text:
    Dan SOWELL, as Property Appraiser of Bay County, Florida, Petitioner, v. FAITH CHRISTIAN FAMILY CHURCH OF PANAMA CITY BEACH, INC., Respondent.
    No. 1D17-3365
    District Court of Appeal of Florida, First District.
    July 25, 2018
    Loren E. Levy of The Levy Law Firm, Tallahassee, for Petitioner.
    William E. Corley, III, Panama City Beach, for Respondent.
   Per Curiam.

This is a petition for writ of prohibition seeking review of the circuit court's denial of Petitioner's motion to dismiss an amended complaint challenging the denial of an ad valorem tax exemption for three pieces of property owned by the Respondent, a church, for the 2015 and 2016 tax years. For the reasons explained below, we grant the petition and order that the challenge to the 2015 and 2016 tax years be dismissed.

The Respondent, Faith Christian Family Church of Panama City Beach, Inc. ("Faith Christian"), filed suit on November 30, 2015, challenging the property appraiser's denial of an ad valorem tax exemption for the 2015 tax year and raising a civil rights claim pursuant to 42 U.S.C. § 1983 (" Section 1983"). The Section 1983 claim was later dismissed. Faith Christian filed an amended complaint on April 17, 2017, challenging ad valorem denials for 2015, 2016, and 2017, and adding a claim for slander and a restated Section 1983 claim. The property appraiser filed a motion to dismiss, and the circuit court granted the motion as to counts two and three of the amended complaint (the slander and Section 1983 claims), but denied the motion as to count one (the claim for declarative and injunctive relief as to the denial of the ad valorem exemption for 2015 and 2016).

The property appraiser argues the trial court lacks subject matter jurisdiction to consider the challenge to the 2015 and 2016 years pursuant to section 194.171, Florida Statutes, because Faith Christian failed to pay the taxes due and owing for the 2016 tax year prior to delinquency. Section 194.171 provides in relevant part:

(5) No action to contest a tax assessment may be maintained, and any such action shall be dismissed, unless all taxes on the property assessed in years after the action is brought, which the taxpayer in good faith admits to be owing, are paid before they become delinquent.
(6) The requirements of subsections (2), (3), and (5) are jurisdictional. No court shall have jurisdiction in such cases until after the requirements of both subsections (2) and (3) have been met. A court shall lose jurisdiction of a case when the taxpayer has failed to comply with the requirements of subsection (5).

§§ 194.171(5), (6), Fla. Stat. (2016). Prohibition is an appropriate vehicle for review of the denial of a motion to dismiss which raises a claim that a trial court lost subject matter jurisdiction over a tax challenge pursuant to subsections 194.171(5) and (6). See Nikolits v. Hanna , 92 So.3d 299 (Fla. 4th DCA 2012) ; Higgs v. Armada Key West Ltd. Partnership , 903 So.2d 303 (Fla. 3d DCA 2005) ; Markham v. Hinckley , 544 So.2d 1139 (Fla. 4th DCA 1989).

As of May 11, 2017, Faith Christian had not paid the taxes due and owing on the subject property, and the taxes on those parcels became delinquent by operation of law on April 1, 2017, pursuant to section 197.333, Florida Statutes (2016). Taxes become "delinquent on April 1 following the year in which they are assessed or immediately after 60 days have expired from the mailing of the original tax notice, whichever is later." § 197.333, Fla. Stat. (2016) ; see also Fla. Admin. Code R. 12D-13.004(1) (2016).

When Faith Christian's 2016 taxes became delinquent by operation of law, the trial court lost subject matter jurisdiction over Faith Christian's challenge to not only the 2016 tax year, but also the 2015 tax year. "[I]f a challenge to the assessment is attempted, that challenge will not relieve the challenger of the obligation to pay successive years' taxes." Bystrom v. Diaz , 514 So.2d 1072, 1074 (Fla. 1987) (quoting Marshall v. Perkins , 494 So.2d 506, 507 (Fla. 2d DCA 1986) ); see also Washington Square Corp. v. Wright , 687 So.2d 1374 (Fla. 1st DCA 1997) ; Wilkinson v. Clarke , 91 So.3d 897 (Fla. 2d DCA 2012) ; Nikolits , 92 So.3d 299 ; Higgs , 903 So.2d at 305. As the Florida Supreme Court has observed:

Although subsections 194.171(5) and (6) appear to be somewhat harsh, their meaning is clear. Subsection 194.171(5) plainly states that a taxpayer may not maintain a suit contesting a tax assessment, an action "shall be dismissed, unless all taxes on a property assessed in years after the action is brought, which the taxpayer in good faith admits to be owing, are paid before they become delinquent." Subsection (6) expressly declares that these requirements are jurisdictional and that "[a] court shall lose jurisdiction of the case when the taxpayer has failed to comply with the requirements of subsection (5)." The statute does not allow a court to retain jurisdiction once taxes become delinquent.

Bystrom , 514 So.2d at 1074-75.

Section 194.171(2), Florida Statutes, requires a taxpayer to contest a tax assessment within "60 days from the date the assessment being contested is certified for collection under s. 193.122(2), or after 60 days from the date a decision is rendered concerning such assessment by the value adjustment board if a petition contesting the assessment had not received final action by the value adjustment board prior to extension of the roll under s. 197.323." Faith Christian did not file a petition for the 2016 tax year with the Value Adjustment Board, and the 2016 tax year roll was certified on October 5, 2016. Accordingly, the statutory deadline for a challenge to the 2016 tax year assessment was December 4, 2016. Faith Christian did not file its amended complaint until April 17, 2017, 194 days after the 2016 tax roll was certified for collection.

Faith Christian argues that its April 2017 amended complaint was timely because it related back to the 2015 original complaint. We do not find this argument to be persuasive; "[e]ven if treated as relating back, the amended pleading did not and could not assert the crucial fact that the [2016] taxes were paid before they became delinquent as required by section 194.171(5)." Bystrom , 514 So.2d at 1074 (emphasis in original). Although it is possible for an amended complaint to relate back to the original complaint for purposes of the sixty-day jurisdictional time frame set forth in section 194.171(2), this is generally limited to situations in which the taxpayer makes a payment before the taxes become delinquent and files an amended complaint so reflecting. See, e.g., Cowart v. Perkins , 445 So.2d 654 (Fla. 2d DCA 1984).

Here, Faith Christian did not pay the 2016 taxes before they became delinquent, and it did not timely challenge the 2016 tax assessment. The lack of payment or a timely challenge prior to delinquency resulted in the lower tribunal's loss of subject matter jurisdiction. "[I]t is well established that a challenge concerning entitlement to a tax exemption is a challenge to an assessment of taxes, for purposes of section 194.171." Nikolits , 92 So.3d at 301. "A timely challenge is therefore necessary to satisfy the jurisdictional requirement of that section." Nikolits v. Ballinger , 736 So.2d 1253, 1255 (Fla. 4th DCA 1999).

The petition for writ of prohibition is granted. In accordance with section 194.171, Florida Statutes, the lower tribunal is directed to dismiss the Respondent's challenge to the 2015 and 2016 tax years.

PETITION GRANTED .

Lewis, Bilbrey, and M.K. Thomas, JJ., concur.

      Faith Christian's amended complaint was filed in the circuit court on January 13, 2017. At a hearing on April 17, 2017, Faith Christian made an ore tenus motion for leave to file an amended complaint. The court granted the motion at that hearing. An amended complaint is "deemed filed as of the date the motion for leave to amend was filed." Russ v. Williams , 159 So.3d 408, 409 n.1 (Fla. 1st DCA 2015) (citing Rayner v. Aircraft Spruce-Advantage, Inc. , 38 So.3d 817, 819 (Fla. 5th DCA 2010) ). Thus, we deem the amended complaint to have been filed on April 17, 2017.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Brian M. CASEY, Petitioner, v. Julie L. JONES, Secretary, Florida Department of Corrections, Respondent.
    No. 1D18-2228
    District Court of Appeal of Florida, First District.
    August 1, 2018
    Brian M. Casey, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee; Kenneth S. Steely, General Counsel, Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus, which seeks a belated appeal of an order entered in a civil proceeding, is denied. See Powell v. Fla. Dep't of Corr. , 727 So.2d 1103 (Fla. 1st DCA 1999).

Wetherell, Bilbrey, and M.K. Thomas, JJ., concur.


text:
    Lucas Anthony ROBERTS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1888
    District Court of Appeal of Florida, First District.
    August 7, 2018
    Lucas Anthony Roberts, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal seeking an appeal of the order dismissing defendant's amended motion for postconviction relief, rendered January 23, 2018, is denied on the merits. Insofar as Petitioner appears to also seek a belated appeal of the denial of his original motion for postconviction relief, this disposition is without prejudice to Petitioner filing a separate petition for belated appeal, which shall include appropriate facts constituting entitlement to a belated appeal of this order. See Fla. R. App. P. 9.141(c)(4)(F).

Wetherell, Bilbrey, and M.K. Thomas, JJ., concur.


author: Bilbrey, J.

text:
    Cedric R. HUTCHINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4787
    District Court of Appeal of Florida, First District.
    August 7, 2018
    Cedric R. Hutchinson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Frank X. Moehrle, Jr. and Amanda Stokes, Assistant Attorneys General, Tallahassee, for Appellee.
   Bilbrey, J.

Cedric R. Hutchinson challenges the dismissal of his petition for a writ of habeas corpus. By this petition, Hutchinson challenged his conviction for aggravated battery, a conviction obtained in Hillsborough County. The circuit court in Calhoun County dismissed the petition as "unauthorized." While the premise of Hutchinson's petition was incorrect - that a motor vehicle cannot be a deadly weapon under the aggravated battery statute - the circuit court should have transferred the petition to Hillsborough County in the Thirteenth Circuit for its consideration of the petition. See Torres v. State , 208 So.3d 831 (Fla. 1st DCA 2017) ; Baker v. State , 164 So.3d 38 (Fla. 3d DCA 2015).

In Torres and Baker , the petitioner challenged the sufficiency of the charging document. These cases are therefore distinguishable from the case on which the trial court relied, Gill v. Jones , 204 So.3d 459 (Fla. 4th DCA 2016), which held that a habeas petition was unauthorized and hence subject to dismissal because the petitioner pursued post-conviction relief in the wrong court). See also James v. Jones , 244 So.3d 352 (Fla. 1st DCA 2018) (holding dismissal of habeas petition appropriate when petitioner is seeking post-conviction relief available under rule 3.850, Florida Rules of Criminal Procedure ).

Accordingly, the order of dismissal is vacated, and the cause is remanded to the circuit court with the instruction that the petition be transferred to the circuit court for Hillsborough County.

B.L. Thomas, C.J., and Osterhaus, J., concur.

      See Clark v. State , 783 So.2d 967 (Fla. 2001) ; V.A. v. State , 819 So.2d 847 (Fla. 3d DCA 2002).


author: PER CURIAM.

text:
    Robert H. MITCHELL, Jr., as Personal Representative of the Estate of Robert H. Mitchell, Appellant, v. John E. LEMIEUX, Individually, as Personal Representative of the Estate of Curtis F. Mitchell and as Trustee of the Curtis F. Mitchell Living Trust, Richard F. Mitchell and Janet Mitchell Wilson, Appellees.
    Case No. 5D17-1585
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 10, 2018
    Michael Kangas, of BaumannKangas Estate Law, Tampa, for Appellant.
    Patrick A. McGee, of McGee & Powers, P.A., Orlando, for Appellee, John E. Lemieux, Individually, as Personal Representative of the Estate of Curtis F. Mitchell and as Trustee of the Curtis F. Mitchell Living Trust.
    No Appearance for other Appellees.
   PER CURIAM.

AFFIRMED. See Richardson v. Everbank, 152 So.3d 1282, 1287-88 (Fla. 4th DCA 2015) (holding appellate court cannot reweigh evidence considered by trial court; instead, appellate court can only decide whether competent, substantial evidence exists to support trial court's decision).

PALMER and ORFINGER, JJ., and MUNYON, L.T., Associate Judge, concur.


text:
    Elisha THOMAS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0664
    District Court of Appeal of Florida, First District.
    August 8, 2018
    Elisha Thomas, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

B.L. Thomas, C.J., and Rowe, and M.K. Thomas, JJ., concur.


author: Per Curiam. Winokur, J., concurring.

text:
    Cynthia Proctor BEDELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1252
    District Court of Appeal of Florida, First District.
    August 10, 2018
    Dustin Dewrell, Shalimar, for Appellant.
    Pamela Jo Bondi, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DENIED .

Ray and Bilbrey, JJ., concur; Winokur, J., concurs with opinion.

Winokur, J., concurring.

The State argues that the opinion should be clarified to dispel any suggestion that "a urine test for alcohol is available or even necessary before consent to a blood test is upheld." According to the motion, under section 316.1932(1)(c) the State must show that administration of a urine test was impractical or impossible, thus supporting a blood draw, only when the officer has reason to believe that the suspect was under the influence of a controlled substance . When the officer believes the suspect was under the influence of alcohol , as here, the State must only show that administration of a breath test was impractical or impossible before resorting to a blood draw, according to the motion. This is because, the motion claims, no urine test can detect the amount of alcohol in the blood stream, so the Legislature must have meant to limit urine tests in this context to suspicion of driving under the influence of controlled substances. The State supports this contention with citations to circuit court opinions, as well as the Florida DUI Handbook.

I agree that clarification on this point is unnecessary, for two reasons. First, the question of whether a urine test was impractical or impossible before police could resort to a blood draw was always part of this case. If in fact the State was not required to prove this point, that suggestion did not appear here. Second, it is not clear that section 316.1932(1)(c) makes the distinction that the State asserts in its motion. Whether such a distinction exists will have to wait upon another case, one where this issue is properly before the Court.


author: PER CURIAM. WOLF, J.,

text:
    Eddie RILEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-0802.
    District Court of Appeal of Florida, First District.
    Oct. 22, 2008.
    Eddie Riley, pro se, Petitioner.

      Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Eddie Riley presents a timely claim of ineffective assistance of appellate counsel. We find no merit to petitioner’s assertion that appellate counsel should have presented an argument that the trial court erred in denying his motion to suppress statements made to the police. We conclude, however, that appellate counsel was ineffective for failing to raise an issue of reversible error in the jury instructions. A large portion of our analysis is predicated upon the supreme court’s holding in State v. Abreau, 363 So.2d 1063 (Fla.1978), that the court’s failure to instruct on an offense one step removed from the charged offense constitutes per se reversible error. In light of recent supreme court precedent, however, it is unclear whether the reasoning behind this precedent is still valid. We, therefore, also certify a question of great public importance concerning the continuing validity of the holding in Abreau.

Riley was charged in Count I of an amended information with capital sexual battery committed between November 1, 2002, and May 1, 2003, in violation of section 794.011(2)(a), Florida Statutes. The matter proceeded to trial, and as to Count I, defense counsel requested that the jury be instructed on simple battery as a lesser included offense. The trial court denied that request, opining that simple battery was not a lesser included offense because it requires a touching against the will of the victim, whereas sexual battery committed on a victim under 12 does not require a lack of consent, nor was lack of consent alleged in the amended information. As a consequence, the jury was instructed only on the charged offense and attempted capital sexual battery, and returned a verdict finding petitioner guilty as charged on Count I.

As the state now concedes, the trial court’s reasoning in denying the request for an instruction on battery was erroneous. See Khianthalat v. State, 935 So.2d 583 (Fla. 2d DCA 2006), approved, 974 So.2d 359 (Fla.2008) (in a prosecution for sexual battery on a child under 12, lack of consent is always an element because of the conclusive presumption that a child that age cannot consent, and thus the offense always includes simple battery as a necessarily included offense); see also Caulder v. State, 500 So.2d 1362 (Fla. 5th DCA 1986) (simple battery is a necessarily lesser included offense of capital sexual battery). Because simple battery was a necessarily lesser included offense, the trial court had no discretion but to grant defense counsel’s request. See State v. Wimberly, 498 So.2d 929 (Fla.1986); King v. State, 911 So.2d 857 (Fla. 1st DCA 2005). The failure to give a requested instruction on a lesser included offense only one step removed from the offense charged is per se reversible error, not subject to a harmless error analysis. See State v. Abreau, 363 So.2d at 1063; Johnson v. State, 695 So.2d 787 (Fla. 1st DCA 1997).

While acknowledging the trial court erred in denying the requested instruction, the state relies on authorities recognizing that the failure to instruct on a lesser included offense two steps or more removed from the offense for which the defendant is convicted is harmless error. Abreau, 363 So.2d at 1063; Crespo v. State, 647 So.2d 295 (Fla. 3d DCA 1994). According to the state, these authorities dictate that the error here was harmless and appellate counsel cannot be faulted for failing to raise it because lewd or lascivious molestation of a child under 12, a violation of section 800.04(5)(b), is the next-step removed lesser included offense of capital sexual battery. Thus, the state reasons that simple battery, a misdemeanor, is more than one-step removed from capital sexual battery and any error in failing to instruct the jury on simple battery was harmless. We find no merit to this contention.

Lewd or lascivious molestation is not a necessarily lesser included offense of capital sexual battery, and under the law as it existed prior to the 1999 amendment to section 800.04, it likewise was not a permissive lesser included offense of any form of sexual battery. See Welsh v. State, 850 So.2d 467 (Fla.2003). For post-1999 offenses, lewd or lascivious battery of a child between 12 and 15 under section 800.04(4) may be a permissive lesser included offense of sexual battery. See Williams v. State, 957 So.2d 595 (Fla.2007). However, unlike lewd or lascivious battery of a child between 12 and 15, lewd or lascivious molestation of a child under 12 requires that the touching be “in a lewd or lascivious manner.” See § 800.04(5), Fla. Stat. Thus, lewd or lascivious molestation is not a permissive lesser included offense of capital sexual battery where, as here, the information does not allege that the touching was in a lewd or lascivious manner. See Garcia v. State, 976 So.2d 676 (Fla. 2d DCA 2008).

The foregoing notwithstanding, even if lewd or lascivious molestation was a potential lesser included offense here, the simple fact is that the jury was not instructed on that offense. Had it been so instructed without objection, the trial court’s error in failing to give a simple battery instruction might be subject to a harmless error analysis. See Caulder, 500 So.2d at 1365-66 (the failure to instruct on simple battery as a necessarily lesser included offense of capital sexual battery is harmless where the jury was instructed without objection, albeit erroneously, on lewd assault as a lesser included offense). However, the Abreau “step” analysis should only be undertaken where the instruction that was given and the omitted instruction relate to a lesser included offense. See State v. Bruns, 429 So.2d 307, 309 (Fla.1983); Overway v. State, 718 So.2d 308, 311 n. 4 (Fla. 5th DCA 1998) (harmless error test in Abreau, does not apply where jury was not instructed on the next lesser offense). As to Count I, the jury was instructed only on the charged offense and attempt, and as the court observed in Bruns, an attempt to commit the charged offense does not constitute a “step” under Abreau. Simple battery was therefore the lesser offense one-step removed from the charged offense in Count I, and the trial court’s error in denying defense counsel’s request for an instruction on that offense was not subject to a harmless error analysis. Because per se reversible error occurred, appellate counsel’s failure to pursue this issue constituted a substantial deficiency that materially prejudiced petitioner.

The sole remaining issue concerns the sort of relief Riley should be granted. Where appellate counsel is found to be ineffective, an appropriate remedy is to grant a new appeal limited to the issue overlooked by original counsel. That remedy is apt where, for example, a review of the record as a whole is necessary in order to assess whether a particular error can be deemed harmless, or whether an error is fundamental in nature. See, e.g., Mohr v. State, 927 So.2d 1031 (Fla. 2d DCA 2006); York v. State, 891 So.2d 569 (Fla. 2d DCA 2004). However, where a second appeal would be redundant or unnecessary, it is appropriate to simply grant petitioner the relief to which he would be entitled had the issue been raised in the original appeal. See, e.g., Grimsley v. State, 967 So.2d 1132 (Fla. 2d DCA 2007); Jones v. State, 964 So.2d 855 (Fla. 2d DCA 2007); Evans v. State, 904 So.2d 638 (Fla. 1st DCA 2005). In this case, whether the error is fundamental is not in question, the harmless error doctrine is not applicable, and we can discern no other reason why a second appeal would be necessary.

We recognize, however, as set out in Judge Wolfs concurring opinion, that the supreme court has demonstrated a trend to limit the concept of per se reversible error. We, therefore, certify the following question to be one of great public importance:

BASED ON THE REASONING OF GALINDEZ V. STATE, 955 So.2d 517 (Fla.2007), MAY A COURT FIND THAT THE FAILURE TO INSTRUCT THE JURY ON THE NEXT LESSER INCLUDED OFFENSE CONSTITUTES HARMLESS ERROR?

Accordingly, the petition alleging ineffective assistance of appellate counsel is GRANTED, petitioner’s conviction and sentence for Count I are REVERSED, and the matter is REMANDED for a new trial as to that count.

BARFIELD and PADOVANO, JJ., concur; WOLF, J., concurs with opinion.

WOLF, J.,

concurring.

The majority opinion mandates that appellant receive a new trial because the harmless error rule cannot be applied where the trial court fails to instruct the jury on the next lesser included offense from the offense for which the defendant was convicted. The opinion correctly concludes that the harmless error analysis of State v. Abreau, 363 So.2d 1063 (Fla.1978), is inapplicable in this case because the offense is only one step removed from the primary offense. The rationale for not applying the harmless error test in this situation is that it deprives the defendant of the right to a jury pardon.

Although regularly criticized, the concept of a “jury pardon” seems to remain firmly entrenched in Florida law, at least insofar as it relates to determining whether an error is per se reversible on direct appeal. In Sanders v. State, 946 So.2d 953, 958 (Fla.2006), which held that a post-conviction claim that trial counsel was ineffective for failing to request an instruction on a necessarily lesser included offense was subject to summary dismissal because the defendant could not establish prejudice, the court nonetheless noted that:

[Djespite their suspect pedigree, jury pardons have become a recognized part of the system; so much so that, in direct appeals, “[t]he failure to instruct on the next immediate lesser included offense (one step removed) constitutes error that is per se reversible.” Reddick, 394 So.2d [417] at 418. Such a standard is appropriate on direct review because “it would be difficult for an appellate court to conclude beyond a reasonable doubt that a jury in a particular case, given the opportunity, would not disobey the law and grant a pardon.” Sanders, 847 So.2d [504] at 507 (quoting Hill, 788 So.2d [315] at 319).

Accordingly, I am constrained to agree with the majority concerning the result in this case. In my opinion, however, in light of Galindez v. State, 955 So.2d 517 (Fla.2007), the failure to instruct on the lesser included offense should be harmless where no reasonable jury could have returned a verdict for the lesser included offense. I would, therefore, certify the following question as one of great public importance:

BASED ON THE REASONING OF GALINDEZ V. STATE, 955 So.2d 517 (Fla.2007), MAY A COURT FIND THAT THE FAILURE TO INSTRUCT THE JURY ON THE NEXT LESSER INCLUDED OFFENSE CONSTITUTES HARMLESS ERROR WHERE NO REASONABLE JURY COULD HAVE RETURNED A VERDICT FOR THE LESSER OFFENSE?

My question differs from the majority’s as I recognize that this is a case where no reasonable jury could have found the defendant guilty of simple battery. This is, therefore, the classic case to recede from the ill-advised holding of Abreau.

Appellant was found guilty of sexual battery on a victim under 12 (capital sexual battery). He now claims his appellate counsel was ineffective for failing to assert that the trial court erred by not instructing the jury on simple battery. The undisputed facts show that appellant repeatedly molested his girlfriend’s two daughters by fondling and putting his fingers into their vaginas. Appellant gave an inane version of these events, saying he was inspecting the girls’ breasts and vaginas for breast cancer and to determine if they were virgins. Appellant admitted to the police that he conducted numerous inspections. The mother testified that she never gave appellant the right to conduct these inspections. No reasonable jury would have issued a jury pardon in this case and returned a verdict of simple battery.

This case demonstrates the very folly in having an inflexible per se reversible error rule and not allowing courts to consider the circumstances of a particular case to determine whether harmful error occurred.

The Florida Supreme Court has begun to recede from the per se reversible error doctrine in other circumstances. See State v. Schopp, 653 So.2d 1016 (Fla.1995) (Richardson discovery violations are no longer per se reversible). The Schopp decision reflects a recognition that the mere fact that it may be difficult to determine if error is harmless in certain circumstances does not justify a reversal (with all its implications, including lost witnesses, unnecessary trauma for victims, and additional burdens on an overburdened judicial system) where it can be determined, beyond a reasonable doubt, that the error did not affect the outcome of the case.

Recently, in Galindez, 955 So.2d at 517, the supreme court determined that violations of the Apprendi and Blakely doctrines were subject to the harmless error analysis. Specifically, the court found any error in the trial court’s failure to allow a jury to make a determination concerning victim injury points for penetration was harmless where no reasonable jury would have returned a verdict finding there was no penetration of the victims. Id. at 524. In Galindez, 955 So.2d at 523, the supreme court cited to Delvalle v. State, 653 So.2d 1078, 1079 (Fla. 5th DCA 1995), where the Fifth District held that an error regarding a lesser included offense which deprived the defendant of a jury pardon could be harmless because, given the evidence at trial, it was inconceivable that any rational jury could have returned a verdict finding that there was no firearm involved in the commission of the charged offenses. While Delvalle involves a slightly different set of circumstances, it indicates a willingness to apply the harmless error doctrine to a somewhat similar set of circumstances.

If a harmless error analysis can be applied to the failure to allow a jury to determine whether penetration took place in Galindez, there appears to be no rational basis for not allowing the same analysis to take place in the instant case.

Further, while it is my belief that no rational jury could have returned a verdict of simple battery in this case and this should allow us to affirm, I am cognizant of precedent and would ask the Florida Supreme Court to readdress this important issue.

      . Riley's counsel on direct appeal filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The fact that Riley could have raised the jury instruction issue in a pro se brief does not foreclose him from now seeking relief on a claim of ineffective assistance of appellate counsel. See Jackson v. State, 946 So.2d 83 (Fla. 4th DCA 2006); Barber v. State, 918 So.2d 1013 (Fla. 2d DCA 2006). Likewise, the fact that the court could have identified the error at issue in the course of its independent Anders review does not preclude his present claim.

      . The supreme court appears comfortable with this standard. See Galindez, 955 So.2d at 523, 524; see also Johnson v. State, 994 So.2d 960 (Fla. 2008).


text:
    Lee A. LEWIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-585.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 2009.
    Lee A. Lewis, in proper person.
    Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

Lee A. Lewis appeals the denial of his motion for post-conviction relief after an evidentiary hearing. We affirm the trial court’s ruling in all respects, except Lewis’ claim number 10 that counsel was ineffective for failing to challenge a corrupted witness at trial. The State concedes that under Spera v. State, 971 So.2d 754 (Fla.2007), this claim was legally insufficient. The proper procedure is to strike the claim with leave to amend. Lewis should therefore have an opportunity to amend this claim.

Affirmed in part, and reversed in part.


text:
    Donell WOODS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1480.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 2009.
    Donell Woods, in proper person.
    Bill McCollum, Attorney General, for appellee.

      Before COPE and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We affirm the revocation of probation and the sentence, but remand for correction of the order revoking probation to add lower court case numbers F04-21975B, F04-29604B, and F04-29632. In addition, the court shall enter sentencing orders in case numbers F04-21975B, F04-29604B, and F04-29629 in accordance with its oral pronouncement. The court shall also enter a corrected sentencing order in case number F04-29632. The sentencing orders shall provide that all of the sentences run concurrently with each other and that the defendant is awarded credit for time served in each of the four cases as ordered at the sentencing hearing.

Affirmed and remanded with directions.


author: WELLS, Judge.

text:
    AVVA-BC, LLC, Appellant, v. Alan AMIEL a/k/a Allen Ameil d/b/a Vanana 1, Vanana 2 and Vanana 3, Appellee.
    No. 3D09-550.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 2009.
    Rehearing Denied Dec. 1, 2009.

      Assouline & Berlowe, Eric N. Assouline and Peter A. Koziol, Dania Beach, for appellant.
    Gary S. Glasser, Miami, for appellee.
    Before WELLS, LAGOA, and SALTER, JJ.
   WELLS, Judge.

AWA-BC, LLC (“AWA”) appeals from a summary final judgment rescinding an agreement between it and Alan Amiel d/b/a Vanana 1, Vanana 2 and Vanana 3. We reverse because no legal basis exists for rescinding the parties’ agreement and because disputed material fact issues exist on AWA’s breach of contract claim.

This action arises from a single page, hand-written agreement for the sale of AWA’s business and the transfer of AWA’s lease of the premises from which the business was being conducted. That agreement, in its entirety, provided:

Agreement

1 AWA USA agreed to transfer lease of 2308 N.W. 5th Ave to Aan Aniel at the price of 80.000. provided lease is good till 2013.

2 Aan Amiel will pay for the lease the amount of 80.000 in payment as scheduled below

3 5.000 $ today 1-8-07 paid 15.000 $ on signing of the transfer cash on 1-9 5.000 $ evry [sic] 1st of the month starting February 1st 2007

4 AWA will transfer the lease and the deposit and location on or before Jan 10th 07.

5 AWA will transfer the location to Aan includ[ing] all the phone system — alarm—all cameras and equip. A1 track light & fixture[s] all brackets and fixture[s] against the wall in entrance. Shelving in back room and side room all counters in front & etc.

Signed on 1-9-07

Payment of 20.000 cash was given to Yehuda

Signed: [Alen Amiel] Signed [Not legible by AWA]

The day after this agreement was signed, Amiel, without receiving an assignment of the lease or any approval of its occupancy by AWA’s landlord, moved into AWA’s space and began to conduct business as contemplated by the agreement. For the next seven months, Amiel operated its business from AWA’s space, paying rent directly to AWA’s landlord. In August 2007, Amiel stopped paying rent. AWA promptly gave notice to Amiel to vacate the premises and started paying the rent. AWA then brought suit to evict Amiel from the premises and for damages for breach of the parties’ January 8th agreement. The complaint subsequently was amended to seek attorney fees related to the eviction process, to add a count for recovery of an amount allegedly due on another unpaid debt in the amount of $9,441, and to add a count for unjust enrichment.

Amiel counterclaimed for rescission, claiming that AWA had breached the parties’ agreement by failing to secure the landlord’s approval of AWA’s “assignment” of its lease to Amiel :

4. Pursuant to the agreement AWA was required to assign the premises[’] lease to Amiel (which was the primary asset purchased), and obtain the Master Landlord’s consent to the assignment, said consent constituting a condition precedent to the transfer of the lease from AWA to Amiel.
6. AWA failed to obtain the consent of the Master Landlord to the assignment of the Lease within a reasonable time. Moreover, Amiel learned that AWA in fact concealed the Amiel/AWA agreement from the Master Landlord all together [sic] by lying to it and advising that Amiel was part of AWA.
7. Based on the foregoing, Amiel is entitled to rescind the parties’ agreement and be restored to his former position, namely, all purchase money should be returned to Amiel and he should be refunded all funds paid to the Master Landlord.

In May 2008, Amiel moved for summary judgment on its counterclaim for rescission. That motion claimed that the transfer of AWA’s lease to Amiel was an important part of the parties’ agreement and that, because “AWA immediately breached the Purchase Agreement by failing to obtain the landlord’s consent to the assignment of the Lease on 1/10/07 or within a reasonable time thereafter and remained in breach throughout Amiel’s occupancy of the Space,” Amiel was “entitled to a refund of the money paid AWA subject to such amounts as are required to restore the parties to the 1/9/07 status quo.” AWA also moved for summary judgment, claiming that the failure to secure an assignment from its landlord was immaterial because the landlord was on notice of Amiel’s occupancy and was content to permit Am-iel to occupy the premises as long as the rent was being paid. AWA also claimed that Amiel was not harmed as a consequence of its failure to secure an assignment where Amiel vacated the premises and abandoned the business, not because the landlord was demanding that he leave or because the rent was not being paid, but because he was not making enough money to pay the rent.

On February 2, 2009, the lower court granted summary judgment in favor of Amiel on his rescission counterclaim concluding that AWA’s failure to secure the landlord’s consent to assignment of the lease justified rescission of the parties’ agreement:

AWA’s failure to obtain landlord consent also constituted a breach of a material term of the purchase agreement which continued throughout Amiel’s occupancy of the premises. Amiel waited for eight month[s] for the lease to be transferred to him relying on [AWA’s] continuing promises that it was “coming” and provided AWA with ample opportunity to cure its breach. Amiel was justified in moving out and demanding his money back.[]
In order to grant rescission, both parties must be restored to their pre-con-tract status quo.

(Footnote omitted) (citations omitted). Based on Amiel’s stipulations that he owed AWA money for unpaid debt and for the period he occupied the premises without paying rent, the lower court entered summary judgment in AWA’s favor on its claims for unpaid debt and unjust enrichment. The lower court dismissed AWA’s claim for attorney’s fees related to the eviction process, finding no merit to the claim.

For the following reasons, we reverse that portion of the final summary judgment rescinding the agreement between the parties and remand for further proceedings on AWA’s breach of contract claim.

We reverse because there is no legal basis to support rescission of this agreement. “The rule is well settled in this country that cancellation or rescission will not be granted for breach of contract, in the absence of fraud, mistake, undue influence, multiplicity of suits, cloud on title, trust, or some other independent ground for equitable interference.” Richard Bertram & Co. v. Barrett, 155 So.2d 409, 411-12 (Fla. 1st DCA 1963) (citing Int’l Realty Assocs. v. McAdoo, 87 Fla. 1, 99 So. 117 (1924)); Bass v. Farish, 616 So.2d 1146, 1147 (Fla. 4th DCA 1993) (“Courts of equity will rescind an instrument upon fraud, accident or mistake.”). While an agreement may be rescinded for fraud relating to an existing fact, as a general rule, rescission will not be granted “for failure to perform a covenant or promise to do an act in the future, unless the covenant breached is a dependent one.” Steak House, Inc. v. Barnett, 65 So.2d 736, 737 (Fla.1953). “A covenant is dependent where it goes to the whole consideration of the contract; where it is such an essential part of the bargain that the failure of it must be considered as destroying the entire contract; or where it is such an indispensable part of what both parties intended that the contract would not have been made with the covenant omitted.” Id. at 738.

No fraud, mistake, undue influence, multiplicity of suits, cloud on title, trust, or other independent ground for equitable interference has been alleged in this ease. And, while Amiel claims that assignment of the lease was central to its agreement with AWA, Amiel admitted in its answer that the $80,000 it agreed to pay to AWA was not just for the privilege of assuming AWA’s lease, but also for the purpose of purchasing AWA’s business. Assignment of the lease was not, therefore, the “whole consideration” for this agreement. Nor did AWA’s failure to secure some form of express approval from the landlord of Am-iel’s tenancy destroy the entire AWA/Am-iel contract. Amiel did, in fact, occupy the premises and conduct its business without interference from the landlord or anyone else for seven months. There is no indication that Amiel was forced to vacate the space or abandon its business because this condition had not been satisfied. And, there is no evidence that the landlord’s approval of Amiel’s tenancy was such an “indispensable part of what both parties intended that the contract would not have been made with the covenant omitted.” Id. (emphasis added).

Even if this condition was so indispensable that no contract would have been made without it, Amiel’s actions in accepting the benefits of this contract for seven months after learning that landlord approval had not been (and was not being) obtained, constituted a waiver of the right to rescind. As this Court long ago confirmed, where a party seeking rescission has discovered grounds for rescinding an agreement and “either remains silent when he should speak or in any manner recognizes the contract as binding upon him, ratifies or accepts the benefits thereof, he will be held to have waived his right to rescind.” Steinberg v. Bay Terrace Apartment Hotel, Inc., 375 So.2d 1089, 1092 (Fla. 3d DCA 1979) (quoting Rood Co., Inc. v. Bd. of Pub. Instruction of Dade County, 102 So.2d 139, 141 (Fla.1958)). In short, because Amiel’s counterclaim sounds solely in breach of contract, the judgment rescinding its agreement with AWA must be reversed.

It also must be reversed because there is a factual dispute as to whether AWA breached this agreement. See, e.g., Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000) (“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law.”); Martin v. Adorno & Yoss, L.L.P., 983 So.2d 744, 745 (Fla. 3d DCA 2008) (finding summary judgment was inappropriate where issues of material fact remained to be resolved); Raul Distribs., Inc. v. Fast Air Carrier, Ltd., 450 So.2d 598, 599 (Fla. 3d DCA 1984) (“It is axiomatic that summary judgment is inappropriate where the record reflects the existence of conflicting issues of material fact.”). AWA claims that, while it did not secure the landlord's written approval to assign its lease to Amiel, the landlord was aware of Amiel’s tenancy and acquiesced in it. It supports this argument with evidence that: (1) in January 2007, AWA told the landlord’s property manager, its agent, about AWA’s agreement with Am-iel and that Amiel would be the tenant for the premises going forward; (2) upon assuming occupancy of the premises, Amiel changed the signage outside the store, putting the world on notice that there was a new occupant in the store; (3) after taking control of the business and premises, Am-iel noticeably changed the inventory from that previously sold by AWA; and (4) Amiel changed the personnel at the store, all of which was visible to the landlord’s property manager, who often frequented the store. Amiel also made rent payments directly to the landlord. AWA claims this evidence confirms knowledge and acquiescence on the landlord’s part.

Amiel, of course, disputes these facts, claiming that AWA misrepresented its relationship with Amiel to the landlord, telling the landlord that Amiel was “part of AWA.” One of AWA’s principals plainly denies any such representation. Amiel also argues that a change in signage, inventory, and personnel cannot be viewed as knowledge of Amiel’s tenancy and acquiescence to it on the landlord’s part. There is, therefore, a factual dispute regarding whether the landlord acquiesced to Amiel’s tenancy, an issue that lies at the heart of this case which cannot be resolved on summary judgment.

Accordingly, that portion of the final summary judgment rescinding the agreement between the parties is reversed, and the cause remanded for further proceedings on AWA’s breach of contract claim.

Reversed and remanded for further proceedings consistent with this opinion.

      . The space that Amiel was to occúpy under the parties’ agreement was leased by AWA for a period of seven years, from March 1, 2005 to February 28, 2013. That lease authorized assignment but only with the landlord’s consent:
      16. RELETTING AND CANCELLATION FEE. Tenant my [sic] request in writing the consent of the Landlord to cancel, assign the Lease contract or to sublet. Subletting and assigning this Lease Contract will be permitted only with the prior written consent of the Landlord. In the event of subletting or assignment, the Landlord reserves the right to approve the persons or persons seeking to sublet or take an assignment of this Lease Agreement and to require a separate Security Deposit.

      . This determination was made over an affidavit in which AVVA's representative averred that Amiel did not request the assignment until after he had stopped paying rent and AWA told him that it was going to sue to evict.

      . Moreover, even if AWA breached the agreement because the landlord had no knowledge of Amiel’s tenancy and therefore did not agree to it, it appears that Amiel may not have suffered any harm from that breach. The record is that Amiel voluntarily abandoned the premises; it was not forced to leave because the landlord refused to approve its tenancy. Thus, it appears that Amiel may have suffered no compensable injury as a consequence of any failure to secure the landlord’s written consent. See Rollins, Inc. v. Butland, 951 So.2d 860, 876 (Fla. 2d DCA 2006) ("The elements of an action for breach of contract are: (1) the existence of a contract, (2) a breach of the contract, and (3) damages resulting from the breach.”); Knowles v. C.I.T. Corp., 346 So.2d 1042, 1043 (Fla. 1st DCA 1977) ("It is elementary that in order to recover on a claim for breach of contract the burden is upon the claimant to prove by a preponderance of the evidence the existence of a contract, a breach thereof and damages flowing from the breach.”). Even if there are damages, they are subject to mitigation.


author: SCHWARTZ, Senior Judge.

text:
    BELL CARE NURSES REGISTRY, INC., Appellant, v. CONTINENTAL CASUALTY COMPANY d/b/a CNA Insurance Companies, Appellee.
    No. 3D08-2226.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2009.
    Rehearing and Rehearing En Banc Denied Jan. 15, 2010.
    Bernstein, Chackman, Liss, and Rose and Neil Rose, Hollywood; Steven M. Dunn, for appellant.

      Hogan & Hartson and Laura Besvinick, Miami, for appellee.
    Before RAMIREZ, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

An ever-diminishing few of us remember Alan King’s story about a homeowner with a fire and theft policy who made a claim when his house burned down. He was met with the company’s denial of coverage on the ground that he needed instead a fire or theft policy and that, as written, the policy applied only if he were robbed while his house was on fire.

This case shows that things never really change. The insured bought and for thirteen years faithfully paid the semi-annual premiums for a “Home Health Care Policy” which covered home “primary” services, those of a registered nurse or the like and “secondary” services, including those of non-professional providers such as a home health aide. When, however, she needed and received only the latter kind, she was denied payment, successfully at first, upon the assertion that she had to have both. Fortuitously enough, however, Florida law specifically outlaws the use of that particular contrivance. We do no more than follow the legislature in holding that the insurer cannot get away with it.

We now revert to a traditional, formulaic, non-discursive discussion of the case before us.

I.

Bell Care Nurses Registry, Inc., appeals from a summary judgment entered in favor of Continental Casualty based on the conclusion that home health aide services Bell provided to Continental’s insured, Jean Beckerman, were not covered under Beckennan’s “Home Health Care Policy.” We reverse.

Bell sued under an assignment from Beckerman, alleging that Continental failed to pay over $20,000 for the services Bell provided to Beckerman from June 30, 2005 to June 17, 2006. Bell asserted that it had been engaged by Beckerman and that the services it provided were covered under Beckerman’s long term care policy.

Continental answered denying coverage on the ground that the policy expressly provided coverage for “Secondary Services,” such as the services at issue, only where such services were received in a week in which at least one “primary” service was also received. The policy defined “Secondary Services” as “services provided by a medical social worker; occupational therapy; home health aide services; and homemaker services;” it defined “Primary Services” as “nursing care services provided by a registered nurse (RN), a licensed practical or vocational nurse (LPN or LVN); physical therapy; and speech therapy.” It is undisputed that Beckerman did not also receive at least one “primary” service during the same week as the “secondary” services in question.

The policy, first issued to Beckerman in 1990, provided:

HOME HEALTH CARE BENEFIT
If You receive Home Health Care Services in a Home Convalescent Unit, We will pay you a benefit equal to the amount of expenses incurred, but not to exceed the Maximum Amount for each Home Health Care Visit You receive. Benefits begin after the Elimination Period and are payable for the length of the Benefit Period. However, in order for benefits to be payable for Secondary Services such services must be received in a Week in which at least one Primary Service was received. Benefits need not be payable for such Primary Services.

The policy stated that it was: “GUARANTEED RENEWABLE FOR LIFE[,] PREMIUMS SUBJECT TO CHANGE,” and acknowledged:

If any provision of this policy is in conflict with the statutes of the state in which You reside on the policy Effective Date, the provision is automatically amended to meet minimum requirements of the statute.

The policy contained a “1st renewal” date of 2/6/91, and continued in effect every six months thereafter.

Bell moved for judgment arguing its entitlement to payment based in part on section 627.94071(2), effective October 1, 1992, which specifically invalidates the policy clause upon which the insurer successfully relied below:

Minimum standards for home health care benefits
A long-term care insurance policy ... that contains a home health care benefit must meet or exceed the minimum standards specified in this section. The policy ... may not exclude benefits by any of the following means:
(2) Requiring that the insured or claimant first or simultaneously receive nursing or therapeutic services in a home setting or community setting before home health care services are covered.

(Emphasis added). Bell argued that since Beckerman’s policy had been “renewed” a number of times after the 1992 effective date of section 627.94071, the section applied in 2005 and 2006 when the services at issue were rendered. Continental maintained that application of the statute would amount to an unconstitutional impairment of contract. Although the trial court agreed with Continental, we agree with Bell.

II.

“It is generally held that the renewal of a contract of insurance constitutes the making of a new contract for the purpose of incorporating into the policy changes in the statutes regulating insurance contracts.” Metropolitan Prop. & Liab. Ins. Co. v. Gray, 446 So.2d 216, 218 (Fla. 5th DCA 1984); see May v. State Farm Mut. Auto. Ins. Co., 430 So.2d 999, 1001 (Fla. 4th DCA 1983) (“It is the law in this state that a contract of annually renewable insurance forms a new contract at each renewal for the purpose of incorporating into the contract the statutory provisions enacted after the creation of the original contract relationship.” (quoting Thieme v. Union Labor Life Ins. Co., 12 Ill.App.2d 110, 138 N.E.2d 857, 860 (1956))); see also Marchesano v. Nationwide Prop. & Cas. Ins. Co., 506 So.2d 410, 413 (Fla.1987) (“The general rule in Flori da that upon each renewal of an insurance policy an entirely new and independent contract of insurance is created [and] [a]n insurance policy is normally renewed upon the payment of a new premium.”); Adams v. Aetna Cas. & Sur. Co., 574 So.2d 1142, 1148 (Fla. 1st DCA 1991) (observing that “when each of the policies were renewed after October 1, 1982, it became a new contract required to conform to the newly-amended law, and [insurer’s] obligations and [insured’s] correlative rights regarding statutorily-required UM/UIM coverage necessarily became an inherent part of the renewal policy”); Landi v. Nationwide Mut. Fire Ins. Co., 529 So.2d 1170, 1171 (Fla. 2d DCA 1988) (observing that the policy at issue had been renewed after the enactment of certain statutory requirements and that “[t]he general rule in Florida is that upon each renewal of an insurance policy an entirely new and independent contract of insurance is created” (quoting Marchesano, 506 So.2d at 413)); see generally 12 J. Appleman, Insurance Law and Practice, § 7041, at 175-76 (1981) (observing “where an existing policy is renewed, although the results vary, the better rule is to regard the statute as applicable to the extended contract”). By the time Bell rendered the services at issue to Beckerman, section 627.94071 had been in effect for some thirteen years and her policy had been repeatedly “renewed” with full payment of all the premiums. Under the principle stated by these authorities, the statute therefore applies to the present controversy.

Continental relies on Moore v. Metropolitan Life Insurance Co., 33 N.Y.2d 304, 352 N.Y.S.2d 433, 307 N.E.2d 554 (1973), and Oates v. Equitable Assurance Society of the United States, 717 F.Supp. 449 (S.D.Miss.1988), for the contrary position that, properly considered, the policy was not subsequently “renewed,” but merely continued in effect from the date it was first issued. We find neither case persuasive. First, as we see it, Moore actually supports Bell’s claim. Considering the application of a statutory change to an insurance policy, Moore observed: “where, as here, an insurer has the absolute right to terminate a policy on its anniversary date or to change the insurance premium rate without the State’s consent, the policy is modified [to apply statutory changes] upon renewal of the policy.” Moore, 352 N.Y.S.2d 433, 307 N.E.2d at 557 (emphasis added). Continental relies on Moore ⅛ additional observation that “[wjhere, however, the insurer does not have the right to terminate the policy or change the premium rate without consent of the State, renewal, by the payment of premiums, merely continues in force the pre-existing policy, and statutes enacted subsequent to its original enactment cannot be applied.” Id.

But Beckerman’s policy “clearly” provided:

We can change the premium rate for the policy, but only if We give You 31 days prior written notice and We change the premium rate for everyone who has this policy form in Your policy rating group in Your state.

(Emphasis added). Because the decision to raise renewal rates was thus left in the hands of the insurer, so long as it provided its insured’s timely notification and treated holders of the same type of policies in the same manner, in accordance with Moore, no unconstitutional impairment of contract resulted from the application of section 627.94071 to Beckerman’s policy.

Oates essentially stands for no more than the proposition that “[wjhether the renewal of a policy of insurance constitutes a new and independent contract or whether it is instead a continuation of the original contract ‘primarily depends upon the intention of the parties as ascertained from the instrument itself.’ 18 Couch, § 68:40, at 41.” Oates, 717 F.Supp. at 452. While both the Oates policy and Mrs. Beckerman’s policy contained language identifying the policies as “GUAREN-TEED RENEWABLE FOR LIFE,” this pronouncement alone is not determinative. The Beckerman policy immediately thereafter alerted “PREMIUMS SUBJECT TO CHANGE,” and explained:

Payment of the First premium keeps your policy in force for the Policy Term. You may renew this policy for further periods by payment of the Renewal Premium, subject to Our right to change premium as described below.

(Emphasis added). The Policy Schedule clearly identified the “POLICY TERM” as “SEMI-ANNUAL,” and the claims portion of the policy clearly notified that premiums were “due at the start of each ‘Policy Term.’ ” While the Oates court concluded “it is clear that the parties contemplated one continuous contract of insurance and not separate successive contracts of one month each,” id., we see no such clear vision of one continuous contract in the agreement between Becker-man and Continental. Since, as we all know, insurance policy language must “ ‘be construed liberally in favor of the insured and strictly against the insurer,’ ” Flores v. Allstate Ins. Co., 819 So.2d 740, 744 (Fla.2002) (quoting State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1076 (Fla.1998)), we therefore conclude that the extensions of coverage were true “renewals,” within the legal meaning and with the legal consequences of that term.

We also point out that in first enacting the “Long-Term Care Insurance Act,” § 627.9401, Fla. Stat., in 1988, the legislature stated that it intended the Act to apply to “policies issued or renewed on or after [October 1, 1988].” Ch. 88-57, § 3, at 312, Laws of Fla. See Seaboard Air Line Ry. Co. v. Watson, 103 Fla. 477, 137 So. 719, 723 (1931) (quoting Burr v. Fla. E. Coast Ry. Co., 77 Fla. 259, 81 So. 464, 464 (1919)), where the Court stated:

In determining the legality and effect of a statutory regulation, the court should ascertain the legislative intent; and, if the ascertained intent will permit, the enactment should be construed and effectuated so as to make it conform to, rather than violate, applicable provisions and principles of the state and federal Constitutions, since it must be assumed that the Legislature intended the enactment to comport with the fundamental law.

III.

While application of the “renewal” principle is alone dispositive, a number of other points support our decision to reverse. First, we believe that the policy is both ambiguous and essentially misleading. The front page policy schedule identifying the “BENEFITS” provides:

POLICY SCHEDULE
$70.00 PER VISIT MAXIMUM AMOUNT
7 MAXIMUM VISITS PER WEEK
104 WEEKS (2 YEARS) MAXIMUM BENEFIT PERIOD
0 ELIMINATION PERIOD (NUMBER OF VISITS BEFORE BENEFITS BEGIN) IF PRIOR HOSPITAL OR NURSING FACILITY CONFINEMENT
5 IF NO PRIOR HOSPITAL OR NURSING FACILITY CONFINEMENT

Only in the subsequent “Home Health Care Benefit” section of this home health care policy was this critical requirement of paired services identified. Moreover, this key and determinative factor is not mentioned at all in the policy “EXCLUSIONS AND LIMITATIONS” section.

An insurer is required to make clear precisely what is excluded from coverage. Union Am. Ins. Co. v. Maynard, 752 So.2d 1266, 1268 (Fla. 4th DCA 2000). The requirement at issue was akin to an exclusion and as such, strict construction is appropriate. Mactown, Inc. v. Cont’l Ins. Co., 716 So.2d 289, 291 (Fla. 3d DCA 1998). As the Florida Supreme Court observed long ago, so long as an insurance contract is

drawn in such a manner that it requires the proverbial Philadelphia lawyer to comprehend the terms embodied in it, the courts should and will construe them liberally in favor of the insured and strictly against the insurer to protect the buying public who rely upon the companies and agencies in such transactions.

Hartnett v. Southern Inn. Co., 181 So.2d 524, 528 (Fla.1965). In addition, Continental’s failure to adhere to this principle is especially pernicious in this particular field. A person like Ms. Beekerman, making plans for the possible consequences of the infirmities of old age, is entitled to believe that she is buying protection from the common expenses of care such as the vital services of a home health aide and homemaker, described as “secondary” services in the policy, such as preparing her meals and helping her to the bathroom, so as to keep her out of the nursing home, and in her own. See Bergman v. Serns, 443 So.2d 130 (Fla. 3d DCA 1983), pet. for review dismissed, 450 So.2d 486, 488 (Fla.1984). It is wrong, as in this case, for her to be told that there is no such coverage, without unnecessary, professional “primary” service — only after the care has already been provided. The legislature’s enactment of the statute was undoubtedly based, in part, upon just such consideration.

In addition, this policy provision promotes the type of economic waste the law in general abhors. See Lee County Elec. Co-op. v. Marks, 501 So.2d 585, 587 (Fla.1987) (condemning economic waste and inefficiency resulting from utilities “racing to serve”); Fla. Dep’t of Citrus v. Griffin, 239 So.2d 577, 578 (Fla.1970) (observing the legislative desire to avoid economic waste in the citrus industry); Rabin v. Conner, 174 So.2d 721, 722 (Fla.1965) (recognizing legislation aimed at discouraging economic waste facing certain farm producers); Tropical Jewelers, Inc. v. Nationsbank, N.A. (South), 781 So.2d 392, 410 (Fla. 3d DCA 2000) (acknowledging UCC provision goal of “guarding] against economic waste”). The clause, requiring as it does that an insured employ an unneeded “primary” service in order to secure a needed and paid for “secondary” service, encouraged just such economic waste.

Finally, although we need not directly declare the policy provision at issue void as against public policy, it is highly likely that, for the reasons we have outlined, this is the case. See, e.g., Harris v. Gonzalez, 789 So.2d 405, 409 (Fla. 4th DCA 2001), where the court said:

The term “public policy” is not easily defined. “In substance, it may be said to be the community common sense and common conscience, extended and applied throughout the state to matters of public morals, public health, public safety, public welfare, and the like.” City of Leesburg v. Ware, 113 Fla. 760, 153 So. 87, 89 (1934); Neiman v. Galloway, 704 So.2d 1131 (Fla. 4th DCA 1998)(quoting Edwards v. Miami Transit Co., 150 Fla. 315, 7 So.2d 440, 442 (1942) (quoting Atlantic Coast Line R. Co. v. Beazley, 54 Fla. 311, 45 So. 761 (1907))) (‘[A] contract is not void, as against public policy, unless it is injurious to the interest of the public, or contravenes some established interest in society.’). The Harris/Gonzalez contract violates public policy because Dr. Gonzalez promised to refer his patients to EHI exclusively in return for fifty percent of the net corporate profits. This is precisely the type of financial incentive for a health care provider that the legislature determined is harmful to the public’s safety and welfare.

(Emphasis added). We consider the stratagem involved here just as unacceptable. And, again, its harmful nature is supported by the legislature’s enactment of section 627.94071, which, of course, specifically bars that result. See also Dade County Med. Ass’n v. Hlis, 372 So.2d 117, 119 (Fla. 3d DCA 1979) (“The non-applicability of the statutory privilege does not mean, however, that we may or should ignore the considerations of public policy which informed the enactment of the statute and of which we have spoken.”).

While it is true that

if a statute attaches new legal consequences to events completed before its enactment, the courts will not apply the statute to pending cases, absent clear legislative intent favoring retroactive application!;,]

Metro. Dade County v. Chase Fed. Hous. Corp., 737 So.2d 494, 499 (Fla.1999), that rule does not apply. Bell seeks to recover for services provided to the insured in 2005 and 2006. These dates of service did not occur and were not completed until many years after the 1992 creation of section 627.94071. Thus, in order to invalidate conditions of the Continental policy, we do not apply the statute retroactively.

IV.

Accordingly, we hold that Continental was required to comply with section 627.94071.Continental could not make Bell’s recovery for secondary services contingent on Beckerman’s concurrent use of primary services. The order under review is reversed, and the cause remanded for entry of judgment for Bell in the appropriate amount.

Reversed and remanded.

      . The trial judge was troubled by the recovery of benefits limited by the mandatory pairing of services, asking counsel for Continental “So you would have preferred to have Bell Care send somebody in each week and charge you and you get to pay more; is that right?” The judge followed with the question: "Does the legislature have a problem or would the government have a problem with Bell Care charging for medically unnecessary services? I would.” So would we. Moreover, we are cynical enough to speculate that if the insured had employed a "primary” provider she did not need in order to receive payment for secondary services she did, the carrier would refuse payment for both.


author: VILLANTI, Judge.

text:
    Ronald Ray SOLORZANO, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-5664.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 2009.

      Jackson S. Flyte, Regional Counsel, Second District, and Mark P. Brewer, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bar-tow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Ronald Ray Solorzano appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The postconviction court summarily denied seven of Solorzano’s nine grounds for relief and denied the remaining two grounds after an evidentia-ry hearing. We affirm in part, reverse in part, and remand for further proceedings.

Background

Solorzano was charged with one count of DUI manslaughter and three counts of DUI with serious bodily injury following events that occurred on March 9, 2003. The evidence at trial showed that Solorza-no had spent the afternoon and evening of March 9 at Gilligan’s Bar with a group of friends and co-workers. At some point in the evening, one of Solorzano’s co-workers, Ida D’Ettorre, became too drunk to drive and was feeling ill. Solorzano offered to drive Ms. D’Ettorre home. While doing so, Solorzano lost control of his truck, crossed the center median, and collided with four people on two motorcycles. One of the motorcyclists was killed; the other three suffered serious injuries.

Solorzano’s defense at trial was that he was not intoxicated when the accident occurred. He contended that he had had only two or three beers during his six or seven hours at Gilligan’s and that he had been eating during that time as well. He contended that he lost control of his truck only because Ms. D’Ettorre vomited on him while he was driving. He also contended that his blood alcohol level was due to his having taken Nyquil for a cold rather than due to his drinking at the bar. The jury apparently rejected these defenses, and it found Solorzano guilty as charged. The trial court sentenced Solor-zano to 23.14 years in prison followed by five years’ probation. This court affirmed Solorzano’s judgment and sentence on direct appeal. Solorzano v. State, No. 2D04-2061 (Fla. 2d DCA June 22, 2005).

Solorzano timely filed a motion for post-conviction relief, raising nine grounds for relief. The postconviction court summarily denied grounds one, four, five, six, seven, eight, and nine. It held an evidentiary hearing on grounds two and three, after which it denied those grounds as well. We affirm the denial of grounds one, two, three, and nine without further discussion. We also affirm the denial of grounds four and seven, but we write to explain our reasoning. As to ground five, we reverse and remand for reconsideration of this claim on its merits. Finally, as to grounds six and eight, we reverse and remand for further proceedings.

Ground Four

In ground four of his motion, Solor-zano alleged that his trial counsel was ineffective for failing to move to strike prospective juror Wasson, either peremptorily or for cause, after she stated during voir dire that she would want to hear “everything from everybody” before she made a decision. Solorzano alleged that this could be interpreted as Wasson placing the burden on the defense to come forward with testimony and evidence but that trial counsel never questioned Wasson about this. Solorzano alleged that he was prejudiced because there was a reasonable doubt that Wasson, who actually sat on his jury, would not be impartial if Solorzano introduced no evidence and therefore Was-son was unable to hear “everything from everybody.”

The postconviction court denied this claim, attaching the portions of the transcript of jury selection during which Was-son was questioned. The postconviction court noted that these excerpts established that Wasson was not actually biased against Solorzano, and thus the court concluded that Solorzano could not state a facially sufficient claim of juror bias under the requirements set forth in Carratelli v. State, 915 So.2d 1256 (Fla. 4th DCA 2005), review granted, 935 So.2d 499 (Fla.2006). It is apparent from the limited postconviction record that the court denied this claim on its merits rather than for pleading deficiencies.

While we agree with the postconviction court’s decision to deny Solorzano relief on this claim on its merits, we do so for a different reason. A review of the claim actually made by Solorzano shows that he did not attempt to allege that Wasson was a biased juror who was seated on the jury. Thus, the resolution of this claim was not governed by Carratelli v. State, 961 So.2d 312 (Fla.2007). Instead, the substance of Solorzano’s claim was that counsel was ineffective for failing to conduct a meaningful voir dire of Wasson after she made the statement at issue. Solorzano contended that had counsel conducted further questioning of Wasson, counsel might have uncovered a basis to challenge her for cause. Alternatively, Solorzano alleged that further questioning could have resulted in trial counsel using a peremptory strike against Wasson. In essence, Solor-zano alleged that counsel was ineffective for failing to conduct a meaningful voir dire of Wasson that would have allowed counsel to intelligently and effectively use challenges — -whether cause or peremptory challenges- — against this juror.

Even with the claim understood in this manner, however, Solorzano is not entitled to relief. A claim that counsel was ineffective for failing to “follow-up” on questioning to establish grounds for a for-cause challenge has been held to be legally insufficient because such a claim can be based on nothing more than conjecture by the defendant. See Reaves v. State, 826 So.2d 932, 939 (Fla.2002) (holding that when the record does not show a reasonable basis to assert a for-cause challenge, a claim by the defendant that more information would have been forthcoming had counsel properly followed up with further questioning is mere conjecture and thus is not a legally sufficient claim for postconviction relief); see also Green v. State, 975 So.2d 1090, 1105 (Fla.2008) (following Reaves); cf. Davis v. State, 928 So.2d 1089, 1118 (Fla.2005) (holding that allegations that counsel was ineffective for failing to “follow up” with certain jurors in an effort to rehabilitate them to avoid cause challenges by the State was legally insufficient because the allegations were based on nothing but conjecture). Further, to the extent that So-lorzano claims that further questioning might have led counsel to use his peremptory challenges in a different manner, the claim is also based on pure speculation that will not support a claim of ineffective assistance of counsel. See Johnson v. State, 921 So.2d 490, 503-04 (Fla.2005) (“To show prejudice, Johnson argues that [defense counsel] could possibly have learned more about the jurors’ views and used his peremptory challenges in a different manner to obtain a more defense-friendly jury. Such speculation fails to rise to the level of ineffective assistance under Strickland, [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ].” (footnote omitted)).

Accordingly, because Solorzano’s claim of ineffectiveness in ground four is based on nothing more than speculation, it is legally insufficient and was properly denied by the postconviction court. Further, because the claim was denied on its merits, Solorzano is not entitled to leave to amend under Spera v. State, 971 So.2d 754, 761 (Fla.2007) (requiring that a defendant be given at least one opportunity to amend a facially insufficient claim for relief in a motion filed pursuant to rule 3.850). Therefore, we affirm the denial of relief on this ground.

Ground Five

Ground five of Solorzano’s motion is similar to ground four but requires a different result. In ground five, Solorzano alleged that trial counsel was ineffective for failing to question prospective juror Coyne at all during voir dire. Solorzano also alleges that “neither court, state, or defense counsel” questioned Coyne, but nevertheless Coyne was subsequently seated on the jury. The postconviction court denied Solorzano relief on this ground, stating that Solorzano had failed to “allege how the juror was incompetent or, for that matter, biased against him such that the juror should not have served on his case.”

As with ground four, it appears from the postconviction court’s ruling that it was analyzing Solorzano’s claim as one of juror bias under Carrateüi But, as with ground four, our reading of Solorzano’s claim is that it alleges a claim based on ineffective assistance of counsel for failing to conduct a meaningful voir dire — not the failure of counsel to properly preserve a challenge for cause, which was the issue addressed in Garratelli.

Claims based on ineffective assistance of counsel for failing to conduct a meaningful voir dire implicate the defendant’s constitutional right to have his case tried before a fair and impartial jury.

Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored. Without an adequate voir dire the trial judge’s responsibility to remove prospective jurors who will not be able impartially to follow the court’s instructions and evaluate the evidence cannot be fulfilled. See Connors v. United States, 158 U.S. 408, 413, 15 S.Ct. 951, 953, 39 L.Ed. 1033 (1895). Similarly, lack of adequate voir dire impairs the defendant’s right to exercise peremptory challenges where provided by statute or rule, as it is in the federal courts.

Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981) (footnote omitted); see also Lavado v. State, 469 So.2d 917, 919 (Fla. 3d DCA 1985) (Pearson, J., dissenting), dissent adopted by Lavado v. State, 492 So.2d 1322, 1323 (Fla.1986). Thus, “[djuring voir dire, counsel must question prospective jurors so that counsel can reasonably conclude that ‘the juror can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court.’ ” Mansfield v. State, 911 So.2d 1160, 1172 (Fla.2005) (quoting Spencer v. State, 842 So.2d 52, 68 (Fla.2003)). If trial counsel wholly fails to question a juror during voir dire, counsel’s conduct may be deficient. See, e.g., Mansfield, 911 So.2d at 1172; Cole v. State, 841 So.2d 409, 415 (Fla.2003); Teffeteller v. Dugger, 734 So.2d 1009, 1020 (Fla.1999). In that case, prejudice would be inherent in the denial of the defendant’s constitutional right to be assured of a fair trial before an impartial jury. See Rosales-Lopez, 451 U.S. at 188, 101 S.Ct. 1629. However, such a claim could be conclusively refuted by the record if the record shows that the trial court or the prosecutor otherwise asked sufficient questions of the venire, thus rendering any questioning by defense counsel redundant. See Mansfield, 911 So.2d at 1172; Cole, 841 So.2d at 415; Teffeteller, 734 So.2d at 1020-21; Martinez v. State, 655 So.2d 166, 168 (Fla. 3d DCA 1995). Such a claim might also be conclusively refuted by the record if the defendant personally and affirmatively accepted the jury prior to its being sworn, thus affirmatively representing to the court that the jury composition and selection process were acceptable. Cf. Muhammad v. State, 782 So.2d 343, 353 (Fla.2001) (finding that a defendant who personally affirmatively accepted the jury before it was sworn had “ratified the procedure and accepted the jury” and thus could not complain of a due process violation during jury selection on direct appeal).

Here, Solorzano alleged that defense counsel wholly failed to question Coyne during voir dire and that, as a result, counsel had no basis for determining whether Coyne was competent to sit as an unbiased juror. Importantly, Solorzano also alleged that neither the trial court nor the prosecutor questioned Coyne. Accordingly, Solorzano has stated a facially sufficient claim for ineffective assistance of counsel based on the lack of meaningful voir dire. On remand, the postconviction court must either attach portions of the transcript that conclusively refute Solorza-no’s claim of an inadequate voir dire of Coyne or hold an evidentiary hearing on this issue. This disposition moots Sokmza-no’s claim that he should be granted leave to amend under Spera.

Ground Six

In ground six of his motion, Solor-zano alleged that trial counsel was ineffective for failing to investigate and call “Bartender Dan.” Solorzano alleged that Bartender Dan, who was working at Gilligan’s on the day in question, would have testified that Solorzano had been drinking only sparingly and that he was not impaired when he left Gilligan’s. The post-conviction court summarily denied relief on this ground, finding that Bartender Dan’s testimony would have been cumulative to testimony presented by Solorzano and Ms. D’Ettorre. We disagree.

Solorzano’s defense at trial was that, despite his blood alcohol level, he was not unpaired and that the accident was not caused by any impairment. Instead, according to Solorzano, the accident was caused solely by his reaction to Ms. D’Et-torre vomiting on him. In furtherance of this defense, Solorzano testified that while he had had several drinks he was not impaired. He also presented Ms. D’Et-torre’s testimony that he was not impaired.

In this ground of his motion, Solorzano alleged that he told his counsel about Bartender Dan, who allegedly would have testified that Solorzano had no more than three drinks during the time he was at Gilligan’s and that Solorzano was not impaired when he was there. The postcon-viction court found that this evidence would be cumulative in light of the testimony presented by Solorzano and Ms. D’Ettorre. However, in light of the source of the proffered evidence, characterizing it as cumulative was improper.

In Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), Skipper offered testimony of his “good adjustment” to prison as mitigating evidence during the penalty phase of a capital murder case. The trial court allowed Skipper, his former wife, his mother, his sister, and his grandmother to testify to his adjustment to prison. However, when Skipper sought to call two jailers and a “regular visitor” to the stand to testify to his adjustment to prison, the trial court excluded the testimony as cumulative. The Supreme Court reversed, stating:

The evidence petitioner was allowed to present on the issue of his conduct in jail was the sort of evidence that a jury naturally would tend to discount as self-serving. The testimony of more disinterested witnesses-and, in particular, of jailers who would have had no particular reason to be favorably predisposed toward one of their charges-would quite naturally be given much greater weight by the jury.

Id. at 8, 106 S.Ct. 1669; see also Valle v. State, 502 So.2d 1225, 1226 (Fla.1987) (finding that proffered evidence was not cumulative when it “differed in quality and substance” from that of the other witnesses).

Here, the testimony offered by Solorza-no in support of his defense that he was not impaired was the sort of evidence that a jury would tend to discount. Clearly, Solorzano’s own testimony that he was not impaired would be considered self-serving. Further, other evidence had already established that Ms. D’Ettorre was so drunk that she could not walk unaided and that she had been physically ill in the parking lot of Gilligan’s. Thus, the jury would likely have tended to discredit Ms. D’Et-torre’s recollection and/or interpretation of Solorzano’s relative impairment.

Bartender Dan, however, would have been a relatively disinterested witness whose testimony on the issue would have “differed in quality” from that provided by Solorzano and Ms. D’Ettorre and would have been given greater weight by the jury. In light of this difference in the “quality” of the testimony, the posteonvietion court abused its discretion in finding that Bartender Dan’s testimony would have been cumulative and in summarily denying relief on this ground. Therefore, we reverse the summary denial of this ground and remand for an evidentiary hearing.

Ground Seven

In ground seven, Solorzano contends that trial counsel was ineffective for failing to investigate and call as a witness Solorzano’s brother, Roger. According to Solorzano, Roger would have testified to both Solorzano’s and Ms. D’Ettorre’s “de-meanors” before they left Gilligan’s. The postconviction court denied relief on this ground, finding that Roger’s testimony would have been cumulative. The postcon-viction court is correct on this issue.

Unlike any testimony from Bartender Dan, the testimony that Roger would have allegedly given would not have been different in quality and substance from that given by Solorzano and Ms. D’Ettorre. Because Roger is Solorzano’s brother, the jury would have been just as likely to discredit his testimony as it would Solorza-no’s. Therefore, the postconviction court did not abuse its discretion in finding that Roger’s proffered testimony was cumulative and that trial counsel was not ineffective for failing to present this cumulative evidence. Accordingly, we affirm the summary denial of this claim.

Ground Eight

In ground eight of his motion, So-lorzano alleged that trial counsel was ineffective for failing to investigate and call as a witness “Fire Medic Ryan Kelleman.” According to Solorzano, Fire Medic Kelle-man would have testified that Solorzano had vomit on his shirt at the scene, and this testimony would have supported So-lorzano’s defense that the accident was caused by Ms. D’Ettorre vomiting on him. The postconviction court denied relief on this ground, finding that the proffered testimony would have been cumulative. Like it did in ground six, the postconviction court erred in its analysis of this ground for relief.

At trial, both Solorzano and Ms. D’Et-torre testified that Ms. D’Ettorre vomited in the car and all over Solorzano immediately before the accident. Solorzano’s defense was that this unexpected event, and not any alleged impairment, is what caused him to lose control of his truck. However, the State presented the testimony of the investigating police officer, who testified that she neither saw nor smelled vomit on Solorzano’s person or in his truck while she was at the scene investigating the accident. In his motion, Solorzano alleged that Fire Medic Kelleman, who was the first medic to arrive at the scene, would have corroborated his testimony that he had vomit all over him.

As with Bartender Dan, Fire Medic Kelleman’s proffered testimony would have differed in quality from that of So-lorzano and Ms. D’Ettorre. As a medic responding to the scene, Fire Medic Kelleman would have been a disinterested witness whose testimony would allegedly have supported Solorzano’s testimony and conflicted with that of the only other disinterested witness, the investigating police officer. Because Fire Medic Kelleman was a disinterested witness, the jury would have been less likely to discredit his testimony concerning whether there was vomit on Solorzano than it would So-lorzano’s testimony on the subject. Further, because Fire Medic Kelleman was a medic and a first responder, the jury might have been more likely to credit his testimony over that of the investigating officer.

Because Fire Medic Kelleman’s alleged testimony would have differed in quality from that given by Solorzano and Ms. D’Ettorre on a disputed issue, the alleged testimony was not cumulative, and the postconviction court abused its discretion in finding that it was. Therefore, we reverse and remand for an evidentiary hearing on this claim.

Affirmed in part; reversed in part; and remanded for further proceedings.

KELLY and KHOUZAM, JJ., Concur.

      . The supreme court affirmed the Fourth District's decision in Carratelli after the postcon-viction court entered its order. See Carratelli v. State, 961 So.2d 312 (Fla.2007).


author: CRENSHAW, Judge.

text:
    Jan L. MURLEY, Appellant, v. Karl E. WIEDAMANN, Appellee.
    No. 2D08-2864.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 2009.
    Rehearing Denied Jan. 21, 2010.

      Andrew S. Berman, of Young, Berman, Karpf & Gonzalez, P.A., North Miami Beach, for Appellant.
    Mark V. Silverio of Silverio & Hall, P.A., Naples; and Joseph C. Bishara of Roth, Blair, Roberts, Strasfeld & Lodge, LPA, Youngstown, for Appellee.
   CRENSHAW, Judge.

Jan L. Murley (the Former Wife) appeals the final judgment of dissolution of her marriage to Karl E. Wiedamann (the Former Husband) and the order requiring her to pay fifty percent of the expenses on the parties’ jointly-owned Naples condominium beyond the date of the final judgment and interest on amounts owed to the Former Husband. We reverse and remand for further proceedings because the trial court misinterpreted the plain language of the parties’ prenuptial agreement in determining that the Former Wife’s stock and stock options were marital property. We conclude that the trial court used an improper date for valuation of the marital estate and erred in requiring the Former Wife to pay condominium expenses beyond the date of the final judgment and interest on amounts owed to the Former Husband. The Former Wife also appeals the trial court’s finding that the Former Husband’s Schwab account was his separate nonmarital property. Because documentation shows the funds are traceable back to separate assets the Former Husband owned prior to the marriage, we affirm the award of the Schwab account to the Former Husband.

The parties entered into a prenuptial agreement in Cincinnati, Ohio, in December 1988 before marrying in January 1989. Over the course of the eighteen-year marriage, the Former Wife received stock options from her employment with Procter & Gamble and stock options, deferred stock units, and director’s fees from her service as an independent member of the Board of Directors of the Clorox Corporation. The Former Husband filed a petition for dissolution of marriage on December 5, 2005, and sought to enforce the parties’ prenuptial agreement under Ohio law. Both parties argued that the prenuptial agreement was clear and unambiguous, but disagreed as to whether the Former Wife’s stock and stock options from Procter & Gamble and Clorox constituted marital property under the prenuptial agreement.

Section 1 of the prenuptial agreement titled “Separate Nonmarital Property” contains the following language:

All rights and interests of Jan and Karl now or hereafter vested in their respective participant’s account under the Procter & Gamble Company Employees Profit Sharing Plan or under any other Profit Sharing, Pension or Employee Benefit Plan of any other employer together with all additional employer contributions thereto made after their marriage, as well as all earnings thereon and appreciation shall be regarded as such party’s separate nonmarital property. All rights and interests of Jan and Karl now existing or hereafter acquired or arising under any other Employee Benefit Plan of any current or future employer {such as, by tvay of illustration only, stock options, restricted stock grants or flexible benefit plans) shall be regarded as such party’s no[n]marital property.

(Emphasis added.) Section 3(a) of the prenuptial agreement provides:

Any of Jan’s present or future rights to retirement benefits, profit sharing or other forms of retirement plans and/or pensions from her being duly employed shall be her separate nonmarital pro-peerty [sic].

The trial court found that the disputed language of the prenuptial agreement was “ambiguous or ill defined as it relates to ‘Employee Benefit Plan.’ ” After considering extrinsic evidence, the court concluded that under the terms of the prenuptial agreement, all of the Former Wife’s stock and stock options from Procter & Gamble and Clorox were marital assets to be divided equally between the parties.

Because the plain language of the prenuptial agreement excludes stock options from marital property, we find that the trial court erred in determining that the prenuptial agreement was ambiguous and concluding that the Former Wife’s stock options from Procter & Gamble and Clorox constituted marital property. By its terms, the prenuptial agreement is to be interpreted under Ohio law. Ohio and Florida courts employ the same principles of contract interpretation. “A trial court’s interpretation of a prenuptial agreement is reviewed de novo, as such agreements are governed by the law of contracts.” Taylor v. Taylor, 1 So.3d 348, 350 (Fla. 1st DCA 2009). When interpreting a contract, the court must first examine the plain language of the contract for evidence of the parties’ intent. Royal Oak Landing Homeowner’s Ass’n, Inc. v. Pelletier, 620 So.2d 786, 788 (Fla. 4th DCA 1993); Knott v. Revolution Software, Inc., 181 Ohio App.3d 519, 909 N.E.2d 702, 712 (2009). “In construing the language of a contract, courts are to be mindful that ‘the goal is to arrive at a reasonable interpretation of the text of the entire agreement to accomplish its stated meaning and purpose.’ ” Taylor, 1 So.3d at 350 (quoting Delissio v. Delissio, 821 So.2d 350, 353 (Fla. 1st DCA 2002)). ‘Words and phrases are given their common and ordinary meanings absent specific contractual definitions.” Knott, 909 N.E.2d at 712. “If a contract is reasonably susceptible of more than one meaning, then it is ambiguous and extrinsic evidence of reasonableness or intent can be employed.” Id.; see Taylor, 1 So.3d at 350 (stating that “a trial court should not admit parol evidence until it first determines that the terms of a contract are ambiguous”).

We conclude that the plain language of the prenuptial agreement excludes the Former Wife’s stock and stock options from the marital estate. Section 1 of the prenuptial agreement titled “Separate Nonmarital Property,” expressly and unambiguously states that “[a]ll rights and interests . -.. acquired or arising under any other Employee Benefit Plan ... (such as, by way of illustration only, stock options, restricted stock grants or flexible benefit plans) shall be regarded as such party’s no[n]marital property.” (Emphasis added.) The prenuptial agreement provides no specific definition of “any other Employee Benefit Plan,” but uses stock options as an example of a right or interest acquired under an Employee Benefit Plan to be treated as nonmarital property. This plain interpretation of the language is consistent with the parties’ intent to protect their assets should the parties choose to terminate the marriage. Because the plain language of the prenuptial agreement provides a reasonable interpretation that is consistent with the goals of the agreement, the trial court erred in considering extrinsic evidence to conclude that the Former Wife’s Procter & Gamble stock and stock options wex-e marital assets to be divided between the pai'ties. We also find that the Former Wife’s Clorox Corporation stock options, deferred stock units, and director’s fees constitute employee benefits under the prenuptial agixeement and are therefore separate nonmarital property.

We find the tidal coui't abused its disci’etion when it used the date of the final hearing as the date for the valuation of the marital net worth because the parties were separated two years before the final hearing. Under Ohio law, the marital estate includes assets acquired from the date of the marriage to the date of the final hearing, unless “the court determines that the use of either or both of the dates ... would be inequitable” and then “the court may select dates that it considers equitable in determining marital pi'operty.” Ohio Rev.Code Ann. § 3105.171(A)(2)(a)-(b). Here, it is inequitable to use the date of the final hearing for valuation whex-e the parties have been living separately for two years. See Rogers v. Rogers, Nos. 96APF10-1333, 96APF01-67, 1997 WL 559479, at *7 (Ohio App. Sept. 2, 1997) (finding the date of separation as an appropriate valuation date where “the totality of the circumstances and equitable considei'ations between the parties demonstrate that there was a clear and bilateral breakdown of the marriage and the parties have ceased contributing to each other ... as would partners in a shared enterprise or joint undertaking.”); Edmiston v. Edmiston, Nos. C-900915, C-900921, 1992 WL 19413, at *2 (Ohio Ct.App. Feb. 5, 1992) (holding that the date of the parties’ separation was the proper date for valuation). Accordingly, we instruct the tidal court to use the date of the parties’ sepai'ation rather than the date of the final hearing to determine the value of the marital estate.

We also conclude there was no basis for the trial court to require the Former Wife to pay fifty percent of the expenses on the parties’ jointly-owned Naples condominium where the Former Husband now lives, and interest on the amounts owed to the Former Husband. Although the parties previously stipulated that they are jointly liable for the mortgage payments on the condominium through the date of the final judgment, the final judgment imposed no further financial obligation on the Former Wife. Therefore, there was no basis for the court to subsequently order the Former Wife to pay these additional expenses and interest.

The Former Wife argues that the trial court erred in holding that the Former Husband’s Schwab account was his separate nonmarital property because commingling destroyed the account’s non-marital character. However, we affirm the award of the Schwab account to the Former Husband and find the Former Husband met his burden of proof that the property is separate because documentary evidence shows the funds held in the account are traceable to separate assets which the Former Husband owned prior to the marriage. See Fisher v. Fisher, No. 20898, 2004 WL 8561214, at *3 (Ohio Ct. App. Dec. 23, 2004) (finding that commingled property can be traced to its prior separate identity).

Because the plain language of the prenuptial agreement excludes the Former Wife’s stock options from the marital estate, and because the trial court erred in requiring the Former Wife to pay additional condominium expenses and interest on amounts owed to the Former Husband, we reverse the trial court’s final judgment of dissolution and the subsequent order requiring the Former Wife to pay fifty percent of the condominium expenses plus interest. We remand for further proceedings consistent with this opinion, and instruct the trial court to use the parties’ date of separation for valuation of the marital net worth and the division thereof. We affirm the award of the Schwab account to the Former Husband.

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

KELLY and KHOUZAM, JJ„ Concur.

      . Specifically, the trial court ordered the Former Wife to pay fifty percent of the mortgage, condominium assessments, real estate taxes, and condominium insurance, “from the date of [dissolution] to the date the Former Husband receives the marital assets, equalization payment and title to the Naples condominium ... and then removes [the Former Wife's] name off the mortgage.’’ The parties previously stipulated that they are jointly liable through the date of the final judgment for the mortgage payments on the condominium.

      . These errors in interpretation will require the trial court to recalculate equitable distribution between the parties.

      . The Clorox stock options and deferred stock units also fall within the Former Wife’s retirement plan, which is excluded under section 3(a) of the prenuptial agreement.