author: Per Curiam.

text:
    Tremaine JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-933
    District Court of Appeal of Florida, First District.
    September 5, 2018 Rehearing Denied October 22, 2018
    Andy Thomas, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Tremaine Johnson appeals the trial court's order revoking his probation and sentencing him to ten years in prison. We affirm.

In 2007, Johnson pleaded no contest to two counts of armed robbery and one count of aggravated assault with a firearm. He was sentenced to three years' prison for the assault charge and five years' probation for the robbery charges. Under the terms of his probation, Johnson was required to report each month to his probation officer. He was prohibited from possessing firearms and from violating the law. And he was prohibited from changing his residence or place of employment or leaving the county without his probation officer's permission. Also included in Johnson's order of supervision was an "other special conditions" section, in which there was handwritten language stating: "after 2½ yrs [sic] and no violations probation may term[inate] early."

Johnson was released from prison and started his probation in 2009. Shortly thereafter he was authorized to transfer his probation to Georgia where his mother lived. He indicated on his probation paperwork that a friend's Georgia address would be his permanent residence. In January 2013, Johnson's Georgia probation officer tried to contact him but was unable to reach him at the phone numbers Johnson provided, at the address listed as his residence, or at his listed place of employment. The officer reported to Johnson's Florida probation officer that she could not find him. The Florida officer filed a Violation of Probation (VOP) affidavit alleging Johnson absconded, and an arrest warrant issued the next day.

In June 2013, Johnson was arrested in Michigan on federal firearm charges for which he served 39 months in prison. Later, on the day after the five-year probation period would have ended, the Florida probation officer filed an amended VOP affidavit alleging that (in addition to absconding) Johnson violated his probation by possessing a firearm, which was itself a violation and also constituted a separate violation of the requirement that Johnson live without committing additional crimes.

Johnson contends that we must reverse as to the absconding violation because of insufficient evidence. He argues that the State relied solely on hearsay evidence, which as a matter of law is insufficient. See Channell v. State , 200 So.3d 247, 248-49 (Fla. 1st DCA 2016). But this record includes sufficient non-hearsay evidence to support the court's findings. First, the Georgia and Florida officers both provided non-hearsay testimony regarding their unsuccessful attempts to contact Johnson by phone and in person. State v. Queior , 191 So.3d 388, 390-91 (Fla. 2016) ("A probation officer testifying at hearing, subject to cross-examination, to what he or she personally did and observed is classic non-hearsay testimony." (marks and citation omitted)). Second, the person Johnson reported he would be living with testified that Johnson would spend nights with his mother and his girlfriend. At one point, the witness said that Johnson "-you know, had a girlfriend, so he kind of, didn't come home." The same witness also testified that Johnson changed jobs several times while on probation and that he moved to Michigan in 2013 to be with his girlfriend. This testimony corroborates any hearsay testimony the probation officers offered about Johnson's absconding.

Moreover, Johnson himself testified that he was aware of the terms and conditions of his probation and knew that he was required to secure his probation officer's permission before changing his employment or residence. He also testified that he left his job at Walmart in 2011 and started a new job at Atlanta Beverage Company without informing anyone. These admissions are sufficient to support the court's finding that Johnson absconded. Cf. T.J.S. v. Miles , 96 So.3d 1104, 1106 (Fla. 2d DCA 2012) (holding that probationer absconded due to her "failure to advise ... her probation officer of her whereabouts or well-being or to otherwise contact them").

Last, Johnson contended that because of the handwritten note on his paperwork, he thought his probation had ended early. Thus, he argued, any absconding was not willful. See State v. Meeks , 789 So.2d 982, 987 (Fla. 2001) ("a violation must always be willful and substantial to produce a revocation" (emphasis omitted)). But the trial court was not obligated to accept his testimony as truthful. In short, there was sufficient evidence to support the trial court's conclusion that Johnson absconded. We therefore will not address Johnson's argument that because he did not abscond, the trial court lost jurisdiction because the supervision time was not tolled.

AFFIRMED .

Jay, Winsor, and M.K.Thomas, JJ., Concur.


source: Caselaw Access Project

author: Osterhaus, J.

license: Public Domain

text:
    Edward F. BOROWSKI, Jr., Appellant, v. Jeffrey E. FERRER, Appellee.
    No. 1D15-3358
    District Court of Appeal of Florida, First District.
    September 5, 2018 Rehearing Denied October 25, 2018
    R. Kyle Gavin, Liles Gavin, P.A., Jacksonville, for Appellant.
    Jeffrey E. Ferrer, pro se, Appellee.
   Osterhaus, J.

Edward F. Borowski, Jr. appeals an order denying his motion to amend the final summary judgment. The final judgment at once enjoined his next-door neighbor, Jeffrey E. Ferrer, from blocking access to his side-yard easement with a fence, but then authorized Mr. Ferrer to build a new fence along a different line that would also obstruct access to his easement. We reverse because the judgment authorizes Mr. Ferrer to rebuild the fence in a place that would obstruct access to the easement.

I.

Mr. Borowski filed suit in the Circuit Court of Duval County against his next-door neighbor, Mr. Ferrer, seeking the removal of a fence that interfered with an easement that provided a four-foot swath that allowed Mr. Borowski to access the side of his house. The Covenants and Restrictions provides Mr. Borowski with "a four (4) foot perpetual easement within the lot line of the adjoining lot ... for the purpose of construction and maintaining the dwelling and lawn between the dwelling and side lot line."

Prior to the fall of 2012, Mr. Ferrer had a fence between his property and Mr. Borowski's property, connecting to Mr. Borowski's residence. Mr. Borowski was able to access the side of his property through a gate in the fence. After a neighborly conflict arose, however, Mr. Ferrer refused to permit Mr. Borowski access through the gate. After unsuccessful attempts to resolve the issue through the homeowners' association, Mr. Borowski filed suit and sought injunctive relief.

When Mr. Borowski sought summary judgment on his claim, the court held a hearing and entered final summary judgment for Mr. Borowski. Well, sort of. The order at once required Mr. Ferrer to "remove the portion of his fence which encroaches upon property owned by his next-door neighbor," but went on to say that "[i]f Defendant elects to rebuild a fence to replace the removed one, he shall build it on his property lines ...." The order's approval of a new fence built along the property line renewed the prospect that Mr. Borowski's four-foot perpetual easement on Mr. Ferrer's lot would remain blocked by a fence. And so, Mr. Borowski filed a motion to rehear and amend the final summary judgment, requesting the fence be built "no less than four (4) feet within Defendant's adjoining property line." But the court denied Mr. Borowski's motion.

II.

One reason that this court will reverse and remand orders that are appealed is to correct internal inconsistencies. See, e.g. , Mitchell v. XO Commc'ns. , 966 So.2d 489, 490 (Fla. 1st DCA 2007) ("Because the ... final order is inconsistent in its findings of fact and conclusions of law, we REVERSE the final order and REMAND for additional proceedings."); City of W. Palm Beach Fire Dep't v. Norman , 711 So.2d 628, 630 (Fla. 1st DCA 1998) ("[T]he order is internally inconsistent. In one part of the order, the judge awarded temporary partial disability benefits from February 4, 1995, through March 1996 and in another part of the order, the judge awarded these benefits from February 4, 1995, through the present and continuing. This inconsistency must be corrected on remand."); S. Fla. Water Mgmt. Dist. v. Ciacci , 647 So.2d 203, 205 (Fla. 1st DCA 1994) ("[T]he order is internally inconsistent. Because of this inconsistency ... we reverse and remand for further clarification ...."). This rule applies equally to cases involving property disputes. See, e.g. , Anderson v. Oldham , 622 So.2d 544, 545 (Fla. 5th DCA 1993) (striking an order because the owner of the servient estate was not entitled to construct a privacy fence directly on an easement, but only on his own property immediately westerly thereof).

As with the fence built on an easement in Anderson , the order below gave Mr. Ferrer authorization to rebuild a fence "on" the property line, which would obstruct and interfere with Mr. Borowski's right of access to his four-foot easement on Mr. Ferrer's lot. By enjoining Mr. Ferrer from obstructing Mr. Borowski's access to his easement in one paragraph, but allowing Mr. Ferrer to build a new fence that would similarly obstruct the easement in a later paragraph, the court's order created an internal inconsistency, which must be corrected. If Mr. Ferrer constructs a fence between the parties' properties, it cannot be built on the property line, which would block access to the easement. Rather, the fence must preserve Mr. Borowski's four-foot easement on Mr. Ferrer's lot.

III.

For these reasons, we reverse and remand for further consideration consistent with this opinion.

REVERSED and REMANDED .

Winokur and M.K. Thomas, JJ., concur.


author: BADALAMENTI, Judge.

text:
    Joel CANCHOLA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5109
    District Court of Appeal of Florida, Second District.
    Opinion filed September 7, 2018
    Howard L. Dimmig, II, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cornelius C. Demps, Assistant Attorney General, Tampa, for Appellee.
   BADALAMENTI, Judge.

Joel Canchola appeals from the trial court's final order revoking his probation and imposing a six-month jail sentence. He argues that the trial court lacked subject matter jurisdiction to revoke his probation because the amended violation of probation (VOP) affidavit alleging that, among other technical violations, he had absconded from supervision was not filed until a week after the scheduled expiration of his probationary sentence. After de novo review, we affirm. Although filed one week after the expiration of the original probationary term, the amended VOP affidavit was timely because Canchola's probationary term was automatically tolled when he absconded from supervision and remained tolled for the many months that lapsed until he was once again placed under the probationary supervision of our state.

Canchola was placed on one year of probation after pleading guilty to possession of a controlled substance and resisting an officer without violence. That probationary term was set to expire on September 2, 2015. Throughout the probationary term, Canchola neglected to comply with various conditions of his probation. Canchola's probation officer met with him on July 2, 2015. During that meeting, the probation officer advised Canchola to report to the probation office between August 3 and August 7, 2015. Canchola failed to report as instructed. On August 18, 2015, the probation officer filed a VOP affidavit asserting three technical violations of the terms of his probation, including Canchola's failure to undergo drug and alcohol treatment and his failure to pay both supervision and court costs. The trial court thereafter issued a no-bond arrest warrant for these technical violations. In the interim, the probation officer made repeated, unsuccessful attempts to contact Canchola. This culminated with the probation officer's visit on August 26, 2015, to Canchola's last known home address. While there, Canchola's former roommate advised the probation officer that Canchola moved out on June 26, 2015, and that he was unaware of his current whereabouts.

Subsequent to that unsuccessful home visit, the probation officer, on September 9, 2015, filed an amended VOP affidavit. The amended VOP affidavit added a new charge that Canchola violated condition three of the terms of his probation, which required that he not change his residence or leave the county of his residence without first procuring the consent of his probation officer. The addendum violation report filed with the amended VOP affidavit alleged that "on or about 06/26/2015, [Canchola] did move from his last known place of residence" and "[d]ue to the offender absconding, the whereabouts of [Canchola] is [sic] currently unknown." The amended affidavit further noted: "Warrant for Arrest Previously Requested." This VOP case sat silent until Canchola's 2016 arrest pursuant to the outstanding VOP arrest warrant issued by the trial court on August 13, 2015.

Canchola thereafter filed a motion to dismiss violation of probation for lack of subject matter jurisdiction, relying on section 948.06(1)(f), Florida Statutes (2015), and Mobley v. State, 197 So.3d 572 (Fla. 4th DCA 2016). At the hearing on Canchola's motion to dismiss, Canchola argued that the filing of the August VOP affidavit did not toll his probationary term because it failed to comply with the tolling requirements set forth in section 948.06(1)(f). Absent tolling of his probationary term, Canchola argued, the trial court was without subject matter jurisdiction over the amended VOP affidavit because his probationary period had expired before the amended affidavit was filed. The State asserted that even if the August VOP affidavit did not toll the probationary period under section 948.06(1)(f), the probationary period was nevertheless tolled because the amended VOP affidavit added a charge that Canchola had absconded from supervision during his probationary period.

The trial court first acknowledged that "if we were riding under [s]ection 948.06, ... the statute requires under subsection (1)(f) certain activities that have to happen for the purposes of tolling the statute." The trial court continued: "But the absconsion tolling doesn't ride under section 948.06. It rides under the existing case law ... that was developed prior to [s]ection 948.06 being amended as it has been over the last few years ...." Thus, the trial court denied Canchola's motion to dismiss. It ruled that it retained subject matter jurisdiction over the amended VOP affidavit, even though it was filed a week after the expiration of the probationary term, because Canchola's probationary sentence was tolled under the common law once Canchola absconded prior to the expiration of the probationary term. Canchola ultimately admitted to the violations set forth in the amended VOP affidavit, and entered into a plea agreement wherein the court revoked his probation and sentenced him to six months' incarceration in county jail with credit for time served. He reserved his right to appeal the court's order denying his motion to dismiss.

On appeal, Canchola argues that the amended VOP affidavit was untimely because it was filed after his probationary term had expired, leaving the trial court without subject matter jurisdiction over the amended VOP affidavit. He contends that because the amended VOP affidavit undisputedly did not fall within any of the limited circumstances set forth in section 948.06(1)(f)'s tolling provision, the trial court erred by denying his motion to dismiss.

As an initial matter, a probationer absconds when he removes himself from "the controlling arm of the state" by changing his residence without consent and leaving his probation officer without knowledge of his current whereabouts. See Francois v. State, 695 So.2d 695, 697 (Fla. 1997). We review a trial court's determination of its subject matter jurisdiction de novo. Mobley, 197 So.3d at 574 (citing Sanchez v. Fernandez, 915 So.2d 192, 192 (Fla. 4th DCA 2005) ). A trial court retains jurisdiction over a defendant's probationary sentence. See § 948.01(1) ("Any state court having original jurisdiction of criminal actions may ... hear and determine the question of the probation of a defendant in a criminal case ...."). But it does not retain subject matter jurisdiction over a probationer beyond the expiration of the probationary term. See State ex rel. Ard v. Shelby, 97 So.2d 631, 632 (Fla. 1st DCA 1957) ("It is clear that upon expiration of the probationary period the court is divested of all jurisdiction over the person of the probationer unless in the meantime the processes of the court have been set in motion for revocation or modification of the probation ...."); see also Kolovrat v. State, 574 So.2d 294, 297 (Fla. 5th DCA 1991) ("[P]robation is not normally suspended or tolled retroactively unless the probationer absconds from supervision."). Thus, absent a statutory or common law basis to toll the probationary period, the trial court loses subject matter jurisdiction upon the expiration of the probationary sentence. See § 948.06(1)(f) (listing three circumstances where tolling is permitted under the statute); Williams v. State, 202 So.3d 917, 921 (Fla. 4th DCA 2016) (recognizing common law's independent basis to toll probationary period when a probationer absconds from supervision and holding that "the probationary period is tolled until the probationer is once more placed under probationary supervision").

Although a trial court imposes a term of probation with a predictable termination date, there are limited situations which extend the trial court's subject matter jurisdiction over a probationer beyond the expiration of the originally imposed probationary term. First, the legislature has set forth three situations where a probationary term may be tolled until the trial court enters a ruling on the violation. See § 948.06(1)(f). All three situations require the filing of a VOP affidavit. That VOP affidavit is followed by (1) the "issuance of a warrant under s.901.02," (2) "a warrantless arrest under [ section 948.06 ]," or (3) "a notice to appear under this section." See § 948.06(1)(f).

Next, our common law recognizes that a probationer's absconsion from supervision during his probationary term, apart from section 948.06(1)(f)'s tolling provision, automatically tolls his term. See Williams, 202 So.3d at 921 ; see also Badger v. State, 23 So.3d 813, 817 (Fla. 2d DCA 2009) (explaining the long existence in the case law of "authority for the proposition that probation is automatically tolled during a period when the probationer has absconded"); Williams v. State, 529 So.2d 366, 367 (Fla. 2d DCA 1988) (recognizing that a probationary period is tolled when a probationer absconds from supervision); Kimball v. State, 890 So.2d 495, 496 (Fla. 5th DCA 2004) (explaining that "when a probationer absconds from supervision, the probationary period is tolled until the probationer is returned to supervision" (citing Ware v. State, 474 So.2d 332, 334 (Fla. 1st DCA 1985) ) ); Ware, 474 So.2d at 333 (Fla. 1st DCA 1985) ("[W]henever a probationer absconds from supervision his probationary term is tolled.").

In Francois, our supreme court explained an important distinction between absconding from probation and other violations of probation in the milieu of tolling the probationary period. It explained that when a defendant violates the terms of his probation through an act other than absconding, "a probationer remains under supervisory restraint after an affidavit of violation is filed and an affidavit can be amended to include subsequent violation allegations." Francois, 695 So.2d at 697 (emphasis added). Stated differently, a probationer who violates a term of his probation but remains under the supervisory restraint of the state after a VOP affidavit is filed must continuously bear the associated restraints on his liberty, including the possibility of being charged with subsequent violations of conditions of his probation. Id. Contrastingly, one who absconds from his probationary supervision leaves those restraints all together and bears no risk of subsequent violation allegations unless he returns to the supervisory restraint of the state. See id. ("One who absconds from supervision is no longer under the controlling arm of the state."). It thus is logical that a probationary sentence is automatically tolled until such time an absconder again is returned to supervision and subject to those restraints on his liberty. As will be discussed, our court and sister courts of appeal have recognized the automatic tolling of a probationary term for a probationer who absconds during his probationary term.

In Williams, we addressed the automatic tolling of a probationary sentence when a probationer absconds from supervision. There, the probationer was originally charged with violation of probation by an affidavit dated July 8, 1985, well within the probationary term set to expire on July 8, 1986. 529 So.2d at 367. The probationer, however, absconded from supervision and did not report her whereabouts until after the probationary term had already expired. Id. Approximately one week after the probationer reported her whereabouts, the State filed an amended VOP affidavit, alleging the "unauthorized change of residence." Id. Notwithstanding the State's filing of the amended VOP affidavit after the probationer's probationary term had expired, our court reasoned that when a probationer absconds from supervision, "the probationary term is tolled until the probationer is once more placed under probationary supervision." Id. (citing Ware, 474 So.2d at 333 ).

Here, like Williams, the probation officer filed a VOP affidavit prior to the expiration of Canchola's probationary term. Also like Williams, the probation officer amended that VOP affidavit, charging that Canchola had made an unauthorized change of residence. Critically, also like Williams, the amended VOP affidavit charging that Canchola absconded was filed after the scheduled expiration of the original probationary term. That the amended VOP affidavit alleging that Canchola absconded during the probationary term was filed after that term was set to expire is of no consequence. This is because Canchola's probationary term automatically tolled from the moment he absconded until he was "once more placed under probationary supervision." Id.; cf. Kimball, 890 So.2d at 496 ("[W]hen a probationer absconds from supervision, the probationary period is tolled until the probationer is returned to supervision." (citing Ware, 474 So.2d at 334 ) ); see also Badger, 23 So.3d at 817 (explaining the long existence in the case law of "authority for the proposition that probation is automatically tolled during a period when the probationer has absconded" (emphasis added) ).

Thus, a trial court retains subject matter jurisdiction over a VOP affidavit alleging that the probationer absconded prior to the expiration of the original probationary term for which the trial court would have otherwise had subject matter jurisdiction. This is because the probationer's conduct of absconding from his supervision automatically tolled that probationary term until he was once more placed under probationary supervision. Williams, 529 So.2d at 367. We find our Williams decision both controlling and indistinguishable in any meaningful way to the facts here.

As for Canchola's reliance on Mobley, the Fourth District recently clarified that its Mobley decision did "not overrule the case law recognizing that when a probationer absconds from supervision, the probationary period is tolled until the probationer is once more placed under probationary supervision." Williams, 202 So.3d at 921. There, the Fourth District reasoned that unlike Mobley, the VOP affidavit in Williams alleged that the probationer absconded during his term of probation, which is an independent basis for tolling his probationary term. Id. It explained that its Mobley decision involved the applicability of the statutory tolling provision set forth in section 948.06(1)(f), which is distinct from the tolling of a probationary sentence under Florida's common law. Id. at 920. Its Mobley decision, the Fourth District explained, turned on the State's failure to satisfy the requirements for tolling set forth in section 948.06(1)(f) ; namely, it failed to issue the proper arrest warrant under the statute. Id. Without that statutory tolling mechanism, the Fourth District explained, the trial court in Mobley lacked jurisdiction over a VOP affidavit that did not allege that a probationer absconded. Id.

Turning to the facts before it, the Fourth District in Williams thus held that if a VOP affidavit ultimately charges that the probationer absconded during the probationary period, the trial court maintains jurisdiction over the probationer because the probationary period automatically tolls upon the probationer leaving "the controlling arm of the state" and remains tolled until the probationer "is once more placed under probationary supervision." Id. at 921. We agree with both the holding and reasoning set forth in the Fourth District's Williams opinion, including its refusal to apply Mobley to circumstances where, as here, a probationer is alleged to have violated the terms of his probation by absconding during the probationary period.

We reaffirm that a probationary term is automatically tolled when a probationer absconds from his supervision. The probationary period remains tolled until such time that the probationer again is under supervision by the arm of our state. See Williams, 529 So.2d at 367 ; see also Badger, 23 So.3d at 817 ; Williams, 202 So.3d at 921 ; Kimball, 890 So.2d at 496 ; Ware, 474 So.2d at 333. Here, the amended VOP affidavit ultimately culminating with an allegation that Canchola absconded during his probationary period was filed only one week after the expiration of Canchola's original probationary term. Accounting for the many months Canchola's probationary period remained tolled after he absconded from supervision, the amended VOP affidavit was timely filed.

We thus affirm the trial court's denial of Canchola's motion to dismiss for lack of subject matter jurisdiction. In so doing, we caution the State to act both diligently and in good faith in its filing of any VOP affidavit alleging that a probationer absconded prior to the expiration of the original probationary term.

Affirmed.

LaROSE, C.J., and BLACK, J., Concur.

      Although the amended violation of probation affidavit is dated August 26, 2015, it was not stamped as "FILED FOR RECORD" until September 9, 2015, a week after Canchola's term of probation was set to expire.

      We note that section 948.06(1)(f) has been amended since the 2015 version applicable here, but the three avenues to toll a probationary term have not changed. Ch. 2017-115, § 9, at 8, Laws of Fla. Instead, only the arrest warrant requirement has changed. That is, under the 2015 version of the statute, a warrant must have been issued under a probable cause standard set forth in section 901.02, whereas the 2018 version omits the reference to section 901.02. Compare § 948.06, Fla. Stat. (2015) (permitting the tolling of the probationary term "[u]pon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s. 901. 02" (emphasis added) ), with § 948.06(1)(f), Fla. Stat. (2018) (permitting tolling "[u]pon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant for such violation" (emphasis added) ). Because we decide that our case law permits tolling for VOP affidavits alleging absconsion, we need not address Canchola's argument relating to the application of the tolling provision in the 2015 statute.


author: SALARIO, Judge.

text:
    James Jay FORBES and Fay Annette Forbes, Appellants, v. PRIME GENERAL CONTRACTORS, INC., a Florida corporation, Appellee.
    Case No. 2D17-353
    District Court of Appeal of Florida, Second District.
    Opinion filed September 7, 2018
    P. Brandon Perkins and E. Carson Lange of Rogers Towers P.A., Fort Lauderdale, for Appellants.
    No appearance for Appellee.
   SALARIO, Judge.

This is an appeal from a final judgment on a claim for breach of contract. James and Fay Forbes sued Prime General Contractors, Inc. for breach after Prime walked off a home construction job. The Forbeses sought damages that included payments they made to Prime under the contract, payments they made for updated architectural plans, certain other expenses, and a loss of equity in their home. After a bench trial, the trial court found that Prime had materially breached its contract with the Forbeses but declined to award these three items of damage. We reverse the damage award in the final judgment and remand with instructions to award the Forbeses such damages as will restore them to the position they enjoyed right before they inked their contract with Prime. We affirm the judgment in all other respects.

The Forbeses and Prime signed a written contract under which Prime agreed to renovate the Forbeses' home in accord with plans drawn up by an architect. In exchange, the Forbeses agreed to pay Prime a total of $276,000 in five separate draws. Under the draw schedule, the Forbeses were to pay (a) 25% of the contract price upon signing, (b) 25% upon completion of demolition, (c) 25% upon completion of the "dry-in" stage of construction, (d) 15% after roofing and siding installation, and (e) the remaining 10% upon completion of the job. The contract provided that "any alteration or deviation from this agreement must be made in writing and signed by the Parties." Prime began the job as agreed, and the Forbeses paid the first two contract draws-totaling $138,000. They also paid an additional $6000 for updated architectural plans.

Under the contract, the Forbeses should not have had to pay anything more until the dry-in phase of the project was done. Unfortunately, things hit a snag before then. Prime said that the cost of the materials it needed to do the job had gone up. It told the Forbeses that the work would now cost at least $550,000-almost twice the original contract price-and demanded that the Forbeses immediately pay the third draw plus an additional $31,450 for work Prime had already done and for which the Forbeses had already paid.

Prime presented the Forbeses with a written change order making these adjustments. The Forbeses refused to sign it and told Prime that they were prepared to move forward at the contract price. Prime refused and walked off the job, leaving the Forbeses' home unfinished and uninhabitable.

Because they could not live in their home, the Forbeses began renting a house nearby so that they had somewhere to stay. In the meantime, they looked for another contractor to finish the work on their home-ultimately talking with five potential candidates to perform the service-but none was willing to handle the job. After five months of living in a rental with no luck getting the work on their house finished, the Forbeses bought a new house and moved into it. They were unable, however, to pay a mortgage on their new house and another mortgage on the home that Prime left uninhabitable. So they let the uninhabitable home go into foreclosure. At the time they contracted with Prime, the Forbeses had about $45,000 in equity in the house. That equity was lost in the foreclosure.

The Forbeses sued Prime for breach of contract, and the case went to a bench trial at which the evidence was consistent with the facts related above. The Forbeses argued that Prime materially breached the contract by demanding payments to which it was not entitled under the contract and thereafter walking off the job. Prime contended, among other things, that the Forbeses also failed to perform under the contract, to which the Forbeses answered that they were entitled to suspend performance due to Prime's material breach. The Forbeses requested the following items of damages: $138,000 in payments made pursuant to their contract with Prime, $6000 for updated architectural plans, $45,000 of lost equity in their home, $5600 in rent, and various other expenses incurred in reliance on their contract with Prime. It is clear from the damages the Forbeses requested that they were asking to be put in the position they would have occupied had they not contracted with Prime in the first place. Prime asserted and litigated at trial an affirmative defense that the Forbeses failed to mitigate their damages.

About a month after the bench trial wrapped, the trial court entered a final judgment. It found that Prime had materially breached the contract as the Forbeses argued. However, it awarded the Forbeses as damages only the $5600 in rent they paid while searching for a new contractor. The trial court explained that "[t]he purpose of contract damages is to put the injured party in as good a position as that in which full performance would have put him" and concluded that the Forbeses

failed to offer persuasive or credible evidence at trial of the difference between the market value of the home had it been completed, less such part of the contract price that has not been paid, and the value of the construction that has been furnished by [Prime] thus far.

The court also found, without elaboration, that the Forbeses "made a financial decision not to engage in reasonable mitigation efforts" with respect to their damages.

This is the Forbeses' timely appeal of the final judgment. They argue two points: (1) by looking to place them in the position they would have occupied had Prime fully performed instead of the position they would have occupied had they never contracted with Prime, the trial court used an incorrect method of calculating damages; and (2) the trial court's finding that the Forbeses failed to mitigate their damages is unsupported by the evidence. We review the first point de novo, see Tubby's Customs, Inc. v. Euler, 225 So.3d 405, 407 (Fla. 2d DCA 2017), and the second for competent substantial evidence, cf. RNK Family Ltd. P'ship v. Alexander-Mitchell Assocs., 890 So.2d 297, 299 (Fla. 2d DCA 2004). See also Craigside, LLC v. GDC View, LLC, 74 So.3d 1087, 1089 (Fla. 1st DCA 2011) ("While the parties are entitled to de novo review of the trial court's rulings with respect to the legal effect of the contract, we are bound by the trial court's findings of fact in a case, like the present one, where competent, substantial evidence supports the findings."). Both points have merit.

Method of calculating damages. In calculating damages, the trial court erred by failing to honor the Forbeses' choice to deem the contract totally breached and recover those damages that would restore them to the position they occupied immediately before contracting with Prime. When one party to a contract commits a material breach, the nonbreaching party has the option to treat the breach "as a breach of the entire contract-in other words, an entire or total breach." Hyman v. Cohen, 73 So.2d 393, 397 (Fla. 1954) (quoting 12 Am. Jur. Contracts § 389 ); see also 24 Richard A. Lord, Williston on Contracts § 64:27 (4th ed. 2018). From the perspective of the nonbreaching party, there are two main consequences of that decision: (1) the nonbreaching party may suspend his or her own performance of the contract, see Rector v. Larson's Marine, Inc., 479 So.2d 783, 785 (Fla. 2d DCA 1985), and (2) the nonbreaching party can elect one of two damage remedies in a suit for breach, see City of Miami Beach v. Carner, 579 So.2d 248, 251 (Fla. 3d DCA 1991).

When a party seeks damages for a total breach, "[h]e may treat the contract as void and seek the damages that will restore him to the position he was in immediately prior to entering the contract." Rector, 479 So.2d at 785 ; see also McCray v. Murray, 423 So.2d 559, 561 (Fla. 1st DCA 1982). Or, in the alternative, he may instead "affirm the contract, 'insist upon the benefit of his bargain, and seek the damages that would place him in the position he would have been in had the contract been completely performed.' " Tubby's Customs, 225 So.3d at 407 (quoting Citizen's Prop. Ins. Corp. v. Amat, 198 So.3d 730, 734 (Fla. 2d DCA 2016) ). In the case of a breached construction contract like Prime's contract with the Forbeses, the benefit-of-the-bargain remedy is "either the reasonable cost of completion, or the difference between the value the construction would have had if completed and the value of the construction that has been thus far performed." Rector, 479 So.2d at 785 (citing Grossman Holdings Ltd. v. Hourihan, 414 So.2d 1037 (Fla. 1982) (adopting section 346(1)(a) of the Restatement (First) of Contracts (Am. Law Inst. 1932), to cases involving breach of a construction contract) ).

Here, the final judgment on its face shows that the trial court believed that the Forbeses were entitled only to the benefit-of-the-bargain remedy. As reflected in the language from its final judgment quoted above, the trial court concluded that the Forbeses were entitled to be put in the position they would have occupied had Prime fully performed and that they had failed to present evidence to establish the key factors that go into that remedy in a construction contract case.

But the reason the Forbeses did not produce that evidence was because they did not seek benefit-of-the-bargain damages. They sought to be put in the position they would have occupied had they never contracted with Prime. It was clear at trial that the Forbeses regarded the breach as total; indeed, they were explicit that they were entitled to suspend their own performance under the contract. And the damages they asked the court to award-return of payments made under the contract and the equity in their home at the time of contracting-were of a type that regarded the contract as void and attempted to restore the Forbeses to their precontractual situation. Those damages were inconsistent with an affirmance of the contract and request for damages approximating full performance. Cf. Sec. & Inv. Corp. of the Palm Beaches v. Droege, 529 So.2d 799, 802 (Fla. 4th DCA 1988) ("If the two remedies are inconsistent or mutually exclusive, ... then the mere choice of one remedy and ... pursuit of one remedy to judgment ... operates as an election."); McCray, 423 So.2d at 561 (holding that a trial court did not err in failing to instruct a jury on benefit-of-the-bargain damages where the evidence supported damages to restore plaintiff to his original condition). In the final analysis, then, the remedy the Forbeses chose and pursued was not the remedy the trial court either considered or awarded.

Mitigation of damages. We agree with the Forbeses that the trial court's finding that they failed to mitigate damages was mistaken. The concept of mitigation is often used, as it appears to have been in this case, to refer to the doctrine of avoidable consequences. In contract cases, there is really no "duty to mitigate" because the claimant "is not compelled to undertake any ameliorative efforts"; rather, he is merely prevented from recovering damages he "could have reasonably avoided." Sys. Components Corp. v. Fla. Dep't of Transp., 14 So.3d 967, 982 (Fla. 2009) (quoting The Florida Bar, Florida Civil Practice Damages § 2.43, at 2-30 (6th ed. 2005) ); see also Penton Bus. Media Holdings, LLC v. Orange County, 236 So.3d 495, 496 (Fla. 5th DCA 2018). The word "reasonably" is important. See Fla. Std. Jury Instr. (Contract & Bus.) 504.9 (requiring a jury to consider which damages could have been avoided through the plaintiff's reasonable efforts). The doctrine of avoidable consequences does not allow a trial court to reduce damages "based on what 'could have been avoided' through Herculean efforts." Sys. Components, 14 So.3d at 982. It applies only where a claimant fails to undertake measures to avoid damages that are available to him without undue effort or expense. Id.

Here, there is no competent substantial evidence that the Forbeses could have taken any measure without undue effort or expense to avoid the damages they sought. When Prime walked off the job, the Forbeses were left with an uninhabitable home that no other contractor would finish. At that point, the money they paid for Prime's work and updated plans was sunk; to avoid that loss they would have had to have been able to finish the home, and there was no evidence that they could have done that with another contractor at the price at which Prime was contractually required to do it.

With respect to the lost equity, the Forbeses spent five months living in a rental property as they searched for someone to finish the renovations. After that proved futile, they used their remaining resources to buy a new home rather than continue to make rent payments indefinitely. On the evidence here, had the Forbeses not bought the new house and instead continued paying rent without end, they still would have found themselves unable to continue paying the mortgage on the home that Prime left uninhabitable. This record establishes no course of action available to the Forbeses without undue effort or expense to avoid their damages. Thus, there was no competent substantial evidence to support a damage reduction based on the doctrine of avoidable consequences here. See, e.g., Graybar Elec. Co. v. Stratton of Fla., Inc., 509 So.2d 1133, 1134 (Fla. 2d DCA 1987) (reversing a final judgment in which the trial court erroneously applied the doctrine of avoidable consequences despite "insufficient evidence to support the application of that doctrine").

In sum, the trial court's use of the wrong method for calculating damages together with its erroneous application of the doctrine of avoidable consequences denied the Forbeses the full amount of damages to which they were entitled. We reverse the damages award and remand this case to the trial court for entry of an amended final judgment awarding those damages it finds, after hearing any arguments the parties decide to make, are necessary to place the Forbeses in the position they occupied immediately before they contracted with Prime. In all other respects, the final judgment is affirmed.

Affirmed in part; reversed in part; remanded with instructions.

NORTHCUTT and ROTHSTEIN-YOUAKIM, JJ., Concur.

      The contract defines the "dry-in" stage as "demo, framing rough-in electric, plumbing and mechanical, roof sheeting and felt and exterior windows and doors if available."

      No one in this appeal has challenged the trial court's finding that Prime materially breached its contract with the Forbeses.


text:
    EMPLOYBRIDGE and Gallagher Bassett Services, Inc., Appellants, v. Viviana Llanes RODRIGUEZ, Appellee.
    No. 1D17-4424
    District Court of Appeal of Florida, First District.
    September 7, 2018 Rehearing Denied October 22, 2018
    Juliana L. Curtis and Barbi L. Feldman of Vecchio, Carrier, Feldman & Johannessen, P.A., Lakeland, for Appellants.
    Michael J. Winer of Law Office of Michael J. Winer, P.A., Tampa, for Appellee.
   Per Curiam.

The Employer and Carrier in this workers' compensation case appeal an order awarding temporary disability benefits after the Judge of Compensation Claims found that Claimant Viviana Llanes Rodriguez's refusal to accept suitable employment offered by her employer was justifiable under § 440.15(6), Florida Statutes. We reverse because the record does not support the conclusion that Claimant's refusal was justifiable.

REVERSED .

B.L. Thomas, C.J., and Osterhaus, J., concur with opinions; Bilbrey, J., dissents with opinion.

I concur in the result, but I would hold that under section 440.15(6), Florida Statutes, an injured employee cannot refuse suitable reemployment, unless the refusal has some "plausible nexus" to the workplace injury, or the employee comes forward with persuasive evidence that the refusal is necessary to protect the employee's health or safety. The overarching goal of the Worker's Compensation Act regarding injured workers is to ensure the "worker's return to gainful reemployment at a reasonable cost to the employer." § 440.015, Fla. Stat. (2016) ; Moore v. Servicemaster Commercial Servs., 19 So.3d 1147, 1151 (Fla. 1st DCA 2009) ("It is the intent of the Legislature that the Workers' Compensation Law be interpreted to facilitate the worker's return to gainful employment at a reasonable cost to the employer."); A. Duda & Sons, Inc. v. Kelley, 900 So.2d 664, 669 (Fla. 1st DCA 2005) ("The legislature clearly intends to strongly encourage injured workers, who are capable, to return to the workplace."). This legislative intent is strongly enforced by the forfeiture of temporary disability benefits, when the employee refuses gainful employment offered by the employer. "The method of encouragement chosen by the legislature was to deny all compensation when the claimant refuses suitable employment." Id. (emphasis in original).

Here, the Employer met its burden of persuasion that it had offered Claimant suitable modified-duty work under section 440.15(6), Florida Statutes, such that, once Claimant refused this suitable work, she was no longer eligible for temporary partial disability payments: "If an injured employee refuses employment suitable to the capacity thereof, offered to or procured therefor, such employee shall not be entitled to any compensation at any time during the continuance of such refusal unless at any time in the opinion of the judge of compensation claims such refusal is justifiable ." § 440.015(6), Fla. Stat. (emphasis added). The Employer suggests that this court should apply the rationale of our prior decision in ESIS/ACE American Insurance Company v. Kuhn in determining the proper authority of a judge of compensation claims to decide whether such a refusal is "justifiable." 104 So.3d 1111, 1113 (Fla. 1st DCA 2012). I agree.

In Kuhn , this court correctly construed the discretion of a judge of compensation claims to award an advance payment of compensation under section 440.20(12), Florida Statutes, holding that the legislative intent could not have been simply to allow a claimant to obtain the advance payment for a reason unrelated to a workplace injury:

We are dealing, however, with a statutory framework in Chapter 440 whose principal purpose is to address medical and related financial needs arising from workplace injuries. In context, the type of interest that is furthered by an advance under section 440.20(12)(c)(2) must at least have some plausible nexus to this purpose . A request for a $2000 advance, simply as an undifferentiated financial cushion with no relationship to the provision of medical or related care, does not have such a connection. Indeed, absent this nexus, awarding a $2000 advance could, in the extreme, become merely an automatic judicial act whenever such an advance is requested; we see no basis in the statutory framework for this result.

Id. at 1114-15 (emphasis added).

Here, there is an even more persuasive rationale than in Kuhn to require a "plausible nexus" to Claimant's work-related injury before allowing Claimant to refuse suitable employment, because of the statutory forfeiture of benefits to penalize an unjustified refusal. In cases interpreting section 440.15(6), Florida Statutes, such a requirement would properly limit the discretion of a judge of compensation claims, consistent with the statute's legislative intent to incentivize an injured employee's return to employment at a reasonable cost to the employer. Thus, I concur in the result but would hold that an employee must present persuasive evidence to demonstrate that a refusal of suitable employment has a plausible nexus to the workplace injury or is necessary to protect the employee's health or safety.

I vote to reverse the JCC's order because Claimant offered ordinary, manageable, and self-imposed commuting limitations rather than reasonable justifications for refusing the suitable work offered by her Employer.

I.

In 2013, Claimant and her husband became employed with the Employer in the Employer's Tampa office. But soon thereafter they were assigned to work at a client company in Largo. They then moved to Largo to be closer to work.

In 2016, Claimant tripped over a box and fell on her right knee. The accident required medical treatment and resulted in a compensable claim. The authorized doctors assigned work restrictions that prevented Claimant from performing her regular job duties. An Employer representative testified that its client companies, like the one in Largo, typically engage in industrial or manufacturing work and do not have light-duty work available. But for a short time, the Employer was able to provide clerical-type work for Claimant in Largo. After five days of work in Largo, the Employer offered Claimant a similar clerical position in its Tampa office. But she declined.

Claimant filed a petition for benefits seeking temporary partial disability (TPD) benefits. The Employer and Carrier responded with affirmative defenses including voluntary limitation of income and unjustifiable refusal of suitable employment pursuant to section 440.15(6). After a final hearing, the JCC awarded TPD benefits, justifying Claimant's refusal to accept the Tampa job by citing the difficult commute between Largo and Tampa. This appeal followed.

II.

The workers' compensation statute, section 440.15(6), Florida Statutes, generally doesn't permit an injured employee to refuse suitable employment offered by an employer and still receive compensation. § 440.15(6), Fla. Stat.; see also A. Duda & Sons, Inc. v. Kelley , 900 So.2d 664, 668 (Fla. 1st DCA 2005). But an employee can refuse suitable work and receive compensation if "in the opinion of the judge of compensation claims such refusal is justifiable." § 440.15(6), Fla. Stat. Because of the wide discretion given to JCCs in this statute, we will only reverse if the JCC's finding amounts to an abuse of discretion, or isn't supported by competent substantial evidence. Ullman v. City of Tampa Parks Dep't , 625 So.2d 868, 873 (Fla. 1st DCA 1993) (recognizing the appellate court's role "to guard against fanciful or arbitrary abuse of discretion in workers' compensation cases, ... by scrutinizing JCC findings under the light of the basic rule requiring competent substantial evidence in support of [its] findings"). See also Moore v. Servicemaster Comm. Servs. , 19 So.3d 1147, 1151 (Fla. 1st DCA 2009) (noting that "the reasonableness of the justifications provided by Claimant as the basis for her refusal [is an issue] of fact which will not be disturbed in the presence of competent substantial evidence supporting such findings").

In this case, there is no dispute that the Employer offered Claimant a suitable job in Tampa. Claimant is able to perform the light-duty work within the restrictions assigned from her knee injury. But the JCC decided that Claimant could refuse the work and receive workers' compensation benefits instead, because of difficulties associated with the 17-mile commute. The JCC credited the following hardships as justifying her refusal to work:

I find it is unreasonable to expect this particular claimant to go to work in the Tampa office of the employer with her language limitations, her driving limitations, a singular vehicle in the family mainly used by her husband during his odd work hours, no familiarity with public transportation, suggestion of dependence on other family members to drive from Tampa to Largo to pick up the claimant, take her back to Tampa, and then back to Largo at the end of the workday ....

I understand from these findings that Claimant would have to solve some logistical hurdles, or rely on public transportation in order to get to the job offered to her in Tampa. I also understand from the JCC's findings that Claimant did not investigate her public transportation options, even though there are bus stops near her home and work. The commuting "limitations" identified by the order describe rather ordinary and manageable commuting difficulties that cannot justify her decision to refuse a good job in favor of receiving public benefits, especially when her commuting options haven't been investigated. Under the Workers' Compensation Act, the refusal to work a suitable job must be "justifiable." § 440.15(6), Fla. Stat. The Workers' Compensation statute is bent on "strongly encourag[ing] injured workers, who are capable, to return to the workplace." A. Duda & Sons, Inc. , 900 So.2d at 669. And "[i]t is the intent of the Legislature that the Workers' Compensation Law be interpreted to facilitate the worker's return to gainful employment at a reasonable cost to the employer." Moore , 19 So.3d at 1150-51. It follows that an injured employee cannot simply identify ordinary commuting obstacles and self-imposed commuting limitations as the basis for refusing a suitable job, especially where conventional commuting options haven't been investigated.

Speaking only Spanish, for instance, is not a reasonable justification for Claimant's refusal to work a suitable job. Many Spanish-speaking workers in Florida can drive or ride to work every day. Indeed, Claimant herself has obtained a drivers' license and drives locally around her house. I don't see how Claimant's lack of English-language proficiency prevents her from commuting to work, or investigating the Tampa-area's public transportation options. The other limitations identified in the order also don't justify her refusal. That Claimant might have to work out sharing a car with her husband, rely on rides from family members, carpool with others, or investigate and use public transportation are unremarkable "limitations." Again, many workers must coordinate with their families to solve commuting-related inconveniences and obstacles, or use car-pooling, ride-sharing, or public transportation options. Offered a suitable job, Claimant cannot refuse it simply on the basis of ordinary, manageable, or self-imposed limitations.

The JCC's order also mentions the possibility of a physical, injury-related justification for refusing employment as follows:

[I]t is unreasonable to expect this particular claimant to go to work in the Tampa office of the employer with ... [her] unrefuted testimony that she has pain from her knee to her hip when sitting for long periods of time[.]

To the extent that the order bases Claimant's justifiable refusal decision on commute-related leg pain, however, competent substantial evidence does not support the finding. Claimant never asserted that pain prevented her from commuting to the job in Tampa. In fact, time-and-time again Claimant's position in her testimony, trial memorandum, and other argument was that her refusal arose not from a medical condition, but from her lack of transportation. She stated unequivocally that she could work the Tampa job if she had a ride. The only testimony in the record that can be read to support a leg-pain rationale for refusing to work came in response to the JCC's question: "When you drive around your house to the grocery store - small errands - how does your right knee feel?" Claimant answered: "I cannot do it for too, too long because it hurts all the way up here." That Claimant expressed a vague complaint of leg pain when she drives around doing errands in her car for "too, too long" (no medical testimony bolstered this complaint), is not support for the conclusion that she cannot commute to the suitable job that is available to her in Tampa.

Finally, I do not support my colleague's preference for deciding this case based upon a new, court-made rule that "an injured employee cannot refuse suitable reemployment, unless the refusal has some 'plausible nexus' to the workplace injury, or the employee comes forward with persuasive evidence that the refusal is necessary to protect the employee's health or safety." Rather, I think we should follow the statute. Section 440.15(6) only limits the JCC's consideration where an injured employee refuses suitable employment by requiring that such refusal be "justifiable." The statute doesn't say "medically justifiable," or some such thing. This means that JCCs may take account of non-injury-related factors tending to justify an employee's refusal to accept employment. It is easy to imagine job-offer scenarios in which a JCC might reasonably find justifiable refusal, even though the employee's refusal isn't related to the workplace injury, health, or safety. This could occur, for example, if the job requires a two hundred-mile commute; requires a single-parent employee with young kids to work 24-hour shifts; requires an offender-probationer employee to violate the terms of his or her probation; requires an employee to violate sincerely held religious or moral beliefs; or requires an employee to complete impossible tasks for non-injury-, health-, or safety-related reasons (e.g., requiring a non-reader to read legal documents, an employee without a license to drive a delivery truck, etc.). The statute doesn't forbid the JCC from considering factors like these in addition to those related to the workplace injury or the protection of health and safety.

And so, I think we needn't decide this case on the basis of a court-made rule that doesn't hew to the statute. Rather, I vote to reverse the JCC's order because Claimant offered ordinary, manageable, and self-imposed commuting limitations rather than reasonable justifications for refusing the suitable work offered by her Employer.

The Employer/Carrier (E/C) in this workers' compensation case appeal an order by the Judge of Compensation Claims (JCC) awarding temporary disability benefits after finding that Claimant's refusal of suitable employment was justifiable pursuant to section 440.15(6), Florida Statutes. Because the JCC's conclusions in his opinion are supported by record evidence, I would affirm the order. Since the majority substitutes its view of the facts in place of the broad discretion afforded the JCC by the Legislature, I respectfully dissent.

Factual Summary

The JCC found the following facts. In 2013, Claimant, a woman in her mid-fifties, emigrated with her husband from Cuba to Tampa. At the time the JCC entered the challenged order in October 2017, Claimant did not understand or speak English "in any significant degree." Claimant and her husband obtained employment with the Employer, an employee staffing company. Although hired in the Employer's Tampa office, in March 2014 they were assigned to work with a client company, Hit Productions, in Largo. A few weeks later, the couple moved to a residence in Largo five to six miles from the Hit Productions facility. Claimant testified that the reason for the move was to be closer to work and avoid a 35 to 40 mile roundtrip commute involving driving on the interstate and over a cross-bay bridge.

Claimant's job at Hit Productions involved operating a machine to print on items such as pens and key chains. On the date of accident, Claimant tripped over a box and fell on her right knee, resulting in a compensable claim and requiring medical treatment. The authorized doctors assigned work restrictions that prevented Claimant from returning to her regular job. An Employer representative testified that the Employer's client companies engage in light industrial or manufacturing work and typically do not have light-duty work available. The Employer was, however, able to provide clerical-type work for Claimant in its Largo office. But this job lasted just five days after which the Employer offered Claimant a similar position in its Tampa office. The Employer offered this position to Claimant several times, but she declined.

Claimant filed a petition for benefits seeking temporary partial disability (TPD) benefits. The E/C responded with affirmative defenses including voluntary limitation of income and unjustifiable refusal of suitable employment pursuant to section 440.15(6). The matter went to a final hearing at which an Employer representative testified that Claimant had recently contacted her seeking light-duty work in the Employer's Largo office and was told none was available, and also that Claimant declined any work in the Tampa office "because of transportation." The representative also testified that the Tampa job remained available.

After considering all of the evidence, the JCC found that Claimant and her husband had one car which the husband used to drive to Tampa to his job as a truck driver. The husband's job included both day and night shifts. The JCC accepted Claimant's testimony that if she drove her husband to Tampa when he worked the day shift she would need to drop him off by 4:00 a.m. and then wait at the Employer's Tampa office (where the offered employment was) for four hours until it opened. The JCC also accepted Claimant's testimony that due to her inexperience as a driver, Claimant's husband did not want her driving their car from Largo to Tampa during regular business hours and that Claimant was not familiar with the Interstate and other freeways. The JCC also noted that the roads Claimant would have to drive from her Largo home to Employer's Tampa office can be confusing. The JCC also noted Claimant's testimony that she drives short, local distances only and experiences pain in her knee and hip when sitting for a long period of time. The JCC concluded that, under the circumstances, Claimant "certainly could not have developed driving skills so as to drive from Largo to Tampa and back with interstate and high-speed travel and unfamiliar roads/highways."

On the issue of public transportation Claimant testified that she was aware of a bus stop outside the entrance to her mobile home park, but that she was not sure whether the bus would take her to Tampa. Claimant also testified that the bus schedule was in English, so she could not read it. The JCC also noted that there was no evidence that Claimant made any efforts to drive to Tampa or obtain alternative transportation. Nonetheless, the JCC ultimately found:

[I]t is unreasonable to expect this particular claimant to go to work in the Tampa office of the employer with her language limitations, her driving limitations, a singular vehicle in the family mainly used by her husband during his odd work hours, no familiarity with public transportation, suggestion of dependence on other family members to drive from Tampa to Largo to pick up the claimant, take her back to Tampa, and then back to Largo at the end of the workday, the claimant's unrefuted testimony that she has pain from her knee to her hip when sitting for long periods of time, and the claimant's willingness to work for the Largo office of the employer until light duty ... ran out.

As a result, the JCC concluded that Claimant's refusal of the Tampa job was justified and that she had "not voluntarily limited her income by refusing to do this job even though it may have been within her physical limitations medically" and awarded TPD benefits for the relevant period. This appeal by the E/C followed.

Analysis

Section 440.15(6), Florida Statutes, provides, in relevant part:

EMPLOYEE REFUSES EMPLOYMENT. - If an injured employee refuses employment suitable to the capacity thereof, offered to or procured therefor, such employee shall not be entitled to any compensation at any time during the continuance of such refusal unless at any time in the opinion of the judge of compensation claims such refusal is justifiable .

(emphasis added).

In construing a statute, courts must first look to its plain language. See Perez v. Rooms To Go, 997 So.2d 511, 512 (Fla. 1st DCA 2008). Here, the statute's plain language gives JCCs broad discretion in determining whether an employee's refusal of suitable employment is justifiable. In Ullman v. City of Tampa Parks Department , 625 So.2d 868, 873 (Fla. 1st DCA 1993) (en banc), this court stated that role of the court "must be to guard against fanciful or arbitrary abuse of discretion in workers' compensation cases, and we will continue to do so by scrutinizing JCC findings under the light of the basic rule requiring competent substantial evidence in support of such findings." The en banc court further stated in Ullman that the JCC's "findings must be sustained if permitted by any view of the evidence and its permissible inferences." Id.

As the majority notes, there is no dispute concerning the suitability of the offered employment with respect to Claimant's ability to perform the job, even with her assigned physical restrictions. Thus, the remaining question is whether the JCC's findings in support of his opinion that Claimant's refusal of the position was justifiable are supported by competent substantial evidence (CSE).

I respectfully submit that here the majority substitutes its view of the facts in place of the JCC in contravention of the authority granted the JCC under section 440.15(6). The statute's plain language refers to a JCC's "opinion" regarding the justifiability of a claimant's refusal of suitable employment which, as discussed, must be based on CSE. Here, the JCC's opinion as to these factors was based on Claimant's testimony, which the JCC could accept or reject in his role as trier of fact. The majority imposes on the JCC restrictions the statute simply does not include, is contrary to our role as set forth in Ullman , and is contrary to the JCC's position as trier of fact. See City of W. Palm Beach Fire Dep't v. Norman , 711 So.2d 628, 629 (Fla. 1st DCA 1998) (holding "the [JCC] determines credibility, resolves conflicts in the evidence, and may accept the testimony of one [witness] over that of several others.").

Consider, for instance, if the proposed substituted employment required a daily commute from Largo to Jacksonville. I have no doubt that most appellate judges would agree that it would be reasonable for the Claimant to decline that daily commute and for a JCC to find her refusal justifiable under section 440.15(6). Conversely, if the E/C had offered evidence of a company shuttle that would take Claimant to and from work after a short ride each day, I think any appellate judge would agree that CSE would not support a JCC finding that the refusal of substituted employment under those conditions was reasonable.

What is too far a commute such that refusal of the substituted employment is reasonable? I think it depends on a number of factors best left to the sound discretion of the fact finding JCC. In cases like this one that could go either way, I think appellate judges should defer to the JCC. If the JCC has too much discretion under section 440.15(6), I respectfully submit that it is the Legislature which should impose limits on the JCC's broad discretion, not an appellate court.

Conclusion

Because the JCC's findings in support of his opinion that Claimant's refusal of suitable employment are supported by record evidence, I would affirm the challenged order. Since the majority reverses, I respectfully dissent.

      The Employer also had a branch office in Largo that serviced the client from across the street.

      The Employer also had a branch office in Largo that serviced only Hit Productions and was located across the street from its facility.

      Although in one instance the JCC cited his personal experience with the route Claimant would have to navigate to the Tampa job, there was sufficient additional CSE to support the JCC's findings.

      Chief Judge Thomas supports the E/C's argument that this court should go further and adopt the "plausible nexus" standard similar to the one this court has developed in cases involving advances under section 440.20(12), Florida Statutes. I respectfully submit that we are correct not to do so. Adopting such a standard would require us to encroach on the Legislature's prerogative to provide, as it has for over forty years, for a JCC's broad discretion to consider all of the factors cited by a claimant for refusing suitable employment, regardless of whether there is a direct connection between the reason or reasons for the refusal and a claimant's employment or injury. If the Legislature wants to impose criteria that a JCC may consider when forming an opinion as to whether a claimant's refusal of employment is justifiable, it certainly can do so, but it is not for this court to rewrite the statute. "Work[ers'] compensation is entirely a creature of statute and must be governed by what the statutes provide, not by what deciding authorities feel the law should be." J.J. Murphy & Son, Inc., v. Gibbs , 137 So.2d 553, 562 (Fla. 1962).

      If we adopted the "plausible nexus" standard, presumably a claimant would have to commute to any suitable employment offered anywhere in the world since the unduly burdensome commute and associated expenses would have no plausible connection to the workplace injury.


author: PER CURIAM.

text:
    Facundo DELGADO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1284
    District Court of Appeal of Florida, Third District.
    Opinion filed September 12, 2018
    Facundo Delgado, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SCALES, LUCK, and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Fla. R. App. P. 9.141(b)(2)(D) (requiring reversal by this Court unless the record shows conclusively that the defendant is entitled to no relief); see also Troutman v. State, 985 So.2d 1167, 1168 (Fla. 3d DCA 2008) ("Because the record conclusively establishes that [the defendant] is not entitled to relief, we affirm the trial court's denial.").


text:
    Robert L. JACKSON, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D18-1170
    District Court of Appeal of Florida, Third District.
    Opinion filed September 12, 2018
    Robert L. Jackson, in proper person.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeffrey R. Geldens, Assistant Attorney General, Miami, for respondent.
    Before SALTER, EMAS and LOGUE, JJ.
   PER CURIAM.

We dismiss, as untimely, the petition for writ of habeas corpus alleging ineffective assistance of appellate counsel. See Fla. R. App. P. 9.141(d)(5) (providing: "A petition alleging ineffective assistance of appellate counsel on direct review shall not be filed more than 2 years after the judgment and sentence become final on direct review unless it alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel. In no case shall a petition alleging ineffective assistance of appellate counsel on direct review be filed more than 4 years after the judgment and sentence become final on direct review"); Forisso v. State, 968 So.2d 677 (Fla. 4th DCA 2007) (the pendency of collateral postconviction relief proceedings does not toll the time period within which to file a claim for ineffective assistance of appellate counsel).


text:
    Oscar RUA-TORBIZCO, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D17-2675
    District Court of Appeal of Florida, Third District.
    Opinion filed September 12, 2018
    Oscar Rua-Torbizco, in proper person.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, for respondent.
    Before FERNANDEZ, LUCK and LINDSEY, JJ.
    ON CONFESSION OF ERROR
   PER CURIAM.

Oscar Rua-Torbizco petitions this court under Florida Rule of Appellate Procedure 9.141(d) to vacate his convictions and sentences because his appellate counsel was ineffective. Based on the state's proper confession of error, we grant his petition in part.

On August 12, 2014, Rua-Torbizco was convicted by a jury of armed burglary, three counts of aggravated assault with a firearm, and fleeing and eluding a law enforcement officer. Pursuant to section 775.087(2) (the 10-20-Life statute), the jury also found that he actually possessed a firearm during the commission of the armed burglary and aggravated assaults. The trial court sentenced Rua-Torbizco to forty years in state prison with a ten year minimum mandatory for armed burglary; five years with a three year mandatory minimum for each of the aggravated assaults; and fifteen years for fleeing and eluding. Finding itself bound by our decision in Morgan v. State, 137 So.3d 1075 (Fla. 3d DCA 2014), decision quashed, 42 Fla. L. Weekly S680 (Fla. May 26, 2017), the trial court ran the sentences consecutively.

In Morgan, we held "that section 775.087(2)(d) unambiguously requires that any mandatory minimum term required by section 775.087(2) - whether the defendant fires a gun, or only carries or displays it - shall be imposed consecutively to any other term imposed for any other felony." Id. (quotation omitted). The Fourth District Court of Appeal in Williams v. State, 125 So.3d 879 (Fla. 4th DCA 2013) (en banc), decision quashed, 186 So.3d 989 (Fla. 2016), also held that "consecutive mandatory minimum sentences are required by section 775.087(2)(d)." 125 So.3d at 883. The Fourth District certified the following question of great public importance:

Does section 775.087(2)(d)'s statement that "The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense" require consecutive sentences when the sentences arise from one criminal episode?

Id. at 884. The Florida Supreme Court accepted jurisdiction to hear the case on July 16, 2013.

Rua-Torbizco appealed his convictions and sentences on October 29, 2014. His brief raised two issues: (a) the trial court erred in overruling an objection to the detective's testimony about the firearm; and (b) the trial court abused its discretion in denying the motion for mistrial based on a question by the state that commented on the defendant's right to remain silent. Rua-Torbizco did not appeal his consecutive sentences under Morgan. We affirmed, and our mandate issued on December 4, 2015.

On March 3, 2016, the Florida Supreme Court answered "no" to the Fourth District's question, and held as follows:

Generally, consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode and a firearm was merely possessed but not discharged. It follows, therefore, that a trial court must impose the mandatory minimum sentences concurrently under such circumstances.
If, however, multiple firearm offenses are committed contemporaneously, during which time multiple victims are shot at, then consecutive sentencing is permissible but not mandatory. In other words, a trial judge has discretion to order the mandatory minimum sentences to run consecutively, but may impose the sentences concurrently.

Williams, 186 So.3d at 993 (citations omitted).

Rua-Torbizco alleges in his petition that his appellate attorney was ineffective because he failed to argue the trial court erred in imposing mandatory consecutive sentences under the 10-20-Life statute. "The test for ineffective assistance of appellate counsel is whether: (i) the petitioner establishes that appellate counsel's performance was deficient; and (ii) that such deficient performance so prejudiced the petitioner as to undermine confidence in the result of the appeal." Marshall v. State, 240 So.3d 111, 116 (Fla. 3d DCA 2018). The state concedes that appellate counsel was deficient and prejudiced Rua-Torbizco by failing to raise the mandatory consecutive sentences on direct appeal. Had the issue been raised Rua-Torbizco's case would have been placed in the Morgan / Williams pipeline, and ultimately his sentence would have been reversed and remanded for a new sentencing hearing. See id. at 118 ("[H]ad Marshall been placed in the Montgomery pipeline when this Court affirmed his conviction and sentence for second degree murder on direct appeal, we find it extremely likely, if not virtually certain, that Marshall ultimately would have been granted the new trial that he now seeks in his instant petition." (footnote omitted) ).

Accordingly, we grant Rua-Torbizco's petition to the extent he claims his appellate counsel was ineffective in failing to raise the trial court's error in mandatorily sentencing him to consecutive sentences. We deny all the other claims in his petition. Rua-Torbizco's sentences are vacated, and we remand for him to be resentenced in light of Williams and Walton v. State, 208 So.3d 60 (Fla. 2016).

Petition granted in part and denied in part; sentences vacated; remanded for resentencing.

      Rua-Torbizco claimed that his appellate counsel was ineffective for failing to argue scoresheet errors on direct appeal. We deny this claim without prejudice to raise these scoresheet errors during his resentencing hearing.


author: EMAS, J.

text:
    Keith WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    Kenneth Williams, Appellant, v. The State of Florida, Appellee.
    No. 3D18-175 No. 3D18-176
    District Court of Appeal of Florida, Third District.
    Opinion filed September 12, 2018
    Keith Williams, in proper person; Kenneth Williams, in proper person.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   EMAS, J.

INTRODUCTION

In these consolidated appeals, Keith Williams and Kenneth Williams appeal from the trial court's order summarily denying each of their motions to vacate their judgment and sentence pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court erred in summarily denying the motions without an evidentiary hearing, we reverse and remand for that purpose.

PROCEEDINGS BELOW

Appellants were co-defendants in lower court case number 08-17481, and each was charged with two counts of attempted murder and one count of discharging a firearm from a vehicle. In 2010, each appellant entered a negotiated plea, resulting in a judgment and probationary sentence.

Based upon newly discovered evidence, the appellants both filed motions to vacate their judgments and sentences, citing to and attaching an affidavit executed in 2017 from a third co-defendant, Anthony Cox. In his affidavit, Cox admits that he was involved in the attempted murder. Cox avers, however, that neither Keith Williams nor Kenneth Williams was involved in or present at the crime. Instead, Cox avers, Dorian Jones (aka "Snoop") and Stephen Smith (aka "Vito") were the two individuals with Cox during the commission of the crimes in question. Cox further avers he did not come forward with this information sooner because he was afraid of retaliation from Jones and Smith. Each appellant asserts that, had he been aware of this newly-discovered evidence, he would not have pleaded guilty to the charges, but would have insisted on going to trial.

The State filed identical responses to each appellant's motion, contending that there was

evidence independent of the testimony of Anthony Cox to prove that Defendant was responsible for the crime charged .... Given the fact that there was additional evidence identifying the Defendant, it is the State's position that the alleged testimony by Anthony Cox would not produce an acquittal at trial.

However, the State's response contains no record attachments to support this argument. The trial court rendered an unelaborated order denying the motions for postconviction relief, and no portion of the files or records was attached to the order, save for appellants' motions and the State's response.

DISCUSSION

A defendant seeking to withdraw a plea based upon newly-discovered evidence must allege and establish:

First, the evidence must not have been known by the trial court, the party, or counsel at the time of the plea, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the defendant must demonstrate a reasonable probability that, but for the newly discovered evidence, the defendant would not have pleaded guilty and would have insisted on going to trial. "[I]n determining whether a reasonable probability exists that the defendant would have insisted on going to trial, a court should consider the totality of the circumstances surrounding the plea, including such factors as whether a particular defense was likely to succeed at trial, the colloquy between the defendant and the trial court at the time of the plea, and the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at a trial."

Long v. State, 183 So.3d 342, 346 (Fla. 2016) (citing Grosvenor v. State, 874 So.2d 1176, 1181-82 (Fla. 2004) ). See also Perez v. State, 240 So.3d 125 (Fla. 3d DCA 2018).

In reviewing a trial court's summary denial of a motion under rule 3.850, we are required to accept as true all well-pleaded allegations of a timely and legally sufficient motion to the extent those allegations are not conclusively refuted by the record. Franqui v. State, 59 So.3d 82 (Fla. 2011) ; Wilson v. State, 188 So.3d 82 (Fla. 3d DCA 2016). And "unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief." Fla. R. App. P. 9.141(b)(2)(D).

On appeal, the State contends (for the first time) that Anthony Cox's affidavit is "inherently incredible" and that, had they exercised due diligence, appellants would have ascertained the newly-discovered evidence more than two years before the motion was filed. We reject these arguments, as the State did not raise them below nor were they articulated as a basis for the trial court's summary denial of appellants' motions. Moreover, we cannot conclude that the affidavit is inherently incredible or that the limited record before us conclusively establishes that appellants, in the exercise of due diligence, could have ascertained the newly-discovered evidence earlier. The factual determinations of credibility and due diligence can be made by the trial court following an evidentiary hearing.

CONCLUSION

We reverse and remand for the trial court to hold an evidentiary hearing on each appellant's motion (which hearings may, if appropriate and in the trial court's discretion, be held jointly or separately), and for further proceedings consistent with this opinion.

      We note that the State's argument in this regard is erroneous, as the applicable standard in the instant case is not whether there is a reasonable probability of acquittal at trial, but rather whether, had appellants been aware of this newly-discovered evidence, there is a reasonable probability that appellants "would not have pleaded guilty and would have insisted on going to trial." Grosvenor v. State, 874 So.2d 1176, 1181-82 (Fla. 2004). See also Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

      Fla. R. Crim. P. 3.850(b)(1) provides:
      Time Limitations. A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final unless it alleges that
      (1) the facts on which the claim is predicated were unknown to the movant or the movant's attorney and could not have been ascertained by the exercise of due diligence, and the claim is made within 2 years of the time the new facts were or could have been discovered with the exercise of due diligence ...


author: FERNANDEZ, J.

text:
    LA LEY SPORTS COMPLEX AT the CITY OF HOMESTEAD, LLC, Appellant/Cross-Appellee, v. CITY OF HOMESTEAD, Florida, Appellee/Cross-Appellant.
    No. 3D16-705
    District Court of Appeal of Florida, Third District.
    Opinion filed September 12, 2018
    MSP Recovery Law Firm and Christine M. Lugo, John H. Ruiz, and Shayna K. Hudson, for appellant/cross-appellee.
    Weiss Serota Helfman Cole & Bierman, P.L., Joseph H. Serota, Laura K. Wendell, and Eric P. Hockman, for appellee/cross-appellant.
    Before EMAS, FERNANDEZ, and LUCK, JJ.
   FERNANDEZ, J.

Appellant/cross-appellee La Ley Sports Complex at the City of Homestead, LLC

("La Ley") appeals the trial court's March 14, 2016 final judgment entered after a non-jury trial. Appellee/cross-appellant the City of Homestead, Florida (the "City") appeals the same. For the reasons stated below, we affirm in part, reverse in part, and remand with instructions.

This cause arises from a July 14, 2011 lease and purchase agreement entered into between La Ley and the City. On December 15, 2012, La Ley filed an amended complaint pleading five causes of action: Count I fraud; Count II fraudulent misrepresentation and/or omission; Count III breach of contract; Count IV equitable lien; and Count V tortious interference with an advantageous business relationship. On May 28, 2014, the City filed a counterclaim alleging the breach of a commercial lease. In December of 2015, the case proceeded to a non-jury trial. On March 4, 2016, the trial court entered its findings of fact and conclusions of law. On March 14, 2016, the trial court entered its final judgment.

On appeal La Ley challenges the final judgment on its fraud claims (Counts I and II) and on the City's counterclaim. On cross-appeal, the City challenges the final judgment on the breach of contract claim (Count III).

In reviewing a final judgment rendered from a non-jury trial, the trial court's findings of fact are clothed with a presumption of correctness. Fito v. Attorney's Title Ins. Fund, Inc., 83 So.3d 755, 757-58 (Fla. 3d DCA 2011). We apply a clear error standard to the findings of fact, and a finding will not be disturbed unless it is totally unsupported by competent and substantial evidence, it is clearly against the weight of the evidence, or it was induced by an erroneous view of the law. Id.; Holland v. Gross, 89 So.2d 255, 258 (Fla. 1956). We review the trial court's conclusions of law and application of law to the facts de novo . Fito, 83 So.3d at 757-58.

With respect to the issues raised by La Ley on appeal (the final judgment on the fraud claims [Counts I and II] and the City's counterclaim), finding no clear error, we affirm without further discussion.

With respect to the City's cross-appeal, we are unable to review the trial court's final judgment against the City on the breach of contract claim (Count III) because the trial court's final judgment incorporates conflicting conclusions of law. See J. Sourini Painting, Inc. v. Johnson Paints, Inc., 809 So.2d 95 (Fla. 2d DCA 2002) ; MCMullan v. McMullan, 710 So.2d 1045 (Fla. 5th DCA 1998). Specifically, in the trial court's conclusions of law, the trial court first states, "La Ley failed to prove all the elements of its case as to ... breach of an alleged insurance contract by a preponderance of the evidence." The trial court later writes, "[a]s to Count III, La Ley did prove by a preponderance of the evidence the existence of an enforceable contract which entitled La Ley to be an additional insured under its policy of insurance," and the trial court finds in favor of La Ley. As a result of the conflicting conclusions of law, we remand with instructions to vacate the trial court's final judgment as it relates to Count III and to conduct a new trial on that count.

The final judgment is affirmed as to Count I, Count II, and the City's counterclaim. The final judgment is reversed as to Count III, and remanded with instructions.

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

      La Ley voluntarily dismissed Count IV, and the trial court granted summary judgment in the City's favor on Count V.


author: LaROSE, Chief Judge.

text:
    James William BRAINE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-807
    District Court of Appeal of Florida, Second District.
    Opinion filed September 14, 2018
    Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Chelsea S. Alper, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Chief Judge.

James William Braine pleaded guilty to one count of aggravated assault, a third-degree felony, and two misdemeanor counts. He now challenges the trial court's interpretation of section 775.08435(1), Florida Statutes (2016), in imposing sentences. Because the trial court correctly concluded that the statute circumscribed its discretion to withhold adjudication on the felony offense, we affirm.

Background

Mr. Braine asked the trial court to withhold adjudication for his third-degree felony offense. Section 775.08435(1)(c)(1) and (2) , limits the trial court's ability to withhold adjudication for a third-degree felony "if the defendant has a prior withhold[ ] of adjudication"; the state attorney must make a written request, or the trial court must provide written findings of mitigating factors. § 775.08435(1)(c)(1), (2), Fla. Stat. (2016). Critically, section 775.08435 further constrains the trial court's authority: "Notwithstanding any provision of this section, no adjudication of guilt shall be withheld for a third degree felony offense if the defendant has two or more prior withholdings of adjudication for a felony that did not arise from the same transaction as the current felony offense." § 775.08435(1).

The trial court found two mitigating factors that would reasonably justify withholding adjudication. First, Mr. Braine's capacity to conform his conduct to the requirements of the law was substantially impaired. Second, he required specialized mental health treatment. However, Mr. Braine previously received withholds for two prior third-degree felonies in a more than twenty-year-old case.

The State maintained that the trial court lacked authority to grant a third withhold under section 775.08435(1). The trial court agreed. It adjudicated Mr. Braine guilty on all three counts and sentenced him to probation.

Analysis

The State introduced sufficient evidence of Mr. Braine's two prior withholds. Thus, this is not a case where the State failed to prove that the defendant was ineligible for a withhold of adjudication. See, e.g., State v. Good, 30 So.3d 661, 661 (Fla. 4th DCA 2010) ("The State did not argue or present any evidence that the defendant had prior withholds of adjudication." (emphasis added) ); State v. Barfield, 995 So.2d 1138, 1140 (Fla. 5th DCA 2008) (affirming withhold of adjudication where "the State did not produce any evidence of a prior felony or a prior withholding"). As framed by Mr. Braine, the only issue on appeal is whether the trial court erred by determining that section 775.08435 removed its discretion to withhold adjudication when the two prior withholds arose from the same case. He tells us that this is an issue of first impression.

"Statutory interpretation raises an issue of law, and we review the trial court's ruling de novo." Wegner v. State, 928 So.2d 436, 438 (Fla. 2d DCA 2006) (citing Racetrac Petroleum v. Delco Oil, Inc., 721 So.2d 376, 377 (Fla. 5th DCA 1998) ). "The first place we look when construing a statute is to its plain language-if the meaning of the statute is clear and unambiguous, we look no further." State v. Hackley, 95 So.3d 92, 93 (Fla. 2012) (citing Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216, 1220 (Fla. 2010) ). "We resort to other rules of statutory construction only where the statute is ambiguous in the sense that it could be reasonably understood to mean two different things." Burgess v. State, 198 So.3d 1151, 1155 (Fla. 2d DCA 2016) (citing Fajardo v. State, 805 So.2d 961, 963-64 (Fla. 2d DCA 2001) ).

Section 775.08435(1) restricts the court's discretion to withhold adjudication. As relevant here, "[n]otwithstanding any provision of this section, no adjudication of guilt shall be withheld for a third degree felony offense if the defendant has two or more prior withholdings of adjudication for a felony that did not arise from the same transaction as the current felony offense." § 775.08435(1) (emphasis added).

Mr. Braine contends that "[t]he qualifying language 'from the same transaction as the current felony offense' indicates that the legislature intended for a withhold to be one ministerial function and one withhold when it involves felonies arising from the same transaction." Seemingly, Mr. Braine interprets the "same transaction" language as relating to the time of sentencing. Under his interpretation, all withholds granted in one sentencing proceeding would constitute a single withhold. This interpretation, however, ignores the plain meaning of the statute. The legislature created a "same transaction" exception for a current felony offense that arose from the same transaction as a prior felony offense. The only transactional relationship relevant under section 775.08435(1) is the relationship between the current felony offense and a prior felony offense, not, as Mr. Braine contends, the relationship between two prior offenses.

We found no case directly on point from this court. The Fourth District, however, weighed in on a case with similar facts. See State v. Jean, 114 So.3d 451 (Fla. 4th DCA 2013). In Jean, the trial court withheld adjudication for a third-degree felony, although the defendant had previously received two prior withholds. Id. at 452. The Fourth District reversed and remanded, holding that "[d]espite the court's findings, section 775.08435(1)(c) prohibits the trial court from withholding adjudication in this circumstance." Id. The Fourth District relied on the plain language of the statute and determined that the two prior withholds barred the defendant from receiving a third. Id. See also State v. Cook, 14 So.3d 1155, 1156 (Fla. 4th DCA 2009) ("[O]nce a defendant has been graced with a withhold of adjudication, section 775.08435(1)(c) prohibits a second withhold of adjudication if the felony offense did not 'arise from the same transaction' ....").

Mr. Braine next argues that his statutory construction avoids absurd results. See Atkinson v. State, 791 So.2d 537, 538-39 (Fla. 2d DCA 2001) ("Courts are constrained as a basic tenet of statutory interpretation to avoid a construction of a statute that would result in unreasonable, harsh, or absurd consequences."). He posits that the trial court's interpretation of the statute rewards an escalation in felonious conduct and punishes those demonstrating improved behavior. For example, a defendant who has previously received one withhold, is not barred by section 775.08435(1) from receiving two or more in a later case, thereby rewarding an escalation in criminal behavior. Conversely, section 775.08435(1) prohibits a defendant who previously received two withholds in the same case, from receiving one in a later case, punishing what appears to be a downward trend in criminal activity. Therefore, Mr. Braine urges that the statute should be interpreted as treating all withholds that result from the same transaction as one withhold.

We cannot agree with Mr. Braine. Section 775.08435(1) limits the availability of withholds for repeat felony offenders. This is not absurd. The absurdity doctrine is reserved for rare cases, where "applying the plain meaning would border on irrationality." Lewars v. State, 42 Fla. L. Weekly D1098, --- So.3d ----, 2017 WL 1969691 (Fla. 2d DCA May 12, 2017) (quoting Maddox v. State, 923 So.2d 442, 452 (Fla. 2006) (Cantero, J., dissenting) ). The State concedes that the "same transaction" exception may create inconsistency but nothing that amounts to an "absurdity." Any inconsistency is the result of the trial court's exercise of sentencing flexibility, as limited by the legislature.

Moreover, Mr. Braine's statutory interpretation would require us to add words to the statute. We are loathe to do so. "[T]his court is not permitted to add words to a statute that were not placed there by the legislature." Peace River/Manasota Reg'l Water Supply Auth. v. IMC Phosphates Co., 18 So.3d 1079, 1087 (Fla. 2d DCA 2009). The "same transaction" exception is limited to third-degree felony charges that arise from the same transaction as the current offense. The offense in this case is unrelated to the offenses that gave rise to Mr. Braine's two prior withholds. Therefore, Mr. Braine is ineligible for an additional withhold.

Conclusion

Because the trial court correctly applied section 775.08435(1), we affirm.

Affirmed.

KELLY and MORRIS, JJ., Concur.

      A 2017 amendment to section 775.08435 moved this provision location to section 775.08435(1)(d). Ch. 2017-156, § 4, Laws of Fla.