text:
    Joseph A. BARBESCO, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0765
    District Court of Appeal of Florida, First District.
    February 5, 2019
    Joseph A. Barbesco, pro se, Appellant.
    Ashley B. Moody, Attorney General, and Jennifer J. Moore and Barbara Debelius, Assistant Attorneys General, Tallahassee, for Appellee.
   Per Curiam.

Appellant appeals from an order denying in part his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.801. For the reasons below, we reverse the denial of his claim for 414 days of credit for time served in county jail.

On April 13, 2011, Appellant pleaded no contest to counts of kidnapping and robbery in case 2010-CF-109. As to Count I, he was sentenced to a 7-year prison term, to be followed by 3 years of probation, with 460 days of credit for time served applied against the sentence. As to Count II, he was sentenced to a concurrent 5-year prison term, followed by 3 years of probation, with 460 days of credit for time served. Crucially, the plea agreement reflected that the credit for time served flowed from jail time served in case 2010-CF-100. Nevertheless, as stipulated, Appellant received 460 days of credit for time served as to both case 2010-CF-109 and case 2010-CF-100.

During the subsequent probationary period, the State filed an affidavit of probation violation as to case 2010-CF-109, and Appellant entered into an open plea. As to both of the above cases, the lower court accepted Appellant's plea and revoked his probation. The lower court resentenced him to a prison term of 120 months, with 1,915 days of credit for time served, to be followed by 5 years of probation. The jail credit did not include the 460 days which had previously been awarded per the above plea agreement. The trial judge reasoned that Appellant was not legally entitled to the credit as to case 2010-CF-109 because it was served while he was in custody as to case 2010-CF-100. In his present rule 3.801 motion, Appellant contended that the trial court erred in rescinding the 460 days of credit for time served which had previously been awarded. The postconviction court granted the motion in part by awarding an additional 45 days, bringing the total to 1,959 days of credit for time served. However, the court denied credit as to the other 414 days of the original total on the ground that those days were only accrued in case 2010-CF-100, but not case 2010-CF-109.

Appellant's claim has merit as to the 414 days of credit he now seeks. It is well established that a court may not rescind jail credit, even if it has been awarded in error. See generally Washington v. State , 199 So.3d 1110, 1112 (Fla. 1st DCA 2016) ; Session v. State , 37 So.3d 873, 873 (Fla. 1st DCA 2010) ("[T]he rescission of previously awarded jail credit as an increased penalty and a violation of the defendant's [double jeopardy] rights under the Fifth Amendment of the United States Constitution."); Wheeler v. State , 880 So.2d 1260, 1261 (Fla. 1st DCA 2004) ("[T]he enhancement of a sentence after its initial imposition violates the prohibition against double jeopardy." (quoting Linton v. State , 702 So.2d 236, 236-37 (Fla. 2d DCA 1997) ).

Further, jail credit may not be withdrawn upon a resentencing as a result of a probation violation. See Tomiuk v. State , 663 So.2d 681, 681 (Fla. 5th DCA 1995) ("[Section 921.161(1) ] establishes that jail time credit is not forfeited when a defendant is resentenced as a result of a violation of probation or community control and, therefore, the defendant is entitled to receive credit for the 262 days he served prior to the imposition of the original sentence."); see also Sylvester v. State , 842 So.2d 977 (Fla. 2d DCA 2003) (reversing rescission of previously awarded jail credit upon probation violation where the credit had been a condition of a negotiated plea, despite that the credit had been miscalculated). Absent an express and specific waiver of jail credit as a condition of a plea agreement, all such credit must be awarded at a resentencing upon a probation violation. See generally Mohammad v. State , 138 So.3d 1174 (Fla. 3d DCA 2014).

Accordingly, in this case, it is irrelevant whether Appellant was legally entitled to the jail credit he now seeks. There is no dispute that it was previously awarded, and there is no indication that Appellant waived it as a condition of his plea to violating probation. See Wheeler , 880 So.2d at 1261 ("A trial court may not sua sponte rescind jail credit previously awarded at any time even if the initial award was improper."); Washington , 199 So.3d 1110 at 1112 (same); Lebron v. State , 870 So.2d 165 (Fla. 2d DCA 2004) (same); see also Mohammad , 138 So.3d at 1175.

The above authorities provide that since Appellant received 460 days of jail credit as to case 2010-CF-109 at his sentencing on April 13, 2011, none of that credit could be rescinded by the trial court upon his resentencing. Thus, as to case 2010-CF-109, Appellant is entitled to the remaining 414 days of credit for time served which the trial court erred in declining to award. In response to this Court's Toler order, the State conceded that Appellant is legally entitled to the jail credit he now seeks. We therefore remand this case back to the lower court so that Appellant's sentence may be amended to reflect his entitlement to that credit. The order on review is affirmed in all other respects.

AFFIRMED in part, REVERSED in part, and REMANDED .

B.L. Thomas, C.J., and Bilbrey and Jay, JJ., concur.

      Toler v. State , 493 So.2d 489 (Fla. 1st DCA 1986).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    A.B., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3468
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    Howard L. Dimming, II, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed without prejudice to any right A.B. may have to seek collateral relief or relief under Florida Rule of Appellate Procedure 9.141(d).

VILLANTI, LUCAS, and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: Per Curiam.

text:
    Robert Lee LEONARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3861
    District Court of Appeal of Florida, First District.
    February 5, 2019 Rehearing Denied February 27, 2019
    Robert Lee Leonard, pro se, Appellant.
    Ashley B. Moody, Attorney General, and Bryan Jordan, Senior Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

This is an appeal from an order denying a postconviction motion. Robert Lee Leonard was convicted of sexually abusing a child, and he was sentenced to 35 years in prison with a 25-year mandatory minimum. This court affirmed his conviction and sentence without an opinion. See Leonard v. State , 143 So.3d 926 (Fla. 1st DCA 2014) (Table).

Leonard then filed a rule 3.850 motion, raising several issues. One claim was that his attorney should have objected to his wearing shackles in front of jurors. He alleged that he wore extra-large shackles that his pants could not conceal, that jurors could hear his shackles every time he moved, that this was inherently prejudicial, and that he was deprived of his Sixth Amendment right to adequate counsel when his attorney failed to object.

The trial court summarily denied the motion, saying the allegation of shackling was "patently false" and contradicted by audio and video recordings. But those recordings were not in the record, so the record on appeal does not conclusively refute Leonard's allegations. See Fla. R. App. P. 9.141(b)(2)(D) ("On appeal from the denial of relief, unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief."); see also Torres v. State , 9 So.3d 746, 748 (Fla. 4th DCA 2009) (reversing the denial of a rule 3.850 motion alleging that counsel was ineffective for failing to properly object to the defendant standing trial in shackles where the trial court failed to attach documents that conclusively refuted the claim); Jensen v. State , 964 So.2d 812, 812 (Fla. 4th DCA 2007). As the State concedes, we must reverse as to this claim. On remand, the trial court should attach records conclusively refuting the claim or conduct an evidentiary hearing. As to all other issues, we affirm.

AFFIRMED in part, REVERSED in part, and REMANDED .

Roberts, Kelsey, and Winsor, JJ., concur.


author: BADALAMENTI, Judge.

text:
    Jose Enrique GONZALEZ, DOC #C11749, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3167
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    Howard L. Dimmig, II, Public Defender, and Terrence E. Kehoe, Special Assistant Public Defender, Bartow, for Appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   BADALAMENTI, Judge.

Jose Enrique Gonzalez appeals his jury convictions and concurrent life sentences for first-degree murder and sexual battery with actual physical force likely to cause serious personal injury. Gonzalez argues that the July 11, 2018, amended judgment does not indicate that Gonzalez was found guilty by a jury. The State concedes this scrivener's error. Accordingly, we remand with directions that the trial court correct the scrivener's error contained in the amended judgment to reflect that Gonzalez was found guilty by a jury. See Newson v. State, 867 So.2d 603, 603 (Fla. 2d DCA 2004) (affirming judgment and sentence but remanding with directions that an error in the judgment be corrected where the error was "not the result of a judicial determination, but rather a scrivener's error in the preparation of the written document"); Taylor v. State, 242 So.3d 1203, 1204 (Fla. 5th DCA 2018) ("We also remand for the trial court to correct the scrivener's error in the judgment, which failed to indicate that Taylor was tried by a jury and found guilty."). We affirm Gonzalez's jury convictions and concurrent life sentences in all other respects.

Affirmed; remanded to correct scrivener's error.

KHOUZAM, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur.

      While this appeal was pending, Gonzalez filed a motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2). The trial court granted that motion and ordered that the judgment be amended to comport with the court's oral pronouncement. That amended judgment, however, neglects to indicate that Gonzalez was convicted after a jury trial.


text:
    Michael Robert ESPINOZA, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1190
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 8, 2019
    Michael Robert Espinoza, Jr., Avon Park, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Michael Espinoza appeals the postconviction court's order partially denying his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He argues the twenty-five-year minimum mandatory sentences imposed upon him pursuant to section 775.087(2), Florida Statutes (2003), commonly referred to as the 10-20-Life law, are illegal. We agree.

Following a jury trial, Espinoza was convicted of aggravated battery (Count One) and aggravated assault (Count Two). In Count One, the jury found Espinoza guilty of "aggravated battery with a firearm or causing great bodily harm" and included a special verdict that Espinoza "did, possess and discharge a firearm causing great bodily harm." In Count Two, the jury found Espinoza guilty of "aggravated assault with a firearm" again with a special verdict that he "did, possess and display a firearm in the course of committing this crime." Because the postconviction court granted Espinoza relief on Count Two, we only address the twenty-five-year minimum mandatory sentence imposed on Count One for aggravated battery. Concluding the postconviction court should have granted relief on that count as well, we reverse.

When a person is convicted of aggravated battery, and during the commission of the aggravated battery a firearm was involved, that person is subject to a minimum mandatory sentence. § 775.087(2)(a), Fla. Stat. (2003). Specifically, if the person "actually possessed" a firearm, the law requires that they "shall be sentenced to a minimum term of imprisonment of 10 years," but if the person "discharged a 'firearm' ... and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison." § 775.087(2)(a) 1., 3., Fla. Stat. (2003).

"To pursue an enhanced mandatory sentence as the 10-20-Life statute [prescribes], the state must allege the grounds for enhancement in the charging document." Bienaime v. State, 213 So.3d 927, 929 (Fla. 4th DCA 2017) (citing Lane v. State, 996 So.2d 226, 227 (Fla. 4th DCA 2008) ). The statutory elements for such enhancement must be "precisely charged" in the information. Lewis v. State, 177 So.3d 64, 65 (Fla. 2d DCA 2015) (quoting Davis v. State, 884 So.2d 1058, 1060 (Fla. 2d DCA 2004) ). "[I]f the state wishes to give notice of an enhancement by reference to a statute in the charging document, the state must refer to the specific subsection which subjects the defendant to the enhanced sentence." Bienaime, 213 So.3d at 929-30 (citing Inmon v. State, 932 So.2d 518, 520 (Fla. 4th DCA 2006) ). An information's failure to cite to the specific statutory subsection, while simultaneously failing to precisely charge the elements, "cannot be cured by a jury's factual findings." Id. at 929 (citing Altieri v. State, 835 So.2d 1181, 1183 (Fla. 4th DCA 2002) ).

Here, the information charged that Espinoza:

[i]n violation of Florida Statutes 784.045(1)(a) and 775.087(2), ... did actually and intentionally touch or strike [the victim] against the will of [the victim] and in the commission of said battery ... did use a firearm, a deadly weapon, or did intentionally or knowingly cause great bodily harm, permanent disability or permanent disfigurement to [the victim], and in the course of committing said offense ... did actually possess a firearm.

(Emphasis added). The information does not allege that Espinoza discharged the firearm. It also does not allege that Espinoza used a firearm to commit bodily harm. Instead, the information charges aggravated battery in the alternative by alleging Espinoza used a firearm or knowingly caused great bodily harm, which suggests that any use of the firearm did not cause great bodily harm. Although the defect may have been cured by citation to the specific subsection of the statute, here, the information charged Espinoza with violating subsection 775.087(2), not subsection 775.087(2)(a)3. as required. See Bienaime, 213 So.3d at 930.

Because the information was substantively defective in omitting a necessary element and failing to cite the specific statutory subsection, and because the jury's specific finding cannot cure this defect, see id. at 929, we reverse the order of the trial court, vacate the sentence imposed on Count One, aggravated battery, and remand with instructions to impose a ten-year minimum mandatory on that count. See § 775.087(2)(a) 1., Fla. Stat. (2003).

REVERSED and REMANDED, with Instructions.

BERGER, EISNAUGLE and GROSSHANS, JJ., concur.


author: LaROSE, Chief Judge.

text:
    VERIZON WIRELESS PERSONAL COMMUNICATIONS, LP, Appellant, v. Christopher BATEMAN, Appellee.
    Case No. 2D18-161
    District Court of Appeal of Florida, Second District.
    Opinion filed February 8, 2019
    R. Eric Bilik, Emily Y. Rottmann, and Daniel Mahfood of McGuire Woods LLP, Jacksonville, for Appellant.
    Katherine Earle Yanes and Brandon K. Breslow of Kynes, Markman & Felman, P.A., Tampa; and Brian L. Shrader and Gus M. Centrone of Dunlap Bennett & Ludwig, PLLC, Tampa, for Appellee.
   LaROSE, Chief Judge.

Verizon Wireless Personal Communications, LP, challenges the trial court's nonfinal order denying its motion to compel arbitration. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(B) ; 9.130(a)(3)(C)(iv). Because Christopher Bateman's statutory claims are not arbitrable, we affirm.

I. Procedural and Factual Background

In 2011, Mr. Bateman obtained cell phone service from Verizon. Mr. Bateman agreed to the terms of Verizon's Customer Agreement. The Customer Agreement included an arbitration provision and stated that Verizon could unilaterally change the Customer Agreement at any time. Verizon revised the arbitration provision in 2012. The revised provision states, in relevant part, as follows:

YOU AND VERIZON WIRELESS BOTH AGREE TO RESOLVE DISPUTES ONLY BY ARBITRATION OR IN SMALL CLAIMS COURT.... WE ALSO BOTH AGREE THAT:
(1) THE FEDERAL ARBITRATION ACT APPLIES TO THIS AGREEMENT. EXCEPT FOR SMALL CLAIMS COURT CASES THAT QUALIFY, ANY DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF THIS AGREEMENT OR FROM ANY EQUIPMENT, PRODUCTS AND SERVICES YOU RECEIVE FROM US (OR FROM ANY ADVERTISING FOR ANY SUCH PRODUCTS OR SERVICES) WILL BE RESOLVED BY ONE OR MORE NEUTRAL ARBITRATORS BEFORE THE AMERICAN ARBITRATION ASSOCIATION ("AAA") OR BETTER BUSINESS BUREAU ("BBB"). YOU CAN ALSO BRING ANY ISSUES YOU MAY HAVE TO THE ATTENTION OF FEDERAL, STATE, OR LOCAL GOVERNMENT AGENCIES, AND IF THE LAW ALLOWS, THEY CAN SEEK RELIEF AGAINST US FOR YOU.
....
(3) THIS AGREEMENT DOESN'T ALLOW CLASS OR COLLECTIVE ARBITRATIONS EVEN IF THE AAA OR BBB PROCEDURES OR RULES WOULD. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE ARBITRATOR MAY AWARD MONEY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY'S INDIVIDUAL CLAIM. NO CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION HELD UNDER THIS AGREEMENT.

Mr. Bateman cancelled his Verizon service in March 2013. A little more than a year later, Mr. Bateman filed a chapter 7 bankruptcy petition. He identified Verizon as a general unsecured creditor for $ 481. In August 2014, the bankruptcy court discharged Mr. Bateman's debts, including the Verizon debt, under 11 U.S.C. § 727 (2012). As a result, Verizon was prohibited from trying to collect the discharged debt from Mr. Bateman. See 11 U.S.C. § 524(a).

After the bankruptcy discharge, Verizon allegedly hired a debt collector, Convergent Outsourcing, Inc., to send Mr. Bateman a debt collection notice. In mid-January 2015, Convergent sent a notice telling Mr. Bateman that he owed Verizon $ 568.02 but that Convergent would settle the claim for about $ 200.

Mr. Bateman sued Verizon and Convergent in federal district court, alleging that Verizon violated the Florida Consumer Collection Practices Act (FCCPA), and that Convergent violated the FCCPA and the Federal Debt Collection Practices Act (FDCPA). See Bateman v. Verizon Wireless Pers. Commc'ns LP, No. 8:15-cv-02096-JDW-AEP (M.D. Fla. 2015). After Mr. Bateman voluntarily dismissed his federal claim, the district court dismissed the action for lack of subject matter jurisdiction.

Mr. Bateman then sued Verizon in state court. He alleged that Verizon attempted to collect a debt previously discharged in the bankruptcy court, in violation of the FCCPA, section 559.72(7), (9), and (18), Florida Statutes (2014). Mr. Bateman sought to proceed on a class-action basis. Verizon moved to compel arbitration. See 9 U.S.C. § 2 (2012) ; Fla. R. Civ. P. 1.140(b)(1). The trial court denied Verizon's motion, citing Seifert v. U.S. Home Corp., 750 So.2d 633, 639 (Fla. 1999), and Harrier v. Verizon Wireless Pers. Communications LP (Harrier I ), No. 8:12-CV-1588-T-30AEP, 2012 WL 3655355 (M.D. Fla.), reconsideration denied, Harrier v. Verizon Wireless Pers. Commc'ns LP (Harrier II ), 903 F.Supp.2d 1281 (M.D. Fla. 2012). The trial court found that Harrier I was "analogous to this action and particularity persuasive."

Mr. Bateman also filed class claims in the bankruptcy court, seeking to hold Verizon in contempt for allegedly violating the discharge order. Verizon unsuccessfully tried to stay the bankruptcy claims and compel arbitration. In reBateman, 585 B.R. 618, 630 (Bankr. M.D. Fla. 2018).

II. Analysis

We review the trial court's order de novo. See Sherwood v. Slazinski, 162 So.3d 229, 231 (Fla. 2d DCA 2015).

A. Whether the Customer Agreement Survived the Bankruptcy Discharge

Verizon argues that the trial court erroneously relied on Harrier I because its reasoning that a bankruptcy discharge renders the Customer Agreement-and related arbitration provision-unenforceable "in the absence of a reaffirmation agreement" is inconsistent with bankruptcy law. See 2012 WL 3655355, at *1. More specifically, Verizon asserts that, "[c]ontrary to Harrier I's erroneous reasoning, it is axiomatic that bankruptcy discharges only ... the debtor's personal liability on a claim for payment ..., not underlying contracts." Verizon further argues that the trial court erred by failing to "address the settled concept of severability, under which [Mr.] Bateman's agreement to arbitrate would survive even if his bankruptcy discharge somehow invalidated the Customer Agreement as a whole."

Mr. Bateman maintains that the trial court properly relied on Harrier I because the "better-reasoned and more persuasive weight of authority" holds that "a contractual arbitration provision is enforceable after a bankruptcy only if the contract was reaffirmed in the bankruptcy" pursuant to § 524(c). Mr. Bateman contends that the concept of severability is not applicable here because "the issue is neither the validity of the underlying contract nor the validity of the arbitration clause it contains."

Recently, the United States Bankruptcy Court for the Middle District of Florida disagreed with the reasoning in Harrier I, holding that the arbitration provision survived Mr. Bateman's chapter 7 discharge, even though he did not reaffirm his debt with Verizon. In re Bateman, 585 B.R. at 625 n.24. We find In re Bateman highly persuasive.

As the bankruptcy court explained, "the effect of a chapter 7 discharge is simply to relieve the debtor of personal liability" for a debt. Id. at 625 (citing Johnson v. Home State Bank, 501 U.S. 78, 83-84, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991) (explaining that a chapter 7 discharge "extinguishes only'the personal liability of the debtor' " and holding that the underlying lien does not disappear with a discharge) ); see also 11 U.S.C. § 727(b) (providing that chapter 7 discharge relieves "the debtor from all debts that arose before" the discharge order and "any liability on a claim" that arose before the commencement of the bankruptcy). The court further explained that, contrary to Harrier I's reading of § 524(c), the statute "instructs how to create a valid and enforceable reaffirmation agreement," and "does not speak to the original contract between the debtor and the creditor." In re Bateman, 585 B.R. at 625. "[N]othing in [§] 524 expands the discharge granted under [§] 727" to discharge the entire contract. In re Bateman, 585 B.R. at 625. The single case cited in Harrier I recognized that § 524 applied to the reaffirmation agreement, not the underlying contract. See Jones v. Springfield City Sch. Credit Union, 6 B.R. 336, 338 (Bankr. S.D. Ohio 1980) ("[ Section] 524 now establishes parameters for reaffirmation agreements by court approval under very limited circumstances.").

Thus, the bankruptcy discharge "does not extinguish the underlying debt" itself. In re Scantling, 465 B.R. 671, 678 (Bankr. M.D. Fla. 2012), aff'd, 754 F.3d 1323 (11th Cir. 2014). The debt still exists and can be collected through other modes of enforcing a claim. See Deutsche Bank Tr. Co. Ams. v. Nash, 136 So.3d 1267, 1269 (Fla. 2d DCA 2014) (holding that the bankruptcy discharge eliminated personal liability, not in rem liability); see also 11 U.S.C. § 524(e) ("Except as provided in subsection (a)(3) of this section, discharge of a debt of the debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt.").

Florida courts are in accord. See, e.g., Can Fin., LLC v. Krazmien, 253 So.3d 8, 11 (Fla. 4th DCA 2018) ("The terms of the note and mortgage remained intact, as a bankruptcy discharge 'extinguishes only the personal liability of the debtor.' " (quoting Johnson, 501 U.S. at 83, 111 S.Ct. 2150 ) ). It follows that the discharge does not extinguish an otherwise binding contract underlying the debt. See In re Bateman, 585 B.R. at 625 ; Williams v. Navient Sols., LLC, 564 B.R. 770, 775 (Bankr. S.D. Fla. 2017) ("[A] discharge entered under § 727 relieves a debtor only of his or her personal obligations on debts that existed on the petition date. The entry of a chapter 7 discharge does not vitiate the effectiveness of an otherwise binding agreement to arbitrate matters relating to a claim that may or may not be subject to the discharge."); cf. Gadomski v. Wells Fargo Bank N.A., 281 F.Supp.3d 1015, 1019 (E.D. Cal. 2018) ("The Ninth Circuit has stated that a bankruptcy discharge does not mean the whole contract has been merged into the judgment.").

Furthermore, a bankruptcy discharge does not extinguish the arbitration provision in the Customer Agreement because the obligation to arbitrate is not a "debt" or "claim" as defined by the Bankruptcy Code. See 11 U.S.C. § 101(5), (12). It is not a right to payment or a right to an equitable remedy for breach of performance. See Mann v. Equifax Info. Servs., LLC, No. 12-CV-14097, 2013 WL 3814257, at *8 n.4 (E.D. Mich. July 22, 2013) ("An arbitration agreement, however, is not a 'claim to payment,' but rather merely defines the venue in which a claim to payment is to be resolved."). An arbitration agreement merely defines the venue where the parties will resolve a claim to payment or equitable remedy. Id. Consequently, Mr. Bateman's reliance on Jernstad v. Green Tree Servicing, LLC, No. 11 C 7974, 2012 WL 8169889, at *2 (N.D. Ill. Aug. 2, 2012), is unpersuasive. See Mann, 2013 WL 3814257, at *8 n.4 (finding Jernstad unpersuasive where the court concluded that the "discharge rendered the parties' Arbitration Agreement unenforceable," and then immediately stated, "What is discharged is a claim to payment" (quoting Jernstad, 2012 WL 8169889, at *6 ) ).

Accordingly, we conclude that the Customer Agreement and its arbitration provision survived Mr. Bateman's bankruptcy discharge. See In re Bateman, 585 B.R. at 625 ; Williams, 564 B.R. at 775 ; cf. Can Fin., LLC, 253 So.3d at 11. The absence of a reaffirmation agreement does not change this conclusion. See In re Bateman, 585 B.R. at 625.

Besides, even if the bankruptcy discharge rendered the Customer Agreement unenforceable, "the arbitration provision [was] severable and survive[d]." See id. ("[A]s a matter of substantive federal arbitration law, ... an arbitration provision is severable from the remainder of the contract" (quoting Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), for the proposition that "as a matter of substantive federal arbitration law, ... an arbitration provision is severable from the remainder of the contract") ). We reject Mr. Bateman's argument to the contrary.

B. Whether Mr. Bateman's FCCPA Claims Are Arbitrable

Claiming the strong presumption in favor of arbitration, see Morton v. Polivchak, 931 So.2d 935, 941 (Fla. 2d DCA 2006), Verizon maintains that Mr. Bateman's claims are within the scope of the broad arbitration provision because the Customer Agreement is the "sole source" of the parties' relationship and "the claims arise directly from Verizon's alleged efforts to enforce its rights under the Customer Agreement." In contrast, Mr. Bateman contends that his claims arise from a state consumer protection statute, the FCCPA. He argues that his claims do not arise from the Customer Agreement because the bankruptcy court discharged the debt; Mr. Bateman owed nothing under the Customer Agreement.

Florida contract law guides our resolution of whether Mr. Bateman must arbitrate. See Parnell v. CashCall, Inc., 804 F.3d 1142, 1147 (11th Cir. 2015) ("When federal courts interpret arbitration agreements, state contract law governs and directs the courts' analyses of whether the parties committed an issue to arbitration."). The Florida Supreme Court explained that even with a general policy favoring arbitration, a dispute is within the scope of a "broad" arbitration provision-a provision demanding arbitration of any claim arising out of or relating to the underlying contract-only if there is a significant relationship between the dispute and the contract. Seifert, 750 So.2d at 638. After all, "no party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate." Id. at 636.

A significant relationship does not arise "simply because the dispute would not have arisen absent the existence of a contract between the parties." Id. at 639. Rather, we look for a "contractual nexus" between the dispute and the contract. See id. at 638-39. "A contractual nexus exists between a claim and a contract if the claim presents circumstances in which the resolution of the disputed issue requires either reference to, or construction of, a portion of the contract." Jackson v. Shakespeare Found., Inc., 108 So.3d 587, 593 (Fla. 2013) (citing Seifert, 750 So.2d at 638 ).

In Seifert, the court held that a contractual nexus did not exist because the wrongful death claims, there, were founded "upon a tort theory of common law negligence unrelated to" any unique rights and obligations imposed under the contract. 750 So.2d at 640-42. The court further noted that the factual allegations in the complaint did not rely on the parties' contract, and thus, the "allegations rel[ied] on obligations that would extend to anyone, third parties as well as the Seiferts, who might be injured by U.S. Home's tortious conduct." Id. at 641-42.

Mr. Bateman argues that similar to the tort claims in Seifert, the statutory claims he asserts do not require reference to or construction of the Customer Agreement. He correctly asserts that his statutory claims rely on obligations that arise under the FCCPA and that he "could have brought this action based on [Verizon's] conduct regardless of whether the Customer Agreement ever existed."

Mr. Bateman does not allege that Verizon's conduct violated the Customer Agreement, nor does he base his claims on the terms of the Customer Agreement. Cf. In re Bateman, 585 B.R. at 627-28 (stating that "Verizon misses the mark when describing the nature of the Motion for Contempt" because Mr. Bateman argued that Verizon violated the discharge order, not that "the debt collection letter from Verizon's agent violated the Customer Agreement"). Instead, Mr. Bateman alleges that Verizon violated the FCCPA. This statute imposes legal duties on consumer debt collectors. § 559.72 ;

Morgan v. Wilkins, 74 So.3d 179, 181 (Fla. 1st DCA 2011). These legal duties arise upon a debt collector's communication to collect debt and do not require a contract. Cf. Desmond v. Accounts Receivable Mgmt., Inc., 72 So.3d 179, 181 (Fla. 2d DCA 2011) (holding that FCCPA applied where ARM attempted to collect debt from the wrong person because FCCPA applies to "not only an actual debtor, but also 'any natural person ... allegedly obligated to pay any debt.' " (quoting § 559.55(2) ) ); McCaskill v. Navient Sols., Inc., 178 F.Supp.3d 1281, 1297 (M.D. Fla. 2016) ("[W]hen a creditor calls the wrong number and mistakenly alleges that the plaintiff owes a debt, the plaintiff is a 'debtor' under the FCCPA."). Accordingly, the alleged statutory violations addressed under section 559.72 arose from Verizon's collection efforts and were not unique to the Customer Agreement. Cf. Five Points Health Care Ltd. v. Alberts, 867 So.2d 520, 521 (Fla. 1st DCA 2004) (reasoning that its conclusion the statutory claims were within the scope of arbitration was consistent with Seifert where "[t]he statutory duties ... arose because of Mr. Alberts' admission to Park Ridge Nursing Center pursuant to the Agreement for Care").

Further, Mr. Bateman's FCCPA claims do not require reference to or construction of the Customer Agreement. Verizon claims a significant relationship between the Customer Agreement and its alleged conduct because Mr. Bateman alleged in his complaint that the underlying debt arose from a "transaction" for cell phone services. We are not moved. Mr. Bateman's allegations do not explicitly mention the Customer Agreement, and the reference to the transaction simply notes that there was an underlying debt before the bankruptcy discharge. See Mims v. Glob. Credit & Collection Corp., 803 F.Supp.2d 1349, 1358 (S.D. Fla. 2011) (stating that the claims were not intertwined with the Agreement where "the claims presume[ed] the existence of the Agreement ... purely for the purpose of noting there [was] an underlying debt").

It may be true that the debt would not have accrued but for the Customer Agreement and that the dispute may not have resulted but for the Customer Agreement, but Seifert rejected such analysis. See 750 So.2d at 638 ("[T]he mere fact that the dispute would not have arisen but for the existence of the contract and consequent relationship between the parties is insufficient by itself to transform a dispute into one 'arising out of or relating to' the agreement."); see also Saunders v. St. Cloud 192 Pet Doc Hosp., LLC, 224 So.3d 336, 338 (Fla. 5th DCA 2017) (rejecting similar logic). Again, to compel arbitration under a broad arbitration provision, the claim "must, at a minimum, raise some issue the resolution of which requires reference to or construction of some portion of the contract itself." Seifert, 750 So.2d at 638. The dispute in this case is whether Verizon violated the FCCPA. Verizon fails to explain adequately how the Customer Agreement is required to resolve this dispute.

Without a disputed issue that requires reference to or construction of the Customer Agreement, the FCCPA claims lack a significant relationship to the Customer Agreement and are not arbitrable. See id. Compare In re Bateman, 585 B.R. at 627-28 (holding that "[t]he lack of a nexus [was] apparent" between the Customer Agreement and the issue of contempt where Mr. Bateman did "not argue that the debt collection letter from Verizon's agent violated the Customer Agreement" and the Customer Agreement was not needed to resolve the issue of contempt), with Aztec Med. Servs., Inc. v. Burger, 792 So.2d 617, 624 (Fla. 4th DCA 2001) (holding that the statutory claims were within the scope of arbitration "where (1) appellees pled identical allegations to support both their breach of contract and statutory claims and (2) reliance on the agreement and its terms [was] necessary to determine whether or not the claims submitted by the physicians to Aztec were paid timely and whether Aztec improperly coded the claims submitted-the factual allegations at the core of the Unfair Trade Practices Act claim").

We are not persuaded by the federal cases upon which Verizon relies. Sherer v. Green Tree Servicing LLC, 548 F.3d 379, 381 (5th Cir. 2008), is inapposite because the parties in Sherer did not challenge "that the claims would otherwise be within the scope of the arbitration clause '[h]ad the defendant signed the contract.' " (Alteration in original.) Instead, the sole issue in Sherer was "whether Sherer ha[d] agreed to arbitration with a nonsignatory, such as Green Tree." Id. Some of the other federal cases relied on by Verizon did not involve claims pertaining to a discharged debt and concluded that the debt collection claims arose under the broad arbitration agreements without delving into whether a significant relationship existed between the agreements and the claims. See Wilder v. Midland Credit Mgmt., No. CIVA109CV2039JOFAJB, 2010 WL 2499701, at *4 (N.D. Ga. May 20, 2010), report and recommendation adopted, No. CIVA109CV02039JOFAJB, 2010 WL 2499659 (N.D. Ga. June 15, 2010) ; Miller v. Nw. Tr. Servs., Inc., No. CV-05-5043-RHW, 2005 WL 1711131, at *4 (E.D. Wash. July 20, 2005).

In the federal cases where the courts provided a more in-depth analysis of the scope of the arbitration provision, the plaintiffs in those cases raised issues for which resolution required reference to the contracts. See Koch v. Compucredit Corp., 543 F.3d 460, 466 (8th Cir. 2008) ; Campbell v. Verizon Wireless, LLC, No. CIV.A. 14-0517-WS-N, 2015 WL 416484, at *5 n.13 (S.D. Ala. Jan. 29, 2015). In Koch, "the heart of the dispute-the occurrence and alleged payment of the debt-[was] one founded in the credit agreement." 543 F.3d at 466. In Campbell, the February 2008 and May 2010 Customer Agreements "included detailed recitations of Verizon's billing practices and obligations," and the dispute "occurred as a fairly direct result of the manner and methods by which Verizon charged [Mr. Campbell] for services and referred his account to collection." 2015 WL 416484, at *5 n.13. Mr. Campbell also disputed that he ever signed the service agreement, under which the debt at issue incurred. Id. at *1. Unlike the parties in Koch and Campbell, Verizon and Mr. Bateman do not dispute whether Mr. Bateman paid the debt or signed the Customer Agreement. If anything, they dispute whether the debt was discharged, which is a dispute founded in the bankruptcy proceedings.

Additionally, Verizon does not indicate if the July 2011 or February 2012 Customer Agreements included detailed recitations of Verizon's billing practices and obligations relevant to this dispute, like the agreements in Campbell. Our independent review of the record indicates that the Customer Agreements do not include detailed recitations of Verizon's billing practices or obligations when a debt is discharged in bankruptcy. The only mention of collections in the Customer Agreements is in the "About My Payments" section and states that Verizon may charge the customer any fees the collection agency charges them if the customer fails to pay and Verizon uses a collection agency and caps the amount of collection fees at 18%. And the only mention of bankruptcy is in the "What Are Verizon Wireless' Rights to Limit or End Service or End This Agreement?" section, which states that Verizon may suspend or terminate the service if the customer goes bankrupt. This statement has no bearing on the allegations in Mr. Bateman's complaint as Mr. Bateman had ended his service with Verizon well before he ever filed for bankruptcy.

We conclude, based on the arguments and record before us, that Mr. Bateman's claims do not have a "significant relationship" to the Customer Agreement. Cf. Bray v. PNC Bank, N.A., 196 F.Supp.3d 1282, 1287 (M.D. Fla. 2016) ("Plaintiffs' claims in this case arise out of Defendant's attempts to enforce a debt that was discharged in bankruptcy, as opposed to arising directly from the Mortgage. Thus, Plaintiffs' claims do not arise out of and are not sufficiently related to the Mortgage to fall within the jury waiver provision."). We emphasize that the policy favoring arbitration does not change our conclusion because the "significant relationship" requirement laid out in Seifert must be satisfied even in light of the general policy favoring arbitration. See Seifert, 750 So.2d at 638 ; see also Wilder, 2010 WL 2499701, at *4 ("Although federal policy favors arbitration, ... a district court must compel arbitration only if the parties have agreed to arbitrate their dispute; 'parties cannot be forced to submit to arbitration if they have not agreed to do so.' " (quoting Magnolia Capital Advisors, Inc. v. Bear Stearns & Co., 272 F. App'x. 782, 785 (11th Cir. 2008) ) ).

III. Conclusion

The trial court erred in denying the motion to compel arbitration by applying Harrier I's flawed reasoning. As we explained above, the bankruptcy order discharged Mr. Bateman's personal liability as to his debts, not the entire Customer Agreement and arbitration provision therein. See In re Bateman, 585 B.R. at 625 ; Williams, 564 B.R. at 775. The arbitration provision remained valid even in the absence of a reaffirmation agreement. See In re Bateman, 585 B.R. at 625. Nevertheless, bound as we are by Seifert, we affirm the trial court's denial of Verizon's motion to compel arbitration because Mr. Bateman's FCCPA claims do not have a significant relationship to the Customer Agreement.

Affirmed.

SLEET and SALARIO, JJ., Concur.

      We will not address whether Verizon waived its right to arbitrate because Mr. Bateman does not rely on waiver on appeal. See Kenyon v. Kenyon, 496 So.2d 839, 840 (Fla. 2d DCA 1986) (holding an issue waived when the parties failed to brief the issue).

      Subsection (7) prohibits a debt collector from willfully communicating or engaging in conduct that "can reasonably be expected to abuse or harass the debtor." Subsection (9) prohibits a debt collector from "[c]laim[ing], attempt[ing], or threaten[ing] "to enforce a debt when such person knows that the debt is not legitimate, or assert[ing] the existence of some other legal right when such person knows that the right does not exist." Subsection (18) prohibits a debt collector from knowingly communicating with a debtor that "is represented by an attorney with respect to such debt."

      In his brief, Mr. Bateman mentions in passing that several cases have stated that the central purpose of a bankruptcy discharge is to give a debtor a fresh start when holding arbitration agreements unenforceable under the circumstances of the respective cases. See, e.g., Anderson v. Credit One Bank, N.A., 884 F.3d 382, 390 (2d Cir. 2018) (holding that enforcing an arbitration agreement for claims based "on alleged violations of a discharge injunction ... would interfere with the fresh start bankruptcy promises debtors, which would create an inherent conflict with the Code"). However, Mr. Bateman has failed to develop an argument as to how the "fresh start" principle would make the arbitration provision unenforceable under the facts of this case. He has mentioned a principle and case law but has failed to apply them. Additionally, Mr. Bateman did not mention the "fresh start" principle to the trial court. We need not address it in this opinion. See Manatee Cty. Sch. Bd. v. NationsRent, Inc., 989 So.2d 23, 25 (Fla. 2d DCA 2008) ("[I]t would be inappropriate .... to depart from our role as a neutral tribunal and to become an advocate by developing arguments that the [party]-for whatever reason-has chosen not to make. We work within the framework of the briefs, and it is not our function to rebrief an appeal." (citation omitted) ).

      In re Bateman issued during the pendency of this appeal but before oral argument. Id. at 618.

      Verizon suggested in its motion to compel arbitration that Georgia law applies. However, because neither party argues the applicability of Georgia law and both parties discuss Florida cases, we apply Florida law. See Marine Envtl. Partners, Inc. v. Johnson, 863 So.2d 423, 426 (Fla. 4th DCA 2003) (applying Florida law where "neither party ... argued the applicability of Colorado law," and both parties "relied heavily on Florida law as controlling").

      Section 559.55(6) defines "debt collector" as
      any person who uses any instrumentality of commerce within this state, whether initiated from within or outside this state, in any business the principal purpose of which is the collection of debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. The term "debt collector" includes any creditor who, in the process of collecting her or his own debts, uses any name other than her or his own which would indicate that a third person is collecting or attempting to collect such debts.
      Unlike the FDCPA, "the FCCPA applies not only to debt collectors but also to any 'person.' " Gann v. BAC Home Loans Servicing LP, 145 So.3d 906, 910 (Fla. 2d DCA 2014) ; see also § 559.72 (providing that "[i]n collecting consumer debts, no person shall ...") (emphasis added); Morgan v. Wilkins, 74 So.3d 179, 181 (Fla. 1st DCA 2011) (noting the appellees' concession that the trial court was in error when it ruled that FCCPA pertains only to debt collectors" in a case where a former client allegedly owed a debt to a law firm); Kelliher v. Target Nat'l Bank, 826 F.Supp.2d 1324, 1327 (M.D. Fla. 2011) ("Although the federal FDCPA does not apply to original creditors, the FCCPA has been interpreted to apply to original creditors as well as debt collection agencies."). The parties have not asked us to weigh in on whether Verizon is a debt collector under the FCCPA.

      At oral argument, Verizon argued for the first time that the Customer Agreement is required to resolve the dispute based on Mr. Bateman's allegations pertaining to class certification and the limitation of liability provision in the Customer Agreement. Because Verizon failed to present these arguments pertaining to these allegations in its briefs, we do not address them. See Bainter v. League of Women Voters of Fla., 150 So.3d 1115, 1126 (Fla. 2014) (" 'Basic principles of due process'-to say nothing of professionalism and a long appellate tradition-'suggest that courts should not consider issues raised for the first time at oral argument' and 'ought not consider arguments outside the scope of the briefing process.' " (quoting Powell v. State, 120 So.3d 577, 591 (Fla. 1st DCA 2013) ) ); cf. Morton, 931 So.2d at 941 (declining to address other provisions in an arbitration agreement where the parties did not present any "argument concerning the bearing these provisions might have on the issue of whether the parties" agreed to arbitrate the punitive damages claims).


author: KHOUZAM, Judge.

text:
    Andrew J. MATTHEWS, Appellant, v. Theresa L. MATTHEWS, Appellee.
    Case No. 2D17-2834
    District Court of Appeal of Florida, Second District.
    Opinion filed February 8, 2019
    Allison M. Perry of Florida Appeals & Mediations, P.A., Tampa, for Appellant.
    Elinor P. Smith of Elinor P. Smith, P.A., Tampa, for Appellee.
   KHOUZAM, Judge.

Andrew Matthews, the Former Husband, appeals the final judgment of dissolution of his marriage to Theresa Matthews, the Former Wife. Because the trial court abused its discretion in denying the Former Husband's request for reimbursement of half the payments he made on a mortgage and home equity line of credit (HELOC) against the marital home during the pendency of the dissolution proceedings, we reverse and remand for the trial court to credit the Former Husband for these payments and reconsider the equitable distribution scheme in light of this change.

The Former Wife filed a petition for dissolution of marriage on November 9, 2015, after about twenty-three years of marriage. The Former Husband filed his answer and counter-petition on January 21, 2016. The two spouses lived together with their minor child in the marital home for the duration of the proceedings. Later, they entered into a Marital Settlement Agreement which distributed their assets and set forth parenting rights and obligations, including future child support. Neither party requested alimony or retroactive child support in either the settlement agreement or the pleadings.

During the roughly seventeen-month dissolution proceedings, the Former Husband made sixteen payments on a mortgage and line of credit against the marital home, totaling $37,584. He requested credit or reimbursement for half of that amount, $18,792, as the Former Wife's share of the obligation to maintain the marital home. The trial court denied this request in the final judgment and denied a motion for rehearing.

"Reimbursement or credit for a party's payment of marital property-related expenses during separation is a matter of judicial discretion in light of all relevant circumstances." Parks v. Parks, 18 So.3d 1072, 1073 (Fla. 2d DCA 2009) (quoting Stock v. Stock, 693 So.2d 1080, 1086 (Fla. 2d DCA 1997) ). However, "[g]enerally, when a husband and wife are jointly responsible for the mortgage on real property and one spouse pays the entire mortgage during the pendency of the dissolution, as part of the judgment of dissolution, the paying spouse is entitled to credit for half the total payments made." Sheehan v. Sheehan, 943 So.2d 818, 821 (Fla. 4th DCA 2006). Thus, while a trial court has discretion to disproportionately credit expenses incurred on a marital home during dissolution, adequate justification for an unequal award must be provided in the trial court's findings or, at a minimum, in the record evidence. Cintron v. King, 961 So.2d 1010, 1013 (Fla. 4th DCA 2007).

Here, neither the trial court nor the record before us provides adequate justification for the unequal award of the mortgage and HELOC payments. The trial court erroneously reasoned that the unequal award was justified because the Former Husband was not paying child support during the proceedings, the Former Husband's income was greater than the Former Wife's, and the Former Husband was living in the marital home with the Former Wife and their minor child during the proceedings.

In addressing the first two justifications, the Former Wife appropriately concedes that it was error for the trial court to rely on the lack of retroactive child support and the difference between the parties' income because neither party had requested retroactive child support or alimony, see § 61.08(2)(e), Fla. Stat. (2015) (including difference in income as a factor to be considered in the context of alimony award). "The courts of this state have consistently held that a trial court does not have the authority to decree relief that has neither been requested by way of pleading nor tried by consent." Koehler v. Roberts, 661 So.2d 374, 374 (Fla. 2d DCA 1995). As the parties did not request such relief, it was improper for the court to consider factors only relevant to retroactive child support and alimony, and these factors cannot support the unequal award of mortgage and HELOC payments.

Similarly, the trial court's third justification is inadequate. The mere fact that the parties were living together in the marital home during the pendency of the proceedings is not an exceptional circumstance that would justify an unequal award. See § 61.075(1) (listing factors that would justify a departure from equal distribution).

Instead of making any argument that exceptional circumstances existed to justify the unequal award, the Former Wife claims that the Former Husband is not seeking reimbursement for paying the mortgage and HELOC at all but rather seeking rent as an ousted cotenant. It is true that one of the issues in the dissolution proceedings was whether the Former Wife infringed upon the Former Husband's right to occupy the marital home when she allowed her parents to move into that home. The Former Wife relies on Barrow v. Barrow, 527 So.2d 1373, 1377 (Fla. 1988), for the proposition that the Former Husband cannot prevail on a claim for rent as an ousted cotenant. But this issue is separate from the issue on appeal and therefore is not properly before us.

In light of the above considerations, because the lower court failed to provide adequate justification for an unequal distribution, we hold that it abused its discretion in not crediting the Former Husband for the Former Wife's half of the mortgage and HELOC obligations.

Reversed and remanded for proceedings consistent with this holding.

LaROSE, C.J., and ROTHSTEIN-YOUAKIM, J., Concur.


text:
    Christopher Mack CHARLES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-5254
    District Court of Appeal of Florida, First District.
    February 8, 2019
    Christopher Mack Charles, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of prohibition is denied on the merits.

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


text:
    Felipe HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2656
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019
    Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Felipe Hernandez appeals from his convictions for two drug-related offenses, arguing that the trial court improperly denied his strike for cause and his peremptory strike of a juror. While the trial court committed error in denying Hernandez's peremptory challenge, we affirm because Hernandez did not preserve the issue for appeal.

Hernandez was charged with possession of cocaine and possession of drug paraphernalia. During voir dire of the jury, one of the potential jurors, Mr. Vasciana, expressed a desire to hear Hernandez testify. When further questioned by the trial court, Vasciana admitted that he could find Hernandez guilty if Hernandez did not testify, even if the State could not prove its case beyond a reasonable doubt. When the potential jurors were questioned again on this issue to dispel any confusion, Vasciana appeared to change his mind and agreed that he would have to find Hernandez not guilty if the State could not prove its case beyond a reasonable doubt.

Hernandez moved to strike Vasciana for cause because of his apparent willingness to misapply the burden of proof against Hernandez. The State argued that Vasciana had been rehabilitated and was merely confused during voir dire. The trial court agreed with the State and denied the strike for cause. Hernandez then moved to use a peremptory strike against Vasciana. The State requested a race-neutral explanation, and Hernandez reiterated his concerns from his previous motion to strike for cause. However, the trial court denied the peremptory challenge. When asked for clarification, the trial judge ruled that Hernandez's peremptory strike was not race-neutral because the reason for the peremptory strike was the same as for the challenge for cause. Hernandez later tried to revisit the judge's ruling and read case law into the record. This was the last time the strike was addressed, and the jury was sworn in without objection.

"[T]he preservation of a challenge to a potential juror requires more than one objection. When a trial court denies or grants a peremptory challenge, the objecting party must renew and reserve the objection before the jury is sworn." Carratelli v. State, 961 So.2d 312, 318 (Fla. 2007) (citing Zack v. State, 911 So.2d 1190, 1204 (Fla. 2005) ). "By not renewing the objection prior to the jury being sworn, it is presumed that the objecting party abandoned any prior objection he or she may have had and was satisfied with the selected jury." Zack, 911 So.2d at 1204 (citing Joiner v. State, 618 So.2d 174, 176 (Fla. 1993) ).

At jury selection, Hernandez challenged juror Vasciana twice-first for cause, then via a peremptory strike. The trial judge denied both challenges. Shortly thereafter, Hernandez asked to revisit the challenge of juror Vasciana and recited case law into the record favoring Vasciana's dismissal from the jury. Assuming this qualified as an objection to the judge's rulings on Vasciana, it was the first and last objection made. Hernandez did not renew the objection before the jury was sworn in, creating the presumption that he abandoned any objection. See id. Thus, the issue was not preserved for review.

Had the issue been preserved, however, we would have reversed and remanded for a new trial. "Florida law provides for two separate types of challenges to potential jurors with distinctly different underpinnings." Busby v. State, 894 So.2d 88, 99 (Fla. 2004). Challenges for cause require "narrowly specified, provable and legally cognizable bas[es] of partiality." Id. (quoting Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) ). On the other hand, peremptory challenges may be used "for any reason, so long as that reason does not serve as a pretext for discrimination." Id."If the trial court denies a cause challenge, counsel may ... remove a venire member through the utilization of a peremptory challenge." Nelson v. State, 73 So.3d 77, 85 (Fla. 2011) (citing Johnson v. State, 921 So.2d 490, 503-04 (Fla. 2005) ). It is improper for a trial judge to deny a peremptory challenge merely because the judge disagrees with the reason offered for dismissing a prospective juror. See Roberts v. State, 937 So.2d 781, 785 (Fla. 2d DCA 2006) ("[T]he essence of the peremptory challenge is that it may be used for any reason ...."

(citing Busby, 894 So.2d at 99 ) ). Thus, "[a] trial court's failure to permit a party to exercise its peremptory challenges in accordance with the law is reversible error." Id. (citing Van Sickle v. Zimmer, 807 So.2d 182, 184 (Fla. 2d DCA 2002) ).

In this case, Hernandez challenged juror Vasciana for cause but the trial court denied the challenge. When Hernandez then tried to use a peremptory challenge against Vasciana, the trial judge again denied the challenge, stating: "That issue was pretty much resolved at the time I dealt with the for cause challenge. I don't really view it as a different standard in terms of review of the reason why he was not stricken for cause." This was error. The trial judge may have disagreed with the basis of Hernandez's challenge for cause, but that in no way precluded Hernandez from using a peremptory challenge against Vasciana. Hernandez was only required to articulate his objection to Vasciana to show he was not motivated by racial discrimination. See Collier v. State, 134 So.3d 1042, 1043 (Fla. 1st DCA 2013) (citing Melbourne v. State, 679 So.2d 759, 764 (Fla. 1996) ). Contrary to the judge's finding, a peremptory challenge "can be used when defense counsel cannot surmount the standard for a cause challenge." Hayes v. State, 94 So.3d 452, 460 (Fla. 2012) (quoting Busby, 894 So.2d at 100 ).

Nevertheless, and unfortunately for Hernandez, this issue was not preserved for appeal. We are compelled to affirm without prejudice to Hernandez's right to file a postconviction motion pursuant to Florida Rule of Criminal Procedure 3.850.

Affirmed.

LaROSE, C.J., and NORTHCUTT, J., Concur.


text:
    Michael A. MATSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3100
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 12, 2019
    Michael A. Matson, Madison, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Jordan v. State, 143 So.3d 335, 340 (Fla. 2014).

EVANDER, C.J., ORFINGER and HARRIS, JJ., concur.


text:
    Smarlyn TAVERAS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2908
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 12, 2019
    Smarlyn Taveras, MacClenny, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Davis v. State , 104 So.3d 1279 (Fla. 4th DCA 2013).

ORFINGER, LAMBERT, and SASSO, JJ., concur.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Kimberly CARUSO, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5185
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019.
    Robert P. Harris of Robert Harris Law Firm, Fort Myers, for Appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and C. Todd Chapman, Assistant Attorney General, Tampa, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

On this appeal of the final judgment, sentence, and order of probation, Kimberly Caruso challenges the trial court's denial of her presentencing motion to withdraw her no contest plea to DUI manslaughter. We reject those challenges without further comment and affirm.

We do, however, address another matter that has come to our attention. After Caruso filed her notice of appeal in this case, the State moved in the trial court to modify Caruso's sentence-fourteen years' imprisonment followed by six years' probation-to include a four-year mandatory minimum term of imprisonment. Caruso's filing of the notice of appeal, however, vested this court with jurisdiction over the judgment and sentence, see Knapp v. State, 741 So.2d 1150, 1151 (Fla. 2d DCA 1999), and this court did not relinquish jurisdiction for any purpose. Nonetheless, the trial court orally granted the State's motion while this appeal was pending and entered an amended judgment and sentence that included the four-year mandatory minimum term. The court had not retained jurisdiction to consider the State's motion pursuant to Florida Rule of Criminal Procedure 9.600(d) because the motion was not authorized under Florida Rule of Criminal Procedure 3.800(b)(2) : it sought neither to benefit Caruso nor, in light of the court's failure to orally pronounce the mandatory minimum term at sentencing, to correct a scrivener's error. See Linnon v. State, 988 So.2d 70, 72-73 (Fla. 2d DCA 2008).

The trial court, therefore, lacked jurisdiction to amend the judgment and sentence while it was on appeal to this court. See id. at 72 (citing Knapp, 741 So.2d at 1151-52 ); see also Kessler v. City of Naples, 779 So.2d 378, 379 (Fla. 2d DCA 2000) (sua sponte vacating order that trial court had entered without jurisdiction in light of separate pending appeal); Duncan v. Duncan, 598 So.2d 205, 207 (Fla. 2d DCA 1992) ("[A] trial court does not have jurisdiction to enter an order which modifies the substance of a final judgment after a party files a notice of appeal."). And, having done so, it has interfered with our jurisdiction. Cf. Schultz v. Schickedanz, 884 So.2d 422, 424 (Fla. 4th DCA 2004) ("[A] trial court is divested of jurisdiction upon notice of appeal except with regard to those matters which do not interfere with the power and authority of the appellate court or with the rights of a party to the appeal which are under consideration by the appellate court." (alteration in original) (quoting Palma Sola Harbour Condo., Inc. v. Huber, 374 So.2d 1135, 1138 (Fla. 2d DCA 1979) ) ). Accordingly, we affirm the trial court's original judgment, sentence, and order of probation and remand for vacatur of the amended judgment and sentence. Our remand for vacatur is not a comment on the merits of the State's motion and is without prejudice to the State's seeking appropriate relief, if any, following the issuance of the mandate in this appeal.

Affirmed; remanded with instructions.

LaROSE, C.J., and KHOUZAM, J., Concur.


author: VILLANTI, Judge.

text:
    Christopher James GRADY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3324
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019
    Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Christopher James Grady appeals the order that revoked his probation based on his alleged commission of two new law offenses and his failure to comply with the instructions of his probation officer. While the State proved that Grady twice violated condition five of his probation by committing new law violations, it did not prove that he violated condition nine by failing to comply with the instructions of his probation officer. Therefore, while we affirm the revocation of Grady's probation, we reverse the trial court's finding of a violation of condition nine and remand with instructions to strike the references to that violation in the revocation order. In all other respects, we affirm.

Grady was serving a term of twenty-four months' probation for a conviction of possession of cocaine. While Grady was serving that probationary term, officers obtained a search warrant for his residence after they received information from a confidential informant that drug sales were being conducted from that residence. The search pursuant to the warrant revealed quantities of both cocaine and marijuana, and the State subsequently charged Grady with possession of both drugs. Based on those new charges, the Department of Corrections filed an affidavit alleging that Grady had twice violated condition five of his probation by committing these new offenses.

While that affidavit was pending, Grady went to the probation office for his normal reporting visit, and his probation officer instructed him that he needed to provide a urine sample for drug testing. When Grady failed to provide a sufficient sample, the probation officer told him to stay at the office and drink water until he could provide a sufficient sample. After waiting at the office for several hours, Grady left without providing a sample. The Department then filed an amended affidavit that added the following additional charges:

Violation of Condition (9) of the Order of Probation, by failing to comply with all instructions given to him by the probation officer, and as grounds for belief that the offender violated his probation, Office N. Watson states that on 05/03/2016, the offender was instructed to submit a urinalysis and the offender did fail to carry out this instruction by 05/03/2016, as evidenced by leaving the probation office before submitting.
Violation of Condition (11) of the Order of Probation, by refusing to submit to random testing as directed by the officer or the professional staff of the treatment center where he is receiving treatment to determine the presence or use of alcohol or controlled substances, and as grounds for belief that the offender violated his probation, Officer N. Watson states that the offender refused to submit to a urinalysis test on 05/03/2016, as evidenced by the offender leaving the probation office before submitting.

As is clear, both of these additional charges alleged violations based on the same conduct, i.e., that Grady left the probation office without submitting the requested urine sample. The amended affidavit contained no allegations concerning any other conduct that would constitute a violation of either of these conditions, and the affidavit was never amended or supplemented to allege that any other behavior constituted a violation.

At the evidentiary hearing on the amended affidavit, Grady's probation officer testified that when Grady failed to provide a urine sample, she instructed him to stay and drink water until he could provide such a sample. She testified that Grady remained at the probation office for a period of time but then left without providing a sample. In defense, Grady testified that a male probation officer had accompanied him into the drug testing room to supervise him giving a sample when he first arrived. After Grady provided a small sample, that officer said that it was not a sufficient quantity for testing, poured out the sample Grady had given, and instructed Grady to stay and try again. Grady testified that he stayed for a while and drank some water but that he was dehydrated and so he could not provide another sample. He also testified that he was a diabetic who had other health problems, that he began feeling very ill as he waited because there was no food at the probation office, and that he finally left to go get some food to avoid a diabetic incident. He also generally admitted to the facts concerning the new law offenses.

Based on this testimony, the trial court found that Grady had violated his probation by committing the new law offenses charged as violations of condition five. But the court found Grady not guilty of violating condition eleven because "he did give a sample, albeit, perhaps, not enough. So that one he's not guilty of." Despite this explicit finding, however, the court found Grady guilty of violating condition nine, which is based on the identical conduct as the alleged violation of condition eleven, i.e., "leaving the probation office before submitting." The court subsequently entered a written revocation order finding Grady in violation of conditions five and nine but not condition eleven. Grady now appeals the revocation of his probation, contending that the trial court's findings are not supported by the evidence presented.

As to the revocation based on the two violations of condition five, we affirm without further comment. However, we must reverse the trial court's ruling as to the alleged violation of condition nine because it is legally inconsistent with the court's finding of no violation of condition eleven. If, as the trial court explicitly found, Grady did not refuse to submit a urinalysis and therefore did not violate condition eleven by leaving the probation office without submitting one, then Grady could not have disobeyed the instructions of his probation officer based on those same allegations. Given the identical language in the affidavit concerning the conduct underlying both alleged violations, the trial court's finding that Grady was not guilty of violating condition eleven means, ipso facto, that he was not guilty of violating condition nine, and the court's ruling to the contrary must be reversed as unsupported by its factual findings.

We recognize, as the State argues, that there were facts developed at the evidentiary hearing that would have supported a conclusion that Grady violated other instructions of his probation officer. For example, the probation officer testified that she told Grady to drink water so that he could attempt to provide another sample, but he did not do so. Nevertheless, the affidavit did not identify this other conduct as the basis for the violation, and a revocation of probation cannot be based on conduct not charged in the affidavit. See McRae v. State, 88 So.3d 384, 385 (Fla. 2d DCA 2012) (quoting Johnson v. State, 811 So.2d 749, 750 (Fla. 2d DCA 2002) ); Cherington v. State, 24 So.3d 658, 660 (Fla. 2d DCA 2009) (quoting Parminter v. State, 762 So.2d 966, 967 (Fla. 2d DCA 2000) ). The fact that some testimony may have supported a conclusion that Grady may have violated other instructions given by his probation officer cannot support the finding of guilt when such other instructions were not alleged in the affidavit. Hence, this argument cannot support affirming the finding of a violation of condition nine.

Finally, on the issue of the proper scope of relief, Grady contends that the revocation order should be reversed and his case remanded for him to be reinstated to probation. However, this relief would be improper since the record supports the trial court's finding that Grady willfully and substantially violated his probation by committing two new offenses that constituted violations of condition five.

Moreover, this court need not reverse an order of revocation based on one unproven violation when the record establishes that the trial court would have revoked based on other proven violations. See Cherington, 24 So.3d at 661. Here, the record is clear that the trial court would have revoked Grady's probation based solely on the violations of condition five regardless of the improper finding as to condition nine. As the court stated:

The most disturbing thing about all of this was that, after you got arrested initially in January, you requested a bond so you could get out and take care of your medical issues. I very rarely give bond on violations of probation cases. I very rarely do that, and so I acquiesce to you [sic] request, give you a bond, and what do you do? You get arrested on new drug charges while you're on probation for drug charges.

In light of this clear statement, we affirm the order of revocation but remand with instructions for the trial court to strike the references to condition nine in that order.

Affirmed and remanded with instructions.

LaROSE, C.J., and SLEET, J., Concur.


text:
    James Joseph GALOPPA, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-0217
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 15, 2019
    Rupak R. Shah, of Escobar & Associates, P.A., Tampa, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the October 9, 2018, order denying Petitioner's motion for postconviction relief filed in Case No. 2013-CF-2800-A-Y, Fifth Judicial Circuit Court in and for Marion County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

EVANDER, C.J., COHEN and SASSO, JJ., concur.


text:
    Ernesto SANTIAGO ROBLES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2742
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 15, 2019
    Felix A. Felicier, of Felix Law Center P.A., Orlando, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Ernesto Santiago Robles appeals the order summarily denying his Florida Rule of Criminal Procedure 3.853 motion for postconviction DNA testing. This rule requires, among other things, that if the motion is facially sufficient, the court shall order the prosecuting authority to respond to the motion within thirty days or such other time as may be determined by the court. See Fla. R. Crim. P. 3.853(c)(2). Here, the trial court erred in ruling on Robles's motion without ordering a response from the State. See Poole v. State , 225 So.3d 418, 419 (Fla. 5th DCA 2017) ; Suber v. State , 178 So.3d 973, 973 (Fla. 5th DCA 2015).

Accordingly, we reverse the order and remand with directions that the court order the State to file a response to the motion.

REVERSED and REMANDED with directions.

LAMBERT, HARRIS, and SASSO, JJ., concur.


text:
    Douglas A. LIVELY, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2114
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 15, 2019
    Douglas A. Lively, Jr., Malone, pro se.
    Ashley B. Moody, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Douglas Lively appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to Grounds One, Two, Three, Five, Six, Seven, Eight, Nine, Ten, Eleven, Twelve, and Thirteen. However, because Lively should have been given the opportunity to amend Ground Four to state a facially sufficient claim, we reverse the summary denial of that claim and remand with instructions that he be given the opportunity to do so. See Spera v. State, 971 So.2d 754 (Fla. 2007) ; see also McGill v. State, 157 So.3d 433, 434 (Fla. 4th DCA 2015) (noting earlier motions denied as too long, and interpreting Mancino v. State, 10 So.3d 1203, 1204 (Fla. 4th DCA 2009), as drawing distinction between rejections for form and rejections for insufficiency). Additionally, because the trial court failed to consider Grounds Fourteen and Fifteen, we remand for consideration of those claims as well. See Purse v. State, 185 So.3d 627 (Fla. 5th DCA 2016) (reversing and remanding where trial court failed to address claim raised in rule 3.850 motion); Hatcher v. State, 114 So.3d 1019 (Fla. 5th DCA 2012) ; Bridges v. State, 81 So.3d 616, 618 (Fla. 5th DCA 2012).

AFFIRMED in part, REVERSED in part, and REMANDED.

EVANDER, C.J., BERGER and HARRIS, JJ., concur.

      We note that the trial court attached virtually the entire trial transcript to its order denying relief. However, in denying Ground Four, the trial court did not make any reference to any page specifically refuting Lively's allegations. It was the lower court's burden to do so, or to do so in the future after remand. See, e.g., Hoffman v. State, 571 So.2d 449, 450 (Fla. 1990) (reversing denial of postconviction relief because lower court attached entire record without articulating reasons for denial, or specifying parts of record directly refuting raised claims).


author: SASSO, J.

text:
    Raymond ADAMS, Petitioner, v. DEPARTMENT OF CORRECTIONS and State of Florida, Respondents.
    Case No. 5D18-1142
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 15, 2019
    Raymond Adams, Bushnell, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Leslie A. Healer, Assistant Attorney General, Tallahassee, for Appellee, Department of Corrections.
    No Appearance for Other Appellee.
   SASSO, J.

Petitioner, Raymond Adams, seeks second-tier certiorari review of final disciplinary action by the Department of Corrections. We deny the petition for writ of certiorari, concluding that even if the circuit court's reason for denying the petition was incorrect, it reached the correct result because Petitioner could not demonstrate any constitutionally protected liberty interest was implicated in the disciplinary proceeding.

Petitioner, an inmate, was charged with a disciplinary infraction that, after a disciplinary hearing, resulted in his thirty-day assignment to the disciplinary squad. After exhausting administrative remedies, Petitioner sought mandamus relief in the circuit court, alleging that the Department committed numerous due process and administrative rule violations during the investigation and processing of his charge. The circuit court denied the petition, essentially finding that no due process violation occurred. Petitioner now seeks certiorari review, alleging the circuit court improperly denied his mandamus petition without first issuing an Order to Show Cause to the Department. We agree with the Department that the circuit court properly denied Petitioner's request because the petition, on its face, demonstrated Petitioner is not entitled to relief. See Holcomb v. Dep't of Corr. , 609 So.2d 751, 753 (Fla. 1st DCA 1992) (reiterating that when court receives petition for writ of mandamus, its initial task is to assess legal sufficiency of allegations; if allegations are insufficient, court may deny petition or dismiss factually insufficient claims).

It is undisputed that the due process clause entitles inmates in disciplinary proceedings to certain minimum procedures to protect their liberty interests. Wolff v. McDonnell , 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). However, the due process clause does not protect every change in the conditions of confinement having a substantial adverse impact on an inmate. Meachum v. Fano , 427 U.S. 215, 224, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Instead, a protected liberty interest arises only when a restraint "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner , 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Those disciplinary actions that fall "within the range of confinement to be normally expected" do not implicate due process concerns. See id. at 487, 115 S.Ct. 2293.

Here, Petitioner's discipline was an assignment to the disciplinary squad for thirty days. This is not the type of "atypical" or "significant" hardship sufficient to give rise to a liberty interest protected by the due process clause. See Monteleone v. Palmer , No. 5:09cv202-RH/MD, 2009 WL 3067069, at *3 (N.D. Fla. Sept. 21, 2009) ("[P]laintiff's assertion that he was assigned to the disciplinary squad for 30 days which is 'physically demanding and labor intensive,' fails ... to state an actionable claim under the standard set forth in Sandin . "). Accordingly, Petitioner has failed to establish that the circuit court departed from the essential requirements of the law in denying his mandamus petition. See Broward Cty. v. G.B.V. Int'l, Ltd. , 787 So.2d 838, 843 (Fla. 2001) (reiterating that on second-tier certiorari review, the district court of appeal "determines [1] whether the circuit court afforded procedural due process and [2] applied the correct law" (citation omitted); Dep't of Highway Safety & Motor Vehicles v. Morrical , 262 So.3d 865, 866, 2019 WL 164865 (Fla. 5th DCA Jan. 11 2019) (same); see also Haines City Cmty. Dev. v. Heggs , 658 So.2d 523, 530 (Fla. 1995) (stating that the two-prong standard of review applicable to second-tier certiorari review is "merely [an] expression[ ] of ways in which the circuit court decision may have departed from the essential requirements of the law").

PETITION FOR WRIT DENIED.

EVANDER, C.J., and GROSSHANS, J., concur.


author: ORFINGER, J.

text:
    Grant MALOY, as Seminole County Clerk of the Circuit Court, Appellant, v. SEMINOLE COUNTY, Florida, Appellee.
    Case No. 5D18-748
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 15, 2019
    Barry S. Richard and John K. Londot, of Greenberg Traurig, P.A., Tallahassee, for Appellant.
    Charles T. Wells, Thomas J. Wilkes, Jr., Richard E. Mitchell, and Rachael M. Crews, of GrayRobinson, P.A., Orlando, and A. Bryant Applegate, of Seminole County Attorney's Office, Sanford, for Appellee.
    Laura Youmans, Associate Director of Public Policy, Florida Association of Counties, Tallahassee, Amicus Curiae, for Florida Association of Counties, Inc. and The Florida Association of County Attorneys, Inc.
    Thomas R. Grady, of Grady Law, Naples, Amicus Curiae, for Dwight E. Brock, Collier County, Clerk of the Circuit Court.
    Nicholas A. Shannin, of Shannin Law Firm, P.A., Orlando, Amicus Curiae, for Florida Court Clerks and Comptrollers.
   ORFINGER, J.

Grant Maloy, as Clerk of the Circuit Court of Seminole County ("the Clerk"), appeals the trial court's final judgment granting a writ of mandamus in favor of Seminole County, compelling the Clerk to invest county surplus funds as directed by the Seminole County Board of County Commissioners ("the Board"). This Court has jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). We affirm.

Seminole County is a charter county and a political subdivision of the State of Florida. The Board is the governing body of the County. Art. VIII, § 1(e), Fla. Const.; § 125.01, Fla. Stat. (2017). The Clerk is a constitutional officer and serves as the ex officio clerk of the board of county commissioners, auditor, recorder, and custodian of all county funds as there is no special law or charter provision divesting the Clerk of these constitutional duties. Art. VIII, § 1(d), Fla. Const. From time to time, the County has surplus funds, which are funds not immediately required to meet its current expenses. See § 218.403(8), Fla. Stat. (2017). In his capacity as custodian of county funds, the Clerk is required to invest the county's surplus funds as provided in section 218.415, Florida Statutes. See § 28.33, Fla. Stat. (2017).

In 1995, pursuant to section 218.415, Florida Statutes (1995), the Board adopted an investment policy (the "1995 Investment Policy"), which established a list of permissible investments and other guidelines relating to the nature and safety of such investments. In the 1995 Investment Policy, the Board delegated to the office of the clerk of the court, in its capacity as custodian of county funds, the implementation of the 1995 Investment Policy. For the next twenty-two years, the previous clerk of the court, without objection or interference from the Board, made discretionary investments of county surplus funds in accordance with the 1995 Investment Policy.

In March 2017, the Board adopted a resolution substantially revising the 1995 Investment Policy (the "2017 Investment Policy"). Among other things, the 2017 Investment Policy authorized the retention of an external investment advisor to make recommendations to the Board concerning the investment of surplus county funds. The 2017 Investment Policy directed the Clerk to implement the Board's investment decisions as soon as possible and to reallocate the investments of the county surplus funds as recommended to the Board by its investment advisor. When the Clerk refused to implement the Board's investment directives, the Board instituted these mandamus proceedings. Following extensive briefing and a hearing, the trial court issued a writ of mandamus, directing the Clerk to comply with the investment directions received periodically from the Board. This appeal followed.

"Mandamus is a common law remedy used to enforce an established legal right by compelling a person in an official capacity to perform an indisputable ministerial duty required by law." Poole v. City of Port Orange, 33 So.3d 739, 741 (Fla. 5th DCA 2010) (citing Puckett v. Gentry, 577 So.2d 965, 967 (Fla. 5th DCA 1991) ). "A duty or act is ministerial when there is no room for the exercise of discretion, and the performance being required is directed by law." Austin v. Crosby, 866 So.2d 742, 744 (Fla. 5th DCA 2004). The petitioner must show a clear legal right to the relief requested and "an indisputable legal duty on the part of the respondent" to act. Bennett v. Clerk of Circuit Court Citrus Cty., 150 So.3d 277, 278 (Fla. 5th DCA 2014) (citing Bernard v. State, 911 So.2d 1259, 1260 (Fla. 5th DCA 2005) ).

The issue in this case is whether the Clerk is subject to the direction of the County, acting through its Board, in the investment of county surplus funds. Because this presents a pure question of law, we review the trial court's ruling de novo. W. Fla. Reg'l Med. Ctr., Inc. v. See, 79 So.3d 1, 8 (Fla. 2012) ; Racetrac Petroleum, Inc. v. Delco Oil, Inc., 721 So.2d 376, 377 (Fla. 5th DCA 1998). In analyzing the issue, we are mindful that "[t]he cardinal rule of statutory construction is 'that a statute should be construed so as to ascertain and give effect to the intention of the Legislature as expressed in the statute.' " Gaulden v. State, 195 So.3d 1123, 1125 (Fla. 2016) (quoting City of Tampa v. Thatcher Glass Corp., 445 So.2d 578, 579 (Fla. 1984) ). When a statute is clear and unambiguous, a court must use the plain language of a statute and avoid rules of statutory construction to determine legislative intent. Schoeff v. R.J. Reynolds Tobacco Co., 232 So.3d 294, 301 (Fla. 2017). Only when statutory language is unclear or ambiguous, are statutory construction rules to be applied. Id. at 302.

A brief historical overview of the investment discretion of county surplus funds will be helpful in examining this issue. In 1943, the Florida Legislature enacted chapter 21691, section 1, Laws of Florida, which "authorized and empowered" boards of county commissioners "to invest and reinvest any surplus public funds in their control or possession." That authority, codified in section 125.31(1), Florida Statutes, provided that "[u]nless otherwise authorized by law or by ordinance, the board of county commissioners shall, by resolution to be adopted from time to time, invest and reinvest any surplus public funds in its control or possession ...." For the next thirty years, the boards of county commissioners had sole authority to invest a county's surplus funds. Then, in 1973, the Legislature enacted section 28.33, Florida Statutes (1973), which also gave the clerk of the court statutory authority to invest a county's surplus funds, providing, in relevant part:

The clerk of the circuit court in each county shall make an estimate of his projected financial needs for the county and shall invest any funds in designated depository banks in interest-bearing certificates or in any direct obligations of the United States in compliance with federal laws relating to receipt of and withdrawal of deposits.

See ch. 73-282, § 1, Laws of Fla.

Due to the apparent conflict between these two statutes, the supreme court was called on to interpret the interplay between sections 28.33 and 125.31(1) to determine whether the board of county commissioners or the clerk of the circuit court controlled the investment of county surplus funds. In Alachua County v. Powers, 351 So.2d 32 (Fla. 1977), the court held that pursuant to section 28.33, the clerk of circuit court had investment discretion of county surplus funds except for the investment of those surplus funds directed by resolution of the board of county commissioners under section 125.31 :

[T]here appears to be no conflict with the holding of the court below that the board may by appropriate resolution designate the investment place of surplus funds and the clerk is required to carry out the board's directive. In the alternative, where the board does not so designate the investment of surplus funds, these funds are to be invested by the clerk pursuant to Section 28.33, Florida Statutes (1975).

Powers, 351 So.2d at 39. In other words, the supreme court determined that if a county adopted an investment policy, that policy controlled.

Thereafter, in 1977, the Legislature created the "Investment of Local Government Surplus Funds Act" (the "Act"), sections 218.40-.422, Florida Statutes, "to promote, through state assistance, the maximization of net interest earnings on invested surplus funds of local units of government, thereby reducing the need for imposing additional taxes." § 218.401, Fla. Stat. (1977). In 1995, the Act was amended to redefine the term "units of local government" to include clerks of court in addition to counties, which were already included. The Act gave units of local government the option to either adopt a written investment policy for their surplus funds or to default to statutory limitations on the types of investments. §§ 218.403, 218.415, Fla. Stat. (1995). The amendment required that any investment activity by a unit of local government be consistent with a written investment plan for surplus funds adopted by the governing body or principal officer of the governmental unit. § 218.415, Fla. Stat. (1995). At the same time, section 125.31, authorizing boards of county commissioners to invest surplus funds, was also amended to provide that "[t]he provisions of this section are subject to the provisions of s. 218.415." § 125.31(7), Fla. Stat. (1995).

In 2000, the Legislature substantially revised the Act in order to provide uniform guidelines in investing the surplus funds of all local government agencies. See ch. 2000-264, Laws of Fla. As part of the revision, the Legislature repealed section 125.31. However, the language of section 125.31(1) was substantially incorporated into section 218.415(16), Florida Statutes, and continued to allow units of local government, such as the County, to adopt written investment policies. Compare § 218.415(16), Fla. Stat. (2000) (stating that "[t]hose units of local government electing to adopt a written investment policy ... may by resolution invest and reinvest any surplus public funds in their control or possession" in any of several listed types of funds and securities), with § 125.31(1), Fla. Stat. (1999) ("Unless otherwise authorized by law or by ordinance, the board of county commissioners shall, by resolution to be adopted from time to time, invest and reinvest any surplus public funds in its control or possession ...."). Thus, the authority of "units of local governments," including counties, to direct the investments of surplus funds in their control or possession by resolution was not repealed. With this overview in mind, we now address the issue presented in this case.

The Clerk is "custodian" of all surplus funds of the County. Art. VIII, § 1(d), Fla. Const. Because neither the Constitution nor statutes define the term "custodian," we consult the dictionary, which informs us that a "custodian" is a "person or institution that has charge or custody (of a child, property, papers, or other valuables)." Custodian, Black's Law Dictionary (10th ed. 2014); see also Custodian, Merriam-Webster's Collegiate Dictionary (11th ed. 2014) (defining "custodian" as "one that guards and protects or maintains"). However, the Clerk's role as "custodian" of county surplus funds is not self-implementing and must be established by statute. Article VIII, section (1)(b), Florida Constitution, provides that "[t]he care, custody and method of disbursing county funds shall be provided by general law" while Article II, section 5(c), Florida Constitution states that "[t]he powers [and] duties ... of state and county officers shall be fixed by law." Thus, we examine the relevant statutes to determine what investment discretion the Clerk has when acting as custodian of county surplus funds.

Section 28.33, Florida Statutes (2017), provides that "[t]he clerk of the circuit court in each county shall invest county funds in excess of those required to meet expenses as provided in s. 218.415." "Unlike the word 'may,' which implies discretion, the word 'shall' usually connotes a requirement." Jennings v. Rodriguez, --- U.S. ----, 138 S.Ct. 830, 844, 200 L.Ed.2d 122 (2018) (quoting Kingdomware Techs., Inc. v. United States, --- U.S. ----, 136 S.Ct. 1969, 1977, 195 L.Ed.2d 334 (2016) ). The Clerk is thus mandated to invest surplus funds as provided in section 218.415. That section, entitled "Local government investment policies," applies to all local government investment policies, including the Clerk and the County, and provides in relevant part:

Investment activity by a unit of local government must be consistent with a written investment plan adopted by the governing body , or in the absence of the existence of a governing body, the respective principal officer of the unit of local government and maintained by the unit of local government or, in the alternative, such activity must be conducted in accordance with subsection (17). Any such unit of local government shall have an investment policy for any public funds in excess of the amounts needed to meet current expenses as provided in subsections (1)-(16) , or shall meet the alternative investment guidelines contained in subsection (17). Such policies shall be structured to place the highest priority on the safety of principal and liquidity of funds. The optimization of investment returns shall be secondary to the requirements for safety and liquidity. Each unit of local government shall adopt policies that are commensurate with the nature and size of the public funds within its custody.

§ 218.415, Fla. Stat. (2017) (emphasis added). Hence, section 218.415 informs us that surplus funds investments are to be consistent with the written investment plan adopted by the governing body of the unit of local government. Governing body is defined as "the body or board in which the legislative power of a unit of local government is vested." § 218.403(6), Fla. Stat. (2017). In this case, that is the Board. Reading these statutes together, it is clear to us that the Board, as the County's governing body, has the authority to adopt an investment policy for county surplus funds that must be implemented by the Clerk. The Clerk is not the "unit of local government" authorized to have an investment policy for county surplus funds. Instead, the Clerk may only adopt an investment policy for the surplus funds of his own office.

The Board's decision to adopt the 2017 Investment Policy, directing the Clerk to implement its investment decisions from time to time, did not transfer the statutory duties of the Clerk to the Board. Under the 2017 Investment Policy, the Clerk continues to be the custodian of the County's funds, as provided under the Florida Constitution, and continues to "invest" those funds as provided in sections 218.415 and 28.33.

The trial court did not err in issuing the writ of mandamus. The investment decisions of county surplus funds do not reside with the counties in every instance. Rather, the clerk of circuit court has discretion in the investment of county surplus funds except for those surplus funds covered by a county's investment policy. In this case, the Board has directed the investment of the County's surplus funds, and the Clerk must comply with that direction.

AFFIRMED.

COHEN and EDWARDS, JJ., concur.

      The Historical and Statutory Notes for section 125.31 reads "Repealed § 125.31, which related to the investment of surplus public funds, was derived from: Similar subject matter added at § 218.415 by Laws 2000, c. 264, § 3, eff. Oct. 1, 2000."

      Section 219.075(1)(a), Florida Statutes (2017), requires that all county officers "having, receiving, or collecting any money, either for his or her office or on behalf of and subject to subsequent distribution to another officer of state or local government, while such money is in excess of that required to meet current expenses or is pending distribution, shall invest such money, without limitation, as provided in s. 218.415." Thus, the Clerk is authorized to invest his own surplus funds under his control. Cf. § 219.075(1)(c), Fla. Stat. (2017) (expressly excluding funds held as part of clerk's county-related functions).

      The Clerk did not appeal the trial court's order directing him to pay the investment advisor's fee.