author: Levine, J.

text:
    Keneil O. DENTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-618
    District Court of Appeal of Florida, Fourth District.
    [May 2, 2018]
    Carey Haughwout, Public Defender, and Stacey Kime, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Levine, J.

The primary issue in this case was identity. After the victim's house was burglarized, fingerprints and DNA samples were taken from the crime scene. Eventually, appellant-then in custody for unrelated offenses-was charged with the burglary. At trial, the evidence connecting appellant to the burglary consisted of a fingerprint found at the crime scene and the victim's identification of appellant as someone he had seen in the neighborhood on several occasions. Based on this evidence, appellant was found guilty of burglary.

Appellant appeals his conviction. He raises three issues, but we address only one: whether the state's untimely production of an exculpatory or impeaching crime scene DNA report warrants reversal. Here, the state's production of the initial letter referencing a DNA test conducted by a third-party lab, its untimely production of the report containing the results of that third-party test, and the state's actions regarding the DNA report lulled appellant into inaction. Because this rose to the level of a Brady violation, we reverse the conviction and remand for a new trial.

Roughly two weeks before trial, the state filed a supplemental witness list identifying a Palm Beach County Sheriff's Office ("PBSO") forensic scientist as a potential trial witness. Attached to this notice was a letter from the forensic scientist explaining that a DNA analysis had been conducted and a third-party DNA report forwarded to PBSO for review and entry into its database.

After receiving this notice and the attached letter, defense counsel emailed the prosecutor to ask whether there was any DNA tested in the case linking appellant to the robbery. The prosecutor responded that she did not know whether any testing had been done. Defense counsel did not receive the DNA report referenced in the letter at this time.

The issue of DNA reports arose again at trial. There, the state reiterated that it had "no report as to any DNA whatsoever." The state did not introduce any DNA reports into evidence, nor did it call the PBSO forensic scientist to testify. Instead, it relied primarily on fingerprint evidence and the victim's testimony to establish appellant as the burglar. The jury returned a guilty verdict on the burglary charge.

Alleging a Brady violation, defense counsel moved for a new trial. At the hearing on appellant's motion for new trial, the PBSO forensic scientist testified regarding the report referenced in her letter. She explained that the report did not contain allele matches consistent with appellant's DNA. Rather, the genetic profile from the scene returned a "major profile" consistent with the victim and a second, "minor profile" that did not contain alleles matching appellant's profile.

Maintaining that no discovery violation had occurred, the trial court denied appellant's motion and adjudicated him guilty on the burglary charge. This appeal follows.

We conduct independent appellate review of whether a Brady violation has occurred. Geralds v. State , 111 So.3d 778, 787 (Fla. 2010). In doing so, we defer to the trial court on questions of fact, review de novo the application of the law to those facts, and independently review the cumulative effect of any evidence that was suppressed. Id.

The seminal case of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), requires the state to disclose material information within its possession or control that is favorable to the defense. A Brady violation occurs when the defendant can show that the state suppressed evidence and "(1) the evidence was either exculpatory or impeaching; (2) the evidence was willfully or inadvertently suppressed by the State; and (3) because the evidence was material, the defendant was prejudiced." Davis v. State , 136 So.3d 1169, 1184 (Fla. 2014).

The forensic scientist's testimony at the post-trial hearing establishes the DNA report as exculpatory or impeaching Brady evidence. The report contained two genetic profiles, neither of which was consistent with appellant's profile. In this regard, it was "favorable" to appellant and therefore had exculpatory or impeaching value, as it cast doubt on the evidence presented as well as the strength of the state's case. See Way v. State , 760 So.2d 903, 910 (Fla. 2000) (stating that evidence meets the first prong of Brady "merely if it is 'favorable to the accused, either because it is exculpatory, or because it is impeaching' ") (quoting Strickler v. Greene , 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) ).

In this case, the burglar's identity was at issue and the sole identifying evidence was a contested fingerprint and the victim's testimony that appellant was his neighbor's friend and often in the area. Under these circumstances, the DNA report casting doubt upon appellant's presence at the crime scene constituted exculpatory or impeaching Brady evidence.

The second prong of Brady is the state's willful or inadvertent suppression of evidence. Davis , 136 So.3d at 1184. Generally, there is no Brady violation "where the information is equally accessible to the defense and the prosecution, or where the defense either had the information or could have obtained it through the exercise of reasonable diligence." Provenzano v. State , 616 So.2d 428, 430 (Fla. 1993).

Here, however, there was no such equal access and the state's responses to defense counsel's requests for information amounted to suppression in that the responses lulled the defense into believing that there were no DNA results. While the state did provide a letter referencing the DNA report, the prosecutor subsequently and repeatedly misinformed defense counsel by asserting that no DNA testing had been done in this case. In reliance on the state's declarations that no DNA report existed, defense counsel apparently did not attempt to locate or subpoena the report referenced in the forensic scientist's letter.

Since appellant was told that the crime scene DNA was not tested, he could not have known or had access to the potentially exculpatory or impeaching DNA report that was available to the state. Thus, any "notice" provided by the forensic scientist's letter was rendered ineffective by the state's repeated incorrect assertion that it had not received a DNA report and the report was effectively suppressed. See id.

Finally, the suppressed DNA report here satisfies Brady 's materiality prong. See Davis , 136 So.3d at 1184. Evidence is material for Brady purposes if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. Allen v. State , 854 So.2d 1255, 1260 (Fla. 2003). Here, there is a reasonable probability that, had the defense received the DNA report, it would have called the forensic scientist to testify and cast doubt on the state's case.

As demonstrated by the scientist's testimony at the hearing on a motion for new trial, she would have testified that the DNA report's "minor profile" alleles were not the same as the alleles in appellant's DNA profile. Given that identity was the main issue at trial, this sort of testimony could have reasonably affected the outcome of the proceeding, so the suppressed report was material. See id.

In this case, a number of factors uniquely converged so as to give rise to a Brady violation. The state, after producing a letter acknowledging the existence of a DNA report in PBSO's possession, repeatedly told defense counsel that it had no such report and that no DNA testing had occurred. In fact, the state had in its constructive possession a report containing the results of DNA tests run by a third-party lab. As PBSO's forensic scientist noted at a post-trial hearing, the suppressed DNA report contained two genetic profiles from the crime scene sample, but neither was consistent with appellant's profile. Because such evidence could have reasonably changed the outcome of this forensically driven case, we reverse appellant's burglary conviction and remand the case for a new trial.

Reversed and remanded.

Warner and Gross, JJ., concur.


source: Caselaw Access Project

author: Levine, J. Warner, J., dissenting.

license: Public Domain

text:
    Dennis L. HART, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2468
    District Court of Appeal of Florida, Fourth District.
    [May 2, 2018]
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.
    EN BANC
   Levine, J.

The issue in this case is whether a 30-year prison sentence for a nonhomicide offense committed when appellant was a juvenile violates the Eighth Amendment or Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Because we cannot conclude that the sentence violates the United States Constitution, we affirm.

In 1997, appellant entered an open plea to the following offenses committed when he was 16 years old: burglary of a dwelling while armed with a firearm (count I), robbery with a firearm (counts II-VI), and attempted robbery with a firearm (count VII). The trial court sentenced him to concurrent terms of 30 years in prison for counts I through VI and 15 years for count VII.

In 2002, appellant moved to correct his sentence based upon Heggs v. State , 759 So.2d 620 (Fla. 2000). The state conceded there was a Heggs violation. With a corrected scoresheet, appellant's maximum permissible sentence was 21.42 years in prison. The trial court resentenced appellant on counts II-VI to 20 years in prison. He was not resentenced on count I and is still serving 30 years for that offense. It is unclear from the record on appeal in this case why appellant was not resentenced on count I.

In April 2017, appellant filed the instant rule 3.800(a) motion seeking resentencing pursuant to Graham , Henry v. State , 175 So.3d 675 (Fla. 2015), and Kelsey v. State , 206 So.3d 5 (Fla. 2016). Appellant argued that the trial court must reconsider his sentence in light of the factors enumerated in section 921.1401(2), Florida Statutes (enacted as part of chapter 2014-220).

The trial court set the case for resentencing. Prior to the hearing, defense counsel filed memoranda of law explaining that appellant was entitled to resentencing under the 1994 guidelines. Counsel argued that the most appellant could receive was 21.42 years in prison and the court could not impose an upward departure without violating Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). At the time, appellant had served over 20 years in prison.

The trial court requested additional briefing as to whether resentencing was required, and the parties filed additional memoranda. Discussing the Florida Supreme Court's decisions in Kelsey , Henry , and Johnson v. State , 215 So.3d 1237 (Fla. 2017), the defense argued that any term-of-year sentences for juvenile offenders without review provisions are illegal. The state asserted that appellant's sentence did not constitute a Graham violation and chapter 2014-220 comes into play only if resentencing is required.

The trial court denied appellant's motion based in part upon this court's decision in Davis v. State , 199 So.3d 546 (Fla. 4th DCA 2016), which involved a 75-year sentence challenged in a motion for postconviction relief. In its ruling, the trial court stressed that Kelsey and Johnson were cases where the original life without parole sentence for non-homicide offenses clearly violated Graham . The court concluded:

While the Court does not believe that the Supreme Court has yet to mandate resentencing of all juveniles sentenced to a term of years without a review mechanism, this issue is ripe for appellate guidance. Certainly there is considerable confusion surrounding the status of juvenile offenders whose original sentences did not violate Graham .

While this appeal was pending, the Florida Supreme Court quashed this court's decision in Davis and remanded for resentencing in light of the decision in Johnson . Davis v. State , SC16-1905, 2018 WL 480516 (Fla. Jan. 19, 2018).

In Graham , the United States Supreme Court held that the Eighth Amendment prohibits a non-homicide juvenile offender from receiving a sentence of life without parole unless there is "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." 560 U.S. at 75, 130 S.Ct. 2011. In response to Graham , the Florida Legislature enacted chapter 2014-220, Laws of Florida, which has been codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes. Chapter 2014-220 requires that juvenile offenders who commit offenses after July 1, 2014 receive a review hearing and an opportunity for early release after serving 15, 20, or 25 years depending on the crime committed and the length of the prison sentence.

Subsequently, the Florida Supreme Court decided Henry , Kelsey , Johnson , and Lee v. State , 234 So.3d 562 (Fla. 2018). In Henry , a juvenile non-homicide offender who was sentenced to life plus 60 years was resentenced following Graham to an aggregate of 90 years. 175 So.3d at 676. Citing Graham , the supreme court found the new sentence unconstitutional and remanded for resentencing under chapter 2014-220. Id. at 679-80.

In Kelsey , a juvenile non-homicide offender who was sentenced to life plus 25 years was resentenced to 45 years after Graham but before the Florida Legislature passed chapter 2014-220. 206 So.3d at 6-7. The supreme court clarified that a term-of-years sentence does not have to amount to a de facto life sentence to violate Graham . Id. at 10. The court further stated that "juveniles who are serving lengthy sentences are entitled to periodic judicial review to determine whether they can demonstrate maturation and rehabilitation." Id. The court concluded that the 45-year resentence did not provide a meaningful opportunity for relief within his lifetime and remanded for resentencing under chapter 2014-220. Id. at 11.

In Johnson , a juvenile non-homicide offender who was sentenced to life was resentenced following Graham to 100 years. 215 So.3d at 1239. The supreme court stated that "we have determined that Graham prohibits juvenile nonhomicide offenders from serving lengthy terms of incarceration without any form of judicial review mechanism." Id. at 1240. Because the sentence violated Graham , the court remanded for resentencing under chapter 2014-220. Id. at 1243-44.

In Lee , a juvenile non-homicide offender who was sentenced to life was resentenced to 40 years after the decision in Graham but before the Florida Legislature passed chapter 2014-220. 234 So.3d at 563-64. The supreme court reversed and remanded for resentencing under chapter 2014-220, finding the sentence did not "provide him an opportunity to obtain early release based on a demonstration of maturity and rehabilitation before the expiration of the imposed term." Id. at 564.

We distinguish Henry , Kelsey , Johnson , and Lee , as those cases all involve juvenile non-homicide offenders who were resentenced following Graham and whose sentences imposed on resentencing still were unconstitutional. In those cases, the violation of the dictates of Graham resulted in resentencing, which was mandated by the Florida Supreme Court to be in accordance with chapter 2014-220. In contrast, the instant case involves an original sentence, and there is no clear authority stating that a 30-year sentence violates Graham so as to trigger resentencing under chapter 2014-220. The dissent overlooks this distinction and, in doing so, conflates Graham and chapter 2014-220.

Certainly considerable confusion remains as to when a juvenile nonhomicide offender sentence becomes illegal under Graham so as to mandate resentencing. In other words, it is unclear whether the triggering factor is a per se "lengthy" sentence, a sentence that exceeds the statutory threshold of chapter 2014-220, or just any "term-of-years" sentence. Despite this confusion, what is clear is that the Florida Supreme Court has not plainly required that all "term-of-years" juvenile offender sentences-even those of shorter duration-provide a mechanism for early release based on demonstrated maturity and rehabilitation. Nor has the supreme court expressly stated that any juvenile offender sentence exceeding the thresholds for review in chapter 2014-220 is unconstitutional or otherwise illegal.

The Florida Supreme Court has not yet applied Graham to a 30-year or shorter sentence. In Abrakata v. State , 168 So.3d 251 (Fla. 1st DCA 2015), a juvenile offender who received a 25-year sentence for nonhomicide offenses argued that his sentence violated Graham and that he was entitled to review under section 921.1402(2)(c). The First District concluded that the sentence did not violate Graham and without a Graham violation, section 921.1402 did not apply retroactively. Id. at 252. The supreme court declined review. See SC15-1325, 2017 WL 24657 (Fla. Jan. 3, 2017) (Pariente, J., dissenting). See also Hill v. State , 172 So.3d 491 (Fla. 1st DCA 2015), rev. denied , SC15-1667, 2017 WL 24659 (Fla. Jan. 3, 2017) (Pariente, J., dissenting) (involving a 35-year sentence for nonhomicide offenses); McCullum v. State , 173 So.3d 1056 (Fla. 1st DCA 2015), rev. denied , SC15-1770, 2017 WL 24756 (Fla. Jan. 3, 2017) (Pariente, J., dissenting) (involving an aggregate 55-year sentence for nonhomicide offenses); Williams v. State , SC16-2170, --- So.3d ----, 2018 WL 1870518 (Fla. Apr. 19, 2018) (involving a plurality opinion which, based entirely on the state's concession, ended inquiry and remanded for resentencing of a 35-year sentence pursuant to chapter 2014-220).

Further, no decision from the Supreme Court of the United States has expanded Graham so broadly that it would encompass a 30-year sentence. See, e.g., Virginia v. LeBlanc , --- U.S. ----, 137 S.Ct. 1726, 1729, 198 L.Ed.2d 186 (2017) (holding that it was not objectively unreasonable for a Virginia state court to conclude that Virginia's geriatric release program, which employed normal parole factors and allowed for conditional release after a defendant reaches age 60 or 65, "satisfied Graham 's requirement that juveniles convicted of a nonhomicide crime have a meaningful opportunity to receive parole").

Our court has also previously declined to find that a 31-year sentence imposed for crimes committed prior to the enactment of chapter 2014-220 requires resentencing. See Tillman v. State , --- So.3d ----, 42 Fla. L. Weekly D1844 (Fla. 4th DCA Aug. 23, 2017) ; see also Davis v. State , 214 So.3d 799 (Fla. 1st DCA 2017) (concluding that a juvenile offender's 35-year sentence for homicide and non-homicide offenses did not violate Graham or Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), so resentencing was not required).

There is simply no authority-either constitutional, statutory, or precedential-stating that any "term-of-years" juvenile offender sentence that does not provide an opportunity for early release, or any sentence exceeding the statutory thresholds in chapter 2014-220, is unconstitutional under Graham and requires resentencing even if the offense was committed prior to chapter 2014-220's effective date. In the absence of a Graham violation, there is no clear authority to resentence. To hold otherwise would effectively require resentencing in every "term-of-years" case or every case where the sentence exceeds the statutory thresholds, no matter when the crime was committed.

In order for a mandated resentencing under chapter 2014-220 to come into play, there must first be a Graham violation. Without a clear violation of Graham , there is no requirement for a resentencing under chapter 2014-220.

Significantly, the prohibition against cruel and unusual punishment in the Florida Constitution must be construed in conformity with decisions of the Supreme Court of the United States interpreting the Eighth Amendment. Art. I, § 17, Fla. Const.;

Correll v. State , 184 So.3d 478, 489 (Fla. 2015) ("[T]his Court is bound by the conformity clause of the Florida Constitution to construe the state prohibition against cruel and unusual punishment consistently with pronouncements by the United States Supreme Court."). Thus, we decline to expand the holding of Graham .

Appellant did not receive a life without parole sentence and, even if he serves his 30-year sentence day-for-day, he will be released when he is in his forties. Given these circumstances, we cannot conclude that the 30-year sentence violates the Eighth Amendment or Graham , especially in the absence of any authority to the contrary.

We affirm the trial court's order and certify conflict with the following decisions: Cuevas v. State , 241 So.3d 947 (Fla. Mar. 9, 2018) (reversing the denial of a rule 3.800(a) motion and concluding that a juvenile non-homicide offender's sentences of 26 years in prison were unconstitutional under Graham as construed in Henry and Johnson ); Blount v. State , 238 So.3d 913 (Fla. 2d DCA 2018) (reversing the denial of a rule 3.800(a) motion to correct juvenile nonhomicide sentences of 40 years in prison and remanding for resentencing pursuant to Johnson ); Mosier v. State , 235 So.3d 957 (Fla. 2d DCA 2017) (reversing the denial of a rule 3.800(a) motion and concluding that a juvenile non-homicide offender's sentences of 30 years in prison followed by 10 years of sexual offender probation were unconstitutional under Graham as construed in Henry and Johnson ); Alfaro v. State , 233 So.3d 515, 516 (Fla. 2d DCA 2017) (reversing 30-year sentences for nonhomicide offenses and rejecting trial court's conclusion that " Kelsey only applied to juvenile offenders like Kelsey who initially received life sentences but had been resentenced to a term of years under Graham "); Burrows v. State , 219 So.3d 910, 911 (Fla. 5th DCA 2017) (reversing denial of postconviction relief and remanding for resentencing where juvenile offender received 25-year sentences for non-homicide offenses).

Our affirmance is without prejudice to appellant filing a rule 3.800(a) motion to correct an illegal sentence if the sentence on count I violates Heggs and the failure to correct the sentence was an oversight or error.

Affirmed. Conflict certified .

Gerber, C.J., Damoorgian, Ciklin, Conner, Forst, Klingensmith and Kuntz, JJ., concur.

Warner, J., dissenting.

As the Florida Supreme Court has already addressed the issue presented in the majority opinion, I dissent. I would reverse and remand for resentencing of Hart consistent with Lee v. State , 234 So.3d 562 (Fla. 2018) ; Johnson v. State , 215 So.3d 1237 (Fla. 2017) ; and Kelsey v. State , 206 So.3d 5 (Fla. 2016).

The issue presented is whether a juvenile sentenced, for a nonhomicide offense, to prison for thirty years prior to Henry v. State , 175 So.3d 675 (Fla. 2015), must be resentenced. In Kelsey , the court considered the following question:

Is a defendant whose original sentence violated Graham v. Florida , 560 U.S. 48, [130 S.Ct. 2011, 176 L.Ed. 2d 825] (2010), and who was subsequently resentenced prior to July 1, 2014, entitled to be resentenced pursuant to the provisions of chapter 2014-220, Laws of Florida?

Kelsey , 206 So.3d at 6 (alterations in original). The court answered this question in the affirmative. It did not limit its answer to sentences in excess of thirty years. After reviewing the prior case law, the court concluded that Chapter 2014-220, requiring periodic judicial review, should be applied to all juveniles serving lengthy sentences who were sentenced prior to Henry :

In other words, we have determined through our reading of the Legislature's intent in passing chapter 2014-220, Laws of Florida, that juveniles who are serving lengthy sentences are entitled to periodic judicial review to determine whether they can demonstrate maturation and rehabilitation. It would be antithetical to the precept of Graham and chapter 2014-220, Laws of Florida, to interpret them so narrowly as to exclude a juvenile offender who happens to have been resentenced before this Court issued Henry .

Kelsey , 206 So.3d at 10.

A lengthy sentence thus violates the precepts of Graham when it does not provide a means of early release based on maturity. The legislature settled upon specific judicial review of sentences as satisfying the means for release. The court concluded:

In Henry , we determined that the Legislature's remedy was the appropriate remedy in these cases, and the Legislature has determined that the "means and mechanisms for compliance" with Graham are to provide judicial review for juvenile offenders who are sentenced to terms longer than twenty years . Therefore Kelsey is entitled to resentencing under those provisions.

Id. at 11 (emphasis added). Thus, the court determined to follow the provisions of chapter 2014-220, Laws of Florida, for those pre- Henry sentences imposed on juveniles which exceed twenty years.

The court expanded that reasoning in Johnson v. State , 215 So.3d 1237, 1243 (Fla. 2017), and held that three factors must be considered in reviewing a juvenile's term of years sentence post- Henry .

In other words, pursuant to Henry , we must consider three factors when reviewing a juvenile nonhomicide offender's term-of-years sentence. Post- Henry , we must ensure that a juvenile nonhomicide offender does not receive a sentence that provides for release only at the end of a sentence (e.g. a 45-year sentence with no provision for obtaining early release based on a demonstration of maturity and rehabilitation before the expiration of the imposed term, such as in Kelsey ). Secondly, we must ensure that a juvenile nonhomicide offender who is sentenced post- Henry does not receive a sentence which includes early release that is not based on a demonstration of rehabilitation and maturity (i.e. gain time or other programs designed to relieve prison overpopulation). Last, we must ensure that a juvenile nonhomicide offender who is sentenced post- Henry does not receive a sentence that provides for early release at a time beyond his or her natural life (e.g. a 1,000-year sentence that provides parole-eligibility after the offender serves 100 years). To qualify as a "meaningful opportunity for early release," a juvenile nonhomicide offender's sentence must meet each of the three parameters described in Henry .

Significantly, the court noted that the State in its answer brief in Johnson conceded that the length of sentence was not controlling. "The State argues that it is not the length of the sentence given, but rather whether the juvenile offender will have some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." Id. The court reiterated that the length of sentence was not the controlling factor:

Further, we previously acknowledged that the length of the sentence alone was not dispositive in Kelsey when we said that Kelsey's "sentence was unconstitutional not because of the length of his sentence, but because it did not provide him a meaningful opportunity for early release based on maturation and rehabilitation" during his natural life. Kelsey , 206 So.3d at 11.

Id. Most recently, the court again addressed the issue in Lee v. State . Lee was serving a forty-year sentence for a nonhomicide crime. 234 So.3d at 563. The court recited the three factors listed in Johnson to consider whether the defendant required resentencing and held that "Lee's sentence does not provide him an opportunity to obtain early release based on a demonstration of maturity and rehabilitation before the expiration of the imposed term. Accordingly, Lee is entitled to resentencing under the juvenile sentencing provisions in chapter 2014-220." Id. at 564. In other words, it is the opportunity for early release based on a demonstration of maturity which is required.

We have already applied the analysis of Kelsey and Johnson to a juvenile who received a thirty-five-year sentence in Andrevil v. State , 226 So.3d 867, 871 (Fla. 4th DCA 2017), concluding it was not the length of sentence alone but the requirement that a juvenile have the opportunity for early release based upon maturation, and thus early judicial review, which is necessary:

Based on Johnson II and the rationale underlying Henry and Kelsey , we conclude that appellant must be afforded periodic review under chapter 2014-220, Laws of Florida. Johnson II stated that its holding in Henry "was not predicated on the term of the sentence, but on the status of, and the opportunity afforded, the offender." 215 So.3d at 1240. Johnson II noted that the length of the sentence alone is not dispositive because "any term of imprisonment for a juvenile is qualitatively different than a comparable period of incarceration is for an adult." Id. at 1239-40 (citing Henry , 175 So.3d at 680 ).

Id. As noted in the majority opinion, other courts have held that sentences in excess of twenty years require resentencing pursuant to Kelsey and Johnson .

The majority also mentions several juvenile cases in which the supreme court has declined to exercise discretionary jurisdiction where the juvenile was not resentenced and had a sentence of thirty years or greater. Abrakata v. State , 168 So.3d 251, 252 (Fla. 1st DCA 2015), rev. denied , No. SC15-1325, 2017 WL 24657 (Fla. Jan. 3, 2017) (Pariente, J., dissenting) (involving twenty-five year sentence for non-homicide offenses); Hill v. State , 172 So.3d 491 (Fla. 1st DCA 2015), rev. denied , No. SC15-1667, 2017 WL 24659 (Fla. Jan. 3, 2017) (Pariente, J., dissenting) (involving thirty-five-year sentence for non-homicide offenses); McCullum v. State , 173 So.3d 1056 (Fla. 1st DCA 2015), rev. denied , No. SC15-1770, 2017 WL 24756 (Fla. Jan. 3, 2017) (Pariente, J., dissenting) (involving aggregate fifty-year sentence for non-homicide offenses). I cannot explain why the supreme court would not exercise jurisdiction in those cases, although the underlying decisions were all rendered prior to the decisions in Kelsey and Johnson . If the court is actually determining that juvenile sentences less than forty or forty-five years do not require resentencing, then the court should revisit its ruling in Kelsey .

For these reasons, I would follow Kelsey, Johnson, and Lee and reverse for resentencing consistent with these cases.

Gross, Taylor and May, JJ., concur.

      Similarly, this court has remanded cases where defendants received resentencing mandated by Graham , but did not receive sentence review under chapter 2014-220. See Andrevil v. State , 226 So.3d 867 (Fla. 4th DCA 2017) ; Burger v. State , 232 So.3d 1 (Fla. 4th DCA 2017).


text:
    Calvin MELVIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4071
    District Court of Appeal of Florida, Fourth District.
    [May 9, 2018]
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   Levine, J.

Appellant appeals his convictions and sentences for three counts of providing false information to law enforcement in a missing child investigation. Appellant raises several issues, including that the trial court erred in denying his motion to dismiss and in finding that a non-state prison sanction presented a danger to the public. We affirm the denial of the motion to dismiss based on the plain language of the statute under which appellant was charged. However, we reverse appellant's sentence because the trial court's order was insufficient to support a finding that appellant was a danger to the public. We affirm the remaining issues without comment.

Appellant was charged with three counts of providing false information to law enforcement during the investigation of his missing child. He made the allegedly false statements on January 9 and 10, 2013. On January 11 and 12, the child's skeletal remains were found in the backyard of the residence appellant had shared with Brittney Cierra, who was his girlfriend and the deceased child's mother. Forensics determined that the child had died in July 2011 at the age of five months, around the same time the child had gone missing.

Appellant moved to dismiss the charges, arguing there was no nexus between the false information he provided to law enforcement and the child's death since the child had died a year and a half before he gave the false information. The state argued that the statute and jury instruction did not contain any language requiring a causal connection. The trial court agreed with the state and denied the motion to dismiss. Thereafter, appellant entered an open plea to the charges, reserving the right to appeal the denial of his motion to dismiss.

Testimony during the sentencing hearing revealed that on January 9, 2013, Child Protective Services and a police officer went to appellant and Cierra's house to investigate the well-being of the children residing there. According to a report, Cierra used drugs, verbally abused the children, and threatened to physically harm them. At the house, when questioned about the missing child's whereabouts, appellant told the authorities that the child was with the paternal grandmother. When the child could not be located, a detective became involved in the case.

The next day, during a five-hour long interview with the police, appellant repeatedly stated that the child had been taken to a fire station. Towards the end of the interview, appellant admitted he believed the missing child was dead because he had an argument with Cierra and left for a couple of months. When he came back, Cierra said, "[I]f you love me ... you will forgive me," but would not tell him what she was referring to. He told the detectives to "look under the ground" behind the house where appellant used to live with Cierra and drew a map for the detectives. A search of the backyard revealed the skeletal remains of the missing child.

Appellant testified that he lied to the police because he was "in love, and being stupid." According to appellant, Cierra threatened to harm the children every time he left her. Appellant also testified he told the police that there was a spot in the backyard where Cierra would sit and cry.

After the hearing, the trial court found that imposing a non-state prison sanction on appellant would present a danger to the public. The court stated:

Through his lies and misdirection, the Defendant confused and delayed the investigation in the disappearance of a child, his child, who was ultimately found dead and buried in his own backyard. The Defendant's actions put other young children at risk; most directly those who lived in the home with him and his paramour. His actions would allow others to carry out violence against children with potential impunity.

The trial court sentenced appellant to consecutive terms of five years' imprisonment on two counts and time served on the third count.

"Because a motion to dismiss pursuant to rule 3.190(c)(4) requires the lower court to make a pretrial determination of the law of the case when the facts are not in dispute, the standard of review on appeal is de novo." State v. Benjamin , 187 So.3d 352, 354 (Fla. 4th DCA 2016) (citation omitted). "The interpretation of a statute is a purely legal matter and subject to review de novo." State v. Brock , 138 So.3d 1060, 1062 (Fla. 4th DCA 2014).

Appellant was charged with three counts of violating section 837.055(2), Florida Statutes (2013). This statute was enacted in the wake of the Casey Anthony case. In that case, the defendant made false statements to the police during an investigation into the disappearance of her young daughter. Anthony v. State , 108 So.3d 1111, 1113 (Fla. 5th DCA 2013). The child's remains were later discovered near the defendant's family home. Id. at 1116. The defendant was convicted of four counts of providing false information to a law enforcement officer, a first-degree misdemeanor. Id. at 1117.

As a result of Anthony , the legislature enacted section 837.055(2), creating a third-degree felony when a person

knowingly and willfully gives false information to a law enforcement officer who is conducting a missing person investigation involving a child 16 years of age or younger with the intent to mislead the officer or impede the investigation, and the child who is the subject of the investigation suffers great bodily harm, permanent disability, permanent disfigurement, or death ....

§ 837.055(2), Fla. Stat. (2013).

Thus, the plain language of the statute requires two elements: (1) knowingly and willfully giving false information to law enforcement during a missing child investigation, and (2) the child suffering great bodily harm, permanent disability, permanent disfigurement, or death. See id. In this case, both elements of the statute were met. As such, we find the trial court did not err in denying the motion to dismiss based on the plain language of the statute. See Schoeff v. R.J. Reynolds Tobacco Co. , 232 So.3d 294, 313 (Fla. 2017) ("When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the [secondary] rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.") (Lawson, J., concurring) (citation omitted).

As to the sentencing issue, because appellant scored less than twenty-two points on the sentencing guidelines, the trial court was statutorily required to impose a non-state prison sanction unless the court made written findings that a non-state prison sanction would present a danger to the public. See § 775.082(10), Fla. Stat. (2013). In considering the propriety of an upward departure from a non-state prison sanction, a court may consider "criminal history, victim injury, and propensity for one to commit future crimes." Reed v. State , 192 So.3d 641, 646 (Fla. 2d DCA 2016).

In Jones v. State , 71 So.3d 173 (Fla. 1st DCA 2011), the trial court found the defendant a danger to the public after he was convicted of driving while his license was suspended. The trial court reasoned that the defendant was likely to continue to drive without a license, which would endanger the public because it made it more likely he would attempt to elude law enforcement officers. The First District reversed, finding that "the court did not make sufficient findings ... that imprisonment within the state prison system rather than the county jail would better deter him from continued unlicensed driving." Id. at 176.

In contrast, in Porter v. State , 110 So.3d 962 (Fla. 4th DCA 2013), this court upheld a prison sentence for a defendant convicted of grand theft because the trial court articulated sufficient facts to sustain the requisite written finding that the defendant was a danger to the public. The trial court found, inter alia, that the theft was accomplished by writing a worthless check, which was consistent with the defendant's lifelong modus operandi; that the defendant caused significant financial and emotional damage; and that he would continue to commit financial crimes against the public if not incarcerated. Id. at 964. Thus, the Porter court made sufficient written findings as to "criminal history, victim injury, and propensity for one to commit future crimes." See Reed , 192 So.3d at 646.

Like in Jones , and unlike in Porter , here the trial court's written order did not articulate sufficient facts to sustain a finding that appellant was a danger to the public as required by the statute. The trial court did not explain how appellant's actions "put other young children at risk." Nor did the trial court state how the lies appellant told on January 9 delayed the investigation when he confessed the very next day and the remains were found a day or two later. The trial court also did not make any findings as to appellant's lack of any criminal history or propensity to commit future crimes. Because the trial court did not make sufficient findings that imprisonment within the state prison system rather than county jail or another potential non-state prison sanction would deter him from committing future crimes, we reverse appellant's sentence and remand for the trial court to impose a non-state prison sanction. See id. at 648.

Affirmed in part, reversed in part.

Warner, J., concurs.

Gross, J., concurs specially with opinion.

Gross, J., concurring specially.

I concur in the majority opinion. One possible reading of section 837.055(2), Florida Statutes (2013), is that the child who is the subject of investigation suffers harm after the giving of the false information, without there being any causal connection. If a criminal statute is ambiguous, we would normally apply the rule of lenity in section 775.021(1), Florida Statutes (2017), and construe the statute "most favorably to the accused."

As the majority notes, the legislature amended the statute in response to the Casey Anthony case, where the death of a child preceded a mother's giving of false information. We know this from the legislative history. See Florida Staff Analysis, H.B. 37, 4/10/2012. "Although not determinative of legislative intent, staff analyses are one touchstone of the collective legislative will."

Sun Bank/South Florida, N.A. v. Baker , 632 So.2d 669, 671 (Fla. 4th DCA 1994). We should not ignore the clear legislative history and engage in a hypertextual analysis of the statute to arrive at a result that the legislature sought to avoid in enacting the statute.


author: Klingensmith, J.

text:
    COCONUT KEY HOMEOWNER'S ASSOCIATION, INC., Appellant, v. GONZALEZ, Appellee.
    Nos. 4D17-739 & 17-1749
    District Court of Appeal of Florida, Fourth District.
    [May 9, 2018]
    Joseph D. Garrity of Garrity Traina, PLLC, Coconut Creek, for appellant.
    Alexis Fields of Kopelowitz Ostrow, P.A., Fort Lauderdale, for appellee.
   Klingensmith, J.

Coconut Key Homeowner's Association, Inc. ("the Association"), as the appellant/cross-appellee, seeks review of an order imposing a mandatory injunction against it. Gonzalez, as appellee/cross-appellant, appeals the denial of her request for attorney's fees and costs. Accordingly, there are two issues presented in this appeal and cross-appeal. First, whether the trial court erred in issuing the injunction against the Association. Second, whether Gonzalez prevailed in the underlying action for purposes of an award of attorney's fees when the jury found that the Association breached a contract, but awarded no damages to Gonzalez. We affirm as to the entry of the injunction, and also find that Gonzalez was the prevailing party for purposes of awarding both attorney's fees and costs.

Gonzalez filed a complaint against the Association. Under count one, "Breach of Governing Documents," Gonzalez alleged that the Association had "breached, and continue[d] to breach the Governing Documents by failing to properly manage the surface water management system," which caused her property to consistently flood when it rained, and led to significant damage to her home. She sought monetary damages for the breach. Under count two, "Injunction," Gonzalez alleged that the Association failed to address the issue of the existence of several unauthorized wood decks and other alterations on other properties, and failed to rectify the chronic flooding problems arising in her own backyard area; consequently, she sought enforcement of the various applicable covenants and restrictions in the Association's governing documents.

In their joint pretrial stipulation, both parties agreed on the underlying issue in the case:

This case involves [the Association]'s alleged violation of its [governing documents]. Defendant is a duly formed homeowners association, of which [Gonzalez] is a resident member. In this action, it is alleged by [Gonzalez] that the [Association] has failed to comply with the [A]ssociation's governing documents by failing to properly maintain the surface water management system behind her residence which has resulted in a flooding problem. [Gonzalez] seeks an injunction requiring the Association to cure the alleged surface water management violations and stop the flooding problem.

(Emphasis added).

After a trial on these issues, the jury found that the Association breached its governing documents by failing to maintain and operate the surface water management system on Gonzalez's property, but that the breach was not a legal cause of damage to Gonzalez. As a result, Gonzalez was awarded no monetary damages on count one.

The trial court conducted a post-trial hearing on whether to issue an injunction against the Association pursuant to count two. After the hearing, it granted Gonzalez's motion for entry of a mandatory injunction. The court's decision was in accord with the jury's finding that the Association violated clear legal rights in its governing documents, which caused Gonzalez irreparable harm without an adequate remedy under the law.

Gonzalez then filed a motion for attorney's fees and costs pursuant to section 720.305(1), Florida Statutes (2008). Following a hearing, the trial court denied Gonzalez's motion for attorney's fees and costs. Gonzalez timely appealed the denial of fees and costs, and the Association timely appealed the entry of the injunction.

1. Issuance of the injunction

" '[A]n order imposing a permanent injunction lies within the sound discretion of the trial court and will be affirmed absent a showing of abuse of discretion.' " Smith v. Coal. to Reduce Class Size , 827 So.2d 959, 961 (Fla. 2002) (quoting Operation Rescue v. Women's Health Ctr., Inc. , 626 So.2d 664, 670 (Fla. 1993) ). Gonzalez sought a mandatory injunction to command specific conduct, specifically compliance with governing documents. "In order to establish entitlement to a mandatory injunction there must be a clear legal right which has been violated, irreparable harm must be threatened, and there must be a lack of an adequate remedy at law." Amelio v. Marilyn Pines Unit II Condo. Ass'n, Inc. , 173 So.3d 1037, 1039 (Fla. 2d DCA 2015).

Section 718.303(1), Florida Statutes (2008), authorizes the extraordinary civil remedy of a mandatory injunction in cases involving condominium associations and their members. This section provides in pertinent part:

(1) Each unit owner, each tenant and other invitee, and each association shall be governed by, and shall comply with the provisions of, this chapter, the declaration, the documents creating the association, and the association bylaws and the provisions thereof shall be deemed expressly incorporated into any lease of a unit. Actions for damages or for injunctive relief, or both, for failure to comply with these provisions may be brought by the association or by a unit owner against :
(a) The association.
(b) A unit owner.

§ 718.303(1) (emphasis added). Similarly, section 720.305(1) authorizes courts to impose equitable remedies in disputes between homeowners and their associations:

(1) Each member and the member's tenants, guests, and invitees, and each association, are governed by, and must comply with, this chapter, the governing documents of the community, and the rules of the association. Actions at law or in equity, or both, to redress alleged failure or refusal to comply with these provisions may be brought by the association or by any member against :
(a) The association.
(b) A member[.]

(Emphasis added); see also Fox v. Madsen , 12 So.3d 1261, 1263 (Fla. 4th DCA 2009) ("[A] mandatory injunction is the proper method of enforcing restrictive agreements on property."); Abbey Park Homeowners Ass'n v. Bowen , 508 So.2d 554, 555 (Fla. 4th DCA 1987) ("Injunctive relief is an appropriate remedy for the enforcement of regulations contained in a declaration of condominium.").

After careful review of the record in this case, which included three full days of conflicting testimony and evidence before a jury, we find no error in the trial court's issuance of an injunction against the Association. Here, the record shows that Gonzalez satisfied each of the three elements needed to obtain an injunction.

First, Gonzalez demonstrated that a clear legal right was violated when the jury found the Association violated its governing documents for failing to properly maintain the surface water management system at Gonzalez's property. See Billian v. Mobil Corp. , 710 So.2d 984, 992 (Fla. 4th DCA 1998) ("Where the fact issues decided by a jury in an action at law are sufficiently similar to the fact issues on a related equitable claim, the trial court is bound by the jury's findings of fact in making its ruling on the equitable claim.").

Second, Gonzalez proved irreparable harm since multiple witnesses testified that the flooding problem could only be resolved if the Association fixed the swales and drainage system near Gonzalez's property.

Third, Gonzalez did not have an adequate remedy at law. Any potential award of compensatory damages would only address repairs to whatever structural damage was caused by previous flooding. While damages for the diminished value of her property caused by future flooding could conceivably be recovered, only an injunction requiring the Association to comply with its governing documents would prevent future harm.

Therefore, we affirm the trial court's order issuing a mandatory injunction against the Association.

2. Attorney fees and costs

In general, we review a trial court's determination of the prevailing party for an abuse of discretion. See T & W Developers, Inc. v. Salmonsen , 31 So.3d 298, 301 (Fla. 5th DCA 2010). However, when the trial court's determination of which party prevails depends on the interpretation of a statute or a contract, we apply a de novo standard of review. Id. ; accord Shirley's Pers. Care Servs. of Okeechobee, Inc. v. Boswell , 165 So.3d 824, 827-28 (Fla. 4th DCA 2015). Here, the trial court's determination of the prevailing party does not depend on the interpretation of either a statute or the parties' agreement. Thus, we review the trial court's determination of whether Gonzalez was the prevailing party for abuse of discretion.

The exercise of the trial court's discretion is "subject to the test of reasonableness, i.e., [it] must be supported by logic and justification for the result and founded on substantial, competent evidence." In re Guardianship of Sapp , 868 So.2d 687, 693 (Fla. 2d DCA 2004).

In addition to the excerpt cited above, section 720.305(1) provides, "The prevailing party in any such litigation is entitled to recover reasonable attorney fees and costs." This section specifically covers disputes that occur between homeowners and homeowner's associations. Additionally, Gonzalez referenced multiple sections of Chapter 720, Florida Statutes, in support of her claim as stated in her complaint. Therefore, this section applies to this action.

When there is a prevailing party statute or contract, reasonable attorney fees must be awarded. See Sorrentino v. River Run Condo. Ass'n , 925 So.2d 1060, 1066 (Fla. 5th DCA 2006). "For the purpose of attorney's fees, the prevailing party is the party that won on the significant issues in litigation." M.A. Hajianpour, M.D., P.A. v. Khosrow Maleki, P.A. , 975 So.2d 1288, 1289 (Fla. 4th DCA 2008). In this case, the trial court found that Gonzalez was not the prevailing party by focusing primarily on the amount of the judgment she received-or more specifically, the lack of any monetary award to her-rather than on the substance of what occurred in the litigation. This was error.

In an analogous case from this court, Khodam v. Escondido Homeowner's Ass'n, Inc. , 87 So.3d 65, 66 (Fla. 4th DCA 2012), a homeowner sued her homeowner's association for breaching its declaration of covenants. Like this case, the jury found that the homeowner's association breached the covenants, but awarded the homeowner no damages. Id. Despite the zero-damage award, we held that the homeowner was the prevailing party for purposes of recovering attorney's fees and costs, and reversed the trial court order denying the claim:

The party who prevails "on the significant issues in the litigation is the ... prevailing party for attorney's fees." Moritz v. Hoyt Enters., Inc. , 604 So.2d 807, 810 (Fla. 1992). Absent compelling circumstances, "we have maintained that '[i]n a breach of contract action, one party must prevail.' " Animal Wrappers & Doggie Wrappers, Inc. v. Courtyard Distrib. Ctr., Inc. , 73 So.3d 354, 356 (Fla. 4th DCA 2011) (citation omitted). In the present case, only appellant's breach of contract claim was submitted to the jury. The jury found that appellee breached its declaration of covenants with appellant, though it awarded appellant "$0." Despite the absence of damages, the finding that appellee breached the contract made appellant the prevailing party on the litigation's significant issues . Green Cos., Inc. v. Kendall Racquetball Inv., Ltd. , 658 So.2d 1119, 1121 (Fla. 3d DCA 1995).

Id. (emphasis added).

We recognize that in other jurisdictions, it is the amount of the judgment, not merely the verdict, that trial courts consider in determining whether to award attorney's fees. See, e.g. , Intercontinental Grp. P'ship v. KB Home Lone Star L.P. , 295 S.W.3d 650, 656 (Texas 2009) (holding that "law nor logic favors a rule that bestows 'prevailing party' status upon a plaintiff who ... pockets nothing except a jury finding of non-injurious breach[,]" and to prevail where a party seeks only actual damages "there must be a showing that the plaintiff was actually harmed, not merely wronged.").

When looking for the meaning of common and ordinary legal terms, courts routinely refer to Black's Law Dictionary, which defines "prevailing party" as "[a] party in whose favor a judgment is rendered, regardless of the amount of damages awarded. " BLACK'S LAW DICTIONARY 1154 (8th ed. 2004) (emphasis added). Ignoring the second, emphasized phrase by making even a "no money judgment" dispositive would seem to be a departure from the ordinary meaning of "prevailing party." Normally, the "touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties." Texas State Teachers Ass'n v. Garland Indep. School Dist. , 489 U.S. 782, 109 S.Ct. 1486, 1494, 103 L.Ed.2d 866 (1989) (stating that a technical victory may be so insignificant as to be insufficient to support prevailing party status). Such a "material alteration" typically occurs when a plaintiff secures an "enforceable judgment[ ] on the merits." Buckhannon Board & Care Home, Inc. v. W. Virginia Dep't of Health & Human Res. , 532 U.S. 598, 121 S.Ct. 1835, 1840, 149 L.Ed.2d 855 (2001). The Supreme Court has also reasoned that the amount of a judgment is critical to the prevailing party determination by holding that a "prevailing party" is one who has been awarded some relief by the court, even if it is nominal damages. See Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 574-75, 121 L.Ed.2d 494 (1992). Stated succinctly, "no money judgment, no fees."

In the ordinary sense, a moral victory or satisfaction would not suffice to make someone a prevailing party in litigation. Viewing the results obtained here, a non-interested observer could reasonably conclude that, while perhaps Gonzalez was a "nominal winner" in convincing the jury that she was "wronged" by the Association's breach, she was a "prevailing party" on that claim only in a pyrrhic sense.

Florida case law does not allow for the consideration of proportionality to decide a litigant's prevailing party status in these cases. Consequently, we are bound by our prior holding in Khodam on the effect of the jury's verdict, thus making Gonzalez a prevailing party on the breach claim despite the "no damages" award. See also Yellow Pages Photos, Inc. v. Ziplocal, LP , 2014 WL 5517027, at *2 (M.D. Fla. Oct. 31, 2014) ("Florida courts have held that the party against whom a contract has been breached may be the prevailing party even though the jury awarded '$0' damages.").

While the prevailing party determination does not depend solely on the magnitude of relief Gonzalez obtained, she was required, at the least, to secure some relief on the merits of her claim to achieve such status. " '[P]laintiffs may be considered a 'prevailing party' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.' " Hensley v. Eckerhart , 461 U.S. 424, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe , 581 F.2d 275, 278-79 (1st Cir. 1978) ). Although there is ongoing debate in the courts on whether a plaintiff who recovers no money damages can be a prevailing party, a party who receives affirmative judicial or equitable relief is clearly considered a prevailing party under the law. Gonzalez was indisputably a prevailing party on her injunctive claim in equity, regardless of her marginal victory on the breach count. Thus, prevailing party attorney fees should be awarded to Gonzalez in this dispute. See Khodam , 87 So.3d at 66.

Court costs under section 57.041, Florida Statutes (2008), are also " 'governed by the 'prevailing party' standard ....' " Wyatt v. Milner Document Prods., Inc. , 932 So.2d 487, 490 (Fla. 4th DCA 2006) (quoting Spring Lake Imp. Distrib. v. Tyrrell , 868 So.2d 656, 658-59 (Fla. 2d DCA 2004) ), abrogated on other grounds by Westgate Miami Beach, Ltd. v. Newport Operating Corp. , 55 So.3d 567 (Fla. 2010). A trial court has no discretion to deny costs under this statute-the prevailing party must be awarded their costs. See Oriental Imps., Inc. v. Alilin , 559 So.2d 442, 443 (Fla. 5th DCA 1990) (holding that under section 57.041, a judge does not have discretion to deny recovery of costs to a prevailing party). As such, appellant is the prevailing party for purposes of an award of costs as well. See Sunshine Bottling Co. v. Tropicana Prods., Inc. , 757 So.2d 1231, 1233 (Fla. 3d DCA 2000).

We reverse the trial court's order denying Gonzalez's motion for fees and costs, and remand for the trial court to award those reasonable amounts applicable to her breach and injunction claims.

Affirmed in part, reversed in part, and remanded.

Gerber, C.J., and Damoorgian, J., concur.

      The governing documents referenced are the Association's Declaration of Restrictions, Articles of Incorporation, By-Laws, and Rules and Regulations.

      In counts three and four, Gonzalez alleged that because of the flooding she had a claim for "Nuisance" and "Trespass." She dismissed these counts before trial, as well as all other defendants except the Association.

      We should note that this case was not one brought to advance a public benefit. Private tort or contract suits benefiting only the individual plaintiff whose rights were violated are different from actions to vindicate public rights. Unlike most private litigants, for example, a civil rights plaintiff seeks to vindicate important civil and constitutional rights that cannot be valued solely in monetary terms. Thus, legitimate reasons exist for treating public litigation cases differently from private actions when considering who is, or is not, a prevailing party. Because damages awards in civil rights cases, for example, do not reflect fully the public benefit advanced by such litigation, fees awarded in those cases, unlike most private law cases, need not depend on obtaining substantial monetary relief. Therefore, reasonable attorney's fees awarded under provisions such as 42 U.S.C. § 1988 are not conditioned upon, and need not be proportionate to, the award of money damages.


author: Per Curiam.

text:
    James Albert POLLOCK, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2805
    District Court of Appeal of Florida, Fourth District.
    [May 9, 2018]
    Carey Haughwout, Public Defender, and Claire Victoria Madill, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

In this case, appellant timely raised the issue of his competency before entering a nolo contendere plea. The trial court ordered appellant examined to determine competency. Appellant was found competent by the examiner. However, at the subsequent plea hearing, defense counsel noted that appellant "still had some issues." Without conducting a competency hearing or entering a written order on competency, the trial court accepted Appellant's plea, adjudicated him guilty, and imposed sentence. Appellant and the state agree that reversal is required, but disagree as to the proper remedy.

Florida Rule of Criminal Procedure 3.210 requires a court to conduct a competency hearing "once it has reasonable grounds to believe that a criminal defendant is not competent to proceed." Hawks v. State , 226 So.3d 892, 893 (Fla. 4th DCA 2017) (citation omitted). Following such a hearing, Florida Rule of Criminal Procedure 3.212 requires a trial court to issue a written competency order. Id. at 894. The trial court here erred, as even after learning of the results of the competency evaluation, it was required to hold a hearing to independently determine competency. Id. (citing Fla. R. Crim. P. 3.210(b) ). We therefore reverse for the trial court to conduct a nunc pro tunc competency evaluation, if possible. Id. at 895. If a retroactive competency determination is impossible, the trial court should vacate the judgment and sentence and set the case for trial. See id. ; see also Dortch v. State , Nos. 4D16-2815 and Nos. 4D16-2816, 242 So.3d 431, 2018 WL 1617082, at *2 (Fla. 4th DCA April 4, 2018).

Reversed and remanded.

Levine, Conner and Forst, JJ., concur


author: Conner, J.

text:
    Volmir CHARLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-248
    District Court of Appeal of Florida, Fourth District.
    [May 16, 2018]
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   Conner, J.

Appellant, Volmir Charles, was charged with robbery with a firearm, possession of a firearm by a felon, two counts of armed false imprisonment and aggravated assault with a firearm. While in custody and with the aid of a fellow inmate, Appellant wrote a letter asking the court to appoint an expert who would aid him in dealing with "the voices in my head and my hallucinations." Subsequently, Appellant's counsel filed a motion for a mental examination based on the good faith and reasonable grounds that the Appellant was not competent to proceed to trial. On the same day, the trial court entered an order appointing an expert to determine the Appellant's competency. Thereafter, a second expert was appointed to determine Appellant's competency. The record does not show that either expert filed a formal report regarding the evaluation of the Appellant's competency.

Three months after the competency experts were appointed, Appellant entered a plea of no contest to all charges against him. The trial court accepted the Appellant's plea agreement and sentenced him to prison. At the plea and sentencing hearing, the trial court judge did not make inquiries into Appellant's competency evaluation. After a number of general questions, the judge deemed the Appellant, "alert and intelligent," and accepted his plea of no contest.

After being sentenced, Appellant filed a timely pro se notice of appeal. Counsel was appointed to represent Appellant on appeal.

As we recently made clear in Dortch v. State ,

One thing is certain: competency requires strict adherence to the Florida Rules of Criminal Procedure 3.210 - 212. Dougherty v. State , 149 So.3d 672, 677-78 (Fla. 2014) ; Deferrell v. State , 199 So.3d 1056, 1060-61 (Fla. 4th DCA 2016). Once a trial court has reasonable grounds to believe the defendant is incompetent and orders an examination, it must hold a hearing, and it must enter a written order on the issue. See Fla. R. Crim. P. 3.210(b), 3.212(b). Failure to do so is fundamental error and requires reversal.

( 242 So. 3d 431, 432-33, 2018 WL 1617082, at *1 (Fla. 4th DCA Apr. 4, 2018) ) We also remind trial courts that once an expert is appointed to determine the competence of a defendant, a trial court "cannot dispense with its duty to make an independent determination about a defendant's competency, and must enter a written order if the defendant is found competent to proceed." Dougherty , 149 So.3d at 679.

The State has properly conceded error in this case. We therefore remand this case to the trial court to determine whether a nunc pro tunc competency determination can be made. Id. ; A.L.Y. v. State , 212 So.3d 399, 404 (Fla. 4th DCA 2017). If on remand the trial court is able to make a nunc pro tunc finding as to Appellant's competency "in a manner which comports with due process considerations, then it should do so and enter a written order accordingly." A.L.Y. , 212 So.3d at 404. On the other hand, if the trial court should find, for any reason, that an evaluation of Appellant's competency at the time of the plea and sentencing hearing cannot be conducted in such a manner as to assure due process of law, then the trial court must vacate the judgment and sentence and appropriate evaluations must be made to determine Appellant's competence to proceed. Id.

Reversed and remanded for proceedings consistent with this opinion.

Warner and Kuntz, Jj., concur.


author: Warner, J.

text:
    Carlos DE LA ROSA and Fanny De La Rosa, Appellants, v. FLORIDA PENINSULA INSURANCE COMPANY, Appellee.
    No. 4D17-1294
    District Court of Appeal of Florida, Fourth District.
    [May 16, 2018]
    Dennis N. Urbano of Greenberg Stone & Urbano, Miami, for appellants.
    Amy L. Koltnow of Colodny Fass, Sunrise, for appellee.
   Warner, J.

Appellant insureds challenge a final summary judgment for appellee insurer in a case involving water intrusion into their home because of a septic tank backup. The trial court concluded that the insureds had failed to overcome the presumption that their failure to timely report their claim had prejudiced the insurer's investigation. We affirm the summary judgment.

Appellants insured their home with the appellee insurer, Florida Peninsula Insurance Company. The insurance endorsement attached to appellants' homeowners' insurance policy provides:

SECTION I-CONDITIONS
2. Your Duties After Loss 2.a. is replaced by the following:
a. Give prompt notice to us or our agent;
....
2. Your Duties After Loss 2.f. is replaced by the following:
f. As often as we reasonably require;
(1) Show us the damaged property;
....
8. Suit Against Us
No action can be brought against us; unless:
a. There has been full compliance with all of the terms of this policy; and
b. The action is started within 5 years after the date of the loss.

In April 2014, appellant husband noticed water backing up in his master bathroom shower. Water was seeping into the bathroom floor and sub-floor under the tile. He realized that water must have been leaking for some time. He called a plumbing company, which replaced all of the drainage system for the septic tank.

In February 2015, appellant had his master bathroom renovated because of the water damage. The renovations cost $4,000. Appellant made no other repairs to his home.

Appellant made an insurance claim for $22,274 for the alleged damage to his bathroom in July 2015. The insurer denied the claim, and appellants filed suit. The insurer alleged as an affirmative defense that the appellants had failed to timely report the claim, which had prejudiced the insurer. After discovery, the insurer moved for summary judgment, relying on appellant's deposition, exhibits, and the affidavit of its adjuster.

In his deposition, appellant testified that he took a long time to report his claim because he was not aware of his rights under his insurance policy. Appellant admitted that all of the repairs to his bathroom were complete prior to the insurer inspecting his house.

A licensed adjuster, employed with Florida Peninsula, inspected the appellants' plumbing leak soon after the claim was filed. In a sworn affidavit, the adjuster stated that "[u]pon [his] inspection, it was evident that all repairs had been made to the bathroom where the water reportedly caused damage and the entire bathroom had been totally renovated." He could not observe any water damage from the drainage failure because of the renovation. The adjuster reviewed a photograph taken of the master bedroom before the renovation, but testified that it did not show any water damage. The adjuster also testified that while appellant had kept several damaged building materials from the water leak, such as old drywall and piping, the items were not preserved and were "kept outside and exposed to the exterior elements for over one year." The adjuster was unable to determine "the cause or origin" or the "extent or scope" of any of the damage.

Appellants countered this evidence with their own affidavits. A licensed public adjuster hired by appellants also conducted an inspection of the property in July 2015. In an affidavit, she testified that she "observed water damage to the master bathroom door frame, master bedroom wall and baseboard, master bedroom tile floors, and the bottom kitchen cabinets." She inspected the materials from the damaged master bathroom that the appellants retained, as well as photographs of the water damage and the appellants' invoices from their plumbing repairs. The adjuster found that the damage to the retained materials "were consistent with that of a one-time sudden and accidental waste line backup occurring in April of 2014." She testified that "[t]he only possible event that could have caused this type of damage was a one-time waste line water backup." She estimated the damage as $22,274.45.

In addition, a licensed engineer hired by the appellants inspected the property in February 2017. He also reviewed the photographs of the master bedroom together with the invoices for the repairs to the property. He testified that he also observed visible water damage in the master bedroom, bathroom, and underneath the kitchen cabinets. He opined that this was "classic" damage caused by a one-time wastewater backup, and stated, "The waste line water back up damages observed during my inspection were clearly evident upon my inspection which was conducted in 2017 and would have been evident upon an inspection by the insurer." As to the damage it caused, he stated that the wastewater would damage the walls and floor tiles, which damage would increase as long as it was not removed. He advised that the entire floor should be examined by an architect to determine the extent of damage and remediation needed. He opined that there were multiple ruptured pipes which caused damage to the structure, but only opening the slab could determine the extent of damage.

At the summary judgment hearing, appellants conceded that they gave late notice of their claim and that the trial court had to presume that the insurance company's investigation was prejudiced. Thus, appellants had to present competent evidence to rebut that presumption. Appellants argued that because their adjuster and engineer disagreed with the opinion of the insurance company's adjuster as to whether the cause of the damage could be ascertained, there was an issue of fact. They contended that their experts' findings were not conclusory.

The court found that the issue of prejudice was a question of law and that the facts regarding lack of notice and the renovations were not in dispute. The court stated that the insurer may be able to determine cause and damages, but because of the lack of notice, its "ability to do it [was] certainly hampered." The court concluded that there may be a genuine issue of fact concerning causation, but the pertinent issues were whether the insurer received timely notice of the damage and whether appellants rebutted the presumption of prejudice to the company. The court noted how in the licensed engineer's investigation report, he found that, "A determination of the extent of the damage without opening the slab and performing applicable investigation can only be subjective in nature." Citing Kramer v. State Farm Florida Insurance Co ., 95 So.3d 303 (Fla. 4th DCA 2012), the court granted the insurer's motion for summary judgment, finding that there was no genuine issue of fact regarding the presumed prejudice to the insurer. Appellants now appeal.

This Court reviews de novo a trial court's grant of summary judgment. Soncoast Cmty. Church of Boca Raton, Inc. v. Travis Boating Ctr. of Fla., Inc. , 981 So.2d 654, 655 (Fla. 4th DCA 2008). "Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Volusia Cty. v. Aberdeen at Ormond Beach, L.P. , 760 So.2d 126, 130 (Fla. 2000).

Appellants argue that the court erred in granting summary judgment to the insurer because, even assuming that appellants gave late notice of their claim, there was an issue of fact regarding whether the insurer was prejudiced. Appellants contend that they presented sufficient evidence to rebut the presumption of prejudice.

If an insured breaches the notice provision of his homeowner's insurance policy, "prejudice to the insurer will be presumed, but may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice." Stark v. State Farm Fla. Ins. Co. , 95 So.3d 285, 287-88 (Fla. 4th DCA 2012) (citing Bankers Ins. Co. v. Macias , 475 So.2d 1216, 1218 (Fla. 1985) ). A notice of damage is a pre-condition to a claim. Macias , 475 So.2d at 1218. The insured has the burden to show the lack of prejudice if its insurer lost the opportunity to investigate the facts of the claim. Stark , 95 So.3d at 288. "Whether the presumption of prejudice to the insurer has been overcome is 'ordinarily ... a separate issue of fact.' " Id. (citation omitted). Before a court grants summary judgment, "the record on such a motion should 'conclusively foreclose[ ]' the insured's 'ability to overcome the presumption [of prejudice].' " Id. (alteration in original) (citation omitted).

At the summary judgment hearing, appellants conceded that they gave late notice of their claim and that they had to present evidence to rebut the presumption of prejudice to the insurer. Thus, the pertinent issue is whether appellants presented sufficient counterevidence to rebut the presumption of prejudice from the late notice.

While in this case there may be disputed issues of fact as to whether the insurer was prejudiced in determining the cause of the incident, the record forecloses the insured's ability to overcome the prejudice to the insurer in evaluating the extent of the damage because of the delay in making the claim. See Yacht Club on the Intracoastal Condo. Ass'n, Inc. v. Lexington Ins. Co. , 599 Fed.Appx. 875, 881-82 (11th Cir. 2015). In the insured engineer's report, he notes that the water damage, particularly to the walls and the flooring system, would increase with time when the damage was not promptly remedied. Mold, which would occur due to water intrusion, would expand over time if damaged surfaces were not replaced. Further, he noted that water escape from pipes under the slab would over time cause structural instability, the full extent of which could not be determined at this point without opening the slab to evaluate how much damage has occurred. In other words, the engineer's report itself showed that the damage would likely have increased over time. The insurer was prejudiced by a delay in investigating the claim as it would not be able to determine the damage at the time of the incident. Because of the lack of prompt repairs, the counter-evidence does not overcome the presumption of prejudice. As in Kramer, relied on by the trial court, the engineer's report bolsters the insurer's claim that it has been prejudiced by the delay.

We distinguish Stark v. State Farm Florida Insurance Co ., 95 So.3d 285, 287-88 (Fla. 4th DCA 2012), the principal case on which appellants rely. There, the insureds hired a company to repair their roof after Hurricane Wilma in 2005, but their roof continued to leak and their home suffered further damage. Id. at 287. They reported their claim over three years after the storm. Id. The insurer's inspector assessed the roof damage, but because he was unable to determine the time or cause of the loss, the insurer claimed that it was prejudiced by the delay. Id. After the insureds filed suit for breach of contract, the insurer moved for summary judgment. Id. In response, the insureds filed several affidavits, including those of an engineer and public adjuster. Id. The engineer inspected the property multiple years after the hurricane, and he concluded that there was "a classic pattern of wind damage" and that "[t]he only possible event that could have caused this type of damage was Hurricane Wilma." Id. The engineer found that the damage "would have been evident" during the insurer's inspection. Id. The insureds' public adjuster also believed that the roof damage was caused by Hurricane Wilma, and he claimed that the insurer's investigator told him "that there appeared to be storm damage to the [insureds'] roof." Id. The trial court granted the insurer's motion for summary judgment, finding that the insureds did not present sufficient counterevidence to rebut the presumption of prejudice to the insurer. Id.

On appeal, this Court found a disputed issue of fact as to whether the insurer was prejudiced by late notice. Id. at 288. The insureds' adjuster's affidavit stated that the damage still evident showed classic hurricane damage, and the insurer's investigator told the insured's public adjuster that he had observed storm damage. Id. The counterevidence "suggested that the insureds could convince a finder of fact that their noncompliance with the notice provision [of their insurance contract] did not prejudice the insurer by depriving it 'of the opportunity to investigate the facts.' " Id. (alteration added) (footnote omitted) (quoting Macias , 475 So.2d at 1218 ).

In this case, however, even though there may be disputed issues of fact as to whether the insurer was prejudiced in determining the cause of the loss, the facts, even as presented by the insured's adjuster and engineer, show that the insurer would be prejudiced by the passage of time in investigating the extent of the loss, and thus, the cost of repair. The insured did not overcome the presumption of prejudice. See Macias , 475 So.2d at 1218. Therefore, the court correctly granted summary judgment.

Affirmed .

Ciklin and Klingensmith, JJ., concur.


text:
    Rafael HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2313
    District Court of Appeal of Florida, Fourth District.
    [May 16, 2018]
    Carey Haughwout, Public Defender, and Erika Follmer, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellee.
    CONCESSION OF ERROR
   Klingensmith, J.

Rafael Hernandez appeals the trial court's acceptance of his negotiated plea and subsequent sentence. Although he asked for and was granted a competency evaluation, Hernandez claims the trial court erred by failing to either conduct a competency hearing or enter an order as to his competency before accepting his plea. In accord with several recent cases from this court on the subject, and considering the State's concession of error, we agree and reverse.

Hernandez's counsel filed a written motion under Florida Rule of Criminal Procedure 3.210(b), and requested the appointment of an expert to examine his client's competency to proceed. The motion indicated that the rule required the court to hold a competency hearing within twenty days of the motion's filing. Four days later, the trial court entered an order granting the motion, and directed the appointed expert to submit a written evaluation of Hernandez's mental condition to each party within thirty days of the order. However, the trial court's order did not set a date for the competency hearing, nor does the expert's written evaluation appear in the record.

Thereafter, Hernandez entered a plea of no contest to the charged crime. Yet there is no record that a competency hearing ever occurred, nor does the record contain a written order establishing whether Hernandez was competent to proceed. If appellant's competency was ever discussed in court prior to the acceptance of the plea, or if the motion was ever withdrawn, such a discussion is also not in the record.

The procedure for determining a defendant's competency is governed by Florida Rules of Criminal Procedure 3.210 through 3.215. Competency requires strict adherence to the Florida Rules of Criminal Procedure. See Dortch v. State , 242 So.3d 431, 432-33, 2018 WL 1617082, at *1 (Fla. 4th DCA April 4, 2018). We review the trial court's judgment and its compliance with these rules de novo . See Baker v. State , 221 So.3d 637, 639 (Fla. 4th DCA 2017).

" 'There does not appear to be any discretion on the part of the trial court [to hold a competency hearing] once it makes the determination that there are reasonable grounds to believe that the defendant is not mentally competent.' " Silver v. State , 193 So.3d 991, 993 (Fla. 4th DCA 2016) (quoting Carrion v. State , 859 So.2d 563, 565 (Fla. 5th DCA 2003) ). "[A] trial court's appointing experts to evaluate a defendant's competency suggests there were reasonable grounds to do so." Id. When the trial court "has reasonable grounds to believe that a criminal defendant is not competent to proceed, it has no choice but to conduct a competency hearing." Baker , 221 So.3d at 641 (internal citations omitted). However, "[a] full, formal competency hearing might not be required" in some circumstances. Id. at 641 n.1 (internal citations omitted).

We reverse. But, if on remand the trial court can make a nunc pro tunc finding as to Hernandez's competency "based upon the existence of evaluations performed contemporaneous with [the acceptance of the plea] and without relying solely on a cold record, and can do so in a manner which abides by due process guarantees, then it should do so and enter a corresponding written order." Baker , 221 So.3d at 641-42 ; accord Dortch , 242 So.3d at 433-34, 2018 WL 1617082, at *2. "If, however, the court cannot determine appellant's competency consistent with due process guarantees, the court should vacate the plea and sentence." Bain v. State , 211 So.3d 139, 140 (Fla. 4th DCA 2017) ; accord Dortch , 242 So.3d at 433-34, 2018 WL 1617082, at *2.

Reversed and remanded with instructions .

Damoorgian and Forst, JJ., concur.


author: SCALES, J.

text:
    FIRST EQUITABLE REALTY III, LTD., Appellant/Cross-Appellee, v. GRANDVIEW PALACE CONDOMINIUM ASSOCIATION, INC., Appellee/Cross-Appellant.
    No. 3D17-669
    District Court of Appeal of Florida, Third District.
    Opinion filed April 11, 2018 Rehearing Denied June 25, 2018
    Fowler White Burnett, P.A., and Juan C. Zorrilla, for appellant/cross-appellee.
    Conde & Cohen, P.L., and Aaron R. Cohen (Fort Lauderdale), for appellee/cross-appellant.
    Before ROTHENBERG, C.J., and SALTER and SCALES, JJ.
   SCALES, J.

First Equitable Realty III, Ltd. ("Developer"), the defendant/counter-plaintiff below, appeals an Amended Final Judgment in favor of the plaintiff/counter-defendant below, Grandview Palace Condominium Association, Inc. (the "Association") adjudicating (i) the Association's action to recover from Developer unpaid condominium assessments, and (ii) Developer's counterclaims for unjust enrichment and rescission. Finding no merit to the issues Developer raises on appeal, we affirm, without discussion, both the trial court's entry of final summary judgment in favor of the Association and the trial court's award of attorney's fees to the Association.

In its cross-appeal, the Association challenges the trial court's reduction in interest on the unpaid assessments awarded to the Association. Concluding that the trial court had no discretion to reduce the amount of such interest, we reverse the trial court's interest award and remand for calculation consistent with the requirements of the relevant provisions of chapter 718 of the Florida Statutes.

Section 718.116(1)(a) provides that a condominium unit owner "is liable for all assessments which come due while he or she is the unit owner." § 718.116(1)(a), Fla Stat. (2017). As the owner of three commercial units at the subject condominium development, Developer was obligated to pay monthly assessments on each of its units for the period of time that it owned them, i.e., from July 13, 2003 to February 28, 2008. The Amended Final Judgment awarded the Association $40,420.34 for unpaid assessments, plus interest.

Section 718.116(3) further provides that unpaid assessments shall bear interest from the due date until paid at the interest rate provided by the Declaration of Condominium. Pursuant to section 718.116(3) and the Declaration of Condominium, the Association sought to recover interest on the unpaid assessments at the highest rate allowed by law (eighteen percent).

While apparently acknowledging that the Association had calculated interest correctly at $50,007.64, the trial court nevertheless decreased the amount of interest due to the Association for "equitable considerations."

Specifically, upon determining that the Association was responsible for protracted litigation giving rise to the Association's right to pursue the unpaid condominium assessments, and that the Association had somehow failed to mitigate its damages in this case, the trial court awarded the Association just $14,497.32 in interest.

We conclude that the trial court erred when-for "equitable considerations"-it decreased the amount of interest due to the Association in this case. See Oreal v. Steven Kwartin, P.A., 189 So.3d 964, 966-67 (Fla. 4th DCA 2016) (concluding that, because the Legislature had plainly and unambiguously provided for the recovery in interest for the claimant, the trial court lacked the discretion to reduce an interest award based on equitable considerations, despite the claimant being responsible for an unexcused and excessive delay in attempting to perfect and collect on an unpaid claim). In section 718.116(3), the Legislature has expressly provided for entitlement to interest-for a specified duration and at a specified rate-in claims for unpaid condominium assessments. Where the Legislature has created "a plain and unambiguous statutory procedure ... courts are not free to deviate from that process absent express authority." Id. at 967 (quoting Pineda v. Wells Fargo Bank, N.A., 143 So.3d 1008, 1011 (Fla. 3d DCA 2014) ). "[E]quity has no role." Id. Under the plain and unambiguous language of section 718.116(3), the Association was entitled to recover interest "at the rate provided in the declaration, from the due date until paid." The trial court had no discretion to award anything less in this case. Id.

We therefore reverse only the interest award, and remand with instructions that the trial court award the Association all interest as provided by section 718.116(3) and the Declaration of Condominium. We affirm all other aspects of the Amended Final Judgment.

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

      Determinations as to the award of prejudgment interest raise pure questions of law; therefore, the standard of review is de novo . See Bosem v. Musa Holdings, Inc., 46 So.3d 42, 44 (Fla. 2010).

      The statute provides, in relevant part:
      Assessments ... which are not paid when due bear interest at the rate provided in the declaration, from the due date until paid. The rate may not exceed the rate allowed by law, and, if no rate is provided in the declaration, interest accrues at the rate of 18 percent per year.
      § 718.116(3), Fla. Stat. (2017).

      Section 21.03 of the Declaration of Condominium provides, in relevant part:
      Assessments and installments on them not paid when due bear interest from the date when due until paid at the maximum interest rate permitted by law ....

      Because, in February 2008, Developer had received an improper reimbursement of all of assessments that it had paid for its three commercial units, the Association used February 2008 as the "due date" for all of Developer's unpaid assessments.

      We express no opinion as to whether the Association properly calculated the amount of interest.

      The trial court awarded interest only for the two-year period between the filing of the instant action in January 2013, and the entry of final summary judgment in January 2015.

      We distinguish this case from those cases relied upon by the court below holding that a trial court may, for equitable reasons, reduce the amount of prejudgment interest to which a party would normally be entitled. See State v. Family Bank of Hallandale, 623 So.2d 474 (Fla. 1993) ; Broward Cty. v. Finlayson, 555 So.2d 1211 (Fla. 1990). In those cases, unlike the instant case, entitlement to and calculation of interest were not prescribed by a specific statute governing the claim.