text:
    Marshall S. LAMOREAUX, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D11-1367, 1D11-1368.
    District Court of Appeal of Florida, First District.
    May 15, 2012.

      Jeffrey E. Lewis, General Counsel, and Sheila Callahan, Assistant Regional Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This consolidated Anders appeal arises from two separate judgments and sentences. We affirm Appellant’s convictions and sentences without comment. We write, however, to address the trial court’s imposition of certain costs and fines. For the reasons that follow, we strike the fines and surcharges improperly imposed in both cases and remand with instructions to enter corrected written judgments.

At sentencing the trial court ordered Appellant to pay “court costs” of $971.25 in each ease. However, the written judgments for fines and costs in both cases ordered Appellant to pay $525.00 as a fine pursuant to section 775.083, Florida Statutes (2010); $26.25 as the five percent surcharge required by section 938.04, Florida Statutes (2010); and $420.00 in mandatory court costs, as well as a $25.00 administrative fee. Appellant filed two motions to correct sentencing errors pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), in which he argued that the trial court had erred by imposing the $525.00 fines which were not orally pronounced at the sentencing hearing and the $26.25 surcharge on the fines. Appellant also argued that the trial court erred in imposing the $25.00 administrative fee without statutory authorization in each case. The trial court granted in part Appellant’s motions by striking the $25.00 administrative fee in each case; however, the trial court denied Appellant’s other claims. On appeal, appointed counsel for Appellant asserted that she was unable to make a good faith argument that reversible error occurred in the trial court, with the exception of improperly imposing the fines and surcharges. The State concedes that the written judgments improperly imposed the fines and surcharges. We agree.

Pursuant to section 775.083(1), a person who has been convicted of an offense other than a capital felony may be sentenced to pay a fíne in addition to any punishment described in section 775.082, Florida Statutes (2010). Moreover, when specifically authorized by statute, a person may be sentenced to pay a fíne in lieu of any punishment described in section 775.082. § 775.083(1). In addition to any fine for any criminal offense prescribed by law, the trial court must also impose a five percent surcharge on the fíne. § 938.04. However, fines under section 775.083 are discretionary and must be orally pronounced at sentencing. Nix v. State, 84 So.3d 424 (Fla. 1st DCA 2012). A discretionary fíne imposed and the statutory surcharge on the fine must be stricken if the discretionary fíne was not orally pronounced at sentencing. Pullam v. State, 55 So.3d 674, 675 (Fla. 1st DCA 2011).

Here, at sentencing, the trial court orally pronounced “court costs” in each case are $971.25, but the written judgments for fines and costs in both cases ordered Appellant to pay $525.00 as a fine, $26.25 as the five percent surcharge, and $420.00 in costs. Since the trial court did not orally pronounce these fines at the sentencing hearing, the fines must be stricken in both cases. Also, because the fines were improperly imposed, the trial court could not impose the additional $26.25 surcharge which is based on the amount of the fines in both cases. Id.; see also Dadds v. State 946 So.2d 1129, 1130 (Fla. 2nd DCA 2006).

Therefore, we strike the $525.00 fine and the $26.25 surcharge improperly imposed in both cases and remand with instructions to enter corrected written judgments consistent with this opinion. Otherwise, we affirm in all respects.

AFFIRMED and REMANDED with instructions.

VAN NORTWICK, LEWIS, and SWANSON, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Errol LEWIS, Appellant, v. Diane R. JAMES, as Administrator of Florida State Hospital & David E. Wilkins, as Secretary of the Florida Department of Children and Family Services, Appellees.
    No. 1D11-4201.
    District Court of Appeal of Florida, First District.
    May 15, 2012.
    Errol Lewis, pro se, Appellant.
    Kathi Lee Kirkpatrick, Hospital Legal Counsel, Chattahoochee, for Appellees.
   PER CURIAM.

AFFIRMED. See Franklin v. Kearney, 814 So.2d 462, 463 (Fla. 4th DCA 2001) (only the committing court has jurisdiction to entertain habeas petition challenging legality of involuntary commitment). Mr. Lewis does not adequately present any of his “bill of rights” claims in his initial brief. See § 916.107, Fla. Stat. (2010).

BENTON, C.J., THOMAS, and SWANSON, JJ., concur.


text:
    Tommy Ray MARSH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2044.
    District Court of Appeal of Florida, First District.
    May 15, 2012.
    Tommy Ray Marsh, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits. •

DAVIS, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    In re Name Change of Angel A. DUR’AN, a/k/a, Mujahid Shabazz, Petitioner.
    No. 1D12-1976.
    District Court of Appeal of Florida, First District.
    May 15, 2012.
    Angel Dur’an, a/k/a, Mujahid Shabazz, pro se, Petitioner.
   PER CURIAM.

DENIED. See Powell v. Florida Department of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999).

DAVIS, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    Benjamin CUMMINGS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1974.
    District Court of Appeal of Florida, First District.
    May 15, 2012.
    Benjamin Cummings, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

DAVIS, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    Gregory WINTERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1667.
    District Court of Appeal of Florida, First District.
    May 15, 2012.
    Gregory Winters, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(5)(A).

DAVIS, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    Peter Lee COTTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0763.
    District Court of Appeal of Florida, First District.
    May 15, 2012.
    Peter Lee Cotton, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

VAN NORTWICK, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Michelle Antoinette NEZOVICH, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6045.
    District Court of Appeal of Florida, First District.
    May 15, 2012.

      Nancy A. Daniels, Public Defender, Steven L. Seliger, Assistant Public Defender, and Glenna Reeves, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas Duffy, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

BENTON, C.J., PADOVANO, and SWANSON, JJ., concur.


author: BLACK, Judge.

text:
    Robert McRAE, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2001.
    District Court of Appeal of Florida, Second District.
    May 16, 2012.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Robert McRae appeals an order revoking his probation and his resulting sentence. McRae argues, and the State correctly concedes, that the trial court committed fundamental error by revoking his probation for conduct that was not alleged in the affidavit of violation of probation. Therefore, we reverse.

On October 7, 2010, McRae entered a guilty plea to various offenses in two separate cases, including drug possession offenses. As a part of his plea, the court sentenced him to four and one-half years of probation. On March 28, 2011, a violation of probation affidavit was filed. The affidavit alleged that McRae violated special condition 23 by failing to attend and successfully complete the Meth Free Project and that he violated special condition 24 by failing to successfully complete or remain in mental health treatment. On April 2, 2011, the police arrested McRae for a different violation of his probation. In the arrest report, the officer stated that he knew McRae and knew that he was on felony probation with a 10 p.m. curfew and a prohibition from visiting bars or consuming alcohol. He stated that he observed McRae exiting a bar at 1:15 a.m. and that he subsequently arrested him.

The court held a violation of probation hearing on April 4, 2011. The State made an offer to McRae on the record at the beginning of the hearing. The court stated that the “violations would be violation of your curfew and ... also apparently the consumption of alcohol.” McRae then accepted the offer and admitted to the curfew and consumption of alcohol violations. However, the State did not amend the violation of probation affidavit to reflect the April 2, 2011, violations, either prior to the hearing or on the record at the hearing. The State also presented no proof of the curfew and consumption of alcohol violations at this hearing. There was no discussion and no admission concerning violations of conditions 23 and 24. The court accepted the admission to the curfew and alcohol consumption violations and orally revoked probation based on those violations. The court entered an order revoking McRae’s probation and sentencing him to two years of community control; however, the court’s order failed to state what condition of probation McRae violated.

“A trial court is not permitted to revoke probation on conduct not charged in the affidavit of revocation.” Johnson v. State, 811 So.2d 749, 750 (Fla. 2d DCA 2002). “[R]evoking an individual’s probation for conduct not alleged in the charging document deprives the individual of due process and constitutes fundamental error.” Wells v. State, 60 So.3d 551, 553 (Fla. 1st DCA 2011); see also Johnson, 811 So.2d at 750. “ ‘It is error for a trial court to revoke probation even for a conceded violation when the probationer has been charged with a different violation altogether.’ ” Ray v. State, 855 So.2d 1260, 1261 (Fla. 4th DCA 2003) (quoting N.L. v. State, 825 So.2d 509, 510 (Fla. 1st DCA 2002)).

Here, McRae admitted to the curfew and consumption of alcohol allegations; however, those allegations were not charged in the violation of probation affidavit. This is reversible, fundamental error. See Johnson, 811 So.2d at 750. The State also notes that the trial court committed reversible error by failing to specify what condition McRae violated in its order revoking probation, and we agree. See DeJesus v. State, 848 So.2d 1276, 1278 n. 1 (Fla. 2d DCA 2003).

Because the trial court erred, we reverse the order of revocation. However, we reverse without prejudice to the State proceeding on the original affidavit or filing an appropriate affidavit. See Johnson, 811 So.2d at 751 (citing Parminter v. State, 762 So.2d 966, 967 (Fla. 2d DCA 2000)); Ray, 855 So.2d at 1262 (“The State may again proceed on the original affidavit of violation, or may seek to amend the affidavit if such is appropriate.”).

Reversed and remanded.

SILBERMAN, C.J., and LaROSE, J., Concur.


author: May, C.J.

text:
    The WAVERLY AT LAS OLAS CONDOMINIUM ASSOCIATION, INC., Appellant, v. WAVERLY LAS OLAS, LLC, a Florida Limited Liability Company, and Reims Waverly, LLC, a Delaware Limited Liability Company, Appellees.
    No. 4D11-2180.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2012.

      Scott A. Weires of Buckingham, Doolittle & Burroughs, LLP, Boca Raton, for appellant.
    Beverly A. Pohl and Adam G. Rabinow-itz of Broad and Cassel, Fort Lauderdale, for appellee, Waverly Las Olas, LLC.
   May, C.J.

Having affirmed the underlying final judgment in the substantive appeal, we now review the trial court’s award of attorney’s fees in a dispute over parking spaces. The condominium association appeals an attorney’s fees award, having lost the dispute with the developer. It argues the trial court erred in the amount of fees awarded, but does not dispute entitlement. We affirm.

After a tenant sued the association in a dispute over parking spaces, the association filed a nine-count third-party complaint against the developer. The trial court dismissed the initial third-party complaint. The developer then gave notice of its intent to seek prevailing party attorney’s fees, pursuant to an agreement between the developer and the individual unit owners and FDUTPA.

The association then made two more unsuccessful attempts to state a cause of action against the developer. The amended third-party complaint contained eleven counts, including a breach of contract claim. The trial court dismissed the amended third-party complaint on March 30, 2010.

The second amended third-party complaint contained five counts, but did not include a claim for breach of contract. Nevertheless, in both amended third-party complaints, the association claimed an entitlement to attorney’s fees, pursuant to paragraph 16 of the unit owners’ purchase agreements. Paragraph 16 provides, in part:

16. Litigation. In the event of any litigation between the parties under this Agreement, the prevailing party shall be entitled to reasonable attorneys’, paralegals’ and para-professionals’ fees and court costs at all trial and appellate levels.

Ultimately, the trial court dismissed the second amended third-party complaint with prejudice, finding the association had no standing, the claims were not ripe, and the association had not suffered any damage. The developer then moved for entitlement to attorney’s fees and costs.

The developer argued entitlement to attorney’s fees for the entire litigation, including the proceedings to determine the amount of fees. The association requested that the trial court deny the developer’s request for fees. The parties agreed to proceed without a fee expert regarding the reasonableness of the hourly rates.

The trial judge concluded that the association’s various contractual, common law, and statutory third-party claims were all inextricably intertwined with one set of core facts and had no separable damages. The trial court awarded all fees incurred in the litigation to the developer including time spent litigating the amount of fees.

The trial court awarded $80,657 for attorney’s fees incurred through the entry of the final judgment, $21,857.50 for litigating the amount, and $3,326.79 in taxable costs, for a total of $105,841.29. From this fee and cost judgment, the association now appeals.

The association argues the various claims were not based upon common facts or related legal theories, and that each amended complaint pursued an entirely different legal theory than its predecessor. The developer responds that all of the complaints alleged alternative theories of liability arising out of a common core of facts—the assignment of parking spaces. The developer also argues that the association’s continued claim for fees throughout its third-party complaints reinforce its position that the claims were part of a single dispute and were inextricably intertwined.

“Determination of attorney’s fees is within the sound discretion of the trial court and will not be disturbed absent a showing of abuse of discretion. However, the determination of whether multiple claims within a lawsuit are separate and distinct is a matter of law to be reviewed de novo.” Anglia Jacs & Co. v. Dubin, 830 So.2d 169, 171 (Fla. 4th DCA 2002) (citation omitted).

This Court has previously held:

In the event a party is entitled to an award of fees for only some of the claims involved in the litigation, i.e., because a statute or contract authorizes fees for a particular claim but not others, the trial court must evaluate the relationship between the claims and “where the claims involve a ‘common core’ of facts and are based on ‘related legal theories,’ a full fee may be awarded unless it can be shown that the attorneys spent a separate and distinct amount of time on counts as to which no attorney’s fees were sought” or were authorized.

Chodorow v. Moore, 947 So.2d 577, 579 (Fla. 4th DCA 2007) (quoting Anglia Jacs & Co., 830 So.2d at 172). “‘The party seeking fees has the burden to allocate them to the issues for which fees are awardable or to show that the issues were so intertwined that allocation is not feasible.’ ” Id. (quoting Lubkey v. Compuvac Sys., Inc., 857 So.2d 966, 968 (Fla. 2d DCA 2003)).

We agree with the developer and the trial court. The various third-party complaints focused on a common core set of facts. And, while the fees might be capable of apportionment between the breach of contract claims in the original and amended complaint and the other claims in the second amended complaint, the broad language in the fee provision contemplates its application to more than breach of contract claims.

The fee provision provided for an award of fees for “any litigation between the parties under this Agreement.” (Emphasis added). Here, the claims in the second amended complaint related to the same core set of facts concerning the assignment of parking spaces under the agreement. In fact, the association continued to request attorney’s fees under the agreement in its second amended third-party complaint notwithstanding that it no longer alleged a breach of contract claim. We find no error in the trial court’s ruling on this issue.

We also find no error in the trial court’s award of fees for litigating the fee amount. The association argues that State Farm Fire & Casualty Co. v. Palma, 629 So.2d 880 (Fla.1993), and its progeny limit an attorney’s fees award to time spent in litigating the entitlement to, but not the amount of, fees incurred. The developer responds that the contractual prevailing party fee provision was broad enough to encompass time spent in litigating the amount of fees, and that Palma’s statutory analysis is inapplicable to the contractual basis for fees in this case. We agree with the developer.

“Entitlement to attorney’s fees based on the interpretation of a statute or contract is also reviewed de novo.” State Farm Fla. Ins. Co. v. Silber, 72 So.3d 286, 288 (Fla. 4th DCA 2011).

‘“It is well-settled that attorneys’ fees can derive only from either a statutory basis or an agreement between the parties.’ ” Fla. Hurricane Prot. & Awning, Inc. v. Pastina, 43 So.3d 893, 895 (Fla. 4th DCA 2010) (quoting Trytek v. Gale Indus., Inc., 3 So.3d 1194, 1198 (Fla.2009)). Unlike Palma, which relied upon a statute and limited fees to those incurred in litigating entitlement, the contractual provision here authorizes attorney’s fees for “any litigation” between the parties under the agreement. This language is broad enough to encompass fees incurred in litigating the amount of fees.

Affirmed.

GROSS and DAMOORGIAN, JJ„ concur.

      . Florida Deceptive and Unfair Trade Practices Act, §§ 501.201-23, Fla. Stat. (2009).

      . We have previously permitted attorney’s fees awards for litigating the amount in other contexts. See, e.g., Bennett v. Berges, 50 So.3d 1154, 1161 (Fla. 4th DCA 2010) (“Because the trial court awarded fees as a sanction against Bennett, it was within its discretion to include 'fees on fees’ for the time spent in litigating the amount of fees.”); Schneider v. Schneider, 32 So.3d 151, 158 (Fla. 4th DCA 2010) ("However, no ban on fees for litigating fees, as a matter of law, is contained in ... the statute.... Palma simply does not apply to section 61.16 fee awards.”).


text:
    Juan SANCHEZ a/k/a George Ruiz a/k/a Miguel Martinez, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4021.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2012.

      Juan Sanchez, Bowling Green, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Juan Sanchez, appeals the trial court’s August 13, 2010 order denying his motion for return of property without holding an evidentiary hearing. We hold that an evidentiary hearing is necessary before the trial court enters an order denying a motion to return property. Here, the record does not indicate that an evi-dentiary hearing was held. As such, we reverse and remand this matter for an evidentiary hearing to be held to determine the ownership of the property.

Sanchez was arrested by the Plantation Police Department after the department received a call about a burglary. The victim was home at the time, sitting on his back patio, when he noticed Sanchez inside his bedroom. When the victim opened the door to enter his home, Sanchez ran out the front door and got into the passenger side of a green Ford Explorer to flee the scene. The vehicle was spotted by a police officer and was stopped for an investigation. The victim was brought to the stop location and positively identified Sanchez as the person in his home. Sanchez was charged with one count of burglary of an occupied dwelling; one count of possession of burglary tools; one count of possession of stolen property; and one count of obstruction for giving officers a false name and date of birth.

Upon searching Sanchez, officers found nine rings, a pair of earrings, and cash in Sanchez’s shoe. Five more rings, a bracelet, and a lock pick were found in one pants pocket, and nine watches were found in his other pants pocket. The vehicle was also searched at the time of Sanchez’s arrest. An inventory of the vehicle, which was registered to the driver, resulted in officers finding two pillowcases containing “jewelry, foreign coins, foreign currency, clothing, Playstation 2, wallets, electronic organizer, cell phone, miscellaneous papers, perfume and a brown box.”

Sanchez filed several motions to have the property seized from the vehicle returned to him. Orders denying those motions for the return of property were entered. In his most recent motion, Sanchez alleged that nobody claimed his illegal appropriation of those items and that the court has jurisdiction to return those items, as they were not the subject of his prosecution. The earlier orders provided that there was no proof of ownership of the property. The order which is now being appealed before this court refers to the three earlier orders and provides that nothing has changed since those orders were entered, making denial appropriate. This appeal followed.

The procedure for a defendant to move to have his seized property returned to him is similar to that of a motion for post-conviction relief. Bolden v. State, 875 So.2d 780, 782 (Fla. 2d DCA 2004). To reclaim seized property, “the defendant must file a facially sufficient motion for the return of property.” Id. If the motion is facially sufficient, the court “may order the State to respond” by refuting the defendant’s arguments that the property should be returned. Id. Once the “trial court has assumed jurisdiction over criminal charges, it is thereafter vested with an inherent power to assist the true owner in the recovery of property held in custodia legis.” Brown v. State, 613 So.2d 569, 570 (Fla. 2d DCA 1993). The defendant is required to prove the property is exclusively his own, that it was not the fruit of illegal activity, and that it is not being held for evidentiary purposes. Id.

In Stone v. State, 630 So.2d 660 (Fla. 2d DCA 1994), the Second District held that the trial court has the power to determine whether there is a valid basis to allow the return of property by authorities. Id. at 660. As to the retaining of the property, the Second District explained that “[i]t is one thing if a claimant can be located with a superior possessory interest in the property, and quite another for the property to be withheld merely on speculation” that it was acquired illegally. Id. In Brown,, the Second District held that it was improper to withhold property from a defendant when the property was taken from his vehicle without an evidentiary hearing. Brown, 613 So.2d at 571; see also Coon v. State, 585 So.2d 1079, 1081 (Fla. 1st DCA 1991) (reversing and remanding with “directions to conduct an evidentiary hearing on appellant’s motion” where the appellant argued that the State was unlawfully holding his property).

Sanchez argues that once his motions were deemed facially sufficient, the trial court should have conducted an evidentia-ry hearing to prove that he did not have rights to the property. Sanchez contends that, absent an evidentiary hearing, the State could not prove that the property was entered into evidence for the purposes of criminal prosecution. Sanchez also asserts that the State has been unable to identify who has “a superior possessory interest in the property.” We agree.

An evidentiary hearing is necessary before the trial court enters an order denying a motion to return property. Here, the orders by the trial court denying Sanchez’s motions for return of property indicate no evidentiary hearing was held because they simply explained that absent proof of ownership, the motion must be denied. The remainder of the record also contains no proof that such a hearing was held. As such, we reverse and remand for an evidentiary hearing to determine whether the seized property belonged to Sanchez and whether it was being withheld for prosecutorial purposes. Even though the property was removed from a vehicle that did not belong to Sanchez, he should have been afforded an evidentiary hearing to ensure that he does not, in fact, have a possessory interest in those items. After the hearing, the trial court can then invoke its power to determine whether there is a valid basis to return the property to Sanchez.

Reversed and Remanded.

POLEN, HAZOURI and LEVINE, JJ„ concur.

      . Several other motions for return of this property were filed with the trial court, three of which were also denied.


author: POLEN, J.

text:
    YUE YAN, Appellant, v. Barbara BYERS, Appellee.
    No. 4D10-3436.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2012.

      David Jay Bernstein of David Jay Bernstein & Associates, P.A., Lauderhill, for appellant.
    William D. Beamer of William D. Beam-er, Chartered, Fort Lauderdale, for appel-lee.
   POLEN, J.

Appellant, Yue Yan, timely appeals the final judgment of the trial court entered in favor of the appellee, Barbara Byers. We agree with Yan that the trial court abused its discretion in denying her motion for new trial because she was not provided reasonable notice of the jury trial.

Yan filed a statement of claim against Byers in small claims court, alleging that Byers tortiously interfered with a business relationship between Yan and a tenant. Byers responded by moving to dismiss the complaint and counterclaiming against Yan for libel per se. The small claims court dismissed Yan’s statement of claim with leave to amend only through a licensed Florida attorney within twenty days, and transferred Byers’s counterclaim to circuit court. Thereafter, Yan hired an attorney, who filed an amended complaint against Byers for tortious interference and slander and filed an answer and affirmative defenses to Byers’s counterclaim.

On October 27, 2009, Yan’s attorney moved to withdraw, and on October 30, 2009, Byers’s attorney served a notice for jury trial on Yan’s attorney. On November 19, 2009, Yan filed a request that all court documents in the case be sent to her at an updated address. On November 23, 2009, the trial court entered a pretrial order setting the cause for a jury trial. The pretrial order shows that it was sent to “all parties”; however, it does not specifically show whether it was sent to Yan or her attorney, or if to Yan, at what address. On January 6 and 29, 2010, Byers served her witness and exhibit lists; the certificate of service shows that the lists were sent to Yan’s attorney and Yan, but the certificate shows that it was sent to Yan at her old address rather than the address requested by Yan in her November 19 filing. On February 4, 2010, the trial court granted Yan’s attorney’s motion to withdraw by written order; the order also states that all pleadings and notices shall be sent to Yan at her updated address.

On Friday April 9, 2010, Byers’s attorney’s office called Yan and informed her that the trial was to begin on the following Monday, April 12, 2010. According to Yan, at this point, she had not received the pre-trial order, and this was her first notice of the trial. On April 12, 2010, Yan appeared in court, pro se, without any witnesses. Byers, with counsel, had about five witnesses. In court, Byers’s attorney hand-delivered Byers’s unilateral pre-trial statement to Yan. Before the trial, the trial court denied Yan’s motion for a continuance. After the jury trial, the trial court granted Byers’s motion for directed verdict as to Yan’s tortious interference claim. The jury returned a verdict for Byers on her libel claim, awarding her $5,000 in damages and $10,000 in punitive damages. The trial court denied Yan’s motion for new trial, directed verdict, relief from judgment, and remittitur. Yan retained new counsel, who filed Yan’s motion for rehearing. The trial court denied the motion, and this appeal timely followed.

“Procedural due process requires both reasonable notice and a meaningful opportunity to be heard.” N.C. v. Anderson, 882 So.2d 990, 993 (Fla.2004) (citing Dep’t of Law Enforcement v. Real Prop., 588 So.2d 957, 960 (Fla.1991)).

The notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance.”

882 So.2d at 993 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)) (emphasis added).

Here, the trial court’s pretrial order shows that it was sent to “all parties”; however, it does not show if it was sent to Yan, her attorney, or both. Yan alleged that she never received a copy of the pretrial order from her attorney, who was in the process of withdrawing. Moreover, on January 6 and 29, 2010, after Yan’s November 19 filing requesting that all court filings be sent to her at an updated address, Byers served her witness and exhibit lists to Yan’s attorney and Yan; however, the certificate of service shows that it was sent to Yan at her old address. On February 4, 2010, the trial court ordered that all pleadings and notices be sent to Yan at her updated address. However, Byers’s attorney never sent the unilateral pretrial statement to Yan, even though Byers’s attorney knew Yan was no longer represented by counsel and knew Yan’s current address. The only time Byers’s attorney attempted to correspond with Yan was on the Friday before the Monday on which the trial was to begin.

We find that the record reflects that Yan was not provided with sufficient notice of the jury trial. Therefore, we do not address the other issues raised by Yan and reverse the trial court’s denial of Yan’s motion for new trial and remand for a new trial on all issues.

Reversed and Remanded

HAZOURI and LEVINE, JJ„ concur.

      . In the unilateral statement, Byers states that ''[a] joint statement was not possible, in that [Yan] and her attorney had some controversy and he withdrew and was never replaced.” However, Byers’s attorney did not assert that he attempted to draft a joint statement with Yan, or attempt to contact her in any way at any time.

      . We find that Byers’s reliance on Baugh v. Baugh, 365 So.2d 733 (Fla. 1st DCA 1978), is misplaced. In Baugh (a divorce case), the First District found that on August 9 the husband’s attorney mailed the wife a copy of his notice setting the case for final hearing on September 7. Baugh, 365 So.2d at 736. Thus, in Baugh, and unlike the facts here, there was no dispute as to if and when the wife received notice of the final hearing.


author: CIKLIN, J.

text:
    Luis GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3028.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2012.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Luis Garcia appeals his conviction for first-degree murder and life sentence. Garcia contends that the trial court erred in denying his motion to suppress evidence and in refusing to instruct the jury on the defense of independent act. We agree, reverse his conviction, and remand for a new trial.

Background

On January 4, 2008, the body of Jerome Jones was found lying face up in the roadway about 100 feet from the parking area of a rest stop on Alligator Alley. Jones had been shot in the back of his head. There was the smell of urine where Jones had been standing along the curb and his zipper was opened. A Parliament brand cigarette was located about two and a half feet from Jones’s foot.

Detective Efrain Torres of the Broward Sheriffs Office (BSO) was dispatched to the crime scene and assigned to be the lead homicide investigator. After the victim had been identified, Detective Torres was able to locate Marcello Isaac, Jones’s half brother. After several hours of questioning, Isaac told Detective Torres that Jones had come to Florida to conduct a drug deal with Garcia. According to Isaac, Jones had shown Isaac a duffle bag filled with cash and told him that the bag contained $102,000 with which Jones was going to purchase “six kilos.” Isaac also informed Detective Torres that the last time he saw Jones alive was when he dropped Jones off at Garcia’s house around 3:00 p.m. on the day Jones was killed.

Based on Isaac’s statements, Detective Torres decided to question Garcia. Isaac showed the detective where Garcia lived and where Garcia’s girlfriend lived, but Garcia was not at either of the residences when the police arrived. Detective Torres had also obtained Garcia’s cell phone number from Isaac and used that number to track the present location of Garcia’s cell phone. On January 6, 2008, Detective Torres contacted the Pembroke Pines Police Department and asked them for assistance in locating Garcia. He advised them that Garcia was a possible murder suspect and gave a description of the van Garcia was likely driving and Garcia’s approximate location.

Officer Nicholas Taber, a police officer for the City of Pembroke Pines, was able to locate a van matching the description that Detective Torres had provided driving in the area specified. The officer stopped the van which was in fact being driven by Garcia at around 6:40 p.m. With their guns drawn and pointed toward the van, Officer Taber and another officer ordered Garcia to exit the van, handcuffed him, patted him down, and then put him in the back of Officer Taber’s locked patrol car.

A few minutes later, Detective Torres arrived. He took Garcia out of Officer Taber’s car and asked Officer Taber to remove the handcuffs. Detective Torres informed Garcia that he wanted to speak to him about Jones and asked Garcia to come with him to the BSO public safety building. According to Detective Torres, Garcia agreed to this request.

Detective Torres asked Officer Taber to transport Garcia in the back of the officer’s patrol car because it contained a cage. Garcia was not handcuffed as he was transported to the public safety building. On the way, they stopped by a garage in Miramar where Garcia had told Detective Torres his BMW was being repaired. When they arrived at the garage, Detective Torres got out of the car, but was unable to verify if Garcia’s vehicle was there because the shop and bay doors were closed. Garcia did not get out of the patrol car and was never offered the opportunity to do so. From there, they all continued to BSO headquarters.

A video recording of the incident shows a handcuffed Garcia being led into an interview room at approximately 8:00 p.m., Detective Torres removing handcuffs from Garcia, and then the detective leaving Garcia alone in the interview room for approximately forty minutes. The door to the room was locked while Garcia waited inside for Detective Torres to return. At approximately 8:40 p.m., Detective Torres returned and advised Garcia of his Miranda rights. Garcia signed a form acknowledging that he was waiving his rights and agreeing to speak with the detective. Garcia also signed consent forms allowing the police to search his residence, two vehicles, and phone records.

In response to Detective Torres’s questioning that evening, Garcia claimed that he had arranged for Jones to purchase a large quantity of cocaine from someone named Gordo. Garcia asserted that he was paid $3000 for arranging this deal. The deal was to occur at a house in Weston, to which Garcia agreed to take Jones in Garcia’s BMW. On the way, Garcia had car trouble, so he pulled into a gas station while Jones was on the phone to find someone else to take him. Jones asked Garcia to take him back to Isaac’s residence, which Garcia did. Once there, Jones got into a gray Lexus with two men and a woman and left. Garcia stated that he did not drive to Alligator Alley on January 4th and that, at 8:30 p.m., he was at home with his son.

The interview continued until the early morning hours of January 7th. At the conclusion of the interview, Detective Torres and another law enforcement officer drove Garcia home in a regular undercover car without a cage.

On January 9th, Detective Torres called Garcia and asked him to come to the station again. Garcia agreed to do so and returned there on his own. Detective Torres again read the Miranda warnings to Garcia and Garcia again signed a written waiver. Garcia also consented to a DNA sample at that time.

During this second interview, Detective Torres told Garcia that he knew Garcia had lied to him in his previous interview because phone records showed that Garcia’s phone had been used on Alligator Alley the night of the murder. Garcia changed his story, asserting instead that he had actually taken Jones to Naples and that he had lied about not being on Alligator Alley. The original plan had been to go to Weston, but on the way, Jones got a call from Gordo who wanted the deal to be in Naples instead. Garcia said that on the way to Naples, he saw that Jones had a gun. Upon seeing the gun, Garcia immediately exited the highway and told Jones to get out of the car. Garcia said that he left Alligator Alley as soon as he dropped off Jones.

Later in the interview, Garcia changed his story again. This time, Garcia claimed that he had tried to set up a deal for Jones, but that the deal never occurred. Instead, Jones arranged his own deal with people who were unknown to Garcia. Garcia agreed to drive Jones to the deal and was supposed to be paid $3000 for doing so. Jones instructed Garcia to drive them to the recreation area on Alligator Alley where law enforcement later found Jones dead. When Jones and Garcia arrived, a tractor trailer with one man and a gray Lexus with two other men were already there. Jones got out of the car with the bag. Garcia stood outside three to five minutes and saw Jones cut open a bag of cocaine with a small knife. He saw the men complete the transaction with Jones taking the cocaine. Garcia claimed that he then witnessed one of the men shoot Jones in the back of the head, take the bag of cocaine from Jones, and then exclaim that Jones had given them “fake money.”

At the conclusion of this interview, Officer Torres placed Garcia under arrest. At the time that Garcia was arrested, he had a Parliament brand cigarette, the same brand of cigarette which was found at the crime scene, and $2700 in cash on his person.

Prior to trial, Garcia’s defense counsel filed a motion to suppress evidence alleging that Garcia’s detention on January 6, 2008 was unlawful. At the suppression hearing, Detective Torres and Officer Ta-ber testified to the aforementioned facts regarding their investigation and interaction with Garcia. Additionally, Detective Torres testified during cross-examination that although Garcia was never under arrest on January 6, 2008, the detective did not remember if at any point he or anyone else told Garcia that he was free to leave.

The trial court denied Garcia’s motion to suppress and found that Detective Torres had “sufficient articulable facts to support his reasonable suspicion of possible criminal behavior justifying the investigatory stop” of Garcia. The court further found that Officer Taber, “in the interest of officer safety, reasonably frisked and handcuffed a person reported to be a murder suspect.” According to the trial court, “this brief handcuffing” was a temporary detention and not an arrest. The court also found that Garcia had “freely and voluntarily consented to the search of his residence, two vehicles and his telephone.”

At trial, in addition to the testimony of several witnesses including Detective Torres and Isaac, the state introduced cell phone records from which the jury could infer that Garcia was on Alligator Alley making phone calls from 5:32 p.m. to 7:08 p.m. on the night of the murder. The state also introduced DNA evidence showing that Garcia’s DNA was on the cigarette butt found at the scene of the crime. Additionally, the state introduced and played for the jury the recorded interviews that the police conducted of Garcia on January 6, 2008 and January 9, 2008.

At the charge conference, defense counsel argued that the standard jury instruction on independent act should be given in this case because it was the theory of defense. Defense counsel argued that the defense theory was that Garcia did not know that Jones’s money was counterfeit, did not know who the sellers were or what they were going to do, and only gave Jones a ride. The trial court declined to give the instruction because “in a drug traffic[king offense], violence and murder is always a foreseeable consequence.”

The jury found Garcia guilty of first-degree murder, as charged in the indictment. On the second page of the verdict form, however, the jury found that Garcia did not actually possess a firearm and that Garcia was not the one that actually fired the gun that killed Jones. The trial court then adjudicated Garcia guilty of first-degree murder and sentenced him to life in prison.

Motion to Suppress

On appeal, Garcia argues that the trial court erred in denying his motion to suppress evidence. Garcia claims that the police lacked reasonable suspicion to stop him initially. Garcia further argues that even if police had reasonable suspicion, his detention on January 6th was unlawful because the encounter became a de facto arrest without probable cause when Garcia was transported to the public safety building for questioning. “When reviewing a trial court’s decision on a motion to suppress, an appellate court must defer to the trial court’s factual findings but review legal conclusions de novo.” Gray v. State, 981 So.2d 562, 564 (Fla. 4th DCA 2008) (citation and quotation marks omitted).

In Popple v. State, 626 So.2d 185, 186 (Fla.1993), the Florida Supreme Court explained that “[t]here are essentially three levels of police-citizen encounters.” The first level is “a consensual encounter [which] involves only minimal police contact;” the second level is “an investigatory stop as enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968);” and the third level is “an arrest which must be supported by probable cause that a crime has been or is being committed.” Popple, 626 So.2d at 186.

The trial court concluded, and we agree, that the initial detention of Garcia on January 6, 2008 was an investigatory stop. “During an investigatory stop, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. The officer’s reasonable suspicion must be well-founded and articulable.” Gray, 981 So.2d at 564-65 (citation and quotation marks omitted). “Mere suspicion is not enough to support a stop.” Popple, 626 So.2d at 186. “Whether an officer’s suspicion is reasonable is determined by the totality of the circumstances which existed at the time of the stop and is based solely on facts known to the officer before the stop.” Fuentes v. State, 24 So.3d 1231, 1234 (Fla. 4th DCA 2009) (emphasis added). The totality of circumstances, however, should be interpreted in the light of the officer’s knowledge and experience. See May v. State, 77 So.3d 831, 834 (Fla. 4th DCA 2012).

At the time Detective Torres requested assistance from the Pembroke Pines Police Department in stopping Garcia, Jones’s half brother, Isaac, had informed Detective Torres that he had last seen Jones when he left him at Garcia’s house at 3:00 p.m. on the day of the murder, and that Garcia and Jones were going to conduct a drug transaction involving multiple kilos of cocaine and more than $100,000 in cash. At that point in time, however, Detective Torres had not yet examined Garcia’s historical cell site information and determined that Garcia was on Alligator Alley making phone calls on the evening of the murder.

Detective Torres acknowledged that at the time he questioned Isaac, Isaac was also a suspect and that it took several hours of questioning before Isaac told the detective about the intended drug transaction. Nevertheless, Detective Torres was the one who actually questioned Isaac and was in the best position to determine the veracity of Isaac’s statements. See May, 77 So.3d at 835 (“[I]n determining whether an officer has a reasonable suspicion to conduct an investigatory stop, some deference should be given to the officer’s perspective and the officer’s training and experience.”).

Whether Detective Torres had reasonable suspicion to justify the traffic stop of Garcia on January 6, 2008 is questionable. Nevertheless, when we interpret the evidence in a light most favorable to sustaining the trial court’s ruling, we find that Detective Torres had reasonable suspicion to justify the initial investigatory stop of Garcia to question him or investigate his role in Jones’s death. See Kelly v. State, 77 So.3d 818, 821 (Fla. 4th DCA 2012) (“The trial court’s ruling on a motion to suppress comes to the appellate court with a presumption of correctness, and the court must interpret the evidence, inferences and deductions therefrom in favor of sustaining the trial court’s ruling.”).

Our analysis does not end here, however, because Garcia’s encounter with law enforcement on January 6, 2008 extended far beyond the initial investigatory stop when Garcia was transported back to the BSO public safety building for questioning. Garcia argues that even if the initial detention was proper, the temporary detention at the side of the road was converted into a de facto arrest without probable cause when the police brought him to the police station for further questioning. The state does not argue that transporting Garcia back to the public safety building was part of the investigatory stop nor does it challenge Garcia’s claim that the police lacked probable cause to arrest him on January 6, 2008. Rather, the state contends that Garcia’s interrogation at the police station was a consensual encounter.

“When determining whether a particular encounter is consensual, the Court must look to the totality of the circumstances surrounding the encounter to decide if the police conduct would have communicated to a reasonable person that the person was free to leave or terminate the encounter.” Taylor v. State, 855 So.2d 1, 15 (Fla.2003) (citation and quotation marks omitted). Factors to consider in determining whether a reasonable person would consider himself to be in custody under the totality of circumstances include:

(1) the manner in which police summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his or her guilt; (4) whether the suspect is informed that he or she is free to leave the place of questioning.

Caldwell v. State, 41 So.3d 188, 198 (Fla.2010).

Considering the above factors, we conclude that a reasonable person in Garcia’s position would not have felt free to terminate the encounter with the police after the police had completed their investigatory stop on January 6, 2008.

First, the manner in which the police summoned Garcia for questioning would suggest to a reasonable person that he or she was not free to leave or terminate the encounter. Garcia was stopped while driving legally on a public road. The officers that pulled Garcia over approached his car with their guns drawn and pointed toward him. They ordered Garcia to exit the van, handcuffed him, patted him down, and then put him in the back of a locked patrol car. Although Detective Torres had Gar-eia removed from the patrol car and his handcuffs removed before asking Garcia to come to the public safety building with the officers, a reasonable person in Garcia’s position would likely interpret the previous show of authority as an indication that he had no choice but to comply with Detective Torres’s request.

Additionally, Garcia was never informed that he was not under arrest and that he was free to leave the place of questioning. During cross-examination of Detective Torres at the motion to suppress hearing, defense counsel asked the detective if “[a]nybody ever [told] [Garcia] he was free to leave?” The detective responded, “I don’t remember if I did or not.” Likewise, Officer Taber testified that he never told Garcia that Garcia was free to leave.

Even if Garcia’s initial agreement to return to the public safety building with Detective Torres constituted valid consent, the otherwise consensual encounter matured into a seizure at some point before Garcia’s interrogation began. Garcia was required to abandon his girlfriend’s van on the side of the road and ride to the public safety building in the back of a police car containing a cage between the front and back seat. On the way to the public safety building, the officers and Garcia stopped by a garage where Garcia had said his BMW was being repaired. At the garage, Garcia did not get out of the patrol car and was never offered the opportunity to do so. Cf Schoenwetter v. State, 931 So.2d 857, 867 (Fla.2006) (finding that the defendant was not under de facto arrest where the defendant “voluntarily agreed to accompany the officers to the station when asked, rode in the back of the police car without handcuffs, and exited the car when officers stopped for a snack” (emphasis added)).

At the public safety building, Garcia was led into an interview room in handcuffs. The handcuffs were removed, but Garcia was then left alone in the locked interview room for approximately forty minutes. At that point, Detective Torres returned and read Garcia his Miranda rights. Detective Torres did not, however, tell Garcia that he was not under arrest or that he could leave at any time. In Caldwell, the Florida Supreme Court rejected this court’s conclusion that as a matter of law, an otherwise consensual encounter matures into a seizure when an officer administers Miranda warnings. 41 So.3d at 199-200. Nevertheless, the supreme court recognized that the reading of Miranda warnings is a factor to consider in the totality of circumstances analysis as to whether a consensual encounter matured into a seizure. Id. at 202. Under the circumstances of this case, the police conduct of reading the Miranda warnings after having locked the citizen in an interview room for forty minutes would communicate to a reasonable person that he or she was no longer free to leave regardless of the previous nature of the police encounter.

Thus, based on the totality of these circumstances, we conclude that a reasonable person in Garcia’s position would not have felt that he or she “was free to leave or terminate the encounter.” See Taylor, 855 So.2d at 15. Our decision should not be construed to mean that law enforcement cannot bring consenting citizens to police stations for questions. Nor do we suggest that absent probable cause, it is improper for the police to handcuff potential suspects as they are led through the police station or to place them in locked interview rooms while the officers prepare for questioning. We defer to law enforcement with regard to how to best ensure the safety of officers and other personnel at police stations. Where law enforcement feels the need to use such safety precautions, however, it becomes extremely important that the police clearly explain to the citizen being questioned that he or she is not under arrest and is free to leave at any time.

Having determined that Garcia’s encounter with the police on January 6, 2008 was converted into a de facto arrest without probable cause, we must also determine whether the statements that Garcia made to the police were inadmissible at trial as a result of that illegal arrest. In Adams v. State, 830 So.2d 911 (Fla. 3d DCA 2002), the Third District explained:

In general, a confession obtained during custodial interrogation after an illegal arrest is inadmissible at trial. However, such a confession is admissible as evidence where the State can prove the causal chain between the arrest and the confession is broken. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Roman v. State, 475 So.2d 1228 (Fla.1985).
There are numerous factors which a court must analyze to determine whether a suspect confession is free of the taint of an illegal arrest. The most important factors are: “the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagraney of the official misconduct.” Brown v. Illinois, 422 U.S. at 603, 95 S.Ct. 2254. The taint of an illegal confession cannot be purged solely by the act of reading a defendant his Miranda rights. See Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Ames v. State, 739 So.2d 699 (Fla. 1st DCA 1999).

Id. at 914.

Applying these factors to this case, the statements that Garcia made to the police on January 6, 2008 should have been inadmissible at trial. The statements that Garcia made on January 9, 2008, however, were free of the taint of the illegal arrest. Two full days passed between the de facto arrest and Garcia’s return to the police station on January 9, 2008. Importantly, Garcia drove himself back to the public safety building on this second visit. Additionally, there was no evidence that the de facto arrest was the result of purposeful or flagrant misconduct by the police.

The trial court’s error in admitting Garcia’s January 6th recorded statements into evidence was not harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). During closing arguments, the prosecutor emphasized the fact that Garcia denied for “hours and hours” that he was present at the crime scene. The state also suggested that none of Garcia’s versions of the events were entirely truthful and that his evolving stories over the two days of interrogation proved Garcia was hiding his direct involvement in the murder. Given the inconsistencies in the statements and the prosecutor’s usage of these inconsistencies during closing arguments, we cannot state beyond a reasonable doubt that the impermissible admission of Garcia’s January 6th statements did not affect the jury’s verdict.

Having found that the trial court committed reversible error in denying Garcia’s motion to suppress in its entirety, we are compelled to reverse Garcia’s conviction and remand for a new trial. Garcia’s January 6, 2008 statements should be suppressed and are therefore inadmissible at the new trial. The trial court should also redact any portions of the January 9, 2008 statements which refer to the earlier statements. The trial court will also need to determine if any other physical evidence was tainted by the unreasonable de facto arrest of Garcia on January 6, 2008.

Independent Act Jury Instruction

Just prior to closing arguments, defense counsel claimed that the theory of defense was that Jones’s murder was an “independent act” and requested the trial court to give the standard jury instruction for that defense. The trial court denied this request noting that “violence and murder is always a foreseeable consequence” in drug trafficking offenses. Garcia argues that this was reversible error. We agree.

“An independent act occurs when a co-felon commits or attempts to commit a crime that was not part of the common plan and that the defendant did not intend to occur, and in which the defendant did not participate, and those acts are outside of and not a reasonably foreseeable consequence of the common design or unlawful acts contemplated by the defendant.” Johnson v. State, 36 So.3d 170, 171 (Fla. 3d DCA 2010). Such a defense, however, cannot apply when death was a natural and foreseeable result of the plan. See Archer v. State, 613 So.2d 446, 448 (Fla.1993) (holding that the independent act theory is inappropriate when the defendant created the situation and the victim’s death was a natural and foreseeable result of forces which the defendant set in motion). For this reason, we have consistently held that the independent act instruction is not appropriate when a co-felon murders someone during the commission of an armed robbery. See, e.g., Washington v. State, 873 So.2d 1268, 1270 (Fla. 4th DCA 2004) (“A shooting that occurs during an armed robbery with a firearm does not exceed the scope of the armed robbery so that an independent act instruction is required.”).

We have never held, however, that any felony which the legislature has enumerated as an underlying felony for felony murder indicates that “murder is always a foreseeable consequence” of that felony. For example, in Charles v. State, 945 So.2d 579 (Fla. 4th DCA 2006), we determined that a trial court had committed reversible error in refusing to give the independent act instruction in a felony murder case where one of the underlying felonies was burglary. Id. at 581-82. The defendant in Charles testified that the “plan” was to go to the victim’s house and scare him into repaying a debt. His co-felons were supposed to do this using unloaded guns. One of his co-felons, acting independently of the plan, used a loaded weapon and shot the victim. We found that based on the defendant’s testimony, a jury could find that the co-felon’s actions were “outside of, and ... foreign to, the common design of the original collaboration.” Id. at 583. In reaching our conclusion as to why the shooting was not foreseeable, we noted that if the defendant’s trial testimony was to be believed, “there was never any plan to rob the victim.” Id.

Here, Garcia’s statement to police — or at least his last version of the incident — was that he had agreed to drive Jones to a drug transaction that Jones himself arranged. Garcia understood that Jones’s intention was to purchase multiple kilos of cocaine for more than $100,000 in cash. Garcia claimed, however, that he did not even know who the sellers in the transaction were. Garcia heard one of the sellers shout that Jones’s money was fake and then witnessed the man shoot Jones in the head. Based on Garcia’s statements to law enforcement, a jury could find that Jones’s murder was outside of and not a reasonably foreseeable consequence of the drug transaction contemplated by Garcia.

Furthermore, the error in failing to give the independent act instruction was not harmless. Contrary to the state’s contention that “there was absolutely no evidence of another shooter,” the jury found that while Garcia was guilty of first-degree murder, Garcia did not “actually possess a firearm,” did not “actually discharge a firearm,” and did not “actually inflict death to [Jones] as a result of discharging a firearm in his possession.”

Conclusion

We find that the trial court committed reversible error in admitting Garcia’s January 6, 2008 statements to law enforcement and in denying defense counsel’s request to have the jury instructed on the independent act defense. Accordingly, we reverse Garcia’s conviction and remand for a new trial. At the new trial, the trial court should suppress Garcia’s January 6th statements, redact portions from the January 9th statements which refer to the earlier statements, and instruct the jury on the independent act defense if the state presents Garcia’s January 9th statements as evidence at the new trial.

Reversed and remanded for a new trial.

GERBER and LEVINE, JJ., concur.

      . Defense counsel was referring to Florida Standard Criminal Jury Instruction 3.6{l).


text:
    Roberto RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3313.
    District Court of Appeal of Florida, Third District.
    May 16, 2012.
    Carlos J. Martinez, Public Defender, and Daniel Tibbitt, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before CORTINAS, LAGOA, and SALTER, JJ.
   PER CURIAM.

The defendant, Roberto Rodriguez, appeals the denial of his motion to suppress his confession and his conviction and sentence for burglary of an unoccupied structure, grand theft, and criminal mischief. As the primary issue regarding the motion to suppress was previously addressed by this Court (the trial court ruling was affirmed per curiam in Rodriguez v. State, No. 3D10-1968, 2011 WL 6823964, 2011 Fla.App. LEXIS 20611 (Fla. 3d DCA Dec. 28, 2011)), we address only Rodriguez’s second issue. Rodriguez argues that a new trial is required because the trial court reversibly erred in overruling duly preserved objections to improper State bolstering of a key police officer’s testimony. We find this argument well taken, and we reverse the conviction and sentence and remand the case for that reason.

The detective who elicited the confession from Rodriguez, and whose testimony at trial was clearly critical, was asked during cross-examination:

Q. Your station has cameras that you can take photographs of suspects, right?
A. My camera, yes. Do I use it to take that picture, yes.
Q. You didn’t take any pictures?
A. I didn’t take any pictures.
Q. So we just take your word on it?
A. Yes.

At the conclusion of the detective’s testimony, the following series of questions and answers occurred between the prosecutor and witness:

Q. Detective, would you put your career on the line for this case.
[Defense Counsel]: Objection, improper bolstering.
The Court: Overruled.
Q. Would you?
A. I would not.
Q. Would you lie?
A. No.
Q. Would you risk going to jail for perjury in order to arrest this person?
A. No or anybody else.
Q. No further questions.

In closing argument, the defense argued:

Trust us. That is what the government and [the detective] wants you to do today.
... They just want you to believe what [the detective] said on the stand, something that occurred over a year ago.
The State brings you two pictures, one that says Subways on the top and a picture of a broken glass. They don’t tell you what the inside looks like. They don’t bring you a picture of the register, nothing. Trust us. We are just going to bring you the [bare] minimum and that’s going to be enough, because they just want you, want you to trust them.

Additionally, the defense argued that the detective “conveniently” arrested Rodriguez solely for the purpose of closing a case.

In closing argument, one prosecutor stated:

[The detective] didn’t even think when they responded that it would be this defendant and later on he meets with the defendant and the defendant confesses these things. [The detective] does not have a vendetta against this man. He doesn’t want to see this man in prison. He doesn’t want to see this man get hurt. He has no reason to put his job on the line. He told you that.

The defense again objected to improper bolstering, and the objection was again overruled. The prosecutor concluded, “And he has no reason to perjure himself today for — .” The defense objected and the objection was again overruled. In rebuttal closing, a different prosecutor stated: “This detective has no reason to lie to you, ladies and gentlemen. He testified that he would not perjure himself.” The defense objected again and the objection was overruled again. The prosecutor continued, “ — that he wouldn’t perjure himself. That he doesn’t have anything against this man.” Later, the prosecutor said, about the same detective, “Yes, he wants you to trust him because he is trustworthy. There is no reason for him to lie to you. He told you that. You could judge his credibility.”

We and other Florida appellate courts have left no doubt that ham-handed efforts at bolstering — “would you lie under oath to send this defendant to jail?” and questions and arguments to similar effect — are “patently improper and violative of the rules of professional conduct.” Fryer v. State, 693 So.2d 1046, 1047 (Fla. 3d DCA 1997). In this case, as in Fryer, the “invited reply” rule is unavailing. On this record, the improper bolstering was not harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). The conviction and sentence are therefore reversed, and the case is remanded to the trial court for a new trial.


author: CONNER, J.

text:
    Joseph NASTASI, Appellant, v. Daniel Lynn THOMAS, Appellee.
    Nos. 4D09-5063, 4D10-722.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2012.

      John H. Pelzer and Robin F. Hazel of Ruden McClosky, P.A., Fort Lauderdale, for appellant.
    Robert L. Jennings of Jennings and Va-lancy, P.A., Stuart, for appellee.

      . The notice of appeal makes reference to a November 17 order, but the copy of the order attached to the notice of appeal is dated November 10.

   CONNER, J.

This is an appeal and cross-appeal involving two non-final orders. After reviewing the record carefully, we determine that we are without jurisdiction to address the issues raised on appeal and cross-appeal, except the denial of relief under Rule 1.540(b), Florida Rules of Civil Procedure. We find the trial court properly denied relief under Rule 1.540(b). Thus, we affirm the trial court’s denial of Rule 1.540(b) relief and dismiss the rest of the appeal and cross-appeal.

This litigation revolves around a written settlement agreement to extinguish an existing easement and obtain an alternate easement. Despite the settlement agreement, litigation has been ongoing for years. The trial court has entered various orders determining noncompliance with the settlement agreement, including findings of contempt. Joseph Nastasi, one of the defendants below, filed multiple motions seeking to vacate certain orders regarding compliance with the settlement agreement and seeking a determination that the settlement agreement is unenforceable as null and void.

Nastasi filed a notice of appeal as to the order of the trial court entered on November 10, 2009. The order pertained to a hearing on Plaintiff Daniel Thomas’s motion for fees and costs for noncompliance with the settlement agreement and Nasta-si’s cross-motions to vacate prior orders determining noncompliance. The hearing was conducted over several days, beginning September 8, 2008, continuing on February 27 and August 7, 2009, and concluding on November 2, 2009. In the November 10 order, the trial court ruled:

ORDERED AND ADJUDGED as follows:

1. Plaintiffs Renewed Motion to Enforce Settlement Agreement should be and the same is hereby GRANTED, as set forth in the attached transcript of the November 2.2009 hearing.
2. To the extent Plaintiff sought contempt sanctions against Defendant Nastasi, that relief should be and is hereby DENIED, as set forth in the attached transcript.
3. Defendant Nastasi’s Motion to Vacate Court Orders should be and the same is hereby DENIED as set forth in the attached transcript.
4. Ruling is reserved as to the amount of fees and costs to be awarded Plaintiff since the last fee award in this case on August 25, 2006.
5. The parties are directed to mediate.

(Emphasis added.) Attached to the order is a transcript of the hearing which explains the trial judge’s analysis leading to his rulings.

On November 30, 2009, the trial judge signed a second order regarding the same hearing. In that order, the trial court ruled:

1. Plaintiffs Renewed Motion to Enforce Settlement Agreement is GRANTED.
2. Plaintiffs Motion for Contempt Sanctions is DENIED.
3. The Motion to Set Aside the Settlement Agreement is DENIED.
4. Joseph Nastasi and Frank Volinsky have not fully complied with the terms of the Settlement Agreement.
5. Based on the Settlement Agreement, there is no contractual obligation for Joseph Nastasi to obtain the easement over the Eassey property.
6. Joseph Nastasi and Frank Volinsky are required to comply with the terms of the Settlement Agreement.
7. The parties are ordered to Mediation.
8. This Court reserves ruling on attorney’s fees and costs in this matter.

(Emphasis added.) The rulings of both orders are the same except that the November 30 order contains two written determinations regarding compliance with the settlement agreement not found within the November 10 order. Those determinations were stated in the transcript attached to the November 10 order.

On December 2, 2009, Nastasi filed a motion for clarification directed to the November 10 order. Before any hearing was set on the motion for clarification, Nastasi filed this appeal. Nastasi obtained leave to proceed with the motion for clarification before the trial court. Thomas then filed a motion to vacate the November 30 order and to deny the motion for clarification. On January 25, 2010, the trial court entered an order on Thomas’s motion to vacate the November 30 order. The order entered by the trial court on January 25 contained the following rulings:

The motion to vacate 11/30/09 Order is Denied; said Order shall remain in effect.
The Court hereby vacates the Order of this Court dated November 17, 2009.
The Defendants’ Motion for Sanctions as heard this date is Denied.

Thomas filed a cross-appeal as to the January 25 order.

Nastasi contends in his brief that we have jurisdiction to entertain this appeal because the trial court’s order granting a motion to enforce the settlement agreement constitutes a final order, citing Baron v. Provencial, 908 So.2d 526 (Fla. 4th DCA 2005); Spiegel v. H. Allen Holmes, Inc., 834 So.2d 295 (Fla. 4th DCA 2002); Nichols v. May Department Stores Co., 632 So.2d 293 (Fla. 4th DCA 1994); and Travelers Indemnity Co. v. Walker, 401 So.2d 1147 (Fla. 3d DCA 1981) as authority for jurisdiction. We find those cases inapposite because in each case, the order enforcing the settlement agreement made it clear that no further judicial labor was needed on the primary issues in the litigation.

Here, the trial court determined it was appropriate to send the parties to mediation. Thus, it cannot be said that no further judicial labor is needed. Since both November orders will require additional judicial labor after mediation, the rulings regarding enforcement in both orders are non-final and non-appealable. Because both are virtually the same and because the November 30 order avoids having to review a transcript to determine what the court actually ruled, it makes sense that the trial court would vacate the November 10 order. The cross-appeal as to the January 25 ruling regarding the motion for sanctions likewise is a non-final, non-appealable order.

Alternatively, Nastasi asserts we have jurisdiction pursuant to rule 9.130(a)(3)(B), Florida Rules of Appellate Procedure, because the trial court’s order is in the nature of an injunction; pursuant to Rule 9.130(3)(a)(C)(ii), because the trial court’s order concerns real property and has left Nastasi without access to his property; and pursuant to Rule 9.130(a)(5), because the trial court’s order is an order denying an authorized and timely motion for relief from judgment. The record does not support the first two assertions for jurisdiction. Neither of the November orders constitutes an injunction nor gives the right of immediate possession of property to any party.

The rulings denying Rule 1.540 relief are the only portions of the non-final orders that are appealable. Fla. RApp. P. 9.130(a)(5). Nastasi asserted in his motion that the prior orders should be vacated because as contempt orders they are void and because newly discovered evidence justifies relief from those orders. We do not find Nastasi’s arguments that the orders are void to have merit. The trial court properly denied the motion to vacate on those grounds.

We likewise find no merit to Nastasi’s assertion that the prior orders should be vacated because of newly discovered evidence. First, the motion for relief of judgment is untimely since it was filed more than one year after the orders being attacked. Fla. R. Civ. P. 1.540(b). Second, Nastasi’s assertion that he exercised his option to declare the settlement agreement null and void after the trial court entered the orders finding he had not complied with the settlement agreement does not constitute newly discovered evidence to grant relief under Rule 1.540(b). “A motion for rehearing based on newly discovered evidence should be granted when ... it appears that new evidence is such that it will probably change the result of the proceedings.” Edrington v. Edrington, 945 So.2d 608, 610 (Fla. 4th DCA 2006). Evidence that comes into existence after the court determines non-compliance with a settlement agreement cannot possibly change the outcome of a decision as to whether a party is in compliance with an agreement as of the date of the hearing.

Thomas does not assert in his brief on cross-appeal any basis for jurisdiction regarding the non-final order he appealed, and we find no basis for jurisdiction for the cross-appeal.

As noted by the trial court, there have been years of litigation revolving around a settlement agreement, yet the underlying easement dispute remains unresolved. To hopefully avoid future appellate issues, because further enforcement proceedings are likely, we make an observation for the benefit of the parties and the trial court: contempt sanctions are appropriate only when a court order has been violated. A settlement agreement must be incorporated into a court order approving it, and the order must also direct the parties to comply with it before contempt sanctions are appropriate. See Holmes v. Coolman, 401 So.2d 895 (Fla. 4th DCA 1981) (explaining former wife could not be held in contempt for violation of an agreement not incorporated in any court order); Gilman v. Altman, 300 So.2d 703 (Fla. 3d DCA 1974) (stating where no order directing execution of a deed appeared in the record, order of contempt cannot stand).

We determine that none of the non-final orders appealed are appealable under Rule 9.130, Florida Rules of Appellate Procedure, except the ruling which denied the motion to vacate pursuant to Rule 1.540(b), Florida Rules of Civil Procedure. For the reasons discussed above, we affirm the denial of the motions to vacate to the extent they assert grounds under Rule 1.540(b), and we dismiss the rest of the appeal and cross-appeal.

Affirmed, in part and dismissed in part.

POLEN and GROSS, JJ., concur.

      . Nastasi maintains on appeal that the trial court entered an order on November 17, 2009. However, the record supplied to this court contains no order with that date. Although the trial court entered an order on January 25, 2010, which makes reference to a November 17 order, it appears on closer inspection of the November 10 order that the handwritten number 'TO” has an appearance of maybe being ”17,” so we assume Nastasi and the trial court mistakenly referred to the November 10 order as the November 17 order.

      . The motion actually made reference to a November 17 order, but again, we find no order dated November 17, so it appears the motion was really directed to the November 10 order.

      . Again, it appears the trial court was actually referring to the November 10 order.

      . Nastasi contended the orders are void because he did not have notice of the hearing conducted on March 3, 2008, in which he was found in contempt. The trial court properly determined Nastasi had notice of the hearing. Nastasi also contends the orders are void because they do not state a finding that he had the ability to comply with prior court orders. That argument has no merit because the orders attacked did not impose any sanctions.


author: DAMOORGIAN, J.

text:
    Jeremy Lee SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-77.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2012.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Jeremy Lee Smith appeals his conviction and sentence for manslaughter. This case involved the death of a fourteen-month old child who Smith was babysitting at the time of the child’s death. Smith raises two issues on appeal. He argues that the trial court erred by denying his motion for judgment of acquittal and in allowing testimony regarding his drug use on the night before the commission of the crime. We affirm.

Regarding the first issue, at the conclusion of the State’s case, Smith moved for a judgment of acquittal, arguing that the State’s circumstantial evidence case did not refute the reasonable hypothesis of innocence that the child’s death was accidental. The State counters that it introduced direct evidence rebutting Smith’s theory of how the death occurred. This evidence included medical expert testimony that the cause of death was blunt trauma to the head, and that the child’s injuries were inconsistent with the scenario expressed by Smith that the child fell off a bed onto a carpeted floor.

The testimony in this ease rebutted Smith’s theory of the victim’s injuries similar to Caban v. State, 892 So.2d 1204 (Fla. 5th DCA 2005). In Caban, the defendant argued “that the court erred in denying his motion for judgment of acquittal because the evidence did not exclude every hypothesis of innocence.” Id. at 1207. The Fifth District affirmed the denial of the judgment of acquittal. Id. at 1208. In reaching its holding, the court noted the extensive medical evidence presented at trial. See id. This is precisely what occurred in this case. Accordingly, the trial court did not err in denying the motion for judgment of acquittal.

Next, Smith argues that the trial court erred in admitting portions of his statement made to police about his drug use the night before the incident. Smith claims that the evidence of these uncharged crimes “was not inextricably intertwined with the facts of the alleged homicide and became a feature of the trial.” See Griffin v. State, 639 So.2d 966, 968 (Fla.1994) (providing that evidence which is inseparable from the crime charged is admissible under section 90.402 because “it is a relevant and inseparable part of the act which is in issue.... [I]t is necessary to admit the evidence to adequately describe the deed”) (quoting Charles W. Ehrhardt, Florida Evidence § 404.17 (1993 ed.)). Smith’s argument is without merit.

The State correctly points out that Smith’s drug use was inextricably intertwined because the State “needed to establish the entire context in which the injury occurred, Smith’s state of mind when [the child’s] injury took place, and his motive to commit the manslaughter/murder.” See Bradley v. State, 787 So.2d 732, 742 (Fla.2001) (“[I]t is permissible to introduce evidence which helps put the entire case in perspective to the extent, of course, that its relevance is not substantially outweighed by its prejudicial effect.”) (citation omitted).

Smith’s drug use the night before the incident adequately described the events leading up to the charged crimes. According to Smith’s testimony, he did not want to take care of the child on the date of the incident because he was using drugs. See Caruso v. State, 645 So.2d 389, 394 (Fla.1994) (holding that testimony “regarding Caruso’s drug-related activities established the relevant context in which the criminal acts occurred, Caruso’s state of mind when the murders took place, and his motive to commit a burglary, which in turn was relevant to the State’s felony-murder theory”); see also McGirth v. State, 48 So.3d 777, 787 (Fla.2010) (“[Ejvidence as to the defendant’s drug-based relationship with the victims’ daughter was relevant and inextricably intertwined with the crimes charged” because it explained the events leading up to the murders.).

Based upon the foregoing, we affirm Smith’s judgment and sentence.

Affirmed.

MAY, C.J., and CONNER, J., concur.


text:
    Maurice LANDELL, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D10-1434, 4D10-1435.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2012.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   CONNER, J.

Maurice Landell appeals the summary denial of his motion for post-conviction relief. The trial court denied the motion as moot. We reverse.

In one ease (“the drug case”), Landell pled no contest to trafficking in cocaine; possession of cocaine, cannabis, and drug paraphernalia; and driving without a license. At the same time, he entered a plea admitting a violation of probation on a charge of exploiting the elderly in another case. He was sentenced on both cases the same day he entered his pleas. The next day he filed a pro se motion to withdraw his plea in the drug case. Approximately one month later, he filed a pro se motion for post-conviction relief in the drug case raising thirteen claims, including: his plea was involuntary, the prosecution failed to disclose favorable evidence, the convictions violated double jeopardy, ineffective assistance of counsel, and newly discovered evidence. The trial court appointed conflict-free counsel for Landell. On December 18, 2008, approximately one month after the motion for post-conviction relief was filed, two weeks after the appointment of counsel, and prior to any hearing on the motion to vacate the plea, the trial court entered a one-page order summarily denying the motion for post-conviction relief, stating:

The issues raised in Defendant’s post conviction relief pleadings are related to Defendant’s plea. Having considered the defendant’s motions, the court file, applicable law, and being otherwise fully advised in the premises, this Court finds as follows:
Defendant is not entitled to the relief requested. On October 15, 2009, Defendant filed a pro se Motion to Withdraw Plea. On December 3, 2009, counsel was appointed to Defendant and a hearing was set on January 13, 2010 to hear Defendant’s Motion to Withdraw Plea. Accordingly, it is ORDERED AND ADJUDGED that for the above-stated reasons Defendant’s motion is DENIED as being MOOT.

It does not appear the motion was denied as being legally insufficient, and no copies of record documents were attached to refute any of the claims.

On March 25, 2010, the trial court conducted an evidentiary hearing on the motion to withdraw the plea. A review of the transcript clearly shows that several of the issues raised in the motion for post-conviction relief were not addressed at the hearing.

We first observe that the motion was premature because it was filed while a Rule 3.170(1) motion to vacate plea was pending and before the judgment had become final. “A timely motion to withdraw plea delays rendition of a defendant’s judgment and sentence until the trial court files a signed, written order disposing of the motion.” Clemons v. State, 3 So.3d 364, 365-366 (Fla. 2d DCA 2009). It is improper to consider a Rule 3.850 motion before the underlying judgment is final. Camon v. State, 57 So.3d 972 (Fla. 3d DCA 2011).

Even if it had been proper for the trial court to consider the motion, “[a] summary denial of a motion for post-conviction relief will be affirmed only when the trial court either states ‘its rationale in the order denying relief or attaches portions of the record that would refute the claims.’ ” Torres v. State, 9 So.3d 746, 747-48 (Fla. 4th DCA 2009) (quoting Nixon v. State, 932 So.2d 1009, 1018 (Fla. 2006)) (alteration omitted). In this case, the only rationale for summarily denying the motion was that it was moot. However, the motion raised issues that were not decided at the hearing on the Rule 3.170(() motion. The trial court did not give a rationale for denying those issues not previously raised, or attach portions of the record refuting those claims.

Reversed and remanded.

POLEN and GROSS, JJ„ concur.

      . Landell was represented by the regional conflict counsel when he entered his pleas in both cases.

      . The pro se motion to withdraw the plea mentions only the charge of trafficking in cocaine.

      . The pro se motion for post-conviction relief mentions all of the charges to which he pled in that case. We note that court-appointed counsel did not adopt or amend the pro se motion for post-conviction relief.

      .The order indicates it is for the motion for post-conviction relief, but the Public Defender also represented him on the motion to withdraw his plea.


author: STEVENSON, J.

text:
    Anthony ACOSTA, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee in trust for the benefit of the Certificateholders for Ameriquest Mortgage Securities Trust 2006-M3, Asset-Backed Pass-Through Certificate, Series ARSI 2006-M3, Appellee.
    No. 4D10-3835.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2012.

      Nicole Neustein of Charles L. Neustein, P.A., Miami Beach, for appellant.
    Heidi J. Weinzetl of Shapiro & Fishman, LLP, Boca Raton, for appellee.
   STEVENSON, J.

Anthony Acosta challenges an order denying, without an evidentiary hearing, his rule 1.540(b) motion for relief from a final summary judgment of foreclosure in favor of appellee, Deutsche Bank National Trust Company (“Bank”). Because appellant’s motion alleged a colorable entitlement to relief under rule 1.540(b) due to excusable neglect and showed the existence of meritorious defenses, we reverse and remand for a hearing on the motion.

In May of 2008, Bank filed a foreclosure suit concerning property in Broward County; Anthony Acosta was among the named defendants. In October of 2009, Acosta’s attorney, Charles Neustein, filed an unsigned motion to withdraw. The motion to withdraw was not ruled upon. Bank filed a motion for summary judgment on February 3, 2010. A notice of a February 25, 2010 hearing on the motion for summary judgment was served on February 1, 2010; the notice indicates it was served on Acosta through Attorney Neustein. On February 25, 2010, the trial court rendered a final summary judgment of foreclosure in favor of Bank. The judgment contains a certificate of service, indicating it was served on Acosta through Attorney Neustein.

On June 10, 2010, Acosta, through Attorney Neustein, filed a “Verified Motion to Set Aside Final Judgment of Foreclosure and Stay Foreclosure Sale.” The motion alleged the final judgment was entered after counsel inadvertently failed to attend the summary judgment hearing due to his paralegal’s failure to calendar the hearing; the motion is signed and “sworn to” by counsel and the paralegal. Counsel also asserted he did not receive a copy of the motion for summary judgment, the affidavit of Bank’s counsel in relation to the motion for summary judgment, or the notice of hearing on the motion for summary judgment. According to counsel, after the filing of his motion to withdraw, he did not receive any pleadings, responses to discovery, or orders or notices, with the exception of an amended affidavit by Bank’s counsel on February 18, 2010, and a motion to reschedule foreclosure sale. Neustein contended it was the motion to reschedule that provided him the first notice of the final judgment.

The record does not contain a written response to the 1.540(b) motion or a transcript of any hearing held on the motion. It appears the hearing was held during motion calendar and was non-evidentiary. The trial court denied the 1.540(b) motion without explanation.

Florida Rule of Civil Procedure 1.540(b) authorizes the trial court to relieve a party from a final judgment based upon “mistake, inadvertence, surprise, or excusable neglect.” A trial court’s denial of 1.540(b) relief is reviewed for an abuse of discretion. See, e.g., SunTrust Bank v. Puleo, 76 So.3d 1037, 1039 (Fla. 4th DCA 2011). Despite the broad discretion reposed in the trial court, we find an abuse of discretion in the instant case and must reverse. Appellant’s claim that a failure to appear due to a calendaring or clerical error is the type of “excusable neglect” or “mistake” that warrants relief under rule 1.540(b) is well-supported in Florida law. See, e.g., J.J.K. Int’l, Inc. v. Shivbaran, 985 So.2d 66, 68-69 (Fla. 4th DCA 2008) (holding it was error to deny 1.540(b) motion seeking relief from order of dismissal entered after counsel failed to appear at hearing on motion to dismiss because secretary mistakenly marked hearing as “can-celled”); Wilson v. Woodward, 602 So.2d 547, 549 (Fla. 2d DCA 1992) (holding it was abuse of discretion to deny 1.540(b) relief from summary judgment after plaintiffs counsel failed to appear for hearing due to secretary’s failure to calendar). Here, the alleged calendaring error was supported by the verified motion, signed and sworn to, by both counsel and the paralegal that made the error. The appellant thus made a colorable claim which satisfied the excusable neglect prong for relief under rule 1.540(b).

Additionally, Florida law also requires that the party seeking relief under rule 1.540(b) demonstrate a meritorious defense. See America’s Yate de Costa Rica v. Armco Mfg., Inc., 82 So.3d 882, 885 (Fla. 4th DCA 2011). Appellant satisfied this requirement for relief as well. The verified motion alleged the existence of meritorious defenses, i.e., Bank’s failure to comply with the forbearance, mortgage modification and foreclosure prevention loan servicing requirements imposed by the National Housing Act, 12 U.S.C. § 1701x(c)(5); Bank’s failure to comply with all conditions precedent to acceleration of the note and mortgage; Bank’s failure to send, and appellant’s failure to receive, the notices that are a condition precedent to acceleration; and that appellant does not owe the amount sued for.

Accordingly, we reverse the order denying relief under rule 1.540(b). On remand, the court should conduct a limited eviden-tiary hearing on the motion so that Bank may have the opportunity to dispute the factual allegation of lack of notice made in support of the motion. See Chancey v. Chancey, 880 So.2d 1281, 1282 (Fla. 2d DCA 2004) (noting that, where rule 1.540(b) motion alleges a colorable entitlement to relief, court should conduct a limited evidentiary hearing on the motion).

Reversed and Remanded for further proceedings.

WARNER and CONNER, JJ„ concur.


text:
    James Dontavius ALEXANDER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4903.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2012.

      Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The issue presented in this case is whether a defendant is required to be sentenced to a nonstate prison sanction under section 775.082(10), Florida Statutes (2010), where he also meets the requirements for sentencing as a habitual felony offender. We find that the trial court correctly sentenced appellant as a habitual offender to four years in prison, as the Criminal Punishment Code does not apply in this case.

Section 775.082(10) provides, in pertinent part:

If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction.

Appellant met the requirements of this statute, as he committed the offense of driving while license suspended on May 3, 2010, the offense is a third-degree felony, and appellant scored 15.4 points.

However, during the sentencing hearing, appellant conceded that he also met the requirements for habitual offender designation. Section 775.084(3)(a)6. of the habitual offender statute states:

For an offense committed on or after October 1, 1995, if the state attorney pursues a habitual felony offender sanction or a habitual violent felony offender sanction against the defendant and the court, in a separate proceeding pursuant to this paragraph, determines that the defendant meets the criteria under subsection (1) for imposing such sanction, the court must sentence the defendant as a habitual felony offender or a habitual violent felony offender, subject to imprisonment pursuant to this section....

This statute, by its terms, requires that the trial court impose a habitual offender sentence where, as here, the criteria of the statute are otherwise met. Moreover, a sentence imposed under the habitual offender statute is not subject to the Criminal Punishment Code. See 775.084(4)(h), Fla. Stat.; State v. Collins, 985 So.2d 985, 991 (Fla.2008). Section 775.082(10) refers to the Criminal Punishment Code in designating the total sentence points allowed under section 921.0024. Because the trial court sentenced appellant as a habitual offender, the Criminal Punishment Code is inapplicable. As the trial court noted, the legislature was aware of the habitual offender statute when it enacted section 775.082(10). If the legislature intended for section 775.082(10) to apply in lieu of the habitual offender statute, it would have explicitly stated so.

Affirmed.

POLEN, HAZOURI and LEVINE, JJ., concur.