author: Osterhaus, J.

text:
    GRABBA-LEAF, LLC, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Division of Alcoholic Beverages and Tobacco, Appellee.
    No. 1D16-4273
    District Court of Appeal of Florida, First District.
    November 6, 2018
    Gerald J. Donnini II, Joseph C. Moffa, James McAuley, and Jonathan W. Taylor of Moffa, Sutton, & Donnini, P.A., Fort Lauderdale, for Appellant.
    Pamela Jo Bondi, Attorney General, and Elizabeth Teegen, Tallahassee, Assistant Attorney General, for Appellee.
   Osterhaus, J.

Grabba-Leaf, LLC, filed an unadopted rule challenge in 2016, just after the Florida Department of Business and Professional Regulation issued a memorandum to distributors of tobacco products changing its practice of taxing tobacco wraps. The memo stated that the Department would no longer tax "homogenized tobacco wraps" because of a court decision, but would continue taxing "whole leaf" tobacco wraps as "tobacco products." The Department interpreted whole leaf wraps to qualify as "loose tobacco suitable for smoking" under the definition of "tobacco products." § 210.25(12), Fla. Stat. But Grabba-Leaf argues that the Department's policy and interpretation of the statute required formal agency rulemaking, not simply just a memo to tobacco distributors. We agree. Because the policy and practice set forth in the memo alters the Department's tax policy, makes new distinctions between taxable and non-taxable tobacco wraps, and includes taxing whole leaf tobacco products that aren't clearly covered by the applicable statutory definition, we conclude that the Department's statement constitutes an unadopted rule.

I.

The appellant, Grabba-Leaf, is a licensed distributor of tobacco wrap products (known colloquially as "blunt wraps"). After the federal government began taxing blunt wraps in 2009, the State of Florida followed suit by applying its "other tobacco products" tax to tobacco wraps. Florida's blunt wrap distributors were not pleased. Distributor Brandy's Products, Inc., challenged the State's tax on the basis that its wraps were not taxable "tobacco products" as defined by § 210.25, Florida Statutes. And its argument ultimately prevailed before this court. See Brandy's Prods., Inc. v. Dep't of Bus. & Prof'l Regulation, 188 So.3d 130, 133 (Fla. 1st DCA 2016) (reversing the agency's determination that Brandy's blunt wraps "are taxable 'tobacco products' ").

Following the Brandy's decision, the Department amended its tax policy to carve out Brandy's Products-like tobacco wraps, but continue taxing other wraps. The Department sent a memorandum to licensed distributors of tobacco products taking the position that "homogenized tobacco wrap products," like those sold by Brandy's Products, would not be taxed. But that it would continue taxing whole leaf blunt wraps as "tobacco products." See §§ 210.276 & 210.30, Fla. Stat.

In response to the memo, Grabba-Leaf challenged the new tax policy as an unadopted rule. See § 120.56(4), Fla. Stat. The challenge culminated below in an administrative hearing, where Grabba-Leaf argued that the Department was unlawfully enforcing interpretations of the statute and of the opinion in Brandy's without having satisfied its rulemaking obligations.

An administrative law judge, however, concluded that rulemaking wasn't required. In his view, the Department's memo applied the plain meaning of a clear and unambiguous statute to Grabba-Leaf's wraps: "[I]t is readily apparent that whole leaf, non-homogenized cigar wraps meet [ § 210.25(12)'s] statutory definition of loose tobacco suitable for smoking." Grabba-Leaf timely appealed this final order.

II.

We review the ALJ's conclusions of law in this unadopted rule challenge de novo. See Volusia Cty. Sch. Bd. v. Volusia Homes Builders Ass'n, Inc. , 946 So.2d 1084, 1089 (Fla. 5th DCA 2006). Grabba-Leaf's argument on appeal strikes at the heart of the Department's authority, in the absence of rulemaking, to assess taxes against products that only arguably fall within the parameters of a tax statute. Grabba-Leaf doesn't argue that its wraps cannot be taxed as "tobacco products" under the statute (not yet at least). Rather, it argues that the Department must initiate rulemaking before applying that tax to its whole leaf tobacco wraps, because it isn't clear that they are "loose tobacco suitable for smoking." § 210.25(12), Fla. Stat.

A.

Florida's Constitution divides the power of the state government between three branches: the legislative, executive, and judicial branches. Art. II, § 3, Fla. Const. Each branch possesses "its own powers and responsibilities." Bush v. Schiavo , 885 So.2d 321, 329 (Fla. 2004). Generally speaking, the Florida Constitution grants the power to make the laws to the legislative branch and the power to execute the laws to the executive branch. Various agencies within the executive branch perform the role of interpreting and enforcing Florida's laws in everyday areas of life, including taxation. But their authority is constrained. Executive agencies can neither assume the power to enact law nor exercise unrestricted discretion in carrying out the laws. See Sims v. State , 754 So.2d 657, 668 (Fla. 2000) (recognizing that "the Legislature may not delegate the power to enact a law or the right to exercise unrestricted discretion in applying the law"). Agency interpretations and applications must comport with the laws they are carrying out. And if they cannot be squared with the laws, their interpretations and applications must give way. See, e.g. , Verizon Bus. Purchasing, LLC v. Dep't of Revenue , 164 So.3d 806, 812 (Fla. 1st DCA 2015) ("Judicial deference does not require that courts adopt an agency's interpretation of a statute when the agency's interpretation cannot be reconciled with the plain language of the statute.").

An agency statement that "implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency" is considered a "rule." §§ 120.52(16), 120.56(4)(a), Fla. Stat. Statements that are rules cannot be enforced unless they are formally adopted in accordance with requirements set forth in chapter 120. See § 120.54, Fla. Stat. If an agency statement meets the definition of a rule, but hasn't been adopted as a rule under chapter 120, then it is considered an "unadopted rule." § 120.52(20), Fla. Stat. Agencies may not enforce an unadopted rule against a party's substantial interests. § 120.57(e)1., Fla. Stat.; Coventry First, LLC v. State, Office of Ins. Regulation , 38 So.3d 200, 203 (Fla. 1st DCA 2010) (quoting Dep't of Revenue v. Vanjaria Enters., Inc. , 675 So.2d 252, 255 (Fla. 5th DCA 1996) ).

If an agency statement merely reiterates a law, or declares what is "readily apparent" from the text of a law, however, the statement is not considered a rule. See, e.g. , Amerisure Mut. Ins. Co. v. Dep't of Fin. Servs. , 156 So.3d 520, 532 (Fla. 1st DCA 2015) ; St. Francis Hosp., Inc. v. Dep't of Health and Rehab. Servs. , 553 So.2d 1351, 1354 (Fla. 1st DCA 1989). The parties' arguments in this case focus on this rulemaking exception. We must decide whether the Department's 2016 memorandum, setting forth its post- Brandy's intention to tax only whole leaf blunt wraps, amounts to a simple reiteration of what is "readily apparent" from the text of § 210.25(12).

B.

After this court's decision in Brandy's , the Department issued a memorandum interpreting our opinion to prohibit the taxation of blunt wraps made partly of tobacco, but not of whole leaf wraps consisting completely of tobacco. In accordance with its interpretation, the Department altered its practice of taxing all wraps and announced going forward that it would only be taxing "whole leaf, non-homogenized" wraps. In changing its policy, the Department did not initiate rulemaking. Rather, it viewed its policy as reiterating the court's decision and as carrying out its obligation to tax "loose tobacco suitable for smoking." § 210.25(12), Fla. Stat. The Department considers itself free to forgo rulemaking because its policy is "readily apparent from its literal reading" of the statute.

We aren't convinced, however, that its authority to tax whole leaf blunt wraps is readily apparent from the statute. Whether and how § 210.25(12)'s "tobacco products" definition applies to blunt wraps is not an easy question. Prior to 2009, the statute wasn't applied to blunt wraps. After that, the Department began interpreting the statute to apply to all blunt wrap products. When Brandy's Products challenged the tax, this court determined that the "loose tobacco" part of the statute didn't apply to its blunt wraps. A debate exists about the breadth of our Brandy's opinion. Some language in the Brandy's opinion suggests that it forbade the taxation of blunt wraps across the board:

[W]e agree with the ALJ that 'giving the words used in section 210.25(11) their plain and ordinary signification, the definition ... does not include blunt wraps within its reach.
[W]e agree with the ALJ that the agency's purported failure of proof on [whether blunt wraps are "suitable for smoking"] is so completely overshadowed by the conclusion that blunt wraps are not loose tobacco as to be superfluous to the outcome of this case.

Brandy's , 188 So.3d at 132 & n.2 (quotation omitted). At least one court has interpreted Brandy's to extend, for instance, to Grabba-Leaf's whole leaf wraps.

But the dissent correctly points out that Brandy's limited its relief to Brandy's Products' own wraps: "we reverse the agency's determination that the blunt wraps distributed by Appellant are taxable 'tobacco products.' " And the make-up of Brandy's Products' wraps and Grabba-Leaf's wraps are different. It is into this interpretive vacuum that the Department's 2016 memorandum introduced a composition-based distinction between blunt wrap products. It took the position in its memorandum that Brandy's only applied to "homogenized" blunt wraps, and not to "whole leaf" blunt wraps. This differentiation between blunt wraps was novel for purposes of interpreting § 210.25(12) and Brandy's , because neither draws a composition-based distinction between blunt wrap products. And so, while the Department was right that Brandy's Products' wraps were only partly made of tobacco, and Grabba-Leaf's wraps are 100%, whole tobacco leaves, it isn't clear that this is a distinction with a difference for tax purposes. Nonetheless, the Department's memo to tobacco distributors established this new composition-based taxing regime for blunt wraps. Under its terms, the Department would no longer be taxing the Brandy's-like wraps, but would continue taxing whole leaf wraps. According to the memo, distributors would now have to "consider the composition of the product" to determine their tax liability and "seek clarification from the product manufacturer if necessary."

We think this new approach required agency rulemaking. Not only did it represent a tax policy change for the Department, but the Department's interpretation isn't clearly correct under § 210.25(12), as might excuse it from having to satisfy rulemaking requirements. As we noted in Brandy's , the statute itself doesn't define "loose tobacco." So we must construe these terms "in their plain and ordinary sense." State v. Brake , 796 So.2d 522, 528 (Fla. 2001) (citing State v. Mitro , 700 So.2d 643, 645 (Fla. 1997) ). In Brandy's , we relied on the dictionary definition of "loose," which is "not rigidly fastened or securely attached," "not brought together in a bundle, container, or binding," "not dense, close, or compact in structure or arrangement," and "not solid." Brandy's , 188 So.3d at 132 (citing Loose, Merriam-Webster Online Dictionary , www.merriam-webster.com/dictionary/loose). The definition of "tobacco" is also important here, which is: "the leaves of cultivated tobacco prepared for use in smoking or chewing or as snuff, [or] the manufactured products of tobacco." Tobacco, Merriam-Webster Online Dictionary , www.merriam-webster.com/dictionary/tobacco. Because cultivated and prepared leaves are themselves "tobacco," it isn't clear that use of the modifier "loose" in the tax statute applies to whole leaf wraps. Rather, "loose" would appear to be surplusage as applied to these wraps.

In addition to straight textual problems with "loose," the rest of the "tobacco products" definition identifies products that are further manufactured from tobacco leaves. "[S]nuff; snuff flour; cavendish; plug and twist tobacco; fine cuts and other chewing tobaccos; shorts; refuse scraps; clippings, cuttings, sweepings" do not consist of whole leaves, but of cultivated tobacco fragments. § 210.25(12), Fla. Stat. Similarly, the prototypical "loose tobacco" product, on which the ALJ and parties alike agree is "loose tobacco," is filler tobacco. Like the other stuff in § 210.25(12), filler tobacco is shredded and chopped from cultivated tobacco leaves for smoking in a pipe, blunt wrap, or other suitable vessel. Filler tobacco, too, is structurally distinct from a whole leaf tobacco wrap, which is comparatively compact, unbroken, and solid, such that it can bundle, contain, and secure loose filler tobacco. This also leads to the conclusion that blunt wraps are different than the "tobacco products" included in the statute because they aren't similarly "loose."

Along this line, it is noteworthy that other state and federal definitional statutes specifically identify tobacco leaves and wraps when they are meant to be included. Section 569.002(6), Florida Statutes, for instance, defines "tobacco products" to include both "loose tobacco leaves" and "products made from tobacco leaves, in whole or in part, ... which can be used for smoking." 26 U.S.C. § 5702(o) similarly identifies filler tobacco separately from wraps-"tobacco which ... is suitable for use ... for making cigarettes and cigars [and] wrappers thereof"-in defining what are federally taxable tobacco products. In contrast, the definition in § 210.25 doesn't mention tobacco leaves or wraps, but only "loose tobacco."

That countervailing arguments exist that whole-leaf blunt wraps are "loose" tobacco suitable for smoking is not the test for an exemption from rulemaking. Rather, the test is whether an agency statement reiterates a law, or declares what is "readily apparent" from the text of a law. Amerisure Mut. Ins. Co. , 156 So.3d at 532. Because § 210.25(12) does not clearly include whole leaf tobacco wraps, we conclude that the Department cannot by memorandum extend the statutory definition to cover them and disregard its rulemaking obligations.

Finally, we recognize the limits of our holding and of the issue presented here. We haven't been called upon to finally resolve the question of whether whole leaf blunt wraps are "loose tobacco suitable for smoking." And we needn't do that in order to resolve Grabba Leaf's unadopted rule challenge. Rather, we more modestly conclude that the Department's memo-which recognizes two different classes of blunt wraps, one taxable and one not-does not simply reiterate § 210.25(12)'s text. See St. Francis Hosp. Inc. , 553 So.2d at 1354. The Department's memo constitutes a "rule" because it is a statement of general applicability that implements and interprets the law. § 120.52(16), Fla. Stat. And it constitutes an "unadopted rule" because rulemaking procedures weren't followed, and it is not "readily apparent" from the statute itself that non-homogenized, whole leaf blunt wraps can be taxed as "loose tobacco suitable for smoking." Cf. Dep't of Revenue v. U.S. Sugar Corp. , 388 So.2d 596, 598 (Fla. 1st DCA 1980) (concluding that an agency-adopted policy distinction was not "readily apparent" in the statute and constituted an unadopted rule).

III.

For these reasons, we conclude that the Department's memorandum setting forth a policy to tax whole leaf non-homogenized blunt wraps constitutes an unadopted administrative rule that cannot be enforced.

REVERSED .

Wolf, J., concurs; Kelsey, J., dissents with opinion.

I respectfully dissent because I conclude that the Administrative Law Judge did not err in holding that the agency's memorandum was not an unadopted rule, but rather merely announced this Court's ruling in Brandy's Products, Inc. v. Department of Business & Professional Regulation, 188 So.3d 130 (Fla. 1st DCA 2016), and adhered to the plain meaning of the taxing statute. Under Florida's Administrative Procedure Act, neither act requires rulemaking. That resolves this case entirely in favor of the agency. The ALJ correctly dismissed Appellant's Petition to Determine Invalidity of Agency Statement filed under section 120.56(4) of the Florida Statutes, and we should affirm.

A rule is an "agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule." § 120.52(16), Fla. Stat. (2018). The agency's "statement" here-its memorandum noting that the Brandy's decision was released, that this Court held that the specific products there at issue were not taxable, that the decision did not address whole-leaf tobacco wraps, and thus that such whole-leaf wraps would continue to be taxed (as they had been since 2009 under the plain language of the taxing statute)-did not implement the statute, did not interpret the statute, and did not prescribe law or policy. The agency's statement merely reiterated the holding of the then-new Brandy's decision, and state that the pre-existing taxation of non- Brandy's products (under the plain meaning of the statute) would continue. Under the APA, this was not an unadopted agency rule.

1. The Plain Meaning of the Statute.

Even though this is an APA issue, and not a taxation issue as in Brandy's , the analysis properly begins with the plain language of the taxing statute. The "other tobacco products" or OTP tax (i.e., not cigarettes, taxed in a separate part of the statute; or cigars, not taxed), is imposed in what is now section 210.25(12), Florida Statutes (2018) (formerly subsection (11) ), using language unchanged since its enactment in 1985 (emphasis added):

(12) "Tobacco products" means loose tobacco suitable for smoking ; snuff; snuff flour; cavendish; plug and twist tobacco; fine cuts and other chewing tobaccos; shorts; refuse scraps; clippings, cuttings, and sweepings of tobacco, and other kinds and forms of tobacco prepared in such manner as to be suitable for chewing; but "tobacco products" does not include cigarettes, as defined by s. 210.01(1), or cigars.

As we correctly noted in Brandy's, when construing a statute we must first determine whether statutory language is clear and unambiguous, and if it is, then we must look first to the plain meaning of the statute. 188 So.3d at 132. This Court in Brandy's expressly held that the specific statutory language at issue here-"loose tobacco suitable for smoking"-"is clear and unambiguous." Id. To be taxable under the plain meaning of this statutory phrase, tobacco must be both (a) "loose" and (b) "suitable for smoking." Brandy's correctly employed a plain-meaning approach to defining "loose tobacco," but because we concluded that the product at issue was not "loose tobacco," we did not analyze whether the product was "suitable for smoking." Id. at 132 & n.2. We need to analyze both phrases here.

(a) " 'Loose' Tobacco."

Our analysis in Brandy's was specific to, and limited to, the particular product at issue there. The parties, and apparently the industry as a whole, refer to the Brandy's -type products as "homogenized" wraps. The dictionary definition of "homogenized" is "to blend (diverse elements) into a mixture that is the same throughout; to make uniform in structure or composition throughout."See Homogenize, Merriam-Webster Online Dictionary, www.merriam-webster.com/dictionary/homogenize (last visited August 30, 2018). Appellant's representative in this litigation freely admitted that the Brandy's manufactured wrap product "is made out of a few different things, not just tobacco," and thus is "homogenized" (his description). The wraps at issue in Brandy's were not 100% tobacco. They were not even predominantly tobacco. Instead, they were predominantly wood pulp and gums used as adhesives, combined with tobacco pulp in a manufacturing process to produce a cut-out tobacco-infused paper rectangle that witnesses in that case as well as in this case described as looking and feeling very much like a brown paper bag or a thin piece of cardboard. See Brandy's , 188 So.3d at 131. Evidence in this case established that the Brandy's -type manufactured products are patented.

Only that specific product with those specific characteristics was at issue in Brandy's , and this Court made that very clear as the factual basis for its ruling. Id. at 131 ("[T]he narrow issue on appeal is whether, as a matter of law, the product described by the ALJ falls within the statutory definition of 'tobacco products.' ") (emphasis added); see also id. at 132 ("Accordingly, tobacco that is densely bound together to make a solid, uniform, cohesive product like the blunt wraps at issue in this case is not 'loose tobacco' for purposes of section 210.25(11).") (emphasis added). The function of the product was not the basis for this Court's decision. This Court in Brandy's , after finding the statutory term "loose tobacco" to be "clear and unambiguous," resorted only to the dictionary definition of "loose," that being " 'not rigidly fastened or securely attached,' 'not brought together in a bundle, container, or binding,' 'not dense, close or compact in structure or arrangement,' and 'not solid.' " Brandy's, 188 So.3d at 132. The ALJ who rendered the recommended order in Brandy's had observed that "a blunt wrap is no more loose tobacco than a piece of writing paper is loose wood," and that "[n]o tobacco, as such, is visible when examining a blunt wrap, much less 'loose' tobacco or any other 'loose' ingredients for that matter." Id. at 131. We agreed with that analysis in Brandy's. Id. Our holding in Brandy's was that, because the tobacco content of those wraps was by no means "loose" from the other components of the wrap, that product was not within the plain meaning of the taxing statute.

In contrast, Appellant's wraps are natural, cured tobacco leaves, not combined with any other ingredients. They are leaves and only leaves, not tobacco-infused paper, not bound to or combined with anything else. The undisputed evidence below with respect to Appellant's leaves was that "There's nothing more, nothing less, to it." They look like leaves and feel like leaves-because they are leaves and only leaves. They are brown because they have been air-cured. They come in a pouch, and their packaging describes them as "natural tobacco wraps that are inspected and selected from the finest tobacco leaves available, ensuring a smooth smoke from beginning to end. Slow, smooth burning." The package includes a Surgeon General's warning about the danger of tobacco use. The packaging contains no patent marking. The evidence showed that users might cut or tear the leaves as needed; and Appellant's counsel admitted at oral argument that users could grind or chop the leaves for use as filler tobacco, although he opined that they probably would not do so because the leaves are selected for qualities that make them better suited to use as an outside wrapper. It was also admitted at oral argument that packages of whole tobacco leaves are available for purchase, and that those are taxed under the OTP statute.

Given the undisputed facts about the physical characteristics of Appellant's whole-leaf wraps, they fall within the dictionary definition of "loose" tobacco, as we applied it in Brandy's. Our holding in Brandy's means that tobacco is not "loose" when it is mixed with wood pulp and gum to form a manufactured product in which the different ingredients are bound uniformly and inextricably to one another. The function of the product as a wrap was not part of the analysis. In direct contrast to the Brandy's product, Appellant's leaves are not mixed with anything. They are not fastened or attached to anything or bound to anything. They are not dense, close, compact, or solid in structure. They are tobacco leaves, nothing else. They are loose tobacco within the plain meaning of the statute. Appellant's argument that only filler tobacco is "loose" tobacco within the meaning of the statute, improperly restricts the statute in a way that the Legislature did not. St. Joe Paper Co. v. Dep't of Rev. , 460 So.2d 399, 401-02 (Fla. 1st DCA 1984) ("The Department's interpretation would require the court to add the word "amended" to Section 214.14, and it is axiomatic that the court is not free to add words to steer a statute to a meaning which its plain wording does not supply."). As the ALJ observed, chopped or ground filler tobacco is loose tobacco, but the Legislature did not limit loose tobacco to filler tobacco-and neither can we. Appellant's attempt to claim that its leaves are "a solid, uniform, cohesive product" because they are leaves all the way through themselves and the cells of the leaves are closely bound to one another within the leaves, is a wholesale misapplication of Brandy's and its specific holding, which was limited to the product at issue there and the fact that its minor component ingredient of tobacco was bound inextricably to other non-tobacco ingredients. Appellant's leaves are loose tobacco. This brings us to whether they are "suitable for smoking."

(b) "Suitable for Smoking."

The Brandy's Court did not analyze this statutory phrase because it became irrelevant in light of the clear finding that the product at issue was not "loose" tobacco in the first place. 188 So.3d at 132 & n.2. But because Appellant's leaves are loose tobacco within the meaning of the statute, it becomes necessary to move to the second part of the test of OTP taxability and determine whether tobacco leaves are "suitable for smoking" within the plain meaning of the taxing statute.

The ALJ invoked the plain meaning of "suitable"-having the qualities that are right, needed or appropriate for something. This was consistent with the dictionary definition of the word. See Suitable, Merriam-Webster Online Dictionary, www.merriamwebster.com/dictionary/suitable (defining suitable as "adapted to a use or purpose") (last visited August 30, 2018). Appellant does not challenge this interpretation of "suitable" standing alone, but argues that the statute should be limited to tobacco suitable for smoking "on its own." The ALJ properly rejected this argument. In construing a clear and unambiguous statute, we are not at liberty to add words to it. St. Joe Paper, 460 So.2d at 401-02. Our task is to apply the plain meaning of "smoking."

The dictionary defines "smoking" as the verb form of "smoke," meaning "to inhale and exhale the fumes of burning plant material and especially tobacco."See Smoke, Merriam-Webster Online Dictionary , www.merriam-webster.com/dictionary/smoke (last visited August 30, 2018). Florida law defines "smoking" in several statutes. The Clean Indoor Air Act defines it as "inhaling, exhaling, burning, carrying, or possessing any lighted tobacco product, including cigarettes, cigars, pipe tobacco, and any other lighted tobacco product." § 386.203(10), Fla. Stat. (2018). The medical marijuana statute defines it as "burning or igniting a substance and inhaling the smoke." § 381.986(1)(n), Fla. Stat. (2018). The public nuisance statute defines it as "possess[ing] any ignited tobacco product or other ignited substance ...." § 823.12, Fla. Stat. (2018). "Smoking," used alone, is not limited to a product being smoked with something else. Smoking is smoking. If the Legislature had intended to limit "suitable for smoking" in the way Appellants suggest, it could have done so, but has consistently done the opposite and invoked a broad and plain-meaning definition of "smoking." It did so in the OTP statute. Thus, the ALJ correctly construed "suitable for smoking" as extending to Appellant's tobacco leaves heated and consumed during the act of smoking.

To support its restricted definition of "smoking" as limited to "smoking on its own," Appellant relied below on a Colorado decision that was not yet final. The case became final well over a year ago, and ended up being contrary to Appellant's position, although Appellant failed to notify us of that development. In Colorado Department of Revenue v. Creager Mercantile Co. , 395 P.3d 741 (Colo. 2017) (En Banc), the majority of the en banc Colorado Supreme Court held that the Colorado statute imposing a tax on other tobacco products (which differed from the Florida statute by not being limited to "loose"

tobacco), encompassed even homogenized blunt wraps because they are "consumed by the act of smoking" and are therefore "suitable for smoking." 395 P.3d at 745. While Creager interprets Colorado law and is not binding in Florida, it is directly contrary to Appellant's argument.

Appellants get the opposite of the Brandy's answer on the tax question-not because of any difference in the law, but because of the material factual differences between the nature of the manufactured products at issue in Brandy's and the natural whole tobacco leaves at issue here. Brandy's Products succeeded in establishing that its product was not taxable under section 210.25(11) (now (12) ), by carefully distinguishing its product based on its physical characteristics as a manufactured blend of inseparable wood pulp, tobacco pulp, and gums. While Appellant attempts to tag along on that result based on the function of its product, function of the product is not a factor under the taxing statute and was not a factor in Brandy's . Appellant's product is taxable. But as already noted, this is an APA rulemaking case, not a tax case.

2. The Memorandum is not an Unadopted Rule.

The tax question informs the APA question. The question before the Court is whether the agency's post- Brandy's memorandum included an unadopted rule. The agency announced this Court's holding in Brandy's , and stated that the status quo pre- Brandy's continued to apply to the whole leaf products not addressed in Brandy's . If Appellant's product falls within the plain meaning of the statutory language that we expressly held in Brandy's was "clear and unambiguous," then it was taxable by direct operation of the taxing statute. Thus, two propositions become clear: no rulemaking was required to apply a clear and unambiguous statute; and rulemaking is not required when an agency reiterates a court holding. Neither agency statement is an unadopted rule.

As the agency's representative testified, the post- Brandy's agency memo did nothing other than "stop[ ] the taxation of the homogenized product based on [ Brandy's ]," leaving all other blunt wrap products taxed as they had been since the State started imposing the tax. The reasoning and result in Brandy's serve to highlight the factual distinctions between taxable and non-taxable wrap products, leaving intact the State's long-standing policy and practice of taxing other tobacco products not like those in Brandy's , which was based on the plain language of the taxing statute itself. No rulemaking was required.

(a) Unambiguous Statute Requires No Rule.

The parties here, as in Brandy's , agreed that since 2009, under statutory language in place since 1985, and without adopting any rules to do so, the agency had been taxing both the tobacco-infused paper product at issue in Brandy's and the whole leaves of tobacco at issue here. We noted in Brandy's that "[t]he agency's decision to start taxing blunt wraps was not based on a change in Florida law as the definition of 'tobacco products' in section 210.25(11) has remained unchanged since its original enactment in 1985." 188 So.3d at 131 n.1. The agency's position all along has been that the statute imposed the tax by its plain meaning, and therefore rulemaking was not required.

Florida law is clear that agencies are not required to promulgate rules when those agencies merely apply the plain language of a statute:

An agency interpretation of a statute which simply reiterates the legislature's statutory mandate and does not place upon the statute an interpretation that is not readily apparent from its literal reading, nor in and of itself purport to create certain rights, or require compliance, or to otherwise have the direct and consistent effect of the law is not an unpromulgated rule, and action based upon such an interpretation are permissible without requiring an agency to go through rulemaking.

Amerisure Mutual Ins. Co. v. Dep't of Fin. Svcs. , 156 So.3d 520, 532 (Fla. 1st DCA 2015) (quoting St. Francis Hosp., Inc. v. Dep't of Health & Rehab. Svcs. , 553 So.2d 1351, 1354 (Fla. 1st DCA 1989) ).

This fundamental premise of administrative procedure harkens back to the early days of the Administrative Procedure Act, when former Judge Robert P. Smith, Jr. of this Court explained that rulemaking is required only for agency statements intended "by their own effect " to make law:

[T]he Section 120.54 rulemaking procedures are imposed only on policy statements of general applicability, i.e., those statements which are intended by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law .

McDonald v. Dep't of Banking & Fin. , 346 So.2d 569, 581 (Fla. 1st DCA 1977) (emphasis added) (superseded by statute on other grounds). This principle gives effect to the fundamental proposition that the Florida Legislature alone makes statutory law, and confers on state agencies only limited authority to make rules that "implement or interpret the specific powers and duties granted by the enabling statute." § 120.536(1), Fla. Stat. (2018). No agency has "the authority to implement statutory provisions setting forth general legislative intent or policy." Id. Rulemaking requirements were never intended to "encompass virtually any utterance by an agency." McDonald, 346 So.2d at 581. Where a statute is clear and unambiguous and can be interpreted according to its plain meaning, there is neither authority nor need for agency rulemaking. Id.

We have continued to rely on the language of McDonald's explanation that agencies must make rules only for statements that "by their own effect" have the effect of law. We expressly applied exactly that principle in Coventry First, LLC v. Office of Insurance Regulation , 38 So.3d 200 (Fla. 1st DCA 2010). In pertinent part, we held that the agency's letters to licensees requesting information about out-of-state settlements, and its procedures for obtaining such records, were not unadopted rules. Id. at 204-05. Rather, the agency's communications and statements were authorized by statute, and did not themselves have the effect of law, and therefore were not improper unadopted rules. Id. at 205. In Agency for Health Care Administration v. Custom Mobility, Inc. , 995 So.2d 984 (Fla. 1st DCA 2008), we applied the McDonald's language to hold that a formula for calculating overpayments in audits was not an unadopted rule. 995 So.2d at 986. It did not of itself have the effect of law and it did not implement, interpret, or prescribe law or policy. Id. at 986-87.

In St. Francis Hospital, Inc. v. Department of Health & Rehabilitative Services, 553 So.2d 1351, 1354 (Fla. 1st DCA 1989), we held that an agency's statement reiterating the literal meaning of a statute without creating new rights, burdens, or law, is not an unpromulgated rule:

[A]n agency interpretation of a statute which simply reiterates the legislature's statutory mandate and does not place upon the statute an interpretation that is not readily apparent from its literal reading, nor in and of itself purport to create certain rights, or require compliance, or to otherwise have the direct and consistent effect of the law, is not an unpromulgated rule, and actions based upon such an interpretation are permissible without requiring an agency to go through rulemaking.

We applied this rule in State Board of Administration v. Huberty , 46 So.3d 1144 (Fla. 1st DCA 2010). The statute at issue allowed state employees to elect to participate in the state Investment Plan "in writing or by electronic means." 46 So.3d at 1146 (quoting § 121.4501(4)(a)1.a.). The agency prepared and distributed a booklet advising state employees that the election could be made online or by telephone. A state employee had given the state clear instructions by recorded phone call to switch her retirement account to the Investment Plan, but then became disappointed in the Investment Plan's performance. She claimed that her telephonic instructions to switch her to the Investment Plan should be rescinded because the agency did not adopt a rule providing that telephonic communications were encompassed within the statutory phrase "electronic means." We rejected the employee's argument, and held that the agency's plain-meaning interpretation of the statute as including telephone communications within "electronic means" did not require rulemaking. The agency's statement itself did not adversely affect substantive rights, deny or withdraw a pre-existing right, impose any new or additional requirements, or have "the direct and consistent effect of law." 46 So.3d at 1147 (quoting Dep't of Rev. v. Vanjaria Enter., Inc., 675 So.2d 252, 255 (Fla. 5th DCA 1996) ). See also, e.g., Envtl. Trust v. State, Dep't of Envtl. Prot. , 714 So.2d 493, 498-99 (Fla. 1st DCA 1998) (holding that an agency statement explaining "how an existing rule of general applicability will be applied in a particular set of facts" is not itself an unadopted rule and does not require agency rulemaking).

By the same token here, the agency's memorandum did not constitute an unadopted rule, because it merely presented exactly what this Court had held in Brandy's , followed by the statement that nothing else had changed and products other than those addressed in Brandy's would continue to be treated the same way they had been since 2009, under the plain meaning of the taxing statute. Such other products had been taxed as Other Tobacco Products (OTPs) since 2009 based on a plain meaning of the statutory phrase "loose tobacco suitable for smoking" - the very phrase that we expressly held in Brandy's was "clear and unambiguous." The agency's memorandum did not change any substantive rights, impose any new legal burden, or have the direct effect of law.

Appellant argues that the agency's memorandum was an unadopted rule because it used the phrases "whole-leaf" and "homogenized," which are terms the statute does not use. This argument is unavailing, because these phrases are merely descriptors for the holding in Brandy's and for Appellant's product. The parties in Brandy's as well as here used these terms to distinguish the two products based on their physical characteristics, and testified that these are the industry terms for the products. The agency's use of undisputed shorthand synonyms for the longer descriptive phrases used in Brandy's did not constitute improper rulemaking.

The agency changed nothing. We alone did, and only by applying the plain language of the statute to the specific product at issue in Brandy's . Nothing changed for other products, including the whole tobacco leaves at issue in this case. They were taxable under the plain language of the statute from the inception of the State's taxation of them, and they remain so. The agency is not required to promulgate rules upon issuance of this kind of an appellate court decision, and is not required to promulgate rules when it acts within the plain meaning of the taxing statute. To hold otherwise would impose on all agencies a tremendous burden to make rules for virtually every statute and court decision. That is not the law of Florida. Therefore, the agency's post- Brandy's memo is not an invalid un-adopted rule. The ALJ properly dismissed Appellant's Petition, and we should affirm.

      The Division of Alcoholic Beverages and Tobacco possesses authority to adopt rules to enforce chapter 210, part II's provisions for taxing loose tobacco products. See § 210.75, Fla. Stat.

      On July 1, 2016, the definition of "tobacco products" was moved, without being amended, from subsection 210.25(11) to subsection 210.25(12). Although this dispute pre-dated the change, this opinion will use and refer to the current subsection, which lists the following "tobacco products" as taxable:
      [L]oose tobacco suitable for smoking ; snuff; snuff flour; cavendish; plug and twist tobacco; fine cuts and other chewing tobaccos; shorts; refuse scraps; clippings, cuttings, and sweepings of tobacco, and other kinds and forms of tobacco prepared in such manner as to be suitable for chewing; but "tobacco products" does not include cigarettes ... or cigars.
      § 210.25(12), Fla. Stat. (emphasis added).

      Blunt wraps weren't taxed as "loose tobacco suitable for smoking" until 2009, some 24 years after § 210.25(12) was first enacted. See Ch. 85-141, §§ 1, 5, at 1023-29, Laws of Fla. (1985).

      In a tax refund case brought by Grabba-Leaf in South Florida, a trial court citing Brandy's refunded more than $828,000 in overpaid taxes to Grabba-Leaf associated with its whole leaf blunt wraps. See Grabba-Leaf, LLC v. Dep't of Bus. & Prof'l Regulation , No. 2015-CA-12414-25, 2016 WL 11474376 (Fla. 17th Cir. Ct. Oct. 25, 2016), aff'd sub nom. Dep't of Bus. & Prof'l Regulation v. Grabba-Leaf, LLC, No. 4D16-4166, 2017 WL 5195127 (Table) (Fla. 4th DCA, Nov. 9, 2017).

      We recognized in Brandy's that "tax statutes [must] be construed narrowly, not broadly." 188 So.3d at 132. "[T]axes may be collected only within the clear definite boundaries recited by the statute." Id. (quoting Maas Bros., Inc. v. Dickinson , 195 So.2d 193, 198 (Fla. 1967) ). And "any ambiguity in the provision of a tax statute must be resolved in the taxpayer's favor." Verizon , 164 So.3d at 809.

      We don't finally resolve the "loose" issue here as relates to whole-leaf wraps, or whether whole-leaf blunt wraps can be considered "suitable for smoking" under § 210.25(12). See also Brandy's, 188 So.3d at 132 n.2 (also not resolving whether blunt wraps are "suitable for smoking").


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Isaac WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1519
    District Court of Appeal of Florida, First District.
    November 7, 2018 Rehearing Denied November 29, 2018
    Andy Thomas, Public Defender, and M. J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Isaac Williams was tried and convicted of armed burglary of a dwelling with person assaulted. He seeks a new trial, arguing that the charging document was fundamentally defective. We affirm because it is clear that the information sufficiently alleged the elements of burglary and Mr. Williams understood the charges he was facing.

When the State first charged Mr. Williams in this case, the original information charged him with attempted armed burglary of a dwelling with person assaulted.

The day before trial, the State filed an amended information to change the charge from an attempt to a completed armed burglary of a dwelling with person assaulted. The caption was changed to "ARMED BURGLARY OF DWELLING WITH PERSON ASSAULTED" and included a citation to section 810.02(2). But the body of the document wasn't changed. On the morning of trial, the court noted that the amended information had been filed. Counsel for Mr. Williams stated he was not prejudiced by the amendment and the trial for burglary proceeded. No one noticed the mismatched language in the caption and body of the information. And at trial, Mr. Williams's counsel repeatedly referenced the completed burglary charge against his client. The evidence at trial showed that Mr. Williams and another armed man pushed into the victim's home after he opened the door, hit him over the head with a gun, and stole money and drugs from the home. After hearing the evidence, the jury returned a verdict finding Mr. Williams guilty of armed burglary of dwelling with person assaulted. At no time did Mr. Williams assert any objection related to the information or to his notice of the charges.

Now, on appeal, Mr. Williams contends that we must reverse for a new trial because the body of the charging document alleged attempted burglary and not a completed burglary. But we do not agree. Deficiencies in charging documents are not per se reversible. Weatherspoon v. State , 214 So.3d 578, 584 (Fla. 2017). Rather, "[g]enerally the test for granting relief based on a defect in the information is actual prejudice to the fairness of the trial." Id. (quoting Price v. State , 995 So.2d 401, 404 (Fla. 2008) ). According to Weatherspoon , the information is "legally sufficient" if it expresses the elements of the offense charged in such a way that "the accused is neither misled or embarrassed in the preparation of his defense nor exposed to double jeopardy." Id. The rules of criminal procedure make the same point:

No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoinder of offenses or for any cause whatsoever, unless ... the indictment or information is so vague, indistinct, and indefinite as to mislead the accused and embarrass him or her in the preparation of a defense or expose the accused after conviction or acquittal to substantial danger of a new prosecution for the same offense.

Fla. R. Crim. P. 3.140(o).

In this instance, the record shows that Mr. Williams was not prejudiced by the defect in the information. Mr. Williams knew of the completed burglary charge. Mr. Williams's counsel acknowledged receiving the amended information and its completed burglary charge, which referenced section 810.02(2)(a) and (b), Florida Statutes : "I have received it. I'm not prejudiced by the amendment. [And I] enter a plea of not guilty to the amended information." In his opening remarks, defense counsel also demonstrated a clear understanding that Mr. Williams was defending against a burglary charge and not an attempt charge. Later at trial, jury instructions were given for completed burglary. With all this in view, we see no prejudice to Mr. Williams. He knew that he was being tried for a completed burglary charge, he defended against the charge, and he did not object to it. See Moseley v. State , 7 So.3d 550, 552 (Fla. 5th DCA 2009) ("In this case, it is clear that Moseley suffered no actual prejudice. Rather, he defended the case at all stages of the proceeding, through verdict and appeal, under the assumption that he had been charged pursuant to subsection (1) of the statute ....").

In addition to not being uninformed or misled about the charges, the charging document addressed the basic elements of the offense of burglary. Weatherspoon , 214 So.3d at 584. In addition to citing the burglary statute, section 810.02(2), by alleging that Mr. Williams attempted to enter or remain in the dwelling, the body of the charging document put Mr. Williams on notice of the offense's entrance element. The State's evidence regarding the entrance element was that Mr. Williams was involved in a scuffle in the doorway of the victim's home and pressed forward and got inside. And even the State's closing argument regarding the lesser included offense of attempted burglary was argued on the basis of proving that Mr. Williams and his accomplice "went in there and they forced their way into this home." Under these facts, there is little risk of prejudice to Mr. Williams's defense since he was aware of the State's evidence and argument on the entrance element of the offense showing an actual entry. Nor is there danger that Mr. Williams could be separately charged with attempted burglary as that charge was subsumed by the completed burglary. See Aubuchon v. State , 110 So.3d 55, 58 (Fla. 2d DCA 2013) ("[U]nder section 775.021(4)(b)(2), an attempt to commit an offense is considered to be subsumed within the completed offense because the offense of attempt is usually a degree variant of the primary offense.").

Appellant relies upon Castillo v. State , 929 So.2d 1180, 1182 (Fla. 4th DCA 2006), which is distinguishable. There, the defendant was charged with burglary of a structure, but was ultimately convicted of burglary of a dwelling. In that case, it wasn't clear that the appellant knew that the State was proceeding against him for burglary of a dwelling. The charging document did not put the defendant on notice of the dwelling element. And a jury finding that a building is a dwelling requires proof that is different from the kind required to prove that the building is a structure. Different from that case, Mr. Williams has not demonstrated a fundamental error here because he knew affirmatively that the State intended to try him for a completed burglary, and the charging document gave him notice of the entrance element of the offense.

The judgment and sentence are AFFIRMED .

Lewis, Osterhaus, and Bilbrey, JJ., concur.


author: PER CURIAM.

text:
    In the INTEREST OF T.J.T., a child.
    E.U., Appellant, v. Department of Children and Families and Guardian Ad Litem Program, Appellees.
    Case No. 2D18-1637
    District Court of Appeal of Florida, Second District.
    Opinion filed November 7, 2018
    Charalampos G. Demosthenous of The Demosthenous Law Firm, Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mary Soorus, Assistant Attorney General, Tampa, for Appellee, Department of Children and Families.
   PER CURIAM.

Appellant E.U. (the Mother) appeals the trial court order terminating her parental rights to T.J.T. We reverse the final termination judgment, including the entry of the consent by nonappearance, because the Mother was denied the effective assistance of counsel. The record reflects that the general magistrate declined to rule on the Mother's request for counsel at a judicial review and that the Department of Children and Families misrepresented the nature of the Mother's request for counsel at a subsequent status conference. This unnecessary delay in the appointment of counsel resulted in the trial court entering the Mother's consent by nonappearance while the request for counsel remained pending. Furthermore, after counsel was appointed, counsel failed to appear at the manifest best interests hearing. See In re D.B., 385 So.2d 83 (Fla. 1980) ; M.M. v. K.P., 228 So.3d 718 (Fla. 2d DCA 2017) ; A.C.N. v. Dep't of Children & Family Servs., 814 So.2d 1142 (Fla. 2d DCA 2002) ; In re M.D.A., 517 So.2d 711 (Fla. 4th DCA 1987). The cause is therefore remanded for further proceedings.

Reversed and remanded.

CASANUEVA, SLEET, and LUCAS, JJ., Concur.

      While we recognize that trial courts are required by statute to enter a consent when a parent fails to appear for an advisory hearing, see § 39.801(3)(d), Fla. Stat. (2017), we note that the best practice would be to resolve a pending request for counsel prior to entering a consent by nonappearance.


text:
    James CLARK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3807
    District Court of Appeal of Florida, First District.
    November 15, 2018 Rehearing Denied December 12, 2018
    James Clark, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED . See Baker v. State , 878 So.2d 1236 (Fla. 2004).

Ray, Kelsey, and Jay, JJ., concur.


text:
    Miguel AVILA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3869
    District Court of Appeal of Florida, First District.
    November 15, 2018 Rehearing Denied December 10, 2018
    Miguel Avila, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED . See Baker v. State , 878 So.2d 1236 (Fla. 2004).

Ray, Kelsey, and Jay, JJ., concur.


text:
    Charles E. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2071
    District Court of Appeal of Florida, First District.
    November 15, 2018
    Charles E. Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is dismissed. See Baker v. State , 878 So.2d 1236 (Fla. 2004).

B.L. Thomas, C.J., and Wetherell and Winsor, JJ., concur.


text:
    Aljamar GRANT, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D18-2283
    District Court of Appeal of Florida, Third District.
    Opinion filed November 16, 2018
    Carlos J. Martinez, Public Defender, Miami, and Jeffrey Paul DeSousa, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sandra Lipman, Assistant Attorney General, for respondent.
    Before LAGOA, LOGUE, and SCALES, JJ.
   PER CURIAM.

Aljamar Grant, the Defendant in a criminal case, petitions for a writ of habeas corpus to quash a bench warrant for his arrest. Based upon the State's commendable confession of error, we grant the petition and quash the bench warrant immediately, notwithstanding the filing of any post-opinion motions. Cruz v. State, 822 So.2d 595, 596 (Fla. 3d DCA 2002) ("[W]e conclude that the defendant was not given a sufficiently clear notice that her personal appearance would be required in court, notwithstanding that she had executed a written waiver of appearance.").

Where no bench warrant has been issued, but the trial court refused to undertake the ministerial act of accepting the defendant's waiver of presence, the proper remedy is a writ of mandamus, but here, where the bench warrant has already issued, the proper remedy is a writ of habeas corpus. Id. at 596 & n.2 (citations omitted).

Petition granted.


text:
    Thomas Earl SMAIL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2403
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 16, 2018
    Thomas Earl Smail, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Thomas Earl Smail, appeals the summary denial of his motion to correct illegal sentence. Smail alleges that the prison sentence he received for violating his community control was illegal because the court had no jurisdiction to impose a prison sentence where his community control had been terminated early. While the trial court correctly found that the VOP affidavit and arrest warrant were filed prior to the scheduled expiration of Smail's two-year community control period, Smail actually argued that his community control supervision had terminated prior to its originally scheduled expiration date. In its summary denial of Smail's motion, the trial court failed to address that specific portion of the claim. We therefore reverse the summary denial of Smail's motion to correct illegal sentence and remand for the trial court to attach portions of the record that conclusively refute these claims.

REVERSED and REMANDED.

WALLIS, EDWARDS and HARRIS, JJ., concur.


text:
    Murray REED, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1456
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 27, 2018
    Murray Reed, Clermont, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Baker v. State, 878 So.2d 1236, 1245-46 (Fla. 2004).

WALLIS, LAMBERT and EDWARDS, JJ., concur.


text:
    Steven P. MCKENNEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4045
    District Court of Appeal of Florida, First District.
    November 21, 2018
    Steven P. McKenney, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Lewis, Wetherell, and Makar, JJ., concur.


text:
    David PAYNE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3280
    District Court of Appeal of Florida, First District.
    November 19, 2018
    David Payne, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

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


text:
    Alexander RICHARDSON and James Richardson, Petitioners, v. Meenwattie KISSOON, Respondent.
    Case No. 2D18-2675
    District Court of Appeal of Florida, Second District.
    Opinion filed November 28, 2018
    Kansas R. Gooden of Boyd & Jenerette, P.A., Jacksonville, for Petitioners.
    Luis G. Figueroa and Dennis Hernandez of Dennis Hernandez & Associates, P.A., Tampa, for Respondent.
   PER CURIAM.

Dismissed. See Morgan, Colling & Gilbert, PA. v. Pope, 798 So.2d 1 (Fla. 2d DCA 2001).

NORTHCUTT, MORRIS, and BLACK, JJ., Concur.


text:
    Carlos OJEDA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3602
    District Court of Appeal of Florida, Second District.
    Opinion filed November 28, 2018
    Howard L. Dimmig, II, Public Defender and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Affirmed without prejudice to any right appellant might have to file a Florida Rule of Criminal Procedure 3.850 motion.

KELLY, LUCAS, and SALARIO, JJ., Concur.


text:
    Michael BASS, Appellant, v. Kelly BASS, Appellee.
    Case No. 5D18-384
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 27, 2018
    Chad A. Barr, of Law Office of Chad A. Barr, P.A., Altamonte Springs, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Mayfield v. Mayfield, 929 So.2d 671 (Fla. 5th DCA 2006).

ORFINGER, LAMBERT and EISNAUGLE, JJ., concur.


text:
    Tavione Anthoney WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4978
    District Court of Appeal of Florida, First District.
    November 30, 2018
    Andy Thomas, Public Defender, and Justin F. Karpf, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Tavione Anthoney Williams appeals his sentence for attempted felony murder where he discharged a firearm causing great bodily harm, attempted robbery with possession of a firearm, and grand theft. Williams was seventeen years old when he committed these offenses. Pursuant to an open plea, Williams was sentenced to concurrent terms of life imprisonment with a mandatory minimum of life, ten years' imprisonment with a mandatory minimum of ten years, and five years' imprisonment. We affirm the sentences imposed. But, as conceded by the State, to make the written judgment comply with the trial court's oral pronouncement, we are required to reverse in part and remand for resentencing solely to provide for a judicial review hearing after twenty years to allow for the possibility of early release. §§ 775.082(3)(c); 921.1402(2)(d), Fla. Stat. (2015) ; see also Kelsey v. State , 206 So.3d 5, 8 (Fla. 2016) ("[A]ll juvenile offenders whose sentences meet the standard defined by the Legislature in chapter 2014-220, a sentence longer than twenty years, are entitled to judicial review."); see also , Dinnall v. State , 246 So.3d 1302 (Fla. 5th DCA 2018) ; Montgomery v. State , 230 So.3d 1256, 1263 (Fla. 5th DCA 2017). All other issues raised on appeal are affirmed without comment.

AFFIRMED in part; REVERSED in part; and REMANDED with instructions.

Rowe, Osterhaus, and Kelsey, JJ., concur.


author: SILBERMAN, Judge.

text:
    Joshua Melvin NEGRON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2446
    District Court of Appeal of Florida, Second District.
    Opinion filed November 28, 2018
    Robert P. Harris of Robert Harris Law Firm, Fort Myers, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Chelsea S. Alper, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Joshua Melvin Negron challenges the revocation of his probation and resulting sentence of twenty-four months in prison for the offense of fleeing or eluding a law enforcement officer with lights and sirens activated. We affirm without discussion the trial court's decision to revoke probation and remand only for entry of a second corrected revocation order.

The trial court entered a revocation order and a corrected revocation order. Negron argues, and the State acknowledges, that the corrected revocation order contains errors that require further correction. Accordingly, we remand for the trial court to enter a second corrected revocation order that omits the condition five violations that were never alleged or mentioned at the evidentiary hearing, includes the condition ten violation that the trial court found, and reflects that the violations were found after an evidentiary hearing. See Jones v. State, 221 So.3d 736, 736 (Fla. 2d DCA 2017) (remanding for entry of a revocation order conforming to the oral pronouncement of the condition violated); Hamilton v. State, 128 So.3d 177, 177 (Fla. 2d DCA 2013) (remanding to correct revocation order that incorrectly stated that the probationer admitted to the violation when the trial court had conducted a revocation hearing).

Affirmed and remanded with instructions.

LUCAS and SALARIO, JJ., Concur.


text:
    Brandon M. CARTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2690
    District Court of Appeal of Florida, First District.
    November 30, 2018
    Brandon M. Carter, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is dismissed as unauthorized. See Baker v. State , 878 So.2d 1236 (Fla. 2004) (habeas corpus cannot be used to litigate issues that could have been or were raised on direct appeal or in postconviction motions).

Petitioner is cautioned that abusive, repetitive, malicious, or frivolous filings will result in sanctions such as a bar on pro se filing in this Court or referral to prison officials for disciplinary proceedings. See State v. Spencer , 751 So.2d 47 (Fla. 1999) ; § 944.279(1), Fla. Stat.

Ray, Kelsey, and Jay, JJ., concur.


text:
    The ESTATE OF Phyllis A. RAMSEY, BY AND THROUGH Ralph E. RAMSEY, Personal Representative, Appellant, v. NORTHPORT HEALTH SERVICES OF FLORIDA, LLC, NHS Management, LLC, and Randall G. Blue (as to West Melbourne Health and Rehabilitation Center), Appellees.
    Case No. 5D17-3906
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 30, 2018
    Megan L. Gisclar and Joanna Greber Detloff, of Wilkes & McHugh, P.A., Tampa, for Appellant.
    Christopher B. Hopkins and Mary F. April, of McDonald Hopkins, LLC, West Palm Beach, for Appellees.
   PER CURIAM.

The Estate of Phyllis A. Ramsey ("the Estate") brought a nursing home abuse and neglect action against the Appellees. The Estate challenges a non-final order granting Appellees' motion to compel arbitration. We affirm the trial court's order compelling arbitration, but remand with instructions to sever from the arbitration agreement the provision applying the Alabama Rules of Evidence to the admissibility of evidence at the arbitration hearing. See Northport Health Servs. of Fla., LLC v. Louis , 240 So.3d 120, 123 (Fla. 5th DCA 2018) (holding that provision of rehabilitation center's admission agreement that Alabama Rules of Evidence apply to arbitration hearing was unenforceable, but provision was severable from remainder of agreement).

We decline to address the other argument raised on appeal by the Estate. See, e.g. , Aills v. Boemi , 29 So.3d 1105, 1109 (Fla. 2010) (stating that specific legal ground upon which claim is based must be raised at trial and, except in cases of fundamental error, claim different than that will not be heard on appeal).

AFFIRMED, in part; REVERSED, in part; and REMANDED.

EVANDER, WALLIS and HARRIS, JJ., concur.


author: Lewis, J.

text:
    James Justin CHANNELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4966
    District Court of Appeal of Florida, First District.
    November 30, 2018
    Andy Thomas, Public Defender, and Laurel Cornell Niles, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tabitha Herrera and Kaitlin Weiss, Assistant Attorneys General, Tallahassee, for Appellee.
   Lewis, J.

Appellant, James Justin Channel, appeals his final judgment of conviction and sentence, challenging the denial of his amended motion to suppress seized evidence. For the reasons that follow, we affirm.

BACKGROUND

Appellant was charged with possession of firearm by a convicted felon (Count 1), possession of methamphetamine (Count 2), resisting officer without violence (Count 3), possession of less than twenty grams of cannabis (Count 4), and possession of drug paraphernalia (Count 5). He filed an amended motion to suppress, seeking in part the suppression of items seized.

During the suppression hearing, Sergeant Jason Von Ansbach-Young and Investigator Cory Caves testified that on February 23, 2017, around 10:30 a.m., they went to the Super 6 Inn on Plantation Road upon receiving information from an ATF investigator that room 137 was being used by a group of people-including a white male with an outstanding warrant-who had large quantities of narcotics and firearms in the room and that another hotel room and a white Kia were also involved. The Super 6 Inn is in a high crime area where law enforcement frequently responds to complaints of narcotics, weapons offenses, and prostitution. The officers rode in an unmarked vehicle and wore blue jeans and a black shirt that said "Sheriff's Office" on the front and back and had a star insignia on the side. Within ten minutes of setting up surveillance, the officers saw a white male exit room 137 with a duffel bag and walk in an unusual manner, changing directions several times and glancing at the undercover vehicle. Both initially and ultimately, the man was walking toward the back of the hotel, where the Kia was located. The officers did not know who the man was, but decided to make contact with him.

Von Ansbach-Young has been with the sheriff's office for about ten years and worked in narcotics for five years. Within moments of Von Ansbach-Young exiting his vehicle and making eye contact with the man, the man started running. Von Ansbach-Young believes he asked the man if he would mind talking to him for a minute, but does not think he got a full sentence out before the man began to run toward room 137; in the process, the man dropped his bag. Caves testified that upon exiting the vehicle, he asked the man if he could talk to him, and the man said, "yes, officer, just one second," but then dropped the bag and ran. Von Ansbach-Young was identifying himself and giving the man commands to stop while chasing him. As Von Ansbach-Young was closing the distance between them, he could see the man "messing with an object" in his waistband and saw that it was a firearm. Von Ansbach-Young then made contact with the man.

Once Caves was able to place the man in handcuffs, he searched him and found a gun tucked into his shorts where he had been reaching. Von Ansbach-Young immediately proceeded toward room 137 because he saw that the door was open and there was a person standing near it. The person near the hotel room ran off, but Von Ansbach-Young realized it was a member of the hotel cleaning staff who went to notify other staff of law enforcement's presence. Given that the door was open, and based on the information received about a large quantity of narcotics and firearms being inside the room, Von Ansbach-Young "stepped into the room and cleared it to make sure that there was no people in there that could gain access to the firearms or destroy evidence." No one was inside the room and Von Ansbach-Young did not conduct a search or collect evidence; however, he observed on the bedside table a small plastic baggie containing what he believed to be methamphetamine. After searching the man, Caves walked him into the hotel room to seat him. Caves identified that man in court as Appellant. Once in the room, Appellant made spontaneous statements that he only smokes a little marijuana and only sells a little methamphetamine. The duffel bag, firearm, and baggie of methamphetamine were collected.

Appellant testified that while outside of Super 6 Inn, two men walked up to him with their guns holstered. Appellant did not know who the men were and did not say anything to them; instead, he ran as the men were about fifteen to twenty yards from him. Appellant tripped while running and "wound up with people on [his] back, and then they turned out to be police officers." Appellant was handcuffed and led back into room 137. Room 137 was in someone else's name, but Appellant was staying there, and he did not give the officers permission to enter. When the officers seated Appellant in the hotel room, they offered him medical assistance for a head injury. The officers did not search the room while Appellant was there.

The trial court denied the motion to suppress with regard to the evidence seized and made the following findings and conclusions: The officers' initial contact with Appellant was a consensual encounter because they did not give him any commands and merely began to ask him a question. Once Appellant ran, the officers had reasonable suspicion to chase and seize him given that Plantation Road is a high crime area and his immediate flight upon seeing the police was unprovoked. Even if Appellant's flight in a high crime area alone did not give rise to reasonable suspicion, many additional facts in combination therewith gave the officers reasonable suspicion. Moreover, during the chase, the officers' reasonable suspicion turned into probable cause because of their observation that Appellant was carrying a concealed weapon, as well as because of his obstruction and resistance of the officers. Appellant cannot claim a Fourth Amendment violation as to the duffel bag because he abandoned it when he dropped it in a public parking area. Lastly, Sergeant Von Ansbach-Young was justified in executing a protective sweep of Appellant's hotel room under the facts of the case and the seizure of the baggie of methamphetamine was proper under the plain view doctrine.

Thereafter, Appellant entered a plea of no contest to the charges, while expressly reserving his right to appeal the denial of the dispositive motion to suppress. The trial court entered a Judgment and Sentence, whereby it adjudicated Appellant guilty and sentenced him on Count 1 as a habitual felony offender to nine years of imprisonment, with a three-year mandatory minimum for the firearm, on Count 2 to a concurrent term of 63.075 months in prison, and on Counts 3 through 5 to time served. This appeal followed.

ANALYSIS

A trial court's ruling on a motion to suppress is presumed correct, and we must interpret the evidence and reasonable inferences derived therefrom in a manner most favorable to sustaining the trial court's ruling. State v. Dickey , 203 So.3d 958, 961 (Fla. 1st DCA 2016). It is for the trial court to make credibility determinations and to weigh the evidence. Id. We defer to the trial court's findings of fact if supported by competent, substantial evidence, but review de novo the application of the law to those facts. Id.

There are three levels of police-citizen encounters. Id. The first one is a consensual encounter during which a citizen may voluntarily comply with the officer's request or ignore him or her. Id. Whether an encounter was consensual depends on whether the officer's words and actions would have led a reasonable, innocent person to believe that he was not free to leave. Caldwell v. State , 41 So.3d 188, 197 (Fla. 2010).

The second level of encounter is an investigatory stop during which an officer may temporarily detain a citizen upon a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Dickey , 203 So.3d at 961 ; see also Tobin v. State , 146 So.3d 159, 161 (Fla. 1st DCA 2014) (explaining that for an investigatory stop to be permissible, the officer must have a well-founded, articulable suspicion; mere suspicion is not enough). In deciding whether an officer had a well-founded suspicion of criminal activity, the trial court must consider the totality of the circumstances. Partlow v. State , 134 So.3d 1027, 1030 (Fla. 1st DCA 2013). Factors that may be considered in making that determination include the time of day, the suspect's appearance and behavior, anything unusual in the situation as interpreted in light of the officer's knowledge, the officer's experience, the reputation of the location, and the suspect's flight from an officer. Huffman v. State , 937 So.2d 202, 206 (Fla. 1st DCA 2006).

Although flight is insufficient by itself to justify an investigatory stop, it can give rise to a reasonable suspicion of criminal activity when combined with some additional factor(s), such as presence in a high crime area. Parker v. State , 18 So.3d 555, 558 (Fla. 1st DCA 2008) (citing in part Illinois v. Wardlow , 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), where the Court held that unprovoked flight in a high crime area is a ground for reasonable suspicion that criminal activity is afoot, upheld the reasonableness of an investigatory stop where the defendant " 'fled upon seeing police officers patrolling an area known for heavy narcotics trafficking,' " and reasoned that " '[u]nprovoked flight is not a mere refusal to cooperate. Flight, by its very nature, is not going about one's business; in fact it is just the opposite' "). In Parker , we held that the officer had reasonable suspicion to conduct an investigatory stop once the appellant began to run because he knew that a domestic battery had recently been committed by a black male a block away and the suspect was at large, it was approximately 3:00 a.m., there were two black males on the otherwise empty street, and they both ran when he shined a spotlight in their direction. Id. at 559.

The third level of encounter is an arrest, which must be supported by probable cause. Dickey , 203 So.3d at 961. "To establish probable cause, the State must demonstrate that an officer had reasonable grounds to believe that the arrestee committed a crime." Hughes v. State , 132 So.3d 933, 935 (Fla. 1st DCA 2014).

Moreover, law enforcement has no right to enter one's private property without a warrant or an exception to the warrant requirement. Daniels v. State , 208 So.3d 1223, 1226 (Fla. 2d DCA 2017). One such exception is a protective sweep, which is defined as " 'a quick and limited search of the premises, incident to an arrest and conducted to protect the safety of police officers or others.' " Id. (citation omitted). A protective sweep may be conducted regardless of whether the arrest occurred inside or outside the premises, but "may only be performed when officers 'have a reasonable, articulable suspicion that the protective sweep is necessary due to a safety threat or the destruction of evidence.' " Id. (citation omitted); see also Kentucky v. King , 563 U.S. 452, 455, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) ("It is well established that 'exigent circumstances,' including the need to prevent the destruction of evidence, permit police officers to conduct an otherwise permissible search without first obtaining a warrant."); State v. McRae , 194 So.3d 524, 529 (Fla. 1st DCA 2016) ("The exigent circumstances exception to the warrant requirement requires that the warrantless entry by police on to private property be reasonable given the totality of the circumstances.... A set of facts must exist that precludes taking the time to secure a warrant.... Officer safety has long been recognized as an exigent circumstance justifying warrantless entry of a residence.").

Turning to this case, Appellant challenges three of the trial court's legal conclusions, but does not contest its detailed findings of fact. Appellant first challenges the trial court's conclusion that the officers' initial encounter with him was consensual. However, Appellant waived this argument by contending below that the initial contact was a consensual encounter. See Terry v. State , 668 So.2d 954, 961 (Fla. 1996) (concluding that the appellant had waived his argument on appeal because it was different from his argument at trial). Regardless, the argument is without merit because the undisputed evidence was that the officers did not give Appellant any commands or draw their weapons and merely asked him if they could talk to him. Under those circumstances, a reasonable person would have felt free to leave, rendering it a consensual encounter. Appellant's only argument is that the trial court's finding is erroneous because he was not free to terminate the encounter given that when he tried to, he was chased. However, Appellant did not simply choose to ignore the officers' questions or decline to answer them; instead, he ran. Additionally, Appellant's argument looks to the next stage of the encounter, whereby the officers' actions transformed what began as a consensual encounter into an investigatory stop.

Appellant next argues that the trial court erred in concluding that the officers had reasonable suspicion to detain him. However, this Court has held that flight can justify an investigatory stop if coupled with some additional factor, and that additional factor may be presence in a high crime area. Parker , 18 So.3d at 558. Because the officers chased Appellant only after he engaged in unprovoked flight in a high crime area, they possessed the requisite reasonable suspicion. Besides, as the trial court found, additional facts supported a reasonable suspicion: The officers had been informed by an ATF investigator that a white male with an outstanding warrant and some others were using room 137 and another room for illegal activities, they had large amounts of drugs and firearms in the rooms, and a Kia was involved. The officers saw Appellant, a white male, exit room 137 with a duffel bag; observed him walking in a peculiar manner, changing directions several times; and saw that he was walking toward the Kia parked behind the hotel. Appellant then engaged in unprovoked flight in a high crime area.

Lastly, Appellant maintains that the trial court erroneously concluded that the warrantless search of room 137 was justified as a protective sweep. He argues that there was no reason to believe that other persons were in the room or that they knew that he was arrested such that they may pose a threat to the officers or destroy evidence. In doing so, Appellant ignores the undisputed facts: The officers received information from an investigator that there was a group of people, including a white male, in the room and that they had large quantities of drugs and firearms in the room; they subsequently seized Appellant, a white male who had exited that room and carried a concealed firearm; and the room's door was open, allowing any occupants who could gain access to the firearms or destroy evidence to witness Appellant's arrest. Based on the totality of the circumstances, the officers had reasonable suspicion that a protective sweep was necessary due to a safety threat and/or the destruction of evidence.

Accordingly, we hold that the trial court's ruling on the amended motion to suppress was correct and affirm Appellant's judgment and sentence.

AFFIRMED .

Wolf, J., concurs; Rowe, J., concurs in result.

      Count 1 was based on the firearm, Count 2 was based on the methamphetamine found in the room, and Counts 4 and 5 were based on the contents of the duffle bag.

      Notably, Appellant does not contest the trial court's conclusions that he abandoned the duffle bag and that the officers' reasonable suspicion transformed into probable cause during the chase.


text:
    Bernard PARKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3747
    District Court of Appeal of Florida, First District.
    November 30, 2018
    Bernard Parks, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED . See Weidner v. State , 767 So.2d 604 (Fla. 4th DCA 2000) (affirming denial of untimely rule 3.170(l ) motion without prejudice to the appellant's right to seek relief under rule 3.850).

Ray, Kelsey, and Jay, JJ., concur.


text:
    Jarrell A. MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-4164
    District Court of Appeal of Florida, First District.
    December 5, 2018
    Jarrell A. Morris, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Upon consideration of Appellant's response to the Court's order of July 30, 2018, the Court has determined that the appeal is untimely. Accordingly, the appeal is dismissed. Appellant's request for an extension of time to file the initial brief is denied as moot. Any request for belated appeal must be filed pursuant to Florida Rule of Appellate Procedure 9.141(c).

Lewis, Wetherell, and Makar, JJ., concur.


text:
    Trenton Patrick HOOKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4265
    District Court of Appeal of Florida, First District.
    December 3, 2018
    Tony L. Henderson, Milton, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Wolf, Kelsey, and M.K. Thomas, JJ., concur.


text:
    Andre M. GRIFFIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1892
    District Court of Appeal of Florida, First District.
    December 3, 2018
    Andre M. Griffin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

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


text:
    Ava Electris CANNIE, Eva Electris Cannie, and Eva Helene Cannie, Petitioners, v. WILMINGTON SAVINGS FUND SOCIETY FSB etc., Respondent.
    No. 1D18-3527
    District Court of Appeal of Florida, First District.
    December 5, 2018
    Ava Electris Cannie, Eva Electris Cannie, and Eva Helene Cannie, pro se, Petitioners.
    David Rosenberg of Robertson, Anschutz & Schneid, P.L., Boca Raton, for Respondent.
   Per Curiam.

The petition seeking belated appeal is denied. See Powell v. Fla. Dep't of Corr. , 727 So.2d 1103 (Fla. 1st DCA 1999) (stating that because the proceedings below were civil in nature, the provisions of Florida Rule of Appellate Procedure 9.140(j), now rule 9.141(c), are not applicable).

Lewis, Wetherell, and Makar, JJ., concur.


text:
    KEYSTONE AIRPARK AUTHORITY, Appellant, v. PIPELINE CONTRACTORS, INC., a Florida Corporation; The Hanover Insurance Company, a New Hampshire Corporation; and Passero Associates, L.L.C., a Florida Limited Liability Company, Appellees.
    No. 1D18-367
    District Court of Appeal of Florida, First District.
    December 5, 2018
    James J. Taylor, Jr., and Katelyn J. Taylor of the Taylor Law Firm, P.A., Keystone Heights, for Appellant.
    Curtis L. Brown of Wright, Fulford, Moorhead & Brown, P.A., Altamonte Springs, for Appellees.
   Per Curiam.

Keystone Airpark Authority appeals the trial court's award of attorneys' fees to Passero Associates based on Keystone not accepting Passero's proposal for settlement and following the entry of a summary judgment in favor of Passero. See Fla. R. Civ. P. 1.442(c). Keystone asserts that the attorneys' fees award must be reversed because the release upon which Passero's proposal for settlement was conditioned lacked the required particularity for the "relevant conditions" and "all nonmonetary terms of the proposal." Fla. R. Civ. P. 1.442(c)(2)(C)-(D).

The release language at issue, while broad and expansive, does not impermissibly encompass "causes of action that may accrue in the future based on unrelated facts and events that have not yet occurred." See Ambeca, Inc. v. Marina Cove Village Townhome Ass'n, Inc. , 880 So.2d 811, 812 (Fla. 1st DCA 2004). Likewise, the release language describing the parties to be discharged is not so expansive that it lacks sufficient particularity to inform Keystone of the affiliated parties who would be governed by the release. See Bd. of Trs. of Fla. Atlantic Univ. v. Bowman , 853 So.2d 507 (Fla. 4th DCA 2003). Accordingly, the order on appeal is

AFFIRMED .

Roberts, Makar, and Bilbrey, JJ., concur.


author: SALARIO, Judge.

text:
    Gregory MAKI and Elizabeth Maki, Appellants, v. GREEN TREE SERVICING, LLC, Appellee.
    Case No. 2D17-922
    District Court of Appeal of Florida, Second District.
    Opinion filed December 5, 2018
    Gregory Maki and Elizabeth Maki, pro se.
    Preston C. Davis, Stephen Janes, Steven G. Hurley, and William Noriega of Padgett Law Group, Tallahassee, for Appellee.
   SALARIO, Judge.

This is an appeal from a final judgment of foreclosure. We are required to reverse because, as has become far too common in residential foreclosure cases, the plaintiff that took the case to trial-Wilmington Savings Fund Society, FSB, which was neither the original lender nor the original plaintiff-failed to present legally sufficient evidence that it had standing under section 673.3011, Florida Statutes (2016), to enforce the promissory note upon which this foreclosure action is based.

The already expansive body of foreclosure law in Florida will not benefit from another long opinion that details a foreclosure plaintiff's failure of proof when standing has been placed at issue or that repeats the settled legal principles governing that question. That is, and was when this case was tried, well-trodden ground. The bottom line in the present appeal is this: Although it proceeded to trial on the theory that it was the holder of the note, Wilmington's trial evidence failed to show that the entity identified as the original lender on the note (America's Wholesale Lender) ever negotiated, assigned, or otherwise transferred the note to anyone and, even if did, that the entity that supposedly assigned the note to Wilmington (Ditech Financial, LLC, as successor-by-merger to Green Tree Servicing, LLC) ever actually owned the note or otherwise had the right to assign or transfer it. See, e.g., Olivera v. Bank of Am., N.A., 141 So.3d 770, 773 (Fla. 2d DCA 2014) (reversing summary judgment on standing grounds where "[n]othing in the record reflect[ed] a chain of transfer of interest ... from the original lender"); Segall v. Wachovia Bank, N.A., 192 So.3d 1241, 1246 (Fla. 4th DCA 2016) (reversing final judgment of foreclosure based on lack of standing where "Wachovia failed to sufficiently prove that Chase Home merged with Chase Bank[ ] and that Chase Bank thus acquired the note"). At oral argument, Wilmington all but conceded the absence of evidence on the latter point.

Because Wilmington's failure of proof on standing is dispositive, we do not reach the other issues raised by the appellants. We reverse and remand with directions that the trial court enter an order of involuntary dismissal, which is the relief the appellants properly sought in the trial court. See, e.g., Partridge v. Nationstar Mortg., LLC, 224 So.3d 839, 842 (Fla. 2d DCA 2017).

Reversed and remanded with directions.

KHOUZAM and BLACK, JJ., Concur.

      Green Tree Servicing, LLC-a prior named plaintiff in the circuit court proceedings-is the listed appellee in the style of this case. Prior to the entry of the final judgment in the trial court, however, Wilmington was substituted as the plaintiff and is the party ultimately required to establish standing for the purposes of this foreclosure.


text:
    Betty GRUNEWALD, Petitioner, v. PORTFOLIO RECOVERY ASSOCIATES, LLC, Respondent.
    No. 1D17-1914
    District Court of Appeal of Florida, First District.
    December 5, 2018
    Louis K. Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola and Robert N. Heath, Jr. of Robert N. Heath, Jr., P.A., Pensacola, for Petitioner.
    Robert E. Sickles and John P. Gaset of Broad and Cassel, LLP, Tampa, for Respondent.
   Per Curiam.

DENIED . See Ham & Foxhall v. Portfolio Recovery Assocs., LLC , Nos. 1D17-3112 & 1D17-3113, --- So.3d ----, 2018 WL 6253294 (Fla. 1st DCA Nov. 30, 2018).

Wolf, Winokur, and Jay, JJ., concur.


author: Ray, J.

text:
    Andrew ELSWICK, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2591
    District Court of Appeal of Florida, First District.
    December 10, 2018
    Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   Ray, J.

Andrew Elswick was convicted of aggravated battery with a deadly weapon after he stabbed someone with a knife during a drunken encounter. He was sentenced to twenty years in prison, with a fifteen-year mandatory minimum sentence as a habitual violent felony offender. In this direct appeal, he argues the trial court erred by finding him competent to stand trial and by failing to conduct an adequate Faretta inquiry before trial. For the reasons that follow, we affirm.

Facts

Elswick's competency to proceed in his criminal case vacillated before trial. In late 2015, the trial court appointed a mental health expert to evaluate him at the suggestion of defense counsel. Consistent with the expert's recommendation, the court found him competent to proceed. The following year, defense counsel's concerns about Elswick's competency surfaced again, and Elswick was reevaluated. This time the experts concluded he was incompetent to proceed. He was adjudicated incompetent and committed to a mental health treatment facility. After a few months of treatment, the treatment facility issued its competency evaluation to the court, opining that Elswick's competence had been restored. The court held an evidentiary hearing on competency in late 2016. Faced with conflicting expert opinions, the court ultimately found Elswick competent to proceed. The case was reset for trial.

At a pretrial hearing in January 2017, Elswick indicated a desire to represent himself at trial. The trial court conducted a Faretta inquiry, ruled that Elswick had knowingly and voluntarily waived his right to court-appointed counsel, and appointed standby counsel. Further pre-trial hearings were held on April 3 and April 17, 2017, during which the court renewed the offer of counsel on multiple occasions and stressed the risks of proceeding pro se. Jury selection took place on April 24, 2017, and the trial began the next day. At jury selection and prior to opening statements, the trial court renewed the offer of counsel. During trial, the court twice asked Elswick if he wished to have the help of appointed counsel. After conferring with standby counsel, he rejected both offers. The jury ultimately found Elswick guilty as charged. After the verdict, he asked for counsel to be reappointed for sentencing.

Analysis

We first address Elswick's contention that the trial court erred by finding him competent to stand trial because the competency evaluation relied on by the State's expert was nearly three months old at the time of the competency hearing. He relies on In re Commitment of Reilly , 970 So.2d 453, 455-56 (Fla. 2d DCA 2007), where the Second District held that a "stale," six-month-old competency report was not sufficient evidence to justify a finding that the defendant was incompetent to proceed, as it could not speak to the defendant's present mental state. See also Washington v. State , 162 So.3d 284, 289 (Fla. 4th DCA 2015) (holding that trial court abused its discretion by relying on three competency reports ranging from six months to one year old). But here, the competency evaluation was only three months old, and the State's expert continued to observe Elswick for another month after the completion of the report so he would have been aware of any changes in Elswick's competency. And while there was a battle of the experts at the competency hearing, the court gave more weight to the State's expert based on his extensive interaction with Elswick, as compared to the defense expert who had only interviewed Elswick twice; the fact that the defense expert equated Elswick's implausible defense with delusional disorder, which the court rejected; and the court's personal observations and interactions with Elswick. We conclude that the trial court's competency determination is supported by competent, substantial evidence.

We next address Elswick's contention that the trial court erred by failing to conduct an adequate Faretta inquiry before allowing him to represent himself at trial. "Under Faretta and [Florida Supreme Court] precedent, once an unequivocal request for self-representation is made, the trial court is obligated to hold a hearing, to determine whether the defendant is knowingly and intelligently waiving his right to court-appointed counsel." Tennis v. State , 997 So.2d 375, 378 (Fla. 2008). "For a criminal defendant's right to choose the manner of representation to be meaningful, this right 'must apply at least at each crucial stage of the prosecution,' which is 'any stage that may significantly affect the outcome of the proceedings.' " Brown v. State , 113 So.3d 134, 141 (Fla. 1st DCA 2013) (quoting Traylor v. State , 596 So.2d 957, 968 & nn.23-24 (Fla. 1992) ). Accordingly, where a defendant has properly waived the right to counsel, the trial court may proceed with that stage of the proceeding without further offer of counsel, but the offer must be renewed at each subsequent crucial stage where the defendant appears without counsel. Traylor , 596 So.2d at 968 ; Fla. R. Crim. P. 3.111(d)(5). "Trial in every case is a critical stage." Lamb v. State , 535 So.2d 698, 699 (Fla. 1st DCA 1988).

Elswick does not challenge the adequacy of the Faretta inquiry conducted during the pretrial hearing in January 2017, at which the trial court found that he knowingly and voluntarily waived his right to be represented by counsel at trial. Instead, he argues he was entitled to another full Faretta inquiry at the start of trial, which occurred approximately three months later. We disagree, and find the decision of Knight v. State , 770 So.2d 663 (Fla. 2000), instructive.

In Knight , the defendant requested to represent himself at his upcoming trial on charges that included first-degree murder. 770 So.2d at 664. The trial court conducted a full Faretta hearing at a pretrial hearing in October 1997 and found that the defendant had validly waived counsel for the guilt phase of his trial. Id. at 666. The defendant went to trial in March 1998 and was subsequently convicted and sentenced to death. Id. at 669. On appeal, the defendant argued the trial court reversibly erred by failing to renew the offer of counsel at the beginning of the trial. Id. In rejecting this claim, the supreme court noted the trial court did in fact renew its offer of counsel at the start of trial, but held it was not required to do so. The court explained its reasoning:

First, the October 31 waiver was in regard to Knight's trial phase representation. As such, the beginning of the trial was not a subsequent stage of the proceeding. See Lamb v. State , 535 So.2d 698 (Fla. 1st DCA 1988) (stating the pretrial hearing on the waiver of counsel addressed Lamb's competence and ability to appear pro se at the trial stage, and the fact that the trial occurred three weeks later is immaterial). Second, Knight had [court-appointed counsel] present as standby counsel during the entire guilt phase of the trial. Knight willingly accepted [court-appointed counsel] as standby counsel and consistently relied upon him. Standby counsel is a constant reminder to a self-representing defendant of his right to court-appointed counsel at any stage of the proceeding. See Harrell v. State , 486 So.2d 7 (Fla. 3d DCA 1986) ; see also McCarthy v. State , 731 So.2d 778, 781 (Fla. 4th DCA 1999) ; Mincey v. State , 684 So.2d 236, 238 (Fla. 1st DCA 1996). Accordingly, Knight's claim that the court erred by not renewing the offer of court-appointed counsel is without merit.

Id. at 669-70 (footnotes omitted).

Elswick, like the defendant in Knight , waived his right to counsel for the trial phase of his criminal prosecution after a full Faretta inquiry conducted at the January 2017 pretrial hearing. The court's advisories at that hearing fully anticipated and encompassed Elswick's trial phase representation, so the court was not obligated to conduct another full Faretta inquiry each time Elswick appeared in court during the trial phase. Further, Elswick willingly accepted and relied upon standby counsel throughout trial, a constant reminder of his right to court-appointed counsel.

The trial court also took additional steps to ensure that Elswick's decision to proceed without counsel was made "with eyes open." See Potts v. State , 718 So.2d 757, 759-60 (Fla. 1998). After the initial Faretta inquiry, the court reiterated its offer of counsel to Elswick at two pretrial hearings, before jury selection, before opening statements, during trial when Elswick was having trouble properly entering his exhibits into evidence, and after the State rested. The court repeatedly explained the dangers of self-representation, and Elswick often rejected appointed counsel after consulting with standby counsel. We find no Faretta error in this case.

AFFIRMED.

Roberts and Kelsey, JJ., concur.

      Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (holding that a criminal defendant has the right to represent himself, but the trial court has an obligation to ensure that the defendant's waiver of court-appointed counsel is knowing, voluntary, and intelligent).