author: VILLANTI, Judge.

text:
    PROGRESSIVE EXPRESS INSURANCE COMPANY, Petitioner, v. FRY ENTERPRISES, INC., d/b/a Cornerstone Mobile Glass, as assignee of Mike O'Connor, Respondent.
    Case No. 2D17-4479
    District Court of Appeal of Florida, Second District.
    Opinion filed October 31, 2018 Rehearing Denied March 11, 2019
    Alexandra Valdes of Cole, Scott & Kissane, P.A., Miami, for Petitioner.
    Kristin A. Norse and Stuart C. Markman of Kynes, Markman & Felman, P.A., Tampa; David M. Caldevilla of de la Parte & Gilbert, P.A., Tampa; and Timothy A. Patrick of Patrick Law Group, P.A., Tampa, for Respondent.
   VILLANTI, Judge.

In this second-tier certiorari proceeding, Progressive Express Insurance Company seeks a writ to quash the denial of its petition for writ of certiorari to the circuit court, which had the effect of leaving in place a county court order that denied Progressive's motion to stay and compel appraisal in an action brought against it by Fry Enterprises, Inc., as the assignee of Progressive's insured. Because the circuit court denied Progressive's certiorari petition in violation of Progressive's procedural due process rights, we grant the petition on this sole basis, quash the circuit court's ruling, and remand for further proceedings.

The facts here are essentially undisputed. Progressive insured Mike O'Connor's vehicle, and the policy included comprehensive coverage for damage to the vehicle. The vehicle sustained damage to its windshield, and O'Connor contacted Fry Enterprises for replacement. Neither O'Connor nor Fry Enterprises contacted Progressive before the windshield was replaced. Instead, Fry Enterprises replaced the windshield and then simply mailed an invoice to Progressive.

When Progressive received the invoice, it paid what it considered to be the "reasonable" charge for a windshield replacement on O'Connor's vehicle, which was approximately $150 less than Fry Enterprises' invoice. It also mailed a letter to both O'Connor and Fry Enterprises stating that it was paying the reasonable cost and that if either O'Connor or Fry Enterprises disputed the amount, Progressive was invoking the appraisal clause in its policy. Progressive also identified the appraiser it wanted to use.

Rather than contacting Progressive or identifying an appraiser after receiving the letter and partial payment, Fry Enterprises immediately sued Progressive for breach of contract. After Progressive was served with the complaint, it first filed a motion to dismiss because Fry Enterprises had named the incorrect corporate defendant. Progressive subsequently filed a motion to stay discovery and compel appraisal. Fry Enterprises filed a response contending that Progressive did not properly invoke the appraisal clause before it partially paid the invoice, that its identified appraiser was not impartial as required by the policy, and that appraisal should be denied under the "prohibitive cost doctrine." Importantly, Fry Enterprises did not raise any other arguments or issues in opposition to Progressive's motion.

At the hearing on its motion to dismiss, Progressive acknowledged that, in other cases, plaintiffs had raised issues relating to whether the amount owed for a windshield replacement was a coverage issue not subject to appraisal and whether the appraisal provision of the policy violated the zero deductible statute, section 627.7288, Florida Statutes. But Fry Enterprises did not argue those issues at the hearing, and the county court's sole ruling was that Progressive's postpayment letter to O'Connor and Fry Enterprises did not clearly and timely invoke the appraisal clause under the policy. No other arguments were made to or ruled upon by the county court when it denied Progressive's motion to dismiss.

Progressive then timely filed a petition for certiorari with the circuit court. In its petition, Progressive argued that its appraisal clause was valid and that it had been properly and timely invoked. Progressive also argued that appraisal was proper because the dispute was solely over the amount of the loss and not over coverage. Progressive did not address any other issues in its petition because no other issues had actually been raised in or ruled upon by the county court.

The circuit court issued an order to show cause on December 12, 2016, requiring a response to the petition from Fry Enterprises within thirty days. On January 26, 2017-fifteen days late-Fry Enterprises filed its response. That response raised the same issues raised in the county court, i.e., that the dispute was not appraisable, that Progressive did not timely invoke the appraisal clause, and that appraisal should be barred by the prohibitive cost doctrine. On January 31, 2017, Progressive filed its timely reply, which addressed only these issues.

At that point, briefing should have been closed. However, on February 23, 2017, Fry Enterprises filed a second, unauthorized "response" to Progressive's petition. In that second, unauthorized response, Fry Enterprises argued for the first time that the limit of liability provision of Progressive's policy was ambiguous and therefore the dispute was over coverage rather than amount. Fry Enterprises contended that this ambiguity precluded enforcement of the appraisal provision. Progressive moved to strike this second, unauthorized response on March 2, 2017. The circuit court did not rule on this motion.

Then, on May 17, 2017, Fry Enterprises filed a notice of supplemental authority that attached a county court order in a different Progressive case that denied a motion to stay and compel appraisal on a wholly different basis, i.e., that the appraisal provision violated section 627.7288, the zero deductible statute, when applied to claims for windshield replacement. Progressive timely moved to strike this supplemental authority on May 18, 2017, on the ground that it was unrelated to any of the issues raised by the parties in this case.

Despite these two pending motions to strike-one seeking to strike Fry Enterprises' improper second response and the other seeking to strike the irrelevant supplemental authority-the circuit court denied Progressive's petition without explanation. Progressive raised the issue of its pending motions to strike in a motion for rehearing; however, the circuit court denied that motion, stating only that counsel for Progressive was "well-versed in the issues and is or should be aware of the reasons for the Court's decision." This second-tier certiorari petition followed.

As an initial matter, this court's scope of review on second-tier certiorari is quite limited. When certiorari is invoked to review a decision of the circuit court sitting in its appellate capacity, "[t]he inquiry is limited to whether the circuit court afforded procedural due process and whether the circuit court applied the correct law." Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla. 1995). As to the procedural due process inquiry, "[p]rocedural due process requires both fair notice and a real opportunity to be heard ... 'at a meaningful time and in a meaningful manner.' " Keys Citizens for Responsible Gov't, Inc. v. Fla. Keys Aqueduct Auth., 795 So.2d 940, 948 (Fla. 2001) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ). "In other words, '[t]o qualify under due process standards, the opportunity to be heard must be meaningful, full and fair, and not merely colorable or illusive.' " Dep't of Highway Safety & Motor Vehicles v. Hofer, 5 So.3d 766, 771 (Fla. 2d DCA 2009) (alteration in original) (quoting Rucker v. City of Ocala, 684 So.2d 836, 841 (Fla. 1st DCA 1996) ). Thus, depending on the nature of the pending appellate motions, a circuit court's failure to rule on those motions before addressing the merits of the appeal may constitute a violation of procedural due process if the failure to rule means that a litigant was deprived of a full and fair opportunity to be heard.

For example, in Kirrie v. Indian River County Code Enforcement Board, 104 So.3d 1177, 1178 (Fla. 4th DCA 2012), the Kirries filed a brief in the circuit court raising substantive issues relating to the county court's judgment. In its answer brief, the Board raised a preservation issue that the Kirries had not anticipated. Id. The Kirries filed a motion to supplement their appendix with additional materials that would address this preservation issue; however, the circuit court affirmed the county court's ruling without addressing the motion to supplement. Id. at 1178-79. On second-tier certiorari, the Fourth District quashed the circuit court's ruling, noting that the court's failure to address the pending motion to supplement deprived the Kirries of their procedural due process right to be heard in a meaningful manner. Id. at 1179 ; see also Cook v. City of Winter Haven Police Dep't, 837 So.2d 492 (Fla. 2d DCA 2003) (quashing the dismissal of the Cooks' appeal entered while their motion for leave to amend their appendix was pending because the circuit court's failure to rule on that motion before deciding the case violated their due process rights); DSA Marine Sales & Serv., Inc. v. County of Manatee, 661 So.2d 907, 909 (Fla. 2d DCA 1995) (granting second-tier certiorari because "the circuit court's summary denial of the petition without allowing DSA a reasonable time to assemble a complete record deprived DSA of procedural due process"). As these cases demonstrate, a circuit court's failure to rule on a party's pending motion directed to the briefing and record before the court prior to the court ruling on the merits of a petition constitutes a denial of procedural due process.

Like the petitioners in Kirrie, Progressive in this case raised arguments in its petition for writ of certiorari relating solely to the issues that had been addressed before and by the county court. Fry Enterprises initially filed a response that addressed only those issues, and Progressive filed a pertinent reply. However, Fry Enterprises then filed a second, unauthorized response that raised additional issues, and it filed a notice of supplemental authority that raised yet more issues. Progressive moved to strike the second, unauthorized response brief or, in the alternative, for leave to file a reply to the unauthorized response. Progressive also moved to strike the irrelevant supplemental authority. But the circuit court denied the certiorari petition without ruling on either of Progressive's motions. Because the circuit court did not explain the basis for its ruling, there is no way to know whether the circuit court based its decision on issues that were improperly raised for the first time in Fry Enterprises' second, unauthorized response or on supplemental authority that was irrelevant to the case. Therefore, on these facts, the circuit court's ruling necessarily denied Progressive procedural due process.

In its brief, Progressive seems to invite this court to address the merits of its petition for the first time, contending that if the circuit court had applied the correct law, it would have been required to find that the county court's ruling was in error. However, this court's role on second-tier certiorari review is limited to quashing the order on review and remanding for the circuit court to apply the correct law. See, e.g., Broward County v. G.B.V. Int'l, Ltd., 787 So.2d 838, 844 (Fla. 2001) (noting that the district court's role on second-tier certiorari is limited to a review of the circuit court's decision rather than a de novo review of the underlying county court or agency decision and holding that "[t]he appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration nor to direct the [lower tribunal] to enter any particular order or judgment" (quoting Tamiami Trail Tours v. R.R. Comm'n, 128 Fla. 25, 174 So. 451, 454 (1937) ) ). Therefore, this court has no authority to reach the merits of the underlying dispute between Progressive and Fry Enterprises.

Finally, Fry Enterprises argues that this court does not have second-tier certiorari jurisdiction to entertain Progressive's petition, but this argument is incorrect. This court has second-tier certiorari jurisdiction to review decisions of the circuit court sitting in its appellate capacity. Therefore, this argument does not provide a basis for denial of certiorari here.

In sum, we grant Progressive's petition for writ of certiorari, quash the order of the circuit court, and remand for the circuit court to rule on Progressive's motion to strike Fry Enterprises' second, unauthorized response and its motion to strike Fry Enterprises' supplemental authority. Once the circuit court rules on those motions, it must then consider the merits of Progressive's petition based on the issues properly before it.

Certiorari granted, decision quashed, and case remanded with instructions.

SILBERMAN and MORRIS, JJ., Concur.

      The additional response and supplemental authority, if allowed, would effectively permit Fry Enterprises to amend its pleadings to raise new and different issues without Fry Enterprises ever having filed a motion for leave to amend and without the county court having ruled on such a motion. Moreover, because the new and different issues were never presented to the county court, the circuit court would be ruling on those issues in the first instance, which is an improper function for a reviewing court.


source: Caselaw Access Project

author: MORRIS, Judge.

license: Public Domain

text:
    PROGRESSIVE AMERICAN INSURANCE COMPANY; Progressive Express Insurance Company; Progressive Select Insurance Company ; and Progressive Advanced Insurance Company, Petitioners, v. SHL ENTERPRISES, LLC, a/a/o Shazam Auto Glass, LLC, a/a/o Stacey Salazar; SHL Enterprises, LLC, a/a/o Shazam Auto Glass, LLC, a/a/o Cleave Scoggins; Glassmetics, LLC, a/a/o Megan Wayland; Glassmetics, LLC, a/a/o James Williams; Glassmetics, LLC, a/a/o Steven Dery; Lloyd's of Shelton Auto Glass, LLC, a/a/o Sharon Dworsky; Glassmetics, LLC, a/a/o Brian Mona; SHL Enterprises, LLC, a/a/o Shazam Auto Glass, LLC, a/a/o Maryann Mansur; and SHL Enterprises, LLC, a/a/o Shazam Auto Glass, LLC, a/a/o Michelle Sims, Respondents.
    Case No. 2D17-4074
    District Court of Appeal of Florida, Second District.
    Opinion filed October 31, 2018 Rehearing Denied March 11, 2019
    Alexandra Valdes of Cole, Scott & Kissane, P.A., Miami, for Petitioner.
    Kristin A. Norse and Stuart C. Markman of Kynes, Markman & Felman, P.A., Tampa; David M. Caldevilla of de la Parte & Gilbert, P.A., Tampa; John C. Murrow of Law Office of John C. Murrow, P.A., Tampa; Anthony T. Prieto of Morgan & Morgan, P.A., Tampa; and Martin Macyszyn of Lucas Magazine, PLLC, New Port Richey, for Respondents.
   MORRIS, Judge.

The petitioners, Progressive American Insurance Company, Progressive Express Insurance Company, Progressive Select Insurance Company, and Progressive Advanced Insurance Company (Progressive), seek a second-tier writ of certiorari to quash the circuit court's order that denied Progressive's petition for writ of certiorari below. Because we conclude that the circuit court departed from the essential requirements of the law by failing to analyze and interpret section 627.7288, Florida Statutes (2016), and because that error has resulted in a manifest injustice, we grant Progressive's petition and quash the order of the circuit court.

BACKGROUND

Below, Progressive insureds filed nine individual first-party claims under their insurance policies seeking payment for windshield repairs. The insureds assigned their rights under their policies to the respective windshield replacement companies. These windshield replacement companies are the respondents before us: SHL Enterprises, LLC, a/a/o Shazam Auto Glass, LLC; Glassmetics, LLC; and Lloyd's of Shelton Auto Glass, LLC (windshield replacement companies). The windshield replacement companies submitted invoices to Progressive, and while Progressive initially issued payments to the windshield replacement companies, the payments did not cover the full amount of the replacements. The windshield replacement companies then filed breach of contract actions against Progressive in county court, arguing that the insurance policies at issue included Collision and Comprehensive Coverage that provided coverage for "sudden, direct, and accidental loss to a windshield on a covered vehicle that is not caused by a collision, without applying a deductible." However, the policies also included limitations on the coverage provided. Specifically, the policies indicated that liability was limited to "the amount necessary to repair the damaged property to its pre-loss physical condition reduced by the applicable deductible." Another limiting provision provided in relevant part:

Payments for loss to a covered auto ... are subject to the following provisions:
....
In determining the amount necessary to repair damaged property to its pre-loss physical condition, the amount to be paid by us:
Will not exceed the prevailing competitive labor rates charged in the area where the property is to be repaired and the cost of repair or replacement parts and equipment as reasonably determined by us.

The policies also included an appraisal provision that applied when disputes arose concerning the costs of repair:

If we cannot agree with you on an amount of a loss, then we or you may demand an appraisal of the loss. Within thirty (30) days of any demand for an appraisal[,] each party shall appoint a competent and impartial appraiser and shall notify the other party of the appraiser's identity. The appraisers will determine the amount of loss.

Additionally, the appraisal provisions provided that if the appraisers could not agree on the amount of a loss, the issue would be submitted to a qualified and impartial umpire chosen by the appraisers. Finally, the appraisal provisions indicated that the amount of loss agreed to by the appraisers, or by one appraiser and the umpire, would be binding pursuant to the terms of the insurance policies.

After the windshield replacement companies filed suit, Progressive moved to compel appraisal and to stay discovery in each case. The windshield replacement companies then filed responses in opposition, arguing that the appraisal provisions in the policies were contrary to section 627.7288, which provides in relevant part that "[t]he deductible provisions of any policy of motor vehicle insurance ... providing comprehensive coverage or combined additional coverage shall not be applicable to damage to the windshield of any motor vehicle covered under such policy." The windshield replacement companies argued that the enforcement of the appraisal provision in the context of a windshield claim would require the insured or, as in these cases, the insured's assignee to share in the cost of appraisal which would be the equivalent of applying a deductible in contravention of section 627.7288.

Progressive filed a reply, arguing that the appraisal provisions did not violate section 627.7288 because the appraisal costs were not the equivalent of a deductible. Progressive explained that such costs arose, if at all, after Progressive made a payment under the policy and a dispute arose as to the amount whereas a deductible is a portion of the loss that each insured must pay before the insurer becomes liable for payment. Progressive also argued that the appraisal provisions had been freely contracted for and that the statute was not intended to be applied for the benefit of windshield replacement companies.

The county court conducted a hearing and entered an order concluding that the appraisal provisions were unenforceable because they required the insureds or their assignees to bear their own appraiser's costs which the county court determined was the equivalent of a deductible imposed in violation of section 627.7288.

Thereafter, Progressive filed petitions for writs of certiorari with the circuit court in each case. The circuit court determined that the issues and orders to be reviewed in each of the cases were substantively identical and sua sponte consolidated the cases. Progressive argued in the circuit court below that the county court's orders departed from the essential requirements of law because equating the costs of appraisal with a deductible conflicted with the plain meaning of the term "deductible" and because section 627.7288 was not intended to apply for the benefit of windshield replacement companies. Progressive also argued that by refusing to enforce the appraisal provisions, the county court impermissibly rewrote the subject insurance policies.

The circuit court denied Progressive's petitions, citing its prior ruling in Progressive Select Insurance Co. v. Lloyd's of Shelton Auto Glass, LLC, a/a/o Jedidiah Thomas, Case No. 17-CA-5640 (Fla. 13th Jud. Cir. July 28, 2017). In that opinion, the circuit court noted that the county court's decision was based on its interpretation of section 627.7288. However, rather than conducting its own analysis of section 627.7288 to determine whether the county court departed from the essential requirements of the law, the circuit court explained that Progressive had failed to provide any "judicial authority from any district court of appeal determining whether" enforcement of appraisal provisions such as the provisions in the subject policies constituted a de facto violation of section 627.7288. As a result, the circuit court in Lloyd's of Shelton concluded that the county court's order did not depart from a clearly established principle of law. Accordingly, the petitions in the cases under review in this proceeding were denied on the same basis.

Progressive filed a motion for rehearing, arguing that the circuit court too narrowly interpreted what constitutes "clearly established law" and that the fact that Progressive had not cited to any appellate cases ruling on the issue did not mean that the county court's order did not depart from a clearly established principle of law. The circuit court denied the motion for rehearing, and this second-tier certiorari proceeding follows.

ANALYSIS

In this second-tier certiorari proceeding, we are limited to determining whether the circuit court, sitting in its appellate capacity, afforded procedural due process and applied the correct law. Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla. 2000) ; see also Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla. 2010) (equating analysis of whether circuit court applied the correct law to whether it departed from the essential requirements of law). Certiorari may only be granted "when there has been a violation of [a] clearly established principle of law resulting in a miscarriage of justice." Ivey, 774 So.2d at 682 (alteration in original) (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 528 (Fla. 1995) ).

" '[C]learly established law' can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law." Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla. 2003) ; see also State Farm Mut. Auto. Ins. Co. v. Edge Family Chiropractic, P.A., 41 So.3d 293, 295 (Fla. 1st DCA 2010). "Thus, in addition to case law dealing with the same issue of law, an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certiorari review." Kaklamanos, 843 So.2d at 890.

The circuit court departed from a clearly established principle of law when it failed to conduct an analysis of and interpret section 627.7288, instead apparently concluding that without a citation to appellate case law that addresses the subject of the county court's ruling, Progressive was unable to establish that the county court departed from the essential requirements of the law. By improperly restricting the scope of its own certiorari review, the circuit court did not engage in a meaningful analysis of the county court's order and thus could not have concluded that there was no departure from the essential requirements of the law.

The circuit court's failure to adhere to clearly established principles of law (i.e., by analyzing and interpreting section 627.7288 ) results in a manifest injustice here because the county court erroneously construed the appraisal cost requirement as a deductible that violated section 627.7288. Section 627.7288 contains no express prohibition against requiring an insured to pay his or her own appraisal costs where there is a dispute over windshield repair/replacement costs. Rather, section 627.7288 only prohibits requiring an insured to pay his or her deductible for a windshield damage claim.

"Deductible" is defined as "the portion of the loss to be borne by the insured before the insurer becomes liable for payment." Deductible , Black's Law Dictionary (10th ed. 2014) (emphasis added). Thus, if the insurance company accepts liability for a non-windshield-damage claim, it then forwards payment to the insured after deducting the amount of the insured's deductible. But where an insured makes a windshield-damage claim, section 627.7288 clearly states that deductible provisions in insurance policies do not apply. In that scenario, if the insurance company accepts liability, it must forward payment for the windshield damages to the insured without deducting the amount of the insured's deductible. But the fact that the insured or its assignee ultimately challenges the amount of the payment and invokes the appraisal provision, thus necessitating the payment of a fee for an appraisal, does not convert the appraisal fee into a deductible applied in violation of section 627.7288. Appraisal fees are not imposed during the adjustment of every insurance claim. Rather, appraisal fees only become relevant after an insurer has accepted liability and made a payment and after a dispute has arisen about the amount of the payment. Thus the appraisal fee is not a portion of the loss that the insured must pay-which is the classic definition of a "deductible"-but it is instead a cost of doing business, i.e., a fee paid to a neutral third party who is hired to help resolve a dispute about the amount of the total loss. The insured still receives the benefit of not being required to pay his or her deductible, and no further financial obligation is incurred by the insured or the insured's assignee unless he or she voluntarily chooses to dispute the amount of payment made by the insurer. We note that the insurers in these cases also must pay this cost of doing business whenever an insured or the insured's assignee invokes the appraisal provision.

If appraisal fees were construed to be a form of a deductible and thus inapplicable to windshield damage claims, an insured or the insured's assignee could simply dispute any payout from an insurance company relating to such a claim and thereby shift the entire cost of appraisal-something which the insured or the insured's assignee can unilaterally demand under the policies-to the insurer. No such interpretation is supported by the plain language of section 627.7288, and thus there is no reason to resort to rules of statutory construction to reach a different result. See Hardee County v. FINR II, Inc., 221 So.3d 1162, 1165 (Fla. 2017) (explaining that when statutory language is clear and unambiguous, statutory construction is unnecessary). If the legislature intends for insurers to solely bear the costs of appraisal in windshield damage claims, it knows how to express that intention. But the statute as currently written only forbids the imposition of a deductible as applied to a windshield damage claim. It does not forbid a requirement for each party to bear its own appraisal costs in an insurance payment dispute. Thus where the contracting parties have freely contracted for such a requirement, such as in this case, they or their assignees may not rely on section 627.7288 to avoid their responsibility to pay such costs.

Because we conclude that the circuit court departed from the essential requirements of law by failing to properly analyze and interpret section 627.7288 and because that error results in a manifest injustice for the reasons we explained, we grant Progressive's second-tier certiorari petition and hereby quash the circuit court's order denying the petitions filed below.

Petition granted; order quashed.

SILBERMAN and VILLANTI, JJ., Concur.

      Travelling with this case, but not consolidated with it is Progressive Select Insurance Company v. Lloyd's of Shelton Auto Glass, LLC a/a/o Jedidiah Thomas, 2D17-3657, which raised identical issues and in which the circuit court entered an order that was the basis for the circuit court's order under review in this case.

      We recognize that in some instances, the insurance company will issue payment to its insured, while in other situations, payment is made directly to the company performing repairs. We refer to payment being made to the insured simply for ease of reference.

      Because we have concluded that the statutory language of section 627.7288 is clear, we do not need to look at the legislative history of the statute to determine whether the legislature intended for windshield replacement companies to be able to enforce the statute against insurers. Cf. FINR II, Inc., 221 So.3d at 1165 (explaining that "[l]egislative history can be helpful in construing a statute when its plain language is unclear"). However, we express doubt that in enacting section 627.7288, the legislature contemplated the scenario presented in these cases. Staff reports from the Florida House of Representatives and Florida Senate suggest that the primary concern was eliminating the safety hazard posed by cracked windshields by placing the full cost of repair without a deductible on the insurance companies, thereby permitting insureds to have their windshields repaired quickly. See Fla. H. Comm. on Ins., HB 357 (1979), Staff Report (final May 1, 1979) (acknowledging safety hazard posed by cracked windshields and that car owners frequently do not repair the crack due to deductibles); Fla. S. Comm. on Com., SB 354 (1979), Staff Analysis and Economic Impact Statement (final April 25, 1979) (acknowledging that cracked windshields pose safety hazard). But in the cases such as the ones currently under review, the safety hazard has been eliminated as the damaged windshields have been repaired and the car owners have assigned their rights to payment to the windshield replacement companies. Thus the only remaining issue, i.e., whether an insured's assignee has to share in paying for the cost of appraisal to help resolve a dispute over the payment amount, has nothing to do with the safety concerns that resulted in the enactment of section 627.7288.


text:
    PROGRESSIVE SELECT INSURANCE COMPANY, Petitioner, v. LLOYD'S OF SHELTON AUTO GLASS, LLC, a/a/o Jedidiah Thomas, Respondent.
    Case No. 2D17-3657
    District Court of Appeal of Florida, Second District.
    Opinion filed October 31, 2018 Rehearing Denied March 11, 2019
    Alexandra Valdes of Cole, Scott & Kissane, P.A., Miami, for Petitioner.
    Kristin A. Norse and Stuart C. Markman of Kynes, Markman & Felman, P.A., Tampa; David M. Caldevilla of de la Parte & Gilbert, P.A., Tampa; and John C. Murrow of Law Office of John C. Murrow, P.A., Tampa, for Respondent.
   MORRIS, Judge.

The petitioner, Progressive Select Insurance Company, seeks a second-tier writ of certiorari to quash the circuit court's order that denied Progressive's petition for writ of certiorari below. While involving different parties, the facts and procedural history of this case are nearly identical to the facts and procedural history of another second-tier certiorari proceeding that is traveling with this case, Progressive American Insurance Co. v. SHL Enterprises, LLC, a/a/o Shazam Auto Glass, LLC, 264 So.3d 1013, 2018 WL 5624384. We quashed the order in SHL Enterprises, LLC, a/a/o Shazam Auto Glass, LLC, wherein the circuit court had adopted the reasoning of the circuit court's order that was entered in this case. Thus, for the reasons we explained in SHL Enterprises, LLC, a/a/o Shazam Auto Glass, LLC, we quash the circuit court's order here.

Petition granted; order quashed.

SILBERMAN and VILLANTI, JJ., Concur.


author: BADALAMENTI, Judge.

text:
    Willie JEFFERSON, Petitioner, v. STATE of Florida, Respondent.
    Case No. 2D18-3646
    District Court of Appeal of Florida, Second District.
    Opinion filed December 28, 2018 Rehearing Denied January 30, 2019
    Bob Dillinger, Public Defender, and Russell B. Greene, Assistant Public Defender, Clearwater, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Respondent.
   BADALAMENTI, Judge.

Willie Jefferson petitions this court for a writ of prohibition seeking review of the trial court's order summarily denying his motion to dismiss asserting Stand Your Ground immunity from prosecution under sections 776.012(2) and 776.032(1), Florida Statutes (2017). Interpreting the recently amended section 776.032, the Stand Your Ground statute, the trial court held that petitioner's mere claim of entitlement to immunity in a motion to dismiss was insufficient to trigger the State's burden to overcome the claim by clear and convincing evidence. In so holding, the trial court reasoned that "the [S]tate was not required to present any evidence" at an evidentiary hearing to overcome petitioner's Stand Your Ground immunity claim until petitioner presented evidence sufficient to raise a prima facie claim. We hold that the procedure employed by the trial court to deny petitioner Stand Your Ground immunity from criminal prosecution departed from the essential requirements of the law. We thus grant the petition under our certiorari jurisdiction and quash the trial court's order. As will be explained, section 776.032(4) requires the trial court to first determine the facial sufficiency of a petitioner's motion to dismiss asserting a claim for Stand Your Ground immunity, and, if it finds the motion facially sufficient, to then conduct an evidentiary hearing where the State will have the burden to overcome the petitioner's claim by clear and convincing evidence.

Background

In a criminal information, the State charged that petitioner committed second-degree murder of his roommate on September 2, 2017. Petitioner filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b), asserting Stand Your Ground immunity from prosecution because he acted in justifiable self-defense, as defined in section 776.012, in stabbing his roommate.

Specifically, the motion asserted that petitioner and his roommate "frequently had alcohol infused arguments" and that during these arguments his roommate regularly armed himself with a baseball bat and threatened to kill petitioner. Because of his roommate's behavior, petitioner kept a knife on his bedside table. As for the day of the events underpinning petitioner's second-degree murder charge, petitioner claimed that he awoke in his bedroom to discover his intoxicated roommate's hand in petitioner's pants pocket, where petitioner kept his money. This triggered a physical struggle between petitioner and his roommate. Petitioner claimed that his roommate was on top of him when they both reached for petitioner's knife. He further claimed that he feared for his life as they struggled over the knife. The struggle continued throughout the residence. While in the living room area, the roommate threatened to throw boiling hot tea at petitioner. The struggle made its way to the backyard, where the men lost their balance and fell to the ground. In the process of falling to the ground, petitioner gained control of the knife and stabbed his roommate, causing the roommate's death. He claimed that he went to the front of the house and flagged down several people to call law enforcement and medical personnel. Petitioner claimed that it was his "firm belief at the time, and remains so to this day, that if he had not killed [his roommate] on September 2, 2017, then [his roommate] would have killed him." The motion further asserted:

The [S]tate will not be able to present any witnesses to the altercation, as there are none. A video surveillance tape will be presented that shows the very end of the altercation as the two of them spill out of the back door of the house, but nothing in regards to the issue of self-defense is proven by the video. The only facts that the [S]tate will be able to prove are that [the roommate] is in fact dead and that [petitioner] is the one who killed him. Because the [S]tate is not able to meet their burden of clear and convincing evidence, [petitioner] is entitled to immunity from prosecution and therefore the information in this case should be dismissed.

The trial court heard argument on the procedure that should be employed pursuant to the newly amended section 776.032 at a Stand Your Ground evidentiary hearing. Petitioner's counsel argued that section 776.032(4) requires only that petitioner raise a prima facie claim of self-defense immunity. Because, petitioner's counsel argued, petitioner's motion raised a facially sufficient prima facie claim, the burden was on the State to overcome that claim by clear and convincing evidence.

The State responded that the filing of the motion to dismiss pursuant to section 776.032 put petitioner's credibility at issue. Accordingly, the State asserted, petitioner must testify under oath and be subject to cross-examination by the State at an evidentiary hearing. This prompted the trial court to ask petitioner's counsel the following question: "[I]f it's the defendant who makes the assertion, why isn't that a waiver of immunity in its cross-examination?" Petitioner's counsel explained that before section 776.032 was amended in 2017, the accused had the burden of proving his entitlement to Stand Your Ground immunity at a hearing on the motion to dismiss. This burden, petitioner's counsel explained, left many with a choice between a statutory right to immunity and a constitutional right against self-incrimination. According to petitioner's counsel, by amending section 776.032 in 2017 to place the burden on the State "to overcome" a criminal defendant's prima facie claim of immunity, the legislature eliminated a criminal defendant's evidentiary burden to prove his entitlement to Stand Your Ground immunity from criminal prosecution.

The trial court then set forth its interpretation of section 776.032(4) as follows:

Well, I'll tell you, the impression I got is that you raise your claim and the State gets to challenge the legal sufficiency of the claim. And if it's somebody other than your client who swears to what the facts are, that's good. But if your client is the one who does it, then I think it's a waiver of immunity to the extent that the claim is submitted and to the extent necessary to disprove the claim....
So in this case, if your client swears to the facts that it's -- to show a prima -- to make a prima facie claim, I think the State gets to question that ... I think it's a two-step process.
If the Court rules on it that it is a prima facie claim, then I think we go to the next stage [where] the State gets to come in and rebut [the claim].

Petitioner's counsel responded that petitioner would not testify at the hearing and that he would rely on the four corners of the motion unless the State was prepared to present witnesses. The trial court subsequently denied petitioner's motion to dismiss in a written order as follows:

IT IS FURTHER ORDERED that the [petitioner] is required to present evidence prior to the State at a hearing for immunity. The State carries no burden at a pre-trial hearing for immunity until the defense presents evidence subject to cross examination that establishes a prima facie claim. This evidence must be in the form of testimony or physical evidence and must be subject to cross examination by the [S]tate in order to establish that a claim for immunity is valid. A written motion on its face is legally insufficient to raise a prima facie claim for immunity. A written motion that is sworn to by the [petitioner], without live testimony in court subject to cross examination, is legally insufficient to raise a prima facie claim for immunity. The [petitioner] in this case, having presented no evidence or testimony at the hearing for immunity, did not establish a prima facie claim for immunity and the [S]tate was not required to present any evidence.

He subsequently filed a petition for writ of prohibition in our court.

Certiorari Jurisdiction

As an initial matter, prohibition is the appropriate remedy when the appellate court determines on the merits that the defendant is entitled to immunity under the Stand Your Ground law, the reason being that the lower court has no authority to proceed against an immunized defendant. See Little v. State, 111 So.3d 214, 216 n.1 (Fla. 2d DCA 2013) (explaining that "the supreme court has consistently held" that prohibition "is an appropriate vehicle to review orders denying motions to dismiss criminal prosecutions based on immunity"). Here, however, petitioner challenges the procedure the circuit court employed in denying his motion to dismiss, the upshot of which was that the court denied the motion without requiring the State to put on evidence. Consequently, we cannot discern whether petitioner is entitled to immunity on the merits, and therefore prohibition is not the proper vehicle to review the alleged error.

Rather, the trial court's ruling in this case is more properly the subject of a proceeding in certiorari. Although orders denying motions to dismiss based on grounds other than immunity do not normally invoke our certiorari jurisdiction, petitioner complains that the ruling at issue has deprived him of a proper hearing on his claim to immunity from prosecution pursuant to section 776.032(4). Accordingly, we consider his petition under our certiorari jurisdiction. See Fla. R. App. P. 9.040(c) ("If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy."); Horn v. State, 17 So.3d 836, 837 (Fla. 2d DCA 2009) (reviewing trial court's denial of Stand Your Ground immunity under certiorari jurisdiction, noting "we write to discuss and approve of the trial court's procedures in determining that [petitioner] was not entitled to immunity under section 776, Florida Statutes (2007)"); see also Pearlstein v. Malunney, 500 So.2d 585, 587 (Fla. 2d DCA 1986) (holding certiorari was appropriate when necessary "for petitioners to receive the benefits conferred upon them (and, in the estimation of the legislature, upon the citizens of Florida) by the statute" and "relief by direct appeal would be no relief at all").

Discussion

Petitioner argues that the trial court erred by determining that the State carried no evidentiary burden under section 776.032(4) until he first presented a prima facie claim of entitlement to immunity by physical evidence or live testimony subject to cross-examination proffered at a Stand Your Ground hearing. We agree.

As an initial matter, we note that the trial court made no factual findings below. Accordingly, we are presented with the interpretation of section 776.032, which "is a purely legal matter and therefore subject to the de novo standard of review." Kasischke v. State, 991 So.2d 803, 807 (Fla. 2008) (quoting Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla. 2006) ).

"The 'cardinal rule' of statutory construction is 'that a statute should be construed so as to ascertain and give effect to the intention of the [l]egislature as expressed in the statute.' " Dennis v. State, 51 So.3d 456, 461 (Fla. 2010) (quoting Reeves v. State, 957 So.2d 625, 629 (Fla. 2007) ). "[S]tatutory enactments are to be interpreted so as to accomplish rather than defeat their purpose." Id. at 461 (alteration in original) (quoting Reeves, 957 So.2d at 629 ).

" 'The starting point for [the] interpretation of a statute is always its language,' so that 'courts must presume that a legislature says in a statute what it means and means in a statute what it says there.' " Vargas v. Enter. Leasing Co., 993 So.2d 614, 618 (Fla. 4th DCA 2008) (alteration in original) (quoting in part Garcia v. Vanguard Car Rental USA, Inc., 510 F.Supp.2d 821, 829-30 (M.D. Fla. 2007), aff'd, 540 F.3d 1242, 1246 (11th Cir. 2008) ), approved, 60 So.3d 1037 (Fla. 2011). We discern legislative intent by analyzing the text of the statute, interpreting the words and phrases penned by the legislature in accord with their plain and ordinary meanings. See Baden v. Baden, 260 So.3d 1108 (Fla. 2d DCA Nov. 14, 2018). And "when the language to be construed is unambiguous, it must be accorded its plain and ordinary meaning." Brown v. State, 715 So.2d 241, 243 (Fla. 1998). If a statute is unambiguous, it is not the court's role to "look behind the statute's plain language or employ principles of statutory construction to determine legislative intent." English v. State, 191 So.3d 448, 450 (Fla. 2016) ; see also Daniels v. Fla. Dep't of Health, 898 So.2d 61, 65 (Fla. 2005) ("When the statutory language is clear, 'courts have no occasion to resort to rules of construction-they must read the statute as written, for to do otherwise would constitute an abrogation of legislative power.' " (quoting Nicoll v. Baker, 668 So. 2d 989, 990-91 (Fla. 1996) ) ).

A Brief History of Florida's Stand Your Ground Law

As background, the Stand Your Ground statute was first enacted in 2005. Ch. 05-27, § 4, at 200, Laws of Fla.; see also § 776.032, Fla. Stat. (2005) ("A person who uses force as permitted in [ section] 776.012, [ section] 776.013, or [ section] 776.031 is justified in using such force and is immune from criminal prosecution ...."). "The statute effectively 'grants defendants a substantive right to assert immunity from prosecution and to avoid being subjected to a trial.' " State v. Gallo, 76 So.3d 407, 409 (Fla. 2d DCA 2011) (quoting Dennis, 51 So.3d at 462 ). Previous versions of the statute were silent as to the procedure that a trial court should follow when an accused asserted his immunity from criminal prosecution pursuant to it. Responding to this omission, the supreme court held that the accused initiates the process of asserting immunity on the basis of section 776.032, as the petitioner did here, by filing a pretrial motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b). Dennis, 51 So.3d at 463.

The text of prior versions of section 776.032 was also wholly silent as to which party bore the evidentiary burden to prove or disprove an accused's assertion of entitlement to Stand Your Ground immunity: was it the accused's burden to prove his entitlement to immunity or the State's burden to disprove the accused's assertion of entitlement to immunity? And section 776.032 was wholly silent as to what quantum of evidentiary proof was required. See Bretherick v. State, 170 So.3d 766, 775-76 (Fla. 2015) (examining the development in the district courts of the burden of proof requirement under the 2011 version of section 776.032 ).

One quite obvious and common thread seen in the development of the Stand Your Ground case law in the district courts of appeal, and ultimately the supreme court, is the perceived impracticality of a procedure requiring the State to disprove the immunity afforded by the Stand Your Ground statute. See id. at 777. Instead, the courts explained that it was more practical for the person asserting an entitlement to immunity to prove it up. See id. If the State was required to disprove an accused's assertion of immunity, some argued, the State would be forced to conduct two trials (one for pretrial immunity purposes and the second for the substantive trial) in a single case, giving the accused a preview of the State's case. Id. Such a procedure could lead to the waste of tax dollars for both the executive and judicial branches. See id. at 778 ("Requiring the State to prove its case twice would also cause a tremendous expenditure of time and resources.").

In 2015, the supreme court addressed these questions and concerns under a previous version of section 776.032, holding that the accused had the burden to both raise a claim of immunity and prove entitlement to immunity from criminal prosecution by a preponderance of evidence. See Bretherick, 170 So.3d at 779. Justice Canady, joined by Justice Polston, dissented. The dissent emphasized that placing the burden on the accused to provide evidentiary proof of his statutory entitlement to immunity "has no basis in the text of the Stand Your Ground law." Id. at 780 (Canady, J., dissenting). The dissent reasoned that "[b]y imposing the burden of proof on the defendant at the pretrial evidentiary hearing, the majority substantially curtails the benefit of the immunity from trial conferred by the [l]egislature under the Stand Your Ground law." Id.

Acknowledging the "majority's concern that placing the burden of proof on the State in the pretrial evidentiary hearing will potentially result in 'two full-blown trials,' " the dissent astutely recognized that this is a "matter for the [l]egislature to consider and resolve." Id. And the dissent further noted that the majority's practical concerns "cannot justify curtailing the immunity from trial under the Stand Your Ground law for those individuals whose use of force or threat of force is legally justified under the governing statutory standard." Id.

The Newly Added Text of Section 776.032(4)

Having set forth this brief history of Florida's Stand Your Ground law, we turn to the text of the recently amended section 776.032. During its 2017 session, the legislature amended section 776.032 to include a new subsection which unambiguously set forth that "the burden of proof is on the party seeking to overcome the immunity from criminal prosecution." See ch. 2017-72, § 1, at 898-89, Laws of Fla. In full, the subsection provides:

(4) In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).

(Emphasis added.) As the First District recently explained, the 2017 amendment to section 776.082 markedly "changed both the burden and quantum of proof required for establishing entitlement to immunity." Boston v. State, 260 So.3d 445 (Fla. 1st DCA Nov. 30, 2018).

We agree with petitioner that the trial court erred by imposing an evidentiary burden on petitioner to establish a "prima facie claim" of self-defense in order to trigger the State's burden to "overcome" this claim "by clear and convincing evidence," as it contravenes the plain and ordinary meaning of the text of section 776.032(4). As set forth in detail below, the trial court should have instead reviewed the facial sufficiency of the immunity claim set forth in Petitioner's motion to dismiss. Cf. Martin v. State, 43 Fla. Law Weekly D1016, 1016, --- So.3d ---- (Fla. 2d DCA May 4, 2018) ("Thus, as it now stands, the State bears the burden of disproving, by clear and convincing evidence, a facially sufficient claim of self-defense immunity in a criminal prosecution.").

By adding subsection (4) to section 776.032, the legislature set forth in no uncertain terms that the "party seeking to overcome" the immunity from criminal prosecution-the State-has the evidentiary "burden of proof" and that the quantum of proof is "by clear and convincing evidence."

The text of section 776.032(4) directs a party seeking immunity from criminal prosecution to "raise[ ]" a "prima facie claim" of self-defense as described in section 776.032(1). See § 776.032(4) (referring to section 776.032(1)'s inclusion of the affirmative defenses of justifiable self-defense and use of force set forth in sections 776.012, .013, and .031). As an initial matter, section 776.032 does not define "raise," "prima facie," or "claim." When a word or phrase in a statute is not expressly defined, it is "appropriate to refer to dictionary definitions" in order to discern the plain and ordinary meaning of that word or phrase. Sanders v. State, 35 So.3d 864, 871 (Fla. 2010) (quoting School Bd. of Palm Beach Cty. v. Survivors Charter Schools, Inc., 3 So.3d 1220, 1233 (Fla. 2009) ).

A "claim" is defined as "[a] statement that something yet to be proved is true," "[t]he assertion of an existing right," and "[a] demand for ... a legal remedy to which one asserts a right." Claim, Black's Law Dictionary (10th ed. 2014); see also The American Heritage Dictionary, 340 (5th ed. 2011) (defining "claim" as "[a] statement of something as a fact; an assertion of truth"). Consider the following statement: "I claim that the car was speeding down the road." It is doubtful that one's claim that the car was speeding down the road would ordinarily be understood in a conversation to mean that the car was indeed speeding down the road. That is, it would make little sense for the person to limit what he believes to be true by adding "claim" to the sentence. In other words, if someone sought to convey that a car was speeding down the road, that person would simply say, "The car was speeding down the road." There's no need to "claim" it was if it was. With this ordinary understanding of "claim" in mind, the legislature's inclusion of the word "claim" demonstrates its intent that the party seeking immunity from criminal prosecution must merely assert it, not prove it; it is something yet to be proven, a mere assertion of a statement without evidence to back up its veracity.

Next, we address the type of claim that is yet to be proven: "a prima facie claim." "Prima facie" is defined as "[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted; based on what seems to be true on first examination, even though it may be later proved to be untrue." Prima facie, Black's Law Dictionary (10th ed. 2014); see also The American Heritage Dictionary, 1398 (5th ed. 2011) (defining "prima facie" as "[a]t first sight; before closer inspection"). So, the type of claim yet to be proven as true is one that, on first examination, is presumed to be true unless it is later disproved or rebutted. The phrase "prima facie claim," then, is an assertion that, at first glance, is sufficient to establish a fact or right but is yet to be disproved or rebutted by someone.

The State asserts that the person-here, the petitioner-asserting the yet to be proven immunity claim has the evidentiary burden to prove it. We need not look further than the text of section 776.032(4) to reject that interpretation. First, we have established that a "prima facie claim" is a fact or right that has yet to be disproven. But there's additional text to support our rejection of the State's interpretation. Specifically, by amending section 776.032 to add subsection (4), the legislature merely required that "a prima facie claim of self-defense immunity from criminal prosecution ... be[ ] raised by the defendant at a pretrial immunity hearing." (Emphasis added.) To "raise" something is "[t]o bring up for discussion or consideration; to introduce or put forward." Black's Law Dictionary (10th ed. 2014); see also The American Heritage Dictionary, 1454 (5th ed. 2011) (defining "raise" as "[t]o put forward for consideration"). That is, in ordinary conversation, it is not sensible to conclude that to "raise" a prima facie claim, which is deemed true until it is disproved, means that the person raising the claim must also affirmatively prove the claim. The legislature did not say "prove." Utilization of "raised," coupled with the aforementioned ordinary meaning of "prima facie claim," yields clear textual support that the legislature did not intend the person asserting Stand Your Ground immunity to first prove that prima facie claim of self-defense. Instead, the text indicates that the legislature intended that the person simply bring that yet to be disproven prima facie claim of self-defense to a pretrial immunity hearing for the trial judge to determine, at first glance, if all elements required to demonstrate the particular self-defense statute are present. This is confirmed by the legislature's refusal to prescribe an evidentiary "burden of proof" to the person asserting immunity in the Stand Your Ground statute.

Instead, section 776.032 prescribes one, and only one, "burden of proof," which is set forth in the legislature's 2017 addition of subsection (4) to section 776.032. That "burden of proof" is placed on the "party seeking to overcome" the "immunity" from "criminal prosecution," which is, of course, the State. § 776.032(4). We know it is an evidentiary burden because the legislature told us: it directed that the State must overcome the immunity "by clear and convincing evidence." § 776.032(4) (emphasis added).

Thus, section 776.032(4) plainly states that there is no evidentiary burden upon the person seeking Stand Your Ground immunity. To interpret the subsection otherwise would write into the statute a requirement that is not there and quell the legislature's obvious attempt to upend the supreme court's Bretherick decision, where our supreme court held that the person seeking Stand Your Ground immunity bore the burden to prove his immunity by a preponderance of the evidence. 170 So.3d at 774. Indeed, we must presume that the legislature understood the plain and ordinary meaning of the words and phrasing it codified in section 776.032(4). See Ward v. State, 936 So.2d 1143, 1146 (Fla. 3d DCA 2006) ("[T]he legislature is presumed to know the meaning of words and the rules of grammar[,] and the court will give the generally accepted construction to both the phraseology of the act and the manner in which it is punctuated." (quoting Sailboat Apartment Corp. v. Chase Manhattan Mortg. & Realty Tr., 363 So.2d 564, 568 (Fla. 3d DCA 1978) ) ).

The trial court's ruling that petitioner must present "testimony or physical evidence ... subject to cross examination by the [S]tate in order to establish that a claim for immunity is valid" is a departure from the essential requirements of the law set forth in the legislature's 2017 amendment to section 776.032. And its interpretation would effectively revert the burden of proof on the accused to that announced in Bretherick. Aside from obvious Fifth Amendment issues, it would further lead to an absurd result where the defendant seeking immunity from criminal prosecution has a higher pretrial evidentiary burden than a defendant asserting justifiable use of force as an affirmative defense at trial, where the defendant must present (not raise) a prima facie case (not claim) of self-defense before the State must prove the nonexistence of the affirmative defense beyond a reasonable doubt. See Fowler v. State, 921 So.2d 708, 711 (Fla. 2d DCA 2006). At trial, "[t]he State must prove the defendant's guilt beyond a reasonable doubt, and when the defendant presents a prima facie case of self-defense, the State's burden includes 'proving beyond a reasonable doubt that the defendant did not act in self-defense.' " Id. (quoting Thompson v. State, 552 So.2d 264, 266 (Fla. 2d DCA 1989) ). Also at trial, an accused would obviously not be required to present evidence, by way of his testimony, to present a prima facie case of self-defense and support the trial court's charging the jury of the affirmative defense of justifiable self-defense. Rather, the defendant could elicit testimony supporting justifiable self-defense through cross-examination of the State's witnesses and point to facts that create a reasonable doubt that his actions were not justified. See Kilgore v. State, 271 So.2d 148, 152 (Fla. 2d DCA 1972) ("If [a]ny evidence of a substantial character is adduced, either upon cross-examination of State witness or upon direct examination of the defendant and/or his witnesses, the element of self-defense becomes an issue, and the jury, as the trier of the facts, should be duly charged as to the law thereon, because it is the jury's function to determine that issue."). If the defendant is not required to testify or elicit testimony to present a prima facie case of self-defense at a trial, it would upend the purpose of the immunity statute if he were required to testify or elicit testimony to simply raise a prima facie claim of Stand Your Ground immunity based on self-defense at a pretrial hearing.

Although we both recognize and appreciate the legitimate concerns raised by the trial court, its interpretation contravenes the text of section 776.032(4). The practical and financial impact on both the executive and judicial branches are concerns for the legislature to address, not the courts.

We interpret section 776.032(4)'s requirement of a prima facie claim of self-defense immunity from prosecution to be raised "at a pretrial immunity hearing" to mean that an accused must simply allege a facially sufficient prima facie claim of justifiable use of force under chapter 776 in a motion to dismiss filed under rule 3.190(b) and present argument in support of that motion at a pretrial immunity hearing. While the addition of subsection (4) to section 776.032 appears to be an obvious response to the supreme court's decision in Bretherick, the legislature did not alter the procedure for asserting a claim of self-defense immunity that the supreme court set forth in Dennis. See City of Hollywood v. Lombardi, 770 So.2d 1196, 1202 (Fla. 2000) ("[T]he legislature is presumed to know the judicial constructions of a law when enacting a new version of that law [and] ... is presumed to have adopted prior judicial constructions of a law unless a contrary intention is expressed in the new version." (quoting Brannon v. Tampa Tribune, 711 So.2d 97, 100 (Fla. 1st DCA 1998) ) ). We interpret the legislature's requirement that an accused raise a prima facie claim of immunity at a pretrial immunity hearing in conformity with the procedure set forth in Dennis.

In sum, procedurally, a claim for immunity from criminal prosecution pursuant to section 736.032(4) must first be raised, as petitioner did here, by the criminal defendant in a pretrial rule 3.190(b) motion to dismiss. The trial court is then to determine whether, at first glance and assuming all facts as true, the alleged facts set forth in the motion support the elements of self-defense in either section 776.012, 776.013, or 776.031. If the trial court determines that the defendant's claim of self-defense satisfies the requirements set forth in the applicable self-defense statute raised by the accused, the State shall then present clear and convincing evidence to overcome the self-defense claim.

We are mindful that there will be situations where the accused is the only available witness to the events leading to an act that is claimed to be justifiable use of force. This may result in great difficultly for the State to overcome the accused's prima facie claim by clear and convincing evidence. But our result here is mandated by the text of section 776.032(4).

Should our interpretation of the text of section 776.032(4) not reflect the legislature's intent, it is up to the legislature to clarify its intent by amending the statute. Unless and until that occurs, courts are duty bound to carry out the legislative intent by mandating that the State bear the evidentiary burden of overcoming, by bringing forth clear and convincing evidence, an accused's facially sufficient, prima facie claim of self-defense immunity from criminal prosecution at a pretrial hearing.

Accordingly, we grant the petition and quash the trial court's order summarily denying the motion to dismiss.

Petition granted; order quashed.

LaROSE, C.J., and NORTHCUTT J., Concur.

      Section 776.012(2) provides that "[a] person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony."

      To the extent that the State asserted below that it could not refute petitioner's claims without an opportunity to challenge his credibility through cross-examination, we note that the State would be in the same position if an accused made pretrial statements consistent with a claim of justifiable use of force and those statements were presented at trial. In either instance, the State can challenge the accused's credibility with inconsistent statements and the probability or improbability of the allegations in light of the circumstances established by other evidence. See, e.g., Leasure v. State, 105 So.3d 5, 14 (Fla. 2d DCA 2012) ("[E]ven when there are no other witnesses to the events besides the defendant, a jury is not required to accept the defendant's testimony in support of her self-defense theory as true. Instead, it must consider the probability or improbability of the defendant's credibility in light of the circumstances established by other evidence." (citations omitted) ).

      The legislature has imposed a lesser burden on the State-clear and convincing evidence-at a pretrial immunity hearing (with or without the defendant testifying) than during trial. If the State cannot overcome an accused's claim of immunity by clear and convincing evidence at a pretrial immunity hearing, it is less likely it can prove beyond a reasonable doubt at trial that the same acts were not justifiable self-defense.

      In Langel v. State, 255 So.3d 359, 362-363 (Fla. 4th DCA 2018), the Fourth District explained that raising a prima facie claim of self-defense immunity from criminal prosecution under section 776.032(4) ordinarily "require[s] the defendant to testify or to otherwise present or point to evidence from which the elements for justifiable use of force can be inferred." Because the petitioner in Langel was seeking retroactive application of the 2017 amendment to section 776.032(4) and the Fourth District had already determined that the amendment cannot be applied retroactively in Hight v. State, 253 So.3d 1137 (Fla. 4th DCA 2018), this language from Langel is dicta. See Lewis v. State, 34 So.3d 183, 186 (Fla. 1st DCA 2010) ("When a court makes a pronouncement of law that is ultimately immaterial to the outcome of the case, it cannot be said to be part of the holding in the case."). To the extent that this language can be interpreted to be contrary to our holding in this case, however, we note that the Langel court explicitly rejected the definition of "prima facie case" requiring "production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor" when interpreting subsection (4) of 776.032. Langel, 255 So. 3d at 362 n.2 (emphasis added). Instead, the Fourth District, consistent with our opinion, interpreted "prima facie case" to require "[t]he establishment of a legally required rebuttable presumption." Id. Thus, the Langel court was merely acknowledging that, in some cases, a defendant may wish to testify to establish his claim of Stand Your Ground immunity.

      We express no opinion as to the facial sufficiency of petitioner's claim. It shall be evaluated by the trial court in the first instance.


author: KELLY, Judge.

text:
    Jody Maurice CRUM, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1272
    District Court of Appeal of Florida, Second District.
    Opinion filed January 4, 2019 Rehearing Denied February 20, 2019
    Jody Crum, pro se.
   KELLY, Judge.

Jody Crum, pro se, appeals from the summary denial of his second Florida Rule of Criminal Procedure 3.850 motion. We affirm without comment the order denying Crum's motion. Because in the course of reviewing this appeal we have determined that Crum has knowingly and recklessly brought false information and evidence before this court, we write to set forth our findings and to refer this matter to the Department of Corrections for disciplinary procedures pursuant to the rules of the Department. See § 944.279, Fla. Stat. (2017).

Crum's appearances in this court began after the circuit court in Polk County revoked his probation. Crum entered a plea after unsuccessfully challenging the court's jurisdiction to revoke his probation; however, he reserved his right to raise the issue of the court's jurisdiction on appeal. We affirmed the revocation, and since then, Crum has filed three postconviction proceedings in this court-two appeals and a petition for a writ of habeas corpus-all of which continue to challenge the circuit court's jurisdiction to revoke his probation. He filed, under oath, pro se briefs in both appeals, and he also filed his habeas petition pro se and under oath. In each of these postconviction proceedings, Crum has relied on what he claims is a copy of a judgment and sentence entered against him in an unrelated case from Martin County.

In the facts section of his sworn pro se brief Crum states that in Martin County he "was sentenced to five years Florida State Prison, to run concurrent with any active sentence (see Exhibit D, Martin County Sentencing Order), and with the sentencing judge having foreknowledge of the Appellant serving active probation sentences in other jurisdictions." Neither Exhibit D, nor any of the other exhibits referenced in the brief, are actually appended to the brief. However, this court has copies of these exhibits because Crum also filed them as attachments to his sworn pro se petition for a writ of habeas corpus in case number 2D17-2220 and to his sworn brief in case number 2D15-4625. In this appeal and in the other proceedings, Crum has relied on the purported copy of the Martin County sentencing order to support his claim that his Martin County sentence was ordered to run concurrent with any active sentence.

On its face, the order supports Crum's assertion. However, in his sworn brief and in his sworn rule 3.850 motion, Crum makes conflicting assertions regarding the nature of his Martin County sentence. Further, the record in his direct appeal is inconsistent with the claim that his Martin County sentence was made concurrent with any active sentence. Because of the incongruities, we questioned the legitimacy of the document Crum had filed.

We ordered the State to file in this court a copy of the Martin County sentencing order. The copy of the order the State filed lacks checkmarks that appear on the copy Crum filed in this court, and it is those checkmarks that indicate his sentence is to be concurrent with any active sentence. The State also filed Crum's Martin County plea agreement as well as the order denying the rule 3.800(a) motion he filed in the Martin County case. These documents further contradict Crum's assertion that his Martin County sentence was made concurrent with any active sentence and they show that Crum was well aware of that fact.

We ordered Crum to show cause why he should not be sanctioned for knowingly or recklessly bringing false evidence or information before this court and why, pursuant to section 944.279(1), a certified copy of this court's findings should not be forwarded to the Department of Corrections for the institution of disciplinary procedures pursuant to the rules of the Department as provided in section 944.09. Crum responded to our order to show cause. Although his response is vague, the gist of it is that he relies on prison law clerks to help with his "court papers," and he simply does what they tell him. We find Crum's attempt to avoid responsibility unavailing. See Jones v. State, 18 So.3d 551, 553 (Fla. 1st DCA 2008) ("Given Jones personally swore that the information contained in his petition was true and correct and that the court's reliance on that representation resulted in a substantial expenditure of the court's resources ... we reject petitioner's attempt to absolve himself of responsibility for his actions."); Allen v. State, 746 So.2d 1247, 1247 (Fla. 1st DCA 1999) (rejecting the petitioner's attempt to blame inaccuracies on an "allegedly ill-trained and unscrupulous inmate law clerk" who assisted him given that the petitioner personally swore the information in his petition was true and correct).

Accordingly, we hereby find that Crum either knowingly or recklessly brought false information and evidence before this court in this proceeding, as well as in case numbers 2D17-2220 and 2D15-4625, and in accordance with section 944.279(1), we direct the clerk of this court to forward a certified copy of this opinion to the Florida Department of Corrections' institution or facility where Crum is incarcerated for institution of disciplinary procedures pursuant to the rules of the Department as provided for in section 944.09.

Affirmed; certified opinion forwarded to Crum and the Department of Corrections.

BLACK, J., Concurs.

NORTHCUTT, J., Dissents.

      Section 944.279(1) provides, in relevant part, as follows:
      (1) At any time, and upon its own motion or on motion of a party, a court may conduct an inquiry into whether any action or appeal brought by a prisoner was brought in good faith. A prisoner who is found by a court to have brought a frivolous or malicious suit, action, claim, proceeding, or appeal in any court of this state or in any federal court, ... or who knowingly or with reckless disregard for the truth brought false information or evidence before the court, is subject to disciplinary procedures pursuant to the rules of the Department of Corrections. The court shall issue a written finding and direct that a certified copy be forwarded to the appropriate institution or facility for disciplinary procedures pursuant to the rules of the department as provided in s. 944.09.

      In case number 2D15-4625, Crum appealed the denial of his first rule 3.850 motion in Polk County trial court case number 2005-CF-000723-01. He filed the present appeal to challenge the denial of his second rule 3.850 motion in the same trial court case. Shortly after filing this appeal, he also filed a petition for a writ of habeas corpus in this court, case number 2D17-2220, in which he again challenged the denial of his second rule 3.850 motion.


author: Ciklin, J.

text:
    Jovany Luis ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2418
    District Court of Appeal of Florida, Fourth District.
    January 9, 2019
    Carey Haughwout, Public Defender, and Stacey Kime, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Kimberly T. Acuna, Assistant Attorney General, West Palm Beach, for appellee.
   Ciklin, J.

Jovany Ortiz appeals his convictions and sentences, raising seven issues on appeal. We find that his first issue raised has merit in that the trial court erred by considering acquitted conduct during sentencing. Thus, we reverse for resentencing. With respect to the remaining issues, we affirm without further discussion.

Ortiz was indicted with first-degree murder with a firearm, attempted first-degree murder with a firearm, and aggravated assault with a firearm after opening fire and shooting two victims outside of a bar in downtown West Palm Beach. The jury convicted Ortiz of the lesser included offenses of second-degree murder and attempted manslaughter by act, and of aggravated assault with a firearm as charged.

Ortiz was sentenced to forty years of imprisonment for the second-degree murder conviction, fifteen years for attempted manslaughter by act, and three years for aggravated assault with a firearm, all to run concurrently.

At sentencing, the trial court made the following statements:

Mr. Ortiz, the jury rejected your self-defense claim, and I do recognize that; the facts indicate here, there was actual reflection on your actions when you committed this murder .
Your reflection in the time that you spent thinking about this , the jury found you guilty of still driving by this place and when you opened fire, you risked many lives.

(Emphasis added).

Although defense counsel did not object to these statements below, Ortiz now contends that by considering "actual reflection" in committing these crimes, the trial court erroneously considered the acquitted conduct of premeditation, since the jury declined to convict him of first-degree and attempted first-degree murder. We must agree.

A sentence within the permissible statutory range generally is not subject to review, but an exception is made where a court violates a defendant's due process rights by relying on impermissible factors in sentencing. See Charles v. State , 204 So.3d 63, 66 (Fla. 4th DCA 2016). " '[A] trial court's consideration of a constitutionally impermissible sentencing factor is a fundamental error in the sentencing process' which is reviewable for the first time on direct appeal." Hillary v. State , 232 So.3d 3, 4 (Fla. 4th DCA 2017) (alteration in original) (quoting Fernandez v. State , 212 So.3d 494, 496 (Fla. 2d DCA 2017) ).

"[I]t is a violation of due process for the court to rely on conduct of which the defendant has actually been acquitted when imposing a sentence." Dinkines v. State , 122 So.3d 477, 481 (Fla. 4th DCA 2013) (quoting Doty v. State , 884 So.2d 547, 549 (Fla. 4th DCA 2004) ). Where a "sentencing judge's comments suggest that the sentence imposed was based on improper considerations, that sentence must be reversed ...." Parague v. State , 222 So.3d 567, 572 (Fla. 4th DCA 2017) (quoting Allen v. State , 211 So.3d 48, 50 (Fla. 4th DCA 2017) ).

When the trial court's comments are viewed in light of the jury instructions, it appears that the trial court indeed considered conduct of which the jury acquitted Ortiz. According to the jury instructions, to convict Ortiz of first-degree murder, the jury was required to find in relevant part that "[t]here was a premeditated killing of" the victim. Similarly, to find attempted first-degree murder, the jury was required to find that Ortiz "acted with a premeditated design to kill" the victim. The jury instructions define premeditation as follows:

"Killing with premeditation" is killing after consciously deciding to do so.... The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the killing.
....
A premeditated design to kill means that there was a conscious decision to kill.... The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the act. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the act was committed.

(Emphasis added).

By declining to convict Ortiz of first-degree murder and attempted first-degree murder, the jury essentially acquitted Ortiz of premeditated conduct - i.e., "reflection" - prior to the shooting. Instead, the jury found that Ortiz committed second-degree murder and attempted manslaughter by act, neither of which includes a premeditation element.

Where the record reflects that the trial court may have relied on an impermissible consideration in sentencing, the state bears the burden of establishing that the consideration "played no part in the sentence imposed." Epprecht v. State , 488 So.2d 129, 131 (Fla. 3d DCA 1986). The state has not met this burden in the case at hand.

Accordingly, we reverse Ortiz's sentences and, as we frequently do in situations as this, remand for resentencing before a different judge.

Affirmed in part, reversed in part, and remanded.

Taylor and Conner, JJ., concur.


text:
    Dewarderick MORRIS, a/k/a Dewarderick Mikkel Morris, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4084
    District Court of Appeal of Florida, Second District.
    Opinion filed January 16, 2019 Rehearing Denied March 11, 2019
    Marie-Louise Samuels Parmer of The Samuels Parmer Law Firm, P.A., Tampa, for Appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Dewarderick Mikkel Morris seeks review, on multiple grounds, of his convictions and sentences for trafficking in 200 grams or more of cocaine, possession of a conveyance to be used for trafficking, and possession of drug paraphernalia. The jury returned guilty verdicts as to all charges. However, we reverse solely the conviction for possession of a conveyance for trafficking based on fundamental error. We affirm the other convictions and sentences without comment.

A detective and his K-9 dog were on duty at a UPS distribution center when the detective was alerted to a package. The package was addressed to "Michael Morris," who did not live at the residential address. The package was thereafter delivered to the location during a controlled delivery. Fifteen minutes later, Mr. Morris pulled up to the residence and went inside while his wife waited in the vehicle. A few minutes later, he came out with the package, put it in the back seat of the vehicle, and left. The police arrested Mr. Morris shortly thereafter.

Section 893.1351(2), Florida Statutes (2016), prohibits knowingly possessing a "conveyance with the knowledge that the ... conveyance will be used for the purpose of trafficking in a controlled substance." To sustain a conviction for this offense, this court has held that the State must present sufficient evidence of a nexus between the use of the vehicle and the crime. See Hunt v. State, 256 So.3d 243 (Fla. 2d DCA 2018) (citing Delgado-George v. State, 125 So.3d 1031, 1033 (Fla. 2d DCA 2013) ). Thus, "the focus should be on the use of the vehicle in the sale." Hunt, 256 So.3d at 244 (citing Delgado-George, 125 So. 3d at 1033 ). In other words, the presence of a controlled substance in a conveyance must be shown to be more than happenstance before the conveyance can be considered being used for trafficking in the controlled substance.

In Delgado-George, the defendant was pulled over during a traffic stop and admitted to the officer that he was on his way to a local bar to sell marijuana. 125 So.3d at 1033. This court held that a judgment of acquittal should have been granted because there was no evidence that the vehicle was a necessary component of the intended drug sale or that there was anything "unique about th[e] vehicle that would indicate its intended use was to traffic, sell, or manufacture controlled substances." Id. at 1034. This court concluded that the State failed to show that a crime was committed under section 893.1351(2) because the evidence was insufficient to prove a nexus between the defendant's intent to sell and the use of the vehicle. Id.

Here, the only evidence about the vehicle was that Mr. Morris drove the vehicle to a house. His wife waited in the vehicle while he went inside. A few minutes later, Mr. Morris placed the package in the vehicle and left. There was no evidence that the vehicle itself was a necessary component of trafficking in a controlled substance. Nor was there anything about the vehicle, or his wife's presence in it, that indicated it was intended for such use. Hence, the evidence was insufficient to prove the offense of possession of a conveyance to be used for trafficking.

Even though the issue was unpreserved, we conclude that the error was fundamental. The Florida Supreme Court has held fundamental error is such that "reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." F.B. v. State, 852 So.2d 226, 229 (Fla. 2003) (quoting Brown v. State, 124 So.2d 481, 484 (Fla. 1960) ).

Generally, a defendant must preserve a claim of insufficiency of the evidence in the trial court. F.B., 852 So.2d at 229. However, an exception to this rule occurs "when there is insufficient evidence that a defendant committed any crime." Monroe v. State, 191 So.3d 395, 401 (Fla. 2016) ; see also F.B., 852 So.2d at 230 ("The ... exception to the requirement that claims of insufficiency of the evidence must be preserved occurs when the evidence is insufficient to show that a crime was committed at all."); Andre v. State, 13 So.3d 103, 105 (Fla. 4th DCA 2009) (holding that it was fundamental error to convict the defendant where "the State failed to prove an essential element of the crime"). Under the facts of this case, had this argument been raised below, the trial court would have been compelled to grant it.

Consistent with F.B., this court has held that "a conviction is fundamentally erroneous when the facts affirmatively proven by the State simply do not constitute the charged offense as a matter of law." Cox v. State, 1 So.3d 1220, 1222 (Fla. 2d DCA 2009) (quoting Griffin v. State, 705 So.2d 572, 574 (Fla. 4th DCA 1998) ) (holding that the charged offense of aggravated child abuse could not be sustained where there was no evidence of any physical or mental injury resulting from a father's verbal tirade); accord Rodriguez v. State, 964 So.2d 833, 836 n.1 (Fla. 2d DCA 2007) ("It is ... fundamental error to convict a defendant when the State has failed to prove an element that is essential to the commission of the crime."). Additionally, there is no lesser included charge to the conveyance offense, which further supports the conclusion that evidence was "insufficient to show that a crime was committed at all." Kirkland v. State, 225 So.3d 920, 922 (Fla. 1st DCA 2017) (quoting F.B., 852 So.2d at 230 ) ). Simply put, the evidence was insufficient to prove that Mr. Morris's vehicle was a necessary use component of trafficking in a controlled substance or that it was intended for such use. Because this conviction resulted in fundamental error, we must reverse and vacate only the conviction for possession of a conveyance used for the trafficking of controlled substances. We affirm Mr. Morris's remaining convictions. On remand, he must be resentenced on those convictions.

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

NORTHCUTT and ATKINSON, JJ., Concur.


author: Per Curiam.

text:
    Steven L. BALDWIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3943
    District Court of Appeal of Florida, First District.
    January 14, 2019 Rehearing Denied March 7, 2019
    Steven L. Baldwin, pro se, Petitioner.
    Ashley Brooke Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is denied on the merits.

Rowe, Ray, and Osterhaus, JJ., concur.


text:
    Edward Jack GARVIN, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3513
    District Court of Appeal of Florida, First District.
    January 14, 2019 Rehearing Denied March 7, 2019
    Edward Jack Garvin, Jr., pro se, Petitioner.
    Ashley Brooke Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

Roberts, Kelsey, and Winsor, JJ., concur.


text:
    David LASHLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3698
    District Court of Appeal of Florida, First District.
    January 22, 2019 Rehearing Denied March 11, 2019
    David Lashley, pro se, Petitioner.
    Ashley Brooke Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED . See Fla. R. App. P. 9.141(d)(6)(C).

Roberts, Kelsey, and Winsor, JJ., concur.


author: PER CURIAM.

text:
    Christopher R. GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1485
    District Court of Appeal of Florida, Third District.
    Opinion filed January 16, 2019.
    Christopher R. Garcia, in proper person.
    Ashley Brooke Moody, Attorney General, for appellee.
    Before EMAS, C.J., and SALTER and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Johnson v. State, 60 So.3d 1045 (Fla. 2011) (holding under Florida Rule of Criminal Procedure 3.800(a), authorizing a trial court to correct an illegal sentence, burden is on defendant to demonstrate an entitlement to relief on the face of the record; State has no burden to establish defendant is not entitled to relief); Cox v. State, 221 So.3d 723 (Fla. 3d DCA 2017) (same). See also Bryant v. State, 240 So.3d 55 (Fla. 3d DCA 2018) (holding Florida Rule of Criminal Procedure 3.801 is the exclusive method for seeking a correction of jail credit, and a motion seeking such relief may not be considered if filed more than one year after the sentence becomes final).


author: LINDSEY, J.

text:
    Arlene DELGADO, Petitioner, v. Jason MILLER, Respondent.
    No. 3D18-2500
    District Court of Appeal of Florida, Third District.
    Opinion filed January 29, 2019
    Arlene Delgado, in proper person.
    Perez-Abreu & Martin-Lavielle, P.A., and Ana Martin-Lavielle, and Christina MacRobert-Ruiz, Coral Gables, FL, for respondent.
    Before SALTER, LINDSEY, and MILLER, JJ.
   LINDSEY, J.

Arlene Delgado, the Mother, seeks certiorari review of an order compelling both her and Jason Miller, the Father, to submit to psychological evaluations in the underlying paternity action. Because the trial court departed from the essential requirements of the law in failing to comply with the requirements set forth in the Florida Rules of Civil Procedure and the Florida Family Law Rules of Procedure, we grant the Petition for Writ of Certiorari and quash the order under review.

We have certiorari jurisdiction to review the trial court's order compelling the parties to undergo psychological evaluations. See, e.g., In re G.D., 870 So.2d 235, 237 (Fla. 2d DCA 2004) ("This court has held that interlocutory orders that improperly require mental examinations cause material injury to the petitioner that cannot be remedied on direct appeal."). Because the threshold jurisdictional requirement is met, we consider whether the order departs from the essential requirements of the law. See, e.g., R.C. v. Dep't of Children & Family Servs., 150 So.3d 1277, 1278 (Fla. 3d DCA 2014). For the reasons set forth below, we hold that it does.

Generally, a party requesting that another party submit to a psychological examination must comply with the requirements set forth in Florida Rule of Civil Procedure 1.360 and Florida Family Law Rule of Procedure 12.360. See Medina v. Haddad, 199 So.3d 450 (Fla. 3d DCA 2016) ; Wade v. Wade, 124 So.3d 369 (Fla. 3d DCA 2013). These rules require that the condition subject to examination be "in controversy" and that the party submitting the request have "good cause" for the examination. Fla. R. Civ. P. 1.360(a)(1) and (2) ; Fla. Fam. L. R. P. 12.360(a)(1) and (2) ; see also Wade, 124 So.3d at 374 ("At any hearing on the request for compulsory examination, the party submitting the request has the burden of showing that both the 'in controversy' and 'good cause' prongs have been satisfied."). Moreover, where the condition in controversy is not physical, "[t]he order for examination may be made only after notice to the person to be examined and to all parties, and must specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made." Fla. R. Civ. P. 1.360(a)(1)(B) ; Fla. Fam. L. R. P. 12.360(a)(1)(B).

The parties agree that these requirements were not met; however, the Father argues that the Mother waived compliance with the rules because she agreed to the psychological evaluation. Based on the order itself and the record before us, we disagree.

The order, on its face, is inconsistent with the Father's argument. The proposed order, which Father's counsel drafted, was originally titled "CONFIDENTIAL AGREED ORDER FOR BOTH PARTIES TO UNDERGO PSYCHOLOGICAL EVALUATIONS." However, when the trial court allowed the Mother to review the proposed order, she did not agree to its terms, so the trial court crossed out "CONFIDENTIAL AGREED" from the title and signed it anyway. Although the Mother had conditionally agreed to a psychological evaluation at an earlier case management conference, the proposed order did not reflect the conditions of that agreement. Because there was no agreement, a psychological evaluation could only be ordered in compliance with rules 1.360 and 12.360. Failure to comply with these rules is a departure from the essential requirements of the law. See Medina, 199 So.3d at 451 ; R.C., 150 So.3d at 1278 ;

Wade, 124 So.3d at 374. We therefore grant the Petition for Writ of Certiorari and quash the trial court's November 13, 2018 order compelling the parties to undergo psychological evaluations.

Petition granted; order quashed.

      Aside from the fact that the Mother did not agree, the order is patently inconsistent on its face. While the words "CONFIDENTIAL AGREED" appear to have been manually crossed out of the caption, left in the body of the first paragraph was the following language: "both parties have agreed to undergo mental health examinations with Dr. Edward Szcechowicz, and waived their right to have a hearing on [the pending motions for each of the parents to undergo a mental health examination]."