text:
    N.A., the mother, Appellant, v. DEPARTMENT OF CHILDREN & FAMILIES and Guardian Ad Litem Program, Appellees.
    No. 4D18-3374
    District Court of Appeal of Florida, Fourth District.
    [March 20, 2019]
    Antony P. Ryan, Regional Counsel, and Paul O'Neil, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Andrew Feigenbaum of Children's Legal Services, West Palm Beach, and Laura J. Lee of Florida Statewide Guardian ad Litem Program, Tallahassee, for appellees.
   Gerber, C.J.

The mother appeals from the circuit court's "Order of Adjudication, Disposition, Acceptance of Case Plan, and Termination of Supervision and Jurisdiction." The order required the mother to complete a "maintain and strengthen" case plan, even though the order permanently placed the child with the father and terminated jurisdiction.

The mother argues that the circuit court's order was improper as a matter of law for two reasons: (1) by placing the child with the father and terminating jurisdiction, the circuit court lacked any statutory authority to require the mother to complete a case plan; and (2) if the circuit court's intent was to require the mother to complete a case plan after having placed the child with the father, then the circuit court could not require the mother to complete a "maintain and strengthen" case plan.

We agree with both arguments and reverse.

Procedural History

The Department filed a shelter petition seeking to remove the child from the mother's custody due to domestic violence occurring in the child's presence between the mother and her boyfriend, as well as the other issues regarding the mother's behavior.

The circuit court entered an order finding probable cause to remove the child from the mother's custody. The circuit court later entered an order placing the child with the biological father, who lived elsewhere in the state.

The Department filed a dependency petition based on the same allegations contained in the shelter petition. The mother executed a written consent to the dependency petition.

The Department proposed a "maintain and strengthen" case plan for the mother, even though the child had been placed with the father. The case plan included five tasks: (1) complete parenting classes; (2) maintain safe and stable housing; (3) complete domestic violence therapy and education; (4) complete a mental health evaluation and any recommended treatment; and (5) visit her case manager at least once per week.

The circuit court held a dependency hearing. At the hearing, the Department presented the "maintain and strengthen" case plan. The mother objected to the "maintain and strengthen" case plan, and instead requested reunification as the case plan's goal.

At the end of the dependency hearing, the circuit court entered an order adjudicating the child dependent, directing that the child's placement continue with the father, and permitting the mother to have supervised visitation with the child. The circuit court's order noted: "The Case Plan is currently under development and will be submitted and presented to the Court for acceptance at a later date." The circuit court also requested the parties to provide case law regarding the Department's case plan goal and termination request.

At a later "case plan acceptance" hearing, the Department requested the circuit court to enter a final order: (1) permanently placing the child with the father, (2) terminating jurisdiction, and (3) requiring the mother to complete the "maintain and strengthen" case plan.

The mother again objected to the Department's request. The mother argued that Chapter 39, Florida Statutes (2018), mandated that if the circuit court intended to permanently place the child with the father and terminate jurisdiction, then the circuit court could not require the mother to complete a case plan which the circuit court was not overseeing. The mother further argued that if the circuit court intended to order the mother to complete a case plan, then the case plan's goal must be reunification, not "maintain and strengthen," and the court must keep jurisdiction to oversee the case plan.

The circuit court initially appeared to understand the mother's argument. The circuit court asked the Department's counsel:

[I]f we go ahead and use ... what your interpretation of the statute is, mom goes ahead and completes a case plan, everything has been closed out, but there really is no bite to maintain and strengthen because now mom has to go back in, fight out in family court whether or not she should have her child back.

The Department responded that if the circuit court permanently placed the child with the father, then Chapter 39 mandated the circuit court must terminate jurisdiction. The Department later argued that the reason for ordering the mother to complete the "maintain and strengthen" case plan, even if the circuit court permanently placed the child with the father and terminated jurisdiction, was as follows:

[I]n order for mom to have a change in family court, she has to be able to establish a substantial change in circumstances. When she petitions family court for modification, she has case plan in hand and says, here, I've now remedied the circumstances that caused the Department to get involved in my life to begin with. That's the substantial change in circumstances ... what she needs to be able to get into family court. So it is really important to have a good, well thought out case plan at the time the Court terminates supervision and jurisdiction.

The circuit court apparently was convinced by the Department's argument. The circuit court orally stated that it was going to permanently place the child with the father, terminate jurisdiction, and yet order the mother to complete the "maintain and strengthen" case plan. Similar to the Department, the circuit court told the mother:

And what does that ultimately mean at this point in time, mom? Well, here's the deal, [the] Department's gonna be out of your life, okay. They've made the referral [for services], you're doing all of your things. Complete those things and as silly as it might sound, you're gonna walk from this courtroom to the courtroom across the hall or in 60 days this courtroom [and] ... file for reunification with your child.

The circuit court later codified its oral pronouncement in an "Order of Adjudication, Disposition, Acceptance of Case Plan, and Termination of Supervision and Jurisdiction."

This Appeal

This appeal followed. The mother argues that the circuit court's order was improper as a matter of law for two reasons: (1) by placing the child with the father and terminating jurisdiction, the circuit court lacked any statutory authority to require the mother to complete a case plan; and (2) if the circuit court's intent was to require the mother to complete a case plan after having placed the child with the father, then the circuit court could not require the mother to complete a "maintain and strengthen" case plan.

Ordinarily, "[a] termination of protective supervision order is reviewable under an abuse of discretion standard." T.S. v. Guardian Ad Litem , 49 So.3d 341, 341 (Fla. 4th DCA 2010). However, because it appears the circuit court's order, and the mother's arguments on appeal, both rest upon the interpretation of Chapter 39's requirements, our review is de novo. See State, Dep't of Children & Families v. B.D. , 102 So.3d 707, 709 (Fla. 1st DCA 2012) (statutory interpretation of section 39.621 is reviewed de novo).

Applying de novo review, we agree with the mother's arguments on appeal. We address each argument in turn.

1. After the Circuit Court Removed the Child from the Mother, the Circuit Court Lacked Statutory Authority to Both Terminate Jurisdiction and Order the Mother to Complete a Case Plan

When a court decides to place a dependent child with the non-offending parent, Chapter 39 provides a court with two options which are exclusive to one another. Those options are provided in section 39.521(3)(b), Florida Statutes (2018), which states, in pertinent part:

If there is a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the jurisdiction of the court who desires to assume custody of the child, the court shall place the child with that parent upon completion of a home study, unless the court finds that such placement would endanger the safety, well-being, or physical, mental, or emotional health of the child.... If the court places the child with such parent, it may do either of the following :
1. Order that the parent assume sole custodial responsibilities for the child. The court may also provide for reasonable visitation by the noncustodial parent. The court may then terminate its jurisdiction over the child.
2. Order that the parent assume custody subject to the jurisdiction of the circuit court hearing dependency matters. The court may order that reunification services be provided to the parent from whom the child has been removed, that services be provided solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court jurisdiction, or that services be provided to both parents, in which case the court shall determine at every review hearing which parent, if either, shall have custody of the child. The standard for changing custody of the child from one parent to another or to a relative or another adult approved by the court shall be the best interest of the child.

§ 39.521(3)(b), Fla. Stat. (2018) (emphasis added).

Here, the circuit court erred because it proceeded under both subsections (3)(b)1. and (3)(b)2. by placing the child with the father and terminating jurisdiction, and requiring the mother to complete a case plan. According to the statute, the circuit court was required to proceed under either subsection (3)(b)1. or subsection (3)(b)2.

We recognize that section 39.521(3)(b)'s use of the phrase "may do either," taken by itself, may be interpreted to mean "may do either but not both " or "may do either or both ."

However, we conclude that 39.521(3)(b)'s use of the phrase "may do either," when taken in context of the two options which follow, logically can be interpreted only as "may do either but not both ." That is because the two options, on their face, are exclusive to one another. See Forsythe v. Longboat Key Beach Erosion Control Dist. , 604 So.2d 452, 455 (Fla. 1992) ("It is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole.") (emphasis in original).

Under the first option, the non-offending parent assumes sole custodial responsibilities for the child, the noncustodial parent may be given visitation, neither parent receives services, and the circuit court may terminate its jurisdiction over the child.

Under the second option, the non-offending parent assumes custody subject to the circuit court's continuing jurisdiction, during which the circuit court may order that services be provided to either parent or both, with the circuit court later determining which parent shall have custody of the child.

Our conclusion that section 39.521(3)(b)'s use of the phrase "may do either" logically can be interpreted only as "may do either but not both" is consistent with the Fifth District's conclusion on this issue. In K.E. v. Department of Children and Families , 958 So.2d 968 (Fla. 5th DCA 2007), our sister court summarized section 39.521(3)(b) as follows:

[O]nce the trial court decides to place the dependent child with a non-offending parent, it may do one of two things : it may order the non-offending parent to assume sole custodial responsibility and terminate its jurisdiction over the child, or the court may place the child with the non-offending parent, provide services to one or both parents, and retain jurisdiction to determine the better placement for the child as the dependency progresses.

Id. at 971 (emphasis added).

Our conclusion that 39.521(3)(b)'s use of the phrase "may do either" logically can be interpreted only as "may do either but not both ," also is consistent with common sense. By terminating jurisdiction while ordering the mother to complete a case plan, the court lacked any mechanism to oversee the mother's completion of the case plan. The circuit court initially appeared to understand the lack of logic to such an outcome, commenting "there really is no bite" if the circuit court were to terminate jurisdiction while ordering the mother to complete a case plan.

It appears the Department's response to the circuit court's question on this issue led the circuit court astray, by convincing the circuit court that the mother's attempt to complete the case plan without court supervision would aid the mother in regaining custody at a later date. While ordering the mother to complete a case plan without court supervision may have been intended to aid the mother, such an order nevertheless lacked statutory authority once the court placed the child with the father and terminated jurisdiction.

In the answer brief, the Department, perhaps sensing the possibility of error, nevertheless argues that any error was harmless because "[the circuit court's] approval of the maintain and strengthen case plan only benefitted the Mother. Also, because the [circuit] court terminated supervision and jurisdiction, the Mother is not legally obligated to comply with the services and tasks provided for her in the approved maintain and strengthen case plan if she does not wish to do so." (internal citations omitted).

We conclude the error was not harmless. After the circuit court placed the child with the father and terminated jurisdiction, the circuit court plainly lacked the statutory authority to order the mother to complete a case plan. The case plan order also may have been confusing to the mother, because the order was premised on the unsubstantiated suggestion that completing the case plan, without the circuit court's supervision, would assist the mother to obtain a future modification from a different court. Cf. A.L. v. Dep't of Children & Families , 53 So.3d 324, 328 (Fla. 5th DCA 2010) ("[T]he possibility of a future modification is not an excuse for utilizing confusing goals and procedures and failing to allow a parent a reasonable opportunity to complete a case plan.").

2. After the Circuit Court Removed the Child from the Mother, the Circuit Court Lacked Statutory Authority to Require the Mother to Complete a "Maintain and Strengthen" Case Plan

If the circuit court had correctly followed its initial instinct to keep jurisdiction in order to require the mother to complete a case plan, then the court nevertheless lacked the statutory authority to require the mother to complete a "maintain and strengthen" case plan after having removed the child from the mother and placing the child with the father.

Section 39.621(2), Florida Statutes (2018), authorizes a "maintain and strengthen" case plan in only three circumstances:

(a) If a child has not been removed from a parent , even if adjudication of dependency is withheld, the court may leave the child in the current placement with maintaining and strengthening the placement as a permanency option.
(b) If a child has been removed from a parent and is placed with the parent from whom the child was not removed , the court may leave the child in the placement with the parent from whom the child was not removed with maintaining and strengthening the placement as a permanency option .
(c) If a child has been removed from a parent and is subsequently reunified with that parent , the court may leave the child with that parent with maintaining and strengthening the placement as a permanency option.

§ 39.621(2), Fla. Stat. (2018) (emphasis added).

Here, subsection (2)(a) does not apply because the child had been removed from the mother. Subsection (2)(c) does not apply because the child has not been reunified with the mother.

That leaves subsection (2)(b). Subsection (2)(b)'s first clause initially appears tempting as a means to order a "maintain and strengthen" case plan for the mother, as subsection (2)(b) may be applied "[i]f a child has been removed from a parent and is placed with the parent from whom the child was not removed," which occurred here.

However, subsection (2)(b)'s second clause does not provide the means to order a "maintain and strengthen" case plan for the mother. The second clause provides that "the court may leave the child in the placement with the parent from whom the child was not removed with maintaining and strengthening the placement as a permanency option ." Applied here, subsection (2)(b)'s second clause authorizes a "maintain and strengthen" case plan for the father, because the child has been placed with the father, not with the mother .

Thus, if the circuit court's intent was to require the mother to complete a case plan after having placed the child with the father, the court lacked statutory authority to order a "maintain and strengthen" case plan for the mother. Rather, a case plan in the form which the court ordered - requiring the mother to complete parenting classes, maintain safe and stable housing, complete domestic violence therapy and education, complete a mental health evaluation and any recommended treatment, and visit her case manager at least once per week - may have been better couched as a "reunification" case plan.

Conclusion

Based on the foregoing, we reverse the circuit court's "Order of Adjudication, Disposition, Acceptance of Case Plan, and Termination of Supervision and Jurisdiction." On remand, if the circuit court maintains its decision to have the child placed with the father and terminate jurisdiction, then the circuit court shall not order the mother to complete a case plan. However, if the circuit court's intent is to require the mother to complete a case plan, then the circuit court must maintain jurisdiction and oversee a case plan permitted under Chapter 39. In reaching our decision, we take no position on which action the circuit court should pursue.

Reversed and remanded.

Taylor and KUNTZ, JJ., concur.


source: Caselaw Access Project

author: Damoorgian, J.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Christopher WALK, Appellee.
    No. 4D18-921
    District Court of Appeal of Florida, Fourth District.
    [March 20, 2019]
    Ashley B. Moody, Attorney General, Tallahassee, and Marc B. Hernandez, Assistant Attorney General, West Palm Beach, for appellant.
    Joshua LeRoy of LeRoy Law, P.A., West Palm Beach, for appellee.
    ON MOTION FOR CLARIFICATION
   Damoorgian, J.

We grant the motion for clarification, withdraw our previous opinion, and substitute the following.

The State appeals the trial court's order removing the mandatory probation condition preventing Christopher Walk from having unsupervised contact with a child under the age of eighteen more than sixty days after the sentence was imposed. Because the trial court failed to comply with section 948.30(e), Florida Statutes, it lacked the authority to remove the mandatory condition. We therefore quash the order modifying Walk's probationary sentence and remand the case.

The State charged Walk with thirty-four counts of possessing, controlling, or intentionally viewing a photograph showing sexual conduct by a child. Walk pled guilty to three of the counts and the State agreed to nolle prosse the remaining counts. In January 2017, Walk was sentenced to eighteen months in prison followed by ten years of supervised sex offender probation. As a mandatory condition of probation, Walk was prohibited from having unsupervised contact with a child under the age of eighteen. See § 948.30(1)(e), Fla. Stat. (2015) (for probationers who are placed under supervision for violation of section 827.071, one of the conditions that the court must impose is "a prohibition on contact with a child under the age of [eighteen]" if the victim was under the age of eighteen).

In February 2018, more than one year after the imposition of the original sentence and before the start of the probationary portion of the sentence, Walk moved for clarification of the probation condition regarding no unsupervised contact with a child under the age of eighteen. Although titled a motion to "clarify," Walk was essentially asking the court to modify the probationary portion of his sentence by removing that condition so that he could live in the same house as his wife and two minor children after his release from prison. Following a brief hearing on Walk's motion, which the court treated as a motion to modify probation, the court granted the motion over the State's objection and removed that condition of probation.

Section 948.03(2), Florida Statutes, generally allows a trial court to rescind or modify the terms and conditions of probation at any time. But, the trial court was not authorized to remove a mandatory condition of probation. See State v. Springer , 965 So.2d 270, 272-73 (Fla. 5th DCA 2007).

Section 948.30(1)(e) provides:

(e) If the victim was under the age of 18, a prohibition on contact with a child under the age of 18 except as provided in this paragraph. The court may approve supervised contact with a child under the age of 18 if the approval is based upon a recommendation for contact issued by a qualified practitioner who is basing the recommendation on a risk assessment. Further, the sex offender must be currently enrolled in or have successfully completed a sex offender therapy program. The court may not grant supervised contact with a child if the contact is not recommended by a qualified practitioner and may deny supervised contact with a child at any time. When considering whether to approve supervised contact with a child, the court must review and consider the following:
1. A risk assessment completed by a qualified practitioner. The qualified practitioner must prepare a written report that must include the findings of the assessment and address each of the following components:
a. The sex offender's current legal status;
b. The sex offender's history of adult charges with apparent sexual motivation;
c. The sex offender's history of adult charges without apparent sexual motivation;
d. The sex offender's history of juvenile charges, whenever available;
e. The sex offender's offender treatment history, including consultations with the sex offender's treating, or most recent treating, therapist;
f. The sex offender's current mental status;
g. The sex offender's mental health and substance abuse treatment history as provided by the Department of Corrections;
h. The sex offender's personal, social, educational, and work history;
i. The results of current psychological testing of the sex offender if determined necessary by the qualified practitioner;
j. A description of the proposed contact, including the location, frequency, duration, and supervisory arrangement;
k. The child's preference and relative comfort level with the proposed contact, when age appropriate;
l. The parent's or legal guardian's preference regarding the proposed contact; and
m. The qualified practitioner's opinion, along with the basis for that opinion, as to whether the proposed contact would likely pose significant risk of emotional or physical harm to the child.
The written report of the assessment must be given to the court....
2. A recommendation made as a part of the risk assessment report as to whether supervised contact with the child should be approved;
3. A written consent signed by the child's parent or legal guardian, if the parent or legal guardian is not the sex offender, agreeing to the sex offender having supervised contact with the child after receiving full disclosure of the sex offender's present legal status, past criminal history, and the results of the risk assessment. The court may not approve contact with the child if the parent or legal guardian refuses to give written consent for supervised contact;
4. A safety plan prepared by the qualified practitioner, who provides treatment to the offender, in collaboration with the sex offender, the child's parent or legal guardian, if the parent or legal guardian is not the sex offender, and the child, when age appropriate, which details the acceptable conditions of contact between the sex offender and the child. The safety plan must be reviewed and approved by the court; and
5. Evidence that the child's parent or legal guardian understands the need for and agrees to the safety plan and has agreed to provide, or to designate another adult to provide, constant supervision any time the child is in contact with the offender.
The court may not appoint a person to conduct a risk assessment and may not accept a risk assessment from a person who has not demonstrated to the court that he or she has met the requirements of a qualified practitioner as defined in this section.

(emphasis added).

Here, the trial court eliminated the mandated condition of "no contact" without considering the statutorily-required prerequisites for allowing even supervised visitation. For this reason, we must reverse.

As a petition for writ of certiorari is the proper vehicle by which to challenge a trial court's order modifying a sentence, we treat the State's appeal as a petition for writ, grant the petition, and quash the order modifying Walk's probationary sentence. See State v. Williams , 780 So.2d 1031, 1032 (Fla. 1st DCA 2001) ; State v. Blue , 603 So.2d 648, 649 (Fla. 5th DCA 1992).

Because we decide this case on the authority of the trial court to eliminate a statutorily-mandated condition, we need not address the alternative argument that the trial court lacked jurisdiction to modify probation more than sixty days after the imposition of the sentence.

For the reasons expressed above, we grant the petition and remand the case to the trial court to either comply with the dictates of section 948.30 or reinstate the condition.

Gross and May, JJ., concur.


author: Per Curiam.

text:
    Lorenzo A. ALLEN, Appellant, v. HABITAT II CONDOMINIUM, INC., a Florida not-for-profit corporation, Appellee.
    No. 4D18-1517
    District Court of Appeal of Florida, Fourth District.
    [March 27, 2019]
    Lorenzo A. Allen, Parkland, pro se.
    Tara N. Mulrey of Katzman Chandler, Fort Lauderdale, for appellee.
   Per Curiam.

Lorenzo A. Allen appeals an order denying in part his Florida Rule of Civil Procedure 1.540 motion to vacate a foreclosure judgment and to set aside the sale. He argues the judgment is void because he did not have notice of the final hearing. He also argues that the trial court erred in denying his rule 1.540 motion without an evidentiary hearing. We agree that he is entitled to an evidentiary hearing.

Habitat II Condominium, Inc. (Habitat) filed a complaint against Allen and other owners of a condominium to foreclose a lien for $ 3,460 in unpaid assessments. Allen was served with the complaint by substitute service on his daughter at his residence. He did not answer. Habitat moved for default and, later, summary judgment. The motions and the notices of hearing were mailed to a different address. Allen did not appear at the final hearing, the trial court entered a foreclosure judgment, and the property was sold.

Just over a year after the final judgment, Allen filed a verified rule 1.540 motion arguing that his due process rights were violated by mailing the motions and notices of hearing to the wrong address, which rendered the judgment void. Without holding an evidentiary hearing, the trial court denied the motion in part, simply stating that the judgment stands, but a hearing will be set as to amounts. The order does not include any findings or any explanation.

On appeal Allen argues that the judgment was void and the court erred in denying his rule 1.540 motion without an evidentiary hearing. Habitat did not file an answer brief.

"It is well settled that a judgment entered without notice to a party is void." Taylor v. Taylor , 67 So.3d 359, 362 (Fla. 4th DCA 2011) (quoting Watson v. Watson , 583 So.2d 410 (Fla. 4th DCA 1991) ); see also Wells Fargo Bank, N.A. v. Michaels , 166 So.3d 226, 227 (Fla. 5th DCA 2015) ; Touloute v. City of Fort Lauderdale , 80 So.3d 1129 (Fla. 4th DCA 2012).

Allen's motion stated a colorable claim of entitlement to relief and should not have been denied without an evidentiary hearing. See Jones v. Gov't Employees Ins. Co. , 192 So.3d 614, 615 (Fla. 4th DCA 2016) ; Schuman v. Int'l Consumer Corp. , 50 So.3d 75, 77 (Fla. 4th DCA 2010).

Accordingly, we reverse and remand for an evidentiary hearing on Allen's claim that he did not have notice of the final hearing.

Reversed and remanded.

Gerber, C.J., Taylor and Conner, JJ., concur.


author: May, J.

text:
    E.M., a Child, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D17-3557 4D17-3568 4D17-3566 4D17-3564 4D17-3563 4D17-3561 4D17-3560 4D17-3558
    District Court of Appeal of Florida, Fourth District.
    [March 27, 2019]
    Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellee.
   May, J.

A juvenile appeals a disposition order that includes a five-day detention sanction for direct criminal contempt. He argues: (1) the evidence does not support a direct criminal contempt finding; (2) the court erred in departing from the Department of Juvenile Justice's ("DJJ") recommended disposition; and (3) the court erred in failing to make the required findings in a written contempt order. We affirm on issues one and two, but we agree with him on issue three. We reverse and remand the case to the trial court for entry of a written order on the direct criminal contempt finding.

The twelve-year-old juvenile pleaded no contest to four cases and was placed on probation. The following week, he admitted to violating probation in those cases, and entered a no contest plea to four new substantive offenses. While awaiting his disposition hearing, the juvenile was arrested for a curfew violation and attended a detention hearing.

At the hearing, the court found probable cause for the probation violation based on the arrest affidavit. The State recommended secure detention until the disposition hearing. Defense counsel requested the juvenile be released to home detention with an electronic monitor.

At that point, the juvenile said something indiscernible. The judge then reminded him that he had just pleaded to four cases the week before and was back for having tampered with the electronic monitor. The judge advised him that he was going to securely detain him for twenty-one days to keep him out of trouble until his disposition hearing for his own good.

Immediately following that decision, the juvenile engaged in a verbal exchange with the trial court, which resulted in the court declaring the juvenile to be in direct criminal contempt. The trial court allowed the juvenile to explain why the contempt finding should not be entered and to mitigate the sanction. The court then signed a detention order placing the juvenile in secure detention for twenty-one days with an additional five days for direct criminal contempt. The trial court did not enter a written contempt order containing the requisite findings.

The DJJ completed a predisposition report, which recommended adjudication of delinquency and placement in a non-secure residential program, followed by post-commitment probation. At the disposition hearing, the State requested the trial court depart from the DJJ's recommendation in favor of a high-risk placement. Defense counsel argued against the departure, reminding the court of the rehabilitative purpose of juvenile justice and the juvenile's young age.

The court ordered the juvenile to a high-risk residential program. The court then explained the reasons for its departure from the DJJ's recommendation and subsequently entered a written order detailing the reasons for its departure. The order noted:

The record before the court also established that [the juvenile] was uncontrollable by his father, grandmother or JPO and during the numerous times before the court he shared little to no discernable remorse for his actions. While he was on probation he was detained in the detention center on at least six secure detention orders and on October 9, 2017, after entering an open plea to the court, [the juvenile] was held in direct criminal contempt for his conduct in court.

The court identified five findings from the DJJ recommendation that did not support the non-secure placement:

1. Level of Risk to Re-offend: "High."
2. The youth is noncompliant with all services.
3. Youth is only thirteen years old, but chooses to violate all rules with every chance he gets.
4. Father is incarcerated, mother doesn't want to deal with the youth's issues as she stated that the youth refuses to listen to her and follow the rules at home.
5. Not one of the court ordered sanctions have been satisfied while the youth has been on probation.
....
Having considered the facts of each case as stated above, the continued pattern of escalating criminal behavior, the services that have been offered and failed to rehabilitate [the juvenile], the need to protect the community from future criminal acts, and the specific needs of the youth as outlined in the various evaluations completed; the court has determined that the most appropriate placement to address the youths [sic] needs is in a High Risk residential program. Simply put, this youth's needs cannot be addressed successfully in the time frame non-secure residential programs are structured. His high risk needs cannot be met in a program designed for low to moderate risk youth. The court respects the effort the Department of Juvenile Justice has put forth in preparing their recommendation for this youth, but on these specific cases, the Department has under weighed [the juvenile's] needs and the length of time, high risk programming, and high risk security of the High Risk program level is needed.

From this order, the juvenile now appeals.

We have reviewed the record and departure order entered in this case and find that the record supports the trial court's contempt finding and departure from the DJJ's recommended disposition. See Murrell v. State , 595 So.2d 1049, 1050 (Fla. 4th DCA 1992) ; E.A.R. v. State, 4 So.3d 614, 638-39 (Fla. 2009). We therefore dispense with further comment on these two issues.

There is merit, however, in the third issue raised, as acknowledged by the State. The juvenile argues the trial court erred in failing to strictly follow the procedures of Florida Rule of Criminal Procedure 3.830. Such a failure constitutes fundamental error. See A.W. v. State , 137 So.3d 521, 522 (Fla. 4th DCA 2014).

A finding of direct criminal contempt by a juvenile is governed by Florida Rule of Juvenile Procedure 8.150. The trial court must follow six steps, two of which are:

2. The judgment of guilt shall include a recital of those facts upon which the adjudication of guilt is based.
...
5. The judgment shall be signed by the judge and entered of record.

J.A.H. v. State , 20 So.3d 425, 427 (Fla. 1st DCA 2009) (quoting Fisher v. State, 482 So.2d 587, 588 (Fla. 1st DCA 1986) ). Here, the court skipped steps two and five.

"The proper remedy for a trial court's failure to strictly adhere to the requirements of Rule 3.830 is a new hearing at which the rule will be followed." Swain v. State, 226 So.3d 250, 252 (Fla. 4th DCA 2017). "Even technical errors, such as a failure to recite in the judgment those facts upon which the adjudication of guilt was based, require a reversal." Fisher , 482 So.2d at 588 ; see also J.A.H. , 20 So.3d at 428. Here, the error is in the lack of a written order.

For this reason, we reverse and remand the case to the trial court to enter the requisite written order.

Affirmed in part; reversed in part; and remanded.

Ciklin and Klingensmith, JJ., concur.


author: Ciklin, J.

text:
    James Evan GINCLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 4D18-3067
    District Court of Appeal of Florida, Fourth District.
    [March 27, 2019]
    John J. Anastasio, Stuart, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Deborah Koenig, Assistant Attorney General, West Palm Beach, for appellee.
   Ciklin, J.

James Evan Gincley, a defendant in Martin County circuit court, was denied admission into the circuit's drug court based on a Nineteenth Judicial Circuit administrative order. Gincley seeks certiorari review of the trial court's determination that he was ineligible for the circuit's treatment-based drug court program as well as the underlying administrative order which purported to deny him admission. Because the local administrative order represents a departure from the essential requirements of the law by adding a reason for exclusion from the circuit's drug court-which exclusion is not found in Florida law-we quash both the order denying Gincley admission into drug court and that portion of the administrative order that expressly conflicts with the statute.

On June 15, 2018, Gincley was charged by information with DUI and possession of heroin. The state had originally agreed to the defendant's admission into the drug court program as it related to the possession of heroin charge. Following protocol, the felony judge assigned to the case referred Gincley to drug court arraignment for observation and a general eligibility review. Drug court staff noted that Gincley had previously completed the drug court program in the Nineteenth Circuit on December 1, 2006, and because the circuit's administrative order precludes a defendant from admission into its drug court program on more than one occasion, the drug court judge entered an order denying Gincley's admission into drug court based on the administrative order. That is, despite the fact that Gincley was otherwise eligible for drug court (no prior felony convictions, not presently charged with a violent felony, not suspected of selling drugs, no prior rejection of participation after being offered drug court assistance, etc.), the local administrative order grafted additional criteria and exceptions not found in Florida law. This, a local circuit's administrative order may not do.

Section 948.08, Florida Statutes, establishes various pretrial intervention programs within the State. To be eligible for admission into a drug court program, the statute provides that a defendant must (1) be identified as having a substance abuse problem or charged with purchase or possession or other specified crimes, (2) have no prior felony convictions, and (3) not be charged with a crime involving violence. § 948.08(6)(a), Fla. Stat. (2017). The statute's two enumerated exceptions to admission are (1) if a defendant rejected a previous offer to enter drug court, or (2) if the state attorney establishes that the defendant was involved in drug dealing. Id. Gincley met all of the statutory requirements for eligibility and neither of the exceptions applied to him.

Conversely, Administrative Order 2017-04 establishes a drug court program in Martin County and reads in pertinent part:

Each defendant has only one opportunity to have their case heard in Drug Court. If a defendant is charged with a new offense and has already had a prior case heard and resolved in Drug Court, the new case will be heard in a regular criminal or juvenile division absent specific approval by the State Attorney's Office.

Administrative Order 2017-04, § 3.F. (19th Jud. Cir. Feb. 15, 2017).

The local administrative order clearly contravenes the enabling statute by adding terms and conditions that were not part of the original legislation. See Hewlett v. State , 661 So.2d 112, 115 (Fla. 4th DCA 1995) ("[T]he chief judge has exceeded his authority under both rule 2.050(b) and section 948.08(6) by issuing an administrative order which attempts to amend the pretrial intervention statute by adding terms and conditions that were not part of the original legislation."). Further, while section 948.08 provides for the establishment of a drug court program upon approval by a chief judge, Florida law does not recognize the authority of a chief judge, through the promulgation of an administrative order or otherwise, to create additional criteria or exceptions to Florida's drug court statute.

"To obtain certiorari relief, a petitioner must demonstrate that the order departs from the essential requirements of law, that it causes material injury, and that the petitioner lacks an adequate remedy on appeal." Dees v. Kidney Grp., LLC , 16 So.3d 277, 279 (Fla. 2d DCA 2009). "The third element of irreparable harm is a jurisdictional prerequisite for certiorari review." Id.

"[A] petition for certiorari is an appropriate remedy when petitioner alleges that the chief judge exceeded his jurisdiction in promulgating an administrative order." Hewlett , 661 So.2d at 114 (citing Valdez v. Chief Judge of the Eleventh Judicial Circuit , 640 So.2d 1164, 1165 (Fla. 3d DCA 1994), rev. denied , 652 So.2d 816 (Fla. 1995) ). An order "based upon the unauthorized portion of [an] administrative order" is a departure from the essential requirements of law and "meets the first prong of the test for certiorari jurisdiction ...." Hewlett , 661 So.2d at 115. Preclusion from receiving the benefit of a pretrial intervention program causes irreparable harm. Id. at 116.

Accordingly, we quash Administrative Order 2017-04 (19th Jud. Cir. Feb. 15, 2017) to the extent that it conflicts with section 948.08(6). As such, we grant the petition for writ of certiorari and quash the order under review and remand for further proceedings consistent with our holding.

Petition granted. Matter remanded for further proceedings.

Gerber, C.J., and Levine, J., concur.


author: Warner, J.

text:
    Barry KRONEN and Michelle Kronen, a/k/a Michele Kronen, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR WAMU PASS-THROUGH CERTIFICATES, SERIES 2006-AR3, Windmill Ranch Estates Maintenance Association, Inc., a/k/a Beta Maintenance Association, Inc., the Town Foundation, Inc., and Sabadell United Bank, Appellees.
    No. 4D18-1137
    District Court of Appeal of Florida, Fourth District.
    [April 3, 2019]
    Bruce K. Herman of The Herman Law Group, P.A., Fort Lauderdale, for appellants.
    Sara T. Weitz of Weitz & Schwartz, P.A., Fort Lauderdale, for appellee Deutsche Bank National Trust Company.
   Warner, J.

In entering final judgment of foreclosure, the trial court found that the appellee had proved standing, relying on the presumption created in Ortiz v. PNC Bank, National Ass'n , 188 So.3d 923, 925 (Fla. 4th DCA 2016). We affirm, as we agree that the presumption applies and write to distinguish this case from Friedle v. Bank of New York Mellon , 226 So.3d 976 (Fla. 4th DCA 2017).

Under Ortiz , if the lender "files with the court the original note in the same condition as the copy attached to the complaint, then ... such evidence is sufficient to" show that the lender actually possessed the note when it filed the complaint, and thus, had standing to bring the foreclosure action. Ortiz , 188 So.3d at 925. However, if there is any evidence or testimony to the contrary, additional proof may be required to show standing. Id. n.2. Here, the trial court held that the appellee had proved its standing because the note attached to the complaint was the same as the note introduced at trial. Although the loan number at the top of the copy of the note was redacted, this was for filing purposes. Thus, the presumption established in Ortiz applied.

In Friedle , we held that the bank had not proved standing under Ortiz because the copy of the promissory note was not in the same condition as the original note introduced at trial, even where those differences were minor but unexplained. Friedle , 226 So.3d at 978-79. We noted that Ortiz had not been decided at the time of the trial in Friedle , so there was no explanation of the differences between the copy of the note filed with the complaint and the original introduced at trial. Id. at 979.

Because both Ortiz and Friedle were decided at the time of the trial in this case, the court addressed the discrepancy, and it noted that the only difference between the copy of the note attached to the complaint and the original note was the redaction of the loan numbers at the top of the instrument. Redaction of loan numbers is required upon filing by Florida Rule of Judicial Administration 2.425(a)(4)(I). Although the rule requires the redaction of only the last four numbers, we see no issue with the application of the Ortiz presumption when more of the loan numbers are redacted. Here, the court viewed both the electronically filed copy attached to the complaint and the original note presented at trial, and it concluded that only the loan number was redacted, as required for filing. Thus, there was an explanation of the difference between the copy and the original. Other than the redaction, the original note was in the same condition as the copy attached to the complaint, and such evidence was sufficient to invoke the Ortiz presumption. Because the appellant offered no evidence to rebut the presumption, the court could rely on it to determine that appellee had proved standing to foreclose the mortgage.

We affirm as to all other issues raised.

Gross, J., and Weiss, Daliah, Associate Judge, concur.

      The court also relied on the Pooling and Service Agreement, by which the appellee acquired the loan, which was properly admitted into evidence and included the appellants' loan among those assets transferred into the trust. See Bolous v. U.S. Bank Nat'l Ass'n , 210 So.3d 691, 693-94 (Fla. 4th DCA 2016) (finding Bank had standing to bring foreclosure action where the subject PSA was moved into evidence without objection; the PSA identified the Bank as the trustee, and the corresponding mortgage loan schedule listed the appellant's loan).


text:
    Kevin ROLAND, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3033
    District Court of Appeal of Florida, Fourth District.
    [April 3, 2019]
    Kevin Roland, South Bay, pro se.
    Ashley B. Moody, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Kevin Roland appeals a sanction order prohibiting further pro se filing. Although he repeated a meritless postconviction claim, we find that the trial court erred in prohibiting further pro se filing without a warning or additional circumstances showing that Roland egregiously abused the legal process.

Following a jury trial, Roland was convicted of robbery and sentenced to 20 years in prison as a habitual offender with a 15-year mandatory minimum as a prison releasee reoffender (PRR). His conviction was affirmed on direct appeal, and he filed a timely rule 3.850 motion raising four claims. One claim alleged that the State failed to prove that he qualified for the enhanced sentences because the poor quality of the fingerprints on a prior conviction could not be used for comparison. However, there was another copy of the fingerprints in the record that permitted a comparison. The rule 3.850 motion was summarily denied and affirmed on appeal.

Two years later, Roland filed this rule 3.800(a) motion or petition for writ of habeas corpus. He again argued that the State failed to show that he qualified for a PRR sentence because an expert was unable to match his fingerprints to those on a predicate conviction. He maintained that the State could not use this prior conviction to establish his prior release date from prison. He did not allege that he did not actually qualify for PRR sentencing, only that the State did not prove his prior release date.

The State showed that the claim was meritless because the trial court could rely on another copy of the certified conviction in the court record and the prison records provided enough identifying information to confirm it was him. See Sustakoski v. State , 992 So.2d 306, 308 (Fla. 4th DCA 2008) ; Moore v. State , 944 So.2d 1063, 1064 (Fla. 4th DCA 2006). In addition, unless he did not actually qualify, a defect in the sentencing procedure would not make the sentence illegal. Ives v. State , 993 So.2d 117, 121 (Fla. 4th DCA 2008). Because he was repeating a claim that was already decided, the State asked the trial court to prohibit further pro se filing.

The trial court denied the rule 3.800(a) motion. After receiving a response to an order to show cause pursuant to State v. Spencer , 751 So.2d 47 (Fla. 1999), the court prohibited Roland from further pro se filing.

An order prohibiting further pro se filing is reviewed for an abuse of discretion. Ashe v. State , 106 So.3d 956, 957 (Fla. 4th DCA 2013).

Roland argues the sanction is an abuse of discretion because this was only his second postconviction motion. The State answers that the sanction was appropriate because Roland previously raised this issue and his claim was not cognizable in the pleading.

A court may refer a prisoner who has filed a frivolous postconviction motion to the Department of Corrections for disciplinary proceedings under section 944.279, Florida Statutes. "Under section 944.279, a court may sanction any frivolous post-conviction filing and/or appeal regardless of the prisoner's history of filing." Johnson v. State , 44 So.3d 198, 200 (Fla. 4th DCA 2010). We agree that Roland's repetition of this meritless claim was frivolous. But, this Court has recognized that prohibiting all pro se filing is considered an "extreme remedy" for "curtailing the egregious abuse of judicial processes." Gaston v. State , 141 So.3d 627, 628 (Fla. 4th DCA 2014) ; see also Bivins v. State , 35 So.3d 67, 69 (Fla. 1st DCA 2010) (reversing a prohibition on further pro se filing where the defendant filed a single pro se motion raising a variation of an issue that the trial court already denied and ordered that it would not reconsider). Before prohibiting all pro se filing, courts should consider whether a warning order or disciplinary referral may suffice to preserve judicial economy and protect the interests of justice.

Here, although Roland repeated an issue that was already denied on the merits, his limited pro se filings do not demonstrate egregious abuse of the postconviction process warranting the extreme sanction imposed in this case. Accordingly, the sanction order is reversed. On remand, the trial court may issue a warning.

Reversed and remanded.

Damoorgian, Levine and Forst, JJ., concur.


text:
    Michael Daved KASE, Appellant, v. Jennifer DUTRA, Appellee.
    No. 4D18-3194
    District Court of Appeal of Florida, Fourth District.
    [April 3, 2019]
    Kathleen A. Daly of the Law Office of Kathleen A. Daly, P.A., West Palm Beach, for appellant.
    Shenna Stevens of Florida Rural Legal Services, Inc., Riviera Beach, for appellee.
   Per Curiam.

Affirmed . See Moriarty v. Moriarty , 192 So.3d 680 (Fla. 4th DCA 2016).

Taylor, Damoorgian and Conner, JJ., concur.


text:
    Harold MILLER, Appellant, v. Linnette MILLER, Appellee.
    No. 4D18-2718
    District Court of Appeal of Florida, Fourth District.
    [April 3, 2019]
    Harold Miller, Edgewater, pro se.
    Craig J. Trocino of Michael A. Gottlieb, PA, Fort Lauderdale, for appellee.
   Per Curiam.

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

Taylor, May and Levine, JJ., concur.


text:
    Roy L. LILLY, Appellant, v. BANK OF AMERICA, N.A., Appellee.
    No. 4D18-2483
    District Court of Appeal of Florida, Fourth District.
    [April 10, 2019]
    Michele K. Feinzig of Law Offices of Robin Bresky, Boca Raton, for appellant.
    Mary J. Walter of Liebler Gonzalez & Portuondo, Miami, for appellee.
   Per Curiam.

We reverse the circuit court's denial of appellant's motion to quash service of process and remand for an evidentiary hearing on the motion.

The circuit court failed to set an evidentiary hearing on appellant's facially sufficient motion to quash service of process. A defendant is entitled to an evidentiary hearing on a motion to quash service of process if the motion and accompanying affidavit, if proven by clear and convincing evidence, would show that the plaintiff failed to effect valid service. Linville v. Home Sav. of Am. , FSB , 629 So.2d 295, 296 (Fla. 4th DCA 1993). Appellant's motion to quash and accompanying affidavit adequately challenged the process server's failure to comply with section 48.031, Florida Statutes (2015). See Nirk v. Bank of Am., N.A. , 94 So.3d 658, 659-660 (Fla. 4th DCA 2012) (holding that section 48.031(5), Florida Statutes (2010) required the information to appear on the copy of the summons); see also Romeo v. U.S. Bank Nat'l Ass'n , 144 So.3d 585, 586 (Fla. 4th DCA 2014) ("When a process server fails to strictly comply with [statutes governing service of process], service must be quashed." (quoting Brown v. U.S. Bank Nat'l Ass'n , 117 So.3d 823, 824 (Fla. 4th DCA 2013) ) ).

Reversed and remanded .

Gross, Damoorgian and Ciklin, JJ., concur.


text:
    URGO HOTELS LP, a Maryland limited partnership, by and through its general partners, Urgo Lodging Management, LLC, Donald J. Urgo, Donald J. Urgo, Jr., Kevin M. Urgo, Collin D. Urgo and UH-SI, LLC, a Florida limited liability company, Appellants, v. The RESORT AT SINGER ISLAND, HOTEL CONDOMINIUM ASSOCIATION, INC., a Florida corporation, Appellee.
    No. 4D18-1330
    District Court of Appeal of Florida, Fourth District.
    [April 3, 2019]
    Jack J. Aiello, Heather C. Costanzo, Devin S. Radkay, and Gregor J. Schwinghammer of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellants.
    Alan B. Rose and Daniel A. Thomas of Mrachek, Fitzgerald, Rose, Konopka, Thomas & Weiss, P.A., West Palm Beach, and Daniel S. Rosenbaum of Rosenbaum PLLC, West Palm Beach, for appellee.
   Per Curiam.

Affirmed . See Garden Suburbs Golf & Country Club, Inc. v. Pruitt , 156 Fla. 825, 24 So.2d 898 (1946).

Warner, Gross and Forst, JJ., concur.


text:
    Julio DE LA ROSA, Appellant, v. CHENEY BROTHERS, INC., and Clarendon National Insurance Company, Appellees.
    No. 1D17-2948
    District Court of Appeal of Florida, First District.
    Date of Accident: November 18, 2002 April 9, 2019
    Manuel G. Franco, Tampa, and Bill McCabe, Longwood, for Appellant.
    Robert B. Griffis of Jones, Hurley & Hand, P.A., Orlando, for Appellees.
   Per Curiam.

In this workers' compensation case, the Claimant appeals an order of the Judge of Compensation Claims ("JCC") denying his claim for continued palliative care for a November 2002 injury. He claims the JCC reversibly erred in finding the E/C satisfied its burden of proving a break in the causal chain and by failing to find waiver by the E/C under section 440.20(4), Florida Statutes. We disagree and affirm. See Teco Energy, Inc. v. Williams , 234 So.3d 816 (Fla. 1st DCA 2017).

AFFIRMED .

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


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    STATE FARM AUTOMOBILE INSURANCE COMPANY, Appellant, v. Marielle LYDE, Appellee.
    Case No. 2D17-1014
    District Court of Appeal of Florida, Second District.
    Opinion filed October 5, 2018.
    Anthony J. Russo and James Michael Shaw, Jr., of Butler Weihmuller Katz Craig, LLP, Tampa; and Robert L. Kaleel of Kaleel & Kaleel, P.A., St. Petersburg, for Appellant.
    David M. Caldevilla of de la Parte & Gilbert, P.A., Tampa; and Anthony D. Martino of Clark & Martino, P.A., Tampa, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

State Farm Automobile Insurance Company (State Farm) appeals the final summary judgment requiring it to pay the higher of the two limits for uninsured motorist coverage (UM coverage) provided in the identical policies issued on Marielle Lyde's (the daughter) vehicle and Margarita Nieves's (the mother) vehicle in connection with injuries that the daughter sustained while driving her vehicle in a crash with an uninsured motorist. State Farm argues that the trial court erred in disregarding an exclusion for UM coverage under the mother's policy authorized under section 627.727(9), Florida Statutes (2012). As explained below, we agree, reverse the final summary judgment and the order granting the daughter's motion for summary judgment, and remand for further proceedings consistent with this opinion.

I. Background

The mother and daughter reside together. The mother owns a Kia Sorento, and the daughter owns a Kia Soul. State Farm issued an insurance policy for the mother's vehicle that lists the mother as the only named insured on the declarations page and that has a UM coverage limit of $100,000 per person. State Farm also issued an insurance policy for the daughter's vehicle that lists both the daughter and mother as named insureds on the declarations page and that has a UM coverage limit of $25,000 per person.

Apart from the amounts of coverage and the named insureds, the policies are identical versions of State Farm Policy Form 9810A. Many of the terms used in the policy are terms of art defined in the policy itself. In the general provisions, State Farm agrees to provide insurance according to the terms of this policy based, in part, "on payment of premium for coverages chosen." In the applicable UM coverage section, the "Insuring Agreement" provides, "We will pay compensatory damages for bodily injury an insured is legally entitled to recover from the owner or driver of an uninsured motor vehicle" and specifies that the "bodily injury for which we will pay compensatory damages must be," in pertinent part, "sustained by an insured" and "caused by an accident that involves the operation, maintenance, or use of an uninsured motor vehicle." The "Exclusions" section, however, provides, in pertinent part, that "THERE IS NO COVERAGE ... 2. FOR AN INSURED WHO SUSTAINS BODILY INJURY ... a. WHILE OCCUPYING A VEHICLE

OWNED BY YOU OR ANY RESIDENT RELATIVE IF IT IS NOT YOUR CAR OR A NEWLY ACQUIRED CAR." One of the sections that follows is titled "If Other Uninsured Motor Vehicle Coverage Applies," and provides, in pertinent part:

1. If Uninsured Motor Vehicle Coverage provided by this policy and one or more other vehicle policies issued to you or any resident relative by the State Farm Companies apply to the same bodily injury, then:
a. the Uninsured Motor Vehicle Coverage limits of such policies will not be added together to determine the most that may be paid; and
b. the maximum amount that may be paid from all such policies combined is the single highest applicable limit provided by any one of the policies. We may choose one or more policies from which to make payment.

In May 2013, the daughter was driving her vehicle when she was involved in a crash with an uninsured motorist. State Farm tendered $25,000 as the limit for UM coverage on the daughter's policy. The daughter filed the underlying action against State Farm, seeking, in pertinent part, declaratory relief and damages for breach of contract. She claimed that she is an insured under both her policy and her mother's policy and that she is therefore eligible for UM coverage under both policies. She further claimed that under subsection 1.b. of the section titled "If Other Uninsured Motor Vehicle Coverage Applies," she was entitled to claim the higher UM coverage limit under the two policies. Thus, she claimed that she was entitled to the $100,000 limit under the mother's policy and that State Farm had wrongfully denied her UM benefits in excess of the $25,000 limit under her policy.

State Farm admitted that the daughter was an insured under both policies and that she was entitled to UM coverage under her policy, but it denied that she was entitled to UM coverage under the mother's policy. In its operative third affirmative defense, State Farm asserted that the mother's policy provides for "non-stacking" UM coverage "pursuant to the named insured's execution of the Selection/Rejection Form giving rise to a conclusive presumption of a knowing informed rejection of stacking coverage under Florida Statute § 627.727(9)." State Farm further asserted that the daughter was excluded from UM coverage under the mother's policy based on exclusion 2.a. because she was occupying a vehicle that the daughter owned, not the Sorento identified on the declaration's page of the mother's policy. State Farm also claimed that the daughter's reliance on the "If Other Uninsured Motor Vehicle Coverage Applies" provision is misplaced because UM coverage does not apply on the mother's policy. Rather, as provided by section 627.727(9) and the Selection/Rejection Form, that provision applies when occupying a motor vehicle "not in the household or owned by a resident relative."

After filing its answer and affirmative defenses, State Farm moved for summary judgment, again conceding the daughter's entitlement to $25,000 in UM benefits under her policy but contending that she and her mother both had knowingly rejected "stacking" coverage under both her policy and her mother's policy, as reflected on the three Selection/Rejection Forms that State Farm attached to the motion and that State Farm claimed had been approved by the Office of Insurance Regulation (OIR). Thus, State Farm asserted, consistently with section 627.727(9)(b), the UM coverage exclusion under 2.a.-for bodily injury that an insured sustains while occupying a vehicle owned by a resident relative that was not "your car" or a newly acquired car-precluded the daughter from recovering under the mother's policy.

The daughter did not formally respond to the motion but instead filed her own motion for summary judgment. Relying on the provision of the policy that governs "If Other Uninsured Motor Vehicle Coverage Applies," the daughter argued that she was entitled to the $100,000 under the mother's policy because she was an insured under both policies. The daughter argued further that exclusion 2.a. was not consistent with 627.727(9) and was therefore contrary to public policy. Alternatively, the daughter argued that even if the exclusion were valid, reading it in conjunction with the "If Other Uninsured Motor Vehicle Coverage Applies" provision created ambiguity in the contract that required construction in her favor and allowed her to recover the $100,000 under the mother's policy. The daughter's motion made no mention of any "application" or Selection/Rejection Form.

In addition to the daughter's and the mother's policies and declarations pages, the summary judgment evidence before the trial court included the three Selection/Rejection Forms that State Farm had filed with its motion for summary judgment: one for the mother's policy signed on September 14, 2010; one for the daughter's policy signed on August 19, 2011; and another for the daughter's policy signed on April 4, 2012. The template for those three forms was identical, and State Farm also filed a September 24, 2010, letter from OIR approving that template. State Farm also filed the affidavit of Kristin Spencer, the Florida underwriter for its automobile policies. Spencer averred, among other things, that the mother had signed another Selection/Rejection Form on April 2, 2012, which "has been separately filed with the Court," and that "[a]t all times, the language in the Selection/Rejection Form has been approved by the State of Florida." Contrary to her averment, however, only the mother's September 14, 2010, Selection/Rejection Form had been filed, and no other version of it was subsequently filed.

After receiving State Farm's response in opposition to the daughter's motion, the trial court granted the daughter's motion and denied State Farm's motion. The court explained:

There is, at the very least, ambiguity within the insurance policy contract. The defense argues that the Exclusions section on page 28, which states "There is no coverage for an insured who sustains bodily injury while occupying a vehicle owned by you or any resident relative if it is not your car ...", along with the non-stacking coverage in this case, precludes coverage from the Plaintiff's mother's UM policy.
But the more persuasive argument from Plaintiff's counsel is found in the policy section on page 29 entitled If Other Uninsured Motor Vehicle Coverage Applies . This is not a stacking vs. non-stacking case because the Plaintiff seeks "either/or" rather than "both/and".

Therefore, the trial court determined that the daughter "is entitled to the highest applicable limits of coverage available between the two UM policies for which she is an insured, to wit: $100,000." State Farm timely appeals the trial court's final judgment awarding the daughter $75,000.

II. Discussion

State Farm argues that the trial court erred in granting the daughter's motion for summary judgment because the unambiguous language of the mother's policy excludes the daughter from UM coverage in this circumstance and, therefore, rendered the election clause under "If Other Uninsured Motor Vehicle Coverage Applies" inapplicable. State Farm also argues that the policy exclusion was an authorized limitation that complies with section 627.727(9). While we agree with these arguments, we disagree with State Farm's argument that the trial court erred in denying its motion for summary judgment and that we should remand for entry of a final summary judgment in its favor. Rather, we decline to address the parties' arguments regarding the Selection/Rejection Form and simply remand for further proceedings. We review de novo the trial court's ruling on the parties' motions for summary judgment and its construction of the insurance contract and the statute. See State Farm Mut. Auto. Ins. Co. v. Smith, 198 So.3d 852, 855 (Fla. 2d DCA 2016), review denied, No. SC16-1682, 2017 WL 192045 (Fla. Jan. 18, 2017) ; Fla. Peninsula Ins. Co. v. Cespedes, 161 So.3d 581, 584 (Fla. 2d DCA 2014).

A. The Policy

Courts generally construe an insurance policy in accordance with its plain language as bargained for by the parties. See Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla. 2000). In so doing, "courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect." Cespedes, 161 So.3d at 584 (quoting Wash. Nat'l Ins. Corp. v. Ruderman, 117 So.3d 943, 948 (Fla. 2013) ). But "[i]f the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage, the insurance policy is considered ambiguous." Id. (quoting Anderson, 756 So.2d at 34 ). If ambiguous, "[t]he court interprets ambiguous provisions 'liberally in favor of the insured and strictly against the drafter.' " N. Pointe Cas. Ins. Co. v. M & S Tractor Servs., Inc., 62 So.3d 1281, 1283 (Fla. 2d DCA 2011) (quoting State Farm Mut. Auto. Ins. Co. v. Fischer, 16 So.3d 1028, 1031-32 (Fla. 2d DCA 2009) ). When the ambiguity arises regarding an exclusion clause, courts construe them "even more strictly against the insurer than coverage clauses." Anderson, 756 So.2d at 29.

Under the UM provision of the mother's insurance policy, State Farm generally agrees to pay compensatory damages for bodily injury an insured is legally entitled to recover. The daughter is an "insured" under the mother's policy because, as the parties agree, she is a resident relative. Here, however, under an applicable exclusion, the daughter is not "covered" under the UM provision in the mother's policy. That exclusion provides, "THERE IS NO COVERAGE ... FOR AN INSURED"-which is the daughter, as a resident relative-"WHO SUSTAINS BODILY INJURY [ ] WHILE OCCUPYING A VEHICLE OWNED BY ... ANY RESIDENT RELATIVE ... IF IT IS NOT YOUR CAR," which invokes the exclusion because the resident-relative daughter was occupying her own vehicle while injured and because the mother's Sorento is the only vehicle listed on the mother's declarations page. Under the plain language of the exclusion, therefore, and as argued in State Farm's motion for summary judgment and on appeal, there is no UM coverage here for the daughter under the mother's policy.

Consequently, the daughter's reliance on the "If Other Uninsured Motor Vehicle Coverage Applies" provision is misplaced, and the trial court erred in granting her motion for summary judgment and denying State Farm's motion for summary judgment on this basis, because that provision presumes that UM coverage applies under two or more policies. Nothing in this provision expands the applicability of UM coverage in the mother's policy; rather, it speaks to the maximum amount that may be paid when UM coverage under two or more policies otherwise applies. See Akel v. Dorcelus, 793 So.2d 1049, 1052 (Fla. 4th DCA 2001) ("The election clause only applies if coverage is otherwise available. Obviously, the insured can only elect which coverage to receive if there are two policies under which the insured may recover benefits. In the instant policy, not only is the brother's vehicle excluded from the definition of an uninsured vehicle, but the policy states twice that UM coverage is not provided for bodily injury sustained while occupying a motor vehicle owned by the named insured or a resident relative which is not a vehicle listed in the policy declarations. There was no coverage under the insured's UM policy provisions; therefore, there was no election to be made."). Here, UM coverage applies under only one policy: the daughter's policy. Thus, this provision does not inform the meaning of the exclusion, nor does it render the exclusion ambiguous-we simply do not get to it.

B. Compliance with the Statute

We also agree with State Farm that this policy exclusion is statutorily authorized, and we reject the daughter's argument to the contrary. Historically, UM coverage follows the person, not the vehicle, so as to afford that person protection notwithstanding the particular circumstances resulting in the injury. See, e.g., Coleman v. Fla. Ins. Guar. Ass'n, 517 So.2d 686, 689 (Fla. 1988) ("[UM] protection does not inure to a particular motor vehicle, but instead protects the named insured or insured members of his family against bodily injury inflicted by the negligence of any uninsured motorist under whatever conditions, locations, or circumstances any of such insureds happen to be in at the time."); Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229, 233 (Fla. 1971) ("Whenever bodily injury is inflicted upon named insured or insured members of his family by the negligence of an uninsured motorist, under whatever conditions, locations, or circumstances, any of such insureds happen to be in at the time, they are covered by uninsured motorist liability insurance ...."), superseded by statute as recognized in Gov't Emps. Ins. Co. v. Douglas, 654 So.2d 118, 120 (Fla. 1995). The legislature, however, has since statutorily authorized certain limitations on this general application, see § 627.727(9) ; Douglas, 654 So.2d at 120 ("Pursuant to ... section 627.727(9)(d), Florida Statutes (1987), insurers could issue motor vehicle liability insurance policies which contained limited uninsured motorist coverage."); see also Young v. Progressive Se. Ins. Co., 753 So.2d 80, 85 (Fla. 2000) ("[S]ection 627.727(9) ... provides a list of statutorily permissible policy exclusions to uninsured motorist coverage."), but "provisions in uninsured motorist policies that provide less coverage than required by the statute are void as contrary to public policy," Young, 753 So.2d at 83.

"Determining whether a policy provision extends less coverage than required by section 627.727 begins with the language of the statute," Smith, 198 So.3d at 858 (citing Travelers Commercial Ins. Co. v. Harrington, 154 So.3d 1106, 1111 (Fla. 2014) ), which provides, in pertinent part:

Insurers may offer policies of uninsured motorist coverage containing policy provisions, in language approved by the office, establishing that if the insured accepts this offer:
(a) The coverage provided as to two or more motor vehicles shall not be added together to determine the limit of insurance coverage available to an injured person for any one accident, except as provided in paragraph (c).
(b) If at the time of the accident the injured person is occupying a motor vehicle, the uninsured motorist coverage available to her or him is the coverage available as to that motor vehicle.
(c) If the injured person is occupying a motor vehicle which is not owned by her or him or by a family member residing with her or him, the injured person is entitled to the highest limits of uninsured motorist coverage afforded for any one vehicle as to which she or he is a named insured or insured family member. Such coverage shall be excess over the coverage on the vehicle the injured person is occupying.
(d) The uninsured motorist coverage provided by the policy does not apply to the named insured or family members residing in her or his household who are injured while occupying any vehicle owned by such insureds for which uninsured motorist coverage was not purchased.
(e) If, at the time of the accident the injured person is not occupying a motor vehicle, she or he is entitled to select any one limit of uninsured motorist coverage for any one vehicle afforded by a policy under which she or he is insured as a named insured or as an insured resident of the named insured's household.
In connection with the offer authorized by this subsection, insurers shall inform the named insured, applicant, or lessee, on a form approved by the office, of the limitations imposed under this subsection and that such coverage is an alternative to coverage without such limitations. If this form is signed by a named insured, applicant, or lessee, it shall be conclusively presumed that there was an informed, knowing acceptance of such limitations ....

§ 627.727(9).

By limiting UM coverage to the coverage available as to the vehicle involved and by precluding coverage for injuries sustained while occupying a vehicle for which UM coverage was not purchased, subsections 627.727(9)(b) and (d) permit departure from the general principle, see Coleman, 517 So.2d at 689 ; Mullis, 252 So.2d at 233, that UM coverage applies to the person. The exclusion in the mother's policy precludes, in pertinent part, UM coverage for an insured who is injured while occupying a vehicle that either the mother or the insured owns but is not the mother's Sorento, which is the only vehicle for which UM coverage was purchased under the mother's policy. In short, the exclusion complies with the statute because the mother's vehicle was the only household vehicle for which the mother paid a premium under her policy. See § 627.727(9) ; see also Swan v. State Farm Mut. Auto. Ins. Co., 60 So.3d 514, 518 (Fla. 3d DCA 2011) (explaining that under the limitations provided in section 627.727(9), "UM coverage does not provide coverage for every vehicle that the insured owns-it only provides coverage for the vehicle on which the UM premium was paid"); Akel, 793 So.2d at 1053 ("Subsection (9)(d) provides that an insurance company may exclude coverage for insureds or family members residing in the household, who are injured while occupying any vehicle owned by such insured for which uninsured motorist coverage was not purchased. The contemplation of this subsection is to exclude coverage under the uninsured motorist provisions of a particular policy when injury is suffered in a vehicle to which the particular policy does not apply.").

C. The Selection/Rejection Form

In its motion for summary judgment, State Farm relied solely on the mother's 2010 Selection/Rejection Form in attempting to satisfy its burden of proving the nonexistence of a genuine issue of material fact that would entitle it to the conclusive presumption that the mother had made an informed, knowing acceptance of limited coverage under section 627.727(9). See Larusso v. Garner, 888 So.2d 712, 717 (Fla. 4th DCA 2004) ("Without approval of the form, SGI is not entitled to the conclusive presumption of knowing acceptance."); Omar v. Allstate Ins. Co., 632 So.2d 214, 216 (Fla. 5th DCA 1994) (holding that an insurer relying on the limitation authorized in section 627.727(9) has the burden of proving its compliance with the notice provisions); Gov't Emp. Ins. Co. v. Douglas, 627 So.2d 102, 103 (Fla. 4th DCA 1993) (holding that the section 627.727(9)(d) exclusion did not apply because the insurer failed to comply with the notice requirement of obtaining a knowing acceptance of the subsection (9)(d) limitation), approved, 654 So.2d 118 (Fla. 1995). In addition, the daughter raises new arguments for the first time on appeal that are based on the Selection/Rejection Form, but the daughter's motion for summary judgment omitted even a mention of such a form, which she also characterizes as an insurance policy "application."

We decline to address the parties' arguments regarding the Selection/Rejection Forms for the first time on appeal, either as grounds for reversal or as grounds for affirmance under the tipsy coachman doctrine. See Loranger By & Through Loranger v. State, Dep't of Transp., 448 So.2d 1036, 1038 (Fla. 4th DCA 1983) (on rehearing) (rejecting appellee's argument that court should affirm because summary judgment was correct for the wrong reason because appellee raised new reason for the first time on appeal and court was "not certain precisely what legal and factual issues may arise if and when the trial court is presented with an appropriate pleading raising the issue"); see also Ambrogio v. McGuire, 247 So.3d 73, 75 (Fla. 2d DCA 2018) ("It is reversible error to enter summary judgment on a ground not raised with particularity in the motion for summary judgment."); cf. State Farm Fire & Cas. Co. v. Levine, 837 So.2d 363, 365 (Fla. 2002) (explaining that tipsy coachman doctrine permits a reviewing court to affirm a lower tribunal's decision that reaches the right result for the wrong reason so long as "there is any basis which would support the judgment in the record" (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla. 1999) ) ). In the affidavit that State Farm filed in support of its motion for summary judgment, Spencer averred that on April 2, 2012, the mother had signed a second Selection/Rejection Form that applies to the Sorento and that the April 2, 2012, form was an OIR-approved form. But contrary to her further averment that the April 2, 2012, form had previously been filed with the court, it does not appear to ever have been filed. Thus, what is apparently the operative OIR-approved Selection/Rejection Form applicable to the Sorento is not a part of the record, and neither party, below or on appeal, has addressed its existence.

III. Conclusion

Accordingly, we reverse the final summary judgment and the portion of the trial court's order granting the daughter's motion for summary judgment because the unambiguous language of the mother's policy excluded the daughter from UM coverage and complied with section 627.727(9). In so doing, we neither address the parties' arguments regarding the Selection/Rejection Form nor reverse the denial of State Farm's motion for summary judgment but simply remand for further proceedings consistent with this opinion.

Reversed and remanded.

LaROSE, C.J., and SILBERMAN, J., Concur.

      "You or Your" means, in pertinent part, "the named insured or named insureds shown on the Declarations Page." The mother is "you" under the mother's policy.
      "Resident Relative" means, in pertinent part, "a person, other than you, who resides primarily with the first person shown as a named insured on the Declarations Page and who is [ ] related to that named insured ... by blood, marriage, or adoption[.]" The daughter is a "resident relative" under the mother's policy.
      "Your Car" means, in pertinent part, "the vehicle shown under 'YOUR CAR' on the Declarations Page." The Sorento is "your car" under the mother's policy.
      "Owned By" means "1. owned by; 2. registered to; or 3. leased[.]"
      The UM coverage section also provides an additional definition of "Insured," to mean, in pertinent part, "1. you[, and] 2. resident relatives[.]

      In the operative complaint, the daughter purported to attach a copy of her policy as Exhibit A, but she instead attached a copy of a signed "Florida Uninsured Motor Vehicle Coverage - Selection/Rejection" form (Selection/Rejection Form) pertaining to her policy. The daughter, however, did not refer to the Selection/Rejection Form in her complaint.

      State Farm did not identify by date of signing the Selection/Rejection Form to which it referred.

      This 2010 form pertained to a 2007 Kia Sportage. The record indicates that the policy on the Sportage was later transferred to the Sorento.

      The April 4, 2012, form was the same form that the daughter had attached to her operative complaint.

      Notably, the provision refers to other UM "coverage," not other UM "insurance."

      Although the trial court did not expressly address the daughter's argument in her motion for summary judgment on this point, we are bound to address it because we must consider any basis in the record that could support affirmance, see Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999) ("[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record." (emphasis added) ), and because it merely requires us to review the policy language that was before the trial court in considering summary judgment.

      By its clear terms, subsection (9)(c) does not apply here because the daughter was indisputably occupying her own vehicle at the time of the injury, and we are unpersuaded by the daughter's tortured reading of that subsection to assert otherwise.


author: PER CURIAM.

text:
    Shelly PONIATOWSKI, DOC #H19579, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-895
    District Court of Appeal of Florida, Second District.
    Opinion filed November 21, 2018
   PER CURIAM.

Affirmed.

NORTHCUTT, KHOUZAM, and BADALAMENTI, JJ., Concur.


author: LaROSE, Chief Judge.

text:
    STATE of Florida, Appellant, v. Allen Robert BOSTON, Appellee.
    Case No. 2D17-4814
    District Court of Appeal of Florida, Second District.
    Opinion filed January 18, 2019. Rehearing Denied March 5, 2019
    Ashley Brooke Moody, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellant.
    Larry Sandefer, Clearwater, for Appellee.
   LaROSE, Chief Judge.

The State appeals the trial court's suppression order related to the traffic stop of Allen Robert Boston. We have jurisdiction. See Fla. R. App. P. 9.140(c)(1)(B). The State argues that Mr. Boston was driving his vehicle on the wrong side of the road, thus giving the arresting deputy a legally valid basis to stop Mr. Boston. We agree and reverse the trial court's order.

Background

On an early spring morning in Indian Rocks Beach, Deputy Matthew Schultheis saw Mr. Boston drive northbound through an intersection's green light and continue into the southbound side of the road. Deputy Schultheis testified that Mr. Boston drove his vehicle on the wrong side of the road for about one-hundred feet before returning to the proper lane. There were no other vehicles on the road, nor were any pedestrians present. Deputy Schultheis stopped Mr. Boston and noticed signs of impairment, including slurred speech, an unsteady gait, and the odor of alcohol. The State charged Mr. Boston with felony driving under the influence. See § 316.193(2)(b)(1), Fla. Stat. (2016).

Contending that he did not commit a traffic violation, Mr. Boston moved to suppress "any and all statements, observations, or physical evidence ... [obtained] subsequent to the stop." The trial court granted the motion. The trial court focused on the reasonableness of Mr. Boston's conduct. The trial court noted the quickness with which he corrected his course, and commented on the intersection's confusing configuration.

Here, the State argues that Mr. Boston's violation of section 316.081, which prohibits the operation of a motor vehicle on the wrong side of the road, justified the stop. The State contends that Deputy Schultheis had an objective basis for the stop, irrespective of how quickly Mr. Boston corrected his course, or how confusing the intersection was.

Analysis

"A trial court's ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling." Rolling v. State, 695 So.2d 278, 291 (Fla. 1997). Our review involves a mixed question of law and fact. We "accord a presumption of correctness to the trial court's determination of the historical facts, but must independently review mixed questions of law and fact that ultimately determine the constitutional issues arising in the context of the Fourth Amendment." Moody v. State, 842 So.2d 754, 758 (Fla. 2003) ; E.B. v. State, 866 So.2d 200, 202 (Fla. 2d DCA 2004) ("When reviewing a trial court's ruling on a motion to suppress, an appellate court reviews a mixed question of law and fact. The standard for reviewing facts is whether competent, substantial evidence supports the trial court's factual findings. The historical facts should be reviewed only for clear error. The trial court's application of law is reviewed de novo.").

"An examination of the validity of a traffic stop under the Fourth Amendment ... requires courts to determine whether the stop was reasonable." Dobrin v. Fla. Dep't of Highway Safety & Motor Vehicles, 874 So.2d 1171, 1173 (Fla. 2004). Thus, we must assess "whether the particular officer who initiated the traffic stop had an objectively reasonable basis for making the stop." Id. at 1174. In "applying the objective test, generally the only determination to be made is whether probable cause existed for the stop in question." Holland v. State, 696 So.2d 757, 759 (Fla. 1997).

"The constitutional validity of a traffic stop depends on purely objective criteria. The objective test 'asks only whether any probable cause for the stop existed,' making the subjective knowledge, motivation, or intention of the individual officer involved wholly irrelevant." Hurd v. State, 958 So.2d 600, 602 (Fla. 4th DCA 2007) (first citing Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ; then quoting Holland, 696 So.2d at 759 ).

"As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren, 517 U.S. at 810, 116 S.Ct. 1769. "The test is whether a police officer could have stopped the vehicle for a traffic violation." Hurd, 958 So.2d at 602. On at least one occasion, we have reversed a suppression order based on a driver's failure to stop at a stop sign, regardless of the officer's subjective suspicions. See State v. Chaney, 744 So.2d 595, 595 (Fla. 2d DCA 1999) ("The [trial] court granted the motion based on the police officer's testimony that he stopped the truck not because the driver had failed to stop at a stop sign, but because he thought some drug activity had occurred. This was error. The officer had an objective basis to stop Chaney.").

Mr. Boston violated section 316.081(1), which requires that "[u]pon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway." For approximately one hundred feet, Mr. Boston drove his automobile in the oncoming lane of traffic, "a noncriminal traffic infraction, punishable as a moving violation as provided in chapter 318." § 316.081(5). As a result, Deputy Schultheis had probable cause to stop him. See State v. Wimberly, 988 So.2d 116, 119 (Fla. 5th DCA 2008) ("Generally, a traffic stop is reasonable under the Fourth Amendment 'where the police have probable cause to believe that a traffic violation has occurred.' " (quoting Whren, 517 U.S. at 810, 116 S.Ct. 1769 ) ); see also State v. Proctor, 161 So.3d 409, 410-12 (Fla. 5th DCA 2014) (concluding that law enforcement possessed probable cause to stop Proctor for "driving at 3:30 a.m. on a deserted street without headlights for a brief period of time").

Nonetheless, the trial court looked to the reasonableness of Mr. Boston's driving. The trial court opined on the confusing nature of the intersection and noted that no one else was on the road. The trial court also found it "problematic that [Deputy Schultheis] really didn't know why he was stopping [Mr. Boston], didn't know whether it was failure to stay in the same lane, didn't know whether it was driving the wrong way."

The objective test recounted above counsels against this subjective analysis. State v. Rodriguez, 904 So.2d 594 (Fla. 5th DCA 2005), is instructive. There, a law enforcement officer observed Rodriguez pull out from an area without stopping at a stop sign. Id. at 595. The speed limit was 25 miles per hour. Id. Although the officer could not clock the driver's speed, he testified the car "blew through this stop sign." Id. The vehicle turned and then drove east in the westbound lane of Pine Street, a street marked with a double yellow line separating the lanes, for thirty to fifty feet. Id. Rodriguez pulled into an apartment complex where the officer stopped him. Id. The officer thought the driver might have been impaired based on his erratic driving. Id."The deputy testified that he stopped the driver for driving on the wrong side of the road and running a stop sign." Id. Rodriguez was arrested for DUI and a subsequent search revealed cocaine. Id.

The trial court suppressed the cocaine reasoning that "Rodriguez had not violated any traffic laws and, apart from civil traffic infractions, the circumstances did not establish articulable grounds to believe Rodriguez was impaired." Id. at 596. The Fifth District observed that "the [trial] court apparently accepted defense counsel's argument Rodriguez did not enter the roadway without stopping and it is permissible to drive in the wrong lane as long as one does not interfere with other vehicles." Id. at 598. The court also observed that the trial court "also ruled that the stop was not justified based on Rodriguez' unusual driving style." Id.

The Fifth District concluded that counsel's "deconstruction of Rodriguez' driving pattern may have been appropriate before a judge hearing civil traffic infractions; however, that is not the issue in a motion to suppress. The proper inquiry in this case was whether [law enforcement] had probable cause to stop Rodriguez based on his driving pattern." Id. The district court concluded that the officer would have been "derelict in his duties if he did not stop Rodriguez because there was probable cause based upon objective evidence to believe Rodriguez violated several Florida traffic statutes. The trial court erred in ruling otherwise." Id.

Similarly, the trial court, here, erred in finding that Deputy Schultheis lacked a valid basis to stop Mr. Boston. All that was relevant in this criminal case was whether Deputy Schultheis had probable cause to believe Mr. Boston violated a traffic statute. Uncontroverted evidence established that Mr. Boston drove his vehicle in the wrong lane. He thus violated section 316.081 and provided Deputy Schultheis with an objectively valid reason to stop him. Cf. Fla. Dep't of Highway Safety & Motor Vehicles v. Jones, 935 So.2d 532, 534-35 (Fla. 3d DCA 2006) ("Here, Officer Burgos observed Jones driving into the lane designated for oncoming traffic for no apparent reason. This was a violation of section 316.081 of the Florida Statutes which requires only that 'a vehicle shall be driven upon the right half of the roadway' .... The arrest report clearly detailed this behavior and provided probable cause for the stop.").

Conclusion

Based upon his observations of Mr. Boston's driving, Deputy Schultheis had probable cause to believe that Mr. Boston committed a traffic infraction. Consequently, the deputy had an objectively reasonable basis for the traffic stop. We reverse the trial court's suppression order and remand for further proceedings consistent with this opinion.

Reversed and remanded.

VILLANTI and LUCAS, JJ., Concur.

      On cross-examination, Deputy Schultheis conceded that "I'm bad with distance," and admitted that he had testified at an earlier Department of Highway Safety and Motor Vehicles administrative hearing that Mr. Boston was "in the wrong lane for approximately 90 feet," which he estimated to be three car lengths. Defense counsel argued that three car lengths amounted to a distance of approximately thirty feet.

      Deputy Schultheis testified on direct examination that he conducted a traffic stop because Mr. Boston's vehicle was "traveling in the wrong lanes." On cross-examination, Deputy Schultheis was questioned about a police report prepared by a fellow officer, that stated that Deputy Schultheis relayed that he had stopped Mr. Boston because he failed to maintain a single lane. See § 316.089(1) ("A vehicle shall be driven as nearly as practicable entirely within a single lane ...."). Deputy Schultheis disavowed the statement, testifying instead that Mr. Boston "was stopped for traveling in the wrong lanes." On redirect examination, Deputy Schultheis reaffirmed that he could have issued a citation to Mr. Boston for "driving in the wrong lane."