text:
    Larry RIVERS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2214
    District Court of Appeal of Florida, Third District.
    Opinion filed December 14, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Richard VARIANCE, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1573
    District Court of Appeal of Florida, Fourth District.
    [November 15, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Nicholas CONEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1712
    District Court of Appeal of Florida, Fourth District.
    October 18, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    William OZAH, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1523
    District Court of Appeal of Florida, Fourth District.
    [December 6, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Peter GAFFEY, Appellant, v. PROTECTIVE PRODUCTS ENTERPRISES, LLC, a Florida Limited Liability Company, Appellee.
    No. 4D18-0381
    District Court of Appeal of Florida, Fourth District.
    [December 6, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Arlister S. RUSH, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2307
    District Court of Appeal of Florida, Fourth District.
    [November 21, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael A. MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2762
    District Court of Appeal of Florida, Fourth District.
    [November 21, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Bobby J. NAPIER a/k/a Robert Napier, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2060
    District Court of Appeal of Florida, Fourth District.
    [December 20, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Richard MCMILLAN, III, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-711
    District Court of Appeal of Florida, Fourth District.
    [December 13, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Geremia MAURIELLO, Appellant, v. Larissa BARRICK O/B/O Hailey BARRICK, Appellee.
    No. 4D18-1515
    District Court of Appeal of Florida, Fourth District.
    [December 6, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lucien DORT, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3230
    District Court of Appeal of Florida, Fourth District.
    [December 6, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Charles HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2707
    District Court of Appeal of Florida, Fourth District.
    [December 20, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Renee MCLAWHORN-DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2852
    District Court of Appeal of Florida, Fourth District.
    [December 20, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Randy JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3191
    District Court of Appeal of Florida, Fourth District.
    [December 20, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael H. LABIDOU, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3274
    District Court of Appeal of Florida, Fourth District.
    [December 20, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Berthole EUGENE, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3139
    District Court of Appeal of Florida, Fourth District.
    [January 3, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Troy WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3022
    District Court of Appeal of Florida, Fourth District.
    [December 27, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Eddie PACE, Appellant, v. COCA-COLA REFRESHMENTS USA, INC., Appellee.
    No. 4D17-3887
    District Court of Appeal of Florida, Fourth District.
    [December 20, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Cesar LEON, III, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3954
    District Court of Appeal of Florida, Fourth District.
    [December 20, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Herbert MICHEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3206
    District Court of Appeal of Florida, Fourth District.
    [January 10, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ben Junior SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2392
    District Court of Appeal of Florida, Fourth District.
    [January 10, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Travis WOOD, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2701
    District Court of Appeal of Florida, Fourth District.
    [January 10, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Mathew MCCARTHY, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2745
    District Court of Appeal of Florida, Fourth District.
    [January 10, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Carlos Hernan POSADASPAGUADA, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2763
    District Court of Appeal of Florida, Fourth District.
    [January 17, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    J.S., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2498
    District Court of Appeal of Florida, Fourth District.
    [January 17, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael VENABLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3225
    District Court of Appeal of Florida, Fourth District.
    [January 10, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    O.M., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, and Guardian Ad Litem Program, Appellees.
    No. 4D18-2842
    District Court of Appeal of Florida, Fourth District.
    [January 10, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Trellis L. LANIER, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3179
    District Court of Appeal of Florida, Fourth District.
    [January 17, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Curtis L. CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3207
    District Court of Appeal of Florida, Fourth District.
    [January 17, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Curthan SMITH a/k/a Curthan G. Smith a/k/a George Smith, Appellant, v. BANK OF AMERICA, N.A., and Lakeside at Tamarac Condominium Association, Inc., Appellees.
    No. 4D18-2539
    District Court of Appeal of Florida, Fourth District.
    [January 17, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    A.I., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian Ad Litem, Appellees.
    No. 4D18-3104
    District Court of Appeal of Florida, Fourth District.
    [January 29, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Travis Octavious JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3065
    District Court of Appeal of Florida, Fourth District.
    [January 17, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lenist KEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3213
    District Court of Appeal of Florida, Fourth District.
    [January 17, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Robert Mark GREENE, Appellant, v. WARDEN, Okeechobee Correctional Institute, Appellee.
    No. 4D18-2594
    District Court of Appeal of Florida, Fourth District.
    [January 3, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Andrew FERNALD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2863
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 18, 2018 Rehearing Denied January 29, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Julius BLACK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-879
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 27, 2018 Rehearing Denied January 28, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    C.H.C., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2068
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    G.L., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1954
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Frank RODE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2784
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 28, 2018 Rehearing Denied February 8, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Blake J. OTTE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3418
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 26, 2018 Rehearing Denied January 29, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Daniel R. BLAIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2824
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 26, 2018 Rehearing Denied January 30, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    John MOORE, III, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2416
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 18, 2018 Rehearing Denied January 29, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Roy Edward STEPHENS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2749
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 27, 2018 Rehearing Denied January 29, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    BADARACCO CUSTOM HOMES, INC., Appellant, v. Donald MATTHEWS and Christina G. Matthews, Appellees.
    Case No. 5D18-1019
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 26, 2018 Rehearing Denied January 30, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jonathan MILLS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4082
    District Court of Appeal of Florida, Fifth District.
    Decision filed May 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    V.G., Father, Appellant, v. In the Matter of the Adoption of J.C.G., Appellee.
    Case No. 5D17-3253
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 17, 2018 Rehearing Denied February 7, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Robert Earl SMITH, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3519
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Leandre Jeffreal WRIGHT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2310
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Travis T. DAVIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3787
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Bryant CAMPBELL, Appellant, v. Keziah CAMPBELL, Appellee.
    Case No. 5D17-2909 5D17-3155
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Stephen Edward CAPONEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2939
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jamel A. SMITH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3067
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    James Brandon SMITH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3047
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    J.P., Father or L.P. and E.P., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-1867
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 26, 2018 Rehearing Denied November 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Deanthony M. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2915
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Thomas Brian STEWART Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2840
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Brandon HARTSFIELD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2383
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Matthew HILL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2003
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Quentin Shawn POWELL, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1708
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jason TOUSSAINT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1020
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Keith Douglas JAMES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-703
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Joecephus LAFLEUR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-106
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Daniel Stephen KING, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3537
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Zachary HOLLOWAY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3665
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Lewis L. HAWKINS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2865
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Samuel R. BROWN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1626
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Stanley Melvin HAYBRON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-772
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


author: Klingensmith, J. Taylor, J., dissenting.

text:
    Wesley BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1110
    District Court of Appeal of Florida, Fourth District.
    [December 12, 2018]
    Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Klingensmith, J.

Wesley Brown appeals his conviction and sentence in adult court for crimes committed as a juvenile. He specifically appeals the jurisdiction of the lower court and, alternatively, asserts a claim of ineffective assistance of trial counsel. For the reasons set forth below, we affirm Brown's conviction.

Brown faced numerous charges, including vehicular homicide; fleeing and eluding; and driving while license canceled, suspended, or revoked causing serious bodily injury or death. At the time of the incident that gave rise to these charges, Brown was fifteen years old; however, the case was direct-filed in adult court. At the time of the direct-file, Brown raised no objection; instead, the defense filed a Waiver of Arraignment, Plea of Not Guilty, and Demand for Jury Trial. Brown also filed a motion for bond reduction, which requested that he be released to "a maximum security juvenile commitment program" of the Department of Juvenile Justice. (Emphasis added). The court granted that motion. When the state filed an amended information on Brown's charges, defense counsel again demanded jury trial. There was still no objection filed with the trial court, nor was one made after a request for a continuance and the filing of a second amended information thirteen months after Brown was initially charged.

As he previously requested, Brown took his case to trial, which resulted in a hung-jury and mistrial. At no time during that trial did Brown raise any jurisdictional objections. The court reconvened for a second trial on Brown's charges soon thereafter. As with the first trial, no objection was ever made regarding divisional jurisdiction. However, unlike the first trial, the second resulted in an outcome unfavorable to Brown-he received guilty verdicts on all three charges. A sentencing hearing was scheduled for six weeks later, and Brown waived a Pre-Sentence Investigation. As before, Brown raised no objection to proceeding in adult court.

The sentencing hearing began as scheduled, but due to the illness of the defense's expert witness, the trial court rescheduled the hearing for a week later to allow the expert to return and testify. Once again, no objection to the court's jurisdiction was made.

It was not until just prior to the rescheduled sentencing hearing when-for the first time-Brown's counsel raised the issue of jurisdiction by filing a motion to vacate the verdict and return the case to juvenile court. That motion asserted that the adult trial court lacked divisional jurisdiction over the case when it initially proceeded to trial. Particularly, it noted that vehicular homicide was not a criminal act for which a fifteen-year-old defendant's case could be direct-filed in adult court, pursuant to section 985.557(1)(a), Florida Statutes (2016). The motion also argued that Brown did not waive juvenile division jurisdiction by proceeding to trial.

Immediately prior to sentencing, a brief hearing was held on Brown's motion. The state asserted that the filing of Brown's charges in adult court was proper because they were lesser-included felony offenses of those enumerated in the direct-file statute. Further, it argued that Brown had indeed waived juvenile division jurisdiction by proceeding to trial in the adult division. While reiterating her position on the matter, defense counsel countered that nothing in section 985.557 indicated that lesser-included offenses were part of the statutory provision allowing for direct-file.

On the issue of Brown's waiver of juvenile court jurisdiction, the trial judge explained:

You know, and I do think there's something to be said for going through not one, but two trials and having a jury reach a verdict and then, you know, I'm not suggesting, of course, there was any shady behavior and I'm certainly not suggesting this was your strategy or anything else, I mean that would be ridiculous, but I think it can cover those situations as well. And so I just think in this case a waiver has been established, and I'm sure that's something the appellate court will deal with, and so I deny your motion.

The court considered Brown's fourteen prior felony convictions, rejected the defense's request for juvenile sanctions, and sentenced Brown to fifteen years in prison for vehicular homicide, plus a consecutive term of five years for fleeing or attempting to elude. This appeal followed.

"The Juvenile Justice Act vests the juvenile division with exclusive jurisdiction over all proceedings in which a child allegedly violates the law unless, in compliance with the Act, juvenile jurisdiction is waived or the juvenile falls under a statutory exception." State v. Griffith , 675 So.2d 911, 913 (Fla. 1996). "Accordingly, in certain circumstances, children may be tried as adults and exposed to adult sanctions." Id.

"[L]egislative intent is the polestar that guides a court's statutory construction analysis." State v. J.M. , 824 So.2d 105, 109 (Fla. 2002). "Further, ... when [a court] construes a statute, '[it should] look first at the statute's plain meaning.' " Id. at 110 (alterations added) (quoting Moonlit Waters Apartments, Inc. v. Cauley , 666 So.2d 898, 900 (Fla. 1996) ); accord Stoletz v. State , 875 So.2d 572, 575 (Fla. 2004). "When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning." A.R. Douglass, Inc. v. McRainey , 102 Fla. 1141, 137 So. 157, 159 (1931). Courts are " 'without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.' " Holly v. Auld , 450 So.2d 217, 219 (Fla. 1984) (emphasis removed) (quoting Am. Bankers Life Assurance Co. of Fla. v. Williams , 212 So.2d 777, 778 (Fla. 1st DCA 1968) ).

" 'Under the principle of statutory construction, expressio unius est exclusio alterius , the mention of one thing implies the exclusion of another.' " Young v. Progressive Southeastern Ins. Co ., 753 So.2d 80, 85 (Fla. 2000) (quoting Moonlit Waters , 666 So.2d at 900 ); accord Thayer v. State , 335 So.2d 815, 817 (Fla. 1976). Put even simpler, "when a statute ... lists the areas to which it applies, it will be construed as excluding from its reach any areas not expressly listed." Siegle v. Lee Cty ., 198 So.3d 773, 775 (Fla. 2d DCA 2016) ; see also State v. Hearns , 961 So.2d 211, 219 (Fla. 2007) ("[T]he forcible felony statute specifically enumerates two types of battery .... BOLEO is not among them.... Had the Legislature intended to include all types of battery as forcible felonies, it would have listed simply 'battery' rather than only the specific types enumerated."); see e.g., Pro-Art Dental Lab, Inc. v. V-Strategic Grp., LLC , 986 So.2d 1244, 1258 (Fla. 2008) ("Had the Legislature intended for a commercial tenant [in this situation] to suffer an instantaneous default, it would have explicitly provided for such a severe sanction."); Am. Bankers Life , 212 So.2d at 778 ("Had the legislature intended the statute to import a more specific and definite meaning, it could easily have chosen words to express any limitation it wished to impose.").

According to section 985.557(1)(a) :

With respect to any child who was 14 or 15 years of age at the time the alleged offense was committed, the state attorney may file an information when in the state attorney's judgment and discretion the public interest requires that adult sanctions be considered or imposed and when the offense charged is for the commission of, attempt to commit, or conspiracy to commit:
....
8. Murder;
9. Manslaughter;
....

(Emphasis added).

Lesser-included offenses are not included by silent incorporation into section 985.557(1)(a). For example, while vehicular homicide is a lesser-included offense of manslaughter, see Luzardo v. State , 147 So.3d 1083, 1085 (Fla. 3d DCA 2014), under the plain language of the statute, vehicular homicide was not included by the legislature within the list of crimes providing the state with divisional prosecutorial discretion. See § 985.557(1)(a). Likewise, there are a number of offenses listed in section 985.557(1)(a) with lesser-included offenses also expressly enumerated in the statute. See Siegle , 198 So.3d at 775 ;

Pro-Art Dental , 986 So.2d at 1258 ; Hearns , 961 So.2d at 219 ; Young , 753 So.2d at 85 ; Thayer , 335 So.2d at 817 ; Am. Bankers Life , 212 So.2d at 778.

Taking the state's argument to its logical conclusion, any lesser-included offense to one of the enumerated crimes under the statute would qualify for direct-filing. For instance, simple assault is a lesser-included offense of aggravated assault; yet under that theory, the state could proceed with a direct-file in any simple assault case. Accepting this argument would run counter to the clear legislative intent found in the statute and would subject juveniles to direct-filing for a host of unenumerated offenses.

Given that the state improperly direct-filed Brown's case because a statutory exception does not apply to Brown's juvenile jurisdiction, we consider whether he waived any challenge to defending the case in adult court. "The right to be prosecuted as a juvenile is one that can be waived." Williams v. State , 754 So.2d 67, 69 (Fla. 4th DCA 2000). In fact, courts have held that a defendant can waive his statutory right to be treated as a juvenile by silence. See id. ; see also Smith v. State , 345 So.2d 1080, 1081 (Fla. 3d DCA 1977) ("[The defendant] lied under oath about her name, age and arrest record ... for the specific purpose of being placed on probation. Thus, she voluntarily submitted herself to the jurisdiction of the circuit court's adult division and pled guilty to a felony."). Additionally, challenges to adult court jurisdiction can be waived if raised for the first time on direct appeal rather than in the trial proceedings. See State v. King , 426 So.2d 12, 14-15 (Fla. 1982). Therefore, the right to proceed by trial in juvenile court is not a substantive fundamental right guaranteed to a defendant, but is one that can be waived by mere inaction. See, e.g., Snider v. Metcalfe , 157 So.3d 422, 424 (Fla. 4th DCA 2015) ("Lack of personal jurisdiction is a waivable defense that must be raised at the 'first opportunity' and before the defendant takes any steps in the proceeding constituting submission to the court's jurisdiction."); Bryant v. State , 650 So.2d 68, 69-70 (Fla. 5th DCA 1994) (holding that where the state files an information against a defendant after the speedy trial period, a defendant waives the speedy trial right without taking timely action). Not all structural defects in the framework of the trial process amount to fundamental, non-waivable error. See Alvarez v. State, 827 So.2d 269, 274 (Fla. 4th DCA 2002) ("We hold that failure to object to the closure of a trial constitutes a waiver of the right to a public trial.").

In Griffith , the Florida Supreme Court explained:

"There is good reason for requiring defendants to register their objections with the trial court. A defendant should not be allowed to subject himself to a court's jurisdiction and defend his case in hope of an acquittal and then, if convicted, challenge the court's jurisdiction on the basis of a defect that could have been easily remedied if it had been brought to the court's attention earlier. Neither the common law nor our statutes favor allowing a defendant to use the resources of the court and then wait until the last minute to unravel the whole proceeding. Sawyer v. State , 94 Fla. 60, 113 So. 736 (1927). In this case, if the court had realized that respondent had been improperly charged by an indictment, the defect could have been remedied quite easily by the filing of an information under section 39.04(2)(e)4, or the transfer of the case to the juvenile division."

Griffith , 675 So.2d at 913-14 (emphasis added) (quoting King , 426 So.2d at 15 ). That is precisely what happened in this case.

Other cases have held that the right to be treated as a juvenile is not waived provided it is brought to the trial court's attention, even belatedly. See Miller v. State , 702 So.2d 617, 618 (Fla. 4th DCA 1997) ; T.W. v. Jenne , 826 So.2d 536, 538 (Fla. 4th DCA 2002) ; Turner v. State , 769 So.2d 1108, 1109 (Fla. 2d DCA 2000).

In Miller , the defendant appealed his conviction and sentence on two counts of sexual battery on a minor and five counts of lewd assault. 702 So.2d at 618. The information filed against him was improperly direct-filed in the adult criminal division rather than in the juvenile division "because he may have been fifteen years old when the crimes took place." Id. The defendant "did not object to the court's exercise of [divisional] jurisdiction ... until after the state rested its case on five of the seven counts[;]" even though he had been aware of the jurisdictional mistake several months prior. Id. (alteration added). This court found that although the defendant's motion was belated in the trial proceedings, the issue was nonetheless timely raised with the trial court. Id.

In T.W. , the petitioner sought a writ of habeas corpus due to being held in jail without bond. 826 So.2d at 536. When he was initially arrested at fifteen years old, he presented himself as eighteen "in order to be immediately released on bond because otherwise he could have been retained in juvenile detention up to twenty-one days." Id. As a result of this misrepresentation, he was released on bond as desired; however, he was rearrested after he failed to appear at his arraignment and was jailed without bond. Id. Thereafter, the defendant filed an emergency motion for the court to determine that he was a juvenile, which was denied. Id. at 536-37. On appeal, this court noted that the petitioner did not waive his right to be treated as a juvenile because he attempted "to correct his misrepresented age early in the proceedings, rather than after receiving the benefit of a more lenient sentence as an adult than he might have received as a juvenile." Id. at 537.

In Turner , the defendant was charged as an adult for crimes committed when he was fourteen. 769 So.2d at 1109. Prior to trial, defense counsel filed a "motion to dismiss for lack of subject matter jurisdiction because the State erroneously charged him as an adult despite the fact that he was a juvenile at the time the offense was committed." Id. The trial court denied the motion and the defendant was convicted. Id. He appealed on the issue of juvenile jurisdiction and the Second District reversed his conviction and remanded with directions that any future proceedings on the charges be commenced in juvenile court. Id.

Each of the above-cited cases are distinguishable in that the question of juvenile jurisdiction was brought to the respective court's attention before the jury's verdict. We allow such late requests in deference to a defendant's right to have his case heard in the juvenile division pursuant to the Juvenile Justice Act. Moreover, this makes sense from a practical standpoint.

Before either acquittal or conviction is determined, both the state and the defendant are equally positioned since neither knows for sure what the outcome of the contest will be. A defendant who makes a belated request to move his case to the juvenile division gains little benefit by doing so before the jury reaches its verdict.

But once the jury either acquits or convicts the defendant, the relative position of the parties-and their knowledge about the outcome-changes. A defendant who is permitted to make a belated challenge to jurisdiction after being found guilty effectively seeks to substantially benefit from sitting on his hands, "confident that an unvoiced objection will garner a new trial if the verdict is unfavorable." Hargrove v. CSX Transp., Inc. , 631 So.2d 345, 346 (Fla. 2d DCA 1994). That would be improper. A defendant simply cannot allow error to occur without objection, hope they will win despite the error, and be confident of a new trial when the trial court has not been afforded the opportunity to cure it. Here, Brown failed to request a transfer to juvenile court and instead "rolled the dice" with a jury trial in the adult division and lost. After the verdict was announced, it was too late to cry foul.

We take no position on whether electing to have this case proceed in adult court-thereby permitting the case to be heard by a jury rather than a judge-was a matter of trial strategy. Similarly, we do not decide on when defense counsel knew or should have known that the case could be heard in the juvenile court. Instead, we note only that allowing a defendant to escape the consequences of a jury verdict by waiting to raise this issue until after he is convicted would be tantamount to the loser of a football game waiting until the final second of regulation expires before raising issue with the coin toss. The time to raise the issue of divisional jurisdiction in this case was before the jury found Brown guilty, not after.

As to Brown's claim of ineffective assistance of counsel, this court has stated, in general, that a claim of ineffective assistance of counsel cannot be raised for the first time on appeal; instead, such a claim is properly made in a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. See Odeh v. State , 82 So.3d 915, 923-24 (Fla. 4th DCA 2011). An appellate court may review an ineffective assistance of counsel claim on direct appeal when the alleged ineffectiveness is apparent on the face of the record. See Kidd v. State , 978 So.2d 868, 869 (Fla. 4th DCA 2008). This exception is rarely applicable, see Boyd v. State , 45 So.3d 557, 560 (Fla. 4th DCA 2010), because "[s]uch claims ordinarily turn on issues of fact and both sides are entitled to present relevant evidence to the trial court to resolve those issues." Gordon v. State , 469 So.2d 795, 798 (Fla. 4th DCA 1985) (Anstead, J., concurring specially). Here, we are unable to conclude that the alleged ineffectiveness is "obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable." Larry v. State , 61 So.3d 1205, 1207 (Fla. 5th DCA 2011) (quoting Corzo v. State , 806 So.2d 642, 645 (Fla. 2d DCA 2002) ).

We affirm Brown's judgment and sentence and deny his claim of ineffective assistance of counsel without prejudice to file a rule 3.850 motion for postconviction relief in the trial court.

Affirmed.

Kuntz, J., concurs.

Taylor, J., dissents with opinion.

Taylor, J., dissenting.

I respectfully dissent and would reverse and remand this case for further proceedings in the juvenile division of the circuit court. The juvenile division has exclusive jurisdiction over juvenile offenders unless the offender waives juvenile jurisdiction or a statutory exception applies. As explained below, appellant did not waive juvenile jurisdiction and, as the majority acknowledges, no statutory exception applies to his vehicular homicide charge. Vehicular homicide is not included in the list of criminal charges that may be direct-filed in adult court under section 985.557(1)(a), Florida Statutes.

Appellant cannot be said to have waived his right to be treated as a juvenile, because, here, the trial court was made aware of the improper direct-filing of his case at the trial level before sentencing. As the majority points out, "[o]ther cases have held that the right to be treated as a juvenile is not waived provided it is brought to the trial court's attention, even belatedly." In Miller v. State , 702 So.2d 617 (Fla. 4th DCA 1997), the defendant did not object to the adult court's exercise of jurisdiction over his case until after the state rested its case on several counts of sexual battery. We reversed the trial court's order that found waiver and denied the defendant's motion to transfer his case to juvenile court. We ruled that State v. Griffith , 675 So.2d 911 (Fla. 1996), did not apply:

As in State v. King, 426 So.2d 12 (Fla. 1982), Griffith never raised the jurisdictional issue at the trial level, thus waiving it. Here, although belated in the trial proceedings, the issue was raised.... The conviction in Griffith , to us, was upheld solely because appellant waived the jurisdictional issue at the trial level, which is not the case here.

Miller , 702 So.2d at 618.

Similarly, that is not the case here. Unlike the defendants in King and Griffith , the juvenile in this case did not raise his right to be treated as a juvenile for the first time on direct appeal. Instead, he challenged the adult court's jurisdiction at the trial level before sentencing. According to the record, his attorney first became aware that he was being improperly tried in adult court on the morning of sentencing and moved to transfer his case to juvenile court. In my view, by proceeding to a jury verdict in adult court and raising the jurisdictional issue before sentencing, appellant could at most be deemed to have waived his right to an adjudicatory hearing in juvenile court. But appellant cannot be deemed to have waived his right to a disposition hearing in juvenile court.

Even if a finding of waiver could be considered appropriate in this case, alternatively we should reverse appellant's conviction and sentence because of ineffective assistance of counsel. It is apparent on the face of the record that trial counsel was ineffective by proceeding to trial in adult court, and appellant was prejudiced by that ineffectiveness with a lengthy adult prison term rather than juvenile sanctions.

Although claims of ineffective assistance of counsel are usually addressed during postconviction proceedings, this case compels review on direct appeal. Here, the ineffectiveness is "obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable." See Bagnara v. State , 189 So.3d 167, 171 (Fla. 4th DCA 2016) (quoting Corzo v. State , 806 So.2d 642, 645 (Fla. 2d DCA 2002) ).

To prove a claim of ineffective assistance of counsel, a petitioner must show that counsel's performance fell below an objective standard of reasonableness, Strickland v. Washington , 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland , a petitioner must show that: (1) counsel's performance was deficient and (2) that the deficient performance resulted in prejudice. Id. at 686, 104 S.Ct. 2052. Citing the National Juvenile Defender Center's Florida Guidelines of Practice for Attorneys Who Represent Children , appellant argues that his trial counsel was required to act with the same zealousness as adult counsel, have a working knowledge of juvenile law and practice, and promptly pursue procedural steps to protect the child's interests. Here, trial counsel's failure to recognize early in the trial proceedings that this case was improperly filed in adult court and to move to transfer it to juvenile court fell below the objective standard of reasonableness.

As to the prejudice prong of Strickland , appellant was obviously prejudiced by being subjected to a substantially harsher penalty than one which he would have faced had he been found delinquent in juvenile court. Appellant received an aggregate sentence of twenty years in prison, as compared to a maximum six-year term in a residential juvenile program. "[T]he Legislature created the juvenile justice system as a separate, distinct rehabilitative alternative to the more punitive, incapacitation-oriented criminal justice system." E.A.R. v. State , 4 So.3d 614, 617 (Fla. 2009). Sentenced as an adult, appellant was denied the rehabilitative services offered in the juvenile court system and deprived of the opportunity to achieve rehabilitation through supervision, counseling, and treatment.

I strongly disagree with the majority's view that we are unable to decide appellant's claim of ineffective assistance of counsel in this appeal. It is clear from the face of the record that counsel's performance was deficient and that appellant suffered prejudice as a result. In my view, it would be a waste of time and judicial resources to require appellant to seek relief through postconviction proceedings. No evidentiary hearing is needed because, based on the record before us, there is no reasonable strategic reason for counsel's failure to move to transfer this case to juvenile court. Defense counsel stated on the record in open court that she did not realize that this case was improperly filed until just a few hours before sentencing. The trial court found her credible and apparently agreed that her failure to raise this issue until late in the proceedings was a mistake, not a strategy decision. The court stated: "I'm not suggesting this was your strategy or anything else, I mean that would be ridiculous."

For the above reasons, I would reverse appellant's conviction and sentence, and remand with directions to transfer his case to juvenile court for further proceedings.

      The trial court vacated Brown's conviction for driving while license canceled, suspended, or revoked causing serious bodily injury or death.

      Illustratively, manslaughter is a lesser-included offense to the charge of murder, as are the crimes of aggravated assault and aggravated battery. See § 985.557(1)(a)(6), (8), (9), and (12) ; Fla. Std. Jury Instr. (Crim.) 7.2. Similarly, aggravated assault is also a lesser of manslaughter, yet both crimes are listed separately in the statute. See § 985.557(1)(a)(6) and (9). Additionally, a lewd and lascivious offense on a victim under the age of 16 is a lesser included offense of sexual battery; both crimes are also separately included in the enumerated list. See § 985.557(1)(a)(2) and (13) ; Fla. Std. Jury Instr. (Crim.) 11.4. Robbery is a lesser of home invasion robbery, yet both are enumerated. See § 985.557(1)(a)(3) and (17) ; Fla. Std. Jury Instr. (Crim.) 15.3. Finally, grand theft in the first degree is a lesser of home invasion robbery, and both are specifically enumerated. See § 985.557(1)(a)(15) and (17) ; Fla. Std. Jury Instr. (Crim.) 15.3.

      Initially, the Miller court discussed this issue as one of personal jurisdiction, but we recognize that is not the case. See Williams v. State , 737 So.2d 1141, 1142 n.1 (Fla. 4th DCA 1999).


author: Kanner, Daniel J., Associate Judge.

text:
    SEMINOLE LAKES HOMEOWNER'S ASSOCIATION, INC., a Florida Corporation, Appellant, v. Sheldon ESNARD and Mary Ann Esnard, His Wife, Appellees.
    No. 4D18-15
    District Court of Appeal of Florida, Fourth District.
    [December 19, 2018]
    Thomas L. Hunker of Cole, Scott & Kissane, P.A., Plantation, and Lissette Gonzalez of Cole, Scott & Kissane, P.A., Miami, for appellant.
    Andrew A. Harris and Nichole J. Segal of Burlington & Rockenbach, P.A., West Palm Beach, and Joseph R. Fields, Jr. of Fields Legal, LLC, West Palm Beach, for appellees.
   Kanner, Daniel J., Associate Judge.

Seminole Lakes Homeowner's Association, Inc. appeals a final judgment entered after jury trial verdict in favor of Sheldon and Mary Esnard. Seminole Lakes contends that the trial court erred by not granting its motion for directed verdict on the issue of proximate causation. Seminole Lakes also appeals on two other grounds. We agree and reverse on the issue of proximate causation rendering the other two issues moot.

This case arose out of a car accident between the Esnards and Dedric Upshur which occurred inside the Seminole Lakes community. Upshur rear-ended the Esnards while they were stopped waiting for two trucks to pass between two parked cars on the street. The Esnards sought damages against Seminole Lakes on the basis that Seminole Lakes was negligent and proximately caused the Esnards' damages by permitting homeowners and their guests to park on both sides of the community's streets contrary to its governing documents. The jury found that Seminole Lakes' negligence was a legal cause of the Esnards damages and apportioned fault with 30% to Seminole Lakes and 70% to Upshur.

Seminole Lakes is a community of single family homes and townhomes located in the Village of Royal Palm Beach, Florida. At the time of the accident, the Esnards were renting a townhome in Seminole Lakes. The Association's restrictive covenants provide that owners and guests shall park in their driveways or garages or designated common area spaces. In 2009, the board realized that there was a severe parking problem within the community and made the decision to allow overnight street parking, despite the fact that the Village of Royal Palm Beach Code prohibits any street parking which interferes with the flow traffic. As a result, vehicles parked on both sides of the street in various sections of the community. Occasionally, this circumstance would only allow one car to pass between two parked vehicles.

One evening in 2013, Mr. and Mrs. Esnard were returning home to their residence where they encountered such a circumstance. While they waited behind a truck for another truck to pass between two cars, they were rear-ended by Upshur. The Esnards' car was totaled and Mr. Esnard suffered injuries as a result of the accident.

The case proceeded to trial. At the close of the Esnards' case, Seminole Lakes moved for a directed verdict maintaining that Seminole Lakes' allowing cars to park on the street was not a proximate cause of the accident.

The issue of proximate causation is generally an issue for the trier of fact; however, there are instances where the issue should be decided as a matter of law. The Supreme Court of Florida held in Nat'l Airlines, Inc. v. Edwards , 336 So.2d 545, 547 (Fla. 1976) (quoting Kwoka v. Campbell , 296 So.2d 629, 631 (Fla. 3d DCA 1974) ): "The question of proximate cause is one for the court where there is an active and efficient intervening cause."

The Second District Court of Appeal further explained the issue of proximate causation in Matthews v. Williford , 318 So.2d 480, 481-83 (Fla. 2d DCA 1975) :

The law is well settled in this state that a remote condition or conduct which furnishes only the occasion for someone else's supervening negligence is not a proximate cause of the result of the subsequent negligence.
* * *
In short, conduct prior to an injury or death is not legally significant in an action for damages like this, unless it is a legal or proximate cause of the injury or death-as opposed to a cause of the remote conditions or occasion for the later negligence.

"[H]arm is 'proximate' in a legal sense if prudent human foresight would lead one to expect that similar harm is likely to be substantially caused by the specific act or omission in question." McCain v. Fla. Power Corp. , 593 So.2d 500, 503 (Fla. 1992). Obviously, the facts of every case are different and must be analyzed in their entirety.

In Pope v. Cruise Boat Co., Inc., 380 So.2d 1151 (Fla. 3d DCA 1980), the pedestrian plaintiff chose to walk on the shoulder of a county street running in front of the defendant's business. The plaintiff "came upon a boat on a trailer and two pickup trucks parked perpendicular to the street on the shoulder, but not protruding into the street." Id. at 1152. The plaintiff was struck by a truck when she stepped off the shoulder into the street in an attempt to go around the boat. Id. The plaintiff alleged that the defendant breached its duty to maintain the premises in a reasonably safe condition and that the issue of negligence should have been a question for the jury. Id. The Third District Court of Appeal held that the defendant's conduct of permitting the parking condition was not a proximate cause of the plaintiff's injury because it merely furnished the occasion for the plaintiff's own negligence in stepping into oncoming traffic, noting that the plaintiff "chose[ ] to walk the shoulder of the road rather than the sidewalk on the other side of the same street." Id. at 1152-53. The Third District Court later elaborated on its ruling in Stahl v. Metro. Dade Cty. , 438 So.2d 14, 23 (Fla. 3d DCA 1983), explaining that the accident in Pope was an unusual, unforeseeable event:

[I]t was not a reasonably foreseeable consequence of the defendant's negligence that the plaintiff pedestrian would react in such an unusual manner. The plaintiff pedestrian plainly had no momentum problem as she travelled on foot alongside the road and could have easily come to a complete stop upon encountering the subject vehicles on the shoulder; in fact, that is what one, as a matter of law, would reasonably expect. Her decision thereafter to step onto the road without looking, whereupon she was hit by a car, was an unexpected, highly unusual event, and therefore an unforeseeable intervening cause for which the defendant was not responsible. There was causation-in-fact in that case, but the result was considered too extraordinary and too unforeseeable to be considered a proximate cause of the defendant's negligence.

The same analysis applies to the present case. While the vehicles parked on the side of the street caused traffic to slow or even stop, it cannot be said that this was a proximate cause of the Esnards' damages. It is within common experience while driving on the streets of Florida to encounter traffic that is slowed or stopped for any number of reasons. The law requires every driver to maintain a safe distance from the traffic in front of them to avoid rear-end collisions.

In this case, the evidence showed that the Esnards had been stopped for a period of time before Upshur collided with them. The parking situation was patently obvious to any and all drivers using the streets in Seminole Lakes. There was no evidence that the Esnards were forced to make a sudden emergency stop or otherwise take evasive action to avoid the parked vehicles. This court sees no difference between this situation and a car being stopped behind a city bus waiting to pick up passengers. While Seminole Lakes' failure to enforce the parking rules was a cause-in-fact of the accident, its negligence only furnished the occasion for Upshur's negligence.

In light of all of the evidence, including the lack of any prior incidents of this nature, and the general conditions of this residential neighborhood, we hold that Upshur's negligence was not reasonably foreseeable by Seminole Lakes, and the failure to enforce its parking rules was not the proximate cause of the Esnards' injuries. See Las Olas Holding Co. v. Demella, 228 So.3d 97 (Fla. 4th DCA 2017).

Accordingly, we reverse the trial court's denial of Seminole Lakes' motion for directed verdict, and remand for entry of a judgment in favor of Seminole Lakes.

Reversed and Remanded.

Damoorgian and Klingensmith, JJ., concur.


author: Forst, J.

text:
    J.D., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian ad Litem Program, Appellees.
    No. 4D18-2432
    District Court of Appeal of Florida, Fourth District.
    [January 2, 2019]
    Antony P. Ryan, Director, and Paul O'Neil, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Fort Lauderdale, for appellee Department of Children and Families.
    Thomasina Moore, Statewide Director of Appeals, Florida Statewide Guardian ad Litem Office, Tallahassee, and Aislynn Thomas-McDonald of Hershoff Lupino & Yagel, LLP, Tavernier, for appellee Guardian ad Litem Program.
   Forst, J.

J.D. ("the mother") appeals an adjudication of dependency as to her two children. She argues that neither the facts nor law support the trial court's determination. As explained below, we affirm.

Background

The events leading to the petitions for dependency are as follows. The mother was taken to the hospital by ambulance, complaining of pregnancy-related bleeding. She left her seventeen-month-old child at home with her boyfriend's family. Her boyfriend had gone to a party the night before and not yet returned.

The mother, who was eight months pregnant, initially told hospital staff that her boyfriend beat her with a belt and with his hand "[a]nywhere it landed." She also informed the staff that she was worried her boyfriend's family would not feed her elder child. Hospital staff informed the mother that they were calling the police, and the mother asked them not to and began to recant her allegations.

The police arrived at the hospital and spoke to the mother with hospital staff present. She told a sheriff's office investigator that "she was scared for her life" and was "concerned for her child's safety with her boyfriend." Another officer observed bruises on the mother including one on her temple. She told the officer that her boyfriend had slapped her on her face after coming home drunk from a club. She mentioned he had been arrested for one such incident of domestic violence. Upon learning the officer was going to arrest her boyfriend, however, the mother again recanted her allegations.

A Child Protective Investigator ("CPI") spoke to the mother regarding the domestic violence and the concern for the elder child. The mother stated that her boyfriend was only hitting her and not the child "so it was okay." The mother also indicated that her boyfriend needed to be in the home to take care of the child. The CPI told the mother that the elder child needed to be removed from the care of her boyfriend's family and asked if she had family in Florida that could care for the child. The mother said that she did not have relatives in Florida and that her family lived in Haiti. The mother stated that she wanted the child to stay with her boyfriend while she was hospitalized. When the CPI informed the mother that her boyfriend was being arrested, the mother became hysterical. The CPI attempted to redirect the mother to the concerns for the elder child's safety to no avail. Because the mother was being hospitalized and because she reported having no relatives to care for the child, the elder child was sheltered. It eventually came to light that both of the mother's parents lived in Fort Lauderdale.

The Department of Children and Families (DCF) filed for dependency, alleging the mother had neglected the elder child and placed both children at substantial risk of harm, abuse, and neglect. At trial, the mother testified that she reported abuse out of jealousy. She explained: "But this is not true. I also told them that he hit [the elder child] and this is not true. But I was just upset because he had left me pregnant and I didn't know whether he was out with another woman." The sheriff's office investigator and hospital social worker denied the mother had reported any physical abuse of the elder child, and no one from the hospital testified otherwise. The social worker did report that the boyfriend once dismantled the elder child's crib and forced her to sleep on the floor.

The trial court concluded that the children had been neglected and inferred "a pattern, a cycle of violence in the home which poses a threat of harm to both children" and that the mother's expressed desire to continue to live with her boyfriend placed "the children at imminent risk of abuse and neglect." In reaching this conclusion, the trial court found that the mother's own admissions, corroborated by other witnesses' testimony, established there was ongoing domestic violence in the home-including earlier in the mother's pregnancy. The trial court also determined that the mother's reports of domestic violence, while seeking medical attention, were more credible than her recantation upon learning her boyfriend would be arrested. Based on her own admission, the mother relied on the boyfriend financially and to help care for the children. She was scared and concerned for losing her boyfriend's financial assistance and would have reason to recant her statements.

The court also found that testimony from the police "proves [the] mother's own admissions" that the boyfriend had hit the elder child. It also noted that no actual abuse needed to be proven or even that the children were present or aware of the domestic violence. Accordingly, the trial court found the children dependent and placed them with their maternal grandmother, with a case plan goal of reunification.

Analysis

In a dependency proceeding, DCF must establish its allegations by a preponderance of the evidence. In re M.F. , 770 So.2d 1189, 1192 (Fla. 2000). A court's final ruling of dependency is a mixed question of law and fact and will be sustained on review if the court applied the correct law and its ruling is supported by competent substantial evidence in the record. Id. ; see also E.H. v. Dep't of Children & Families , 147 So.3d 616, 620 (Fla. 4th DCA 2014). The evidence presented is "[v]iewed in the light most favorable to sustaining the adjudication of dependency." B.C. v. Dep't of Children & Families , 846 So.2d 1273, 1274 (Fla. 4th DCA 2003).

Initially, we note the trial court's finding that testimony from the police investigator "proves [the] mother's admission[ ]" that her boyfriend had hit the elder child is not supported by competent, substantial evidence. None of the witnesses testified that the mother had made such an accusation, and DCF's answer brief does not contend that the boyfriend had physically abused the child.

Nonetheless, there is sufficient evidence in the record to sustain the adjudication of dependency which the trial court "based upon the Mother's neglect of the children and/or substantial risk of imminent abuse or neglect ...." It is not necessary to establish that the child saw or was aware of the domestic violence for a finding of neglect. C.J. v. Dep't of Children & Families , 968 So.2d 121, 122 (Fla. 4th DCA 2007) (noting that the standard for "abuse" differs from "neglect," as domestic violence in the home constitutes child abuse only if the child is present); see also § 39.01(50), Fla. Stat. (2018) (defining "neglect," in relevant part, to occur "when a child is ... permitted to live in an environment when such ... environment causes the child's physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired").

We agree with the trial court that DCF presented competent, substantial evidence of several incidents of domestic violence directed by the boyfriend against the mother. Nonetheless, the mother continued the relationship with her boyfriend and recanted her prior reports of domestic violence in an effort to protect him.

"[W]hen there is a history of domestic violence and the parents' relationship is ongoing, prior incidents of domestic violence can support a finding that a present threat of harm exists." M.B. v. Dep't of Children & Family Servs. , 937 So.2d 709, 711 (Fla. 2d DCA 2006).

In M.B. , the Second District reversed the trial court's dependency determination, in part, because "the situation that gave rise to the domestic violence no longer exists, and the children are not exposed to a present threat of harm by continued acts of domestic violence." Id. at 712. The court noted "the evidence showed that the parents are currently living apart and both have begun relationships with others." Id. Here, in contrast, the mother testified that she still wanted to live with the boyfriend and relied on his financial support. She also recanted her accusations when faced with the arrest of her boyfriend, just after she had told hospital staff and law enforcement that her boyfriend had hit her numerous times while she was pregnant. As such, there is support for the trial court's conclusion that the children were exposed to "a present threat" of neglect.

Conclusion

We are cognizant that the mother is a victim of domestic violence, not the perpetrator. Nevertheless, the primary purpose of a petition for dependency is to protect the child, not to punish the caregiver. § 39.001, Fla. Stat. (2018) ; A.B. v. Dep't of Children & Family Servs. , 901 So.2d 324, 327 (Fla. 3d DCA 2005). Based on the foregoing discussion, we conclude the trial court did not err in adjudicating the two children to be dependent as to the mother. DCF will engage with the mother to develop a case plan, with the goal of reunification of the mother with her children. Thus, this dependency action-unlike a TPR action-shouldn't be viewed as an ending, but rather, as a beginning.

Affirmed.

Gerber, C.J., and Klingensmith, J., concur.


author: Damoorgian, J.

text:
    KIS GROUP, LLC, Alerion Management Group, LLC and, Ricardo DeAvila, Petitioners, v. Yves MOQUIN, Respondent.
    No. 4D18-1435
    District Court of Appeal of Florida, Fourth District.
    [January 2, 2019]
    Mary F. April, Peter M. Bernhardt and Courtney G. Tito of McDonald Hopkins LLC, West Palm Beach, for petitioners.
    Daniel M. Samson of Samson Appellate Law, Miami, and Matthew S. Sarelson of Kaplan, Young & Moll-Parrón, Miami, for respondent.
   Damoorgian, J.

Petitioners KIS Group, LLC, Alerion Management Group, LLC and Ricardo DeAvila seek certiorari review of the trial court's order granting Respondent Yves Moquin's motion to amend his complaint to assert a claim for punitive damages. Because the court failed to follow the procedural requirements of section 768.72, Florida Statutes, we grant the petition.

Petitioner KIS is a company that was formed for the sole purpose of investing in KIOSK Information Systems, Inc., a company that designs and manufactures kiosk systems. Petitioner Alerion manages KIS and Petitioner DeAvila serves as a manager for Alerion. In 2010, Respondent purchased two membership units in KIS for $353,333.33. Five years later, Respondent contacted DeAvila and requested to redeem his investment in KIOSK. Before granting the request, DeAvila advised Respondent that KIOSK might be sold within the year. Respondent acknowledged the possibility of a sale but decided to nonetheless redeem his investment.

Several months after Respondent redeemed his investment, KIOSK sold for a substantial profit. Respondent thereafter sued Petitioners for, amongst other things, fraud in the inducement. The fraud claims were predicated on Respondent's belief that at the time he requested to redeem his investment, Petitioners knew that the sale of KIOSK was imminent and not merely a remote future possibility as represented by DeAvila. Respondent maintained that Petitioners intentionally withheld this information in order to fraudulently induce him to sell his units early. Petitioners moved for summary judgment and, following a hearing, the court granted partial summary judgment. The three separate fraud claims against Petitioners, however, survived.

Shortly thereafter, Respondent moved to amend his complaint to add a claim for punitive damages. At the ensuing hearing, Respondent argued that the court's previous denial of Petitioners' motion for summary judgment on the fraud claims was the functional equivalent of a determination by the court that there was a reasonable evidentiary basis for punitive damages. In support thereof, Respondent cited First Interstate Development Corp. v. Ablanedo , 511 So.2d 536, 539 (Fla. 1987) for the proposition that "proof of fraud sufficient to support compensatory damages necessarily is sufficient to create a jury question regarding punitive damages." Petitioners countered that regardless of the previous ruling on the motion for summary judgment, the court was required to conduct a section 768.72 evidentiary inquiry to determine whether there was evidence in the record which would provide a reasonable basis for recovery of punitive damages.

After hearing argument from both parties, the trial court made it abundantly clear that it did not believe Respondent established a reasonable evidentiary basis for punitive damages:

[T]he ipso facto argument that you used, while it may or may not be viable under Florida law, despite the statutory requirement of proffer of evidence, under these particular facts, I'm hard-pressed to watch a jury or allow a jury to consider [punitive damages] at the same time they're considering the underlying claim.
Because again, these facts are not the type of egregious facts, at least not from my perspective, that we usually see to justify a claim for punitive damages.... These facts are just not that compelling ....

Nonetheless, believing that it was constrained by the holding in Ablanedo , the court granted Respondent's motion to amend. The court also abated all financial discovery so that Petitioners could either seek review of the order or file a motion for summary judgment in order to test the adequacy of the punitive damages claim. This petition follows.

"Certiorari review is available to determine whether a trial court has complied with the procedural requirements of section 768.72, but not to review the sufficiency of the evidence." Tilton v. Wrobel , 198 So.3d 909, 910 (Fla. 4th DCA 2016).

Section 768.72, Florida Statutes, provides in relevant part that: "In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." § 768.72(1), Fla. Stat. (2018). In other words, "[t]he statute requires the trial court to act as a gatekeeper and precludes a claim for punitive damages where there is no reasonable evidentiary basis for recovery." Bistline v. Rogers , 215 So.3d 607, 611 (Fla. 4th DCA 2017). This is because punitive damages are reserved for truly culpable behavior and are intended to "express society's collective outrage." Imperial Majesty Cruise Line, LLC v. Weitnauer Duty Free, Inc. , 987 So.2d 706, 708 (Fla. 4th DCA 2008) (quoting Hosp. Corp. of Lake Worth v. Romaguera , 511 So.2d 559, 565 (Fla. 4th DCA 1986) ).

In the present case, it is clear that the trial court did not follow the procedural requirements of section 768.72 in ruling on Respondent's motion to amend. Nonetheless, Respondent maintains that the court did not depart from the essential requirements of the law because it applied the correct law, namely Ablanedo . We disagree.

A careful reading of Ablanedo demonstrates that the case does not stand for the proposition that a trial court's denial of a motion for summary judgment on a fraud claim is the functional equivalent of a determination by the court that there is a reasonable evidentiary basis for punitive damages. Ablanedo involved a situation where the trial court allowed the jury to consider the issue of compensatory damages on a fraud claim at the close of evidence, but at the same time entered a directed verdict on the punitive damages claim. 511 So.2d at 538. Accordingly, the court's holding that "proof of fraud sufficient to support compensatory damages necessarily is sufficient to create a jury question regarding punitive damages" was made in the specific context of the sufficiency of the evidence on a motion for directed verdict. Id. at 539 ; see also Rappaport v. Jimmy Bryan Toyota of Fort Lauderdale, Inc. , 522 So.2d 1005, 1006 (Fla. 4th DCA 1988). That case did not involve, as here, the issue of whether a ruling by the trial court on a motion for summary judgment that a defendant has failed to establish that there are no material issues of fact regarding a fraud claim is the functional equivalent of a plaintiff establishing, for pleading purposes, a reasonable evidentiary basis for punitive damages. See Ameriseal of N. E. Fla., Inc. v. Leiffer , 738 So.2d 993, 995 (Fla. 5th DCA 1999) (recognizing that "[a]lthough similar, summary judgments and directed verdicts are not identical").

Moreover, even if Ablanedo does stand for the proposition that a trial court's denial of a motion for summary judgment on a fraud claim is the functional equivalent of a determination by the court that there is a reasonable evidentiary basis for punitive damages, the enactment of section 768.72 undercuts the scope of that ruling. Unlike consideration of a motion for summary judgment which precludes the court from weighing the evidence or reaching conclusions therefrom, section 768.72 necessarily requires the court to weigh the evidence and act as a factfinder. It is axiomatic, then, that the analysis required for a motion for summary judgment cannot be substituted for the analysis required under the statute.

The First District's holding in Noack v. Blue Cross & Blue Shield of Florida, Inc. , 872 So.2d 370 (Fla. 1st DCA 2004) is instructive. In that case, the petitioners sought mandamus relief to compel the trial court to grant their motion seeking leave to amend the complaint to assert a claim for punitive damages. Id. at 371. The petitioners maintained that the trial court's ruling was contrary to the law of the case as established in an earlier appeal wherein the appellate court reversed an order granting the respondents' motion for summary judgment on the petitioners' fraud claim. Id. In rejecting the petitioners' argument, the court held that:

The conventional analysis utilized in resolving a summary judgment motion has no application in the context of a punitive damages determination under section 768.72. Whether the entitlement to plead a claim for punitive damages has been established must be determined under the procedure and standards set forth in the statute, and our finding in the earlier appeal that respondents failed to establish that there is no material issue of disputed fact concerning the fraud claim is not the equivalent of petitioners establishing a reasonable evidentiary basis for punitive damages.

Id. at 371-72 (internal citation omitted).

In support of its holding, the Noack court relied on the Fifth District's decision in Potter v. S.A.K. Development Corp. , 678 So.2d 472 (Fla. 5th DCA 1996). In Potter , the court considered, and ultimately rejected, the argument that if a trial court has determined that there is a material issue of fact on a claim for fraud, then, ipso facto , the procedural requirements of section 768.72 have been satisfied:

We cannot agree that a finding by the trial court that a defendant has failed to establish that there is no material issue of fact concerning whether he perpetrated a fraud is the equivalent of the plaintiff establishing a reasonable evidentiary basis for punitive damages.
This case illustrates the sort of confusion that can result when the statutory procedure is not complied with. Before a defendant may be subjected to financial worth discovery and required to defend a punitive damage claim, the statute requires that the plaintiff provide the court with a reasonable evidentiary basis for punitive damages. This procedure needs to be followed exactly as required by statute, using the standards set forth in the statute .

Id. at 473 (emphasis added); see also Hudson Hotels Corp. v. Seagate Beach Quarters, Inc. , 696 So.2d 867, 868 (Fla. 4th DCA 1997) (Gross, J., dissenting) (favorably citing Potter for the proposition that "[a] holding that a defendant has failed to establish the absence of any material fact on a plaintiff's tortious interference claim is not the equivalent of the plaintiff establishing a reasonable evidentiary basis for punitive damages").

Accordingly, we grant the petition and quash the trial court's order granting the motion to amend to assert a claim for punitive damages.

Petition granted.

Taylor and Levine, JJ., concur.

      As the majority in Hudson Hotels denied the petition without explanation, that case is tantamount to a per curiam affirmance without written opinion and has no precedential value. St. Fort v. Post, Buckley, Schuh & Jernigan , 902 So.2d 244, 248 (Fla. 4th DCA 2005) ("We reiterate that a per curiam affirmance without written opinion, even one with a written dissent, has no precedential value and should not be relied on for anything other than res judicata.").


author: Klingensmith, J.

text:
    Gregory STICKNEY, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D17-1004 17-1005
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    Carey Haughwout, Public Defender, and Jesse Woodson Isom, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Melynda L. Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Klingensmith, J.

Appellant Gregory Stickney appeals his sentence for violating his probation. Stickney raises several issues on appeal, but we find merit in only two. First, the trial court erred by failing to file written findings pursuant to section 948.06(8)(e)1., Florida Statutes (2017), to support its determination that Appellant posed a danger to the community as a violent felony offender of special concern ("VFOSC"). Second, the trial court erred by failing to enter an order listing the special conditions of probation that Appellant violated. We reverse and remand as to those issues. We affirm all other issues raised on appeal without comment.

"The legality of a trial court's sentencing is reviewed de novo." Whittaker v. State , 223 So.3d 270, 272 (Fla. 4th DCA 2017).

On the first issue, both parties agree that the trial court was required to enter a written order with specific findings to establish that Appellant is a danger to the community. See § 948.06(8)(e)1., Fla. Stat.; Barber v. State , 207 So.3d 379, 384 (Fla. 5th DCA 2016). The point of contention is whether the trial court must hold a new hearing.

In Arnone v. State , 204 So.3d 556 (Fla. 4th DCA 2016), this court held:

[W]here a court orally pronounces a reason, consistent with one or more of the factors listed under section 948.06(8)(e)1, for its finding that the defendant, as a violent felony offender of special concern, poses a danger to the community, but fails to provide written reasons for its finding, the proper remedy is to affirm the revocation of the defendant's probation, but remand for entry of a written order conforming to the court's oral pronouncement. Martin v. State , 87 So.3d 813, 813 (Fla. 2d DCA 2012) ; Bell v. State , 150 So.3d 1214, 1214 (Fla. 5th DCA 2014).

Id. at 557.

Here, the trial court orally pronounced reasons consistent with one or more factors under section 948.06(8)(e)1. Thus, while a written order conforming to the court's oral pronouncement is required, a new sentencing hearing is unnecessary.

As to the second issue, Florida law also requires a written order specifying what probation conditions were violated. See Musto v. State , 174 So.3d 568, 569-70 (Fla. 4th DCA 2015). "When 'the order of revocation fails to specify the specific violations found, it must be reversed for that reason alone.' " Wright v. State , 958 So.2d 594, 595 (Fla. 4th DCA 2007) (quoting Larangera v. State , 686 So.2d 697, 698 (Fla. 4th DCA 1996) ). But if the basis of the revocation can be verified from the hearing transcript and other court documents, the matter should be remanded for entry of an order listing the specific conditions violated. See Robinson v. State , 74 So.3d 570, 572 (Fla. 4th DCA 2011). Here, it is clear from the record which conditions of probation were violated; the trial court merely failed to memorialize them in the revocation order.

Therefore, we affirm Appellant's designation as a VFOSC, but remand for the trial court to enter a proper written order conforming to his oral pronouncement without a new sentencing hearing. See § 948.06(8)(e)1., Fla. Stat.; Arnone , 204 So.3d at 557. We also remand for entry of a written order of revocation of probation specifying the conditions appellant was found to have violated. See Musto , 174 So.3d at 569-70 ; Robinson , 74 So.3d at 572 ; Wright , 958 So.2d at 595.

Affirmed in part, reversed in part, and remanded.

Gerber, C.J., and Forst, J., concur.


author: Ciklin, J.

text:
    Rob ALEXANDER, M.D., Anesco North Broward, LLC and Edward Punzalan, CRNA, Appellants, v. Susan KALITAN, Barry University, Inc., Eleidy Miedes, SRNA and North Broward Hospital District d/b/a Broward General Medical Center, Appellees.
    No. 4D17-2716
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    Dinah Stein and Mark Hicks of Hicks, Porter, Ebenfeld & Stein, P.A., Miami; and Robert J. Cousins and Scott C. Sankey of Quintairos, Prieto, Wood & Boyer, P.A., Fort Lauderdale, for appellants.
    Philip M. Burlington and Nichole J. Segal of Burlington & Rockenbach, P.A., West Palm Beach; and Scott Schlesinger of Schlesinger Law Offices, P.A., Fort Lauderdale, for appellee Susan Kalitan.
   Ciklin, J.

This matter is before us for a second time.

Generally speaking, interest on a money judgment in a tort case runs from the date of the judgment. But a rule of appellate procedure provides an exception when a reversal on appeal requires the entry of a money judgment, in which case, interest runs from the date of the verdict. The parties dispute whether this rule applies in the instant case. Because this court's previous reversal required modification of an existing money judgment as opposed to initial entry of a money judgment, we agree with the appellants that the rule does not apply and we reverse.

The appellee, Susan Kalitan ("the plaintiff"), sued the appellants ("the defendants") for medical malpractice and won a sizable jury award, but the trial court reduced it based on a statute capping noneconomic damages in such cases. Consistent with Florida law the trial court imposed post-judgment interest from the date of the final judgment at a rate of 4.75 percent, per anum.

On appeal, we found that the statute limiting noneconomic damages in medical malpractice cases was unconstitutional and we reversed. See N. Broward Hosp. Dist. v. Kalitan , 174 So.3d 403, 413 (Fla. 4th DCA 2015). We gave the trial court the following instructions:

The trial court is directed to reinstate the total damages award as found by the jury, though these damages may still be limited by the doctrine of sovereign immunity. Also, in the corrected final judgment, the University is not to be held liable for the damages attributable to the Nurse. As no challenge was raised as to liability in any other context, nor was a challenge raised regarding Plaintiff's economic damages award, those portions of the final judgment are affirmed.

Id. at 413-14.

On remand, the plaintiff moved for entry of an amended final judgment and requested interest to accrue from the date of the verdict citing rule 9.340(c), Florida Rules of Appellate Procedure, which requires interest to run from the date of the verdict when a reversal on appeal requires the entry of a money judgment. In response, the defendants asserted that the rule did not apply, as a money judgment had already been entered prior to the appeal, and thus the reversal did not result in entry of a money judgment but merely modification of a previously entered money judgment.

The trial court was persuaded by the plaintiff's argument and ruled that interest would accrue from the date of the verdict. As support, the trial court cited Hyundai Motor Co. v. Ferayorni , 876 So.2d 680 (Fla. 4th DCA 2004), which the trial court believed to be "right on point." Additionally, the trial court modified the previously entered final judgment so that the interest rate in effect at the time of the verdict, a fixed 6 percent rate, would apply rather than the 4.75 percent rate applied in the original judgment.

On appeal, the defendants argue that rule 9.340(c) is not applicable when a money judgment is partially affirmed on appeal and remanded only for modification of the damage award. The defendants also argue that the trial court violated their vested right to the lower 4.75 percent interest rate imposed in the original judgment. The plaintiff responds that the trial court correctly found that the appellate rule applied based on opinions interpreting the rule. We "review de novo a trial court's decision regarding judgment interest." R.J. Reynolds Tobacco Co. v. Evers , 232 So.3d 457, 465 (Fla. 2d DCA 2017).

Our analysis begins with section 55.03(2), Florida Statutes (2008), which governs interest on judgments and provides in pertinent part that "[t]he rate of interest stated in the judgment accrues on the judgment until it is paid." § 55.03(2), Fla. Stat. Section 55.03(3) provides that "[t]he interest rate established at the time a judgment is obtained shall remain the same until the judgment is paid." Our courts have cited to section 55.03 in recognizing that generally, interest accrues from the date judgment is entered. See Amerace Corp. v. Stallings , 823 So.2d 110, 114 (Fla. 2002) (finding the plaintiffs were not entitled to interest from the date of the verdict, and observing that "the plain language of section 55.03... specifically provides that interest does not accrue until the date of the judgment , not verdict") (emphasis in original); Evers , 232 So.3d at 465 ("Generally, interest on a money judgment begins accruing on the date of judgment."); Shoemaker v. Sliger , 187 So.3d 863, 865 (Fla. 5th DCA 2016) ("Ordinarily, interest on a money judgment in a tort case begins to accrue on the date that the trial court enters the judgment fixing the amount of the monetary award.").

However, appellate rule 9.340(c) provides an exception to the rule:

Entry of Money Judgment. If a judgment of reversal is entered that requires the entry of a money judgment on a verdict, the mandate shall be deemed to require such money judgment to be entered as of the date of the verdict.

In Green v. Rety , 616 So.2d 433, 434 (Fla. 1993), the Florida Supreme Court addressed application of the rule in a case where the trial court withheld judgment and ultimately ordered a new trial after the plaintiff declined a remittitur. The Florida Supreme Court recognized that the rule applied where the appellate court reversed the trial court and on remand the trial court had no discretion but to enter a money judgment. Id. at 435.

Years later, in Amerace Corp. , 823 So.2d at 113, the Florida Supreme Court addressed the interplay between rule 9.340(c) and the general rule that interest runs from the date of the judgment. Because of post-trial matters, judgment in the Amerace case was entered many months after the verdict was returned, and the plaintiffs sought to have interest run from the date of the verdict. Id. at 111-12. The trial court rejected the plaintiffs' request for interest between the verdict and entry of the judgment. Id. at 112. The Second District reversed on the interest issue. Id. On appeal, the supreme court held that the plaintiffs were not entitled to post-verdict, pre-judgment interest. Id. at 114. The court reasoned that with the exception of Green , the court had never permitted post-verdict, pre-judgment interest. Id. at 113. The court distinguished Green : "The controversy in Green arose because the trial court originally withheld judgment. Since the appellate process can last several months or even years, rule 9.340(c) provides that, in cases such as Green , interest should be computed from the date of the verdict." Id.

The Amerace court also noted that the trial court stated that it would have entered a judgment sooner after verdict if the plaintiffs had requested the court to do so, and it opined that "the proper procedure in this case would have been to request that the court enter a judgment promptly after the verdict." Id. at 113-14. The court asserted that its holding was "further bolstered by the plain language of section 55.03, Florida Statutes... which specifically provides that interest does not accrue until the date of the judgment , not verdict." Id. at 114 (emphasis in original).

Consistent with Green and Amerace , our courts have held that appellate rule 9.340(c) does not apply under the circumstances present in the instant case-that is, when a money judgment was entered prior to appeal and the mandate issued by the appellate court requires only the modification of that judgment rather than the initial entry of a money judgment. See Shoemaker , 187 So.3d at 865 ("[W]here the trial court originally entered a money judgment and only the amount of the award is modified after an appeal, there is no logical reason to employ [ rule 9.340(c) ]."); Evers , 232 So.3d at 466 ("Where a party appeals a final judgment and only the amount of the award is modified after the appeal, the accrual date for interest does not change and the interest accrues from the date of the original judgment as modified.");

St. Cloud Utils. v. Moore , 355 So.2d 446, 447-48 (Fla. 4th DCA 1978) (finding that predecessor to rule 9.340(c) did not apply and reasoning that "our previous reversal in this case did not require the entry of a money judgment for the simple reason that one for the exact sum had already been entered and, in effect, only a modification of that existing judgment was required") (footnote omitted); Gilmore v. Morrison , 341 So.2d 779, 780 (Fla. 4th DCA 1976) ("[W]here a money judgment has been modified on appeal and the only action necessary in the trial court is compliance with the mandate of the appellate court, interest on the judgment as modified runs from the date of the original judgment."). The Fifth District elaborated on the logic behind this interpretation of the rule, as touched on by the supreme court in Amerace :

But for the rule, in a case where a money judgment was not entered below, interest would only begin to accrue after the court of appeal ruled, after the appellate motions for rehearing were resolved, after the mandate issued, and once the judgment for money damages was finally entered, regardless of how many months intervened between the verdict and entry of the money judgment. Delaying interest in that fashion would financially punish the successful appellant by depriving post-trial interest for a considerable time. The rule avoids this unfair result.
However, where the trial court originally entered a money judgment and only the amount of the award is modified after an appeal, there is no logical reason to employ the rule. Under those circumstances, there is already a starting point for the accrual of interest, namely the date on which the original judgment was entered. Amerace , 823 So.2d 110. The rule, by its plain language, applies only when the reversal calls for entry of a money judgment; it does not address, and therefore does not apply, where the mandate requires entry of an amended final judgment that only changes the amount of the monetary award.

Shoemaker , 187 So.3d at 865.

In spite of this body of case law, and the fact that the reversal in this case did not require the entry of a money judgment but rather the modification of one, the plaintiff argues that the trial court correctly modified the judgment so that interest would run from the date of the verdict. The plaintiff relies on two cases, General Motors Corp. v. McGee , 867 So.2d 1244 (Fla. 4th DCA 2004), and the opinion relied on by the trial court, Ferayorni , 876 So.2d 680. Neither of these cases supports the plaintiff's position.

In McGee , an appeal was taken after the trial court entered a money judgment, and on remand, the trial court awarded post-verdict, pre-judgment interest. McGee , 867 So.2d at 1245. We affirmed based on rule 9.340(c). Id. at 1245-46. But the issue of whether the rule applied was waived in the appeal. Instead, General Motors acknowledged that rule 9.340(c) applied and argued that post-verdict, pre-judgment interest would be inequitable under the circumstances of the case. Id. at 1246. Thus, this court never addressed the actual question raised in this appeal.

The plaintiff also relies on Ferayorni , the opinion the trial court found comparable to and on point with the instant case. On appeal in Ferayorni , this court affirmed an award of post-verdict, pre-judgment interest which was imposed after we affirmed on liability but reversed the remittitur. Ferayorni , 876 So.2d at 681. The plaintiff's and trial court's reliance on Ferayorni is misplaced: It does not appear from the Ferayorni opinion that this court was presented with the question raised in the instant appeal.

The Fifth District has read Ferayorni as holding that " rule 9.340(c) applies to all post-appeal amended money judgments." Shoemaker , 187 So.3d at 866. We do not read Ferayorni so expansively. First, the opinion does not contain such an assertion. Second, the reasoning contained in the opinion must be read in the context of the argument presented to the court, namely that the Amerace opinion could not be reconciled with rule 9.340(c) and thus post-verdict, pre-judgment interest could not be awarded. Ferayorni , 876 So.2d at 682. In the opinion, we recognized the holding of Amerace -that interest runs from the date of the judgment. Id. We also recognized rule 9.340(c)'s dictate that under the circumstances prescribed by the rule, interest runs from the date of the verdict. Id. (citing Green , 616 So.2d 433 ). We found no conflict between Amerace and rule 9.340(c). Id. Additionally, we found that the party seeking post-verdict interest had not caused the delay in judgment and thus that could not be a reason not to apply rule 9.340(c). Id.

There is no indication in the Ferayorni opinion that the appellant argued what is argued here-that the rule does not apply because the mandate requires only modification of a previously-entered money judgment. Thus, it is not apparent that this court entertained any such claim. Notably, when the Fifth District certified conflict with Ferayorni on the issue of whether rule 9.340(c) applies where a reversal requires only a modification of a previously entered money judgment, see Shoemaker v. Sliger , 207 So.3d 256, 257 (Fla. 5th DCA 2016), the Florida Supreme Court declined to take jurisdiction. See Sliger v. Shoemaker , No. SC16-766, 2016 WL 6801102 (Fla. Nov. 16, 2016).

In sum, rule 9.340(c) is an exception to the general rule that interest runs from the date a judgment is entered. The appellate rule exception only applies when reversal on appeal results in the initial entry of a money judgment, not when reversal on appeal requires the modification of a previously entered money judgment. Because the latter is the case here, the rule does not apply, and the trial court erred in modifying the final judgment so that interest would run from the date of the verdict.

We reverse and remand for the trial court to amend the final judgment so that it reinstates the provisions contained in the original judgment regarding the accrual of interest and the interest rate.

Reversed and remanded with instructions.

Taylor and Conner, JJ., concur.

      At the time of the verdict, June 2011, a non-variable interest rate applied pursuant to section 55.03(3), Florida Statutes (2011). But the statute was amended, and effective July 1, 2011, a variable interest rate applied. See Ch. 2011-169, § 1, Laws of Fla. (2011).