author: MARSTILLER, J.

text:
    Lewis B. HUNTER, Jr., Appellant, v. AURORA LOAN SERVICES, LLC, Unknown Spouse of Lewis B. Hunter, Jr., If Any; any and all Unknown Parties Claiming by, Through, Under, and Against the Herein Named Individual Defendant(s) who are not Known to be Dead or Alive, Whether Said Unknown Parties may Claim an Interest as Spouses, Heirs, Devisees, Grantees or Other Claimants; Settler’s Creek Homeowners Association, Inc.; John Doe and Jane Doe as Unknown Tenants in Possession, Appellees.
    No. 1D12-6071.
    District Court of Appeal of Florida, First District.
    April 25, 2014.

      Wendy S. Loquasto, Fox & Loquasto, P.A., Tallahassee, for Appellant.
    Christopher L. Hixson, Law Office of Daniel C. Consuegra, P.L., Tampa, for Ap-pellees.
   OPINION ON MOTION FOR REHEARING, CLARIFICATION, CERTIFICATION AND REHEARING EN BANC

MARSTILLER, J.

We deny the motion for rehearing, clarification, certification and rehearing en banc filed by Appellee, Aurora Loan Services, LLC, but we withdraw our opinion of March 4, 2014, and substitute this opinion in its place.

Lewis B. Hunter, Jr., appeals a final judgment of foreclosure entered against him, asserting that Aurora Loan Services, LLC (“Aurora”), lacked standing to sue for foreclosure. He argues the trial court relied on evidence incorrectly admitted under the business records exception to the hearsay rule to find that Aurora held the promissory note as of April 3, 2007, when the lawsuit commenced. We agree, and reverse.

Aurora alleged in its “Complaint to Foreclose Mortgage and to Enforce Lost Loan Documents” that it owned and held the promissory note and the mortgage, but was not in physical possession of the original documents and could not obtain their whereabouts. Evidence presented at trial in August 2012 established that the original owner of the note and mortgage was MortgagelT, and that MortgagelT subsequently assigned both to Aurora. A letter dated January 27, 2007, from Aurora to Mr. Hunter entitled, “Notice of Assignment, Sale, or Transfer of Servicing Rights,” directed him to remit mortgage payments to Aurora beginning February 1, 2007. The “Corporate Assignment of Mortgage” executed on June 11, 2007, and recorded on January 8, 2008, showed MortgagelT as the assignor and Aurora as the assignee.

To establish that it held and had the right to enforce the note as of April 3, 2007, Aurora sought to put in evidence certain computer-generated records: one, a printout entitled “Account Balance Report” dated “1/30/2007,” indicating Mr. Hunter’s loan was sold to Lehman Brothers — of which Aurora is a subsidiary and for which Aurora services loans — and payment in full was received on “12/20/2006;” the second, a “consolidated notes log” printout dated “7/18/2007” indicating the physical note and mortgage were sent — it is not readily clear to whom — via two-day UPS on April 18, 2007. Neither document reflects that it was generated by Mortga-gelT.

At the time of trial in 2012, these records were possessed by Rushmore Loan Management Service (“Rushmore”), the latest in a succession of loan servicers. (Rushmore services the loan on behalf of Arch Bay Holdings, which currently owns the note and mortgage.) Asserting the records originally came from MortgagelT, Aurora relied on the testimony of Rushmore employee Roger Martin to lay the necessary foundation for admitting the records into evidence under section 90.803(6)(a), Florida Statutes, the business records exception to the hearsay rule.

Mr. Martin testified that he has worked in the residential mortgage industry for approximately 15 years, performing a variety of duties, including due diligence and underwriting. From 2004 to about 2007, he performed these services for Lehman Brothers. He had not worked at any time for MortgagelT. But he testified, based on his dealings with the company while at Lehman Brothers, that MortgagelT’s business practice, upon the sale of a loan and mortgage, was to send electronic versions of the pertinent documents to the new owner, determine . a post-sale “transfer date” on which loan servicing would transfer from its servicer to the new owner’s servicer, and retain possession of the original note and mortgage documents until the transaction was fully completed. According to Mr. Martin, this procedure is standard across the mortgage industry.

As to the consolidated notes log, one entry therein dated “4/18/07” reads: “LENSTAR SERVICER: SENT ORIGINAL NOTE AND MORTGAGE VIA 2 DAY UPS # 1ZR90AF80242840896.” A second entry dated “4/18/07” simply says, “AURORA LOAN SERVICES, LLC.” Mr. Martin, however, deciphered the notations to mean MortgagelT sent the original documents to Aurora on April 18, 2007. He had no knowledge about who generated the notations, or how and where that individual obtained the information. Neither did he have such knowledge about the Account Balance Report. Further, he could not testify from personal knowledge that either document belonged to or was generated by MortgagelT. He testified only that the computer program from which the notes log originated is used across the industry, that a records custodian for the loan servicer is the person who usually inputs such notes, and that normal industry practice is for a lender’s accounts payable department to create an account balance report reflecting a zero balance on the loan when it is sold to another entity.

Discussion

A trial court’s decision to admit evidence is reviewed for abuse of discretion, subject, of course, to the rules of evidence and case law. See generally Gregory v. State, 118 So.3d 770, 780 (Fla. 2013). Under the Florida Evidence Code, hearsay — a statement, other than one made by a witness at trial, offered to prove the truth of the matter asserted — is inadmissible, except as specifically provided in the code. See §§ 90.801(1)(c), 90.802, 90.803, 90.804, Fla. Stat. (2012). Section 90.803(6) provides one such exception for business records, if the necessary foundation is established:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness.

§ 90.803(6)(a), Fla. Stat. (2012). The party seeking admission, of hearsay under the business records exception must establish all of the following: (1) the record was made at or near the time of the event; (2) the record was made by or from information transmitted by a person -with knowledge; (8) the record was kept in the ordinary course of a regularly conducted business activity; and (4) it was a regular practice of that business to make such a record. See Yisrael v. State, 993 So.2d 952, 956 (Fla.2008); King v. Auto Supply of Jupiter, Inc., 917 So.2d 1015, 1018 (Fla. 1st DCA 2006). “While it is not necessary to call the individual who prepared the document, the witness through whom a document is being offered must be able to show each of the requirements for establishing a proper foundation.” Mazine v. M & I Bank, 67 So.3d 1129, 1132 (Fla. 1st DCA 2011).

Here, Mr. Martin’s testimony failed to establish the necessary foundation for admitting the Account Balance Report and the consolidated notes log into evidence under the business records exception. Mr. Martin was neither a current nor former employee of MortgagelT, and otherwise lacked particular knowledge of Mortgagees record-keeping procedures. Absent such personal knowledge, he was unable to substantiate when the records were made, whether the information they contain derived from a person with knowledge, whether MortgagelT regularly made such records, or, indeed, whether the records belonged to MortgagelT in the first place. His testimony about standard mortgage industry practice only arguably established that such records are generated and kept in the ordinary course of mortgage loan servicing. Cf. Weisenberg v. Deutsche Bank Nat’l Trust Co., 89 So.3d 1111,1112-13 (Fla. 4th DCA 2012) (finding business records exception satisfied where bank’s witness was a supervisor at bank’s servicing agent who had personal knowledge of bank’s internal process for applying loan payments and calculating balances, was familiar "with bank’s record-keeping system, and knew how payment data was uploaded from bank’s computer system to servicing agent’s system); Glarum v. LaSalle Bank Nat’l Ass’n, 83 So.3d 780, 782-83 (Fla. 4th DCA 2011) (holding affidavit of loan servicer’s employee offered to prove amount debtor owed was inadmissible as business record where employee did not know who entered the data he relied on, whether the computer entries were accurate when made, or how incorporated data from prior loan servicer was derived); WAMCO XXVIII, Ltd. v. Integrated Electronic Environments, Inc., 903 So.2d 230, 233 (Fla. 2d DCA 2005) (finding business records exception satisfied where loan servicer’s records incorporated payment data from previous servicer, and officer of current servicer testified he had worked on the loans at issue and verified the payment data, and described his company’s verification process).

“A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). To establish standing, the plaintiff must show it held or owned the note at the time the complaint was filed. Id. “A plaintiff may prove that it has standing to foreclose ‘through evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer.’ ” Stone v. BankUnited, 115 So.3d 411, 413 (Fla. 2d DCA 2013) (quoting BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 939 (Fla. 2d DCA 2010)). The Account Balance Report and consolidated notes log Aurora relied on were incorrectly admitted into evidence as business records, and therefore, could not serve to establish Aurora’s standing to sue Mr. Hunter in foreclosure. No other evidence in the record before us independently proves that Aurora possessed the promissory note originally owned by Mort-gagelT via valid assignment, purchase of debt, or effective transfer, as of April 3, 2007. Because Aurora lacked standing to foreclose, the final judgment of foreclosure entered against Mr. Hunter is REVERSED. We remand for further proceedings, as necessary, on Mr. Hunter’s counterclaim.

THOMAS and MAKAR, JJ., concur.


source: Caselaw Access Project

author: GROSS, J.

license: Public Domain

text:
    T.D.W., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-117.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2014.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   GROSS, J.

The key issue in the trial below was whether appellant was adequately identified as one of the three boys who burgled a home. The identification was based in part on the testimony of a detective who described what she saw on a surveillance videotape she viewed outside the courtroom. The crucial camera angle upon which the detective based her identification did not appear on the copy of the surveillance video offered into evidence at trial. Because the detective’s testimony identifying appellant on the surveillance video violated the best evidence rule, we reverse.

A deputy sheriff testified that on the day of the burglary, appellant was a boy he chased but whom he never caught. A video from the home surveillance system of the house next door was played for the court. The victim said that although appellant’s face was not clear on the video, she recognized appellant as a friend of her son based on his clothing, mannerisms, and hair. The victim’s son also identified appellant from the video.

The final piece of identification evidence was the testimony of a detective who stated she was able to identify appellant from the video; however, her identification was based on a camera angle that was not a part of the video admitted into evidence. When she first watched the video, it contained four views from different cameras. The video in evidence contained just three of these views. Appellant timely raised a “best evidence” objection, which the court overruled.

In finding appellant guilty, the trial judge commented that, taken alone, none of the identifications were enough to prove the case beyond a reasonable doubt. However, the court found that all of the identifications, when considered together, satisfied the State’s burden of proof.

The Best Evidence Rule Applies

Section 90.952, Florida Statutes (2012), commonly known as the “best evidence rule,” provides:

Except as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording, or photograph.
The best evidence rule requires that “when the contents of a writing, recording or photograph are being proved, an original must be offered unless a statutory excuse for the lack of an original exists.” Charles W. Ehrhardt, Florida Evidence § 952.1 (2012 ed.). “If a section 90.954 excuse cannot be shown, the testimony of a witness ... about the contents of the original is inadmissible.” Id. “This rule is predicated on the principle that if the original evidence is available, that evidence should be presented to ensure accurate transmittal of the critical facts contained within it.” McKeehan v. State, 838 So.2d 1257, 1260 (Fla. 5th DCA 2003).

In this case, the detective’s testimony was offered to prove “the contents” of the missing view on the surveillance video — that appellant was present at the scene of the burglary — making section 90.952 applicable.

The detective testified that even though the court was unable to view the portion of the surveillance video upon which she based her identification, that unavailable view “clearly show[ed] all three subjects and their faces.” Typically, useful surveillance video shows the commission of a crime; when offered to prove the crime without introduction of the video in evidence, a witness’s in-court description of the actions depicted on the video is content-based testimony that violates the best evidence rule. See, e.g., Dyer v. State, 26 So.3d 700, 702-04 (Fla. 4th DCA 2010) (store manager improperly allowed to testify that the store’s surveillance video showed the defendant opening DVD boxes and putting DVDs into his pocket); Russell v. State, 844 So.2d 725, 727-28 (Fla. 5th DCA 2003) (finding best evidence rule violation where a detective testified that a video showed the defendant placing a large amount of change on the counter of a 7-Eleven after a large quantity of change had been stolen from a Taco Bell).

This case is similar to McKeehan, 838 So.2d 1257, where a police officer identified the defendant as being at the scene of a robbery based on a videotape of the robbery that had not been offered into evidence. In McKeehan, the defendant was charged with committing robbery with a firearm and other crimes at a Sleep Inn Motel. Id. at 1258. At trial, the State introduced collateral crime evidence of a robbery at an Extended Stay America Hotel. Id. at 1259. A clerk who worked at the Extended Stay America testified and identified the defendant. Id. The State then called the investigator assigned to both robberies. Id. The investigator testified that he watched the Extended Stay America’s surveillance video, and he was permitted to testify that the defendant was shown on the videotape. Id. The Fifth District held that this testimony violated the best evidence rule because the State “sought to prove the contents of the videotape not by introduction of the tape, but by oral testimony of its contents without ever establishing the videotape’s unavailability.” Id. at 1260. Thus, although the tape was not admitted to prove that the defendant committed the Sleep Inn robbery, identifying the defendant as the individual on.the scene of a different robbery was content-based testimony.

In sum, the detective’s testimony in this case — that she saw a better camera angle, not present on the video in evidence, that clearly depicted appellant’s face — violated the best evidence rule.

Exceptions to the Best Evidence Rule

Section 90.954, Florida Statutes (2012), sets forth certain exceptions to the requirement for originals:

The original of a writing, recording, or photograph is not required, except as provided in s. 90.953, and other evidence of its contents is admissible when:
(1) All originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith.
(2) An original cannot be obtained in this state by any judicial process or procedure.
(3) An original was under the control of the party against whom offered at a time when that party was put on notice by the pleadings or by written notice from the adverse party that the contents of such original would be subject to proof at the hearing, and such original is not produced at the hearing.
(4) The writing, recording, or photograph is not related to a controlling issue.

§ 90.954, Fla. Stat. (2012). The State argues that exception (1) applies because the relevant camera angle was lost or destroyed, but at trial the State offered no explanation for why the original video was missing.

Dyer, 26 So.3d 700, demonstrates that the burden is on the proponent of secondary evidence “to convince the trial judge that as a matter of fact one of the enumerated excuses for the non-production of an original exists.” Charles W. Ehrhardt, Florida Evidence § 954.1 (2012 ed.). In Dyer, the State had a technical problem with a surveillance video. 26 So.3d at 702. After consulting with technical support and determining the video was unplayable, the State then asked the store manager to testify about his observations of the video’s contents. Id. We found that the section 90.954(1) “lost or destroyed” exception to the best evidence rule did not apply because “[t]he state’s inability to show the video recording due to temporary technical difficulties does not qualify the DVD as being ‘lost or destroyed’ within the meaning of the statute.” Id. at 703.

Here, the State argues that Dyer is distinguishable but does not explain why. At trial, the State did not give a reason why the video view was missing, and no one testified that the video was unrecoverable from the neighbor’s system. As the proponent of the evidence, the State had the burden of establishing its admissibility. The State thus failed to establish that the video view was “lost or destroyed” within the meaning of section 90.954 and none of the other exceptions are applicable. As a result, the detective’s testimony based on the missing video view violated the best evidence rule, and an exception did not apply.

Harmless Error

Best evidence violations are subject to harmless error review. “[T]he state must show beyond a reasonable doubt that the error complained of did not contribute to the verdict, or, stated alternatively, that there is no reasonable possibility that the error contributed to the conviction.” McKeehan, 838 So.2d at 1260 (citing State v. DiGuilio, 491 So.2d 1129, 1136 (Fla.1986); Stires v. State, 824 So.2d 943 (Fla. 5th DCA 2002)). The analysis focuses on the effect of the error on the trier of fact. Id. (quoting Goodwin v. State, 751 So.2d 537, 542 (Fla.1999)).

This error was not harmless. The trial court expressed concerns about the sufficiency of the evidence. First, the court was concerned that the witnesses identified appellant based on a video that the court was unable to view. Further, the court was troubled that the video identification was tainted because the three witnesses watched the video together. The court stated that none of the identifications individually would have been enough to prove this case. For these reasons, we cannot conclude beyond a reasonable doubt that the improper identification based on the unadmitted video Anew did not contribute to the judgment.

Therefore, we reverse appellant’s convictions and sentences and remand for a new trial.

GERBER and FORST, JJ., concur.


author: PER CURIAM.

text:
    Todd PIERCE, Appellant, v. STATE OF FLORIDA, Appellee.
    No. 2D13-2666.
    District Court of Appeal of Florida, Second District.
    April 30, 2014.
   PER CURIAM.

Todd Pierce appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised two grounds for relief. We reverse and remand for further proceedings on ground one and affirm without comment on ground two.

Mr. Pierce was convicted of lewd and lascivious battery that occurred in September 2001 (count one) and lewd and lascivious molestation that occurred in November 2001 (count two). See § 800.04(4), (5)(a), Fla. Stat. (2001). The trial court imposed concurrent sentences of ten years’ imprisonment followed by five years’ sex offender probation on counts one and two. This court per curiam affirmed Mr. Pierce’s direct appeal. Pierce v. State, 36 So.3d 99 (Fla. 2d DCA 2010) (table).

Mr. Pierce was a deputy with the Pinel-las County Sherriffs Office (PCSO) assigned to a high school as a school resource officer. The victim was a fifteen-year-old student at the high school who, around the time of the incidents, would regularly visit Mr. Pierce’s office. In September 2001, Mr. Pierce was investigating an arson at the high school and went to the victim’s home to obtain a written statement. However, the victim said that she never gave a statement to Mr. Pierce but instead had sexual intercourse with him. She also testified that in November 2001, Mr. Pierce fondled her during one of her visits to his office and he kissed her during another visit, but she later admitted lying about the kissing incident.

The victim withdrew from high school and moved to Puerto Rico for two years. While in Puerto Rico, she suffered from memory loss and was hospitalized for routinely blacking out. In the meantime, the PCSO began investigating Mr. Pierce regarding an allegation of sexual battery unrelated to this victim. When Detective Randall Jones, the lead investigator in Mr. Pierce’s case, interviewed the victim in December 2005, she accused Mr. Pierce of these crimes for the first time.

At trial, both the victim and Detective Jones testified for the State. The State introduced no physical evidence or admissions and provided no eyewitnesses to the crimes besides the victim. In his rule 3.850 motion, Mr. Pierce alleged that any evidence or impeachment that would negate the victim’s credibility was crucial.

In ground one, Mr. Pierce claimed that his counsel was ineffective for failing to impeach the victim with her prior inconsistent statements, which would have weakened her credibility and supported his argument that she fabricated the allegations. The first subject of potential impeachment arose from the victim’s statements about scars she observed when molested. She testified that she saw scars on Mr. Pierce’s abdomen and shoulder that were only visible when he removed his shirt. The State argued in closing that the only explanation for the victim’s ability to describe Mr. Pierce’s scars was that he removed his clothes before committing the offenses:

If she didn’t see him naked, how did she know he had this scar on his abdomen? How did she know about the scar on his shoulder? How did she know these things if he hadn’t undressed himself in front of her? There is no reasonable explanation other than he at some point in time, September 21st, undressed himself in front of her.

However, Mr. Pierce asserted that the victim could have been impeached with two prior inconsistent statements regarding her observation of his physical features. During Detective Jones’ initial interview with the victim, she twice denied observing scars on Mr. Pierce’s body. But Mr. Pierce alleged that after Detective Jones prodded the victim, she finally stated that Mr. Pierce might have a scar on his chest:

Q: Did you notice any scars from like a surgery or anything like that on his, on his body after he undressed?
A: No.
Q: Okay and um, I, I asked before if, if uh if uh Deputy Pierce had any marks or anything was there anything unusual about his body that, that you noticed? A: No because I wasn’t looking.
Q: I asked you about his body um can you tell me was he circumcised or not... you don’t know if he was or wasn’t?
A: No... You really want to know did I see something off his body.. .Did I really see something off his body...
Q: And did you?
A: Um, I think he has a scar.
Q: On his chest...
A: Um but I think he does I think he has a scar I’m not sure it’s been such a long time...
Q: Um so yes have you told and you believe he has a scar on his chest? .. .Ah, ah so you thought about this after I left so just part of you, you think he may have...
A: I think yeah...like on the bottom ... (around stomach).

Mr. Pierce’s trial counsel also deposed the victim while Detective Jones was not present. The victim described some of Mr. Pierce’s physical features, such as Mr. Pierce’s tattoos and the fact that he had “ugly feet.” But the victim failed to mention the scar when counsel asked whether she could remember if Mr. Pierce had any other abnormal physical features. Despite having knowledge of these statements, Mr. Pierce’s counsel failed to attack the victim’s credibility by impeaching her with these prior inconsistent statements.

The second subject of potential impeachment arose from the victim’s testimony that the reason for her delay in making the allegations against Mr. Pierce was that she was afraid of getting in trouble. However, the victim stated otherwise during her initial interview with Detective Jones:

Q: Okay did he tell you why you would get in trouble?
A: No, but I, I don’t give a damn I wouldn’t get in trouble, his ass will get in trouble, his ass would get in trouble right there and then, I was like okay whatever.. .And then after they came and seen me he talked to me he’s like oh what did you tell em I told em well I told them that I wasn’t kissing you.

Mr. Pierce asserted that counsel should have also impeached the victim with this prior inconsistent statement.

Mr. Pierce argued that impeaching the victim with her prior inconsistent statements regarding both his scars and her fear of raising the allegations sooner was necessary to support his argument that the victim fabricated the allegations. He contended that the prior inconsistent statements in Detective Jones’ interview would have been especially helpful for arguing that the victim was coached to accuse Mr. Pierce. Had counsel fully impeached the victim’s credibility, Mr. Pierce asserted that the jury would have discredited the victim’s testimony and found him not guilty on counts one and two.

In summarily denying this claim, the postconviction court erred in finding that these prior inconsistent statements would have been inadmissible for the purposes of impeaching the victim’s credibility. See § 90.608(1), Fla. Stat. (2001); Marshall v. State, 68 So.3d 374, 375 (Fla. 5th DCA 2011) (“[A] party may attack a witness’s credibility by introducing a prior statement of the witness that is inconsistent with the witness’s present testimony. The prior inconsistent statement may be oral and unsworn.” (internal citations omitted)). The postconviction court noted that the victim did not affirmatively state in her deposition that she did not see Mr. Pierce’s scars. However, the victim’s statement would nevertheless have been admissible as a material circumstance that would have been natural to mention when asked to identify any abnormal physical features that she observed on Mr. Pierce’s body. See Charles W. Ehrhardt, Florida Evidence § 608.4 (2013 ed.) (“If the prior statement does not mention a material circumstance which would have been natural to mention in the statement, the omission in the statement should be admissible as an inconsistent statement.”). This negative impeachment could have allowed counsel to attack the victim’s credibility supporting Mr. Pierce’s argument that the victim fabricated the allegations. See Varas v. State, 815 So.2d 637, 640 (Fla. 3d DCA 2001) (“Negative impeachment is more likely deemed to be permissible where a witness appears to be fabricating.”) (citing Morton v. State, 689 So.2d 259, 264 (Fla.1997) (“[Cjaution should be exercised in permitting impeachment of a witness who has given favorable testimony but simply fails to recall every detail unless the witness appears to be fabricating.” (emphasis added)), receded from on other grounds, Rodriguez v. State, 753 So.2d 29 (Fla.2000)).

The postconviction court also found that Mr. Pierce’s claim regarding the victim’s description of Mr. Pierce’s scars during Detective Jones’ initial interview was conclusively refuted by the record since the victim ultimately described the scar in the interview after she was asked a third time. However, this finding fails to refute Mr. Pierce’s allegation that the victim failed to describe the scar after being asked the first two times. Mr. Pierce’s counsel would not have been precluded from impeaching the victim with her two earlier affirmative statements that she did not see a scar on Mr. Pierce’s body since counsel would have been able to read into evidence the entire portion of the interview in which Detective Jones eventually elicited her observation of the scar only after he asked a third time. See § 90.108(1) (“When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him or her at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously.”). Therefore, Mr. Pierce’s claim — that impeachment with the full interview would have suggested to the jury that the victim learned about his scars from Detective Jones — is not conclusively refuted by the record.

The postconviction court also noted that Mr. Pierce’s proposed impeachment would have been largely cumulative. Mr. Pierce’s counsel elicited on cross-examination that the victim was not actually fearful of bringing these allegations. When counsel asserted that the victim would have no need to fear Mr. Pierce while she was in Puerto Rico, she conceded that she did not report the incident because she wanted to put it behind her. Counsel also emphasized that the victim’s calm demeanor while speaking with Mr. Pierce during a controlled call showed the victim’s lack of fear. But this impeachment of the victim was introduced to prove that the victim’s testimony regarding her fear in bringing these allegations was false. Conversely, the victim’s prior inconsistent statements were admissible to attack the credibility of her trial testimony. See § 90.608(1); see also Charles W. Ehrhardt, Florida Evidence § 608.4 (2013 ed.) (“The argument is not that the prior statement is true and the testimony in court is false, but that because the witness has made two different statements concerning a material fact, the jury should not place great weight on the in-court testimony.”). Therefore, these prior inconsistent statements would have been admissible for the purpose of attacking her credibility since they were not cumulative to other facts that Mr. Pierce’s trial counsel elicited on cross-examination. See Nelson v. State, 126 So.3d 1195, 1199 (Fla. 4th DCA 2012) (reversing summary denial of claim that counsel was ineffective for failing to impeach the victim with his prior statements, which “would have significantly impacted the credibility of the victim’s version of events”); Bentley v. State, 867 So.2d 515, 516 (Fla. 1st DCA 2004) (finding that the failure to impeach the State’s key witness with a prior inconsistent statement constituted deficient performance despite counsel’s impeachment of the witness with his prior convictions and motives).

Based on the foregoing, the summary record does not conclusively refute Mr. Pierce’s claim that counsel’s failure to impeach the victim undermines confidence in the outcome of his trial so as to warrant summary denial of his claim. See Fla. R. Crim. P. 3.850(d) (2012) (current version at Fla. R. Crim. P. 3.850(f)). Counsel might have made a tactical decision in not introducing these prior inconsistent statements, but such a decision is not apparent from the face of the record. See Sampson v. State, 751 So.2d 602, 602 (Fla. 2d DCA 1998) (“To conclude that an action or inaction taken by a trial attorney was a strategic decision generally requires an eviden-tiary hearing.”). Also, Mr. Pierce will be entitled • to postconviction relief only if he meets the rather difficult burden of establishing a reasonable probability, sufficient to undermine confidence in the outcome of his trial, that but for counsel’s errors the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (“The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”).

Accordingly, we reverse the denial of ground one and remand for the postconviction court to attach portions of the record that conclusively refute Mr. Pierce’s claim or hold an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

ALTENBERND, CASANUEVA, and LaROSE, JJ., Concur.


author: TAYLOR, J.

text:
    Michael DENIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1571.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2014.

      Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Defendant, Michael Denis, appeals his conviction for felony criminal mischief (causing damage to property valued at $1,000 or more). He argues that the trial court erred in failing to conduct a “genuineness analysis” of the State’s peremptory challenge of an African-American juror. We agree and reverse for a new trial.

During jury selection, the state initiated a peremptory challenge against a prospective juror, and the following exchange occurred:

[DEFENSE]: Um, let the record reflect this person is African-American and I would ask that the state um cite a race neutral reason for that strike.
[STATE]: She had her eyes closed and was dozing off while the judge was speaking.
[DEFENSE]: I didn’t observe that. I don’t know if the court did.
[THE COURT]: No, I didn’t, but I’ll take [the State]’s word for it. And I guess that would be a legitimate race neutral reason.

The court allowed the strike and the parties then discussed the remaining veni-re members. After jury selection and before the jury was sworn, defense counsel stated that she accepted the jury “subject to the prior objection.”

The defendant argues that the trial court erred in failing to conduct a genuineness analysis of the state’s peremptory challenge. The state responds that the defendant did not preserve the issue for appellate review because he did not specifically object to the state’s proffered race-neutral reason for the strike and merely renewed a general objection before the jury was sworn.

In Melbourne v. State, 679 So.2d 759, 764 (Fla.1996), the Florida Supreme Court set forth a three-step procedure for challenging a peremptory challenge on the grounds that the challenge was made on a discriminatory basis. In the first step, the opponent of the strike must: “a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.” Id. (footnotes omitted). In the second step, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation. Id. Finally, in the third step, if the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained. Id.

Preservation of an objection to the use of a peremptory strike requires more than one objection: an objection to initiate a Melbourne inquiry and another objection before the jury is sworn in. See Carratelli v. State, 961 So.2d 812, 818 (Fla.2007); Burgess v. State, 117 So.3d 889, 892 (Fla. 4th DCA 2013). Moreover, if the proponent of the peremptory strike proffers a facially race-neutral reason for the strike during step 2 of the Melbourne procedure, the party objecting to the strike must preserve the issue by putting the court on notice that he or she contests the factual assertions on which the strike is based. See Hoskins v. State, 965 So.2d 1, 9 (Fla.2007) (stating that the defendant’s failure to question the facts on which the strike was based waived the issue for review); Doe v. State, 980 So.2d 1102, 1104 (Fla. 4th DCA 2008) (affirming the trial court’s decision to sustain the peremptory strike because “defense counsel did not challenge the facts on which the strikes were based and thus failed to preserve this issue for appellate review”).

In this case, the defendant followed the procedures for preserving the peremptory challenge for appellate review. Defense counsel objected to the state’s use of the peremptory strike by asking for a race-neutral reason for the strike. See Foster v. State, 767 So.2d 525, 528 (Fla. 4th DCA 2000) (holding that simply requesting a gender or race neutral reason for a peremptory strike is sufficient to initiate a Melbourne inquiry and lodge an adequate objection, even where the opponent of the strike does not incant the words “I object”).

Then, after the state proffered its race-neutral reason for the strike — that the juror had fallen asleep during voir dire— defense counsel contested the factual basis of the state’s reason by informing the court that defense counsel did not see the juror fall asleep and asking the court to address whether it witnessed this behavior. The trial court was thus put on notice that defense counsel questioned the genuineness of the state’s reason for the challenge and the issue was preserved for our review. Cf. Mobley v. State, 100 So.3d 1170, 1173 (Fla. 1st DCA 2012) (holding that the defendant waived his objection to the state’s peremptory strike by failing to. voice a specific objection that the state’s proffered reasons for the strike were not genuine or were mere pretexts).

In addition to making a proper objection to initiate a Melbourne inquiry, defense counsel preserved her objection to the state’s peremptory challenge before the jury was sworn in by accepting the jury “subject to prior objections.” Carratelli, 961 So.2d at 318; Burgess, 117 So.3d at 892.

We next consider the merits of the defendant’s argument that the trial court failed to conduct a proper genuineness analysis of the state’s race-neutral reasons for the peremptory challenge. A genuineness analysis is the third step of the Melbourne procedure. Melbourne, 679 So.2d at 764. It requires the trial court to assess whether the reasons provided by the proponent of the peremptory strike are both race-neutral and genuine. In doing so, the trial court must consider all relevant circumstances surrounding the strike. Id. n. 8.

Although “the Melbourne procedure does not require the trial court to recite a perfect script or incant specific words in order to properly comply with its analysis under step three,” Hayes v. State, 94 So.Bd 452, 468 (Fla.2012), “ ‘Melbourne does not relieve a trial court from weighing the genuineness of a reason just as it would any other disputed fact.’” Id. (quoting Dorsey v. State, 868 So.2d 1192, 1202 (Fla. 2008)).

“Therefore, where the record is completely devoid of any indication that the trial court considered circumstances relevant to whether a strike was exercised for a discriminatory purpose, the reviewing court ... cannot assume that a genuineness inquiry was actually conducted .... ” Hayes, 94 So.3d at 463; see also Cook v. State, 104 So.3d 1187, 1190 (Fla. 4th DCA 2012) (holding that where the trial court did not articulate any analysis on the record and merely summarily sustained the state’s peremptory challenges, the trial court did not conduct the genuineness analysis of step three, as required by Melbourne).

Where the record has not provided us with any indication that the trial court engaged in the genuineness inquiry required by Melbourne, our court has consistently reversed for a new trial. See, e.g., Burgess, 117 So.3d at 892 (holding that the trial court’s failure to make necessary findings as to the genuineness of the state’s race-neutral reasons for using peremptory strikes on African-American jurors was reversible error); Victor v. State, 126 So.3d 1171, 1175 (Fla. 4th DCA 2012) (reversing conviction where trial court failed to engage in an analysis of whether the facially race-neutral reasons for peremptory strikes of black prospective jurors were genuine); Cook, 104 So.3d at 1190-91 (reversing for the trial court’s failure to analyze the genuineness of the state’s proffered race-neutral reasons for a peremptory strike).

In this case, when the state asserted that its race-neutral reason for striking the juror was that the juror was dozing off during voir dire, and defense counsel challenged whether this had actually occurred, the trial court did not confirm that it did occur or engage in any inquiry to determine the genuineness of the state’s reason. Instead, the court summarily sustained the state’s peremptory challenge, stating “I’ll take [the State’s] word for it. And I guess that would be a legitimate race-neutral reason.” As our court has held, when the race-neutral explanation for a strike is based on nonverbal behavior, that behavior must either be observed by the trial court or supported by the record. Harriell v. State, 29 So.3d 372, 374 (Fla. 4th DCA 2010) (citing Dorsey, 868 So.2d at 1199-1200,1202-03).

Because the record is devoid of any indication that the trial judge implicitly or explicitly conducted a genuineness analysis, as required by step three of the Melbourne procedure, we reverse the defendant’s conviction and remand for a new trial.

Reversed and Remanded for a new trial.

DAMOORGIAN, C.J., and LEVINE, J., concur.


text:
    Luis A. MASONETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2318.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2014.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Luis A. Masonett was charged with burglary of a dwelling, possession of burglary tools, and grand theft from a dwelling. Following a jury trial, he was convicted of all charges and sentenced to fifteen years on the burglary charge, as a prison release reoffender, and five years as to the other two offenses, all counts to run concurrently. Masonett appeals his conviction and sentence for the grand theft offense, arguing that the trial court erred in denying his motion for judgment of acquittal because the State failed to provide sufficient evidence regarding the value of the stolen property. We reverse the grand theft conviction, and remand for the entry of a judgment and sentence for petit theft.

At trial, the only evidence presented as to the stolen items or their value was through the testimony of the victim of the theft, which reflected the following information about the stolen property: Carolina Herrera perfume, which the victim received as a gift in 2010; a DVD player that was a gift to her son; a camera which cost $149.00; two cell phones, which had originally cost $59.00 each, but were old and had already been upgraded; and a bag for her son’s oxygen equipment. The victim also testified that, as of the time of trial, she had not attempted to replace any of the missing items.

At the close of the State’s case, defense counsel moved for a judgment of acquittal, arguing that the State failed to establish the value of the stolen items. However, the trial court denied the motion.

In reviewing a denial of a motion for judgment of acquittal, “the appellate court determines whether the State introduced competent substantial evidence to support the guilty verdict.” Gilbert v. State, 817 So.2d 980, 982 (Fla. 4th DCA 2002). In moving for a judgment of acquittal, the defendant “admits all facts introduced in evidence, and every fair and reasonable inference must be drawn in favor of the State.” Sanchez v. State, 101 So.3d 1283, 1285-86 (Fla. 4th DCA 2012) (citing Maglio v. State, 918 So.2d 369, 374 (Fla. 4th DCA 2005)). A motion for judgment of acquittal should not be granted unless, “when viewed in a light most favorable to the State, the evidence does not establish a prima facie case of guilt.” Jackson v. State, 76 So.3d 1130, 1131 (Fla. 4th DCA 2012).

The grand theft from a dwelling charge required proof that the value of the stolen property was $100 or more, but less than $300. § 812.014(2)(d), Fla. Stat. (2013). The term “value” is defined as “the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.” § 812.012(10)(a)l, Fla. Stat. (2013). Because the victim had not attempted to replace any of the stolen property, in order to make a prima facie case for grand theft, the State had to establish “the market value of the stolen property at the time of the theft beyond and to the exclusion of every reasonable doubt.” Gilbert, 817 So.2d at 982.

In order to determine whether the evidence presented at trial to establish the value of the stolen property was sufficient to overcome a motion for judgment of acquittal, we apply a two-pronged test. Id. The first prong requires the court to decide whether the person testifying is competent to testify as to the value of the stolen property. Id. Generally, the owner is considered competent to do so, as he or she would necessarily have knowledge about the quality, cost and condition of his or her property. Id. This first inquiry is satisfied in the instant case, as the person testifying to the stolen items was the victim. Second, the court must ascertain whether the evidence adduced at trial is sufficient to prove the value at the time of the theft. Id. In discerning whether the evidence presented sufficiently proves the value of the items at that time of the theft, we have previously explained that

[ajbsent direct testimony of the market value of the property, proof may be established through the following factors: original market cost, manner in which the item has been used, its general condition and quality, and the percentage of depreciation since its purchase or construction.

Id.; Lucky v. State, 25 So.3d 691, 692 (Fla. 4th DCA 2010).

In the instant ease, there was no direct testimony regarding the market value of the property. Notably, with regard to electronics, this court has previously held that the “purchase price alone is generally insufficient to establish the value of such property in theft cases.” Lucky, 25 So.3d at 692 (explaining that “[ejlectrical components like televisions, computers, and stereo systems are subject to accelerated obsolescence because manufacturers are constantly releasing new, improved technology at lower prices”). Therefore, the testimony that the Canon camera cost $149.00 and the two outdated cell phones originally cost $59.00 each is not sufficient to establish the market value of those electronic items at the time they were stolen. Moreover, testimony as to how much was paid for the items, without testimony regarding the present market value, is insufficient to establish the total value of the stolen property. Davis v. State, 48 So.3d 176,180 (Fla. 4th DCA 2010).

Furthermore, with regard to the DVD player, perfume, and the bag for oxygen equipment, the State did not present any testimony as to the original market cost, when the items were purchased, the manner in which they were used, their condition or quality, or the percentage of depreciation. Therefore, the evidence presented, or lack thereof, failed to sufficiently establish the value of the items at the time of the theft beyond and to the exclusion of every reasonable doubt. As such, there was insufficient evidence to support a conviction for the grand theft charge, and the trial court erred in denying' Masonett’s motion for judgment of acquittal.

Accordingly, we reverse the conviction for grand theft from a dwelling and remand to the circuit court for the entry of a judgment of guilt for second-degree petit theft.

Reversed and Remanded.

STEVENSON, TAYLOR and CONNER, JJ., concur.

      . Section 924.34, Florida Statutes (2013), provides:
      When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.


text:
    Anthony A. CALDWELL, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4583.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2014.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

We reverse appellant’s conviction for unarmed robbery due to the admission of hearsay in the form of a booking report.

Appellant was charged with armed robbery for forcibly taking jumbo size house fried rice from a deliveryman while holding him at gunpoint. At trial, through a Chinese interpreter, the deliveryman described the robber as a middle aged 5'9" black male, weighing “around 200 pounds.” This differed from his initial report to the police, where he said the robber was 5'9" to 6 feet tall and weighed between 160 and 200 pounds. The deliveryman stated that once the police created a photo lineup, he immediately identified appellant as his assailant.

Appellant’s defense was misidentifieation. The number on the cell phone taken from appellant at the time of his arrest was not the same one used to place the delivery order with the restaurant. Yet, the gunman told the deliveryman “to give him the fried rice,” indicating that the gunman knew what was in the bag, a fact that weighs in appellant’s favor because the order was not placed from his cellphone. Appellant had facial hair and the perpetrator did not. In his opening statement, the defense lawyer focused on the disparity between the deliveryman’s initial description and actual measurements of about 5'6" and “well over 200 pounds.”

To combat the defense theory, the State questioned the arresting officer about the physical description of appellant contained in a “rough arrest” report derived from appellant’s booking information. The defense raised a hearsay objection. The trial court deferred ruling to allow the State to “lay a predicate” as to where “the booking information [came] from.” The arresting officer explained:

There is a series of questions on a piece of paper called the Rough Arrest form. When somebody is arrested, they are brought to the station. At that point, those questions are asked and the questions are filled in from the answers received by the defendant.

Immediately after this testimony, the trial court overruled the hearsay objection. Reading from the booking report, the officer said that appellant was listed at 5'9" and 180 pounds.

Appellant was convicted of the lesser included offense of unarmed robbery, a result consistent with the deliveryman’s hesitation about whether the robber wielded a weapon.

The booking report presented a potential question of hearsay within hearsay. At the first level is the out of court height and weight statement from the arrestee or someone else to the person compiling the report; at the second level is the recording of information into the booking report. Hearsay within hearsay is not excluded under the rule against hearsay, see § 90.802, Fla. Stat. (2012), “provided each part of the combined statements conforms with an exception to the hearsay rule as provided in s. 90.803 or s. 90.804.” § 90.805, Fla. Stat. (2012).

Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(1)(c), Fla. Stat. (2012). Booking reports are “statements within the meaning of the hearsay rule.” Tolbert v. State, 114 So.3d 291, 294 (Fla. 4th DCA 2013); see also Rock v. State, 584 So.2d 1110, 1112 (Fla. 1st DCA 1991), approved in part and remanded, 605 So.2d 456 (Fla. 1992) (finding a booking report to be hearsay); Diaz v. State, 106 So.3d 515, 517 (Fla. 2d DCA 2013) (Casanueva, J., concurring) (same). As an out of court statement, the booking report was hearsay; it was offered to prove that appellant was 5'9" and 180 pounds or that he said he was 5'9" and 180 pounds at the time of his arrest.

Even though it was hearsay, the booking report might have been admissible as a record of a regularly conducted business activity under section 90.803(6), Florida Statutes (2012). See Johnson v. Renico, 314 F.Supp.2d 700, 707 (E.D.Mich.2004) (finding booking records to be properly admitted under the business records exception); United States v. Abell, 586 F.Supp. 1414, 1425 (D.Me.1984) (same). However, the State failed to adequately demonstrate that the report was made at or near the time that the height and weight information was received, that the record was kept in the ordinary course of a regularly conducted business activity, and that it was a regular practice of the booking agency to make such a record. See § 90.803(6)(a), Fla. Stat. (2012); Yisrael v. State, 993 So.2d 952, 956 (Fla.2008) (“[T]he evidentiary proponent ... ha[s] the burden of supplying a proper predicate to admit this evidence under an exception to the rule against hearsay.”).

Because the booking report was hearsay where a hearsay exception was not established at trial, it was error to allow the arresting officer to read to the jury the information it contained. Having found the booking report to be inadmissible hearsay, we do not decide whether appellant was adequately authenticated as the person who provided the height and weight information for the booking report, see Diaz, 106 So.3d at 518 (Casanueva, J., concurring), or whether the height and weight report was admissible either as an admission under section 90.803(18) or as non-hearsay.

We do not find the error in the admission of the booking report information to be harmless. “ ‘[U]nder the harmless error test, the State must prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.’ ” Vilseis v. State, 117 So.3d 867, 871 (Fla. 4th DCA 2013) (quoting Symonette v. State, 100 So.3d 180, 184 (Fla. 4th DCA 2012)). “The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict.” State v. DiGuilio, 491 So.2d 1129,1139 (Fla.1986).

In this case, the issue was one of identity. Just after the robbery, the deliveryman told officers that his assailant weighed between 160 and 200 pounds. The initial theory of defense, as demonstrated in the opening statement, was that appellant was a short, hefty person weighing well in excess of 200 pounds, an argument torpedoed by appellant’s reported admission that he weighed 180 pounds. While there was significant evidence against appellant — namely, that the victim identified him upon viewing a photo lineup — it cannot be said beyond a reasonable doubt that the erroneous admission of the booking report information did not affect the verdict.

Reversed and remanded for a new trial.

DAMOORGIAN, C.J., and KLINGENSMITH, J., concur.


author: MORRIS, Judge.

text:
    Robert VALENTA, Appellant, v. Linda VALENTA, Appellee.
    No. 2D12-4741.
    District Court of Appeal of Florida, Second District.
    April 30, 2014.
    Robert Valenta, pro se.
    Linda Valenta, pro se.
   MORRIS, Judge.

Robert Valenta appeals a final judgment of the circuit court adopting the magistrate’s report on his and Linda Valenta’s petitions for modification of child support and parental responsibility. Mr. Valenta raises several issues on appeal, but we only find merit in his argument that the magistrate erred in failing to order that he is no longer responsible for half of the child’s private school tuition.

As a result of the parties’ dissolution of marriage, Mr. Valenta was ordered to pay child support to Ms. Valenta as well as half of the child’s private school tuition and costs, and a judgment was later entered against him for arrears in child support and tuition. In his petition for modification, Mr. Valenta sought child support from Ms. Valenta based on a change in the parties’ financial circumstances. At the hearing on the parties’ petitions for modification, Ms. Valenta testified that she pays for all of the child’s private school tuition and she agreed to continue solely paying for the tuition in the future. The magistrate relied on Ms. Valenta’s “extraordinary efforts” in this regard and “abat[ed] the nominal amount of child support owed to [Mr. Valenta] until the child’s private schooling [i]s terminated.” But the magistrate did not expressly terminate Mr. Va-lenta’s obligation to pay for half of the child’s private school tuition in the future. We agree with the magistrate’s decision to deny Mr. Valenta’s request for child support, but we remand for the trial court to enter an order clarifying that Mr. Valenta is no longer obligated to pay for half of the child’s remaining private school tuition.

Affirmed; remanded.

SILBERMAN and WALLACE, JJ„ Concur.


author: SLEET, Judge.

text:
    Thomas PARKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3697.
    District Court of Appeal of Florida, Second District.
    May 2, 2014.

      Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bilal A. Faruqui, Assistant Attorney General, Tampa, for Appellee.
   SLEET, Judge.

Thomas Parker appeals his judgment and sentence for aggravated stalking. He raises two issues on appeal, the first of which we affirm without further comment. As for the second issue, Parker argues that the trial court committed reversible error by failing to conduct a Faretta inquiry before sentencing him. Because the trial court failed to renew the offer of counsel before sentencing Parker, we vacate the sentence and remand for resen-tencing.

Nearly a month before trial, Parker opted to waive his right to counsel and elected to represent himself. At that time, the trial court conducted a Faretta inquiry and allowed Parker to represent himself throughout the trial. However, when the jury returned with the guilty verdict, the trial court proceeded immediately to sentencing without renewing the offer of counsel. In doing so, the trial court erred. “Once a defendant waives the right to counsel in a criminal case, the court must renew the offer of counsel at each subsequent critical stage of the proceedings, one of which is sentencing.” Serrano v. State, 113 So.3d 895, 896 (Fla. 2d DCA 2012); see also Ingraham v. State, 32 So.3d 761, 768-69 (Fla. 2d DCA 2010) (holding that sentencing is a critical stage of criminal proceedings and the offer of counsel must be renewed at each critical stage where the defendant appears without counsel). Accordingly, we affirm the judgment, vacate the sentence, and remand for resentenc-ing.

ALTENBERND and KHOUZAM, JJ. Concur.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


author: LaROSE, Judge.

text:
    Ricardo E. WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1118.
    District Court of Appeal of Florida, Second District.
    May 2, 2014.

      Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Ricardo E. Walker, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

Ricardo Walker entered guilty pleas, in exchange for a limited prison term, to possession of cannabis in an amount greater than twenty grams, a third-degree felony, and felon in possession of a firearm, a second-degree felony.. See §§ 893.13(6)(a), 790.23(1), (3), Fla. Stat. (2011). His plea agreement required Mr. Walker to appear timely for sentencing. When he failed to do so, the trial court imposed the maximum prison term for each offense. See Quarterman v. State, 527 So.2d 1380, 1382 (Fla.1988); Norman v. State, 43 So.3d 771, 773-74 (Fla. 2d DCA 2010). In an amended initial brief, Mr. Walker argues that his conviction for felon in possession of a firearm constitutes fundamental error.

Mr. Walker argues that Weeks v. State, — So.3d —, 2013 WL 6818369, 39 Fla. L. Weekly D35 (Fla. 1st DCA Dec. 26, 2013), compels the conclusion that the felon in possession statute is facially unconstitutional. We disagree. As we read Weeks, the First District seemingly found the statute unconstitutional as applied— i.e., to antique or replica firearms as further defined in section 790.001(1), and (6). In Weeks, the firearm was a black powder muzzle loader rifle with a percussion cap firing system of ancient vintage, arguably a replica of an antique, with an added scope. Id. at-, at D36. Following the denial of a motion to dismiss, Weeks entered a no contest plea, reserving the right to appeal the dispositive motion. Weeks certified conflict with Bostic v. State, 902 So.2d 225 (Fla. 5th DCA 2005) (holding that the felon in possession of a firearm statute is not unconstitutional because the term “replica” is not so vague as to render the statute unconstitutional). We note that the dissenting opinion in Bostic viewed the felon in possession statute unconstitutionally vague as applied. Bostic, 902 So.2d at 229 (Sharp, W., J., dissenting).

Nothing in our record suggests that Mr. Walker possessed an antique or replica firearm. Indeed, the record shows that he possessed a modern weapon, a Ruger firearm with rounds of ammunition in the magazine. Weeks and Bostic are inapplicable and are of no aid to Mr. Walker.

Affirmed.

CASANUEVA and VILLANTI, JJ„ Concur.

      . We initially conducted review of this case pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mr. Walker’s pro se brief argued that his trial counsel was ineffective on the face of the record for failing to move to withdraw his plea after he failed to appear at sentencing, a position that is meritless and unsupported by the record. See Quarterman, 527 So.2d at 1382; Norman, 43 So.3d at 773-74. Mr. Walker's appellate counsel then moved to withdraw the original Anders designation and to submit an amended brief to challenge the felon in possession of a firearm charge, which we allowed.


author: ALTENBERND, Judge.

text:
    Kevin JENNINGS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4022.
    District Court of Appeal of Florida, Second District.
    May 2, 2014.
    Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

In this appeal brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we affirm the revocation of Kevin Jennings’ community control and the sentence imposed on revocation as that sentence is reflected in the corrected sentencing document, which was entered during the pendency of this appeal pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). We write only to note that with respect to this sentence, Mr. Jennings retains his youthful offender classification as pronounced by the trial court during sentencing on the revocation of his community control and as reflected in the order granting his rule 3.800(b)(2) motion to correct his sentence.

Affirmed.

VILLANTI and LaROSE, JJ., concur.


author: KHOUZAM, Judge.

text:
    Louisa TUMELAIRE, Petitioner, v. NAPLES ESTATES HOMEOWNERS ASSOCIATION, INC., and its successors and assigns; Barbara Brown, Lila Robinette, Marie Corey, Thomas Davis, David Newkirk, John Kujawa, Jackie Felter, Kathy Maynard, and Robert Vandepolder, individuals, Respondents.
    No. 2D13-5071.
    District Court of Appeal of Florida, Second District.
    May 7, 2014.

      Mimi S. Wolok, Naples, for Petitioner.
    Stephanie D. Capps of Vernis & Bowling of Southwest Florida, P.A., Fort Myers, for Respondents.
   KHOUZAM, Judge.

Louisa Tumelaire has filed a petition for writ of certiorari seeking review of a nonfi-nal circuit court order addressing various discovery issues. We grant the petition in part and deny it in part.

Tumelaire is a resident of Naples Estates, a mobile home park, and a member of the Naples Estates Homeowner’s Association, Inc. (HOA). In the underlying action, she filed a complaint against the HOA, raising various allegations against the board of directors and requesting an accounting. The HOA responded that Tu-melaire was not entitled to the documents because she was an agent for the park owner. The HOA and the park owner have been involved in litigation for fifteen years, and the HOA suspected that Tume-laire was trying to gain access to its documents for the park owner’s benefit.

The HOA moved to compel Tumelaire to disclose information on her fee arrangements with her attorney and her accountant as well as an unredacted copy of an email sent from her attorney to the park owner’s attorney. Tumelaire filed a motion for protective order, seeking to prevent the HOA from asking her questions about who was paying her legal and accounting fees and how she came to hire her attorney. Following two hearings, the court entered an order granting the HOA’s motions to compel and denying Tume-laire’s motion for protective order. Tu-melaire seeks review of these decisions.

On a petition for writ of certiora-ri, this court must determine whether the trial court departed from the essential requirements of the law. Wal-Mart Stores, Inc. v. Weeks, 696 So.2d 855, 856 (Fla. 2d DCA 1997). Because the trial court has broad discretion to make decisions regarding discovery, an order allowing discovery should only be set aside on certiorari review if it “constitutes an abuse of discretion which would cause irreparable damage which cannot be remedied on appeal.” Id. Here, Tumelaire argues that the court departed from the essential requirements of the law by allowing discovery of communications and documents that should be protected by attorney-client privilege and work-product privilege. She also claims that disclosure of this information would cause irreparable harm that cannot be remedied on appeal.

As to the information on the fee arrangement between Tumelaire and her attorney, this information is indeed protected by attorney-client privilege. Pursuant to section 90.502(2), Florida Statutes (2013), “[a] client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.” “The identity of a client and payment of a fee appear to be within the ambit of the statutory privilege and are not expressly or impliedly excluded exceptions.” Corry v. Meggs, 498 So.2d 508, 511 (Fla. 1st DCA 1986). Thus, “such matters are intended to be confidential and do constitute confidential communications.” Id. Billing records also contain information covered by attorney-client privilege. HCA Health Sens, of Fla., Inc. v. Hillman, 870 So.2d 104, 107 (Fla. 2d DCA 2003).

“[T]he attorney-client privilege, unlike the work-product doctrine, is not concerned with the litigation needs of the opposing party.” Genovese v. Provident Life & Accident Ins. Co., 74 So.3d 1064, 1068 (Fla.2011). “‘[UJndue hardship is not an exception, nor is disclosure permitted because the opposing party claims that the privileged information is necessary to prove their ease.’” Id. (quoting Quarles & Brady, LLP v. Birdsall, 802 So.2d 1205, 1206 (Fla. 2d DCA 2002)). Thus, we conclude that the court in this case departed from the essential requirements of the law by ordering the information on Tumelaire’s attorney’s fees to be disclosed to the HOA. Disclosure of this confidential information would cause Tumelaire irreparable injury. See Hillman, 870 So.2d at 107 (“In certio-rari review, material protected by privilege or work product is the kind of information that ‘may reasonably cause material injury of an irreparable nature.’ ” (quoting Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995))). Accordingly, we quash the portion of the circuit court’s order requiring Tumelaire to disclose information on her fee arrangement with her attorney.

We next address the unredacted email requested by the HOA. Tumelaire argues that the email is protected by work-product privilege. But because Tu-melaire’s attorney sent the email to the park owner’s attorney, any work-product privilege that may have protected it has been waived. See § 90.507, Fla. Stat. (2013) (providing that privilege is waived when confidential information is voluntarily disclosed); see also Kaplan v. Divosta Homes, L.P., 20 So.3d 459, 462 (Fla. 2d DCA 2009) (noting that homeowners’ voluntary disclosure of information to their next-door-neighbor’s relatives would waive privilege); Walker v. River City Logistics, Inc., 14 So.3d 1122, 1123 (Fla. 1st DCA 2009) (holding that voluntary disclosure of allegedly privileged documents waived privilege). Voluntary disclosure of alleged work product waives work-product privilege where that disclosure is inconsistent with maintaining secrecy from the disclosing party’s adversary — or, in other words, the disclosure substantially increases the chance that the opposing party will obtain the information. Visual Scene, Inc. v. Pilkington Bros., pic., 508 So.2d 437, 442 (Fla. 3d DCA 1987). And though an argument could be made that work-product privilege was not waived here because Tu-melaire and the park owner share common interests, see id., Tumelaire has not raised this argument and indeed any such argument would be undermined by her stance that she has no relationship with the park owner. Certiorari relief is not warranted on this claim.

Finally, we conclude the court properly allowed the disclosure of information on who hired Tumelaire’s accountant and the fees that he is being paid. Tume-laire has named the accountant as an expert in her case, and “where the discovery sought is directed to a party about the extent of that party’s relationship with a particular expert, the balance of the interests shifts in favor of allowing the pretrial discovery.” Allstate Ins. Co. v. Boecher, 733 So.2d 993, 997 (Fla.1999). No relief is warranted on this claim.

Accordingly, we grant the petition in part and quash the portion of the circuit court’s order requiring the disclosure of information about the fee arrangement between Tumelaire and her attorney. As to Tumelaire’s remaining claims, we deny the petition.

Granted in part and denied in part.

KELLY and WALLACE, JJ., Concur.

      . The circuit court’s order addressed various other discovery issues as well, but Tumelaire only seeks review of the portion of the court's order addressing the motions to compel and the motion for protective order.


author: MAY, J.

text:
    Harvey Jay WEINBERG and Kenneth Alan Weinberg, Appellants, v. Betty WEINBERG, individually and as Trustee of the “Sidney Weinberg and Betty Weinberg Revocable Living Trust U/A dated September 30, 1992”, Appellee.
    No. 4D12-4188.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2014.

      Adam G. Heffner of Adam G. Heffner, P.A., Boca Raton and Law Offices of Steven H. Shulman, Boca Raton, for appellant.
    Anthony M. Stella, Amy Rubin, and Elliot Hallak of Fox Rothschild LLP, West Palm Beach, for appellee.
   MAY, J.

Beneficiaries of a trust appeal an order denying their request to enforce a $500 per diem contempt fine against a trustee for her non-compliance with multiple court orders. They argue the trial court erred in not enforcing the original contempt order, the trustee waived any defect in the original contempt order by not taking an appeal, and that the trial court erred in finding it did not have the authority to impose an alternative sanction. We agree with the beneficiaries in part and reverse.

The trustee is the successor to her husband, who created a revocable living trust to assist in facilitation of their assets. As trustee, she was tasked with distributing assets to her late husband’s biological sons from a previous marriage. Instead, upon her husband’s death, the trustee sought to revoke the trust.

The sons filed suit, alleging that the distributive portions of the trust became irrevocable upon their father’s death. The trial court agreed and entered a final summary judgment requiring the trustee to distribute half the trust assets to the sons. We affirmed that final judgment. Weinberg v. Weinberg, 975 So.2d 1152 (Fla. 4th DCA), rev. dismissed, 981 So.2d 1201 (Fla. 2008).

The trustee purportedly distributed half of the trust’s assets to the sons pursuant to a joint stipulation for release of monies. Concerned about whether this distribution included all of the assets due to them, the sons requested a full accounting as required by the final judgment. When the trustee failed to comply, the sons moved to compel a “full accounting, under oath.”

The trial court entered an agreed order requiring an accounting within thirty days. The trustee again failed to comply, causing the sons to move for contempt and sanctions. The trustee responded by filing a conclusory declaration of compliance.

The trial court then entered an order granting the sons’ motion for contempt and sanctions. Neither the trustee nor her attorney attended the hearing at which this took place. In the order, the trial court instructed the trustee to provide a full accounting within five days, and failure to comply would result in a $500 per diem fine.

When the trustee did not comply, the sons moved for an order to show cause why the trustee should not be held in indirect criminal contempt. The trustee moved to vacate the original contempt order, arguing: (1) that the order was entered in the absence of her attorney, and (2) that she satisfied the accounting by filing the declaration and “a complete set of monthly brokerage account statements.” She also moved to disqualify the trial judge because the judge had stated to her attorney that she “was in danger of being put in jail for contempt of court.” The trial judge disqualified himself and the case was reassigned.

The new judge granted the sons’ motion for contempt and for sanctions, and again ordered the trustee to supply the accounting, but reserved jurisdiction concerning the $500 per diem penalty. The trustee appealed the portion of the contempt order that found she failed to perform the accounting. We affirmed. See Weinberg v. Weinberg, 75 So.Sd 746 (Fla. 4th DCA 2011).

The sons once again moved for contempt and sanctions. The new judge deferred ruling on the matter for 20 days to give the trustee another opportunity to comply. Once again, the trustee failed to do so, prompting another show cause order as to why the trustee “should not be held in contempt of court” for failing to provide an accounting.

The trustee responded by filing a sworn “First and Final Accounting of Trustee,” containing “a complete report of all cash and property transaction[s] and of all receipts and disbursement.” The report, however, was incomplete, and resulted in an order providing an additional 20 days for the trustee to amend her accounting to include the period from July 17, 2005, through September 21, 2005.

When the trustee failed to comply with that order, the sons again moved for contempt and sanctions. Rather than provide the accounting, the trustee moved to vacate the original contempt order. The new judge denied the trustee’s motion as untimely, and granted the sons’ motion for contempt and sanctions. The new judge deferred ruling on the specific sanctions until an evidentiary hearing could be conducted.

At this point, the trustee filed a supplemental accounting for the period of June 27, 2005, through October 14, 2008. The new judge found the supplemental accounting insufficient and ordered her to file an affidavit or other notarized document memorializing that the supplemental accounting “contains a full accounting of all assets titled in the name of the trust, and that no trust assets existed prior to June 27, 2005.”

Déjá vu, the trustee did not comply. The sons once again moved to hold the trustee in contempt. The new judge entered an omnibus order denying the sons’ contempt motions without prejudice to permit additional discovery.

The sons next moved for entry of a monetary sanctions award, pursuant to the original contempt order. By then, the accumulated fine had reached $215,000. The trustee retained new counsel, who filed a written response suggesting that the original contempt order was unenforceable due to the invalidity of the penalty provision. The trustee argued that the original contempt order indicated a finding of criminal contempt, but she had not been afforded procedural due process protection. If, however, the order had intended to operate as a coercive civil contempt fíne, it was fatally flawed because the $500 per diem fine was not premised upon proof of the trustee’s financial resources. Alternatively, the trustee argued that, if the order’s purpose was to compensate the sons, there was no evidence of economic loss.

The new judge denied the sons’ motion. In the order, the new judge reasoned that she could not enter a final judgment on the original contempt order because the original trial judge did not hold a hearing or make any findings of fact regarding the trustee’s financial resources or the damages suffered by the sons. The new judge further found that none of the appeals had rendered the original contempt order final, leaving the issue under her control as an interlocutory order. The new judge denied the motion for rehearing.

On appeal, the sons argue that the new judge abused her discretion by failing to enforce the original contempt order. We review this order for an abuse of discretion. See DeMello v. Buckman, 914 So.2d 1090, 1093 (Fla. 4th DCA 2005).

“To ensure the orderly administration of justice, Florida courts have the inherent power to hold parties in contempt for intentionally failing to obey a court order.” Rojo v. Rojo, 84 So.3d 1259,1261-62 (Fla. 3d DCA 2012) (citing § 38.22, Fla. Stat. (2010)). Such empowerment assists courts in “administering] public justice” and “enforcing] the rights of private litigants” by ensuring that judicial rulings serve more than a mere advisory role. Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 450, 31 S.Ct. 492, 55 L.Ed. 797 (1911) (citing Bessette v. W.B. Conkey Co., 194 U.S. 324, 337, 24 S.Ct. 665, 48 L.Ed. 997 (1904)). However, tethered to such broad-ranging power is the continued “obligation of restrained use and due process.” Moakley v. Smallwood, 826 So.2d 221, 227 (Fla.2002) (footnote omitted).

The record does not reveal that the original trial court considered the trustee’s financial resources. The order was entered after a uniform motion calendar, and there is no transcript of the hearing. We do know, however, that neither the trustee nor her counsel were present. The new judge correctly determined she could not enforce the defective contempt order as rendered.

Next, the sons argue that the trustee waived her right to contest the penalty provision of either the original contempt order or the new judge’s contempt order by failing to raise the issue in her previous appeals. We disagree. The original order contained a purge provision, with which she could have complied. While the decision holding the trustee in contempt was cemented by this Court’s affirmance, see Specialty Rests. Corp. v. Elliott, 924 So.2d 834, 837 (Fla. 2d DCA 2005), the nature of the fine to be assessed remained speculative and non-final, leaving the matter within the trial court’s control. See N. Shore Hosp., Inc. v. Barber, 143 So.2d 849, 851 (Fla.1962) (noting that trial courts have “the inherent authority to control [their] own interlocutory orders prior to final judgment”). Further, the trustee could not have appealed the new judge’s subsequent contempt order because the judge reserved ruling on enforcement of the per diem fine. There was no waiver here.

Lastly, the sons argue the new judge erred in not holding an evidentiary hearing and in not entering a sanctions order for the trustee’s repeated and flagrant noncompliance with multiple court orders. With this argument, we agree.

We begin with the maxim that “[a] party may not ignore a valid order of court except at its peril.” Johnson v. Allstate Ins. Co., 410 So.2d 978, 980 (Fla. 5th DCA 1982). The pivotal question is whether the defective nature of the original contempt order prevented the new judge from conducting a new ■ hearing to determine an appropriate sanction. The answer is no. The new judge could' move forward notwithstanding the • defects in the original contempt order.

An analogous situation was addressed in J-II Investments, Inc. v. Leon County, 21 So.3d 86 (Fla. 1st DCA 2009). There, the trial court entered a judgment requiring the defendant to implement a plan to remediate certain damages within thirty days. Id. at 88. When the defendant failed to comply, the plaintiff moved to hold the defendant in contempt. Id. The trial court entered a coercive civil contempt order, imposing a hefty per diem fine if the defendant failed to purge the contempt. Id.

Following a year of non-compliance, the trial court granted the plaintiffs motion to enforce the previous monetary sanction and imposed over $2 million in penalties. Id. at 89. The defendants moved for rehearing, and argued the trial court failed to consider their ability to pay and whether the sanction was commensurate with the damage sustained. Id. The trial court granted rehearing, conducted a series of evidentiary hearings, and entered a revised order imposing a mitigated monetary fine of $314,068. Id.

On appeal, the appellant argued that the lump sum fine converted the coercive civil contempt order into .a criminal contempt order. The First District disagreed and affirmed. It reasoned that even though the initial sanction was excessive, the- after-the-fact mitigation did not transform the matter into a criminal contempt proceeding. Id. at 90. Because the court had considered the financial resources of the appellant during the rehearing, the lump sum award was affirmed.

Much like the defendant in J-II Investments, the trustee knew she would face a fine if she failed to purge the original contempt order, yet she remained non-compliant. She should not be rewarded for her behavior. Rather, the punishment should be reconsidered with procedural safeguards in place. While the new judge correctly indicated she could not enter a final judgment on the defective original contempt order, she could still consider an appropriate sanction in light of the trustee’s financial ability to pay.

Reversed and Remanded.

CIKLIN and LEVINE, JJ., concur.


author: WARNER, J.

text:
    Clement C. BRANDENBURG and Louise Brandenburg, Appellants, v. RESIDENTIAL CREDIT SOLUTIONS, INC., Appellee.
    No. 4D12-3404.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2014.

      Clement C. Brandenburg and Louise Brandenburg, Palm Beach Gardens, pro se.
    No appearance for appellee.
   WARNER, J.

We affirm the final summary judgment of foreclosure. Appellants claim that ap-pellee failed to show that it had standing at the inception of the foreclosure action, because: (1) the assignment of mortgage to appellee was not recorded in the public records until after the commencement of the suit; and (2) the record shows that appellee did not acquire the note and mortgage until after commencement. Neither argument has merit.

First, the failure to record an assignment does not render it invalid but simply affects the rights/priority of the assignee mortgagees against other assignees. See generally § 701.02, Fla. Stat. (2013); JP Morgan Chase v. New Millennial, LC, 6 So.3d 681, 684-86 (Fla. 2d DCA 2009).

Second, as to standing, appellee acquired the note and mortgage from the prior holder, Amtrust Bank, which was the original plaintiff in this foreclosure action. Amtrust moved to substitute appellee as the plaintiff pursuant to Florida Rule of Civil Procedure 1.260. Under this rule, the substituted transferee (appellee) acquires the standing of the transferor original plaintiff (Amtrust). Amtrust had standing when the complaint was filed, in that the note attached to the complaint contained an allonge, dated before the filling of the lawsuit, assigning the note to Ohio Savings Bank. In support of the motion for summary judgment, appellee filed a certificate showing that Ohio Savings Bank had changed its name to Am-trust. Therefore, the note, together with the other filings, showed that Amtrust had standing to foreclose when it filed the complaint. See McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 172 (Fla. 4th DCA 2012).

The remaining arguments appellants make for reversal are not preserved, as they were not raised in the trial court. To the extent that appellants’ expert touched on alleged violations of the federal Real Estate Settlement Procedures Act (“RESPA”), even if preserved, the claim would not be meritorious, as such violations cannot be asserted against an assign-ee of the original lender. Good v. Deutsche Bank Nat’l Trust Co., 98 So.3d 1255,1256 (Fla. 4th DCA 2012).

Affirmed.

MAY and levine, JJ., concur.


text:
    Joyce NOIMBIE, Appellant, v. Christopher HARVEY, Appellee.
    No. 4D13-2843.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2014.

      Sarah Lahlou-Amine of Fowler White Boggs, P.A., Tampa, for appellant.
    No appearance for appellee.
   GROSS, J.

We grant the petition for writ of certio-rari and quash the decision of the circuit court affirming a county court judgment since the county court acted without jurisdiction to award damages following a hearing that violated due process.

In the county court, landlord Christopher Harvey filed a one-count complaint for tenant eviction against tenant Joyce Noimbie, alleging nonpayment of rent pursuant to section 83.56(3), Florida Statutes (2011). The three-day notice attached to the complaint indicated that it was served on the tenant after the date when payment or possession was demanded.

The tenant’s answer included a motion to dismiss, attacking the three-day notice. Also, the tenant alleged that the landlord failed to comply with a seven-day repair demand letter pursuant to section 83.60(1). Along with her answer, the tenant posted $960 in withheld rent into the registry of the court and moved the court to determine how much she needed to deposit into the court registry under section 83.60(2), Florida Statutes (2011). The county court ordered the tenant to post an additional $800 into the registry of the court and the tenant complied.

On August 29, 2011, the county court granted the tenant’s motion to dismiss because the three-day notice was insufficient on its face. The court reserved jurisdiction to determine disposition of the funds in the court registry. The tenant objected to the court retaining jurisdiction, arguing that the court lost jurisdiction to consider the landlord’s claim to the security deposit once the case was dismissed with prejudice. After a hearing not noticed as an evidentiary hearing, during which the tenant again pressed the jurisdictional matter, the court heard testimony and ordered $322 to be disbursed to the tenant, with the balance of the funds in the registry to be turned over to the landlord.

In her appeal to the circuit court, the tenant challenged the county court’s jurisdiction over the funds in the court registry after the eviction case had been dismissed with prejudice. The circuit court affirmed without explanation in a brief opinion.

The standard of review for a petition for writ of certiorari filed from a decision of the circuit court rendered in its appellate capacity is whether the petitioner has been denied due process, or whether the circuit court departed from the essential requirements of law in such a way as to cause a miscarriage of justice. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530-31 (Fla.1995). The failure to correct a court action taken without jurisdiction, after a hearing that violated the tenant’s due process rights, is a departure from the essential requirements of law that resulted in a miscarriage of justice. See id. at 526, 527 n. 7 (quoting Memaugh v. City of Orlando, 41 Fla. 433, 27 So. 34, 36 (1899)).

A tenant’s statutory obligation to place rent into the court registry arises within the context of “an action by the landlord for possession of a dwelling unit” where the “tenant interposes any defense other than payment.” § 88.60(2), Fla. Stat. (2011). Once the action for possession was dismissed with prejudice, the tenant’s obligation to post rent evaporated and the tenant was entitled to the return of the funds she deposited. With no case pending before the county court, the court lost jurisdiction to adjudicate the parties’ dispute over the amount of rent owed. See Boss v. Wells Fargo Bank, 114 So.3d 256, 257 (Fla. 3d DCA 2013); Travelers Cas. & Sur. Co. of Am. v. Sidman, 103 So.3d 900, 902 (Fla. 2d DCA 2012). The trial court dismissed the eviction lawsuit for failing to state a cause of action but nonetheless granted the landlord damages on the merits. As we wrote in a similar situation:

A defendant is authorized ... to test the legal sufficiency of the plaintiffs complaint. It is somehow intolerable for him to be successful with his motion and then observe the court at the same time issue a sua sponte declaratory judgment unfavorable to him without the case being at issue and before the defendant can frame or file his defenses, and cross and counter claims. He wins the battle and before he is ready or advised he finds he has lost the war.

Cowne v. Weber, 257 So.2d 105, 106 (Fla. 4th DCA 1972).

Here, the situation was aggravated by the county court’s holding of an evidentia-ry hearing without adequate notice to the tenant in a lawsuit where no count of the complaint sought damages; the action was for eviction only.

Writ of certiorari granted, the circuit court’s appellate opinion is quashed, and the case is returned to the circuit court for further proceedings consistent with this opinion.

LEVINE and KLINGENSMITH, JJ„ concur.

      . We note that effective July 1, 2013, section 83.60(1)(a), Florida Statutes (2013), provides that the "landlord must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the action.” See Ch. 2013-136, § 12, Laws of Fla. This provision did not apply in 2011, so dismissal was the proper remedy. Under the 2013 statute, a landlord who files an eviction action with a defective three-day notice might serve a new three-day notice and serve an amended complaint.

      . We note that had the county court reserved jurisdiction, it could have considered post-judgment, non-merits matters like taxable costs and attorney’s fees.


text:
    Robert S. KUNKEL, Appellant, v. Brandi STANFORD, on behalf of C.S., a minor child, Appellee.
    No. 4D13-285.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2014.

      Alan R. Crane of Furr & Cohen, P.A., Boca Raton, for appellant.
    Steven Cripps of the Law Offices of Orsley & Cripps, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Appellant appeals an injunction for protection against domestic violence entered against him on behalf of his granddaughter, C.S. We reverse because the evidence was insufficient to support entry of the injunction.

During a hearing, appellant’s former wife testified that appellant tried to gain entry into the gated community where C.S. lives. She also testified to an incident where C.S. became upset upon seeing appellant in the waiting room at a doctor’s office. C.S.’s mother testified that C.S. cries hysterically in appellant’s presence. The mother explained that they used to live with appellant, and C.S. had seen appellant commit “verbal violence” on multiple occasions. She alleged that appellant is “not well” and refuses to get psychiatric help. The court ultimately granted the injunction, which remained effective until October 13,2013.

An injunction for protection against domestic violence is reviewed for competent substantial evidence. See Stone v. Stone, 128 So.3d 239, 240 (Fla. 4th DCA 2013); Achurra v. Achurra, 80 So.3d 1080, 1083 (Fla. 1st DCA 2012). A domestic violence injunction may be entered in favor of a person who is “either the victim of domestic violence as defined in s. 741.28 or [who] has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence.” § 741.30(l)(a), Fla. Stat. (2012). C.S. was not the victim of any act of domestic violence, and the record does not support a finding that C.S. had reasonable cause to believe she was in imminent danger of becoming the victim of an act of domestic violence. Nor did the trial court make any such finding. Rather, it appears the trial court granted the injunction to support the decision of C.S.’s mother to keep appellant away from C.S. This is not the appropriate standard for granting a domestic violence injunction.

Although the injunction has expired, we reverse and remand “with instructions to vacate the injunction due to the collateral consequences such an injunction might cause.” Stone, 128 So.3d at 242.

Reversed and remanded.

WARNER, MAY and LEVINE, JJ., concur.


text:
    Charles BRODY and Sharon Brody, individually and as the natural parents of Eric Brody, and as Co-Guardians for the Guardianship of Eric Brody, Petitioners, v. BROWARD COUNTY SHERIFF’S OFFICE, a government entity, Respondent.
    No. 4D13-3733.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2014.
    Daniel B. Rosenthal of Akerman Senter-fitt, Boca Raton, Katherine E. Giddings, Tallahassee, and David Spector, West Palm Beach, for petitioners.
    J. Michael Burman of Reid Burman, West Palm Beach, Christian D. Searcy and Jack Searola of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach, and Bernard A. Lebedeker of Crit-ton, Luttier & Coleman, LLP, West Palm Beach, for Respondent-SDSBS.
   PER CURIAM.

This is a petition for writ of prohibition, wherein petitioners challenge the trial court’s jurisdiction to reopen a case six years after it entered the final judgment. We'grant the petition.

Respondent, Searcy, Denney, Sca-rola, Barnhart & Shipley, P.A., (the “firm”) seeks to reopen the case so that the trial court can consider issues surrounding a charging lien. The trial court denied petitioners’ motion to dismiss or strike the lien. The charging lien was not filed until more than two years after jurisdiction of the case ended by the trial court’s entry of a final judgment and there was no reservation of jurisdiction in that judgment to entertain fees. We grant the petition because the trial court lacks power to preside over this case. Tobkin v. State, 111 So.2d 1160,1163 (Fla. 4th DCA 2001), citing T.D. v. K.D., 747 So.2d 456, 457 n. 2 (Fla. 4th DCA 1999); see also MCR Funding v. CMG Funding Corp., Ill So.2d 32, 35 (Fla. 4th DCA 2000); Keister v. Polen, 471 So.2d 656 (Fla. 4th DCA 1985).

A trial court lacks jurisdiction to entertain a charging lien where it has not been timely perfected; that is, filed before the trial court lost jurisdiction through settlement, dismissal or final judgment. See Sinclair, Louis, Siegel, Heath, Nussbaurn & Zavertnik, P.A. v. Baucom, 428 So.2d 1383, 1385 (Fla.1983); Daniel Mones, P.A. v. Smith, 486 So.2d.559 (Fla. 1986); Levine v. Gonzalez, 901 So.2d 969 (Fla. 4th DCA 2005). The trial court lost jurisdiction of this case by virtue of the final judgment. This is not a case, such as those relied upon by the firm, where there was fraud or collusion associated with the final judgment that resulted in the trial court’s loss of jurisdiction, thereby depriving an attorney of the opportunity to timely file the lien. See, e.g., Miller v. Scobie, 152 Fla. 328,11 So.2d 892 (1943); Naftzger v. Elam, 41 So.3d 944 (Fla. 2d DCA 2010); Brown v. Vermont Mutual Ins. Co., 614 So.2d 574 (Fla. 1st DCA 1993); United States v. Transocean Air Lines, 356 F.2d 702, 704 (5th Cir.1966).

We recognize the firm’s claims that equitable circumstances exist warranting the trial court’s exercise of jurisdiction. However, the firm has already commenced a separate, new action against the clients, the clients’ attorney (formerly a member of the firm), and others in which it alleges counts to impress a lien, along with various other claims for relief. Naftzger, 41 So.3d at 947. The firm therefore has an adequate avenue through which to seek relief.

Petition Granted. Order quashed.

TAYLOR, MAY and CONNER, JJ., concur.