we specifically find that Sears has a right to sublease, pursuant to the 1987 lease agreement.

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

Warner and Forst, JJ., concur.

      . Sears also contended the Resolution was in fact an ordinance and was therefore void as the passing of the Resolution did not comply with statutory requirements for enacting ordinances. We find this argument to be without merit and affirm without comment.

      . We note that our opinion is limited to the Resolution itself, We express no comment as to the architectural review requirements found within the P.U.D. nor do we comment on any other municipal ordinance or code.

      . Specifically, Forbes has argued (1) that Dick’s potential sale of guns violates the R.E.A.’s prohibition on creating "dangerous hazards” and (2) Sears has not gotten the necessary approvals for signage. We do not consider the first argument as it has been made prematurely, As to the second' argument,' while we conclude Sears may grant its signage rights to Dick’s as part of a sublease, we do not comment on whether any planned or implemented sign will in fact comply with the P.U.D, or any other local ordinance.