text:
    Brenda YANCY, Petitioner, v. STATE of Florida, Respondent.
    No. 4D12-709.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2012.

      Howard Finkelstein, Public Defender, and Diane M. Cuddihy, Executive Chief Assistant Public Defender, Fort Lauder-dale, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

The defendant, whom the circuit court found to be incompetent, petitions for a writ of certiorari. She seeks to quash the court’s order directing her “to submit to a risk assessment evaluation conducted by the expert retained by the State of Florida for such evaluation.” She argues that the order departs from the essential requirements of law because: (1) no statute or rule authorizes a “risk assessment evaluation” of a defendant adjudicated incompetent; and (2) the order requires her to be examined by a state-retained expert instead of a court-appointed expert on a competency-related issue. We agree in part with the first argument, and agree in full with the second argument. Thus, we grant the petition.

The state charged the defendant with two counts of strong-arm robbery for two purse snatchings. In one of the incidents, the probable cause affidavit alleged that the defendant punched the victim in the jaw. The circuit court initially found the defendant was incompetent to proceed. Two years later, the court found the defendant had been restored to competency. The defendant then pled guilty to both charges. The court placed the defendant on probation for seven years.

Two years into the probationary period, the court again found that the defendant was incompetent to proceed. The court directed that the defendant be placed at a group home while receiving treatment to be restored to competency.

Four months into the defendant’s stay at the group home, she allegedly pushed a pregnant resident to the ground. The state charged the defendant with aggravated battery on a pregnant woman and alleged that the incident violated the defendant’s probation.

When the aggravated battery case came before the court for review, the court found that the defendant was incompetent to proceed in that case as well. In making that finding, the court stated that it may have to re-evaluate the defendant’s placement given that “the criteria is harm to herself or others.” The prosecutor responded, “I’ll do a risk assessment as well.” Defense counsel objected, arguing “There is no provision in the statute that allows the state to have a doctor evaluate her.” Defense counsel further argued that the court should appoint an expert to evaluate the defendant for placement. The court overruled the defense objection. The court later entered a one-sentence order directing the defendant “to submit to a risk assessment evaluation conducted by the expert retained by the State of Florida for such evaluation.”

This petition followed. The defendant argues that the order departs from the essential requirements of the law because: (1) no statute or rule authorizes a “risk assessment evaluation” of a defendant adjudicated incompetent; and (2) the order requires her to be examined by a state-retained expert instead of a court-appointed expert on a competency-related issue. We have jurisdiction to consider these arguments because once the evaluation occurs, it cannot be undone on appeal. Cf. Olges v. Dougherty, 856 So.2d 6, 10 (Fla. 1st DCA 2003) (in civil cases, “[ijnter-locutory orders requiring mental examinations are held to cause harm of a kind that cannot be remedied on appeal from final judgment.... [T]he required element of irreparable harm may be found based on the notion that once the invasive harm of the examination occurs, it cannot be undone on appeal.”) (citations and internal quotations omitted).

On the first argument, we conclude that the circuit court’s one-sentence order describing the evaluation to be conducted as a “risk assessment evaluation” is insufficient as a matter of law. Section 916.13(1), Florida Statutes (2011), authorizes a court to order what may be characterized as a “risk assessment evaluation” of a defendant adjudicated incompetent, but only as part of a broader evaluation of whether the defendant may be involuntarily committed for treatment. Section 916.13(1), entitled “Involuntary commitment of defendant adjudicated incompetent,” provides:

Every defendant who is charged with a felony and who is adjudicated incompetent to proceed may be involuntarily committed for treatment upon a finding by the court of clear and convincing evidence that:
(a)The defendant has a mental illness and because of the mental illness:
1. The defendant is manifestly incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and,, without treatment, the defendant is likely to suffer from neglect or refuse to care for herself or himself and such neglect or refusal poses a real and present threat of substantial harm to the defendant’s well-being; or
2. There is a substantial likelihood that in the near future the defendant will inflict serious bod,ily harm on herself or himself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm;
(b) All available, less restrictive treatment alternatives, including treatment in community residential facilities or community inpatient or outpatient settings, which would offer an opportunity for improvement of the defendant’s condition have been judged to be inappropriate; and
(c) There is a substantial probability that the mental illness causing the defendant’s incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future.

(emphasis added).

The emphasized language, which may be characterized as a “risk assessment evaluation,” is only part of the broader evaluation authorized under the entirety of section 916.13(1) to determine whether a defendant adjudicated incompetent may be involuntarily committed for treatment. Thus, the circuit court’s one-sentence order describing the evaluation to be conducted as a “risk assessment evaluation” is insufficient as a matter of law. Rather, the order should have described the evaluation as an “involuntary commitment evaluation,” i.e., an evaluation to determine whether the defendant may be involuntarily committed for treatment under section 916.13(1). The order then should have described the scope of the evaluation by tracking verbatim the criteria contained in subsections (a), (b), and (c) of section 916.13(1). Cf Fla. R.Crim. P. 3.210(b)(4) (2011) (order appointing experts to determine whether the defendant is incompetent must: “(A) identify the purpose or purposes of the evaluation, including the nature of the material proceeding, and specify the area or areas of inquiry that should be addressed by the evaluator; (B) specify the legal criteria to be applied; and (C) specify the date by which the report should be submitted and to whom the report should be submitted.”). See also Fla. R.Crim. P. 3.210(b)(4), Committee Notes 1988 Amendment (rule 3.210(b)(4) requires specificity in the order because such court-appointed experts “often do not understand the specific purpose of their examination or the specifics of the legal criteria to be applied.”).

On the second argument, we agree with the defendant that the order improperly requires her to be examined by a state-retained expert instead of a court-appointed expert on a competency-related issue. As our supreme court stated in Caraballo v. State, 39 So.3d 1234 (Fla.2010):

It is well-settled that a criminal prosecution may not move forward at any material stage of a criminal proceeding against a defendant who is incompetent to proceed.... This fundamental principle is grounded in the right to due process of law, a right which is afforded to criminal defendants under both the United States Constitution and the Florida Constitution.
As a result of the court’s obligation to ensure that the material stages of a prosecution not proceed against a criminal defendant while the defendant is mentally incompetent, any defendant may be subjected to a mandatory competency evaluation and, consequently, subjected to the risk of saying something or responding in a manner that is detrime?ital to or incriminates the defendant. It is for this reason that the protection of confidentiality is afforded to the substance of a defendant’s competency evaluation.

Id. at 1252-53 (emphasis added; internal citations omitted).

Given the foregoing principle, no statute or rule allows the state to retain an expert to examine a defendant on a competency-related issue. Cf. State v. Zapetis, 629 So.2d 861, 861-62 (Fla. 4th DCA 1993) (denying state’s petition for writ of certiorari seeking to conduct its own neu-ropsychological examination of a defendant before a hearing on the defendant’s competency to stand trial). The same reasoning justifies the conclusion that court-appointed experts, and not state-retained experts, must be used to determine whether a defendant adjudicated incompetent may be involuntarily committed for treatment. Cf. Parkin v. State, 238 So.2d 817, 821 (Fla.1970) (“Experts appointed by the Court to ascertain mental capacity are neither prosecution nor defense witnesses, but neutral experts working for the Court, and their findings and opinions are subject to testing for truth and reliability by both prosecution and defense counsel.”).

We recognize that our supreme court, by its rules, has allowed the state to appoint experts to examine a defendant when the defendant asserts a mental health defense such as insanity or has put his or her mental health at issue during the penalty phase of a case. See, e.g., Fla. R.Crim. P. 3.216(d) (2011) (allowing the court to order the defendant to be examined by the state’s mental health experts as to sanity at the time of the alleged offense or violation); Fla. R.Crim. P. 3.202 (2011) (during the penalty phase of a capital case, if the defendant gives notice of an intent to present the testimony of a mental health expert who has examined the defendant, the state may appoint its own mental health expert to examine the defendant). The reason that the court has allowed the state to appoint experts to examine a defendant when the defendant asserts a mental health defense is to “level the playing field.” See Dillbeck v. State, 643 So.2d 1027, 1030 (Fla.1994) (where the defendant planned to present mitigating evidence in the penalty phase through defense mental health experts who had interviewed him, the trial court did not abuse its discretion in “striving to level the playing field” by ordering the defendant to submit to a pre-penalty phase interview with the state’s expert); State v. Hickson, 630 So.2d 172, 176 (Fla.1993) (“If a defendant decides that she wants to rely on her expert’s relating the battered-spouse syndrome to the facts of her case .... [allowing the state’s expert to examine a defendant will keep the state from being unduly prejudiced because a defendant will not be able to rely on expert testimony that the state has no effective means of rebutting.”) (footnote omitted). Here, the defendant has not asserted a mental health defense and the defendant’s mental health is not at issue during the penalty phase of the case.

This dichotomy regarding the appointment of experts, depending on the nature of the examination, is recognized by section 916.115, Florida Statutes (2011). Section 916.115 initially states in subsection (1): “The court shall appoint no more than three experts to determine the mental condition of a defendant in a criminal case, including competency to proceed, insanity, involuntary placement, and treatment.” (emphasis added). However, subsection (2) states: “If an expert appointed by the court upon motion of counsel for the defendant specifically to evaluate the competence of the defendant to proceed also addresses issues related to sanity as an affirmative defense, the court shall pay only for that portion of the expert’s fees relating to the evaluation on competency to proceed, and the balance of the fees shall be chargeable to the defense.” (emphasis added). Similarly, subsection (2)(b) states that “the office of the state attorney shall pay for any expert retained by the office and for any expert whom the office retains and whom the office moves the court to appoint in order to ensure that the expert has access to the defendant.” (emphasis added).

In reaching our conclusion, we distinguish Davis v. State, case no. 4D11-3303 (Fla. 4th DCA Dec. 9, 2011), where we denied another defendant’s petition for writ of certiorari by an unpublished order. In Davis, the defendant filed a petition for writ of certiorari seeking to quash a circuit court order directing him to submit to a “violence risk assessment.” Although the order was described as a “violence risk assessment” and did not track verbatim the criteria contained in subsections (a), (b), and (c) of section 916.13(1), the order contained some specificity which appeared relevant to section 916.13(l)(a)2.’s criteria. The order also directed that a court-appointed expert, and not a state-retained expert, conduct the evaluation. Therefore, we denied the petition because the circuit court’s order did not depart from the essential requirements of the law. Our opinion in this case now mandates that an order requiring a defendant to submit to an involuntary commitment evaluation under section 916.13(1) must involve a court-appointed expert (or experts) and must track verbatim the criteria contained in subsections (a), (b), and (c) of section 916.13(1).

Based on the foregoing, we grant the petition and quash the order at issue. We remand for the circuit court to appoint its own expert(s) to determine whether the defendant may be involuntarily committed for treatment under section 916.13(1). The order shall describe the scope of the evaluation by tracking verbatim the criteria contained in subsections (a), (b), and (c) of section 916.13(1).

Petition granted.

HAZOURI, DAMOORGIAN and GERBER, JJ., concur.


source: Caselaw Access Project

author: LEVINE, J.

license: Public Domain

text:
    Maurice MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-415.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2012.
    Rehearing Denied May 30, 2012.
    Antony P. Ryan, Regional Counsel, Louis G. Carres, Special Assistant Conflict Counsel of Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

We grant appellant’s motion for clarification, withdraw our previously issued opinion, and substitute the following opinion.

The issue presented in this case is whether the trial court erred in giving a jury instruction for attempted sexual battery, over appellant’s objection, where appellant was charged with sexual battery, the state presented evidence only of a completed act, and appellant claimed the alleged act did not take place. We find the trial court erred in giving the instruction because the evidence did not support the instruction, and we reverse appellant’s conviction for attempted sexual battery. We also find the various other issues raised by appellant to be without merit and we affirm the convictions for bribery and official misconduct.

On October 21, 2008, appellant, a then-Riviera Beach police officer, conducted a traffic stop on the victim, D.C. D.C.’s driver’s license was determined to be suspended at that time. Appellant, utilizing a fellow officer’s citation book, issued two citations to D.C. After receiving the traffic citations, D.C. drove home.

D.C. testified at trial that, following the traffic stop, appellant showed up at her home. Appellant came into her apartment, locked his police dog in her bathroom, and proceeded to tell D.C. that he was going to have sex with her. D.C. testified that appellant “forcefully” had sex with her, while in the living room, by placing his penis inside her vagina. D.C. told the prosecutor, when asked whether she wanted to have sex with appellant, “No, I don’t think so.” D.C. then stated she did not give appellant permission and that she complied with the acts since appellant was “an officer of the law ... and you got to listen to them.” D.C. also stated, when asked if she was attracted to appellant, “No, I don’t think so.”

After appellant left, D.C. went to the rental office of the apartment complex. The property manager observed that D.C. was “crying hysterically,” incoherent, and “almost hyperventilating.” The property manager testified to seeing a Riviera Beach police car in the area near D.C.’s apartment. Detective Thomas, a Riviera Beach K-9 officer, testified to finding dog hairs in D.C.’s bathroom consistent with a German Shepherd police dog. A Riviera Beach police commander testified that a GPS system confirmed the presence of appellant’s vehicle at D.C.’s apartment complex for over an hour.

A laboratory analyst for the Palm Beach County Sheriffs Office confirmed the presence of sperm on D.C.’s underwear. A senior forensic scientist, also from the Palm Beach County Sheriffs Office, could not determine the age of the sperm. Further, the forensic scientist could not exclude appellant from contributing to the profile obtained from the sample. The forensic scientist stated that the chance of an unrelated person having the same DNA profile as appellant was one in 1.4 million, assuming the unrelated person was the same race as appellant. The probability went up to one in 64 million if the unrelated person was a different race.

Appellant testified at trial that he stopped D.C. for running a red light. Appellant told D.C. that her driver’s license was suspended and gave her two citations from a fellow officer’s citation book. After the traffic stop, appellant claimed he saw D.C. driving and she was attempting to flag him down. Appellant followed D.C. to her apartment to check on what he thought was an emergency situation. Appellant brought his dog with him into D.C.’s apartment. Appellant stated that D.C. apparently wanted to show him a letter from the state which she claimed proved that her driver’s license was not suspended. Appellant denied having sex with the victim.

At the jury charge conference, the state requested an instruction for the lesser included offense of attempted sexual battery. Appellant objected to such an instruction. The trial court decided to give the instruction over appellant’s objection. The trial court found that the DNA evidence in D.C.’s underwear could be evidence of an attempted sexual battery, where there was not penetration or union as required for a sexual battery.

Appellant was found guilty of attempted sexual battery, bribery, and official misconduct. This appeal ensues.

A trial court has discretion in instructing a jury, and as such, an appellate court will not reverse a decision regarding a jury instruction unless there is prejudicial error that would result in a miscarriage of justice. Lewis v. State, 693 So.2d 1055, 1058 (Fla. 4th DCA 1997). In this particular case, we are initially guided by Florida Rule of Criminal Procedure 3.510(a), which provides that a defendant may be convicted of attempt “if such attempt is an offense and is supported by the evidence.” Further, “[t]he judge shall not instruct the jury if there is no evidence to support the attempt and the only evidence proves a completed offense.” Id.

“When a judge gives an instruction on a lesser-included offense over a defendant’s objection and no evidence has been presented to support that instruction, the judge abuses his or her discretion, and error occurs.” Brock v. State, 954 So.2d 87, 88 (Fla. 1st DCA 2007). In Brock, the state requested the lesser included jury instruction of attempted sexual battery in a case charging the defendant with sexual battery. The defendant objected because “the evidence proved either a completed offense or none at all.” Id. In Brock, like the present case, “the evidence established either a completed sexual battery or no crime at all” and thus “the trial court should not have given the attempt instruction and, by doing so, committed reversible error.” Id. See also Ramirez-Canales v. State, 46 So.3d 1234 (Fla. 4th DCA 2010) (finding error in instructing the jury on attempted sexual battery where the evidence established and supported a verdict of guilt for the completed offense of sexual battery); Gleason v. State, 591 So.2d 278 (Fla. 5th DCA 1991) (reversing conviction for attempted sexual battery where no evidence supported the attempt and the evidence proved only the completed offense).

Appellant denied any sexual contact with D.C. D.C. testified to being forcibly raped by appellant. Based on the testimony at trial, there was either a completed act or no crime at all. Thus, we conclude the trial court reversibly erred in giving the jury instruction for attempt.

In this case, “[b]y finding appellant guilty of the lesser-included offense of attempted sexual battery, the jury necessarily found appellant not guilty of the charged sexual battery.” Brock, 954 So.2d at 88. Thus, “double jeopardy protections preclude” appellant’s retrial for the “original sexual battery charge.” Ramirez-Canales, 46 So.3d at 1234. Further, because the jury was not instructed on any other lesser-included offenses, no offenses remain for which appellant may be tried on remand. See Brock, 954 So.2d at 89.

In summary, we reverse appellant’s conviction for attempted sexual battery and direct that a judgment of acquittal be entered instead; we affirm the convictions for bribery and official misconduct. Because attempted sexual battery was the primary offense on appellant’s sentencing scoresheet, he is entitled to be resentenced on the remaining convictions using a corrected scoresheet. Vroom v. State, 48 So.3d 82, 84 (Fla. 2d DCA 2010).

Affirmed in part; Reversed in part.

GROSS and CIKLIN, JJ., concur.


author: GROSS, J.

text:
    Brenda COX, Appellant, v. GREAT AMERICAN INSURANCE COMPANY, an Ohio corporation, authorized to do business in the State of Florida, as assignee of Rigobert Ledesma, plaintiff on behalf of itself and all others similarly situated, Broward Management Company, Inc., a Florida corporation, Broward Management Company, Inc., as Trustee, Schilian, Watarz & Cox, P.A., n/k/a Schilian & Watarz, P.A., a Florida corporation, Appellees.
    No. 4D10-5155.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2012.
    Jerome L. Tepps, Plantation, for appellant.
    Kenneth V. Hemmerle, II of Kenneth V. Hemmerle, II, Professional Association, Fort Lauderdale, and Richard P. McCusker, Jr., Delray Beach, for appellee, Great American Insurance Company.
   ON MOTION FOR REHEARING

GROSS, J.

We grant appellant’s motion for rehearing, withdraw our opinion that issued on March 21, 2012, and issue the following opinion.

We reverse a final judgment (1) awarding attorney’s fees as a sanction under a Florida Rule of Civil Procedure for failure to comply with the procedural requirement of specificity and (2) awarding fees for litigating the amount of the fee, as opposed to just the entitlement to it.

Brenda Cox appeals an attorney’s fee award assessed under Florida Rule of Civil Procedure 1.730(c), which provides:

(c) Imposition of Sanctions. In the event of any breach or failure to perform under the [mediation] agreement, the court upon motion may impose sanctions, including costs, attorneys’ fees, or other appropriate remedies including entry of judgment on the agreement.

Johnson v. Bezner, 910 So.2d 398, 401 (Fla. 4th DCA 2005), held that an award of fees pursuant to rule 1.730(c) must contain detailed factual findings describing the specific acts of conduct that justify the imposition of sanctions. In effect, this holding adopted the procedural requirements for a final judgment awarding fees under the inequitable conduct doctrine, which “permits the award of attorney’s fees where one party has exhibited egregious conduct or acted in bad faith.” Bitterman v. Bitterman, 714 So.2d 356, 365 (Fla.1998). The procedures a trial court must follow in exercising its power to impose attorney’s fees against a party under the inequitable conduct doctrine “are the same as those prescribed by the supreme court” in Moakley v. Smallwood, 826 So.2d 221 (Fla.2002), which involved the imposition of attorney’s fees against a party’s attorney. See N. Cnty. Co., Inc. v. Bologna, 816 So.2d 842, 844 (Fla. 4th DCA 2002); T/F Sys., Inc. v. Malt, 814 So.2d 511, 513 (Fla. 4th DCA 2002).

Moakley requires “an express finding of bad faith conduct ... supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys’ fees.” 826 So.2d at 227. Moakley’s requirement of specificity ensures that the power to sanction is not exercised lightly. Judges must identify the conduct that justifies a sanction. This allows for appellate review of the sanction and the development of a body of law describing the conduct that gave rise to the sanction. In this way, rule 1.730(c) sanctions are applied responsibly and “diligently both ‘to penalize those whose conduct may be deemed to warrant such a sanction, [and] to deter those who might be tempted to such conduct in the absence of such a deterrent.’ ” Roadway Exp., Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 2463, 65 L.Ed.2d 488 (1980) (quoting Nat’l Hockey League v. Metro. Hockey Club, 427 U.S. 639, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976) (discussing sanctions under Federal Rule of Civil Procedure 37(b))).

To comply with the procedural requirements that Johnson v. Beznar imposes for an attorney’s fee award under rule 1.730(c), the trial court should have made specific factual findings detailing Cox’s breach or failure to perform under the mediation agreement and identified those attorney’s fees and costs that Great American incurred as a result of such conduct. See Moakley, 826 So.2d at 227. Rather than make the findings with the “high degree of specificity” that Moakley requires, the final judgment summarily grants Great American’s motion for attorney’s fees.

The trial court erred in assessing attorney’s fees incurred in litigating the amount of the fee award. To reach this conclusion we have to reconcile Condren v. Bell, 853 So.2d 609 (Fla. 4th DCA 2003) with Wood v. Haack, 54 So.3d 1082 (Fla. 4th DCA 2011) and Yakavonis v. Dolphin Petroleum, Inc., 934 So.2d 615 (Fla. 4th DCA 2006). Wood and Yakavonis held that attorney's fees incurred for seeking fees could not be recovered when the basis for fees was section 57.105, Florida Statutes (2010). Wood, 54 So.3d at 1084; Yakavonis, 934 So.2d at 620. In Condren, we approved an award of attorney’s fees for litigating the amount of fees, reasoning that because fees were awarded as a sanction, “the award [did] not run afoul of State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830 (Fla.1993).” 853 So.2d at 610. Condren does not identify any statutory or rule basis for the sanction; the award arose from a final judgment enforcing a settlement agreement. 853 So.2d at 609. We conclude that the basis for the sanction was the inherent authority of the court, “the inequitable conduct doctrine,” which “permits the award of attorney’s fees where one party has exhibited egregious conduct or acted in bad faith.” T/F Sys., 814 So.2d at 513 (quoting Bitterman v. Bitterman, 714 So.2d 356, 365 (Fla.1998)).

Rule 1.730(c), the basis for fees in this case, is closer to section 57.105 than it is to the inequitable conduct doctrine. While judgments for fees under the rule, the statute, and the doctrine could all be classified as sanctions, the law in this district is that when it comes to awarding fees for fees, not all sanctions are created equal. Rule 1.730(c) appears to allow for sanctions after relatively mild transgressions— a breach or failure to perform under a mediation agreement. Section 57.105 fees were awarded in Wood where the lawsuit was without merit from its inception. 54 So.3d at 1083-84. Fees could be justified under rule 1.730(c) for conduct that does not come close to triggering entitlement under the inequitable conduct doctrine. If an award of attorney’s fees for seeking attorney’s fees is not appropriate under 57.105, Wood and Yakavonis compel the conclusion that fees for fees are not available for the pursuit of sanctions under rule 1.730(c).

We briefly address Cox’s other arguments. The trial court did not err in assessing attorney’s fees for work done on a prior appeal, based on previous orders of this court. The release executed by Great American, as part of the mediated settlement agreement that Cox refused to hon- or, did not bar Great American’s entitlement to sanctions under rule 1.730(c).

Affirmed in part, reversed in part, and remanded.

CIKLIN and LEVINE, JJ., concur.


author: BLACK, Judge.

text:
    M.A.C., Appellant, v. M.D.H., Appellee.
    Nos. 2D11-2413, 2D11-2702.
    District Court of Appeal of Florida, Second District.
    May 30, 2012.

      Carmen R. Gillett of Carmen R. Gillett, PLLC, Sarasota, for Appellant.
    No appearance for Appellee.
   BLACK, Judge.

In this consolidated appeal, M.A.C., the father, challenges two orders. Both orders issued from the Twelfth Judicial Circuit Court in Sarasota County; however, the first order issued out of the South County division and the second order issued out of the North County division. In the South County order, the court declined to exercise jurisdiction and dismissed the father’s petition for paternity and other relief based on the conclusion that Florida is not the home state of J.D.C., the child. In the North County order, the court transferred the father’s emergency motion for return of the child and for contempt to the South County division and dismissed the father’s North County division case with prejudice. Because the South County court erred in concluding that Florida was not the home state of the child, we reverse and remand the South County order. However, we affirm without comment the North County order.

I. BACKGROUND FACTS

On December 9, 2010, the father, pro se, filed numerous family law forms in South County, Sarasota. Included within his forms was a “Petition to Determine Paternity and For Related Relief.” Under the petitioner’s request, the father checked the box for the court to enter an order that adopts or establishes a parenting plan containing provisions for time-sharing. Under the same section, he also handwrote: “Looking for hiring for visitations because the other parity’s] address is unknown. She keeps moving from one place to the other.” Along with the petition, the father also filed a notice of related cases, which referenced an administrative case opened by the Department of Revenue (DOR). The DOR started a proceeding against the father to establish child support after M.D.C., the mother, received public assistance for J.D.C. As a part of the administrative case, DOR entered a final order of paternity, establishing that M.A.C. was the father of J.D.C.

After the father filed his form petition with the court, he served a summons on the mother. The mother responded to the summons by filing an unsworn letter. In the letter, she objected to the Florida court having jurisdiction, and she requested that the court deny the father’s request. She indicated that she had been the sole caretaker for J.D.C. since his birth and that the father had only seen J.D.C. a total of ten times, the last time being in March 2010. She stated that J.D.C. was born on November 3, 2009, and that she moved to Florida a couple of months later. Finding no support from the father and having no place to live, she claimed that she moved to North Carolina on September 7, 2010. She noted that the father made no attempt to contact her until she received the summons. She stated that she had housing, a job, medical care, and daycare for J.D.C. in North Carolina, and she requested that the father bring any custody case in North Carolina because she did not have money to travel to Florida or to hire an attorney.

After the mother filed her letter, the court entered its “Order Regarding Jurisdiction/Forum Non Conveniens.” The order stated that the administrative proceeding established that M.A.C. was the father; thus, the only issues pertaining to the child in the father’s “paternity-type action” involved time-sharing and parental responsibility. The order noted that the mother’s letter was unsworn but that it indicated that she had resided in North Carolina since September 7, 2010. It then went on to state that Florida would have jurisdiction only if it was the home state of the child. However, based on the record at that point in time, the court concluded: “There is no reason known ... that would establish that North Carolina would not have jurisdiction as to this child.” The order also indicated that the mother raised an inconvenient forum issue. Because the court could not determine whether it had jurisdiction, it ordered the father to file a Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) affidavit; it ordered the mother to file a sworn affidavit, under oath before a notary, attesting to the allegations in her letter; and it ordered both parties to file affidavits addressing the statutory factors listed under section 61.520(2)(a)-(h), Florida Statutes (2010), the inconvenient forum section of the UCCJEA.

Although the court did not rule on any issues in its “Order Regarding Jurisdiction/Forum Non Conveniens,” the father filed a motion for rehearing. In his motion, he requested that the court enter an order declaring Florida to be the home state of J.D.C. for purposes of establishing child support and time-sharing. The court did not address this motion because it was premature.

The father then filed his UCCJEA affidavit. In the affidavit, he listed the mother’s addresses from January 2010 until September 2010 as Florida addresses and he listed her address from October 28, 2010, to the time of filing the affidavit as a North Carolina address. The mother filed a notarized, handwritten letter, indicating that all of the statements in her previous letter were true. She also stated that she had been out of work and that J.D.C. had been out of school since March 2011. She stated that they were going to get back to work and school once social services received her paperwork. The notary stamp did not state whether the letter was sworn under oath or whether the mother presented identification or was personally known by the notary. The stamp also did not contain an expiration date; instead, the notary signed her name next to the stamp and handwrote the expiration date for her commission.

Without conducting a hearing on the matter, the South County court entered an order dismissing the father’s petition. The court stated:

1. Per the UCCJEA Affidavit, filed by the Petitioner, indicating that the Respondent and child resided in Venice, Florida, until September 2010, and the Respondent’s attestation that she and the child began residing in North Carolina on September 7, 2010, the Court finds that North Carolina is the appropriate jurisdiction to consider a paternity action.
2. The Petitioner did not file his action in Sarasota County, Florida, until December 10, 2010. Florida was not the “home state” of the child “... for at least six (6) consecutive months immediately before the commencement of a child custody proceeding,” as required by F.S. 61.503(7).
3. F.S. 61.514(l)(a) is also applicable. A reasonable interpretation under these facts is that Florida should not make the “initial child custody determination,” as North Carolina is the appropriate jurisdiction, and present information concerning the child is readily available in that state. Hindle v. Fuith, 33 So.3d 782 (Fla. 5th DCA 2010); Holub v. Holub, [54 So.3d 585 (Fla. 1st DCA 2011).]

After the court entered the final order, an attorney with Legal Aid of Manasota filed a limited notice of appearance on behalf of the father. The father, represented by counsel, then simply amended his previous motion for rehearing and filed it. The court denied the motion, and the father filed his notice of appeal in that case on May 12, 2011.

II. ANALYSIS

The standard of review for the South County order is de novo because the trial court ruled that Florida does not have jurisdiction under the UCCJEA as a matter of law. See N.W.T. v. L.H.D., 955 So.2d 1236, 1238 (Fla. 2d DCA 2007). The UCCJEA is a jurisdictional act that governs subject matter jurisdiction over child custody matters. Id.; see also § 61.502 (stating the general purposes of the UC-CJEA). Section 61.503(4) defines a “child custody proceeding” as “a proceeding in which ... visitation with respect to a child is an issue.” Section 61.514 “unequivocally limits jurisdiction to determine initial custody matters (except for temporary emergency matters) to the ‘home state’ of the child.” Arjona v. Torres, 941 So.2d 451, 454 (Fla. 3d DCA 2006). “Home state” is defined in section 61.503(7) as “the state in which a child lived with a parent or a person acting as a parent for at least [six] consecutive months immediately before the commencement of a child custody proceeding.” Section 61.514(1) states as follows:

(1) Except as otherwise provided in s. 61.517 [the section dealing with “temporary emergency jurisdiction”], a court of this state has jurisdiction to make an initial child custody determination only if:
(a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(b) A court of another state does not have jurisdiction under paragraph (a), or a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum under s. 61.520 [the “inconvenient forum” section of the UC-CJEA] or s. 61.521 [the section dealing with declination of jurisdiction by reason of conduct], and:
1. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
2. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
ce) All courts having jurisdiction under paragraph (a) or paragraph (b) have declined to exercise jurisdiction on the grounds that a court of this state is the more appropriate forum to determine the custody of the child under s. 61.520 or s. 61.521; or
(d) No court of any other state would have jurisdiction under the criteria specified in paragraph (a), paragraph (b), or paragraph (c).

The father argues that the court erred when it determined that Florida was not the home state of J.D.C. He contends that the court should have looked back from December 9, 2010, which was the date he filed the petition, to determine if at any time in the six months prior to that date Florida was J.D.C.’s home state. He asserts that the mother’s letter shows she had lived continuously in Florida for six months — from sometime in early 2010 until September 2010 — prior to the father’s filing of the petition and because the mother had only lived in North Carolina for a period of three months prior to the filing of the petition, North Carolina could not qualify as the home state. We agree.

The language in the jurisdiction provision of section 61.514(l)(a), which provides for jurisdiction at any time during the six months that precede the filing of the petition, and the definition of home state, which requires the six consecutive months to immediately precede the filing, seem to conflict. Sarpel v. Eflanli, 65 So.3d 1080, 1084 (Fla. 4th DCA 2011) (and cases cited therein).

[However,] the inclusion of the words “immediately before the commencement of a child custody proceeding” in the definition of “home state” should not be read so as to essentially eliminate and render meaningless the provision allowing for the assertion of jurisdiction if the state qualified as the child’s home at any time within the six months preceding the filing of the custody proceeding.

Id. Therefore, the home state determination under section 61.514(l)(a) allows for Florida to exercise jurisdiction if, at any time within the six months preceding the filing of the petition, Florida qualified as the home state. Id. We agree with the sound reasoning in Sarpel.

Here, the trial court failed to look back to June 9, 2010, six months prior to the filing of the father’s petition, to determine if Florida qualified as the home state at any time between June 9, 2010, and December 9, 2010, the date he filed his petition. While the notary stamp on the mother’s letter fails to indicate whether the mother swore to the letter under oath and while the lack of a commission date on the stamp concerns us, the mother’s letter and the father’s UCCJEA affidavit both indicate that the mother moved to North Carolina in September 2010. Thus, the parties do not dispute this fact and the technical deficiencies regarding the notary stamp are not dispositive of the outcome in this case. Furthermore, the mother’s letter indicated that J.D.C. was born on November 3, 2009, and that she moved to Florida a couple of months later, which would be approximately January 3, 2010. The father’s UCCJEA affidavit also confirms this; thus, it appears there is no dispute regarding this date either. Based on the parties’ agreement on these dates, the mother lived in Florida with J.D.C. from January 3, 2010, until September 7, 2010, a total of eight consecutive months. September 7, 2010, is within the six-month period prior to the father’s filing of his petition. Thus, Florida qualifies as the home state under the UCCJEA and the South County court had jurisdiction to make the initial time-sharing determination. Accordingly, we reverse the trial court’s ruling on this issue.

However, it appears that the mother raised an issue regarding inconvenient forum and that the trial court has not definitively ruled on this issue. In the mother’s letter, she stated that she does not have the money to travel to Florida or to hire an attorney to represent her in Florida. And although the trial court appears to touch upon this issue in the third paragraph of its order, the court references section 61.514(l)(a) in this paragraph and not section 61.520, the inconvenient forum section. The court also cites to cases regarding home state determinations in this paragraph and not cases pertaining to inconvenient forum issues. See Hindle v. Fuith, 33 So.3d 782 (Fla. 5th DCA 2010); Holub v. Holub, 54 So.3d 585 (Fla. 1st DCA 2011). The trial court clearly recognized the inconvenient forum issue in its “Order Regarding Jurisdiction/Forum Non Conveniens,” and it clearly directed both parties to address the relevant inconvenient forum factors listed in section 61.520(2)(a)-(h). However, there is nothing in the record showing that the parties ever did so or that the trial court ever considered those factors or ruled upon the issue. Thus, based on our review of the record, the trial court has not ruled on this issue, and we must remand this issue to the trial court. Upon remand, the trial court may still decline to exercise jurisdiction after considering the statutory factors listed in section 61.520(2)(a)-(h).

Reversed and remanded South County order; Affirmed North County order.

KELLY and KHOUZAM, JJ., Concur.

      . The trial court’s order states that the father filed his petition on December 10, 2010; however, the clerk’s stamp clearly shows that the father filed the petition on December 9, 2010.

      . We note that Sarpel did not issue until after the trial court rendered its order; thus, the trial court did not have the benefit of that opinion.

      . Because the parties agree regarding the dates that the mother lived in Florida and because those dates are the basis for our reversal on the home state jurisdiction issue, the father's argument that the trial court erred by failing to hold an evidentiary hearing before making the home state determination is moot.

      . The father also argues that trial court erred in failing to hold an evidentiary hearing prior to the court making an inconvenient forum determination. While this argument is perplexing due to the court’s failure to rule on this issue, we simply note here that upon remand, the court should give the father notice and an opportunity to be heard on this issue. Cf. Douglas v. Johnson, 65 So.3d 605 (Fla. 2d DCA 2011).


author: HAZOURI, J.

text:
    Tyrone Jermell DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4035.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2012.

      Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

The Appellant, Tyrone Davis, challenges the denial of his motion to correct sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), which sought additional credit for time served in the county jail. Davis alleged that he was entitled to credit for 1,051 days toward his violation of probation sentence. During the sentencing hearing, the court awarded him credit for “every day previously served.” The written sentencing order awarded credit for 1,012 days.

We review the order denying the requested relief de novo. Willard v. State, 22 So.3d 864, 864 (Fla. 4th DCA 2009) (citation omitted). Section 921.161(1), Florida Statutes (2010), provides that “the court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence.” In the context of a violation of probation sentence, a defendant is entitled to all time spent in jail prior to being sentenced and after being sentenced on the underlying charge. Robinson v. State, 827 So.2d 345, 345 (Fla. 4th DCA 2002) (citation omitted). A defendant is also entitled to credit for time served in jail for the current violation of probation and prior violations of the same probation. Waithe v. State, 941 So.2d 534, 535 (Fla. 4th DCA 2006) (citation omitted). Credit is mandatory unless the record clearly reflects that the defendant waived such credit. Id.

In its response to the motion, the State cited Gathers v. State, 838 So.2d 504 (Fla.2003), as support for its contention that Davis was not entitled to additional credit. However, Gethers does not apply as it addresses credit for time served on unrelated offenses in different counties where a detainer was placed on the defendant while he was in another county but an issued warrant was never executed. In the instant case, the records before the trial court indicate those circumstances are not present.

The State also cited Daniels v. State, which holds that a defendant is entitled to credit for time spent in jail on multiple charges if the sentences run concurrently. 491 So.2d 543, 545 (Fla.1986). Although the record reflects that Davis received a consecutive sentence for the new offense, he was sentenced first for the violation of probation. “When consecutive sentences are imposed, a defendant must be given jail credit only on the first of the consecutive sentences.” Ransone v. State, 20 So.3d 445, 448-49 (Fla. 4th DCA 2009). This is so even if the defendant is held on other charges during some or all of that time. Davis v. State, 473 So.2d 46, 46 (Fla. 4th DCA 1985) (citing Miller v. State, 297 So.2d 36, 38 (Fla. 1st DCA 1974)).

The records attached to the motion reflect that Davis served 1,050 days in jail for the underlying offense, the instant violation of probation, and previous violations of the same probation. The records attached to the State’s response and incorporated into the order denying relief do not conclusively refute that Davis is entitled to the credit he requested. Moreover, the trial court’s order did not make it apparent what portion of the 1,050 days it was not crediting.

Because the records before the trial court did not refute the claim of entitlement to additional credit, we reverse and remand for further proceedings. We recognize that records may exist which refute the claim for additional credit. Therefore, on remand, the trial court may again deny the motion if it attaches records to its order that conclusively refute that Davis is entitled to additional credit. Otherwise, the court must award Davis credit for all time served in the county jail on the underlying offense, the instant violation of probation, and previous violations of the same probation.

Reversed and remanded.

POLEN and LEVINE, JJ., concur.

      . One of the 1,051 days claimed by Davis appears to be for an unrelated traffic offense.


author: MORRIS, Judge.

text:
    In the Interest of M.C. and M.C., children. M.C., Appellant, v. Department of Children and Family Services and Guardian ad Litem Program, Appellees.
    No. 2D11-4518.
    District Court of Appeal of Florida, Second District.
    May 30, 2012.

      Linda C. Clark of Linda C. Clark, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessica Stephans, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
    Jennifer S. Paullin, Tavares, for Appel-lee Guardian ad Litem Program.
   MORRIS, Judge.

The father appeals an order placing his children in a permanent guardianship and terminating the supervision of the Department of Children and Family Services. The father argues on appeal that he was denied due process because he was not provided adequate notice that the Department was seeking a permanent guardianship prior to the hearing at which the permanent guardianship determination was made. The Department and the Guardian Ad Litem concede error on this point, and we agree that a reversal is necessary.

Immediately prior to a scheduled review hearing in the dependency case, the Department filed a notice of filing a permanent guardianship case plan, along with a case plan that included permanent guardianship as the primary goal. The Department also filed a motion to place the children in a permanent guardianship, to terminate protective supervision, and to review the new case plan. At the hearing, the father’s attorney objected to hearing the Department’s motion that day because the father had only received notice of the Department’s motion that day. Nonetheless, the magistrate took testimony and entered her report and recommendation, and the report and recommendation were approved by the trial court.

A parent’s due process rights are violated when a trial court enters a permanent guardianship order without the parent’s having prior notice that a permanency determination would be made. See R.H. v. Dep’t of Children & Families, 948 So.2d 898, 899 (Fla. 5th DCA 2007). Although the Department filed a written motion requesting termination of supervision as required by Florida Rule of Juvenile Procedure 8.345(b), the father was effectively denied notice that the trial court would be making a permanency determination because the hearing was held the same day that the Department filed the motion and the amended case plan indicating the new goal of permanent guardianship. See Borden v. Guardianship of Borden-Moore, 818 So.2d 604, 607-08 (Fla. 5th DCA 2002) (holding that notice must reasonably convey the necessary information and provide the party with reasonable time in which to make his appearance). The father was aware that a judicial review hearing was scheduled that day, but he was not aware that a permanency decision would be made. Accordingly, we reverse the order on appeal and remand for further proceedings.

Reversed and remanded.

DAVIS and KHOUZAM, JJ„ Concur.


author: NORTHCUTT, Judge.

text:
    Jason A. YEGGE, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4507.
    District Court of Appeal of Florida, Second District.
    June 1, 2012.

      Jason Alexander Yegge, pro se.
   NORTHCUTT, Judge.

Jason Alexander Yegge appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). On March 7, 2003, Yegge pleaded guilty to charges of armed burglary, manufacture of marijuana, and misdemeanor possession of drug paraphernalia. The trial court sentenced him as a youthful offender to drug offender probation on the burglary and marijuana charges and to time served for the paraphernalia charge. Yegge violated probation several times and was sentenced to prison. However, on January 4, 2006, the court vacated the prison sentences and continued the original probationary term. In 2007, Yegge pleaded guilty to the new substantive offense of possession of cocaine. As a result, the circuit court revoked Yegge’s probation, sentenced him to a ten-year mandatory minimum prison term for his armed burglary conviction, and revoked his youthful offender status.

On appeal, Yegge alleges that his sentence is illegal because he should have been sentenced as a youthful offender and, thus, could not receive a mandatory minimum sentence. Yegge argues that the circuit court wrongfully revoked his youthful offender status because “ ‘[o]nce a circuit court has imposed a youthful offender sentence, it must continue that status upon resentencing after a violation of probation or community control.’ ” Lee v. State, 67 So.3d 1199, 1202 (Fla. 2d DCA 2011) (quoting Blacker v. State, 49 So.3d 785, 788 (Fla. 4th DCA 2010)).

A youthful offender who commits a substantive violation of probation can be sentenced to the maximum sentence allowable for the original offense; the six-year limitation applicable to youthful offender sentences no longer applies. See § 958.14, Fla. Stat. (2007); State v. Meeks, 789 So.2d 982, 988-89 (Fla.2001); Lee, 67 So.3d at 1202; Swilley v. State, 781 So.2d 458, 460 (Fla. 2d DCA 2001). The maximum sentence for Yegge’s original offense, armed burglary, is life in prison. See § 810.02(2)(b), Fla. Stat. (2002). Therefore, Yegge’s ten-year mandatory minimum was not illegal. However, this court has repeatedly held that the sentencing court must maintain the defendant’s youthful offender status upon resentencing for a violation of probation even when the violation was substantive. See Lee, 67 So.3d at 1202 (holding that “[w]hile a defendant is not entitled to be sentenced as a youthful offender on any new offense he or she may have committed, the trial court cannot revoke a defendant’s youthful offender status on offenses for which that defendant has already been sentenced” (citation omitted)); Vantine v. State, 66 So.3d 350, 352 (Fla. 2d DCA 2011) (explaining that the defendant’s youthful offender status could not be revoked upon violation of probation for a substantive violation involving a new law offense); Tidwell v. State, 74 So.3d 503, 503 (Fla. 2d DCA 2011) (affirming that “when a youthful offender commits a violation of probation, even a substantive one as described in section 958.14, his status as a youthful offender cannot be revoked”); Mosley v. State, 77 So.3d 877, 877 (Fla. 2d DCA 2012) (same).

Both the Fifth and First Districts have similarly held that a defendant’s youthful offender status must be continued on re-sentencing after a violation of probation. See Christian v. State, 84 So.3d 437, 441-42 (Fla. 5th DCA 2012) (explaining that, though a youthful offender may receive the maximum sentence that could have originally been imposed had he not been sentenced under the youthful offender act pursuant to section 958.14, he still maintains his “youthful offender status”); Hudson v. State, 989 So.2d 725, 726 (Fla. 1st DCA 2008) (“When a defendant has been designated a youthful offender, the court may not change that status by way of revocation of probation or community control.”); Gardner v. State, 656 So.2d 933, 937 (Fla. 1st DCA 1995) (holding that “once a defendant is sentenced under the provisions of section 958.04, a court may not reclassify the defendant and sentence him or her in a manner inconsistent with section 958.04”).

Importantly, this is not a mere paper victory. A youthful offender designation carries benefits — including the availability of programs and facilities, and, though Yegge may not qualify, eligibility for early release — within the criminal justice system. Lee, 67 So.3d at 1202 n. 1; Blacker, 49 So.3d at 787 n. 2; Christian, 84 So.3d at 443.

Accordingly, we reverse the postconviction court’s order and remand for amendment of Yegge’s sentence to reflect his youthful offender classification.

Reversed and remanded.

VTLLANTI and WALLACE, JJ., Concur.


author: PER CURIAM.

text:
    Harry HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0863.
    District Court of Appeal of Florida, First District.
    June 1, 2012.

      Nancy A. Daniels, Public Defender, M.J. Lord, Assistant Public Defender, and Daniel Cauley, Legal Intern, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer Moore, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Harry L. Henderson appeals his convictions for possession of a firearm by a convicted felon, fleeing or attempting to elude a police officer, and driving while license suspended. He contends the trial court erred by (1) denying his motion to suppress because the arresting officer did not have reasonable suspicion or probable cause to stop his vehicle pursuant to the fellow-officer rule, and (2) denying his motion for judgment of acquittal because the state failed to prove he was in constructive possession of the firearm. We affirm.

Jacksonville Sheriffs Office Deputy J.E. Floyd testified that on June 24, 2010, a U.S. Marshall requested assistance over the police radio from available patrol units to stop an armed homicide suspect who was driving in front of him on Interstate 95 in a gold Kia with an Ohio tag. Deputy Floyd caught up with them and the Marshall pointed to the gold Kia as containing the suspect. Deputy Floyd activated his red and blue lights, as did Deputy Wilke, who was by then in front of Deputy Floyd. Deputy Wilke’s SUV had Jacksonville Sheriffs Office insignia on it, “prominent and easily determined,” as did Dep. Floyd’s patrol vehicle. Deputy Floyd could also see lights and hear sirens behind him.

When the lights and sirens commenced, appellant slowed, as if to pull off on the grass shoulder, but then continued to drive for one to two miles, although he could have pulled over on the shoulder during that time. Appellant did not speed or violate any traffic laws before he pulled over, but he did not stop until there were officers approaching from the opposite direction. A loaded .45-caliber handgun was found under the driver’s seat.

Deputy Floyd testified that he initiated the stop based on the U.S. Marshall’s request. The U.S. Marshall did not testify. The deputy said he was given a teletype at around 3:00 p.m. when he booked appellant into jail stating that a warrant for appellant’s arrest had been issued in St. John’s County.

We reject the state’s argument that the stop was justified by the fellow-officer rule. The rule cannot be applied under the facts of this case. Because there is no record evidence of the U.S. Marshall’s grounds for suspecting that appellant had been involved in a homicide, “there is nothing on the record to impute” to Deputy Lloyd. J.P. v. State, 855 So.2d 1262, 1265 (Fla. 4th DCA 2003). Accord C.H.C. v. State, 988 So.2d 1145 (Fla. 2d DCA 2008).

We also reject the state’s claim that the arrest warrant issued five hours later justified the stop, absent any record evidence of the information that was provided to the judge who issued the warrant and when the information was provided. See, e.g., Mills v. State, 58 So.3d 936 (Fla. 2d DCA 2011) (facts discovered after an arrest cannot be used retroactively to justify a warrantless arrest).

We affirm the order, however, because appellant’s act of fleeing or attempting to elude Deputy Floyd and the other officers obviates the necessity of determining whether there was reasonable suspicion or probable cause for the initial attempt to stop.

In a case much like that at bar, Green v. State, 530 So.2d 480 (Fla. 5th DCA 1988) (on motion for rehearing en banc), the defendant drove through a driver’s license checkpoint that was later shown to be unlawful because it did not meet constitutional standards. The defendant was stopped after a brief pursuit and cocaine was found in his car. The Fifth District affirmed the denial of a motion to suppress, finding that the stop was valid under section 316.1935, Florida Statutes, because the police stopped and searched him based on his flight rather than at the illegal checkpoint. Accord State v. McCune, 772 So.2d 596, 597 (Fla. 5th DCA 2000) (reversing the order granting the defendant’s motion to suppress, because, “regardless of the legality of the initial stop (or attempted stop), the statutory offense of fleeing and eluding does not require the lawfulness of the police action as an element of the offense.”).

Appellant relies instead upon Ray v. State, 40 So.3d 95 (Fla. 4th DCA 2010), in which the Fourth District reversed the denial of the defendant’s motion to suppress, finding there was no reasonable suspicion for the traffic stop. A police officer responding to a complaint about drug dealing witnessed a hand-to-hand exchange between the defendant and another person. Believing this was a drug sale, the officer followed the defendant in her patrol car and activated the lights to make a stop. The defendant drove through a stop sign and then pulled over, dropping cocaine out the window. The Fourth District concluded that the initial hand-to-hand exchange did not by itself provide reasonable suspicion for the stop; hence, the officer had activated her emergency lights without reasonable suspicion. In addition, the defendant’s traffic infraction of running the stop sign did not provide a reason for the stop because it occurred after the lights were activated.

Ray is distinguishable, because the court did not characterize the defendant’s brief act of running the stop sign before pulling over as flight, and there was no charge of fleeing or attempting to elude. In our case, when the officers attempted to pull appellant over with lights and sirens activated, appellant continued to drive for nearly two miles, providing probable cause to stop him for violating section 316.1935(2). Deputy Floyd’s stated reason for the stop has no bearing on whether there was probable cause for the stop. See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); State v. Moore, 791 So.2d 1246 (Fla. 1st DCA 2001).

Our decision is also supported by recent case law addressing the lawfulness of a stop based upon a defendant’s unprovoked flight. In C.E.L. v. State, 24 So.3d 1181 (Fla.2009), the Florida Supreme Court affirmed a conviction for resisting an officer without violence, finding that even if the officer initially lacked reasonable suspicion to stop the defendant, reasonable suspicion was established by the defendant’s flight, citing Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). In Wardlow, the Court acknowledged that merely standing around in a high-crime area does not provide reasonable suspicion, but that the defendant’s “unprovoked” flight did. “Headlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Id. at 124, 120 S.Ct. 673. Our supreme court concluded in C.E.L. that the defendant’s flight in a high-crime area provided reasonable suspicion to justify an investigative stop, and that his “continued flight in knowing defiance of the officer’s lawful order to stop” constituted resisting an officer without violence. C.E.L., 24 So.3d at 1189. Accord Williams v. State, 55 So.3d 596 (Fla. 3d DCA 2010); Livingston v. State, 985 So.2d 1144 (Fla. 5th DCA 2008).

In the case at bar, had appellant pulled over immediately after Dep. Floyd activated his lights and siren, there would have been insufficient evidence in the record to justify the stop. When appellant continued driving, however, long after the officers had activated their lights and sirens, in combination with the request from the Marshall to assist in stopping a homicide suspect and the Marshall’s signal that the gold Kia contained the suspect, Deputy Floyd did have a reasonable suspicion that a crime had been or was being committed sufficient to warrant the stop.

As to the second issue, appellant fails to show that the trial court erred as a matter of law by denying his motion for judgment of acquittal on the charge of felon in possession of a firearm. Because appellant was the sole occupant and driver of the car when apprehended, he had exclusive possession of it, regardless of the vehicle’s ownership, and thus his knowledge of the contraband and his ability to maintain control of it was inferred. See Sinclair v. State, 50 So.3d 1223 (Fla. 4th DCA 2011); Lee v. State, 835 So.2d 1177 (Fla. 4th DCA 2002); State v. Odom, 862 So.2d 56 (Fla. 2d DCA 2003). Appellant’s evidence that the automobile was a rental car leased by a friend and used by several other people did not require a judgment of acquittal but simply presented a jury question regarding whether the possession was exclusive. Odom, 862 So.2d at 59.

AFFIRMED.

PADOVANO and SWANSON, JJ., concur.

BENTON, C.J., concurs in result.

      . Section 316.1935(2), Florida Statutes (2010), provides: "Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated commits a felony of the third degreef.]”

      . Although the prosecutor mainly argued below that the fellow-officer rule should defeat defendant's motion to suppress, he did briefly raise an argument regarding defendant’s flight once the officer’s lights and siren were activated.


text:
    Patrick Kelly ARMBRUSTER, Former Husband, Appellant, v. Candace COOLEY, Wife, Appellee.
    No. 1D12-2516.
    District Court of Appeal of Florida, First District.
    June 5, 2012.
    Michael R. Gates, Shalimar, for Appellant.
    Laura E. Keene, Pensacola, for Appel-lee.
   PER CURIAM.

DISMISSED. Raysor v. Raysor, 706 So.2d 400 (Fla. 1st DCA 1998).

BENTON, C.J., CLARK and MAKAR, JJ., concur.


author: EMAS, J.

text:
    Jorge CUETO, Appellant, v. STATE of Florida, Appellee.
    No. 3D11-264.
    District Court of Appeal of Florida, Third District.
    June 6, 2012.

      Clayton R. Kaeiser, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda Katz, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA and EMAS, JJ.
   Corrected Opinion

EMAS, J.

We deny the State’s motion for rehearing. On our own motion, however, we withdraw our previous opinion and substitute the following:

Defendant Jorge Cueto appeals the trial court’s order summarily denying his motion for postconviction relief. We reverse, holding that the trial court erred in summarily denying Cueto’s motion without an evidentiary hearing, and in applying the incorrect standard in assessing the claims raised in Cueto’s motion.

Cueto filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, based upon a claim that the State knowingly presented perjured testimony at his trial. Because the trial court denied the motion without an eviden-tiary hearing, we must accept as true the well-pled allegations in Cueto’s motion.

Cueto alleged in his motion that, in 2008, he was in prison and met another inmate, Angel Medina. Cueto alleged that Medina provided Cueto with information regarding the prosecutor in Cueto’s case, as well as information regarding a witness who testified at Cueto’s trial. The information provided by Medina to Cueto was later memorialized in an affidavit, sworn to by Medina and attached to Cueto’s motion.

Medina’s affidavit avers the following:

1. In 2003 Medina overheard another prisoner, Gilbert Serna, talking about Cue-to’s case. (Serna had testified as a State witness at Cueto’s trial that while Serna and Cueto were imprisoned together, Cue-to confessed to Serna that he had committed the crime.)

2. Serna told Medina that the prosecutor (who he identified by name), had promised Serna that if he testified against Cue-to at Cueto’s trial, Serna would receive a reduced sentence.

3. When asked at Cueto’s trial whether the State had made any promises to him in exchange for his testimony against Cueto, Serna testified that he had not received any promises from the State, including any promise of a reduced sentence.

4. Serna told Medina that this testimony was false and that in fact the prosecutor had promised Serna he would receive a reduced sentence in exchange for his testimony against Cueto.

5. Serna told Medina that he (Serna) was concerned because the prosecutor was not complying with her promise of a reduced sentence. Serna asked Medina whether he (Serna) could submit an affidavit to get Cueto’s conviction overturned in the event the prosecutor did not comply with the verbal agreement of reducing Serna’s sentence in exchange for the testimony he had provided in Cueto’s case.

6. Medina had written an “expose” called “Win at All Costs”, in which Medina had raised allegations of prosecutorial misconduct in a number of different and unrelated criminal prosecutions. The document, on its face, had been signed and sworn to by Medina on December 7, 2004, and attached to it was a distribution list of intended recipients, which included various media outlets and law enforcement agencies. Included in Medina’s 2004 “expose” was the following:

[the prosecutor] tried and convicted the Cueto, and Julio Ruiz arm (sic) robbery case in which she obtain (sic) a life sentence using the testimony of Gilbert Serna.... [The prosecutor] portrayed Gilbert Serna and Manolo Perdomo testimony to the jury under the pretense that neither Serna nor Perdomo were getting any kind of sentence reduction for their cooperation with the State of Florida. The fact is that [the prosecutor] had a pre arranged verbal agreement with Mr. Serna that his sentence would ultimately be reduced as part of his co-operation in these eases....

7. In 2007, Serna’s sentence was reduced and he is no longer serving a sentence.

8. Medina would testify in court to the averments contained in his affidavit.

Also attached to Cueto’s motion was an excerpt of the trial testimony of Gilbert Serna, in which the prosecutor asks him whether she had promised him anything or offered any “deals”, including a reduced sentence, in exchange for his testimony. Serna answered “No.”

Medina argues that this evidence established, inter alia, that the State violated Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that he was deprived of a fair trial.

The trial court entered an order summarily denying Cueto’s motion without an evidentiary hearing. In its order, the court acknowledged that the Medina affidavit qualified as newly-discovered evidence. However, the court’s basis for summarily denying the motion was that Cueto “failed to meet the second prong as set forth in the case law [for assessing claims of newly-discovered evidence]. The defendant has failed to present reliable or credible evidence in support of his claim. The affidavit from Angel Medina is not of a quality to produce an acquittal based on the overwhelming evidence presented at trial.” The court then set forth in its order a “summary” of the evidence introduced against Cueto at trial (but did not attach any records or transcripts), and concluded that “the overwhelming weight of all the evidence would lead to a conviction of Defendant and that the alleged newly discovered evidence does not warrant a new trial.”

First, it is essential to distinguish between a claim of newly-discovered evidence and an alleged Giglio violation. While they are to some extent related or overlapping claims, the applicable burden of proof and standard for determining entitlement to relief is different for each.

To establish a claim of newly-discovered evidence, a defendant must meet two requirements:

1. The evidence must be newly-discovered; that is, it was neither known by the defendant or counsel at the time of the trial, nor could it have been discovered in the exercise of due diligence; and
2. The evidence must be of such a quality and nature that it would probably produce an acquittal on retrial.

Jones v. State, 591 So.2d 911, 915 (Fla.1991). See also Taylor v. State, 3 So.3d 986 (Fla.2009).

To establish a Giglio violation, the defendant must show that:

1. The testimony given was false;
2. The prosecutor knew the testimony was false; and
3. The statement was “material.”

Guzman v. State, 868 So.2d 498, 505 (Fla.2003).

Significantly, once a defendant establishes the first two prongs of a Giglio violation—that a prosecutor knowingly presented false testimony at trial—the burden shifts to the State to establish that the false testimony was not “material.” “The State, as the beneficiary of the Giglio violation, bears the burden to prove that the presentation of the false testimony was harmless beyond a reasonable doubt.” Id. at 506. As our Supreme Court has recognized, the Giglio standard is more “defense friendly” and “reflects a heightened judicial concern, and correspondingly heightened judicial scrutiny, where perjured testimony is used to convict a defendant.” Id. at 507 (citing United States v. Bagley 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).

Newly-discovered evidence and Giglio claims therefore differ in at least two material respects:

1. In a claim of newly-discovered evidence, the burden is and remains upon the defendant to establish the claim and to prove prejudice. By contrast, once the defendant establishes a Giglio violation, the burden shifts to the State to prove the absence of prejudice.
2. In a claim of newly-discovered evidence, the standard (which the defendant must meet) is to prove that the newly-discovered evidence would “probably produce an acquittal on retrial.” By contrast, in a Giglio claim, the State must prove that the violation was “harmless beyond a reasonable doubt.”

In this case, Cueto alleged (and the trial transcript confirms) that the prosecutor specifically asked Serna at Cueto’s trial whether he had been promised anything in exchange for his testimony, to which Serna replied “No”. The allegations contained in Cueto’s sworn motion, and supported by Medina’s sworn affidavit, contradict Ser-na’s testimony and establish a well-pled allegation of a Giglio violation. The trial court summarily denied the motion without an evidentiary hearing, making a finding simply that the evidence at trial was overwhelming and that the allegations, if proven, would not meet the two-pronged test for newly-discovered evidence under Jones and Taylor. While we express no comment on the ultimate merits of Cueto’s claim or the veracity of Medina’s affidavit, it is evident that the trial court erred in denying this motion without conducting an evidentiary hearing. Where “the record does not conclusively refute [a defendant’s] ... factual allegations that the State knowingly presented false or misleading testimony in violation of Giglio ...” an evidentiary hearing is required. Rivera v. State, 995 So.2d 191, 197 (Fla.2008).

The record does not conclusively refute Cueto’s allegations, and the mere recitation that the evidence at trial was overwhelming (together with a summary of the evidence, without any attachments) is insufficient to permit a summary denial of the motion. Further, the trial court erred in treating the claim as one of newly-discovered evidence rather than a Giglio violation, thereby assessing the claim under an incorrect standard and burden of proof. Finally, a trial court’s assessment of the reliability or credibility of an affi-ant’s assertions ordinarily requires an evi-dentiary hearing. See McLin v. State, 827 So.2d 948, 955-57 (Fla.2002); Jones, 591 So.2d at 916.

Reversed and remanded to the trial court for proceedings consistent with this opinion.

      . Hunter v. State, 29 So.3d 256 (Fla.2008); Rivera v. State, 995 So.2d 191 (Fla.2008).

      . The State filed a response to Cueto's motion in the trial court, and the response made reference to attachments, including trial transcripts. However, those transcripts or other records were neither attached to the trial court’s order nor made a part of the record on appeal.

      . The trial court, in its order, stated: "Even though the Court questions the validity and veracity of Angel Medina's Affidavit, the Court believes that it does qualify as newly discovered evidence or information.” (Emphasis added). Later in its order, the trial court stated:
      ”[T]he defendant has failed to present reliable or credible evidence in support of his claim. The affidavit from Angel Medina is not of a quality to produce an acquittal based on the overwhelming evidence presented at trial.” (Emphasis added.) Assessments of this kind are more appropriately made following an evidentiary hearing, and such a hearing is all the more necessary where the establishment of a violation would place the burden upon the State to prove that such violation was harmless beyond a reasonable doubt.


author: TAYLOR, J.

text:
    Mayan SCHWARTZ, Appellant, v. Stuart E. BLOCH and Bloch, Minerley & Fein, P.L., a Florida limited liability company, Appellees.
    No. 4D10-742.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.

      Philip D. Parrish of Philip D. Parrish, P.A., Miami, and Andrew Seiden of Seiden Alder & Matthewman, P.A., Boca Raton, for appellant.
    Scott A. Cole, Edward S. Polk and Justin D. Siegwald of Cole, Scott & Kissane, P.A., Miami, for appellees.
   ON MOTION FOR REHEARING

TAYLOR, J.

We grant appellees’ motion for rehearing and motion for certification, withdraw our prior opinion, and substitute the following in its place.

Mayan Schwartz, the plaintiff in a lawsuit alleging legal malpractice and breach of fiduciary duty, appeals a final judgment entered in favor of the defendants, attorney Stuart Bloch and the law firm of Bloch, Minerley & Fein, P.L. We affirm as to all issues, except the issue concerning the trial court’s striking of the jury’s award of attorney’s fees or costs. We conclude that because plaintiff was seeking attorney’s fees and costs as an element of “wrongful act” damages, plaintiff was not required to present independent expert testimony as to the reasonableness of the attorney’s fees. We therefore reverse the trial court’s order setting aside the jury verdict of $250,000 for attorney’s fees or costs.

The salient background facts are as follows. In 2004, plaintiff consulted Bloch and his firm for asset protection advice in light of his forthcoming marriage to his current wife. Bloch discussed with plaintiff the possibility of obtaining a prenuptial agreement and fully disclosing all assets prior to executing such an agreement. Plaintiff informed Bloch, however, that a prenuptial agreement was not a viable option. Bloch then advised plaintiff that the most effective alternative would be for plaintiff to assign his interests in family businesses to other members of his family so as not to own those assets during the marriage.

Plaintiff followed this advice, and on September 23, 2004, he assigned his interests in the following six entities to his father, Israel Schwartz: (1) Focus Invests ments; (2) Focus Atlantic North; (3) Focus Atlantic South; (4) DBS Distributors; (5) AH-SO; and (6) plaintiffs interests in the AH-SO v. Southeast Toyota Distributors lawsuit. After executing these assignments, plaintiff got married in December 2004.

On January 4, 2006, Israel wrote a letter to plaintiff, purporting to remove plaintiffs authority to run DBS Distributors. The letter further stated that plaintiff had been “removed from the bank accounts” and was “not authorized to sign checks on behalf of the company.” Shortly thereafter, one of plaintiffs brothers told plaintiff that he would no longer have access to the bank accounts of the family businesses.

After a business feud with his father, plaintiff hired attorney Andrew Seiden and filed suit against several members of his family, his former accountant, several of the Schwartz family business entities, and his former attorneys in the law firm of Bloch, Minerly, & Fein. Plaintiffs claims against his family and his accountant settled in July 2007, but plaintiffs legal malpractice action against Bloch and his law firm remained pending.

At trial on the legal malpractice claims, plaintiff presented expert testimony that the defendants breached duties owed to plaintiff by advising him to assign his assets to his father for no consideration, ■without advising him of other family members’ adverse interests. Plaintiff sought “wrongful act” damages for the attorney’s fees and costs he incurred in prosecuting the claims against his family and his former accountant. Seiden testified to the fees and costs he charged in prosecuting plaintiffs claims, as well as in defending a counter-claim and third-party claim. He explained that the claims all arose from a common nucleus of facts. However, plaintiff did not present any independent expert testimony as to the reasonableness of the attorney’s fees.

Plaintiff also sought damages for harm to his interests in the following entities: 1) West Boca Painting; 2) Focus Investments; 3) Focus Atlantic North; 4) Focus Atlantic South; 5) DBS Distributors; 6) AH-SO Auto Parts; 7) Collision Concepts; 8) Collision Concepts of South Florida; 9) CC Partnership; 10) the Refuge, a Healing Place; 11) Sanctuary at Delray Beach; and 12) the Regatta Condominiums. Although plaintiff sought damages relative to twelve entities, there were only six assignments executed in September 2004.

The jury returned a verdict finding in favor of plaintiff with respect to Focus Atlantic North, Focus Atlantic South, DBS Distributors, and AH-SO, but finding in favor of the defendants as to all other entities. The jury awarded $125,000 in damages for each of the four entities, for a total of $500,000. Additionally, the jury awarded $250,000 as reasonable and necessary attorney’s fees, costs or expenses recoverable under the wrongful act doctrine.

The defendants filed post-trial motions for set-off, judgment in accordance with their earlier motions for directed verdict, and judgment notwithstanding the verdict. These motions argued, among other things, that 1) plaintiff failed to present expert testimony as to the reasonableness of his attorney’s fees, and 2) plaintiff failed to properly prove his damages with respect to the loss of his business interests. The trial court granted relief on these two grounds, vacated the damages awards, and entered final judgment in favor of the defendants. The trial court found that the other grounds in the defendants’ post-trial motions were moot and did not address them. Plaintiff appealed.

We reverse only as to that portion of the trial court’s post-trial order that set aside the jury’s award of $250,000 in attorney’s fees or costs because of plaintiffs failure to present independent expert testimony to establish the reasonableness of the attorney’s fees expended in representing plaintiff. We hold that such independent expert testimony was not required for fees which plaintiff incurred in the litigation with his family and sought as an element of his compensatory damages under the wrongful act doctrine.

The wrongful act doctrine provides that where “the wrongful act of the defendant has involved the claimant in litigation with others, and has placed the claimant in such relation with others as makes it necessary to incur expenses to protect its interests, such costs and expenses, including reasonable attorney’s fees upon appropriate proof, may be recovered as an element of damages.” Martha A. Gottfried, Inc. v. Amster, 511 So.2d 595, 598 (Fla. 4th DCA 1987) (internal quotation omitted). This is an exception to the rule that attorney’s fees are not recoverable in the absence of a statute, contract, or rule authorizing such an award. Id.

Florida courts have recognized that “where a party seeks to have the opposing party in a lawsuit pay for attorney’s fees incurred in that same action, the general rule in Florida is that independent expert testimony is required.” Sea World of Fla., Inc. v. Ace Am. Ins. Cos., 28 So.3d 158, 160 (Fla. 5th DCA 2010). Likewise, “case law throughout this state has adhered to the requirement of an independent expert witness to establish the reasonableness of fees, regardless of whether a first or third party is responsible for payment.” Robin Roshkind, P.A. v. Machiela, 45 So.3d 480, 481 (Fla. 4th DCA 2010).

In Roshkind, we explained that the judicially-created requirement of independent expert witness testimony in establishing the reasonableness of attorney’s fees “remains etched in our case law” because attorneys have an ethical duty to charge reasonable fees regardless of the terms of the fee agreement. 45 So.3d at 482. We stated: ‘While the reasonableness of fees charged is, and should remain, an important consideration, it is a factor that may not mandate an expert independent of the litigating attorneys and the trial judge.” Id. Thus, while we questioned the continued need for this judicially-created rule, we “reluctantly” affirmed the trial court’s holding that expert testimony was required to establish the reasonableness of fees in a charging lien matter. Id.

We note, however, as did the Fifth District in Sea World, that “if a claimant is seeking to recover, as damages, fees paid to a physician, engineer, architect, or other professional, there is no requirement to present ‘corroborating’ testimony from an independent expert.” Sea World, 28 So.3d at 160 (emphasis added). The Fifth District held that a party is not required to call an independent expert witness to corroborate the reasonableness of attorney’s fees where that party “is seeking to recover previously incurred attorney’s fees as an element of damages in a breach of contract action.” Id. at 160-61.

In this case, plaintiff was seeking to recover the attorney’s fees he incurred in the litigation with his family as an element of damages in his wrongful act claims against his former attorneys for malpractice. This case is thus distinguishable from a situation where there is a first-party fee dispute between an attorney and a former client, or a situation in a fee-shifting case where a party is required by statute or contract to pay the attorney’s fees of the adverse party. Roshkind does not require independent expert testimony to establish the reasonableness of professional fees, including attorney’s fees, when those fees are an element of compensatory damages.

We apply the reasoning in Sea World in this case and conclude that, because plaintiff was seeking fees and costs incurred in the litigation with his family as an element of his compensatory damages under the wrongful act doctrine, he was not required to present corroborating testimony from an independent expert. The trial court thus erred in vacating the wrongful act damages solely on the basis that there was no independent expert testimony as to the reasonableness of the fees. Furthermore, we reach this conclusion even though plaintiff initially sued his family and the defendants all in the same lawsuit, rather than bringing the claims against the defendants in a separate lawsuit. To the extent our decision may conflict with Seitlin & Co. v. Phoenix Insurance Co., 650 So.2d 624 (Fla. 3d DCA 1994), we certify conflict.

Accordingly, we reverse that portion of the trial court’s post-trial order which struck the award of $250,000 in damages under the wrongful act doctrine solely because the plaintiff failed to present independent expert testimony to establish the reasonableness of the attorney’s fees. However, to the extent that the trial court found that the other grounds asserted in the defendants’ post-trial motions were moot, we direct on remand that the trial court consider these grounds on the merits. In all other respects, we affirm.

Affirmed in part, Reversed in part, and Remanded.

GERBER and LEVINE, JJ., concur.

      . We certified the question to the Florida Supreme Court as one of great public importance, but the Florida Supreme Court ultimately declined to review the case. See Robin Roshkind, PA. v. Machiela, 64 So.3d 1245 (Fla.2011).


text:
    David L. FLEMING, Appellant, v. FORT WALTON BEACH MEDICAL CENTER and Paula Wadbrook, M.D., Appellees.
    No. 1D11-4217.
    District Court of Appeal of Florida, First District.
    June 6, 2012.
    David L. Fleming, pro se, Appellant.
    Carrie M. Roane of Henry, Buchanan, Hudson, Súber, Tallahassee, for Appellee Fort Walton Beach Medical Center, and Crystal Collins Spencer of Spencer Law, Pensacola, for Appellee Paula Wadbrook, M.D.
   PER CURIAM.

Because the order on appeal merely grants a motion for summary judgment without entering judgment, the order is not final. See McQuaig v. Wal-Mart Stores, Inc., 789 So.2d 1215 (Fla. 1st DCA 2001). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

ROBERTS, WETHERELL, and ROWE, JJ., concur.


text:
    FIRST REAL ESTATE, LLC, Appellant, v. Karen T. GRANT, individually and as Karen T. Grant, Trustee, Chip Harbour, III, individually and as managing member of CBH Properties, LLC, Stephen D. Bachman, William Mathieu, World of Realty of Bay County, Inc., Beach Boys Realty, Inc., Ocean Reef Developers, LLC, and Ocean Reef Developers, II, LLC, Appellees.
    No. 1D12-0614.
    District Court of Appeal of Florida, First District.
    June 6, 2012.
    Alvin L. Peters of Peters & Scoon, Panama City, for Appellant.
    Michael P. Dickey and Jeffrey S. Carter of Barron, Redding, Hughes, Fite, San-born, Kiehn, Leebrick & Dickey, P.A., Panama City, for Appellee.
   ON MOTION FOR APPELLATE ATTORNEY’S FEES

PER CURIAM.

Appellant filed a breach of contract action against Appellee Bachman and others. Judgment was entered in favor of Bach-man and Appellant appealed. Shortly after the clerk of the lower tribunal filed the record index, and prior to the parties filing any briefs, Appellant voluntarily dismissed the appeal under rule 9.350(b). Bachman seeks an award of attorney’s fees as the prevailing party in this appeal.

The contract at issue in this case includes a prevailing party attorney’s fee provision, which by virtue of section 59.46, Florida Statutes, includes appellate attorney’s fees. Appellant appears to concede that Bachman is the prevailing party in this appeal, but it objects to an award of appellate attorney’s fees on the basis that “appellee’s involvement in this appeal has been de minimus.”

There is support for Appellant’s position in Sanchez v. State Farm Florida Insurance Company, 997 So.2d 1209 (Fla. 3d DCA 2008). However, we agree with Judge Shepherd’s dissent in that case that there is no de minimis exception when determining entitlement to a fee award. Id. at 1210. Although the dismissal of this appeal at an early stage will certainly impact the amount of fees awarded, it has no bearing on Bachman’s entitlement to fees.

Accordingly, we grant Bachman’s motion for appellate attorney’s fees, and we remand this case to the trial court to determine the amount of the award if the parties are unable to agree on an amount.

MOTION GRANTED; CASE REMANDED.

ROBERTS, WETHERELL, and ROWE, JJ., concur.


text:
    James Edward PORTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2158.
    District Court of Appeal of Florida, First District.
    June 8, 2012.
    Nancy A. Daniels, Public Defender, and Maria Ines Súber, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, James Edward Porter, appeals his convictions and sentences for trafficking in amphetamine or methamphetamine (200 grams or more), unlawful possession of a listed chemical, the sale, manufacture, delivery or possession with the intent to sell, manufacture, or deliver a controlled substance, and possession of drug paraphernalia. We agree with Appellant that the trial court fundamentally erred in omitting portions of the standard jury instruction on constructive possession because the omission was pertinent and material to what the jury had to consider in order to convict. See State v. Delva, 575 So.2d 643, 645 (Fla.1991). While we also agree with Appellant that the trial court erroneously instructed the jury that knowledge of the illicit nature of the controlled substance was an element of the trafficking offense, we do not find that that error rises to the level of fundamental eiTor in this case.

With that said, neither of the jury instruction issues is dispositive here given that Appellant correctly argues that the trial court erred in denying his motion for judgment of acquittal on all four counts. Although the State, in its attempt to establish Appellant’s constructive possession of the contraband, listed chemical, and drug paraphernalia, introduced competent evidence that was inconsistent with Appellant’s claim that he had no knowledge of the presence of the contraband and other items on the premises at issue, the State’s evidence was not inconsistent with Appellant’s claim that he had no dominion and control over the contraband and other items. As such, the trial court should have granted Appellant’s motion. See Edison v. State, 956 So.2d 1275, 1277 (Fla. 2d DCA 2007) (reversing and remanding with instructions that the appellant, who was charged with drug trafficking, be discharged because the State presented no evidence to establish the appellant’s dominion and control over the drugs and noting that although the appellant, who admitted to being in the house at issue as a visitor, was undoubtedly aware of illegal activity, no evidence demonstrated that he exerted any control over the drugs given that he did not have any drugs in his system when detained and none of his fingerprints were found on any of the weapons, money, or contraband); Lester v. State, 891 So.2d 1219, 1221 (Fla. 2d DCA 2005) (reversing the appellant’s conviction for drug possession and concluding that while the evidence was sufficient to establish that the appellant was aware of the presence of the drugs and that he intended to partake in them, the evidence did not establish his dominion and control over the drugs as no proof was presented that he had or could take actual possession of them or that he could compel the woman who purchased the drugs to share them with him).

Accordingly, we REVERSE and REMAND with instructions that Appellant be discharged.

DAVIS, WETHERELL, and SWANSON, JJ., concur.


text:
    William D. ELLIOTT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5070.
    District Court of Appeal of Florida, First District.
    June 8, 2012.
    Jeffrey A. Siegmeister, Lake City, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

We treat this petition for habeas corpus alleging ineffective assistance of appellate counsel as a timely petition under rule 9.141(d) and deny the petition on the merits. The two issues Petitioner contends appellate counsel should have raised on direct appeal are meritless; the trial court properly found that Petitioner waived his right to conflict-free counsel and the trial court did not abuse its discretion in denying the motion for new trial based upon an isolated comment by the prosecutor that could be inferred as a comment on Petitioner’s right to remain silent. Because these issues are meritless, appellate counsel was not ineffective for failing to raise the issues. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000) (“If a legal issue would in all probability been found to be without merit had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective.”).

DENIED.

DAVIS, WETHERELL, and SWANSON, JJ., concur.


text:
    S.F., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1914.
    District Court of Appeal of Florida, Third District.
    June 13, 2012.
    Carlos J. Martinez, Public Defender, and Melissa C. Del Valle, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and CORTINAS and LAGOA, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Based on the State’s proper and commendable confession of error, we reverse the adjudication of delinquency for disorderly conduct (count I), and direct the trial court to vacate S.F.’s conviction for disorderly conduct. We affirm S.F.’s adjudication of delinquency as to Count II.

Affirmed in part; reversed in part and remanded