text:
    Juan L. JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1843
    District Court of Appeal of Florida, First District.
    March 7, 2019 Rehearing Denied May 3, 2019
    Juan L. Jenkins, pro se, Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In 2007, Juan Jenkins pleaded no contest to aggravated battery and possession of a firearm by a convicted felon. Pursuant to a plea agreement, the court sentenced Jenkins to two concurrent probation terms. After Jenkins violated probation, the court sentenced him to two consecutive fifteen-year prison terms-a total of thirty years. This court affirmed that sentence without a written opinion. See Jenkins v. State , 995 So.2d 957 (Fla. 1st DCA 2008) (table).

Jenkins then filed a rule 3.800(a) motion, contending his sentence was illegal. The trial court denied the motion, and Jenkins now appeals. Jenkins first argues that his thirty-year sentence violates his original plea agreement. But "when a defendant pleads guilty pursuant to a plea bargain and the court places him on probation, if he violates his probation the court can sentence him to a term in excess of the provisions of the original bargain." State v. Segarra , 388 So.2d 1017, 1018 (Fla. 1980). Jenkins also argues that because his probationary terms were concurrent, his sentences after he violated probation must likewise be concurrent. We reject this argument as well. "The fact that the original terms of probation were ordered to run concurrently does not mandate that the sentences imposed after violation of probation also run concurrently." Troncoso v. State , 825 So.2d 494, 497 (Fla. 3d DCA 2002) ; accord Ellis v. State , 406 So.2d 76, 78 (Fla. 2d DCA 1981). Finally, we reject Jenkins's argument that his consecutive sentences violate double jeopardy. See § 921.16, Fla. Stat. (2005) ; State v. Cantrell , 417 So.2d 260, 260 (Fla. 1982).

AFFIRMED .

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


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Walter HERNANDEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4754
    District Court of Appeal of Florida, First District.
    March 5, 2019 Rehearing Denied April 24, 2019
    Walter Hernandez, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Wolf, Bilbrey, and Winsor, JJ., concur.


text:
    Rob Eric EZELL, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D18-1592
    District Court of Appeal of Florida, First District.
    March 1, 2019 Rehearing Denied May 3, 2019
    Rob Eric Ezell, pro se, Petitioner.
    Rana Wallace, General Counsel, and Thomas A. Klein, Assistant General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of certiorari is denied on the merits.

Makar, Winokur, and M.K. Thomas, JJ., concur.


author: M.K. Thomas, J.

text:
    Susan SNYDER, Appellant, v. FLORIDA PREPAID COLLEGE BOARD, Appellee.
    No. 1D17-4768
    District Court of Appeal of Florida, First District.
    March 13, 2019 Rehearing Denied May 6, 2019
    David J. Sales of David J. Sales, P.A., Sarasota; Daniel R. Hoffman of David J. Sales, P.A., Sarasota; James W. Gustafson of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., Tallahassee; Edward H. Zebersky and Jordan Shawn of Zebersky & Payne, LLP, Fort Lauderdale, for Appellant.
    Michael E. Riley, Jason L. Unger, Ashley Hoffman Lukis, and Andy V. Bardos of GrayRobinson, P.A., Tallahassee; Jason A. Zimmerman of GrayRobinson, P.A., Orlando, for Appellee.
   M.K. Thomas, J.

Susan Snyder appeals an order granting final summary judgment in favor of the Florida Prepaid College Board (the "Board"). She argues summary judgment is improper because the terms of the contract obligated the Board to pay the value of the Tuition Differential Fee ("TDF"), a fee implemented by the Legislature after she purchased a Florida Prepaid Tuition Plan. Alternatively, she argues the prepaid plan contract is ambiguous and, therefore, precludes summary judgment. We disagree and affirm.

I. Facts

The Legislature created the Florida Prepaid College Program ("Florida Prepaid") as a means for participants to lock-in and prepay certain costs of a future postsecondary education. § 1009.98(1), Fla. Stat. (2018) (describing the current Stanley G. Tate Florida Prepaid College Program). Florida Prepaid is administered by the Board, which has statutorily defined rights and duties. § 1009.971, Fla. Stat. (2018). The Legislature has authorized the Board to offer various prepaid plan options, or advance payment contracts, each of which includes statutorily defined benefits. § 1009.98(2), Fla. Stat. (2018).

A. Snyder's Tuition Plan

In 2004, Snyder purchased a prepaid plan from the Board and designated her son as the beneficiary. During the 2003-2004 Open Enrollment Period, the Board offered three different plan options. Snyder selected and purchased the 4-Year University Tuition Plan. In the Tuition Plan, the Board was authorized to provide "prepaid registration fees for a specified number of undergraduate semester credit hours ..." See § 1009.98(2)(b) 1., Fla. Stat. (2003). As part of the contract, Snyder accepted the Board's Master Covenant, which set forth the policies and terms of Florida Prepaid. The governing document at the time of Snyder's purchase was entitled 2003-2004 Master Covenant ("03/04 MC"). Under the provisions of the 03/04 MC, Snyder would prepay "120 semester credit hours of tuition at a state university," and the Board would later pay her son's chosen institution 120 credit hours of "registration fees." The 03/04 MC defined "registration fee" to mean "the fee charged for tuition and includes the matriculation fee, financial aid fee, building fee, and Capital Improvement Trust Fund fee." This definition was similar to that found in chapter 1009 at the time. See § 1009.97(3)(g), Fla. Stat. (2003) (defining "registration fee" to mean "tuition fee, financial aid fee, building fee, and Capital Improvement Trust Fund fee").

Snyder's prepaid plan contract equally applied whether her son went to an in-state or an out-of-state institution, with some exceptions not relevant here. The 03/04 MC provided, "The Board will transfer an amount not to exceed the current rates at state universities and community colleges in Florida" and at "an amount not to exceed the redemption value of the advance payment contract at a state postsecondary institution." See § 1009.98(3), Fla. Stat. The 03/04 MC also expressly detailed that the beneficiary was responsible for any additional fees charged by state universities and community colleges, "including but not limited to application fees, laboratory fees, meal plan fees, and security deposits." The redemption value of the advance payment contract for 4-Year University Tuition Plans, if the beneficiary attended school out-of-state, "shall be the average amount of tuition ... charged by the state universities ... at the time of matriculation." Fla. Admin. Code R. 19B-9.003 (2001).

B. The Tuition Differential Fee

In 2007, the Legislature authorized state universities to impose a new fee - the TDF. See Ch. 2007-225 § 1, Laws of Fla. The Legislature did not include the TDF in the definition of tuition or registration fee, but created it as a separate, statutorily defined fee. See §§ 1009.01(3), 1009.24(16), Fla. Stat. (2007). "Tuition differential" is defined as "the supplemental fee charged to a student for instruction provided by a public university in this state pursuant to s. 1009.24(15)." § 1009.01(3), Fla. Stat. (2007). However, the Legislature excluded pre-existing Florida Prepaid participants like Snyder from paying the TDF: "Beneficiaries having prepaid tuition contracts pursuant to s. 1009.98(2)(b) which were in effect on July 1, 2007, and which remain in effect, are exempt from the payment of the tuition differential." Ch. 2007-225, § 2, Laws of Fla. (amending § 1009.24, Fla. Stat.); § 1009.24(16)(b) 5., Fla. Stat. (2018).

In 2009, the TDF provision was further amended to allocate seventy percent of its revenue to "undergraduate education" and thirty percent to student financial aid. See Ch. 2009-98, § 3, Laws of Fla. (amending § 1009.24, Fla. Stat.). Also, the Board authorized the purchase of a separate plan to cover the TDF which may be purchased in conjunction with a Tuition Plan. See § 1009.98(2)(b) 4., Fla. Stat. (2018).

C. Enrollment in an Out-of-State Institution

Snyder's son elected to attend a non-Florida state institution - the Citadel in South Carolina. As per the terms of Snyder's prepaid plan contract, the Board paid the Citadel for 120 hours of "registration fees" as that term was defined in the contract at a rate of $ 116.00 per credit hour. Snyder, however, argued the Board underpaid, as she interpreted the Board's obligation in the 03/04 MC to require transfer of an amount per credit hour determined at "the current rate" of in-state schools which she asserts should include the value of the TDF. Snyder concedes the Board was paying her son's tuition at the statutorily defined rate. The Board paid to the Citadel the exact amount it would have paid to any Florida university if Snyder's son was attending class in-state. The difference between the amount the Board actually paid and the amount Snyder claimed the Board owed (the amount of the TDF), is approximately $ 10,000 over the course of four years.

In 2015, Snyder sued the Board for declaratory and monetary relief, arguing the Board was not paying as contemplated under the 03/04 MC. She asserted claims for breach of contract, declaratory relief, and breach of the covenant of good faith and fair dealing. Notably, Snyder never sought as part of her relief a rescission of the contract, nor did she seek a refund under the terms of the contract. Instead, she sought only payment of an additional benefit to her Tuition Plan - the value of the TDF. She argued, under the 03/04 MC and Florida Prepaid promotional materials, she understood the Board would pay out-of-state tuition based on the "current rates" at Florida universities and colleges, and because "current rates" necessarily must now include the TDF, she was also entitled to payment of the TDF value.

The trial court ultimately rejected Snyder's claims and entered an order granting final summary judgment in the Board's favor. This is Snyder's appeal.

II. Analysis

We review an order granting final summary judgment de novo . Volusia Cty. v. Aberdeen at Ormond Beach, L.P. , 760 So.2d 126, 130 (Fla. 2000). "Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Id. The issue in this case turns on the trial court's interpretation of Snyder's prepaid plan contract as well as the statutes and regulations governing Florida Prepaid, which we also review de novo . Tierra Holdings, Ltd. v. Mercantile Bank , 78 So.3d 558, 562 (Fla. 1st DCA 2011) ; Imagine Ins. Co. v. State ex rel. Dep't of Fin. Servs. , 999 So.2d 693, 696 (Fla. 1st DCA 2008).

In granting final summary judgment for the Board, the trial court concluded the amended master contract in effect at the time of final summary judgment proceedings, the 2016-2017 Master Contract ("16/17 MC"), governed the parties' relationship and, by its unambiguous language, precluded Snyder's entitlement to the value of the TDF. In the alternative, it concluded under either the 03/04 MC or the 16/17 MC, Snyder's Tuition Plan did not include the value of the TDF. We agree with the trial court's analysis.

A. The 16/17 Master Contract Governs the Parties' Relationship

Snyder argues the trial court erred in holding the 16/17 MC governed the parties' relationship. She asserts this holding erroneously condones the Board's unrestricted right to serially and materially amend the parties' agreement, resulting in an impairment of her rights. We disagree.

The Board manages Florida Prepaid on behalf of all participants, not just Snyder. See § 1009.971, Fla. Stat. (2018). The Board's role is to administer Florida Prepaid as the program is created and amended by the Legislature. See State, Bd. of Trs. of the Internal Improvement Trust Fund v. Day Cruise Ass'n, Inc. , 794 So.2d 696, 700-01 (Fla. 1st DCA 2001) (recognizing most administrative agencies are creatures of statute and have only those powers the statutes confer). The Board implements the Legislature's vision for Florida Prepaid through the administrative rulemaking process. See §§ 120.52(8), 120.536, 1009.971(4)(aa) Fla. Stat. (2018). The preamble to the 03/04 MC makes clear the larger scope of the Board's responsibility:

The applicable provisions of part IV, Chapter 1009, Florida Statutes, rules contained in Chapters 19B-4 through 19B-13 and Rule Chapter 19B-15, Florida Administrative Code, and s. 529 of the Internal Revenue Code, as amended from time to time, shall apply to the contract and are incorporated by reference.

That is, the Florida Prepaid statutes must necessarily govern and provide the contextual framework for all advance payment contracts into which the Board, as the contracting authority for Florida Prepaid, enters. The language of the 03/04 MC preamble expressly placed Snyder on notice that her contract was subject to the statutory and regulatory framework at the time and "as amended from time to time." See Century Vill., Inc. v. Wellington, E, F, K, L, H, J, M, & G Condo. Ass'n. , 361 So.2d 128, 133 (Fla. 1978) (upholding a contract provision that incorporated by reference provisions of the Condominium Act, "as it may be amended from time to time," and finding this language was clear the parties intended amendments would become a part of the controlling document whenever they were enacted); Sans Souci v. Div. of Fla. Land Sales & Condos., Dep't of Bus. Regulation , 421 So.2d 623, 629 (Fla. 1st DCA 1982) (discussing the "automatic amendment theory" and explaining the legal effect of an amendment clause is to apply all subsequent amendments of the specific law to the declaration, as if expressed therein). Further, Snyder is presumed to know that, upon contracting with the Board, her contract incorporated the overall statutory and regulatory Florida Prepaid framework as well. See Westside EKG Assocs. v. Found. Health , 932 So.2d 214, 216 (Fla. 4th DCA 2005) ("It is an accepted principle of law that when parties contract upon a matter which is the subject of statutory regulation, the parties are presumed to have entered into their agreement with reference to such statute, which becomes a part of the contract, unless the contract discloses a contrary intention.").

Not only did the preamble put Snyder on notice her contract was subject to amendments in the Florida Prepaid program as a whole, the master contract is incorporated by reference into Florida Administrative Code Rule 19B-4.001(2). As the need for a new or amended master contract arises with legislative changes to Florida Prepaid, the rule is amended to incorporate the latest version of the master contract, which amendment must necessarily apply to Snyder as per the terms of the 03/04 MC preamble. Any prejudice flowing to Snyder by virtue of the amendments is remedied by the fact that the Board's administrative rulemaking process provides notice and an opportunity for public comment. See Diverse Elements, Inc. v. Ecommerce, Inc. , 5 F.Supp.3d 1378, 1382 (S.D. Fla. 2014) (recognizing that reserving the right to unilaterally modify a contract must be subject to certain restrictions such as reasonable notice so as to not render the contract illusory). We find no merit in Snyder's suggestion the Board, as a state agency, has no capacity to amend the parties' agreement. As the trial court recognized, we have approved an agency's use of administrative rules to govern the substance of "continuing contracts." See, e.g. , United Faculty of Fla. v. Fla. State Bd. of Educ. , 157 So.3d 514, 517-18 (Fla. 1st DCA 2015) (upholding the State Board of Education's ability to adopt rules governing certain employment contracts for college instructional personnel).

The trial court correctly determined that Snyder's contract with the Board was not a static document and that the Board was able to amend its overall contractual program by way of administrative rulemaking to keep up with legislative changes to Florida Prepaid. We agree with the trial court that the preamble language of the 03/04 MC appropriately incorporated the administrative rules and statutes, as amended, into the parties' contract and put Snyder on notice that she was agreeing to be bound by the current version of the master contract. As such, the trial court appropriately determined the plain language of the 03/04 MC mandates that the current, amended master contract prevails.

B. The 16/17 Master Contract is Unambiguous

We must look to the plain language of the 16/17 MC to determine whether Snyder is entitled to the value of the TDF as part of her prepaid tuition plan. See Columbia Bank v. Columbia Developers, LLC, 127 So.3d 670, 673 (Fla. 1st DCA 2013) ("The cardinal rule of contractual construction is that when the language of the contract is clear and unambiguous, the contract must be interpreted and enforced in accordance with its plain meaning."). When a contract is clear and unambiguous, the court's role is to enforce the contract as written, not to rewrite the contract to make it more reasonable for one of the parties. Id. (citing Ferreira v. Home Depot/Sedgwick CMS , 12 So.3d 866, 868 (Fla. 1st DCA 2009) ). Snyder concedes the 16/17 MC is clear and unambiguous.

Under the 16/17 MC, a Tuition Plan covers "registration fees" for 120 semester credit hours, but expressly excludes the TDF, which is covered under a separately purchased plan. The 16/17 MC defines "registration fee" with reference to the specific statutorily defined components: the tuition fee authorized in section 1009.24(4), the financial aid fee authorized in section 1009.24(7), and the Capital Improvement Trust Fund Fee authorized in section 1009.24(7). The 16/17 MC provides the Board will transfer to out-of-state institutions "an amount not to exceed the current average rates payable under the Beneficiary's plan(s) to a State University or Florida College." (Emphasis added.) A pre-2007 purchaser of a Florida Prepaid Plan would never have to pay the TDF because of the express Legislative exemption. Pursuant to the plain language of the contract, the value of the TDF is not transferable to an out-of-state institution and Snyder's prepaid plan does not include the value of the TDF. In this regard, the trial court appropriately granted summary judgment for the Board.

C. The 03/04 Master Covenant is Unambiguous

The trial court also upheld summary judgment on an alternative basis: no matter which Master Contract controlled, Snyder was not entitled to the value of the TDF under the prepaid plan she purchased. Snyder maintains that the 03/04 MC controls and not the 16/17 MC. Furthermore, she asserts that under the 03/04 MC, the term "current rates" is ambiguous. We cannot agree. When read in context, it is clear that "current rates" are the rates of fees covered by Florida Prepaid, here registration fees, not the rates of other fees that the purchaser's plan does not cover. The use of the term "transfer" in section 5.06 of the 03/04 MC and in section 1009.98(3) illustrates the amount payable to an out-of-state institution is not a separate benefit, but is the same benefit the beneficiary would have received at an in-state institution. Snyder's interpretation is absurd as it would result in a windfall to students who leave Florida to acquire their education. Further, if a Tuition Plan was intended to cover the TDF, then the legislative decision to authorize the Board to offer TDF Plans would be nonsensical.

Even if we agreed with Snyder that the 16/17 MC does not control, in order to reverse summary judgment, we would have to find some dispute of fact. Snyder has failed to identify facts in dispute. Accordingly, we would have to accept Snyder's interpretation of the contract as reasonable. See Strama v. Union Fid. Life Ins. Co. , 793 So.2d 1129, 1132 (Fla. 1st DCA 2001) (recognizing where an ambiguous provision in a contract is susceptible to more than one interpretation, there is an issue of fact as to the parties' intent that cannot properly be resolved by summary judgment). The crux of Snyder's argument is that the TDF is tuition by another name and that it comprises a portion of the "current rates" at Florida universities and community colleges, so the only reasonable interpretation of the 03/04 MC is that she is entitled to the value of the TDF. The trial court appropriately found this interpretation unreasonable.

In the 03/04 MC, the Board pledged to transfer "an amount not to exceed the current rates at state universities and community colleges in Florida" to a beneficiary who elected to attend an out-of-state institution. The corresponding provision in section 1009.98(2)(b) states the Board "shall provide prepaid registration fees for a specified number of undergraduate semester credit hours not to exceed the average number of hours required for the conference of a baccalaureate degree." § 1009.98(2)(b) 1., Fla. Stat. (2003). The 03/04 MC tracks the language of chapter 1009 when it defines "Registration fee" as "the fee charged for tuition and includes the matriculation fee, financial aid fee, building fee, and Capital Improvement Trust Fund Fee." See § 1009.97(3)(g), Fla. Stat. (2003). It is clear that at the time the parties entered into contract, the Board was obligated to transfer more than just "tuition" under a Tuition Plan, but the extra amount included only those fees referenced in the definition of "registration fee." The 03/04 MC made this clear by its provision indicating the beneficiary was responsible for additional fees.

What undermines Snyder's argument is the Legislature's decision to define the TDF separately from tuition or registration fee. See §§ 1009.01(1), (3), Fla. Stat. (2007) (defining "tuition" and "tuition differential" separately); § 1009.24, Fla. Stat. (2007) (authorizing different rates for tuition and the TDF). With the amendments in 2007, the Legislature included subsection 1009.98(2)(b)3., which authorized the Board to provide advance payment contracts for the TDF authorized in section 1009.24(16)"in conjunction with advance payment contracts for registration fees." § 1009.98(2)(b) 3., Fla. Stat. (2007). The Legislature's safe-harbor for pre-2007 subscribers was designed to meet subscriber's immediate concerns, but was never intended to be an admission that TDF was a tuition increase.

Although she never purchased a TDF Plan, and although her son is statutorily exempt from ever paying the TDF, Snyder demands the Board pay the TDF value because her son decided to attend an out-of-state school. She asks this Court to award her son, and all other beneficiaries who use their prepaid benefits outside of Florida, an additional $ 45 per credit hour. This would represent a 42% bonus for those who elected to attend out-of-state schools over and above the tuition payable to in-state students.

Snyder has received exactly what she bargained for even under the 03/04 MC - "an amount not to exceed the current rates at state universities and community colleges in Florida." While the term "current rates" is not defined, it must be specific to the current rates for her son . That is, whether Snyder's son went in-state or out-of-state, the Board would never disburse the TDF because he was exempt. This comports with the Board's authority in section 1009.98(3), Florida Statutes (2018), to transfer "an amount not to exceed the redemption value of the advance payment contract at a state postsecondary institution." "Redemption value" must necessarily mean the value of what Snyder actually purchased, not additional fees under other prepaid plan options that she did not.

Snyder's interpretation of the 03/04 MC cannot stand because it would contravene the express language of the contract prohibiting the Board from distributing an amount exceeding "current rates" at in-state institutions. Her interpretation would also produce an absurd result because it would result in a higher disbursement of funds to out-of-state students than in-state students. Such a reading cannot stand. See Companion Prop. & Cas. Ins. Co. v. Category 5 Mgmt. Grp., LLC , 189 So.3d 905, 908 (Fla. 1st DCA 2016) ("A court must construe a contract in a manner that accords with reason and probability and avoids an absurd construction.").

Snyder argues that even if this Court does not accept her interpretation of the contract, it should reverse summary judgment upon the finding that the 03/04 MC is, at least, ambiguous. No ambiguity can be found where Snyder's reading would produce an absurd result. See CitiMortgage, Inc. v. Turner , 172 So.3d 502, 504 (Fla. 1st DCA 2015) ("A contract is ambiguous when it is susceptible to more than one reasonable interpretation, but where one interpretation of a contract would be absurd and another would be consistent with reason and probability, the contract should be interpreted in the rational manner." (internal quotation and citation omitted) ); Nabbie v. Orlando Outlet Owner, LLC , 237 So.3d 463, 466-67 (Fla. 5th DCA 2018) (recognizing a true ambiguity only exists when it is susceptible to more than one reasonable interpretation).

D. No Unconstitutional Impairment of Contract

Snyder asserts the Board's arguments here diminish her contractual rights to the "value" of the plan. Specifically, that the purpose of these plans is to cover the "actual cost" of college, and that her Tuition Plan now provides substantially less "value" because the Board does not transfer the TDF to out-of-state institutions. Having found the language of the 16/17 MC to be unambiguous, Snyder's position becomes one for an illusory contract. However, on appeal Snyder explicitly clarified that "the Court should not support any construction of the parties' agreement, or the powers of the Board or legislature, which would render [Snyder's] stated contractual rights illusory." Snyder does not seek rescission of the contract nor repayment of the original cost of the Tuition Plan.

To impair a preexisting contract, a law must "have the effect of rewriting antecedent contracts" in a manner that "chang[es] the substantive rights of the parties to existing contracts." Manning v. Travelers Ins. Co. , 250 So.2d 872, 874 (Fla. 1971). Here, Snyder fails to address the criteria that courts must weigh to assess whether a contract has been unlawfully impaired. See Searcy , Denney , Scarola , Barnhart & Shipley, Etc. v. State , 209 So.3d 1181, 1192 (Fla. 2017) (explaining that an impairment-of-contract claim requires a court to balance the nature and extent of the impairment against the importance of the State's objective and the degree of intrusion into the bargain). She also fails to identify any law that impairs any specific provision of the 16/17 MC. Her argument is that the Board's "construction" of the law impairs its "essential commitment" to cover the cost of postsecondary education. However, to establish this "essential commitment," Snyder points to minutes of meetings and a promotional flyer. This is insufficient to state a colorable claim. See id. at 1190-91 (explaining that, "[t]o impair a preexisting contract, a law must have the effect of rewriting antecedent contracts" (internal quotation marks omitted) ).

Courts are obligated to construe contracts in such a way as to give reasonable meaning to all provisions of a contract , rather than one which leaves part of the contract useless or inexplicable. Aucilla Area Solid Waste Admin. v. Madison Cty. , 890 So.2d 415, 416 (Fla. 1st DCA 2004) ; Hardwick Properties, Inc. v. Newbern , 711 So.2d 35, 40 (Fla. 1st DCA 1998) (citing Premier Ins. Co. v. Adams, 632 So.2d 1054 (Fla. 5th DCA 1994) ). Neither the 16/17 MC nor Florida law has ever purported to cover in full the "actual cost" of a postsecondary education, including each and every one of the many fees the Legislature has authorized the universities to charge. See § 1009.24(7) - (17), Fla. Stat. The explanation of different fees, and authorization of various advance payment plans and contracts that cover different costs, refutes Snyder's claim that the "intent" of university Tuition Plans is to cover all costs. "Value" has as its foundation a reasonable basis of "cost." Here, the TDF is not part of the "actual cost" that Snyder's son will ever pay. He is exempt from the TDF and he will never be charged the TDF whether he acquires his degree exclusively out-of-state or attends school in Florida. As Snyder concedes, the 4-Year University Tuition Plan she purchased is not an investment program. It is a contract to fix or "lock-in" postsecondary institution rates at the time of purchase. Snyder has received the value of the contract.

Conclusion

Based on the undisputed material facts, the trial court correctly determined that Snyder failed to demonstrate that the Board breached any provision of the tuition plan, that she suffered any damages as a result, that the Board breached an implied covenant or that a present controversy existed regarding declaratory relief. Accordingly, we affirm the trial court's order granting final summary judgment in favor of the Board.

AFFIRMED .

Jay, J., concurs; Wolf, J., concurs in result only.

      Other plan options offered at the time were the "Local Fee Plan," which applied to the "activity and service, health, and athletic fees," and the "Dormitory Plan," which applied to the fee charged for residence. At present, the Board is authorized to offer six different plan options. See § 1009.98(2), Fla. Stat. (2018).

      The building fee was merged into the Capital Improvement Trust Fund fee in 2012. Ch. 2012-134, § 22, Laws of Fla.

      In 2009, section 1009.01(3), Florida Statutes, was amended to define the TDF as, "the supplemental fee charged to a student by a public university in this state pursuant to s. 1009.24(16)."

      Both the 03/04 MC and the 2016-2017 Master Contract ("16/17 MC") allow subscribers to use their plan benefits at eligible institutions outside of Florida. No material differences exist between the two versions of the master contracts with regard to the use of Tuition Plan benefits at an eligible out-of-state institution.

      The term "matriculation fee" was not defined in the 03/04 MC, but the trial court received testimony that, at the time, it was used interchangeably with "tuition."


text:
    Tara MISSEL, Petitioner, v. Iverson AIKEN, Respondent.
    No. 1D19-0655
    District Court of Appeal of Florida, First District.
    March 11, 2019 Rehearing Denied April 24, 2019
    Christopher V. Carlyle, B.C.S. of the Carlyle Appellate Law Firm, Orlando, for Petitioner.
    No appearance for Respondent.
   Per Curiam.

The petition for writ of prohibition is denied on the merits.

Wetherell, Osterhaus, and Winokur, JJ., concur.


text:
    Christopher JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4175
    District Court of Appeal of Florida, First District.
    March 11, 2019 Rehearing Denied May 6, 2019
    Christopher Jackson, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Lewis, Rowe, and Makar, JJ., concur.


text:
    Marcus Robert BOWMAN, Father, Appellant/Cross-Appellee, v. Lindsey MacLaren HUTTO, Mother, Appellee/Cross-Appellant.
    No. 1D18-3400
    District Court of Appeal of Florida, First District.
    March 28, 2019 Rehearing Denied May 9, 2019
    Marcus Robert Bowman, pro se, Appellant/Cross-Appellee.
    Travis R. Johnson of Meador & Johnson, P.A., Pensacola, for Appellee/Cross-Appellant.
   Per Curiam.

Marcus Robert Bowman (Father) appeals and Lindsey MacLaren Hutto (Mother)

cross-appeals from a final judgment of paternity and other related relief. The Father raises a number of issues, all of which we reject without discussion. The Mother's sole argument on cross-appeal is that the trial court erred by ordering that the surname of the parties' two-year-old child be changed from Hutto to Bowman-Hutto. We agree.

The Mother named the child at birth. At the final hearing, the parties stipulated to paternity and to adding the Father to the child's birth certificate. The Father requested the name change and testified that it would be in the child's best interest because his name should reflect an identity with both parents. The Mother opposed the name change, opining that a hyphenated name would harm the child because it would be associated with the stigma of being born to an unmarried mother. In ordering the name change, the trial court made no findings regarding the child's best interest.

A trial court's ruling to change a child's surname is reviewed for an abuse of discretion. Neville v. McKibben , 227 So.3d 1270, 1273 (Fla. 1st DCA 2017). However, a name change is proper only where the record affirmatively shows that it is required for the welfare of the child. Id. The proponent of the name change carries the burden of proof, and conclusory assertions are insufficient. Id. A finding of paternity cannot be the sole basis for a name change. Id.

In Hutcheson v. Taylor , the trial court ordered that the child's surname be changed from that of the mother to that of both parents, separated by a hyphen, because under the law the parties are equal parents. 43 So.3d 921, 922 (Fla. 1st DCA 2010). We reversed "[b]ecause the final order does not articulate how a name change is in the child's best interest and the record does not show that the name change is required for the welfare of the child." Id. We explained that it was the father's burden to prove that the name change he requested was in the child's best interest, but no evidence was presented on the issue. Id. Instead, the father made the speculative arguments that the mother would soon marry and could take her husband's surname, in which case the child's name would be different from that of either parent, and that not incorporating the father's surname into that of the child could send a negative message to the child about the mother's attitude about the father-child relationship. Id. at 922-23 ; see also Neville , 227 So.3d at 1273 (reversing the final judgment that changed the child's surname to that of the father because the only evidence he presented in support was his own, self-serving testimony that he wished to carry on his family name and the trial court's finding that it would be more convenient for him and the child to have the same last name did not justify the name change); Chamberlin v. Miller , 47 So.3d 381, 382 (Fla. 1st DCA 2010) (reversing the order changing the child's surname to that of the father because he failed to meet his burden of demonstrating that the name change was in the child's best interest where he merely wished for the child to carry on his family name, argued that it is customary for a child to take his father's name, and made the speculative assertion that the child may experience ridicule if he does not share a surname with his father).

Here, as in Hutcheson , the trial court did not explain how the name change is in the child's best interest, and the record does not affirmatively show that the name change is required for the welfare of the child. The Father's conclusory testimony that the child's name should reflect an identity with both parents is insufficient to prove that the name change is in the child's best interest. Thus, the trial court abused its discretion in ordering the name change. We reverse that aspect of the final judgment and remand with directions for the trial court to enter an amended judgment restoring the child's surname to that of Hutto.

Therefore, the final judgment is reversed as to the issue on cross-appeal only and the case is remanded for proceedings consistent with this opinion.

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

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

      Given that the Mother was not married at the time of the birth and was to have custody of the child, she was authorized pursuant to section 382.013(3)(c), Florida Statutes (2016), to select the child's given name and surname.


author: VILLANTI, Judge.

text:
    WELLS FARGO BANK, N.A., Appellant, v. QUEST SYSTEMS, LLC, a New Mexico limited liability company, as successor trustee under the 5107 Erie Road Land Trust, dated October 9, 2012, Appellee.
    Case No. 2D17-1184
    District Court of Appeal of Florida, Second District.
    Opinion filed April 3, 2019.
    Kimberly S. Mello and Danielle M. Diaz of Greenberg Traurig, P.A., Tampa; and Michele L. Stocker of Greenberg Traurig, P.A., Fort Lauderdale, for Appellant.
    Mark P. Stopa of Stopa Law Firm, Tampa (withdrew after briefing); Lee Segal of Segal & Schuh Law Group, P.L., Clearwater (substituted as counsel of record), for Appellee.
    BY ORDER OF THE COURT:
   Appellant's motion for rehearing is granted. The prior opinion dated August 10, 2018, is withdrawn, and the attached opinion is issued in its place.

VILLANTI, Judge.

Wells Fargo Bank, N.A., appeals from a final judgment of foreclosure entered in favor of Quest Systems, LLC, after a bench trial. We reverse and remand for entry of a final judgment of foreclosure in favor of Wells Fargo.

At the conclusion of Wells Fargo's case, Quest moved for an involuntary dismissal. The trial court granted the motion and dismissed the case based on its determination that Wells Fargo had failed to prove its prima facie case because it had not properly authenticated a loan modification agreement that the court had nevertheless previously admitted into evidence.

While the parties have raised a multitude of issues in this appeal, we need reach only one of them. We conclude that the trial court erred when it refused to consider the loan modification agreement because it had not been properly authenticated. Such agreements are self-authenticating under section 90.902(8), Florida Statutes (2017), which provides that documents relating to commercial paper are self-authenticating. Hence, the loan modification agreement should have been considered by the court, and the court should have entered a final judgment of foreclosure in favor of Wells Fargo based on the amounts due and owing on the note and mortgage, as modified by the loan modification agreement.

In light of this conclusion, we reverse the involuntary dismissal and remand for entry of a judgment in favor of Wells Fargo.

Reversed and remanded for further proceedings.

KELLY and KHOUZAM, JJ., Concur.


author: SALARIO, Judge.

text:
    Joseph LEHMANN and Therese Lehmann, Appellants, v. COCOANUT BAYOU ASSOCIATION, INC., Appellee.
    Case No. 2D15-4968
    District Court of Appeal of Florida, Second District.
    Opinion filed April 5, 2019
    David A. Wallace of Bentley & Bruning, P.A., Sarasota, and M. Lewis Hall, III, of Williams Parker Harrison Dietz & Getzen, Sarasota, for Appellants.
    Stephen Henry Kurvin of Sarasota, for Appellee.
   SALARIO, Judge.

This is one mess of a dispute over title to real property. It involves a parcel of land on Siesta Key in Sarasota County, various portions of which were conveyed in more than one deed to more than one person over the span of decades. Many of the property descriptions in those deeds include boundaries defined by streets that no longer exist and that have changed names. Much of the land that once defined the boundaries of the property has been swallowed up by the Gulf of Mexico. There is no simple, reliable drawing in our record that clearly explains to the layman what the parcel looks like in relation to its surroundings. The applicable law has changed over time. Getting to the bottom of the case has been a bit like untangling spaghetti.

The bottom line is this. At our direction after a previous appeal, see Lehmann v. Cocoanut Bayou Ass'n, 157 So.3d 289 (Fla. 2d DCA 2014), the trial court conducted proceedings to determine ownership of the disputed parcel of land. It divided the parcel into three parts and settled title with Joseph and Therese Lehmann for two of those parts and Cocoanut Bayou Association for one. The Association has not challenged that part of the trial court's final judgment that found in favor of the Lehmanns-perhaps because the parts of the disputed parcel they were found to own now lie largely underneath the Gulf-and we affirm the judgment to that extent. We conclude, however, that the Lehmanns also own the third part of the parcel because they or their predecessors in title owned the property extending to the centerlines of the roads that used to be there, either because they always had title to that property by virtue of having had title to the lots abutting those roads or because they had a reversionary interest in the land underneath the roads that vested when the roads were vacated by Sarasota County. We reverse the trial court's order to the extent it awarded part of the parcel to the Association and remand with directions to quiet title to all of the disputed parcel in favor of the Lehmanns.

The Disputed Parcel

The disputed parcel lies in what was originally known as the Siesta subdivision and is now called the Cocoanut Bayou subdivision. Today, it is a narrow strip of land that is at its widest point twelve and one-half feet wide and eighty-six feet long.

Based on a 1912 revised plat for the Siesta subdivision, the parcel would have been bordered on the east by the western edge of a short, east-west road called Bee Street that ended at the eastern edge of a north-south road called Gulf Avenue. The parcel's twelve-and-one-half-foot width would have been bounded to the north by the extended center point of Bee Street and to the south by an extension of Bee Street's southern boundary and the northern boundary of Lot 10 of Block 60 of the subdivision. It would have extended westward from Bee Street at Block 60 to the shores of Bayou Louise. On the western side of Bayou Louise were additional platted lots and, on the other side of those, the Gulf of Mexico. As shown in the 1912 revised plat, the disputed parcel and its surrounding land looked like this (with the approximate disputed parcel circled in the area to the west of Bee Street):

The subdivision was partially replatted in 1944. For reasons that are not clear from our record, the area called Gulf Avenue a/k/a Shell Road in the 1912 revised plat is named only Shell Road in the replat. By the time of the replat, the Gulf had overtaken the lots that once existed on the western side of Bayou Louise, and much of the bayou had become dry land susceptible to being conveyed. On the western side of Shell Road there was a small area of dry land and then the Gulf. Circumstances remain much the same today except that Sarasota County vacated Bee Street in 1949 and Gulf Avenue in 1983. Whatever right or title the County had in those lands is gone, and Bee Street and Gulf Avenue no longer exist as roads. Also, virtually all of the dry land west of what was Gulf Avenue has been swallowed up by the Gulf.

With this understanding of the nature of the disputed parcel behind us, we now turn to the competing claims of ownership to that parcel.

The Competing Chains of Title

Understanding the competing claims of ownership to the disputed parcel requires understanding the recorded deeds purporting to convey title to that land. The beginning of the story for our purposes is that all of the property in the Siesta subdivision was originally owned by E.S. and Helen Boyd, with one exception. The exception is Lots 10 and 11 of Block 60-recall that Lot 10 abuts what was Bee Street on its south side and what was Gulf Avenue on its east side-which were originally owned by Kathleen Ingalls.

In 1945, Ms. Ingalls conveyed title to Lots 10 and 11 to James and Alice Thomas. In 1946, the Boyds conveyed title to Lots 9, 12, 13, 14, and the north half of Lot 15 to the Thomases. The deed also conveyed title to land located to the west of Gulf Avenue described by metes and bounds. That metes and bounds description had its point of beginning at the centerline of Bee Street extended beyond the end of Bee Street to the west side of Gulf Avenue. The line was then extended west to the waters of the Gulf, south along the water's edge for a distance, then east to the western edge of Gulf Avenue, then north back to the point of beginning. That conveyance covered all of the property to the west of the part of the disputed parcel at issue in this appeal and looked-very roughly-something like this:

See also Lehmann, 157 So.3d at 290 (describing the property conveyed in the 1945 Ingalls-to-Thomas deed and the 1946 Boyd-to-Thomas deed).

In October 1949, Sarasota County executed a deed vacating Bee Street, thereby relinquishing any title or interest it had in the property. The parties have stipulated that the Association thereby obtained title to the north half of Bee Street, and the Thomases, as the owners of Lots 9 and 10, obtained title to the south half. As a result, the Thomases' property bordered Gulf Avenue on both the east and west sides from the centerline of Bee Street to the south as of 1949. In December 1949, the Thomases conveyed Lots 9, 12, 13, 14, the north half of Lot 15, and the property described by metes and bounds in the 1945 Ingalls-to-Thomas deed to Ms. Thomas individually. In a corrective deed in 1950, Mr. Thomas conveyed the property described in the October 1949 deed together with Lots 10 and 11, which had not been conveyed in the 1949 deed.

Now things are about to get more complex. In 1952, the Boyds deeded some property to the Association. That deed conveyed title to the south 100 feet of Block 59, which shared a boundary with what was once the northern boundary of Bee Street. And it also purported to convey title to land adjacent to the northern border of the property deeded to the Thomases by way of the Ingalls-to-Thomas deed. That land was described by metes and bounds. The point of beginning was the western edge of Higel Avenue-a street immediately east of Blocks 59 and 60-one hundred feet to the north of the centerline of Bee Street. From there, it went west to the Gulf, south to the southern side of an extended Bee Street, east back to the point where Bee Street had once ended at Gulf Avenue, north to the centerline of Bee Street, east to Higel Avenue, and then north to the point of beginning. That conveyance included much of the land titled in the Association to the north of the disputed parcel today, as well as the disputed parcel. It excluded all of what was once Bee Street's southern half that the Association has stipulated vested with the Thomases through the Ingalls chain of title in 1949. It looked something like this:

See also Lehmann, 157 So.3d at 290-91 (describing the property conveyed in the 1952 Boyd-to-Association deed).

To the extent it is not obvious, there is a problem here. The Boyd-to-Association deed also includes a chunk of land-everything that deed tried to convey west of Gulf Avenue-that the Boyds had expressly deeded to the Thomases back in 1946. In 1952, the Boyds no longer had title to that land. And to the extent the deed they gave the Association tried to convey it, it was a wild deed. See Lehmann, 157 So.3d at 293 (holding that the 1952 Boyd-to-Association deed was wild as to that portion of land). The Boyd-to-Association deed also purported to convey title to the area from the intersection of Bee Street and Gulf Avenue on the eastern edge of Gulf Avenue to the boundaries of the expressly-deeded Thomas land to the west of Gulf Avenue-land which comprises part of the disputed parcel. The land both to the west and to the east of Gulf Avenue south of the extended centerline of Bee Street was not owned by the Boyds when the 1952 conveyance purported to pass title to the land under Gulf Avenue south of the centerline of Bee Street to the Association.

There is still more. In 1964, Ms. Thomas deeded Lots 10, 11, 12, the north twelve and one-half feet of Lot 13, and the northerly eighty-seven and one-half feet of Lot 9 to her daughter, Alice Thomas Shannon. That deed also included property described in metes and bounds as the land between the westerly boundary of the conveyed lots bounded on the north by the westerly extension of the north line of Lot 10 to the Gulf and on the south by the westerly extension of the north line of the north one-half of Lot 13. That description includes land on what used to be Gulf Avenue that was not expressly conveyed by the 1946 Boyd-to-Thomas deed-Ms. Shannon's root of title -but that nonetheless was properly conveyed for the reasons we describe below.

The property Ms. Thomas deeded to Ms. Shannon passed to multiple buyers in multiple transactions until coming to rest with the Lehmanns in 1979. When they purchased the property, Mr. Lehmann became aware that the chain of title represented conflicting claims to ownership of the disputed parcel. In what appears to be an attempt to protect their interest in that parcel, Mr. Lehmann deeded that parcel to his then-wife Judy in 1982. There were subsequent transactions related to this property, but none are relevant to this appeal.

Two additional points relevant to these conveyances deserve mention now because they will become important later. First, neither the 1912 nor the 1944 plat maps contain any express reservations of rights other than riparian rights, which are not at issue here. Second, our record does not reflect that any of the relevant deeds contain language reserving title to areas designated as streets or reserving reversionary interests in such areas to the dedicators, and neither party has argued that they do.

The Final Judgment and the Appellate Issues

The history of this litigation is long, but it is not too important. What the reader needs to know is that the case was previously before this court on an appeal from a final judgment rendered after a nonjury trial settling title to the whole of the disputed parcel in the Association based on a claim it had asserted under the Marketable Record Title Act. See Lehmann, 157 So.3d at 291-92. We reversed that aspect of the final judgment, affirmed insofar as it rejected the Lehmann's counterclaim for adverse possession, and remanded for a decision about who owns the disputed parcel (once the appeal had settled the wild deed and Marketable Record Title Act issues). Id. at 294.

On remand, based in substantial part on the record developed in the nonjury trial, the trial court divided the disputed parcel into parts designated 1, 2, and 3 and held that the Lehmanns and the Association each owned parts of the disputed parcel. The trial court's division of the property looked something like this:

The trial court held that the Association owned part 1, which is bounded on the north by the extended centerline of Bee Street and on the south by the extended south line of Bee Street-essentially, that portion of the property that used to be part of Gulf Avenue-based on the 1952 Boyd-to-Association deed. It then held that parts 2 and 3-most of which now lie under the Gulf, but some of which may have also fallen under Gulf Avenue from the west-were owned by the Lehmanns based on the 1945 Boyd-to-Thomas deed. The trial court quieted title accordingly.

The Lehmanns appeal that portion of the judgment quieting title in part 1 in favor of the Association. We review the trial court's findings of fact for competent substantial evidence and its legal conclusions de novo. See Corya v. Sanders, 155 So.3d 1279, 1283 (Fla. 4th DCA 2015) ("After a nonjury trial, review of trial court decisions based on legal questions are reviewed de novo and those based on findings of fact from disputed evidence are reviewed for competent, substantial evidence."). The Lehmanns raise three issues. First, they argue that the 1945 Ingalls-to-Thomas deed and the 1946 Boyd-to-Thomas deed included reversionary interests in the land underneath Bee Street and Gulf Avenue, such that when Sarasota County vacated those roads, title to the land passed to the Thomases and, thereafter, to the Lehmanns. Second, they assert that as owners of the lots abutting Bee Street and Gulf Avenue, the Boyds and Ms. Ingalls had title to that land and conveyed it to the Thomases, such that title ultimately passed to the Lehmanns. Third, they argue that the evidence was insufficient to support the trial court's findings as to the boundaries of Gulf Avenue and, relatedly, that the trial court relied for this purpose on an inaccurate exhibit never admitted into evidence. As we discuss below, we resolve the case based on the first two arguments, rendering it unnecessary for us to address the third.

Framing the Issues: How We Determine Who Owns Part 1

The central question in this case is whether the Lehmanns or the Association hold title to what used to be Gulf Avenue at the point where the southern half of Bee Street ended. In our prior opinion, we recognized that that property was not expressly included in the 1946 Boyd-to-Thomas deed but was expressly included in the 1952 Boyd-to-Association deed. See Lehmann, 157 So.3d at 290-91. The trial court on remand found that fact dispositive of the question of who owned the land in part 1 and quieted title in favor of the Association based on the express conveyance of it in the 1952 deed. Although its order did not explicitly address whether title to part 1 passed to the Lehmanns' predecessors in title before the 1952 Boyd-to-Association deed by means other than an express conveyance, its decision necessarily rejects that argument. That rejection is important to our consideration of this appeal. See Gulfwind S., Inc. v. Jones, 775 So.2d 311, 313 (Fla. 2d DCA 2000) ("[T]he trial court impliedly made certain findings of fact that require the reversal ....").

If someone other than the Boyds held title to part 1 before the 1952 Boyd-to-Thomas deed, however, that deed could not have conveyed title to part 1 to the Association. See Lehmann, 157 So. 3d at 293 (describing a deed attempting to convey title to a parcel that the purported conveyor of title does not own at the time of conveyance as wild). We know that title to part 1 was not expressly conveyed in a deed before 1952. Thus, we must consider whether, before the 1952 deed, someone other than the Boyds had title to part 1 by means other than an express conveyance and whether title vested with the Lehmanns as a result.

The question of whether someone else obtained title to part 1 by means other than an express conveyance requires us to consider how title passes to the lands underneath areas designated on plat maps as streets. A plat map is "[a] document showing the legal divisions of land by lot, street, and block number" that may be referred to for purposes of describing the property depicted on the map in conveyances and the like. Plat map , Black's Law Dictionary (10th ed. 2014). In general, the designation of land on a plat map as a street may evidence either a common law dedication or a statutory dedication of that land for use as a street. See generally Pelican Creek Homeowners, LLC v. Pulverenti, 243 So.3d 467, 470-71 (Fla. 5th DCA 2018) (describing ways in which land may be dedicated on a plat map as a street).

The difference between common law and statutory dedications is significant for purposes of determining who owns the underlying land. In the absence of a clear intention to the contrary, a common law dedication "does not divest the owner of the title to the land, but only subjects the land and the title to the public easement for street purposes," with title remaining in the dedicator or his or her successors in title. Robbins v. White, 52 Fla. 613, 42 So. 841, 841-44 (1907) ; see also Burkart v. City of Fort Lauderdale, 156 So.2d 752, 757 (Fla. 2d DCA 1963), quashed on other grounds, 168 So.2d 65 (Fla. 1964). Under the language of the applicable statutes governing statutory dedications, a statutory dedication vests title in a state, county, or municipal government-depending on the circumstances-and divests the dedicator of his or her title in the underlying land. See § 95.361, Fla. Stat. (2018) (expressing the current mechanism for accomplishing a statutory dedication); § 341.51, Fla. Stat. (1935) (expressing the mechanism for accomplishing a statutory dedication in effect from 1935 to 1955); Pelican Creek, 243 So.3d at 471 (describing the effect of a statutory dedication). Thus, while the owner of land in a common law dedication of a street retains title to the land and is free to convey it, the owner in a statutory dedication does not and cannot. As we explain later, however, the owner in a statutory dedication may retain a reversionary interest in the land such that when the government's relinquishment of that dedication becomes effective, that future interest to the land vests in the owner or his successor in title.

Here, we have two plat maps-one recorded in 1912 and one recorded in 1944-each of which designates Bee Street and Gulf Avenue as streets. Turning first to the 1912 plat map, the dedication of Bee Street and Gulf Avenue was of necessity a common law dedication because, in 1912, there was no statute under which a statutory dedication could have been accomplished. Common law was the only option. The record contains no evidence that by putting Gulf Avenue and Bee Street on the 1912 plat map, the property owners intended anything other than a public easement. As such, by operation of law, the owners of the land designated as Gulf Avenue and Bee Streets on the 1912 plat reserved for themselves title to that property subject only to public easements created by placing those streets on the plat map. See Smith v. Horn, 70 Fla. 484, 70 So. 435, 436 (1915) (explaining that when a plat map shows spaces for streets, "the owner thereby evinces an intention to dedicate an easement in the streets ... to the public use as such, the title to the land under the street remaining in the owner or his grantees"); Robbins, 42 So. at 843-44 (same). As such, the owners of the land depicted on the plat map as streets were able to convey that land notwithstanding the public's dedicated right to use it as a street. See Pelican Creek, 243 So.3d at 471.

Pay attention here, because this leads to a legal wrinkle that is central to this case. From the time of the 1912 plat through to today, it has been the law that when property owners retain title to an area subject to a public use easement as a street, title to the land up to the centerline of the street is conveyed by any conveyance of the land abutting the street unless title is expressly reserved by the grantor. See, e.g., Smith, 70 So. at 436 ("[T]he title of the grantees of subdivisions abutting on such streets, in the absence of a contrary showing, extends to the center of such highway, subject to the public easement."); Pelican Creek, 243 So.3d at 471 ("When the owner of a tract of land makes a subdivision and includes on the plat a dedication of roads ..., the conveyance of the lots abutting the roads ... includes title to the property subject to the easement, unless expressly reserved by the dedicator."). As such, the state of play between the 1912 plat and the 1944 partial replat was (1) there was a north-south common law easement between the end of Bee Street and the shore of Bayou Louise; (2) those holding title to the land abutting the property encumbered by the easement (as relevant here, Ms. Ingalls and the Boyds) took title to the land encumbered by the easement; and (3) those persons could convey title to the property encumbered by the easement by conveying title to the abutting land without reserving to themselves title to the property encumbered by the easement.

The question then becomes whether the partial 1944 replat or anything thereafter changed the state of play. The answer is that it is at least theoretically possible. Unlike the situation at the time of the 1912 plat, there was a statutory method to dedicate a street in 1944-section 341.59, Florida Statutes (1944). It provided that a statutory dedication occurs when a street constructed by a county or the state has been "maintained, kept in repair or worked for a period of four years continuously and uninterruptedly by" the county or the state and that a statutory dedication may be proven by the filing with the appropriate circuit court clerk of a map certified by an appropriate state or county official reciting that the land had vested in the state or county, as appropriate. Id. This was the law when Sarasota County vacated Bee Street in 1949. And the law was substantially similar-although amended to account for dedication to municipalities-when Gulf Avenue was vacated by Sarasota County in 1983. See § 95.361, Fla. Stat. (1983). The trial court did not make a finding as to whether a statutory dedication of Bee Street or Gulf Avenue ever occurred, and we are not able to answer that question definitively from the record we have.

Part of the Lehmanns' argument on appeal implies that there may have been statutory dedications of Bee Street and Gulf Avenue to Sarasota County. They assert that the legal consequence of a statutory dedication would be that the landowners abutting those streets held reversionary interests in the land underneath the streets extending to their centerlines that would vest-granting them title to the land-if the land was vacated by Sarasota County. See § 177.085, Fla. Stat. (1983) (governing reversionary interests in platted streets when Gulf Avenue was vacated); § 341.66, Fla. Stat. (1972) (original version of this statute). The parties also agree that something like this principle existed when Sarasota County vacated Bee Street in 1949 because they stipulated in the trial court that the Association got title to the north half of Bee Street and the Thomases got title to the south half by way of the vesting of reversionary interests at the time the street was vacated by the County. The disputed question about possible reversionary interests thus relates only to Gulf Avenue.

The Association argues that the reversionary-interest principle does not apply to Gulf Avenue because Gulf Avenue was not a formally platted road in 1912 or in 1944. Because Gulf Avenue was plainly dedicated on both plats, we take the Association's argument to mean that Gulf Avenue was not a statutorily dedicated road. The Lehmanns disagree both with the position that the reversionary-interest principle does not apply and also with effect on the chain of title to part 1 if, as the Association contends, it does not. Neither party has done much to help us answer the question of whether Gulf Avenue was ever statutorily dedicated such that the reversionary interest principle does apply. Ultimately, however, we do not need to answer that question. Gulf Avenue incontestably appeared on both the 1912 and 1944 plats. If there was not a statutory dedication of Gulf Avenue, then there necessarily was a common law dedication resulting in an easement granting the public use of that land as a street, as described above. See also Fla. E. Coast Ry. Co. v. Worley, 49 Fla. 297, 38 So. 618, 621 (1905) (holding that the placement of streets on a plat map "evinces an intention to dedicate the streets to public use as such" and that "[t]his is true although there is no formal written dedication accompanying the map"). As a result, either the abutting-lands principle applies because there was a common law dedication or the reversionary-interest principle applies because there was a statutory one.

As such, to determine whether title to that land passed by a means other than an express conveyance in the 1952 deed, we need consider only two possibilities. The first is that prior to 1952, a deed or deeds conveyed title to Gulf Avenue subject to an easement allowing that land to be used as a street by conveying title to the abutting land and not expressly reserving title to the street to the grantor, such that the land encumbered by the easement could be transferred subject to that easement at any time. The second possibility is that prior to 1952, a deed or deeds conveyed a reversionary interest in the land underneath Gulf Avenue by virtue of conveying the land adjacent to Gulf Avenue, which reversionary interest vested and became actual title when Sarasota County vacated Gulf Avenue in 1983, thereby surrendering the title it had held previously. For the reasons that follow, either possibility leads to the conclusion that part 1 of the disputed parcel belongs to the Lehmanns.

The nub of the reason why is that in the absence of a reservation of title or the reservation of a reversionary interest somewhere in the chain of title, both the abutting-lands principle and the reversionary-interest principle answer the question of who owns the land underneath a road by looking at who owns the land abutting that road and recognizing that the abutting landowner has either title to or a reversionary interest in the land underlying the road to its centerline. So to determine the outcome under either principle, we have to look at the chains of title to the lands to the west and east of Gulf Avenue-i.e., title on either side of the centerline of Gulf Avenue to its corresponding eastern and western boundaries is determined by looking at the titleholders on each side of it. For purposes of this analysis, then, one can consider part 1 of the disputed parcel as two subparts divided to the east and west by the centerline of what was Gulf Avenue, looking something like this:

For the land to the west of Gulf Avenue, the relevant documents in the competing chains of title are the 1946 Boyd-to-Thomas deed and the 1952 Boyd-to-Association deed. For the land to the east, we need to look at the 1945 Ingalls-to-Thomas deed, the stipulated consequences of Sarasota County's vacating Bee Street in 1949, and the 1952 Boyd-to-Association deed. Each of the relevant deeds described the property they conveyed by reference to Bee Street and Gulf Avenue. The 1945 Ingalls-to-Thomas deed conveyed Lot 10 of Block 60 as described on the 1912 plat, which placed Lot 10 at the point where Bee Street and Gulf Avenue met. The 1946 Boyd-to-Thomas deed and the 1952 Boyd-to-Association deed both described the land conveyed using boundaries marked by Bee Street and Gulf Avenue on the 1912 plat.

The 1912 plat map, although it expressly reserves any riparian rights within the plat to the original owners, contains no similar reservation of any interest in the property underlying the roads shown on the plat. The same is true of the 1944 replat. And likewise, we do not see (and no party has contended otherwise) that any of the relevant deeds have either expressly excluded the land subject to the public easement as passing with the title to the various surrounding lands or have expressly reserved any reversionary or other interests in the adjacent lands.

With that background established, it becomes clear that either the Lehmanns or their predecessors in title owned the lands abutting both sides of Gulf Avenue, and thus they hold chain of title to the land under it in full.

The Abutting-Land Possibility

Western segment of part 1: Assuming a common law dedication of Gulf Avenue resulting in an easement, the abutting-land principle applies to the western area of part 1 in a straightforward way. Both the 1946 Boyd-to-Thomas deed (through which the Lehmanns claim title) and the 1952 Boyd-to-Association deed (through which the Association claims title) expressly reference Gulf Avenue on the 1912 plat map in the boundary descriptions. Nothing in the record suggests that the 1944 replat of Gulf Avenue as Shell Road (if, as the Association argues, it was not a statutory dedication) did or could have changed the fact that, through the 1946 deed, the Thomases were given title to the land abutting the described property to the centerline of Gulf Avenue from the west. Nor does anything in the record suggest that when the Boyds passed title to their various successors after the 1912 common law dedication, including the Thomases, they expressly reserved any interest they held in those portions of what was Gulf Avenue or Shell Road. In the case of the western portion of part 1, this means that absent an express reservation of title by the Boyds, which did not occur, title passed from the Boyds to the Thomases in 1946. See Smith, 70 So. at 436 ; Pelican Creek, 243 So.3d at 471. As a result, the Boyds had no interest in the land under the western side of Gulf Avenue to convey to the Association in 1952. Thus, even though the 1952 deed expressly purported to convey the land under Gulf Avenue, the Association cannot claim title to that land from the west based on that deed. See Pelican Creek, 243 So.3d at 472. The land belongs to the Lehmanns as the Thomases' successors in title.

Eastern segment of part 1: Assuming a common law dedication of Gulf Avenue, the abutting-land principle is likewise applicable to how title to the eastern portion of the land under it passed, complicated only by the fact that we must take the parties' stipulation that there were reversionary interests associated with Bee Street that vested when Sarasota County vacated Bee Street in 1949 into account in determining how title might have passed from the centerline of Gulf Avenue east to what was once the southern half of Bee Street. Bee Street appears on both the 1912 and 1944 plats, and all of the relevant deeds describe the properties abutting Bee Street using the actual boundaries of Bee Street or an imaginary westerly extension of it. When Bee Street was vacated in 1949, the Thomases owned Lot 10 of Block 60 abutting the southern boundary of Bee Street by way of the 1945 Ingalls-to-Thomas deed. Their reversionary interest in the property from the centerline of Bee Street to its southern boundary along Lot 10 vested into full ownership at that time. Under the abutting-lands principle, then, the area from the centerline of Bee street south to northern boundary of Lot 10 became titled in the Thomases by way of the combination of the 1945 Ingalls-to-Thomas deed expressly passing title to Lot 10 and the vesting of the reversionary interest in Bee Street in 1949. From there, it necessarily follows that the Thomases held title to the property abutting Gulf Avenue to the east bounded to the north by the centerline of what was Bee Street in 1949-all prior to the 1952 deed on which the Association rests its claim. And if Gulf Avenue was merely an easement, that encumbrance allowed the passing of title to the centerline of Gulf Avenue from the east for the same reasons described above in relation to the western side of part 1. The eastern side of part 1 also is owned by the Lehmanns.

The Reversion Possibility

We know that Gulf Avenue in 1912 and 1944 was, at minimum, a dedication of common law easement on those plats, and if that is all that it was on both plats, we have explained why as abutting-land title, the land under that easement was always outside the chain of title for the 1952 deed. But we also recognize the existence of the theory that the 1944 replat or the operation of statutes that had been codified after 1912 may have converted the easement into a dedicated road that divested the dedicator of title to it and vested it with the Sarasota County. See, e.g., § 95.361, Fla. Stat. (2018) ;

§ 341.51, Fla. Stat. (1935) ; Pelican Creek, 243 So.3d at 471. If that is true, then a reversionary interest that vested following the vacation of Gulf Avenue by the county would require consideration. See § 177.085, Fla. Stat. (1983) (governing reversionary interests in platted streets when Gulf Avenue was vacated).

In the possible conveyance of reversionary interests in Gulf Avenue prior to the 1952 Boyd-to-Association deed, we again consider the western and eastern segments of part 1. In 1946, by way of the Boyd-to-Thomas deed, the Thomases acquired title to the property abutting the western boundary of Gulf Avenue in a chain of title separate from the chain of title through which they acquired the Ingalls property to the east. This property expressly included the area to the west of Gulf Avenue south from the centerline of an extended Bee Street. Therefore the titled property to the west of the western subportion of part 1 of Gulf Avenue was expressly conveyed in the 1946 deed and was not dependent on the vacation of Bee Street. The 1945 deed coupled with the 1949 Bee Street reversion similarly titled all the adjacent land to the east of the eastern subportion of part 1. It is therefore clear that title in the properties comprising the land on either side of the eastern and western boundaries of the Gulf Avenue parcel had vested fully in the Lehmann's predecessors in title-the Thomases-prior to the 1952 Boyd-to-Association deed either by way of express conveyance or the vesting of title through a reversionary interest following the vacation of Bee Street. For the reversionary-interest consideration for the western part of part 1, then, this means only answering the question of whether titleholders of the adjacent land to the west of part 1, the Lehmanns stemming from the Boyd-Thomas chain of title, held the reversionary interest that vested in 1983 upon the vacation of Gulf Avenue or whether the Boyds otherwise passed that interest to the Association in 1952. To the extent such a reversionary interest existed, nothing in our record shows that the Boyds expressly reserved it when they conveyed title to the Thomases in 1946, and absent more, that means the reversionary interest vested with the abutting-land titleholder to the west in 1983. See § 177.085. None of the deeds passing title after that point otherwise exclude such a reversionary interest, see § 177.085(1), nor has the Association shown that it sought to establish such a right after the 1983 vacation of Gulf Avenue pursuant to section 177.085(2).

The same reasoning also applies to the eastern side of part 1 for the Ingalls chain of title. The caveat is that those in the Ingalls chain of title acquired vested title to land east of part 1 with one additional step-that is when the reversionary interest in the southern half of Bee Street vested in 1949. But how title to the property between the southern edge and centerline of Bee Street to the east of part 1 vested is not as important as the fact that it happened no later than 1949, and there is, like its corresponding chain of title to the west, no evidence of an express reservation of that interest such that it could have reverted to anyone but the Lehmanns by way of the Ingalls-Thomas chain of title.

Thus, the Lehmanns correctly maintain that at the time that the 1952 deed purported to expressly convey title to the Gulf-Avenue-bounded property now at issue, the Boyds did not own any interest, expressly titled or reversionary, because it was already conveyed to the Thomases in the 1945 and 1946 deeds and the vesting of the Bee Street reversion no later than 1949. Each relevant deed expressly conveys any reversionary interests associated with the property conveyed. The Association argues that the portion of the disputed parcel bounded by Gulf Avenue was always unencumbered land owned by the Boyds until it was conveyed to the Association in 1952. This analysis fails to account for whether the titles to the surrounding lands that passed to the Thomases included the passing of any interests in the land that was Gulf Avenue other than by way of express inclusion. As we have explained, deeds before 1952 passed either full title or reversionary interests in that property.

Conclusion

However one looks at it, the Lehmanns acquired title to what the trial court described as part 1 of the disputed parcel by virtue of the conveyance of title of the abutting lands or reversionary interests in part 1 prior to the Boyds' attempted conveyance of that land to the Association in 1952. Thus, the trial court erred when it settled title to what it called part 1 based on a chain of title stemming from the 1952 Boyd-to-Association deed. We reverse that portion of the final judgment, and the related order of the trial court directing the disbursement of funds from the court registry, and we affirm the remaining portions of the final judgment. We remand with instructions to the trial court to enter a judgment settling title to the entirety of the disputed parcel in the Lehmanns.

Affirmed in part; reversed in part; remanded with instructions.

LaROSE, C.J., and BADALAMENTI, J., Concur.

      The original opinion did not involve a final settlement of the question of ownership of the part of the disputed parcel at issue in this appeal, but rather the application of the Marketable Record Title Act, ch. 712, Fla. Stat. (2012), to the root of title for the deeds expressly conveying title to the lands in and adjacent to it.

      Neither this nor any other drawing used in this opinion is intended to suggest technical accuracy of measurement or description. The drawings are intended simply to provide the reader with a rough visual depiction of what is described in the text.

      There is a factual issue as to whether Gulf Avenue and Shell Road are the same roads covering the same area. Except where further description is necessary, we refer to the land designated on the 1912 plat (as Gulf Avenue) and on the 1944 replat (as Shell Road) as Gulf Avenue for simplicity's sake. Both plats show the roadway as in approximately the same place north to south when accounting for changes in the shoreline east to west. Both plats show the road as parallel to the waterline of what was, in 1912, Bayou Louise, which changed over time to become dry land and eventually part of the Gulf of Mexico. This change may partially explain the discrepancies regarding the exact location of the road on these plats.

      To be precise, the Boyds actually deeded the property to a predecessor entity to the Association. Because the predecessor entity is irrelevant here, and for the sake of simplicity, we refer only to the Association and its predecessors as the Association throughout this opinion.

      This map was used by the trial court in its final judgment to explain its division of the disputed parcel. There is a question as to whether the map accurately reflects the relevant boundaries. We do not need to resolve that question because this opinion concludes that all of the chains of title lead to the Lehmanns as the owners of all of the disputed parcel. We use this map to show what the trial court did and to give the reader a rough sense of what the disputed parcel and its three parts look like.

      The Lehmanns also raise an issue related to the trial court's order dissolving a stay and directing disbursement of funds held in the registry of the court that only indirectly relates to the title determinations that are the subject of this opinion. Because of our reversal on the substantive issue, that portion of the final judgment must also be reversed. To the extent the final judgment also made other findings, such as those related to adverse possession, those portions of the judgment were not challenged, and we affirm them without further comment.

      The same principle is true when such a street is bounded on one side by navigable waters except that titleholder of the abutting, nonsubmerged land on the other side of the dedicated street holds title to the entire street. See Bonifay v. Dickson, 459 So.2d 1089, 1095-96 (Fla. 1st DCA 1984).

      The term reversion or reversionary interest is used in multiple ways by the parties here. As relevant to our analysis, a reversion or reversionary interest is simply "[a] future interest left in the transferor or successor in interest," and any property interest becomes vested when "the right to its enjoyment, either present or future, is not subject to the happening of a condition precedent." Interest , Black's Law Dictionary (10th ed. 2014).

      We are not tasked with deciding whether the County constructed or maintained the roadway so as to claim a dedicated interest by way of the related statutes, see Chackal v. Staples, 991 So.2d 949 (Fla. 4th DCA 2008), but we do note that disputes over the County's claims to Gulf Avenue have occurred over the years and were resolved when the County vacated its claims to that roadway in 1983. Accordingly, even if original, vested adjacent-land title did not pass at the times those adjacent lands were conveyed, section 177.085, and its predecessor-section 341.66-would still mandate that the title to the land under Gulf Avenue be conveyed to the abutting property owners by way of the reversionary interest that vested following that vacation unless a competing claim of title was made under that statute, which did not occur here.

      The parties have not argued that reserved riparian rights associated with either the original Bayou Louise or the current Gulf of Mexico affect the determination of title to the Gulf Avenue parcel.


author: Weiss, Daliah H., Associate Judge.

text:
    Earl L. BOGGESS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1943
    District Court of Appeal of Florida, Fourth District.
    April 10, 2019
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Melynda L. Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Weiss, Daliah H., Associate Judge.

Earl Boggess appeals his conviction and life sentence for one count of second-degree murder with a firearm, raising four issues on appeal. First, he argues the trial court erred in prohibiting him from introducing two prior consistent statements to rebut the state's charge of recent fabrication. Second, he contends the state's closing argument contained improper burden-shifting arguments requiring reversal. We affirm as to the first and second issues for the reasons discussed below. As to the third and fourth issues, we affirm without discussion.

Boggess was charged with second-degree murder with a firearm for the shooting of his wife, Kathryn "Kathy" Boggess. The two were alone in their home when the shooting occurred. Throughout the course of the proceedings, Boggess maintained that he had accidentally shot Kathy while cleaning a revolver.

About one hour before the shooting, Boggess, Kathy, his brother-in-law, and his sister-in-law were at a bar. According to his brother-in-law, Boggess threw an empty plate up against the bar and seemed angry or upset while he was there. At one point, another bar patron walked by and asked Kathy whether she and Boggess were still together. The brother-in-law claims that Kathy responded by saying "regrettably," which made Boggess "very upset" and visibly "angry." The sister-in-law did not recall such an exchange, nor did the bartender notice Boggess looking angry. Boggess denied having any issues with Kathy at the bar and said Kathy never told the other patron that they were "regrettably" still together.

Boggess and Kathy then returned home. According to Boggess, Kathy had wanted to go shooting the next day, so he went to prepare their guns while she cooked dinner. He took two guns-a revolver and a semiautomatic pistol-from his gun safe and laid them on the kitchen's island counter.

Boggess explained that he had been taught to keep his guns on what was referred to at trial as "cowboy safety." This method involved leaving just one of the revolver's cylinders empty and leaving the gun on the empty cylinder to ensure it did not accidentally fire a live round. Boggess claimed that as he prepared to clean the revolver, he pulled the hammer back and, to his surprise, noticed the gun was on a live round instead of an empty cylinder.

He testified that, upon hearing his surprised reaction, Kathy walked over from the stove to the opposite side of the island counter and grabbed ahold of his hand and the body of the gun. Boggess offered:

And I can't pull down with the gun because the counter's in my way. I can't go right or left because her hands are holding it, so I started going up. I can't pull it back. It'd be stupid to pull it back; I'm still pointing at her. So I started pulling the gun up and I was hollering at her and I was telling her, let go, you know, Kathy. And the gun went off. We stood there, both of us, just looked at each other for a second. Then she reached for me. I was reaching for her. She fell to the floor.

Boggess then called 911.

Boggess's recorded 911 call was played into the record at trial. The call began with him saying, "Why'd you make me do this, Kathy?" After notifying the dispatcher of the shooting and providing his address, Boggess placed the phone down with the dispatcher still on the line. In the background, he can be heard slapping something and asking Kathy to talk to him. He then said, "No respect," and "You fucked with the wrong man, bitch."

When police arrived, Boggess refused their orders to drop the revolver. At several points during his standoff with police, Boggess told the officers to get help for his wife. He confessed to the officers he had "fucked up" and shot his wife. He also repeatedly asked the police to shoot him. He told them they "don't even want to know" what happened and asked them if they had a report to fill out.

One of the officers described Boggess as being "indifferent, but direct" during the encounter. Another described him as "obstinate" and "matter of fact." Eventually, Boggess sat down at the patio table, began smoking a cigarette, and raised the revolver to his head. Seeing this, an officer fired a beanbag round that knocked the gun out of Boggess's hand and caused him to fall to the ground. The officers then arrested Boggess. One of the arresting officers noted that Boggess smelled strongly of alcohol.

Boggess's defense at trial was that the shooting was accidental. He offered explanations for several of his initial statements on the date of the shooting. He testified that he referred to his wife as a "bitch" on the 911 call in an affectionate manner, explaining that her nickname for him was "asshole," intimating this is how they referred to one another at home and that these were just nicknames. He went on to explain the statement of "you fucked with the wrong man, bitch" as him referring to his wife as accident-prone and said that he felt apologetic towards her and "wasn't himself" when he made the statements.

Boggess then explained that Kathy grabbed his hand and the gun and that he was trying to get it away from her. The state had questioned its forensic witnesses about where one would expect to find stippling if Kathy had been holding the body of the gun when it went off. Specifically, the state argued that Boggess changed his testimony based on the forensic witnesses' testimony about stippling. In a later demonstration, Boggess said he did not recall whether Kathy had reached for the gun or his hand, but that she tried to pull up his wrist to look at the gun.

While cross-examining Boggess, the state highlighted that Boggess sat through the trial and had the opportunity to listen to all of the witnesses' testimony. The state argued that Boggess changed his testimony after listening to his lawyer's opening statements and the testimony of the state's witnesses. The state also pointed out that Boggess never referred to the shooting as an accident in his 911 call. Boggess testified that, while he was unsure whether he actually used the word "accident" on the 911 call, he did tell the officers several times that the shooting was an accident.

On redirect examination, the defense sought to introduce three prior statements of Boggess where he referred to the shooting as an accident. Boggess argued the statements were admissible to rebut the state's charge of recent fabrication characterizing the shooting as an "accident." The trial court permitted the first statement and prohibited the other two. The first statement was made to police during a post-arrest interview the day of the shooting. The second statement was an undated letter from Boggess to his family where he referred to the shooting as an "awful accident." The third statement was made to Boggess's son during a jail visit after Kathy's funeral. The parties do not dispute that the last two occurred well after the day of shooting.

The standard of review for a lower court's ruling on the admission or exclusion of evidence is abuse of discretion, and that discretion is limited by the rules of evidence. Alexander v. State , 103 So.3d 953, 954 (Fla. 4th DCA 2012). The admission of prior consistent statements is within the sound discretion of the court. See Jenkins v. State , 547 So.2d 1017, 1020 (Fla. 1st DCA 1989).

Under the Florida rules of evidence, a statement may be admitted as non-hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement and the statement is "[c]onsistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication ." § 90.801(2)(b), Fla. Stat. (2016) (emphasis added); see also Chandler v. State , 702 So.2d 186, 197-98 (Fla. 1997).

Clearly, in this case, the state suggested that Boggess fabricated his trial testimony. The state argued that Boggess did not use the word "accident" on the date of the shooting and arrest. Specifically, the state asked: "Now, the entire time that the police are at you[r] residence while you were sitting on the back porch, drinking beer, did you ever tell any of the officers this was a horrible, terrible accident?" The prosecutor went on to ask whether Boggess mentioned the word "accident" to various police officers who responded to the shooting on the same day.

The first statement was made on the same date as the shooting in a post-arrest interview. Boggess stated during this interview that the shooting was an accident. The trial court was well within its bounds in admitting this statement, as what the prosecutor raised on cross-examination went directly to Boggess's interactions with the police on the date of the shooting. This statement was consistent with Boggess's testimony at trial and was properly offered to rebut the charge that he fabricated his accidental shooting theory after sitting through trial listening to all of the other witnesses' testimony. See § 90.801(2)(b), Fla. Stat.

The statements made in Boggess's letter and statements made to his son during a jail visit were made significantly after the date of the shooting, allowing more time for reflection, as noted by the trial court. The trial court found that these statements went beyond events of the date in question and were therefore not relevant to what was very specifically raised by the prosecution on cross-examination. The state pointed out in its arguments to the trial court that it limited its cross-examination to Boggess's characterization of the shooting as an accident on the 911 call and his statements to police that day. These later two statements could have resulted from Boggess having time to develop a motive to fabricate. While the exact dates of the jail visit by the son and the letter are not known, it is clear these statements were made well after the date of the shooting and initial investigation. The trial court correctly exercised its discretion in excluding both the statements in the letter and the statements from Boggess's jail visit with his son. See § 90.801(2)(b), Fla. Stat.

During closing arguments, the state made three remarks at issue in this appeal. Boggess argues that based on the state's repeated comments that he "couldn't prove" his theory of innocence, he was in essence deprived of a fair trial, as the state improperly shifted the burden of proof to the defense. We outline the remarks below.

"In the beginning, you heard that the stippling on her hand, on the back of her right hand was created by the cylinder gap [between the barrel of the gun and the cylinder], but I guess that's no longer the case. But also remember this. It's not good enough just to say this is an accident. Not good enough ."

The defense objected to this comment on the grounds of burden shifting, and the court overruled the objection.

"Remember the law. There's that element in excusable homicide that does have the word accident in there. But it's not just sufficient to prove, and they haven't in this case and not, and they won't, but they can't just prove an accident. The other elements of that crime also have to fit in order to find that excusable homicide applies. Then remember, the key phrase that was in there was usual ordinary care. And they can't just, they can't, just can't prove that ."

The defense again objected to burden shifting. In response, the trial court, with agreement of defense counsel, gave a curative instruction: "Just, just to clear up going back and forth, it's the State's burden to prove the case beyond a reasonable doubt. So just, that's what we're talking about."

"No respect. The victim in this case, Kathy Boggess, by all accounts from this case, she was a sweet person. And there were some allegations about who made it happen. She didn't make this happen. It wasn't her. It was all him. Kathy was a great cook. She was sweet. And she might have been fast too. But she wasn't that fast. When you pull the trigger, that instantaneously goes off. When she grabbed, when he says he grabbed her hand and pulled on there, they're desperately trying to get that hand now away from that gun, but they can't do it ."

The defense objected again that the state improperly shifted the burden, and the court overruled the objection.

This court reviews a trial court's ruling on prosecutorial closing comments for an abuse of discretion. Pierre v. State , 88 So.3d 354, 355 (Fla. 4th DCA 2012). In deciding whether to reverse for improper closing comments, the court "examines the totality of the errors in the closing argument and determines whether the cumulative effect of the numerous improprieties" deprived the defendant of a fair hearing. Card v. State , 803 So.2d 613, 622 (Fla. 2001). Improper burden-shifting comments are also subject to harmless error review. Lenz v. State , 245 So.3d 795, 797-98 (Fla. 4th DCA 2018).

"[I]t is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt." Gore v. State , 719 So.2d 1197, 1200 (Fla. 1998). The state is permitted, however, to "lawfully respond that the defense argument is not what the evidence shows ...." Austin v. State , 700 So.2d 1233, 1235 (Fla 4th DCA 1997). Similarly, the prosecution may argue that "based on the evidence of the case, [the jury] should question the plausibility of the defense's theory of the case[.]" Valentine v. State , 98 So.3d 44, 56 (Fla. 2012).

This court reviews all three statements in the context in which the statements were made. Merck v. State , 975 So.2d 1054, 1062 (Fla. 2007). The comments, when taken in context, were an explanation of the lack of evidence supporting Boggess's theory of defense. See Austin , 700 So.2d at 1235. The statements were permissible attacks by the prosecution on the defense's "accident" theory, reminding the jury that just saying the shooting was an accident did not amount to a valid defense. All three comments permissibly highlighted the state's position that this shooting was no accident and that the defense's evidence did not support its arguments.

The second remark was confusing and inaccurate in that the state repeatedly used the word "prove" when referring to the defense case. However, upon objection, the trial court gave a curative instruction with the consent of defense counsel, thereby curing any potential for confusion or error. This court has previously found that an immediate curative instruction on the burden of proof may be sufficient to clarify an issue at bar and remove any confusion. Thomas v. State , 726 So.2d 369, 372 (Fla. 4th DCA 1999).

Based on the trial court's curative instruction, the comments taken in context, and the record as a whole, we find that the remarks were not improper. Furthermore, any error would be harmless. See Lenz , 245 So.3d at 797-98.

Therefore, we affirm all issues.

Affirmed .

Warner and Gross, JJ., concur.