author: BENTON, J.

text:
    Lindsey Rene TEMPLE, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4367.
    District Court of Appeal of Florida, First District.
    Nov. 21, 2014..

      Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Lindsey Rene Temple appeals her convictions and sentences for trafficking in amphetamine or methamphetamine (28 grams or more, less than 200 grams); the sale, manufacture, delivery or possession with intent to sell, manufacture, or deliver a controlled substance (methamphetamine); unlawful possession of a listed chemical (anhydrous ammonia); and possession of drug paraphernalia. Tried with the boyfriend with whom she lived, Ms. Temple was sentenced to ten years’ imprisonment with a mandatory minimum of seven years on the trafficking count; to ten years’ imprisonment for the sale, manufacture, delivery, or possession with intent to sell, manufacture, or deliver a controlled substance; to ten years’ imprisonment for unlawful possession of a listed chemical; and to time served for possession of drug paraphernalia, all sentences concurrent. The trial court erred in denying her motion for judgment of acquittal on the first three counts, and we reverse the convictions and sentences on those counts. We affirm the conviction for possession of drug paraphernalia.

Counts one and two charged Ms. Temple with trafficking in, selling, purchasing, manufacturing, delivering or possessing methamphetamine. But there was no attempt to prove that Ms. Temple ever sold, purchased, manufactured, or delivered methamphetamine. The prosecutor argued in closing: “To prove trafficking, the State has to prove four things beyond a reasonable doubt. The first is that he [and she] knowingly sold, purchased, manufactured, delivered, brought into the State or possessed a certain substance. And we’re alleging, obviously, that they possessed it.” “To prove [count two], we have three things to prove: That they possessed with the intent to manufacture a certain substance, the substance was methamphetamine, and the defendants] had knowledge of the presence of the substance.” Later, the prosecutor told the jury in essence that the state had proven counts one and two by proof that Ms. Temple (and her boyfriend) had possession of the “meth oil” that law enforcement officers discovered in a cabinet under the kitchen sink.

As closing argument reflected, the first two counts boiled down to charges of constructive possession of methamphetamine (as to count one, in a “trafficking amount”). Similarly, count three charged Ms. Temple with possession of anhydrous ammonia that law enforcement officers found in a bathroom and bedroom, rooms she may never have used. There was no evidence that she ever had. Because no methamphetamine or other contraband was found in her physical possession, Ms. Temple’s convictions are necessarily based on a theory of constructive possession.

In a constructive possession case, the state has the burden to establish not only that the defendant knows contraband is present, but also that she has the ability to maintain control over it. See Evans v. State, 32 So.3d 188, 189 (Fla. 1st DCA 2010). Knowledge and ability to control cannot be inferred from a defendant’s mere proximity to contraband if possession of the premises where the contraband is found is joint. Where premises are occupied jointly, knowledge and ability to control must be established by independent proof. See Brown v. State, 428 So.2d 250, 252 (Fla.1983). While contraband in plain view in the common areas of a house may permit an inference of a householder’s knowledge of its presence and of the ability to exercise control, see id., there must be “direct evidence of defendant’s knowledge of the contraband upon the premises which cannot be inferred, absent the defendant’s exclusive possession or control.” Smith v. State, 279 So.2d 27, 28 (Fla.1973) (holding that no direct evidence tied a husband to the presence of illegal drugs in a dresser drawer in the bedroom jointly occupied with his wife). Evidence permitted the inference that Ms. Temple was aware of certain paraphernalia in plain sight and capable of reducing it to her physical possession. But the state did not introduce sufficient evidence to establish her constructive possession either of methamphetamine (the meth oil in the cabinet) or of anhydrous ammonia, stored in tanks in rooms not shown to be part of a common area.

At trial there was testimony that Ms. Temple lived with her boyfriend at the residence where contraband was discovered, and that she had shared the home for more than a year. Law enforcement officers initially arrived at the residence to arrest Ms. Temple’s boyfriend for whom they had an arrest warrant. After the boyfriend left the house and was taken into custody, officers asked him if anyone else was inside. He answered that Ms. Temple was in the house. In an effort to interview her, officers knocked on front and side doors for ten minutes to no avail. Eventually, another individual came to the door and, at the officers’ request, went to look for Ms. Temple. When she came to the door, she appeared sleepy, one of the officers testified. After receiving consent from Ms. Temple to search the house for anything illegal, an officer discovered paraphernalia used for manufacturing methamphetamine in plain view in the kitchen and living room. Officers later returned with a search warrant and conducted a more thorough search.

The residence had three bedrooms and two bathrooms, one of which opened onto the master bedroom. Items used for manufacturing methamphetamine were found throughout the kitchen and living room in plain view. Within the master bedroom, the bedroom Ms. Temple occupied, a torch used for smoking methamphetamine was found. But the only item found anywhere that was found to contain methamphetamine was a jar of meth oil discovered in a cabinet underneath the kitchen sink. One tank of anhydrous ammonia was found in the bathtub of the hallway bathroom, and a second tank of anhydrous ammonia was found within an orange cooler wrapped in a towel inside the third bedroom.

Ms. Temple’s theory of defense was that she was unaware of the presence or any production of methamphetamine in the residence because she limited her use of the residence to the master bedroom and the master bath. She claimed that she had been away from „the residence the day before the search and only returned at four o’clock in the morning on the day of the search, went to bed, and slept until she was awakened to meet officers at the door. A law enforcement officer who had the house under surveillance could not testify that Ms. Temple was in the house the day before the search occurred. The same officer testified that one method used to manufacture methamphetamine was “easy, fast” and could be completed in three to four hours, and that another manufacturing method, one that used anhydrous ammonia, took about six hours. Ms. Temple argued that any manufacturing operation that took place must have occurred while she was sleeping.

The present case is not a case where a controlled substance was found in the defendant’s bedroom or in plain view in a common area over which she had joint control. Cf. Duncan v. State, 986 So.2d 658, 654-56 (Fla. 4th DCA 2008) (concluding there was sufficient evidence to create a factual question as to appellant’s constructive possession when appellant was an occupant of the house, cocaine was found in plain view in a room used by all house occupants, a spoon with cocaine residue was found in the kitchen that appellant jointly controlled, baggies with cocaine residue were found in appellant’s bedroom, and marijuana was found in a jacket hanging in appellant’s bedroom). The circumstantial evidence that the state introduced in the present case to prove constructive possession of methamphetamine and anhydrous ammonia was not inconsistent with Ms. Temple’s reasonable hypothesis of innocence. See Evans, 32 So.3d at 189.

In the present case, the meth oil was not found in plain view, but inside a kitchen cabinet. See De La Cruz v. State, 884 So.2d 349, 350-52 (Fla. 2d DCA 2004) (holding that the state did not connect the defendant, who was a resident of the premises, to a block of cocaine found in a kitchen cabinet whose door was partly ajar). The state offered no evidence that the cabinet was open, that its contents were in plain view, or that Ms. Temple knew of its contents. The state also failed to establish that the hallway bathroom or third bedroom, where the anhydrous ammonia tanks were found, were common areas. Ms. Temple claimed that she occupied the master bedroom and bathroom, and no other bedroom or bathroom. See Porter v. State, 88 So.3d 1074, 1075 (Fla. 1st DCA 2012) (concluding that the state’s evidence was not inconsistent with appellant’s claim that he had no dominion and control over the contraband). No personal items associated with Ms. Temple were found in either the hallway bathroom or the third bedroom, and law enforcement obtained no fingerprints from the residence or its contents.

The state’s evidence was insufficient to sustain Ms. Temple’s convictions based on constructive possession of meth oil and anhydrous ammonia. The prosecution argued to the jury that “You cannot live— you cannot be in that house and not know it’s a meth lab.” Ms. Temple was not, however, charged with living in a meth lab. Although, as the trial court noted, items used for making meth were found in plain view in the kitchen and living room, there was no evidence that the meth oil in the kitchen cabinet — possession of which was the gravamen of counts one and two — was in plain view or that the hallway bathroom and third bedroom — where anhydrous ammonia tanks were found — were common areas, and there was no evidence about when anything was placed where the police eventually found it.

Accordingly, we reverse Ms. Temple’s convictions on counts one, two, and three. As a result, it is unnecessary to address her argument that her convictions on both counts one and two violate double jeopardy protections.

Reversed in part and affirmed in part.

LEWIS, C.J. and MARSTILLER, J., concur.

      . Counsel stated the motion on the record, in pertinent part as follows:

        Your Honor, I request the Court, as concerns Lindsey Temple, grant a motion of a directed verdict. The basis is that the evidence presented is not sufficient under our rules to warrant submission to the jury in that the only evidence put on shows mere proximity or presence, which is in and of itself not sufficient to indicate that she’s involved. And there's no direct evidence to show her involvement, other than her mere presence or proximity to the house where the contraband and methamphetamine were found. There’s no fingerprints. There’s no evidence showing that she’s dealing with ány-thing. There’s no forensics. There's no indication that she possessed anything on her person. She's just there in a house in which she occupies the bedroom and several other people occupy. But, like I said, she just has mere presence at the scene. '

      . The drug paraphernalia count was properly allowed to go to the jury. Paraphernalia was found in plain view in the kitchen and living room areas, and, apparently under her dominion and control, in the bedroom Ms. Temple occupied.

      . Although a law enforcement officer believed that a white powdery substance found on a plate in the living room was methamphetamine, the state concedes that counts one and two were both predicated upon the meth oil found in the kitchen cabinet, which was analyzed by a chemist and proven beyond a reasonable doubt to contain methamphetamine.

      . ■ A law enforcement officer testified that a strong odor of anhydrous ammonia was concentrated in the hallway bathroom, and that the odor was present in varying degrees throughout the residence. The officer testified that an average person would detect the odor, but would not necessarily know it was associated with methamphetamine. According to the officer, anhydrous ammonia "smells like regular ammonia, but completely different, if that makes sense.”

      . As the trial court noted, the time the house was searched was never established: "I don’t know that it’s ever been established what time they came in, the officers actually came in, now thaf I’m dunking about it.” Because the state failed to establish when the search occurred, the state cannot rebut Ms. Temple’s claim that a window of at least six hours existed between the time she returned home at four in the morning and the search.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eric A. ELLISEN, Appellant, v. Jane L. ELLISEN, Appellee.
    No. 5D14-123.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2014.
    Adam B. Schemer, of The Law Office of Schemer & Schemer, Jacksonville, for Appellant.
    Sharon B. Johnson, Jacksonville, for Ap-pellee.
   PER CURIAM.

Eric Ellisen (“former husband”) appeals from a “Final Judgment on Former Husband’s Supplemental Petition for Modification of Alimony and Former Wife’s Motion for Civil Contempt/Enforcement.” He only appeals the denial of his modification petition. The former husband correctly argues that the trial court erred by narrowly construing his modification petition as a request to terminate alimony, thus rejecting his request for modification. Both his modification petition and the pretrial stipulation put the former wife and the court on notice that the former husband was seeking modification or termination. Additionally, the former husband argues, and the former wife correctly concedes, that the trial court evaluated the evidence using an incorrect burden of proof.

Accordingly, we reverse that portion of the trial court’s order denying the former husband’s petition to modify or terminate alimony, and remand with directions that the trial court reconsider the issue applying the correct burden of proof:

REVERSED and REMANDED.

PALMER, LAWSON and WALLIS, JJ., concur.

      . Although the petition unambiguously requested modification or termination of alimony, the prayer for relief at the end of the petition only referenced termination of alimony. The trial court erroneously concluded that failure to include the modification request in the prayer for relief should control over those portions of the petition requesting modification. "[Generally, courts of equity have the fullest liberty in molding decrees to the necessity of the occasion, regardless of the prayer.” Golden v. Woodward, 15 So.3d 664, 668 (Fla. 1st DCA 2009) (quoting Singer v. Tobin, 201 So.2d 799, 800-01 (Fla. 3d DCA 1967)); see also § 61.14, Fla. Stat. (2012) (giving former spouses authority to seek, and court authority to grant “order decreasing or increasing the amount of ... alimony ... as equity requires”). “Every complaint shall be considered to demand general relief.” Golden, 15 So.3d at 668 (quoting Fla. R. Civ. P. 1.110(b). “Thus, the court must Took to the facts alleged, the issues and proof, and not the form of the prayer for relief to determine the nature of the relief which should be granted.' " Id. (quoting Circle Fin. Co. v. Peacock, 399 So.2d 81, 84 (Fla. 1st DCA 1981)).

      . The court noted that because alimony was determined by agreement, the former husband had a heavier than usual burden of proof, citing to Overbey v. Overbey, 698 So.2d 811 (Fla. 1997). That rule was changed by statute in chapter 93-208, section 3, Laws of Florida. Since then, section 61.14, Florida Statutes has stated, “When modification of an existing order of support is sought, the proof required to modify a settlement agreement and the proof required to modify an award established by court order shall be the same.” § 61.14(7), Fla. Stat. (2012); but see Knight v. Knight, 702 So.2d 242, 243 (Fla. 4th DCA 1997) (reasoning that the rule in Overbey still applies because the Florida Supreme Court in that case must have been aware of the prior statutory change).


text:
    Ekaterina O. MERKULOVA, Appellant, v. Said ELBOUATMANI, Appellee.
    No. 5D13-1344.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2014.
    David T. Roberts, of Roberts & Robold P.A., Orlando, and Shannon L. Akins, of the Law Office of Shannon L. Akins, P.A., Orlando, for Appellant.
    Lora S. Scott, of The Law Office of Lora S. Scott, Orlando, for Appellee.
   PER CURIAM.

In this paternity action, appellant, Eka-terina O. Merkulova (Mother), appeals the final judgment establishing paternity, parenting plan, and support provisions regarding a child fathered by appellee, Said Elbouatmani (Father). Mother argues that the trial court erred in the calculation of child support, that the final judgment does not comport with the trial court’s verbal pronouncements made at trial, and that she should have been awarded attorney’s fees. We find error only in that portion of the judgment establishing retroactive child support. Because the monthly gross income figure used to calculate the amount of Father’s retroactive child support from the date of the filing of the petition through April 1, 2012 is not supported by competent, substantial evidence, we remand with instructions to recalculate the amount ordered for July 1, 2011 to March 1, 2012, to coincide with the trial court’s March 23, 2012 order awarding temporary child support. See Ditton v. Circelli, 888 So.2d 161 (Fla. 5th DCA 2004) (reversing retroactive child support award, and remanding with instructions to recalculate retroactive support to correspond with evidence presented below). In all other respects, we affirm.

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

PALMER, LAWSON and BERGER, JJ., concur.

      . The March 23, 2012 order awarding temporary child support is supported by Father’s first financial affidavit and a finding that, at the time the order was entered, Mother had 100% of the overnights with the child. The record reflects that Father was not awarded overnight visitation until April 2012.


author: WALLIS, J.

text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, Appellant, v. James HANSE and Rita Hanse, Appellees.
    No. 5D13-4501.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2014.
    Dorothy Difiore, of Haas Lewis Difiore, P.A., Tampa, for Appellant.
    George A. Vaka and Nancy A. Lauten, of Vaka Law Group, Tampa, and Kenneth C. Thomas, Jr., of Marshall Thomas Burnett, Land O’Lakes, for Appellees.
   WALLIS, J.

Florida Insurance Guaranty Association (“Appellant”) appeals a non-final order compelling appraisal for James and Rita Hanse (“Appellees”) in a dispute over a sinkhole loss. Appellant raises three issues: (1) Appellees waived their right to demand appraisal because the case has been actively litigated; (2) No issues exist that can be determined by an appraisal panel because only the amount of loss is subject to appraisal under the policy; and (3) Appellees selected an unqualified appraiser. Because we addressed identical arguments on substantially similar facts in Florida, Insurance Guaranty Association v. Branco, 148 So.3d 488 (Fla. 5th DCA 2014), we affirm, in part, holding Appellees did not waive their right to demand appraisal and appraisable issues exist. However, we reverse, in part, and remand the order to the extent it permits Appellees to select their own attorney as a disinterested appraiser. Id. (“Given the duty of loyalty owed by an attorney to a client, we conclude that attorneys may not serve as their clients’ arbitrators or appraisers when ‘disinterested’ arbitrators or appraisers are bargained for.”).

AFFIRMED in part; REVERSED in part; and REMANDED.

LAWSON and LAMBERT, JJ., concur.


text:
    Holly D. MORGAN and Daniel E. Springen, Petitioners, v. Christopher Scott HEWITT, as Personal Representative of the Estate of Wilbur Hewitt, Respondent.
    No. 5D14-1362.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2014.
    Scott A. Smothers and Mark Ingram, of Smothers Law Firm, P.A., Apopka, for Petitioners.
    Allan C. Draves, of the Law Office of Allan C. Draves, Orlando, for Respondent.
   PER CURIAM.

Petitioners, Holly D. Morgan and Daniel E. Springen, seek second-tier certiorari review of an appellate decision of the circuit court, which dismissed their appeal of a non-final order granting immediate possession of real property in favor of the Respondent, Christopher Scott Hewitt, as personal representative of the estate of Wilbur Hewitt. Petitioners have resided on the property for the past five years and claim to have an ownership interest in the property. Under these circumstances, we find the circuit court’s clearly erroneous conclusion — that it lacked jurisdiction on the basis that a plenary appeal would provide an adequate remedy for Petitioners— constituted a departure from established law resulting in a miscarriage of justice. See generally Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086 (Fla.2010). Accordingly, we grant the petition and remand to the circuit court to treat Petitioners’ request for review as a petition for writ of certiorari and consider its merits.

PETITION GRANTED.

LAWSON, EVANDER and BERGER, JJ., concur.

      . We acknowledge that the circuit court correctly treated Petitioners’ appeal as a petition for writ of certiorari, but dismissed it for lack of jurisdiction. See Fla. R. App. P. 9.040(c).

      . We have jurisdiction to review the matter pursuant to Florida Rule of Appellate Procedure 9.030(b)(2)(B). See also Article V, § 4(b)(3), Fla. Const.


author: DAMOORGIAN, C.J.

text:
    Richard SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4622.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2014.

      Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, C.J.

Richard Scott appeals his judgment and sentence for one count of resisting arrest without violence. He argues that the trial court erred in denying his motion for judgment of acquittal because the state failed to establish that the arresting officers were legally performing an investigatory stop. We agree and reverse.

At Appellant’s trial, the state presented the following evidence. On the day of Appellant’s arrest, two officers were conducting surveillance on a residence for the purpose of executing an arrest warrant on a man by the name of R.Q. During the course of their surveillance, the officers saw Appellant exit the house wearing a full-face motorcycle helmet. The officers approached Appellant to determine whether he was the man they were looking for, at which point Appellant took off his helmet and gave the officers his name. The officers were unable to confirm Appellant’s identity in their system so Appellant invited them inside the residence while he looked for his driver’s license. Appellant could not find his license, so he and the officers went back outside. The officers then asked Appellant to have a seat on the porch while they tried to confirm his identity. A few minutes later, Appellant walked back into the house and locked the door.

Fearing that Appellant was trying to run, the officers went around the house where they saw Appellant exit, jump the fence, and flee. The officers pursued, caught, and arrested Appellant. The officers later determined that they were unable to immediately verify Appellant’s identity because the date of birth Appellant provided was off by one year. After the state rested, • Appellant moved for a judgment of acquittal arguing that Appellant was in a consensual encounter with the officers and, therefore, had every right to end the encounter however and whenever he wanted. The court denied the motion. This appeal follows.

In moving for a judgment of acquittal, a “defendant ... admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the state that a jury might fairly and reasonably infer from the evidence. We' must review the record to determine whether there is sufficient evidence to support the jury’s verdict.” Blue v. State, 837 So.2d 541, 547 (Fla. 4th DCA 2003) (internal citations omitted).

“For a conviction for resisting an officer without violence, the State must show that: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the action by the defendant constituted obstruction or resistance of the lawful duty.” Id. at 547 (citing Slydell v. State, 792 So.2d 667, 671 (Fla. 4th DCA 2001)). “Examples of the lawful execution of a legal duty include: 1) serving process; 2) legally detaining a person; or 3) asking for assistance in an emergency situation.” A.R. v. State, 127 So.3d 650, 654 (Fla. 4th DCA 2013).'

The State concedes that the officers were performing an investigative stop of Appellant when he fled and thus this case comes down to whether the stop was legal. Under Florida’s “Stop and Frisk Law,” a law enforcement officer may perform an investigative stop “under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a [criminal] violation.” § 901.151(2), Fla. Stat. (2010). When considering whether such a stop is justified, we “must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing.” State v. Lewis, 98 So.3d 89, 92 (Fla. 4th DCA 2012). “ ‘[T]he likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.’ ” Id. (quoting United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)). “ ‘[T]he determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.’ ” Id. (quoting Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673,145 L.Ed.2d 570 (2000)).

We rely on the Second District’s decision in Rios v. State, a strikingly similar factual scenario, in which the court held that the officers did not have a reasonable suspicion to support their investigatory stop. 975 So.2d 488, 491 (Fla. 2d DCA 2007). There, two officers went to the address associated with a man they had a warrant to arrest. Id. at 489. Upon arriving at the address, they encountered the defendant, who told them that he was the brother of the man they were looking for. Id. The officers asked the defendant for identification, which he indicated was with his wife inside the house. Id. The officers detained the defendant while waiting for his wife to produce his identification, eventually patting him down and discovering drugs on his person. Id. Although the defendant turned out not to be the man the officers were looking for, he was arrested for possession. Id. The defendant moved to suppress the drugs found on his person, arguing that they were found as the result of an illegal stop. Id. In determining that the drugs should have been suppressed, the Second District reasoned:

[Tjhere was no testimony as to present criminal activity in which [defendant] might have been engaged or potential future criminal activity; indeed, criminal activity during these timeframes was not an issue at all." Moreover, the only potential source of reasonable suspicion as to past criminal acts in which [defendant] might have engaged was the activity for which his half-brother [ ] was to be arrested pursuant to the arrest warrant. However, “[t]he existence of an arrest warrant is of no moment on the question whether a particular person police officers come across is in fact the subject of the warrant. The warrant supplies the officers with probable cause to arrest the person it names and describes, not a license to duck the reasonable suspicion requirement and stop someone they only have a subjective hunch is that person.”

Id. at 491 (quoting U.S. v. Hudson, 405 F.3d 425, 439 n. 9 (6th Cir.2005)) (emphasis added).

Here, like in Rios, there was no testimony that the officers suspected Appellant was engaging in or was going to engage in criminal activity. There was not even testimony that Appellant looked like R.Q. or that the officers believed he was R.Q. for any objective reason. Rather, as the State concedes, the officers’ entire basis for stopping Appellant was that he “was walking out of a residence where the person they were seeking to arrest was known to reside.” As established by Rios, the mere fact that a person is at the residence associated with a suspect with a pending arrest warrant does not in itself justify an investigative stop.

Reversed.

STEVENSON and GROSS, JJ., concur.


author: SHEPHERD, C.J.

text:
    R.C., Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES and Guardian Ad Litem Program, Respondents.
    No. 3D14-2247.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 2014.
    Eugene F. Zenobi, Criminal Conflict and Civil Regional Counse, Third Region, and Kevin Coyle Colbert, for petitioner.
    Karla Perkins, for Department of Children & Families; Patricia Murphy Pro-pheter, for Guardian Ad Litem Program, respondents.
    Before SHEPHERD, C.J., and SALTER and FERNANDEZ, JJ.
   SHEPHERD, C.J.

R.C., the respondent in a petition filed by the Florida Department of Children and Families seeking to terminate her parental rights in her three children, seeks certiorari relief from a sua sponte order of the trial court directing her to submit to a pregnancy test. Because the trial court wholly failed to afford R.C. notice and there is no showing of good cause, as required by law, we quash the order.

Facts

On August 25, 2014, R.C. appeared for a status conference in this termination of parental rights case regarding her three minor children, T.C. (D.O.B.12/14/09), L.C. (D.O.B.3/9/11), and D.L., (D.O.B. 12/13/11). Apparently concerned that R.C. was yet again pregnant, the guardian ad litem asked the court to place R.C. under oath and inquire. In response to progressively more insistent questioning by the trial judge, R.C. thrice answered, “I don’t know.” Displaying palpable incredulity at R.C.’s answers, the court ordered R.C. to submit to a pregnancy test, first on the court’s belief it would be a violation of her case plan for her to become pregnant. After R.C.’s counsel corrected that misconception, the trial court nevertheless continued her insistence on the test, over objection, on the basis that if she is pregnant, “she’s hurting her fetus by not getting prenatal care.” R.C. timely has sought relief from that, order.

Analysis

Certiorari relief is available when an interlocutory order causes material injury that cannot be remedied on direct appeal. E.g., G.D. v. Dep’t of Children & Family Servs., 870 So.2d 235, 237 (Fla. 2d DCA 2004) (citing Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987)). “If this threshold requirement is met, then certiorari will only be granted when the order amounts to a departure from the essential requirements of the law.” Id. This is such a case. See e.g., J.B. v. M.M., 92 So.3d 888, 889 (Fla. 4th DCA 2012) (holding that certiorari jurisdiction lies to review an order compelling a psychological evaluation under Florida Rule of Juvenile Procedure 8.250(b)).

Section 39.407(15) of the Florida Statutes (2014) provides:

At any time after the filing of a shelter petition or petition for dependency, when the mental or physical condition, including the blood group, of a parent, caregiver, legal custodian, or other person who has custody or is requesting custody of a child is in controversy, the court may order the person to submit to a physical or mental examination by a qualified professional. The order may be made only upon good cause shown and pursuant to notice and procedures as set forth by the Florida Rules of Juvenile Procedure.

(emphasis added). Florida Rule of Juvenile Procedure 8.250(b) repeats these statutory requirements and adds the order “shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.” In this case, the order states only: “[I]t is hereby ORDERED and ADJUDGED (over mother’s objection) that the Mother refused to reveal whether or not she is pregnant after being asked by the Court, and that the mother shall submit to a pregnancy test.” The pertinent portion of the transcript of the hearing leading up to the order reads as follows:

[GAL COUNSEL:] Can we inquire ' whether the mother is present? (sic)
JUDGE LEDERMAN: All right. Let’s put the mother under oath.
THE CLERK: Mom, raise your right hand, please.
(Whereupon, the mother was duly sworn)
JUDGE LEDERMAN: Okay. Tell me your name, ma’am. ■
THE MOTHER: [R.C.].
JUDGE LEDERMAN: Are you pregnant, Ms. [C.].
THE MOTHER: I don’t know.
JUDGE LEDERMAN: What do you mean, you don’t know?
THE MOTHER: I don’t know.
JUDGE LEDERMAN: Okay. You honestly don’t know if you’re pregnant?
THE MOTHER: I don’t know.
JUDGE LEDERMAN: Well, you look pregnant to all of us.
THE MOTHER. Oh.
JUDGE LEDERMAN: So if you are pregnant and you haven’t been getting prenatal care, that’s like hurting — that’s hurting your fetus. You understand that?
And I find it hard to believe that you don’t know if you’re pregnant, so I’m going to ask you one more time. Are you pregnant?
THE MOTHER: I don’t know.
[MOTHER’S COUNSEL]: Your Honor, she may not know. She’s had several kids, so that may be just — well, Judge, we’re—
JUDGE LEDERMAN: Okay. Well, that will be in violation of her case plan, first; and second—
[MOTHER’S COUNSEL]: No. No. Your Honor, it wouldn’t be in violation of the — her case plan.
JUDGE LEDERMAN: It will certainly be bad judgment.
[MOTHER’S COUNSEL]: Judge, this mother — in violation of the case plan.
Well, I’ll — I’ll talk with her.
JUDGE LEDERMAN: And if she’s pregnant and not getting prenatal care, that’s — that’s abuse. That’s child abuse.
[MOTHER’S COUNSEL]: I’m going to — I’ll talk with her after the hearing.
JUDGE LEDERMAN: So she probably is pregnant and not getting prenatal care. Bad day.
Okay. So I’m going to order a pregnancy test this week. Okay?
I need you to get a pregnancy test.
[MOTHER’S COUNSEL]: Your Honor — Your Honor, I don’t believe Your Honor can order a pregnancy test.
JUDGE LEDERMAN: I’m going to — well, you can appeal me.

As a concluding thought, the court stated, “I want to test her since it would be to her benefit to know if she’s pregnant or not.”

It is patently obvious from the record in this case that the trial judge acted for reasons of her own rather than any rule of law. . R.C. received no notice of the imposition being made upon her by the court and no opportunity for a reflective response by her counsel, the hallmark of notice and due process. See F.M. v. Dep’t of Children & Families, 758 So.2d 1262, 1264 (Fla. ,5th DCA 2000) (holding that the trial court erred in ordering a psychological evaluation under rule 8.250(b) without giving fair and advance notice). In addition, the order entered by the trial judge fails to include any of the specific information required by rule 8.250(b).

Finally, if the trial court intended her sua sponte comments on the record to be her reasons for ordering R.C. to have a pregnancy test, the comments fail as a matter of law. There was a difference among those present concerning whether or not R.C. “appeared” to be pregnant. Moreover, in our society, it is well settled that “a competent person has the constitutional right to ... refuse medical treatment,” In re Guardianship of Browning, 568 So.2d 4, 11 (Fla.1990), and that right “can only be overcome if the state has a compelling state interest great enough to override this constitutional right.” See Burton v. State, 49 So.3d 263, 265 (Fla. 1st DCA 2010) (quoting Singletary v. Costello, 665 So.2d 1099, 1105 (Fla. 4th DCA 1996)). No such analysis was done or attempted in this case. Id. As Alexander Hamilton long ago warned us, “It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature.” The Federalist No. 78 (Alexander Hamilton). The principle bears an occasional reiteration, even (and perhaps especially) in our children’s court. There was no pretense made of following any legislative directives or intentions in this case.

Petition granted. Order quashed.

      . In accordance with custom and practice, this court ordered counsel for both the Florida Department of Children and Families and the Guardian Ad Litem Program to respond to the petition. For reasons of its own, appellate counsel for the Department of Children and Families responded the Department would "stand mute” on the issue. Appellate counsel for the Guardian Ad Litem Program responded the test was not its idea. It strains credulity to believe that neither the Department nor the Program had any counsel it could offer the court on one of the core statutes for which it is responsible. See Rumph v. V.D., 667 So.2d 998 n. 5 (Fla. 3d DCA 1996) (Schwartz, specially concurring).

      . Nor is a new pregnancy among the statutorily established grounds enumerated in section 39.806 of the Florida Statutes (2014) to support a termination of parental rights.


author: LAGOA, J.

text:
    Felix MOLINA, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D13-1062.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 2014.

      Carlos J. Martinez, Public Defender, and James Moody, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for respondent.
    Before LAGOA, SALTER, and SCALES, JJ.
   ON PETITION FOR WRIT OF HABEAS CORPUS

LAGOA, J.

Petitioner Felix Molina (“Molina”), petitions this Court for a writ of habeas corpus alleging ineffective assistance of appellate counsel pursuant to Florida Rule of Appellate Procedure 9.141(d). While Molina seeks habeas corpus relief on various grounds, we specifically address one. Molina asserts that appellate counsel was ineffective for failing to bring State v. Montgomery, 39 So.3d 252 (Fla.2010), to this Court’s attention on direct appeal and that a new trial is warranted, as the trial court committed fundamental error by giving the jury the same erroneous instruction for manslaughter by act as those given in Montgomery. We agree. Because we find that Molina’s appellate counsel failed to provide effective assistance with respect to the erroneous instruction for manslaughter by act, we grant the petition and remand this case for a new trial before a new judge.

I.FACTUAL AND PROCEDURAL HISTORY

On January 8, 2008, Petitioner Felix Molina was charged by information with second-degree murder with a deadly weapon for shooting Jesse Reyes with a firearm on December 7, 2007. At Molina’s trial, the jury was instructed on manslaughter by act as a lesser included offense of second-degree murder and received, without objection, the following 2008 interim standard jury instruction on manslaughter by act:

In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death.

See In re Standard Jury Instructions in Criminal Cases-Report No. 2007-10, 997 So.2d 403 (Fla.2008). In addition to this instruction, the trial court also provided the jury with instructions on aggravated battery with a deadly weapon.

The jury found Molina guilty of second-degree murder with discharge of a firearm, a crime one step removed from the lesser included offense of manslaughter by act. On August 29, 2009, the trial court sentenced Molina to a term of life with a 25-year minimum mandatory sentence, and this Court affirmed in Molina v. State, 79 So.3d 33 (Fla. 3d DCA 2012) (table). The mandate issued on February 24, 2012.

In November 2012, Molina filed a Motion for Post-Conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied the motion and this Court affirmed in Molina v. State, 124 So.3d 931 (Fla. 3d DCA 2013) (table). In March 2013, Molina filed a pro se petition for writ of habeas corpus alleging ineffec-five assistance of appellate counsel and this petition ensued.

II. STANDARD OF REVIEW

The standard applicable to a claim of ineffective assistance of appellate counsel raised in a habeas petition mirrors the standard for trial counsel ineffectiveness established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Cupon v. State, 833 So.2d 302, 304 (Fla. 1st DCA 2002). In order to grant Molina habeas relief on these grounds, this Court must apply a two-prong analysis:

First, the petitioner must show that the alleged omissions are of such magnitude as to constitute serious error or a substantial deficiency falling measurably outside the range of professionally acceptable performance. See Connor v. State, 979 So.2d 852, 869 (Fla.2007). Second, the petitioner must show that the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result. Id.

Skinner v. State, 137 So.3d 1164, 1166 (Fla. 3d DCA 2014). As such, Molina must demonstrate that appellate counsel’s performance was deficient, and that the deficiency resulted in prejudice to the Molina. See Cupon, 833 So.2d at 304. Prejudice is shown where “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694,104 S.Ct. 2052.

III. ANALYSIS

While the language of the 2008 interim standard jury instruction on manslaughter by act given at Molina’s trial differs from the jury instruction at issue in Montgomery, the Florida Supreme Court recently found that the 2008 interim instructions similarly failed to instruct the jury on the elements of the crime of manslaughter by act. Daniels v. State, 121 So.3d 409, 419 (Fla.2013) (finding that the “2008 jury instruction on manslaughter by act suffer[ed] from the same infirmity that [the] Court found erroneous in Montgomery ”). Although the Florida Supreme Court’s opinion in Daniels had not been issued at the time of Molina’s direct appeal, the First District’s opinion in Riesel v. State, 48 So.3d 885 (Fla. 1st DCA 2010), which the Florida Supreme Court affirmed in Daniels, was available to Molina’s appellate counsel at the time of the appeal. Significantly, we note that Montgomery was issued the year before Molina’s counsel filed the direct appeal, and that counsel failed to raise the issue of the erroneous instruction in that appeal. As we recently stated in Skinner:

This Court recognizes that appellate counsel is not required to anticipate changes in the law, however “there are cases that hold that appellate counsel is ineffective for failing to raise favorable cases decided by other jurisdictions during the pendency of an appeal, which could result in a reversal.”

Skinner, 137 So.3d at 1166 (quoting Granberry v. State, 919 So.2d 699, 701 (Fla. 5th DCA 2006)). Had appellate counsel raised the issue, this Court would have, at a minimum, affirmed and certified conflict with the First District’s decision in Riesel, thus ultimately affording Molina relief through the direct appeals process. See Figueroa v. State, 77 So.3d 714 (Fla. 3d DCA 2011), quashed, 137 So.3d 1019 (Fla.2014) (table); Page v. State, 81 So.3d 525 (Fla. 3d DCA 2012), quashed, 137 So.3d 1021 (Fla.2014).

The State acknowledges the manslaughter jury instruction given at Molina’s trial was erroneous, but argues that because a proper instruction was given for aggravated battery with a deadly weapon, the jury had the opportunity to find Molina guilty of a lesser included offense to second-degree murder — an option the jury in both Montgomery and Daniels did not have. Consequently, the State contends that to the extent there was error in Molina’s trial regarding the jury instructions, the error was not fundamental. To support its proposition, the State argues by analogy that when a trial court gives an erroneous manslaughter by act instruction as a lesser included offense, no fundamental error occurs when the trial court also gives an instruction on manslaughter by culpable negligence; therefore, because the trial court here instructed the jury on the lesser included offense of aggravated battery, giving the erroneous instruction for manslaughter by act did not constitute fundamental error.

We find the State’s argument unpersuasive given the explicit language used by the Florida Supreme Court in Haygood v. State, 109 So.3d 735 (Fla.2013). The Court in Haygood specifically stated:

This decision is not based on the jury pardon doctrine and is not hinged on the right of the jury to issue a jury pardon despite the evidence. This decision is firmly founded on the longstanding principle that a defendant is entitled to have the jury correctly instructed on the crime charged and the lesser included offenses. As we have explained, where the erroneous instruction pertains to an element that is material to the jury’s deliberation and is in dispute, fundamental error occurs, as our precedent indicates, if that offense is one step removed from the crime for which the defendant is convicted. In this case, the erroneously instructed element was placed in dispute by the evidence; thus there was a basis on which the jury could find that the lesser included offense was proven. Haygood, 109 So.3d at 742; see also Williams v. State, 123 So.3d 23, 27 (Fla.2013) (“[A] trial court commits fundamental error in giving the standard jury instruction on attempted manslaughter by act where the defendant is convicted of a crime no more than one step removed from the improperly instructed offense.”). Thus, under Haygood, where there are more than one lesser included offenses that are no more than one step removed from the crime for which the defendant is convicted, a trial court’s correct instruction on one does not cure or render harmless an erroneous instruction on another.
Furthermore, our sister court recently rejected a nearly identical argument in Hill v. State, 124 So.3d 296 (Fla. 2d DCA 2013). In Hill, the trial court instructed the jury on the lesser included offenses of attempted second-degree murder, attempted manslaughter by act, aggravated battery, and battery. Id. at 298. The State similarly argued that “ ‘the jury was provided with 4 viable lesser included offenses besides the charged attempted first degree murder. Even removing attempted ... manslaughter [by act] from the mix, the jury still had 3 applicable lesser included offenses with proper jury instructions.’” Id. Relying on the Florida Supreme Court’s decision in Haygood, the Second District explained that although the evidence was sufficient to sustain the jury’s verdict for attempted second-degree murder, defendant Hill was entitled to a new trial “‘to enable the jury to determine what degree of crime ... [was] proven.’ ” Id. at 301 (quoting Haygood, 109 So.3d at 743); see also Daniels, 121 So.3d at 415 (“[I]f the jury is not properly instructed on the next lower crime, then it is impossible to determine whether, having been properly instructed, it would have found the defendant guilty of the next lesser offense.” (quoting Montgomery, 39 So.3d at 259)). The Court in Hill found that “the trial court fundamentally erred in this case when it improperly instructed the jury on attempted manslaughter by act....” Hill, 124 So.3d at 302.

IV. CONCLUSION

Based on the foregoing, we find that the trial court committed fundamental error when it gave the 2008 interim standard jury instruction on manslaughter by act, and Molina is entitled to relief on the manslaughter jury instruction issue. See Daniels, 121 So.3d at 418 (explaining that fundamental error occurs “where the trial court fails to correctly instruct on an element of the crime over which there is dispute, and that element is both pertinent and material to what the jury must consider in order to decide if the defendant is guilty of the crime charged or any of its lesser included offenses”). Moreover, we find that Molina’s appellate counsel rendered ineffective assistance in failing to raise the jury instruction issue on appeal and in failing to provide this Court with notice of both the Montgomery and Riesel decisions. See Skinner, 137 So.3d at 1166; Lopez v. State, 68 So.3d 332, 334 (Fla. 5th DCA 2011); Dill v. State, 79 So.3d 849, 851 (Fla. 5th DCA 2012). “This constituted a serious error and a substantial deficiency that fell outside the range of professionally acceptable performance” so as to “compromise[ ] the appellate process.... ” Skinner, 137 So.3d at 1166; see also Downs v. Moore, 801 So.2d 906, 909-10 (Fla.2001) (“[T]he deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result.”). We, therefore, grant Molina’s petition for writ of habeas corpus on this basis, and remand for a new trial before a different judge.

      . Although we are remanding this case for a new trial based on the erroneous manslaughter by act jury instruction, we find it necessary to address another issue raised by Molina. In his petition, Molina argues that his due process rights were violated when the trial judge impermissibly considered his refusal to admit guilt and his alleged lack of remorse in imposing sentence. We agree with Molina that the judge’s remarks at sentencing leave no doubt that the trial court considered Molina's claim of innocence as a factor in determining the sentence and that this constitutes fundamental error. See Johnson v. State, 948 So.2d 1014 (Fla. 3d DCA 2007); Jackson v. State, 39 So.3d 427 (Fla. 1st DCA 2010); Bracero v. State, 10 So.3d 664 (Fla. 2d DCA 2009). We also agree that appellate counsel was ineffective for failing to raise this issue to this Court. See Whitmore v. State, 27 So.3d 168 (Fla. 4th DCA 2010);
        Ritter v. State, 885 So.2d 413 (Fla. 1st DCA 2004). Accordingly, we direct that Molina be retried before a different judge.


author: PER CURIAM. MAKAR, J.,

text:
    FLORIDA DEPARTMENT OF HEALTH, Appellant, v. Alan D. MENDELSOHN, M.D., Appellee.
    No. 1D14-4904.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2014.
    Jennifer A. Tschetter, General Counsel, and Therese A. Savona, Assistant General Counsel, Florida Department of Health, Tallahassee, for Appellant.
    Monica Felder Rodriguez of Dresnick, Rodriguez & Perry, P.A., Coral Springs, for Appellee.
   PER CURIAM.

Appellant’s emergency motion for stay of final order, filed October 22, 2014, is denied. The Department of Health does not specify the statute or rule pursuant to which it moves to stay the Board of Medicine’s order reinstating appellee’s license, and it has not met its burden to demonstrate an entitlement to a stay of the order. Under Florida Rules of Appellate Procedure 9.310(a) and (e), which generally govern motions to stay, a party seeking to stay an order pending review must file a motion in the lower tribunal, and may then move in this court for review of the order entered by the lower tribunal. Under Rule 9.190(e)(2)(A), a party seeking to stay administrative action may file a motion “either with the lower tribunal or, for good cause shown, with the court in which the notice or petition has been filed.” The Department does not allege that it filed a motion for stay pending review below, and it does not show good cause to avoid this requirement. Thus, the Department has not shown entitlement to a stay under these provisions.

Moreover, the Department titles its motion an emergency motion for stay. Under Rule 9.190(e)(2)(B), if an agency has ordered an emergency suspension or issued an immediate final order, “the affected party may file with the reviewing court a motion for stay on an expedited basis.” Here, the order appealed reinstates a license, it does not suspend a license. Moreover, the underlying final order was not entered on an emergency or immediate basis. Finally, under Rule 9.190(e)(2)(C), “[w]hen an agency has suspended or revoked a license other than on an emergency basis, a licensee may file with the court a motion for stay on an expedited basis.” (Emphasis supplied). This subsection does not provide for an expedited motion for stay filed by the agency.

On the court’s own motion, however, this appeal is hereby expedited. The clerk of the lower tribunal shall transmit the record on appeal on or before December 15, 2014. Appellant shall file the initial brief on or before January 5, 2015. Appellee shall file the answer brief within 10 days thereafter, and appellant may file a reply brief within 5 days thereafter. No extensions of time shall be entertained by this court absent a showing of emergency circumstances.

VAN NORTWICK and THOMAS, JJ., concur.

MAKAR, J., concurs in part and dissents in part with opinion.

MAKAR, J.,

concurring in part, dissenting in part with opinion.

Expediting the disposition of this license reinstatement matter is sensible, and I concur in our order to do so. I do not see the sensibility, however, of denying the emergency stay sought by the Department of Health, which seeks to prevent a physician convicted of federal crimes, who is currently serving out his sentence in a halfway house controlled by the Federal Bureau of Prisons, from practicing medicine in the State of Florida during the pendency of this appeal. Denial of the stay allows the physician’s medical license to be reinstated immediately, thereby allowing him to practice medicine while still in the ongoing custody of federal prison officials in Dania, Florida.

Procedurally, the Department’s filings are sufficiently detailed to seek relief available under Rule 9.190(e)(2)(A). Whatever shortcomings exist, perceived or otherwise, are overcome by its seeking expeditiously to protect the public under these unusual circumstances. That is sufficient good cause under the Rule, and this Court has discretion to “grant a stay upon appropriate terms.” Fla. R. App. P. 9.190(e)(2)(A).

On the merits of the stay, the legal question is whether the Board of Medicine erred in its 6-4 vote to interpret its settlement agreement with the physician to allow the anomalous situation presented. The Board initially acted unanimously to reinstate the physician’s license based on representations that the physician was no longer incarcerated, which calls into question what was meant by “release from prison” and “incarceration” as those phrases are used in the settlement at issue, which states in relevant part:

(a) Upon Respondent’s release from prison, Respondent’s license shall be suspended for a period of one year; however, the Board will give the Respondent credit for the 2 months that his license was suspended pursuant to the Emergency Suspension Order and will stay the remaining ten months of said suspension.
(b) Upon Respondent’s release from prison, he shall appear before the Board at the first meeting of the Board following his release from incarceration and the Board may require at that time that he demonstrate his ability to practice medicine with skill and safety to patients prior to resuming the practice of medicine in this State by establishing that (i) Respondent is in compliance with the probation terms set forth in the Judgment in the criminal case that is the basis of this action and that as required by Rule 6UB8-8.003(3)(f), Florida Administrative Code, Respondent has satisfied all other criminal sanctions imposed by the court-....

The Department, which learned of the Board’s action, moved for reconsideration. Though unclear from the record, it appears the Board was unaware that the physician was confined to a halfway house controlled by the Federal Bureau of Prisons when it reinstated his license. As grounds for reconsideration, the Department believed that the physician’s assignment to the halfway house did not constitute his “release from prison” or “release from incarceration” under the settlement agreement. The Board by split vote denied the Department’s motion, which led to this appeal and the emergency stay request.

The Department presents an exceptionally compelling case for a stay pending appeal: absent a stay, a felon is allowed to practice medicine from a federally-controlled halfway house while still serving out his criminal sentence. No one disputes this unusual scenario. Indeed, the physician concedes that “under the federal prison regulations Dr. Mendelsohn is technically considered to be incarcerated while residing at the halfway house for purposes of the Federal Bureau of Prisons[.]” In the Department’s view, the situation presents a classic case of potential public harm because the Board’s action fails to “protect the health, safety, and welfare of the citizens of Florida” thereby undermining the integrity of the medical profession. Interpreting the settlement agreement to allow such a result is an abdication of the Board’s duty to protect the public. Beyond the need to safeguard the public from an incarcerated physician practicing medicine, the Department also notes that the physician is not even in compliance with other terms of the settlement agreement. For instance, the settlement agreement says the physician must show that he is in compliance with his probationary terms, but he is not even on probation yet; it also says that he must show upon release from incarceration that he has “satisfied all other criminal sanctions imposed by the court,” but he apparently hasn’t because he can’t leave the halfway house until June 30, 2015. For all these reasons, the Department makes a highly persuasive case for a stay.

The physician counters that the Department lacks standing and jurisdiction to challenge the Board, that the Department is not “adversely affected” and its concerns with public safety are meritless, that the physician’s incarceration was unrelated to the skills necessary to practice medicine, and that his reentry to practice will reduce concern that his skills have eroded in prison. But the Department’s concerns are not based on societal altruism; instead, the Department has jurisdiction over the disciplinary actions of its boards. The first sentence of section 456.073, Florida Statutes, says: “Disciplinary proceedings for each board shall be within the jurisdiction of the department.” That section goes on to discuss the department’s authority visa-vis the “boards under its jurisdiction,” saying in subsection (7) that the “department shall have standing to seek judicial review of any final order of the board, pursuant to s. 120.68.” It would be the tail wagging the dog to say that the Department of Health is not adversely affected when an agency under its jurisdiction takes an action potentially harmful to the public; that is particularly so under the peculiar situation presented.

On balance, a stay pending appeal plus expedited review meets society’s interest in protecting the public from potential harm during the time when a physician is still incarcerated and serving his federal sentence. I would grant the emergency stay under these circumstances.


text:
    Theodore GRIFFIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-666.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 2014.
    Ana Gomez-Mallada (Fort Lauderdale), for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before WELLS, LAGOA, and LOGUE, JJ.
   PER CURIAM.

We affirm without prejudice to any right Theodore Griffin may have to file a motion to withdraw his plea as involuntarily entered. See Gandy v. State, 857 So.2d 289 (Fla. 2d DCA 2003).


text:
    Jermaine JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-2284.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 2014.
    Jermaine Johnson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, ROTHENBERG and EMAS, JJ.
   PER CURIAM.

Jermaine Johnson appeals from the trial court’s order summarily denying his motion for postconviction relief, which Johnson alleges is based upon newly-discovered evidence. As the State properly concedes on appeal, the trial court should not have denied the motion on its merits; rather, given the facial insufficiency of the motion, the trial court should have entered a nonfi-nal, nonappeable order dismissing the motion and allowing Johnson sixty days within which to file an amended motion. See Fla. R. Crim. P. 3.850(f)(2); White v. State, 116 So.3d 597 (Fla. 3d DCA 2013).

' We therefore reverse the order denying the motion, remand the cause for the court to enter an order which dismisses the motion as insufficient and which allows Johnson sixty days in which to file an amended motion.


text:
    Sheena LATSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2924.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2014.
    Terry P. Roberts of the Law Office of Terry P. Roberts, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Upon consideration of the report and recommendation of the special master, the petition seeking belated appeal or, alternatively, reinstatement of petitioner’s direct appeal in case number 1D12-3620, is granted. The appeal in case number 1D12-3620 shall be reinstated by separate order rendered in that case.

LEWIS, C.J., THOMAS and OSTERHAUS, JJ., concur.


author: PER CURIAM. BERGER, J.,

text:
    Mark HAMILTON, Appellant/Cross-Appellee, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee/Cross-Appellant.
    No. 5D12-3733.
    District Court of Appeal of Florida, Fifth District.
    March 14, 2014.
    Raymond T. Elligett, Jr., of Buell & Elligett, P.A., and K.C. William, III, and William R. Burke, of Williams Law Association, P.A., Tampa, for Appellant/Cross-Appellee.
    Scot E. Samis, of Traub, Lieberman, Straus & Shrewsberry, LLP, St. Peters-burg, for Appellee/Cross-Appellant.
   ON MOTION FOR REHEARING

PER CURIAM.

Appellant, Mark Hamilton, has filed a motion for rehearing. We grant the motion, withdraw the previous opinion, and substitute the following in its place.

Hamilton contends in his motion that pursuant to Whistler’s Park, Inc. v. Florida Insurance Guaranty Ass’n, 90 So.3d 841 (Fla. 5th DCA 2012), review granted, 123 So.3d 557 (Fla.2013), we should reverse the order under review and remand this ease to the trial court for further proceedings to determine whether the Ap-pellee, State Farm Florida Insurance Company, was prejudiced by Hamilton’s alleged breach of the pertinent policy provisions. Specifically, Hamilton contends that remand is appropriate because “the facts in this case presented at least a disputed issue as to whether State Farm was prejudiced by an alleged failure to comply.” In the alternative, Hamilton contends that we withdraw our prior opinion and wait until the Florida Supreme Court renders its opinion in Whistler’s Park. Upon further review, we conclude that because we are bound by Whistler’s Park, further proceedings in the trial court to determine whether State Farm was prejudiced by the alleged breach are appropriate. Therefore, we reverse the order under review and remand this case for further proceedings consistent with this opinion.

REVERSED and REMANDED.

SAWAYA and COHEN, JJ., concur.

BERGER, J., dissents, with opinion.

BERGER, J.,

dissenting.

I disagree with the majority that Whistler’s Park, Inc. v. Florida Insurance Guaranty Ass’n, 90 So.3d 841 (Fla. 5th DCA 2012), review granted, 123 So.3d 557 (Fla.2013), requires us to remand for the purpose of determining whether State Farm was prejudiced by Hamilton’s breach of pertinent provisions of his insurance policy. Because Hamilton breached a condition precedent to filing suit, State Farm’s prejudice was presumed. See Bankers Ins. Co. v. Macias, 475 So.2d 1216 (Fla.1985) (holding a presumption of prejudice to an insurer arises when the insured breaches a notice provision). Accordingly, it was Hamilton’s burden to show lack of prejudice, especially in light of the fact that his failure to file a sworn proof of loss and failure to provide the findings of his expert prior to filing suit impeded a full investigation of his claim by State Farm. Id. at 1218 (“The burden should be on the insured [seeking an avoidance of a condition precedent] to show lack of prejudice where the insurer has been deprived of the opportunity to investigate the facts and to examine the insured.”). Below, Hamilton failed to overcome, or even address, the presumption of prejudice to State Farm in his affidavits in opposition to the motion for summary judgment, and his argument that State Farm suffered no prejudice is without merit.

I would also note that the purpose of a motion for rehearing is not to re-argue the merits of the case, but to bring to the court’s attention something it overlooked or misapprehended. See Fla. R.App. P. 9.380. Because the arguments made in Hamilton’s motion were already heard and rejected by this court through a per cu-riam affirmance, his request for the proverbial “do over” should be rejected as well.

      . In Whistler'.s Park, this court examined a summary judgment entered in favor of the insurance company “based on Whistler’s Park’s refusal to submit to an Examination Under Oath [‘EUO’].” 90 So.3d at 841. There, the insurer "requested an EUO, but never set a time or place for it,” despite the insured’s express willingness to comply. Id. at 846. Under those circumstances, we held the insurer was not prejudiced by the insured's failure to comply. Id. at 847.

      . In a similar case, this court affirmed summary judgment in favor of an insurer where the insured failed to provide a sworn proof of loss, inventory of damaged property, and proper records of repair expenses prior to filing suit. Starling v. Allstate Floridian Ins. Co., 956 So.2d 511, 512-14 (Fla. 5th DCA 2007) (holding insured’s “failure to substantially comply with the policy’s condition precedent bar[red] recovery” where insured waited until three months after she filed suit to file her sworn proof of loss and another six months to file a contents inventory, despite multiple requests by the insurer to do so); see also Fassi v. Am. Fire & Cas. Co., 700 So.2d 51, 52 (Fla. 5th DCA 1997) (affirming final judgment denying insured’s claim where insured failed to schedule an examination under oath or send in the proof of claim after being reminded to do so in a letter from insurer). In the present case, State Farm clearly set forth the relevant policy provisions in the two letters it sent Hamilton.

      . Hamilton’s proof of loss form was never filed prior to filing suit. Rather, he submitted the form nearly seven months after the Complaint was filed.

      . Hamilton did not provide his expert’s report or even advise State Farm that he had obtained an expert until after State Farm filed its initial summary judgment motion.

      . Hamilton incorrectly argued it was State Farm's burden to prove prejudice.

      . Unlike the concerns expressed by the majority in Whistler’s Park, this is not a case where State Farm engaged in a game of "gotcha.” Rather, it was a case where Hamilton opted for a game of “hide the ball.”


author: SLEET, Judge.

text:
    TOWER HILL SELECT INSURANCE COMPANY, Appellant, v. Andrew McKEE, Appellee.
    No. 2D13-2076.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2014.
    On Rehearing Oct. 27, 2014.

      Carol M. Rooney and Ezequiel Lugo of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Appellant.
    Robert E. Biasotti and Annette Marie Lang of Biasotti and Associates, St. Pe-tersburg, for Appellee.
   SLEET, Judge.

Tower Hill Select Insurance Company appeals the final summary judgment awarding’$181,317.26, including interest in the amount of $22,429.08, in favor of Andrew McKee for sinkhole damages to his property. We review the trial court’s ruling on a motion for summary judgment and interpretation of an insurance contract and statutes de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); State Farm Fla. Ins. Co. v. Phillips, 134 So.3d 505, 507 (Fla. 5th DCA 2014).

This appeal involves a coverage dispute between McKee and Tower Hill concerning sinkhole damage to McKee’s home. In March 2010, McKee timely filed a claim for property damage to his home related to a sinkhole. In July 2010, Tower Hill’s designated engineer concluded there was no evidence of a sinkhole and Tower Hill denied coverage. In early 2011, McKee hired a private engineer who concluded that the damage was caused by a sinkhole. McKee provided the report to Tower Hill. Tower Hill did not respond, and McKee filed an action for breach of contract.

Many of Tower Hill’s issues on appeal depend on its underlying assertion that McKee preemptively filed suit because no cause of action existed at the time he filed his complaint. This argument is without merit. When Tower Hill denied coverage a valid dispute as to the existence of a covered loss under the insurance policy arose. See, e.g. Warfel v. Universal Ins. Co. of N. Am., 36 So.3d 136 (Fla. 2d DCA 2010) (considering a dispute as to whether a covered loss had occurred under the insured’s policy), approved, 82 So.3d 47 (Fla.2012). Accordingly, McKee’s complaint properly sought a determination as to whether Tower Hill breached the insurance contract by denying coverage of a covered loss. See id. The policy provisions containing conditions precedent to suit that Tower Hill relies on in its appellate briefs were only relevant to a situation where Tower Hill admitted liability and a dispute as to the amount of recovery arose. Accordingly, they could not act to bar McKee from filing suit when Tower Hill denied his insurance claim entirely,

However, we agree that it was error for the trial court to order Tower Hill to pay for subsurface repairs before McKee entered into a contract for those repairs. Because the insurance policy contained a loss settlement provision tracking the language of section 627.707(5)(b), Florida Statutes (2010), Tower Hill had the authority to withhold payment for subsurface repairs until McKee entered into a contract for those repairs. See Phillips, 134 So.3d at 508.

McKee’s failure to enter into a contract for subsurface repairs was a factor outside Tower Hill’s control that reasonably prevented payment. Section 627.70131(5)(a), Florida Statutes (2013), authorizes an award of prejudgment interest on “[a]ny payment of an initial or supplemental claim or portion of such claim made 90 days after the insurer receives notice of the claim, or made more than 15 days after there are no longer factors beyond the control of the insurer which reasonably prevented such payment, whichever is later.” (Emphasis added). Therefore, the trial court’s award of prejudgment interest on the subsurface damage award was premature.

Accordingly, we reverse the portions of the final judgment requiring Tower Hill to pay for subsurface repairs before McKee contracted for those repairs and awarding prejudgment interest as to the subsurface damage award. We affirm the remaining portions of the final judgment without further comment.

Affirmed in part, reversed in part, and remanded.

KELLY and KHOUZAM, JJ„ Concur.

ON REHEARING

BY ORDER OF THE COURT:

We grant the motions for rehearing to the extent that we hereby clarify that our opinion did not reach the issue of attorney fees. See Ulrich v. Eaton Vance Distrib., Inc., 764 So.2d 731, 733 (Fla.2d DCA 2000). The motions are denied in all other respects.


author: FORST, J.

text:
    Lavonte DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-586.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2014.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   FORST, J.

Appellant Lavonte Davis was convicted of first degree murder with a firearm, attempted robbery with a firearm, and burglary with assault,while armed with a firearm. His appeal challenges the trial court’s denial of his motion to suppress his recorded pre-trial statements to police. As Appellant’s statements were freely and voluntarily given and the product of a proper police investigatory process, we affirm.

Appellant became involved in the subject murder investigation after detectives learned he had been present at the scene the night of the murder. Over the next week, the detectives conducted four interviews with Appellant, each of which was recorded with Appellant’s consent. The first two interviews were conducted in an unlocked vehicle in front of Appellant’s home. During the first interview, Appellant admitted to being a lookout the night of the murder but maintained that others committed the robbery and murder. Appellant retold the same story about being a lookout during the second interview.

The third interview also took place in an unlocked vehicle but at a shopping center near Appellant’s home. The detectives read Appellant his Miranda rights at the beginning of this interview. After again retelling the story about being just a lookout, Appellant was arrested for that alleged involvement. The fourth interview was conducted at the police station following the arrest, during which Appellant confessed to committing the robbery and murder. Appellant moved to suppress the recorded statements from the four interviews. The trial court denied the motion, finding that the statements were freely and voluntarily made.

We review a motion to suppress under a mixed standard of review, being bound by the trial court’s factual findings if supported by competent substantial evidence and applying a de novo standard to the mixed questions of law and fact. Murdock v. State, 115 So.3d 1050, 1054 (Fla. 4th DCA 2013).

The Florida Supreme Court has recently addressed the issue of voluntariness of statements that can be construed as confessions:

[T]he test is ... one of voluntariness, or free will, which is to be determined by an examination of the totality of the circumstances surrounding the confession. Moreover, to establish that a statement is involuntary, there must be a finding of coercive police conduct. Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.
Thus, whether the confession is admissible depends on (1) whether the interrogating officers engaged in coercive activity, and (2) whether that activity was sufficient to overcome the free will of the defendant.

The Court noted further in Baker that quid pro quo or inducement promises of leniency or promises not to prosecute in exchange for a confession are the type of coercive police activity that would render a confession inadmissible. Baker, 71 So.3d at 815. However, promises that do not affect voluntariness of a defendant’s statement are when the officers tell a defendant that it would be easier on him if he told the truth or that the officers would make his cooperation known to prosecuting authorities. Id. With other promises that do not fall within these categories, the Supreme Court instructs to look at the “surrounding facts to determine whether, in each particular case, the defendant’s will was overborne.” Id.; see also Blake, 972 So.2d at 844.

In the instant case, we find no error in the trial court’s application of the totality of the circumstances test to find that Appellant’s statements were freely and voluntarily given and not the product of police coercion or improper promises. The record reveals that Appellant clearly understood that he was free to leave at any time and in control of the questioning during the first three interviews up until his arrest, which occurred only after proper Miranda rights were given and probable cause existed. See Bethel v. State, 93 So.3d 410, 413 (Fla. 4th DCA 2012). In fact, both of the first two interviews were concluded upon Appellant’s initiative.

Although the detectives repeatedly encouraged Appellant to tell the truth during the interviews and referenced Appellant’s unborn child, these statements amounted to nothing more than “regularly employed investigative and interrogation techniques,” as the trial court noted. See Frazier v. State, 107 So.2d 16, 23 (Fla.1958) (“Exhortations to tell the truth, while under arrest, absent duress, threats, compulsion, hope of reward or benefit, do not render a statement involuntary.” (quoting Thomas v. State, 92 So.2d 621, 623 (Fla.1957))). No evidence suggests that Appellant was coerced, provided with express or implied promises of leniency (or other improper promises), or that his will was over-born such as to render his confession to the crimes inadmissible.

The detectives’ treatment of Appellant was indicative of a proper investigation and interrogation of a suspect, drawing out details in an informal and incremental fashion and without coercion, harsh treatment (such as denying the suspect food or restroom 'breaks), or false promises. Accordingly, the trial court properly found that Appellant’s confession was voluntary and not the result of coercive police activity. See, e.g., Martin v. State, 107 So.3d 281, 298-99 (Fla.2012); State v. Jackson, 120 So.3d 88, 91 (Fla. 4th DCA 2013) (holding that a confession was admissible as “[t]here was no express or implied promise of leniency made to [the defendant] in return for his statements”); State v. Walter, 970 So.2d 848, 851-52 (Fla. 2d DCA 2008).

Regarding Appellant’s additional request to suppress the recording of a telephone conversation between himself and his mother at the police station, the trial court properly denied this request as “individuals do not have an expectation of privacy while within police custody.” Davis v. State, 121 So.3d 462, 485 (Fla.2013). The Florida Supreme Court has recognized an exception when police officers “deliberately foster[] an expectation of privacy in the inmate’s conversation ... especially where the obvious purpose was to circumvent a defendant’s assertion of the right to remain silent.” Id. (quoting Allen v. State, 636 So.2d 494, 497 (Fla.1994)). This was not the situation in the instant case. The detectives never made any assurances to Appellant that his calls would be made in private and he knew he was being recorded. Additionally, Appellant never requested privacy during the conversation and allowed a detective to be present in the room for at least portions of the conversation.

As the trial court’s factual findings are supported by competent substantial evidence and the court applied the correct law to reach its conclusion, we affirm the court’s denial of Appellant’s motion to suppress and the resulting final judgment.

Affirmed.

DAMOORGIAN, C.J., and TAYLOR, J., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).