author: KELLY, Judge.

text:
    GOLFROCK, LLC, a Florida limited liability company, Appellant, v. LEE COUNTY, Florida, a political subdivision of the State of Florida, Appellee.
    Case No. 2D15-2105
    District Court of Appeal of Florida, Second District.
    Opinion filed May 2, 2018
    Gregory S. Rix and S. William Moore of Moore Bowman & Rix, P.A., Tampa, for Appellant.
    Jay J. Bartlett and Jeffrey L. Hinds of Smolker, Bartlett, Loeb, Hinds & Sheppard, P.A., Tampa, and Richard Wm. Wesch, County Attorney, Fort Myers, for Appellee.
    Mark Miller and Christina M. Martin, Palm Beach Gardens, for Amicus Curiae Pacific Legal Foundation.
    BY ORDER OF THE COURT:
   Appellant's motion rehearing en banc is denied. The court's opinion filed July 7, 2017, is withdrawn sua sponte, and the following opinion is substituted for clarification. No further motions for rehearing will be entertained.

KELLY, Judge.

Appellant, GolfRock, LLC, submitted an application to Appellee, Lee County, seeking to change the zoning of a parcel of land. Complete details of what transpired in the application process are not pertinent to our disposition of this appeal. It suffices to say that Lee County amended its comprehensive plan and asked GolfRock to withdraw its application. GolfRock did not withdraw the application; however, Lee County has deemed it withdrawn so no rezoning application is presently pending.

After being asked to withdraw its application for rezoning, GolfRock filed an action for declaratory judgment against Lee County. The complaint alleged that "[i]n order to assert its private property rights under Article X, Section 6(a) of the Florida Constitution... or under the statutory protection of Section 70.001, Florida Statutes..., the 'Bert J. Harris, Jr., Private Property Rights Protection Act,' GolfRock is required to 'ripen' its claim ...." GolfRock asked the trial court to "enter a Declaratory Judgment finding that any continuation of the current zoning request is futile as a matter of law and that any claims for remedy for the injury to GolfRock's private property rights under the constitution or laws of Florida are ripe for adjudication."

Initially, Lee County moved to dismiss the complaint on several grounds. Among them, Lee County argued that the complaint failed to state a claim for declaratory relief. The trial court denied the motion and the case proceeded. Eventually, the parties filed cross-motions for summary judgment on the issue of ripeness. GolfRock's motion asked the trial court to find that "under the futility exception to the ripeness doctrine, any claim by GolfRock for a regulatory partial taking is now ripe for adjudication." Lee County argued that regardless of which type of takings claim GolfRock might eventually pursue, its claims were not ripe and the futility exception to the ripeness doctrine did not apply. The trial court agreed that GolfRock had not established its claim was ripe nor had it established "the applicability of the futility exception[ ]." It entered summary judgment in favor of Lee County.

In this appeal GolfRock challenges that determination. We need not reach the merits of that issue, however, because we conclude GolfRock's complaint did not state a cause of action for declaratory relief. As a result, the trial court lacked jurisdiction and it should have dismissed the complaint.

To state a claim for declaratory relief, the party seeking the declaration must show that he is in doubt as to the existence or nonexistence of some right, status, immunity, power, or privilege and that he is entitled to have such doubt removed. May v. Holley, 59 So.2d 636, 638-39 (Fla. 1952) ; see also § 86.011, Fla. Stat. (2013). GolfRock's complaint does not allege GolfRock is in doubt as to the existence or nonexistence of any immunity, power, privilege, status, or right. The only mention of rights anywhere in the complaint is GolfRock's assertion that it has private property rights, the existence of which is unquestioned.

GolfRock's complaint explains that to pursue a takings claim for any injury to its property rights occasioned by how Lee County handled its zoning application, it must have a final denial of the application.

It alleges it would be "prohibitively expensive" to pursue the application further, however, and that its denial is a "fait accompli." It points to the fact that Lee County's comprehensive plan, as amended while GolfRock's application was pending, no longer permits the planned use of its property. Accordingly, it asks the court to declare that its claim is ripe and that "any continuation of the current zoning request is futile as a matter of law."

Ripeness in the context of a regulatory takings claim is a prudential principle adopted by the Supreme Court that requires a plaintiff to "demonstrate that [he] has both received a 'final decision regarding the application of the [challenged] regulations to the property at issue' ... and sought 'compensation through the procedures the State has provided for doing so.' " Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 733-34, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997) (quoting Williamson Cty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186, 194, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) ). "Florida courts have adopted the federal ripeness policy of requiring a 'final determination from the government as to the permissible uses of the property.' " Taylor v. Vill. of N. Palm Beach, 659 So.2d 1167, 1173 (Fla. 4th DCA 1995) (quoting Glisson v. Alachua Cty., 558 So.2d 1030, 1034 (Fla. 1st DCA 1990) ); see also Lost Tree Vill. Corp. v. City of Vero Beach, 838 So.2d 561, 569-71, 573-75 (Fla. 4th DCA 2002).

The Supreme Court has explained the necessity of having a final decision:

A final decision by the responsible state agency informs the constitutional determination whether a regulation has deprived a landowner of "all economically beneficial use" of the property, or defeated the reasonable investment-backed expectations of the landowner to the extent that a taking has occurred. These matters cannot be resolved in definitive terms until a court knows "the extent of permitted development" on the land in question.

Palazzolo v. Rhode Island, 533 U.S. 606, 618, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (citations omitted) (quoting MacDonald, Sommer & Frates v. Yolo Cty., 477 U.S. 340, 351, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986) ). The "final decision requirement 'responds to the high degree of discretion characteristically possessed by land-use boards in softening the strictures of the general regulations they administer.' " Id. at 620, 121 S.Ct. 2448 (quoting Suitum, 520 U.S. at 738, 117 S.Ct. 1659 ). The Supreme Court has carved out what has been characterized as a limited exception in cases where further attempts to obtain approval of an application would be futile. Id. at 619-22, 121 S.Ct. 2448 ; see also Lost Tree, 838 So.2d at 573-75. As explained in Palazzolo,

[w]hile a landowner must give a land-use authority an opportunity to exercise its discretion, once it becomes clear that the agency lacks the discretion to permit any development, or the permissible uses of the property are known to a reasonable degree of certainty, a takings claim is likely to have ripened.

533 U.S. at 620, 121 S.Ct. 2448.

GolfRock's complaint does not purport to assert any type of takings claim. Rather, it asks the trial court to declare that the County's actions amount to a final decision and that any further pursuit of its application would be futile. Viewed in the context of the case law on takings, GolfRock is essentially asking the trial court to determine-in the abstract-whether it can establish an as applied regulatory takings claim. When defending its complaint, it cited no authority to support divorcing the "final decision" determination, which is at the heart of whether a party has established a takings claim, from the takings action itself. See id. at 621, 121 S.Ct. 2448 (explaining that "until these ordinary processes have been followed the extent of the restriction on property is not known and a regulatory taking has not been established ")(emphasis supplied) ); see generally MacDonald, 477 U.S. 340, 106 S.Ct. 2561, 91 L.Ed.2d 285 (linking the ability to establish a taking with the ability to show that the government has made a final determination regarding how the land may be used); see also Lost Tree, 838 So.2d at 573-76 (determining whether a complaint stated a cause of action for an as-applied regulatory takings claim based on the sufficiency of the allegations to demonstrate a final decision or alternatively to establish that further applications were futile).

GolfRock has utterly failed to explain how this is an appropriate claim for declaratory relief. The complaint does not allege, even in a perfunctory fashion, that GolfRock is in doubt regarding the existence of a right, power, privilege, or immunity as required to invoke the trial court's jurisdiction to render a declaratory judgment. Nor has GolfRock argued its complaint can somehow be construed to satisfy that requirement. GolfRock does not claim it is in doubt regarding the existence of its property rights, nor does it say it is in doubt regarding the effect of the amended comprehensive plan on the land use it had proposed in its now withdrawn rezoning application. While the declaratory judgment act is intentionally broad, it does have limits-one of which is that courts will not render advisory opinions or give legal advice. See May, 59 So.2d at 639. Because GolfRock has not met its burden to demonstrate how its complaint is sufficient to meet the jurisdictional requirements of the declaratory judgment act, we reverse the final summary judgment and remand with directions to the trial court to dismiss the action.

Reversed and remanded.

LaROSE, C.J., and BADALAMENTI, JJ., Concur.


source: Caselaw Access Project

author: Jay, J.

license: Public Domain

text:
    Yvette D. QUILLEN, former wife, Appellant, v. William E. QUILLEN, former husband, Appellee.
    No. 1D17-1032
    District Court of Appeal of Florida, First District.
    May 3, 2018
    William S. Graessle and Jonathan W. Graessle of William S. Graessle, P.A., Jacksonville, for Appellant.
    Michael J. Korn of Korn & Zehmer, P.A., Jacksonville; and Homer A.C. Bliss of Homer A.C. Bliss, P.A., Jacksonville, for Appellee.
   Jay, J.

Yvette D. Quillen ("former wife") appeals the trial court's order dismissing her Supplemental Petition for Modification and Amended Motion for Civil Contempt and Enforcement. The trial court determined-based on the "four corners" of the parties' Consent Final Judgment of Dissolution of Marriage and its "clear and unambiguous" language-that the alimony obligation of William E. Quillen ("former husband") terminated once the parties' youngest child reached the age of majority. Thus, it dismissed the former wife's original Motion for Civil Contempt and Enforcement. In addition-because it concluded there were "no outstanding alimony obligations"-the trial court held that the former wife's Supplemental Petition for Modification and Amended Motion for Civil Contempt and Enforcement were "moot and therefore dismissed." For the reasons that follow, we reverse and remand for further proceedings.

I.

Before reaching the merits of this appeal, we must first address the procedural posture of the case as it existed below. It is necessary that we do so to address the events that led to the trial court's decision to grant the motion to dismiss the motion for civil contempt and enforcement.

A.

In November 2016, the former wife filed her Motion for Civil Contempt and Enforcement.

In her motion, the former wife alleged that a Consent Final Judgment of Dissolution of Marriage (alternatively, "CFJ") had been approved and entered on May 2, 2003, obligating the former husband to pay her $500 per month in alimony, while requiring the former wife to pay the former husband $500 per month in child support. She further asserted that the provisions of the CFJ addressing alimony and child support provided that the former husband's alimony obligation would be offset by the former wife's support obligation "and vice versa." The former wife then alleged that the parties' youngest child had reached the age of majority in September 2011, "thereby eliminating any claim to an offset of the alimony obligation owed to the Former Wife."

Accordingly, the former wife claimed that the former husband's alimony obligation had remained "fully due since October, 2011" through the date of the former wife's motion, yet the former husband failed to honor that obligation. Therefore, the former wife contended that she was entitled to recover the accrued alimony arrearage from the former husband, as well as ongoing monthly alimony in the amount awarded in the CFJ. She also alleged that the former husband should be held in contempt for his failure to meet his monthly alimony obligation. The CFJ was not appended to the motion.

"Motions" in family practice matters are controlled by Florida Family Law Rule of Procedure 12.100(b), which has its counterpart in Florida Rule of Civil Procedure 1.100(b). Rule 12.100(b) provides that "[a]n application to the court for an order must be made by motion which must ... state with particularity the grounds therefor, and must set forth the relief or order sought." It is a tenet of motion practice that-while written responses to motions are not required-when the non-moving party opposes a motion, it may file a response or a memorandum of law in opposition to the motion. See generally The Florida Bar Continuing Legal Education Materials, Florida Civil Trial Preparation: Motion Practice (Eighth ed. 2017).

In the present case, however, the former husband did not file a response or a memorandum of law in opposition to the former wife's motion. Instead, he filed a "motion to dismiss" the former wife's motion, arguing that the plain and unambiguous language of the CFJ established that no alimony obligation existed once the youngest child reached the age of majority and the former wife's child support obligation ceased. In essence, then, the former husband filed a defensive motion. But defensive motions are-by rule-directed only to pleadings . See Philip J. Padovano, 5 West's Florida Practice Series, Civil Practice § 7:27 (2017-18 ed.) ("[A] party may move to dismiss a pleading if the motion to dismiss asserts a defense that can be raised by motion ...."). And, more pertinent to the present discussion, "a motion is not a pleading." Bruce J. Berman & Peter D. Webster, 4 West Florida Practice Series, Civil Procedure § 1.100:6 (April 2017) (footnote omitted); see also Boca Burger, Inc. v. Forum , 912 So.2d 561, 567 (Fla. 2005) ("[A] motion to dismiss is not a 'responsive pleading' because it is not a 'pleading' under the rules. See Fla. R. Civ. P. 1.100(a)."); Green v. Sun Harbor Homeowners' Ass'n , 730 So.2d 1261, 1262-63 (Fla. 1998) (correcting a statement that the term "pled" included filing motions); Viering v. Fla. Comm'n on Human Relations , 128 So.3d 967, 969-70 (Fla. 1st DCA 2013) ("Motions are not pleadings."); N.S. v. Dep't of Children & Families , 119 So.3d 558, 561 (Fla. 5th DCA 2013) (emphasis in original) ("It is well settled that '[a] motion is not a pleading.' " (quoting Sardon Found. v. New Horizons Serv. Dogs, Inc. , 852 So.2d 416, 421 (Fla. 5th DCA 2003) ) ).

Instead, Florida Family Law Rule of Procedure 12.140(b), as does its equivalent in Florida Rule of Civil Procedure 1.140(b), requires "[e]very defense in law or fact to a claim for relief in a pleading must be asserted in the responsive pleading, if one is required, but the following responses may be made by motion at the option of the pleader: ... (6) failure to state a cause of action ...." (Emphasis added.) In the best light, the former husband's motion to dismiss might be viewed as moving to dismiss for failure to state a cause of action. But it nonetheless remained a motion to dismiss a motion-not a pleading-and, therefore, it was not an authorized response to the former wife's motion under the applicable rules.

In the time between the former husband's service of his motion to dismiss and the trial court's entry of its currently order on appeal, the former wife filed her Supplemental Petition for Modification and Amended Motion for Civil Contempt and Enforcement. Florida Family Law Rule of Procedure 12.110(d), entitled "Pleadings," provides that "[w]hen the nature of an action permits pleadings subsequent to final judgment and the jurisdiction of the court over the parties has not terminated, the initial pleading subsequent to final judgment must be designated a supplemental petition." In paragraph 10 of the CFJ, it was agreed that the trial court would "retain jurisdiction to enforce, and where appropriate, to modify the terms hereof upon application by either party for enforcement or modification of any provision of the consent final judgment herein." As part of the order granting the motion to dismiss, the former wife's Supplemental Petition for Modification was also dismissed.

B.

We now turn our focus to the merits of the appeal.

After nineteen years of marriage, the former wife filed a Petition for Dissolution of Marriage in June 2002. Among other things, the former wife sought entitlement "to alimony: temporary, permanent periodic, lump sum and rehabilitative." Three children were born of the marriage, but by that point, only two remained minors. Following mediation in 2003, the parties executed, and the trial court approved, the CFJ. Under the terms of the CFJ, the parties were awarded shared parental responsibility, but the former husband was designated the primary residential custodian. In terms of child support and alimony, the CFJ made the following provisions in paragraphs 4 and 7, respectively:

4. CHILD SUPPORT: The parties agree that under the Child Support Guidelines and facts of this case, the Wife's child support obligation for the two remaining minor children ... is and shall be $500.00 per month. Said child support shall be payable by the Wife directly to the Husband on the first day of the month following the entry of this Consent Final Judgment. Due to the Husband's alimony obligation, as specified below, the parties agree that it will be unnecessary for the Wife to make actual payment of her child support obligation to the Husband. In other words, the child support obligation and alimony obligation shall offset each other on a dollar for dollar basis. The Husband waives any right or entitlement to retroactive child support.
....
7. ALIMONY: The parties agree that under the facts of this case, the Husband's alimony obligation is and shall be $500.00 per month. Said obligation shall be payable by the Husband directly to the Wife on the first day of the month following the entry of this Consent Final Judgment. Due to the Wife's child support obligation, as specified above, the parties agree that it will be unnecessary for the Husband to make actual payment of his obligation to the Wife. In other words, the child support obligation and alimony obligation shall offset each other on a dollar for dollar basis. The Wife waives any right or entitlement to retroactive [temporary] alimony.

(Emphasis added.)

In her supplemental petition, the former wife noted that all three of the parties' children had reached the age of majority, and based on their majority status, she asked the trial court to terminate her child support obligation under section 61.13(1)(a)2., Florida Statutes. She went on to allege that there had been "multiple substantial changes of circumstances" since the entry of the CFJ, including (1) the former wife's chronic illnesses hindering her ability to find employment and placing "significant limitations on the type of work she [could] perform"; (2) the former wife's collecting disability and workers' compensation benefits; (3) the former wife's belief that the former husband owned several businesses and that his income had increased significantly, thereby requiring the court's reevaluation of his ability to pay and the amount of alimony; and (4) the former wife's having not received a single payment of alimony from the former husband as contemplated under the terms of the CFJ, resulting in her inability "to make ends meet [and] afford basic necessities" and causing her to run "a significant [monthly] deficit." Based on the foregoing, the former wife requested an order modifying the CFJ to terminate child support and "provide for an upward shift and modification of the alimony obligation."

The Amended Motion for Civil Contempt and Enforcement, contained in the petition under separate heading, recognized that the parties had been married for nineteen years and, therefore, the marriage was presumptively long-term. It averred that the former husband had owed the former wife monthly alimony of $500 since October 2011-after the parties' youngest child reached the age of majority-but had willfully failed to pay alimony to her while having the ability to do so, entitling her to recover the alimony arrearage and to receive ongoing and future alimony. The former wife therefore moved the court to hold the former husband in contempt.

Subsequently, after a hearing was held on the former husband's Motion to Dismiss, the trial court entered its Order Granting Motion to Dismiss in February 2017. In its order, the court arrived at the following pertinent "conclusions of law":

C. The Court in its review of the Consent Final Judgment finds that this was an agreement made between the parties and there is no language contained in the Consent Final Judgment that could reasonably be construed to extend the alimony obligation beyond the time the [sic] child support obligation, which ended by operation of law.
D. The Court is confined to the four corners of the Consent Final Judgment when the language is clear and unambiguous, which it is in this case.
E. Counsel for the Former Wife argues that the alimony obligation should outlast the child support obligation; however, there is no language in the Consent Final Judgment to that effect.
F. The Court also notes that the former Wife's child support obligation ceased several years ago and she has not previously filed anything to enforce any outstanding obligation against the Former Husband until the most recent Motion for Contempt.
G. Because the court finds there is no outstanding alimony obligations, the Former Wife's Supplemental Petition for Modification and Amended Motion for Civil Contempt is moot and therefore dismissed.

The former wife raises four points on appeal addressing the foregoing conclusions of law. Our analysis follows.

II.

In acting on the former husband's motion to dismiss, the trial court considered its review confined to the "four corners" of the CFJ. That four corners analysis effectively restricted the trial court's consideration to the terms of the CFJ. For clear and unambiguous agreements, the trial court's approach is in keeping with the governing principles of contractual interpretation in Florida. See Crawford v. Barker , 64 So.3d 1246, 1255 (Fla. 2011) ("Where the terms of a contract are clear and unambiguous, the parties' intent must be gleaned from the four corners of the document."). In domestic law, the rule of construction is the same. As we expressed in Avellone v. Avellone , 951 So.2d 80 (Fla. 1st DCA 2007) :

A marital settlement agreement is a contract subject to interpretation like any other contract. Delissio v. Delissio , 821 So.2d 350, 353 (Fla. 1st DCA 2002).... Where an agreement's terms are unambiguous , a court must treat the written instrument as evidence of the agreement's meaning and the parties' intention. Id. A court must not isolate a single term or group of words and read that part in isolation. Id. Rather, the goal is to arrive at a reasonable interpretation of the text of the entire agreement in order to accomplish the agreement's stated meaning and purpose. Id.

951 So.2d at 83 (emphasis added). To the extent our review is informed solely by the terms of the CFJ-the equivalent of a settlement agreement-our standard of review is de novo. Rosenthal v. Rosenthal , 199 So.3d 541, 542 (Fla. 1st DCA 2016) ("Interpretation of marital settlement agreements is subject to de novo review, just as any other contract interpretation is, at least in the absence of parol evidence." (quoting Graham v. Graham , 123 So.3d 625, 627 (Fla. 1st DCA 2013) ) ). Furthermore, "[i]nterpretation of a marital settlement agreement as with a contract is a matter of law putting the appellate court on equal footing with the trial court as interpreter of the written document." Ballantyne v. Ballantyne , 666 So.2d 957, 958 (Fla. 1st DCA 1996).

Other principles are equally fundamental to our current inquiry. "A settlement agreement should not be disturbed unless found to be ambiguous or in need of clarification, modification, or interpretation." Id. ; accord Elbaum v. Elbaum , 141 So.3d 658, 661 (Fla. 4th DCA 2014). If there is no ambiguity, the parties are bound by the terms of their agreement. Ballantyne , 666 So.2d at 959. "As with any contract, the starting point is the language of the agreement." Graham v. Graham , 123 So.3d 625, 627-28 (Fla. 1st DCA 2013) (citing Duval Motors Co. v. Rogers , 73 So.3d 261, 265 (Fla. 1st DCA 2011) ). A "contract should be considered as a whole, not in its isolated parts." Maines v. Davis , 491 So.2d 1233, 1235 (Fla. 1st DCA 1986).

Here, the trial court reviewed the relevant language of the CFJ and judged it unambiguous: "Counsel for the Former Wife argues that the alimony obligation should outlast the child support obligation; however, there is no language in the Consent Final Judgment to that effect." Our independent review of the same language, however, persuades us to conclude just the opposite; the relevant terms concerning the former wife's right to continuing alimony are ambiguous. To be sure, paragraph 4 obliged the former wife to pay to the former husband monthly child support of $500; and paragraph 7 obliged the former husband to pay to the former wife monthly alimony in the same amount. And it is equally clear under the terms of these interrelated paragraphs that the parties intended their respective obligations would offset each other dollar for dollar, so that neither party would have to pay the other anything so long as the former wife's child support obligation existed. But beyond that-once the former wife's child support obligation ended-the parties' intent regarding the continuation of the former husband's monthly alimony obligation is not so certain. It is at this point that the agreement ceases to dovetail.

On the one hand, paragraph 7 opens with the indisputable decree that the former husband's "alimony obligation is and shall be $500 per month." The emphasized language suggests both a present and a future alimony obligation. But, in contrast, the express offsets arguably mark an ending point to both obligations of child support and alimony. Moreover, paragraph 7 lacks any definition of the form of alimony awarded the former wife, e.g., temporary, rehabilitative, or permanent. Nor is there any verbiage indicating what would happen to the former husband's alimony obligation upon either of the contingencies of the former wife's remarriage or her death. Thus, while in operation, the language of paragraphs 4 and 7 unmistakably mean one thing, we conclude that upon the event of the parties' youngest child having reached the age of majority in 2011, any implicit consensus as to the intent of paragraph 7 vanishes. In this regard, we conclude that the CFJ contains a latent ambiguity.

"A latent ambiguity arises 'where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings." Toussaint v. Toussaint , 107 So.3d 474, 477 (Fla. 1st DCA 2013) (quoting Duval Motors Co. , 73 So.3d at 265 n.2 ); see also Taylor v. Taylor , 183 So.3d 1121, 1122 (Fla. 5th DCA 2015) ("A latent ambiguity exists where the language of an agreement is facially clear but an extrinsic fact or extraneous circumstance creates a need for interpretation or reveals an insufficiency in the contract or a failure to specify the rights or duties of the parties in certain situations.").

The present agreement illustrates just such "an insufficiency in the contract or a failure to specify the rights or duties of the parties in certain situations." Taylor , 183 So.3d at 1122. Paragraphs 4 and 7 contain no compass to guide the parties once the support and alimony offsets were no longer operative. Moreover, the fact that the parties "read the same document and came to opposite, but equally reasonable conclusions, confirms the document's latent ambiguity." Toussaint , 107 So.3d at 479. Consequently, we hold that the trial court erred when it found that the alimony obligations of the CFJ were unambiguous. Under the circumstances, parol evidence would be admissible " 'to explain, clarify or elucidate the ambiguous term[s].' " Id. at 477 (quoting Strama v. Union Fid. Life Ins. Co. , 793 So.2d 1129, 1132 (Fla. 1st DCA 2001) ).

III.

We reverse the trial court's Order Granting Motion to Dismiss, including its dismissal of the former wife's Supplemental Petition for Modification. We remand the case with instructions for the trial court to permit the parties to present parol evidence to resolve the latent ambiguity concerning their intent in drafting paragraphs 4 and 7. The trial court is directed to reconsider the former wife's Supplemental Petition for Modification, as well as her Amended Motion for Civil Contempt and Enforcement.

REVERSED and REMANDED for further proceedings, with instructions.

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

      Because the Order Granting Motion to Dismiss "constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected," it is a final order subject to plenary appeal. See S.L.T. Warehouse Co. v. Webb , 304 So.2d 97, 99 (Fla. 1974) (footnote omitted); see also Bucsit v. Bucsit , 229 So.3d 430, 431 n.1 (Fla. 1st DCA 2017) ("[T]he orders entered in modification proceedings have all of the aspects of final judgments. We therefore conclude that they are final judgments, subject to motions for rehearing under Florida Rule of Civil Procedure 1.530(a), and appealable as plenary appeals." (quoting Roshkind v. Roshkind , 717 So.2d 544, 544 (Fla. 4th DCA 1997) ) ).

      The transcript of the hearing, if one exists, is not contained in the Record on Appeal. Its absence significantly hinders our review to the extent that we are unable to ascertain which arguments now presented on appeal are preserved by their having first been argued before the trial court. See Rose v. Clements , 973 So.2d 529, 530 (Fla. 1st DCA 2007) (holding that "[d]ue to the insufficient record, this court is unable to determine on what basis, if any, Appellants argued against the motion for summary judgment because the hearing on this motion was not recorded. Thus, this court is unable to review the factual or legal basis for the trial court's decision."). However, with the exception of the former husband's raising in his Answer Brief the doctrine of laches directed to the five years the former wife waited after her youngest child reached the age of majority before filing her petition-which argument the former wife asserted in her Reply Brief was not specifically argued below-we are confident that the parties and the judge were occupied primarily with ascertaining the meaning of paragraphs 4 and 7 of the CFJ.

      We take this opportunity to reiterate that, under paragraph 10 of the CFJ, the trial court retained jurisdiction to enforce or modify any of its provisions. The law is well settled that " 'the statutory right to modification, unless specifically waived, is incorporated as a matter of law in any agreement or judgment providing for alimony.' " Rosenthal v. Rosenthal , 199 So.3d 541, 542 (Fla. 1st DCA 2016) (quoting Harmon v. Harmon , 629 So.2d 1011, 1012 (Fla. 4th DCA 1993) ). As evidenced by the express terms of paragraph 10, the former wife did not waive her right to seek modification of the CFJ.


author: CASANUEVA, Judge.

text:
    Michael J. DENINO and Vincenza Abbate-Denino, Appellants/Cross-Appellees, v. Anna ABBATE, Appellee/Cross-Appellant.
    Case No. 2D16-2137
    District Court of Appeal of Florida, Second District.
    Opinion filed May 4, 2018.
    Odelsa Flores-Dickman and Andrew W. Dickman of Dickman Law Firm, Naples, for Appellants/Cross-Appellees.
    Scott R. LeConey of Swaine & Harris, P.A., Lake Placid, for Appellee/Cross-Appellant.
   CASANUEVA, Judge.

Michael J. Denino and Vincenza Abbate-Denino appeal the trial court's order denying their amended motion seeking sanctions against Anna Abbate. The trial court denied the motion on procedural grounds in reliance on Matte v. Caplan, 140 So.3d 686 (Fla. 4th DCA 2014). Because this court subsequently rejected the reasoning in Matte, we reverse the trial court's order and remand for further proceedings. See Isla Blue Dev., LLC v. Moore, 223 So.3d 1097 (Fla. 2d DCA 2017) ; Boatright v. Philip Morris USA Inc., 218 So.3d 962 (Fla. 2d DCA 2017). In light of this disposition, we decline to address the issues raised by Mrs. Abbate's cross-appeal.

This case was commenced by Anna Abbate, the mother of Vincenza Abbate-Denino. Initially, she sued her daughter and son-in-law alleging that they fraudulently caused her to sign a deed conveying an interest in a home to them. She alleged that they duped her by telling her that the deed was a healthcare-related document. Later, in a deposition, she withdrew that allegation. Following the deposition, the Appellants served Mrs. Abbate's counsel with a motion and notice pursuant to section 57.105, Florida Statutes (2014), asserting that the complaint was frivolous and demanding that the lawsuit be dismissed.

The section 57.105(4) statutory notice, sometimes called a safe harbor notice, was sent to Mrs. Abbate's counsel via email on September 12, 2014. On October 24, 2014, Mrs. Abbate moved to amend the operative complaint to assert a different misrepresentation. This action was taken outside the twenty-one-day safe harbor period set forth in section 57.105, and the Appellants moved for statutory sanctions. However, Mrs. Abbate asserted that the Appellants could not prevail because the motion for sanctions was not served in compliance with the strict email service requirements set forth in Florida Rule of Judicial Administration 2.516. The argument was based on the Fourth District's decision in Matte, which applied the email service requirements of rule 2.516 to service of a motion for purposes of section 57.105(4)'s safe harbor notice.

Following a bench trial on the amended complaint, the trial court granted the Appellants' motion for involuntary dismissal. At the sanctions hearing, the trial court properly observed that this court had not yet ruled on whether rule 2.516 applied to a section 57.105 motion served to provide the required safe harbor notice. The only issued opinion on the subject was Matte. Because this court had not opined on this issue, the trial court was again correct in concluding that it was required to follow the only existing appellate decision on the issue. See Pardo v. State, 596 So.2d 665, 666 (Fla. 1992) ("[I]n the absence of interdistrict conflict, district court decisions bind all Florida trial courts." (citing Weiman v. McHaffie, 470 So. 2d 682, 684 (Fla. 1985) ) ); Miller v. State, 980 So.2d 1092, 1094 (Fla. 2d DCA 2008) ("[B]ecause the district courts of appeal in Florida are intended to be courts of final appellate jurisdiction, the opinion of a district court is binding on all trial courts in the state."). Noting that Mrs. Abbate had actual notice of the motion, the trial court nonetheless reluctantly denied the amended motion for sanctions based on the holding in Matte.

Since that time, this court has weighed in on the issue. Relying in part on this court's decision in Boatright, 218 So.3d at 967, this court held in Isla Blue Development, 223 So.3d at 1099, "that the email service requirements of rule 2.516(b)(1) do not apply" to a motion filed as part of the section 57.105(4) safe harbor notice. Accordingly, we reverse the trial court's order denying sanctions and remand for further proceedings for the trial court to determine whether the Appellants are able to establish a legal entitlement for fees against any party and, if so, to hold an appropriate evidentiary hearing to establish the amount and liability for such an award. We do not read the trial court's order as having addressed the latter domain.

As we did in Isla Blue Development, we certify conflict with Matte v. Caplan, 140 So.3d 686 (Fla. 4th DCA 2014), in which the Fourth District applied the email requirements of rule 2.516 to a section 57.105 motion served to provide the required safe harbor notice.

Reversed and remanded with instructions; conflict certified.

CRENSHAW and SLEET, JJ., Concur.

      Section 57.105(4) states: "A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected."

      The Appellants later amended their motion to add another basis for sanctions.


author: EMAS, J.

text:
    OBSESSIONS IN TIME, INC., et al., Appellants, v. JEWELRY EXCHANGE VENTURE, LLLP, Appellee.
    No. 3D16-2620
    District Court of Appeal of Florida, Third District.
    Opinion filed May 9, 2018
    Mansfield, Bronstein & Stone, LLP, and David Stone, Gary N. Mansfield, Ariane Wolinsky (Fort Lauderdale), for appellants.
    Stok Folk + Kon, and Robert A. Stok and Natasha Shaikh, Aventura, for appellee.
    Before SALTER, EMAS and LINDSEY, JJ.
   EMAS, J.

Appellants, Obsessions in Time, Inc. and Marc Shaffman ("Obsessions"), appeal the trial court's order dismissing their third amended complaint with prejudice. Because we conclude the exculpatory clause in the lease agreement is ambiguous and unenforceable, we reverse the order of dismissal.

FACTS AND PROCEEDINGS BELOW

In May 2009, Obsessions leased a booth from Jewelry Exchange Venture, LLLP ("Jewelry Exchange") to sell classic watches and other valuable items. Jewelry Exchange provided a master safe in which Obsessions had the option to store their valuable items. The lease agreement, prepared by Jewelry Exchange, required that all valuables must be in the vault within one hour of closing. In addition, paragraph 37 of the lease states in relevant part as follows:

In making this lease, it is hereby agreed that lessor does not assume the relations and duty of bailee and shall not be liable for any loss or damage to the contents of the vault within the premises caused by burglary, fire, or any cause whatsoever, but that the entire risk of such loss or damage is assumed by the lessee. The lessor shall not be liable for any delay caused by failure of the vault doors to lock, unlock or otherwise operate and the sole liability of the lessor hereunder is limited to the exercise of ordinary care to prevent the opening of said vault or boxes contained therein by any person other than lessee or the authorized agent of the lessee.

Obsessions alleged that an employee of Jewelry Exchange allowed an unauthorized individual to access and remove Obsessions' items, which were stored in the master safe, resulting in a loss in excess of $2 million. Obsessions filed suit and, following several amendments, the operative Third Amended Complaint asserted claims against Jewelry Exchange for breach of contract (Count VIII) and negligence (Count IX). Jewelry Exchange moved to dismiss the Third Amended Complaint and, following a hearing, the trial court granted the motion and dismissed these claims with prejudice. The trial court later denied Obsessions' motion for rehearing, and this appeal followed.

ANALYSIS

We review de novo an order granting a motion to dismiss for failure to state a cause of action. Morin v. Fla. Power & Light Co., 963 So.2d 258, 260 (Fla. 3d DCA 2007).

On appeal, Obsessions contends that, contrary to the trial court's determination that the exculpatory clause in the lease agreement is clear and unambiguous, the clause is in fact ambiguous, and thus, unenforceable. We agree. As the Florida Supreme Court has observed:

Public policy disfavors exculpatory contracts because they relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss.

Sanislo v. Give Kids the World, Inc., 157 So.3d 256, 260 (Fla. 2015) (citations omitted).

Because exculpatory provisions are viewed with disfavor, "Florida law requires that such clauses be strictly construed against the party claiming to be relieved of liability." Sunny Isles Marina, Inc. v. Adulami, 706 So.2d 920, 922 (Fla. 3d DCA 1998). To be enforceable, the language of the exculpatory provision must be clear, unambiguous and unequivocal:

Exculpatory clauses are unambiguous and enforceable where the intention to be relieved from liability was made clear and unequivocal and the wording was so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away.

Sanislo, 157 So.3d at 260-61. See also Gayon v. Bally's Total Fitness Corp., 802 So.2d 420, 421 (Fla. 3d DCA 2001) (the wording of an exculpatory clause must be so clear and understandable that "an ordinary and knowledgeable person will know what he is contracting away").

The exculpatory provision in the instant case fails to meet this standard. The lease agreement provides in relevant part:

In making this lease, it is hereby agreed that lessor does not assume the relations and duty of bailee and shall not be liable for any loss or damage to the contents of the vault within the premises caused by burglary, fire, or any cause whatsoever, but that the entire risk of such loss or damage is assumed by the lessee . The lessor shall not be liable for any delay caused by failure of the vault doors to lock, unlock or otherwise operate and the sole liability of the lessor hereunder is limited to the exercise of ordinary care to prevent the opening of said vault or boxes contained therein by any person other than lessee or the authorized agent of the lessee.

(Emphasis added).

As can be seen, these two highlighted and juxtaposed portions create an ambiguity:

- The lessor "shall not be liable for any loss or damage to the contents of the vault within the premises caused by burglary, fire, or any cause whatsoever ...."
- "[T]he sole liability of the lessor hereunder is limited to the exercise of ordinary care to prevent the opening of said vault or boxes contained therein by any person other than lessee or the authorized agent of the lessee.

Although the first provision plainly appears to relieve Jewelry Exchange of any liability, the second provision plainly appears to impose liability should Jewelry Exchange fail to exercise ordinary care to prevent unauthorized access to the vault and boxes. These two provisions within the same paragraph of the lease agreement are not reconcilable, and render the exculpatory clause unclear, equivocal and ambiguous. We also conclude, following our review of the entire lease agreement, that none of its remaining provisions renders this conflicting language clear, unequivocal or unambiguous.

In Adulami, 706 So.2d at 922, this court affirmed the trial court's order finding an exculpatory clause ambiguous and unenforceable. Sunny Isles Marina owned and operated a marina and dry storage facility. Id. at 921. Adulami and other plaintiffs owned boats and stored them at Sunny Isles Marina pursuant to a boat storage agreement. Id. A fire broke out at the facility, causing damage to several boats, including Adulami's. Id. Adulami and other boat owners filed insurance claims, alleging that the fire was the result of Sunny Isles' improper installation, maintenance, and use of a portable battery charging system aboard one of the boats. Id. Sunny Isles filed a declaratory judgment action, seeking a determination that it was relieved of all liability based upon the exculpatory clause contained in the boat storage agreement entered into with the boat owners. Id. That exculpatory clause provided in pertinent part:

7. RISK OF LOSS. The assigned space shall be occupied at the sole risk of the Owner. Owner agrees that the Marina is not the insurer of the Boat.... The Marina shall not be liable in any way for any loss or damage sustained by Owner or anyone claiming by, through or under Owner which arises out of any cause not attributable to the willful gross negligence of the Marina, nor shall the Marina be liable for any loss or damage to the Boat, its equipment or property stored thereon, due to fire, theft, vandalism, collision, Marina equipment failure, wind storm, rain, hurricane or other casualty loss. Personal property aboard the Boat is stored at the sole risk of Owner for loss from any cause.
8. INDEMNIFICATION. The Owner hereby waives any right it has to claim any damages or other loss or liability from the Marina, its employees or agents arising out of any accident, fire, or other casualty about the Marina, whether the same results from any act or neglect of the Marina or any occupant, invitee, guest or other persons in or about the Marina.
Owner agrees to indemnify the Marina against all claims, actions, liability and damages, including attorney's fees, whether claimed by the owner, its guests, family, employees, agents or other third parties, arising out of the Owner's possession and use of the storage space and other facilities of the Marina.
Owner agrees to indemnify the Marina from and against any claim, suit, loss, liability or costs, including attorney's fees, arising out of, or resulting from, any use, operation or occupancy of the Boat by Owner or anyone claiming by, through or under Owner.

Id. (Emphasis added.)

In affirming the trial court's dismissal of Sunny Isles' declaratory action, we noted the manifest ambiguity when reading paragraphs seven and eight in pari materia, and held the exculpatory clause was unenforceable:

On the one hand, section seven of the Sunny Isles boat storage agreement purports to absolve Sunny Isles of liability for any actions except willful gross negligence. On the other hand, paragraph eight of the agreement purports to absolve Sunny Isles from any form of negligence (be it simple or gross).
Further, not only do paragraphs seven and eight conflict with each other, we also note a fatal ambiguity within paragraph seven's language. This paragraph first says that Sunny Isles is not liable for any loss not attributable to its willful gross negligence, but it also says that Sunny Isles is not liable for any loss due to fire, theft, vandalism, collision, etc. Thus, if there was damage to property due to, for example, theft, and that theft was caused by the willful gross negligence of Sunny Isles, it is unclear which clause of that sentence in paragraph seven would prevail; the one which says Sunny Isles can be liable, or the one which says Sunny Isles cannot be liable. The next sentence of paragraph seven, which states that personal property aboard the boat is stored at the sole risk of the owner for loss from any cause, creates a similar ambiguity.
Because of the ambiguity caused by the conflict of paragraphs seven and eight, and the internal conflict within paragraph seven, we find that an ordinary and knowledgeable party would not know what he or she is contracting away in this regard.

Id. at 922.

In Murphy v. Young Men's Christian Association of Lake Wales, Inc., 974 So.2d 565 (Fla. 2d DCA 2008), Murphy brought a personal injury action, alleging negligence against the YMCA. The trial court entered summary judgment in favor of the YMCA based upon a membership application signed by Murphy, purporting to release YMCA from all liability and all claims, including those based on negligence. Id. at 566. That release provided in pertinent part:

I am an adult over 18 years of age and wish to participate in Lake Wales Family YMCA activities. In addition I give my children permission to participate in Lake Wales Family YMCA activities. I understand that even when every reasonable precaution is taken, accidents can sometimes still happen. Therefore, in exchange for the YMCA allowing me to participate in YMCA activities, I understand and expressly acknowledge that I release the Lake Wales Family YMCA and its staff members from all liability for any injury, loss or damage connected in any way whatsoever to my (or my children's) participation in YMCA activities, whether on or off the YMCA's premises. I understand that this release includes any claims based on negligence , action or inaction of the Lake Wales Family YMCA, its staff, directors, members and guests. I have read and am voluntarily signing this authorization and release.

Id. (emphasis added).

The Second District reversed, finding the exculpatory clause ambiguous and unenforceable:

We recognize that the waiver in the instant case does specifically state that the YMCA is not liable for "any claims based on negligence." However, the waiver also suggests that the YMCA will take "every reasonable precaution" against accidents. Confusion results from the juxtaposition of the "every reasonable precaution" provision with the provision for the release of "any claims based on negligence." A reasonable reader might be led to believe that the waiver of liability extends only to claims for injuries that were unavoidable "even when every reasonable precaution" had been taken by the YMCA. In light of the "every reasonable precaution" language, the waiver does not clearly and unequivocally release the YMCA from liability and is therefore not enforceable.

Id. 568-69.

In Brooks v. Paul, 219 So.3d 886 (Fla. 4th DCA 2017), the Fourth District similarly reversed a summary judgment upon a finding that the exculpatory clause contained in a release form was ambiguous. In Brooks, plaintiff filed suit alleging her doctor and other medical providers were negligent during a spinal fusion surgery. Defendants moved for summary judgment based upon an exculpatory clause in the release executed by plaintiff prior to surgery. That clause read:

As of January 1, 2003, Dr. Michael D. Paul, and the professional corporation of MacMillan, Paul and Burkarth, P.A., also known as Treasure Coast Neurosurgery, will not carry any medical malpractice insurance. Being of sound mind and sound body, I hereby acknowledge this fact and agree not to sue Dr. Michael D. Paul, or the professional corporation of MacMillan Paul and Burkarth, P.A. for any reason. My reason for doing this is that I realize that Dr. Michael D. Paul and his staff will do the very best to take care of me according to community medical standards.

Id. at 887 (emphasis added).

The trial court entered summary judgment in favor of the defendants. The Fourth District reversed, holding that "[t]he third sentence, which qualifies the first two sentences , creates an ambiguity. Indeed, if the defendants intended to be released from their own negligence, it begs the question as to why the third sentence is included in the release." Id. at 891.

Turning to the instant case, if (as appellee urges) the exculpatory clause was intended to relieve lessor/appellee from all liability for loss or damage, regardless of its nature or cause, it begs the question of why that same clause would include this phrase: "the sole liability of the lessor hereunder is limited to the exercise of ordinary care to prevent the opening of said vault or boxes contained therein by any person other than lessee or the authorized agent of the lessee." As our sister court observed in construing a similarly ambiguous exculpatory clause:

By their own choice of language, appellees agreed to take reasonable precautions to assure [the child's] safety. This duty to undertake reasonable care expressed in the first part of the provision would be rendered meaningless if the exculpatory clause absolved appellees from liability. We cannot ignore this language because all terms of a contract provision must be read as a whole to give every statement meaning. Construing the exculpatory clause as a whole, appellees' release from liability rests on their exercise of reasonable care to ensure [the child's] safety and good health. Whether appellees fulfilled this duty is a factual question which the trial court must resolve.

Goyings v. Jack & Ruth Eckerd Found., 403 So.2d 1144, 1146 (Fla. 2d DCA 1981), disapproved on other grounds by Sanislo, 157 So.3d at 271.

CONCLUSION

In a single clause, Jewelry Exchange purported to absolve itself of all liability for loss or damage while at the same time agreeing that its "sole liability" was "limited to the exercise of ordinary care to prevent the opening of the vault by any person other than lessee or the authorized agent of the lessee." As in Murphy, Brooks and Goyings, this latter provision would be rendered meaningless if we were to construe the exculpatory clause to absolve Jewelry Exchange of all liability. We hold that the exculpatory clause is ambiguous: While purporting to relieve Jewelry Exchange of all liability, the exculpatory clause concurrently imposes a duty upon Jewelry Exchange to exercise ordinary care to prevent the unauthorized opening of the vault or boxes, and potential liability if Jewelry Exchange failed to exercise such care. Thus, the trial court erred in entering its final order of dismissal with prejudice.

We reverse the final judgment of dismissal and remand this cause to the trial court for further proceedings consistent with this opinion.

      The trial court's order dismissed with prejudice all claims against Jewelry Exchange and was therefore an appealable partial final judgment. See Fla. R. App. P. 9.110(k) (providing: "If a partial final judgment totally disposes of an entire case as to one party, it must be appealed within 30 days of rendition"). Obsessions also sued the individual who allegedly stole the items from the safe, Michael Fisher, and his company, Timepiece Collection, LLC, alleging nine additional counts. The claims against those defendants were dismissed without prejudice, and remain pending below in a subsequently-filed Fourth Amended Complaint.

      Because we reverse the trial court's order on this ground, we need not address the other arguments raised on appeal.


author: PER CURIAM.

text:
    David KANE, Appellant, v. Ilene Sturman KANE, Appellee.
    No. 3D16-2471
    District Court of Appeal of Florida, Third District.
    Opinion filed May 9, 2018.
    The Bonham Law Firm, P.L. and David L. Bonham, Miami, for appellant.
    Ilene Sturman Kane, in proper person.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

The trial court held the former husband in indirect civil contempt for not making his court-ordered alimony payments. The former husband contends on appeal that the contempt order violated his due process rights because he did not receive the contempt motion and notice of the allegations against him until the hearing, and therefore did not have an opportunity to prepare. We agree the former husband did not receive proper notice, and reverse the contempt order and the judgment and writ of bodily attachment that followed it, and remand for further proceedings.

Factual Background and Procedural History

David Kane and Ilene Sturman Kane were divorced in October 2004. The final judgment of dissolution, which incorporated a marital settlement agreement, required the former husband to pay alimony to the former wife in the amount of $4,650 until 2020.

On August 14, 2015, the trial court entered an "order of referral to general magistrate" referring a "motion: for contempt [d]ated: 1/24/2014." There was no motion attached to the referral order; the trial court docket did not reflect a motion for contempt dated January 21, 2014; and there was no such motion in the record.

Based on the referral, the general magistrate held a contempt hearing on January 12, 2016. The former husband, who lived in Israel, was represented by counsel. The former husband's counsel told the general magistrate that while there had been an earlier motion for contempt that resulted in a judgment, "to my knowledge there's no other renewed motion for today.... I couldn't access anything." The general magistrate told the former husband's counsel that the former wife, who was representing herself, had "a letter sent in that the court deems to be a motion." The former husband's counsel explained that "I just had no access to any of this and I've been looking for it.... [A]gain the only thing that I say is I didn't have privy to see this." At the end of the hearing, after finding the former husband in contempt, the general magistrate gave the former husband's counsel a copy of the former wife's letters. The letters were still not on the trial court's docket or in the record.

The general magistrate entered a report finding that the former wife's letter was "a Motion for Contempt in light of the fact that she [was] a pro se litigant." The general magistrate also found that the former husband had not made alimony payments since January 17, 2014. The general magistrate recommended that a judgment be entered against the former husband in the amount of $158,474.73.

The trial court ratified and approved the general magistrate's report, and adopted her findings and recommendations. The trial court entered judgment consistent with the general magistrate's recommendation, and a writ of bodily attachment for the former husband to be brought before the trial court within forty-eight hours of arrest.

The former husband moved for rehearing because he was denied due process. The former husband contended, as he did at the January 12, 2016 general magistrate hearing, that he did not receive the former wife's letters which prompted the referral, and that the letters were never made part of the record. Because he didn't have the letters until the day of the hearing, the former husband argued he was "denied the ability to properly prepare for the contempt hearing" and was "prejudiced as a result. Such action by the [trial court] constitutes a denial of due process." (emphasis in original.) The trial court denied the rehearing motion.

The former husband appeals the order adopting the general magistrate's report, the judgment, the writ of bodily attachment, and the order denying the motion for rehearing.

Discussion

On appeal, the former husband contends, as he did before the general magistrate and in his rehearing motion, that he did not receive a copy of the former wife's letters in advance of the contempt hearing. Because the former wife did not send him the letters, and they were never included in the record, the former husband argues he was denied fair notice and an opportunity to be heard at the contempt hearing.

"It is a fundamental tenet of our system of civil justice that a party must have actual notice of and time to prepare for a contested hearing." Dileo v. Dileo, 939 So.2d 181, 184 (Fla. 5th DCA 2006) (citing Harreld v. Harreld, 682 So.2d 635 (Fla. 2d DCA 1996) ). Moreover, "[w]hile a person facing civil contempt sanctions is not entitled to the full panoply of due process rights afforded to a person facing indirect criminal contempt charges, he or she is nonetheless entitled to a proceeding that meets the fundamental fairness requirements of the due process clause of the Fourteenth Amendment to the United States Constitution." Bresch v. Henderson, 761 So.2d 449, 451 (Fla. 2d DCA 2000) (citation omitted). These fundamental principles are applicable for civil contempt hearings in the family law context. Dileo, 939 So.2d at 184 (citing Woolf v. Woolf, 901 So.2d 905 (Fla. 4th DCA 2005) (additional citation omitted) ).

Baldwin v. Baldwin, 204 So.3d 565, 567 (Fla. 5th DCA 2016). In family law civil contempt proceedings based upon a party's failure to meet his or her support obligations, the family law procedural rules spell out the due process requirements of proper notice and time to prepare:

(b) Motion and Notice . Civil contempt may be initiated by motion. The motion must recite the essential facts constituting the acts alleged to be contemptuous. No civil contempt may be imposed without notice to the alleged contemnor and without providing the alleged contemnor with an opportunity to be heard. The civil contempt motion and notice of hearing may be served in accordance with Florida Rule of Judicial Administration 2.516 provided notice is reasonably calculated to apprise the alleged contemnor of the pendency of the proceedings. The notice must specify the time and place of the hearing and must contain the following language: "FAILURE TO APPEAR AT THE HEARING MAY RESULT IN THE COURT ISSUING A WRIT OF BODILY ATTACHMENT FOR YOUR ARREST. IF YOU ARE ARRESTED, YOU MAY BE HELD IN JAIL UP TO 48 HOURS BEFORE A HEARING IS HELD." This notice must also state whether electronic recording or a court reporter is provided by the court or whether a court reporter, if desired, must be provided by the party.

Fla. Fam. L. R. P. 12.615(b) (emphasis added).

The failure to serve the contempt motion on the opposing party, and to tell him or her "the essential facts constituting the acts alleged to be contemptuous," in advance of the contempt hearing, is a violation of the opposing party's due process rights to proper notice and time to prepare for the civil contempt proceeding. Our sister district courts have reversed contempt judgments where the opposing party did not have sufficient notice of the contempt motion and the essential facts to give him or her time to prepare.

In Woolf, for example, the former wife filed her motion for contempt two days before the contempt hearing. Woolf, 901 So.2d at 910. The former husband complained that "the hearing officer erred in going forward with the contempt motion without proper notice." Id. at 911. The fourth district agreed, explaining:

While a person facing civil contempt is not entitled to all of the due process rights afforded to a person facing indirect criminal contempt, he or she is nonetheless entitled to a proceeding that meets the fundamental fairness requirements of the due process clause of the Fourteenth Amendment. This requires that the alleged contemnor be provided with adequate notice and an opportunity to be heard. Two days notice is insufficient notice of a contempt hearing.

Id. (citations omitted). The appellate court "reverse[d] the contempt order and remand[ed] for further hearing upon proper notice." Id. at 915.

Also, in Baldwin, the parties appeared for trial on their petitions for dissolution of marriage. Baldwin, 204 So.3d at 566. During the trial, "the court became concerned that Former Husband had not complied with an earlier court order that required the parties to disclose all of their assets at least seven days prior to trial." Id. The trial court reviewed the former husband's financial affidavit, and "summarily moved into an order to show cause hearing giving Former Husband an opportunity to explain why he should not be held in indirect criminal contempt for failing to comply with mandatory disclosure." Id. at 566-67 (quotation and alteration omitted). After hearing the former husband's explanation, the trial court held him in indirect civil contempt. Id. at 567.

On appeal, the former husband "argue[d] that the trial court erred in holding the show cause hearing without allowing him sufficient time to prepare a defense to the contempt charge." Id. The fifth district agreed, concluding that "the trial court's failure to provide Former Husband with proper notice and time to prepare for a civil contempt proceeding clearly violated his right to due process." Id. at 566. The court remanded with directions for the trial court to vacate its contempt order. Id.; see also Dileo, 939 So.2d at 183-84 (reversing contempt order and quashing writ of bodily attachment because former husband had evacuated his home due to hurricane and did not receive proper notice of contempt hearing under Rule 12.615 ).

Here, the former husband received less notice than the Woolf and Baldwin former husbands. Kane did not receive the former wife's letter, which prompted the contempt hearing, until the day of the hearing and after the evidentiary portion was over. The letter was not available on the docket or in the record. And the former husband was unaware of the allegations against him until the day of the hearing. The general magistrate was told that the former wife's letter was unavailable and the former husband had not seen it even as the hearing began and the general magistrate took testimony.

Even the Baldwin former husband knew the allegations against him-because the trial court told him-before the trial court immediately began contempt proceedings by issuing an order to show cause and holding the hearing the same day as the trial. Here, the former husband did not know the essential facts of the former wife's contempt allegations until the end of the hearing, after the former wife testified and the general magistrate made her contempt findings. If two days was not proper notice for due process purposes in Woolf, then no notice before the contempt finding was not proper notice in this case.

Conclusion

We conclude that the trial court denied the former husband due process when it adopted the general magistrate's report, and entered the March 3, 2017 judgment and the writ of bodily attachment. As in Woolf and Baldwin, we vacate these orders and remand for further proceedings after the former wife's letters are made part of the record and the former husband is given proper notice of the letters, the essential facts against him, and an opportunity to prepare.

Reversed and remanded with directions.


author: LUCK, J.

text:
    The STATE of Florida, Appellant, v. Marcelo PENA, Appellee.
    No. 3D16-564
    District Court of Appeal of Florida, Third District.
    Opinion filed May 9, 2018
    Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellant.
    Gonzalez & Herrera, P.A., and Manuel F. Herrera, Jr. and Dennis Gonzalez, Jr., Miami, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.
   LUCK, J.

For license plates in Florida in 2015, "all letters, numerals, printing, writing, and other identification marks upon the plates regarding the word 'Florida,' the registration decal, and the alphanumeric designation shall be clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they will be plainly visible and legible at all times 100 feet from the rear or front." § 316.605(1), Fla. Stat. (2015). The trial court found that the stop of defendant Marcelo Pena's car based on the tag-obstruction statute was illegal, and suppressed his confession and the search of his car following the stop. We disagree that the stop was illegal, and reverse, because the undisputed evidence was that Pena's tag had a frame that obscured the word "Florida" at the top of this plate, violating the clear language of section 316.605(1).

Factual Background and Procedural History

The facts, found by the trial court, are not in dispute:

The State presented testimony from Officer Carl Sanabria of the Miami-Dade Police Department. The officer testified that he was working crime suppression in the Hammocks area in plain clothes in an unmarked police vehicle when he observed the Defendant's vehicle in traffic. The Defendant was not the subject of an investigation at that time. The officer observed that the rear license plate on the Defendant's car had a metal frame which obscured the words "MyFlorida.com" from the top portion of the license plate and "Sunshine State" from the bottom portion. A photograph of the license plate was introduced into evidence by the State which showed a frame that is not unlike many frames used by Florida drivers and provided by auto dealers. Officer Sanabria acknowledged that this frame did not obscure the identification number or decal number on the license plate and was clearly visible at 100 feet. Believing that this frame constituted a violation of Florida law, he stopped the Defendant and issued him a citation. He further testified that he smelled the order of marijuana from the car as he approached it, however no marijuana was ever found. Upon learning that the Defendant's license was suspended, he arrested the Defendant for driving while license suspended, in violation of § 322.34(2), Florida Statutes. Officer Sanabria testified that he searched the Defendant's car incident to his arrest and because he smelled marijuana. He discovered a plastic bag containing alprazolam pills. The Defendant was charged with Possession with Intent to Sell, Manufacture or Deliver a Controlled Substance, in violation of § 893.13(1)(A)(1), Florida Statutes.

Pena moved to suppress the statements he made, and the evidence found in his car, following the traffic stop because the stop based on the tag-obstruction statute was illegal.

The trial court agreed that the traffic stop was illegal, and granted Pena's suppression motion. The trial court concluded it was bound by the holding of State v. St. Jean, 697 So.2d 956 (Fla. 5th DCA 1997), which the trial court described this way: "where a county name on a license plate was obscured by a license plate frame, this was not sufficient to show that the defendant had committed a traffic violation, and thus the police did not have a reasonable suspicion to stop the defendant's car and evidence seized pursuant to that stop was suppressed." The trial court analogized the obscured county name in St. Jean to the obscured "MyFlorida.com" and "Sunshine State" in this case, and found that " St. Jean specifically held that under circumstances presented in this case the police did not have a reasonable suspicion to stop the vehicle." Because St. Jean had not been overruled by the Florida Supreme Court, "and in the absence of interdistrict conflict," the trial court concluded it was bound by the district court's decision in St. Jean.

The state appeals the trial court's order granting Pena's suppression motion. See Fla. R. App. P. 9.140(c)(1)(B) ("The state may appeal an order ... suppressing before trial confessions, admissions, or evidence obtained by search and seizure ....")

Standard of Review

"We apply a mixed standard of review to an appeal of an order on a motion to suppress. We must 'defer to the trial court's factual findings so long as the findings are supported by competent, substantial evidence, and review de novo the legal question ....' " Cole v. State, 190 So.3d 185, 188 (Fla. 3d DCA 2016) (omission in original) (quoting State v. Hankerson, 65 So.3d 502, 506 (Fla. 2011) ).

Discussion

The state contends that St. Jean did not compel that Pena's suppression motion be granted. We agree that St. Jean is inapplicable here because the decision was based on an older version of the statute that did not include critical language about the word "Florida" on state license plates.

In St. Jean, the law enforcement officer "stopped the defendant's car because he had observed the tag on the vehicle was obscured by a[n] ornament around the perimeter of the tag making the county name not visible." St. Jean, 697 So.2d at 956 (quotation omitted). "A subsequent search of the trunk of the vehicle uncovered a quantity of cocaine." Id. The defendant moved to suppress the cocaine, "arguing that the stop of his vehicle was illegal because it [was] not a traffic violation to obscure the name of the county on the tag." Id. The trial court granted the suppression motion, "concluding that the stop was illegal because there was no reasonable suspicion that a traffic violation had occurred." Id.

The fifth district affirmed, quoting the 1995 version of the tag-obstruction statute:

every vehicle on the state roadways shall at all times display the license plate assigned to it by the state:
with all letters, numerals, printing, writing, and other identification marks upon the plates clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they will be plainly visible and legible at all times 100 feet from the rear or front.

Id. at 957 (quoting § 316.605(1), Fla. Stat. (1995) ). "In construing the statute," the appellate court said, "the trial court concluded that section 316.605(1) does not require the county name be 'plainly visible' because it is not an essential 'identification mark' on the state's license plate." Id. The fifth district "agree[d] that in using the term, 'identification mark' as applied to state license plates in section 316.605(1), the legislature did not intend to include the name of the state and county at the top and bottom of the plate that identify the name of the state or county." Id. (emphasis added).

While we are less sure than St. Jean about the legislature's intent in 1995, it doesn't matter here because in 2005 the legislature made its intent clear when it amended section 316.605(1) to define what it meant by "other identification marks." The 2005 amendment clarified that the "other identification marks" in section 316.605(1) were those on the license plate "regarding the word 'Florida,' the registration decal, and the alphanumeric designation," Ch. 05-164, § 39, at 1638-39, Laws of Fla., so that by the time Pena was arrested, the tag-obstruction statute read:

Every vehicle, at all times while driven, stopped, or parked upon any highways, roads, or streets of this state, shall ... display the license plate ... assigned to it by the state ..., and all letters, numerals, printing, writing, and other identification marks upon the plates regarding the word "Florida," the registration decal, and the alphanumeric designation shall be clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they will be plainly visible and legible at all times 100 feet from the rear or front.

§ 316.605(1), Fla. Stat. (2015) (emphasis added).

Here, the suppression hearing evidence was undisputed that the word "Florida" was obscured by the frame on Pena's tag. The word "Florida" on Pena's tag was not clear and distinct and free from obscuring matter. In 2015, unlike the 1997 version of section 316.605(1) in St. Jean, obscuring of the word "Florida" violated the tag-obstruction statute.

Conclusion

We share the fifth district and the trial court's concern that license plate rims and frames are "a common practice of long-standing among the citizens of our state"; "are frequently supplied by car dealers"; and "many otherwise law abiding citizens install them specifically to show allegiance to a club, fraternity, college or sports team or, as a means of other self-expression." St. Jean, 697 So.2d at 957. But the legislature gets to make the laws that govern our public roads and highways, see Green v. Pederson, 99 So.2d 292, 296 (Fla. 1957) ("The Legislature, under its police power to protect the public from dangerous instrumentalities using the highways, has imposed rigid restraints, regulations, and restrictions upon the use of motor vehicles." (quotation omitted) ), and it has done so clearly and unambiguously by prohibiting the obscuring of the word "Florida" on state license plates. See English v. State, 191 So.3d 448, 449 (Fla. 2016) ("We conclude that the plain language of section 316.605(1) is clear and unambiguous ....").

Because Pena's tag frame obscured the word "Florida" at the top of the plate, he violated the 2015 version of section 316.605(1) and Detective Sanabria had probable cause to stop Pena's car. Pena's confession and the search of his car that followed were not tainted by an illegal stop. We, therefore, reverse the trial court's order granting Pena's motion to suppress, and remand for further proceedings.

Reversed and remanded for further proceedings.

      The legislature, effective January 1, 2016, amended section 316.605(1) again to remove "other identification marks upon the plates regarding the word 'Florida' " from the statute. Ch. 14-216, § 14, at 2787, Laws of Fla. Of course, the probable cause determination is made based on the facts and law at the time of the arrest, see Hutton v. Strickland, 919 F.2d 1531, 1539 (11th Cir. 1990) ("Probable cause exists when the facts and circumstances at the time of arrest would cause a prudent or reasonably cautious person to believe that the accused committed the offense."); Miami-Dade Cty. v. Asad, 78 So.3d 660, 668 (Fla. 3d DCA 2012) ("Probable cause is evaluated from the viewpoint of a prudent cautious police officer on the scene at the time of the arrest." (quotation omitted) ), so we only look to the 2015 version of section 316.605(1) for purposes of determining whether Detective Sanabria's stop of Pena's car was lawful.


author: Roberts, J.

text:
    Charles VANSMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-4169
    District Court of Appeal of Florida, First District.
    May 10, 2018
    Andy Thomas, Public Defender, and Marcia M. Perlin, Assistant Public Defender, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Steven Woods, Assistant Attorney General, Tallahassee, for Respondent.
   Roberts, J.

The petitioner, Charles Vansmith, petitions this Court for a writ of certiorari. The petitioner argues that the trial court departed from the essential elements of law by using section 775.021(4)(a), Florida Statutes (2017), to determine that it still had jurisdiction to keep him placed in a secure residential facility based on section 916.303(3), Florida Statutes (2017). We find that the trial court did not depart from the essential elements of law and deny the petition.

On June 5, 1996, the State charged the petitioner with having committed two counts of lewd and lascivious acts in the presence of a child on March 4, 1996. On July 17, 1996, the petitioner was adjudged incompetent to proceed due to an intellectual disability. On January 5, 2005, the petitioner was committed to a secure residential facility, and the criminal charges against him were dropped. At some point, the petitioner filed a motion with the trial court to terminate jurisdiction. The petitioner argued that each of his prior charges had a maximum sentence of fifteen years in prison and he had been placed in a secure residential facility for more than fifteen years. The petitioner argued that the trial court only had jurisdiction for fifteen years based on section 916.303(3). The trial court denied the motion finding that it had jurisdiction for thirty years based on the court's ability to structure sentences consecutively in accordance with section 775.021(4)(a), which prompted the petitioner to file the instant petition for writ of certiorari.

Certiorari is generally the proper procedural mechanism for seeking review of an order that involuntarily commits a person. Dep't of Children & Family v. Ramos , 82 So.3d 1121, 1122 (Fla. 2d DCA 2012) ; Woods v. State , 969 So.2d 408, 409 (Fla. 1st DCA 2007). Certiorari review is only available when the petitioner shows that the order under review (1) constitutes a departure from the essential elements of law and (2) results in a material injury for the remainder of the case, and (3) the harm cannot be remedied on appeal. City of Freeport v. Beach Cmty. Bank , 108 So.3d 684, 687 (Fla. 1st DCA 2013). The second and third prongs are what provide this Court with jurisdiction, so those elements must be analyzed first. Id.

Because the petitioner's liberty interests are at stake, this Court has jurisdiction. Certiorari jurisdiction also lies when a petitioner alleges that a trial court has acted in excess of its jurisdiction. Dep't of Children & Families v. Carmona , 159 So.3d 165, 166 (Fla. 2d DCA 2015).

The petitioner's argument is predicated on the language contained in section 916.303(3). When interpreting statutes, courts focus on legislative intent. Crews v. State , 183 So.3d 329, 332 (Fla. 2015). To discern legislative intent, a court first applies the plain and obvious meaning of the statutory text. Id. If the language provides a clear and unambiguous meaning, then the court will apply that meaning without resorting to the rules of statutory construction. Gaulden v. State , 195 So.3d 1123, 1125 (Fla. 2016). An ambiguity exists when reasonable people can find different meanings in the same language. Fla. Dep't of Transp. v. Clipper Bay Invs., LLC , 160 So.3d 858, 862 (Fla. 2015). When there is an ambiguity, a court may look to the cannons of statutory interpretation and construction. Anderson v. State , 87 So.3d 774, 777 (Fla. 2012).

Section 916.303(3), states in relevant part:

A defendant's placement in a secure facility may not exceed the maximum sentence for the crime for which the defendant was charged.

The phrase "maximum sentence" is not defined in chapter 916. The phrase "maximum sentence" also means "maximum sentences" based on section 1.01(1), Florida Statutes (2017). Based on the plain language of the relevant portion of section 916.303(3), one could interpret the phrase "maximum sentence(s)" in two different ways. One interpretation is the maximum sentence a defendant could receive for each individual crime charged, and the other interpretation is the maximum allowable sentence based on a trial court's sentencing structure. Since the relevant portion of section 916.303(3) is ambiguous, this Court resorts to the rules of statutory interpretation and construction.

The legislative intent for chapter 916 is stated in section 916.105, Florida Statutes (2017). The language contained in this section has remained relatively unchanged since it was enacted, with the exception of the enactment of subsection (4), which was added in 2006. See § 916.105, Fla. Stat. (1985-2017). Based on the stated legislative intent, it appears the Legislature was attempting to balance the rights and needs of the individuals with the need to protect society. The Legislature found the need to protect society so important that it made an escape or an attempted escape from a secure facility a second-degree felony when it enacted this section. See § 916.175, Fla. Stat. (1985). In 2006, the Legislature amended section 916.175 to require any punishment that was imposed for an escape or attempted escape to run consecutively to any former sentence that had been imposed. See § 916.1081(2), Fla. Stat. (2006-2017).

A well-known rule of statutory construction is that the Legislature is presumed to know the statutes that are in existence at the time it enacts new legislation. Barnett v. Dep't of Mgmt. Servs. , 931 So.2d 121, 132 (Fla. 1st DCA 2006). The Legislature enacted the relevant statutory language in 1983 in section 916.13(3). When the new language was added, it read:

In no case may a client's placement in a secure facility pursuant to this part exceed the maximum sentence for the crime for which he was charged.

At the time, the Legislature enacted the above language in section 916.13(3), trial courts had been authorized to structure sentences consecutively under section 775.021(4) for seven years, see section 775.021(4), Florida Statutes (1976), and singular versions of words included the plural versions of words for decades, see section 1.01, Florida Statutes (1941). Because sections 775.021(4) and 1.01(1) had been in existence before the Legislature enacted the statutory language at issue, the Legislature is presumed to have known that a trial court could determine that it had jurisdiction for an extended period of time based on a consecutive sentencing structure.

The petitioner urges us to apply the rule of lenity, which is codified in section 775.021(1). The rule of lenity is a canon of last resort that requires any ambiguity in the statute to be resolved in favor of a defendant. Kasischke v. State , 991 So.2d 803, 814 (Fla. 2008).

The rule of lenity applies to statutes that criminalize or penalize criminal behavior. Albernaz v. United States , 450 U.S. 333, 342, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). Section 916.303 states:

(1) The charges against any defendant found to be incompetent to proceed due to intellectual disability or autism shall be dismissed without prejudice to the state if the defendant remains incompetent to proceed within a reasonable time after such determination, not to exceed 2 years, unless the court in its order specifies its reasons for believing that the defendant will become competent to proceed within the foreseeable future and specifies the time within which the defendant is expected to become competent to proceed. The charges may be refiled by the state if the defendant is declared competent to proceed in the future.
(2) If the charges are dismissed and if the defendant is considered to lack sufficient capacity to give express and informed consent to a voluntary application for services and lacks the basic survival and self-care skills to provide for his or her well-being or is likely to physically injure himself or herself or others if allowed to remain at liberty, the agency, the state attorney, or the defendant's attorney shall apply to the committing court to involuntarily admit the defendant to residential services pursuant to s. 393.11.
(3) If the defendant is considered to need involuntary residential services for reasons described in subsection (2) and, further, there is a substantial likelihood that the defendant will injure another person or continues to present a danger of escape, and all available less restrictive alternatives, including services in community residential facilities or other community settings, which would offer an opportunity for improvement of the condition have been judged to be inappropriate, the agency, the state attorney, or the defendant's counsel may request the committing court to continue the defendant's placement in a secure facility pursuant to this part. Any placement so continued must be reviewed by the court at least annually at a hearing. The annual review and hearing must determine whether the defendant continues to meet the criteria described in this subsection and, if so, whether the defendant still requires involuntary placement in a secure facility and whether the defendant is receiving adequate care, treatment, habilitation, and rehabilitation, including psychotropic medication and behavioral programming. Notice of the annual review and review hearing shall be given to the state attorney and the defendant's attorney. A defendant's placement in a secure facility may not exceed the maximum sentence for the crime for which the defendant was charged.

Based on the plain language contained in section 916.303, the statute does not criminalize behavior. The petitioner has argued that it punishes him because his liberty has been taken away. Section 916.303(1) specifically allows charges to be reinstated if the petitioner becomes competent. If section 916.303 punishes criminal behavior, then the reinstatement of charges at a later date would be a violation of the principles against double jeopardy. Double jeopardy arguments have been advanced by civilly committed individuals and have been reviewed by the United States Supreme Court. In reviewing an argument that the Kansas Sexually Violent Predator Act (the Act) subjected a person to double jeopardy, the United States Supreme Court examined the Act to determine if the Act was civil or criminal in nature. Kansas v. Hendricks , 521 U.S. 346, 360-71, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). The United States Supreme Court stated that even though a statute is placed within the civil statutes, the label is not always dispositive. Id. at 361, 117 S.Ct. 2072. Since the person committed argued that he was being punished, the court examined the objectives of the Act. Id. at 361-64, 117 S.Ct. 2072. The two primary objectives of criminal punishment are retribution and deterrence. Id. at 361-62, 117 S.Ct. 2072. Finding no evidence of retribution or deterrence in the Act and that the Act was civil in nature, the United States Supreme Court found that the Act did not violate the principles against double jeopardy. Id. at 369-71, 117 S.Ct. 2072.

Even though section 916.303 is contained in the criminal procedure and corrections section, that label is not definitive. Upon examining sections 916.303 and 916.105, we find no evidence of retribution or deterrence. Since there is no evidence of an intent to punish a person who has been committed with the aid of section 916.303 and no evidence that section 916.303 criminalizes behavior, section 775.021(1) does not apply.

Based on the foregoing, we find that the Legislature intended section 775.021(4)(a) to be applied when determining the maximum sentence referred to in section 916.303(3). Since the trial court determined the petitioner's maximum sentence utilizing section 775.021(4)(a), it did not depart from the essential elements of law. Accordingly, the petitioner has failed to meet his burden, and we deny the petition for writ of certiorari.

DENIED .

Wolf and Wetherell, JJ., concur.


text:
    Larry Anthony CROSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-1557
    District Court of Appeal of Florida, First District.
    May 10, 2018
    Andy Thomas, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   Roberts, J.

The appellant, Larry Anthony Crosley, challenges the trial court's denial of his Florida Rule of Criminal Procedure 3.800(b)(2) motion challenging his sentence of life imprisonment based on the trial court's finding that he qualified as a Prison Releasee Reoffender (PRR). The State has conceded error, and we find that the appellant's conviction for burglary with assault or battery does not qualify for the PRR designation and reverse.

The appellant was convicted in March of 2016 of burglary of a conveyance with assault or battery. Because burglary of a conveyance with assault or battery is not an enumerated offense under the PRR statute, the offense can only qualify if it falls under section 775.082(9)(a)1.o., Florida Statutes (2015), which states, "[a]ny felony that involves the use or threat of physical force or violence against an individual." The Florida Supreme Court has stated that in order for an offense to qualify under subsection o., the "use or threat of physical force or violence must be a necessary element of the crime," and if the crime may be committed without the "use or threat of physical force or violence," then that crime does not qualify. State v. Hearns , 961 So.2d 211, 217-18 (Fla. 2007). A court is not allowed to look at the specific facts of the case, but can only look to the statute itself to determine if the crime can be committed without the use of threat of physical force or violence. Id. at 216. Since a battery can be committed merely by the intentional touching of another person, which may not involve the use or threat of force or violence, the crime of burglary of a conveyance with assault or battery can be committed without the use or threat of physical force or violence. See Ellis v. State , 135 So.3d 478, 480 (Fla. 2d DCA 2014) ("[B]ecause burglary with assault or battery encompasses the alternative of battery, which includes the nonforce option of mere touching, that offense cannot support the PRR enhancement under section 775.082(8)(a)(1)(o).") ; see also Suffield v. State , 132 So.3d 333, 333 (Fla. 4th DCA 2014) (burglary with assault or battery does not qualify for the PRR enhancement). Therefore, burglary of a conveyance with assault and battery does not qualify under subsection o. Accordingly, the conviction for burglary with assault or battery does not qualify for the PRR designation.

REVERSED and REMANDED to the trial court for resentencing.

Makar and Jay, JJ., concur.

      Section 775.082(8)(a)1.o. was renumbered in 1998 to 775.082(9)(a)1.o.


text:
    Rita GLASCO, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, Appellee.
    Case No. 5D17-2253
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 11, 2018
    Rita Glasco, Orlando, pro se.
    Cristina A. Velez, Tallahassee, for Appellee.
   PER CURIAM.

Rita Glasco (Appellant) appeals the referee's decision disqualifying her from receiving reemployment assistance benefits. We affirm the decision under review but remand for correction of a scrivener's error. The referee's decision currently disqualifies Appellant for the week beginning May 1, 2016, the following five weeks, and until Appellant earns seventeen times the weekly benefit amount ($4675). This is incorrect as Appellant was not discharged until January 5, 2017. The proper disqualification timeframe is the week beginning January 1, 2017, the following five weeks, and until Appellant has earned $4675. See § 443.101(1)(a)2., Fla. Stat. (2017). We therefore remand for the Commission to make this correction.

AFFIRMED; REMANDED for correction of a scrivener's error.

BERGER, WALLIS and EISNAUGLE, JJ., concur.


text:
    Justin Cordero MILLAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2136
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 11, 2018
    Kenneth C. Gallagher, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Justin Millan, seeks review of the trial court's "Order Granting 'Motion for Reconsideration and/or Rehearing' and Order Denying Defendant's 'Motion for Post-Conviction Relief' and Order Denying 'Second Amended Motion for Post-Conviction Relief Pursuant to Florida Rule of Criminal Procedure 3.850.' " We reverse, in part, because Millan was effectively denied the opportunity to amend certain postconviction claims as a result of his attorney filing a motion in the wrong case.

In case number 2008-CF-8067, Millan pled to one count of lewd and lascivious battery. Pursuant to his plea agreement, Millan was placed on sex offender probation for six years as a Youthful Offender. He was later charged with violating his probation by committing new law violations (several lewd and lascivious batteries). After an evidentiary hearing, the trial court found that Millan had violated his probation and sentenced Millan to fifteen years in prison. This court affirmed the trial court's finding that Millan had violated his probation, but reversed and remanded Millan's sentence so that it could be amended to reflect that Millan was sentenced as a Youthful Offender. See Millan v. State , 135 So.3d 382 (Fla. 5th DCA 2014).

The State also charged Millan in a separate case, 2012-CF-1984, with three counts of lewd and lascivious battery. These charges arose from allegations that had also been the basis for some of the new law violations found to have been committed by Millan in his violation of probation case. After a jury trial, Millan was convicted on all three counts and sentenced to concurrent terms of fifteen years' incarceration, with said sentences running consecutive to his sentence in 2008-CF-8067. These convictions and sentences were per curiam affirmed by this court. See Millan v. State , 145 So.3d 862 (Fla. 5th DCA 2014).

Millan, through postconviction counsel, timely filed his initial Florida Rule of Criminal Procedure 3.850 motion in case number 2008-CF-8067. By order dated February 14, 2017, the trial court struck postconviction claims 2, 3, 4(a), and 4(b), as facially insufficient. The trial court provided Millan sixty days in which to file an amended motion. Having received no amended motion within the sixty-day window, the trial court proceeded to address the merits of Millan's remaining claims (claims 1 and 4(c) ).

In May 2017, Millan's postconviction counsel filed a motion for reconsideration and/or rehearing, asserting that because of a calendaring error, counsel had failed to file a timely amended postconviction motion. Millan's counsel then filed a "Second Amended Motion for Post-Conviction Relief." The trial court agreed to consider the "Second Amended Motion for Post-Conviction Relief," after stating "the Court will hear the untimely "Second Amended Motion for Post-Conviction Relief ... in fairness to Defendant as the untimeliness was through no fault of Defendant." The trial court proceeded to deny the claims set forth in the Second Amended Motion for Post-Conviction Relief because the claims related to events occurring in case number 2012-CF-1984.

It is evident from the record that counsel misfiled the "Second Amended Motion for Post-Conviction Relief." Although the 2008-CF-8067 case number had been affixed to the motion, the factual recitations in the motion referenced matters occurring in case number 2012-CF-1984. As a result of counsel's errors, a motion amending claims 2, 3, 4(a), and 4(b) of the initial postconviction motion filed in case number 2008-CF-8067 has yet to be filed. On remand, the trial court is to afford Millan an additional thirty days in which to file an amended motion for postconviction relief as to claims 2, 3, 4(a) and 4(b). We affirm the trial court's order denying claims 1 and 4(c) of the initial motion for postconviction relief.

AFFIRMED, in part; REVERSED, in part; and REMANDED.

SAWAYA, TORPY and EVANDER, JJ., concur.