author: WINOKUR, J. WINOKUR, J., concurring.

text:
    Sylvester HOOKS, Appellant, v. STATE of Florida, Appellee.
    CASE NOS. 1D16-0368 1D16-0369 & 1D16-0370
    District Court of Appeal of Florida, First District.
    Opinion filed December 6, 2017 Rehearing and Rehearing En Banc Denied February 28, 2018
    Andy Thomas, Public Defender, Kasey Lacey, Assistant Public Defender, Steven Seliger, Assistant Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Jason Rodriguez, Assistant Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   WINOKUR, J.

Sylvester Hooks appeals his conviction and his judgment and sentence upon violation of probation, raising two issues: whether the trial court erred by conducting an inadequate Faretta inquiry, and whether the trial court erred by denying Hooks' motion to suppress evidence. We affirm, but write to address Hooks' claim that the trial court's Faretta inquiry was insufficient.

I.

Prior to trial on two counts and on violation of probation, Hooks informed the trial court that he wished to represent himself. The trial court had Hooks read, initial, and sign a form entitled "Self-Representation Advisory Form/Trial" ("the form"). The trial court then asked if Hooks read over the form carefully. Hooks answered in the affirmative. The trial court then proceeded to reiterate the disadvantages of self-representation and that Hooks had to make a voluntary and knowing decision to do so. The trial court then asked if Hooks still wanted to waive his right to counsel. Hooks again answered in the affirmative. The trial court then discharged Hooks' counsel, but allowed her to remain as standby counsel.

Immediately before trial commenced, the trial court once again asked Hooks if he still wanted to represent himself. After speaking to his standby counsel, Hooks replied affirmatively. Hooks then represented himself throughout the trial and probation violation proceedings. The jury found Hooks guilty as charged. The trial court sentenced Hooks accordingly, and found Hooks guilty of violating probation, revoked probation, and sentenced him on those charges as well.

II.

Hooks never objected to the sufficiency of the Faretta inquiry at trial. However, a deficient Faretta inquiry constitutes fundamental error that can be raised for the first time on appeal. See Curtis v. State , 32 So.3d 759, 761 (Fla. 2d DCA 2010).

A.

"Under the United States Supreme Court's ruling in Faretta , an accused has the right to self-representation at trial." Tennis v. State , 997 So.2d 375, 377 (Fla. 2008). "A defendant's choice to invoke this right 'must be honored out of that respect for the individual which is the lifeblood of the law.' " Id. at 377-78 (quoting Faretta , 422 U.S. at 834, 95 S.Ct. 2525 ). A defendant "must be free personally to decide whether in his particular case counsel is to his advantage." Faretta , 422 U.S. at 834, 95 S.Ct. 2525. As such, "the Sixth and Fourteenth Amendments include a 'constitutional right to proceed without counsel when' a criminal defendant 'voluntarily and intelligently elects to do so.' " Indiana v. Edwards , 554 U.S. 164, 170, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008) (quoting Faretta , 422 U.S. at 807, 95 S.Ct. 2525 ). A defendant who expresses a desire to self-represent must "knowingly and intelligently"

do so, and the trial court should make the defendant "aware of the dangers and disadvantages of self-representation." Faretta , 422 U.S. at 835, 95 S.Ct. 2525. The Court's purpose in requiring such an inquiry is to ensure that a defendant who chooses self-representation does so "with eyes open." Id. (quoting Adams v. U.S. ex rel. McCann , 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1943) ).

Central to the Faretta Court's rationale is the view that forced representation is constitutionally proscribed. Indeed, the Court viewed the issue through that lens from the outset. Accordingly, the Court found that "a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation." Id. at 835, 95 S.Ct. 2525.

The United States Supreme Court revisited Faretta in Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). The Court held that the competency standard for pleading guilty or waiving the right to counsel was not higher than the standard for competency to stand trial. Id. at 391, 113 S.Ct. 2680. Specifically, the Court held that whether defendants may be permitted to represent themselves is a "two-part inquiry:" first, the trial court establishes that a defendant is competent; and second, the trial court determines that a waiver of counsel is "knowing and voluntary." Id. at 401, 113 S.Ct. 2680. "The focus of a competency inquiry is the defendant's mental capacity; the question is whether he has the ability to understand the proceedings." Id. at 401, 113 S.Ct. 2680 n.12. "The purpose of the 'knowing and voluntary' inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced." Id. However, the trial court need not make an explicit determination of competency before a defendant may exercise the right to self-representation. See id. at 401, 113 S.Ct. 2680 n.13 (holding that a court is not "required to make a competency determination in every case in which the defendant seeks to ... waive his right to counsel;" "[A] competency determination is necessary only when a court has reason to doubt the defendant's competence." (citing Drope v. Missouri , 420 U.S. 162, 180-81, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) ; Pate v. Robinson , 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) )).

B.

A review of the history of Florida Rule of Criminal Procedure 3.111(d) is helpful in understanding Florida courts' application of Faretta . In 1972, the Florida Supreme Court adopted Florida Rule of Criminal Procedure 3.111, entitled "Providing Counsel to Indigents," which established procedures for appointment of counsel to indigent defendants. In re Florida Rules of Criminal Procedure , 272 So.2d 65 (Fla. 1972). The rule addressed a defendant's waiver of appointed counsel as follows:

No waiver shall be accepted where it appears that the defendant is unable to make an intelligent and understanding choice because of his mental condition, age, education, experience, the nature or complexity of the case, or other factors.

Fla. R. Crim. P. 3.111(d)(3) (1973). Two years after this rule became effective, the United States Supreme Court decided Faretta , which, as stated, recognized that a defendant has the right to self-representation. But based on Rule 3.111(d), Florida courts held that a trial court must make specific inquiry on the record relating to the defendant's age, ability to read and write, education, and other factors, before a waiver of counsel was deemed sufficient. See e.g. Wilson v. State , 724 So.2d 144, 145 (Fla. 1st DCA 1998) ; Gillyard v. State , 704 So.2d 165 (Fla. 2d DCA 1997) ; Smith v. State , 512 So.2d 291 (Fla. 1st DCA 1987). By mandating these specific questions, these cases suggested that a court had an obligation to deny a request for self-representation unless the defendant was sufficiently aged, educated, and literate, to handle self-representation, seemingly in conflict with Faretta.

The Florida Supreme Court addressed the tension between the waiver of counsel provision of Rule 3.111(d) and Faretta in State v. Bowen , 698 So.2d 248 (Fla. 1997). In Bowen , the trial court refused to accept the defendant's waiver of counsel based upon the factors enumerated in Rule 3.111(d)(3), in particular that the defendant's education was insufficient to represent himself in a complex case. Bowen , 698 So.2d at 250-51. The supreme court reversed, holding that "once a court determines that a competent defendant of his or her own free will has 'knowingly and intelligently' waived the right to counsel, the dictates of Faretta are satisfied, the inquiry is over, and the defendant may proceed unrepresented." Id. at 251. "[N]o citizen can be denied the right of self-representation-or any other constitutional right-because he or she has only a high school diploma." Id. at 252. In concurrence, Justice Wells expressed concern that Rule 3.111(d)(3) was inconsistent with the court's ruling in Bowen and other decisions. Id. (Wells, J., concurring).

In light of Bowen , the Florida Supreme Court amended the rule, removing the requirement that a court refuse to permit a waiver of counsel based upon the defendant's mental condition, age, education, experience, the nature or complexity of the case, or other factor, and replaced it with the following:

Regardless of the defendant's legal skills or the complexity of the case, the court shall not deny a defendant's unequivocal request to represent him or herself, if the court makes a determination of record that the defendant has made a knowing and intelligent waiver of the right to counsel.

Fla. R. Crim. P. 3.111(d)(3) (1998); Amendment to Florida Rule of Criminal Procedure 3.111(d)(2)-(3) , 719 So.2d 873 (Fla. 1998). Thus, Rule 3.111(d) reflects the understanding that Faretta does not require certain "magic words" to effectuate self-representation. Potts v. State , 718 So.2d 757, 760 (Fla. 1998). The amended rule also added a provision to subsection (2) of Rule 3.111(d) requiring the court to "advise the defendant of the disadvantages and dangers of self-representation" before determining whether a waiver of counsel is knowing and intelligent.

In short, a competent defendant who does not suffer from severe mental illness and who has been advised of the disadvantages and dangers of self-representation cannot be denied the right to self-representation, regardless of age, education, experience, or the nature or complexity of the case. While these factors may be relevant in determining competence, failure to inquire specifically into any of the factors does not automatically render a Faretta inquiry deficient. We ruled in Edenfield v. State , 45 So.3d 26 (Fla. 1st DCA 2010), that any case imposing such a requirement was applying the pre-1998 version of Rule 3.111(d) :

The current version of Rule 3.111(d) does not require questions regarding any of the information emphasized by Edenfield. Some cases indicate a mechanical, rote process must be followed, requiring specific questions about the defendant's age, education, mental condition, and experience with criminal proceedings. However, these holdings are based on a prior version of Rule 3.111(d)(3). This prior version stated a waiver was unacceptable unless the trial court found on the record that the defendant had made a competent choice based on his "mental condition, age, education, experience, the nature or complexity of the case, or other factors." This language was removed from the Rule in 1998, following Bowen 's holding that the inquiry needs to ensure only that the defendant is proceeding "with eyes open." 698 So.2d at 251. Regardless, asking such questions can often be a redundant exercise. Much of the information covered by the questions is already provided to the court by other means. For example, in the instant case, the County Court had access to Edenfield's probable cause affidavit and DUI citation.

Edenfield , 45 So.3d at 30 n.11. See also Neal v. State , 60 So.3d 1132, 1135 (Fla. 4th DCA 2011) (noting that "[a]lthough a prior version of the rule required the court to find on the record that the defendant had made a competent choice of self-representation based on his 'mental condition, age, education, experience, the nature or complexity of the case, or other factors,' that express requirement was eliminated in the current version of the rule"). As we did in Edenfield , we emphasize again that no "magic words" or specific questions are necessary to ensure an adequate Faretta inquiry. 45 So.3d at 30. If the trial court has adequately determined that the defendant is competent to waive counsel, and is satisfied that the defendant understands its advice regarding the dangers and disadvantages of self-representation, then not only does the court not err in permitting self-representation, but is required to do so.

III.

The form given to Hooks informed him of his right to counsel and explained, in detail, the advantages and disadvantages of self-representation. Hooks had to initial every numbered statement on the form and sign his name at the bottom of the form. The form is exhaustive and states as follows:

1. If I cannot afford a lawyer, the state will appoint me one and pay for it.
2. If I can afford a lawyer, I can hire a lawyer of my choice.
3. Before trial, a lawyer's legal training and experience may:
A. Help me get or change bail.
B. Get information about my case by enforcing the legal rules for discovery.
C. Uncover violations of my constitutional rights and enforce them.
D. Make sure I have a speedy trial if I want one.
E. Make sure the state has followed the statute of limitations.
F. Identify and preserve favorable evidence for my trial.
G. Help me get the best possible plea and sentence, if I don't want a trial.
H. Uncover legal grounds to dismiss my case or suppress evidence against me.
I. File the proper papers to preserve my right to present defenses at trial, including presenting an alibi.
4. At trial, a lawyer's legal training and experience may:
A. Help me pick the best jury, and explain to me challenges for cause, peremptory challenges, and the number of challenges allowed.
B. Make sure the state follows the proper rules for picking a jury.
C. Call my witnesses and make sure they were served subpoenas for trial.
D. Question the witnesses against me.
E. Present documents and physical evidence to help me.
F. Advise me on whether I should testify at trial, and the consequences of that decision.
G. Object and argue to the judge if the state does not follow rules of evidence.
H. Make effective closing arguments to the jury.
I. Preserve objections for appeal if I lose the trial.
J. Prevent improper arguments by the state to the jury.
5. Self-representation is almost always unwise because:
A. I will not get any special treatment.
B. I will not get a continuance just because I represent myself.
C. If I am in jail, I have limited legal resources for trial research. It may be hard or impossible for me to subpoena my witnesses or my evidence for trial. It will be hard or impossible for me to talk with the state, other witnesses, or other persons on matters that may help my defense.
D. I will have to follow the rules of criminal procedure and evidence, even though it takes years for a lawyer to learn these laws and rules.
E. A defendant often gets too emotional during the trial and cannot concentrate, be objective, or be effective in defending the case.
F. Questioning a witness about what you did or did not do can be awkward and ineffective in the eyes of the jury.
G. A defendant cannot appeal and claim that lack of legal skills is a ground for a new trial.
6. The decision to represent myself may be final. The judge might not appoint me a lawyer later for trial just because I decide I made a poor decision to represent myself.
7. If I represent myself at trial, and if I am convicted, I will have the right to an appointed lawyer for sentencing. Sentencing is a separate proceeding.
I swear I have read and understood the above form.

After Hooks read and signed the form, the trial court addressed Hooks regarding his understanding of his rights, his competence to waive them, and his understanding of the form:

THE COURT: [L]et me have Mr. Hooks and Ms. Helms come up here real close to the court reporter so we can see about Mr. Hooks' decision to represent himself.
Early in the morning, Mr. Hooks, your attorney said you had decided to represent yourself. And I handed to you what I call a little form for self-representation which goes over all the things that say I want you to make sure you know about so I don't have to repeat a lot of it. Did you get a chance to read over that real carefully?
[HOOKS]: Yes, sir.
THE COURT: Okay. And, and I'll say, again, it's your absolute right to represent yourself if you want to. I almost never advise it, because a lawyer-it says on that form-has got a lot of knowledge and experience, knowledge about procedures, knowledge about rules of evidence, things that you might not know about. You don't have to be a lawyer to represent yourself. You just have to know the disadvantages and to make a voluntary and knowing decision to do it.
Have you thought about it and decided whether you, still wanted to represent yourself?
[HOOKS]: Yes, I have. And I do want to represent myself.
THE COURT: And you do want to represent yourself. Okay. Well, let me have you initial those things and then sign that form for me. And I'll have that in the file. And I'll sign it and we'll-
[DEFENSE COUNSEL]: Judge, he's already initialed-
THE COURT: Yes.
[DEFENSE COUNSEL]: -each spot. I can approach with that.
THE COURT: Okay. Did he sign it, too?
[DEFENSE COUNSEL]: He did sign it, Judge.
THE COURT: Okay.
[DEFENSE COUNSEL]: I think the only thing we're missing is the case number.
THE COURT: I'll put in.

In summary, the trial court gave Hooks, through the self-representation form, a thoroughly detailed account of his right to counsel, the benefits of counsel, and the dangers and disadvantages of self-representation. Hooks initialed every paragraph and signed the form, swearing that he read and understood the form. The court then reiterated on the record the dangers of self-representation, specifically asked Hooks on the record whether he read the form carefully (to which Hooks responded affirmatively), and told him that his decision to represent himself must be voluntary. We see nothing in the record that would have given the court "reason to doubt the defendant's competence," Godinez , 509 U.S. at 401 n.13, 113 S.Ct. 2680, and Hooks has suggested none. We conclude that the trial court adequately advised him of the dangers of self-representation and determined that he intelligently and knowingly waived his right to counsel.

IV.

A.

Hooks argues that the inquiry was inadequate because the court failed to ask questions about his age, education, mental or physical health, ability to read and write, drug use, or prior self-representation. Again, the failure to ask any specific questions does not render a Faretta inquiry inadequate. Iowa v. Tovar , 541 U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004) (stating there is no formula or script to a Faretta inquiry and the waiver need only be made with "eyes open"); Edenfield , 45 So.3d at 30 (noting that "since there are no 'magic words' required in a Faretta inquiry, there is no requirement that any specific questions be asked"). A requirement that trial courts ask certain questions of the defendant verbatim is contrary to the Florida Supreme Court's recognition that "self-representation is best safeguarded not by an arcane maze of magic words and reversible error traps, but by reason and common sense." Potts , 718 So.2d at 760. Moreover, these sorts of requirements may very well frustrate the purpose and intent of Faretta itself.

Hooks represented that he was literate, as he affirmed twice, once in writing and once on the record, and that he read and understood the form explaining the dangers and disadvantages of self-representation. Hooks argues that the court asked no questions from which it could determine that he was competent to waive counsel, but the colloquy here is similar to the colloquy in Edenfield . A specific inquiry into Hooks' age and education was not necessary because his actions and answers to the trial court's colloquy indicated that he understood the disadvantages of self-representation and that he made the choice "with eyes open." Faretta , 422 U.S. at 835, 95 S.Ct. 2525. See Potts , 718 So.2d at 759 (noting that a decision regarding a sufficient Faretta inquiry "turns primarily on [the trial court's] assessment of demeanor and credibility").

B.

The State disagrees with Hooks that his Faretta inquiry was deficient for failing to inquire regarding his age or education level, citing Edenfield. However, the State concedes that Hooks' waiver was deficient because no direct inquiry was made regarding his ability to read and whether he understood the form given to him by the trial court. The State relies on our decision in Stanley v. State . 192 So.3d 1291 (Fla. 1st DCA 2016). In Stanley , we held that trial courts "must consider 'the defendant's mental condition, age, education, and any other factor bearing on his capacity to choose self-representation.' " Id. at 1292 (quoting White v. State , 21 So.3d 77, 79 (Fla. 1st DCA 2009) (emphasis added)). However, consideration of these factors does not mean that trial courts must engage in rote recitation of certain key phrases or questions. That is precisely what the 1998 revision to Rule 3.111(d) was meant to prevent.

The record shows that Hooks read and signed the self-representation form, which included a provision that Hooks swore that he understood the form. The trial court then asked Hooks if he read over the form carefully, and Hooks answered in the affirmative. Clearly, the trial court ascertained Hooks' literacy when Hooks verified that he read the form carefully. Asking a defendant who has just stated that he has read and understood a written form "can you read?" is, at best, superfluous.

In Faretta , the trial court engaged in an exhaustive colloquy where the defendant was quizzed on "the intricacies of the hearsay rule and the California code provisions that govern challenges of potential juror on voir dire ." 422 U.S. at 836, 95 S.Ct. 2525. At no point did the trial court ask the defendant if he was literate. Id. at 808 nn. 2 & 3, 95 S.Ct. 2525. Yet, the Court found that the trial court's colloquy had shown that the defendant was "literate, competent, and understanding, and that he was voluntarily exercising his informed free will." Id. at 835, 95 S.Ct. 2525. The touchstone of Faretta is a common-sense inquiry of whether a defendant is competent to knowingly and voluntarily waive the right to counsel, not a mechanical recitation of boilerplate questions.

Hooks informed the court that he read, understood, and signed a form detailing an exhaustive list of his constitutional right to counsel, as well as the pitfalls of representation and the advantages of retaining counsel. This satisfied the trial court that his age and educational level were sufficient to make a knowing and voluntary choice to waive his right to counsel. Any further probing into his age and education would serve only to ascertain whether Hooks could effectively represent himself, which is precisely the sort of inquiry that the United States Supreme Court and the Florida Supreme Court have proscribed.

V.

Again, the Florida Supreme Court has clearly held that the adequacy of a Faretta inquiry is not based on the "specific advice rendered by the trial court" or "magic words" that the trial court must utter to the defendant, "but rather on the defendant's general understanding of his or her rights." Potts , 718 So.2d at 760. See also McCray v. State , 71 So.3d 848, 867 (Fla. 2011) (noting that "what matters is not the words the trial court employs but rather that the record reflects a defendant who makes a knowing and voluntary waiver of counsel" (internal quotations omitted)); McKenzie v. State , 29 So.3d 272, 281-82 (Fla. 2010) (rejecting claim that Faretta inquiry was insufficient for failure to inquire into the defendant's experience with the criminal justice system). However, we must address language in the supreme court's opinion in Aguirre-Jarquin v. State , 9 So.3d 593 (Fla. 2009) that appears to conflict with this well-settled rule.

In assessing the adequacy of a Faretta inquiry, the supreme court in Aguirre-Jarquin wrote, "[i]n order to ensure the waiver is knowing and voluntary, the trial court must inquire as to the defendant's age, experience, and understanding of the rules of criminal procedure." Id. at 602. By writing that the trial court "must" make these specific inquiries, Aguirre-Jarquin seems to conflict with other supreme court decisions that reject an approach mandating specific questions for an adequate waiver of counsel and hold that the analysis turns on "the defendant's general understanding of his or her rights." Potts , 718 So.2d at 760.

Aguirre-Jarquin cites Porter v. State , 788 So.2d 917, 927 (Fla. 2001), for the contention that the trial court "must" ask specific questions to ensure a knowing and voluntary waiver of counsel. However, Porter did not in fact make this contention. Porter merely recounted a list of "factors to be considered" in determining whether a waiver of counsel is knowing and voluntary. Id. The Porter court drew this list from United States v. Fant , 890 F.2d 408 (11th Cir. 1989). Porter did not hold, as Aguirre-Jarquin suggests, that a trial court "must" ask any particular questions to assure a valid waiver of counsel.

While it might be tempting to view the disputed language in Aguirre-Jarquin as an anomaly that the supreme court later rejected in cases such as McKenzie and McCray , the supreme court recently cited that provision of Aguirre-Jarquin in McGirth v. State , 209 So.3d 1146, 1157 (Fla. 2017).

We find that the supreme court did not intend to create a new rule of law in Aguirre-Jarquin -invalidating self-representation unless the trial court asks particular questions of the defendant-for two reasons. First, as noted above, such a rule conflicts with a substantial body of case law from both the Florida Supreme Court and the United States Supreme Court rejecting that approach.

Second, while the Aguirre-Jarquin court suggested that a trial court "must" ask specific questions, it neither disapproved the Faretta inquiry given there because the specific questions were not asked, nor did it approve it because the specific questions were asked. The Aguirre-Jarquin court found that the Faretta inquiry was sufficient, but did not indicate whether the trial court asked those questions. Aguirre-Jarquin , 9 So.3d at 602. As such, the alleged requirement for specific questions was dicta in this context.

VI.

There is competent substantial evidence in the trial record that Hooks knowingly and voluntarily waived his right to counsel and understood the disadvantages of doing so. That is what Faretta and Rule 3.111(d) require. Any further inquiry runs afoul of the constitutional guarantee of self-representation. However, in order to resolve the issue raised by Aguirre-Jarquin , we certify the following as a question of great public importance:

IS A FARETTA INQUIRY INVALID IF THE COURT DOES NOT EXPLICITLY INQUIRE AS TO THE DEFENDANT'S AGE, EXPERIENCE, AND UNDERSTANDING OF THE RULES OF CRIMINAL PROCEDURE?

AFFIRMED.

ROWE and OSTERHAUS, JJ., CONCUR.

ON MOTION FOR REHEARING, REHEARING EN BANC, AND/OR CERTIFICATION OF CONFLICT

DENIED.

WINOKUR, J., concurring.

We certified a question of great public importance to resolve an apparent conflict in case law regarding the specificity of questions that must be asked to ensure a voluntary waiver of counsel. Hooks asks that we also certify conflict. I concur in the denial of this motion, including his request for rehearing and rehearing en banc.

I write separately to emphasize two points. First, Hooks claims we have overlooked that the Supreme Court "approved" a standard Faretta colloquy as part of the 1998 amendment to Florida Rule of Criminal Procedure 3.111(d) and "added" the standard colloquy to the rule. In fact, the model colloquy is not part of Rule 3.111. The Court only asked the Criminal Procedure Rules Committee to make suggestions for standardizing Faretta inquiries. Amendment to Florida Rule of Criminal Procedure 3.111(d)(2)-(3) , 719 So. 2d 873 (Fla. 1998). The Court's request was passed to the Conference of Circuit Judges, which developed a model colloquy. Id. The Court attached the model colloquy as an appendix to its opinion amending the rule in order to make it available to trial judges. Id . The Court neither "approved" the model colloquy nor "added" it to Rule 3.111. While the model colloquy is useful, it does not establish an enforceable standard for ensuring an adequate waiver of counsel. See Neal v. State , 60 So. 3d 1132, 1135 (Fla. 1st DCA 2011) (noting that "[w]hile the model colloquy contained in the rules is very helpful, failure to follow it to the letter does not compel a finding that a defendant has not made a knowing and intelligent choice of self-representation."); Vega v. State , 57 So. 3d 259, 262 (Fla. 5th DCA 2011) ("trial courts are not bound to follow the model Faretta colloquy suggested by the supreme court").

Second, Hooks argues that we have overlooked the trial court's failure to ask him numerous questions about, for instance, his age, his education, his "mental status," and his experience in criminal proceedings, and that without answers to these questions the court failed to ensure that he was competent to waive counsel. I note that he does not claim that his answers to any of these questions would have suggested that he was not competent to waive counsel. In fact, the record shows the opposite. Before jury selection, Hooks gave a clear statement regarding the issues in the case and his defense theory. Hooks actively participated in jury selection, making two cause challenges and a peremptory strike. Hooks gave a coherent opening statement, cross-examined all four of the State's witnesses, actively participated in sidebar discussions, moved for judgment of acquittal after the State rested, and gave a cogent closing argument. The court confirmed at every critical stage of the proceeding that Hooks wished to continue representing himself, until sentencing, when Hooks chose to be represented by stand-by counsel. At sentencing, the court indicated that Hooks appeared to be a "pretty intelligent guy," and called him "articulate." Hooks asks that we reverse the trial court not because the court allowed an incompetent defendant to represent himself, but because the court failed to ask a list of questions that would have shown what the record already shows, and what even Hooks himself does not dispute.

Unlike a plea colloquy, where the case is usually over soon after the defendant enters the waiver (of trial), a Faretta inquiry allows the case to proceed after the defendant enters the waiver (of counsel). Thus-and again unlike a guilty plea-the court has ample opportunity after the waiver of counsel to determine whether the defendant appears competent. In my view the questions to ascertain competency prior to the waiver are far more important in the plea context than in the waiver-of-counsel context. Here, nothing that occurred at trial would have given the trial court any indication that, perhaps, Hooks had not been competent to waive counsel.

I recognize that the Florida Supreme Court has held that Faretta and Rule 3.111(d)"require reversal when there is not a proper Faretta inquiry." State v. Young , 626 So. 2d 655, 657 (Fla. 1993). See also Case v. State , 865 So. 2d 557, 559 (Fla. 1st DCA 2003) (citing Young for the proposition that "[w]hen a defendant waives the right to counsel, the trial court's failure to perform an adequate Faretta inquiry is per se reversible error"). As such, Hooks is not obligated to show that he was incompetent. However, the United States Supreme Court has held that a court is required to make a competency determination when a defendant seeks to waive his or her right to counsel "only when a court has reason to doubt the defendant's competence." Godinez v. Moran , 509 U.S. 389, 401 n.13 (1993). In other words, a defendant who is plainly competent cannot show prejudice from the court's failure to ask questions to confirm that he is competent. Nothing else demonstrates more that this case is an example of "Simon Says" jurisprudence, where judgments are to be reversed not because a party suffered prejudicial error, but because the court failed to say the right words the right way.

In this case, the trial court adequately determined that Hooks' waiver of counsel was voluntary. As Hooks has failed to demonstrate that we overlooked any law or facts, his motion should be denied.

      Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      Possession of Pyrrolidinovalerophenone with intent to sell within 1,000 feet of a community center, and possession of cannabis with intent to sell within 1,000 feet of a community center.

      See id. at 807, 95 S.Ct. 2525 (Succinctly stating that the issue before the Court "is whether a State may constitutionally hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense. It is not an easy question, but we have concluded that a State may not constitutionally do so.").

      In 2009, the Florida Supreme Court added the following clause to the end of the sentence in Rule 3.111(d)(3) : "and does not suffer from severe mental illness to the point where the defendant is not competent to conduct trial proceedings by himself or herself." In re Amendments to Florida Rule of Criminal Procedure 3.111 , 17 So.3d 272, 275 (Fla. 2009). This addition followed the United States Supreme Court decision in Indiana v. Edwards , which held that a person suffering from severe mental illness, even if competent to stand trial, may be denied self-representation. 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008).

      The factors set out in Fant were as follows:
      (1) the background, experience and conduct of the defendant including his age, educational background, and his physical and mental health; (2) the extent to which the defendant had contact with lawyers prior to trial; (3) the defendant's knowledge of the nature of the charges, the possible defenses, and the possible penalty; (4) the defendant's understanding of the rules of procedure, evidence and courtroom decorum; (5) the defendant's experience in criminal trials; (6) whether standby counsel was appointed, and the extent to which he aided the defendant; (7) whether the waiver of counsel was the result of mistreatment or coercion; or (8) whether the defendant was trying to manipulate the events of the trial.
      United States v. Fant, 890 F.2d 408, 409-10 (11th Cir. 1989).

      This does not include, of course, the situation where the defendant waives counsel and enters a guilty plea at the same time. But in this circumstance, the court must also comply with the requirements for ensuring a valid guilty plea, irrespective of the requirements for ensuring a valid waiver of counsel.


source: Caselaw Access Project

author: MORRIS, Judge.

license: Public Domain

text:
    BLACK POINT ASSETS, INC., as Trustee Under the 4551 Remington Road Trust Dated March 1, 2013, Appellant, v. VENTURES TRUST 2013-I-H-R, BY MCM CAPITAL PARTNERS, LLC, its Trustee, Appellee.
    Case No. 2D16-2047
    District Court of Appeal of Florida, Second District.
    January 05, 2018
    Mark P. Stopa of Stopa Law Firm, LLC, Tampa; and Latasha Scott of Lord Scott, PLLC, Tampa, for Appellant.
    Shawn Taylor of DeLuca Law Group, PLLC, Fort Lauderdale, for Appellee.
   MORRIS, Judge.

Black Point Assets, Inc. (Black Point), as trustee under the 4551 Remington Road Trust dated March 1, 2013, appeals the final judgment of foreclosure entered in favor of Ventures Trust 2013-I-H-R (Ventures Trust), by MCM Capital Partners, LLC, its trustee. We affirm the portion of the final judgment awarding monies for the outstanding principal, interest, and escrow advances without further comment. However, we reverse the portion of the final judgment awarding attorneys' fees because there was no competent, substantial evidence to support the amount awarded and because the discrepancies between the amount requested, the amount determined to be reasonable, and the amount awarded result in that portion of the final judgment failing to comply with the intent of Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), and Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990).

I. BACKGROUND

Because we have found error only in the award of attorneys' fees, a complete recitation of the facts is unnecessary. It is sufficient to note that Ventures Trust, a substituted party for the original plaintiff in the foreclosure action, obtained the final judgment against Black Point, a nonparty to the note and mortgage who purchased the subject property after the original property owner's default, but before the filing of the original foreclosure complaint. While the foreclosure case was pending, Ventures Trust filed two affidavits for attorneys' fees, one from an attorneys' fees expert and one from the attorney hired by Ventures Trust. The attorney who represented Ventures Trust sought fees in the amount of $11,710.50.

The record does not reflect that a hearing was held on the issue of attorneys'

fees, and no expert testimony was presented on that issue at the nonjury trial. It is undisputed that there was no fee agreement between the parties.

At the conclusion of the trial, the trial court entered final judgment in favor of Ventures Trust which included attorneys' fees and costs totaling $12,841.61. That amount was listed in a table of all of the awarded sums of money and was comprised of $7,016.68 for "Attorney Fees & Cost" and $5,824.93 for "Prior Servicer Attorney Fees." The trial court explained that the fee award was "based upon the affidavits presented and upon inquiry of counsel for the Plaintiff." The trial court also summarily concluded that "there [were] no reduction or enhancement factors for consideration by the Court pursuant to" Rowe.

II. ANALYSIS

"Values awarded in a foreclosure judgment must be based on competent, substantial evidence." Boyette v. BAC Home Loans Servicing, LP, 164 So.3d 9, 10 (Fla. 2d DCA 2015) (citing Wagner v. Bank of Am., N.A., 143 So.3d 447, 448 (Fla. 2d DCA 2014) ); see also Colson v. State Farm Bank, F.S.B., 183 So.3d 1038, 1040 (Fla. 2d DCA 2015) (explaining that "a sufficiency of the evidence claim" is reviewed "for competent, substantial evidence"). An attorneys' fees award "must be supported by expert evidence, including the testimony of the attorney who performed the services." Diwakar v. Montecito Palm Beach Condo. Ass'n, 143 So.3d 958, 960 (Fla. 4th DCA 2014) (quoting Tutor Time Merger Corp. v. MeCabe, 763 So.2d 505, 506 (Fla. 4th DCA 2000) ). "Competent evidence includes invoices, records[,] and other information detailing the services provided as well as the testimony from the attorney in support of the fee." Id. (quoting Brewer v. Solovsky, 945 So.2d 610, 611 (Fla. 4th DCA 2006) ).

Here, at trial, the payment history, account ledger, and payoff statement were properly introduced into evidence. However, none of those documents contained competent, substantial evidence to support the $12,841.61 fee award. The payment history consisted of coded data entries with no final totals. The payoff statement reflects that $181,951.91 was the total amount due as of November 17, 2015, and one of the line items was "UNPAID FEES" in the amount of $12,841.61, but there was no description of the services that resulted in the imposition of those fees. The account ledger contains a spreadsheet which reflect numerous charges for "FEE BILLED" in varying amounts that were posted between October 10, 2014, and October 26, 2015. Those amounts, when added together, result in the amount awarded: $12,841.61. But like the payoff statement, there was no description of the services provided that resulted in the imposition of those fees. Another document that was admitted in conjunction with the account ledger reflected a table entitled "BSI Fee Breakdown" with a total of $7,016.68, along with another table entitled "Prior Servicer Fee Breakdown" with a total of $5,824.93. Like the other documents, there was no description of the services provided that resulted in the imposition of those fees. Nor was there any testimony explaining these documents or the figures in them. Specifically, there was no testimony "regarding the identity of the timekeeper, the hours worked, or the work performed." Diwakar, 143 So.3d at 961 ; see also Boyette, 164 So.3d at 10 (reversing attorneys' fees award where the record did not reflect any agreement to a flat attorneys' fee and where there was no other competent, substantial evidence to support the fee award).

We note that the trial court made a finding that "38.70 hours were reasonably expended by Plaintiff's counsel and that an[ ] hourly rate of $215.00 is appropriate." This finding appears to emanate from the attorneys' fees affidavits filed prior to trial. The attorney who billed Ventures Trust stated he had completed 38.70 hours of work at the rate of $215 per hour. The attorney also stated that in addition to the hourly work, Ventures Trust had agreed to pay a flat fee of $3390. Thus the attorney was seeking a total award of $11,710.50 ($8320.50 for the hourly rate plus $3390 for the flat fee), an amount that the attorneys' fees expert opined was a reasonable fee. However, the trial court did not address the $3390 flat fee that was requested in the attorneys' fees affidavit, and thus it is unknown whether that amount was included in the $12,841.61 award. The portion of the final judgment awarding attorneys' fees simply fails to address the discrepancy between the requested amount and the amount awarded. And the order itself is internally inconsistent because the amount awarded is more than the amount that the trial court found was reasonable ($8320.50 based on 38.70 hours at a rate of $215 per hour). Furthermore, the attorneys' fees affidavits were never offered as an exhibit at the trial.

Black Point contends that a reversal of the fee award without remand is the proper remedy because Ventures Trust failed to present any evidence in support of the fee award. However, the transcript of the trial reflects that Black Point's trial counsel challenged the amount of the requested fees and suggested that the fee issue "might require a hearing." And because the record contains some evidence which, if explained, could support the award, reversing and remanding for an evidentiary hearing is the more appropriate disposition. See Colson, 183 So.3d at 1041 ("Remand for 'an evidentiary hearing on the amount of attorney's fees and costs sought by the bank' is necessary and proper where the only evidence of the fees and costs 'was an affidavit filed by the bank's counsel prior to trial.' " (quoting Wagner, 143 So.3d at 448 ) ); Diwakar, 143 So.3d at 961 (explaining that "when the record contains some competent[,] substantial evidence supporting the" award of fees, "yet fails to include some essential evidentiary support such as testimony from the attorney performing the services, or testimony from additional expert witnesses, the appellate court will reverse and remand the order for additional findings or an additional hearing, if necessary" (quoting Rodriguez v. Campbell, 720 So.2d 266, 268 (Fla. 4th DCA 1998) ) ); see also Boyette, 164 So.3d at 11 (reversing and remanding "for further proceedings to properly establish the amounts due and owing"); Petrovsky v. HSBC Bank, USA, 185 So.3d 700, 702 (Fla. 4th DCA 2016) (concluding that attorneys' fees affidavits that were filed prior to trial were insufficient to support fee award and thus reversing attorneys' fees award and remanding for trial court to conduct evidentiary hearing). Consequently, we reverse and remand for the trial court to conduct an evidentiary hearing to determine the proper amount of attorneys' fees.

Because we are reversing the portion of the final judgment awarding attorneys' fees and remanding for an evidentiary hearing, we write to address one other issue briefly raised by Black Point. Although it appears that the trial court attempted to comply with Rowe by finding that 38.70 hours were reasonably expended and that $215 per hour was a reasonable rate, the internal inconsistencies within the order as well as the discrepancy between the amount requested and the amount awarded preclude us from engaging in meaningful appellate review.

Rowe dictates that courts must multiply the number of hours reasonably expended by a reasonable hourly rate to reach the lodestar amount. 472 So.2d at 1150-51. The trial court may then add or subtract from that amount "based upon a 'contingency risk' factor and the 'results obtained.' " Id. at 1151. "In determining the hourly rate, the number of hours reasonably expended, and the appropriateness of the reduction or enhancement factors, the trial court must set forth specific findings." Id."If the court decides to adjust the lodestar, it must state the grounds on which it justifies the enhancement or reduction." Id.; see also Quanstrom, 555 So.2d at 834 (setting forth factors that trial courts should consider when deciding whether to apply a multiplier and explaining that "[e]vidence of these factors must be presented to justify the utilization of a multiplier").

Here, the amount requested was $11,710.50, the amount that the trial court determined was reasonable was $8,320.50 (38.70 hours at $215 per hour), and the amount that the trial court awarded was $12,841.61. Although some of the documents submitted into evidence reflect the $12,841.61 award amount, there was no testimony to provide context to that amount as we previously explained. Further, because the amount awarded exceeded both the amount determined to be reasonable and the amount requested, one interpretation is that the trial court intended to award more than the lodestar amount, though we acknowledge that that is unlikely due to the trial court's finding that "there are no reduction or enhancement factors for consideration by the Court pursuant to" Rowe. However, because the amount awarded exceeded both the amount determined to be reasonable and the amount requested, we do not know what led to the trial court's decision to award the amount that it did. The internal inconsistency in the order as well as the discrepancy between the amount requested and the amount awarded make it impossible for us to determine the basis for the trial court's award. Cf. In re Guardianship of Ansley, 94 So.3d 711, 713-14 (Fla. 2d DCA 2012) (concluding that where the amount of fees awarded was less than the amount requested and less than the amount determined to be reasonable, the internal inconsistency in the order resulted in a lack of meaningful findings pursuant to Rowe and precluded the court from determining the basis for the court's award, including whether it was supported by competent, substantial evidence). Thus, on remand, if the trial court again decides to award attorneys' fees, the order should set forth the basis for the award in a manner that is consistent with the intent of Rowe and Quanstrom.

Affirmed in part, reversed in part, and remanded for proceedings in conformance herewith.

CASANUEVA and SALARIO, JJ., Concur.

      The table also listed amounts for the principal, interest, and escrow advances.

      The attorneys' fees expert opined in his affidavit that 38.70 hours was reasonable for this type of litigation and that 36.40 hours at a rate of $215 per hour plus a flat fee of $3390 resulted in "a total reasonable fee of $11,710.50." The reference to 36.40 hours appears to be a typographical error as it is clear from the totality of the affidavit that the expert believed the hourly rate should be based on 38.70 hours of work.

      Although not raised by Black Point as an independent basis for reversal, we note that " '[r]easonable attorney's fees' generally are not liquidated damages and require a hearing." Zumpf v. Countrywide Home Loans, Inc., 43 So.3d 764, 766 (Fla. 2d DCA 2010) (quoting Asian Imps., Inc. v. Pepe, 633 So.2d 551, 552 (Fla. 1st DCA 1994) ). "Absent an evidentiary hearing, the fee award will be reversed for a hearing unless there is an indication that the right to a hearing was waived." Id. (citing Guyton v. Leonard Dewey Wilkinson Action Welding Supply, Inc., 707 So.2d 885, 886 (Fla. 1st DCA 1998) ). There is no indication that Black Point's counsel waived the right to a fee hearing. Rather, after making his suggestion about the need for a hearing, he resumed making arguments about Ventures Trust's standing. The hearing ended with the trial court granting final judgment in favor of Ventures Trust. Thus counsel did not have a further opportunity to move for a separate fee hearing.


author: Wolf, J.

text:
    INLET BEACH CAPITAL INVESTMENTS, LLC, and David Pearson, Appellants, v. The ENCLAVE AT INLET BEACH OWNERS ASSOCIATION, INC., a Florida not for profit corporation, Becker & Poliakoff, P.A., John Townsend, Jay Roberts, Raymond Newman, James G. Waldschmidt, Marijane Gleeson Waldschmidt, Randall Brown, Diana Tibbs, and Alan Mancuso, Appellees.
    Nos. 1D16-2282/1D16-2283/1D16-3833
    District Court of Appeal of Florida, First District.
    January 17, 2018
    Bruce S. Rogow and Tara Campion of Bruce S. Rogow, P.A., Fort Lauderdale; William S. Howell, Jr. of William S. Howell, Jr., P.A., Santa Rosa Beach; and Fred D. Bentley, Jr., pro hac vice, of Bentley, Bentley & Bentley, Marietta, GA, for Appellants.
    James K. Parker and Yvette R. Lavelle of Boyd Richards Parker & Colonnelli, P.L., Miami, for Appellees Becker & Poliakoff, P.A., John Townsend, Jay Roberts, and Raymond Newman.
    William K. Thames of Vernis & Bowling of Northwest Florida, P.A., Pensacola, for Appellees The Enclave at Inlet Beach Owners Association, Inc., James G. Waldschmidt, Marijane Gleeson Waldschmidt, Randall Brown, Diana Tibbs, and Alan Mancuso.
   Wolf, J.

This appeal arises from three final orders dismissing with prejudice appellants' amended complaint in each case. We have consolidated these cases into a single appeal, as appellants raise the same issues in each case: whether the litigation privilege bars their claims of malicious prosecution against appellees for filing and maintaining allegedly baseless foreclosure and declaratory actions against appellants, and whether each of the amended complaints stated valid causes of action for malicious prosecution and conspiracy to commit malicious prosecution. We find the litigation privilege does not bar appellants' claims, which state valid causes of action for malicious prosecution and conspiracy to commit malicious prosecution.

The Florida Supreme Court recently addressed whether the litigation privilege can bar an otherwise valid claim for malicious prosecution in Debrincat v. Fischer , 217 So.3d 68 (Fla. 2017). In Debrincat , the court held that the litigation privilege does not bar the filing of a malicious prosecution claim that was based on adding, and later dropping, a party defendant to a civil suit because " 'malicious prosecution could never be established if causing the commencement or continuation of an original proceeding against the plaintiff were afforded absolute immunity under the litigation privilege.' " Id. at 70 (quoting Fischer v. Debrincat , 169 So.3d 1204, 1207 (Fla. 4th DCA 2015) ). Appellees assert that Debrincat should only apply in situations where a party is added to the litigation.

We see nothing in the language in Debrincat to support this conclusion. Appellees offer no explanation as to why the reasoning in Debrincat should not apply to the instant cases, where appellants were the original defendants in the underlying action. We hold that the litigation privilege is not an absolute bar to appellants' claims of malicious prosecution.

Next we turn to whether appellants' causes of action properly stated claims for malicious prosecution and conspiracy to commit malicious prosecution.

The Florida Supreme Court has explained that a cause of action asserting malicious prosecution must establish the following elements:

(1) an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding against the present plaintiff as the defendant in the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff ; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant ; and (6) the plaintiff suffered damage as a result of the original proceeding.

Debrincat , 217 So.3d 68 at 70 (emphasis added) (quoting Alamo Rent-A-Car, Inc. v. Mancusi , 632 So.2d 1352, 1355 (Fla. 1994) ).

In the instant case, the trial court was required to accept as true all of the factual allegations made in the complaints. Andrew v. Shands At Lake Shore, Inc. , 127 So.3d 1289 (Fla. 1st DCA 2013) ; Locker v. United Pharm. Grp., Inc. , 46 So.3d 1126, 1127-28 (Fla. 1st DCA 2010). In the complaints, appellants alleged that the basis for appellees' voluntary dismissal of the underlying foreclosure action was appellees' lack of a valid cause of action. Documents attached to the complaints support this assertion. Accordingly, at the motion to dismiss stage of the litigation, appellants' allegations were sufficient to establish that the underlying action was ended in a bona fide termination in favor of appellants. See Cohen v. Corwin , 980 So.2d 1153, 1155 (Fla. 4th DCA 2008).

Lastly, appellants' complaints sufficiently allege malice because the complaints alleged that appellees chose to maintain the foreclosure suit against appellants for over a year after they were aware that they did not have a valid cause of action. See Alamo Rent-A-Car , 632 So.2d at 1357. While the attached documents raise factual issues concerning appellees' reason for not dismissing the underlying foreclosure action sooner, the documents as a whole do not directly contradict appellants' assertion of maliciousness.

In summation, the litigation privilege does not bar a malicious prosecution action, and the trial court erred in dismissing appellants' malicious prosecution and conspiracy to commit malicious prosecution claims. Accordingly, we REVERSE and REMAND all three final orders for further proceedings consistent with this opinion.

Winokur and Jay, JJ., concur.

      The litigation privilege is an exemption that protects judges, counsel, parties, and witnesses " 'from liability to an action for defamatory words published in the course of judicial proceedings, regardless of how false or malicious the statements may be, as long as the statements bear some relation to or connection with the subject of inquiry.' " Debrincat v. Fischer , 217 So.3d 68, 69-70 (Fla. 2017) (quoting DelMonico v. Traynor , 116 So.3d 1205, 1211 (Fla. 2013) ).

      "The inference of malice from the absence of probable cause is not one of law but merely a presumption of fact which may be rebutted. This is an inference which the jury is not required to draw, and which it should not draw if other facts disclosed by the evidence lead to a different conclusion." Colonial Stores Inc., v. Scarborough , 355 So.2d 1181, 1185 (Fla. 1977).


author: Jay, J.

text:
    Terrance J. PICKETT, Appellant, v. Holly C. COPELAND, Appellee.
    No. 1D17-293
    District Court of Appeal of Florida, First District.
    January 17, 2018
    Jason Cromey of Cromey Law, P.A., Pensacola, for Appellant.
    No appearance for Appellee.
   Jay, J.

Terrance J. Pickett appeals the trial court's Final Judgment of Injunction for Protection Against Stalking. Although we disagree that Mr. Pickett was deprived of due process during the hearing, we agree with Mr. Pickett that the evidence was legally insufficient to support the issuance of the injunction against him. Consequently, we reverse.

Mr. Pickett claims that competent, substantial evidence did not support the trial court's imposition of the permanent injunction against stalking. A trial court has broad discretion to grant an injunction, and we review an order imposing a permanent injunction for a clear abuse of that discretion. Noe v. Noe , 217 So.3d 196, 199 (Fla. 1st DCA 2017) ; Weisberg v. Albert , 123 So.3d 663, 664 (Fla. 4th DCA 2013). But the question of whether the evidence is legally sufficient to justify imposing an injunction is a question of law that we review de novo. Wills v. Jones , 213 So.3d 982, 984 (Fla. 1st DCA 2016).

Section 784.0485(1), Florida Statutes (2016), "create[s] a cause of action for an injunction for protection against stalking." The "petition for an injunction for protection against stalking may be filed in the circuit where the petitioner currently or temporarily resides, where the respondent resides, or where the stalking occurred." § 784.0485(1)(f), Fla. Stat. As defined in section 784.048(2), Florida Statutes (2016), stalking occurs when a person "willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person[.]" (Emphasis added.) "Harass" is defined in section 784.048(1)(a) to mean "engag[ing] in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose." (Emphasis added.) In its turn, "course of conduct" is defined as "a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose." § 784.048(1)(b), Fla. Stat. (emphasis added).

"Thus, by its statutory definition, stalking requires proof of repeated acts." Lukacs v. Luton , 982 So.2d 1217, 1219 (Fla. 1st DCA 2008) ; see also Power v. Boyle , 60 So.3d 496, 498 (Fla. 1st DCA 2011) ("Stalking has been interpreted to mean 'repeated acts of following or harassment.' ") (quoting Lukacs , 982 So.2d at 1219 )). Stated differently, repeated acts are required for "one act of stalking. " Lukacs , 982 So.2d at 1219 (emphasis in the original); see also Packal v. Johnson , 226 So.3d 337 (Fla. 5th DCA 2017) (reversing permanent injunction for protection against stalking violence because the evidence did not support a finding of repeat harassment); Carter v. Malken , 207 So.3d 891, 894 (Fla. 4th DCA 2017) ("A minimum of two incidents of harassment are required to establish stalking.").

In contrast, several courts have held that a stalking injunction requires proof of two or more separate incidences of "stalking." See, e.g. , Burns v. Bockorick , 220 So.3d 438, 440 (Fla. 4th DCA 2017) (" 'In order to be entitled to an injunction for stalking, the petitioner must allege and prove two separate instances of stalking.' ") (quoting David v. Schack , 192 So.3d 625, 627-28 (Fla. 4th DCA 2016) ); Klemple v. Gagliano , 197 So.3d 1283, 1285 (Fla. 4th DCA 2016) (same); Richards v. Gonzalez , 178 So.3d 451, 453 (Fla. 3d DCA 2015) (referring to "[e]ach incident of stalking") (emphasis in original); Touhey v. Seda , 133 So.3d 1203, 1204 (Fla. 2d DCA 2014) (requiring "each incident of stalking" to be proved). Apparently, this two-incident requirement was adopted based upon "guidance" from the repeat violence statute-section 784.046, Florida Statutes -"which defines repeat violence as 'two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner's immediate family member.' " Wyandt v. Voccio , 148 So.3d 543, 544 (Fla. 2d DCA 2014) (emphasis added); see also David v. Textor , 189 So.3d 871, 874-75 (Fla. 4th DCA 2016) (" Section 784.0485, Florida Statutes (2014), allows an injunction against stalking, including cyberstalking. The statute must be read in conjunction with section 784.046(1)(b), Florida Statutes (2014), which requires at least two incidences of stalking to obtain an injunction.");

Leach v. Kersey , 162 So.3d 1104, 1106 (Fla. 2d DCA 2015) (holding that the stalking "statute is analyzed with guidance from the statute governing injunctions against repeat violence, section 784.046"); Touhey , 133 So.3d at 1203 ("Given the [stalking] statute's recent enaction, support for our holding comes from cases analyzing allegations of stalking in the context of section 784.046, which applies to injunctions for protection against repeat violence, sexual violence, and dating violence.") (footnote omitted).

However, nowhere in the definitions of section 784.048 is stalking defined as a multiple of itself. Stalking is defined simply as "willfully, maliciously, and repeatedly" following, harassing, or cyberstalking another person-not repeatedly stalking another person. § 784.048(2), Fla. Stat. Equally important, section 784.0485 makes no reference to the provisions of the repeat violence statute; does not mandate "guidance" from the repeat violence provisions; and, independent of the requirements of section 784.046, creates a "cause of action for an injunction for protection against stalking." § 784.0485(1), Fla. Stat.; see M. Kimberly Martyn, Representing Battered Spouses, Florida Dissolution of Marriage , § 21.78 (Fla. Bar CLE 12th ed. 2015) ("Effective October 1, 2012, a fifth type of protective injunction exists for protection against stalking. F.S. § 784.0485(1). The availability of this injunction enables victims of stalking, including cyberstalking, who do not qualify for domestic violence injunctions, to seek relief without the necessity of proving the two separate stalking offenses that are required in repeat violence injunction proceedings. ") (emphasis added). Moreover, if a stalking injunction requires two instances of "stalking," then at least four prohibited events must be proved by the person seeking the injunction-because a single "stalking" offense requires repeated acts of malicious following, and/or harassment, and/or cyberstalking.

See Lukacs , 982 So.2d at 1220 ("To adopt the view of Appellant would lead to the absurd result of requiring stalking victims to show that they twice suffered from repeated harassment or following before obtaining a protective injunction. Were we to adopt such an interpretation, Appellant could have threatened or followed Appellee four times before the circuit court could issue a protective injunction.") (emphasis in the original). Therefore, based on the statutory language of section 784.0485, and the definitions set forth in section 784.048, we hold that the injunction provisions of section 784.0485 only require the petitioner to prove a single incident of stalking.

Turning to the facts of this case, it was incumbent on Ms. Copeland to prove stalking by competent, substantial evidence. Thoma v. O'Neal , 180 So.3d 1157, 1159 (Fla. 4th DCA 2015) (citing McMath v. Biernacki , 776 So.2d 1039, 1041 (Fla. 1st DCA 2001) ). As is so often true in injunction cases, the parties appeared below without counsel. The trial court conscientiously questioned each of the parties, in turn. There was scant relevant evidence presented, and the parties' testimony, at best, was confusing and convoluted. We are sensitive to the difficulties faced by the trial court in teasing out a thread of truth from a jumbled patchwork of conflicting narrative. But, after having carefully reviewed the record ourselves-mindful that we are not the factfinder-we are compelled to conclude that the evidence was neither competent nor substantial to carry Ms. Copeland's burden.

While there was evidence that Mr. Pickett followed Ms. Copeland from the Murphy gas station on Thanksgiving Day in 2016, he did so because there was an outstanding warrant for Ms. Copeland's arrest for violating the injunction he had obtained against her, and while he was following her, it is undisputed that he was talking to the police. That was, at most, a single act of following. Furthermore, though Ms. Copeland accused Mr. Pickett of driving past her house on multiple occasions-presumably to prove harassment-the evidence only suggested a single incident of his passing by, which falls short of a malicious "course of conduct" serving "no legitimate purpose." § 784.048(1)(a), (b) & (2), Fla. Stat.; see Leach , 162 So.3d at 1106 (reversing injunction and holding Leach's several messages to Kersey by phone, through friends, and on social media, after she learned of an eighteen-month affair between Kersey and Leach's husband, could not be found to serve " 'no legitimate purpose' "); Touhey , 133 So.3d at 1204 (holding record lacked a sufficient basis for the circuit court's finding that Seda proved "inappropriate contact" constituting stalking, where the testimony did not establish maliciousness or that a reasonable person would have suffered "substantial emotional distress" as a result of Touhey's behavior).

As a result, we hold there was no competent, substantial evidence to support the imposition of an injunction for protection against stalking. Consequently, the final judgment is reversed.

REVERSED .

Lewis and Ray, JJ., concur.

      In concluding that support for its holding came from analyzing allegations of stalking in the context of section 784.046, the Second District in Touhey drew inspiration from the staff analysis of Senate Bill 950-the precursor to chapter 2012-153, §§ 3, 6, Laws of Fla. (2012)-which created the cause of action for an injunction against stalking. 133 So.3d 1203 n.2. The analysis stated: "The 'statutory cause of action for an injunction for protection against stalking ... is similar to the current cause[ ] of action for [an] injunction[ ] against repeat violence.' " Id. (quoting Fla. S. Crim. Justice Comm., SB 950 (2012), Staff Analysis (Jan. 24, 2012)). We are not persuaded by the referenced staff analysis to abandon our view that the term "stalking" as used in section 784.0485 should be read in the singular. First, we are more persuaded by the general rule "that legislative staff analyses are not determinative of legislative intent, but are only 'one touchstone of the collective legislative will[ ]' ... [and] where the [statutory] language is clear, courts need no other aids for determining legislative intent." Am. Home Assur. Co. v. Plaza Materials Corp. , 908 So.2d 360, 375-76 (Fla. 2005) (Cantero, J., dissenting) (citations omitted). The language is clear in section 784.0485 ; the words of the statute are sufficient.
      Second, our reading of the full staff analysis only serves to confirm our present conclusion, to the extent that the analysis expressly recognized the need for an injunction specifically directed to the act of stalking because, up to that point, as it was acknowledged in the analysis, a person could only pursue injunctive relief through either the domestic violence injunction statute or the repeat violence injunction statute. And, as the staff analysis went on to point out, the pleading requirements of each of those statutes are more onerous, noting, in particular, that the repeat violence injunction statute requires "two incidents of stalking." Fla. S. Crim. Justice Comm., SB 950 (2012), Staff Analysis at 4 (Jan. 24, 2012). That distinction is at odds with the later language quoted above and relied on in Touhey , that a cause of action for an injunction against stalking is "similar" to a cause of action for an injunction against repeat violence. Regardless, we decline to define our reasoning in this case by the Senate staff analysis.

      It is clear that the trial court was troubled by the fact that when law enforcement caused Ms. Copeland to pull over into a parking lot, Mr. Pickett got out of his vehicle and used his cell phone to videotape her arrest. However, for purposes of the definition of harassment, "course of conduct" "does not include constitutionally protected activity[.]" § 784.048(1)(b), Fla. Stat. (2016). Even though we recognize that this protective language will not necessarily provide immunity for every instance where an individual videotapes an arrest-because an individual's actions may go beyond the scope of the constitutional protections-there is a First Amendment right to videotape police officers while they are conducting their official duties in public:
      Every Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh) has held that there is a First Amendment right to record police activity in public. See Turner v. Lieutenant Driver , 848 F.3d 678 (5th Cir. 2017) ; Gericke v. Begin , 753 F.3d 1 (1st Cir. 2014) ; Am. Civil Liberties Union of Ill. v. Alvarez , 679 F.3d 583 (7th Cir. 2012) ; Glik v. Cunniffe , 655 F.3d 78 (1st Cir. 2011) ; Smith v. City of Cumming , 212 F.3d 1332 (11th Cir. 2000) ; Fordyce v. City of Seattle , 55 F.3d 436 (9th Cir. 1995). Today we join this growing consensus. Simply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.
      Fields v. City of Philadelphia , 862 F.3d 353, 355-56 (3d Cir. 2017).


author: EDWARDS, J.

text:
    Shari HALL, Appellant, v. MARION COUNTY BOARD OF COUNTY COMMISSIONERS, Appellee.
    Case No. 5D17-1183
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 19, 2018
    Edwin A. Green, Ill, of Blanchard, Merriam Adel & Kirland, PA, Ocala, for Appellant.
    Matthew G. Minter, of Marion County Attorney's Office, Ocala, and Marcia K. Lippincott, of Marcia K Lippincott, P.A., Lake Mary, for Appellee.
   EDWARDS, J.

Shari Hall ("Appellant") appeals the entry of final summary judgment in favor of the Marion County Board of County Commissioners ("Marion County"). Appellant argues that the trial court erred in granting summary judgment on her separate claims for gender discrimination and retaliation. We reverse the final summary judgment because, although the trial court did not err in entering the summary judgment on her claim for gender discrimination, we find that the trial court erred regarding her retaliation claim.

Initially, Appellant filed a one-count complaint against Marion County asserting that the county unlawfully discriminated against her in violation of the Florida Civil Rights Act when it selected Paul Nevels instead of her as the Marion County Fire Rescue Chief.

Pursuant to section 2-48(12) of the Marion County Code, the county administrator has the power and duty to employ all personnel and fill all vacancies in positions of employment under the jurisdiction of the board of county commissioners except for those involving the county attorney's office. At the time of the selection and appointment process for the fire chief position, the acting county administrator was Mounir Bouyounes. When Appellant asked for specific reasons why Nevels got the job instead of her, Mr. Bouyounes sent Appellant a letter stating in pertinent part:

[Nevels] has management experience at a director level and possesses knowledge in dealing with developmental plans and resolving issues arising through this process in addition to advanced experience within the fire department.

In her deposition, Appellant testified that she believed Mr. Bouyounes' letter and similar oral statements he had made were his true reasons for deciding to appoint Nevels as the fire chief.

During the pendency of the litigation, Appellant filed her first amended complaint, which contained the same Count One gender discrimination claim as her initial complaint and added a second count in which she asserted that Marion County unlawfully retaliated by giving her unjustified and inaccurate low employment evaluations or reviews because she sued the county for gender discrimination. Marion County filed a motion for summary judgment that addressed the first amended complaint. After Marion County filed the motion, but prior to the summary judgment hearing, Appellant filed her second amended complaint which contained the same Count One gender discrimination claim and a revised Count Two, a retaliation claim asserting that she had been improperly passed over for the position of deputy fire chief because she sued Marion County.

Because Appellant filed the second amended complaint shortly before the summary judgment hearing, Marion County had not yet responded to it when the summary judgment hearing was held. No motion for summary judgment had been filed regarding Count Two of the second amended complaint. Thus, the parties only presented argument regarding Marion County's motion attacking Count One, the gender discrimination claim, of Appellant's amended complaint. Both parties confirmed to the trial court at the commencement of the hearing that neither side was going to address Count Two, the retaliation claim, and neither did.

Following the hearing, the trial court filed its written order granting Marion County's motion for final summary judgment. The judgment was entered in favor of Marion County "on all of Plaintiff, Shari Hall's, claims in this action." The final summary judgment only discussed issues and made findings relevant to the gender discrimination claim and did not mention the retaliation claim at all. Appellant did not file a motion for rehearing or reconsideration but did timely appeal.

GENDER DISCRIMINATION CLAIM

Because Florida's Civil Rights Act is patterned after Title VII of the Federal Civil Rights Act of 1964, we consider both Florida and federal decisions. See Valenzuela v. GlobeGround N. Am. LLC , 18 So.3d 17, 21 (Fla. 3d DCA 2009). A claim for gender discrimination can be proved by direct or circumstantial evidence. See Standard v. A.B.E.L. Servs., Inc. , 161 F.3d 1318, 1330 (11th Cir. 1998). "Direct evidence is evidence that establishes the existence of discriminatory intent behind the employment decision without any inference or presumption." Id. "If the alleged statement suggests, but does not prove, a discriminatory motive, then it is circumstantial evidence." Wilson v. B/E Aerospace, Inc. , 376 F.3d 1079, 1086 (11th Cir. 2004). We examine Appellant's assertions that both direct and circumstantial evidence support her gender discrimination claim.

Direct Evidence

Appellant points to two statements that she claims former Fire Chief Stuart McElhaney made to her as direct evidence of gender discrimination. First, Appellant asserts that approximately two years prior to his retirement, Chief McElhaney promised her that "she would be the next Marion County Fire Rescue Chief." Second, she claims Chief McElhaney told her two years before he left that "he was starting to hear some grumblings from the commissioners about having a female fire chief." In his deposition, Chief McElhaney denied making this second statement.

"[R]emarks by non-decisionmakers or remarks unrelated to the decisionmaking process itself are not direct evidence of discrimination." Standard , 161 F.3d at 1330. Thus, neither statement Appellant relies on constitutes direct evidence of discrimination because neither dealt with how the employment decision was being made and neither was attributed to the county administrator, the sole decisionmaker. In fact, the trial court noted in the summary judgment order that there was "no record evidence that former Fire Chief Stuart McElhaney or the county commissioners had any involvement in the appointment decision or any influence on Mr. Bouyounes' decision." Thus, Appellant did not offer direct evidence of gender discrimination to avoid entry of summary judgment.

Circumstantial Evidence

Alternatively, Appellant asserts that circumstantial evidence supports her gender discrimination claim. Florida has adopted the three-step analytical process from McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for gender discrimination cases involving proof by circumstantial evidence. See Valenzuela, 18 So.3d at 21-22.

In Valenzuela , the Third District explained the McDonnell Douglas standard:

Under the McDonnell Douglas framework, a plaintiff must first establish, by a preponderance of the evidence, a prima facie case of discrimination. If successful, this raises a presumption of discrimination against the defendant.
If a prima facie showing is made, the burden of proof then shifts to the employer to offer a "legitimate, non-discriminatory reason" for the adverse employment action. If the employer meets its burden, the presumption of discrimination disappears and the employee must prove that the employer's legitimate reasons for dismissal were a pretext for discrimination. The ultimate burden of proving discrimination rests at all times with the plaintiff.

Id. at 22 (citations omitted).

Although there was no formal stipulation in this case, the parties do not dispute that Appellant established a prima facie case. According to Valenzuela :

In order to establish a prima facie case of disparate treatment based on gender discrimination, a plaintiff must prove that: (1) the employee is a member of a protected class; (2) the employee was qualified for her position; (3) the employee suffered an adverse employment action; and (4) similarly situated employees outside the employee's protected class were treated more favorably.

Id.

The second step of the McDonnell Douglas inquiry shifted the burden of proof to Marion County to offer legitimate, non-discriminatory reasons for promoting Nevels instead of Appellant to fire chief. Marion County stated that its decision was based on legitimate, non-discriminatory reasons and was not motivated by discriminatory intent. Marion County provided the following reasons in its answer: (1) prior to his appointment as fire chief, Nevels held the second-in-command position of deputy fire chief; (2) Nevels scored higher than Appellant in the second round of interviews conducted by then-Acting County Administrator Bouyounes; (3) Nevels worked for the fire department several years longer than Appellant and had held every rank starting with entry level firefighter/EMT and progressing to lieutenant, captain, battalion chief, fire marshal, operations chief, and deputy chief; (4) Nevels had substantially more experience as a combat firefighter than Appellant; (5) Nevels had successfully exercised departmental and senior management authority over fire department employees beyond what Appellant had; and (6) Nevels was a certified law enforcement official. In his deposition, Nevels testified to those accomplishments. Mr. Bouyounes confirmed in his deposition that those reasons, together with knowing how Nevels works through serving on a county committee with him, were the basis for the decision. Because the reasons Marion County gave are facially legitimate, non-discriminatory reasons for its decision, any presumption of unlawful discrimination disappeared. See id. at 25.

The third step of the McDonnell Douglas analysis placed the burden of proof on Appellant to prove that the reasons Marion County gave were pretextual rather than genuine. See Tillis v. Sheriff of Indian River Cty. , 603 Fed.Appx. 851, 853 (11th Cir. 2015). Appellant admitted in her deposition that she believed Mr. Bouyounes gave his true reasons for choosing Nevels over her. Appellant testified that she had never heard Mr. Bouyounes make a sexist remark, and the record was clear that he had appointed a number of females to high-level management positions within the county.

Appellant asserted that her qualifications more closely fit the county's description of whom it hoped to hire as fire chief, specifically with regard to seeking applicants with a bachelor's or master's degree. Appellant had an associate of arts degree and was pursuing, but had not attained, a bachelor's degree. Nevels had graduated from high school but had not pursued a college degree. Several other applicants who did not become finalists did have master's degrees, while others had bachelor's degrees. "An employer's violation of its own normal hiring procedure may be evidence of pretext. This is true when an employer disregards all but one of the factors and qualifications generally taken into consideration and relies solely on a factor which is designed to create 'leeway' for the promotion of people of a certain race." Adams v. Fulton Cty., Ga. , 397 Fed.Appx. 611, 613 (11th Cir. 2010). However, since neither Appellant nor Nevels had a bachelor's degree, disregarding the educational criteria equally as to both finalists did not prove unlawful discrimination. Thus, choosing Nevels, who had less formal education than Appellant, did not provide circumstantial evidence that the county administrator provided pretextual reasons for the hiring decision.

Appellant further asserted that she was generally more qualified than Nevels for the position. "When challenging a promotion decision on the basis of qualifications, the employee must show that 'disparities between the successful applicant's and her own qualifications were of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff.' " Id. at 853-54 (quoting Brooks v. Cty. Comm'n of Jefferson Cty., Ala. , 446 F.3d 1160, 1163 (11th Cir. 2006) ). An employer's decision regarding whom to hire or promote does not need to be correct, but it cannot be based on unlawful discrimination. "The relevant inquiry ... is not to judge which employee was more qualified, but to determine whether any disparity between [the employees'] managerial qualifications is so great that a reasonable fact-finder could infer that [the employer] did not believe [the successful applicant] to be better qualified." Cofield v. Goldkist, Inc. , 267 F.3d 1264, 1268 (11th Cir. 2001). Here, there is no dispute that both Appellant and Nevels were well-qualified for the position, and there was no record evidence that Appellant was vastly more qualified than Nevels.

Appellant failed in her burden of proving the county offered pretextual reasons, and thus failed to establish a case of gender discrimination using circumstantial evidence. Accordingly, the trial court was correct to grant summary judgment as to Count One, the gender discrimination claim.

RETALIATION CLAIM

However, the trial court erred in granting final summary judgment "on all of Plaintiff, Shari Hall's, claims in this action" because by doing so, it eliminated Appellant's Count Two retaliation claim set forth in her second amended complaint without giving her due process. The record is clear that Marion County had not filed an answer or any written response to the revised retaliation claim as of the date of the summary judgment hearing nor had Marion County filed a motion for summary judgment addressing the revised retaliation claim asserted as Count Two of the second amended complaint. No argument was presented to the court at the summary judgment hearing concerning any aspect or issue regarding Count Two. The final summary judgment specifically disposed of all of Appellant's claims against Marion County, thereby eliminating the retaliation claim set forth in Count Two of the second amended complaint.

Appellant did not file a post-judgment motion for rehearing to remind the trial court that the parties had specifically stated that they were not arguing anything concerning Count Two during that hearing. Ordinarily, Appellant's failure to seek rehearing or reconsideration would be fatal to her position for failure to make and preserve her argument at the trial court level. When a trial court's error appears for the first time on the face of a judgment or other order, it is incumbent upon the aggrieved party to bring it to the court's attention with the request for entry of a corrected order. See Pensacola Beach Pier, Inc. v. King , 66 So.3d 321, 324 (Fla. 1st DCA 2011) (holding that the appellants did not preserve their argument that the trial court erred in granting summary judgment on an issue for which summary judgment was not sought because they did not file "a motion for rehearing or any other post-judgment relief on this or any other ground"). The general rule is that an issue may not be argued for the first time on appeal. See Hooters of Am., Inc. v. Carolina Wings, Inc. , 655 So.2d 1231, 1235 (Fla. 1st DCA 1995). However, as with most rules, there are exceptions. One such exception permits a party to raise an issue for the first time on appeal if it constitutes fundamental error. See id. "[F]or error to be so fundamental that it may be argued on appeal, though not properly presented below, the error must amount to a denial of due process." Ray v. State , 403 So.2d 956, 960 (Fla. 1981).

"Adequate notice is a fundamental element of the right to due process." Hooters of Am. , 655 So.2d at 1235.

Due process requires that before a summary judgment is authorized to be entered against a non-moving party, it must be shown that he has had a full and fair opportunity to meet the proposition that there is no genuine issue of a material fact and that the party for whom the summary judgment is rendered or ordered to be entered is entitled thereto as a matter of law.

John K. Brennan Co. v. Cent. Bank & Tr. Co. , 164 So.2d 525, 530 (Fla. 2d DCA 1964). Appellant was not afforded that opportunity. Furthermore, the trial court erred in granting final summary judgment on all claims when the only motion for summary judgment addressed Count One and there was no motion for summary judgment regarding Count Two. See Levin v. Kleeman , 229 So.3d 1290, 1291 (Fla. 5th DCA 2017) (holding that the trial court erred by granting summary judgment where there was no motion pending).

Here, the trial court's final judgment discussed evidence, issues, and findings that were relevant only to the gender discrimination claim. Nowhere is the retaliation claim even mentioned, much less specifically ruled upon, in the summary final judgment. There was no reference to Count One or Count Two by name anywhere within the final summary judgment. Because the order in question discussed only one of the two counts, it would have been more accurately titled as a partial final summary judgment. The trial court's language simply granted Marion County's motion for final summary judgment and stated that judgment on all claims was entered in favor of the county. As a practical and legal matter, the trial court granted final summary judgment as to both counts, despite the fact that the parties told the trial court that Count Two, the retaliation claim, was not being argued and was not before the court. It is obvious that the trial court made a simple mistake rather than an erroneous ruling. That simple mistake might have been easily cured had Appellant, or Appellee for that matter, brought it to the trial court's attention. Nevertheless, an unintended denial of due process occurred when the trial court granted final summary judgment and entered judgment on all of Appellant's claims for Marion County, thereby eliminating Appellant's retaliation claim without any pending motion for summary judgment addressing that claim and without giving her the opportunity to oppose summary judgment on that claim.

Accordingly, we reverse the final summary judgment and remand with instructions for the trial court to enter partial final summary judgment against Appellant and in favor of Marion County only as to the Count One gender discrimination claim and to conduct further proceedings in this case regarding Appellant's retaliation claim in accordance with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

EVANDER and EISNAUGLE, JJ., concur.

      Appellant first amended her complaint to add a retaliation claim on August 18, 2016. This complaint alleged retaliation in the form of poor performance evaluations, and Marion County answered this complaint on September 9, 2016. Then, on March 3, 2017, Marion County filed for summary judgment on both counts. On March 22, Appellant amended her complaint a second time to allege a revised retaliation claim, asserting that she was passed over for the position of deputy fire chief. Marion County did not answer the second amended complaint until April 6, 2017, after the summary judgment hearing on March 31, 2017.

      Despite Appellant's claim to the contrary, the factual dispute regarding whether Chief McElhaney told her about "grumblings from county commissioners" is not material for the reasons just discussed, and thus, would not preclude summary judgment.

      If the employer has articulated a legitimate, non-discriminatory reason for the employment action taken, whether the plaintiff established a prima facie case is irrelevant. See Wright v. Southland Corp. , 187 F.3d 1287, 1302 (11th Cir. 1999).


author: SLEET, Judge.

text:
    Betty E. NEW, Appellant, v. DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, Appellee.
    Case No. 2D16-5647
    District Court of Appeal of Florida, Second District.
    Opinion filed January 19, 2018
    Mark Herron and Thomas H. Bateman, III of Messer Caparello, P.A., Tallahassee, for Appellant.
    Thomas E. Wright, Assistant General Counsel, Department of Management Services, Tallahassee, for Appellee.
   SLEET, Judge.

Betty E. New appeals a final administrative order denying her request for senior management service class (SMSC) benefits in the Florida Retirement System (FRS) from July 1, 2004, to her retirement date of June 30, 2015. Because the Department of Management Services (Department) in 2003 designated and approved Ms. New as eligible for SMSC class status retroactive to the date of her hiring in 2002, the Department could not impair or reduce Ms. New's retirement benefits, including SMSC class eligibility, based solely on the 2004 transfer of functions from local to State government, and we therefore reverse.

On February 1, 2002, Ms. New began her employment as court counsel for the Sixth Judicial Circuit. Through an interlocal agreement Ms. New was under the supervision and control of the chief judge of the Sixth Judicial Circuit, but her salary and benefits were paid by Pinellas County. In 2002, the court counsel position was designated in the Regular Class of the FRS. In March 2003, Pinellas County filed a formal request to the Department to add Ms. New to the SMSC of the FRS. The request was granted by the Department retroactive to her hire date of February 1, 2002.

On July 1, 2004, the funding for the position of court counsel for the Sixth Judicial Circuit was transferred by operation of law from Pinellas County to the State of Florida. When the funding for the court counsel position was transferred from Pinellas County to the State, Ms. New's employment functions, duties, and responsibilities did not change. However, the Department informed Ms. New that her prior designation and approval in the SMSC was terminated, and she was designated into the Regular Class until her retirement in 2015. In August 2004, when Ms. New sought to challenge the class reduction, she was instructed to wait until she retired to challenge it. Ms. New's retirement benefits were reduced by approximately $4800 annually because she was denied eleven years of SMSC credit.

Upon retirement, Ms. New requested the Department award her SMSC credit for the period July 1, 2004, to June 30, 2015. The Department denied her request and asserted that she had been an employee of the State Court System since July 1, 2004, and that Florida law did not expressly provide SMSC eligibility for her court counsel position.

Ms. New requested a formal hearing, and the Department referred the matter to the Division of Administrative Hearings. Following a formal hearing, the Administrative Law Judge issued a recommended order, finding that Ms. New had been an employee of Pinellas County from 2002 to 2004 and recommending that Ms. New's request for SMSC benefits be denied for the period of July 1, 2004, to June 30, 2015. The Department adopted the recommended order, finding that for FRS purposes Ms. New had been an employee of Pinellas County from 2002 to 2004 and an employee of the State Courts System from 2004 to 2015, making her eligible only for Regular Class member retirement benefits for 2004 to 2015. In other words, Ms. New was denied SMSC status because the entity handling her retirement benefits and issuing her paycheck had changed. Ms. New timely appealed to this court.

"Generally, an appellate court will uphold an agency decision if it is supported by competent, substantial evidence." Bridlewood Grp. Home v. Agency for Persons with Disabilities, 136 So.3d 652, 655 (Fla. 2d DCA 2013). Deference is given to an agency's interpretation of the statute it is charged with enforcing. Verizon Fla., Inc. v. Jacobs, 810 So.2d 906, 908 (Fla. 2002). But a court will depart from an agency's construction of the statute it is charged with enforcing when the construction is "clearly erroneous." Id. (quoting PW Ventures, Inc. v. Nichols, 533 So.2d 281, 283 (Fla. 1988) ).

The sole issue is whether the Department erred by denying Ms. New's request for FRS SMSC service credit for the period of July 1, 2004, through June 30, 2015, because her employer changed as a result of the transfer of functions between state and local county government. Resolution of this issue is controlled by the Florida statutes applicable to FRS beneficiaries.

Section 121.055(1)(h)(1), Florida Statutes (2002), provides that

participation in the Senior Management Service Class shall be compulsory for the State Courts Administrator and the Deputy State Courts Administrators, the Clerk of the Supreme Court, the Marshal of the Supreme Court, the Executive Director of the Justice Administrative Commission, the Capital Collateral Regional Counsels, the clerks of the district courts of appeal[ ], the marshals of the district courts of appeal[ ], and the trial court administrator and the Chief Deputy Court Administrator in each judicial circuit.

The court counsel position for the circuit courts is not expressly included in this category. However, the Department, in its discretion, can designate additional positions for inclusion in the SMSC when those positions are designated by a local agency. § 121.055(1)(b). And the Department did just that in 2003 when it granted the request from Pinellas County to include Ms. New in the SMSC. Additionally, section 121.055(2)(a) provides in pertinent part that once a public employee is designated into the SMSC,

[p]articipation in this class shall cease when the member terminates employment in an eligible position. Once a position is designated as eligible for inclusion in the [SMSC], that position shall not be removed from the class unless the duties and responsibilities of the position change substantially and therefore no longer meet the requirements provided in this section for participation in the class.

It is the Department's position that Ms. New terminated her employment from Pinellas County on June 30, 2004, when funding for her position transferred from Pinellas County to the State of Florida. The Department maintains that Ms. New started a new position as a State Court System employee on July 1, 2004, and that her eligibility for SMSC terminated pursuant to section 121.055(1)(h)(1) because it does not provide for SMSC status for her position as court counsel. Ms. New, however, argues that because her job functions and duties remained the same, the transfer of the funding for her position from Pinellas County to the State in 2004 did not operate as a termination of her employment and that the Department was prohibited by Florida law from reducing her retirement benefits. We agree.

Section 112.0515, Florida Statutes (2004), provides that it is

the policy of this state that in any consolidation or merger of governments or the transfer of functions between units of governments either at the state or local level or between state and local units, the rights of all public employees in any retirement or pension fund shall be fully protected. No consolidation or merger of governments or governmental services, either state or local, accomplished in this state shall diminish or impair the rights of any public employee in any retirement or pension fund or plan which existed at the date of such consolidation or merger and in which the employee was participating, nor shall such consolidation or merger result in any impairment or reduction in benefits or other pension rights accruing to such employee.

Pension statutes must "be liberally construed in favor of the intended recipients." Scott v. Williams, 107 So.3d 379, 384-85 (Fla. 2013) (quoting Bd. of Trustees of Town of Lake Park Firefighters' Pension Plan v. Town of Lake Park, 966 So.2d 448, 451 (Fla. 4th DCA 2007) ). Section 121.055(1)(h)(1) alone does not resolve this issue because it does not address the transfer of functions between the state and local governments or the change in the employer of a public employee enrolled in FRS and eligible for SMSC. And once Ms. New was designated into SMSC, her eligibility could not be impaired or reduced until she retired. See § 121.055(2)(a). Her designation into SMSC rendered section 121.055(1)(h)(1) inapplicable and triggered the protections of sections 112.0515 and 121.055(2)(a) because her duties and responsibilities did not change. Her employment position underwent a seamless transition, and her "termination" from Pinellas County appeared to be pro forma for administrative bookkeeping and did not act to terminate her eligibility. Section 112.0515 was enacted to protect the rights of those public employees who are deemed eligible for FRS retirement benefits. The transfer of functions from Pinellas County to the State for purposes of funding Ms. New's salary and retirement benefits cannot by itself impair or reduce her benefits or other pension rights accruing to her.

Accordingly, we reverse the Department's administrative order and remand with instructions for the Department to award SMSC credits to Ms. New for the time period of July 1, 2004, to June 30, 2015.

Reversed and remanded with instructions.

NORTHCUTT and BADALAMENTI, JJ., Concur.

      As further evidence of this, Ms. New points to the fact that the Department offered to move her unused leave accrued prior to the transfer into her State account.