text:
    Richard CORCORAN, in his official capacity as Speaker of the Florida House of Representatives, and Joe Negron, in his official capacity as President of the Florida Senate, Petitioners, v. Alexis F. GEFFIN; Ryan J. Geffin; Thomas A. Warren ; Kathleen Villacorta; Governor Rick Scott, in his official capacity as Chief Executive Officer and Chair of the Board of Education; Florida State Board of Education ; Florida Board of Governors of the State University System; and Pam Stewart, in her official capacity as Florida Commission of Education, Respondents.
    No. 1D18-0500
    District Court of Appeal of Florida, First District.
    June 28, 2018
    George N. Meros, Jr., of Holland & Knight LLP, Tallahassee; Andy Bardos and Ashley Lukis of GrayRobinson, P.A., Tallahassee, for Petitioners.
    Eugene E. Stearns, Grace L. Mead, and Morgan Q. McDonough of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Miami; Glenn Burhans, Jr., and Kelly O'Keefe of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Tallahassee, for Respondents.
   Wolf, J.

The petitioners in these consolidated cases, the President of the Florida Senate and the Speaker of the Florida House of Representatives (the Legislature), seek a writ of prohibition finding that the circuit court lacks jurisdiction to adjudicate two class action complaints filed against them by several of the respondents, who are university students and donors, that alleged the Legislature has failed to match donations made to universities as required by statute. The remaining defendants to that complaint, Governor Rick Scott, Florida State Board of Education, Florida State Board of Governors of the State University System, and the Commissioner on Education, filed a response agreeing this court should issue the writ of prohibition for the reasons stated in the petition.

We grant the petition in part. The circuit court does not have jurisdiction to declare that the Legislature's failure to appropriate funds constitutes a violation of the single subject requirement pursuant to article III, section 12 of the Florida Constitution, as alleged in Count 1 of the complaint. The court also lacks the jurisdiction to grant one of the remedies sought in the complaint-an injunction prohibiting the Legislature from adopting future appropriations bills that do not contain specific appropriations for matching donations-because doing so would violate the separation of powers doctrine as set forth in article II, section 3 and article V, section 14(d) of the Florida Constitution. Thus, we grant the petition as to Count 1 and the injunctive relief sought by respondents.

We deny the petition as to Count 2, which alleges breach of contract, and Count 4, which seeks declaratory relief.

While we share many of the misgivings raised by counsel for the Legislature regarding the sufficiency of the allegations as to these counts and whether the circuit court will ultimately be able to fashion a remedy that is not violative of separation of powers principles, we cannot determine at this stage of the litigation that the circuit court lacks jurisdiction to adjudicate these claims.

FACTS

Respondents/plaintiffs, two donors to Florida State University and two recent students at the University of Florida, filed class action complaints against the Legislature and other officials and subdivisions of the State of Florida for failing to match private donations to colleges and universities with public funds as required by the following four matching statutes: sections 1011.85, 1011.32, 1011.94, and 1013.79, Florida Statutes (matching statutes). Respondents argue that pursuant to these statutes, when the donors made their donations, they entered into gift agreements with the universities that constituted contracts. Due to a matching backlog of hundreds of millions of dollars, each matching statute was amended in 2011 with the following language:

Effective July 1, 2011, state matching funds are temporarily suspended for donations received for this program on or after June 30, 2011. Existing eligible donations remain eligible for future matching funds. The program may be restarted after $200 million of the backlog for programs under [the four matching statutes] have been matched.

§§ 1011.85(13), 1011.32(13), 1011.94(8), 1013.79(12), Fla. Stat.

Respondents' complaints asserted five counts: (1) violation of article III, section 12 of the Florida Constitution's requirement that general appropriations actions address no other subject; (2) breach of contract; (3) violation of article IX, section 1(a) of the Florida Constitution's requirement for the adequate provision of higher education; (4) declaratory relief; and (5) a writ of mandamus compelling the Department of Education, the State Board of Education, and the Commissioner of Education to request matching funds. They sought relief that included an injunction prohibiting the Legislature from enacting appropriations bills that do not provide matching funds, a declaratory judgment, a writ of mandamus against the Department of Education, the State Board of Education, and the Commissioner of Education, or alternatively, any necessary equitable relief.

The petitioners moved to dismiss the complaint. At a hearing on petitioners' motions to dismiss, the circuit court ruled that respondents' complaints adequately pleaded four of their five causes of action.

The trial court ruled as follows:

Count 1 alleges a violation of the Florida Constitution's requirement that laws on appropriations address no other subject. That provision is found in article III, section 12 of the Florida Constitution. Both complaints allege that by not appropriating money, the Legislature is changing the funding formula in the matching statutes. Based on the language in City of North Miami v. Florida Defenders of the Environment , 481 So.2d 1196 (Fla. 1985), the court finds Count 1 states a cause of action and denies the motions to dismiss as to that count.
Count 2 alleges breach of contract. The allegation in paragraph 211 of their complaint is that Donor Plaintiffs entered into Gift Agreements with the Florida State University and the Florida State University Foundation for each $100,000 donation. Defendants argue that this claim fails because, even if the agreements are contracts, Defendants are not parties. Each Gift Agreement is attached to the complaint, signed by the Donor Plaintiffs and the president of Florida State University, the president of Florida State University Foundation, and other high-ranking State University Officials. Plaintiffs argue that each statute authorized Florida's colleges and universities to enter into such agreements to bind the State to match. Alumni Plaintiffs are third-party beneficiaries of those contracts. Each college and university is a creature of the State serving a public purpose within the confines of Florida law. The allegations of Count 2 state a claim for breach of contract. The motions to dismiss Count 2 are denied.
....
Count 4 is for declaratory relief. The court concludes it states a cause of action as alleged.

As previously noted, the court dismissed Count 3, and that is not addressed in this proceeding. Count 5 is not directed to the Legislature and therefore does not need to be further addressed in this opinion.

ANALYSIS

"In Florida, the courts have consistently determined, in accord with the historical understanding and background of the writ of prohibition, that it is meant to be very narrow in scope ...." English v. McCrary , 348 So.2d 293, 296 (Fla. 1977). "Prohibition may only be granted when it is shown that a lower court is without jurisdiction or attempting to act in excess of jurisdiction." Id.

The courts, however, have found that issuance of a writ of prohibition is appropriate where there is an improper intrusion by the courts into the internal processes of the Legislature, or into the power of the Legislature to fix appropriations. Fla. Senate v. Fla. Public Emps. Council 79, AFSCME , 784 So.2d 404 (Fla. 2001). See also Chiles v. Children A, B, C, D, E, & F , 589 So.2d 260, 267 (Fla. 1991).

We will now address whether the injunctive relief sought by respondents and Counts 1, 2, and 4 violate the separation of powers doctrine, thereby depriving the circuit court of jurisdiction to address these claims.

Injunctive Relief

In their complaints, respondents requested an injunction prohibiting the Legislature from adopting future appropriations bills that do not appropriate matching funds.

Article II, section 3 of the Florida Constitution states:

The powers of state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any power appertaining to either of the other branches unless expressly provided herein.

Pursuant to this provision, the doctrine of separation of powers has been strictly construed in Florida. "The Florida Constitution imposes a strict, explicit and textual separation of powers requirement ...." Barati v. State , 198 So.3d 69, 83 (Fla. 1st DCA 2016). "It would be hard to compose a more demanding requirement in organic law" than Florida's separation of powers. Id. Thus, the supreme court " 'has traditionally applied a strict separation of powers doctrine,' " and described the separation of powers as the "cornerstone of American democracy." Bush v. Schiavo , 885 So.2d 321, 329 (Fla. 2004) (quoting State v. Cotton , 769 So.2d 345, 353 (Fla. 2000) ).

Article III, sections 8, 12, and 19 of the Florida Constitution specifically give the power of appropriation to the legislative branch. Article V, section 14(d) of the Florida Constitution makes it clear, "The judiciary shall have no power to fix appropriations."

"The constitution specifically provides for the legislature alone to have the power to appropriate state funds." Children , 589 So.2d at 267. "The Florida Constitution vests the 'power of the purse' in the Legislature ...." Graham v. Haridopolos , 75 So.3d 315, 318 (Fla. 1st DCA 2011). The "quintessential legislative power" to appropriate funds is "exclusive and plenary" and has resided in the Legislature alone for 179 years. Id. at 318, 320 ; see also State v. Fla. Police Benev. Ass'n , 613 So.2d 415, 418 (Fla. 1992) ("Under the Florida Constitution, exclusive control over public funds rests solely with the legislature."). "Under any working system of government, one of the branches must be able to exercise the power of the purse, and in our system it is the legislature, as representative of the people and maker of laws, including laws pertaining to appropriations, to whom that power is constitutionally assigned." Children , 589 So.2d at 267. "More importantly, only the legislature, as the voice of the people, may determine and weigh the multitude of needs and fiscal priorities of the State of Florida." Id. It alone may decide "how, when, and for what purpose the public funds shall be applied." Graham v. Haridopolos , 108 So.3d 597, 603 (Fla. 2013) (quoting Republican Party of Fla. v. Smith , 638 So.2d 26, 28 (Fla. 1994) ).

An order that prohibits future legislative action-here, the adoption of a state budget-offends the constitutional separation of powers no less than one that compels legislative action. See Fla. Pub. Emps. Council 79 , 784 So.2d at 408-09 (holding that a trial court had no authority to prohibit a legislative hearing, an inherent part of the legislative process); id. at 410 (Quince, J., concurring in part) (noting that "courts cannot enjoin the Legislature from performing its constitutional legislative functions"); Serrano v. Priest , 18 Cal.3d 728, 135 Cal.Rptr. 345, 557 P.2d 929, 941 (1976) (holding that courts may not order a legislature "to enact or not to enact ... specific legislation"). An injunction that freezes the appropriations process in order to pressure the Legislature to make appropriations under the matching statutes is a direct interference with the Legislature's constitutional powers.

Further, the proposed injunction would prohibit the performance of a constitutional duty -the adoption of a state budget-and thus violate the Constitution itself. The Legislature has a constitutional duty to make appropriations for the maintenance of the government. Art. VII, § 1(d), Fla. Const. ("Provision shall be made by law for raising sufficient revenue to defray the expenses of the state for each fiscal period."). No branch of government has authority to prohibit compliance with the Constitution.

The message is clear. Courts cannot interfere with the process of another branch of government to perform its constitutional duties. Because it would prohibit the performance of a solemn constitutional duty, the proposed injunction would be illegal. The circuit court is therefore prohibited from granting the injunctive relief requested by the respondents.

Count 1: Violation of article III, section 12 of the Florida Constitution

In Count 1, respondents alleged the failure to match donations violated the constitutional requirement that laws on appropriations address no other subject. Article III, section 12 of the Florida Constitution states, "Laws making appropriations for salaries of public officers and other current expenses of the state shall contain provisions on no other subject." The supreme court has interpreted this provision as prohibiting appropriations bills from amending substantive law or altering formulas provided in substantive law. See Brown v. Firestone , 382 So.2d 654, 664 (Fla. 1980) ("[A]n appropriations bill must not change or amend existing law on subjects other than appropriations."); Chiles v. Milligan , 659 So.2d 1055, 1059 (Fla. 1995) (finding appropriations bill proviso that changed the statutory formula for allocating funds to schools violated article III, section 12 ).

Here, respondents argue the four funding statutes established formulas for matching private donations, and the Legislature's failure to include any matching funds in the General Appropriations Acts from 2012-2017 effectively amended the funding statutes on a subject other than appropriations and altered the funding formulas set forth in those statutes.

The trial court found this allegation stated a cause of action pursuant to City of North Miami v. Florida Defenders of the Environment , 481 So.2d 1196, 1196 (Fla. 1985). In that case, an item in the general appropriations act provided for the transfer of $8.5 million from the Conservation and Recreation Lands Trust Fund (CARL) to the Special Acquisition Trust Funds in order to fund the State's purchase of a particular parcel of land. Id. However, this court found the purposes for which CARL funds could be spent and the procedures for selecting those lands to be purchased with CARL funds were proscribed by statute, and the appropriation "disregard[ed] both." Fla. Defs. of the Env't Inc. v. Graham , 462 So.2d 59, 61 (Fla. 1st DCA 1984). The supreme court agreed, finding this appropriation changed and amended existing law on subjects other than appropriations and unlawfully altered a statutory distribution formula. Fla. Defs. of Env't , 481 So.2d at 1196. As such, the appropriation was stricken. Id. Specifically, the court prohibited the transfer of money held in a trust fund for a designated statutory purpose in order to utilize those funds in a manner not authorized by separate substantive law.

The case at hand is distinguishable because here, petitioners are not complaining that a specific appropriation altered a specific substantive law, nor do they allege a change in a statutory formula. Further, there is no allegation that "trust fund" money is being used in a manner not identified by the statute creating the trust fund. Instead, they complain that the Legislature's failure to pass an appropriation somehow violates the single subject rule. However, they provide no authority supporting their argument.

Regardless, by its very nature, this argument violates the separation of powers doctrine, because asking the trial court to find that the Legislature was constitutionally required to appropriate specific funds for a specific purpose is akin to asking the court to dictate appropriations. The judiciary lacks the authority to do so. See Citizens for Strong Sch., Inc. v. Fla. State Bd. of Educ. , 232 So.3d 1163, 1168-71 (Fla. 1st DCA 2017), review granted , SC18-67, 2018 WL 2069405 (Fla. Apr. 30, 2018) ("The judiciary cannot dictate the manner of executing legislative policies or appropriations in any particular way."); Art. V, § 14(d), Fla. Const. ("The judiciary shall have no power to fix appropriations.").

Thus, this count of the complaint violates the separation of powers doctrine, and the trial court lacks jurisdiction to consider it. Haridopolos v. Citizens for Strong Sch., Inc. , 81 So.3d 465, 466 (Fla. 1st DCA 2011) (denying petition for writ of prohibition that alleged a complaint challenging the adequacy of public education violated the separation of powers doctrine); Moffitt v. Willis , 459 So.2d 1018, 1021 (Fla. 1984) (granting writ of prohibition where trial court lacked jurisdiction to rule on a complaint against the Legislature that would have required the court to determine and declare the meaning and application of the Legislature's rules of procedures).

Count 2: Breach of Contract

In Count 2, respondents alleged a breach of contract against all of the petitioners/defendants. Respondents argued the named donors entered into gift agreements with Florida State University, and these agreements were contracts that required "applying for and taking the maximum advantage of all ... matching fund programs." Because the gift agreements were made with reference to the matching statutes, they argue those statutes became part of the contract, and the failure to match the funds violated these contracts.

Respondents stated they "do not seek to recover the donations but rather seek to compel the State to match the donations." Specifically, they requested an injunction against future appropriations bills that do not appropriate matching funds. Alternatively, they sought a declaratory judgment or any necessary equitable relief.

The factual basis for this claim is not entirely clear. Respondents bring this breach of contract claim against "all defendants," but they do not expressly allege that any of the named defendants were parties to the contract. Perhaps they believe that because the gift statutes were incorporated into the contracts, the contracts bound the Legislature to appropriate the funds and the "education" defendants to request the funds (which they alleged in count 5). It is also unclear whether all of these donor agreements would constitute express written contracts. These are factual issues for the trial court to determine.

The remedy of an injunction against future appropriations would violate the separation of powers doctrine, as discussed above. However, merely adjudicating a breach of contract action does not necessarily violate the separation of powers doctrine, nor is it clear that the court lacks jurisdiction to resolve matters such as existence of a contract or who the proper parties were to the contract.

The supreme court has held that sovereign immunity does not apply "to suits on express, written contracts into which the state agency has statutory authority to enter." Pan-Am Tobacco Corp. v. Dep't of Corr. , 471 So.2d 4, 6 (Fla. 1984). An appropriation is not required in order to compel State agencies to pay damages claims, and instead courts have suggested that writs of mandamus may be appropriate. In ContractPoint Florida Parks, LLC v. State , 958 So.2d 1035, 1036 (Fla. 1st DCA 2007), approved and remanded sub nom . ContractPoint Florida Parks, LLC , 986 So.2d 1260 (Fla. 2008), a party brought a breach of contract action against the Department of Environmental Protection (DEP), and the court entered a monetary judgment against DEP. However, DEP refused to pay the judgment, asserting payment was barred by section 11.066(3), which states "[n]either the state nor any of its agencies shall pay or be required to pay monetary damages under the judgment of any court except pursuant to an appropriation made by law." Id. The prevailing party then filed a petition for writ of mandamus seeking to compel Florida's Chief Financial Officer to pay the damage award. Id. The trial court denied the petition, finding section 11.066(3) barred payment. This court reversed, finding section 11.066(3) did not pertain to contract actions. Id. at 1038.

The supreme court affirmed, finding section 11.066 was intended to apply only to claims based on the exercise of the State's police power, and to apply it to breach of contract cases would render governmental contracts illusory. ContractPoint Fla. Parks, LLC , 986 So.2d at 1271-72. The supreme court suggested that the trial court "may consider issuance of a writ of mandamus on remand, in the event the DEP persists in its refusal to pay this judgment." Id. at 1272.

Similarly in Department of Transportation v. CSX Transportation, Inc. , 128 So.3d 209, 210 (Fla. 2d DCA 2013), approved sub nom . Florida Department of Transportation v. Schwefringhaus , 188 So.3d 840 (Fla. 2016), the Second District found the Department of Transportation could not invoke sovereign immunity to avoid its contractual obligation to indemnify CSX after a railway accident and thus, the trial court had the authority to enter a money judgment against DOT. The Second District acknowledged that article VII, section 1(c) of the Florida Constitution states that "[n]o money shall be drawn from the treasury except in pursuance of appropriation made by law." Id. at 214. However, the court did "not read this provision to prevent the trial court from having the power to enter a money judgment." Id. "At most, by writ of mandamus, a court might require an agency to take the steps necessary to pay the judgment in an orderly fashion." Id. (citing ContractPoint Fla. , 986 So.2d 1260 at 1271-72 ). The supreme court affirmed this decision without discussing potential means of compelling payment. Schwefringhaus , 188 So.3d at 846.

Here, neither sovereign immunity nor the separation of powers doctrine prohibits respondents from bringing a breach of contract claim against governmental entities. A number of issues remain for the court to determine, including whether the gift agreements were express written contracts that the governmental entities were authorized to enter into, which entities were parties to those contracts, and whether any of the parties breached those contracts. However, assuming respondents can prove this claim, the trial court may have the authority to establish an appropriate remedy for breach of contract.

We are not unmindful that certain remedies that may be crafted by the circuit court would violate separation of powers. However, it is too early to make a final determination regarding the jurisdiction of the court to entertain a breach of contract action.

Count 4: Declaratory Judgment

In Count 4, respondents sought a declaratory judgment stating (a) article III, section 12 of the Florida Constitution has been violated by the failure to provide matching funds; (b) contracts with respondents and the donors have been materially breached by the failure to provide matching funds; and (c) article III, section 12 of the Florida Constitution has been violated by the failure to make adequate provision for the institutions of higher learning.

The first item reflects the argument made in Count 1, which as discussed above, violates the separation of powers doctrine. It appears the third item was intended to allege a violation of article IX, section 1(a), which requires adequate provision for schools. That item reflects the argument made in Count 3, which the trial court dismissed as violating the separation of powers doctrine. However, regarding the second item, respondents may be entitled to a declaratory judgment on the breach of contract claim, as discussed pursuant to Count 2. Thus, we deny the petition for writ of prohibition in part and grant it in part as to count 4.

We GRANT the petition for writ of prohibition in part, QUASH the trial court's order denying the motion to dismiss in part, and instruct the trial court to dismiss Count 1, Count 4 to the extent it sought a declaratory judgment that the Legislature violated article III, section 12 and article IX, section 1(a) of the Florida Constitution, and the requested relief of an injunction prohibiting the Legislature from enacting future appropriations bills. In all other regards, we DENY the petition.

Bilbrey and M.K. Thomas, JJ., concur.

      The trial court previously dismissed Count 3 and that count is not at issue in this proceeding. Count 5 is not directed to the Legislature, and therefore is not within the scope of the Legislature's petition.

      For purposes of this opinion, when we refer to the "respondents" we are referring to the plaintiffs, though we acknowledge that the remaining defendants who did not file this petition for writ of prohibition are respondents to the petition as well.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    RREF SNV-FL SSL, LLC, Appellant, v. SHAMROCK STORAGE, LLC, Richard McAlpin, Little Sabine Investment Group, Inc., and Jerri M. McAlpin, Appellees.
    No. 1D16-2045
    District Court of Appeal of Florida, First District.
    June 28, 2018
    Michael Anthony Shaw and Stephen P. Drobny of Jones Walker LLP, Miami, for Appellant.
    Robert O. Beasley and Phillip A. Pugh of Litvak, Beasley, Wilson & Ball, LLP, Pensacola, for Appellees.
   Per Curiam.

RREF SNV-FL SSL, LLC, appeals an order denying its motion to avoid a fraudulent transfer brought pursuant to section 56.29, Florida Statutes (2013). We affirm.

I. BACKGROUND

This case comes to us for a second time. See RREF SNV-FL SSL, LLC v. Shamrock Storage, LLC , 178 So.3d 90 (Fla. 1st DCA 2015). We detailed the parties' dispute and the procedural background in our earlier decision, id. at 90-91, so we offer only the abridged version here: Richard McAlpin owned a company that owned a Travelodge motel, and he owned a second company (appellee Shamrock Storage) that operated storage units. Shamrock Storage got a bank loan that McAlpin personally guaranteed, and the company defaulted. A few months before the loan was set to mature, McAlpin gave his wife his motel-company stock, then receiving nothing in return. Id. Ultimately the bank got a judgment against McAlpin on the Shamrock loan, and it assigned that judgment to RREF SNV-FL SSL, LLC (RREF, for short), the appellant here.

RREF sought to avoid McAlpin's transfer of the stock. RREF contended this was a fraudulent transfer, and that the motel-company stock should be available to help satisfy its judgment against McAlpin. RREF alleged that the transfer was fraudulent both because there was an actual intent to defraud, and separately because there was constructive fraud. The trial court denied relief, concluding that it was "not satisfied that the transfer of Mr. McAlpin's [stock] was made to hinder creditors." Id. (quoting order).

RREF appealed, and we reversed. Id. We concluded that the trial court wrongly placed the burden of proof on RREF. Id. at 91. We explained that it was the appellees' burden to demonstrate the transfer was not fraudulent. Id. ("In situations like this one, the presumption in § 56.29(6) is that a spousal transfer should be voided unless the defendant can prove that it did not make the transfer to delay, hinder, or defraud creditors ...."); see also § 56.29(6)(a), Fla. Stat. (2013) ; Morton v. Cord Realty, Inc. , 677 So.2d 1322, 1324 (Fla. 4th DCA 1996) (noting that § 56.29"shifts the burden to the defendant in proceedings supplementary to prove that a transfer made within one year before service of process is not fraudulent as to creditors").

On remand, and based on this court's earlier decision, the parties agreed the appellees had the burden to disprove both constructive and actual fraud. The court conducted another hearing on the matter, but for whatever reason, the parties agreed neither side would present additional evidence. So the court-now with a different presiding judge-looked at the same record it already had. After hearing argument, the court entered an order again denying RREF's request. This time, the court found that the appellees proved McAlpin's stock transfer was not fraudulent. Once again, RREF appeals.

II. ANALYSIS

Under section 726.106, a debtor's transfer is fraudulent as to a creditor if (a) the creditor's claim arose before the transfer, (b) the debtor was insolvent at the time of the transfer or became insolvent because of the transfer, and (c) the debtor made the transfer without receiving reasonably equivalent value in exchange for the transfer. § 726.106(1), Fla. Stat. (2013). On remand, the parties agreed that the appellees needed to disprove at least one of these three elements.

A. Whether RREF's claim arose before the transfer.

The appellees did not prove the claim arose after McAplin's stock transfer. McAlpin transferred the stock to his wife in January 2010. The trial court found that McAlpin was not in default at the time and did not learn of the judgment against him until three or four months later. But regardless of whether McAlpin was in default in January 2010, there is no question that RREF (or its predecessor in interest) had a "claim" against him-as the term is statutorily defined-at the pertinent time. See § 726.102(4), Fla. Stat. (2013) (" 'Claim' means a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.").

B. Whether McAlpin was solvent at the time of the transfer.

The appellees did not prove McAlpin was solvent at the time of the transfer and remained solvent after it. In fact, they did not prove that McAlpin was solvent at any relevant time. He had judgments against him, and he was not meeting his obligations.

C. Whether McAlpin received reasonably equivalent value.

That leaves as the final issue whether the appellees proved McAlpin received reasonably equivalent value for the stock. We conclude that they did. McAlpin testified that he transferred the stock to his wife without receiving payment in exchange, but there was also evidence from which the trial court could find the stock had a value of zero. "[I]t is impossible to receive less than reasonably equivalent value for an asset that has no value." In re Gomez , 560 B.R. 866, 873 (Bankr. S.D. Fla. 2016). Therefore, there can be no constructive fraud under section 706.106(1) based on the transfer of a valueless asset. See id. ("Transfer of a valueless asset cannot hinder, delay or defraud any creditor of value as it is valueless."); see also In re Todd , 391 B.R. 504, 509 (Bankr. S.D. Fla. 2008) ("If no value was lost in the transfer between the Debtor and the Defendant, it is inherently the case that the Debtor did not receive less than equivalent value. As a result, the ... section 726.106(1) [and other] claims fail as to the less than reasonably equivalent value element."); In re Moodie , 362 B.R. 554, 562 (Bankr. S.D. Fla. 2007) (finding transfer of "economically valueless" title does not meet the reasonably equivalent value standard in § 726.106(1) ); In re Gillman , 120 B.R. 219, 220 (Bankr. M.D. Fla. 1990) ("[M]easured in an economic sense, the conveyance of the Debtor's interest in the subject property to the Defendant had no value. Thus, the transfer cannot be challenged as a fraudulent transfer ....").

AFFIRMED .

Jay and Winsor, JJ., concur; Roberts, J., concurs in result only.

      The statutory provision shifting the burden of proof to the judgement debtor in supplementary proceedings is now in section 56.29(3)(a), Fla. Stat. (2017). The wording remains substantially similar to the prior version. See Ch. 2016-33, Laws of Fla.


author: Ray, J.

text:
    Kyle PEARCE, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-3750
    District Court of Appeal of Florida, First District.
    June 28, 2018
    Teresa J. Sopp, Yulee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   Ray, J.

Kyle Pearce seeks review of his convictions and sentences for sexual battery of a person under twelve years of age and lewd or lascivious molestation of a person under twelve years of age. Pearce asserts that the trial court erred by failing to hold a competency hearing or enter a written order of competency once it had reasonable grounds to believe he was not mentally competent to proceed to trial. The State concedes, and we agree, that reversal is warranted.

In response to defense counsel's motion to determine Pearce's competency to stand trial, a court-appointed expert evaluated Pearce and concluded that he was not competent to proceed. On the State's motion, the court ordered a second expert evaluation, which yielded the opposite conclusion. The court held a competency hearing and orally declared that Pearce was competent. The court did not enter a written order memorializing this finding.

After a few months went by, but before trial commenced, the case was passed to a new judge, who ordered a third expert to evaluate Pearce pursuant to Florida Rule of Criminal Procedure 3.210(b). The expert filed a written report with the court suggesting a finding of competency, but there is no indication in the record that the court conducted a competency hearing or ruled on Pearce's competency after the report was filed. After a jury trial, Pearce was found guilty as charged in both counts and sentenced to concurrent sentences of life in prison.

It is well-established that once a trial court "has reasonable grounds to question the defendant's competency, the court has no choice but to conduct a hearing to resolve the question." Zern v. State , 191 So.3d 962, 964 (Fla. 1st DCA 2016) ; see also Fla. R. Crim. P. 3.210(b). At that point, the court has a duty to make an independent determination about the defendant's competency, and it must also enter a written order on competency if it finds that the defendant is competent to proceed. Dougherty v. State , 149 So.3d 672, 677-78 (Fla. 2014) ; Fla. R. Crim. P. 3.212(b).

The remedy for a trial court's failure to follow the procedures required to evaluate and determine legal competence "depends on the circumstances of each case." Dougherty, 149 So.3d at 679. A nunc pro tunc evaluation of competency is permitted where "there are a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent evidence at a retrospective hearing." Id. (quoting Mason v. State , 489 So.2d 734, 737 (Fla. 1986) ); see also Brooks v. State , 180 So.3d 1094, 1095 (Fla. 1st DCA 2015) (explaining that if there is evidence that existed previously that supports a finding that the defendant was competent at the time of trial, the court may make a retroactive determination of competency with no change in the judgment). Failing that, the court must evaluate the defendant's present competency to stand trial, and if the defendant is deemed competent to proceed, it must conduct a new trial. See Dougherty , 149 So.3d at 679 ; Brooks , 180 So.3d at 1096.

Here, the trial court's error was two-fold as it allowed Pearce's trial to proceed without conducting a competency hearing in light of the third expert's evaluation and without independently determining Pearce's competency. Accordingly, we reverse and remand for a retroactive determination of competency. If a retroactive determination is not possible, or if the court finds that Pearce was not competent at the time of trial, a new trial is required assuming Pearce is competent to proceed at that point in time.

REVERSED and REMANDED.

Roberts and Osterhaus, JJ., concur.


author: Bilbrey, J.

text:
    Robert SAGER, Appellant, v. Hatice HOLGREN, Appellee.
    No. 1D17-3607
    District Court of Appeal of Florida, First District.
    June 28, 2018
    Robert Sager, pro se, Appellant.
    Bert Moore, Crestview, for Appellee.
   Bilbrey, J.

Appellant is the father and Appellee the mother of a minor child. Appellant filed a petition for injunction for protection against domestic violence on behalf of the child against Appellee as respondent. See § 741.30, Fla. Stat. A temporary injunction was entered but then dismissed, and entry of a permanent injunction was denied, based on the court's finding insufficient evidence to support entry of a permanent injunction. Following the dismissal, the trial court awarded Appellee $500.00 attorney's fees based her amended motion for fees brought pursuant to section 57.105, Florida Statutes. Appellant challenges that award in this appeal.

Section 741.30(1)(g), Florida Statutes, prohibits an award of attorney's fees "in any proceeding under this section." Appellant argues that the fee awarded to Appellee was prohibited by that statute. Appellee responds that the action brought by Appellant was governed by section 784.046, Florida Statutes, dealing with repeat violence and not section 741.30 dealing with domestic violence because Appellant filed his petition for injunction on behalf of his minor child regarding threats or acts of violence which Appellant alleged occurred while the child resided with Appellee. Appellee correctly notes that section 784.046 does not contain the same prohibition on attorney's fees as section 741.30. In Lopez v. Hall , 233 So.3d 451 (Fla. 2018), the Florida Supreme Court approved our earlier holding that an award of attorney's fees under section 57.105, is permissible in actions for dating, repeat, and sexual violence injunctions brought under section 784.046.

However, the fact that Appellant filed his petition on behalf of the minor child, rather than on his own behalf, did not establish the action as one for repeat violence under section 784.046. An adult parent has standing to petition for an injunction against domestic violence on behalf of his or her child where the violence is alleged to occur in the other parent's household. G.C. v. R.S. , 71 So.3d 164, 166 (Fla. 1st DCA 2011) (holding that a former spouse has standing to seek injunction against domestic violence against the other former spouse on behalf of parties' children). The fact that these parents were never married does not deprive Appellant of his standing to seek protection from domestic violence on behalf of his child under section 741.30(1)(e).

The petition and orders in the trial court were standard Florida Supreme Court approved family law forms which consistently referred to domestic violence, not repeat violence. The record plainly shows that the parties and the trial court proceeded under section 741.30, and the award of attorney's fees was thus prohibited. The order on appeal is therefore

REVERSED .

Wolf, J., concurs, Kelsey, J., concurs in result.


author: Roberts, J.

text:
    Everette Laverne FRAZIER, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4248
    District Court of Appeal of Florida, First District.
    June 28, 2018
    Philip J. Padovano of Brannock & Humphries, Tallahassee; Andy Thomas, Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
   Roberts, J.

The appellant makes two arguments on appeal to challenge his convictions of sexual battery and tampering with a victim. The appellant first argues that the trial court erred when it admitted a fourteen-year-old child declarant's hearsay statements without first analyzing whether or not the child was in need of the protection offered by section 90.803(23), Florida Statutes (2014) (protecting children from the emotional harm associated with testifying in court). The appellant also argues that the trial court was required to grant his motion for judgment of acquittal with regards to the charge of tampering with a victim based on this Court's case law. We find that the appellant's interpretation of case law and the statutory requirements of section 90.803(23) are unsupported. We affirm both of the appellant's convictions.

Because the Legislature changed the maximum age of the declarant in section 90.803(23), the appellant argues that in determining the admissibility of a child victim's hearsay statement, a trial court must initially determine if a child victim is in need of the statute's protection. The appellant argues that the failure to determine the child's need for such protection violates his constitutional right to confront witnesses against him and his right to due process. Statutory interpretation is reviewed de novo . Polite v. State , 973 So.2d 1107, 1111 (Fla. 2007). When interpreting statutes, courts focus on legislative intent. Id. To determine legislative intent, courts first look to the plain meaning. State v. Dorsett , 158 So.3d 557, 560 (Fla. 2015). It is only when the language of the statute is unclear or ambiguous that the court applies rules of statutory construction to discern intent. Id.

Section 90.803 states as follows:

(23) HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM.-
(a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of 16 or less describing any act of child abuse or neglect, any act of sexual abuse against a child, the offense of child abuse, the offense of aggravated child abuse, or any offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:
1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate; and
2. The child either:
a. Testifies; or b. Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1).

The plain language of the section 90.803(23) is not unclear or ambiguous. Finding no statement in the statute that a trial court must determine whether a child victim declarant needs the protection offered by the statute, we find that the Legislature did not intend to include the analysis the appellant suggests.

When the Legislature enacted section 90.803, it balanced the need to admit child hearsay statements against the defendant's constitutional right to confront the witnesses against him and his constitutional due process rights. Townsend v. State , 635 So.2d 949, 954 (Fla. 1994). Even though the Legislature balanced the defendant's rights, admission of the child hearsay statements under section 90.803(23) can still violate a defendant's constitutional rights. A violation of a defendant's constitutional right to confront witnesses can occur if the trial court admits the child's hearsay statements that are testimonial in nature, the child declarant does not testify, and the defendant has not had a prior opportunity to cross-examine the child declarant. Crawford v. Washington , 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Here, the appellant's constitutional right to confront the witnesses against him is not in issue since the child victim testified at trial. Because the appellant admitted during oral arguments that his argument was predicated on statutory construction rather than due process, a constitutional due process challenge is not in issue.

For the reasons stated above, we find that the trial court did not abuse its discretion in admitting the child hearsay statements.

The appellant's second argument is that the trial court erred in denying his motion for judgment of acquittal with regards to the charge of tampering with a victim. The standard of review on a motion for judgment of acquittal is de novo . Smith v. State , 170 So.3d 745, 755 (Fla. 2015). An appellate court will not reverse a conviction that is supported by competent, substantial evidence providing that a rational trier of fact could find the existence of each element of the crime beyond a reasonable doubt. Pagan v. State , 830 So.2d 792, 803 (Fla. 2002).

Florida law defines tampering with a witness, victim, or informant as follows:

(1) A person who knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct toward another person, or offers pecuniary benefit or gain to another person, with intent to cause or induce any person to:
....
(e) Hinder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense or a violation of a condition of probation, parole, or release pending a judicial proceeding;
....
(5) For the purposes of this section:
(a) An official proceeding need not be pending or about to be instituted at the time of the offense; and
(b) The testimony or the record, document, or other object need not be admissible in evidence or free of a claim of privilege.

§ 914.22(1)(e) & (5), Fla. Stat. (2014).

The appellant has interpreted this Court's prior case law as requiring the State to prove that a defendant has directly inhibited a person's ability to contact law enforcement. The appellant cited to this Court's opinions in McCray v. State , 171 So.3d 831, 832 (Fla. 1st DCA 2015) ; Thompson v. State , 153 So.3d 996, 997 (Fla. 1st DCA 2015) ; and Longwell v. State , 123 So.3d 1197, 1198 (Fla. 1st DCA 2013). The facts of the cases in Longwell , Thompson , and McCray are very different from the facts in this case.

In Longwell , the victim testified that her cell phone was broken during the confrontation, but she thought that she had dropped it. Longwell , 123 So.3d at 1197. The State presented contrary evidence, which was the victim's written account of the events. Id. In her written statement, the victim stated that the defendant took her phone and smashed it on the ground. Id. There are no additional facts contained in Longwell . The facts of the case are absent in Thompson , but the State argues here and presented evidence that it admitted error in Thompson based on the fact that the victim told the appellant that she was calling her mother when the defendant took her phone. In McCray , the evidence showed that the victim was attempting to use her phones when the defendant broke them. McCray , 171 So.3d at 832. The victim testified that she did not tell the defendant that she was going to call law enforcement or 911. Id. No further evidence was provided in McCray .

Based on the facts of Longwell , Thompson , and McCray , it is apparent that the only evidence the State offered in those cases that tended to support the elements of the tampering crime was that each of the victims' cell phones was broken during the course of other crimes. Since the State offered no further evidence about the defendant's actions in those cases, this Court correctly concluded that in order to substantiate a conviction for tampering, the State needed to show that the victims were attempting to call law enforcement at the time the phones were broken. Any attempt to extrapolate the holdings of Longwell , Thompson , and McCray into a general rule is dicta at best.

Even though the holdings of Longwell , Thompson , and McCray should not be expanded, it has not stopped defendants and other courts from trying. Each of the district courts views the holdings contained in Longwell , Thompson , and McCray to state a general rule that in order to secure a conviction, the State must prove that a victim, witness, or informant was attempting to contact law enforcement during the time of the incident. McCloud v. State , 224 So.3d 842, 845-46 (Fla. 2d DCA 2017) ; Taffe v. State , 232 So.3d 431, 434 (Fla. 4th DCA 2017). The Second and Fourth District Courts have interpreted this Court's case law as expanding the required elements of tampering with a victim to require proof of the victim's intent to contact law enforcement. McCloud , 224 So.3d at 846 ; Taffe , 232 So.3d at 434.

The McCloud and Taffe courts have overlooked that the facts before the Longwell , Thompson , and McCray courts were limited and did not contain the additional or same type of facts that were present in McCloud and Taffe . In McCloud , the victim told the daughter to call for help. McCloud , 224 So.3d at 843. After, the defendant took the cell phone from the daughter's hands while saying, "Are you going to call those people on me? Are you telling my daughter to call those people on me?" Id. at 843-44. With those additional facts, the State would not need to show that the victim was attempting to call law enforcement. Like the McCloud court, the Taffe court also had direct evidence about the defendant's intentions. In Taffe , the defendant admitted that the State presented evidence that he threatened to kill the victim in order to prevent the victim from speaking to police. Taffe , 232 So.3d at 433.

Based on the facts of McCloud and Taffe , the Second and Fourth District Courts could apply the general rule to determine if the State met its burden of proof to support a conviction for tampering with a victim or witness. The general rule is that the State must prove the defendant knowingly took some type of action with the intent to hinder, delay, or prevent the victim from communicating information to law enforcement relating to the commission or possible commission of the offense. § 90.803(23)(1)(e), Fla. Stat. (2014) ; McCray , 224 So.3d at 845-46 ; Taffe , 232 So.3d at 434.

Since the facts of the appellant's case are different from those in McCray , Thompson , and Longwell , this Court is able to apply the general rule. At the appellant's trial, the State submitted evidence that the appellant told the victim "not to tell nobody or he'll come back and he'll hurt [her]." The State's evidence was legally sufficient to show that the appellant knowingly intimidated the child victim to prevent her from reporting the sexual battery to law enforcement. Based on the record, we find that the State presented sufficient evidence to sustain a conviction for tampering with a victim. Accordingly, the trial court did not err in denying the appellant's motion for judgment of acquittal.

AFFIRMED .

Kelsey and M.K. Thomas, JJ., concur.


author: KELLY, Judge.

text:
    A.P., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-979
    District Court of Appeal of Florida, Second District.
    Opinion filed June 29, 2018.
    Howard L. Dimmig, II, Public Defender, and Matthew Overpeck, Assistant Public Defender, Bartow for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

A.P. appeals from the order finding him guilty of minor in possession of a firearm and felon in possession of a firearm but declining to adjudicate him delinquent. While he raises several issues in this appeal, we need not address each one because we agree with A.P. that the State failed to prove the corpus delicti of the crimes charged and therefore should not have been allowed to introduce his admission into evidence.

The evidence at trial showed that A.P. was driving a car in which his two brothers were passengers when police officers conducted a traffic stop because they believed they smelled marijuana coming from the car. Once the car was stopped, an officer approached A.P., told him why they had stopped the car, and then handcuffed A.P. and placed him in the back seat of his patrol car. A second officer searched the passengers and the car and found a marijuana blunt on one passenger and a holstered firearm under the floor mat of the front passenger seat. Over objection, one of the officers testified that when A.P. learned the officers had found a firearm in the car, A.P. stated it belonged to him. Based on his admission, the officers arrested A.P. on the firearm charges and released his brothers.

At trial, A.P. objected on corpus delicti grounds when the State sought to introduce his admission into evidence. The trial court overruled the objection. At the close of the State's case and at the conclusion of the trial, A.P. moved for a judgment of dismissal again arguing that the State had failed to establish the corpus delicti of the crimes absent his admission. Specifically, A.P. argued that absent his admission, the State had failed to present prima facie evidence that he actually or constructively possessed the gun. He cited to this court's decision in Ras v. State, 610 So.2d 24 (Fla. 2d DCA 1992), in support of his argument; however, the trial court rejected A.P.'s argument stating that Ras had "no relevance" and that it was "inapplicable," that his arguments regarding constructive possession had "no applicability" and were "not germane," and that it was "absolutely" possible to find A.P. guilty based on his admission. The trial court was wrong.

Florida adheres to the traditional rule of corpus delicti. See, e.g., J.B. v. State, 705 So.2d 1376, 1378 (Fla. 1998) ; Burks v. State, 613 So.2d 441, 443 (Fla. 1993) ; see also State v. Carwise, 846 So.2d 1145, 1146 (Fla. 2003) (Cantero, J., dissenting). The rule provides that before an admission may be allowed into evidence, the State has the burden of offering direct or circumstantial evidence independent of the admission that establishes the corpus delicti of the crime charged. State v. Allen, 335 So.2d 823, 825 (Fla. 1976) ("A person's confession to a crime is not sufficient evidence of a criminal act where no independent direct or circumstantial evidence exists to substantiate the occurrence of a crime."). The State must "bring forth 'substantial evidence' tending to show the commission of the charged crime. This standard does not require the proof to be uncontradicted or overwhelming, but it must at least show the existence of each element of the crime." Id. (footnote omitted) (quoting Tucker v. State, 64 Fla. 518, 59 So. 941, 941 (1912) ).

A.P. was charged with violating section 790.22(3), Florida Statutes (2015), which makes it a crime for a minor to possess a firearm except under certain enumerated circumstances and section 790.23(1)(b), which makes it a crime for "any person to own or to have in his or her care, custody" a firearm if they have been found "to have committed a delinquent act that would be a felony if committed by an adult and such person is under 24 years of age." To establish the corpus delicti-that is to show that the charged crimes occurred-the State would have to show that a firearm was possessed by an individual who is prohibited by the statute from possessing it. A.P. argues, and we agree, that without his statement, the State's evidence did not prove he possessed the gun, and without that, there was no proof a crime occurred.

This court's decision in Ras is instructive. There, Ras was convicted of trafficking by possession. 610 So.2d at 25. This court reversed his conviction because the sole evidence supporting the element of possession was his statement that he was aware of the presence of the cocaine:

In order to support the conviction for trafficking by possession, the evidence must show that Ras possessed the cocaine, either actually or constructively.
The evidence reflects that Griswold, not Ras, had actual possession of the cocaine. To prove constructive possession, the state was required to prove that Ras knew of the presence of the cocaine and had the ability to maintain control over it or reduce it to his physical possession. Ras certainly knew of the presence of the cocaine, so this case turns on whether he had dominion or control over the cocaine. Because Ras did not have exclusive control of the area, it may not be inferred that he had control of the cocaine without other incriminating statements or circumstances which tend to support that inference. The trial court relied on Ras's post-arrest statement that they intended to take the cocaine to the buyer in Sarasota in order to show that Ras at least constructively possessed the cocaine. That admission, however, cannot be the sole evidence to support the element of possession; the state was required to present prima facie evidence establishing all elements of trafficking by possession independent of Ras's statement. The state offered no prima facie evidence to show that Ras possessed the cocaine.

Id. at 25 (citations omitted).

Similarly, to prove constructive possession of a firearm the State must produce evidence establishing that "the defendant had knowledge of the presence of the gun and the ability to exercise control over it." Creamer v. State, 605 So.2d 541, 542 (Fla. 1st DCA 1992) (quoting Wilcox v. State, 522 So.2d 1062, 1064 (Fla. 3d DCA 1988) ). In a car that is jointly occupied, knowledge and the ability to control the firearm may not be inferred but must be established by independent proof. See K.A.K. v. State, 885 So.2d 405, 407 (Fla. 2d DCA 2004). That proof can consist of incriminating statements or circumstances which tend to support the inference. Ras, 610 So.2d at 25.

The evidence here showed that A.P. and two passengers were together in the car, and A.P. was driving. The gun was hidden from sight under the floor mat of the front passenger seat. We have repeatedly held that mere proximity to contraband in a jointly occupied car is not sufficient to sustain a conviction based on constructive possession. See K.A.K, 885 So.2d at 407-08. Thus, the only independent proof remaining to support any of the inferences necessary to establish constructive possession is A.P.'s admission. This brings us full circle to Ras, which, as stated above, teaches us that this will not do. See Ras, 610 So.2d at 25 ; see also Harrison v. State, 483 So.2d 757, 758 (Fla. 2d DCA 1986) (holding that the corpus delicti doctrine prohibited the appellant's conviction for possession of a firearm where there was no proof of actual or constructive possession of the firearm apart from the appellant's confession).

We also note that although corpus delicti typically does not require proof of the identity of the guilty party before a defendant's statement can be admitted, sometimes the identity of the guilty party and the proof that a crime occurred "are so intimately connected that the proof of the corpus delicti and the guilty agency are shown at the same time." Spanish v. State, 45 So.2d 753, 754 (Fla. 1950). That was the case in State v. Allen, 335 So.2d 823. There, Allen was charged with two counts of manslaughter, one by culpable negligence and one under a statute relating to driving while intoxicated. The State alleged that Allen was the driver. Allen argued that his confession should not have been admitted until the State proved he was driving the car because if the victim had been the driver, there would have been no crime. Id. at 825-26. Because the State offered circumstantial proof that put Allen behind the wheel of the car, the court found that his confession was admissible. Id. Similarly, in this case, absent proof that A.P. possessed the gun, the evidence offered by the State does not establish that any crime occurred. Cf. State v. Walton, 42 So.3d 902, 906-07 (Fla. 2d DCA 2010) (explaining that in a DUI case the defendant's identity as the driver may become a necessary part of the corpus delicti where, absent proof that the defendant was the driver, the evidence does not establish a crime occurred).

The State argues that we should reject the traditional corpus delicti rule in favor of the corroboration rule applied in federal courts. We acknowledge that the traditional doctrine of corpus delicti seems ill suited to crimes such as the ones charged here. See United States v. Shunk, 881 F.2d 917, 920 (10th Cir. 1989) (holding that corpus delicti was not relevant in a prosecution for felon in possession of a firearm because in such crimes there is no tangible injury or loss and the crime cannot be found to have been committed without reference to a specific defendant). However, we are not free to ignore the fact that the Florida Supreme Court has rejected that option on more than one occasion, although not as to these specific crimes. See J.B., 705 So.2d at 1378 ; Burks, 613 So.2d at 442.

A.P.'s admission should not have been allowed into evidence. Without his admission, the State's evidence was insufficient to prove that A.P. possessed the gun. Accordingly, we reverse the order finding him guilty and remand for entry of an order granting his motion for judgment of dismissal.

Reversed and remanded with directions.

BLACK and SALARIO, JJ., Concur.


author: KHOUZAM, Judge.

text:
    Sean Patrick BRADY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4972
    District Court of Appeal of Florida, Second District.
    Opinion filed June 29, 2018.
    Howard L. Dimmig, II, Public Defender, and Lisa B. Lott, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cornelius C. Demps, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Sean Patrick Brady appeals the revocations of his probation and his resulting sentences in two circuit court cases. We affirm without comment the revocations and his sentences, but we reverse and remand for the correction of his written sentences to reflect the proper amount of jail credit awarded.

Mr. Brady was placed on probation for a term of sixty months following his no contest pleas to burglary of an unoccupied conveyance in case 13-CF-017782 and burglary of an unoccupied conveyance in case 13-CF-018576. Over two years later, Mr. Brady was charged with violating conditions three and five of his probation. Under a negotiated plea agreement, Mr. Brady admitted to violating those conditions in exchange for a concurrent thirty-six-month prison sentence with credit for time served. The trial court subsequently revoked Mr. Brady's probation and sentenced him in accordance with the negotiated plea agreement. His written sentences, however, reflected that he was entitled to only eighty-five days of jail credit in both cases.

During the pendency of this appeal, Mr. Brady filed a timely motion to correct a sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2), alleging that he was entitled to additional jail credit. The State conceded error, requesting that the trial court amend the sentences to reflect that Mr. Brady was entitled to a total of 186 days of jail credit in case 13-CF-017782 and a total of 185 days of jail credit in case 13-CF-018756. However, the trial court dismissed Mr. Brady's request for additional jail credit as premature because it believed that "such claims must be brought pursuant to rule 3.801 ... once the appeal has been decided."

Mr. Brady now argues that the trial court erred in dismissing his request for additional jail credit because rule 3.800(b)(2) specifically provides for such a correction during the pendency of a direct appeal. In response, the State contends that the trial court properly dismissed Mr. Brady's motion because Florida Rule of Criminal Procedure 3.801 is the "exclusive vehicle available for [Mr. Brady] to raise jail credit issues."

Rule 3.800(b) provides: "A motion to correct any sentencing error, including an illegal sentence or incorrect jail credit, may be filed as allowed by this subdivision." It further provides that "[i]f an appeal is pending, a defendant or the state may file in the trial court a motion to correct a sentencing error." Fla. R. Crim. P. 3.800(b)(2). That is, as the First District explained in Ross v. State, 221 So.3d 1290 (Fla. 1st DCA 2017), a defendant may seek additional jail credit for time served in a timely motion to correct a sentencing error during the pendency of his or her direct appeal. Id. at 1291 (citing Fla. R. Crim. P. 3.800(b)(2) ). In contrast, rule 3.801"applies to final sentences." Id. (quoting Fla. R. Crim. P. 3.801 (court commentary) ).

Here, because Mr. Brady timely filed his rule 3.800(b)(2) motion during the pendency of his direct appeal, the trial court erred in dismissing Mr. Brady's motion for additional jail credit as premature. Mr. Brady is not required to wait until his sentence becomes final to move for correction of a jail credit error under rule 3.801. Accordingly, because the State conceded that Mr. Brady was entitled to a total of 186 days of jail credit in case 13-CF-017782 and a total of 185 days of jail credit in case 13-CF-018756, we reverse and remand for the trial court to enter corrected written sentences that state the proper amount of jail credit awarded in cases 13-CF-017782 and 13-CF-018756.

Affirmed in part, reversed in part, and remanded.

KELLY and CRENSHAW, JJ., Concur.


author: SLEET, Judge. SILBERMAN, Judge, Specially concurring.

text:
    James HOWELL, DOC #T59017, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1319
    District Court of Appeal of Florida, Second District.
    Opinion filed June 29, 2018
    Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   SLEET, Judge.

James Howell appeals his convictions and sentences in case numbers 16-CF-15091 and 16-CF-14375 after entering an open plea of guilty. We affirm his judgments in both case numbers, but because there was no evidence that Howell willfully violated the terms of his sentencing agreement, we reverse his sentences and remand for the trial court to resentence Howell to his agreed upon sentence.

At his plea hearing, Howell indicated that he would like to enter an open plea to the court and accept the trial court's offer of a year and a day in prison; however, Howell also requested a two-week furlough to get his affairs in order and pay off his restitution. The State did not participate in this agreement, stating that it would defer entirely to the court. The court reminded Howell that he was entering an open plea and cautioned him that if he failed to appear for sentencing or was arrested on new charges, it would impose the maximum sentence. Howell acknowledged this sentencing condition and entered his plea. He did not timely appear for sentencing.

Howell turned himself in six days after his scheduled sentencing hearing. He apologized to the trial court for his failure to appear, explaining that he missed his hearing date because he was stranded in Orlando. He told the court that he had agreed with his employer to work in Orlando the weekend before his sentencing hearing, that his employer had promised to drive him back for the hearing, and that his employer was ultimately unable to drive him back when the job took longer than he anticipated. Because Howell was not paid until the job was complete, he had no money to arrange for alternative transportation home. He stated that he called his bondsperson and that his mother attempted to reach his lawyer when he realized he would not be able to make it to the hearing. Upon returning from the job in Orlando, he paid his restitution and bondsperson and then he turned himself in. He brought paperwork to the hearing reflecting that his restitution had been satisfied. The trial court disapproved of Howell's decision to take a job in Orlando so close to his sentencing date, finding that Howell willfully violated his sentencing agreement and sentencing him to a total of five years' prison in both case numbers.

On appeal, Howell argues that the trial court erred by imposing sentences that did not adhere to the terms of his deferred sentencing agreement when there was no evidence that his failure to appear was willful. We agree.

Howell's sentencing agreement with the trial court was similar to a Quarterman agreement, whereby a "defendant agrees that if he does not appear for sentencing at the agreed upon time and place, the trial court can sentence the defendant to any lawful sentence." See Neeld v. State, 977 So.2d 740, 743 (Fla. 2d DCA 2008). This court has explained that "a non-willful failure to appear will not vitiate [such an] agreement and permit the trial court to impose some greater sentence." Hawkins v. State, 138 So.3d 1196, 1200 (Fla. 2d DCA 2014) (quoting Palmore v. State, 82 So.3d 1004, 1005 (Fla. 1st DCA 2011) ). And "[w]here a defendant's failure to appear is found to be non-willful, the defendant is entitled to the bargained-for mitigation of his or her sentence." Id. (quoting Peacock v. State, 77 So.3d 1285, 1288 (Fla. 4th DCA 2012) ). Our review of the trial court's factual determination as to whether Howell's failure to appear was willful is for competent substantial evidence. Ingmire v. State, 9 So.3d 1278, 1281 (Fla. 2d DCA 2009).

In this case, the only evidence before the court was Howell's statements and the documentation showing that he had fully satisfied the restitution ordered in his cases. There was no evidence that Howell intentionally failed to appear in court as ordered or that his absence was a result of anything other than factors beyond his control. As in Ingmire, Howell "can be criticized for not contacting the appropriate authority or for failing to immediately turn himself over to law enforcement, but ... all of the relevant evidence established below is consistent with a person who simply erred and compounded the error through well-intended but improper action." Id. at 1282. Accordingly, the trial court erred in concluding that Howell willfully violated his furlough agreement by failing to appear.

The State contends that this court lacks jurisdiction because Howell failed to properly preserve this issue by filing a motion to withdraw plea. See Fisher v. State, 35 So.3d 143, 144 (Fla. 2d DCA 2010) (citing Fla. R. App. P. 9.140(b)(2)(A)(ii)(b) ). However, in this case there was no plea agreement with the State. Here, the trial court discussed potential sentences with Howell upon his request and entered into a sentencing agreement without the State's participation or objection. See, e.g., State v. McMahon, 94 So.3d 468, 476 (Fla. 2012). An open plea with the court, even when it includes the promise of a particular sentence, is not a bargained for agreement or contract with the State. See State v. Warner, 762 So.2d 507, 514 (Fla. 2000) ; State v. Pita, 54 So.3d 557, 560 (Fla. 3d DCA 2011) (distinguishing "a situation where the defendant enters an open plea with the court with the promise by the trial court that it will impose a particular sentence" from a plea bargain, which " 'contemplates an "agreement" between the [S]tate and the defendant which is approved by the court' " (quoting State v. Beck, 763 So.2d 506, 508 (Fla. 4th DCA 2000), disagreed with on other grounds by State v. VanBebber, 848 So.2d 1046 (Fla. 2003) ) ). Howell's objection to a sentence in excess of the sentencing agreement based on his specific argument that his failure to appear was not willful was sufficient to preserve the alleged error in this case. See Gore v. State, 964 So.2d 1257, 1265 (Fla. 2007) ("To preserve error for appellate review, the general rule is a contemporaneous, specific objection must occur during trial at the time of the alleged error."); see also Peacock, 77 So.3d at 1287 ("Florida appellate courts have consistently reviewed on direct appeal the issue of whether a defendant's failure to appear at sentencing was willful, even without the filing of any prior motion to withdraw plea.").

Accordingly, we affirm Howell's judgments in both case numbers; however, "[i]n the 'absence of positive evidence to establish willfulness,' reversal and remand with instructions that [Howell] be sentenced according to the [sentencing] agreement accepted by the trial court is appropriate." Lowery v. State, 22 So.3d 745, 749 (Fla. 2d DCA 2009) (quoting Ingmire, 9 So.3d at 1282 ). Because it appears that Howell will be entitled to immediate release upon resentencing, we also direct the trial court to expedite this case on remand.

Reversed and remanded with instructions.

CASANUEVA, J., Concurs.

SILBERMAN, J., Concurs specially with opinion.

SILBERMAN, Judge, Specially concurring.

I concur in the result reached by the majority. The State did not contend that Howell's failure to appear was willful and did not challenge Howell's explanation as to the reason for his failure to appear on the specified date. Further, the trial court did not make a finding that his failure to appear was willful. The trial court simply stated that Howell made bad decisions by not appearing in court. Under these circumstances, I agree that reversal is required. See Gee v. State, 38 So.3d 806, 807 (Fla. 2d DCA 2010).

      Quarterman v. State, 527 So.2d 1380 (Fla. 1988).


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    NATIONSTAR MORTGAGE, LLC, as successor in interest to Wells Fargo Bank, N.A., Appellant, v. Stephen JOHNSON a/k/a Stephen L. Johnson a/k/a Stephen Lynn Johnson; Carrie Johnson a/k/a Carrie Laura Armstrong; and Bonnie Claire Lanese Johnson n/k/a Bonnie Claire Lanese, Appellees.
    Case No. 2D17-2398
    District Court of Appeal of Florida, Second District.
    Opinion filed June 29, 2018
    Nancy M. Wallace of Akerman LLP, Tallahassee; William P. Heller of Akerman LLP, Fort Lauderdale; and Eric M. Levine of Akerman LLP, West Palm Beach, for Appellant.
    Mark P. Stopa of Stopa Law Firm, Tampa, for Appellees Stephen Johnson and Carrie Johnson.
    No appearance for remaining Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

Nationstar Mortgage, LLC, as successor in interest to Wells Fargo Bank, N.A., appeals from the dismissal of a foreclosure complaint. Because the trial court erroneously concluded that Nationstar did not have standing at the time of trial, we reverse.

Facts

Stephen L. Johnson executed a promissory note in favor of Wells Fargo Bank, N.A., on May 22, 2012. The note was secured by a mortgage encumbering Johnson's real property in Manatee County, Florida. Johnson made no payments on the note, and Wells Fargo sent Johnson a notice of default. Johnson made no attempt to cure the default, and on April 17, 2013, Wells Fargo filed the underlying foreclosure complaint. Wells Fargo attached a copy of the note, which was indorsed in blank, to the complaint, and it filed the original blank-indorsed note and the mortgage with the trial court in November 2013. The Johnsons answered the complaint and alleged various affirmative defenses. Wells Fargo filed an amended complaint in September 2015, and the Johnsons filed no answer to that.

In December 2016, Wells Fargo filed a motion to substitute party plaintiff, asserting that during the pendency of the foreclosure action, it had transferred the mortgage to Nationstar and that Nationstar was now the real party in interest. Wells Fargo attached to its motion a copy of the assignment of the mortgage. The day before trial was to begin, Wells Fargo, still the plaintiff, moved for the court to release the original documents that it had filed previously. Wells Fargo also moved to continue the trial so that Nationstar could enter an appearance and request the return of the original documents. Thus, Wells Fargo plainly contemplated that Nationstar would take physical possession of the original note in anticipation of trial.

Trial took place on February 28, 2017. Before it began, the trial court, over the Johnsons' objection, granted Wells Fargo's motion to substitute and granted Wells Fargo's motion and Nationstar's oral request to release the original note and mortgage into Nationstar's custody "for use at trial." During the trial, Nationstar then introduced the original note into evidence through its corporate witness. Although the Johnsons objected to the admission of the assignment of the mortgage, they did not object to the admission of the original note and mortgage.

Relying on Geweye v. Ventures Trust 2013-I-H-R, 189 So.3d 231 (Fla. 2d DCA 2016), and Creadon v. U.S. Bank, N.A., 166 So.3d 952 (Fla. 2d DCA 2015), the Johnsons moved for an involuntary dismissal at the conclusion of Nationstar's case, arguing that Nationstar lacked standing at trial. The trial court agreed and granted the motion. This appeal followed.

Discussion

We review de novo an order granting a motion for involuntary dismissal at the close of the plaintiff's case. Deutsche Bank Nat'l Tr. Co. v. Kummer, 195 So.3d 1173, 1175 (Fla. 2d DCA 2016) (citing Allard v. Al-Nayem Int'l, Inc., 59 So.3d 198, 201 (Fla. 2d DCA 2011) ).

On appeal, Nationstar argues that its physical possession of the original blank-indorsed note at the beginning of the trial was sufficient to establish its standing at trial. We agree. "A plaintiff who is not the original lender may establish standing to foreclose a mortgage loan by submitting a note with a blank or special endorsement, an assignment of the note, or an affidavit otherwise proving the plaintiff's status as the holder of the note." Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 310 (Fla. 2d DCA 2013). Having granted Wells Fargo's motion to substitute Nationstar as plaintiff, the trial court, upon Wells Fargo's motion and Nationstar's pretrial request, released the original note to Nationstar, and Nationstar introduced the note into evidence. Nationstar, therefore, physically possessed the note at trial and had standing to foreclose at that time as the holder of the note. See § 671.201(21)(a), Fla. Stat. (2016) (defining "holder" as "[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession"); see also Caraccia v. U.S. Bank, Nat'l Ass'n, 185 So.3d 1277, 1279 (Fla. 4th DCA 2016) ("A negotiable instrument ... is enforceable by the holder ...."); cf. Partridge v. Nationstar Mortg., LLC, 224 So.3d 839, 841-42 (Fla. 2d DCA 2017) (reversing the final judgment and directing the trial court to grant summary judgment in favor of the mortgagor because the original lender had filed the original note with the trial court long before Nationstar commenced its foreclosure action and "Nationstar's unilateral decision to leave the original note ... with the trial court does not establish possession of the note"). Contrary to the Johnsons' contention, Nationstar did not have to show that Wells Fargo had formally transferred the note to it; Nationstar's physical possession of the blank-indorsed note was sufficient to establish its status as the holder. Cf. § 673.3011, Fla. Stat. (2016) (providing that even a person who wrongfully possesses a negotiable instrument may be entitled to enforce it).

Nationstar's possession of the original note at trial distinguishes this case from both Geweye and Creadon. In Geweye, JPMorgan Chase Bank, N.A., filed a foreclosure complaint and attached copies of the blank-indorsed note and the mortgage. Subsequently, Chase filed the original note and the original mortgage. 189 So.3d at 232. Later, Chase transferred its interest in the mortgage to Ventures Trust, executed an assignment of the mortgage to Ventures, and moved to substitute Ventures as the party plaintiff. The trial court granted the substitution. Id. At trial, Ventures introduced a copy of the assignment of mortgage. The assignment, however, did not purport to assign any interest in the note, and there was no separate assignment of the note. Id. at 232-33. In reversing, this court explained:

"[A] plaintiff who is not the original lender may establish standing to foreclose a mortgage loan by submitting a note with a blank or special [i]ndorsement, an assignment of the note, or an affidavit otherwise proving the plaintiff's status as the holder of the note." Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 310 (Fla. 2d DCA 2013). Ventures submitted none of these and thus failed to establish its standing at the time of trial.
Ventures asserted that the original note indorsed in blank, coupled with the assignment of mortgage, provided it with standing. However, Chase filed the original note indorsed in blank with the court long before Ventures was substituted as the party plaintiff. As such, Ventures could not establish that it was the holder or nonholder in possession for purposes of standing. See Creadon v. U.S. Bank, N.A., 166 So.3d 952, 954 (Fla. 2d DCA 2015). Further, Ventures failed to explain how the assignment of mortgage, reflecting only the transfer of the mortgage and not the note, provided it with standing; nothing in the assignment of mortgage conferred standing on Ventures to enforce the note.

Id. at 233 (second alteration in original).

In Creadon, Thornburg Mortgage Home Loans, Inc., filed a foreclosure complaint in which it alleged that it owned the note. 166 So.3d at 953. Later, Thornburg filed the original mortgage and note with the court. Years later, U.S. Bank moved to substitute itself for Thornburg as the plaintiff, claiming that it was the holder of the note as a successor trustee to Bank of America, which had purchased the note and mortgage from Thornburg's bankruptcy estate. In holding that U.S. Bank had failed to establish standing as the holder of the note, this court explained:

The issue here is whether U.S. Bank presented sufficient evidence to warrant its substitution as plaintiff and to prove that it had standing to enforce the note and mortgage. It did not introduce the assignment of mortgage ... or any other assignment, into evidence. It proceeded solely on the theory that it was the holder of the note and thus had the right to foreclose the loan.
... An entity can establish standing to foreclose a note secured by a mortgage by showing that it is the holder of the note or a nonholder in possession of the note who has the rights of a holder. Creadon's original note had been filed in the registry of the court years before U.S. Bank appeared in the suit. Therefore, U.S. Bank simply could not have been holding the note or been a nonholder in possession with standing to foreclose the mortgage.

Id. at 954 (footnote omitted) (citations omitted).

Here, not only did Nationstar establish itself as the holder of the note at the time of trial, but contrary to the Johnsons' tipsy coachman argument, Wells Fargo had standing to foreclose when it filed the original complaint: the copy of the blank-indorsed note that Wells Fargo attached to its original complaint was identical to the original note that it subsequently filed with the court and was the very same note that Nationstar later introduced at trial. See U.S. Bank, N.A. for Truman 2012 SC2 Title Tr. v. Glicken, 228 So.3d 1194, 1196 (Fla. 5th DCA 2017) ("When the note with an undated blank indorsement has been attached to the original complaint, this is sufficient to prove standing provided that the plaintiff produces the original note at trial or files it with the trial court with the same indorsement and there are no subsequent contradictory indorsements."); cf. Nationstar Mortg., LLC, v. Bo Chan, 226 So.3d 330, 332 (Fla. 5th DCA 2017) ("[A]s the substitute plaintiff, Appellant 'stands in the shoes of the original plaintiff/mortgagee' and 'acquires the standing (if any) of the original plaintiff at the time the case was filed.' " (quoting Sandefur v. RVS Capital, LLC, 183 So.3d 1258, 1260 (Fla. 4th DCA 2016) ) ).

Because Wells Fargo had standing to foreclose when it filed the complaint with a copy of the blank-indorsed note attached, and Nationstar established standing in its own right by physically possessing the original blank-indorsed note at the beginning of the trial and entering it into evidence, the trial court erred in granting the Johnsons' motion for involuntary dismissal. Accordingly, the final judgment of dismissal is reversed, and this case is remanded for further proceedings.

Reversed and remanded.

VILLANTI and SLEET, JJ., Concur.

      The notice of appeal erroneously identified Wells Fargo as the plaintiff/appellant. Nationstar subsequently moved to correct the name of the appellant. We deemed the error a scrivener's error and granted the motion. We reject the Johnsons' jurisdictional argument based on this error as without merit and not worthy of further discussion.

      The complaint names Stephen Johnson and Carrie Johnson, among others, as defendants. Carrie Johnson signed the mortgage as "non-borrower spouse" and did not sign the note. She is identified as a defendant and/or an appellee in all relevant pleadings.

      As Nationstar's counsel stated at trial: "That's the difference between [Geweye ] and this case. That is the exact reason why I requested the return of those documents."


author: EVANDER, J.

text:
    Anthony LAMANCUSA, III, Appellant, v. DEPARTMENT OF REVENUE O/B/O Tina LAMANCUSA, Appellee.
    Case No. 5D17-1997
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 29, 2018
    Elizabeth Siano Harris, of Harris Appellate Law Office, Mims, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carrie R. McNair, Assistant Attorney General, Child Support Enforcement, Tallahassee, for Appellee.
   EVANDER, J.

Anthony Lamancusa, III, the former husband, appeals from an order denying his supplemental petition to terminate his child support obligation. The order on appeal (the "2017 order") vacated an earlier Florida court order (the "2013 order") to the extent that the 2013 order modified the duration of the former husband's child support obligation as initially established in a final judgment of dissolution of marriage rendered by a New York court. Because the trial court erroneously concluded that the Florida court that entered the 2013 order lacked subject matter jurisdiction to modify the duration of the former husband's child support obligation, we reverse.

In 2008, a New York court entered a final judgment dissolving the marriage between the Lamancusas. Pursuant to the final judgment, and consistent with New York law, the former husband was ordered to pay child support for the parties' youngest child until the child reached twenty-one years of age. Subsequent to the filing of the petition for dissolution in New York, Ms. Lamancusa moved to Florida with the youngest child and the former husband moved to North Carolina. In 2009, the New York judgment was registered in Florida.

In 2013, the former husband filed a supplemental petition for modification in Florida, based on a decrease in his income. After a hearing, the Florida court entered the 2013 order, reducing the former husband's child support obligation. Although not requested in the former husband's petition, the 2013 order also modified the duration of the former husband's child support obligation:

The [former husband's] obligation to pay child support shall continue until the child ... reaches the age of 18, dies, or emancipates. Upon request, the obligation will continue beyond the age of 18 so long as the child is in high school with the expectation that he or she will graduate before turning 19 years of age. In such case, the obligation will terminate upon the child's graduation from high school.

No appeal was taken from the 2013 order.

In 2017, after the youngest child turned eighteen and graduated from high school, the former husband filed a supplemental petition to terminate his child support obligation. In response, the Department of Revenue, acting on behalf of the former wife, argued that the 2013 order was void to the extent it purported to modify the duration of the former husband's child support obligation.

At the final hearing, the trial court succinctly phrased the issue as follows:

So my take is that if [the trial court] had jurisdiction originally on this, the question is was the modification of this with respect to duration, was that just wrong, a bad ruling, in which case the time for appeal has long passed, and nobody raised this otherwise, or whether the Court lacked subject matter jurisdiction.

Ultimately, the trial court concluded that the 2013 order was void to the extent it purported to modify the duration of the former husband's child support obligation, based on lack of subject matter jurisdiction. We respectfully disagree.

Subject matter jurisdiction refers to a court's authority to hear and decide a case. In re Adoption of D.P.P. , 158 So.3d 633, 636 (Fla. 5th DCA 2014) (citing Fla. Star v. B.J.F. , 530 So.2d 286, 288 (Fla. 1988) ). An examination of subject matter jurisdiction requires specific focus on the authority of the court over a general class of cases, rather than on the particular facts of an individual case. Id. Thus, a challenge to subject matter jurisdiction is proper only when the court lacks authority to hear a class of cases, rather than when it simply lacks authority to grant the relief requested in a particular case. Id. at 636-37.

In the instant case, pursuant to the Federal Full Faith and Credit Child Support Order Act ("FFCCSOA") and Florida's Uniform Interstate Family Support Act ("UIFSA"), the Florida trial court had subject matter jurisdiction to modify the former husband's child support obligation initially established in New York. "The FFCCSOA creates a framework for dealing with foreign support orders to determine which order controls, and requires that such orders be given full faith and credit by all states." Trissler v. Trissler , 987 So.2d 209, 210 (Fla. 5th DCA 2008) (citing 28 U.S.C. § 1738B (2007) ). The UIFSA is a uniform act created to ensure interstate consistency in the establishment, enforcement, and modification of child support orders, and has been adopted by all states, including Florida. See Pulkkinen v. Pulkkinen , 127 So.3d 738, 745 (Fla. 1st DCA 2013). Together, the FFCCSOA and the UIFSA "create a national regime in which only a single support order is effective at any given time." Id. (quoting Hamilton v. Hamilton , 914 N.E.2d 747, 751 (Ind. 2009) ).

To accomplish this goal, both the FFCCSOA and Florida's UIFSA rely on the concept of "continuing, exclusive jurisdiction." See 28 U.S.C. § 1738B(d) (2012) ; § 88.2051, Fla. Stat. (2013) ; Trissler , 987 So.2d at 210. A state that issues an initial child support order has continuing, exclusive jurisdiction over the order. 28 U.S.C. § 1738B(d) ; § 88.2051(1), Fla. Stat.; Trissler , 987 So.2d at 210. However, "the issuing state loses such jurisdiction when neither the child nor any of the parties continue to reside in the state or when all of the parties file written consents with the issuing court to allow another state to assume continuing, exclusive jurisdiction over the order, despite the parties' state of residence." Trissler , 987 So.2d at 210 (citing 28 U.S.C. § 1738B(e)(2)(A), (B) ; § 88.2051, Fla. Stat.).

In the instant case, New York lost exclusive, continuing jurisdiction over the Lamancusas' case because neither parent nor the child continued to reside in New York. While the loss of continuing, exclusive jurisdiction by New York did not automatically confer on another state the jurisdiction to modify the child support order, see Pulkkinen , 127 So.3d at 743-44 (citing Bowman v. Bowman , 82 A.D.3d 144, 917 N.Y.S.2d 379, 382 (2011) ), subject matter jurisdiction was expressly granted to Florida courts under section 88.6111(1)(a), Florida Statutes (2013). That section provides that a Florida court may modify a child support order issued in another state that is registered in this state if, after notice and hearing, the following requirements are met:

1. The child, the individual obligee, and the obligor do not reside in the issuing state;
2. A petitioner who is a nonresident of this state seeks modification; and
3. The respondent is subject to the personal jurisdiction of the tribunal of this state ....

§ 88.6111(1)(a), Fla. Stat. (2013). It is undisputed that these requirements were met in this case.

The Department of Revenue argues that although Florida courts had the authority to modify the amount of the former husband's child support obligation, section 88.6111(3) and (4), as adopted by the Florida Legislature in 2011, precluded modification of the duration of the child support obligation. These subsections provide, in relevant part:

(3) A tribunal of this state may not modify any aspect of a child support order that may not be modified under the law of the issuing state , including the duration of the obligation of support....
(4) In a proceeding to modify a child support order, the law of the state that is determined to have issued the initial controlling order governs the duration of the obligation of support. The obligor's fulfillment of the duty of support established by that order precludes imposition of a further obligation of support by a tribunal of this state.

§ 88.6111(3) - (4), Fla. Stat. (2003) (emphasis added).

The Department's argument fails for two reasons. First, although adopted by the Legislature in 2011, these provisions did not become effective until after the 2013 order. Specifically, chapter 2011-92, section 81, Laws of Florida, provides that "[e]xcept as otherwise expressly provided in this act, this act shall take effect upon the earlier of 90 days following Congress amending 42 U.S.C. s. 666(f) to allow or require states to adopt the 2008 version of the Uniform Interstate Family Support Act, or 90 days following the state obtaining a waiver of its state plan requirement under Title IV-D of the Social Security Act." Congress passed an amendment to 42 U.S.C. § 666(f) in late 2014 to require that states adopt the 2008 version of the UIFSA. See Pub. L. 113-183, Title III, § 301(f)(1), Sept. 29, 2014, 128 Stat. 1944.

Second, even if these provisions were in effect in 2013, we conclude that they do not limit a Florida court's subject matter jurisdiction to modify the duration of an out-of-state child support order. Rather, these sections provide that a Florida court is to apply the laws of the issuing state in making a decision regarding the modification of the duration of an out-of-state child support order. In other words, subsections 88.6111(3) and (4) are choice-of-law provisions, not limitation of subject matter jurisdiction provisions. See In re Ball , 168 N.H. 133, 123 A.3d 719, 724, 726 (2015) ("The parties dispute whether the [New Hampshire] trial court had subject matter jurisdiction in 2008 to change the duration of the respondent's child support obligation from that set forth in the Massachusetts support order. The petitioner argues that the trial court lacked jurisdiction to shorten the duration because doing so would not have been allowed under Massachusetts law.... The petitioner, however, conflates subject matter jurisdiction with choice of law."; "Accordingly, even if, as the petitioner contends, the trial court [erred] by applying New Hampshire law to the duration of the respondent's child support obligation, such would constitute an error of law rather than a jurisdictional defect."); see also In re Schneider , 173 Wash.2d 353, 268 P.3d 215, 223 (2011) ("Under the UIFSA, a Washington court has subject matter jurisdiction to modify out-of-state child support orders but lacks the authority to do so if ... the modification changes the duration of the support obligation inconsistently with the law of the state that issued the initial controlling order.").

We further observe that New York law permits modification of the duration of a child support obligation where there has been a substantial change of circumstances. See, e.g. , Calderon v. Almonte , 158 A.D.3d 681, 68 N.Y.S.3d 746, 747 (2018) (holding that magistrate properly terminated father's child support obligation where evidence established substantial change in circumstances, namely, child moving from mother's house to father's house, which justified terminating father's child support obligation). However, as previously discussed, New York has lost continuing, exclusive jurisdiction over the instant case. To accept the Department's argument that Florida lacks subject matter jurisdiction to modify the duration of the former husband's child support obligation, would mean that the former husband would be without a forum to seek such modification even if there had been a substantial change of circumstances justifying a modification.

Although the Florida trial court may have committed an error of law in modifying the duration of the former husband's child support obligation in its 2013 order, it did not act without subject matter jurisdiction. Accordingly, it was error for the trial court, in the 2017 order, to vacate the 2013 order to the extent that the 2013 order modified the duration of the former husband's child support obligation.

REVERSED and REMANDED.

BASS, J.L., Associate Judge, concurs.

EISNAUGLE, J., concurs specially, with opinion.

EISNAUGLE, J., concurring specially.

I agree that, based on a plain reading of section 88.6111, Florida Statutes (2013), the trial court had subject matter jurisdiction to modify the duration of child support. However, given this disposition and the issues preserved in our record, I find it unnecessary to join the other portions of the majority's opinion.