text:
    Joan JOHNSON, Appellant, v. Lee TOWNSEND, Leslie Lynch, Elizabeth Denecke and Lisa Einhorn, Appellees.
    No. 4D18-432
    District Court of Appeal of Florida, Fourth District.
    [October 24, 2018]
    The decedent's wife appeals from the circuit court's final order granting the decedent's daughters' motion to strike the wife's "Petition to Determine and Perfect Surviving Spouse's Community Property Interest in Estate Assets." The circuit court struck the wife's petition, which the wife filed more than two years after the decedent's death, for three reasons: (1) pursuant to section 733.702(1), Florida Statutes (2015), the petition was an untimely claim against the estate; (2) the petition was further barred by the two-year statute of repose contained in section 733.710(1), Florida Statutes (2015) ; and (3) no exception to those statutory deadlines allowed the wife to file the petition more than two years after the decedent's death.
   The wife argues that her petition to determine her community property interest was not a claim, and thus not subject to any statutory deadlines. The wife further argues that if her petition was a claim, then her petition fell within the "trust exception" and "lien exception" to the statutory deadlines.

We agree with the circuit court's conclusions and, therefore, we affirm the circuit court's order. We will present this opinion in the following sections:

1. The estate administration's timeline;
2. The petition's procedural history;
3. The circuit court's order; and
4. This appeal and our review.

1. The Estate Administration's Timeline

On January 21, 2015, the decedent died.

On March 17, 2015, the wife, as the decedent's nominated personal representative under his will, filed a notice of administration of the estate.

On March 19, 2015, the circuit court admitted the decedent's will to probate and, pursuant to the will, appointed the wife as the estate's personal representative. The circuit court also issued letters of administration to the wife.

On March 31, 2015, the wife published a notice to creditors. The notice, pursuant to section 733.702(1), stated in pertinent part:

All creditors of the decedent and other persons having claims or demands against decedent's estate, on whom a copy of this notice is required to be served, must file their claims with this court ON OR BEFORE THE LATER OF 3 MONTHS AFTER THE TIME OF THE FIRST PUBLICATION OF THIS NOTICE OR 30 DAYS AFTER
THE DATE OF SERVICE OF A COPY OF THIS NOTICE ON THEM.
All other creditors of the decedent and other persons having claims or demands against decedent's estate must file their claims with this court WITHIN 3 MONTHS AFTER THE DATE OF THE FIRST PUBLICATION OF THIS NOTICE.
ALL CLAIMS NOT FILED WITHIN THE TIME PERIODS SET FORTH IN FLORIDA STATUTES SECTION 733.702 WILL BE FOREVER BARRED.

See § 733.702(1), Fla. Stat. (2015) ("If not barred by s. 733.710, no claim or demand against the decedent's estate that arose before the death of the decedent ... [and] no claim for personal property in the possession of the personal representative ... is binding on the estate, on the personal representative, or on any beneficiary unless filed in the probate proceeding on or before the later of the date that is 3 months after the time of the first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor ....") (emphasis added).

The notice further stated, pursuant to section 733.710(1)'s two-year repose deadline:

NOTWITHSTANDING THE TIME PERIOD SET FORTH ABOVE, ANY CLAIM FILED TWO (2) YEARS OR MORE AFTER THE DECEDENT'S DATE OF DEATH IS BARRED.

See § 733.710(1), Fla. Stat. (2015) ("Notwithstanding any other provision of the code, 2 years after the death of a person, neither the decedent's estate, the personal representative, if any, nor the beneficiaries shall be liable for any claim or cause of action against the decedent, whether or not letters of administration have been issued, except as provided in this section.").

On June 30, 2015, the three-month claims period under section 733.702(1) expired. By that time, the wife had not filed a claim or other pleading against the estate to determine her alleged community property interest.

On January 21, 2017, the two-year repose period under section 733.710(1) expired. By that time, the wife still had not filed a claim or other pleading against the estate to determine her alleged community property interest.

2. The Petition's Procedural History

On September 6, 2017 (two years eight-and-a-half months after the decedent's death), the wife filed her "Petition to Determine and Perfect Surviving Spouse's Community Property Interest in Estate Assets." The wife's petition, filed pursuant to sections 732.216-.228, Florida Statutes (2015) (known as the "Florida Uniform Disposition of Community Property Rights at Death Act") sought to confirm and effectuate her vested 50% community property interest in an investment asset acquired and titled in the decedent's name while the decedent and the wife were domiciled in Texas, a community property state. See § 732.219, Fla. Stat. (2015) ("Upon the death of a married person, one-half of the property to which ss. 732.216 - 732.228 apply is the property of the surviving spouse and is not subject to testamentary disposition by the decedent or distribution under the laws of succession of this state.").

The decedent's daughters filed a motion to strike the wife's petition. The daughters' motion and supplemental memorandum argued that the wife's petition was untimely under sections 733.702(1), 733.710(1), and 732.223. Section 732.223 states:

If the title to any property to which ss. 732.216 - 732.228 apply was held by the decedent at the time of the decedent's death, title of the surviving spouse may be perfected by an order of the probate court or by execution of an instrument by the personal representative or the beneficiaries of the decedent with the approval of the probate court. The probate court in which the decedent's estate is being administered has no duty to discover whether property held by the decedent is property to which ss. 732.216 - 732.228 apply. The personal representative has no duty to discover whether property held by the decedent is property to which ss. 732.216 - 732.228 apply unless a written demand is made by the surviving spouse or the spouse's successor in interest within 3 months after service of a copy of the notice of administration on the surviving spouse or the spouse's successor in interest.

The wife filed her own memorandum, raising three arguments that her petition to determine her community property interest was not a claim against the estate subject to the statutory deadlines.

First, the wife argued that section 732.223 shows on its face that a spouse's community property interest is not a creditor claim. According to the wife, section 732.223 does not establish a date or timeframe when a surviving spouse must file a petition to perfect a community property interest, and does not refer to the creditor claim statutes in any way. Instead, the wife argued, section 732.223 is designed solely to limit a personal representative's duty to search for community property.

Second, the wife cited section 731.201(4), Florida Statutes (2015), which defines a "claim" as

a liability of the decedent, whether arising in contract, tort, or otherwise, and funeral expense. The term does not include an expense of administration or estate, inheritance, succession, or other death taxes.

Relying on that definition, the wife argued that her community property interest was not a liability of the decedent, and therefore was not a "claim" under section 731.201(4).

Third, the wife argued that if her petition was a claim, then her community property interest fell within the common law "trust exception" and the statutory "lien exception" to section 733.702(1)'s and section 733.710(1)'s deadlines. We discuss the wife's arguments for each of these exceptions in more detail below.

a. The Common Law "Trust Exception"

In support of the common law "trust exception" to the statutory deadlines, the wife cited the pre-Probate Code case of Quintana v. Ordono , 195 So.2d 577 (Fla. 3d DCA 1967), and the post-Probate Code case of Scott v. Reyes , 913 So.2d 13 (Fla. 2d DCA 2005), for an explanation of the exception.

In Quintana , the Third District held:

Under Florida law, if a portion of the consideration belongs to the wife and title is taken in the husband's name alone, a resulting trust arises in her favor by implication of law to the extent that consideration furnished by her is used. A resulting trust is generally found to exist in transactions affecting community property in noncommunity property states where a husband buys property in his own name. Therefore, while the husband held legal title to the [property], he held a one-half interest in trust for his wife.
It is well settled that the Florida nonclaim statute, s 733.16, ... does not apply so as to require the [wife] to file a claim against the estate of the trustee.
... Such procedure does not estop the wife from obtaining her interest. The administrators of the husband's estate are trustees as to the wife's equitable interest.

195 So.2d at 580 (footnotes omitted).

In Scott , the Second District held:

The "trust exception" ... to the requirements of the nonclaim statute, as those exceptions pertain to recovery of property from an estate, have effectively been limited [by the Probate Code] to those situations where the decedent clearly held the property on behalf of the actual owner either by way of an express trust or some other clearly defined means.... If [ ] the decedent was merely in possession of the property but made no such assertion of ownership prior to his or her death, the assertion of ownership being made by the personal representative or heirs for the first time after the decedent's death would not require the filing of a claim.

913 So.2d at 18 (citation omitted).

The wife, applying Quintana 's and Scott 's explanation of the "trust exception," argued that her community property interest qualified for the exception. According to the wife, under Texas law, "a trust relationship exists between husband and wife regarding the community property controlled by each spouse[.]" Madrigal v. Madrigal , 115 S.W.3d 32, 35 (Tex. App. San Antonio 2003). Thus, the wife argued, because her community property interest remained titled in the decedent's name upon his death, the decedent held the wife's community property interest as a trustee, and the community property interest was exempt from the statutory deadlines.

b. The Statutory "Lien Exception"

As a second exception to the statutory deadlines, the wife relied upon the lien exceptions contained in sections 733.702(4)(a) and 733.710(3), Florida Statutes (2015).

Section 733.702(4)(a) states: "Nothing in this section affects or prevents ... [a] proceeding to enforce any mortgage, security interest, or other lien on property of the decedent."

Section 733.710(3) states: "This section shall not affect the lien of any duly recorded mortgage or security interest or the lien of any person in possession of personal property or the right to foreclose and enforce the mortgage or lien."

The wife, applying sections 733.702(4)(a) and 733.710(3), argued that even if her community property interest was considered as a claim, then the vesting of community property interest gave rise to an equitable lien which should be excepted from sections 733.702(1) and 733.710(1).

3. The Circuit Court's Order

The circuit court ultimately entered the order, now on appeal, granting the decedent's daughters' motion to strike the wife's petition. The order's conclusions of law state, in pertinent part:

The Petition is an untimely claim against the estate pursuant to section 733.702(1), Fla. Stat., as it is a claim or demand against Decedent's estate for personal property in the possession of the personal representative, which claim was filed more than 3 months after the notice to creditors was first published.
The Petition is further barred by section 733.710(1), Fla. Stat. [which bars any claim filed more than two years after the decedent's death].
There is no "trust exception" or any other exception which allows [the wife] to file the Petition more than two years after Decedent's death.

(paragraph numerals omitted).

4. This Appeal and Our Review

This appeal followed. To the extent our review involves interpretation of sections 733.702's and 733.710's deadlines, or an examination of whether the wife qualifies for an exception to those deadlines, our review is de novo. See Headley v. City of Miami , 215 So.3d 1, 5 (Fla. 2017) ("Issues of statutory interpretation are subject to de novo review."); Inmon v. Air Tractor, Inc. , 74 So.3d 534, 537 (Fla. 4th DCA 2011) ("This court has de novo review of a circuit court's application of a statute of repose ... because it involves an issue of law.").

The wife, mirroring her contentions in the circuit court, argues that her petition to determine her community property interest, filed pursuant to the "Florida Uniform Disposition of Community Property Rights at Death Act," was not in the nature of a claim, and thus not subject to any statutory deadlines. The wife further argues that if her petition was a claim, then her community property interest fell within the common law "trust exception" and the statutory "lien exception" to section 733.702(1)'s and section 733.710(1)'s deadlines.

The daughters argue that the circuit court properly struck the wife's petition as untimely pursuant to both section 733.702(1) and section 733.710(1) because the wife's petition is a claim. The daughters further argue that the petition is not excepted from either of the above statutes, because her claim does not constitute a lien, nor does her claim fall within the common law trust exception.

Applying de novo review, we agree with the daughters' arguments in six respects.

First, we agree with the daughters' argument that the wife's petition to determine her community property interest is a "claim" as that term is defined in section 731.201(4). Section 731.201(4) defines a "claim" as

a liability of the decedent , whether arising in contract, tort, or otherwise, and funeral expense. The term does not include an expense of administration or estate, inheritance, succession, or other death taxes.

(emphasis added). The wife's community property interest is "a liability of the decedent." Although the decedent's possession of the community property in his name may have created a resulting trust, see Quintana , 195 So.2d at 580 ("A resulting trust is generally found to exist in transactions affecting community property in noncommunity property states where a husband buys property in his own name."), upon the decedent's death, his estate became liable to the wife for her community property interest. Thus, upon the decedent's death, the wife's community property interest was a claim which the wife had to pursue.

Second, to the extent the decedent possessed the community property in his name at the time of his death, the wife's failure to make a claim upon her community property interest within section 733.702(1)'s three-month claim period barred her later-filed untimely claim (in the form of her petition). See § 733.702(1), Fla. Stat. (2015) ("If not barred by s. 733.710, no claim or demand against the decedent's estate that arose before the death of the decedent ...[and] no claim for personal property in the possession of the personal representative ... is binding on the estate, on the personal representative, or on any beneficiary unless filed in the probate proceeding on or before the later of the date that is 3 months after the time of the first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor ....") (emphasis added).

Third, to the extent the wife's petition is not only a "claim" under section 731.201(4) but also a cause of action, the wife's failure to make a claim upon her community property interest within section 733.710(1)'s two-year claim period barred her later-filed untimely claim (in the form of the petition). See § 733.710(1), Fla. Stat. (2015) ("Notwithstanding any other provision of the code, 2 years after the death of a person, neither the decedent's estate, the personal representative, if any, nor the beneficiaries shall be liable for any claim or cause of action against the decedent , whether or not letters of administration have been issued, except as provided in this section.") (emphasis added).

Fourth, the wife's reliance upon the common law trust exception is unavailing. The primary case upon which the wife relies, Quintana , construed section 733.16, Florida Statutes, which was repealed in 1974 as part of the Probate Code's adoption in 1976. Thus, Quintana 's viability is questionable. See Scott , 913 So.2d at 17 ("[T]he repeal of the former Florida Probate Law and the adoption of the Code call into question the continued viability of some of the earlier decisions that have applied the trust exception to exclude certain types of claims from the operation of the statute."). Upon the Probate Code's adoption, "[t]he 'trust exception' ... to the requirements of the nonclaim statute, as those exceptions pertain to recovery of property from an estate, have effectively been limited [by the Probate Code] to those situations where the decedent clearly held the property on behalf of the actual owner either by way of an express trust or some other clearly defined means." Id. at 18 (citation omitted). In Scott , our sister court, applying that limitation, concluded that the trust exception was inapplicable in that case because the wife there "did not allege the existence of an express trust or any other clearly defined means by which the Decedent held the accounts on her behalf." Id. Similarly here, the wife did not allege the existence of an express trust or any other clearly defined means by which the decedent held the community property interest on her behalf.

Fifth, the wife's reliance upon the lien exceptions contained in sections 733.702(4)(a) and 733.710(3) is similarly unavailing. To begin with, the wife cites no authority for her argument that the vesting of her community property interest gave rise to an equitable lien falling under either exception. Even if we were to consider that the vesting of her community property interest gave rise to an equitable lien falling under section 733.702(4)(a)'s exception ("Nothing in this section affects or prevents ... [a] proceeding to enforce any mortgage, security interest, or other lien on property of the decedent."), we could not reach the same conclusion under the plain language of section 733.710(3)'s narrower exclusion. Section 733.710(3) states: "This section shall not affect the lien of any duly recorded mortgage or security interest or the lien of any person in possession of personal property or the right to foreclose and enforce the mortgage or lien." The wife's "lien" is not a "duly recorded mortgage or security interest," nor is she, in her individual capacity, "in possession of [the subject] personal property." The wife also has not provided any argument that she has a "right to foreclose and enforce the ... lien."

Sixth, while we agree with the wife that section 732.223 is designed solely to limit a personal representative's duty to search for community property, we disagree with the wife's argument that sections 732.216-.228's failure to establish a deadline when a surviving spouse must file a petition to perfect a community property interest means no such deadline exists. Rather, as the daughters argue, a two-year deadline exists based on section 733.710(1)'s plain language: "Notwithstanding any other provision of the code , 2 years after the death of a person, neither the decedent's estate, the personal representative, if any, nor the beneficiaries shall be liable for any claim or cause of action against the decedent, whether or not letters of administration have been issued, except as provided in this section." (emphasis added).

Conclusion

Upon the decedent's death, the wife had the ability to perfect her community property interest by seeking an order of the probate court pursuant to section 732.223. Because the wife's community property interest was a "claim" as defined in section 731.201(4), the wife had three months after the time she published the notice to creditors to file her claim according to section 733.702(1), and in any event had two years after the decedent's death to file her claim according to section 733.710(1). The wife did neither. As a result, the circuit court properly found that the wife's untimely claim (in the form of her petition) was barred, and that no exception to the statutory deadlines existed. Ruling otherwise would have left no deadline by which the wife had to file a petition to perfect her community property interest, contrary to section 733.710(1).

Affirmed.

Levine and Klingensmith, JJ., concur.

ON APPELLANT'S MOTION FOR REHEARING AND/OR REHEARING EN BANC OR TO CERTIFY QUESTION TO THE FLORIDA SUPREME COURT AS A MATTER OF GREAT PUBLIC IMPORTANCE

Gerber, C.J.

We deny appellant's motion for rehearing and/or rehearing en banc. However, we grant appellant's motion to certify to the Florida Supreme Court the following question of great public importance:

Whether a surviving spouse's vested community property rights are part of the deceased spouse's probate estate making them subject to the estate's claims procedures, or are fully owned by the surviving spouse and therefore not subject to the estate's claims procedures.


source: Caselaw Access Project

author: Hilal, Jennifer, Associate Judge.

license: Public Domain

text:
    Wilson PIERRE, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3863
    District Court of Appeal of Florida, Fourth District.
    [November 14, 2018]
    Louis G. Carres, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Hilal, Jennifer, Associate Judge.

The defendant, Wilson Pierre, appeals his conviction for second-degree murder, as well as his forty-year sentence, after a retrial was held pursuant to this Court's July 2, 2014 order in Pierre v. State , 141 So.3d 711 (Fla. 4th DCA 2014). The defendant contends the trial court erred in five ways. We affirm on four of the issues without discussion and affirm the defendant's conviction. However, we agree with the defendant's contention that the trial court erred by denying the correction of a sentencing error when the trial court considered a lack of remorse at sentencing. On that issue, we reverse and remand for a new sentencing hearing to take place in front of a different judge.

Background

The victim was shopping at the Boynton Beach Mall on Christmas Eve 2006, when he was confronted by the defendant and three other men. After a verbal argument, the fighting became physical between the men. The State offered evidence that the defendant pulled a gun from his waistband and shot the victim four or five times. The defense argued that the evidence was circumstantial and that the State failed to provide the jury with any direct evidence that the defendant was the individual who committed the crime. After the retrial of the defendant, he was found guilty and sentenced to forty years in prison with a twenty-five year minimum-mandatory sentence.

At the sentencing hearing on November 14, 2016, the State requested that the court impose the maximum sentence permitted, which was a forty-year minimum-mandatory sentence pursuant to section 775.087, Florida Statutes, otherwise referred to as the 10-20-Life statute. The defense argued that the defendant had limited prior criminal history and was seeking the statutory minimum of twenty-five years in prison. The defense further clarified that the defendant was not seeking a downward departure because he was not entitled to one, but was merely seeking the statutory minimum sentence, whereas the State was requesting the maximum.

At sentencing, the trial judge stated:

I was the presiding judge over the trial in this matter. And the jury returned a verdict of second-degree murder, which is, I believe, supported by the facts, at a minimum.
I believe that this was a cold-blooded killing, resulted in the death of Berno Charlemond on Christmas Eve in the Boynton Beach Mall in 2006, a crime for which the jury found you guilty and of which you've shown no remorse for.
So I'm sentencing you to forty years in the Department of Corrections with credit for the time that you've already served, which - Mr. Salerno, do you have a number for me?

Subsequently, the defendant made a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) on grounds that the judge had said the killing was "cold-blooded," which implied a consideration of a higher degree of murder than second-degree murder, for which he had been convicted, and on grounds that the judge said the defendant had shown "no remorse."

The trial court entered an order denying that motion. In the order, the court noted that the alleged errors were not preserved by a contemporaneous objection, and it would have to be fundamental error for the court to address it. The court further noted that it may consider a lack of remorse when rejecting mitigation, citing Corbitt v. State , 220 So.3d 446 (Fla. 5th DCA 2016).

Analysis

A motion to correct a sentencing error involves a pure issue of law, for which the standard of review is de novo. Salter v. State , 77 So.3d 760, 764 (Fla. 4th DCA 2011).

We hold that the trial court improperly relied on Corbitt , where the defendant in that case had pled, waived his right to a jury trial, and admitted that he committed the alleged crimes. Corbitt , 220 So.3d at 448. Those facts are very different than the case before us, where the defendant has maintained his innocence.

The State contends that the statement made by the trial court regarding a lack of remorse was an isolated comment and did not amount to fundamental error. We disagree and apply the rationale in Whitmore v. State , 27 So.3d 168 (Fla. 4th DCA 2010), where we found that a lack of remorse cannot be taken into consideration at sentencing when a defendant is protesting his innocence. Id. at 171. In Whitmore , this Court explained:

In Holton v. State , 573 So.2d 284, 292 (Fla.1990), the Florida Supreme Court held that a trial court violates due process by using a protestation of innocence against a defendant at sentencing. This is in accord with a long, unwavering line of cases, both before and after Holton . See Donaldson v. State , 16 So.3d 314, 314 (Fla. 4th DCA 2009) (holding that the trial court violated defendant's right against self-incrimination by considering defendant's protestations of innocence and lack of remorse in sentencing); Johnson v. State , 948 So.2d 1014, 1017 (Fla. 3d DCA 2007) ("[R]e-sentencing is required even if a defendant's refusal to admit guilt was but one of several factors considered by the court in imposing sentence."); Gilchrist v. State , 938 So.2d 654, 657-58 (Fla. 4th DCA 2006) ("When a court predicates the length of a sentence on the defendant's failure to show any inclination toward repentance, the court violates the defendant's right not to be required to incriminate himself."); Aliyev v. State , 835 So.2d 1232, 1234 (Fla. 4th DCA 2003) (stating that the trial court could not impose a harsher sentence because the defendant "exercised his constitutional right to a jury trial, maintained his innocence, or failed to show remorse"); Soto v. State , 874 So.2d 1215, 1217 (Fla. 3d DCA 2004) (holding that continued protestation of innocence should not be a factor in sentencing); Lyons v. State , 730 So.2d 833 (Fla. 4th DCA 1999) (reversing sentence where court imposed lengthy sentence after defendant maintained his innocence and refused to tell court where stolen property was located); A.S. v. State , 667 So.2d 994, 996 (Fla. 3d DCA 1996) ("The fact that a defendant has pled not guilty cannot be used against him or her during any stage of the proceedings because due process guarantees an individual the right to maintain innocence even when faced with evidence of overwhelming guilt."); Exposito v. State, Dep't of Bus. Regulation , 508 So.2d 451, 452 (Fla. 3d DCA 1987) ("[A] party may not be penalized for lack of 'remorse' where he has a legitimate right to maintain his innocence."); Hubler v. State , 458 So.2d 350, 353 (Fla. 1st DCA 1984) ("[W]here the defendant has at all times denied committing the battery charged and has persisted in maintaining his innocence, we conclude that it was improper for the trial court to aggravate the sentence imposed because the defendant failed to exhibit remorse for having committed the offense."); Harden v. State , 428 So.2d 316, 317 (Fla. 4th DCA 1983) ("Where the court predicated the length of the sentence on the defendant's failure to show any inclination toward repentance, which in the context of the comment clearly meant a failure to confess, the court violated the defendant's right not to be required to incriminate himself.").

Id.

Conclusion

Based on the foregoing, we affirm the defendant's conviction; however, we reverse and remand the case for a new sentencing hearing to take place in front of a different judge.

May and Forst, JJ., concur.

      1. The evidence was legally insufficient and a judgment of acquittal should have been granted. 2. The defendant was denied a fair trial due to improper statements made by the prosecutor. 3. The trial court failed to conduct an adequate inquiry pursuant to Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973). 4. The trial court failed to give the necessary lesser-included jury instruction of manslaughter. 5. The trial court improperly considered the defendant's lack of remorse at sentencing.


author: Per Curiam.

text:
    Darrell TELISME, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2320
    District Court of Appeal of Florida, Fourth District.
    [November 21, 2018]
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant was found guilty of one count of first-degree murder and sentenced to life in prison. He raises several issues on appeal: (1) whether the trial court abused its discretion in allowing a detective to testify regarding what a witness told him about the murder, (2) whether defense counsel was ineffective on the face of the record for failing to call an expert witness, (3) whether the trial court fundamentally erred in not defining "attempt" in the jury instructions, and (4) whether the trial court erred in sustaining a golden rule objection against defense counsel. We find all of these issues to be without merit and affirm. We write, however, to briefly address appellant's claim of ineffective assistance of counsel.

The night of the murder, appellant, the victim, and the victim's roommate had gone out to a bar. At some point during the evening, appellant and the victim got into a fight with one another, trading blows in the street. The victim and the roommate eventually left the area and returned home without appellant. Appellant later showed up at the victim's apartment and shot and killed the victim. Police arrested appellant later that morning. During a voluntary post-Miranda interview, appellant confessed to killing the victim, but insisted that the events of the evening were a "blur."

On appeal, appellant argues that counsel was ineffective on the face of the record for failing to call an expert witness to testify regarding appellant's susceptibility to influence during the police interview. Below, defense counsel sought to call this expert only on the issue of diminished capacity.

In general, this court will not consider a claim of ineffective assistance of counsel on direct appeal. Aversano v. State , 966 So.2d 493, 494-95 (Fla. 4th DCA 2007). However, ineffective assistance that is apparent on the face of the record and which causes obvious prejudice may be considered on direct appeal. Id. at 495. In order to successfully raise such a claim, the claimant must "identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards" and show that such performance "so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined." Simmons v. State , 105 So.3d 475, 487 (Fla. 2012).

Appellant's claim does not meet these requirements. Rather, defense counsel's performance, which is strongly presumed not to be ineffective, was consistent with the norms of professional conduct. See id. Below, appellant sought to call the expert to testify regarding appellant's diminished capacity. However, the Florida Supreme Court has held that "defense counsel is not ineffective for failing to present the defense of diminished capacity because diminished capacity is not a viable defense in Florida." Evans v. State , 946 So.2d 1, 11 (Fla. 2006). Thus, defense counsel's refusal to call the expert on diminished capacity was not ineffective.

To the extent appellant now argues that defense counsel should have called the expert for another reason-that is, regarding appellant's vulnerability to police interrogation tactics-this argument too fails. Defense counsel's decision not to call the expert on this secondary subject was a strategic decision well within "the broad range of reasonably competent performance under prevailing professional standards." See Simmons , 105 So.3d at 487. Such a decision is not considered ineffective on the face of the record. See id.

Under the circumstances, counsel's performance was not so facially insufficient as to warrant consideration of appellant's ineffective assistance claim on direct appeal. See Aversano , 966 So.2d at 494-95 ; Simmons , 105 So.3d at 487. Because we find all of appellant's arguments to be without merit, we affirm.

Affirmed.

May, Levine and Klingensmith, JJ., concur.


author: Forst, J.

text:
    LITTLE CLUB CONDOMINIUM ASSOCIATION, a Florida Not-For-Profit Corporation, North Passage Homeowners' Association, a Florida Not-For-Profit Corporation, and Dynamic Towers Inc., a Florida Profit Corporation, Appellants, v. MARTIN COUNTY, a Political Subdivision of the State of Florida, Kenai Properties, LLC and RG Towers, LLC, Appellees.
    No. 4D17-2797
    District Court of Appeal of Florida, Fourth District.
    [November 21, 2018]
    Tim B. Wright of Wright, Ponsoldt & Lozeau Trial Attorneys, L.L.P., Stuart, for appellants.
    Jack J. Aiello, Christopher P. Benvenuto, and Brian M. Seymour of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellees Kenai Properties, LLC and RG Towers, LLC.
    Sarah W. Woods, County Attorney, and Ruth A. Holmes, Senior Assistant County Attorney, Stuart, for appellee Martin County.
   Forst, J.

Appellants Little Club Condominium Association, North Passage Homeowners' Association, and Dynamic Towers Inc. appeal the trial court's final summary judgment in favor of Appellees Martin County, RG Towers, LLC, and Kenai Properties, LLC. The trial court found that the Martin County Board of County Commissioners' approval of the construction of a wireless telecommunications (cellular or "cell") tower was consistent with the county's comprehensive growth plan as a matter of law. We affirm.

Background

RG Towers and Kenai Properties sought the county's approval to erect an eighty-foot cell tower, designed to look like a pine tree, within close proximity of residential homes in the communities of Little Club and North Passage. The homeowners' associations, along with Dynamic Towers, a competing cell tower company, intervened in a quasi-judicial hearing. Appellants argued that the cell tower would not be "stealth," as required under the county land development regulations for land with a residential land use designation. The test under the county's land development regulations to determine whether a cell tower is stealth is whether "an average person would be unaware of its presence as a tower." Martin Cty., Fla., Land Dev. Regulations § 4.792. The Martin County Board of County Commissioners ("the Board") approved the tower.

Appellants filed a petition for writ of certiorari to the Nineteenth Judicial Circuit Appellate Division, arguing the Board's "stealth" determination was not based on competent substantial evidence. At the same time, they brought a section 163.3215(3), Florida Statutes (2016) action in the trial court below. There, they argued the development order approving the cell tower was inconsistent with the county's comprehensive growth management plan, specifically Goal 4.4 and Objective 4.4D, which state:

Goal 4.4. To eliminate or reduce uses of land that are inconsistent with community character or desired future land uses.
....
Objective 4.4D. To continue to evaluate the Land Development Regulations and adopt revisions to address current issues before the County, such as:
....
(2) Policy regarding communication towers (i.e., fall distance and lighting standards) ....

A secondary argument was that the cell tower was not stealth, making it inconsistent with Goal 4.4 and Objective 4.4D.

The trial court entered final summary judgment in Appellees' favor, holding "there can be no genuine issue of any material fact with respect to whether the development order at issue in this case is consistent with Goal 4.4 or Objective 4.4(D) because neither ... are proper standards by which to measure the consistency of the development order with the comprehensive plan." Before rendering final judgment, the trial court noted that Appellants' stealth challenge was confined to certiorari review, and that Appellants had a certiorari petition pending. This appeal followed. The appellate division of the circuit court has since denied the petition for certiorari review.

Analysis

The standard of review of a summary judgment is de novo. Pitcher v. Zappitell , 160 So.3d 145, 147 (Fla. 4th DCA 2015).

Appellants argue summary judgment was erroneous for the following reasons: (1) the trial court erred in finding Goal 4.4 and Objective 4.4D are not proper standards to measure consistency, especially in light of Appellants' expert's testimony that the proposed tower was inconsistent with the two provisions; and (2) the cell tower would not be stealth, making it inconsistent with the two provisions, which incorporate the land development regulations. Appellants' arguments lack merit, and we address each in turn.

Regarding Appellants' expert's testimony that the erection of the cell tower would be inconsistent with Goal 4.4 and Objective 4.4D, it is true that expert testimony may be presented in the form of an opinion "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue." § 90.702, Fla. Stat. (2016). Cf. Gyongyosi v. Miller , 80 So.3d 1070, 1074 (Fla. 4th DCA 2012) (finding the trial court did not err in prohibiting an expert from defining the term "demolition" within the meaning of a safety regulation, as the issue was a question of law to be resolved by the trial court). However, objective 4.4D merely calls for a policy regarding communications towers-a policy which was in place. It does not prohibit particular tower designs. Thus, specialized knowledge could shed no further light on the matter.

Goal 4.4 is directed to eliminating nonconforming uses. The property is designated as residential in the land uses, which are part of the comprehensive plan. § 163.3194(3)(a), Fla. Stat. (2016). The land development regulations allow for cell towers in residential areas, provided that additions cannot be made to existing towers; the towers are stealth; and the towers cannot be placed in industrial, agricultural, or commercial land use locations. §§ 4.795.E, 4.796.B. Cf. Rehman v. Lake Cty. , 56 So.3d 852, 853-54 (Fla. 5th DCA 2011) (finding the rezoning of a piece of property to commercial was consistent with the county comprehensive plan because the future land uses permitted the rezoning). Therefore, as a matter of law, the tower was consistent with Goal 4.4, assuming it met the above-noted requirements.

Howell v. Pasco County , 165 So.3d 12 (Fla. 2d DCA 2015), cited by Appellants, is distinguishable. There, the trial court erred in granting summary judgment in light of conflicting expert reports. Id. at 14-15. The Second District reasoned that, although the mining operation in question was listed as a permissible use in the county comprehensive plan's appendix, special approval was required for ancillary processing, meaning that the trial court could not find as a matter of law that the mining was per se permissible. Id. at 15. In Howell , specialized knowledge would have been helpful in understanding the character of the mining to determine whether it was consistent with the comprehensive plan. Here, on the other hand, the plan provisions at issue do not address the required character of communication towers. Therefore, the trial court rightly found, as a matter of law, that Goal 4.4 and Objective 4.4D were improper standards to evaluate the tower, and it was the land development regulations that applied.

To that end, Appellants maintained below and on appeal that the proposed tower would not be stealth pursuant to section 4.792 of the regulations. This is essentially the same argument that was made in their certiorari petition-that the Board lacked competent substantial evidence to find that the tower was stealth. The only difference is the standard of review applied, as Appellants explained at oral argument. Thus, Appellants attempted to pursue the same argument in two separate appeals. This course of action, aside from taking two bites of the apple, risked inconsistent results. The circuit appellate division might have found the Board lacked competent substantial evidence, and the trial court might have found the tower was stealth. Thus, the trial court appropriately dismissed the stealth arguments below. Cf. Century Sur. Co. v. de Moraes , 998 So.2d 662, 663 n.1 (Fla. 4th DCA 2009) ("Abatement has been utilized to terminate one of two actions pending simultaneously which involve the same parties and the same issues.").

This is not to say that Appellants could have challenged the Board's stealth determination in the trial court had they not filed the petition. Section 163.3215(3) permits only a challenge to a county board action, "which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan." Land development regulations are not part of comprehensive plans. § 163.3177(1), Fla. Stat. (2016) ; see also Buck Lake All., Inc. v. Bd. of Cty. Comm'rs of Leon Cty. , 765 So.2d 124, 127 (Fla. 1st DCA 2000) (holding that compliance with the comprehensive plan is to be determined by reference to "the objectives, policies, land uses, and densities and intensities in the comprehensive plan," not the implementing ordinances (quoting § 163.3194(3)(a), Fla. Stat. (1997) ) ). Martin County's regulations provide that they are to work "in conjunction with the Martin County Comprehensive Growth Management Plan." Martin Cty., Fla., Land Dev. Regulations § 1.3. Objective 4.4D merely calls for revisions to regulations to reflect present and future policy choices "regarding communication towers"; it does not incorporate these regulations into the comprehensive plan. Therefore, the trial court lacked jurisdiction to review the stealth determination.

Because "traditional site plan review is a quasi-judicial act ..., review other than on a consistency challenge is limited to certiorari." City of Coconut Creek v. City of Deerfield Beach , 840 So.2d 389, 395 (Fla. 4th DCA 2003) (citing Park of Commerce Assocs. v. City of Delray Beach , 636 So.2d 12, 15 (Fla. 1994) ). In the instant case, the Board conducted an evidentiary hearing that was quasi-judicial in nature, and it made the factual determination that the cell tower would be stealth. Thus, Appellants' challenge under the regulations was confined to certiorari review.

Conclusion

The trial court did not err in finding as a matter of law that the comprehensive plan provisions raised were not proper standards to evaluate the proposed cell tower. Because the county's land development regulations permit towers in residential areas, we cannot say that the proposed tower is inconsistent with Goal 4.4 without reviewing the Board's stealth determination-a challenge to which is confined to certiorari review. Therefore, we affirm this and all other issues on appeal.

Affirmed.

May, J., and Hilal, Jennifer, Associate Judge, concur.

      Appellants do not argue that the cell tower could have been placed in a different land use area, likely because they wanted Dynamic's tower in the residential zone, just further removed from residential property.

      The circuit appellate division would have reviewed the Board's decision under the competent substantial evidence standard. See Town of Manalapan v. Gyongyosi , 828 So.2d 1029, 1032 (Fla. 4th DCA 2002). Section 163.3215(3) provides the right to a de novo "action" before the trial court.


author: Warner, J.

text:
    SOUTHERN SPECIALTIES, INC., a Florida Corporation, Appellant, v. FARMHOUSE TOMATOES, INC., a Florida Corporation, Appellee.
    Nos. 4D17-2933 4D18-507
    District Court of Appeal of Florida, Fourth District.
    [November 21, 2018]
    John R. Whittles and David R. Miller, Jr. of Mathison Whittles, LLP, Palm Beach Gardens, for appellant.
    George P. Ord of Murphy Reid, L.L.P., Palm Beach Gardens, for appellee.
   Warner, J.

Appellant, Southern Specialties, Inc., appeals from a final judgment in favor of the appellee, Farmhouse Tomatoes, Inc., and from an order granting attorney's fees and costs to Farmhouse. Southern contends that the court erred by finding that the statute of limitations barred its claim for unjust enrichment. As to the attorney's fees judgment, Southern argues that the offer of judgment, upon which the fees award was based, was defective. We affirm the trial court's conclusion that the statute of limitations barred the unjust enrichment action. We reverse, however, the award of attorney's fees, agreeing that the offer of judgment was invalid because it was a general offer to settle both equitable and damage claims, which is not permitted under section 768.79, Florida Statutes.

Southern grows and distributes specialty fruits and vegetables to retailers and food service operators. Farmhouse grows heirloom tomatoes. Southern began buying tomatoes from Farmhouse, and in 2003, Southern loaned Farmhouse monies for specific uses in growing tomatoes, as evidenced by various promissory notes. In 2004, the parties entered into a joint venture agreement and commenced operations as a joint venture, but by 2009, their relationship had soured.

Southern sent Farmhouse a demand for repayment of the monies borrowed in 2003. When repayment was not forthcoming, Southern filed a complaint against Farmhouse for unjust enrichment for failing to repay the monies loaned; tortious interference for Farmhouse contacting Southern's customers and excluding it from the sales; and for a permanent injunction to enjoin Farmhouse from using Southern's customer lists and confidential information.

Farmhouse answered, raising as an affirmative defense that the unjust enrichment claim was barred by the four-year statute of limitations for legal or equitable actions not founded on a written instrument. See § 95.11(3)(k), Fla. Stat. It also filed a counterclaim, demanding payment for outstanding invoices. Southern replied, claiming that Farmhouse had made partial payments on its debt which tolled the statute of limitations pursuant to section 95.051(1)(f), Florida Statutes.

Farmhouse filed an offer of judgment a few months before trial. It offered to settle all claims for $50,000. Southern did not accept the offer.

The case proceeded to a non-jury trial. At trial, Southern withdrew its injunction claim. After the presentation of all evidence, the court found that the unjust enrichment claim as pled was not based upon a written agreement, and thus, it was time barred. Even if the claim was not time barred, the parties were operating as a joint venture. Further, the court found that Farmhouse had not made payments on the note so as to toll the statute of limitations, noting that Southern had to repay Farmhouse for sums that Southern withheld from the sales proceeds. The court found against Southern on the tortious interference claim and in favor of Farmhouse on its counterclaim, awarding $24,870.54 as damages. Later, Farmhouse moved for attorney's fees based upon its denied offer of judgment. The court found entitlement, and the parties stipulated to a reasonable amount of fees and costs. The court entered final judgment for fees. This appeal was brought from both judgments.

We review de novo whether a claim is barred by the applicable statute of limitations. Beltran v. Vincent P. Miraglia, M.D., P.A. , 125 So.3d 855, 859 (Fla. 4th DCA 2013). We conclude that the court properly found that the unjust enrichment claim was barred by the statute of limitations. Southern pled an unjust enrichment claim based upon monies loaned, without referencing any written instrument. Thus, a four-year statute of limitations applied. See § 95.11(3)(k), Fla. Stat. Although Southern contended that the statute was tolled pursuant to section 95.051(1)(f), Florida Statutes, by partial payments on the monies loaned to Farmhouse, that section applies only to partial payments on obligations "founded on a written instrument." As Southern elected to frame its claim without reference to a written instrument, the tolling provision did not apply. Moreover, the trial court found that Southern withheld from sales proceeds amounts which were owed to Farmhouse; however, because Farmhouse had objected that those amounts were improperly deducted, Southern actually had repaid those amounts to Farmhouse. Accordingly, those amounts did not constitute partial payments on the obligation. We thus affirm the trial court's judgment in favor of Farmhouse.

With respect to the order granting attorney's fees under section 768.79, Florida Statutes, we reverse. Farmhouse's offer of judgment stated that it would resolve "all claims" by either party against the other. Based upon Southern's complaint, those claims included both monetary and equitable claims, including its claim for injunctive relief. Because the offer was directed at all claims made by Southern, it was invalid.

In Diamond Aircraft Industries, Inc. v. Horowitch , 107 So.3d 362, 374 (Fla. 2013), the supreme court held "that section 768.79 does not apply to an action in which a plaintiff seeks both damages and equitable relief, and in which the defendant has served a general offer of judgment that seeks release of all claims." There, the plaintiff brought a claim for specific performance, breach of contract, and for deceptive and unfair trade practices involving the sale of a jet. Id. at 365. Diamond served an offer of judgment to resolve all claims asserted by the plaintiff, which claim was not accepted. Id. at 365-66. Ultimately, Diamond obtained a judgment in its favor and moved for attorney's fees based on the offer of judgment. Id. at 366. The trial court denied the motion, concluding that section 768.79 did not apply because the plaintiff had asserted both equitable and damage claims. Id. Upon an appeal to the Eleventh Circuit, the court certified questions to the Florida Supreme Court, including the applicability of section 768.79 where the party requests both monetary and nonmonetary relief. Id. at 366, 372.

In answering the certified question, the supreme court noted that section 768.79 and Florida Rule of Civil Procedure 1.442 must be strictly construed because they "are in derogation of the common law rule that a party is responsible for its own attorney's fees ...." Id. at 372. "[S]ection 768.79(1) explicitly states that the offer of judgment statute applies to 'any civil action for damages. ' " Id. at 375 (emphasis added in Diamond ). Thus, the offer of judgment statute does not apply if the plaintiff seeks both damages and equitable relief. Id. at 374. There is no exception for instances in which an equitable claim lacks serious merit. Id. Thus, because the offer sought to settle all claims, both equitable and monetary, the offer was invalid under the statute. Id. at 375-76. Here, the offer was made to settle all claims, both monetary and equitable. Based on Diamond , the trial court erred in granting fees based upon the offer of judgment.

We distinguish MYD Marine Distributor, Inc. v. International Paint Ltd. , 187 So.3d 1285 (Fla. 4th DCA 2016). In MYD , the complaint alleged various causes of action for money damages, but it also included a request for permanent injunction. Id. at 1286. The defendant made an offer of judgment to settle only the claims for money damages. Id. It specifically excluded the claim for injunctive relief. Id. Under those circumstances, our court held that the "true relief" being requested by the plaintiff was only monetary damages, and we determined that the offer was enforceable. Id. at 1287. In this case, however, Farmhouse did not attempt to carve out the injunctive relief claim. Its offer attempted to settle all claims. Therefore, Diamond is controlling.

For the foregoing reasons, we affirm the final judgment in favor of Farmhouse on Southern's claims and Farmhouse's counterclaim. We reverse the award of attorney's fees to Farmhouse and direct that the attorney's fees judgment be vacated.

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


author: Kuntz, J.

text:
    Daniel PANSKY, Appellant, v. Victoria PANSKY, Appellee.
    No. 4D15-3940
    District Court of Appeal of Florida, Fourth District.
    [November 28, 2018]
    Troy William Klein, West Palm Beach, for appellant.
    Barry S. Franklin of Barry S. Franklin & Associates, P.A., Aventura, for appellee.
   Kuntz, J.

Daniel Pansky appeals the circuit court's final order granting the Law Firm of Barry S. Franklin & Associates, P.A.'s motion for sanctions under section 57.105(1), Florida Statutes (2015). Because the record supports the court's finding that Mr. Pansky's third motion to vacate was meritless, we affirm in part. Yet we agree that the court erred when it determined the amount of fees to award the Law Firm without receiving any testimony or other evidence. Thus, we reverse in part.

"A finding that a party is entitled to recover attorney's fees under section 57.105 must be based upon substantial, competent evidence presented at the hearing on attorney's fees or otherwise before the court and in the record." Mason v. Highlands Cty. Bd. of Cty. Comm'rs , 817 So.2d 922, 923 (Fla. 2d DCA 2002) (citing Strothman v. Henderson Mental Health Ctr., Inc. , 425 So.2d 1185, 1185-86 (Fla. 4th DCA 1983) ).

Here, the court determined the amount of sanctions to award the Law Firm based exclusively on argument of counsel. Although counsel provided a copy of certain billing records, those records were not admitted into evidence. As a result, the billing records were not competent evidence to support the court's determination of the amount of sanctions. See, e.g. , Diwakar v. Montecito Palm Beach Condo. Ass'n, Inc. , 143 So.3d 958, 960 (Fla. 4th DCA 2014) ("Competent evidence includes invoices, records and other information detailing the services provided as well as the testimony from the attorney in support of the fee." (quoting Brewer v. Solovsky , 945 So.2d 610, 611 (Fla. 4th DCA 2006) ) ); Chandler v. KCCS, Inc. , 224 So.3d 929, 929 (Fla. 2d DCA 2017) (reversing amount of sanctions fees awarded where "the only evidence detailing the work actually completed consisted of an affidavit and related documents that were neither introduced into evidence nor stipulated to at the hearing").

The court's final order is affirmed in part and reversed in part, and we remand the case for the limited purpose of holding an evidentiary hearing to determine the amount of sanctions to be awarded.

Affirmed in part and reversed in part.

Taylor and Conner, JJ., concur.

      The Law Firm argues this issue was not properly preserved because Mr. Pansky did not object to the court's reliance on unsworn testimony as the basis for determining the amount of sanctions. This is a compelling argument. But, as Judge Gross has explained, this panel is bound to conclude that "in the absence of a stipulation, unsworn statements by the attorneys cannot be the basis for factual findings by the trial court." Brown v. Sch. Bd. of Palm Beach Cty. , 855 So.2d 1267, 1270 (Fla. 4th DCA 2003) (Gross, J., concurring specially) ("It seems to me that the law should require an objection to preserve the issue for appellate review.").


text:
    Sharonit Amar SELIGSOHN, Appellant, v. Jacob SELIGSOHN, Appellee.
    No. 4D17-2411
    District Court of Appeal of Florida, Fourth District.
    [November 28, 2018]
    Craig A. Boudreau, West Palm Beach, for appellant.
    Sandor F. Genet of Sandor F. Genet & Associates, P.A., North Miami Beach, for appellee.
   Kuntz, J.

The Former Wife raises ten issues in her appeal of the circuit court's final judgment of dissolution of marriage. We agree with four arguments raised by the Former Wife and reverse those portions of the final judgment. We affirm the remaining issues without comment.

First, we reverse the portion of the court's judgment that required payment of guardian ad litem fees out of homestead-protected property. Second, we reverse the portion of the court's order granting the Former Husband a blanket award of ultimate decision-making authority over all issues. Third, we reverse the court's calculation of step-down child support, an issue the Former Husband concedes on appeal. Finally, we reverse the portion of the court's order requiring the Former Wife to attend parent effectiveness training classes.

Analysis

i. The Court Erred in Ordering Payment of the Guardian Ad Litem Fees Out of Homestead Property

First, the Former Wife argues that the court erred when it ordered the forced sale of the parties' marital home-the Former Wife's homestead-to satisfy the guardian ad litem's ("GAL") fees. The GAL fees are a third-party liability unrelated to the property.

The Florida Constitution grants strong homestead protection to real property. Art. X, § 4(a), Fla. Const. The Florida Supreme Court has held that based on the plain language of the constitution, "a homestead is only subject to forced sale for (1) the payment of taxes and assessments thereon; (2) obligations contracted for the purchase, improvement or repair thereof; or (3) obligations contracted for house, field or other labor performed on the realty." Butterworth v. Caggiano , 605 So.2d 56, 60 (Fla. 1992).

This provision is liberally construed; "the Florida constitutional exemption of homesteads protects the homestead against every type of claim and judgment except those specifically mentioned in the constitutional provision itself[.]" Havoco of Am., Ltd. v. Hill , 790 So.2d 1018, 1021 n.5 (Fla. 2001) (internal quotation omitted). Unsecured creditors are not included as an exception to the homestead exemption. Chames v. DeMayo , 972 So.2d 850, 852 (Fla. 2007) (citing Sherbill v. Miller Mfg. Co. , 89 So.2d 28, 31 (Fla. 1956) ; Carter's Adm'rs v. Carter , 20 Fla. 558, 570-71 (Fla. 1884) ).

Former Wife argues the court erred when it required her to sell homestead property to pay the fees of the GAL-an unsecured creditor. We agree.

Hua v. Tsung , 222 So.3d 584 (Fla. 4th DCA 2017), is instructive. There, the dissolution of marriage judgment ordered that proceeds from the sale of a rental property be used to satisfy a debt to the husband's father, and the remainder was to be divided equally between husband and wife. Id. at 590-91. The father's loan to his son enabled the son to pay the mortgage on the rental property. Id. at 586.

We reversed, holding that "[i]n [a] dissolution action, the trial court does not have jurisdiction to adjudicate property rights of nonparties." Id. at 591 (alteration in original) (quoting Noormohamed v. Noormohamed , 179 So.3d 379, 380 (Fla. 5th DCA 2015) ). We explained that "by awarding part of the proceeds of the sale of the rental property to the father, the court essentially placed an equitable lien on the property to allow the father to secure repayment of the loan. The court thus converted him from an unsecured creditor into a secured one." Id.

Although the Former Wife's property was homestead property, not rental property, the holding is instructive. Here, the court's order of payment from proceeds functioned as an equitable lien on the couple's homestead property to secure repayment of the unsecured debt. The Florida Constitution does not allow the court to pierce the homestead protection in such a manner.

Thus, we reverse the court's order requiring payment of the GAL's fee from the proceeds of the forced sale of the Former Wife's homestead property. In reaching this conclusion, we do not decide whether the court could order payment of the GAL's fees from other sources attributable to the Former Wife. That is an issue the circuit court can determine in the first instance on remand.

ii. The Court Erred in Awarding the Former Husband a Blanket Award of Ultimate Decision-Making Authority

Second, the Former Wife argues that, because any ultimate decision-making authority must be limited to specific issues, the court improperly awarded the Former Husband "ultimate decision-making authority as to all issues" as part of the parenting plan. We agree.

As part of the parties' parenting plan, the court ordered Former Wife and Former Husband to exercise shared parental responsibility. But if the parties disagreed about an issue, the Former Husband was granted "ultimate decision-making authority as to all issues."

As we noted in McClure v. Beck , 212 So.3d 396 (Fla. 4th DCA 2017), "[w]e have previously held that giving the primary residential parent unlimited decision making authority over all matters regarding the children is incompatible with shared parental responsibility." Id. at 398 (citing Schneider v. Schneider , 864 So.2d 1193, 1195 (Fla. 4th DCA 2004) ). Instead, a court may award "one parent ultimate authority over specific matters in situations where the parties are unable to come to an agreement." Id. (citing Schneider , 864 So.2d at 1195 ).

The Former Husband argues the blanket award of ultimate authority is supported by the record. He argues the "court did this to address [Former Wife's] outrageous and obstructive conduct regarding all aspects of the children's welfare and maintenance." We need not determine whether the statement is accurate. Even if the record supported a finding that the Former Wife's conduct was "outrageous and obstructive," the court lacked the authority to give one parent the ultimate decision-making authority over a child when the parents share responsibility.

On remand, any award of ultimate decision-making authority must be limited to specific decisions and those decisions must be expressly listed in the final judgment. See McClure , 212 So.3d at 399.

iii. The Court Erred in Deciding the Amount of Step-Down Child Support

Third, the Former Wife argues the court erred in its calculation of alimony after the oldest child reaches the age of eighteen. The Former Husband concedes that the court erred in its child support calculation for the parties' youngest child.

As the Former Wife argues and the Former Husband concedes, the award of child support continues for four years past the termination of alimony, for which the trial court failed to account. On remand, the court must recalculate child support for the period after the termination of alimony.

iv. The Court Erred in Ordering Former Wife to Attend Parent Effectiveness Training Classes

Finally, before entering the final judgment, the court ordered both parents to attend parent effectiveness training ("PET") classes "to endeavor to get them to co-parent." The Former Husband attended classes, but the Former Wife did not. In the final judgment, the court ordered that the Former Wife "attend weekly [PET classes] until further Court order. She shall demonstrate to the Court and in her parenting and verbally what has been taught to her, and that she understands what she has been taught and that she can put into practice what she has been taught."

The Former Wife argues the trial court erred in ordering her to attend PET classes because the court lacks the authority to order a parent into therapy.

She relies on Ford v. Ford , 153 So.3d 315 (Fla. 4th DCA 2014), to support her argument. In Ford , as a remedy for violating the parenting plan, the court "ordered the former wife to obtain psychological counseling and continue with it 'until she is able to convince [the two minor children] that it is her desire that they see their father and love their father and to create a loving, caring feeling toward their father in their minds.' " Id. at 318 (alteration in original). On appeal, the former wife did "not challenge the authority of the trial court to order counseling." Id. at 319. Rather, she contended that "the counseling provision condition[ed] the duration of therapy on 'vague, ambiguous and potentially insurmountable goals.' " Id. We agreed with the former wife's contention and held that the order was "vague and [ ] much too broad to be enforced." Id. (citing Lanza v. Lanza , 804 So.2d 408, 409-10 (Fla. 4th DCA 2001) ).

Like Ford , the order here is vague and ambiguous about the scope and termination date of the ordered treatment. The court ordered the Former Wife to attend the classes "weekly until further Court order. It also required that Former Wife show the court, through parenting and verbally, that she "understands" and "can put into practice what she has been taught." Because the court neither provided a duration for the compelled weekly classes nor identified a standard to judge the Former Wife's compliance, the order is vague and unenforceable. Thus, we reverse that portion of the court's order.

Conclusion

The court's judgment is reversed in part and affirmed in part.

Affirmed in part, reversed in part, and remanded.

Taylor and Klingensmith, JJ., concur.

      As a result of our conclusion, we need not address whether a court could ever order a party to a dissolution action to attend PET classes. That issue is left for a case where its resolution is dispositive.


author: Gerber, C.J.

text:
    Rachel A. CHALMERS, Appellant, v. Joseph A. CHALMERS, Appellee.
    No. 4D18-2246
    District Court of Appeal of Florida, Fourth District.
    [November 28, 2018]
    Jeremy Dicker and Robin Bresky of Law Offices of Robin Bresky, Boca Raton, for appellant.
    Karen L. Johnson of Karen L. Johnson, P.A., Stuart, for appellee.
   Gerber, C.J.

We affirm the former wife's appeal of the circuit court's final judgment of dissolution of marriage, which grants the former husband's request for relocation with the parties' child.

We recognize that reasonable minds could differ on whether the request for relocation should have been granted. But we are bound to follow the mixed standard of review which applies to this case.

"[T]he question of whether the trial court properly applied the relocation statute [ section 61.13001, Florida Statutes ] is a matter of law, reviewed de novo." Milton v. Milton , 113 So.3d 1040, 1041 (Fla. 1st DCA 2013). However, "the [appellate] court reviews the trial court's decision on a petition to relocate with a minor child under an abuse of discretion standard. The trial court's decision will be affirmed if the statutory findings are supported by substantial competent evidence." Eckert v. Eckert , 107 So.3d 1235, 1237 (Fla. 4th DCA 2013) (emphasis and citation omitted). The appellate court "does not engage in reweighing the evidence." Solomon v. Solomon , 221 So.3d 652, 655 (Fla. 4th DCA 2017). "Instead [the appellate court] must affirm if substantial competent evidence exists to support the [circuit] court's decision." Cecemski v. Cecemski , 954 So.2d 1227, 1228 (Fla. 2d DCA 2007).

"Ultimately, the concern in a relocation determination is whether the relocation is in the best interests of the child." Rossman v. Profera , 67 So.3d 363, 365 (Fla. 4th DCA 2011). "A presumption in favor of or against a request to relocate with the child does not arise if a parent or other person seeks to relocate and the move will materially affect the current schedule of contact, access, and time-sharing with the nonrelocating parent or other person." § 61.13001(7), Fla. Stat. (2017).

Here, the circuit court properly applied the relocation statute as a matter of law. The circuit court's final judgment set forth its detailed findings of fact as to each factor used to determine the best interests of the child under section 61.13(3), Florida Statutes (2017), and to determine a contested relocation under section 61.13001(7), Florida Statutes (2017). The circuit court did not make any presumption in favor of or against the former husband's request for relocation.

Further, competent substantial evidence supports the circuit court's findings of fact. Competent substantial evidence also supports the circuit court's ultimate decisions, under section 61.13001(8), Florida Statutes (2017), that the former husband met his initial burden of proving by a preponderance of the evidence that relocation is in the best interests of the child, and that the former wife did not meet her resulting burden of showing by a preponderance of the evidence that the proposed relocation is not in the best interests of the child.

We can find no abuse of discretion. Therefore, we must affirm.

Affirmed.

Warner and Forst, JJ., concur.


text:
    K.C., the mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian Ad Litem Program, Appellees.
    No. 4D18-2345
    District Court of Appeal of Florida, Fourth District.
    [November 28, 2018]
    Anthony P. Ryan, Regional Counsel, and Paul O'Neil, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Sarah Elizabeth Goldfarb of Statewide Florida Guardian ad Litem Office, Tallahassee, for appellee Guardian Ad Litem Program.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Children's Legal Services, Fort Lauderdale, for appellee Florida Department of Children and Families.
   Per Curiam.

We affirm the final judgment terminating appellant's parental rights to her child, as competent substantial evidence supports the trial court's findings. See B.K. v. Dep't of Children & Families , 166 So.3d 866, 872-73 (Fla. 4th DCA 2015) (noting that the review of a trial court's findings in a termination proceeding is highly deferential, and a trial court's findings carry a presumption of correctness and will not be overturned unless clearly erroneous or lacking in evidentiary support). We remand, however, to correct the final judgment by removing the court's conclusion of law that clear and convincing evidence supported termination based upon section 39.806(1)(g), Florida Statutes. The parties all agree that the Department of Children and Families dismissed this ground as a basis for termination, which the trial court noted at the final hearing but nevertheless included it in its final judgment. It would be a violation of appellant's due process rights of notice and a fair hearing to terminate her parental rights based on a ground which was not noticed or tried by implied consent. See R.S. v. Dep't of Children and Families , 872 So.2d 412, 413 (Fla. 4th DCA 2004). However, the trial court also found that clear and convincing evidence supported termination pursuant to sections 39.806(1)(c) and 39.806(1)(f), Florida Statutes. Where the trial court's ruling on any ground for termination is supported by competent substantial evidence, the trial court's decision should be upheld. See J.E. v. Dep't of Children & Families , 126 So.3d 424, 427-28 (Fla. 4th DCA 2013).

Affirmed and remanded with directions.

Warner, Damoorgian and Kuntz, JJ., concur.


text:
    Albert STAFFORD, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1532
    District Court of Appeal of Florida, Fourth District.
    [December 5, 2018]
    Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
    ON MOTION TO LIFT THE STAY OF MANDATE
   Per Curiam.

We initially issued an opinion in this case reversing the trial court's order denying Appellant's motion for postconviction relief and remanding for resentencing pursuant to Atwell v. State , 197 So.3d 1040 (Fla. 2016). We cited our opinion in Michel v. State , 204 So.3d 101 (Fla. 4th DCA 2016) and certified conflict with Stallings v. State , 198 So.3d 1081 (Fla. 5th DCA 2016) and Williams v. State , 198 So.3d 1084 (Fla. 5th DCA 2016). Thereafter, we granted a stay of mandate pending the disposition of the conflict. The Florida Supreme Court subsequently quashed our opinion in Michel . See State v. Michel , 43 Fla. L. Weekly S551, 43 Fla. L. Weekly S298 (Fla. July 12, 2018). Appellant has now filed a motion to lift the stay of mandate and reinstate our opinion following the dictates of Atwell . In response, the State requests that we withdraw our Michel opinion and affirm the trial court's summary denial of Appellant's motion for postconviction relief.

We agree with the State and now lift our stay of mandate and withdraw our prior opinion in the instant case. We affirm the trial court's summary denial of Appellant's motion for postconviction relief pursuant to the supreme court's opinion in Michel . See also Franklin v. State , 43 Fla. L. Weekly S556 (Fla. Nov. 8, 2018) (reaffirming that Atwell is no longer good law and that Franklin's three 1,000-year concurrent sentences with the possibility of parole did not violate the Eighth Amendment of the United States Constitution or the United States Supreme Court's decisions in Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) and Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) ).

Prior opinion withdrawn; affirmed .

Ciklin, Conner And Forst, JJ., concur.


text:
    Budry MICHEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1123
    District Court of Appeal of Florida, Fourth District.
    [December 12, 2018]
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
    ON REMAND FROM THE SUPREME COURT OF FLORIDA
   Per Curiam.

In State v. Michel , 257 So.3d 3, 2018 WL 3613383 (Fla. July 12, 2018), the Florida Supreme Court quashed this Court's decision in Michel v. State , 204 So.3d 101 (Fla. 4th DCA 2016), and concluded that no Eighth Amendment violation was shown in this case.

Accordingly, we affirm the trial court's denial of Appellant's motion for postconviction relief.

Affirmed .

Warner, Damoorgian and Ciklin, JJ., concur.


text:
    Guy Frantz PAULENA, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2676
    District Court of Appeal of Florida, Fourth District.
    [December 12, 2018]
    Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Alexandra A. Folley, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed . See Council v. State , 691 So.2d 1192 (Fla. 4th DCA 1997) ; Gartner v. State , 118 So.3d 273 (Fla. 5th DCA 2013).

Gross, May and Conner, JJ., concur.


text:
    Arlene GHENT a/k/a Arlene R. Ghent and David M. Henry, Appellants, v. HSBC MORTGAGE SERVICES, INC., Appellee.
    No. 4D17-2187
    District Court of Appeal of Florida, Fourth District.
    [December 19, 2018]
    Peter Ticktin, Kendrick Almaguer, and Thomas Eross, Jr. of The Ticktin Law Group, P.L.L.C., Deerfield Beach, for appellants.
    David Rosenberg, Cynthia L. Comras, and Jarrett Cooper of Robertson, Anschutz & Schneid, P.L., Boca Raton, for appellee.
   Per Curiam.

The borrowers in this mortgage foreclosure case prevailed at trial; the circuit court granted their motion for involuntary dismissal for the failure of the plaintiff to prove its standing to foreclose. We affirm the court's order denying the borrowers' motion for attorney's fees. See Nationstar Mortg. LLC v. Glass , 219 So.3d 896 (Fla. 4th DCA 2017). We remand for the trial court to set an amount on the borrowers' motion to tax costs. See Fla. R. Civ. P. 1.420(d) ; Torres v. Bank of N.Y. , 252 So.3d 274 (Fla. 4th DCA 2018).

Affirmed in part, reversed in part, and remanded.

Gross, May, JJ., and Caracuzzo, Cheryl, Associate Judge, concur.


text:
    Cassius HENZEN, Appellant, v. Shereeka CARTER, Appellee.
    No. 4D18-2488
    District Court of Appeal of Florida, Fourth District.
    [December 12, 2018]
    Cassius Henzen, Miami, pro se.
    No brief filed on behalf of appellee.
   Per Curiam.

Affirmed. See Fla. R. App. P. 9.315(a).

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


text:
    STATE of Florida, Petitioner, v. Michael BARNES, Respondent.
    No. 4D17-3607
    District Court of Appeal of Florida, Fourth District.
    [December 19, 2018]
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for petitioner.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for respondent.
   Per Curiam.

The state appeals the circuit court's order granting a criminal defendant's motion to vacate a plea. Under Florida Rule of Appellate Procedure 9.140(c)(1), an order granting a defendant's motion to vacate a plea is not among the orders that the state may appeal. We treat the notice of appeal as a petition for writ of certiorari. See State v. Pettis , 520 So.2d 250 (Fla. 1988) ; State v. Stapleton , 764 So.2d 886, 887 (Fla. 4th DCA 2000). We deny the petition for writ of certiorari for failure to show a departure from the essential requirements of the law resulting in material injury for the remainder of the case.

Gross, May, JJ., and Caracuzzo, Cheryl, Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Pascal ESTIME, Appellee.
    No. 4D18-101
    District Court of Appeal of Florida, Fourth District.
    [December 19, 2018]
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellee.
   Hilal, Jennifer, Associate Judge.

The State appeals the trial court's order granting the defendant's motion to dismiss the State's information based on expiration of the statute of limitations, and the amended order denying the State's request to reconsider ruling. We reverse, finding that section 775.15(16)(a)3., Florida Statutes (2006), extends the statute of limitations in the case at hand.

Background

In 2017, the State charged the defendant, Pascal Estime, by information with two counts of sexual battery on a mentally defective person pursuant to section 794.011(4)(a) and (e)5., Florida Statutes, based on events that occurred in 2004.

In April 2004, the victim's father told law enforcement that his daughter had told him that the defendant had sexual relations with her, which led to her pregnancy. The victim provided law enforcement with a sworn statement, alleging that the defendant had sex with her twice. The police then obtained the victim's medical and school records, which showed she had an IQ of 40 to 55. After reporting the crime, the victim had an abortion, and law enforcement retained a sample of the fetus for DNA testing. After numerous unsuccessful attempts to locate the defendant, law enforcement obtained a search warrant for his DNA and issued a "be on the lookout" (BOLO) alert.

In August 2004, a licensed psychologist evaluated the victim and found that she was severely mentally challenged, with abilities comparable to a four-year-old child. He concluded that she was unable to consent to sexual activity and was aware of only the basic concepts of sexual intercourse. He further found that "her poor memory, minimal verbal skills, and inability to think in anything but the simplest and most concrete terms rendered her marginally competent at best." The psychologist also noted that the victim "frequently did not respond to questions" and could not focus for more than a minute at a time, concluding "that she would become very confused on cross-examination and unable to respond adequately." As a result, in September 2004, the State "no actioned" the case, pending receipt of the defendant's DNA and testing of the evidence.

In 2017, after many unsuccessful attempts to locate the defendant, US Customs and Border Protection advised law enforcement that the defendant had returned to Florida. Law enforcement located the defendant and executed a DNA search warrant. The defendant's DNA sample and the retained fetal material were sent for comparison, and the results showed a 99.9997% probability of paternity. The defendant was subsequently arrested in July 2017 for two counts of sexual battery on a mentally defective person under section 794.011(4), Florida Statutes.

The defendant moved to dismiss the information, arguing that the applicable four-year statute of limitations ("SOL") had expired before commencement of the prosecution. He noted that under section 775.15(2)(a), Florida Statutes (2004), the SOL for the prosecution of a first-degree felony is four years from the date of the offense. He recognized that section 775.15(16)(a) 3., Florida Statutes (2006) , extends the SOL under certain circumstances. It provides:

(16)(a) In addition to the time periods prescribed in this section, a prosecution for any of the following offenses may be commenced at any time after the date on which the identity of the accused is established , or should have been established by the exercise of due diligence, through the analysis of deoxyribonucleic acid (DNA) evidence , if a sufficient portion of the evidence collected at the time of the original investigation and tested for DNA is preserved and available for testing by the accused:
....
3. An offense of sexual battery under chapter 794.

§ 775.15(16)(a) 3., Fla. Stat. (emphasis added). The defendant contended that the victim identified him as the perpetrator in 2004, and DNA evidence merely corroborated her allegations. Thus, he argued DNA did not "establish" his identity, and subsection 16(a) did not apply.

The State responded, contending section 775.15(16)(a) 3. applied because DNA evidence was collected from the fetal sample at the time of the original investigation in 2004, which law enforcement later used in 2017 to identify the defendant once his DNA sample was collected. The State argued the victim's identification of the defendant during the initial investigation did not establish, for purposes of the statute, the defendant's identity as the perpetrator, given the victim's severe intellectual disability. The State contended there was a difference between circumstantial evidence of identity and identification through DNA analysis, and it further argued that the plain language of the statute provides that the extension applies when identification occurs through DNA analysis.

At the hearing on the defendant's motion, defense counsel argued that at the time of the allegations, the State had sufficient evidence to sustain a conviction based upon the victim's identification; thus, the SOL began to run in 2004. The State countered that subsection 16(a) applies whenever identification occurs through DNA analysis. It argued that under the defendant's interpretation the subsection would apply only when law enforcement had no suspects and had only DNA with which to identify a defendant.

The trial court granted the defendant's motion to dismiss the information. It ruled that the prior evidence of the defendant's identity was not circumstantial because the victim gave a sworn statement, in which she described the defendant and the sexual acts. It concluded that the DNA evidence only corroborated, but did not establish, the defendant's identity.

The State moved for rehearing, arguing the trial court incorrectly concluded that identity must be established solely through DNA in order for section 775.15(16)(a) to apply, which was "a limitation not imposed by the plain language of the statute itself." The State noted that when law enforcement could not locate the defendant in 2004, the State "no actioned" the case because it believed that the evidence was legally insufficient. The defendant argued that the trial court properly determined the SOL extension did not apply.

After a hearing, the trial court entered an order denying the State's motion for reconsideration and again found that the defendant's identity was established in 2004 for purposes of triggering the four-year SOL.

Analysis

We review issues of statutory interpretation de novo. Bryson , 42 So.3d at 853-54. When a defendant raises an SOL defense, the State bears the burden of showing compliance with the statute (i.e., that the crime was committed within the limitations period) or establishing an exception to the limitations period. State v. Smith , 241 So.3d 53, 55 (Fla. 2018). In the present case, the State filed its information in 2017, well beyond the four-year SOL. Thus, the pertinent issue is whether the SOL extension applied. The issue boils down to statutory interpretation.

For questions of statutory interpretation, we first must look at the statute's actual language to determine the legislature's intent, construing words of common usage in their plain and ordinary sense. Crews v. State , 183 So.3d 329, 332 (Fla. 2015). "If statutory language is clear, unambiguous, and conveys a definite meaning, there is no reason to resort to the rules of statutory interpretation." Bryson , 42 So.3d at 854. A court is not permitted to judicially modify a statute by adding words not included by the legislature, nor can it limit the express terms of an unambiguous statute. See Hayes v. State , 750 So.2d 1, 4 (Fla. 1999) ; Holly v. Auld , 450 So.2d 217, 219 (Fla. 1984). Where words of common usage are not defined in a statute, they are construed in their plain and ordinary sense. See State v. Brake , 796 So.2d 522, 528-29 (Fla. 2001) ; see also Pedersen v. Green , 105 So.2d 1 (Fla. 1958). The plain and ordinary meaning of a word or term is often examined by reference to a dictionary. See Brake , 796 So.2d at 528-29.

The State contends that the plain meaning of the statute and the word "establish" are unambiguous, and based on the plain meaning, the defendant's identity was not proven during the initial investigation in 2004. Thus, the SOL extension applies. The State cites Merriam-Webster's online dictionary, which defines "establish" as "to make firm or stable" and "to put beyond doubt: PROVE." Establish , MERRIAM-WEBSTER ONLINE DICTIONARY , https://www.merriam-webster.com/dictionary/establish (last visited Oct. 17, 2018). Additionally, the State notes that Black's Law Dictionary defines "establish" as "[t]o prove; to convince ...." Establish , BLACK'S LAW DICTIONARY (8th ed. 2004).

The defendant counters that because subsection 16(a) does not define "establish," it is ambiguous regarding whether it applies to cases in which there are multiple means of identification. The defendant stressed that while "establish" is defined as "to make firm" and "to prove or convince," it also is defined as "to bring about" or "to cause to be ...." Establish , THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2011); Establish , MERRIAM-WEBSTER ONLINE DICTIONARY , https://www.merriam-webster.com/dictionary/establish (last visited Oct. 17, 2018). The defendant contends the plain meaning of "establish" is unclear and that we must construe the statute in his favor. See Maxwell v. State , 110 So.3d 958, 961 (Fla. 4th DCA 2013) (recognizing that if two competing interpretations are reasonably plausible, a court must strictly construe the statute in the accused's favor).

"In analyzing statutory language, reviewing courts must give the statutory language its plain and ordinary meaning, 'and cannot add words which were not placed there by the Legislature.' " State v. Little , 104 So.3d 1263, 1265-66 (Fla. 4th DCA 2013) (quoting Brook v. State , 999 So.2d 1093, 1097 (Fla. 5th DCA 2009) ). Black's Law Dictionary lists various dictionary examples of the word's usage. For instance, for the definition upon which the defendant relies, "to make or form; to bring about," the dictionary provides the example, "Congress has the power to establish Article III courts," but for the definition "to prove; to convince," the dictionary gives the example, "to establish the president's guilt." Establish , BLACK'S LAW DICTIONARY (8th ed. 2004).

Reading the statute as a whole in the context of subsection 16(a), the plain meaning of "establish" is "to prove." See Miele v. Prudential-Bache Sec., Inc. , 656 So.2d 470, 472 (Fla. 1995) (determining the meaning of a term by looking at the statute as a whole). If the legislature had intended the statute to apply only to cases where the defendant's identity was completely unknown, it could have used the word "discover," which would have limited the statute's application. However, it did not. It is not our role to act as the Legislature or to add words to the statute which do not exist. Boulis v. Blackburn , 16 So.3d 186, 189 (Fla. 4th DCA 2009). It is well known that an accused's identity may be established by more than one means. The statute does not limit its application to cases where DNA analysis provides the first or only means of identification. Such a reading adds an exclusion to the statute that does not exist.

Furthermore, we find that the defendant's identity was not "proven" during the initial investigation. Although the victim identified the defendant, she was severely mentally challenged. Her competency to testify was questionable. As such, the defendant's identity was not established, or "put beyond doubt," until the 2017 DNA analysis, which showed a 99.9997% likelihood of paternity. Thus, the SOL extension applies pursuant to section 775.15(16)(a) 3., Florida Statutes (2006).

Conclusion

The trial court erred in granting the motion to dismiss the information; thus, we reverse the trial court's ruling and remand for further proceedings.

Reversed and Remanded .

Forst, J., concurs.

May, J., concurs specially with opinion.

May, J., (specially concurring).

I concur with the majority's decision to apply section 775.15(16)(a) 3., Florida Statutes, to extend the statute of limitations in this case. I do so based on the unique circumstances concerning this victim's mental capacity, and the State's inability to rely upon her sworn statement to "establish" the perpetrator's identity. I disagree, however, that this statute can be applied to extend the statute of limitations any time DNA evidence is used to confirm the perpetrator's identity.

As the defendant argues, subsection 16(a) does not define "establish." As used in this statute, "establish" is susceptible to more than one meaning. "Because ... persons of reasonable intelligence could differ on which [meaning] was intended, the statute is at the very least ambiguous and 'must be strictly construed most favorably to the accused.' " Maxwell v. State , 110 So.3d 958, 961 (Fla. 4th DCA 2013) (quoting Polite v. State, 973 So.2d 1107, 1112 (Fla. 2007) ). The rule of lenity requires us to do so. See § 775.021(1), Fla. Stat. (2006).

Thus, in a situation in which a competent victim identifies the perpetrator, and identification is therefore established, I do not believe the statute can be used to extend the statute of limitations simply because that identification is later confirmed by DNA evidence. To the extent the majority opinion can be read to allow such an extension of the statute of limitations, I disagree with it. With that being said, the unique mental incapacity of the victim in this case renders the statute unambiguous as applied. I therefore concur with the majority in reversing the order dismissing the information and the subsequent order denying the State's motion for reconsideration.

      On appeal, the defendant argues that subsection 16(a) does not apply retroactively to his case. In 2006, the Florida legislature amended section 775.15, adding subsection (16)(a). This subsection is retroactive and applies to the case at hand. "[T]he legislature can extend the limitations period without violating the constitutional prohibition against ex post facto laws if it (a) does so before prosecution is barred by the old statute, and (b) clearly indicates that the new statute is to apply to cases pending when it becomes effective." Bryson v. State , 42 So.3d 852, 854 (Fla. 1st DCA 2010) (quoting Andrews v. State , 392 So.2d 270, 271 (Fla. 2d DCA 1980) ). Further, section 775.15(16)(b) clearly states that the "subsection applies to any offense that is not otherwise barred from prosecution on or after July 1, 2006." It is clear section 775.15(16)(a) would be applicable to the present case. The alleged crime occurred in 2004, and the four-year SOL had not expired in 2006 when the statute was amended.


text:
    SKY ZONE LLC, Activepen LLC and Jonathan Hovell, Appellants, v. Michael Ryan WEEKLY, Appellee.
    No. 4D18-1583
    District Court of Appeal of Florida, Fourth District.
    [December 19, 2018]
    Charles M-P George of Law Offices of Charles M-P George, Coral Gables, and Derek H. Lloyd, Christopher R. Cooper and Loanmy Saranova of Chartwell Law Offices, Miami, for appellants.
    Gary M. Farmer, Sr. and Gary M. Farmer, Jr. of Gary M. Farmer, Jr., P.A., Lighthouse Point, F. Catfish Abbott and Brittany R. Ford, Jacksonville, and Dixie Dan Powell, Crestview, for appellee.
   Gerber, C.J.

The defendants in a personal injury action appeal from the circuit court's non-final order denying their motion to compel arbitration and stay litigation. The defendants' motion and the plaintiff's response raised several arguments of both a legal and evidentiary nature. The circuit court then held a hearing at which both legal arguments and evidence were presented. At the end of the allotted hearing time, the circuit court commented that the parties did not request an adequate amount of time, and the hearing ended abruptly without the court issuing an oral ruling. Shortly after the hearing, the circuit court entered an order summarily denying the defendants' motion.

Effective review of the circuit court's order is impossible. While the parties presented legal and factual arguments during the hearing, the circuit court's order contains no findings of facts, conclusions of law, or any basis for the circuit court's decision. See Nationstar Mortgage, LLC v. Cullin , 2018 WL 5984111 at *1 (Fla. 4th DCA Nov. 14, 2018) ("Because the trial court failed to state the basis for its decision and to make any factual findings on the record or in its final judgment, we are unable to conduct a meaningful appellate review."); Exotic Motorcars and Jewelry, Inc. v. Essex Ins. Co. , 111 So.3d 208, 209 (Fla. 4th DCA 2013) ("In cases where, as here, orders on review cannot be resolved without meaningful findings, effective review may be deemed impossible and the cause remanded for findings, notwithstanding that such findings may not be mandated by rule or statute.").

Ordinarily, we would remand the case to the circuit court to enter an amended order containing factual findings and legal conclusions to support its decision. See id. at 209-10 ("[W]e reverse and remand for the trial court to enter an amended final judgment and to make findings accordingly.").

However, because the judge who issued the order has since retired, we are left with no other choice but to remand the case for a new hearing before another judge who may issue an order capable of effective review. See Cullin , 2018 WL 5984111 at *2 ("If the trial judge is no longer serving or is unable to enter an amended final judgment reflecting the basis for the decision, then a new trial must be conducted.").

Reversed and remanded for new hearing.

Conner and Forst, JJ., concur.