author: Forst, J.

text:
    BANK OF AMERICA, N.A., Appellant, v. Kenneth H. GRAYBUSH a/k/a Kenneth Howard Graybush and Robin B. Graybush a/k/a Robin Bean Graybush, Appellees.
    No. 4D17-1256
    District Court of Appeal of Florida, Fourth District.
    August 15, 2018
    Mary J. Walter of Liebler Gonzalez & Portuondo, Miami, for appellant.
    Kendrick Almaguer and Thomas Eross Jr. of The Ticktin Law Group, P.L.L.C., Deerfield, Beach, for appellees.
   Forst, J.

Appellant Bank of America, N.A. ("the Bank") appeals a final judgment in favor of appellees Kenneth and Robin Graybush ("the Borrowers"). The trial court found that although the Bank had proven the elements of foreclosure, the action was time-barred by the applicable statute of limitations; accordingly, the trial court granted the Borrowers' motion for involuntary dismissal. For the reasons explained below, we reverse and remand for the trial court to enter final judgment in favor of the Bank.

Background

On July 16, 2007, the Borrowers executed a promissory note in the amount of $148,500, secured by a mortgage on real property. Under the terms of the note, the Borrowers would make monthly installment payments to satisfy the loan. The designated maturity date of the note, for which all payments were due, was August 1, 2027. The Borrowers agreed in the note, that "[i]f on AUGUST 01, 2027, I still owe amounts under this Note, I will pay those amounts in full on that date, which is called the 'Maturity Date.' "

Paragraph twenty-two of the mortgage had an optional acceleration clause providing that should the Borrowers default on any monthly payment, the Bank could elect to provide them with a notice of acceleration. Further, "[i]f the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding." (Emphasis added).

Paragraph nineteen of the mortgage provided that, after acceleration, the Borrowers could reinstate the mortgage by curing (i.e., paying everything owed under the terms of the note and mortgage) up until entry of a judgment enforcing the mortgage. Upon reinstatement of the mortgage, the mortgage "and obligations secured hereby [would] remain effective as if no acceleration had occurred." The Borrowers also agreed that "[e]ven if, at a time when I am in default, the Note Holder does not require me to pay immediately in full as described above, the Note Holder will still have the right to do so if I am in default at a later time."

Beginning on October 1, 2008, the Borrowers stopped making installment payments on their mortgage. The Bank responded the following month with a "Notice of Intent to Accelerate," advising them of the default and stating in part:

If the default is not cured on or before December 17, 2008, the mortgage payments will be accelerated with the full amount remaining accelerated and becoming due and payable in full, and foreclosure proceedings will be initiated at that time.

The Borrowers subsequently did not cure the default, and on September 29, 2009, the Bank filed a complaint to foreclose and for the first time "declare[d] the full amount payable under the Note and Mortgage to be due," pursuant to the mortgage's optional acceleration clause. The complaint alleged that the Borrowers defaulted on the note and mortgage by failing to pay the "October 1, 2008 payment and all payments due thereafter." For reasons not relevant to this appeal, the Bank voluntarily dismissed the complaint without prejudice on July 23, 2013.

On September 16, 2014, the Bank filed a second complaint for foreclosure. The complaint alleged the same October 1, 2008 default and that "all subsequent payments have not been made."

At trial, the Bank's witness, an employee who worked for almost nine years as a "consumer resolution team representative," testified that the Borrowers defaulted on October 1, 2008 and that the loan was still in default up to that point. The Bank introduced a payment history evidencing the missed payments. The Borrowers declined to present any evidence, and instead only raised a statute of limitations defense. At the conclusion of the Bank's case-in-chief, the Borrowers moved for involuntary dismissal on that basis.

The trial court found that the Bank proved its case by a preponderance of the evidence. However, it held that "the statute of limitations commenced to run when [the Bank] exercised the acceleration option of the Mortgage and notified [the Borrowers] of this exercise by its Notice of Intent to Accelerate mailed on November 17, 2008, unequivocally and clearly accelerating the debt should payments not be received on or before December 17, 2008." The court concluded that, based on the December 17, 2008 date, the complaint filed on September 16, 2014 was barred by the five-year statute of limitations set forth in section 95.11(2)(c), Florida Statutes (2017). As a result, the court dismissed the Bank's case without prejudice, and entered final judgment in favor of the Borrowers.

Analysis

"Generally, 'the issue of whether [a] claim is barred by the statute of limitations is a question of law subject to de novo review.' " Access Ins. Planners, Inc. v. Gee , 175 So.3d 921, 924 (Fla. 4th DCA 2015) (alteration in original) (quoting Beltran v. Vincent P. Miraglia, M.D., P.A. , 125 So. 3d 855, 859 (Fla. 4th DCA 2013) ).

The questions presented on appeal are whether the Bank's second foreclosure complaint was barred by the relevant statute of limitations, and if not, whether the Bank was entitled to all sums due under the note and mortgage. In Florida, the statute of limitations to file a foreclosure action is five years from the date of default. § 95.11(2)(c), Fla. Stat. (2017).

As a preliminary matter, we note that because we are dealing with an optional acceleration clause in the mortgage, acceleration "is not automatic or self-executing, but requires the lender to exercise this option and to give notice to the borrowers that it has done so." Snow v. Wells Fargo Bank, N.A. , 156 So.3d 538, 542 (Fla. 3d DCA 2015) ; see also Reano v. U.S. Bank Nat'l Ass'n , 191 So.3d 959, 961 (Fla. 4th DCA 2016).

On appeal, both parties correctly acknowledge that the trial court erred in picking December 17, 2008 as the date of acceleration. The Notice of Intent to Accelerate did not constitute an acceleration despite its language that the note "will be accelerated" if the Borrowers failed to cure by that date. The Bank retained discretion to accelerate at a later date, as the full amount of principal due was not stated-only the amount due for October and any additional regular payments and charges that came due before December 17, 2008. See Snow , 156 So.3d at 542 (holding that the portion of a notice letter that stated "[i]f you do not pay the full amount of the default, we shall accelerate the entire sum of both principal and interest due and payable ...," did not "convert[ ] the optional acceleration into a prospective, self-executing acceleration which was automatically triggered upon the failure of the [borrowers] to cure the default.").

Just as in Snow , the letter here did not indicate that the Bank was exercising its option to accelerate, but only that the Bank intended to accelerate at some point on or after December 17, 2008 should the Borrowers fail to cure. Id. at 542 ; see also Pino v. Deutsche Bank Nat'l Tr. Co. , 201 So.3d 128, 128 (Fla. 3d DCA 2015). The Bank did not actually accelerate the note until it filed the first complaint and declared all sums immediately due. Typically, when a mortgage contains an optional acceleration clause, "[t]he filing of suit for foreclosure amounts to exercise of the option of the mortgagee to declare the whole of the principal sum and interest secured by the mortgage due and payable."

Campbell v. Werner , 232 So.2d 252, 254 n.1 (Fla. 3d DCA 1970) ; see also Reano , 191 So.3d at 961 (similarly explaining that when a mortgage contains an optional acceleration clause, "[t]he filing of a lawsuit constitutes notice of acceleration.").

Admittedly, the Bank voluntarily dismissed the first complaint, but that had no effect on the Bank's ability to file a second complaint and re-accelerate the mortgage, given that the dismissal was without prejudice, and the Borrowers continued to be in default. "[A]fter the dismissal, the parties are simply back in the same contractual relationship as before, where the residential mortgage remained an installment loan, and the acceleration of the mortgage declared in the unsuccessful foreclosure action is revoked." Bartram v. U.S. Bank Nat'l Ass'n , 211 So.3d 1009, 1019 (Fla. 2016). "[A] dismissal without prejudice would allow a mortgagee to bring another foreclosure action premised on the same default." Id. at 1020.

"A voluntary dismissal [without prejudice] is not an adjudication on the merits and therefore will not support a claim of res judicata. " Evergrene Partners, Inc. v. Citibank, N.A. , 143 So.3d 954, 956 (Fla. 4th DCA 2014). Accordingly, "after the dismissal, the parties are simply placed back in the same contractual relationship as before, where the residential mortgage remained an installment loan, and the acceleration of the mortgage declared in the unsuccessful foreclosure action is revoked." Bartram , 211 So.3d at 1019.

Even though the Borrowers concede error as to the trial court's finding that the date of acceleration was December 17, 2008, they argue that the trial court's final judgment should be affirmed on alternative grounds, based on the Bank's allegation in its second foreclosure action that the Borrowers defaulted on October 1, 2008. The Borrowers point out that this date is more than five years from the date of filing the second complaint-September 16, 2014-and so the complaint should still be dismissed as barred by the statute of limitations. To support their argument, the Borrowers cite to Collazo v. HSBC Bank USA, N.A. , 213 So.3d 1012 (Fla. 3d DCA 2016), which held a second complaint was barred by the statute of limitations because it alleged a default date more than five years prior to the commencement of the second action. Id. at 1013.

We disagree with the Borrowers that the complaint was barred by the statute of limitations. While the Bank needed to allege a default date for which the statute of limitations had not yet run, Bartram , 211 So.3d at 1020, the Borrowers overlook the crucial fact that the complaint also alleged continuing defaults ever since the October 1, 2008 default. Alleging and proving separate and continuing defaults, some of which fall within five years of the filing of the complaint, satisfies the statute of limitations. Depicciotto v. Nationstar Mort. LLC , 225 So.3d 390, 391 (Fla. 4th DCA 2017) ; see also Kebreau v. Bayview Loan Servicing, LLC , 225 So.3d 255, 256 (Fla. 4th DCA 2017) (holding that "the complaint was not barred by the statute of limitations where it alleged continuing defaults"); Desylvester v. Bank of N.Y. Mellon ex rel. Holders of Alt. Loan Tr. 2005-62, Mortg. Pass-Through Certificates Series 2005-62 , 219 So.3d 1016, 1020 (Fla. 2d DCA 2017) (concluding that "the allegations of the complaint in the underlying action that the borrowers were in a continuing state of default at the time of the filing of the complaint was sufficient to satisfy the five-year statute of limitations").

The Borrowers' reliance on Collazo is misplaced because, unlike in Depicciotto , Kebreau , or Desylvester , the bank in that case did not allege continuing defaults that took place within five years of filing the complaint. Collazo , 213 So.3d at 1013 ("In contrast to these ... cases, the foreclosure action in the case before us was commenced on January 24, 2014, based on a default in payment alleged to have occurred on April 1, 2008. Counsel for [the bank] insisted on trying the case on the basis of that default."); see also HSBC Bank USA, Nat'l Ass'n for Registered Holders of Nomura Home Equity Home Loan, Inc. v. Estate of Petercen , 227 So.3d 640, 642 (Fla. 4th DCA 2017) (noting that Collazo resulted in a dismissal "because a single date of default was alleged in the ... complaint [at issue]").

Having found that the Bank's complaint was timely, we further hold that, in light of the competent, substantial evidence supporting the trial court's finding that the Bank proved its case, the Bank was entitled to all sums alleged and proven due under the note and mortgage-even those sums due more than five years from the date of filing the complaint. In doing so, we agree with the holding and rationale of Gonzalez v. Federal National Mortgage Association , No. 3D17-1246, --- So.3d ----, ----, 2018 WL 3636467 at *3 (Fla. 3d DCA Aug. 1, 2018), which dealt with virtually identical facts on this issue. We also certify conflict with Velden v. Nationstar Mortgage, LLC , 234 So.3d 850 (Fla. 5th DCA 2018), which would expressly exclude the Bank from recovering any such monies. Id. at 851-52.

We note that the Velden majority principally relied on five cases in limiting entitlement to installment payments to within five years of filing of a complaint. Id. However, in two of the cases, the lender had not accelerated the note; rather, it was suing for judgment on individual installments. Greene v. Bursey , 733 So.2d 1111, 1114-15 (Fla. 4th DCA 1999) ; Cent. Home Tr. Co. v. Lippincott , 392 So.2d 931, 932-33 (Fla. 5th DCA 1980). In two other cases, the plaintiff bank conceded that it could not recover for sums due more than five years prior to the commencement of the action, so the cases did not decide the issue. U.S. Bank, N.A. v. Diamond , 228 So.3d 177, 179 (Fla. 5th DCA 2017) ; U.S. Bank Nat'l Ass'n v. Bartram , 140 So.3d 1007, 1009 (Fla. 5th DCA 2014). The last case was a quiet title action. Kaan v. Wells Fargo Bank, N.A. , 981 F.Supp.2d 1271, 1272-74 (S.D. Fla. 2013). The court there held the lender could not sue on defaults more than five years past due, but it did not speak to entitlement to payments more than five years past due. Id.

Our holding is consistent with the view expressed by the concurring opinion in Velden , which in turn gave deference to Justice Lawson's recent concurrence in Bollettieri Resort Villas Condominium Ass'n, Inc. v. Bank of New York Mellon , 228 So.3d 72 (Fla. 2017). See Velden , 234 So.3d at 852-53 (Lambert, J., concurring). Justice Lawson's opinion noted that "[u]nder the terms of most long-term notes and mortgages ... the total amount due under the note does not become due until maturity-most commonly thirty years after signing." Bollettieri , 228 So.3d at 74 (Lawson, J., concurring). Given that a long-term note is just that, a promise to pay a determinate sum by a determinate date, Justice Lawson concluded that the failure to pay the entire amount due by the final due date-i.e., maturity date-is the last element of a foreclosure cause of action accruing the applicable statute of limitations. Id.

We readily agree. When a mortgage contains an optional acceleration clause, "forbearance [to collect all sums due upon a monthly default] will not constitute a waiver or defense against future collection of all sums due and owing under the note." Id. This is especially true when borrowers contractually approve such a provision in a note or mortgage. And here, the Borrowers expressly did so by agreeing in the note that "[i]f on AUGUST 01, 2027, I still owe amounts under this Note, I will pay those amounts in full on that date, which is called the 'Maturity Date.' " They also agreed, in no ambiguous terms, that "[e]ven if, at a time when I am in default, the Note Holder does not require me to pay immediately in full as described above, the Note Holder will still have the right to do so if I am in default at a later time."

Accordingly, we hold that based on the contractual provisions of the note, neglecting to sue for missed payments beyond five years did not waive the Bank's entitlement to all sums due on a later date, when that later date did not lie five years beyond a monthly default, or five years beyond the maturity date of the note. See Conner v. Coggins , 349 So.2d 780, 781-82 (Fla. 1st DCA 1977) (noting that when a mortgage contains an optional acceleration clause, the lender could have either brought its foreclosure suit within five years of a monthly default, or within five years from the date of the maturity of the note).

In the scenario in which a bank chooses to accelerate all sums due based on a monthly default, we note that the supreme court in Bartram held that "with each subsequent default, the statute of limitations runs from the date of each new default providing the mortgagee the right, but not the obligation, to accelerate all sums then due under the note and mortgage." Bartram , 211 So.3d at 1019 (emphasis added). With each new default, the bank "had the right to file a subsequent foreclosure action-and to seek acceleration of all sums due under the note -so long as the foreclosure action was based on a subsequent default, and the statute of limitations had not run on that particular default." Id. at 1021 (emphasis added); accord Gonzalez , --- So.3d at ----, 2018 WL 3636467 at *2 (similarly emphasizing the bank's right to accelerate "all sums due under the note" provided the action was timely filed); Desai v. Bank of N.Y. Mellon Tr. Co. , 240 So.3d 729, 730 (Fla. 4th DCA 2018) (same).

Alternatively, if a lender chooses not to accelerate all sums due based on a monthly default, we have previously held the lender can wait until the maturity date to recover all sums due. Greene , 733 So.2d at 1115 ("It is undisputed that [the lender] never accelerated the note even though, under the terms of the guaranty, he had the option of doing so upon [borrower's] default in any given month. Thus, the statute of limitations on the underlying note would not have commenced until it matured on April 1, 1991.").

Very recently, a federal bankruptcy court addressed the issue presented in this case and in Velden . See In re BCML Holding LLC , No. 18-11600-EPK, 2018 WL 2386814 (Bankr. S.D. Fla. May 24, 2018). In expressing "[a]maz[ement]" with respect to the Velden opinion, which it deemed "not well founded in the law," id. at *2, the court opined, in relevant part,

When one is considering an accelerated obligation, the triggering default and its relationship to the statute of limitations is completely separate from the debt that is subject to judgment and collection. The Florida Supreme Court in Bartram itself explains that the debt which is the subject of foreclosure is the accelerated debt, meaning the entire amount due under the mortgage loan. The Florida Supreme court stated: "[W]ith each subsequent default, the statute of limitations runs from the date of each new default providing the mortgagee the right, but not the obligation, to accelerate all sums then due under the note and mortgage." Bartram , 211 So.3d at 1019. The Florida Supreme Court made it clear that in a subsequent foreclosure the lender could pursue the entire accelerated debt. In other words, the statute of limitations is a procedural bar only. Once a timely action is filed, the remedy is controlled by contract.
....
In any case, the typical lender files suit seeking acceleration of its debt such that the entire sum owing, including principal, interest, advances, costs, and fees, will be included in the judgment. That entire debt ... is sought to be liquidated in the foreclosure action. When a lender seeks judgment on an accelerated debt, it makes no sense to suggest that any component of that accelerated obligation should be excluded from the judgment because it "came due" more than five years prior. It did not come due more than five years prior. It came due upon acceleration. It is all due presently, both what was to be paid on prior installment dates and what would otherwise be due on future installment dates. The installment dates no longer matter for purposes of the accelerated debt; it is all one debt.

In re BCML Holding LLC , 2018 WL 2386814 at *2 (emphasis added). See also Gonzalez , --- So.3d at ----, 2018 WL 3636467 at *3 ("[W]hen considering an accelerated obligation, while the triggering default must occur within the five year limitations period, the debt that is subject to judgment and collection is the accelerated debt, i.e., the entire amount due under the mortgage loan [and not individual installments]").

The second complaint in the instant case was timely filed, and not procedurally barred, because it alleged continuing defaults occurring within five years of the complaint. The Bank subsequently seeking all sums due was remedially valid, and not substantively limited, given the contractual provisions in the note expressly allowing the Bank to recover all sums due at a later date, even if the Bank forbore foreclosing based on defaults more than five years prior.

When a note contains an optional acceleration clause, a lender only runs out of opportunities to foreclose, under the applicable statute of limitations, after five years of the latest default, or after five years of the date of maturity of the note. But, should a lender bring a timely action under either scenario, it is entitled to all sums due under the note and mortgage-should the note and mortgage contractually provide. Here, it does-"Even if, at a time when I am in default, the Note Holder does not require me to pay immediately in full as described above, the Note Holder will still have the right to do so if I am in default at a later time."

Conclusion

The trial court erred in finding that the notice letter's deadline to cure was the acceleration date. Rather, the mortgage was accelerated when the Bank filed its first, and then second, complaint. Though the second complaint alleged the same October 1, 2008 default date, which was more than five years prior to filing, it also alleged that "all subsequent payments have not been made," which included defaults satisfying the applicable five-year statute of limitations.

The Bank did not waive entitlement to missed payments due more than five years prior to the filing of the second complaint. The statute of limitations is only a procedural bar to filing a foreclosure complaint. Upon a timely filing, the contractual provisions of the note and mortgage take effect to control the remedy. And here, the Borrowers and Bank expressly agreed in the note that the Borrowers would either pay all sums upon acceleration, or all sums due upon maturity of the note. Given that the Borrowers ceased payments, and the Bank timely chose to accelerate all sums based on the Borrowers' defaults, we reverse and remand for the trial court to enter final judgment in favor of the Bank, and award all sums due under the note dating back to October 1, 2008.

Reversed and remanded with instructions; conflict certified.

Damoorgian and Klingensmith, JJ., concur.

      Justice Lawson acknowledged that the views expressed in his concurrence were of no precedential value, but he invited the district courts of appeal to reconsider this issue on their own. Bollettieri , 228 So.3d at 75 (Lawson, J., concurring).

      Just like here, "[t]he Bollettieri contract also clearly provides that the lender or holder may forbear and hold off on accelerating the note-and that forbearance will not constitute a waiver or defense against future collection of all sums due and owing under the note." Bollettieri , 228 So.3d at 74 (Lawson, J., concurring).

      See Velden , 234 So.3d at 853 (Lambert, J., concurring) ("Under Justice Lawson's analysis [in Bollettieri ,] [the bank] should not be deemed to have waived or forfeited its right to have included in the final judgment of foreclosure those monies owed for non-payments on the note that are more than five years from the filing of the lawsuit based on the statute of limitations defense.").


source: Caselaw Access Project

author: B.L. Thomas, C.J.

license: Public Domain

text:
    Anthony Bernard WIGGINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-739
    District Court of Appeal of Florida, First District.
    August 16, 2018 Rehearing Denied September 25, 2018
    Andy Thomas, Public Defender, Victor D. Holder, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant challenges his conviction for possession of a concealed weapon by a convicted felon. Appellant raises seven arguments on appeal, only three of which merit discussion: That a firearm is not a "weapon" as defined by Florida Statutes and therefore cannot be a "concealed weapon"; that "possession of a concealed weapon by a convicted felon" is not an offense in the Florida Statutes; and that his conviction for a nonexistent crime was fundamental error. We reject the first argument but reverse and remand on the final argument.

I. Whether a firearm constitutes a "concealed weapon" as defined by section 790.001(3)(a), Florida Statutes.

Questions of statutory interpretation are reviewed de novo. State v. Burris , 875 So.2d 408, 409 (Fla. 2004). "[A] 'statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts.' " Acosta v. Richter , 671 So.2d 149, 153-54 (Fla. 1996) (quoting State ex rel. City of Casselberry v. Mager, 356 So.2d 267, 269 n.5 (Fla. 1979) ). " '[S]tatutory phrases are not to be read in isolation, but rather within the context of the entire section.' " Id. (quoting Jackson v. State , 634 So.2d 1103, 1105 (Fla. 4th DCA 1994) ).

Section 790.001, Florida Statutes, provides the following definitions:

(2) "Concealed firearm" means any firearm, as defined in subsection (6), which is carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person.
(3)(a) "Concealed weapon" means any dirk, metallic knuckles, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person.
....
(6) "Firearm" means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon ; ....
....
(13) "Weapon" means any dirk, knife, metallic knuckles, slingshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.

(Emphasis added.)

"Where possible, courts must give effect to all statutory provisions and construe related statutory provisions in harmony with one another." Young v. Progressive Se. Ins. Co., 753 So.2d 80, 84 (Fla. 2000) (quoting Forsythe v. Longboat Key Beach Erosion Control Dist. , 604 So.2d 452, 455 (Fla. 1992) ) (emphasis in original). "The general rule is that, if it is possible to do so, inconsistent provisions within a statute should be construed in a manner that reconciles the inconsistencies." Jordan v. Food Lion, Inc. , 670 So.2d 138, 140 (Fla. 1st DCA 1996). "If that is not possible, the inconsistencies should be resolved in a manner that will give effect to the last expression of the legislative will." Id. When first enacted in 1969, sections 790.001(3)(a), 790.001(6), and 790.001(13), Florida Statutes, all read in relevant part as they do today. Ch. 69-306, Laws of Fla.

Appellant argues that this court should follow the Second District's holding in Baldwin v. State that, because a firearm is not a "weapon" as defined by section 790.001(13), it cannot be a "concealed weapon" as defined by section 790.001(3)(a). 857 So. 2d 249, 252 (Fla. 2d DCA 2003). However, the Second District did not address the fact that section 790.001(6), Florida Statutes, defines "firearm" as a "weapon ... designed to ... expel a projectile." Id. at 251-52. Appellant's argument is incorrect to the extent that it is based on Baldwin 's holding that a "gun is not a 'weapon,' " 857 So. 2d at 251, because a gun is a weapon under section 790.001(6), a fact which the Baldwin court did not consider in reaching its conclusion.

A "basic rule of statutory construction requires a court to avoid a literal interpretation that would result in an absurd or ridiculous conclusion." M.D. v. State , 993 So.2d 1061, 1063 (Fla. 1st DCA 2008). Appellant's desired construction would establish that "firearms" are not "deadly weapons," a definition that is not only absurd but contrary to case law. See Parrish v. State , 66 So.3d 1030, 1033 (Fla. 1st DCA 2011) (holding, for purposes of Chapter 790, that "[a] deadly weapon is one likely to cause death or great bodily injury"). See also State v. Williams , 10 So.3d 1172, 1174 (Fla. 3d DCA 2009) ("A firearm is, by definition, a deadly weapon because it is designed to expel a projectile by the action of an explosive which is likely to cause death or great bodily injury."); Miller v. State , 613 So.2d 530, 531 (Fla. 3d DCA 1993) ("A firearm is, by definition, a deadly weapon which fires projectiles likely to cause death or great bodily harm; ...."); Riggins v. State , 557 So.2d 185, 185 (Fla. 3d DCA 1990) ("it is well settled that a firearm, as here, is a 'deadly weapon' within the meaning of" section 784.045, the aggravated battery statute). See also Baldwin , 857 So.2d at 254 (Silberman, J., concurring specially) (noting that, regarding section 790.001(13), "[t]he definition of 'weapon' contemplates that a firearm and common pocketknife would normally be included in the category of 'deadly weapon' or there would have been no reason for the legislature to use the language 'except a firearm or a common pocketknife' "). Thus, we reject Appellant's argument that a firearm is not a deadly weapon.

II. Whether the trial court fundamentally erred by instructing the jury on the non-existent crime of "possession of a concealed weapon by a convicted felon" instead of "carrying a concealed weapon by a convicted felon."

Section 790.23(1), Florida Statutes, makes it unlawful for a convicted felon "to have in his or her care, custody, possession, or control any firearm ... or to carry a concealed weapon[.]" Appellant was charged by information with "possession of a concealed weapon by a convicted felon ... contrary to the provisions of Section 790.23(1)(a), Florida Statutes." However, "possession of a concealed weapon" is not an offense named in section 790.023(1), Florida Statutes. The jury instructions repeated the incorrect name of the offense; while the instructions did track the correct elements for the actual offense of "carrying a concealed weapon by a convicted felon," the instructions also contained the definitions of "possess" and "actual possession," which are not applicable to the "carrying" offense in regards to a concealed weapon. Appellant was thus found guilty by a jury of the nonexistent offense of "possession of a concealed weapon by a convicted felon."

We agree with the Fourth District's holding in James v. State , 16 So.3d 322 (Fla. 4th DCA 2009) that, because the definition of "carrying" is narrower than the definition of "possession," the repeated mislabeling of the offense as "possession of a concealed weapon by a convicted felon" and the inclusion in the jury instructions of the definitions of "possess" and "actual possession" made it possible for the jury to convict Appellant of the broader and nonexistent offense, thus making the erroneous instructions fundamental error, as "no one may be convicted of a nonexistent crime." Achin v. State , 436 So.2d 30, 31 (Fla. 1982).

Appellant's conviction for "possession of a concealed weapon by a convicted felon" is reversed and remanded for a new trial on the crime of carrying a concealed weapon by a convicted felon. See id. (holding retrial on remand of nonexistent crime does not violate prohibition against double jeopardy where the nonexistent offense includes all elements of correct offense).

We affirm all other issues raised by Appellant.

AFFIRMED in part, REVERSED in part, and REMANDED for new trial.

Bilbrey and Jay, JJ., concur.

      The rule of lenity, codified in section 775.021, Florida Statutes, requires that penal statutes be strictly construed, with ambiguity resolved in the manner most favorable to the accused. However, "[t]his rule of lenity is a canon of last resort and only applies if the statute remains ambiguous after consulting traditional canons of statutory construction." Paul v. State , 129 So.3d 1058, 1064 (Fla. 2013). Because Appellant's desired construction would lead to an absurd result, the rule of lenity does not apply.


author: SILBERMAN, Judge.

text:
    Troy D. CANNON, Petitioner, v. STATE of Florida, Respondent.
    Case No. 2D18-229
    District Court of Appeal of Florida, Second District.
    Opinion filed August 17, 2018.
    Julianne Holt, Public Defender, and Justin Fahringer, Tampa, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katie Salemi-Ashby, Tampa, for Respondent.
   SILBERMAN, Judge.

Troy Cannon petitioned for a writ of mandamus compelling the trial court to accept his written waiver of appearance for a pretrial conference and quashing the capias issued on January 16, 2018. By order of February 2, 2018, we quashed the capias with opinion to follow. We treat the petition for writ of mandamus as a petition for writ of habeas corpus and now write to explain our rationale.

In June 2017, Cannon was charged with battery on a licensed security officer. At his arraignment, he agreed to enter a pretrial intervention program (PTI); however, he was rejected from the program because he had a pending domestic battery case. The domestic battery charge was dropped in August 2017. On December 2, 2017, the trial court scheduled a hearing to be held on December 20, 2017.

Defense counsel appeared for the December 20 hearing and advised the court that Cannon was not present. Counsel indicated that the court's notice of hearing was sent to an address provided by the Department of Corrections rather than the address Cannon had provided on the PTI form. Counsel stated that it did not appear that Cannon had received notice and that Cannon may not have known to be at the hearing. After discussion as to whether the State was still agreeable to PTI, the court acknowledged there had been confusion as to the giving of notice, reset the hearing for January 16, 2018, and added that Cannon needed to be in court on that date.

Defense counsel appeared at the January hearing and reported that his investigator had located Cannon, who was living in Kentucky. The investigator had left a message for Cannon, who then contacted counsel's office. Cannon stated that he could not return for the January 16 hearing as he needed at least two weeks so he could "identify the financial means in which to come to Court." Counsel noted that Cannon had filed a waiver of appearance and would continue to waive speedy trial. He asked that disposition be reset so Cannon could return in order to reenter PTI and have the case resolved. The State opposed defense counsel's request, argued that proper notice had been given to Cannon, and asked that the court issue a capias warrant.

The trial court rejected defense counsel's argument and issued a capias warrant for Cannon's arrest. The court stated that at the December hearing it had provided time for the defense to get Cannon to court and had indicated that Cannon needed to be present. Cannon then filed his petition seeking to quash the capias, which we granted on February 2, 2018.

In his petition, Cannon argues that under Florida Rule of Criminal Procedure 3.180(a)(3) he has the right to waive his appearance at all pretrial conferences and that the trial court did not have good cause to reject his waiver and issue a capias for his arrest upon his failure to appear at the January 16 hearing. See Jimenez v. State, 201 So.3d 214, 216 (Fla. 2d DCA 2016). He also maintains that he did not receive any notice from the court or the clerk that his appearance was required and could not be waived. Because of the lack of adequate notice, we treat the petition for writ of mandamus as a petition for writ of habeas corpus and quash the capias. See Cruz v. State, 822 So.2d 595, 596 (Fla. 3d DCA 2002).

Although we understand the trial court's frustration that Cannon did not personally appear for the hearings, based on the record before us we conclude that adequate notice was not provided to Cannon that he had to personally appear at the January 16, 2018, hearing despite his waiver of appearance. There was considerable uncertainty at the December 20 hearing regarding Cannon's address, and the court noted the discrepancy in addresses. The court asked the clerk if notice could be sent to the address Cannon had indicated, and the clerk indicated that notice would have to be sent to the address provided by the Department of Corrections, not the address provided by Cannon. At the end of the December hearing, the court told Cannon's attorney to "take whatever steps you need to notify him that he needs to be in Court on January 16th at 8:30."

At the January 16 hearing, the attorney explained that his investigator had located Cannon out of state and that Cannon needed at least two weeks to make financial arrangements to return to Florida. It was unclear whether Cannon was told that he would not be allowed to waive his appearance. That, in addition to the uncertainty regarding Cannon's address, his living outside Florida, and the information provided by counsel, leaves a question as to whether adequate notice was provided that Cannon was required to personally appear on January 16, failing which a capias warrant would be issued. Under these unusual circumstances, we conclude that the trial court was not justified in issuing the capias.

Petition for writ of mandamus treated as a petition for writ of habeas corpus and granted; capias quashed.

SLEET and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: CASANUEVA, Judge.

text:
    STATE of Florida, Appellant, v. Kenneth G. ROGERS, Appellee.
    Case No. 2D16-3470
    District Court of Appeal of Florida, Second District.
    Opinion filed August 17, 2018
    Pamela Jo Bondi, Attorney General, Tallahassee, and Chelsea S. Alper, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellee.
   CASANUEVA, Judge.

The State of Florida appeals an order granting Kenneth G. Rogers' motion to correct an illegal sentence and the ensuing amended sentence. Mr. Rogers alleged in his motion that his sixty-year prison sentence for one count of attempted sexual battery on a child was in excess of the statutory maximum for a first-degree felony. The trial court agreed and amended the sentence to thirty years in prison. The State does not contend that the thirty-year sentence for this count was improper but instead argues that the trial court erred in refusing to sentence Mr. Rogers for two other counts of attempted sexual battery on a child. We agree that Mr. Rogers has not yet been sentenced for the other two offenses and remand for the trial court to impose sentence.

Procedural History

Mr. Rogers originally entered a plea of no contest to three counts of attempted sexual battery on a child (counts one, two, and three) and three counts of committing a lewd act on a child (counts four, five and six). Mr. Rogers was sentenced to fifteen years in prison for counts four, five and six. He was also sentenced to ten years of probation for counts one, two, and three. The original judgments and sentences were entered on December 4, 1990.

After a second violation of probation, sentencing documents were filed on February 18, 2008, reflecting a sentence of sixty years in prison for counts one, two, and three. Thereafter, the trial court granted a motion to correct sentencing error on June 17, 2011, based on its finding that the oral pronouncement of the sentence addressed only count one. Therefore, the court vacated the sentences for counts two and three, nunc pro tunc to February 18, 2008.

The 2011 order was not appealed, presumably because it correctly determined that the trial court did not pronounce a sentence for counts two and three in 2008. The transcript of the 2008 sentencing hearing reflects that the trial court only pronounced a sentence on count one because it was under the misunderstanding that Mr. Rogers had been previously sentenced for counts two and three. After the clerk asked an inaudible question, the trial court stated, "No, those have all been - - it's only on the one Count. The others have already been time served. It's only on the one Count. Both sides agree as far as technically remain - - it's only on the one Count - - is the only Count that remains active as far as the sentencing?" The State answered, "Good question, Your Honor." The trial court then asked again, "Which was the sexual battery on a child Count?" The State responded, "I believe so." The trial court stated, "I believe all the Counts have already been subsumed by the way of the time served." Neither Mr. Rogers nor the State objected.

On March 7, 2016, Mr. Rogers filed the latest motion to correct illegal sentence, arguing that his sixty-year sentence for count one exceeded the statutory maximum of thirty years. In response to the motion, the State argued that the trial court was required to impose a sentence on counts two and three, because those counts were left without a disposition. The State noted that Florida Rule of Criminal Procedure 3.701(d)(12) mandates, "[a] sentence must be imposed for each offense."

The trial court granted Mr. Rogers' motion to correct illegal sentence, finding that the sixty-year sentence for count one was in excess of the statutory maximum for a first-degree felony. The trial court entered an amended judgment and sentence on August 4, 2016, which only addressed the attempted sexual battery charge in count one. However, on page five of the sentencing document, the trial court incorrectly "recommends/orders" that Mr. Rogers was previously sentenced for counts two and three on February 18, 2008. Further, at the hearing on the motion to correct sentence, the court found that in 2008 the judge orally sentenced Mr. Rogers to time served for counts two and three. The State correctly argues that the 2008 transcript does not support the trial court's finding.

Discussion

A review of the sentencing documents in the record shows that Mr. Rogers has not been sentenced for counts two and three. Therefore, the trial court erred in refusing to sentence Mr. Rogers based on the finding that he had been previously sentenced to time served. Despite the confusion at the probation violation hearing, the court at that time did not pronounce a sentence of time served as to counts two and three. Only the sentence for count one was pronounced. The court merely noted that Mr. Rogers had served his time in prison for some of the other charges. "No, those have all been - - it's only on the one Count. The others have already been time served." Clearly, Mr. Rogers had not yet been sentenced for counts two and three. Further, even if Mr. Rogers had been verbally sentenced to time served at the 2008 hearing, the trial court still should have entered a written sentence following the 2016 hearing. We therefore affirm Mr. Rogers' sentence of thirty years in prison for count one and remand this case to the trial court to impose sentence on the remaining two counts of attempted sexual battery on a child.

Affirmed in part, reversed in part, and remanded.

SALARIO and ATKINSON, JJ., Concur.


author: EVANDER, J.

text:
    Bernice Watkins WALLACE, Heir and Beneficiary of the Estate of Helen Hicks Watkins, and Rodney J. Strawter, Appellants, v. Terry Joseph WATKINS, Sr., Delphine Watkins and Joyce Elizabeth Watkins, Heirs and Beneficiaries of the Estate of Helen Hicks Watkins, Appellees.
    Case No. 5D17-4066
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 17, 2018
    Andrew J. Bernhard, Miami, for Appellants.
    No Appearance for Appellees.
   EVANDER, J.

Bernice Wallace and her son, Rodney Strawter, appeal an order allowing Appellees, Terry Watkins, Sr., Delphine Watkins, and Joyce Watkins, to reopen the summary administration of the estate of Wallace's mother, Helen Watkins, and determining Appellees to be intestate heirs of the decedent. We have jurisdiction to review this non-final order pursuant to Florida Rule of Appellate Procedure 9.170(b)(5) because it is an order determining heirship. Because Wallace and Strawter have failed to demonstrate reversible error, we affirm.

The decedent died intestate in 1971. In 2000, Wallace and her sister, Helen Mansell, filed a petition for summary administration to distribute the decedent's sole asset, a parcel of real property located in St. Augustine, Florida. The verified petition alleged that Wallace and Mansell were the only known "heirs at law and next of kin and beneficiaries of this estate." The record reflects that Wallace and Mansell did not serve notice of the petition for summary administration on Appellees, nor did they list Appellees as potential beneficiaries of the estate. In February 2001, the trial court entered an order of summary administration finding in part that "all interested persons have been served proper notice of the petition and hearing or have waived notice thereof; that the material allegations of the petition are true ...." The order distributed a half interest in the property to Wallace and a half interest to Mansell. During this time period, Mansell purportedly conveyed her interest in the property to Wallace and Strawter.

In 2016, Appellees filed a petition to reopen summary administration. They alleged that they were Mansell's biological children but had been adopted by the decedent (their maternal grandmother) in 1963. A copy of the adoption decree was attached to the petition. The petition further alleged that Appellees "were not given notice of the filing of the Petition for Summary Administration or entry of the Order of Summary Administration, despite the fact that they were and are easily ascertainable, and obviously, heirs of the decedent."

Wallace and Strawter filed a response requesting denial of the petition to reopen, arguing, inter alia , that: (1) the petition was time-barred, and (2) reopening the estate could not provide Appellees relief because Strawter purchased an interest in the property for value in a bona fide sale.

The trial court subsequently conducted a non-evidentiary hearing. At the hearing, Appellants voiced no objection to the court taking judicial notice of official court records to confirm the existence of the alleged adoption decree. Thereafter, the trial court filed the final decree of adoption entered in the official records for St. Johns County, Florida, reflecting that the decedent, Helen Watkins, had adopted Appellees on March 4, 1963. Ultimately, the trial court entered an order granting the petition to reopen summary administration and determining that Appellees were legal heirs of the decedent at the time of her death. This appeal followed.

Appellants argue that the trial court violated their due process rights by granting relief not requested by Appellees in their petition and by failing to hold an evidentiary hearing. We disagree. In their petition to reopen summary administration, Appellees specifically alleged that they were excluded from the original petition for summary administration although they were known heirs of the decedent. More importantly, the transcript of the hearing held below reflects that Appellants' counsel twice agreed to allow the trial court to determine whether Appellees were the decedent's legal heirs by taking judicial notice of the adoption decree:

THE COURT: My inclination, though, ... is if I do have a record in the public records of St. Johns County that shows the adoption, I'm probably in a position to, depending on what I decide, to at least accept that as a fact.
[APPELLANTS' COUNSEL]: I can't say anything to it, Your Honor.
THE COURT: Okay.
[APPELLANTS' COUNSEL]: Without -- you know, without more access, I can't say anything to it, but I trust Your Honor.
....
THE COURT: Well, I'll deal with whether or not I'm going to reopen the estate. I mean, I don't -- I'm going to, you know unless you don't want me to take judicial notice of the records of my own court --
[APPELLANTS' COUNSEL]: I would never do that.

Appellants also argue that Appellees' petition to reopen summary administration was time-barred by section 733.710(1), Florida Statutes (2016), commonly referred to as the nonclaim statute. That statute provides:

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

Florida's nonclaim statute applies to claims brought against the estate by creditors. It does not apply to the beneficial interests of heirs. See In re Estate of Robertson , 520 So.2d 99, 102 (Fla. 4th DCA 1988) (rejecting argument that nonclaim statute barred claim of heirship because such claims were "not the type of 'claim' contemplated" by nonclaim statute); see also Frank T. Pilotte, Creditors' Claims and Family Allowance, in Practice Under Florida Probate Code (9th ed. 2017) ("[H]owever, the definition of claims and the nonclaim statute clearly do not apply to the beneficial interests of beneficiaries.").

In addition, the summary administration statute, section 735.206, Florida Statutes (2016), has its own nonclaim provision and a separate provision allowing heirs not included in a summary administration to enforce their rights. These separate provisions state:

(f) After 2 years from the death of the decedent, neither the decedent's estate nor those to whom it may be assigned shall be liable for any claim against the decedent, unless proceedings have been taken for the enforcement of the claim.
(g) Any heir or devisee of the decedent who was lawfully entitled to share in the estate but who was not included in the order of summary administration and distribution may enforce all rights in appropriate proceedings against those who procured the order and, if successful, shall be awarded reasonable attorney's fees as an element of costs.

§ 735.206(4)(f), (g), Fla. Stat. (2016). The plain language of these provisions, and the fact that they are separate, makes clear that the summary administration nonclaim provision only bars claims "against the decedent," not actions by heirs who were not included in the summary administration to enforce their rights.

Appellants also argue that the petition to reopen summary administration should have been denied because Appellant Strawter was a bona fide purchaser of an interest in the sole asset of the estate. However, the trial court's order did not address the issue of whether Strawter was a bona fide purchaser, nor did it preclude Appellants from raising any statutory or equitable defenses to any claims to the property that may be asserted by Appellees. Thus, we conclude that this argument, as well as the other issues raised by Appellants, are without merit.

AFFIRMED.

TORPY and EDWARDS, JJ., concur.

      The parties below appear to have assumed that this case is governed by current Florida Statutes, as opposed to the statutes that existed at the time of the decedent's death or at the time of the original petition for summary administration. Because the parties did not further address this issue below, or on appeal, we similarly decline to address this issue.

      We agree with Appellants that the language in the trial court's order stating that Wallace and Mansell knew or should have known of the adoption is not supported by substantial competent evidence. We view such statements as unnecessary surplusage to the court's determination that Appellees were lawful heirs of the decedent and were entitled to have the summary administration reopened.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Sarah Marie HOLLINGER, Appellee.
    Case No. 5D17-1996
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 17, 2018
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellee.
    ON MOTION FOR REHEARING
   PER CURIAM.

We withdraw our prior opinion in this case and substitute the following on rehearing. The State appeals Sarah Marie Hollinger's downward departure sentence for the lesser-included offense of second-degree grand theft of $20,000 to $100,000, twelve counts of depositing a check with intent to defraud, and eight counts of uttering a forged instrument. The State argues that the trial court's finding that the offenses were committed in an unsophisticated manner and constituted an isolated incident for which the defendant has shown remorse is not supported by substantial, competent evidence. We agree.

Hollinger, in her capacity as the victim's business office manager, wrote petty checks from the victim's Resident Trust Account, presented them to her bosses for their signatures, and then deposited them into her own bank account for her personal use. Hollinger acknowledged that she did not get petty cash in the normal course of her position and she was not authorized to write petty cash checks to herself. Hollinger repeated this process over the course of several months, stealing more than $50,000 from the victim. Hollinger testified she did not attempt to cover her tracks. The victim impact statement admitted into evidence, however, indicated that the Resident Trust Checkbook and the victim's copies of the written checks were missing after Hollinger resigned. The victim had to obtain copies of the cleared checks from the bank.

Hollinger was originally charged with one count of organized fraud ($50,000 or more), a first-degree felony, eight counts of uttering a forged instrument, and twenty-nine counts of depositing a check with intent to defraud, all third-degree felonies. In exchange for her guilty pleas to the reduced charge of second-degree grand theft, twelve counts of depositing a check with intent to defraud, and eight counts of uttering a forged instrument, the State agreed to nolle pros seventeen counts of depositing a check with intent to defraud and to recommend a three-year cap on incarceration to be followed by probation.

Although Hollinger scored a minimum of twenty-four months in the Department of Corrections, over the State's objection, the trial court sentenced Hollinger to ten years' probation for grand theft and five years of concurrent probation for the remaining charges. The trial court found that Hollinger met the criteria for a downward departure under section 921.0026(2)(j), Florida Statutes (2016), because "[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse." Hollinger had the burden to establish by a preponderance of the evidence that there were facts to support all three elements. See State v. Weaver, 23 So.3d 829, 830 (Fla. 5th DCA 2009) ; State v. Subido, 925 So.2d 1052, 1057 (Fla. 5th DCA 2006).

The trial court found that the crimes were isolated because they constituted a single scheme and Hollinger has no prior record. The trial court next determined that the crimes were unsophisticated because Hollinger took no measures to protect herself or to hide her actions or identity. Finally, the trial court found that Hollinger demonstrated remorse by continuing on a course to mitigate the damage to the victims. Although we do not disturb the trial court's finding of remorse, we conclude that the record does not support a finding that the crimes were committed in an unsophisticated manner and were isolated.

"Cases generally define 'unsophisticated' as the opposite of 'sophisticated,' which in turn is defined as 'having acquired worldly knowledge or refinement; lacking in natural simplicity or naiveté.' " State v. Salgado, 948 So.2d 12, 16-17 (Fla. 3d DCA 2006) (quoting Staffney v. State, 826 So.2d 509, 512 (Fla. 4th DCA 2004) ). In assessing sophistication, courts have considered evidence of "several distinctive and deliberate steps." State v. Fureman, 161 So.3d 403, 405 (Fla. 5th DCA 2014) (quoting Salgado, 948 So.2d at 18 ; Staffney, 826 So.2d at 512 ). A crime lacks sophistication if the acts constituting the crime are "artless, simple and not refined." Salgado, 948 So.2d at 17 (quoting Staffney, 826 So. 2d at 509 ).

Although Hollinger likens the facts of her case to the facts in State v. Joseph, 922 So.2d 393 (Fla. 3d DCA 2006), the two are clearly distinguishable. In Joseph , the defendant kept a duplicate deposit made by a client into the defendant's trust account. 922 So.2d at 394. The client did not discover that it made a duplicate deposit until a year later. Id. The defendant kept the money and used it for personal and business obligations and was unable to return the funds once the client made the discovery. Id. The trial court determined that the offense was unsophisticated, finding that the defendant "looked at it as found money ... [the check] came to him and then he cashed it." Id.

In the instant case, the victim did not accidentally deposit the money into Hollinger's bank account. Instead, for several months Hollinger used her position of trust with the company to repeatedly obtain signatures on fraudulent checks in order to take the money for her own use. This certainly involved several distinctive and deliberate steps that she repeated on numerous occasions. Although Hollinger may not have taken elaborate steps to hide her actions, the victim impact statement indicated that she made some effort to conceal her actions by taking the checkbook and copies of the cleared checks with her. Based on these facts, we conclude that the offenses were not committed in an unsophisticated manner.

As for whether the offenses were isolated, there is no bright-line rule for deciding whether an offense is an isolated incident. State v. Waterman, 12 So.3d 1265, 1268 (Fla. 4th DCA 2009) (citing State v. Gaines, 971 So.2d 219, 221 (Fla. 4th DCA 2008) ). In this case, it is undisputed that Hollinger has no prior criminal history. However, a crime is not necessarily considered to be isolated merely because a party has no criminal history. See State v. Strawser, 921 So.2d 705, 707 (Fla. 4th DCA 2006) (finding offense could not be isolated where there were multiple incidents involving one victim over period of several months); see also Bellamy v. State, 199 So.3d 480, 483 (Fla. 4th DCA 2016) ("An offense also is not isolated if involves multiple incidents." (citing Strawser, 921 So.2d at 707 ) ); State v. Walters, 12 So.3d 298, 301 (Fla. 3d DCA 2009) (finding acts were not isolated where defendant pled guilty to over fifty separate money laundering transactions over the course of more than six months). We find that Hollinger's multiple offenses cannot be considered to be isolated.

Accordingly, we reverse and remand for resentencing.

REVERSE and REMAND for resentencing.

EVANDER, BERGER and WALLIS, JJ., concur.

      The author of the victim's statement testified at the sentencing hearing thereby allowing Hollinger an opportunity to question her as to the victim impact statement. See Dickie v. State, 216 So.3d 35, 38 (Fla. 2d DCA 2017) (finding trial court could properly consider unsworn victim impact statement to fashion sentence).

      But see State v. Milici, 219 So.3d 117, 122 (Fla. 5th DCA 2017) (finding no competent, substantial evidence to support remorsefulness where defendant declined to accept responsibility for crimes by either denying his involvement or blaming his actions on a friend); State v. Henderson, 152 So.3d 49, 51 (Fla. 5th DCA 2014) (explaining that evidence did not establish remorse where defendant denied committing the crime); State v. Ayers, 901 So.2d 942, 945 (Fla. 2d DCA 2005) (finding defendant failed to establish remorse where he continued to deny his responsibility for the offense); State v. Chestnut, 718 So.2d 312, 313 (Fla. 5th DCA 1998) ("We are certain that Chestnut's denial of doing 'what [he] was accused of' is not the kind of remorse contemplated by the legislature.").

      We recognize the holdings in State v. Merritt, 714 So.2d 1153 (Fla. 5th DCA 1998), and State v. Randall, 746 So.2d 550, 552 (Fla. 5th DCA 1999), but find that this case is distinguishable based on the number of offenses that occurred over a span of several months as opposed to several days.

      The trial court is not precluded from resentencing Hollinger to a downward departure if the sentence is supported by valid grounds and there is competent, substantial evidence to support those grounds. See Jackson v. State, 64 So.3d 90, 93 (Fla. 2011).


author: Ciklin, J.

text:
    Kareem Andre WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-570
    District Court of Appeal of Florida, Fourth District.
    August 22, 2018
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Ciklin, J.

Upon his return home from an outing, an elderly man was struck in the head and severely beaten by a burglar. The man was released from the hospital after staff determined his brain hemorrhage had resolved. In fact, it had not, and the man collapsed in his home and died. The appellant, Kareem Andre Williams ("the defendant"), argues, among other things, that his first-degree murder conviction should be reversed because the state did not prove that his actions caused the victim's death. We affirm on all issues raised, but we write to address the defendant's causation argument and a related argument regarding a requested special jury instruction.

We begin with a factual overview. The victim in this case was an eighty-year-old man who had spent the day shopping at the mall with his adult daughter. Upon arriving home, the victim pulled his car into the garage, and he and his daughter exited the car. The defendant appeared out of nowhere and attacked the victim, striking him on the head and causing him to collapse to the concrete garage floor. The defendant then sat on top of the victim and continued beating him before fleeing the scene.

The victim was transported to the hospital, where he was given a CT scan. Medical staff noted that there was no bleeding on the brain, and the victim was discharged. Following the victim's release from the hospital, his CT scan was once again reviewed and this time a doctor noted there was a "tiny" amount of bleeding. The victim was readmitted into the hospital the next day. More CT scans were performed, and they were compared to the first scan. A doctor's notes reflected that the bleeding in the brain had completely resolved, meaning it was "no longer there." The victim was discharged the following day. That evening, the victim died in his home after collapsing onto his bed.

At trial, the state offered the testimony of two medical examiners: Dr. Reinhard Motte, a medical examiner for Palm Beach County, and Dr. Mark Shuman, a medical examiner for Miami-Dade County. A former colleague of Dr. Motte's had conducted the autopsy of the victim, but he was no longer employed with the office. Dr. Motte had reviewed his former colleague's autopsy findings, and he summarized them: There was "a large amount of bleeding on the surface of the brain." The area of the blood clot, or subdural hematoma, measured about three by two inches. Subdural hematomas are caused by "many things," but most of the time, they are caused by trauma. The subdural hematoma occurred on the front right side of the victim's head.

Dr. Motte opined that "[b]lunt force head trauma" and "bleeding in the brain" were the cause of death, and the manner of death was homicide. He had considered the treatment notes relating to the victim's admission and release from the hospital, and his opinion of the cause of death remained the same. Dr. Motte acknowledged that after the victim was released the second time from the hospital, "something" could have happened to him, but he also could have suffered from a "rebleed." He explained that a "rebleed" could have resulted from the initial injury to the victim's head, and that it can occur even where the bleeding was completely resolved. He concluded that the "last bleed, that very big bleed" was what "killed him at the end." Dr. Motte testified that for purposes of the autopsy finding, the medical examiner needs only a preponderance of the evidence to come to a conclusion as to the cause and manner of death, and that standard had been met.

Dr. Shuman also reviewed the victim's treatment and autopsy records. He opined that the hospital's reading of the first CT scan was "wrong." Based on his review of the CT scan, it was clear to Dr. Shuman that the victim had suffered a subdural hematoma. Upon comparing the three scans that were done, he observed that "the blood was still there and was getting worse over the course of the three CT scans." Further, "on the third CT scan, there was some blood in an area that had not seen blood before." The three scans showed the "evolution" of the bleeding, "that it's actually continuing to bleed." He opined that the presence of new blood was consistent with the bleeding "continuing ... and ... accumulating." Dr. Shuman explained that "if you rupture some very large [blood] vessels ... that go between the brain and the dura matter," the bleeding is probably "a lot faster," "[b]ut if you rupture some of the smaller ones, it's probably going to bleed slower." Further, a rupture could clot and unclot. Although a neurologist at the hospital believed the subdural hematoma"was gone," based on the second CT scan, Dr. Shuman disagreed. From his reading, "the bleeding was continuing." Additionally, the volume of blood he saw in the autopsy photographs was consistent with "the slow gradual bleed" he had observed in the three CT scans.

Dr. Shuman concluded that the cause of death was blunt head injury"from the assault" by the defendant and that the manner of death was homicide. He opined that "it would be hard to say that the assault had nothing to do with his death," even if the victim subsequently fell, as the continuing bleeding could have caused the victim to have "neurological issues," which could have led him to fall. But he acknowledged that if the hospital had not discharged the victim and continued in-hospital monitoring and treatment, "[t]here's a good chance" he would not have died.

Neither Dr. Motte nor Dr. Shuman could testify that there was any indication of a cause of death unrelated to the battery perpetrated by the defendant.

At the close of the state's case, the defendant moved for a judgment of acquittal on the murder count, arguing that the hospital's gross negligence was a "superseding and intervening" cause and thus the actual cause of the victim's death. The trial court denied the motion, and also denied the defendant's renewed motion at the close of all evidence.

Cause of Death

On appeal, the defendant argues that the state did not prove that his actions, as opposed to some other occurrence, caused the victim's death. He also argues that the hospital's gross negligence relieves him of criminal liability for the victim's death. We disagree with both assertions.

Our standard of review is de novo. See Pagan v. State , 830 So.2d 792, 803 (Fla. 2002). "A defendant, in moving for a judgment of acquittal, admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence." Lynch v. State , 293 So.2d 44, 45 (Fla. 1974). The element at issue here is causation.

In a criminal case expert medical opinion as to cause of death does not need to be stated with reasonable medical certainty. Such testimony is competent if the expert can show that, in his opinion, the occurrence could cause death or that the occurrence might have or probably did cause death.

Delap v. State , 440 So.2d 1242, 1253 (Fla. 1983). "Even though the state may be required to prove the cause of death beyond a reasonable doubt, this does not mean that every link in the chain of evidence must be so proved." Id.

The Florida Supreme Court has elaborated on the effect of medical treatment on causation in a criminal case:

A defendant cannot escape the penalties for an act which in point of fact produces death, which death might possibly have been averted by some possible mode of treatment. The true doctrine is that, where the wou[n]d is in itself dangerous to life, mere erroneous treatment of it or of the wounded man suffering from it will afford the defendant no protection against the charge of unlawful homicide. See, also, Wharton on Homicide (3d Ed.) § 35, wherein it is said that the subsequent neglect or mismanagement must have been the sole cause of death.

Johnson v. State , 64 Fla. 321, 59 So. 894, 895 (1912) (citation omitted). Our courts have followed the Johnson rule. See Fecske v. State , 757 So.2d 548, 549 (Fla. 4th DCA 2000) ("As a general rule, lack of affirmative medical treatment of the victim, whose initial injury was proximately caused by the defendant's actions, does not constitute an intervening cause relieving the defendant of criminal responsibility for the victim's death."); Rose v. State , 591 So.2d 195, 199 (Fla. 4th DCA 1991) (recognizing that the Johnson rule "has been followed consistently"); Barnes v. State , 528 So.2d 69, 70 (Fla. 4th DCA 1988) ("The rule in Florida has long been that where an assailant inflicts a wound which is in itself dangerous to life, the supervening lack of optimal medical attention or affirmative medical malpractice is not an intervening cause of the victim's death." (quoting State v. Smith , 496 So.2d 195, 196 (Fla. 3d DCA 1986) ) ); Tunsil v. State , 338 So.2d 874, 875 (Fla. 3d DCA 1976) (applying Johnson to find that appellant's actions were the proximate cause of the victim's injury, brain damage, and any lack of treatment by hospital was not an intervening cause relieving appellant of criminal responsibility for victim's death).

Johnson provides that an intervening occurrence does not cut off causation unless it is the "sole" cause of death. 59 So. at 895. "Sole" cause has been equated to a superseding or independent intervening act. For instance, in J.A.C. v. State , 374 So.2d 606, 607 (Fla. 3d DCA 1979), a juvenile participating in a drag race was found guilty of vehicular homicide after his passenger died. The evidence at trial showed that while attempting to operate the gear shift, the passenger accidentally grabbed the steering wheel and caused the car to veer out of control, resulting in the passenger's death. Id. The appellate court found that the accident occurred "only because" of the victim's action, and thus the wrongful conduct of the juvenile was "superseded by the decedent's own independent intervening act." Id.

On the other hand, contributing, rather than sole, causes of death do not extinguish a defendant's criminal liability for a death. See Weir v. State , 777 So.2d 1073, 1076 (Fla. 4th DCA 2001) (affirming denial of motion for judgment of acquittal where "[v]iewed in the light most favorable to the state ... causation was established in this case by the testimony of Dr. Price, which showed that the single punch to the victim's head was the blunt trauma which caused the subarachnoid and subdural hemorrhage which, in turn, caused the victim's death," even if it could be said that the evidence established that the victim had a prior head injury making him more susceptible to death from the punch); Hallman v. State , 371 So.2d 482, 486 (Fla. 1979) ("[E]ven if the hospital's negligence had contributed to the victim's death, this fact would not entitle Hallman to a new trial on his conviction."); Tunsil , 338 So.2d at 875 (where victim of car crash was taken to the hospital in a coma and died after a physician failed to give him medication for a pulmonary infection, court found that "appellant's actions were the proximate cause of the victim's initial injury, i.e., brain damage, and we find no intervening cause relieving appellant of the criminal responsibility for the victim's death").

Here, there was evidence that the beating the victim suffered at the hands of the defendant resulted in a subdural hematoma and, based on Dr. Shuman's testimony, the bleeding continued and ultimately resulted in the victim's death. The record reveals no evidence that the initial injury was not life threatening and that the hospital's negligence was the sole cause of death.

Special Jury Instruction

In a related argument, the defendant challenges the trial court's failure to give a special jury instruction on causation. After the parties and the trial court discussed the issue of an appropriate jury instruction on causation, the trial court fashioned the following instruction:

An issue in this case is whether the defendant caused the death of [the victim]. The state must prove beyond a reasonable doubt that but for the defendant's conduct the death would not have occurred. Lack of affirmative medical treatment is not an intervening cause which would relieve a defendant from criminal responsibility for a victim's death unless the lack of affirmative medical treatment is the sole cause of death.

Defense counsel objected to the instruction, arguing that it "tells the jury to ignore the medical malpractice," which would "undo the entire trial." Defense counsel requested the trial court add the following language to its proposed instruction: "However, notwithstanding the above, if you find that the medical treatment of [the victim] was grossly negligen[t], you must find the Defendant not guilty." The trial court found that the requested language was inconsistent with Florida law, and it gave the instruction it had fashioned.

On appeal, the defendant argues that his requested instruction should have been given. We disagree. We review this issue for an abuse of discretion. See Garrido v. State , 97 So.3d 291, 294 (Fla. 4th DCA 2012). The requested instruction contained a misstatement of Florida law, which requires the intervening force to be the sole cause of death. If the jury had been given the requested instruction, it could have found that the hospital's treatment or lack thereof was not the sole cause of death, yet still found the defendant not guilty based on the hospital's negligence. The instruction read to the jury was based on the Johnson rule and fully represented an accurate statement of the law.

Affirmed.

Gerber, C.J., and Gross, J., concur.


text:
    Terrill A. MURRAY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1612
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 24, 2018
    Terrill A. Murray, Defuniak Springs, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Terrill A. Murray appeals the postconviction court's summary denial of his timely motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the sole ground for relief asserted in Murray's motion was insufficiently pleaded, we reverse to give him an opportunity to file a legally sufficient motion.

Murray was charged with violating his probation by leaving St. Johns County, his county of residence, without the consent of his probation officer. Murray admitted to the violation, and at a later sentencing hearing, the trial court revoked his probation and sentenced Murray to serve a lengthy prison sentence.

In his postconviction motion, Murray acknowledged that he had left the county without permission but explained that his cousin was driving him home from work when she decided to go to Duval County to do some shopping at a mall. Murray alleged that because he was unable to exit his cousin's vehicle or otherwise to exercise control over her driving, he ended up outside his county of residence for a little over three hours until his cousin finished her shopping trip. Murray further alleged that his counsel was ineffective because he provided counsel with the cousin's name, she was available to testify at trial, and her testimony would have established that the time that Murray was briefly out of his county of residence was not a willful and substantial violation of his probation. See Young v. State , 566 So.2d 69, 69-70 (Fla. 2d DCA 1990) ("A violation which triggers a revocation of probation must be willful and substantial and the willful and substantial nature of the violation must be supported by the greater weight of the evidence." (quoting Hightower v. State , 529 So.2d 726, 727 (Fla. 2d DCA 1988) ) ).

A trial attorney's failure to investigate a factual defense that results in the entry of an ill-advised plea of guilty can constitute a facially sufficient attack upon the conviction. Guzman-Aviles v. State , 226 So.3d 339, 342 (Fla. 5th DCA 2017) (quoting MacKinnon v. State , 39 So.3d 537, 538 (Fla. 5th DCA 2010) ). Murray asserted in his motion that his case is factually similar to Zelaya v. State , 713 So.2d 1079 (Fla. 4th DCA 1998). In that case, the defendant was placed on community control, and one of his conditions of supervision required that he be at home after work no later than 6:30 p.m. Id. at 1079. The defendant was working as a landscaper and, at approximately 6:10 p.m., was riding in the back of a pickup truck with other members of the landscape crew from the job site when the driver, over whom the defendant had no control, decided to stop at a sporting goods store. Id. The defendant then accompanied the work crew into the store to get out of the rain. Id. At approximately 6:30 p.m., the defendant's community control officer saw the defendant in the store. Id. The defendant and the crew then left the store and returned to the employer's office, where the defendant punched out and then rode a bus home. Id. Despite the defendant's explanation to his community control officer as to how and why he ended up at the store, the officer filed an affidavit of violation of his community control and the trial court later revoked the defendant's community control. Id. The Third District Court reversed, concluding that the defendant's actions were neither a willful nor a substantial violation of community control. Id. at 1079-80.

In the instant case, Murray argued that, much like Mr. Zelaya, he had no control over his cousin or her actions in driving them to Duval County and his violation of probation was neither willful nor substantial. However, Murray's motion was insufficiently pleaded as he failed to allege that but for his counsel's ineffectiveness in failing to investigate his defense and contact his witness to testify, he would not have tendered a plea and would have insisted on going to trial. See Grosvenor v. State , 874 So.2d 1176, 1181-82 (Fla. 2004) ; Johnson v. State , 2 So.3d 1108, 1109 (Fla. 4th DCA 2009). Because Murray has not previously amended his motion, the postconviction court should have stricken the motion and provided Murray with an opportunity to amend to state a legally sufficient claim.

See Fla. R. Crim. P. 3.850(f)(2) ; Spera v. State , 971 So.2d 754, 761 (Fla. 2007).

Accordingly, we reverse the order on appeal and remand with directions that the postconviction court provide Murray with sixty days to file an amended motion to state a legally sufficient claim for relief.

REVERSED and REMANDED with directions.

EVANDER, WALLIS, and LAMBERT, JJ., concur.


author: LaROSE, Chief Judge.

text:
    Silvia GORDON, Appellant, v. Robert FISHMAN, as personal representative of the Estate of Ron Priever, deceased; Robert Fishman, as Guardian of Bernard Priever; Samuel Gordon; and Rebecca Gordon, Appellees.
    Case No. 2D17-1488
    District Court of Appeal of Florida, Second District.
    Opinion filed August 24, 2018
    Michael R. Kangas of BaumannKangas Estate Law, Tampa, for Appellant.
    Mary L. Wakeman of Hueler-Wakeman Law Group, P.L., Tallahassee, for Appellee Robert Fishman.
    No appearance for remaining Appellees.
   LaROSE, Chief Judge.

Silvia Gordon challenges the trial court's order determining beneficiaries and order denying motion for rehearing and to vacate. We have jurisdiction. See Fla. R. App. P. 9.170(b)(5). Because section 732.507(2), Florida Statutes (2015), does not apply to the facts of this case, we reverse and remand.

I. Procedural and Factual Background

In December 2005, Ron Priever executed a will devising property to his then fiancée, Ms. Gordon. If Ms. Gordon did not survive Mr. Priever, the will devised the property to her two children. Some two years later, Mr. Priever and Ms. Gordon married. They divorced in July 2013. Mr. Priever died two years later. He left no children or spouse.

In April 2015, Robert Fishman, as guardian of Bernard Priever, the decedent's father, petitioned for administration, treating the decedent's estate as an intestate estate. Allegedly, the decedent told several of his family members that he destroyed or revoked his December 2005 will because of a premarital agreement and subsequent divorce from Ms. Gordon. The trial court granted the petition and appointed Mr. Fishman as personal representative of the estate. In August 2015, Ms. Gordon filed the decedent's original will with the trial court.

Mr. Fishman moved for entry of an order determining beneficiaries. He argued that, under section 732.507(2), the will was to be construed as if Ms. Gordon had predeceased the decedent. Ms. Gordon objected, arguing that section 732.507(2) did not apply because she was not married to the decedent when he executed the will.

The trial court found "that as a matter of law, [ section 732.507(2) ], provides that upon the dissolution of their marriage, the will is to be construed as if the former spouse, Silvia Gordon, had died and she is not entitled to any share of the estate." Accordingly, the trial court entered an order finding Ms. Gordon's two children and Bernard Priever to be the estate's beneficiaries. Ms. Gordon filed an unsuccessful motion for rehearing. This timely appeal follows.

II. Analysis

Ms. Gordon argues that the trial court erred in applying section 732.507(2) because the statute's plain language makes it applicable only when the testator was married at the time he executed the will. Mr. Fishman counters that Ms. Gordon's position "belies the legislative intent of the statute ..., as well as the case law construing it."

We review questions of statutory interpretation de novo. Kumar v. Patel, 227 So.3d 557, 558 (Fla. 2017). "The cardinal rule of statutory construction is that a statute should be construed so as to ascertain and give effect to the intention of the Legislature as expressed in the statute." Gaulden v. State, 195 So.3d 1123, 1125 (Fla. 2016) (quoting City of Tampa v. Thatcher Glass Corp., 445 So.2d 578, 579 (Fla. 1984) ). Accordingly, we first examine the plain language of the statute. Kumar, 227 So.3d at 559 ; Gaulden, 195 So.3d at 1125. If the language is clear and unambiguous, we "will not look behind [its] plain language for legislative intent or resort to rules of statutory construction to ascertain intent." Borden v. East-Eur. Ins. Co., 921 So.2d 587, 595 (Fla. 2006) (quoting Daniels v. Fla. Dep't of Health, 898 So.2d 61, 64 (Fla. 2005) ). "Instead, the statute's plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent." Debaun v. State, 213 So.3d 747, 751 (Fla. 2017) (quoting Paul v. State, 129 So.3d 1058, 1064 (Fla. 2013) ). "If the legislature did not intend the results mandated by the statute's plain language, then the appropriate remedy is for it to amend the statute." Whitney Bank v. Grant, 223 So.3d 476, 479 (Fla. 1st DCA 2017) (quoting Overstreet v. State, 629 So.2d 125, 126 (Fla. 1993) ).

The statute before us provides as follows:

Any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage. After the dissolution, divorce, or annulment, the will shall be administered and construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage, unless the will or the dissolution or divorce judgment expressly provides otherwise.

§ 732.507(2) (emphasis added). The legislature's use of the adjective "married" to modify "person" is a clear indication that it intended the "person" executing the will to be "married" at the time of execution. Thus, section 732.507(2) applies only when the marriage predates the will. The decedent did not marry Ms. Gordon until about fifteen months after he executed his will. Section 732.507(2) does not apply here.

Mr. Fishman argues that this outcome is an unreasonable disregard of legislative intent. In his view, we should ignore the statute's plain and ordinary meaning. Mr. Fishman largely relies on Estate of Ganier v. Estate of Ganier, 418 So.2d 256 (Fla. 1982), Carroll v. Israelson, 169 So.3d 239 (Fla. 4th DCA 2015), and Conascenta v. Giordano, 143 So.2d 682 (Fla. 3d DCA 1962). His reliance is misplaced.

A. Estate of Ganier

Mr. Fishman argues that the decedent "clearly executed [his will] in contemplation of his marriage to [Ms.] Gordon." He contends that when a decedent makes a will in contemplation of marriage, a subsequent marriage does not entitle a surviving spouse to take an intestate share of decedent's estate as a pretermitted spouse under section 732.301.

However, the "in contemplation of marriage" requirement arose as a part of the common law concerning surviving pretermitted spouses. See Estate of Ganier, 418 So.2d at 258 ("Florida courts early recognized the rule of law which developed to prevent the inadvertent disinheritance of a spouse whom the testator had married after executing a will."). Ms. Gordon was not a surviving spouse; she and the decedent divorced prior to his death. See Cohen v. Shushan, 212 So.3d 1113, 1123 (Fla. 2d DCA 2017) (holding that Ms. Shushan "could not be a surviving spouse of Mr. Cohen under section 732.102" because they were not married). Thus, the laws applicable to pretermitted spouses are inapposite. See Bauer v. Reese, 161 So.2d 678, 680-81 (Fla. 1st DCA 1964) ("The purpose of [the statute permitting a pretermitted spouse to take as in intestacy] is clearly distinguishable from that of [the statute prohibiting a divorced spouse from taking under the other spouse's will], and these statutes are to be independently construed.").

Also noteworthy, section 732.507(2) does not include "in contemplation of marriage," or any similar language. We decline Mr. Fishman's invitation to add language to, or otherwise alter, section 732.507(2). If that is to be done, the legislature must do it. See Villanueva v. State, 200 So.3d 47, 52 (Fla. 2016) (explaining that it is well-established "that we are not at liberty to add to a statute words that the Legislature itself has not used in drafting that statute" and "a matter that is not covered by a statute is to be treated as intentionally not covered" (citations omitted) ).

B. Carroll

Next, Mr. Fishman argues that "the entire purpose of [ section 732.507(2) ] is to protect divorced persons from their inattention to estate planning details." See Carroll, 169 So.3d at 242-43 ; cf. Sveen v. Melin, --- U.S. ----, 138 S.Ct. 1815, 1819, 201 L.Ed.2d 180 (2018) ("The underlying idea [for a provision revoking beneficiary designations to a former spouse upon divorce] was that the typical decedent would no more want his former spouse to benefit from his pension plan or life insurance than to inherit under his will. A wealth transfer was a wealth transfer-and a former spouse ... was not likely to be its desired recipient. So a decedent's failure to change his beneficiary probably resulted from 'inattention,' not 'intention.' " (quoting Statement of the Joint Editorial Board for Uniform Probate Code, 17 Am. C. Tr. & Est. Couns. 184 (1991) ) ). Further, Mr. Fishman claims that "it is the parties' status on the date of the divorce that controls" because Carroll held that section 732.507(2)"is triggered by the entry of a final judgment of dissolution or annulment." See Carroll, 169 So.3d at 243.

In Carroll, the court observed:

It is an understatement to say that animosities arise in divorce proceedings which are inconsistent with wills executed when everything was rosy in the marriage. Divorce attorneys typically advise clients to revise their estate plans for the post-divorce world. However, with all the stress of divorce litigation, it is not uncommon for people to resist the idea of their own mortality and procrastinate their post-divorce estate planning. And then they die with a will in place that provides for the former spouse.

Id. at 242-43 (emphasis added). Our adherence to section 732.507(2)'s plain language does not lead to an unreasonable result contrary to legislature's intent. Indeed, the decedent did not execute the will "when everything was rosy in the marriage." He executed the will over a year before he married Ms. Gordon.

Further, Carroll was concerned with the trial court's use of "post-death legal gymnastics to manipulate the issue of whether a will provision 'affects' the former spouse." 169 So.3d at 243. The Carroll testator was married at the time he executed his will; unlike here, the sequence of the parties' status and the execution of the will was never at issue in Carroll. Id. at 241. We must conclude that Carroll's holding has no bearing on the application of section 732.507(2) in this case.

C. Conascenta

Now, we turn to Conascenta, 143 So.2d 682. At first blush, Conascenta appears to support Mr. Fishman's contention that the legislature intended that section 732.507(2) preclude any ex-spouse from claiming an inheritance under the will of their deceased ex-spouse, regardless of whether the two were married at the time the decedent executed the will.

In Conascenta, the testator executed a will devising property to Ms. Conascenta. 143 So.2d at 683. The testator subsequently married and divorced her. Id. Unbeknownst to Ms. Conascenta, the testator was married to another woman the entire time. Id. After the testator died, Ms. Conascenta sought to enforce the will. Id. She argued that section 731.101, Florida Statutes did not bar her from taking under the will because she was never the testator's legal spouse and, thus, the divorce had no effect. Conascenta, 143 So.2d at 683. The Third District ruled that "a literal interpretation of [ section 731.101 ] would lead to an unreasonable conclusion or purpose not designated by the legislature" and it was "the court's duty to interpret the statute in accord with the clear purpose and intent of the legislature." Conascenta, 143 So.2d at 684.

Ms. Gordon attempts to distinguish Conascenta, claiming that the parties in that case had a common law marriage at the time of execution. Conascenta noted that the parties "were living and co-habiting together as husband and wife" at the time of will execution. Id. at 683. But the opinion offers no elaboration on the common law marriage issue.

Still, we are wary of Conascenta's reasoning and cannot rely on it to rule for Mr. Fishman. Ms. Conascenta's argument was based on the fact that her marriage, subsequent to the execution of the will, was null and void. Id. Conascenta held "that to permit [Ms. Conascenta] to recover on the ground that she was not the legal spouse of the deceased would be contrary to the purpose and intent of the legislature in enacting [ section] 731.101." Conascenta, 143 So.2d at 684.

The court did not address whether section 731.101 required the testator to be a husband or wife at will execution, as section 732.507(2) now provides. Seemingly, neither party believed the nature of the relationship at the time of execution was an issue. The parties and courts focused on Ms. Conascenta's argument that she was never legally married to the testator.

We hew to the statute's language. Reading the statute as urged by Mr. Fishman would extend the reach of section 732.507(2) beyond its express language. We would have to ignore the term "married" and interpret section 732.507(2) to revoke provisions of a will "executed by a person" or provisions "executed by a person before or after marriage." "To construe the statute in a way that would extend or modify its express terms would be an inappropriate abrogation of legislative power." State v. Burris, 875 So.2d 408, 413-14 (Fla. 2004) (citing Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) ); see also Fla. Dep't of Revenue v. Fla. Mun. Power Agency, 789 So.2d 320, 324 (Fla. 2001) ("Under fundamental principles of separation of powers, courts cannot judicially alter the wording of statutes where the Legislature clearly has not done so. A court's function is to interpret statutes as they are written and give effect to each word in the statute." (footnote omitted) ).

III. Conclusion

The plain and unambiguous language of section 732.507(2) revokes provisions of a will executed by a "married person." We have no occasion to search for an intent other than that expressed in the clear, unambiguous language of the statute, especially where the decedent executed the will over a year before the marriage. Cf. Carroll, 169 So.3d at 242-43 (discussing the purpose of section 732.507(2) and noting that "animosities arise in divorce proceedings which are inconsistent with wills executed when everything was rosy in the marriage"). Section 732.507(2) does not apply in this case. We reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur.

      Mr. Fishman also urges us to affirm the trial court's order because the parties' premarital agreement and divorce decree allegedly forbid Ms. Gordon from inheriting from the decedent's estate. At oral argument, Mr. Fishman's counsel stated that both documents were in the court file, but counsel did not know if Mr. Fishman ever entered the documents into evidence in the probate proceedings. Nothing in our record indicates that Mr. Fishman ever preserved the issue by raising the argument below. See Moss v. Moss, 939 So.2d 159, 166 (Fla. 2d DCA 2006) ("Because the Husband never argued to the trial court that he was entitled to an award of attorney's fees pursuant to any provision of the [prenuptial agreement], this issue was not preserved for appellate review and is not properly before this court on appeal.") Moreover, nothing in the record indicates that the trial court made any factual findings regarding these documents. Thus, we will not consider Mr. Fishman's argument for the first time on appeal. See Bueno v. Workman, 20 So.3d 993, 998 (Fla. 4th DCA 2009) ("[A]n appellate court cannot employ the tipsy coachman rule where a lower court has not made factual findings on an issue and it would be inappropriate for an appellate court to do so."); see, e.g., Tank Tech, Inc. v. Valley Tank Testing, L.L.C., 244 So.3d 383, 392 n.4 (Fla. 2d DCA 2018) (declining to employ tipsy coachman doctrine to affirm final judgment based on argued affidavit deficiencies where "the trial court did not have the opportunity to make a factual finding regarding that issue").

      Notably, the legislature's use of the adjective "married" in section 732.507(2) differs from the statutes in other states-where the courts have determined the sequence of the execution of the will and the marriage was irrelevant-as the statutes in those states did not include the adjective "married" or any other language that required the testator to be married prior to the execution of the will. See, e.g., Davis v. Aringe, 292 Ark. 549, 731 S.W.2d 210, 211-12 (1987) ; In re Estate of Reeves, 233 Cal.App.3d 651, 284 Cal.Rptr. 650, 654 (1991) ; In re Estate of Forrest, 302 Ill.App.3d 1021, 236 Ill.Dec. 169, 706 N.E.2d 1043, 1045-46 (1999) ; In re Marriage of Duke, 549 N.E.2d 1096, 1099-1100 (Ind. Ct. App.), on reh'g, 552 N.E.2d 504 (Ind. Ct. App. 1990) ; Russell v. Johnston, 327 N.W.2d 226, 229 (Iowa 1982) ; In re Estate of Bloomer, 620 S.W.2d 365, 367 (Mo. 1981) ("The statute does not say 'all provisions of any will made subsequent to the marriage and in favor of the spouse so divorced are thereby revoked.' "); In re Will of Reilly, 201 N.J.Super. 306, 493 A.2d 32, 33, 35 (1985) ; In re Estate of Knospe, 165 Misc.2d 45, 626 N.Y.S.2d 701, 702-03 (Surr. Ct. 1995).

      Section 731.101 was the previous version of section 732.507(2). Ch. 74-106, § 3, Laws of Fla. Section 731.101 stated:
      Will void as affecting surviving divorced spouse. All wills offered for and admitted to probate subsequent to June 11, 1951, made by husband or wife who have been divorced from each other subsequent to the date of said will, shall be made null and void by means of said divorce insofar as said will affects the surviving divorced spouse.
      Conascenta, 143 So.2d at 682 n.1.