author: LOGUE, J. LAGOA, J., (concurring in part and dissenting in part).

text:
    CITY OF MIAMI, Appellant, v. AIRBNB, INC., etc., et al., Appellees.
    No. 3D17-1213
    District Court of Appeal of Florida, Third District.
    Opinion filed December 5, 2018.
    Victoria Mendez, City Attorney, and John A. Greco, Deputy City Attorney, and Christopher A. Green, Assistant City Attorney, for appellant.
    Berger Singerman LLP, and Mitchell W. Berger, Paul S. Figg, Paul A. Avron, and Fred O. Goldberg (Fort Lauderdale), for appellees.
    Holland & Knight LLP, and Frances Guasch De La Guardia; Craig E. Leen, City Attorney, as amicus curiae for City of Coral Gables.
    Before LAGOA, LOGUE, and LINDSEY, JJ.
   LOGUE, J.

The City of Miami appeals the trial court's order granting the plaintiffs' emergency motion for temporary injunction. We conclude that Plaintiffs, Airbnb, Inc., Yamile Bell, Ana Rubio, Gary M. Levin, Toya Bowles, and Kenneth J. Tobin, have not met the elements for the broad temporary injunction entered by the trial court. Accordingly, we reverse.

Background

Airbnb, Inc., is an online hosting platform that matches guests with short-term rentals in different parts of the world, including Miami. At a March 2017 City Commission meeting, the City of Miami adopted a resolution on short-term rentals. The resolution was based on (1) the City Of Miami's zoning ordinance, Miami 21, which limits the T3 zone to permanent residential use, and (2) the City's 2015 Zoning Interpretation of Miami 21 that declares "using a Single Family residence or Two Family-Housing (a duplex) within a T3 transect zone to provide rental accommodations per night, week, or anything less than one month would constitute an activity in violation of Miami 21."

The resolution affirmed the City's zoning regulations "as they pertain to short-term/vacation rentals" and "direct[ed] the City Manager to continue vigorously enforcing regulations pertaining to lodging uses." In attendance at the Commission meeting were several City residents who opposed the resolution because they use the Airbnb platform to rent out their properties. The City Manager informed attendees that the City was "now on notice" of those who spoke out against the City's code, and that he "will be duly bound to request our personnel to enforce the city code."

After the Commission meeting, Airbnb and several City residents who rent their properties through Airbnb sued the City for declaratory and injunctive relief. They asserted that the City's vacation rental ban in its suburban residential T3 zone was preempted by State law. The complaint also alleged that the City Manager and Mayor expressed an intent to retaliate against the individuals who spoke in support of vacation rentals at the City Commission meeting. Accordingly, the complaint also sought to enjoin the City from initiating code enforcement proceedings against those individuals, and from requiring the names and addresses of those who wish to speak at Commission meetings. Plaintiffs then filed an emergency motion for temporary injunction which mirrored the complaint's request for injunctive relief.

On April 19, 2017, the trial court held an evidentiary hearing on the motion for temporary injunction. At the hearing, an Airbnb representative testified that Airbnb was being unfairly targeted by the City. And three of the individual plaintiffs who reside in the T3 zone explained the nature of the short-term rentals they offer through Airbnb.

The City's planning director testified that the T3 zone was reserved for permanent housing and did not permit transient lodging. He explained, "It is the transient nature of the accommodation that makes it a lodging use, as opposed to the permanent residence nature of the use that makes it a single family dwelling." The City also presented the testimony of T3 zone residents who described negative experiences from living close to short-term rentals. And finally, the City Clerk testified regarding the City's practice in obtaining the names and addresses of individuals who speak at City Commission meetings.

At the end of the hearing, the trial court granted Plaintiffs' motion for temporary injunction. It concluded that Miami 21 does not prohibit vacation rentals and the City was therefore preempted under section 509.032(7)(b), Florida Statutes (2016) from enforcing its Zoning Interpretation and pronouncing any ban on short-term vacation rentals. Regarding the statements made by the City Manager and Mayor, the trial court found no evidence of retaliation. But it did find that the statements "have a chilling effect on the First Amendment rights of residents who wish to make public comments on any matter before the City Commission."

The temporary injunction enjoins the City in two respects. First, it enjoins the City from "enforcing any ban on or from instituting or enforcing its vacation rental ban in the City pending a final hearing ... which would include any enforcement against the individual Plaintiffs." Second, it enjoins the City from "requiring members of the public, as a condition of their right to make public comment at City Commission meetings, from having to provide their names and addresses, and that agents of the City shall advise residents that, if they wish to remain anonymous, they will still be allowed to speak." The City timely appealed.

Analysis

"A temporary injunction is an extraordinary remedy which should be granted only sparingly." Mercado Oriental, Inc. v. Marin, 725 So. 3d 468, 469 (Fla. 3d DCA 1999). A party moving for the temporary injunction must therefore demonstrate: "(1) the likelihood of irreparable harm if the temporary injunction is not entered; (2) the unavailability of an adequate remedy at law; (3) a substantial likelihood of success on the merits; and (4) entry of the temporary injunction will serve the public interest." Genchi v. Lower Fla. Keys Hosp. Dist., 45 So.3d 915, 918-19 (Fla. 3d DCA 2010). If the party seeking a temporary injunction fails to meet any of these requirements, the motion must be denied. Id.

Moreover, "[i]njunctions must be specifically tailored to each case and they must not infringe upon conduct that does not produce the harm sought to be avoided." Angelino v. Santa Barbara Enterprises, LLC, 2 So.3d 1100, 1104 (Fla. 3d DCA 2009). In other words, injunctions "should never be broader than is necessary to secure to the injured party relief warranted by the circumstances involved in the particular case." Chevaldina v. R.K./FL Mgmt., Inc., 133 So.3d 1086, 1091 (Fla. 3d DCA 2014).

Here, based upon the limited record before us, we conclude that Plaintiffs have failed to show that they have a substantial likelihood of success to sustain such broad injunctions.

A. The injunction against the City's "vacation rental ban" is overbroad.

Miami 21 is not preempted by State law because it places land-use restrictions on all properties located in the T3 zone, which include properties used as short-term or vacation rentals. The injunction here fails to recognize that under certain circumstances, Miami 21 may prohibit short-term or vacation rentals in T3. For that reason, we conclude that the injunction is overbroad and must be reversed.

The preemption statute at issue prohibits a local government from banning or regulating vacation rentals: "A local law, ordinance, or regulation may not prohibit vacation rentals or regulate the duration or frequency of rental of vacation rentals." § 509.032(7)(b). A "vacation rental" is a "condominium" or a "house or dwelling unit" rented on a transient basis. But the preemption "does not apply to any local law, ordinance, or regulation adopted on or before June 1, 2011." Id. The undisputed testimony at the hearing was that the 2016 version of Miami 21 is identical in its material provisions to the zoning code in effect in 2009.

Miami 21 places the City's core, single family neighborhoods in its T3 zone. The T3 zone is labeled "sub-urban," and the only use allowed by right is "residential." § 1.1, § 4, tbl.3, Miami 21. "Residential" is defined by Miami 21 as "land use functions predominantly of permanent housing." § 1.1 (emphasis added).

Because a vacation rental is not permanent housing-it is a short-term rental intended to serve as a guest's transient housing-Miami 21 prohibits short-term and vacation rentals in T3 that convert a property's use to something other than "predominantly of permanent housing." For example, a property owned by investors and used solely for short-term or vacation rentals would never be permitted in T3 because it does not constitute a use "predominantly of permanent housing." On the other hand, "predominantly of permanent housing" does not mean "exclusively of permanent housing." So where a T3 property's use remains predominantly of permanent housing, a mere incidental use for a short-term or vacation rental may not violate Miami 21.

As this discussion indicates, we conclude that to the extent the City's 2015 Zoning Interpretation goes beyond the restrictions in Miami 21, the Interpretation is preempted under section 509.032(7)(b). As previously noted, the City's Zoning Interpretation declares that "using a Single Family residence or Two Family-Housing (a duplex) within a T3 transect zone to provide rental accommodations per night, week, or anything less than one month would constitute an activity in Violation of Miami 21." This Zoning Interpretation suggesting a ban on all short-term rentals is itself overbroad because a short-term rental may not always alter a property's use as "predominantly of permanent housing."

In any event, the trial court here failed to recognize that Miami 21 is not preempted and prohibits certain short-term rentals that compromise the residential characteristic of T3 properties. We recognize that this "predominantly of permanent housing" analysis may create a fact-intensive, case-by-case inquiry. But the trial court here made no distinction between the types of rentals that may be permitted under Miami 21 and those that may violate the zoning restriction.

In so holding, we have not overlooked the issue of whether Airbnb's short-term or vacation rentals constitute a "lodging" use under Miami 21. Miami 21's definition of "lodging" includes "Bed & Breakfast," "Inn," and "Hotel," all of which are not permitted in T3. Under Miami 21, the "lodging" use category is

intended to encompass land [u]se functions predominantly of sleeping accommodations occupied on a rental basis for limited periods of time. These are measured in terms of lodging units: a lodging unit is a furnished room of a minimum two hundred (200) square feet that includes sanitary facilities, and that may include limited kitchen facilities.

§ 1.1(b) (emphasis added). "Lodging Unit" is further defined in Miami 21 as "living quarters comprised of furnished room (s) ... not qualifying as a Dwelling Unit or efficiency apartment; occupied by transients on a rental or lease basis for limited periods of time." § 1.2 (emphasis added). Generally speaking, therefore, "lodging" under Miami 21 concerns the transient rental of "furnished rooms," like the typical room rented in a hotel, inn, or bed and breakfast. Due to the varied nature of the Airbnb rentals, we note that some rentals may qualify as lodging and some may not. Resolution of this issue cannot be made based upon the limited record before us, and it is not necessary to our holding.

The trial court limited the evidence to facts concerning the Airbnb platform and rentals by the individual plaintiffs, but it entered a very broad injunction that applied to all rental platforms and to all rentals in the T3 district. For the reasons discussed above, the temporary injunction framed by the trial court-to ban the City from prohibiting any vacation or short-term rentals in the T3 zone-is overbroad. We therefore vacate this part of the injunction.

B. The injunction enjoining the City from requiring speakers at public hearings to give their names and addresses is overbroad.

We also conclude that the second part of the trial court's injunction against the City is overbroad. As noted above, the trial court's order enjoins the City from "requiring members of the public, as a condition of their right to make public comment at City Commission meetings, from having to provide their names and addresses, and that agents of the City shall advise residents that, if they wish to remain anonymous, they will still be allowed to speak." This injunction was based on the trial court's concern that comments by the City Mayor and Manager signaled an intent to take heightened enforcement measures against property owners who spoke in favor of vacation rentals thereby chilling the owners' rights to free speech. Assuming such a concern was well taken, we hold that the remedy framed by the trial court-to ban the City from requiring public speakers from providing their names and addresses at all public hearings including hearings not involved in vacation rentals in residential neighborhoods-casts too wide a net.

There are many instances in which it is beneficial for a speaker at a public hearing to provide his or her name and address, and that practice does not chill the speaker's First Amendment rights. Calling speakers up to the podium by name provides an orderly process to conduct a public meeting without undue confusion or repetition. This benefits both the elected officials and the members of the public. Moreover, at public hearings involving local government matters such as budgeting, taxation, zoning, law enforcement, and local regulations, both elected officials and members of the public have a legitimate interest in knowing whether a speaker is a resident who will be impacted by the government action at issue. Finally, most public meetings do not offer the opportunity for governmental misuse of enforcement priorities that concerned the trial court when it issued the injunction.

In sum, the temporary injunction blocking the City from requiring the names and addresses of all speakers at all public hearings improperly "infringe[s] upon conduct that does not produce the harm sought to be avoided." Angelino, 2 So.3d at 1104. We therefore vacate the injunction.

In reversing the temporary injunction for being overbroad, we do not foreclose the trial court on remand from entering a temporary injunction narrowly tailored to address specific and identified problems as authorized by law.

Reversed and remanded.

LINDSEY, J., concurs.

LAGOA, J., (concurring in part and dissenting in part).

I write separately because I respectfully dissent in part from the majority opinion. The order before us temporarily enjoins the City of Miami (the "City") from: (1) enforcing any ban on vacation rentals within the City's T3 zone, i.e., the area zoned as suburban residential; (2) requiring members of the public to provide their names and addresses as a condition to speaking at City Commission meetings; and (3) requiring the City to advise residents that they may remain anonymous while speaking at City Commission meetings. Regarding that portion of the order relating to vacation rentals, I disagree with the majority's holding that the trial court erred in concluding that Appellees established a substantial likelihood of success on the merits regarding residences that are predominantly used for permanent housing-the issue that was the subject of the extensive evidentiary hearing held by the trial court. Although I agree with the majority that the order's injunctive remedy goes beyond what was established at the evidentiary hearing, I, unlike the majority, would not vacate the order, but would instead remand to the trial court with instructions to modify the order. Regarding that portion of the order addressing the City's requirements regarding conditions for speaking at City Commission meetings, I agree with the majority that the order's injunctive remedy is overbroad, but, rather than vacate the order, I would remand with instructions to modify the order.

The Injunction Against the City's Vacation Rental Ban

The question relating to the City's prohibition on vacation rentals depends upon the express language of the City's zoning ordinances. "Municipal ordinances are subject to the same rules of construction as are state statutes." Rinker Materials Corp. v. City of North Miami, 286 So.2d 552, 553 (Fla. 1973). As with state statutes, courts "are prohibited from inserting words or phrases into municipal ordinances to express intentions that do not appear," Mandelstam v. City Comm'n of City of S. Miami, 539 So.2d 1139, 1140 (Fla. 3d DCA 1983), and must give the ordinance "the plain and ordinary meaning of the words employed by the legislative body," here the City Commission, Rinker, 286 So.2d at 554. Moreover, "[z]oning laws are in derogation of the common law and, as a general rule, are subject to strict construction in favor of the right of a property owner to the unrestricted use of his property." Mandelstam, 539 So.2d at 1140 (citing City of Miami Beach v. 100 Lincoln Road, Inc., 214 So.2d 39 (Fla. 3d DCA 1968) ); see also Rinker, 286 So.2d at 553 ("Since zoning regulations are in derogation of private rights of ownership, words used in a zoning ordinance should be given their broadest meaning when there is no definition or clear intent to the contrary and the ordinance should be interpreted in favor of the property owner.").

The City's comprehensive zoning code, Miami 21, became effective in 2010. Miami 21 divides the City into various "transect zones" (i.e., zoning districts) and establishes permitted uses within each zone. At issue in this case is whether Miami 21 prohibited vacation rentals within the City's T3 zone prior to June 1, 2011. That date is significant because section 509.032(7)(b), Florida Statutes (2016), preempts any local law, ordinance, or regulation that prohibits vacation rentals unless the local law was adopted on or before June 1, 2011. Thus, if Miami 21 did not prohibit vacation rentals in the T3 zone prior to June 1, 2011, the City may not enact, amend, or otherwise interpret its zoning code to do so now.

Miami 21 defines the T3 zone as the City's "Sub-Urban" zone, and only permits certain "Residential" uses within it. Miami 21 defines "Residential" as the category "intended to encompass land use functions predominantly of permanent housing." (emphasis added) Building uses defined by Miami 21 that are not permitted in the T3 zone include "Lodging."

Miami 21 further divides the T3 zone into three categories-"Restricted," which permits only Single-Family Residences (and Home Offices) and Community Residences; "Limited," which includes all of the uses in the T3 Restricted category and adds Ancillary Units ("granny flats") as permitted uses; and "Open," which includes all of the uses in the T3 Limited category and adds Two Family-Housing (duplexes) as permitted uses. Miami 21 defines a "Single-Family Residence" as a:

Detached Building used as a permanent [ ] residence by a single housekeeping unit. The term is general, applying to all detached house types. Also known as Principal Dwelling Unit.

(emphasis added). Other types of Residential uses defined in Miami 21, i.e., Multi-Family Housing; Live-Work; Work-Live, are not permitted in the T3 zone. Miami 21 measures the number of residences in all types of Residential uses in terms of "dwelling units," a term that is not defined in the zoning code.

On its face, Miami 21 does not address a resident's use of his or her permanent residence for temporary vacation rentals. Indeed, the express language of Miami 21 states that the Residential use category encompasses "land use functions predominantly of permanent housing," thereby contemplating that a Residential use building may include additional uses as long as those other uses do not diminish the fact that the predominant, i.e., outstanding or prevailing, use of the property is for permanent housing. Had the City intended to adopt a more restrictive standard for its zoning ordinance, it could have used the word "exclusively," rather than "predominantly," in its definition of Residential use. As noted above, however, we are not free to insert words into municipal ordinances that do not appear in them.

During the course of the five-and-a-half-hour evidentiary hearing, the trial court heard testimony from a number of witnesses, including a number of the individual Appellants. Their unrebutted testimony was that each of them live in a single-family residence that is his or her permanent residence and that is located in the City's T3 zone. Each testified that they occasionally use Airbnb, Inc.'s ("Airbnb") platform to rent out all or part of their permanent residence on a temporary, short-term basis. The Appellants' use of Airbnb's platform varies among them. For example, Kenneth Tobin testified that he rented his home for "less than 20" days each year during 2015 and 2016, and that "[t]wo nights is the average stay" for each rental. He further testified that he had "probably seven" different renters during that period of time. During those rentals, Mr. Tobin testified that he does not stay in his home, but either travels out of town or stays somewhere else in town (e.g. , his boat; his daughter's house). Gary Levin testified that he believed that during 2016 he and his wife, Appellant Toya Bowles, rented their home for 12 nights, with the average stay being "three nights, a long weekend." Yamile Bell testified that she rented a room in her house "probably" more than 30 times during 2016, with the length of stay varying. Ms. Bell testified that, unlike Mr. Tobin, she and her family live in their home during each of these rentals.

During its direct and cross-examination of the various witnesses at the evidentiary hearing, the City did not elicit any testimony that contradicted the Appellants' testimony regarding their use of their residences. For example, the City made no attempt to show that the predominant use of any of the Appellants' houses was for anything other than their personal, permanent residences. Instead, the City argued below, and before this Court, that the Appellants' occasional, short-term rental of all or some of the rooms in their permanent residences converted the building's use from "Residential" to "Lodging."

As noted above, Miami 21 prohibits "Lodging" uses in the T3 zone. Miami 21 defines the "Lodging" category as "intended to encompass land Use [sic] functions predominantly of sleeping accommodations occupied on a rental basis for limited periods of time." (emphasis added). Miami 21 measures the sleeping accommodations in terms of "lodging units," which are defined as "furnished room[s] of a minimum two hundred (200) square feet that includes sanitary facilities, and that may include limited kitchen facilities." A lodging unit is further defined as "not qualifying as a Dwelling Unit or efficiency apartment; occupied by transients on a rental or lease basis for limited periods of time." Miami 21 further defines the categories of permitted Lodgings, based on the number of lodging units grouped together in a building, i.e., a Bed & Breakfast (a group of up to ten lodging units), an Inn (a group of up to twenty-five lodging units), and a Hotel (a group of more than twenty-five lodging units).

Miami 21 expressly defines the situation where a building in the City's Residential use category will be considered part of the Lodging use category. Specifically, "Multi-Family Housing" use falls within Miami 21's Residential use category. Miami 21 provides, however, that a "multifamily Structure where Dwelling Units are available for lease or rent for less than one month shall be considered Lodging." Significantly, this is the only place where Miami 21 mentions the recategorization of Residential use to Lodging use based on short-term rentals. As Multi-Family Housing is not a permitted use within the T3 zone, however, this provision has no applicability to the T3 zone. Indeed, Miami 21 is simply silent regarding a resident's occasional short-term rental of his or her permanent residence at any building type permitted in the T3 zone. Principles of statutory construction therefore compel the conclusion that, other than the Multi-Family Housing exception discussed above, Residential use buildings whose use functions are predominantly that of permanent housing are not lodging units under Miami 21. See, e.g., Headley v. City of Miami, 215 So.3d 1, 9 (Fla. 2017) ("[U]nder the principle of expressio unius , est exclusio alterius , meaning 'the mention of one thing implies the exclusion of another,' legislative direction as to how a thing shall be done is, in effect, a prohibition against it being done any other way."); Rinker, 286 So.2d at 555 (applying same rule of statutory construction to zoning ordinance). Based on the express language of Miami 21 and the principles of statutory construction that must be applied to the City's zoning code, the trial court correctly concluded that the Appellants had established a likelihood of success on the merits.

The trial court erred, however, in the breadth of its temporary injunction. The Appellants succeeded in establishing that Miami 21 does not prohibit vacation rentals in the T3 zone, as long as the building's use remains predominantly for permanent housing, i.e., the residence continues to conform to the restrictions generally applicable the "Residential" use category. The trial court's order, however, goes beyond that and establishes a blanket prohibition on the City's ability to enforce its existing zoning code against buildings located in the T3 zone that do not conform to those restrictions. For example, the owner of a single-family residence could seek to use the house solely for vacation rentals. In that case, the residence might violate the zoning regulations generally applicable to the T3 zone because its use would not be predominantly for permanent housing. Cf. Flava Works, Inc. v. City of Miami, 609 F.3d 1233 (11th Cir. 2010). Because nothing in section 509.032(7)(b) prohibits the City from enforcing its zoning regulations against nonconforming uses, the trial court's order goes beyond what was established at the evidentiary hearing. Rather than vacate that portion of the order in its entirety, however, I would remand with instructions to the trial court to modify the temporary injunction consistent with this analysis.

The Injunction Against the City's Policies for Commission Hearings

The trial court's order also enjoins the City from "requiring members of the public, as a condition of their right to make public comment at City Commission meetings, from having to provide their names and addresses, and that agents of the City shall advise residents that, if they wish to remain anonymous, they will still be allowed to speak." The majority correctly points out the legitimate reasons that the City has for asking speakers to provide their name and address at public hearings, and also correctly points out that prohibiting the City from requiring the names and address of all speakers at all public hearings goes far beyond the harm that motivated the trial court's order in the first place.

The issue before us is not the general application of the City's policy of requiring names and addresses as a condition of speaking at a public hearing, but instead whether, as applied to the specific circumstances at issue in this case, application of the City's policy provided sufficient grounds to support the trial court's conclusion that injunctive relief was warranted. The undisputed facts giving rise to the trial court's order are therefore important.

On Thursday, March 23, 2015, the City Commission held a regularly scheduled meeting to consider adoption of a resolution prohibiting vacation rentals in the T3 zone and directing the City Manager to enforce the City's regulations against such activity. The resolution ultimately passed by a 3 to 2 vote of the City Commission. Appellants Bell, Bowles and Tobin testified at the evidentiary hearing that they attended and spoke at the City Commission meeting, and that in order to speak at the meeting, each was required to give their name and address to the City Clerk. In addition, the parties stipulated to a number of facts for purposes of the evidentiary hearing, including:

(1) the City requires speakers, as a condition of speaking at any City Commission meeting, to provide their names and addresses as part of the Commission's regular procedures;
(2) at the March 23, 2017 Commission meeting, the City Manager stated: "We are now on notice for people who did come here and notify us in public and challenge us in public . I will be duly bound to request our personnel to enforce the city code." (emphasis added); and
(3) at the March 23, 2017 Commission meeting, the Mayor stated: (a) "With that lawsuit, [Airbnb is] precipitating things because I think it's their fault that they brought these people to City Hall knowing ... that they have to give their name and addresses."; (b) "The city attorney is planning on sending out cease-and-desist orders in the coming weeks specifically to the hosts who spoke up at the meeting."; and (c) "This is more than taking the temperature.
This is about sending a message to the residents."

Appellants sought a temporary injunction based on the chilling effect that these public statements, coupled with the City's requirement that speakers provide their names and addresses prior to speaking before the City Commission, had on their rights under the First Amendment to the United States Constitution. The First Amendment secures to citizens the right, inter alia , to "petition the Government for a redress of grievances," and that right is applicable to state and local governments through the Fourteenth Amendment. Actions taken in retaliation or retribution for statements made by citizens addressing a local governmental body, such as the City Commission, on matters of public concern can violate that constitutional right to petition. See, e.g., Jeffords v. Columbia Cty. Bd. of Cty. Comm'rs, No. 3:13-cv-286-J-32PDB, 2014 WL 6065711, at *3-4 (M.D. Fla. Nov. 12, 2014) (noting that adverse consequences visited upon a citizen who exercises her right to petition the government can give rise to a First Amendment violation, but concluding that no violation had occurred under the particular circumstances); see also Bennett v. Hendrix, 423 F.3d 1247, 1254 (11th Cir. 2005) ("A plaintiff suffers adverse action if the defendant's allegedly retaliatory conduct would likely deter a person of ordinary firmness from the exercise of First Amendment rights."); Moon v. Brown, 939 F.Supp.2d 1329, 1349-51 (M.D. Ga. 2013) (finding that a mayor's direction to tow plaintiffs' pickup truck with political sign in its bed, at an expense of $90.00 incurred by plaintiffs to recover their truck, constituted retaliation in violation of plaintiffs' exercise of their First Amendment right to freedom of speech).

The majority appears to agree with the trial court that the City's actions infringed on Appellants' right to petition their government, but vacates the injunction as too broad. I agree with the majority that the scope of the injunction casts too wide a net, but rather than vacating the injunction, I would remand with instructions to the trial court to modify the temporary injunction to more narrowly tailor it to remedy the particular harm to be avoided under these particular circumstances.

For these reasons, I respectfully concur in part and dissent in part.

      The parties stipulated to several comments made by the City Manager and Mayor, including the mayor's statement that the speakers "were putting themselves in harm's way by officially, publicly, on the record saying that they are violating the code of the City of Miami."

      All three testified that they reside in the properties. Two testified they sometimes move out temporarily and rent the entire property for short periods of time, while one testified that she rents out only a room. They estimated but did not know for any given year the exact number of rentals, guests per rental, or days per rental. For example, when asked on cross-examination how many days he rented his property in 2015, Kenneth Tobin testified, "I don't know the exact number of days, no." Similarly when asked on cross-examination how many days she rented her property, Yamile Bell testified "I don't have that number," but it was "more than 30 times."

      For example, one City resident testified that the owner of a single family house next to his home rented bunkbeds to as many as twenty persons at a time, thereby creating a nuisance.

      The legislature defined a "vacation rental" as
      any unit or group of units in a condominium or cooperative or any individually or collectively owned single-family, two-family, three-family, or four-family house or dwelling unit that is also a transient public lodging establishment but that is not a timeshare project.
      § 509.242(c), Fla. Stat. (2017) (emphasis added). "Transient public lodging establishment"
      means any unit, group of units, dwelling, building, or group of buildings within a single complex of buildings which is rented to guests more than three times in a calendar year for periods of less than 30 days or 1 calendar month, whichever is less, or which is advertised or held out to the public as a place regularly rented to guests."
      § 509.013(4)(a)(1) (emphasis added).

      The City suggests that Miami 21 expresses a clear intent that the language of the City's zoning ordinance be construed against the homeowner, relying on the statement in City of Hallandale v. Prospect Hall College, Inc., 414 So.2d 239, 240 (Fla. 4th DCA 1982), that "[s]ince zoning regulations are in derogation of private property ownership rights, general zoning law provides that zoning ordinances are to be construed broadly in favor of the property owner absent clear intent to the contrary ." (emphasis added). First, to the extent that the quoted language from City of Hallandale conflates the separate issues identified by the Florida Supreme Court in Rinker of (1) how broadly terms should be interpreted and (2) who should the ordinance be interpreted in favor of (municipality versus property owner), I would not follow that lead. Second, even if City of Hallandale articulates a correct legal standard, it is inapplicable here. Miami 21 states that "[w]here the requirements of this Miami 21 Code vary with the applicable requirements of any law, statute, rule, regulation, ordinance, or code, the most restrictive or that imposing the higher standard shall govern." That provision merely sets forth a rule of construction to resolve conflicts between Miami 21 and other applicable federal, state, or local laws. It has nothing to do with the internal interpretation of Miami 21's provisions, nor does it address how to interpret Miami 21 when the zoning ordinance itself is silent regarding an issue.

      On August 15, 2015, the City issued Zoning Interpretation 2015-001, which purported to "clarify the issue of short-term rentals" in the T3 zone. The 2015 Zoning Interpretation concluded, in cursory fashion, that Miami 21 prohibited a resident from providing a temporary vacation rental in a Single Family Residence or Two Family-Housing in the T3 zone because such use constitutes "Lodging," which is a prohibited use in the T3 zone. If the 2015 Zoning Interpretation were a valid construction of Miami 21's language existing as of June 1, 2011, then the City's prohibition on vacation rentals would not be preempted by section 509.032(7)(b), Florida Statutes. Because Miami 21 did not prohibit vacation rentals prior to § 509.032(7)(b)'s effective date, however, the 2015 Zoning Interpretation does not save the City's prohibition on vacation rentals from preemption.

      "Predominate" means "1. To have or gain controlling power or influence; prevail. 2. To be of or have greater quantity or importance .... To dominate or prevail over." Predominate , The Am. Heritage Dictionary (Houghton Mifflin 3rd ed. 1992).

      "Permanent" means "1. Lasting or remaining without essential change. 2. Not expected to change in status, condition, or place." Permanent , The Am. Heritage Dictionary (Houghton Mifflin 3rd ed. 1999).

      Appellants Tobin, Levin, and Bell each testified that they understood the City officials' statements to be threats against them for speaking in opposition to the City's resolution prohibiting vacation rentals.

      McKinley v. Kaplan, 262 F.3d 1146, 1147 n.1 (11th Cir. 2001).


source: Caselaw Access Project

author: LINDSEY, J.

license: Public Domain

text:
    Juan C. ELSO, Petitioner, v. STATE of Florida, Department of Highway Safety and Motor Vehicles, Respondent.
    No. 3D18-1183
    District Court of Appeal of Florida, Third District.
    Opinion filed December 5, 2018
    Michael Garcia Petit, P.A., and Michael Garcia Petit, Miramar, for petitioner.
    Christie S. Utt, General Counsel, and Mark L. Mason (Tallahassee), Assistant General Counsel, for respondent.
    Before SCALES, LUCK, and LINDSEY, JJ.
   LINDSEY, J.

Petitioner seeks to have his license suspension quashed in this second-tier certiorari review of a decision of the circuit court sitting in its appellate capacity. The circuit court rejected Petitioner's argument that his license suspension was required to have been quashed and/or invalidated because the Department scheduled a second formal review hearing, after remand from a prior petition filed in the circuit court, more than 30 days after the circuit court rendered its decision in the prior petition. However, because Petitioner did not request a second formal review hearing after remand and, because there is no language in section 322.2615 of the Florida Statutes which requires a second formal review hearing be scheduled within 30 days after remand, we find no error and deny the petition.

I. BACKGROUND

On May 9, 2015, Petitioner was arrested and charged with driving under the influence of alcohol. The Florida Department of Highway Safety and Motor Vehicles ("Department") suspended his driver's license for twelve (12) months pursuant to section 322.2615, Florida Statutes (2015), because he refused to submit to a breath alcohol test. Petitioner timely requested a formal review hearing. The first formal review hearing was held in July of 2015. At that hearing, the hearing officer upheld the Department's suspension of Petitioner's license.

In August of 2015, Petitioner filed his first petition for writ of certiorari in the circuit court, asserting he was denied due process during the first formal review hearing because the hearing officer refused to recuse herself despite pronouncing Petitioner "very rude" during a telephonic conference and hanging up on him. On January 23, 2017, the circuit court issued an opinion granting the petition, agreeing that Petitioner was denied procedural due process, quashing the hearing officer's order upholding the suspension of Petitioner's license, and remanding the matter back to the Department with instructions that the hearing officer recuse herself. See Juan C. Elso v. State of Fla., Dep't of Highway Safety & Motor Vehicles, 24 Fla. L. Weekly Supp. 788a (Fla. 11th Cir. Ct. Jan. 23, 2017).

Petitioner made no request for a second formal review hearing and the order on remand gave no time frame within which the second formal review hearing was to take place. The Department, however, unilaterally scheduled a second formal review hearing for March 2, 2017 and mailed notice to Petitioner's counsel via U.S. Mail. Neither Petitioner nor his counsel appeared at the hearing. Consequently, the hearing officer once again upheld the suspension of Petitioner's license.

On May 30, 2017, Petitioner filed a second petition for a writ of certiorari in the circuit court contending that because the Department scheduled the second formal hearing for March 2, 2017-which was more than thirty days after the circuit court's January 23, 2017 opinion was rendered-the circuit court was required, pursuant to sections 322.2615(6)(a) and 322.2615(9), Florida Statutes (2017), to quash his license suspension instead of remanding the matter back to the Department for a second formal review hearing. In addition, Petitioner asserted that he was denied due process because he did not receive notice of the March 2nd hearing date. In support of his due process argument, Petitioner and his counsel submitted affidavits attesting that neither received notice of the March 2, 2017 hearing.

On March 26, 2018, another panel of the circuit court issued an opinion specifically rejecting Petitioner's argument that section 322.2615(6)(a) required the Department to schedule a second formal review hearing within thirty days after remand, absent a request from Petitioner. See Juan C. Elso v. State of Fla., Dep't of Highway Safety & Motor Vehicles, 26 Fla. L. Weekly Supp. 87a (Fla. 11th Cir. Ct. Mar. 26, 2018). In so doing, the circuit court found that there is "no statutory language as to the timeline for a formal hearing to be held by the Department upon remand [from a prior petition]." Id. Accordingly, it concluded that the remedy Petitioner sought under section 322.2615(9), i.e., invalidation of his license suspension, was not available absent a renewed or new request by Petitioner. Id.

However, relying on the two affidavits regarding Petitioner and his counsel's lack of notice for the March 2, 2017 second formal hearing, the circuit court granted the petition on that basis and remanded to the Department to hold a third formal review hearing. The order on remand expressly stated it was remanding "solely to provide Petitioner a formal review hearing before an impartial hearing officer to take place within thirty (30) days of the date of the filing of this Opinion." Id. (citing Tynan v. Dep't of Highway Safety & Motor Vehicles, 909 So.2d 991, 995 (Fla. 5th DCA 2005) (noting that since the Department failed to afford Petitioner due process, the Department had a right to conduct a hearing which met due process requirements) ). It is this March 26, 2018 circuit court opinion that is before us for review in the instant petition.

Petitioner advances two grounds on which he contends the circuit court failed to correctly apply the law: (1) its determination that invalidation of the suspension of his license was not required pursuant to sections 322.2615(6)(a), (9) based on the Department having scheduled the second review hearing more than thirty days after the first circuit decision was rendered; and, (2) its refusal to vacate or invalidate his license suspension on the basis of mootness because more than two years has passed since the expiration of Petitioner's initial twelve month license suspension. We disagree with both of Petitioner's arguments.

II. JURISDICTION

We have jurisdiction to review, on second-tier certiorari, the circuit court's second first-tier certiorari opinion rendered in this matter on March 26, 2018. See § 35.04, Fla. Stat. (2018) ; Fla. R. App. P. 9.030(b)(2)(B). As recently set forth in State Dep't of Highway Safety & Motor Vehicles v. Sperberg, the standard of review on second-tier certiorari review of a circuit court's first-tier certiorari review of a judicial/quasi-judicial administrative action is limited to whether the circuit court (1) afforded procedural due process and (2) applied the correct law. 257 So.3d 560, 561-62, 2018 WL 4905220 at *1, 2018 Fla. App. LEXIS 14353*2 (Fla. 3d DCA Oct. 10, 2018) (citing Broward Cty. v. G.B.V. Int'l, Ltd., 787 So.2d 838, 843-44 (Fla. 2001) ). "These two prongs are merely expressions of ways in which the circuit court decision may have departed from the essential requirements of the law." Id. (citing Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla. 1995) ). "This Court must exercise caution not to expand certiorari jurisdiction to review the correctness of the circuit court's decision." Id. (citing Futch v. Fla. Dep't of Highway Safety & Motor Vehs., 189 So.3d 131, 132 (Fla. 2016) ).

We further explained in Sperberg that " '[f]irst-tier' certiorari review at the circuit court level, a review as a matter of right and pursuant to Florida Rules of Appellate Procedure 9.030(c)(3) and 9.100, is a three-pronged review whereby the circuit court must determine: (1) whether procedural due process is accorded, (2) whether the essential requirements of the law have been observed, and (3) whether the administrative findings and judgment are supported by competent substantial evidence." Id. (citing City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla. 1982) ).

III. ANALYSIS

"Where the issue before the circuit court involves statutory construction, a writ of certiorari may be appropriate where the circuit court does not apply the plain and unambiguous language of the relevant statute, resulting in an egregious error." DMB Inv. Tr. v. Islamorada, Vill. of Islands, 225 So.3d 312, 316 (Fla. 3d DCA 2017) (citing Nader v. Florida Dept. of Highway Safety & Motor Vehicles, 87 So.3d 712, 723 (Fla. 2012) ). However, Florida courts are "without power to construe an unambiguous statute in a way which would extend, modify or limit its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power." City of Homestead v. McDonough, 232 So.3d 1069, 1072 (Fla. 3d DCA 2017) (emphasis omitted) (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) ).

Section 322.2615(6)(a) provides that "[i]f a person whose license was suspended requests a formal review, the department must schedule a hearing within 30 days after such request is received by the department and must notify the person of the date, time, and place of the hearing." § 322.2615(6)(a). However, we agree with the circuit court's finding that nothing in the language of Section 322.2615 sets forth a specific period of time within which the Department is required to schedule a formal hearing upon remand. The only statutory trigger outlined in section 322.2615(6)(a) that requires the Department to schedule a formal hearing within a thirty-day time frame is when "the person whose license was suspended requests a formal review ." § 322.2615(6)(a) (emphasis added).

Here, it is undisputed that Petitioner made no request for a second formal review hearing after remand. As such, we find the circuit court's application of section 322.2615(6)(a) in Petitioner's first-tier certiorari petition consistent with the plain language of the statute. Thus, because Petitioner made no request for a second or renewed formal review hearing after remand, the remedy Petitioner sought under section 322.2615(9), i.e., invalidation of his license suspension, was not available.

Further, we find no error in the circuit court's review and acceptance of Petitioner and his counsel's position, supported by affidavits, that they did not receive notice of the March 2, 2018 hearing. As a consequence of Petitioner's failure to appear at the March 2nd hearing, the hearing officer once again upheld the Department's suspension of his license. This was error. However, as the circuit court correctly found, the remedy is remand, not quashal of the license suspension. See Department of Highway Safety & Motor Vehicles v. Chamizo, 753 So.2d 749 (Fla. 3d DCA 2000) ("Where the hearing officer makes a harmful trial error, the remedy is to send the matter back for a new hearing."); see also Dep't of Highway Safety & Motor Vehicles v. Clay, 152 So.3d 1259 (Fla. 5th DCA 2014) ("This court has consistently held that when a circuit court quashes an order issued by a hearing officer on due process grounds, the matter is to be remanded to the administrative agency for further proceedings.").

Finally, Petitioner argues because the twelve month term of his license suspension by the Department expired while this matter was under review, the circuit court failed to apply the correct law when it remanded the matter back to the Department for a third formal review hearing rather than quash and/or invalidate his license suspension on the basis that the suspension is now moot. We disagree with Petitioner's argument on this point and agree with the Fourth District's holding and reasoning in Gordon v. Fla Dept. of Highway Safety & Motor Vehicles, 166 So.3d 902 (Fla. 4th DCA 2015).

CONCLUSION

For the reasons set forth above, the circuit court correctly applied section 322.2615 in determining that Petitioner's license suspension was not required to be invalidated thereunder. The fact that Petitioner's license suspension expired during the appellate review process does not require quashal of the suspension.

Petition denied.

      The opinion was signed on March 23, 2018 but not docketed until March 26, 2018. Throughout the briefing in this petition, both dates are used interchangeably by the parties.

      Pursuant to the circuit court's March 26, 2018 opinion, the Department rescheduled a third formal review hearing for April 19, 2018, almost two months before the instant petition was filed in this court. Petitioner and his counsel appeared and participated in that hearing and have raised no complaints with respect thereto. In fact, that is the remedy Petitioner and his counsel invited when they submitted affidavits as part of the second petition filed in the circuit court attesting that they did not receive notice of the March 2, 2017 hearing. As a result of the April 19, 2018 hearing, the hearing officer, once again, upheld the suspension of Petitioner's license. Though Petitioner complains in his reply brief that the State's response discussed these events which occurred after the circuit court's decision which is before us in the instant petition, it was Petitioner who first raised these events in his petition. See Petition at pp. 3-5; Reply at p. 4.


author: PER CURIAM.

text:
    Erika Schwarz WRIGHT, Petitioner, v. John R. WRIGHT, Respondent.
    Case No. 5D18-3354
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 6, 2018
    Shannon McLin Carlyle, of The Carlyle Appellate Law Firm, Orlando, for Petitioner.
    Jeana Vogel, of Ayo and Iken, PLC, Tampa, for Respondent.
   PER CURIAM.

Erika Schwarz Wright ("Wife") petitions for a writ of prohibition to preclude the assigned trial judge from further presiding over the dissolution of marriage litigation now pending against her husband, John R. Wright ("Husband"). The trial judge denied Wife's motion for disqualification, finding it to be legally insufficient. We grant the petition.

Florida Rule of Judicial Administration 2.330, titled "Disqualification of Trial Judges," provides, in pertinent part, that any party may move to disqualify the trial judge assigned to the case by filing a sworn written motion, specifically alleging the facts and reasons upon which the movant relies that show that the movant will not receive a fair trial or hearing because of the specifically described prejudice or bias of the judge. Fla. R. Jud. Admin. 2.330(a) -(d)(1). Upon receipt of the motion, the trial judge is limited to determining only the legal sufficiency of the motion. If legally sufficient, the judge must immediately enter an order granting disqualification; if not, the judge shall immediately enter an order denying the motion. Fla. R. Jud. Admin. 2.330(f).

"Whether the motion is legally sufficient is a question of law." Law Offices of Herssein & Herssein, P.A. v. United Servs. Auto. Ass'n , --- So.3d ----, ----, 2018 WL 5994243, 43 Fla. L. Weekly S565, S566 (Fla. Nov. 15, 2018) (quoting Mansfield v. State , 911 So.2d 1160, 1170 (Fla. 2005) ). "The standard for determining the legal sufficiency of a motion to disqualify is whether the facts alleged, which must be assumed to be true, 'would place a reasonably prudent person in fear of not receiving a fair and impartial trial.' " Id. (quoting MacKenzie v. Super Kids Bargain Store, Inc. , 565 So.2d 1332, 1335 (Fla. 1990) ). This fear of prejudice must be objectively reasonable. Id. (citing Arbelaez v. State , 898 So.2d 25, 41 (Fla. 2005) ). Our review of the legal sufficiency of a motion to disqualify is de novo. Krawczuk v. State , 92 So.3d 195, 200 (Fla. 2012) (citing Lynch v. State , 2 So.3d 47, 78 (Fla. 2008) ).

Wife argues that certain comments made by the judge at a hearing held on the parties' respective motions for temporary relief, where she was not represented by counsel, caused her to have a well-founded fear that she will not receive a fair trial. Wife alleged that the judge suggested to Husband's counsel to file a motion to allow Husband access into storage sheds to discover certain assets that Wife allegedly was selling to a third person and to serve this person with a "motion and a hearing on [a] rule to show cause, and [the judge would be] happy to drag him in [to court]." Wife also asserted that during this hearing, the trial judge dissuaded Husband's counsel from seeking to amend his pleadings to interject Husband's business entity into the litigation.

"Trial judges must studiously avoid the appearance of favoring one party in a lawsuit, and suggesting to counsel or a party how to proceed strategically constitutes a breach of this principle." Shore Mariner Condo. Ass'n v. Antonious , 722 So.2d 247, 248 (Fla. 2d DCA 1998) ; see also Chastine v. Broome , 629 So.2d 293, 295 (Fla. 4th DCA 1993) ("[T]he trial judge serves as the neutral arbiter in the proceedings and must not enter the fray by giving 'tips' to either side."). Here, assuming Wife's allegations to be true, the judge's suggestions to Husband's counsel on how to proceed reasonably created the appearance of favoring one party and, thus, was a departure from the judge's role as a neutral arbiter.

Wife raises several other comments made by the judge at this hearing which, based upon our decision today, we need not address. Accordingly, because we conclude that Wife's motion for disqualification was legally sufficient, we grant the petition for prohibition and remand this case for further proceedings.

PETITION for WRIT of PROHIBITION GRANTED; WRIT ISSUED.

ORFINGER, BERGER and LAMBERT, JJ., concur.

      Prohibition is the proper remedy when a trial judge denies a motion to disqualify. Time Warner Entm't Co. v. Baker , 647 So.2d 1070, 1071 (Fla. 5th DCA 1994).


author: BLACK, Judge.

text:
    Bret MAYO, Appellant, v. Kerry MAYO O/B/O M.O.M., Appellee.
    Case No. 2D17-3140
    District Court of Appeal of Florida, Second District.
    Opinion filed December 7, 2018
    Fred R. Kahle of The Kahle Law Firm, P.A., Labelle, for Appellant.
    No appearance for Appellee.
   BLACK, Judge.

Bret Mayo appeals the order entered in circuit court Case No. 17-DR-180 finding him in indirect criminal contempt for violating the terms of an injunction. Because the contempt proceedings did not comply with Florida Rule of Criminal Procedure 3.840, we reverse.

On May 15, 2017, Kerry Mayo filed a standard form "petition by affidavit for order to show cause for a violation of final judgment of injunction" in circuit court Case No. 17-DR-180. Mayo was not served with the petition. On June 2 the court issued a show cause order to Mayo, indicating the following:

YOU ARE HEREBY ORDERED to appear before the Honorable JAMES D. SLOAN, CIRCUIT JUDGE, at the Hendry County Courthouse, Third Floor, LaBelle, Florida, on Tuesday, June 20, 2017 at 2:00 p.m., to show cause why you should not be held in contempt of court for violation of the Final Judgment of Injunction for Protection in the above matter as stated in the Affidavit filed by the Petitioner, Kerry Mayo on May 15, 2017.

Ms. Mayo's petition was not attached to the order. On June 4 Mayo, through counsel, filed a response to the show cause order and alerted the court to the fact that Mayo had not been served with the petition. Mayo requested that Ms. Mayo be required to serve him with the petition. He also requested that the scheduled hearing be continued due to counsel's unavailability and to allow counsel time to prepare a defense once the petition was received. The court did not act on Mayo's requests.

On June 19 Mayo's counsel filed a motion to withdraw, indicating that due to a personal matter she could no longer represent him. The following day, the day of the scheduled hearing, counsel filed a stipulation to withdraw signed by Mayo which indicated that he had decided to continue pro se. Mayo appeared at the hearing on June 20 without representation and without notice of the allegations against him. At the start of the hearing, the court announced the case and immediately directed Ms. Mayo to call her first witness. The court did not notify Mayo of his right to counsel, advise Mayo of the allegations against him, or indicate whether Mayo was facing civil or criminal contempt. After Ms. Mayo's counsel finished questioning her first witness, the court asked Mayo if he had any questions for the witness. At that point Mayo requested a continuance, stating that he wished to be "afforded adequate legal representation." Mayo explained that he had contacted another attorney who had agreed to represent him in the matter but that the attorney had to be in court elsewhere that day. Ms. Mayo's counsel argued that Mayo's request was merely a delay tactic, citing his desire to proceed pro se in the stipulation to withdraw. Mayo's request was denied, and the hearing proceeded with Mayo acting without counsel. At the conclusion of the hearing, the court found Mayo to be in indirect criminal contempt, ordered him to undergo a psychiatric evaluation, and sentenced him to ten days in jail. Mayo was immediately taken into custody. Mayo's amended emergency motion to set aside the contempt order and for rehearing, filed by newly-retained counsel while Mayo was in custody, was denied. In the order denying the motion, the court indicated that the stipulation for withdrawal of counsel was merely a delay tactic, as was Mayo's request for a continuance. The court also indicated that the evidentiary issues raised by Mayo's counsel in the motion lacked merit because Mayo failed to object during the hearing. This appeal followed.

"The prosecution of indirect criminal contempt is governed by Florida Rule of Criminal Procedure 3.840. Florida courts have held that failure to strictly follow the dictates of that rule is fundamental error." Sramek v. State, 946 So.2d 1235, 1236 (Fla. 2d DCA 2007) (citing cases); see also Bray v. Rimes, 574 So.2d 1114, 1116 (Fla. 2d DCA 1990) ("Greater procedural due process safeguards are accorded when proceedings are for indirect criminal contempt." (citing Pugliese v. Pugliese, 347 So.2d 422, 425 (Fla. 1977) ) ). With regard to the order to show cause, rule 3.840(a) provides, in part, as follows:

The judge, on the judge's own motion or on affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring the defendant to appear before the court to show cause why the defendant should not be held in contempt of court.

The order to show cause was legally deficient in this case. The order did not state the essential facts constituting the charged contempt, and the petition filed by Ms. Mayo was not attached to the order. See Mix v. State, 827 So.2d 397, 399 (Fla. 2d DCA 2002) ; Flanagan v. State, 840 So.2d 379, 380 (Fla. 1st DCA 2003) ; cf. Brown v. State, 595 So.2d 259, 260 (Fla. 2d DCA 1992) (holding that show cause order was sufficient because it incorporated and attached the former wife's sworn petition). Nor did the order put Mayo on notice that he was facing criminal contempt. See Smith v. State, 144 So.3d 651, 655 (Fla. 2d DCA 2014) ; Bray, 574 So.2d at 1116 ; Wendel v. Wendel, 958 So.2d 1039, 1040 (Fla. 1st DCA 2007). The contempt proceedings were fundamentally flawed from the start, and as such reversal is required due to these deficiencies even in the absence of an objection to the sufficiency of the show cause order by Mayo below. See Mix, 827 So.2d at 399 ; see also Hagerman v. Hagerman, 751 So.2d 152, 154 (Fla. 2d DCA 2000) ("[T]his and other courts have ruled that the failure to comply with rule 3.840 is fundamental error and no objection is required.").

The court also failed to follow several other procedures set forth in rule 3.840. "The court must arraign the defendant, and ... [t]he defendant is entitled to representation, to testify on his own behalf, and to have witnesses subpoenaed to testify." Bank of N.Y. as Trustee for the Certificateholders CWMBS, Inc., CHL Mortg. Pass-Through trust 2006-OA5 Mortg. Pass-Through Certificates, SERIES 2006-OA5 v. Moorings At Edgewater Condo. Ass'n, 79 So.3d 164, 167 (Fla. 2d DCA 2012) (citing Fla. R. Crim. P. 3.840(d) ). Although the stipulation for withdrawal of counsel did indicate that Mayo had decided to proceed pro se, the court failed to inform Mayo of his right to representation in the first instance. See Ensign v. State, 67 So.3d 353, 354-55 (Fla. 2d DCA 2011) ("At the hearing on the order to show cause for indirect criminal contempt, the trial court failed to advise Ensign of his right to counsel and Ensign did not knowingly waive his right to counsel. The trial court erred in this regard."). Further, Mayo indicated to the court at his earliest opportunity during the hearing that he wished to be represented and that he had retained new counsel. Cf. Plank v. State, 190 So.3d 594, 607 (Fla. 2016) ("Because this case involved indirect criminal contempt, the trial court erred in failing to either appoint counsel or permit Plank the opportunity to obtain counsel."). Ms. Mayo's counsel argued, and the trial court agreed, that the purpose of Mayo's request was to delay the proceedings. Given that Mayo had not been put on notice of the allegations against him or even the nature of the contempt proceeding, he cannot be blamed for seeking a continuance. He was not abusing the process, and he was clearly prejudiced by the denial. The court further erred in failing to give Mayo "the opportunity to show cause why he ... should not be sentenced and to present mitigating evidence before the court sentence[d] him ... in open court." See Bank of N.Y., 79 So.3d at 167 (citing Fla. R. Crim. P. 3.840(g) ).

"[T]he indirect criminal contempt process requires that all procedural aspects of the criminal justice process be accorded a defendant ...." Haeussler v. State, 100 So.3d 732, 734 (Fla. 2d DCA 2012) (alteration in original) (emphasis added) (quoting Gidden v. State, 613 So.2d 457, 460 (Fla. 1993) ). The court's failure to strictly comply with rule 3.840 was fundamental error, and therefore we reverse the order finding Mayo in indirect criminal contempt. See Sramek, 946 So.2d at 1237.

Reversed.

CASANUEVA and BADALAMENTI, JJ., Concur.

      Ms. Mayo did not participate in this appeal.

      This appeal is not rendered moot by the fact that Mayo has already served his sentence and has otherwise complied with the court's order. See Sramek v. State, 946 So.2d 1235, 1236 (Fla. 2d DCA 2007) ("[T]he fact that a defendant has already served his sentence [for indirect criminal contempt] does not render his appeal moot." (citing Hagan v. State, 853 So.2d 595, 597 (Fla. 5th DCA 2003) ) ).

      Rule 3.840(a) also requires that a reasonable amount of time be provided between the service of the show cause order and the hearing to allow the defendant to prepare a defense. In the response to the show cause order Mayo's counsel indicated that the order had been served on Mayo on June 4, 2017, and that she would soon be leaving town and would not return for just over a week. Thus, even if Mayo had received notice of the allegations against him soon after counsel filed the response to the show cause order, counsel would have been left with only a few days to prepare a defense prior to the hearing. Cf. Korn v. Korn, 180 So.3d 1122, 1124 (Fla. 4th DCA 2015) (holding "that two days is not sufficient time to prepare to defend against an indirect criminal contempt charge"); Gratz v. State, 84 So.3d 1219, 1222 (Fla. 3d DCA 2012) (holding that "Gratz established that six days (and only four business days) was insufficient time for his counsel to prepare for the final [indirect criminal] contempt hearing").

      Additionally, while we agree with Mayo that "[t]o prove indirect criminal contempt, there must be proof beyond a reasonable doubt that the individual intended to disobey the court," see Hoffman v. State, 842 So.2d 895, 897 (Fla. 2d DCA 2003) (quoting Tide v. State, 804 So.2d 412, 413 (Fla. 4th DCA 2001) ), we do not believe that the court erred in failing to expressly state the standard used to evaluate the evidence. Mayo does not argue on appeal that the evidence failed to meet this standard, and he does not challenge the sufficiency of the court's factual findings. See Fla. R. Crim. P. 3.840(f) ("There should be included in a judgment of guilty a recital of the facts constituting the contempt of which the defendant has been found and adjudicated guilty.").


author: Per Curiam.

text:
    Richard MATHIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1726
    District Court of Appeal of Florida, First District.
    December 10, 2018
    Richard Mathis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   Per Curiam.

Richard Mathis petitions for a belated appeal contending that he did not receive notice of the circuit court's order denying relief on his Rule 3.850 motion. His petition explains that he did not attach his inmate mail logs-where all incoming legal mail must be recorded, see Fla. Admin. Code R. 33-210.102(15)(a) -because the "Legal Mail personnel said if the Court wants proof of when I received my ruleing [sic] that they [i.e., this Court] will have to request it because they will not give it to inmates." Before filing his petition, he asked the Department of Corrections for his mail logs, but the Department denied his request saying in its response that this Court "will need to contact the institution for these documents."

This Court ordered that Mathis provide a supplemental appendix "containing mail logs from the Department of Corrections in support of the request for belated appeal," short of which he may be subject to sanctions including "dismissal of this cause." In the past, an order of this type has been sufficient for an inmate to obtain copies of relevant mail logs from the Department, but the Department insisted again that this Court "will need to contact the institution for these documents."

Next, this Court issued an order for the State to show cause why a belated appeal should not issue based on Mathis's facially sufficient claim that he did not receive the circuit court's order. The State filed a response, attaching the mail logs for Mathis from the Department. Based on those logs, the State concedes that Mathis received no legal mail from the circuit court during the applicable time period and does not oppose Mathis pursuing his appeal belatedly.

Substantial time, effort, and expense, of course, could have been avoided if the Department followed its prior practice of providing inmates with their mail logs for attachment to their petitions for belated appeals. If the logs show no legal mail was received (as was the case here), the matter can be resolved expeditiously on that basis without additional processing or expense. The burden should not be placed on this Court to contact the Department for inmate mail logs in every case involving a belated appeal; this Court is in no better position than a petitioner, such as Mathis, or the State, to request, formally or informally, a copy of inmate mail logs in every case involving a belated appeal, which are many. Far better to make the inmate mail logs available at the outset so that unnecessary burdens on state resources and the judicial system are avoided.

Accordingly, Petitioner is granted a belated appeal of the December 29, 2017, order denying motion for postconviction relief in Gadsden County Circuit Court case number 2011-CF-326. A copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D).

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


author: Per Curiam. Rowe, J., dissenting.

text:
    Tyrone Randy JOHNSON Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4743
    District Court of Appeal of Florida, First District.
    December 10, 2018
    Andy Thomas, Public Defender, M. J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Steven E. Woods, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant, Tyrone Randy Johnson, Jr., appeals his sentence and argues that the trial court erred in denying his motion to correct a sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) because its finding that he posed a danger to the public warranting an enhanced sentence under section 775.082(10), Florida Statutes (2017), was insufficient and not supported by the record. For the following reasons, we agree and, therefore, reverse and remand for resentencing.

In October 2016, Appellant was convicted of acting as a bail bond agent with a suspended or revoked license, theft, and grand theft of a motor vehicle. The trial court sentenced Appellant on the bail bond and grand theft offenses to concurrent terms of fourteen months' imprisonment in the Department of Corrections to be followed by forty-two months' probation and to time served on the theft offense. On direct appeal, we vacated Appellant's convictions for "grand theft auto and theft of property," affirmed the conviction on the bail bond offense, and ordered that Appellant be resentenced accordingly. Johnson v. State , 228 So.3d 1164, 1168 (Fla. 1st DCA 2017).

On resentencing, Appellant scored a total of 4.6 points for the bail bond offense on his criminal punishment code scoresheet. The scoresheet read in part, "If total sentence points are less than or equal to 44, the lowest permissible sentence is any non-state prison sanction. If the total sentence points are 22 points or less, see Section 775.082(10), Florida Statutes, to determine if the court must sentence the offender to a non-state prison sanction." During the resentencing hearing, the State requested "the previous sentence in the same way." Defense counsel requested that the trial court sentence Appellant to "county jail as he now scores 4.6 points; and, therefore, would be presumed to get a non-prison sanction." Defense counsel explained, "He has served 383 days as of today's date, so the Court could not even sentence him to the time served that he has under the current scoresheet." The trial court stated:

I'm going to adjudicate you guilty of the offense of acting as a bail bond agent with a suspended or revoked license. I'm going to sentence you to 383 days incarceration, give you credit for the 383 days you have time served. So your incarcerative sentence is completed as of today....
That'll be followed by the 42 months of supervised probation....

Defense counsel requested clarification "because 383 days would be a Department of Corrections sentence and not a County Jail sentence." When asked if it was sentencing appellant to the Department of Corrections, the court replied, "I'm sentencing him to 383 days, and giving him credit for that amount that he's already served; that's correct." When asked if that would count as a "Department of Corrections release for the purposes of PRR [prison releasee reoffender sentencing for any future offenses]," the court replied, "It would." After defense counsel objected under section 775.082(10)"that he scores less than 22 points and cannot be sentenced to the Department of Corrections as he stands at resentencing," the court stated, "For all the reasons that have been previously articulated by the Court, both at the previous hearing on your Motion for Pretrial Release, it's for all those reasons that I do find that any other sentence other than what the Court has imposed would represent a risk to the community ...."

In its subsequent Order Making Written Findings that a Nonstate Prison Sanction Would be a Danger to the Public, the trial court set forth in part:

Here, a non-state prison sanction for defendant could present a danger to the public. First, as the record reflects, the defendant had his bond license revoked in 2012. Nonetheless, he continued to act as, and was convicted of, Acting as a Bail Bond Agent With a Revoked License. The defendant was out on bond during the pendency of this case pre-trial. He was routinely late for court appearances. On September 7, 2016, the defendant signed a notice to appear in court on September 19, 2016 at 9:00 a.m. Defendant failed to appear in court on September 19, 2016 at 9:00 a.m. and the court issued a capias for his arrest. He did ultimately appear at approximately 11:15 a.m. and was taken into custody at that time. Additionally, prior to sentencing, the defendant and his attorney requested that a Pre-Sentence Investigation (PSI) report be completed. That report was completed on November 10, 2016 and was considered by the court at the time of the defendant's sentencing. The PSI indicated that the defendant and/or his mother had largely refused to cooperate with the investigation that he and his attorney had requested. As a result, much of the information obtained could not be verified or corroborated. The PSI made reference to the defendant behaving in a paranoid fashion. The PSI also outlined defendant's prior probation sentence that he received in case 2011-CF-3029-A. In that case, the defendant was alleged to have violated his probation on multiple occasions including multiple violations for illegal drug use. The PSI had recommended a sentence of one (1) year in jail followed by probation. When viewing this case, and Defendant's history, a reasonable person cannot conclude that he will not continue to commit crimes whenever he is released from incarceration. Furthermore, prior county jail sentences have had no effect on deterring Defendant from committing additional offenses. The criminal justice system has failed to protect the public from the defendant's criminal conduct. It is unclear whether the defendant has the ability to stop his criminal behavior. It is clear to this Court that he could present a danger to the public and that a county jail sentence does not suffice as the appropriate punishment for him.

Pursuant to the written judgment, Appellant was "hereby committed to the custody of the Department of Corrections."

During the pendency of his appeal, Appellant moved to correct what he claimed was an illegal sentence based upon the trial court's enhancement. The trial court denied the motion without comment. This appeal followed.

The State argues, and the dissent agrees, that the issue in this appeal is moot given that Appellant has already served the entirety of his sentence. In Miller v. State , 79 So.3d 209, 209 (Fla. 1st DCA 2012), we dismissed the appeal because the appellant, who appealed the order revoking his probation and the sentence of five years' imprisonment, had already served his sentence, which made the appeal moot. Similarly, in Jones v. State , 239 So.3d 1294, 1294 (Fla. 1st DCA 2018), we dismissed an appeal after noting that the appellant appealed her sentence and argued only that the trial court considered improper factors when imposing an eight-month jail sentence and setting forth, "But because she has not challenged her conviction - only her sentence - and because she has already served that sentence, this appeal has become moot." Importantly, for purposes of this appeal, we noted that although the appellant in Jones asserted that the appeal was not moot because a possibility existed that adverse collateral legal consequences would befall the appellant, the appellant had not articulated what those consequences might be, and we could conceive of none. Id. Here, in contrast, adverse legal consequences could befall Appellant as a result of his sentence.

As Appellant argues, there is a conflict among Florida's appellate courts as to whether county jail time triggers PRR status. In State v. Wright , 180 So.3d 1043, 1044 (Fla. 1st DCA 2015), we found the Fifth District's reasoning in Louzon v. State , 78 So.3d 678 (Fla. 5th DCA 2012), and the Fourth District's reasoning in Taylor v. State , 114 So.3d 355 (Fla. 4th DCA 2013), persuasive in holding that the appellant, who was committed to the custody of the Department of Corrections and whose release facility was listed as the Department's central office, should be considered a PRR notwithstanding that he was sentenced to time served and physically walked out of a county jail. In Lewars, DOC #Y44737 v. State , No. 2D15-3471, --- So.3d ----, ----, 2017 WL 1969691, at *2 (Fla. 2d DCA May 12, 2017), the Second District held that the appellant, who was sentenced to two terms of twenty-four months' imprisonment and awarded 766 days' jail credit and, thus, walked out of the jail a free man instead of being transported to a Department of Corrections' facility, did not qualify as a PRR given that a PRR is defined as a defendant who has committed an enumerated offense "within 3 years after being released from a state correctional facility operated by the Department of Corrections." The Second District certified conflict with Wright , Taylor , and Louzon . Id. at ----, at *6. The Florida Supreme Court accepted jurisdiction in September 2017. See State v. Lewars , No. SC17-1002, 2017 WL 4022360, at *1 (Fla. Sept. 13, 2017).

The State contends that the conflict in the appellate courts will have no effect on Appellant since he served his term of incarceration not in a county jail but in the Department of Corrections. As Appellant argues, however, "[t]he entire point of his appeal is that because on resentencing the trial court imposed an illegal sentence, i.e., 383 days rather than 364 days, or a prison sentence rather than a jail sentence, [he] will be illegally subject in the future to [PRR] classification." Indeed, when asked if the 383 days "Department of Corrections sentence" "would count then as a Department of Corrections release for the purposes of PRR," the trial court replied, "It would." The State does not explain how Appellant could have been subject to PRR sentencing in the future had the trial court committed him "to the custody of the Alachua County Sheriff's Office, Department of the Jail," which was an option on the scoresheet. Given such, we do not believe that Appellant's challenge to the trial court's findings is moot.

Turning to the merits of this appeal, section 775.082(10), Florida Statutes (2017), provides:

If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.

The legality of a sentence presents a question of law reviewable de novo. Washington v. State , 199 So.3d 1110, 1111 (Fla. 1st DCA 2016).

Appellant argues on appeal that the trial court erred in denying his rule 3.800(b)(2) motion because the court's finding that he posed a danger to the public if not incarcerated was not supported by the record. A trial court's findings of dangerousness pursuant to section 775.082(10) must be in writing and must be supported by the record; speculative findings are insufficient. Jones v. State , 71 So.3d 173, 175-76 (Fla. 1st DCA 2011). In considering an upward departure pursuant to section 775.082(10), courts have looked to factors such as criminal history, victim injury, and propensity to commit future crimes. Reed v. State , 192 So.3d 641, 646 (Fla. 2d DCA 2016). In finding an offender to be a danger to the public, the trial court must do more than merely recite acts inherent in the crimes of conviction and "must make findings to establish a nexus between sentencing an offender to a nonstate prison sanction and the resulting danger that nonstate prison sanction could present the public." Id. "[A] danger to the public does not require a history of violence and can be based on economic or other types of harm." Jones , 71 So.3d at 176.

In Jones , the appellant was sentenced to three years in prison for driving while his license was cancelled, suspended, or revoked upon the trial court finding that a non-state prison sentence would present a danger to the public. Id. at 174. The trial court found that the appellant had evinced an unwillingness to discontinue driving without a driver's license despite repeated punishment, driving without a license endangers the public, the appellant's insistence on driving without a license required that he drove without insurance, and his unavailability to drive due to incarceration in state prison was the only method open to the court for the protection of the public. Id. In remanding for a non-state prison sanction, we agreed with the appellant that the trial court's findings were not supported by the record and explained:

Although Appellant's history of driving without a license arguably supports the trial court's finding that he will continue to do so, the court did not make sufficient findings and the record does not suggest that imprisonment within the state prison system rather than the county jail would better deter him from continued unlicensed driving. Nor is there any record support for the court's implicit finding that one year of incarceration in the county jail would constitute a significantly lesser deterrent for Appellant than three years in state prison. The trial court's additional findings are speculative at best because it does not appear from the record that Appellant has a history of vehicle accidents or engaging in high speed chases with law enforcement.

Id. at 176.

In Reed , the appellant was convicted of eleven counts of animal fighting and baiting and eleven counts of animal cruelty and was sentenced to twenty-five years' imprisonment upon the trial court's finding that he posed a danger to the public. 192 So.3d at 642-43. The trial court based its determination of dangerousness on the findings that the dogs found in the appellant's home were kept in horrible conditions, the dogs were tethered with heavy chains, blocks, and anchors, the dogs were confined in very small areas, paperwork showed that the bloodline of the dogs came from fighting dogs, expert testimony proved the aggressive nature of the dogs towards other animals and people, and the evidence was clear that the appellant was a professional dog raiser and dog fighter. Id. at 644. The Second District reversed the appellant's prison sentence upon concluding that the trial court's written findings merely recited the charges against him and some attendant details and failed to develop a nexus between a non-state prison sanction and the resulting danger he could present to the public. Id. at 647.

Subsequently, in Johnson v. State , 219 So.3d 167, 169 (Fla. 1st DCA 2017), we relied on Jones and Reed in vacating the appellant's upward departure prison sentence pursuant to section 775.082(10). There, the appellant was convicted of fleeing or attempting to elude a law enforcement officer, but was acquitted of aggravated battery on the same officer. Id. In finding that the appellant was a danger to the public and in imposing a prison sentence, the trial court found that the appellant was released on bond for another charge at the time he committed the offense in the case, the appellant was being taken into custody for failing to appear in court at the time he committed the offense at issue, the appellant represented a specific danger to a certain officer, the appellant represented a danger to other traffic; while the appellant was released on bond in the current case, he violated probation in a separate offense and pled to an independent new law offense, and the appellant was currently serving an independent prison sentence for a violation of probation. Id. at 169. We concluded that "none of the six grounds stated by the trial court explain how a non-state prison sanction, such as jail, could present a danger to the community, as required by the plain meaning of the statute as well as by subsequent case law," and we felt constrained to reverse "[g]iven the lack of a 'nexus.' " Id.

In this case, the trial court found that a non-state prison sanction could present a danger to the public because: (1) Appellant continued to act as a bail bond agent after he had his license revoked in 2012; (2) he was late for court appearances; (3) he failed to appear on September 19, 2016; (4) his PSI report indicated that he and/or his mother had largely refused to cooperate with "the investigation that he and his attorney had requested;" (5) the PSI made reference to Appellant behaving in a paranoid fashion; and (6) the PSI outlined Appellant's prior probation sentence and noted that he was alleged to have violated his probation on multiple occasions including multiple violation for illegal drug use. The trial court determined that a reasonable person could not conclude that Appellant would not continue to commit crimes whenever he is released from incarceration and that any prior county jail sentence had no effect on deterring Appellant from committing additional offenses.

As Appellant contends, the trial court impermissibly relied, at least in part, upon the crime at issue when it noted that Appellant continued to act as a bail bond agent after he had his license revoked. As Appellant also argues, there is no established connection between him appearing late for court and his danger to the public. The same could be said of Appellant's failure to appear and failure to cooperate with an investigation. As for the trial court's reliance upon the fact that Appellant, in a separate case, was alleged to have violated his probation on multiple occasions, including multiple violations for illegal drug use, the State argues that the "prior VOPs were relevant insofar as they pertained to Appellant's amenability to probation." However, whether or not that is true does not change the fact that, like the situation in Jones , there is no record support for the court's implicit finding that one year of incarceration in the county jail, or 364 days as requested by the defense, would constitute a significantly lesser deterrent for Appellant than the 383 days the trial court imposed. Stated differently, the trial court, like the court in Reed , failed to develop a nexus between a non-state prison sanction and the resulting danger Appellant could present to the public. Like the situation in Johnson where we found that none of the six grounds stated by the trial court explained how a non-state prison sanction, such as jail, could present a danger to the community, none of the trial court's findings in this case explained how sentencing Appellant to a year or less in jail could present a danger to the community, especially given the fact that Appellant was awarded time served for the entirety of his 383-day sentence.

The State argues on appeal that this case is more appropriately compared to Porter v. State , 110 So.3d 962, 963 (Fla. 4th DCA 2013), where the Fourth District affirmed a sentence enhancement under section 775.082(10). There, the trial court, after noting that the appellant was convicted by a jury for grand theft, found that the theft, consistent with the appellant's life-long modus operandi, was accomplished by means of writing a worthless check, the appellant, who was in his mid-sixties, had engaged in financial fraud his entire adult life, the financial and emotional damage in the case was significant, prior sentences had no effect on deterring the appellant from committing financial crimes, the criminal justice system had continuously failed to protect the public from the appellant's financial conduct, the public was entitled to be secure in its financial dealings, the appellant was a danger to the public in the past, was presently a danger to the public, and would be a danger to the public in the future when not incarcerated. Id. at 964.

Porter is distinguishable from this case. Not appearing for court or participating in investigations is far different from spending one's entire adult life engaging in a crime like financial fraud. Moreover, there is no evidence in this case that Appellant had a history of acting as an unlicensed bail bond agent, aside from the crime for which he was convicted.

Accordingly, because the trial court erred in imposing an enhanced sentence in this case, we reverse Appellant's sentence and remand for resentencing. On remand, the trial court must impose a non-state prison sanction. See Johnson , 219 So.3d at 170 (remanding for imposition of a non-state prison sanction and noting that the trial court was not permitted to articulate new reasons for a departure sentence); Jones , 71 So.3d at 176 (same).

REVERSED and REMANDED for resentencing.

Wolf and Lewis, JJ., concur; Rowe, J., dissents with opinion.

Rowe, J., dissenting.

I dissent from the majority's decision to reverse and remand for resentencing in this case. I would dismiss the appeal as moot. Johnson was sentenced to 383 days and given credit for the 383 days he had already served in a Department of Corrections' facility. Johnson argues that his appeal is not moot because his sentence should never have been imposed. However, it is the decision in Booker v. State , 244 So.3d 1151, 1156 (Fla. 1st DCA 2018), which prevented the imposition of his sentence, and he does not raise this as a reason for reversal on appeal. Because he is not challenging his conviction and has served his sentence, Johnson's challenge to the propriety of the trial court's sentencing decision has become moot. See Jones v. State , 239 So.3d 1294, 1294 (Fla. 1st DCA 2018) (dismissing an appeal that challenged the defendant's sentence, not her conviction, because the defendant had already served her sentence); Miller v. State , 79 So.3d 209, 211 (Fla. 1st DCA 2012) (dismissing an appeal of an order revoking probation and sentencing the defendant to five years' imprisonment because the defendant had already served his sentence).

      During the prior hearing on Appellant's motion for pretrial release, the trial court found that Appellant was a flight risk, he had established a track record of not complying with orders, he lost his license as a bail bondsman due to his prior criminal offenses, and he did not have a significant support system.

      Notably, Appellant did not argue the constitutionality of section 775.082(10) either below or on appeal. See Hughbanks v. State , 190 So.3d 1122, 1123 (Fla. 2d DCA 2016) ("In order to properly preserve an as-applied constitutional challenge for appeal, a defendant must timely raise the issue for the trial court's consideration."); Lamore v. State , 983 So.2d 665, 668 (Fla. 5th DCA 2008) (noting that a "constitutional application of a statute to a particular set of facts" must be raised at the trial level); see also Booker v. State , 244 So.3d 1151, 1156 (Fla. 1st DCA 2018) (holding that the last sentence of section 775.082(10), which allowed the trial court to sentence the appellant to prison rather than a nonstate prison sanction based upon its finding that he posed a danger to the public, was unconstitutional as applied to the appellant).