author: LAGOA, J.

text:
    Keith THOMPSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-2629
    District Court of Appeal of Florida, Third District.
    Opinion filed January 4, 2017

      Carlos J. Martinez, Public Defender, and Shannon Hemmendinger and Natasha Baker-Bradley, Assistant Public Defenders, for appellant.

      Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before WELLS, LAGOA, and LOGUE, JJ.
   LAGOA, J.

Keith Thompson (“Thompson”) appeals from an order revoking his probation and sentencing him to fifteen years in state prison. We reverse and remand with directions that Thompson be resentenced before another judge, at which Thompson must be present and represented by counsel.

L FACTUAL AND PROCEDURAL HISTORY

This same issue has been before this Court previously, and the underlying facts are set forth in that opinion. See Thompson v. State, 172 So.3d 527 (Fla. 3d DCA 2015). Briefly, Thompson was sentenced to three years of probation and ordered to complete a behavior modification program at the Spectrum residential care facility. Thompson was charged with violating his probation by (a) threatening two Spectrum staff members, one of whom was his therapist, with violence; (b) having a knife under the dresser drawer in his room; (c) being discharged from the Spectrum program due to his acts of aggression to others by threats of bodily harm; and (d) changing his residence without first receiving consent from his probation officer. After a probation violation hearing, the trial court revoked Thompson’s probation and sentenced him to fifteen years in prison. In revoking Thompson’s probation, the trial court relied upon several grounds: threatening staff members with violence; the fact that a knife was found in Thompson’s room in violation of the Spectrum rules; bringing an impermissible amount of money into the Spectrum facility; and being in possession of an over-the-counter topical medication which was not permitted. See id. at 529.

Thompson appealed the trial court’s order revoking his probation and sentencing him to fifteen years in state prison. This Court affirmed the revocation of probation, but “reverse[d] on two points regarding the basis for the revocation and re-mandad] for resentencing.” Id. at 528. Specifically, this Court found that the State failed to prove that Thompson had constructive possession of the knife, and therefore the trial court erred in using the possession of the knife as a basis for revoking his probation. Id. at 530. Additionally, this Court found that the alleged infractions of possession of money and over-the-counter medication were not charged in the affidavit, and as such, the trial court was not permitted to revoke Thompson’s probation based upon this conduct. Id As a result, this Court affirmed the revocation of probation as to the threats of violence made by Thompson and his failure to complete the Spectrum program, but reversed

as to the possession of the knife, the possession of money in an amount higher than allowed at the Spectrum facility, and possession of the over-the-counter topical medication. Because we reverse two of the grounds for the sentence, and one of those grounds, possession of the knife, was substantial, we vacate the sentence and remand for resentencing, as it is unclear from the record whether the trial court would have imposed the same sentence on the remaining violations. See Gray v. State, 170 So.3d 890 (Fla. 3d DCA 2015); Secure v. State, 432 So.2d 630 (Fla. 3d DCA 1983).

Id. (emphasis added).

A. August, 26, 2015, hearing — Thompson resentenced in absentia and without counsel prior to this Court’s mandate

Prior to the issuance of this Court’s mandate, the trial court held a hearing on August 26, 2015. Although the assistant state attorney was present, neither Thompson nor his attorney were present at the hearing. The tidal court stated that the case was on remand because

the record wasn’t clear if I was sentencing the defendant to the same sentence based on the violation, failing to complete the Spectrum and threatening the Spectrum staff members, the therapist without the information about bringing the additional medication in and the knife.

The trial court proceeded to resentence Thompson to fifteen years in prison:

All of those reasons was why Spectrum kicked him out, but the violation was specifically that he failed to complete the Spectrum Program; that he was required as a special condition and kicked out of the program as well as the threats he made to the employees two different ones and that’s what the sentence is based on. So he is resentenced today to the same sentence of the fifteen years. I want to clarify the thought process behind it.

B. September 2, 2015, hearing and Thompson’s Motion to Set Aside Illegal Sentence

On September 2, 2015, the trial court conducted another hearing. The assistant public defender stated that Thompson’s attorney of record was not aware that Thompson had been immediately resen-tenced after the issuance of Thompson, and asked to reset the hearing. The trial court responded that “[w]e didn’t need the attorney to address it. It was for the court to clarify the sentence.”

On September 18, 2015, Thompson filed a motion to set aside illegal sentence. Thompson argued that the trial court did not have jurisdiction to resentence him on August 26, because as of that date, this Court’s mandate had not yet issued. Thompson also argued that his absence from his resentencing deprived him of due process, and that he was entitled to counsel for his resentencing. Thompson requested that the trial court set aside the sentence imposed on August 26 and conduct a sentencing hearing in accordance with this Court’s remand, and that he be present for such resentencing as it was not merely a ministerial act.

C. October 29, 2015, hearing — Thompson resentenced in absentia again, and in reliance on transcript of August 26, 2015, hearing

A hearing on the motion to set aside illegal sentence was held on October 29, 2015. The trial judge began the hearing by announcing that

there was some confusion from the date of the mandate and it had not been issued yet and it was a bit premature. So, the last sentence imposed will be vacated, but I’m going to use the record from the last hearing to restate the issues and readdress the issues in the original motion.

Regarding Thompson’s possession of the knife, money, and medication, the trial court stated:

So, I didn’t consider them in my sentence as additional violations. And that’s why I clarified the sentence the last time it was here. The reason why I granted the vacate is because I didn’t realize the date of the mandate and that the defendant wasn’t here. Nobody made issue of it and I sentenced him. So, I clarified and resentenced him to the same thing and relying on the transcript of the last hearing as well as for my reasons and I’m going to resentence him today to adjudication, fifteen years state prison as a habitual felony offender.

(emphasis added). Thompson’s attorney argued that it was a violation of due process for the trial court to rely upon findings made at a hearing where neither Thompson nor his attorney were present. The trial court imposed a sentence of fifteen years state prison. This appeal ensued.

II. ANALYSIS

“[0]ne of a criminal defendant’s most basic constitutional rights is the right to be present in the courtroom at every critical stage in the proceedings.” Jackson v. State, 767 So.2d 1156, 1159 (Fla. 2000); accord Jordan v. State, 143 So.3d 335 (Fla. 2014); Dunbar v. State, 89 So.3d 901 (Fla. 2012). “This right extends to ‘any stage of the criminal proceeding that is critical to its outcome if [the defendant’s] presence would contribute to the fairness of the procedure.’” Jackson, 767 So.2d at 1159 (quoting Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987)). Indeed, a defendant’s right to be present at sentencing is explicitly set forth in Florida Rule of Criminal Procedure 3.180(a)(9), which requires the defendant’s presence “at the pronouncement of judgment and the imposition of sentence.” The Supreme Court of Florida has extended a defendant’s right to be present to resentencing hearings. Jordan, 143 So.3d at 338; see also Dunbar, 89 So.3d at 907.

“A violation of the right to be present is subject to a harmless error analysis.” Jordan, 143 So.3d at 338; accord Smithers v. State, 826 So.2d 916, 927 (Fla. 2002) (stating that violation of the right to presence is subject to harmless error analysis and that the proceeding “will only be reversed on this basis if ‘fundamental fairness has been thwarted’ ” (quoting Kearse v. State, 770 So.2d 1119, 1124 (Fla. 2000))). A defendant’s absence at sentencing will be harmless error if the trial court is merely conducting a ministerial act, such as entering a written sentence where none exists or changing the written sentence to conform to the oral pronouncement of sentence. See Jordan, 143 So.3d at 339; McGough v. State, 876 So.2d 26 (Fla. 1st DCA 2004). “However, Florida’s district courts have found that a resentencing in which a trial judge has discretion as to the new sentence is not a ministerial act and thus requires the defendant’s presence.” Jordan, 143 So.3d at 339 (emphasis in original); see also Burgess v. State, 182 So.3d 841, 842 (Fla. 4th DCA 2016) (“A resen-tencing at which the trial judge has judicial discretion is not a ministerial act, and thus Appellant’s presence at resentencing here is required.”).

The proceedings in the trial court on remand from this Court’s directive in Thompson constitute error in several significant ways. First, the trial court misinterpreted this Court’s opinion in Thompson as requiring only that it “clarify” whether the same sentence would have been imposed based upon the two remaining violations of probation, i.e., the threats of violence made by Thompson and his failure to complete the Spectrum program. On remand, this Court, however, specifically directed the trial court to re-sentence Thompson, not simply to clarify whether the same sentence would have been imposed. See 172 So.3d at 530 (stating that “we vacate the sentence and remand for resentencing”). As a result, due process considerations attached, and Thompson had a right to be physically present at his resentencing. We cannot conclude that Thompson’s absence was harmless error, especially given that our direction to resentence Thompson was based upon the fact that one of the grounds for Thompson’s original sentence upon which this Court reversed — possession of a knife — was “substantial.” 172 So.3d at 530.

Second, the trial court compounded its error by resentencing Thompson in reliance upon the transcript from the August 26, 2016, hearing at which both Thompson and his counsel were absent. See Payne v. State, 38 So.3d 827, 828 (Fla. 1st DCA 2010) (“[W]here a defendant is denied counsel during a resentencing hearing held to correct a judicial error, the trial court commits fundamental error.”); see also Frison v. State, 76 So.3d 1103, 1104 (Fla. 5th DCA 2011) (stating that full panoply of due process considerations apply at resen-tencing, including appointment of counsel); Mullins v. State, 997 So.2d 443, 445 (Fla. 3d DCA 2008) (“[T]he defendant has the right to be present and have assistance of counsel at the new sentencing hearing.”).

IV. CONCLUSION

Accordingly, we once again vacate the sentence entered by the trial court and remand for resentencing on the remaining violations of probation. “[Bjecause a resen-tencing is a new proceeding, the court is not limited by the evidence originally presented,” and Thompson is entitled to a full, de novo sentencing hearing, at which time both sides may present new evidence and argument on the issue of a proper sentence. State v. Collins, 985 So.2d 985, 989 (Fla. 2008); accord Lucas v. State, 841 So.2d 380, 387 (Fla. 2003) (“[A] resentenc-ing court is not limited by evidence presented (or not presented) in ... the original ... sentencing phase.”). Thompson must be both present and represented by counsel at the resentencing hearing. We further direct that Thompson be resen-tenced before a different judge.

Reversed and remanded for resentenc-ing.

      . This Court’s mandate in Thompson issued on August 28,2015.

      . At the September 2, 2015, hearing, the trial court stated that "someone stood in for [Thompson's attorney] from the Public Defenders [sic] Office” at the August 26, 2015, hearing. The record reflects no such appearance from the Public Defender’s Office, and the State properly concedes that the record reflects that no attorney appeared for Thompson at the August 26, 2015, hearing at which he was resentenced.

      . Although the trial court subsequently vacated the sentence initially imposed at the August, 26, 2015, hearing, we note that the trial court lacked jurisdiction to sentence Thompson on August 26 as this Court had not yet issued its mandate in Thompson. See Tucker v. Slate, 633 So.2d 1147 (Fla. 2d DCA 1994) (finding that trial court lacked jurisdiction to resentence defendant after successful appeal where trial court resentenced defendant prior to mandate being issued); see also Colonel v. Reed, 379 So.2d 1297 (Fla. 4th DCA 1980).


source: Caselaw Access Project

author: LOGUE, J.

license: Public Domain

text:
    Mollie ZWEIG, Appellant, v. II VILLAGGIO CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D16-934
    District Court of Appeal of Florida, Third District.
    Opinion filed January 4, 2017

      Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel, P.A., and Nicholas D. Siegfried and Diane J. Zelmer, for appellant.
    Halpern Rodriguez, LLP, and Marc A. Halpern and Priscilla S. Zaldivar, for ap-pellee.
    Before WELLS, LAGOA, and LOGUE, JJ.
   LOGUE, J.

In the case below, the appellant unit owner filed a lawsuit seeking an injunction to require the appellee condominium association to “refrain from approving the vertical unit combination” of two units of a neighboring owner. The trial court entered summary judgment against her because her lawsuit was not ripe. We affirm.

Although the condominium association’s board allowed the neighboring unit owner’s engineer to preliminarily test a concrete slab to determine if combining the units was structurally feasible, no application for permission to combine the units had been filed. As the case stood at the time of summary judgment, therefore, the application to combine the units may ultimately not be filed. If filed, the application may not be approved, and if unlawfully approved, sufficient legal and equitable remedies will exist to address any potential harm to the appellant unit owner. In these circumstances, the claim that the unit owner might be harmed if an application is filed, and if the application is granted, is too attenuated to support a lawsuit. See Condos. on Intracoastal Ass’n, Inc. v. Barnett Bank of Palm Beach Cty., 502 So.2d 84, 86 (Fla. 4th DCA 1987) (suit to bar association from conducting a meeting to consider amendment to declaration of condominium was premature because the “record contains no evidence to support a finding that the members of the condominium association will in fact pass the amendment”). See generally, Hernandez v. Bd. of Comm’rs of Hillsborough Cty., 114 Fla. 219, 153 So. 790, 791 (1934) (“Mere allegations that a board of county commissioners is threatening to pass resolutions or edicts which, if passed, will be unlawful or ineffective, constitute no ground for in-junctive interference with the preliminary internal functioning of the county board.”).

Affirmed.


text:
    Pedro GOMEZ, etc., et al., Appellants, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 3D15-1436
    District Court of Appeal of Florida, Third District.
    Opinion filed January 4, 2017

      Peckar & Abramson, and Ralf R. Rodriguez and K. Stefan Chin, for appellants.
    Russo Appellate Firm, P.A., and Elizabeth Russo and Kevin D. Franz; Chim-poulis Hunter & Lynn, P.A., and Brian Hunter (Plantation), for appellee.
    Before LAGOA and LOGUE, JJ., and SHEPHERD, Senior Judge.
   LAGOA, J.

Appellants, Pedro Gomez and Yolanda Valdes (collectively “Appellants”), appeal from the trial court’s denial of them Motion to Vacate Order of Dismissal for Lack of Prosecution. Because a Stay Order entered by a prior trial court judge was in effect at the time the order of dismissal was entered, we reverse and remand for reinstatement of Appellants’ complaint.

I. FACTUAL AND PROCEDURAL HISTORY

On January 13, 2010, Appellants filed a complaint against State Farm Insurance Company (“State Farm”), Appellants’ property insurer (hereinafter, the “Insurance Case”). State Farm filed its answer and the case proceeded with discovery.

On April 18, 2011, Appellants filed in federal court a voluntary bankruptcy petition under Chapter 7 (hereinafter, the “Bankruptcy Case”). The bankruptcy petition schedules listed the Insurance Case against State Farm as a potential asset, and that case became the property of the bankruptcy estate. On April 20, 2011, Appellants filed a suggestion of bankruptcy in the Insurance Case and, on that same day, the trial court sua sponte entered a stay order stating, “pending further ox-der from the Bankruptcy Coui-t” (hereinafter, the “Stay Order”).

On February 25, 2015, the Trustee in the Bankruptcy Case filed a Trastee’s Verified Notice of Abandonment of the Insurance Case. The Notice of Abandonment is self-executing upon the expiration of the 21-day period for objections. Because no objections were filed, the claim was deemed abandoned without necessity of a court order on March 17, 2015.

Subsequently, Appellants’ counsel contacted State Farm’s counsel to discuss ending the Stay Order and recommencing litigation in the Insurance Case. During that conversation, State Farm’s counsel informed Appellants’ counsel that the case had been dismissed in 2013. Appellants’ counsel had no knowledge of the dismissal.

A review of the record shows that on July 9, 2013, the trial court scheduled a case management conference in the Insurance Case for August 16, 2013 and notified the parties via e-mail. The trial judge now sitting in the division where the Insux-ance Case was pending was the successor to the trial judge who entered the Stay Order in 2011. Appellants’ counsel did not attend the case management confex-ence and an Order of Dismissal without prejudice was entered on August 19, 2013. At the time of the entry of the Order, the trial court was unaware of the Stay Order previously entered by the prior trial judge. At the time of the entry of the August 19, 2013 Order of Dismissal, the Stay Order had not been dismissed or vacated.

Upon learning of the dismissal, Appellants’ counsel filed a Motion to Vacate Order of Dismissal and to Reopen Case (“Motion”) based upon two grounds: (1) Appellants never received notice of the case management conference and/or the Order of Dismissal and therefore their due process rights were violated; and (2) the Order of Dismissal was inconsistent with the Stay Order.

In support of the Motion, Appellants’ counsel filed two uncontested affidavits, which established that Appellants’ counsel did not receive either the order setting the ease management conference or the subsequent order dismissing the case. The undisputed record evidence also established that at the time the e-mails were sent by the trial court, Appellants’ counsel’s firm was migrating over to a new Unified Messaging System and the e-mails did not make it through to either counsel’s Exchange server or Outlook files. The unre-butted evidence established that counsel for Appellant “never received the e-mail from the Court regarding the Case Management Conference set for August 16, 2013 or any subsequent e-mail regarding the Dismissal Order, in his Outlook in-box.”

At the hearing on the motion, the trial court acknowledged “that there was a stay in place that I did not know about.” Following a hearing on the motion, the trial court denied the motion, and this appeal ensued.

II. ANALYSIS

Rule 1.420(e), Florida Rules of Civil Procedure, states in pertinent part as follows:

Failure to Prosecute. In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court ... the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion ....

(emphasis added).

Here, it is uncontroverted that the Stay Order staying the action was entered by the division’s prior judge, and it is further uncontroverted that the Stay Order was in effect at the time the Order of Dismissal was entered for lack of prosecution. The trial court’s entry of dismissal for lack of prosecution while the Stay Order was in effect directly contravenes the express language of Rule 1.420(e). Dismissal for lack of prosecution is not permitted under Rule 1.420(e) if a stay order has been issued by the trial court. Indeed, once the trial court entered the Stay Order, Appellants did not have to pursue any further activity in the Insurance Case to prevent a dismissal for lack of prosecution. See Zbin v. Parker, 647 So.2d 886, 887 (Fla. 4th DCA 1994) (reversing final order of dismissal for lack of prosecution as prior order abating case constituted a stay order contemplated by Rule 1.420(e), Fla. R. Civ. P., and plaintiff did not have to pursue any further record activity in order to avoid dismissal for want of prosecution); See also Bekins Van Lines v. Schaeffer, 630 So.2d 633, 634 (Fla. 4th DCA 1994) (finding that temporary stay was sufficient to prevent dismissal for lack of prosecution); Dolan v. Hartford Ins. Co., 566 So.2d 316, 317 (Fla 4th DCA 1990) (reversing order of dismissal and finding that action stayed as to a party, whether by court order or automatic stay, should not be dismissed for failure to prosecute). We therefore find that the trial court dismissed a properly stayed action for lack of prosecution in contravention of Rule 1.420(e).

Accordingly, we reverse the Order of Dismissal and remand the cause to the trial court for reinstatement of the complaint.

REVERSED AND REMANDED.

LOGUE, J., concurs.

SHEPHERD, Senior Judge, dissents.

      . The Order Setting Case Management Conference was a notice setting a case management conference for 81 separately listed cases. Three separate pages of email addresses followed the notice.

      . The Network Technician for the law firm of Appellants’ counsel testified that he "was unable to locate any e-mails from the Court regarding the Case Management Conference set for August 16, 2013 or the Dismissal Order in the Exchange server, or in [Appellants' counsel’s] Outlook files, or in any system internal to the Network.”

      . It is unclear from the record why State Farm’s counsel, who attended the case management conference, did not bring the Stay Order to the trial court’s attention prior to the entry of the Order of Dismissal.


text:
    Willie SHOTWELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-2020
    District Court of Appeal of Florida, Third District.
    Opinion filed January 11, 2017

      Willie Shotwell, in proper person.
    Pamela Jo Bondi, Attorney General, and Jacob Addicott, Assistant Attorney General, for appellee.
    Before WELLS, LAGOA, and SALTER, JJ.
   LAGOA, J.

Appellant, Willie Shotwell (“Shotwell”), appeals the trial court’s denial of his amended motion for correction of jail credit filed pursuant to Florida Rule of Criminal Procedure 3.801(a). We reverse the trial court’s order denying Shotwell’s motion with prejudice, and remand to the trial court to provide Shotwell with the opportunity to file an amended, legally sufficient Rule 3.801 motion.

I. FACTUAL AND PROCEDURAL HISTORY

On July 8, 2014, in ease number F13-26508, Shotwell pled guilty to one count of aggravated assault with a deadly weapon, and was sentenced to 24 months imprisonment.

On August 26, 2014, pursuant to Rule 3.801, Florida Rules of Criminal Procedure, Shotwell filed a motion for correction of jail credit. In that motion, Shotwell argued that the trial court’s files contain documents filed on July 8, 2014 — his sentencing date — that conclusively establish that, at the time he was sentenced, he was entitled to 238 days credit for time previously served in Miami-Dade County Jail and that the sentencing court did not award any credit due for time served.

On September 25, 2014, the trial court entered an order summarily denying Shotwell’s Rule 3.801 motion as insufficient. Subsequently, Shotwell filed a pro se motion for rehearing acknowledging that the trial court “may have been correct in stating that Mr. Shotwell’s Motion was insufficient,” as it did not comply with the requirements of Rule 3.801. Shotwell, therefore, asked the trial court for permission to amend his motion for correction of jail credit. On December 4, 2014, the trial court summarily denied Shot-well’s motion for rehearing as insufficient, and Shotwell filed a Notice of Appeal.

In its response to that appeal, the State conceded error and asked this Court to modify the trial court’s decision by affirming the denial of the 3.801 motion to specify that it was without prejudice to Shotwell refiling an amended motion within 60 days. Subsequently, in Shotwell v. State, 183 So.3d 1070, 1070 (Fla. 3d DCA 2015), this Court affirmed without prejudice to Shot-well filing “an amended, legally sufficient 3.801 petition within sixty (60) days” of the date of the issuance of that opinion — May 6, 2015. Six days later, on May 12, 2015, Shotwell filed an amended 3.801(a) motion for correction of jail credit in this Court. On June 9, 2015, this Court issued an order dismissing Shotwell’s amended 3.801(a) motion for correction of jail credit “without prejudice,” in order for Shotwell to refile in the circuit court.

On June 17, 2015, Shotwell filed a new Rule 3.801(a) motion for correction of jail credit. In that motion, Shotwell argued that he is entitled to 249 days credit towards his sentence and that he did not waive any of credit for time served. On July 29, 2015, however, the State filed a response which did not acknowledge this Court’s previous order allowing Shotwell to refile his Rule 3.801(a) motion. Instead, in its response, the State asserted that Shotwell’s claim was barred for having been raised in previous motions. Additionally, the State argued that the judgment and sentence showed “that the defendant was to receive no credit for the time he had previously served.”

On July 29, 2015, the trial court again entered an order denying Shotwell’s amended motion for correction of jail credit. In this written order, the trial court found that Shotwell had previously appealed the trial court’s order denying his motion for correction of jail credit. The trial court further found that the trial court’s previous “denial was affirmed” by this Court in Case Number 3D14-3127. This current appeal ensued.

II. ANALYSIS

Pursuant to Rule 3.801(a), Fla. R. Crim. P., “[a] court may correct a sentence that fails to allow a defendant credit for all of the time he or she spent in the county jail before sentencing as provided in section 921.161, Florida Statutes.” A motion filed under Rule 3.801 shall be under oath and include:

(1) a brief statement of the facts relied on in support of the motion;
(2) the dates, location of incarceration and total time for credit already provided;
(3) the dates, location of incarceration and total time for credit the defendant contends was not properly awarded;
(4) whether any other criminal charges were pending at the time of the incarceration noted in subdivision (c)(3), and if so, the location, case number and resolution of the charges; and
(5)whether the defendant waived any county jail credit at the time of sentencing, and if so, the number of days waived.

See Fla. R. Crim. P. 3.801(c).

Shotwell’s motion, although sworn, was facially insufficient as he failed to allege, pursuant to Rule 3.801(c)(4), “whether any other criminal charges were pending at the time of the incarceration noted in subdivision (c)(3), and if so, the location, case number and resolution of the charges.”

Assuming that on remand Shotwell files a facially sufficient motion, and to avoid any further confusion on remand, we address Shotwell’s argument that the trial court erred in finding that he waived credit pursuant to a plea. In finding that Shot-well waived credit pursuant to a plea, the trial court attached only the sentencing order. Because the sentencing order does not indicate a specific and voluntary waiver, it is insufficient to show whether Shot-well voluntarily waived credit and therefore does not conclusively refute Shotwell’s claim. See Maldonado v. State, 145 So.3d 913, 915 (Fla. 2d DCA 2014) (stating that “a waiver of jail time credit must be specific, voluntary, and clear from the face of the record”); Pippins v. State, 147 So.3d 665 (Fla. 5th DCA 2014) (reversing trial court’s order and remanding for evidentia-ry hearing or attachment of additional portions of record because written plea form did not expressly provide that defendant had waived additional jail credit and defendant alleged in motion that she had not waived additional credit).

On remand, the post-conviction court shall issue a written order providing Shot-well ninety days to file a facially sufficient motion under Rule 3.801. See Fla. R. Crim. P. 3.801(e), 3.850(f)(2).

Reversed and remanded with instructions.

      . That response was filed by the State Attorney's Office (the "SAO”), not the Attorney General’s Office (the "AGO”). In this appeal, the AGO properly conceded that the SAO’s response failed to correctly advise the trial court of this Court’s order.

      . Because Shotwell has been released from prison and is currently on probation, the State asks this Court to deem the appeal moot. We decline the invitation because the jail credit issue may arise in the future in the event of a revocation of probation and Shot-well is entitled to a ruling on the merits upon the filing of a facially sufficient motion.


author: EMAS, J.

text:
    Mario GAMERO, Appellant, v. FOREMOST INSURANCE COMPANY, Appellee.
    No. 3D16-389
    District Court of Appeal of Florida, Third District.
    Opinion filed January 11, 2017
    Alvarez, Carbonell, Feltman, & DaSilva and Paul B. Feltman, for appellant.
    Butler Weihmuller Katz Craig, Timothy Engelbrecht and Ezequiel Lugo (Tampa), for appellee.

      Before SUAREZ, C.J., and WELLS and EMAS, JJ.
   EMAS, J.

Mario Gamero, the plaintiff below, appeals the trial court’s orders denying his motion for summary judgment, granting Foremost Insurance Company’s motion for summary judgment, and entering final judgment in favor of Foremost. Following our de novo review, and for the reasons that follow, we affirm.

Gamero’s home sustained damage when a vase fell and cracked two floor tiles in the living room. Gamero filed a claim to recover for this damage under the policy and, in turn, Foremost initially accepted coverage and offered payment in the amount of nearly $4000. Gamero disagreed as to the amount of the loss and invoked the policy’s appraisal provision. An appraisal panel determined the replacement cost value of the loss was $18,863.41, and stated that this determination was “made without consideration of any other terms, conditions, provisions or exclusions of the above policy, which might affect or [sic] the amount of the insurer’s liability thereunder.” The appraisal amount reflected the cost for replacement of the tile throughout the entire home.

Thereafter, Foremost sent a letter to Gamero explaining that only $8,781.27 of the appraisal amount was covered by the policy, and issued payment in the amount of $3,801.59, after subtracting the policy deductible ($250), depreciation ($815.99) and the original payment ($3,913.69). Foremost asserted that the cost of replacing tile in the rest of the house ($10,082.14) was not covered under the policy.

On February 7, 2014, Gamero filed a complaint for breach of contract. The complaint alleged that Foremost “refuse[d] to provide coverage or payment to the Insured for their losses stemming from the Loss, as they are entitled to under the Policy.” Foremost filed an answer denying any breach of contract and asserted, as an affirmative defense, that the policy’s marring exclusion applied and that there was no coverage for this claim. Gamero did not file a Reply to Foremost’s affirmative defense.

Each party filed a motion for summary judgment. Following a hearing on the motions, the trial court determined there was no genuine issue of material fact, and that, as a matter of law, Gamero’s loss was excluded from coverage under the terms of the policy. The trial court denied Gamero’s motion for summary judgment, granted Foremost’s motion for summary judgment, and entered judgment thereon.

We affirm the trial court’s orders, and hold that the damage to the floor tiles was a loss that constituted “marring,” which was expressly excluded from coverage under the terms of the insurance policy. In this regard, we agree with the analysis and holding of Ergas v. Universal Property and Casualty Insurance Co., 114 So.3d 286 (Fla. 4th DCA 2013), a case virtually identical in material respects, involving a dropped item causing chipped floor tiles and a similar coverage exclusion clause for “loss [claused by ... [w]ear and tear, marring, deterioration ....”

We reject Gamero’s argument that Foremost waived its right to rely upon the marring exclusion by its pre-suit conduct in initially acknowledging coverage and paying a portion of the claim. Moreover, even if such actions by Foremost amounted to a waiver, Gamero failed to preserve the issue below. After Gamero filed suit for breach of the insurance contract, Foremost answered and asserted, as an affirmative defense, that Gamero’s claim was excluded from coverage because the loss constituted marring. Gamero, however, failed to reply to, or avoid, this affirmative defense by alleging, as he does in this appeal, that the affirmative defense was waived by Foremost’s conduct in initially acknowledging coverage and paying a portion of the claim. Instead, Gamero raised this issue, for the first time, in opposition to Foremost’s motion for summary judgment. The trial court was correct in not considering this issue, raised for the first time in opposition to Foremost’s motion for summary judgment. See Fla. R. Civ. P. 1.100(a) (providing “[i]f an answer ... contains an affirmative defense and the opposing party seeks to avoid it, the opposing party shall file a reply containing the avoidance”); see also Fla. R. Civ. P. 1.110(d) (providing that “[i]n pleading to a preceding pleading a party shall set forth affirmatively ... any other matter constituting an avoidance or affirma,-tive defense”); Lobrillo v. Brokken, 837 So.2d 1059 (Fla. 3d DCA 2002) (holding that defendants’ failure to plead affirmative defense of statute of limitations in their answer to complaint precluded trial court from considering such defense and granting defendants’ motion for summary judgment on that basis); Accurate Metal Finishing Corp. v. Carmel, 254 So.2d 556 (Fla. 3d .DCA 1971) (holding that affirmative defenses must be pleaded and are not properly raised for the first time in an affidavit filed in opposition to a motion for summary judgment); Frisbie v. Carolina Cas. Inc. Co., 162 So.3d 1079 (Fla. 5th DCA 2015) (holding that plaintiff should have raised the issue of unclean hands in a reply to defendant’s affirmative defenses, rather than raising the issue for the first timé in a motion for summary judgment); Cong. Park Office Condos II, LLC v. First-Citizens Bank & Trust Co., 105 So.3d 602 (Fla. 4th DCA 2013) (holding that defendant who failed to plead affirmative defense of lack of standing could not assert such defense for first time in response to plaintiffs motion for summary judgment).

Affirmed.

      . In Ergas, 114 So.3d at 287, the Fourth District stated:
      The insured dropped a hammer on his tile floor, causing it to chip. He filed a claim for damage with his homeowner’s insurance company which denied coverage, because it claimed that the damage constituted "marring” which was excluded from coverage. After the homeowner filed suit, the trial court entered summary judgment, agreeing with the insurance company that the damage was not covered under the policy. We affirm, because marring is not covered under the policy, and the damage to the tile floor constitutes marring.

      . Neither the parties nor this court could find a reported Florida case in support of, or opposition to, this discrete proposition. Nevertheless, to the extent that Gamero’s argument ■ approximates a claim of coverage by estoppel, such a theory cannot be relied upon to create coverage where none exists. See Crown Life Ins. Co. v. McBride, 517 So.2d 660 (Fla. 1987).

      . The other issues raised by Gamero are not meritorious and warrant no further discussion.


author: SCALES, J.

text:
    Iris C. BAGAROTTI, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, et al., Appellees.
    No. 3D16-1044
    District Court of Appeal of Florida, Third District.
    Opinion filed January 11, 2017

      Iris C. Bagarotti, in proper person.
    Cristina A. Velez (Tallahassee), for ap-pellee Reemployment Assistance Appeals Commission.
    Before SUAREZ, C.J., and LAGOA and SCALES, JJ.
   SCALES, J.

Appellant and claimant below, Iris Ba-garotti, appeals a final order of the Florida Reemployment Assistance Appeals Commission (the “Commission”), finding that Bagarotti was not entitled to receive reemployment assistance benefits, and therefore must repay the benefits she received, in the total amount of $4,655. The basis of the Commission’s decision is that Bagarot-ti was not able to work and be available for work during the benefits time period, as required by section 443.091(l)(d) of the Florida Statutes. Because we cannot discern competent, substantial evidence from the record of the administrative proceedings that Bagarotti was unable to work during this time period, we reverse and remand the case to the Commission for a new hearing to be conducted by a referee.

Bagarotti worked as a kindergarten teacher. She was diagnosed with a skin cancer in August of 2013. She needed to miss work once every two weeks for a short period of time for treatments of the skin cancer. Her employer objected to her missing time from work and, eventually, discharged her. After filing a claim for benefits for reemployment assistance, Ba-garotti received weekly payments of $245, from September 28, 2013 through February 1, 2014. On June 29, 2015, the Department of Economic Opportunity (the “Department”) sent Bagarotti a notice of disqualification, advising her that she had not been eligible to receive these benefits, that the benefits were subject to recoupment, and that she had a right to appeal.

A Department-appointed referee heard Bagarotti’s appeal on November 18, 2015. The Department supplied the Spanish-speaking Bagarotti with an interpreter for the hearing. From our review of the record, it appears that Bagarotti attempted to testify that she was able to work during the period she received benefits while being treated for the skin cancer, except that her work should not be in the sunshine. It also appears that Bagarotti attempted to testify that, at some time subsequent to her discharge, including during the time of the November 18, 2015 hearing itself, she suffered from a mental disability that prevented her from seeking work. The record does not contain definitive testimony as to when this mental disability affected Bagar-otti’s ability to work: either while she was receiving the benefits or after the benefits ceased.

Bagarotti’s testimony shifts back and forth between a discussion of her skin cancer and her mental disability. Even with an interpreter, Bagarotti appears unable to understand the referee’s effort to focus on her ability to work during the nineteen-week benefits period and the referee appears unable to distinguish between Bagarotti’s references to the skin cancer and the mental disability.

Based on the record before the referee and the testimony at the hearing, the referee found that Bagarotti was not able and available to work during the period in which she was paid benefits. The referee found that “[t]he claimant has a medically [sic] illness that prevents her from being employed at the earliest possible time. The claimant, as of the date of the hearing, has not been released to light duty work.” Thus, the referee determined there was an overpayment of $4,655 that Bagarotti must repay to the Department. On April 27, 2016, the Commission affirmed the referee’s decision.

An administrative hearing officer’s findings of fact may not be disturbed by a reviewing court if those findings are supported by competent, substantial evidence. Crespo v. Fla. Reemployment Assistance Appeals Comm’n, 128 So.3d 49, 52-53 (Fla. 3d DCA 2012). We are not free to reweigh the evidence. § 120.68(10), Fla. Stat. (2015); Salinas v. E. Aero Marine, 908 So.2d 1169 (Fla. 3d DCA 2005). Logically, we explore the record to determine whether competent, substantial evidence exists to support the pertinent findings of fact. Our exploration in the instant case arrives at the confusion between the claimant and the referee at the November 18, 2015 hearing. We conclude that there is no clear evidence — in other words, there is insufficient competent, substantial evidence — in the record that Bagarotti was unable to work from September 28, 2013, through February 1, 2014.

Reversed and remanded for a new hearing before a referee.

      . The procedural issues that affected the course of Bagarotti’s administrative appeal are not relevant to her appeal to this Court and will not be addressed here.

      . On December 22, 2015, after her hearing before the Department’s referee, Bagarotti, with the assistance of an attorney who did not otherwise represent her, filed a set of documents with the Department that included her dermatologist's report. This report does not indicate that Bagarotti was unable to work, only that her job function be limited so that she "not be out in the sun.” The expected duration of her skin cancer condition is described as "6 months.” The report also warns that Bagarotti might miss work from time to time due to “episodic flare-ups,” Bagarotti sought to submit this report to the Commission, though she had not submitted it to the referee. In the alternative, she sought another hearing. In its final order, the Commission declined both requests. § 443.151 (4)(c), Fla, Stat. (2015). Our opinion today does not take the dermatologist's report into consideration.


author: SLEET, Judge.

text:
    ST. JOSEPH’S HOSPITAL, INC., Petitioner, v. Jane DOE, Respondent.
    Case No. 2D16-2122
    District Court of Appeal of Florida, Second District.
    Opinion filed January 13, 2017

      H. Hamilton Rice, III, and Katherine M. Benson of Bush Graziano Rice & Platter, P.A., Tampa, for Petitioner.
    Jennifer Erin Jones and John R. High-tower, Jr., of McIntyre, Thanasides, Bring-gold, Elliott, Grimaldi & Güito, P.A., Tampa, for Respondent.
   SLEET, Judge.

St. Joseph’s Hospital seeks certiorari review of the trial court’s order denying its motion for summary judgment in Jane Doe’s action against St. Joseph’s. Ms. Doe’s lawsuit stems from her allegation that she was sexually assaulted by a hospital employee while she was a patient in the hospital’s mental health care facility. In its motion for summary judgment, St. Joseph’s argued that Ms. Doe’s claims sounded in medical negligence and that therefore she was required to adhere to the presuit notice requirements set forth in chapter 766, Florida Statutes (2010), which undisputedly she did not do. Because we conclude that count two of Ms. Doe’s complaint was indeed a claim for medical negligence, we grant the petition as to that count only and deny the petition as to count one of the complaint.

In order to be entitled to certio-rari relief, “[a] petitioner must establish (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal.” Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995). The latter two jurisdictional prongs of this standard are satisfied as “[t]he statutes requiring presuit notice and screening ‘cannot be meaningfully enforced postjudgment because the purpose of the presuit screening is to avoid the filing of the lawsuit in the first instance.’ ” Fassy v. Crowley, 884 So.2d 359, 363 (Fla. 2d DCA 2004) (quoting Parkway Bank, 658 So.2d at 649). Accordingly, “for certiorari relief to be granted, the trial court’s order must depart from the essential requirements of the law.” GalenCare, Inc. v. Mosley, 59 So.3d 138, 140 (Fla. 2d DCA 2011).

Here, St. Joseph’s argued in its petition for writ of certiorari that the trial court departed from the essential requirements of law by determining that the allegations in Ms. Doe’s complaint did not amount to medical negligence. Section 766.202(7) defines “medical negligence” as “medical malpractice, whether grounded in tort or in contract,” and section 766.106(l)(a) defines a claim for medical malpractice as “a claim, arising out of the rendering of, or the failure to render, medical care or services.” Thus, the “key inquiry” in determining if a claim is one for medical malpractice under chapter 766 is “whether the action aris[es] out of any medical, dental, or surgical diagnosis, treatment, or care.” Fassy, 884 So.2d at 364 (alteration in original) (quoting J.B. v. Sacred Heart Hosp. of Pensacola, 635 So.2d 945, 947 (Fla. 1994)).

In her complaint, Ms. Doe alleged that while she was a mental health patient at St. Joseph’s, a mental health technician employed by the hospital sexually assaulted her in her room. She further alleged that when she reported the incident to hospital officials, they tried to intimidate her and failed to investigate the allegation. Specifically, count one of the complaint was for negligence and alleged in part as follows:

14. At all times material hereto, St. Joseph’s was aware, or should have been aware, of the prevalence of sexual assaults of patients by hospital employees and the high risk of such assaults of patients by hospital employees and the high risk of such assaults occurring, especially in mental health care facilities.
15. St. Joseph’s had a duty to exercise reasonable care to protect Ms. Doe from reasonably foreseeable sexual assaults by its employees, and to ensure her safety and well-being while in St. Joseph’s custody and care.
16. St. Joseph’s breached its duty of care to Ms. Doe by failing to exercise reasonable care to prevent Ms. Doe from being sexually assaulted. Ms. Doe’s attacker was able to enter and exit Ms. Doe’s room repeatedly on the evening of the assault and engage in highly suspicious activity in the common areas before the assault. Reasonable care required St. Joseph’s to adopt and employ procedures to identify suspicious behavior to prevent forthcoming attacks.

It is clear that the allegations in count one do not “aris[e] out of any medical, dental, or surgical diagnosis, treatment, or care.” See id. (quoting J.B., 635 So.2d at 947). Ms. Doe alleged that St. Joseph’s did not protect her from a sexual assault by its employee, who was able to enter and exit her room several times at night without supervision. Nothing about these allegations concerning negligent supervision and negligent security involved medical care or services. As such, the trial court did not depart from the essential requirements of law by denying St. Joseph’s motion for summary judgment as to count one.

But in count two of her complaint, Ms. Doe alleged violations of section 766.110, which is entitled “Liability of healthcare facilities”:

20. At all times material hereto, St. Joseph’s was a health care facility as defined in [cjhapter 395 of Florida Statutes.
21. In addition to its common law duties, St. Joseph’s had separate duties pursuant to Florida Statutes, [section] 766.110 to provide risk management and assure the competence of its personnel, through the adoption of a comprehensive risk management program in compliance with [section] 395.0197, Florida Statutes, and through the diligent administration of the procedures and risk management processes, including the supervision of personnel.
22. Pursuant to Florida Statutes, [section] 395.0197, St. Joseph’s is responsible for investigating and reporting any allegation of sexual misconduct by an employee on St. Joseph’s grounds. St. Joseph’s failed to fulfill this obligation after the sexual assault was reported to hospital authorities.
23. St. Joseph’s breached its obligation to diligently administer its procedures, to supervise and monitor its hospital personnel, and to investigate and report Ms. Doe’s allegations of sexual abuse.

Section 766.110(1) states that

[a]ll health care facilities, including hospitals and ambulatory surgical centers, as defined in chapter 395, have a duty to assure comprehensive risk management and the competence of their medical staff and personnel through careful selection and review, and are liable for a failure to exercise due care in fulfilling these duties.

The statute further requires that all health care facilities (1) adopt “written procedures for the selection of staff members and a periodic review of the medical care and treatment rendered to patients by each member of the medical staff,” (2) adopt “a comprehensive risk management program which fully complies with the substantive requirements of s. 395.0197,” and (3) initiate and administer these “medical review and risk management processes ... including the supervision of the medical staff and hospital personnel to the extent necessary to ensure that such medical review and risk management processes are being diligently carried out.” § 766.110(l)(a)-(c).

Ms. Doe specifically alleged in count two of her complaint that St. Joseph’s violated the requirement of section 766.110 that it have and comply with a comprehensive risk management program pursuant to section 395.0197, Florida Statutes (2010). Chapter 395 is entitled “Hospital Licensing and Regulation,” and section 395.0197 provides in pertinent part as follows:

(1) Every licensed facility shall, as a part of its administrative functions, establish an internal risk management program that includes all of the following components:
(a) The investigation and analysis of the frequency and causes of general categories and specific types of adverse incidents to patients.
(b) The development of appropriate measures to minimize the risk of adverse incidents to patients ....
(c) The analysis of patient grievances that relate to patient care and the quality of medical services.
(d) A system for informing a patient or an individual identified pursuant to s. 765.401(1) that the patient was the subject of an adverse incident, as defined in subsection (5). Such notice shall be given by an appropriately trained person designated by the licensed facility as soon as practicable to allow the patient an opportunity to minimize damage or injury.
(e) The development and implementation of an incident reporting system based upon the affirmative duty of all health care providers and all agents and employees of the licensed health care facility to report adverse incidents to the risk manager, or to his or her designee, within 3 business days after their occurrence.

(Emphasis added.)

By the statute’s plain language, a section 395.0197 internal risk management program pertains to “adverse incidents” in hospitals and healthcare facilities. Section 395.0197(5) defines “adverse incident” as “an event over which health care personnel could exercise control and which is associated in whole or in part with medical intervention.” (Emphasis added.)

Based on this language, any claim pleaded under section 395.0197 is necessarily a medical negligence claim because that section only requires hospitals and healthcare facilities to investigate “adverse incidents,” which by definition are “associated in whole or in part with medical intervention,” § 395.0197(5), and therefore necessarily “aris[e] out of ... medical, dental, or surgical diagnosis, treatment, or care,” see Fassy, 884 So.2d at 364 (quoting J.B., 635 So.2d at 947). Ms. Doe simply cannot plead count two under sections 766.110 and 395.0197 and allege a violation of a statutory duty to institute and maintain a risk management program concerning adverse incidents associated with medical intervention without complying with the presuit notice requirements of chapter 766. Furthermore, we note that in this case her specific allegations of sexual assault do not meet the statutory definition of an “adverse incident.”

We therefore conclude that the trial court departed from the essential requirements of law by denying St. Joseph’s motion for summary judgment as to count two only. We thus grant the petition in part, deny it in part, and quash only the portion of the trial court’s order that denied summary judgment as to count two.

Granted in part; denied in part.

WALLACE and SALARIO, JJ, Concur.


author: LaROSE, Judge. BLACK, Judge,

text:
    Thomas S. DEA, as personal representative of the Estate of Caroline S. Dea, deceased, Appellant, v. PH FORT MYERS, LLC; Platinum Health Care, LLC; Benjamin Klein; and Joanne P. Smith (as to Lamplight of Fort Myers), Appellees.
    Case No. 2D16-642
    District Court of Appeal of Florida, Second District.
    Opinion filed January 13, 2017.

      Megan L. Gisclar and Isaac R. Ruiz-Carus of Wilkes & McHugh, P.A., Tampa, for Appellant.
    Scott A. Cole and Lisette Gonzalez of Cole, Scott & Kissane, P.A., Miami, for Appellees.
   LaROSE, Judge.

Thomas Dea, as personal representative of the Estate of Caroline Dea, appeals a nonfinal order granting a motion to compel arbitration. We have jurisdiction. See Fla. R, App. P. 9.130(a)(3)(c)(iv). The Estate contends that (1) there was no valid arbitration agreement between Mrs. Dea and Lamplight of Fort Myers, and (2) Douglas Dea, who signed the arbitration agreement as attorney-in-fact for his mother, Mrs. Dea, lacked authority to do so. We reverse.

Facts

Mrs. Dea was admitted to Emeritus of Fort Myers, an assisted living facility, in early 2013. Thomas Dea, her son, held her durable power of attorney (POA). The POA provided that “[i]f Thomas ... resigns or is unable or unwilling to serve as my attorney-in-faet, I appoint [Dougles E. Dea] to serve as my successor attorney-in-fact.” Douglas Dea, Mrs. Dea’s other son, signed Emeritus’s admission documents as the “responsible party.” Among those documents, Douglas signed a residency agreement and the arbitration agreement. Notably, the arbitration agreement had no provision granting Emeritus’s successors-in-interest the right to enforce it.

Sometime in 2014, Lamplight of Fort Myers acquired Emeritus. Lamplight purported to amend the Emeritus residence and services agreement with Mrs. Dea. The amendment provides that “[t]his document amends the residency agreement pertaining to your residency and receipt of services at Lamplight of Fort Myers made between Lamplight of Fort Myers and Caroline Dea (’Resident’), dated April 16, 2014.” The amendment replaces a fee summary in its entirety. The amendment provides further that it “shall not modify any other section of the Residency Agreement, and all other provisions of the Resident Agreement, including any appendices and documents incorporated by reference, shall remain in full force and effect.” Our record contains no April 16, 2014, residency agreement between Lamplight and Mrs. Dea. We can only assume that Lamplight attempted to amend the Emeritus admission documents and obtain the benefits of the arbitration agreement. As discussed below, it failed to do so.

Procedural History

Mrs. Dea sustained injuries while a resident at Lamplight. The Estate sued Lamplight, alleging violations of Florida’s Assisted Living Facilities Act, chapter 429, Florida Statutes (2014). Lamplight moved to compel arbitration pursuant to the agreement Douglas signed when Mrs. Dea was initially admitted to Emeritus in 2013. In the trial court, Lamplight argued that the arbitration agreement was valid and enforceable. Lamplight also argued that the amendment to the residency agreement “reinforced and reestablished the validity of the documents previously entered between Douglas Dea and Emeritus, such that these documents were now made part of the agreement between the Lamplight ... Appellees and Douglas Dea.” Lamplight also contended that Douglas executed numerous documents on his mother’s behalf, naming him as the primary contact person. The Estate argued that there was no valid arbitration agreement because (1) the arbitration agreement did not mention successors-in-interest, (2) Douglas was only the successor attorney-in-fact, and (3) Lamplight failed to demonstrate that Thomas had resigned or was unable or unwilling to serve under the POA.

The trial court granted the arbitration motion, finding that the amendment, in fact, amended the residency agreement between Mrs. Dea and Emeritus, including the arbitration agreement. The trial court also found that “Thomas ... was unwilling to act as power of attorney [for Mrs. Dea] and it was appropriate for Douglas ... to execute admission paper work on behalf of [Mrs.] Dea, including but not limited to the subject arbitration agreement.”

Standard of Review

We review the order to compel arbitration de novo. See The Hillier Grp., Inc., v. Torcon, Inc., 932 So.2d 449, 452 (Fla. 2d DCA 2006). “In determining whether a dispute is subject to arbitration, courts consider at least three issues: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Stacy David, Inc. v. Consuegra, 845 So.2d 303, 306 (Fla. 2d DCA 2003); see also Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla. 1999).

Analysis

There Was No Valid Agreement to Arbitrate Between Lamplight and Mrs. Pea

“Because arbitration is a matter of contract, a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Rolls-Royce PLC v. Royal Caribbean Cruises Ltd., 960 So.2d 768, 770 (Fla. 3d DCA 2007) (internal quotations omitted). “Generally, therefore, a non-signatory to a contract containing an arbitration agreement cannot compel a signatory to submit to arbitration.” Id. Lamplight was not a party to the residency agreement between Emeritus and Mrs. Dea. Moreover, the arbitration agreement was silent as to whether successors-in-interest, such as Lamplight, could enforce the agreement.

“When interpreting a contract, the court must first examine the plain language of the contract for evidence of the parties’ intent.” Heiny v. Heiny, 113 So.3d 897, 900 (Fla. 2d DCA 2013) (quoting Murley v. Wiedamann, 25 So.3d 27, 29 (Fla. 2d DCA 2009)). “Thus, when the terms of a voluntary contract are clear and unambiguous, as here, the contracting parties are bound by those terms, and a court is powerless to rewrite the contract to make it more reasonable or advantageous for one of the contracting parties.” Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So.2d 1000, 1003 (Fla. 2d DCA 1995). Lamplight argues that the amendment allows it to enforce the Emeritus arbitration agreement; that is not what the amendment recites.

The amendment refers to an April 16, 2014, residency agreement between Lamplight and Mrs. Dea. No such document is in our record. Our record contains a signed residency agreement with Emeritus from February 2013. Neither party suggests that a residency agreement between Lamplight and Mrs. Dea was signed on April 16, 2014. Further, our record does not reflect that Lamplight obtained any rights to arbitrate claims asserted by Mrs. Dea, or her Estate, when it acquired Emeritus. Accordingly, the Estate is not bound to arbitrate with Lamplight.

Douglas Lacked Authority to Bind His Mother to Arbitration

Alternatively, we conclude that Douglas did not have the authority to sign the arbitration agreement under the POA. Lamplight offered no evidence that Thomas resigned or was unable or unwilling to serve as attorney-in-fact. The trial court’s contrary finding is not supported by the record before us.

We frequently have held that it is error for the trial court to compel arbitration where the signatory lacked the authority to bind the resident to the agreement. See Carrington Place of St. Pete, LLC v. Estate of Milo ex rel. Brito, 19 So.3d 340, 341-42 (Fla. 2d DCA 2009); McKibbin v. Alterra Health Care Corp., 977 So.2d 612, 613 (Fla. 2d DCA 2008); see also Perry ex rel. Perry v. Sovereign Healthcare of Metro W., LLC, 100 So.3d 146, 148 (Fla. 5th DCA 2012). There was insufficient evidence to show that Douglas could have signed the arbitration agreement for his mother.

Conclusion

We reverse the trial court’s order to compel arbitration and remand for further proceedings.

Reversed and remanded.

LUCAS, J., Concurs.

BLACK, J. Concurs specially with opinion.

BLACK, Judge,

Specially concurring.

I concur in the reversal of the order compelling arbitration because the majority correctly concludes that the arbitration agreement signed by Douglas was unenforceable. The agreement was not binding on Mrs. Dea or her Estate where there was no evidence that Douglas held the POA or otherwise had the authority to bind his mother to the arbitration agreement. In my view, the analysis begins and ends there. See Mendez v. Hampton Court Nursing Ctr., LLC, 41 Fla. L. Weekly S394, 203 So.3d 146 (Fla. Sept. 22, 2016). Although I believe the analysis and conclusion to be unnecessary, the majority appears to conclude that even had the arbitration agreement been executed by someone with authority to bind Mrs. Dea it would not have been enforceable by Lamplight. I respectfully disagree.

I note that the appendices before this court do not contain the contract between Emeritus and Lamplight. However, we do have before us the resident agreement between Emeritus and Mrs. Dea which contains a provision allowing Emeritus to assign the agreement “to any successor-in-interest selected” by Emeritus. The amendment between Lamplight and Mrs. Dea, by its terms, replaces only the fee summary of the agreement and does not otherwise affect the terms of the agreement, “including any appendices and Documents incorporated by reference.” Further, the arbitration agreement includes the following language: “To the fullest extent permitted by law, this Arbitration Agreement shall apply to third parties not signatories to this Agreement .... Any claims or grievances against [Emeritus’s] corporate parent, subsidiaries, affiliates, employees, officers or directors shall also be subject to and resolved in accordance with this Arbitration Agreement.” Based upon these documents, I cannot agree that had the arbitration agreement been binding upon Mrs. Dea it would still have been unenforceable by Lamplight. See generally Olson v. Fla. Living Options, Inc., 41 Fla. L. Weekly D2111 (Fla. 2d DCA Sept. 9, 2016); Fla. Power & Light Co. v. Rd. Rock, Inc., 920 So.2d 201 (Fla. 4th DCA 2006). Given the language of the documents, it would be incongruous to conclude that the Estate’s claims — had they been filed against Emeritus — would be subject to binding arbitration but because Lamplight purchased Emeritus those same claims are no longer arbitrable.

      . For ease, we will refer to the brothers by their first names.


author: ORFINGER, J.

text:
    David Keith GRIFFITH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-4203
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 13, 2017

      James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

After entering a nolo contendere plea to a six-count information, David Griffith appeals his judgments and sentences for one count of soliciting a child for unlawful sexual conduct using computer services or devices (count 1), and one count of traveling to meet a minor for illegal sexual conduct (count 2). Griffith contends that these two convictions violate the prohibition against double jeopardy. This Court has jurisdiction. Fla. R. App. P. 9.140(b)(2)(A)(ii)(e); Holubek v. State, 173 So.3d 1114, 1116 (Fla. 5th DCA 2015) (finding that defendant does not “specifically waive his right to appeal a double jeopardy violation by generally waiving his right to appeal at the plea colloquy”).

On Monday, February 3, 2014, Griffith responded via email to a Craigslist post from a “Lonly clermont girl!” The Craig-slist ad was placed by Detective Von McKenzie of the Lake County Sheriffs Office, posing as a thirteen-year-old girl named “Kelly.” Griffith and “Kelly” communicated back and forth in an increasingly sexually explicit manner via email from 5:51 p.m. until 10:45 p.m. By the time the email exchanges ended that day, a tentative plan was made for “Kelly” and Griffith to meet for sexual conduct the following Friday.

The next day — Tuesday, February 4 — at 5:14 a.m., Griffith emailed “Kelly” and asked, among other things, what time she woke up, where she lived, and whether sixty dollars would pay for a cell phone she wanted. At 9:00 a.m., “Kelly” responded and said that sixty dollars would be “awesome.” Griffith replied, saying “So Friday, 60 dollars, where and what time?” Griffith then described the sex acts he hoped they would engage in when they met on Friday, February 7, 2014. Later that day, Griffith emailed “Kelly” again and she responded, saying that she had gotten “the nerve up” to meet him and asked him to come over that day. Griffith said he could meet her later that day by 6:00 p.m. More emails followed and, at 5:52 p.m., “Kelly” gave Griffith directions to her home and said she would meet him at the apartment complex’s gate. When he arrived twenty minutes later, he was arrested.

The State charged Griffith in a six-count information, but only counts 1 and 2 are relevant to this appeal. In count 1, Griffith was charged with soliciting a child for unlawful sexual conduct using computer services or devices in violation of section 847.0135(3), Florida Statutes (2014), for his actions on February 3, 2014. In count 2, the State charged Griffith with traveling to meet a minor for illegal sexual conduct in violation of section 847.0135(4)(a), Florida Statutes (2014), for his actions on February 4, 2014. Griffith entered an open plea to all counts. During the plea colloquy, no mention was made about double jeopardy and none occurred at sentencing.

Generally, a defendant cannot raise a double jeopardy challenge for the first time on appeal. An exception to this rule applies if: (1) the defendant’s plea is a general plea and not a plea bargain, (2) the double jeopardy violation is apparent on the face of the record, and (3) there is nothing in the record to indicate the defendant waived the double jeopardy violation. Novaton v. State, 634 So.2d 607, 609 (Fla. 1994). The burden of proving that a double jeopardy violation is apparent from the record is on the appellant. Edwards v. State, 139 So.3d 981, 983 (Fla. 1st DCA 2014). This burden is similar to the burden on a party bringing a motion to correct a sentence under Florida Rule of Criminal Procedure 3.800, who must “demonstrate an entitlement to relief on the face of the record.” Williams v. State, 967 So.2d 600, 604 (Fla. 2007). In such motions, the mov-ant must

affirmatively allege that the trial court records demonstrate on their face an entitlement to relief. A mere conclusory allegation that the answer lies in the record is insufficient to satisfy the pleading requirements of the rule. At a minimum, a rule 3.800 motion should state where in the record the information can be located and explain how the record demonstrates entitlement to relief.

id If the entitlement to relief cannot be discerned from the face of the record, without resorting to fact-finding, then the motion must be denied and the relief sought by another method. Santiago v. State, 22 So.3d 789, 790 (Fla. 5th DCA 2009) (holding movant must file rule 3.850 motion instead of rule 3.800 motion if claim cannot be resolved from face of record without resorting to fact-finding). We think this standard applies equally to double jeopardy cases because, like sentencing claims, the resolution of a double jeopardy claim often ‘“depends upon factual evidence involving the times, places, and circumstances of the offense,’ and often cannot be determined from the face of the record.” State v. Callaway, 658 So.2d 983, 988 (Fla. 1995) (quoting Callaway v. State, 642 So.2d 636, 639 (Fla. 2d DCA 1994)), receded from on other grounds by Dixon v. State, 730 So.2d 265 (Fla. 1999). “record” from which a violation must be apparent consists only of what the trier of fact saw and heard. Matson v. Wilco Office Supply & Equip. Co., 541 So.2d 767, 769 (Fla. 1st DCA 1989).

Thus, the key issue in this case is whether Griffith has pointed us to a double jeopardy violation that is apparent on the face of the record. The State argues Griffith violated the solicitation statute on February 3rd and then violated the traveling statute on February 4th. In contrast, Griffith argues that his solicitation began on February 3rd and continued on February 4th until his arrest. Under the State’s theory, the February 3rd solicitation was distinct from the February 4th solicitation that was a necessary component of the traveling charge. Under Griffith’s theory, the February 3rd and 4th solicitations were part of one continuous criminal action that resulted in traveling.

Section 847.0135(3) prohibits the use of a computer to solicit a child, or a person believed to be a child, for sex. Section 847.0135(4) makes it a crime to travel to meet a child for sex after soliciting the child by computer. If based on the same conduct, the charge of traveling after solicitation subsumes the solicitation charge, which is a lesser included offense. State v. Shelley, 176 So.3d 914, 919 (Fla. 2015).

Appellate courts apply de novo review to double jeopardy claims based on undisputed facts. Id. at 918 n.4 In Hughes v. State, 201 So.3d 1230 (Fla. 5th DCA 2016), this Court concluded that dual convictions for traveling and solicitation violated double jeopardy because they were based on the same conduct. In that case, an undercover officer with the Lake County Sheriffs Office posed as a fourteen-year-old girl on Craigslist and had contact with the defendant, Joey Hughes. Id. at 1231. The sexually-explicit conversations between them, which occurred via email and text, began on February 3, 2014, and ended with Hughes’s arrest on February 4, 2014. By the end of the February 3rd conversations, Hughes had confirmed the location where they would meet the next afternoon. Hughes said he would message the “girl” at approximately 3:00 p.m. on February 4th. At approximately 2:30 p.m. on February 4th, the detective messaged Hughes and they discussed the previous night’s conversations and agreed to meet soon at the specified location. Id. When Hughes arrived, he was arrested and subsequently charged with one count of solicitation and one count of traveling. Id at 1232. Relying on Shelley, we held that although the solicitation and traveling occurred on two different days, the dual convictions violated double jeopardy because they were based on the same conduct. Id. at 1233 (citing Shelley, 176 So.3d at 917). We reasoned that Hughes made concrete plans on February 3rd to meet the “girl” at a predetermined location at a predetermined time and on February 4th, followed through as planned and traveled to the designated meeting spot. There was no separate solicitation after the plan was formulated.

In analyzing this case, we examine whether the record demonstrates that the two charges are based on the same conduct. We conclude Griffith’s actions on February 3rd and February 4th were separate and distinct. Here, by the end of their conversation on February 3rd, Griffith and “Kelly” had a tentative agreement to meet the following Friday. That plan changed the next day when, after engaging in additional sexual exchanges, they agreed to meet that afternoon. Thus, Griffith solicited “Kelly” on February 3rd to meet a few days later, but solicited her again and traveled on February 4th. The fact that he referenced the February 3rd conversation on February 4th does not transform the actions into one continuous criminal act. Griffith’s actions were not part of the “same conduct.”

Because we conclude that Griffith failed to point to evidence in the record demonstrating a double jeopardy violation apparent from the record, we affirm the judgments and sentences.

AFFIRMED.

EDWARDS, J., concurs.

BERGER, J., concurs in result only.

      . Claimants of ineffective assistance of counsel have a similar burden. They must demonstrate the claim is apparent from the record by "identifying] particular acts or omissions of the lawyer” that are deficient. Ruiz v. State, 80 So.3d 420, 421 (Fla. 4th DCA 2012) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla. 1986)). The transcript of a hearing or trial is often key to demonstrating a violation or entitlement to relief on the face of the record. See, e.g., Robinson v. State, 141 So.3d 656, 657-58 (Fla. 4th DCA 2014) (finding ineffective assistance of counsel was apparent from record where, "[a]s can easily be seen from the transcript of the sentencing hearing,” witness would have testified consistently with defendant and inconsistently with victim); Wilkins v. State, 110 So.3d 479, 480 (Fla. 4th DCA 2013) (noting that burden is on appellant to demonstrate that face of record shows written judgment is incorrect by attaching certified copy of sentencing transcript or plea colloquy transcript).

      . In Shelley, the Florida Supreme Court held that a double jeopardy violation occurred because Shelley’s convictions of solicitation and traveling after solicitation were based on the "same conduct.” 176 So.3d at 918.

      . During the seven-hour email break between February 3rd and 4th, Griffith also had the opportunity to "pause, reflect and form a new criminal intent.” See Cabrera v. State, 884 So.2d 482, 484 (Fla. 5th DCA 2004). Griffith ended the conversation on Monday with a tentative plan to meet "Kelly” on Friday, waited seven hours, then reinitiated contact with her and began to make plans to travel to meet her. He emailed her twice before she woke up — once to ask where she lived and whether he should bring sixty dollars when they met, and once to ask if she liked the nude pictures that he sent her.


author: PALMER, J.

text:
    Terry BESS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-3295
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 13, 2017

      James S. Purdy, Public Defender, and Robert J. Pearce III, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Terry Bess (the defendant) appeals his judgment and sentence, entered by the trial court after a jury found him guilty of committing a lewd or lascivious battery. Because the State properly concedes that the trial court erred in failing to conduct a Richardson hearing, and the record does not establish that the error was harmless, we reverse and remand for a new trial.

We summarized the law relevant to Richardson violations: When a defendant elects to participate in the discovery process, the State has an ongoing duty to disclose and provide discovery and, when the State fails to comply with the rules of discovery, the court must conduct a Richardson hearing. Stimus v. State, 886 So.2d 996, 997 (Fla. 5th DCA 2004)(citing Acosta v. State, 856 So.2d 1143 (Fla. 4th DCA 2003)). The purpose of the hearing is to determine whether the State’s failure prejudiced the defendant. Id. at 998. Importantly, in circumstances where the trial court improperly fails to conduct a hearing, such failure can constitute harmless error if the appellate court can ascertain, beyond a reasonable doubt, that there is no reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred. Id.; accord Elmer v. State, 140 So.3d 1132, 1139 (Fla. 5th DCA 2014).

The defendant contends that the trial court reversibly erred by permitting the sexual assault nurse examiner, who examined the victim, to submit expert testimony during trial because the court was on notice that the State had committed a discovery violation by not listing the nurse as an expert witness. The State properly concedes that a discovery violation occurred and that the trial court erred by failing to conduct a Richardson hearing. The State also properly concedes that the trial court erred by permitting the State, over defense counsel’s Richardson objection, to present the nurse as an expert witness and to elicit opinion testimony from her. However, the State argues that such error was harmless. We disagree.

The State’s burden to show that a discovery violation was harmless is “extraordinarily high.” Hicks v. State, 45 So.3d 518, 524 (Fla. 4th DCA 2010) (quoting Cox v. State, 819 So.2d 705, 712 (Fla. 2002)). “Although the failure to conduct a Richardson hearing is not per se reversible error, see [State] v. Schopp, 653 So.2d [1016,] 1020 [(Fla. 1995)], harmful error is presumed when a Richardson inquiry is not conducted.” Portner v. State, 802 So.2d 442, 446 (Fla. 4th DCA 2001) (citing Mobley v. State, 705 So.2d 609, 611 (Fla. 4th DCA 1997)).

If the reviewing court finds that there is a reasonable possibility that the discovery violation prejudiced the defense or if the record is insufficient to determine that the defense was not materially affected, the error must be considered harmful. In other words, only if the appellate court can say beyond a reasonable doubt that the defense was not procedurally prejudiced by the discovery violation can the error be considered harmless.

Schopp, 653 So.2d at 1020-21.

On this record, it cannot be said that, beyond a reasonable doubt, the defendant was not procedurally prejudiced by the State’s discovery violation. The nurse offered expert opinion testimony establishing that the lack of vaginal injury is not unusual in rape cases. Since the defendant’s theory of the case was that the lack of injury to the victim’s vagina proved that a crime did not occur, there is a reasonable possibility that the discovery violation materially hindered the defendant’s trial preparation and/or strategy. Accordingly, the defendant’s judgment and sentence are reversed and this matter is remanded for a new trial. See Ward v. State, 165 So.3d 789 (Fla. 4th DCA 2015) (holding that trial court’s failure to conduct Richardson hearing concerning State’s discovery violation in not designating a detective as an expert was not harmless, even though detective’s testimony was brief; appellate court could not say beyond a reasonable doubt that defendant was not procedurally prejudiced by the discovery violation); Debord v. State, 152 So.3d 788 (Fla. 1st DCA 2014) (holding that the State’s failure to designate its expert witnesses was not harmless in trial for sexual battery and lewd and lascivious molestation where it was reasonably possible that defendant would have altered his trial preparation or strategy and that defendant would have deposed experts and possibly procured his own expert); Kipp v. State, 128 So.3d 879 (Fla. 4th DCA 2013) (holding that discovery violation hearing was required to determine whether defendant was procedurally prejudiced by the State’s nondisclosure of veterinary assistant as expert witness in defendant’s trial for animal cruelty).

REVERSED and REMANDED.

SAWAYA and ORFINGER, JJ., concur.

      . Richardson v. State, 246 So.2d 771 (Fla. 1971) (providing that, when a discovery violation is alleged, the trial court must determine if a violation occurred and, if so, whether it was inadvertent and not prejudicial to the preparation of the defense).


author: B.L, THOMAS, J.

text:
    Adam PRINS, Petitioner, v. Robert FARLEY, Respondent.
    CASE NO. 1D16-3435
    District Court of Appeal of Florida, First District.
    Opinion filed January 17, 2017

      John J, Joyce of Robinson, Kennon & Kendron, P.A., Lake City, for Petitioner.
    Marie A. Mattox, Tallahassee, for Respondent.
   B.L, THOMAS, J.

In this petition for writ of certiorari, the issue presented is whether Petitioner, an elected city council member, suffered irreparable harm that cannot be cured on post-judgment appeal, when the trial court denied a motion to dismiss a suit filed by Respondent against Petitioner, based on the dismissal of Petitioner from his position as city manager. We find that Petitioner would suffer irreparable harm from the trial court’s ruling allowing the suit to proceed. See Crowder v. Barbati, 987 So.2d 166, 167 (Fla. 4th DCA 2008) (quashing order denying motion to dismiss where absolute privilege barred suit for defamation charge against sheriff). We therefore grant the writ of certiorari and quash the order below, which departed from the essential requirement of law, because the suit is barred by absolute privilege.

Petitioner campaigned for the Live Oak City Council and was elected, after asserting that the upper levels of city management were excessively compensated. Once elected, Petitioner criticized Respondent during a local flooding event. After conversations with other council members, the city council discharged Respondent from his position. Respondent then filed suit, alleging tortious interference by Petitioner in seeking Respondent’s dismissal. Respondent alleged that Petitioner started a rumor among the city council that Respondent would be fired, and further asserted that Petitioner acted outside the scope of his official duty by misleading two council members to vote to discharge Respondent.

Petitioner filed a motion to dismiss the suit, arguing that because he acted within the scope of his official public duties, the legal cause of action was barred by absolute privilege. The trial court denied the motion to dismiss, citing issues of fact relating to the issue of absolute privilege, and ruling that Petitioner could raise the defense by a motion for summary judgment.

We note first that Respondent’s complaint is, in essence, a retooled defamation claim. Lock v. City of W. Melbourne, Fla., 2015 WL 1880732, *27 (M.D. Fla. April 24, 2015) (holding city council members absolutely immune from police chiefs tortious-interference claim, because the claim was a retooled defamation action). And absolute immunity protects public officials for statements made “in connection with an employee’s discharge ... if the official has responsibility for discharging the employee.” Id. at *29 (citing Barr v. Matteo, 360 U.S. 564, 574-75, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959)); see also Hauser v. Urchisin, 231 So.2d 6, 7-8 (Fla. 1970) (holding absolute immunity shielded city commissioner from lawsuit for defamatory statements made to press regarding former city prosecutor’s dismissal); Goetz v. Noble, 652 So.2d 1203, 1205 (Fla. 4th DCA 1995) (extending absolute immunity to bar suits against a government official alleging tortious interference with a contract for “statements made in connection with the performance of an official duty”). The Florida Supreme Court has previously reasoned that officials should be absolutely immune from suit in cases such as this, as it is “‘better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.’ ” McNayr v. Kelly, 184 So.2d 428, 431 n.12 (Fla. 1966) (quoting Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949)).

The United States Supreme Court has explained the policy underlying barring suits against elected officials who act within the scope of their authority:

‘In order to enable and encourage a representative of the public to discharge his public trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offense.’ II Works of James Wilson (Andrews ed. 1896) 38.

Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). According to the Court, the principle of legislators being “free from arrest or civil process for what they do or say in legislative proceedings” is grounded in the English Parliament’s centuries-long struggle for independence from the Crown. Id. at 372, 71 S.Ct. 783.

In order for the doctrine of absolute privilege to apply, however, the action taken must fall within the scope of the official’s duties. Albritton v. Gandy, 531 So.2d 381, 387 (Fla. 1st DCA 1988). Although the scope of an official’s duties is liberally construed and extends to “‘discretionary duties that are associated with a given position,’ ” the action must be related to the official’s duties. See Lock, 2015 WL 1880732 at *28 (quoting Stephens v. Geoghegan, 702 So.2d 517, 523 (2d DCA 1997)); see also Tenney, 341 U.S. at 374, 71 S.Ct. 783 (noting the doctrine of absolute immunity should be liberally construed). In Albritton, a county commissioner had an emergency medical technician fired for refusing to endorse him during his campaign. 531 So.2d at 387. This court held that the commissioner acted outside the scope of his official duties, because only the county administrator possessed the authority to dismiss the technician, not the county commission.

Here, Petitioner’s comments, ‘[h]owever false or malicious,’ ” were protected by absolute privilege, because the city council was authorized to dismiss Respondent as city manager, and Petitioner’s alleged statements were made in connection with the dismissal of Respondent. Lock, 2015 WL 1880732 at *28 (quoting Hauser, 231 So.2d at 8). Because “the ultimate check” on public officials is the electoral process, it is the voters who must decide if Petitioner’s actions were justified, not a civil jury. Bogan v. Scott-Harris, 523 U.S. 44, 52, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998) (holding that absolute immunity also protects local officials from suit).

Thus, we GRANT Petitioner’s petition for writ of certiorari and QUASH the trial court’s order denying Petitioner’s motion to dismiss.

RAY and OSTERHAUS, JJ., CONCUR.