author: SILBERMAN, Judge.

text:
    Virginia CRARY, Appellant, v. TRI-PAR ESTATES PARK AND RECREATION DISTRICT, an Independent Special Taxing District, Appellee.
    Case No. 2D17-3540
    District Court of Appeal of Florida, Second District.
    Opinion filed March 27, 2019
    Craig C. Crary of the Law Office of Craig C. Crary, P.A., Sarasota, for Appellant.
    David L. Boyette and Jason T. Gaskill of Adams and Reese LLP, Sarasota, for Appellee.
    BY ORDER OF THE COURT:
   Appellee's motion for clarification is granted. The prior opinion dated January 4, 2019, is withdrawn, and the attached opinion is issued in its place. Appellee's motion for rehearing is denied. No further motions for rehearing or clarification will be entertained.

I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.

SILBERMAN, Judge.

This appeal presents the legal question of whether Tri-Par Estates Park and Recreation District, an independent special taxing district, has the authority to enforce rules and regulations promulgated by its Board of Trustees governing the use of its facilities. We answer this question in the negative because Tri-Par's charter does not provide for the enforcement of its rules and regulations and there are no other legislative enactments that confer such power. We therefore reverse the final summary judgment entered in Tri-Par's favor.

Tri-Par is an age fifty-five and older deed-restricted community of mobile homes with facilities or common areas including a pool, spa, clubhouse, recreation hall, exercise room, laundry room, and shuffleboard courts. Tri-Par is also an independent special taxing district that was incorporated into a park and recreation district in 1978 by special act. See ch. 78-618, § 1, Laws of Fla. Tri-Par's charter was amended by the legislature in 2001 and is now codified in chapter 2001-343, Laws of Florida ("the Enabling Act").

Tri-Par conducts its business through its Board of Trustees, and the Enabling Act provides the Board powers that include the following:

Section 15. The trustees shall supervise all real and personal property owned by the district, and shall have the following powers in addition to those already herein enumerated:
....
(g) To promulgate reasonable rules and regulations governing the use of the facilities of the district.
(h) To use district funds in the administration and enforcement of the deed restrictions as filed in the Sarasota County public records for properties within the district.

Ch. 2001-343, § 15. The Enabling Act also contains the following provision regarding the Board's authority to adopt rules and regulations:

Section 17. A record shall be kept of all meetings of the board of trustees and in such meetings a concurrence of a majority of said trustees shall be necessary to any affirmative action taken by the board. Said trustees may adopt such rules and regulations, not inconsistent with any portion of this act, as it may deem necessary or convenient in and about the transaction of its business and in carrying out the provisions of this act.

Ch. 2001-343, § 17 (emphasis added).

In 1999, Tri-Par recorded a Declaration of Covenants, Conditions and Restrictions ("Deed Restrictions") in Sarasota County. In 2006, Tri-Par recorded an amendment to the Deed Restrictions which conferred on the Board the following additional authority:

22. In addition to other powers and duties of the Board of Trustees in the administration and enforcement of the deed restrictions and the Rules and Regulations, the Board of Trustees or a committee designated by the Board of Trustees shall have all the powers and duties necessary and/or convenient for levying reasonable fines against property owners and their licensees, invitees or other occupant(s) of the mobile homes who fail to comply with any provision of the deed restrictions or properly promulgated rules of the community....

(Emphasis added.) In 2015, the Board promulgated Rules and Regulations that, in Item 5.08, specifically provide the Board authority to revoke lot owners' access to the facilities or common areas for rules violations. Item 5.08 also provides those accused of rules violations the right to a hearing before a quorum of the Board or its Executive Committee.

In September 2016, Tri-Par filed a declaratory judgment action against lot owner Virginia Crary in which it asserted that Crary had repeatedly violated its Rules and Regulations and refused to recognize Tri-Par's enforcement authority. Tri-Par eventually obtained a final summary judgment providing, in pertinent part, that

(iii) Tri-Par is entitled to enforce the provisions in the Deed Restrictions, the Enabling Act and the rules and regulations promulgated by the Board of Trustees;
(iv) the enforcing authority of Tri-Par includes the right to suspend common area use rights; and
(v) the enforcement authority of Tri-Par includes the authority to levy fines against lot owners and their licensees, invitees or other occupants of the mobile homes....
(vi) the rules promulgated by Tri-Par establish a due process procedure by which anyone subject to enforcement can have a hearing before representatives of the trustees.

Crary recognizes the Board's authority to promulgate its Rules and Regulations.

However, Crary argues that the Board does not have the authority to enforce its Rules and Regulations because that power was not conferred by the legislature in the Enabling Act. Tri-Par argues the Enabling Act implicitly provides enforcement authority. Tri-Par alternatively argues that both the Rules and Regulations and the Deed Restrictions explicitly provide the Board enforcement authority. We conclude that the Enabling Act does not provide for the enforcement of Tri-Par's Rules and Regulations. We also conclude that the Rules and Regulations and the Deed Restrictions do not confer enforcement authority on Tri-Par and the Board because they were not enacted by the legislature.

Because Tri-Par is a special taxing district created by the legislature, its powers are limited to those granted by the legislature. See Bd. of Comm'rs of Jupiter Inlet Dist. v. Thibadeau, 956 So.2d 529, 532 (Fla. 4th DCA 2007). Moreover, article I, section 18, of the Florida Constitution precludes such an administrative agency from imposing a prison sentence or "any other penalty except as provided by law." See Op. Att'y Gen. Fla. 83-92 (1983) (quoting art. I, § 18, Fla. Const.). And the term "by law" means a legislative enactment and not an act by the district's governing authority. Art. I, § 18, Fla. Const.; see also Broward County v. La Rosa, 484 So.2d 1374, 1376 n.3 (Fla. 4th DCA 1986), approved, 505 So.2d 422 (Fla. 1987) ; Op. Att'y Gen. Fla. 83-92. The legislative enactment does not have to expressly confer authority on the administrative agency; instead, "an agency has the power to take actions that are 'necessarily or reasonably incident to the powers expressly granted' in a statute." Robinson v. Dep't of Health, 89 So.3d 1079, 1082 (Fla. 1st DCA 2012) (quoting Hall v. Career Serv. Comm'n, 478 So.2d 1111, 1112 (Fla. 1st DCA 1985) ).

The legislative enactment that grants Tri-Par's authority as a taxing district is the Enabling Act. And while the Enabling Act grants the Board the power to promulgate rules and regulations, it does not provide the power to enforce the rules and regulations. Cf. § 418.22(8), Fla. Stat. (2016) (providing a recreation district created under section 418.20 the power "[t]o adopt and enforce rules for the use of the recreational facilities owned or operated by the district"). Since the Enabling Act has not made any provision for the enforcement of the Rules or Regulations, Tri-Par and the Board do not have enforcement authority. See Op. Att'y Gen. Fla. 83-92.

The Enabling Act is analogous to the charter in opinion 83-92 which the Attorney General ("AG") construed as not providing a Park and Recreation District the authority to enforce its own rules and regulations. See id. In opinion 83-92, the district's board of trustees sought to use the city's police department and the county court to enforce the district's rules and regulations governing the use of its facilities. Id. In order to determine the extent of the board's authority to delegate enforcement of its rules and regulations, the AG looked to the board's charter.

The AG noted that the charter authorizes the board to promulgate rules and regulations regarding the use of its facilities but that it "makes no provision for enforcement, does not expressly authorize the district's governing board to enforce such rules, and does not prescribe any penalties for the violation of such rules and regulations." Id. In the absence of any such provisions, the AG opined that article I, section 18, of the Florida Constitution, prohibits the board or any other governmental unit from imposing penalties for violations of its rules and regulations. Id.

Like the charter in opinion 83-92, the Enabling Act provides for the promulgation of Rules and Regulations but does not expressly authorize or make any provision for enforcement and does not prescribe any penalties for the violation of those Rules and Regulations. Thus Tri-Par is prohibited by article I, section 18 from imposing penalties for the violation of its Rules and Regulations.

Tri-Par argues that section 15(h) of the Enabling Act implicitly provides enforcement authority because it authorizes Tri-Par "[t]o use district funds in the administration and enforcement of the deed restrictions." However, section 15(h) provides for enforcement of Tri-Par's Deed Restrictions; it does not mention enforcement of Tri-Par's Rules and Regulations.

Tri-Par alternatively argues that the Rules and Regulations and Deed Restrictions explicitly provide the Board enforcement authority. However, the Rules and Regulations and Deed Restrictions are not legislative enactments. Absent legislation providing enforcement authority, the Board is without the authority to provide for the assessment of penalties. See Dep't of Envtl. Regulation v. Puckett Oil Co., Inc., 577 So.2d 988, 991-92 (Fla. 1st DCA 1991) (holding that DOAH did not have the authority to adopt a rule setting a jurisdictional time limitation on the right of any agency to respond to a petition for fees or costs); La Rosa, 484 So.2d at 1377 (holding that Broward County lacked the authority to adopt an ordinance authorizing an administrative agency to issue cease and desist orders and assess penalties for illegal discrimination).

In conclusion, the Enabling Act does not provide for the enforcement of Tri-Par's Rules and Regulations, either explicitly or implicitly. Instead, the enforcement power provided by the Act is limited to the enforcement of Tri-Par's Deed Restrictions. Furthermore, neither Tri-Par's Rules and Regulations nor its Deed Restrictions constitutes a legislative enactment conferring such power. Accordingly, the trial court erred in determining that Tri-Par has the authority to enforce its Rules and Regulations and in setting forth the scope of that authority by looking outside of the Enabling Act. The final summary judgment is therefore reversed and remanded.

Reversed and remanded.

CASANUEVA and MORRIS, JJ., Concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Harvey B. DONLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3174
    District Court of Appeal of Florida, First District.
    March 28, 2019
    Harvey B. Donley, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

Petitioner has filed a pro se petition for belated appeal following his conviction for trafficking in opium. To the extent Petitioner alleges ineffective assistance of appellate counsel on direct appeal, the petition is dismissed as untimely. See Fla. R. App. P. 9.141(d)(5). To the extent Petitioner complains about actions taken by counsel during postconviction proceedings, the petition is denied. See Tompkins v. State , 994 So.2d 1072, 1088 (Fla. 2008) (noting that claims of ineffective assistance of postconviction counsel are not cognizable).

Roberts, Ray, and Jay, JJ., concur.


author: Osterhaus, J.,

text:
    Michael John TRIATIK, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1426
    District Court of Appeal of Florida, First District.
    March 28, 2019
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Barbara Debelius, Assistant Attorney General, Tallahassee, for Appellee.
   Osterhaus, J.,

Michael Triatik argues that he is entitled to receive credit for time spent in county jail against all nine counts of his sentence, instead of against count 1 only. We disagree that jail credit must be given against all of the counts because he was sentenced with consecutive sentences. But we agree that credit should have been applied to the four misdemeanor counts because his jail credit time plus probation-served time exceeded the statutory maximum for these counts already by the time the court revoked his probation and sentenced him to consecutive sentences.

I.

In May 2017, Michael Triatik pled no-contest to nine charges, including extortion, felony failure to appear, two counts of tampering with evidence, grand theft, and four counts of distribution of obscene material. The trial court withheld the imposition of a sentence and ordered Mr. Triatik to serve 24 months community control followed by 36 months probation for counts 1-5, running concurrently. For misdemeanor counts 6-9, the court ordered 12 months of probation for each count, concurrent with each other and with count 1. Mr. Triatik had spent 258 days in jail prior to the trial court's order imposing community control and probation.

About six months after this disposition, the State filed an affidavit of violation. Mr. Triatik had been arrested on 25 new criminal charges and was found in violation of his probation. The trial court then sentenced him to prison with consecutive sentences on the first five original counts-15 years incarceration for count 1; 5 years incarceration each for counts 2-5-as well as to 364 days in jail each for counts 6-9, concurrent with each other and with count 5. The court awarded him jail credit for the 258 days only against count 1, and he appealed.

While Mr. Triatik's appeal was pending, he filed a Rule 3.800(b)(2) motion contending, in part, that he was entitled to additional jail credit, including 258 days on counts 2-9 of his sentence because the court had originally ordered concurrent terms of community control and probation on the counts. He also argued that the court was without jurisdiction over counts 6-9 because the 1-year probation period had run before the affidavit of violation was filed. The trial court rejected both of these arguments.

II.

Mr. Triatik's appeal of the motion to correct sentencing error involves purely legal issues which appellate courts review de novo. Daffin v. State , 31 So.3d 867, 870 (Fla. 1st DCA 2010).

A.

Mr. Triatik argues that he is entitled to have his original 258 jail credit days applied beyond count 1, to all of the counts, because the trial court originally imposed his community control and probationary conditions "concurrently" on all the counts. We do not agree with his argument. We recognize that

[a] defendant is entitled to an award of credit for all time spent in the county jail prior to sentencing in a violation case, which includes all time spent in the county jail prior to the original sentencing plus all time spent in the county jail prior to any subsequent violation sentencings.

McCool v. State , 211 So.3d 304, 305 (Fla. 1st DCA 2017) (quoting Jenkins v. State , 749 So.2d 527, 528 (Fla. 1st DCA 1999) ). And it is also true that when concurrent sentences are imposed, a defendant is awarded jail credit on all counts. State v. Rabedeau , 2 So.3d 191 (Fla. 2009).

But in this case, the only sentences imposed by the trial court were consecutive sentences. When consecutive sentences are imposed, "the defendant 'is not entitled to have his jail time credit pyramided by being given credit on each sentence for the full time he spends in jail awaiting disposition.' " Daniels v. State , 491 So.2d 543, 545 (Fla. 1986) (citation omitted). "[A] defendant who is convicted of multiple offenses and sentenced to consecutive terms of imprisonment must be given presentence jail credit only on the first of the consecutive sentences." Canete v. Fla. Dep't of Corr ., 967 So.2d 412, 415-16 (Fla. 1st DCA 2007). The trial court correctly followed the law here. Because Mr. Triatik was sentenced with consecutive sentences, and not concurrent ones, the trial court could lawfully apply his 258-day jail credit against count 1 only.

We understand Mr. Triatik's argument that the trial court locked itself into applying his jail credit across all the counts after it initially ordered him to serve community control and probation "concurrently." But the court's initial disposition didn't have this effect (except for the misdemeanor counts for the reason discussed below in B.). The rule from Rabedeau was that when incarcerative sentences have been imposed and served concurrently, and then subsequently changed to consecutive (after a probation violation), the defendant was entitled to have his jail credit applied on each of the concurrent sentences. 2 So.3d at 193-94.

In this case, however, the order of community control and probation did not impose an incarcerative sentence, or any "sentence," implicating Mr. Triatik's jail credits. The trial court's community control and probation order withheld sentence and did not constitute a sentence. See, e.g. , Mack v. State , 823 So.2d 746, 750 (Fla. 2002) ("probation is technically not a sentence"); State v. Summers , 642 So.2d 742, 744 (Fla. 1994) ("A probationary period is not a sentence."); Landeverde v. State , 769 So.2d 457, 462 (Fla. 4th DCA 2000) (discussing why, under Florida law, placing a defendant on probation and community supervision are generally not considered a "sentence"). The trial court ordered community control and probation in lieu of sentencing as a matter of its discretion and grace in accordance with what "the ends of justice and the welfare of society" appeared to require. § 948.01(2), Fla. Stat. (allowing a court to withhold sentencing and impose probation if it thinks a defendant is unlikely again to engage in criminal conduct). In the absence of a sentence, there was no requirement seven months later, when Mr. Triatik was actually sentenced, to offset his jail credit across all of the counts. At that point, the trial court was free to impose any sentence which it might have originally imposed, see § 948.06(2)(e), including imposing consecutive sentences with the application of jail credit limited to count 1. Only at sentencing did the trial court have to calculate and decide how his creditable jail time would be applied.

Barnishin v. State , 927 So.2d 68, 71 (Fla. 1st DCA 2006) (noting that "[n]ot until acquittal or initial sentencing does antecedent time in jail lose its protean character").

Thus, we see no error in the trial court's decision not to credit jail time against counts 2-5.

B.

For Mr. Triatik's misdemeanor offenses (counts 6-9), however, the facts of this case required the trial court to apply the 258 days of jail credit in order to keep the punishment from exceeding statutory maximums. Before his probation revocation and sentencing, Mr. Triatik had already satisfied the one-year maximum sentence for his misdemeanor offenses, counting the jail credit time plus the probation time which the court had ordered to be served concurrently . And so, the trial court no longer possessed jurisdiction to revoke probation and impose jail time on these counts by the time the affidavit of violation was filed.

When a trial court imposes probation, it must credit jail time against the probationary term if the combined time would exceed the statutory maximum sentence. See Grissinger v. State , 905 So.2d 982 (Fla. 4th DCA 2005) ; Baldwin v. State , 558 So.2d 173 (Fla. 5th DCA 1990). Here, the statutory maximum for counts 6-9 was one year. In May 2017, the court ordered concurrent one-year probationary terms for counts 6-9, before which Mr. Triatik had already spent 258 days in jail awaiting disposition. Seven months later, in December 2017, by the time the State filed the affidavit of violation, Mr. Triatik had served seven months of probation plus served 258 jail days. This combination of incarceration and probation time-all served before the probation revocation-exceeded the one-year statutory maximums applicable to counts 6-9. Thus, no probationary "balance" remained when the sentencing court revoked Mr. Triatik's probation and sentenced him to 364 days in jail. He had already served the maximum penalty for these counts and the court's jurisdiction to revoke his probation had been lost. See Aponte v. State , 896 So.2d 836, 838 (Fla. 1st DCA 2005) (citing Mundorff v. State , 890 So.2d 1234 (Fla. 1st DCA 2005) ("Because appellant's probation expired prior to his being charged with violating the terms and conditions thereof, the trial court no longer had jurisdiction to conduct a revocation hearing.") ). For this reason, we reverse the judgment and sentences imposed as to counts 6-9, and remand for them to be stricken.

III.

For the foregoing reasons, we AFFIRM in part and REVERSE in part the judgment and sentence, and REMAND for additional proceedings consistent with this opinion.

Rowe and Ray, JJ., concur.


text:
    James WATERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3653
    District Court of Appeal of Florida, First District.
    March 28, 2019
    James Waters, pro se, Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

The appellant raises five issues on appeal from the summary denial of his Florida Rule of Criminal Procedure 3.850 motion. We affirm Issues I, III, IV, and V without comment. We reverse and remand Issue II for an evidentiary hearing.

In 2012, the appellant was charged with second-degree murder, and he proceeded to trial in July 2013. At trial, the appellant, a convicted felon, admitted to carrying a gun, but claimed he shot the victim in self-defense. The trial court granted a motion for judgment of acquittal on second-degree murder, and the case went to the jury on the lesser offense of manslaughter. The parties struggled with the proper jury instruction for a defendant engaged in unlawful activity and ultimately agreed on certain standard jury instructions. The jury convicted the appellant of manslaughter and possession of a firearm by a convicted felon.

On appeal, the appellant argued the trial court's conflicting jury instructions amounted to fundamental error. This Court affirmed, finding the appellant had waived both claims of fundamental error by requesting the instructions he was challenging. Waters v. State , 174 So.3d 434, 435 (Fla. 1st DCA 2015) ( Waters I ). In the alternative, this Court concluded that any error in the instructions did not negate the appellant's only theory of defense because his defense "was not that he had no duty to retreat, but that the victim had thwarted his effort to flee the escalating violence, leaving him no option but to use deadly force because the force asserted against him by the victim 'was so great that he reasonably believed he was in imminent danger of death or great bodily harm.' " Id. Thus, the instructions as given would not have precluded the jury from finding, under the evidence presented, that the appellant's use of deadly force was justifiable. Id.

After his judgment and sentence was affirmed, the appellant filed a timely rule 3.850 motion. Claim one argued defense counsel was ineffective for failing to object to the jury instructions. Embedded within claim one were several sub-claims wherein the appellant argued counsel was ineffective for: convincing him not to pursue a Stand Your Ground defense under section 776.012, Florida Statutes (2012) ; failing to move to sever the possession of a firearm by a convicted felon charge; and failing to file a pretrial motion for Stand Your Ground Immunity under section 776.032, Florida Statutes (2012). The postconviction court summarily denied claim one, finding Waters I had already concluded any error in the challenged instructions did not vitiate the appellant's trial by negating his only theory of defense. The court found the same reason applied to the appellant's allegation that trial counsel was ineffective for failing to object to the instructions. The order did not address the sub-claims.

In Issue II on appeal, the appellant argues the postconviction court erred in ignoring his sub-claims, which should have been ruled upon, or if deemed insufficient, should have been remanded with the opportunity for him to amend his motion under Spera v. State , 971 So.2d 754 (Fla. 2007). We review the order summarily denying postconviction relief without an evidentiary hearing de novo and will affirm only where the appellant's claims are facially invalid or conclusively refuted by the record. Where no evidentiary hearing is held below, this Court must accept the defendant's factual allegations to the extent they are not refuted by the record. McLin v. State , 827 So.2d 948, 954 (Fla. 2002). See also Fla. R. App. P. 9.141(b)(2)(D).

Within claim one, the appellant raised a facially sufficient sub-claim that trial counsel should have pursued Stand Your Ground immunity under section 776.012. As to deficiency, he alleged that counsel was ineffective when the evidence existed to support such a defense. Cf. Andujar-Ruiz v. State , 205 So.3d 803 (Fla. 2d DCA 2016) (granting a petition for ineffective assistance of appellate counsel on the basis counsel was ineffective for failing to argue that fundamental error occurred when the trial court instructed the jury that the defendant had a duty to retreat if he was engaged in unlawful activity, which instruction deprived the appellant of a defense under section 776.012, Florida Statutes (2011) ). With regard to the prejudice prong, the appellant asserted that had counsel understood the distinction between section 776.013 and 776.012 and sought immunity from prosecution under section 776.012, the outcome would have been different. A successful motion to dismiss would have shielded the appellant from going to trial. Therefore, this Court's previous finding of no fundamental error in Waters I does not apply to undermine the allegation of prejudice.

Because we found potential merit in Issue II, we directed the State to file an answer brief pursuant to Toler v. State , 493 So.2d 489 (Fla. 1st DCA 1986). The State responded that counsel's decision not to pursue immunity was likely strategic because a motion for immunity could have resulted in additional inculpatory evidence at trial. Evaluation of whether counsel's decision was strategic typically requires an evidentiary hearing unless the strategy is so apparent on the face of the record as to preclude it. See Maldonado v. State , 183 So.3d 1106 (Fla. 1st DCA 2015). We cannot presume counsel acted in a strategic manner here given the rapidly evolving state of the law at the time of the appellant's trial. Compare State v. Hill , 95 So.3d 434 (Fla. 4th DCA 2012) (holding a convicted felon in possession of a firearm was engaged in unlawful activity under section 776.013 and not entitled to Stand Your Ground immunity) with Little v. State , 111 So.3d 214 (Fla. 2d DCA [April 10,] 2013) (certifying a conflict with Hill and holding a defense under section 776.012 did not preclude Stand Your Ground immunity).

The postconviction court did not address the appellant's sub-claims nor did it attach portions of the record to conclusively refute the claims; therefore, Issue II should be reversed and remanded for further proceedings. See O'Steen v. State , 247 So.3d 88 (Fla. 1st DCA 2018) (reversing and remanding where postconviction court failed to address defendant's facially sufficient claim of ineffective assistance of counsel).

AFFIRMED in part, REVERSED in part, and REMANDED.

Roberts, Wetherell, and Osterhaus, JJ., concur.


author: B.L. Thomas, C.J.

text:
    William E. CAMPBELL and Flora D. Campbell, Appellants, v. State of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 1D18-283
    District Court of Appeal of Florida, First District.
    March 28, 2019
    Andrew Prince Brigham and E. Scott Copeland of Brigham Property Rights Law Firm PLLC, Jacksonville, for Appellants.
    Wayne W. Lambert, General Counsel, Marc A. Peoples, Assistant General Counsel, Department of Transportation, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellants appeal the trial court's final judgment quieting title of the subject property to the Florida Department of Transportation under section 95.361, Florida Statutes. We affirm.

Facts

On March 17, 2004, Appellants purchased a 5.72-acre parcel of property in Duval County abutting the eastern boundary of State Road 5. In June 2005, the Florida Department of Transportation (the Department) approved construction plans for the River City Marketplace development. Based on a survey done by the Department, permits were issued for use of a publicly owned right-of-way on the edge of State Road 5 abutting Appellants' property. The new development required the developer to widen State Road 5 and place a drainage swale, gas lines and power lines on the publicly owned right-of-way on the eastern edge of State Road 5, abutting the western border of Appellant's property. Beginning in 2006 and continuing, routine maintenance was performed on the State Road 5 right-of-way, including the subject property; the maintenance involved mowing, litter pick-up, edging, mechanical sweeping, shoulder repair, tree trimming, ditch maintenance, curb, and sidewalk edging.

At his deposition, Appellant William Campbell testified that he had been generally aware of the widening of State Road 5 but was not aware of the specifics of the project. Campbell testified that, between 2005 and 2014, he visited his property three times.

In April 2015, Appellants began to develop the property and build a self-storage facility on it. In connection with this development, a surveyor marked the four corners of Appellants' property. As a result, Appellants and the Department discovered that the right-of-way used in connection with the River City Marketplace development was insufficient to support the work that had been permitted; the permits issued in 2005 were based on an incorrect DOT survey which indicated that the public right-of-way extended 100 feet from State Road 5, when the right-of-way actually extended only 80 feet. Thus, the subject property - a 20-foot-deep strip of land running along the western boundary of Appellants' property, a 7281-square-foot-portion - was encroached by the road widening.

On May 22, 2015, Appellants met with Department staff at the office in Jacksonville. At the meeting, a Department maintenance engineer conceded that the Department had made a mistake and wanted to resolve it. The engineer informed Appellants that he had conferred with the Department's legal department and could offer Appellants one of two options: the Department could purchase the affected property from Appellants, or the Department could move the drainage swale and utilities from Appellants' property and back onto the publicly owned right-of-way. The Department's assistant right-of-way manager told Appellants it was unclear whether a taking had actually occurred, that the Department had not ordered an appraisal on Appellants' property, and that the Department had not yet made a decision on how to proceed.

Internally, the Department determined that it would cost $ 197,000 to relocate the overhead structures on the encroached-upon property, and $ 269,000 to relocate underground infrastructure. The Department did not make an offer to Appellants, and on July 30, 2015, the Department filed a maintenance map claiming title to the subject property.

Appellants sued the Department for inverse condemnation, arguing that their property had been taken for public use without compensation. The Department filed a counterclaim to quiet title, arguing that section 95.361, Florida Statutes, had vested all right, title, and interest in the subject property to the Department.

At a bench trial, the maintenance contracts manager for the Department testified that, from 2006 until the time of trial, the Department hired contractors to maintain property along State Road 5, including Appellants' encroached-upon property. The manager testified that, under that contract, the Department issued specific work orders to be performed by the contractor and testified that routine maintenance on the State Road 5 right-of-way, including the subject property, involved mowing, litter pickup, edging, mechanical sweeping, shoulder repair, tree trimming, ditch maintenance, curb, and sidewalk edging.

A contracted project manager testified that the contractor maintained all state roads, including the subject property. The manager testified that the contractor's crews patrol the subject property twice a week and perform maintenance up to the tree line, including fixing potholes, striping, mowing, litter pick-up, tree trimming, weed eating, and cleaning ditches. The manager described the methods that the contractor used to document work performed under the contract and testified that he had never personally seen work performed on the subject property. A Department assistant maintenance engineer testified that the Department issued final acceptance of permitted work for the River City Marketplace development on May 22, 2007, indicating that all permitted work was complete and acceptable to the Department.

Appellant Flora Campbell recorded the May 22, 2015, conversation between Appellants and Department officials on her phone. Appellants offered a transcript of the recording as evidence at trial, arguing that it was probative of the fact that the Department made a representation and later changed its position. The trial court excluded the transcript, ruling that the Department employees had a reasonable expectation that their communications were private, and that the recording and transcript were inadmissible under section 934.06, Florida Statutes.

The trial court found that the Department had been maintaining the subject property since May 22, 2007 at the latest, and that pursuant to section 95.361(1), Florida Statutes, the property vested in the Department four years later, on May 22, 2011, before Appellants filed suit on August 18, 2015. The trial court found that the Department's taking of Appellant's property occurred in 2005, when the physical encroachment began. The trial court further found that Appellants had not shown a claim of equitable estoppel, because they had not established that their position had detrimentally changed based on their reliance on the Department's initial representation. Based on those findings, the trial court denied Appellant's claim of inverse condemnation and granted the Department's counterclaim to quiet title, confirming to the Department fee simple title to the property, as described and recorded in the Department maintenance map.

Analysis

I.

Whether Competent, Substantial Evidence Supports the Trial Court's Final Judgment

An appellate court reviews a trial court's application of section 95.361, Florida Statutes, de novo , and any factual findings supported under the competent, substantial evidence standard of review must be upheld. Chackal v. Staples , 991 So.2d 949, 953 (Fla. 4th DCA 2008).

Section 95.361(1), Florida Statutes, provides that when a road is constructed by a governmental entity, and the width of that road is maintained by that entity "continuously and uninterruptedly for 4 years," the entire maintained width of the road is "dedicated" to the public, vesting to the public the right, title, easement, and appurtenances.

Section 95.361(2), Florida Statutes, provides that when a road is constructed by a nongovernmental entity, and the width of that road is regularly maintained by a governmental entity for seven years, the entire maintained width of the road is "dedicated" to the public, vesting to the public the right, title, easement, and appurtenances. "The test is not whether the maintenance is proper, or frequent, or thorough, or open and obvious. The test is whether the maintenance was appropriate to the circumstances and, if so, the statutory test is met." Division of Admin., State Dep't of Transp. v. Ideal Holding Co. , 427 So.2d 392, 393 (Fla. 4th DCA 1983).

Appellants argue that there was no competent, substantial evidence to support the trial court's finding that the Department constructed State Road 5 or maintained the subject, encroached-upon property for either four or seven years. The Department argues that competent, substantial evidence established that the Department has maintained the widened portion of State Road 5, and therefore established dedication, whether the initial widening was deemed to be constructed by the Department or a contractor.

Competent, substantial evidence is " 'such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred' or such evidence as is 'sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.' " Heifetz v. Dep't of Bus. Regulation, Div. of Alcoholic Beverages & Tobacco , 475 So.2d 1277, 1281 (Fla. 1st DCA 1985) (quoting De Groot v. Sheffield , 95 So.2d 912, 916 (Fla. 1957) ).

The testimony at trial was such that the court could have "reasonably inferred" that the Department, through its current contractor, has maintained the subject property since at least May 22, 2007, when a Department engineer accepted the permitted work as complete on the area which included the subject property. Therefore, competent, substantial evidence supported the trial court's finding that the Department had continuously and uninterruptedly maintained the subject property from at least

May 22, 2007 until the time of the suit in August 2015, and that, under section 95.361(1), Florida Statutes, title vested in the Department in 2011, after four years of maintenance, and would have vested after seven years of maintenance if the court had determined the widening of State Road 5 had been constructed by a nongovernmental entity. Therefore, the trial court did not err in quieting title of the subject property to the Department.

II.

Whether Appellants' Inverse Condemnation Claim Was Time Barred

"The general rule of law is that a property owner must bring an inverse condemnation claim within four years of the physical invasion of the property caused by governmental action." Judkins v. Walton Cty. , 128 So.3d 62, 64 (Fla. 1st DCA 2013). Evidence at trial established that the physical invasion of Appellants' property began in November 2005, when the trees on the western edge of the property were cut and the area cleared.

Appellants argue that "[i]t was upon discovery of the encroachment by FDOT that [Appellants] were denied the economic use of their property and that the statute of limitations began to run." They argue that, because the taking was not readily identifiable, it did not occur until Appellants actually discovered it on April 7, 2015, citing Sarasota Welfare Home, Inc. v. City of Sarasota , 666 So.2d 171, 173 (Fla. 2d DCA 1995). Appellants argue that Sarasota Welfare Home supports their argument, because the Second District held that the taking occurred when the physical invasion was discovered. Appellants misread Sarasota Welfare Home . In that case, the City of Sarasota in 1970 buried a sewer pipe that extended onto property owned by Sarasota Welfare Home; the physical invasion was not discovered until 1988. Id. at 172. The Second District held that the determination of whether a taking occurs is fact intensive and found that the discovery of the invasion caused the property owners to be denied the benefit of their property, therefore, that was when the taking occurred for the purposes of the inverse condemnation statute of limitations. Id. at 173.

Here, however, Appellants were "denied substantially all economically beneficial or productive use" of a portion of their land, when the Department encroached upon it by widening State Road 5 beginning in November 2005. Appellants' window to file an inverse condemnation action ended in November 2009, four years after Appellants were deprived the beneficial use of their property. Appellants filed suit on August 17, 2015; therefore, the trial court did not err in denying Appellants' inverse condemnation claim as time barred.

III.

Whether the Department Was Equitably Estopped From Obtaining Title to the Subject Property

A trial court's decision to apply the doctrine of equitable estoppel is reviewed for an abuse of discretion, provided there is competent, substantial evidence to support each element of the doctrine. Dep't of Revenue ex rel Thorman v. Holley , 86 So.3d 1199, 1203-04 (Fla. 1st DCA 2012).

"As a general rule, equitable estoppel will be applied against the state only in rare instances and under exceptional circumstances." State, Dep't of Revenue v. Anderson , 403 So.2d 397, 400 (Fla. 1981).

To establish a claim of equitable estoppel: (1) the party against whom estoppel is sought must have made a representation about a material fact that is contrary to a position it later asserts; (2) the party seeking estoppel must have relied on that representation; and (3) that party must have changed his or her position to their detriment, based on the representation. Lewis v. Dep't of Health & Rehab Servs. , 659 So.2d 1255, 1256-57 (Fla. 4th DCA 1995).

The trial court found that the Department's initial statements regarding either the removal of infrastructure or purchase of the subject property, and its subsequent decision to pursue neither of those options, constituted a change of position to establish the first element of equitable estoppel. However, the trial court found that Appellants did not change their position in reliance on the Department's statements, as in either scenario, Appellants could have filed suit; thus, Appellants could not prove detrimental reliance. We agree.

The Department did not lull Appellants "into a disadvantageous legal position," Major League Baseball v. Morsani , 790 So.2d 1071, 1076 (Fla. 2001) ; the subject property vested to the Department before the maintenance engineer made any misstatement. The trial court therefore did not abuse it discretion in finding that the State was not estopped from an ownership claim in the subject property.

IV.

Whether Exclusion of the Secret Recording and Transcript of the May 22, 2015 Meeting Was Harmless Error

"[I]n a civil appeal, the test for harmless error requires the beneficiary of the error to prove that the error complained of did not contribute to the verdict." Special v. West Boca Med. Ctr. , 160 So.3d 1251, 1265 (Fla. 2014).

Appellants argue that the "meeting transcript clearly shows that FDOT strongly presented options to [Appellants] during the meeting ...." The transcript was probative to the first prong of equitable estoppel, i.e., that the State made a representation and subsequently changed its position. The testimony at trial was consistent with the transcript, as the Department's maintenance engineer testified that he presented Appellants with two options before later proceeding under the "dedication" in section 95.361, Florida Statutes. Additionally, the trial court found that "the Department's statement of its initial position only satisfies the first element of equitable estoppel," thus, finding in favor of Appellants on the element that the transcript was offered to prove. Therefore, any error in excluding the transcript was harmless, as it did not affect the judgment.

Conclusion

Based on the foregoing, the trial court did not err in denying Appellant's inverse condemnation claim and quieting title in the subject property to the Department. We therefore affirm the court's final judgment.

AFFIRMED.

Wetherell and Winsor, JJ., concur.

      The trial court found that the widening of State Road 5, although actually constructed by a contractor, was done by the Department for the purposes of section 95.361(1), Florida Statutes ; therefore, only four years of continuous maintenance was required before titled vested in the Department.


text:
    Franklin VEREEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5189
    District Court of Appeal of Florida, First District.
    March 28, 2019
    Michael Ufferman, Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Franklin Vereen was convicted of sexual battery and was sentenced to twenty-four years in prison. On appeal, he does not challenge his convictions, but he argues that his sentence was unlawful. As the State concedes, we must reverse as to the challenged fines and surcharges. But we reject Vereen's remaining arguments and affirm the rest of his sentence.

At trial, the victim testified that she was sleeping in her car and awoke to find Vereen next to her holding a gun. Vereen forced her into the back seat and then drove her car to a nearby ATM. Vereen took her ATM card from her purse and demanded her PIN. He then wrapped his shirt around his face before approaching the ATM and attempting a withdrawal. Her account lacked funds, though, so Vereen left with no cash. He then drove the victim to an apartment complex and told her she had to "give up" something else. Vereen forced the victim to perform a sexual act on him, after which Vereen forced intercourse. Vereen then drove to another apartment complex, tossed the victim a wet shirt, and told her to clean herself up. He then walked away, after telling the victim if she started her car before he was out of sight, he would kill her.

Vereen testified in his defense, offering an entirely different version of events. He agreed that he and the victim spent some time in her car together, doing drugs. They had intercourse and she performed a separate sexual act. And they later went to the ATM together, hoping to get money to buy more drugs. But he insisted that he was never armed and that everything they did together was consensual.

The jury believed the victim. It convicted Vereen of two counts of sexual battery, and the court imposed two consecutive twelve-year terms of imprisonment, one for each sexual battery.

I.

Vereen first argues that he was sentenced in violation of his Sixth Amendment rights. He relies on Alleyne v. United States , in which the United States Supreme Court held that "any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury." 570 U.S. 99, 103, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). In calculating Vereen's lowest permissible sentence under the Criminal Punishment Code, the court included eighty victim-injury points for sexual penetration. § 921.0024(1)(a), Fla. Stat. Those points had the necessary effect of increasing Vereen's lowest permissible sentence. Yet as Vereen explains, there was no jury finding of penetration. The information alleged alternatively Vereen's "penetration of" or "union with" the victim's mouth and vagina, and the jury never specified on which basis it convicted. Thus, Vereen contends, Alleyne precludes assessment of penetration points, which raise his lowest permissible sentence. 570 U.S. at 115-16, 133 S.Ct. 2151 ("The essential point is that the aggravating fact produced a higher range, which, in turn, conclusively indicates that the fact is an element of a distinct and aggravated crime. It must, therefore, be submitted to the jury and found beyond a reasonable doubt.").

Even assuming Alleyne applies to victim-injury points under Florida's Criminal Punishment Code-but compare Bean v. State , 264 So.3d 947, 2019 WL 140825 (Fla. 4th DCA Jan. 9, 2019) (finding Alleyne inapplicable to "scoring of victim injury points") with Lakey v. State , 172 So.3d 989 (Fla. 5th DCA 2015) ("Because the jury did not make a specific finding of penetration rather than union, it was improper to include points for penetration.")-this does not provide a basis for reversal here. Here, any error in assessing penetration points without a jury finding would have been harmless. "An Alleyne error is harmless if the record demonstrates beyond a reasonable doubt that a rational jury would have found the fact required to impose the mandatory minimum term." Britten v. State , 181 So.3d 1215, 1218 (Fla. 1st DCA 2015) ; see also Galindez v. State , 955 So.2d 517, 522 (Fla. 2007). We are convinced that, under the facts of this case, no rational jury would have convicted Vereen of sexual battery without also finding penetration. The victim's testimony, which was essential to the conviction, provided evidence of penetration. And Vereen's own testimony-including his acknowledgment that the victim "sucked" on him-also would have led a rational jury to find penetration. Penetration was not a disputed issue; Vereen's defense was that she consented to the penetration. Any error in failing to ask the jury about penetration was harmless.

II.

Next, we reject Vereen's argument regarding a procedural due process violation at the sentencing hearing. The officer who prepared the Presentence Investigation Report ("PSI") noted in the report-and testified at the hearing-that she recommended a downward-departure sentence. The victim, who had not participated in the PSI process, testified at the hearing and asked for a substantial sentence. Then, in response to questioning from the State, the officer who recommended the downward departure said her recommendation "probably" would have been different had she first heard from the victim.

Despite any change in recommendation, Vereen had the opportunity to question the officer, to present his own witnesses in mitigation, and to argue in favor of leniency. Moreover, the PSI itself noted that the victim had not participated in the PSI process but would be presenting at the sentencing hearing. Having reviewed the record, we conclude Vereen received "fair notice and a real opportunity to be heard at a meaningful time and in a meaningful manner." Crosby v. Fla. Parole Comm'n , 975 So.2d 1222, 1223 (Fla. 1st DCA 2008). There was no procedural due process violation.

III.

Finally, Vereen argues that the court erred in imposing discretionary fines and surcharges pursuant to sections 775.083 and 938.04(1), Florida Statutes, without first orally pronouncing them. We accept the State's confession of error on this point. See Thomas v. State , 236 So.3d 1159, 1160 (Fla. 1st DCA 2018) (holding that discretionary fines that are not specifically pronounced must be stricken). On remand, the court may strike the challenged fines and surcharges, or it "may reimpose them after following the proper procedure." Id.

AFFIRMED in part, REVERSED in part, and REMANDED .

Rowe, Bilbrey, and Winsor, JJ., concur.


author: EDWARDS, J.

text:
    Michael D. RIGGENBACH, M.D. and Orlando Orthopaedic Center, Petitioners, v. Chad A. RHODES, Respondent.
    Case No. 5D18-1889
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 29, 2019
    Thomas E. Dukes, III, and Wilbert R. Vancol, of McEwan, Martinez, Dukes & Hall, P.A., Orlando, for Petitioners.
    Margaret E. Kozan, of Margaret E. Kozan, P.A., Winter Park, and Daniel C. Elkins, of Law Offices of Elkins & Freedman, Boca Raton, for Respondent.
    ON MOTION FOR REHEARING
   EDWARDS, J.

We grant Respondent's motion for rehearing only to the extent that it correctly points out that Respondent challenged the constitutionality of the controlling 2013 amendments to Chapter 766 in his opposition to Petitioners' motion to dismiss and challenged it again in his motion for reconsideration. However, each time the trial court ruled on Petitioners' motion to dismiss, it declined to rule on the constitutional issues that Respondent had raised and argued below. In all other respects, Respondent's motion for rehearing is denied. Accordingly, we withdraw our previous opinion and substitute the corrected opinion in its place.

Petitioners, Dr. Michael Riggenbach and Orlando Orthopaedic Center, have sought certiorari review of an order denying their motion to dismiss Respondent Chad Rhodes' medical malpractice lawsuit. Petitioners moved to dismiss because Rhodes' presuit written expert report, from a physician who specializes in plastic surgery, offered opinions regarding the medical care provided by Dr. Riggenbach, who specializes in orthopedic surgery. Because Rhodes failed to comply with the requirement of sections 766.203, 776.202(6), and 766.102(5)(a), Florida Statutes (2014), that he provide a written medical expert opinion from a specialist in the same specialty as the defendant health care provider, the complaint should have been dismissed, unless those statutory provisions are found to be unconstitutional for the reasons previously asserted by Respondent.

We grant the petition, quash the trial court's order, and remand with instructions for further proceedings consistent with this opinion. Those further proceedings shall first include a ruling on whether Respondent properly placed the State on notice of his constitutional challenge and, if he did, then a second ruling on whether the "same specialty" requirement is unconstitutional. If the trial court denies Respondent's constitutional challenge on procedural or substantive grounds, it shall dismiss Respondent's complaint with prejudice.

BACKGROUND FACTS

After suffering injuries to his right wrist, Rhodes sought treatment from Dr. Riggenbach, who was employed by Orlando Orthopaedic Center. In March 2014, Dr. Riggenbach performed wrist surgery involving insertion of an anchoring mechanism which allegedly was improperly seated and became lost in Rhodes' wrist. Rhodes' medical malpractice complaint alleged that Dr. Riggenbach was negligent in performing this surgery, which resulted in the need for additional surgery and treatment, and ultimately caused permanent injury to Rhodes' wrist.

Pursuant to section 766.106(4), Rhodes served Petitioners with a presuit notice of intent to initiate litigation for medical negligence. The presuit notice included a verified written medical expert opinion ("expert affidavit")-signed by Drew Kreegel, M.D., a board certified plastic surgeon and otolaryngologist-to corroborate that reasonable grounds existed to initiate the medical malpractice claim.

After objecting during the presuit period, Petitioners moved to dismiss the later-filed medical malpractice complaint because Dr. Kreegel's expert affidavit was not authored by a physician who practiced in the same specialty as Dr. Riggenbach. Petitioners supported their third motion to dismiss the complaint by providing an affidavit of Dr. Riggenbach that stated he was a board certified specialist in orthopedic surgery, and that the procedures he performed on Rhodes were orthopedic and did not include any plastic surgery. Rhodes responded by arguing that Dr. Kreegel's practice and training qualified him to render the opinions set forth in the expert affidavit and supported that argument with another affidavit from Dr. Kreegel describing the types of hand surgery he had performed in the past.

An evidentiary hearing was held during which Dr. Kreegel testified that he had performed the same type of surgery that Rhodes underwent approximately five to eight times during the previous three years. Dr. Kreegel described his practice as including plastic reconstructive and hand surgery. He admitted on cross-examination that he never represented to anyone that he specialized in orthopedic surgery. Petitioners' motion to dismiss was granted. However, on rehearing before a different judge, Rhodes successfully argued that the trial court had the inherent authority to consider whether Dr. Kreegel, by virtue of his experience, could be considered to be engaged in the same specialty as Dr. Riggenbach. The successor judge found that both Dr. Kreegel and Dr. Riggenbach were engaged in the same specialty, and entered an order denying Petitioners' motion to dismiss.

LEGAL ANALYSIS

Availability of Certiorari Review

"Although orders denying motions to dismiss are generally not reviewable by writ of certiorari, Florida courts have created an exception and permit certiorari review when the presuit requirements of the [Florida Medical Malpractice Act] are at issue." Holmes Reg'l Med. Ctr., Inc. v. Dumigan , 151 So.3d 1282, 1284 (Fla. 5th DCA 2014) ; accord Rell v. McCulla , 101 So.3d 878, 879-83 (Fla. 2d DCA 2012) ; Oken v. Williams , 23 So.3d 140, 144 (Fla. 1st DCA 2009) ("[T]he courts of this state have uniformly recognized the availability of certiorari review in cases where the presuit notice requirements of chapter 766 have not been met."), quashed on other grounds by Williams v. Oken , 62 So.3d 1129 (Fla. 2011). A nonfinal order allowing a plaintiff to proceed with litigation when the plaintiff has not complied with the presuit statutes results in material injury to the defendant that cannot be cured on appeal. See Cent. Fla. Reg'l Hosp. v. Hill , 721 So.2d 404, 405 (Fla. 5th DCA 1998). Therefore, the order on rehearing denying Petitioners' motion to dismiss based on non-compliance with presuit requirements is appropriate for certiorari review.

Statutory Evolution of Expert Witness Specialty Requirement

Prior to July 2013, the presuit statute authorized opinion testimony from an expert witness against the defendant doctor who practiced in "the same or similar specialty " as the defendant doctor. § 766.102(5)(a), Fla. Stat. (2012) (emphasis added). The phrase "similar specialty" was defined as a specialty that included the evaluation and treatment of the medical condition that was the subject of the medical negligence claim. Id. The 2012 version of section 766.102 also allowed the trial court to determine whether the expert was qualified on grounds other than those specified in the statute. Id. § 766.102(14).

In Oliveros v. Adventist Health Systems/Sunbelt Inc. , the Second District determined that the trial court could consider the expert's experience as a medical evacuation flight surgeon in order to admit his testimony, although he was testifying against an emergency room physician. 45 So.3d 873, 877 (Fla. 2d DCA 2010). The Second District found that under the then-existing version of section 766.102, the emergency medicine experience of the proposed expert witness was sufficient to admit his testimony, as it fell under the "grounds other than the qualifications in this section" language, which in 2010 was found in section 766.102(12).

In 2013, the legislature amended the statutory definition of "medical expert" to require that only a practicing specialist in the "same specialty" as the defendant health care provider could offer expert opinions on the care provided by the defendant specialist. The version as amended in 2013, including the modification referring to "same specialty" expert witnesses, remains unchanged today, and governs this medical malpractice claim, which arose in 2014. The statute provides in pertinent part:

(5) A person may not give expert testimony concerning the prevailing professional standard of care unless the person is a health care provider who holds an active and valid license and conducts a complete review of the pertinent medical records and meets the following criteria:
(a) If the health care provider against whom or on whose behalf the testimony is offered is a specialist, the expert witness must:
1. Specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered; and
2. Have devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action to:
a. The active clinical practice of, or consulting with respect to, the same specialty ;

§ 766.102(5), Fla. Stat. (2014) (emphasis added).

"The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review." Kephart v. Hadi , 932 So.2d 1086, 1089 (Fla. 2006). When construing a statute, we strive to effectuate the Legislature's intent. See, e.g. , Borden v. E.-European Ins. Co. , 921 So.2d 587, 595 (Fla. 2006) ("We endeavor to construe statutes to effectuate the intent of the Legislature."). To determine that intent, we look first to the statute's plain language. Id. at 595. "[W]hen the statute is clear and unambiguous, courts will not look behind the statute's plain language for legislative intent or resort to rules of statutory construction to ascertain intent." Id. (quoting Daniels v. Fla. Dep't of Health , 898 So.2d 61, 64 (Fla. 2005) ).

Florida courts have previously decided that "same specialty" is to be taken literally and is not synonymous with physicians with different specialties providing similar treatment to the same areas of the body. For example, in Clare v. Lynch , the Second District held that a board certified podiatrist was not statutorily qualified to provide expert opinions, including in a presuit medical malpractice expert affidavit, regarding the care and treatment provided by the defendant board certified orthopedic surgeon who performed surgery on the plaintiff's foot. 220 So.3d 1258, 1261-62 (Fla. 2d DCA 2017). "While both doctors' practices focus primarily on foot and ankle surgery, these two doctors have different training and practice in different specialties." Id. at 1260-61. The Second District noted that the legislative changes, discussed above, made it clear that opinions of providers from "similar" specialties would no longer suffice, and that only opinions offered by specialists from the "same" specialty would be acceptable. Id. at 1261. The Second District concluded that the trial court clearly departed from the essential requirements of the law by reinstating the malpractice suit, as it was supported only by the podiatrist's noncomplying affidavit. Id.

The First District considered what "same specialty" means in the context of workers' compensation statutes. Myers v. Pasco Cty. Sch. Bd. , 246 So.3d 1278 (Fla. 1st DCA 2018). An injured workers' compensation claimant is entitled to a one-time change of "physician who practices in the 'same specialty' as the originally authorized doctor" pursuant to section 440.13(2)(f), Florida Statutes (2016). Id. at 1278-79. In Myers , the Judge of Compensation Claims ("JCC") found that the employer/carrier ("E/C") was justified in authorizing a neurosurgeon in response to the claimant's request for a one-time change to a different orthopedic surgeon. Id. at 1279. The JCC denied the claimant's objection to being provided a physician practicing a different specialty, "reasoning that the term 'specialty' is broader than the 'specialty of [the] physician' and 'should be extended to' the types of conditions the doctor treats." Id. The JCC concluded that, "[b]ecause orthopedic surgeons and neurosurgeons both treat back injuries, and the Claimant [had] a compensable back problem," the E/C's decision to authorize a change from an orthopedic surgeon to a neurosurgeon complied with the statute. Id.

On appeal, the First District stated that "[a] physician who provides similar services in a different specialty does not qualify as a doctor in the 'same specialty' because-quite simply-'same' is different than 'similar.' " Id. (citing Clare , 220 So.3d at 1261 ). Because "the neurosurgeon authorized by the E/C did not practice in the 'same specialty' as the originally authorized orthopedic surgeon," the First District reversed the JCC's order denying the requested one-time change to a different orthopedist. Id.

In a recent opinion from a different panel of our court, we concluded that plaintiff's medical malpractice presuit expert affidavits from an emergency room physician, a radiologist, and a nurse were legally insufficient because they were not provided by experts who practice in the same specialty as the defendant, an orthopedic surgeon.

Davis v. Karr , 264 So.3d 279, 2019 WL 321179 (Fla. 5th DCA Jan. 25, 2019). Our court affirmed the trial court's order and resultant final judgment that dismissed the plaintiff's medical malpractice suit with prejudice. Id.

Because we find the applicable statutory language clear, and Clare , Myers , and Davis well-reasoned, we hold that the trial court erred in finding that a plastic surgeon and an orthopedic surgeon practiced the same specialty. Dr. Kreegel's affidavit was statutorily insufficient; therefore, Rhodes failed to comply with the presuit requirements of filing a medical malpractice complaint against Petitioners pursuant to section 766.203. We hold that the trial court clearly departed from the essential requirements of the law by subjecting Petitioners to material injury that cannot be remedied on appeal.

We grant the petition and quash the trial court's order denying Petitioners' motion to dismiss, as Respondent failed to comply with the requirement of providing a written medical expert opinion from a specialist in the same specialty as the defendant healthcare provider. We remand this matter to the trial court for further proceedings. If the trial court finds that Respondent complied with and continues to comply with the requirements of Florida Rule of Civil Procedure 1.071 and section 86.091, Florida Statutes (2017), it shall consider the constitutional issues that Respondent previously raised. Unless the trial court finds the relevant statutes unconstitutional, it shall enter an order dismissing Respondent's complaint with prejudice.

PETITION GRANTED, ORDER QUASHED, REMANDED WITH INSTRUCTIONS.

ORFINGER and SASSO, JJ., concur.

      The Staff Analysis for the Senate Bill that amended section 766.102 in 2013 specifically explained the effect of the amendment:
      The bill amends s. 766.102(5), F.S., to limit the class of specialists qualified to offer expert testimony in a medical negligence action against a defendant specialist, to those specialists who practice in the same specialty as the defendant.
      The bill repeals s. 766.102(14), F.S. This appears to have the effect of overturning Oliveros v. Adventist Health Systems/Sunbelt, Inc. and reinstating the holding in Barrio v. Wilson . Accordingly, the repeal of the subsection appears to remove the discretion of the court to qualify or disqualify an expert witness on grounds other than the specific qualifications specified in ss. 766.102(5) -(9), F.S.
      Prof'l Staff of the Comm. on Judiciary, Fla. S. Bill Analysis & Fiscal Impact Statement, S.B. 1792, 10 (Mar. 29, 2013) (emphasis added).


author: PER CURIAM.

text:
    CHIMERA SERVICES, INC., Appellant, v. Christopher A. PREVATT, Appellee.
    Case No. 5D18-1336
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 29, 2019
    Richard P. Spence, of The Spence Law Firm, P.A., Orlando, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Chimera Services (Chimera) appeals the trial court's final order dismissing its complaint with prejudice. We reverse and remand for further proceedings consistent with this opinion.

Chimera filed a complaint against Christopher Prevatt, a former employee. Prevatt, pro se, filed a motion to dismiss the complaint. When the attorney of record for Chimera did not appear for the coordinated "short matters" hearing, the trial court granted Prevatt's motion, dismissing Chimera's complaint with prejudice . In part, the order states, "Plaintiff failed to appear. Defendant's motion to dismiss is granted. Case is dismissed and closed." Chimera's attorney promptly filed a motion for rehearing and reconsideration, explaining his failure to appear. The motion was denied without elaboration, and this appeal timely followed.

As a general rule, "the standard of review of an order dismissing a complaint with prejudice is de novo." Stubbs v. Plantation Gen. Hosp. Ltd. P'ship, 988 So.2d 683, 684 (Fla. 4th DCA 2008). Chimera argues that the trial court erred in dismissing its complaint with prejudice. We agree.

If the court's order of dismissal is interpreted as a sanction for the attorney's failure to appear, it was error to dismiss without considering the appropriate factors. See Bennett ex rel. Bennett v. Tenet St. Mary's, Inc., 67 So.3d 422, 426 (Fla. 4th DCA 2011) ("Before a court may dismiss a cause as a sanction, it must first consider the six factors delineated in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993), and set forth explicit findings of fact in the order that imposes the sanction of dismissal.").

Conversely, if the dismissal was based on substantive issues, it was error for the court to dismiss without providing Chimera an opportunity to amend the complaint. "Generally, a trial court must allow a litigant the opportunity to amend a complaint before dismissing its suit with prejudice unless it is clear that the pleading cannot be amended so as to state a cause of action." Albrecht v. Bd. of Trs. of Internal Improvement Tr. Fund, 481 So.2d 555, 556 (Fla. 2d DCA 1986).

Therefore, we reverse the order dismissing Chimera's complaint with prejudice and remand to the trial court for further proceedings.

REVERSED and REMANDED.

ORFINGER, HARRIS, and GROSSHANS, JJ., concur.


text:
    Demetrius Carter COOPER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2326
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 29, 2019
    Demetrius Carter Cooper, Sneads, pro se.
    Ashley Moody, Attorney General, Tallahassee, Bonnie Jean Parrish and Douglas Squire, Assistants Attorney General, Daytona Beach, for Appellee.
    ON REMAND FROM THE SUPREME COURT OF FLORIDA
   PER CURIAM.

This case returns to us from the Florida Supreme Court, which quashed Cooper v. State, 235 So.3d 1034 (Fla. 5th DCA 2018), and directed us to reconsider the case in light of its decision in Eustache v. State, 248 So.3d 1097 (Fla. 2018).

State v. Cooper, 43 Fla. L. Weekly S508, 2018 WL 5116564 (Fla. Oct. 19, 2018). Upon reconsideration, we issue the following opinion.

In 2009, Cooper was charged with aggravated battery, a second-degree felony, and was sentenced under the Youthful Offender Act. See § 958.04, Fla. Stat. (2009). The Act subjects an offender to a maximum incarceration period of six years. See § 958.04(2). Consistent with that six-year cap, Cooper was sentenced to 479 days in prison, followed by 18 months of community control and a subsequent term of 18 months of probation. After the revocation of his community control for a substantive violation, the trial court sentenced Cooper to a minimum mandatory term of 20 years in prison pursuant to section 775.087(2)(a), Florida Statutes (the 10-20-Life statute). The judgment and sentence were affirmed on direct appeal. Cooper v. State, 56 So. 3d 783 (Fla. 5th DCA 2011). Cooper's sentence was later amended to reflect that he maintained his youthful offender status.

Cooper has challenged his sentence on several occasions. In his most recent challenge, he filed a "Motion to Correct Illegal Sentence" pursuant to rule 3.800(a) of the Florida Rules of Criminal Procedure. In the motion, he claimed that the minimum mandatory term was illegal because it exceeded the maximum sentence he could have received for a second-degree felony as a youthful offender. See § 775.082(3)(d), Fla. Stat. (providing 15-year maximum sentence for second-degree felony). The trial court denied the motion, and Cooper appealed. Agreeing with Cooper that his sentence was illegal, we held that a sentencing court lacks statutory authority to impose a mandatory minimum term upon a youthful offender who substantively violates probation or community control. Cooper, 235 So.3d at 1036-37. In reaching this holding, we adhered to dicta in Christian v. State, 84 So.3d 437 (Fla. 5th DCA 2012), that "Florida's minimum mandatory statutes did not apply to a sentence imposed on a youthful offender because a youthful offender sentence is '[i]n lieu of other criminal penalties authorized by law.' " Cooper, 235 So.3d at 1036 (quoting Christian, 84 So.3d at 442 ).

After Cooper was decided, the Florida Supreme Court issued its opinion in Eustache v. State in which it considered the following certified question posed by the Fourth District:

WHERE A DEFENDANT IS INITIALLY SENTENCED TO PROBATION OR COMMUNITY CONTROL AS A YOUTHFUL OFFENDER, AND THE TRIAL COURT LATER REVOKES SUPERVISION FOR A SUBSTANTIVE VIOLATION AND IMPOSES A SENTENCE ABOVE THE YOUTHFUL OFFENDER CAP UNDER SECTIONS 958.14[ ] AND 948.06(2),[ ] FLORIDA STATUTES, IS THE COURT REQUIRED TO IMPOSE
A MINIMUM MANDATORY SENTENCE THAT WOULD HAVE ORIGINALLY APPLIED TO THE OFFENSE?

248 So.3d at 1099.

Answering this question in the affirmative, the court held that section 948.06(2)(b)"clearly provides for the imposition of 'any sentence' that was 'originally' available to the sentencing judge." Id. at 1101. Thus, after revoking a youthful offender's probation or community control for a substantive violation, the sentencing court may sentence a probationer or offender to either of the two options it had at the original sentencing hearing. Id. The court may impose a sentence under the six-year cap pursuant to the youthful offender designation. Id. Alternatively, the court may impose an adult sanction, "in which case it would be required to also impose any minimum mandatory provisions associated with the offense(s)." Id. Further, when the court chooses to impose a sanction that exceeds the six-year cap, the sentence becomes an adult sentence and the defendant no longer retains his or her youthful offender status. Id. at 1102. In so holding, the Florida Supreme Court expressly disapproved of Christian to the extent that it held otherwise. Id. at 1098, 1102.

In this case, Cooper committed a substantive violation of community control. The trial court chose not to resentence Cooper to a youthful offender sentence and instead imposed an adult sanction. Thus, according to Eustache, the trial court was also required "to impose any minimum mandatory provisions associated with the offense(s)." Id. at 1101. The trial court did so in this case. Because the twenty-year minimum mandatory term did not render Cooper's sentence illegal, the trial court properly denied the motion to correct his illegal sentence.

Accordingly, we affirm the denial of Cooper's motion to correct his illegal sentence. We remand to the trial court to remove the "youthful offender" designation from his sentence.

AFFIRMED and REMANDED with instructions.

ORFINGER, COHEN, and GROSSHANS, JJ., concur.

      § 958.14, Fla. Stat. ("A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s. 948.06. However, no youthful offender shall be committed to the custody of the department for a substantive violation for a period longer than the maximum sentence for the offense for which he or she was found guilty, with credit for time served while incarcerated, or for a technical or nonsubstantive violation for a period longer than 6 years or for a period longer than the maximum sentence for the offense for which he or she was found guilty, whichever is less, with credit for time served while incarcerated.").

      § 948.06(2)(b), Fla. Stat. ("If probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he or she has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer on probation or the offender into community control.").


author: LaROSE, Chief Judge.

text:
    DIVERSICARE MANAGEMENT SERVICES CO.; Diversicare Healthcare Services, Inc.; and Janice L. Horton as to Hardee Manor Healthcare Center, Appellants, v. The ESTATE OF Herbert P. CATT, BY AND THROUGH Gloria J. COOK, personal representative, Appellee.
    Case No. 2D18-2554
    District Court of Appeal of Florida, Second District.
    Opinion filed March 29, 2019.
    Karen M. Shimonsky and Dorothy V. DiFiore of Quintairos, Preito, Wood & Boyer, Tampa, for Appellants.
    Joanna Greber Dettloff and Megan L. Gisclar of Wilkes & McHugh, P.A., Tampa, for Appellee.
   LaROSE, Chief Judge.

Diversicare Leasing Corporation, Diversicare Management Services, Co., Diversicare Healthcare Services, Inc., and Janice L. Horton (collectively, "Diversicare") appeal the trial court's order compelling arbitration. Ostensibly, this nonfinal order determined "the entitlement of a party to arbitration." Fla. R. App. P. 9.130(a)(3)(C)(iv). On closer review, however, we must conclude that the only issues Diversicare raises on appeal relate to collateral matters unrelated to the question of entitlement to arbitration. Accordingly, we dismiss this appeal.

Background

Herbert Catt resided at Hardee Manor Healthcare Center for less than three months. Upon his admission to Hardee Manor, he executed an arbitration agreement providing that any dispute arising from his stay at the facility would be resolved through arbitration.

After Mr. Catt died, his Estate sued Diversicare, as the owner and operator of Hardee Manor. The Estate ventured several theories: nonlethal negligence (count I), lethal negligence (count II), wrongful death (count III), breach of fiduciary duty (count IV), aiding and abetting breach of fiduciary duty (count V), and violations of section 415.1111, Florida Statutes (2017) (count VI).

Diversicare moved to stay the lawsuit and compel arbitration. On the eve of the hearing on the motion, the parties agreed to arbitrate. Thus, when the hearing commenced, there was no issue as to any party's entitlement to arbitration. Nonetheless, the hearing proceeded on the Estate's objection to a provision in the arbitration agreement that "all administrative fees and costs, including the fees of the arbitrators, shall be split equally between the Parties." The Estate also took issue with a provision that "each Party shall be responsible for their own attorneys' fees." After the hearing, the trial court entered a written order compelling arbitration and severing the costs and fees provisions, finding that they violated public policy because section 415.1111 provides a potential statutory right for a prevailing party to recover attorneys' fees.

Diversicare argues that the trial court improperly severed the attorneys' fees provision from the arbitration agreement; it argues that the trial court should have severed this provision only as to count VI, the only count providing for a statutory right to potentially recover fees. Thus, Diversicare asserts that the trial court "should have only removed the agreement of the parties to bear their own attorney's fees with respect to the section 415.1111 count and should have left the remainder of the provision intact ... and further erred in striking the parties' agreement to split administrative fees and costs."

Although Diversicare purports to appeal a nonfinal order determining "the entitlement of a party to arbitration," Fla. R. App. P. 9.130(a)(3)(C)(iv), it alternatively petitions for issuance of a writ of certiorari directed to the trial court's order. The Estate posits that we lack jurisdiction to review the order because it "does not bear on the entitlement of a party to arbitrate, but instead involves a collateral matter over which there is no right to interlocutory appellate review."

Analysis

A party may seek interlocutory review of an order determining "the entitlement of a party to arbitration." Fla. R. App. P. 9.130(a)(3)(C)(iv). At first blush, the order before us appears to fit the bill; the order directed the parties to submit their dispute to arbitration. But this appeal is really Diversicare's effort to bring ancillary, nonfinal and nonappealable issues to us. Its effort fails. We find A.G. Edwards & Sons, Inc. v. Wilson, 523 So.2d 1150 (Fla. 2d DCA 1987), instructive.

In that case, the trial court entered orders granting appellants' motion to compel arbitration. Id. at 1151. In doing so, the trial court directed the parties to initiate arbitration within a specified period. Id. This direction prompted an appeal, which caused us to initially observe that "[t]here is no issue here as to the appellants' entitlement to arbitration." Id. We also noted that " Florida Rule of Appellate Procedure 9.130(a)(3)(C)(v) permits review by this court of a nonfinal order which determines 'whether a party is entitled to arbitration.' " Id.

Thus, we construed the relevant appellate rule "to mean that a party is entitled to interlocutory review by this court of an issue of entitlement to arbitration. We do not believe the rule permits an appeal where the issues relate to collateral matters, such as in this case." Id.; see also, e.g., Tenet Healthcare Corp. v. Maharaj, 859 So.2d 1209, 1211 n.1 (Fla. 4th DCA 2003) (" Rule 9.130(a)(3)(C)(iv) does allow for appellate review in arbitration cases but only as to the essential issue whether a party is entitled to arbitration." (citing A.G. Edwards & Sons, Inc., 523 So.2d at 1150 ) ); El Cid Condo. Ass'n, Inc., No. II v. Pub. Serv. Mut. Ins. Co., 780 So.2d 325, 325 (Fla. 3d DCA 2001) (dismissing appeal for lack of jurisdiction from the trial court's order denying motion to compel appraisal because "the trial court did not deny the parties' entitlement to arbitration, and therefore, this Court lacks jurisdiction under rule 9.130(a)(3)(C)(v)" (citing A.G. Edwards & Sons, Inc., 523 So.2d at 1151 ) ).

Strikingly, all parties before us concede that they agreed to arbitrate before the hearing on Diversicare's motion. Consequently, they do not ask us to resolve an issue as to "the entitlement of a party to arbitration." Instead, Diversicare seeks our review of their squabble over costs and attorneys' fees.

Because the issues raised by Diversicare do not fall within the purview of rule 9.130(a)(3)(C)(iv), we must dismiss this appeal. After all, "[t]he thrust of rule 9.130 is to restrict the number of appealable nonfinal orders. The theory underlying the more restrictive rule is that appellate review of nonfinal judgments serves to waste court resources and needlessly delays final judgment." Travelers Ins. Co. v. Bruns, 443 So.2d 959, 961 (Fla. 1984).

Finally, Diversicare is not entitled to issuance of a writ of certiorari. Diversicare fails to demonstrate that the trial court departed from the essential requirements of the law, causing irreparable injury which cannot be adequately remedied on plenary appeal following the entry of final judgment. See Belair v. Drew, 770 So.2d 1164, 1166 (Fla. 2000) ("Common law certiorari is an extraordinary remedy and should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders." (quoting Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1098 (Fla. 1987) ) ); see also Town of Longboat Key v. Islandside Prop. Owners Coal., LLC, 95 So.3d 1037, 1039 (Fla. 2d DCA 2012) (denying certiorari petition because "[t]he Town ha[d] not met this exacting standard"); Laycock v. TMS Logistics, Inc., 209 So.3d 627, 631 (Fla. 1st DCA 2017) ("[T]he Florida Supreme Court established an exacting standard for certiorari review, always requiring irreparable harm to the petitioner.").

Dismissed.

CASANUEVA and MORRIS, JJ., Concur.

      We can discern no legally meaningful distinction between the language employed in the version of Florida Rule of Appellate Procedure 9.130 relevant to our disposition in A.G. Edwards & Sons, Inc. and the version of the rule pertinent to our consideration in this appeal.


text:
    Rosalie L. JENKINS, Appellant, v. PENNYMAC CORP. and Michael L. Bell, Appellees.
    No. 4D18-2067
    District Court of Appeal of Florida, Fourth District.
    April 3, 2019
    Rosalie L. Jenkins, West Park, pro se.
    Nancy M. Wallace of Akerman LLP, Tallahassee, William P. Heller of Akerman LLP, Fort Lauderdale, and Eric M. Levine of Akerman LLP, West Palm Beach, for appellee PennyMac Corp.
   Per Curiam.

Affirmed . See Hunnewell v. Palm Beach Cty. , 817 So.2d 847 (Fla. 2002) ; Heilman v. Fla. Dep't of Revenue , 727 So.2d 958 (Fla. 4th DCA 1998) ; but see Musa v. Wells Fargo Delaware Trust Co. , 181 So.3d 1275 (Fla. 1st DCA 2015).

Warner, Gross and Forst, JJ., concur.


text:
    RANDSTAD NORTH AMERICA/ESIS WORKER'S COMPENSATION CLAIMS, Petitioners, v. Alfred BARR, Respondent.
    No. 1D19-0813
    District Court of Appeal of Florida, First District.
    April 3, 2019
    Jay M. Levy of Jay M. Levy, P.A., Miami, and Marty E. Davis, of Legal Solutions Group, Fort Lauderdale, for Petitioners.
    Alfred Barr, pro se, Respondent.
   Per Curiam.

In this workers' compensation case, the Employer/Carrier (E/C) seek a "partial quashal of an order" appointing an Expert Medical Advisor (EMA) in which the JCC instructed the E/C to provide the EMA with the records and deposition of Dr. Charles Nofsinger. The E/C argued below that, because Dr. Nofsinger is neither an authorized treating doctor, Independent Medical Examiner (IME), or EMA, his records and opinions are inadmissible and, thus, providing them to the EMA would cause them prejudice.

The JCC rejected the E/C's argument, finding that the EMA statute, section 440.13(9)(c), Florida Statutes, provides that the appointed expert is to have "free and complete access to the medical records of the employee" and does not include any restrictions or limitations on which records may be provided. The JCC also stated he was not making any findings regarding the admissibility of Dr. Nofsinger's records, testimony, or opinions.

In their petition for writ of certiorari, the E/C argue that the JCC's interpretation of the EMA statute is incorrect because it fails to consider that section 440.13(5)(e) limits admissible opinions to those rendered by authorized doctors, IMEs, and EMAs and, thus, an EMA can consider only admissible medical evidence in formulating an opinion. The E/C also argue that allowing the EMA to consider the purportedly inadmissible records and testimony from Dr. Nofsinger will result in irreparable harm because it will "be impossible to 'unring the bell' once Dr. Nofsinger's inadmissible records are turned over, examined and considered by the EMA in formulating its opinion." We disagree.

"It is well established that, in order to establish entitlement to certiorari relief, the Petitioner must demonstrate both that the order under review departs from the essential requirements of law and that the order will cause irreparable harm which cannot be remedied on plenary appeal." City of Jacksonville v. Rodriguez , 851 So.2d 280, 282 (Fla. 1st DCA 2003). "Irreparable harm is a condition precedent to invoking certiorari jurisdiction, and so should be considered first." Spry v. Prof'l Employer Plans , 985 So.2d 1187, 1188 (Fla. 1st DCA 2008). Long-standing precedent provides that " 'the time, trouble, and expense of an unnecessary trial are not considered 'irreparable injury' for these purposes.' " Rodriguez , 851 So.2d at 282 (quoting State v. Lozano, 616 So.2d 73, 75 (Fla. 1st DCA 1993) ).

Here, regardless of whether the JCC's decision to require furnishing Dr. Nofsinger's records and testimony to the EMA was legally sound, the E/C have failed to establish the threshold requirement of irreparable harm. First, their arguments are based entirely on speculation; that is, they are assuming a) Dr. Nofsinger's records and opinions are in fact inadmissible; b) the EMA will base any part of his opinion on those records and the doctor's testimony; c) the JCC will accept any such "tainted" opinion; and d) the JCC will rule against the E/C on the merits of Claimant's claims. But even if any or all of these things occur, the E/C can still file a direct appeal of the resulting adverse final order and this court could then-if warranted-reverse and remand for a new trial (and perhaps appointment of a new EMA). Because of the E/C's failure to overcome the primary threshold of irreparable harm, we dismiss the petition for lack of jurisdiction.

DISMISSED .

Roberts, Ray, and Jay, JJ., concur.


text:
    Mary Jane TERRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5386
    District Court of Appeal of Florida, First District.
    April 3, 2019
    Andy Thomas, Public Defender, and Jessica J. Yeary, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Trisha Meggs Pate and Benjamin L. Hoffman, Assistant Attorneys General, Tallahassee, for Appellee.
   Per Curiam.

Mary Jane Terry was convicted of manufacturing cannabis in violation of section 893.13, Florida Statutes. On appeal, she contends that there was insufficient evidence to sustain the conviction. We agree and reverse.

Officers responded to the home where Terry and at least two other people lived. The officers immediately noticed marijuana plants growing outside. One officer honked his horn, hoping a resident would come outside. Terry did, and the officers asked her if there was marijuana growing on the property. Terry acknowledged there was, showing officers the plants.

We review de novo an order denying a motion for judgment of acquittal. Pagan v. State , 830 So.2d 792, 803 (Fla. 2002). We will reverse only if we conclude no "rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt." Id. Here, although there was ample evidence that Terry was aware of the marijuana plants, there was no evidence from which a jury could conclude that she was responsible for the "production, preparation, propagation, compounding, cultivating, growing, conversion, or processing of a controlled substance." See § 893.02(15)(a), Fla. Stat. (defining "manufactured" for purposes of § 893.13 ). We therefore conclude that the trial court should have granted an acquittal.

REVERSED .

Roberts, Ray, and Winsor, JJ., concur.


text:
    Darell ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4084
    District Court of Appeal of Florida, First District.
    April 3, 2019
    Andy Thomas, Public Defender, M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, Steven Edward Woods, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Trusting in his cellmate to carry out the murder of a witness against him, Appellant was charged and convicted of Solicitation to Commit First-Degree Murder. At trial, defense counsel moved for a judgment of acquittal, and Appellant now asserts the motion should have been granted, because the evidence at trial was insufficient as a matter of law to support the conviction. He relies primarily on the decision in State v. Gaines , 431 So.2d 736 (Fla. 4th DCA 1983).

Our review of the trial court's ruling denying the motion for judgment of acquittal is de novo . Pagan v. State , 830 So.2d 792, 803 (Fla. 2002). All inferences are drawn in favor of the verdict and all evidence is reviewed in the light most favorable to the verdict: "If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction." Id.

In Gaines , the Fourth District held that because the defendant never expressed a present intent that the crime be carried out, but deferred her final decision to a later date, the trial court properly dismissed the charge. Gaines , 431 So.2d at 737. That decision is distinguishable, even were we to agree with its reasoning, because Appellant clearly and repeatedly stated that he intended that his cellmate carry out the murder. Appellant did not defer a final decision as to whether the murder should occur. In addition, Appellant attempted to obtain the funds to provide bail for his cellmate so the crime could be accomplished. He also discussed several methods by which the murder could be accomplished. After the cellmate informed law enforcement, and wore a recording device, Appellant continued to discuss the arrangement and stated his confidence that the cellmate would in fact be successful in the planned witness elimination. Thus, we reject Appellant's argument that the evidence was insufficient as a matter of law.

AFFIRMED .

Kelsey and Winokur, JJ., concur.


author: Ketchel, Terrance R., Associate Judge.

text:
    Randy Terrell GRIMSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2803
    District Court of Appeal of Florida, First District.
    April 3, 2019
    Andy Thomas, Public Defender, and L. Allen Beard, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   Ketchel, Terrance R., Associate Judge.

A jury convicted Mr. Grimsley of unlawful sexual activity with a minor after Grimsley (age 34) impregnated the victim (age 16), DNA tests showed a 99.9% chance Grimsley was the father, and the victim testified Grimsley had sex with her. On appeal, Grimsley maintains we should reverse his conviction because the prosecutor twice made comments improperly suggesting he had a burden to disprove he was the child's father and provide evidence of his innocence. We disagree.

During opening statements, the prosecutor began by informing the jury that DNA evidence would show Grimsley was the father of a child born to the victim, a minor. She then told the jury to also pay attention to the statement Grimsley voluntarily gave police in a post-Miranda interview.

[P]ay close attention when [the Investigator] is on the stand telling you about the interview she had with [Appellant]
and pay attention to the things she said and also the thing that he didn't say. He never flat out denies that this baby could be his. But knowing that [the victim] is an underage minor, he dances around the investigator's questions saying things like, well, if that test comes back, I am f-d. He admits to the investigator that he does drink a lot. And when pushed more on the issue he finally says you don't think about consequences in the time, in the moment.

During the State's case-in-chief, the prosecutor asked the interviewing investigator "But he didn't deny that the child was his?"

On both occasions, defense counsel objected on improper burden shifting grounds and requested a mistrial. The court denied the first objection, sustained the second, and denied both requests for a mistrial. Grimsley now argues the court reversibly erred by denying his mistrial requests.

It is improper for a prosecutor to make statements that "shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt." Warmington v. State , 149 So.3d 648, 652 (Fla. 2014). It is inappropriate for a prosecutor to seek conviction "for a specific reason other than the state's proof of the elements of the crime beyond a reasonable doubt." Lenz v. State , 245 So.3d 795, 798 (Fla. 4th DCA 2018) (quoting Rivera v. State, 840 So.2d 284, 288 (Fla. 5th DCA 2003) ). This means "an argument emphasizing a defendant's failure to proclaim his innocence" is improper; it "is the equivalent of a burden-shifting argument." Id.

On the other hand, a prosecutor may comment on the evidence. See Cribbs v. State, 111 So.3d 298, 300 (Fla. 1st DCA 2013).

The prosecutor was proper in commenting on the interview and what happened in the interview, and the investigator could testify to the same: "Appellant told the investigator he would be F-d," "Appellant said he had woken up naked with the victim on top of him." But it was improper to suggest Appellant could have said more and proclaimed his innocence. This crossed into impermissibly "pointing out that [Grimsley] didn't say certain things." See Lenz , 245 So.3d at 797.

However, mistrial is only appropriate "in cases of absolute necessity." Gosciminski v. State , 132 So.3d 678, 696 (Fla. 2013) ; see also White v. Consol. Freightways Corp. of Del. , 766 So.2d 1228, 1232 (Fla. 1st DCA 2000) (explaining mistrial should be granted if "an absolute legal necessity to do so exists"). The error must be more than prejudicial; it must vitiate the entire trial and mistrial must be necessary to ensure a fair trial. Gosciminski , 132 So.3d at 695-96. This Court reviews the trial court's mistrial decision for an abuse of discretion. Id. at 695.

Here, the prosecutor-most compellingly-presented DNA evidence that Grimsley was the father to a 99.9% certainty. Furthermore, the victim testified Grimsley had sex with her, and the State developed a timeline matching Grimsley's sexual interaction and the victim's pregnancy and delivery. It took the jury less than 20 minutes with that evidence to convict Grimsley. Simply, the prosecutor's comments and question could not have vitiated this trial or deprived Grimsley of a fair trial. The comments and question cannot alter DNA evidence to a 99.9% certainty, bolstered by the other evidence.

Accordingly, mistrial was far from necessary and would not have been proper. The trial court did not err, let alone abuse its discretion, in denying Grimsley's requests for mistrial.

AFFIRMED .

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

      We find it gratuitous to decide on the propriety of the prosecutor's comments and question. It is unnecessary to the resolution; because no matter that answer, mistrial requires more than trivial error with no potential effect on the outcome. Grimsley cannot show that.